"Revision of regulations for CITES, final rule, 082307"
Thursday, August 23, 2007 Part IV Department of the Interior Fish and Wildlife Service 50 CFR Parts 10, 13, 17, and 23 Revision of Regulations for the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); Final Rule ebenthall on PRODPC61 with RULES3 VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\23AUR3.SGM 23AUR3 48402 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations DEPARTMENT OF THE INTERIOR April 19, 2006, proposed rule for a ATA A combination of the French and discussion of those comments. Fish and Wildlife Service English words ‘‘Admission temporaire/ We received 344 letters in response to Temporary Admission’’ used in the name the 2006 proposed rule (71 FR 20167). of a type of international customs 50 CFR Parts 10, 13, 17, and 23 document, the ATA carnet We received comments from RIN 1018-AD87 CITES Convention on International Trade individuals, organizations, and State in Endangered Species of Wild Fauna and natural resource agencies. Of the Revision of Regulations Implementing Flora, also referred to as the Convention or comments we received, 240 letters were the Convention on International Trade Treaty from Bengal cat enthusiasts and in Endangered Species of Wild Fauna CBP Department of Homeland Security, breeders, 33 were from State natural U.S. Customs and Border Protection resource agencies and regional and Flora (CITES) CFR Code of Federal Regulations associations, 21 were from falconers and AGENCY: Fish and Wildlife Service, CoP Conference of the Parties or a meeting of the Conference of the Parties falconer organizations, and 13 were Interior. from fur trapper organizations. ESA Endangered Species Act of 1973, as ACTION: Final rule. amended (16 U.S.C. 1531 et seq.) Resolution consolidation and FOIA Freedom of Information Act (5 U.S.C. incorporation: Since 1976, the Parties SUMMARY: In this final rule, we, the Fish 552) have adopted 256 resolutions or and Wildlife Service (FWS), revise the FWS U.S. Fish and Wildlife Service revisions to resolutions. In 1994, the regulations that implement the IATA LAR International Air Transport Parties began an effort to consolidate Convention on International Trade in Association Live Animals Regulations some of these resolutions. Some Endangered Species of Wild Fauna and ISO International Organization for resolutions were no longer relevant, and Flora (CITES), a treaty that regulates Standardization others needed to be combined because international trade in certain protected several resolutions were adopted at species. CITES uses a system of permits USDA U.S. Department of Agriculture WBCA Wild Bird Conservation Act (16 different CoPs on the same or similar and certificates to help ensure that U.S.C. 4901 et seq.) subjects. As a result of this process, international trade is legal and does not there are currently 78 resolutions in threaten the survival of wildlife or plant Background effect. This rule incorporates certain of species in the wild. In this final rule, we CITES was negotiated in 1973 in these consolidated resolutions, as have retained most of the general Washington, DC, at a conference appropriate and relevant to U.S. information in the current 50 CFR part attended by delegations from 80 implementation of the Treaty. We cite 23, but reorganized the sections and countries. The United States ratified the the current numbers of resolutions since added provisions from certain Treaty on September 13, 1973, and it previous resolutions have been applicable resolutions and decisions entered into force on July 1, 1975, after renumbered. This allows the reader to adopted by the CITES Conference of the the required 10 countries had ratified it. easily access the documents currently in Parties (CoP) at its second through Section 8A of the ESA, as amended in effect on the CITES website (http:// thirteenth meetings (CoP2 – CoP13). The 1982, designates the Secretary of the www.cites.org). revised regulations will help us more Interior as the U.S. Management Stricter national measures: Article effectively promote species Authority and U.S. Scientific Authority XIV of the Treaty explicitly recognizes conservation, continue to fulfill our for CITES. These authorities have been the rights of Parties to adopt stricter responsibilities under the Treaty, and delegated to the FWS. The U.S. national measures to restrict or prohibit help those affected by CITES to regulations implementing CITES took trade, taking, possession, or transport of understand how to conduct lawful effect on May 23, 1977 (42 FR 10465, any wildlife or plant species. Resolution international trade in CITES species. February 22, 1977), after the first CoP Conf. 11.3 (Rev. CoP13) recommends DATES: This regulation is effective was held. The CoP meets every 2 to 3 that Parties make use of stricter national September 24, 2007. Incorporation by years to vote on proposed resolutions measures if they have determined ‘‘that reference of CITES’s Guidelines for and decisions that interpret and an Appendix-II or -III species is being transport and preparation for shipment implement the text of the Treaty and on traded in a manner detrimental to the of live wild animals and plants and the amendments to the listing of species in survival of that species’’ or is being International Air Transport Association the CITES Appendices. Currently 171 ‘‘traded in contravention of the laws of Live Animals Regulations listed in this countries have ratified, accepted, any country involved in the rule is approved by the Director of the approved, or acceded to CITES; these transaction.’’ The United States has Federal Register as of September 24, countries are known as Parties. adopted stricter national measures, such 2007. Proposed rule and comments as the ESA, Marine Mammal Protection received: We published a proposed rule Act (16 U.S.C. 1361-1407), and Lacey FOR FURTHER INFORMATION CONTACT: on April 19, 2006 (71 FR 20167), to Act Amendments of 1981 (16 U.S.C. Chief, Division of Management revise the regulations that implement 3371-3378). Authority, Fish and Wildlife Service, CITES. We accepted public comments As outlined in the preamble to CITES, 4401 North Fairfax Drive, Room 700, on the proposed rule for 60 days, until ‘‘peoples and States are and should be Arlington, Virginia 22203; telephone, June 19, 2006. In response to several the best protectors of their own wild (703) 358-2093; fax, (703) 358-2280; or requests from the public, we reopened fauna and flora.’’ CITES recognizes the email, firstname.lastname@example.org. the public comment period for an sovereign right of a country to regulate SUPPLEMENTARY INFORMATION: additional 30 days on June 28, 2006 (71 trade by passing stricter national What Acronyms and Abbreviations Are FR 36742). The 2006 proposed rule was measures to help in the conservation of Used in This Rule? a reproposal of revisions proposed on species. Under CITES, an exporting ebenthall on PRODPC61 with RULES3 May 8, 2000 (65 FR 26664), which were country does not have a sovereign right AECA African Elephant Conservation Act (16 U.S.C. 4201-4245) not finalized. We summarized and to override an importing country’s laws. APHIS U.S. Department of Agriculture, addressed comments received on the When a Party sends information to the Animal and Plant Health Inspection 2000 proposal in the 2006 proposed Secretariat on how its stricter national Service rule. Please refer to the preamble to the measures will affect trade in CITES VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48403 species, the Secretariat provides that under CITES. We do not believe that Application procedures (§ 13.11): As information to other Parties through a requesting public comments on all noted in our final rule on FWS permit notification. These notifications are applications involving CITES species fees (70 FR 18311), we will not charge available to the public on the CITES would provide a greater level of insight a fee to any Federal, tribal, State, or website (see § 23.7). or provide information that is not local government agency. Therefore, we Plain language: We used plain already available to us. will not charge a fee to a State or Tribe language in writing these regulations to One commenter recommended adding seeking to gain approval of a CITES make them clearer and easier to use. We a provision that would allow for export program. We also will not charge believe the regulations use an disclosures to be made without penalty a fee to add an institution to the Plant appropriate level of language to lay out and offered the example of identifying Rescue Center Program because this is a the technical requirements of a merchandise that should have been voluntary program designed to place multilateral treaty. declared but was not discovered until live plant specimens that have been General comments: A number of after the shipment was imported. We confiscated upon import or export, and commenters commended us for revising did not accept this recommendation thereby helps the United States fulfill its the U.S. CITES implementing because we believe such a provision CITES implementing responsibilities. regulations and also provided comments would undermine our enforcement Thirty-five commenters, representing on specific sections of the 2006 efforts and our obligations under CITES. individual State natural resource proposed rule (71 FR 20167). We have We treat specimens traded contrary to agencies, State natural resource agency addressed comments specific to a CITES the same as other forms of organizations, and trapper particular section in the appropriate illegally acquired goods. A specimen organizations, supported not requiring section of this preamble. One State that has been traded contrary to CITES application fees to establish a CITES agricultural agency noted that, for the becomes contraband at the time it enters export program. One commenter aquaculture industry in that State, our opposed our decision not to charge a fee the jurisdiction of the United States. changes will help simplify and clarify to government agencies seeking the documentation process for dealing One commenter argued that the approval of a CITES export program. It with CITES species. regulations should allow for electronic is our longstanding policy not to charge One commenter expressed general submission of CITES information and a fee to Federal, tribal, State, or local opposition to international trade in payment of permitting fees. We governments. Another commenter stated wildlife. We appreciate the comment, recognize the need to keep pace with that fees should be raised to reflect the but we will not address it here as it is technology and are actively pursuing an actual value of the wildlife specimen in outside the scope of this rulemaking. electronic interface in partnership with trade and that no applicant should be Another commenter suggested other Federal agencies to streamline exempt from paying an application fee. changes to specific clearance procedures CITES procedures for the trade Thirteen trapper organizations did not at a port of entry. Those comments were community. We are also working on an agree that small-scale trappers should be outside the scope of this rule, and we electronic permitting system that would charged permit application fees. In encourage the commenter to provide allow submission of applications for addition, one commenter argued that input when the FWS proposes changes CITES documents and applicable fees. publicly supported, nonprofit to 50 CFR part 14, which includes the Nothing in these regulations would conservation organizations should be specific clearance procedures pertaining prevent us from allowing electronic exempt from any application fees. The to the import, export, and transport of submission when we have the FWS fee structure is based on the nature wildlife. technology in place. of the activities being permitted, as well One commenter asked that we Section-by-Section Analysis as the level of complexity and the time establish a ‘‘compliance service’’ where required to process applications and individuals could receive assistance in The following parts of the preamble maintain active permit files. For further filling out and filing the required forms explain the final rule, discuss the discussion of our application fees see 70 and documents. The commenter noted substantive issues of sections for which FR 18311, April 11, 2005. that the IRS provides such a service and we received comments, outline U.S. address for permit applicants (§ that we should do the same. We believe significant changes from the 2006 13.12): This section requires an that such assistance already exists on proposed rule (71 FR 20167), and applicant to provide an address within our website, where we provide provide responses to public comments. the United States when applying for a information to guide applicants through What Are the Changes to 50 CFR Parts permit. In a number of situations, a the required agency permits, answer 10, 13, and 17? business or an individual in a foreign frequently asked questions, and direct country may request a CITES document them to the relevant offices for specific Definitions (§ 10.12): We provide a from us for a shipment the entity owns information. In addition, applicants can definition of the United States to but is shipping out of the United States. request information and permit correctly reflect areas under U.S. We cannot issue the CITES document application forms from the U.S. jurisdiction. One commenter suggested showing the exporter’s foreign address Management Authority and wildlife that the term United States be replaced for items that are leaving the United inspection offices. See § 23.7 for contact with regulated territory because of States. Foreign visitors who are information. potential confusion due to more requesting a CITES document may One commenter argued that all common meanings of the term. United provide a temporary address, such as a applications for trade in Appendix-I and States is the term consistently used in hotel, since they do not permanently -II species should be subject to public conservation statutes administered by reside within the United States. notice and review. We disagree. Most of the FWS to define the jurisdictional For commercial activities conducted ebenthall on PRODPC61 with RULES3 the applications we receive involve scope of the statute. We believe that by applicants who reside or are located commonly traded Appendix-II species. consistency between the term used in outside of the United States, the name As outlined in this rule, the FWS has these regulations and the term used by and address of the commercial entity’s established specific procedures for Congress will reduce, not increase, agent in the United States must be making the required determinations confusion. included. We consider any transaction VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48404 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations involving a seller and a buyer, or any 13 follow the Administrative Procedure timeframe of 5 years is already codified retail or wholesale transaction that Act (5 U.S.C. 558(c)). We received one in § 13.46. However, as discussed under provides a valuable consideration in comment suggesting that all businesses § 23.34, since we must make specific exchange for the transfer of a wildlife or should be required to renew permits findings based on information provided plant specimen as a commercial before they expire. For an activity of a primarily by an applicant, it may be activity. However, we do not consider a continuing nature, when a permittee has advisable to maintain records for longer hunter who exports his or her personal made timely and sufficient application than 5 years in some cases (see sport-hunted trophy to be involved in a for renewal of a permit, the permit does discussion on § 23.34). commercial activity under this section. not expire until the agency has made a Import exemption for threatened, Two commenters agreed with these final determination on the application. Appendix-II wildlife (§ 17.8): This requirements, but one of them suggested CITES documents, however, do not section puts into regulation the that, for non-resident applicants who cover an activity of a continuing nature exemption under the ESA, section could only provide a temporary address, and are considered void upon 9(c)(2), for import of CITES Appendix- we should also require their permanent expiration. This section clarifies that a II wildlife that is also classified as address in their country of residence, as permittee may not use a CITES threatened under the ESA, when the well as a permanent U.S. address of an document once it has expired. For other taking and export meet the provisions of agent or attorney. We require a permits of a continuing nature, CITES and the import is not made in the permanent U.S. address for the however, we have retained the process course of a commercial activity. This applicant’s agent for commercial that allows the permittee to conduct ESA provision only exempts the import transactions. We do not require a foreign permitted activities during renewal if prohibitions; it does not exempt address for noncommercial transactions. the conditions outlined in 50 CFR part acquisition in foreign commerce in the However, most noncommercial 13 are met. One commenter supported course of a commercial activity. transactions carried out by non-U.S. this approach. Another commenter Therefore, we require both the residents consist of personal effects or thought we should allow an extension acquisition and import to be personally hunted trophies that are of the period of validity of CITES noncommercial because we consider being sent to the individual’s home, and documents after they have expired, any transfer of a specimen in pursuit of the applicant’s foreign address is while the renewal process is underway. gain or profit to be a commercial typically included on the application. The commenter did not believe that the activity. Thus, a person who is One commenter asked that we clarify Treaty or current resolutions support importing a specimen under this that the U.S. address does not need to our policy not to allow extensions. We provision must provide documentation be a domiciliary address or residence. disagree. Article VI of the Treaty and to the FWS at the time of import that For U.S. residents who are applying as Resolution Conf. 12.3 (Rev. CoP13) shows the specimen was not acquired in individual applicants, the address they provide specific periods of validity for foreign commerce in the course of a provide must be the physical address of most permits and certificates. In commercial activity. This exemption their residence. In some cases, however, addition, Resolution Conf. 12.3 (Rev. does not apply to species that have a for permits for personal or household CoP13) states that, once a CITES special rule in 50 CFR part 17. effects being held in the United States document has expired, the permit or Two commenters voiced their support pending issuance of a permit, the U.S. certificate is void. While the resolution for this section. Another commenter address may be a relative, the storage does not address a period of validity for argued that the exemption for certain facility, or the agent. For organizations all of the certificates discussed, for threatened species that are also listed in or companies applying for a permit, we consistency, we have established Appendix II is inconsistent with the require the company’s physical address specific periods of validity for each type ESA. As we discussed in the 2006 where the records regarding the of CITES document (see § 23.54). CITES proposed rule (71 FR 20167), Congress application are maintained. documents that have not been used may provided this exemption, and we One commenter recommended that be reissued. However, permittees must believe that this section accurately the requirements of 50 CFR 13.12 be contact us prior to the expiration date, implements it. brought into compliance with CBP’s return the unused permit, and give us One commenter suggested that we Filing Identification Number (FIN) (19 sufficient time to review the reissuance add a definition of ‘‘in the course of a CFR 24.5). We did not accept this request and issue a new permit or commercial activity.’’ As noted by the suggestion. The CBP Filing certificate. commenter, commercial activity is Identification Number is associated with Maintenance of records (§ 13.46): defined in section 3 of the ESA. account-based import activities specific Permittees are required to maintain Therefore, we do not believe it is to the importing requirements of CBP. records. However, our authority to necessary to define the full term ‘‘in the The application process carried out by inspect records is limited to areas course of a commercial activity.’’ the FWS is a transactional-based activity within the United States. Therefore, to This same commenter suggested that that requires the identification of both ensure that we are able to carry out our a purchase for scientific use, such as an companies and individuals. In addition, responsibility to inspect records when acquisition by a museum, should be we do not have access to CBP’s database necessary, § 13.46 outlines the covered by the exemption under 17.8(b) that contains the FIN data, and therefore requirement that permittees who reside and that the exemption should apply to we could not utilize the system on a or are located in the United States, as any specimen used for science as long daily basis, as would be required to well as permittees who reside or are as the collection and sale are legal in the carry out our permitting process. located outside the United States but are country of origin. We disagree. The Continuation of permitted activity conducting commercial activities within exemption under section 9(c)(2) of the during renewal (§ 13.22(c)): This the United States, maintain records in ESA applies only if the importation is ebenthall on PRODPC61 with RULES3 paragraph sets out the general permit this country. We received 31 comments not made in the course of a commercial procedures that allow continuation of in support of this change. One of these activity, regardless of who is the permitted activity after the commenters also recommended that we commercializing the specimen. Many submission of an application for establish a timeframe during which imports for scientific use are likely to renewal. The regulations in 50 CFR part permittees must maintain records. A meet the exemption, but the purchase of VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48405 a specimen for scientific use is likely to Appendix-II Nile crocodiles (C. One commenter argued that we qualify as commercial and thus require niloticus) to be traded without tags, and should require yacare caiman issuance of an ESA permit prior to we clarify that this includes all forms of monitoring data to be submitted importation. meat. We do not believe that annually instead of biennially and Two commenters asserted that the international trade in crocodilian meat should expand the list of the types of requirement for documentation is overly poses a significant conservation risk, but monitoring data required. We believe broad and suggested that the FWS we note that CITES documents still that the final rule to reclassify the describe the type of documentation that would be required for any meat yacare caiman (65 FR 25867, May 4, would be acceptable. Because of the shipments. The special rule prohibits 2000) adequately justifies reporting wide variety of imports that may import into the United States of live requirements for range countries of the qualify, and to provide flexibility to the specimens and viable eggs of any species. importer, we did not list what form of threatened crocodilians without an ESA documentation would be required. We import permit. What Are the Changes to Subpart A of will accept any documentation from the One commenter disagreed with our 50 CFR Part 23—Introduction? importer regarding the acquisition of the assertion that international trade in This subpart describes our specimen that shows that it was not meat of saltwater crocodiles originating responsibilities under CITES. acquired in foreign commerce in the in Australia and Appendix-II Nile Scope (§ 23.2): This section consists course of commercial activity. Such crocodiles poses no significant of a table with a series of questions and documentation may include, for conservation risk and could therefore be answers to help people determine if example: proof of a personal sport hunt, traded without tags. We note that the CITES regulations apply to their documents related to museum or crocodilian product most common in proposed activities. Decisions involve zoological exchange, inheritance international trade is skin and U.S. whether a specimen is listed under documents, or scientific collecting import data for 2002 - 2005 show no CITES, is exempt from CITES, is permits. imports of saltwater or Nile crocodile involved in a type of international trade One commenter stated that requiring meat. Therefore, we continue to believe regulated by CITES, and was illegally such documentation violates the that this type of trade does not pose a acquired or traded in contravention of exemption under section 9(c)(2) of the significant conservation threat. In CITES. ESA. We agree that the exemption addition, there is no CITES requirement The possession and domestic trade of allows a qualifying specimen to be for tagging of crocodilian meat. imported into the United States without The special rule includes reporting legal specimens are not regulated by first having obtained an ESA import requirements for range countries. In our CITES unless the specimens had been permit, but it remains the burden of the final yacare caiman (Caiman yacare) traded internationally under specific importers to show that they qualify for rule published on May 4, 2000 (65 FR conditions of a CITES document and the the exemption, including by obtaining 25867), we noted that the FWS depends conditions still apply. The possession and presenting all required CITES primarily on range countries to monitor and domestic or international trade of documentation, fulfilling all document yacare caiman. To assist us in illegally imported specimens, however, requirements under section 9(d), (e), monitoring the status of yacare caiman, are prohibited. Further, any possession and (f), and showing that the we require that the governments of of offspring of illegal specimens is also importation is not being made in the range countries wishing to export considered illegal. A specimen that has course of a commercial activity. specimens to the United States for been traded contrary to CITES becomes One commenter argued that the commercial purposes provide a report contraband at the time it enters the exemption should only apply when the every 2 years that includes the most jurisdiction of the United States. If such importer can prove that both the recent information available on the a specimen makes its way into the acquisition of the specimen and the status of the species. This information United States, the individual or importation are noncommercial. We assists us in determining the current business holding or having control of agree, and we require the importer to conservation status of the species and is the specimen has no custodial or meet both criteria in § 17.8(b)(1). In § used to determine if the species is property rights to the specimen and, 17.8(b)(5), we specifically require recovering and may warrant delisting. therefore, no right to possess, transfer, documentation showing that the We also have a section describing breed, or propagate such specimens. specimen was not acquired in foreign conditions under which trade Further, we clarify that intrastate or commerce in the course of a commercial restrictions can be applied to the import interstate movement of specimens activity. Importers of any wildlife of yacare caiman from range countries, traded contrary to CITES involves specimens, whether CITES specimens or including the failure to submit the possession of unlawfully traded not, must show the purpose of import reports or failure to respond to requests specimens and is, therefore, prohibited. under general government importation for additional information. We note that these prohibitions are not requirements. We are able to determine Three commenters supported new with this final rule. The regulatory from this documentation whether the amendments to the special rule requirements for CITES specimens, import is in the course of a commercial regarding reporting requirements for including possession, have been in activity. However, documentation range countries of the yacare caiman in place since 1977, and the statutory showing the specimen was not acquired § 17.42(c). They urged us to include prohibition has been in effect since July in foreign commerce does not typically similar reporting requirements if 1975. accompany a shipment. Therefore, we additional crocodilian species are More than 25 State fish and wildlife specifically require that such reclassified as threatened under the ESA resource management agencies and documentation be provided to us. and are included in the special rule. We regional fish and wildlife agency ebenthall on PRODPC61 with RULES3 Special rule for threatened will consider monitoring and reporting associations endorsed our inclusion of a crocodilians (§ 17.42(c)): In accordance requirements for other crocodilians on a series of questions to assist the regulated with this special rule, we allow meat of case-by-case basis, because the community in determining when CITES saltwater crocodiles (Crocodylus conservation needs may vary by species applies to a proposed activity and our porosus) originating in Australia and of or population. clarification regarding intrastate and VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48406 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations interstate movement of specimens 1535(f); Man Hing Ivory & Imports, Inc. commercial purposes. In Resolution traded contrary to CITES. v. Deukmejian, 702 F.2d 760 (9th Cir. Conf. 12.10 (Rev. CoP13), the Parties One commenter expressed support for 1983). One commenter disagreed with agreed to strict definitions for these two the provision making the possession of this assertion and stated that it is terms. Facilities that are breeding for and trade in illegally acquired contrary to the standard rules regarding commercial purposes must be registered specimens and their offspring illegal the relationship between State and to export specimens. Facilities that are and encouraged us to specify that Federal laws. Our statement reflects the breeding for noncommercial purposes requirement in more detail in the decision of the United States Court of must be participating in a cooperative regulation. However, another Appeals for the Ninth Circuit in the conservation program with one or more commenter expressed concern regarding referenced case, which held that section of the range countries for the species. our position on the possession of and 6(f) of the ESA, together with an FWS One commenter sought clarification trade in offspring of illegally imported regulation on African elephants on whether an Appendix-I animal bred specimens. The commenter also was (Loxodonta africana), preempted a State and raised on a U.S. game ranch, where concerned about the possible harm to prohibition on trade in African elephant efforts are being made to conserve the offspring caused by shipping them back products by a trader who had secured species, would constitute a specimen to the country of origin. We continue to all necessary Federal permits. bred for commercial purposes. If the maintain that any possession of Definitions (§ 23.5): Whenever game ranch was conducting activities offspring of illegal specimens is possible we define terms using the that would categorize the facility as considered illegal, and we will take wording of the Treaty and the commercial (e.g., sale, purchase, or appropriate action when we become resolutions. Most defined terms are exchange of animals resulting in an aware of such situations. However, we included in this section, but some less economic gain), then the animals bred consider the health and well being of a frequently used terms are defined in the on the ranch would be considered bred live specimen that has been confiscated section in which they are used. for commercial purposes. This would or forfeited to us in determining Definition of ‘‘applicant’’: Although apply even if the game ranch were whether to place it in a facility in the one commenter believed that we should carrying out activities that benefited the United States or return it to the country define the term applicant here to be species within its natural range, such as of origin. only a person who owns the participation in a cooperative Other applicable regulations (§ 23.3): specimen(s) subject to trade, we have conservation program. In this section we reference applicable not defined applicant in this part One commenter did not understand regulations in other parts of subchapter because the general permit regulations how any facility breeding Appendix-I B and title 50, since many CITES in 50 CFR 13.1 provide sufficient species could engage in noncommercial species are covered by one or more guidance. An applicant must have a breeding activities. The commenter other laws. We also notify the public valid connection to the transaction and believed that, due to the difficulty of about the possible application of State, be the person who is responsible for distinguishing between commercial tribal, and local regulations. More than meeting the terms and conditions of the breeding and noncommercial breeding, 25 State fish and wildlife resource permit. When a broker, attorney, the FWS should combine the two management agencies and regional fish taxidermist, or other person applies for activities under a single bred-in- and wildlife agency associations a permit on behalf of the owner of the captivity definition and require that all endorsed the addition of a new specimen, he or she must establish a facilities breeding Appendix-I or -II paragraph notifying the regulated connection to the transaction through a species become registered. We disagree. community of the additional contract or power of attorney and, along Since the Treaty does not prohibit or requirement for complying with State, with the person represented, becomes control the commercial breeding of tribal, and local requirements when the party responsible for meeting the Appendix-II species, there is no reason engaging in activities with CITES terms and conditions of the permit. to establish a registration process for species. Definitions of ‘‘bred for commercial facilities breeding Appendix-II species. Under Article XIV(1)(a) of the Treaty, purposes’’ and ‘‘bred for noncommercial We are confident that the application each Party retains the right to adopt purposes’’: We defined these two terms review process established for the stricter national measures that regulate as they relate to the export and re-export export of Appendix-II specimens is or prohibit the import, export, taking, of Appendix-I wildlife specimens. adequate to provide the necessary possession, or transport of CITES These definitions are the result of in- oversight and control of commercial species. More restrictive State or local depth discussions by the Parties over breeding facilities for Appendix-II laws that regulate or prohibit the the registration of commercial breeding species. For Appendix-I species, the import, export, or re-export of such facilities, which resulted in the Treaty makes a distinction between species, or their parts, products, or adoption of Resolution Conf. 12.10 (Rev. commercial and noncommercial derivatives, must be observed for CITES CoP13). The Treaty provides in Article breeding, and the Parties have enacted species that are not listed under the VII(4) that specimens of Appendix-I resolutions to implement this ESA. See H.J. Justin & Sons, Inc. v. species bred in captivity for commercial distinction. Consequently, these Deukmejian, 702 F.2d 758 (9th Cir. purposes shall be deemed to be regulations outline the criteria for 1983), cert denied, 464 U.S. 823. specimens of species included in determining when a breeding activity is However, in instances where a CITES Appendix II (see § 23.46). It also commercial versus noncommercial, and species is also listed as endangered or provides in Article VII(5) that provide a mechanism to register threatened under the ESA, any State or specimens that are bred in captivity may commercial breeding operations with local law that would effectively prohibit be issued an exemption certificate (see the Secretariat. To eliminate any the import or export of, or interstate or § 23.41). Although the Treaty does not confusion and underscore the ebenthall on PRODPC61 with RULES3 foreign commerce in, specimens of such use the term ‘‘bred for noncommercial distinction between commercial and species is void to the extent that such purposes’’ in paragraph 5, the Parties noncommercial breeding, we have trade is authorized under the ESA, its have agreed to use this term as the added a sentence to the definition of implementing regulations, or any ESA intended meaning of Article VII(5) ‘‘bred for commercial purposes’’ to permit or exemption. See 16 U.S.C. because Article VII(4) addresses bred for clarify that any captive-bred Appendix- VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48407 I specimen that does not meet the from the trade. The definitions of consensus on a definition. At CoP12, the definition of ‘‘bred for noncommercial commercial and noncommercial in this Parties agreed to look at marine issues, purposes’’ is considered to be bred for part are used to distinguish trade and including introduction from the sea, in commercial purposes. For the same uses of specimens for which commercial consultation with the Food and reason, we have made a minor uses must be limited from those for Agriculture Organization of the United amendment to the definition of ‘‘bred which commercial uses are not limited. Nations (FAO). In May and June of for noncommercial purposes’’ to make it The FWS cannot fulfill its treaty 2004, FAO convened two Expert clear that to qualify as noncommercial responsibilities unless it examines all Consultations to consider introduction each donation, exchange, or loan of the ways in which a specimen can be from the sea and other issues related to specimen must be noncommercial. commercialized. marine species covered by CITES. At Definition of ‘‘commercial’’: Three One commenter argued that including CoP13, the Parties agreed to convene a commenters argued that the definition a donation that is used as a tax workshop on introduction from the sea, of commercial is too broad and that it deduction as commercial in essence taking into account the work done is inconsistent with the definition of amends the Internal Revenue Code and through FAO and the relevant commercial activity in the ESA, which asserted that whether something is documents and discussions from implements the Convention. We eligible for a tax deduction is not a previous CoPs. The workshop was held disagree. The new regulatory definition matter for the FWS to decide. We are in November – December 2005. The is consistent with the term defined in not interpreting or amending the CITES Secretariat has prepared a the ESA. The Convention regulates trade Internal Revenue Code. We are not document on introduction from the sea, in listed species, and commercial describing what may or may not be based on discussions at the workshop, activity under the ESA relates to ‘‘all eligible as a charitable contribution, but for consideration by the Parties at activities of industry and trade, rather, we are fulfilling our CoP14, to be held in June 2007. We including, but not limited to, the buying responsibility not to authorize uses of recognize that the Parties may decide on or selling of commodities and activities certain CITES specimens that are an interpretation of introduction from conducted for the purpose of facilitating primarily commercial in nature. the sea in the future, but in the such buying and selling.’’ The definition Although we believe that in some cases meantime the regulations clarify when of commercial in § 23.5 is also a tax deduction may qualify as an the prohibition applies, and when and consistent with CITES Resolution Conf. economic gain or benefit, we have what types of CITES documents are 5.10, which explains that an activity removed the phrase, ‘‘or tax benefits’’ needed for international trade. should be considered commercial if its from this definition, to eliminate One commenter suggested that we purpose is to obtain an economic confusion. See also our responses to adopt the definition of ‘‘the marine benefit, including profit, and is directed comments received on § 23.55. environment not under the jurisdiction toward resale, exchange, provision of a One commenter also challenged that of any State’’ agreed by the 2005 service, or other form of economic use part of the definition that applies to the workshop. This definition, although or benefit. The definition is also intended, as well as the actual, use of agreed by the workshop, is still under consistent with the use of the term in the specimen. Determinations under discussion in CITES and will be Resolution Conf. 12.10. All CITES CITES cannot be limited to the current, considered by the Parties at CoP14. We resolutions that address immediate action being taken with the believe it is likely that changes will be commercializing a specimen focus on specimen, but may also require made to the definition at the CoP and use of the specimen in a manner that consideration of subsequent actions that that it would be premature for us to results in economic benefit. the person intends to take at the time of adopt a definition before it has been A number of commenters provided the determination. For example, a accepted by the Parties. specific examples of transactions that person may be personally importing a Definition of ‘‘parental stock’’: Based they thought should qualify as specimen in a manner that at first on the language in Resolution Conf. 9.19 noncommercial, such as purchase of a appears to be noncommercial, but if (Rev. CoP13) on nursery registration and specimen for scientific purposes at a there is evidence to show that the Resolution Conf. 12.10 (Rev. CoP13) on yard sale or estate sale; purchase from person intends to sell the specimen and registration of operations that breed a person who is not a collector; or sale obtain a profit once the specimen is Appendix-I wildlife for commercial by a museum. Determination of whether located within the United States,then purposes, we use the term ‘‘parental a specific use qualifies as commercial or the purpose is commercial. The stock’’ to mean the original breeding or noncommercial must be made on a case- definition is written to make clear that propagating specimens that produced by-case basis taking into consideration the FWS looks at all actions that the subsequent generations of captive or all of the facts and circumstances. person intends to take involving the cultivated specimens. Two commenters However, we note that, consistent with specimen, not simply the current, most supported our definition. Resolution Conf. 5.10, the determination immediate action. Definition of ‘‘precautionary is focused on the use of the specimen, Definitions of ‘‘household effects’’ measures’’: When there is uncertainty not the nature of the transaction. Trade and ‘‘personal effects’’: One commenter regarding the status of a species or the may involve the exchange of some funds supported our definitions of household impact of trade on the conservation of to compensate a party for costs such as effect and personal effect to mean only a species we are cautious and act in the care and maintenance of a specimen, dead wildlife or plant specimens. best interest of the conservation of the storage costs, or taxidermy work, which Definition of ‘‘introduction from the species in making decisions on CITES themselves do not necessarily make the sea’’: We define this term with the listings and permit findings. We define trade commercial. language in Article I(e) of the Treaty. and use the term ‘‘precautionary One commenter argued that for trade Over the last few years, a number of measures’’ to describe this approach. ebenthall on PRODPC61 with RULES3 to be commercial, both parties must important events have occurred related While the definition is taken from the have commercial interests. We disagree. to introduction from the sea. At CoP11 concept described in Annex 4 of Economic enrichment can result when and CoP13, the Parties considered Resolution Conf. 9.24 (Rev. CoP13), we just the importer or just the exporter is proposed resolutions on introduction use it in these regulations because it obtaining an economic gain or benefit from the sea and were unable to reach describes the way we have always VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48408 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations approached non-detriment findings and (Rev. CoP13), which provides for review one Scientific Authority. In the United species listing decisions when there is of significantly traded species, to ensure States, the Secretary of the Interior is uncertainty regarding the status of a that countries exporting those species designated as the CITES Management species or the impact of trade on the have made the appropriate findings and Authority and Scientific Authority, and conservation of a species. The use of the export levels are sustainable. these authorities have been delegated by precautionary measures in these Countries with species subject to this the Secretary and the Director of the instances is consistent with the intent of review must demonstrate the scientific FWS to different offices within the the Treaty, which is to protect species basis for the quantity of exports they are FWS. This section summarizes the against over-exploitation. Several allowing. (See preamble discussion on major roles of these authorities in the commenters supported our definition of non-detriment findings (§ 23.61)). Three United States. The roles include a wide precautionary measures. One asked that commenters supported our definition of range of activities, such as the issuance we provide additional clarification on sustainable use. and denial of permits; making scientific what information we will use to One commenter believed that it was and management findings; monitoring determine whether or not to issue a unnecessary for us to state in the of trade and trade impacts; permit. Section 23.33 addresses the preamble to the 2006 proposed rule (71 communication with the Secretariat and process we use when evaluating an FR 20167) that sustainable use can other countries on scientific, application. In addition, §§ 23.60, 23.61, include adaptive management but that, administrative, and enforcement issues; and 23.62 address the processes for ‘‘adaptive management does not...imply and evaluation of species’ status and making the required findings under that when there are gaps in information trade. Another role is to provide training CITES. We direct the commenters to the assumption would be that trade and technical assistance to countries those sections for more detailed would be sustainable.’’ Our intent is not when possible (Resolution Conf. 3.4). discussion on how we implement the to minimize the value of adaptive Although other Federal agencies, as part use of precautionary measures. management. However, adaptive of a larger federal involvement in Definition of ‘‘ranching’’: We have not management is not the only information international affairs, also play a role in defined this term. At CoP13, the considered when determining if trade CITES efforts, for example in Animals and Plants Committees would be sustainable. When making communicating with the Secretariat and (committees established by the Parties non-detriment findings, we will representing the United States at CITES to provide technical support to the consider all relevant biological and meetings, they are not part of the Parties and to the Secretariat) were trade information (see § 23.61). Management Authority or the Scientific tasked with looking at production One commenter agreed with us that Authority for the United States. systems, including the consideration of sustainable use is the essence of a CITES A number of State fish and wildlife source codes, which include ‘‘R’’ for non-detriment finding. However, the resource management agencies noted ranching. This work is still ongoing. commenter noted that not all permit that the inclusion of this section One commenter suggested that we applications are for activities that have summarizing the major roles of the develop a working definition of an impact on wild populations. We Management and Scientific Authorities ranching until the Parties come to an agree and take this into consideration was very useful to the regulated agreed definition. We believe that it when making non-detriment findings. community. Additionally, some of these would be premature, and result in Even if a specimen is considered captive commenters remarked on the need to additional confusion, to adopt a bred under the Treaty, certain clarify the process by which a non-Party definition before the production systems conditions must be met, including that designates competent authorities to discussions are concluded. the founder stock was acquired legally fulfill the role of a Management and Definition of ‘‘readily recognizable’’: and in a manner non-detrimental to the Scientific Authority to engage in We base our definition of readily survival of the species (see §§ 23.46, international trade in CITES species. We recognizable on Resolution Conf. 9.6 23.63). decline to make a change in response to (Rev.). Two commenters supported our One commenter stated that certain this comment because this section is definition. phrases in our definition could be intended to outline the roles of a Definition of ‘‘sustainable use’’: We interpreted in multiple ways, and asked Management Authority and a Scientific define this term as the use of a species us to provide additional discussion of Authority rather than outline the in a manner and at a level that several phrases, including ‘‘biologically process by which they are designated. maintains wild populations at viable,’’ ‘‘long term,’’ and ‘‘role or Contact information (§ 23.7): The biologically viable levels for the long function in its ecosystem.’’ We do not table in this section outlines the type of term. It is essentially the same believe that these phrases require information available from the U.S. definition used in 50 CFR part 15 to additional clarification because they are Management Authority, U.S. Scientific implement the WBCA. The wording has concepts that are inherent to Authority, the FWS Office of Law been slightly edited to be consistent conservation and wildlife management. Enforcement, APHIS, CBP, and the with language used in these regulations. Furthermore, they are not defined in the Secretariat, and the different ways you We believe that sustainable use is the Treaty or in resolutions agreed by the can contact each office. APHIS is the essence of a CITES non-detriment Parties. We use these concepts for contact office for information on plant finding, and these regulations provide a guidance in making non-detriment clearance procedures even though the clear, scientifically based definition of findings. formation of CBP split CITES the term. An exporting country can Definition of ‘‘traveling exhibition’’: responsibilities for import and export of make a finding of non-detriment only if We revised the definition of traveling plants. CBP inspects and clears it can show that a given level of harvest exhibition for clarity, in response to shipments of dead CITES plant is consistent with the long-term viability comments received (see preamble materials being imported into the ebenthall on PRODPC61 with RULES3 of the species. This finding must be discussion for § 23.49). United States and live plants being based on professionally recognized Management and Scientific imported from Canada at a designated management practices and the best Authorities (§ 23.6): Under Article IX of border port. CBP also identifies and available biological information. The the Treaty, each Party must designate at regulates CITES materials in passenger Parties adopted Resolution Conf. 12.8 least one Management Authority and baggage, including live plants. APHIS VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48409 continues to inspect and clear Prohibitions (§ 23.13): This section One commenter was concerned with shipments for the export and re-export implements the international trade our response in the 2006 proposed rule of live and dead plants, and the import prohibitions under CITES. We list (71 FR 20167) to a previous comment of live plants, except for live plants introduction from the sea separately that an applicant’s failure to provide being imported from Canada at a from import to clarify that CITES treats adequate documentation showing designated border port. these activities differently. We include legality of a specimen, while not One commenter noted the absence in the phrase ‘‘engage in international necessarily evidence that the specimen this section of the contact information trade’’ in the list of prohibitions to was traded contrary to CITES, might for the appropriate office in the U.S. clarify that international trade in prevent us from making the required Department of Agriculture for live specimens in violation of these findings or being able to issue the animal clearance procedures. Another regulations by any person subject to necessary CITES documents for commenter suggested that we include U.S. jurisdiction is prohibited even if subsequent import, export, or re-export. contact information in this section for specimens are not actually imported The commenter suggested that the FWS APHIS Veterinary Services, National into or exported from the United States. establish procedures or describe the Center for Import and Export (NCIE), The regulatory language is derived kinds of evidence we will accept in lieu and the Centers for Disease Control from the language in section 9(c)(1) of of positive documentation. (CDC) because imports of live wildlife the ESA, which makes it unlawful for We have not specified the type of and wildlife products may also be any person subject to the jurisdiction of documentation that an applicant must regulated by these offices. The the United States to engage in trade present in order for us to make commenter pointed out that this contrary to the provisions of CITES. The necessary findings and issue the information would be useful to the large ESA does not limit this prohibition to required documents because it is not number of pet bird owners who travel import into or export from the United possible to describe the full variety of into and out of the United States with States, but further requires U.S. citizens, information that could be used to show their pet birds. Since neither NCIE nor and others subject to U.S. jurisdiction, that a proposed activity is consistent the CDC has direct responsibility for the engaging in trade outside of the United with CITES requirements. In each case, inspection or clearance of shipments of States to abide by CITES requirements the applicant must present enough live CITES specimens, we have declined as a matter of U.S. law. Although this information to allow the FWS to make to include their contact information in activity may be difficult to detect, we the required determination, but the will take enforcement action when source of this information and the level this section. appropriate. of detail needed to make the finding Information collection (§ 23.8): Each Three commenters expressed their will vary. See § 23.34 for more detail. information collection, including each support for the clarification in § 23.13 Personal and household effects (§ application form, that we use must be that trade in violation of the regulations 23.15): Article VII(3) of the Treaty reviewed and approved by the Office of by a person subject to U.S. jurisdiction provides for the import, export, or re- Management and Budget under the is prohibited even if the specimen is not export of specimens that are personal or Paperwork Reduction Act (44 U.S.C. imported into or exported from the household effects without CITES 3501 et seq.). These information United States. They noted that this will documents under certain circumstances. collections undergo review every 3 ensure that actions by U.S. citizens do We clarified the current regulations (§ years. This process gives the public an not undermine the purposes of CITES 23.13(d)) based on our experience in opportunity to provide input concerning outside the United States. One administering the Convention and the amount of time it takes to complete commenter opposed this part of the Resolution Conf. 13.7. This section the forms and reports and to prepare the section, stating that it was contrary to details the circumstances under which a information requested. One commenter elemental principles of national person may travel with personal items mistakenly thought that our estimate for jurisdiction to hold a U.S. citizen legally of CITES wildlife and plants worn as the amount of time it takes to complete responsible for conducting an activity clothing or accessories, or contained in an application was an estimate of the outside the United States that is a accompanying luggage without CITES length of time it takes to obtain a permit. violation of U.S. law when the activity documents. It also details how a person What Are the Changes to Subpart B of is consistent with the law of the foreign may move personal items of CITES 50 CFR Part 23—Prohibitions, country. wildlife and plants from one country to Exemptions, and Requirements? As long as a U.S. citizen engages in another as part of a change of residence. trade in a CITES specimen outside the We defined personal effect and In this subpart, we detail the activities United States consistent with all the household effect in § 23.5. We clarified that are prohibited, circumstances when requirements of CITES and the foreign that we consider qualifying tourist exemptions may apply, and countries’ domestic laws implementing souvenirs to be personal effects. requirements for international CITES, it would not be a violation of Six commenters supported, in movement of specimens. CITES uses a U.S. law. Section 9 of the ESA makes general, the clarification regarding system of documents to ensure that clear that citizens of the United States personal and household effects, and trade in protected species is legal and have a responsibility to comply with all several of those commenters supported does not threaten the survival of applicable CITES procedures when they specific provisions regarding Appendix- wildlife or plant species in the wild. engage in trade in CITES specimens I and live specimens. They believed the The Treaty outlines standardized outside the United States. Given that clarification would help prevent abuses information that must be included on 171 countries are parties to CITES, a of the personal and household effects these documents, and based on U.S. citizen trading a CITES specimen exemption. Three commenters, experience in inspecting shipments and between two foreign countries is likely however, urged us to ease restrictions ebenthall on PRODPC61 with RULES3 enforcing CITES, the Parties have to need CITES documentation from one on individuals traveling with legally adopted a number of resolutions to or both of those countries. Failure to acquired CITES species. Although the refine the types of information that need obtain and present the required CITES commenters did not provide specific to be included on documents for Parties documentation would be a violation of suggestions, we note that these and non-Parties. the ESA. regulations already provide an VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48410 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations exemption from CITES documentation required by a country under its stricter exclusively noncommercial purposes, for many individuals traveling with national measures. Both ofthese the quantity and nature be reasonably legally acquired CITES specimens. restrictions are imposed upon appropriate for the purpose of the trip Another commenter believed that the shipments because of our obligations or stay, and either be worn as clothing trade in specimens under the exemption under the Lacey Act Amendments of or accessories or be part of for personal and household effects 1981 to provide support for other accompanying personal baggage. We creates a loophole that may adversely countries’ stricter measures, and actions believe this requirement provides impact imperiled species. We disagree may be taken based upon information additional assistance to inspectors at the that this exemption has an adverse received from those countries about port when determining whether items effect on listed taxa. As noted above, such restrictions. are personal effects or are commercial Article VII(3) provides for this For certain species, the Parties also items that a person is attempting to exemption under certain circumstances, agreed to numerical limits of specific import without CITES documents under and the Parties have adopted additional types of specimens that qualify as the exemption. guidelines through resolution. personal and household effects. These We have encountered a number of In Resolution Conf. 13.7, the Parties specimens include sturgeon caviar, instances, both in the United States as agreed not to require CITES documents seahorses, crocodilian products, giant well as abroad, when individuals have for personal or household effects of clam and queen conch shells, and had souvenirs or other items seized dead specimens, parts, products, or cactus rainsticks. We note that if when these items were mailed or derivatives of Appendix-II species someone wants to import, export, or re- shipped to them. Although these could unless a Party requires a CITES export more than the quantity be considered items for personal use, document. Parties are to notify the designated in the regulations, the the CITES exemption does not apply Secretariat if they require CITES specimens no longer qualify for the unless the specimens accompany the documents for personal and household personal effects exemption, and they individuals. effects, and the Secretariat will maintain must be accompanied by a valid CITES We clarify that household effects must a list on the CITES website (see § 23.7). document for the entire quantity. be personally owned items that are part Importing countries would generally One commenter supported our efforts of a noncommercial household move. A assume that an export permit is not to enforce the quantity limitations and shipment may contain only items required if the exporting country had agreed that when the quantities exceed acquired before the individual moves. It not notified the Secretariat otherwise. the limit, a CITES document is required may not include items purchased, For species covered by the Lacey Act for the entire quantity. inherited, or otherwise acquired after Amendments of 1981, however, the We exclude live wildlife and plants the person has moved, even though the United States requires an export permit (including eggs and non-exempt seeds) household goods have not yet been if such a permit is required by the other and most Appendix-I specimens from shipped. Party involved in the trade, even if the the exemption. The drafting history of We understand that sometimes it is Party had not notified the Secretariat of CITES, as well as significant debate that not possible to ship household goods all the requirement. It is the responsibility occurred at CoP4, clearly supports the at one time. Thus, we allow a person to of the importer to consult with the view that this exemption applies only to make as many shipments as needed to exporting country to determine whether dead items, such as clothing or jewelry, accomplish the move as long as they an export permit is needed in such that are for personal use and are not for occur within 1 year of the person’s instances. One commenter believed the resale. In addition, few countries allow change in residence. A person is not United States should impose stricter the import or export of Appendix-I precluded from shipping his or her measures and require CITES documents specimens, including personal pets, household effects after 1 year, although for all personal and household effects. without CITES documents. In the such a shipment would require the Such a requirement would be United States, many Appendix-I species appropriate CITES documents. burdensome and provide little are also listed under the ESA and other Two commenters believed that conservation value in most cases. laws that do not provide an exemption allowing 1 year after a move from one Therefore, we declined to make a for personal or household effects. country to another to import or export change based on this suggestion. Therefore, to assist in the enforcement household effects was too long, and However, these regulations allow for of the Convention and to reduce the risk allowed for potential abuse of the stricter measures under other U.S. laws to Appendix-I species in the wild, and system. Based upon years of experience (e.g., the ESA) for those species that so not to create conflicts with U.S. laws, with CITES household moves, which warrant greater scrutiny. We believe this we require CITES documents for all have previously had no timeframe will allow for greater oversight when Appendix-I specimens, except for under U.S. regulations, we believe the there appears to be a conservation value certain worked items made from African 1–year timeframe is reasonably in doing so. elephant ivory (see § 23.15(f)). One appropriate for completing the shipment One commenter requested that we commenter requested clarification as to of household goods to a new residence provide clarification regarding the whether Appendix-I species could while preventing abuse of the restrictions imposed by the Lacey Act qualify for the personal or household exemption. Amendments of 1981 and notify other effects exemption, and if so, indicated The AECA and ESA include stricter CITES Parties of this requirement. The that they should only be pre- U.S. legislation concerning international commenter also argued that the Lacey Convention. Section 23.15(d)(2) states trade in African elephant ivory. We Act covered all foreign CITES species. that no specimens from an Appendix-I allow U.S. residents to travel out of and We state in § 23.15(b) that the personal species are included except for certain return to the United States with pre- and household effects exemption does worked African elephant ivory. Section Convention worked African elephant ebenthall on PRODPC61 with RULES3 not apply if the country prohibits or 23.15(f) on worked African elephant ivory as personal or household effects restricts the import, export, or re-export ivory states that the ivory must be pre- under certain conditions, including that of the item. In addition, we state that a Convention. the items are registered. Registration personal or household effects shipment We clarify that personal effects must consists of obtaining a U.S. CITES pre- must be accompanied by any document be personally owned by the traveler for Convention certificate, FWS Wildlife VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48411 Declaration (Form 3-177), or CBP feces posed no harm to listed species. Nations that they are not exempt from Certificate of Registration for Personal Two commenters expressed concern the provisions of the Convention. In Effects Taken Abroad (Form 4457). This about the exemption because of the these regulations we remind all persons exemption is limited to ivory already potential need to capture and restrain who receive duty-free or inspection owned in the United States and is not listed species to collect samples. We exemption privileges that CITES a special opportunity for trade. Upon re- have exempted urine and feces from specimens traded internationally must import, travelers must show records that CITES requirements and will therefore meet the requirements of CITES and the ivory is pre-Convention and that not require a statement on collection these regulations. One commenter they registered it before leaving the method. However, as noted in the 2006 strongly supported the requirement for United States. The exemption does not proposed rule (71 FR 20167), we believe CITES documentation even if a person include items that are purchased while that it is important that researchers receives duty-free or inspection waiver abroad or intended as gifts. We adopted collect samples in a manner that does privileges. The commenter further the same definition of raw ivory as not harm the wildlife and complies with emphasized that U.S. officials have the found in the special rule concerning the laws of the country where the legal authority to confiscate specimens African elephants in 50 CFR 17.40(e), collection occurs. Researchers should of CITES species if a diplomat attempts which is similar to the definition found contact the foreign Management to import or export them, or transit in Resolution Conf. 10.10 (Rev. CoP12). Authority or other relevant wildlife through the United States with them, Individuals should contact the authorities to obtain information on without appropriate documentation. Management Authority in the country of collection and export requirements prior Required CITES documents (§§ 23.18– their destination to find out about its to collection of urine or feces. Another 23.20): Articles III, IV, and V of the requirements for African elephant ivory. commenter endorsed the exemption and Treaty outline the types of documents One commenter did not support this described non-CITES restrictions placed that must accompany Appendix-I, -II, or exemption because of concerns on U.S. researchers regarding collection -III specimens in international trade. regarding the illegal trade in ivory. The of these samples. The commenter added Article VII and Article XIV of the Treaty commenter believed the exemption sets that such research oversight is also recognize exemptions for certain a bad precedent and should be deleted. prevalent in other countries, often specimens, such as those that qualify as We believe that the measures we have through legislation. pre-Convention, bred in captivity, or put in place, including registration of One commenter said that the United artificially propagated. Generally, these personally owned pre-Convention States should resist promulgating specimens must be accompanied by worked African elephant ivory before regulations that are more lenient than CITES exemption documents. The leaving the United States, provide those agreed to by the Parties and noted regulations remind people who trade in sufficient safeguards. that there is no resolution that provides wildlife and plants to check with the Urine, feces, and synthetically derived for this exemption. In the 2006 Management Authorities of all countries DNA (§ 23.16): International trade in proposed rule (71 FR 20167), we noted concerned to determine their these specimens is exempt from CITES that the Parties have not agreed on requirements before importing, requirements under certain whether urine, feces, or synthetically introducing from the sea, exporting, or circumstances. We consider samples of derived DNA are regulated by CITES. re-exporting CITES specimens. urine and feces to be wildlife Where there is a lack of clarity or no We organized the information on byproducts, rather than parts, products, agreement, the United States is left to what types of CITES documents are or derivatives. We differentiate between make its own interpretation of the required into two decision trees and two DNA extracted directly from blood or provisions of the Treaty. In our view, tables. The decision trees and tables tissue samples and synthetically derived these are byproducts and are not should make it easier for importers and DNA. DNA extracted directly from recognizable parts or derivatives as exporters to understand what type of blood and tissue samples must comply defined in Article I of the Treaty. The document is needed for a shipment. with all CITES permitting requirements. commenter was also concerned that this They refer the user to the section in the We do not believe that trade in urine, exemption could lead to illegal trade in regulations that explains the application feces, and synthetically derived DNA non-synthetic DNA labeled as procedures, general provisions, issuance samples will adversely affect the synthetically derived DNA. We note that and acceptance criteria, and conditions conservation of, or effective regulation this exemption reflects a practice of the for each type of document. One of trade in, CITES species and their FWS that has been in effect since 1994. commenter agreed with this approach parts, products, or derivatives. We have received no information to and stated that the decision trees and At CoP12 and CoP13, there were indicate that this practice has led to an tables in these sections were extremely proposals to annotate the Appendices to increase in illegal trade in falsely useful. exempt these types of samples. The declared DNA, nor do we expect this to One commenter supported the proposals were withdrawn. It should be occur in the future. statement in § 23.20(f) that an noted, however, that some Parties do One commenter asked whether introduction-from-the-sea certificate not agree that these specimens should ambergris was covered under the must be obtained before conducting the be exempt from CITES controls. If a provisions of either CITES or the proposed activity and the clarification country requires CITES documents, we MMPA. Because it is a byproduct, we do that international trade following will process an application for these not consider ambergris to be covered by introduction from the sea is considered specimens. CITES provisions. The applicability of an export, not a re-export. Three commenters generally MMPA provisions to trade in ambergris Another commenter expressed supported and two commenters is outside the scope of this rule. concern that the document requirements generally opposed the exemption for Diplomats and other customs-exempt for Appendix-III specimens that ebenthall on PRODPC61 with RULES3 urine, feces, and synthetically derived persons (§ 23.17): CITES Decision 9.15 originate in a country other than the DNA in § 23.16. One commenter agreed urges the Parties to remind their listing country are not clear. We have that urine and feces should be exempt, diplomatic missions, their delegates in addressed this comment under the but wanted to see a statement to ensure foreign countries, and their troops preamble discussion pertaining to that collection methods for urine or serving under the flag of the United certificates of origin (§ 23.38). VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48412 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations Export of Appendix-I wildlife (§ Reservations (§ 23.21): Articles XV, regard to the species, the United States 23.18): The decision tree clarifies that XVI, and XXIII of the Treaty allow a would continue to require CITES international trade in Appendix-I Party to take a reservation on a species documents as a condition of import. A wildlife may not be for commercial listing in Appendix I, II, or III. reservation by the United States also purposes when permits are issued under Generally, a reserving Party is treated as would provide exporters in this county Article III of the Treaty. Article II of the a non-Party with respect to trade in the with little relief from the need for U.S. Treaty states that Appendix-I specimens reserved species. Countries that choose export documents. Unless the receiving ‘‘...must be subject to particularly strict not to recognize a listing and take a country had entered the same regulation in order not to endanger reservation may continue trading in the reservation or was a non-Party, U.S. further their survival and must only be species without CITES documents with exporters would continue to be required authorized in exceptional other Parties that have taken the same to obtain CITES-comparable documents circumstances.’’ The Parties have agreed reservation or with non-Parties, because the Parties have agreed to trade that Appendix-I wildlife specimens provided such shipments do not transit with non-Parties and reserving Parties should not be traded for commercial a Party country. Trade with Parties that only if they issue permits and purposes unless the specimens have not taken the same reservation certificates that substantially conform originated from a CITES-registered requires CITES documents. with CITES requirements and contain commercial breeding operation. In the This section emphasizes what types of the required information outlined in past, the FWS has allowed commercial documents are required from Parties Resolution Conf. 9.5 (Rev. CoP13). breeders of Appendix-I wildlife to that have taken a reservation on a One commenter argued that the export specimens that have been sold to species listing. We incorporated United States should prohibit all trade individuals outside the United States Resolution Conf. 4.25, which in Appendix-I species involving non- provided that the Management recommends that, when a species is Parties or Parties with a reservation if Authority of the importing country can newly listed in Appendix I or is that trade involves a U.S. citizen or if make a not-for-primarily-commercial- transferred from Appendix II to the specimen is to be imported into, purposes finding and issues an import Appendix I, Parties that take a exported from, or otherwise transit a permit. After review of this type of reservation issue a CITES document and U.S. port. We believe that this comment trade, we do not believe that Article III treat the species as if it were listed in is adequately addressed in the 2006 of the Treaty was intended to allow Appendix II, rather than not listed, proposed rule (71 FR 20167), and refer such commercial trade. Thus, we no when trading with other reserving the commenter to that document for longer allow the use of Article III of the Parties or non-Parties. This provision further clarification. Treaty to export Appendix-I wildlife should promote the conservation of In-transit (§ 23.22): Due to limited species listed in Appendix I because the transportation routes and schedules, unless the export is for noncommercial reserving Party would continue to issue exporters and re-exporters may not purposes. We also allow the export of CITES documents based on legal always be able to ship specimens from Appendix-I wildlife that qualifies for an acquisition and non-detriment findings, one country directly to another without exemption under Article VII(4) and (5) and report such trade in its annual transshipping them through as bred in captivity only if the specimen report. We also incorporated Resolution intermediary countries. Shipments of was bred at a CITES-registered breeding Conf. 9.7 (Rev. CoP13), which clarifies sample collections may transit a number operation or was bred for the requirements in the Treaty that a of countries before returning to the noncommercial purposes, respectively. shipment containing specimens of originating country. Article VII(1) of the Other captive-bred Appendix-I wildlife CITES species traded between non- Treaty provides an exemption for will be given a source code ‘‘F,’’ rather specimens that are in transit through a Parties or reserving Parties or between a than a ‘‘C,’’ and the export will be country while the specimens remain non-Party and a reserving Party must be allowed only if the export is for under customs control. We define an in- accompanied by CITES documents if it noncommercial purposes and an import transit shipment as the transshipment of transits a Party country before reaching permit has been granted. any wildlife or plant through an its final destination. One commenter thought that the use We explain how a person can provide intermediary country when the of the double negative in the decision relevant information and request that specimen remains under customs tree for export of Appendix-I wildlife in the United States consider taking a control and meets either the § 23.18 leads the casual reader to reservation. Additionally, we note that requirements of this section or the assume that noncommercial trade is not if the United States entered a requirements in § 23.50 for sample allowed. The purpose of the decision reservation to the listing of a species in collections covered by an ATA carnet. tree is to walk the reader through the Appendix I, we will require a CITES In-transit shipments, other than sample requirements for trading in Appendix-I document that meets Appendix-II collections (§ 23.50), may stay in an specimens under different scenarios, permit criteria for international trade in intermediary country, including storage and it is important to read it through in specimens of that species. To date, the in a duty-free, bonded, or other kind of full. United States has not taken a warehouse or a free-trade zone, only for Two commenters strongly supported reservation. Entering a reservation the time necessary to transfer the the requirement that to qualify for an would do very little to relieve importers specimens to the mode of transport used exemption under Article VII(4) and (5) in the United States from the need for to continue to the final destination. as bred in captivity, the specimen must foreign export permits because the In 1983, the CoP recognized the have been bred at a CITES-registered Lacey Act Amendments of 1981 make it potential for abuse of the in-transit facility or bred for noncommercial a Federal offense to import into the provision, such as when importers purposes. However, one of these United States any animal taken, claimed the exemption and delayed ebenthall on PRODPC61 with RULES3 commenters questioned how the terms possessed, transported, or sold in shipment of the transiting specimen ‘‘not primarily commercial’’ and violation of foreign conservation laws. If while they found a buyer in a foreign ‘‘noncommercial purposes’’ were used. the foreign country has implemented country. In 1989, the CoP noted that, if See the discussion regarding the CITES through its domestic legislation valid CITES export documents were definition of ‘‘commercial’’ in § 23.5. and has not taken a reservation with required to accompany shipments VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48413 through intermediary countries, Parties Required information on CITES having English as the only language could discover illegal trade by drawing documents (§ 23.23): This section appearing on incoming documents attention to undocumented shipments. details what information must be would be easier for our inspectors, The inspection of in-transit shipments included on CITES documents. It CITES allows for documents to be was recommended in 1992. Resolution applies not only to documents issued by printed in any of the three working Conf. 9.7 (Rev. CoP13) consolidates the the United States, but also to those languages and we cannot regulate the earlier resolutions concerning in-transit issued by other Parties and non-Parties. activities of foreign countries through shipments. Article VI of the Treaty provides basic our domestic regulations. These regulations reflect the requirements for CITES documents for Required information (§ 23.23(c)): recommendations of the CoP to prevent import, introduction from the sea, One commenter raised a concern that, misuse of the in-transit exemption. A export, and re-export. At the first CoP, while the customs declaration label that copy of the valid original document may the Parties recognized the importance of is required on the outside of a container be used for in-transit shipments. having standardized documents. They of CITES specimens moving from one However, transshippers should be aware also recognized that the process of registered scientific institution to that, if shipments are not accompanied developing the standards would be a another registered scientific institution by an original CITES document, continuous one. The resolution on (§ 23.48(e)(5)) may constitute a CITES intermediary countries could delay permits and certificates has been revised document, it is unlike other CITES movement of the shipment while they at CoPs 2, 3, 7, 9, 10, 11, 12, and 13. The documents with regard to the determine whether a copy is an accurate resulting comprehensive resolution information it must contain. We agree copy of the original valid document. If (Resolution Conf. 12.3 (Rev. CoP13)) with the commenter that, like we have reason to question an provides guidance on all aspects of phytosanitary certificates, the customs accompanying copy, we will contact the CITES documents. declaration label must contain specific Management Authorities in the Two commenters had concerns language and information that is not the countries of export or re-export and regarding our response in the preamble same as what is required on other CITES final destination. to a comment stating that ‘‘documents documents. We have amended the The CITES document must designate that do not contain the required language in § 23.23(c) to exclude these the name of the importer in the country information may be considered invalid labels. and rejected by any Party.’’ One Bill of lading or air waybill (§ of final destination. The shipment must commenter requested clarification of 23.23(c)(3)): Although a suggestion was also be accompanied by a copy of a specifically what would trigger a made after we first proposed these valid import permit for Appendix-I rejection by the FWS, and the other regulations in 2000 to require that the specimens, where required, and air waybill or bill of lading information commenter indicated that the statement transportation routing documents that appear on the face of CITES documents, was too ambiguous and left too much show that the shipment has been we declined to make this mandatory discretion to the port official. Section consigned to the importer listed on the because the specific information is not 23.23 of the rule details the information CITES documents. always known at the time the CITES required on a permit, and § 23.26 A shipment that contains specimens provides guidance on when we consider document is validated. One commenter of CITES species protected under other a U.S. or foreign CITES document to be on the 2006 proposed rule (71 FR U.S. regulations, such as migratory valid. 20167) supported this approach, birds, bald and golden eagles, injurious Most of the information in this section agreeing that such information is not wildlife, endangered or threatened is presented in a series of tables, always available. species, or marine mammals, and organized alphabetically by required Dates (§ 23.23(c)(4)): Over the years, arrives in the United States before information, code, or type of document. we have received many questions about continuing on to another country is This format should help those shipping the ‘‘valid until’’ date. In this final rule, considered an import and must meet all and receiving specimens to understand we clarify that the validity of a import requirements. what information is needed on CITES document expires at midnight (local One commenter stated that the documents. A number of commenters time at the place of presentation) on the regulations should require a ‘‘firmer appreciated the inclusion of this date indicated on the document. All control of original CITES documents by section, and stated that it would provide activities, including but not limited to carriers.’’ The commenter suggested that a ‘‘valuable addition to the regulated transport and presentation for import, the carrier should permit the shipment community.’’ must be completed before that time. One to be held at the destination for no CITES forms (§ 23.23(b)): This section commenter expressed a concern that, additional charge when the documents states that CITES documents issued by due to situations beyond an importer’s are lost by the carrier. The scope of a Party must be on a form printed in one control, such as delayed transport or these regulations does not address how or more of the three working languages prolonged customs procedures, carriers control shipping documents or of CITES (English, French, or Spanish). shipments may not arrive prior to the the charges that are assessed by carriers One commenter stated that, to ensure expiration date of a document. The for storage of shipments pending that our customs and wildlife inspectors commenter argued that, if an importer clearance. One commenter suggested are able to understand all statements allows a reasonable period of time for that we include a statement that all in- made on the face of a CITES document, the shipment to arrive in the United transit wildlife shipments of CITES we should require that all CITES States, the documents should be species must comply with IATA documents for shipments coming into accepted regardless of the expiration regulations. As stated in § 23.26, all the United States be printed in English date. We cannot accept this suggestion. shipments, including in-transit only. Similarly, the commenter stated The Treaty establishes the period of ebenthall on PRODPC61 with RULES3 shipments, must meet the IATA that each Party should designate one of validity for some documents, and the requirements. Therefore, we believe it is the three working languages in which Parties, through resolution, have unnecessary to restate that in-transit all CITES documents accompanying established a specific time period for shipments must comply with the shipments into that Party’s country which other documents are valid. We humane transport requirements. should be printed. While we agree that strongly urge importers and exporters to VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48414 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations be aware of the expiration date of their applicant is asked to identify the Signature (§ 23.23(c)(16)): We require documents and to request replacement specimens to be imported or exported. that the signatures of individuals documents if they do not believe that If the applicant uses a unique mark or authorized to sign CITES documents for the shipment can be completed before microchip as a form of identification, a Management Authority be on file with the document expires. we will use that as a means of the Secretariat. This requirement will Humane transport (§ 23.23(c)(7)): We identifying the specimen. Because a help us determine if a document is valid require that CITES export and re-export CITES document is issued for specific and avoid delays in the clearance of documents for live wildlife contain a specimens, the use of identification shipments. One commenter believed specific condition that the document is marks or microchips ensures that the that this requirement would be only valid if the transport complies with specimens identified in the application impractical. We disagree and note that certain humane transport standards. are the specimens presented at the time this is not a new requirement. One commenter indicated that three of import or export. Requiring that the Resolution Conf. 12.3 (Rev. CoP13) sections (§§ 23.23, 23.26, 23.36) do not unique marks or microchips be recommends that Parties communicate contain the same language with respect identified on the face of the CITES to the Secretariat the names of the to humane transport. The commenter document allows for such identification. persons empowered to sign CITES suggested the language used in § 23.36 With regard to the FWS purchasing documents and submit examples of should be used in all sections because microchip readers, there currently is no their signatures. The FWS provides this it reiterates CITES language. We industry standard for microchip readers information to the Secretariat for declined to make a change based on this and the cost to purchase every type for documents issued by the United States suggestion because each section has a each wildlife inspection station would and verifies signatures with the different purpose and requires different be prohibitive. Secretariat when questions arise about language. Section 23.23 provides the Purpose of transaction (§ the validity of foreign documents. wording that must be included on a 23.23(c)(11)): Resolution Conf. 12.3 Validation (§ 23.23(c)(21)): We CITES document, § 23.26 lays out the (Rev. CoP13) lists standard transaction require CITES documents to indicate the condition for acceptance of a shipment, codes that are to be used on documents. actual quantity exported or re-exported, and § 23.36 provides the criteria for These are the same codes used by whether the shipment is physically issuance of a permit. Parties in their CITES annual reports. inspected upon export or not. One We do, however, make a change to One commenter expressed confusion commenter expressed concerns that this §23.23(c)(7) to incorporate by reference over the fact that the regulatory section requires a CITES permit to be CITES’s Guidelines for transport and language at § 23.23(c)(11) uses the validated prior to leaving the country; preparation for shipment of live wild words ‘‘if possible’’ and therefore allows otherwise it is not considered a valid animals and plants. We inadvertently for the possibility that the purpose of permit. The commenter stated that the omitted this necessary incorporation by the transaction may not appear on the majority of countries do not validate reference in our proposed rule, and we face of a CITES document. We have their export permits and that this will are correcting that omission in this final amended the text to remove the become an enforcement burden to the rule. ambiguity and to clarify that the wildlife inspection program to either re- Identification of specimen purpose of the transaction must be export the shipment for lack of (§23.23(c)(8)): We require that the CITES identified on the face of the CITES validation or seize the item(s). The document accompanying a shipment document, either through use of one of commenter questioned if there is a plan contain information on any unique the purpose of transaction codes in § to notify all CITES Parties of this new number or mark that is used to identify 23.23(d) or through a written requirement to lessen the burden. We a specimen in that shipment. If the description. are aware of the lack of implementation specimen has a microchip, the specific Quantity (§ 23.23(c)(12)): We require of this CITES requirement by some information concerning the code, that standardized units are used on all countries, and plan to focus outreach trademark of the transponder documents. The unit of measurement efforts on this issue before the rule manufacturer, and location of the chip should be appropriate for the type of enters into effect. However, we are also must be on the CITES document, and if specimen and agree with the preferred aware that receipt of a CITES document necessary, we may ask the importer, or alternative unit to be used in the without validation is not necessarily exporter, or re-exporter to have the CITES annual report, if possible. The due to an exporting or re-exporting equipment on hand to read the unit should be in metric measurement. country having chosen not to validate, microchip at the time of import, export, If weight is given, it is important to but may be because these shipments or re-export. One commenter supported provide the weight of the specimen, not have evaded export controls. The lack of the provision that an importer or the packing material. To monitor trade validation is quite often a violation of exporter must provide equipment to effectively, we need records on the exporting or re-exporting country’s read a microchip, if requested. Another quantities that accurately reflect the CITES laws, and we are committed to commenter did not support this volume of that trade. ensuring that shipments of CITES approach and argued that the FWS One commenter agreed with the species are legally traded. should provide any required equipment. requirement that appropriate units be One commenter had concerns that the This commenter also did not believe used on documents. However, the FWS would seize specimens if the that we should require that unique commenter believed that we should authorized quantity had been changed markings or microchip numbers be include a table of all of the units without the validation stamp. The identified on the face of the CITES accepted by the Parties. We decline to commenter suggested that, if a mark-out documents. The commenter thought this accept this comment since the accepted occurs and a new quantity is written by requirement would be burdensome to units, which are identified by species or the Management Authority of the ebenthall on PRODPC61 with RULES3 exporters that use microchips, whereas commodity, are too numerous to list. exporting country, the quantity should those exporters who do not use The accepted units are identified in the be verified through a physical microchips would not have the same annual report format guidelines that are inspection by the FWS without action documentation burden. On an available on the CITES website or from taken against the importer. We disagree application for a CITES document, the us (see § 23.7). with this comment. If any alteration of VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48415 the CITES document occurs, this must monitoring trade. We provide a list of that Parties accept documents from non- be identified by the stamp and signature standardized codes that Management Parties only if they contain certain basic of a person authorized to sign CITES Authorities use on CITES documents to information, including certifications documents for the issuing Management identify the source of the specimen. In that a competent authority has made the Authority or the document is addition, we provide the definition for findings required under Articles III, IV, considered invalid. Without the stamp each code, and explain that the source or V of the Treaty. Therefore, we have and signature verifying the originator of code ‘‘O’’ for pre-Convention specimens incorporated the requirements of the changes, we can only assume such should be used in conjunction with Resolution Conf. 9.5 (Rev. CoP13) on changes were not authorized, and we another source code. The U.S. trade with non-Parties and Resolution must take appropriate action. Management Authority will determine Conf. 12.3 (Rev. CoP13) on permits and One commenter raised a concern the appropriate code to use when certificates. One commenter expressed about requiring validation or issuing a document, based on concern that a certification from a non- certification of a customs declaration information provided in an application. Party that findings have been made in label used to identify specimens being We often receive questions about the accordance with the Convention did not moved between registered scientific difference between the source codes ‘‘C’’ guarantee that findings were accurate or institutions. We have revised this and ‘‘F.’’ Wildlife bred in captivity can scientifically sound. We believe that the section to exclude these labels from the be given the source code ‘‘C’’ and traded requirements in Resolution Conf. 9.5 validation requirement. under an Article-VII exemption (Rev. CoP13) and Resolution Conf. 12.3 Additional information (§ 23.23(e)): certificate only if the specimen meets (Rev. CoP13) are sufficient to ensure The table in paragraph (e) provides the requirements adopted by the CoP for that trade with non-Parties is conducted details on additional information that is bred in captivity (see § 23.63). In in accordance with CITES. As noted required for specific types of addition, for Appendix-I wildlife, the elsewhere in this rule, if we have documents, such as an annex or specimen must have been bred for concerns regarding a CITES document certificate of origin. Some documents noncommercial purposes. If a specimen issued by another country, we will require additional information because does not meet these criteria, it is investigate the situation further. of the type of transaction, the specimen assigned the source code ‘‘F’’ and Valid CITES documents (§ 23.26): involved, or special provisions, such as requires CITES documents under Article VIII of the Treaty outlines quotas. One commenter expressed Articles III, IV, or V of the Treaty. For measures that Parties shall take to concern over how quotas are handled by export of Appendix-I wildlife, see the enforce the provisions of the the Parties and believed that this section discussion in the preamble for § 23.18. Convention. Resolutions Conf. 9.9, 11.3 should include additional language that Two commenters expressed concern (Rev.CoP13), and 12.3 (Rev. CoP13) would provide greater control over that use of the source code ‘‘F’’ for further detail these measures. For CITES quotas. Although we recognize that the Appendix-I specimens that were to be effective, shipments must be Parties are currently evaluating the uses commercially bred at a facility that was accompanied by valid CITES documents of quotas, this section was not intended not registered with the CITES issued by the appropriate authority and to address those concerns. This section Secretariat would negatively impact must meet all conditions of those provides the additional language their commercial operations. As documents. Each Party must have required on CITES documents when the discussed further in § 23.46, specimens border controls for the inspection and specimens identified on the document that are produced for commercial validation of CITES documents. To fall under an established quota. purposes at a registered commercial ensure that specimens traded in Therefore, we have not made the breeding operation are afforded a violation of CITES do not re-enter illegal changes to this section requested by the specific exemption under Article VII(4) trade, Parties are urged to consider commenter. of the Treaty. These specimens are given seizure of specimens, rather than refusal Phytosanitary certificates (§ 23.23(f)): the source code ‘‘D’’ on CITES of entry of the shipment. Parties are CITES allows phytosanitary certificates documents. If a commercial breeding encouraged to cooperate with other to be used in lieu of CITES certificates operation for Appendix-I species does Parties, the Secretariat, and to export certain artificially propagated not meet the requirements set out in § international enforcement organizations plants under specific circumstances. At 23.46 to be registered with the CITES to further effective enforcement of the this time, we do not allow the use of Secretariat, its specimens would not be Treaty and provide protection to CITES phytosanitary certificates in lieu of eligible for the exemption under Article species. CITES certificates for export of plants VII(4), and therefore any international One commenter stated that the FWS artificially propagated in the United trade of such specimens would be should impose rules that make it clear States. One commenter believed there subject to the provisions of Article III of that a CITES shipment not accompanied was a contradiction in this last the Treaty. by the required CITES documents statement. To clarify, although the Additional information required on would be deemed illegal and disposed United States does not issue non-Party documents (§ 23.25): This of pursuant to the FWS laws and phytosanitary certificates in lieu of section provides the additional policies with all costs borne by the CITES certificates, we will accept them information that is required on non- importer, exporter, or re-exporter. We from other Parties that have issued such Party documents. Article X of the Treaty believe the rule clearly identifies the documents, provided the phytosanitary allows a Party to accept documentation CITES prohibitions. The commenter certificate was properly issued and from a non-Party if it is issued by a further stated that if such a rule is not meets the requirements set out in this competent authority and substantially imposed, the FWS should require that section. conforms to the requirements of CITES. countries issuing permits for shipments Source of the specimen (§ 23.24): The Because the Parties were concerned that to the United States should submit ebenthall on PRODPC61 with RULES3 source of a specimen is needed by the trade of CITES specimens through electronic copies of the documents to Management and Scientific Authorities non-Parties might jeopardize the ensure that a record of all trade is to make the findings required to issue effectiveness of the Convention, they available. We disagree with this CITES documents and is an important adopted Resolution Conf. 9.5 (Rev. suggestion because such a requirement component in analyzing data and CoP13). This resolution recommends has not been agreed upon by the CoP VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48416 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations and would be overly burdensome for no exceptions. The commenter also clarity, we have added four additional both the United States and other CITES stated that the regulations should set key phrases to § 23.26(c), annual Parties. specific requirements with which reports, Convention implementation, We included this section in the foreign Scientific and Management legal acquisition, and non-detriment, as regulations to outline what Authorities must comply when conditions that must be met before we requirements must be met for CITES completing and issuing their findings. consider a CITES document valid. The documents to be considered valid. The imposition of a CITES import addition of these key phrases also Several commenters objected to our permit requirement for Appendix-II ensures continuity with § 23.26(d) reviewing the legal and scientific bases wildlife and of specific criteria for other which outlines when we might verify a for a CITES document issued by another countries to use in making their non- CITES document with the Secretariat or country, noting that we should accept a detriment findings goes beyond what is a foreign Management Authority. document if it is not procured by fraud required under the Treaty. We have full Although we indicate that these key and meets Article VI of the Treaty. One authority to question a non-detriment phrases form the basis for acceptance of commenter argued that if we had a finding when we have reason for CITES documents, in addition to dispute with a country about a permit concern. Requiring import permits for requirements in other sections, we will we should address our concerns to that Appendix-II specimens would add not generally question findings made by country, and that the Convention does significantly to our workload, but would a Party for each individual shipment. not give us the authority to refuse entry not provide significant benefit. We seek additional information where of shipments or reject permits in the Acceptance of CITES documents (§ there is reason to question a shipment absence of fraud or falsification of the 23.26(c)): We present the information on or a pattern of trade. permit. valid documents in a table arranged Management Authority and Scientific We have the authority to question any alphabetically by key phrase to assist Authority (§ 23.26(c)(10)): One shipment and its accompanying importers and exporters. Most of the commenter supported the requirement documents if the surrounding facts requirements are self-explanatory. that non-Parties designate Management indicate a potential violation or create a However, we believe it would be helpful and Scientific Authorities. reasonable suspicion of a violation. to discuss some in more detail. Quotas (§ 23.26(c)(14)): Quotas may Section 10(g) of the ESA places the Annual reports (§ 23.26(c)(2)), be established voluntarily by Parties, burden on a permittee to prove that the Convention implementation (§ adopted by the CoP through a resolution document was valid and in force at the 23.26(c)(5)), Legal acquisition (§ or proposal to amend Appendix I or II, time of entry into the United States. 23.26(c)(9)), and Non-detriment (§ or put into place through the Review of Foreign countries have the same 23.26(c)(12)): Three commenters urged Significant Trade in Appendix-II species discretion to inquire about documents us to include regulatory provisions to (Resolution Conf. 12.8 (Rev. CoP13). we have issued. In addition, violations implement recommended trade The Secretariat notifies the Parties of of CITES consist of more than fraud or suspensions. When the Standing quotas each year, and we require that, falsified documents, and the Treaty Committee or the CoP recommends a for a given species, the quantity requires Parties to penalize trade in, and temporary trade suspension, based on exported not exceed the quota. One possession of, specimens traded the results of the Review of Significant commenter agreed with this contrary to the Convention. As decided Trade, non-submission of annual requirement. by the United States District Court for reports, the status of adequate national Ranched specimen: We received one the District of Columbia in Castlewood legislation, or ongoing enforcement or comment related to a provision that Products v. Norton (Apr. 16, 2003), and implementation problems, Parties are appeared in the 2000 proposed rule (65 affirmed by the Court of Appeals for the informed of the decision through a FR 26664) regarding not allowing District of Columbia Circuit (Apr. 30, Notification to the Parties issued by the international trade in ranched 2004), the role of all CITES Parties is to Secretariat. All three commenters specimens involving non-Parties or ensure that international trade in CITES indicated that temporary suspensions Parties with a reservation on a species specimens meets the provisions of the are a valuable tool for ensuring downlisted from Appendix I to Convention, and the Government has compliance by CITES countries. Two Appendix II subject to ranching. the authority to decline to accept export commenters stated that implementation Resolution Conf. 10.18 included permits at face value when reason is of CITES trade suspensions is a language addressing this potential trade shown to doubt their validity. We note responsibility of the United States in its restriction. However, Resolution Conf. that the United States receives role as a major importer of CITES 11.16, which replaced Resolution Conf. thousands of CITES shipments annually species, and one commenter urged 10.18, does not include this provision. for which CITES documents are regulatory language requiring immediate Since the Parties excluded this accepted as issued. We focus our implementation of CITES trade provision when revising the ranching verification efforts on those shipments suspensions. One commenter also resolution, we did not include the and CITES documents for which the suggested that we add a specific key restriction in this rule. available information indicates a phrase to § 23.26(c) for CITES trade Shipment contents (§ 23.26(c)(18)): problem may exist. suspensions. This paragraph specifies that the One commenter believed that the While we believe the regulations as contents of the shipment must match FWS relies too heavily on the proposed allow us to implement any the description of specimens on the assumption that an exporting or re- temporary suspensions of trade, we CITES document and that the shipper exporting country is issuing accurate agree that adding language to § 23.26(c) may not substitute a new specimen to and scientifically defensible non- will provide useful clarification for the replace the one authorized. One detriment findings. The commenter public. CITES trade suspensions are commenter believed it was reasonable to ebenthall on PRODPC61 with RULES3 argued that the FWS must mandate based on failure to comply with basic allow a scientist who had obtained a import permits for all Appendix-I and Treaty requirements, and we realize that permit for several specimens of a Appendix-II wildlife or mandate the basic Treaty requirements are particular species to substitute different internal reviewof export permits to scattered throughout many sections of specimens of the same species without make concurrence determinations, with the regulations. Therefore, to provide having to amend the permit. We VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48417 disagree. Findings are made based on official notice to the public and the grounds to believe that the specimen information provided by the applicant regulated community before a contrary was produced from illegally acquired for specific specimens, and therefore the determination is made. Although we parental stock. We agree and have specimens in a shipment must encourage the public to provide relevant revised the regulations accordingly. correspond to what was authorized. information if they have concerns about One commenter stated that the Verification of CITES documents (§ a finding made for a particular verification process outlined in the 2006 23.26(d)): This paragraph outlines the shipment, we decline to add a proposed rule (71 FR 20167) would be situations when we may request requirement that we solicit public grossly unfair to importers. We disagree. verification of documents from the comment whenever we have reason to These regulations provide a greatly Secretariat or the Management question a non-detriment finding. We expanded explanation of what CITES Authority of any country involved in believe it is unnecessary and would documents are required for trade, the the shipment. They include instances undermine any timely and appropriate information that must be contained on when we have reasonable grounds to enforcement action that may be a CITES document, when we consider a believe a document is not valid or warranted. document valid, and what importers authentic. One commenter strongly supported should present at the port of entry. We Verification of CITES documents can the regulations regarding verification of believe that this section will assist the be a lengthy process and depends on the documents and noted that the issuance regulated public in determining what issue, the means of communication, and of a permit without making the relevant they must do to comply with CITES if the cooperation of the countries findings is inconsistent with Articles III they wish to import or export CITES involved. Failure by a country to and IV of the Treaty and therefore species. respond through normal channels of constitutes noncompliance. Another Presentation of CITES documents at communication or failure to provide commenter recognized that the FWS has the port (§ 23.27): Inspecting officials at sufficient information to determine the authority to respond to violations, the ports of exit and entry must verify validity of documents may result in but believed that where a document is that shipments are accompanied by refusal of a shipment. apparently valid, and not procured valid CITES documents and take We rely on Parties and non-Parties to fraudulently, importers should have a enforcement action when shipments do make appropriate findings, and we seek reasonable expectation of a procedural not comply with CITES. To help additional information only when we standard for ‘‘looking behind’’ the importers and exporters, we provide a have a specific reason to do so. The document to determine its validity. We table outlining the type of U.S. and Plants and Animals Committees, agree and have provided detailed foreign documents they must present for through the Review of Significant Trade information about when we would validation or certification, or that they process, regularly evaluate whether question the validity of a permit and must surrender, when importing, Parties are properly making non- seek verification. The commenter introducing from the sea, exporting, or detriment findings. Four commenters further stated that the failure to make re-exporting CITES species. questioned why we both rely on Parties adequate findings by ignoring, omitting, One commenter made a general and non-Parties to make appropriate or failing to review relevant information statement that we should modify these findings and also allow the Animals and is no different. The commenter argued regulations to reflect reality and allow Plants Committees to regularly evaluate that the regulation confirms the FWS’ uniform application of the rules, in whether Parties are properly making authority to look behind a facially valid particular with respect to the validation non-detriment findings. The permit. The commenter urged us to and clearance process. We believe the commenters suggested that we delegate retain the proposed language in the final regulations governing the CITES the process to the Committees. We wish rule because it facilitates proper approval and validation process are to clarify that Parties and non-Parties implementation of the Convention and appropriate as written. Article VIII of are required under CITES to make legal the holding of the United States District the Treaty requires the Parties to acquisition and non-detriment findings Court for the District of Columbia in establish an inspection process that for the CITES documents they issue. Castlewood Products v. Norton (Apr. 16, takes place at the ports of exit and entry Although the Plants and Animals 2003). to ensure that wildlife shipments are in Committees regularly evaluate whether One commenter argued that a CITES compliance with CITES. The validation Parties are properly making non- export permit must be regarded as the process is an important component of detriment findings, this is only done for only authorization necessary to trade in CITES that enables U.S. inspection selected species determined to be CITES species. We agree that as authorities to confirm the authenticity subject to significant levels of trade. signatories to CITES, the Parties have an of permits and ensure that wildlife Such evaluations are done at the species obligation to issue export permits in shipments were legally shipped from level, usually range-wide, not for accordance with the requirements of the the exporting country. Such individual permits, and not at the Convention. However, we have the determinations are needed to ensure the specific request of a country. Individual authority to question any shipment and proper enforcement of U.S. laws and permit findings cannot possibly be its accompanying documents if the regulations. Specific problems with made by the Plants and Animals surrounding facts indicate a potential clearance procedures in a foreign Committees, which generally meet only violation or create a reasonable country should be addressed to the annually. We may request information suspicion of a violation. This position appropriate Management Authority. on non-detriment findings made by was affirmed by the United States One commenter supported our other countries, including the District Court for the District of clarification in the 2006 proposed rule underlying basis for quotas established Columbia in Castlewood v. Norton and (71 FR 20167) that CITES documents for by Parties, when we have a question the Court of Appeals for the District of wildlife in personal accompanying ebenthall on PRODPC61 with RULES3 regarding a shipment or a pattern of Columbia. baggage should be submitted as soon as trade. One commenter suggested we include possible to the FWS if Customs or Several commenters indicated that if in § 23.26(d)(5) a statement allowing us Agriculture officials fail to collect the the United States questions a non- to request verification of a CITES documents at the time of arrival of the detriment finding there should be document when we have reasonable passenger. VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48418 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations One commenter correctly noted that application fees, if he or she still wants biological status of the species). While the documentation that accompanies to pursue obtaining a permit. it is true that in some cases we may have shipments of CITES specimens moving One commenter disapproved of our access to more information than many between registered scientific institutions intent in § 23.32(f)(2) to abandon any applicants, we do not believe that it is is not processed at the port in the same application after 45 days when the the burden of the government to obtain manner as other CITES documents. We applicant has not responded to our the information necessary to prove that have removed the registered scientific request for additional information and the issuance criteria have been met. We institution CITES label from the table in of the fact that we will not re-open an inform the applicant of the basis of any § 23.27(b) and added a new paragraph application file once it has been denial decision and indicate what (§ 23.27(d)) to describe the port abandoned. This procedure is not new. information is lacking. If the missing requirements for such shipments. In Part 13 of this subchapter identifies the information is difficult for an individual addition, we inadvertently omitted the process for abandoned application files, applicant to obtain (e.g., foreign process for presenting phytosanitary and it is repeated in this section for government management plans), we will certificates for shipments of artificially emphasis. We receive over 6,000 permit do our best to obtain such data during propagated plants and have corrected applications annually, and we work the course of reviewing an application. that by adding the necessary language to closely with applicants to avoid the However, it is the applicant’s the table in § 23.27(c). need to abandon any application file. In responsibility to prove that he or she the past, we have received requests to meets the issuance criteria. What Are the Changes to Subpart C of re-open files months, and even years, 50 CFR Part 23—Application We received several comments on the after a file has been abandoned. Such process for appeal when an application Procedures, Criteria, and Conditions? requests are burdensome, and we have has been denied. We refer the This subpart provides information on found that it is more efficient to create commenters to the 2006 proposed rule how to apply for a U.S. CITES a new file. As a result, once abandoned (71 FR 20167), where we addressed this document. It also contains general we will not re-open an application file. issue, and note that the general permit provisions and criteria that apply to Decisions on applications (§ 23.33): procedures in part 13 of this subchapter both U.S. and foreign CITES documents. This section explains the procedures we provide the process for review if an follow in making a decision on an Application procedures (§ 23.32): application is denied. The procedures in application. When an application is This section gives a general overview of part 13 cover all applications processed complete, we review the information the application process for U.S. CITES by the FWS, including applications for under all applicable issuance criteria, documents. Much of the information activities under CITES. including 50 CFR part 13, regulations that appears in this section also appears under other wildlife and plant laws, and Records (§ 23.34): This section in 50 CFR 13, General Permit the CITES regulations. We may consult provides examples of the kinds of Procedures, and is repeated here for the with outside experts, scientists, and records individuals and businesses may convenience of the regulated public. staff within the Federal Government, want to keep if they intend to trade in One commenter appreciated this State and tribal agencies, the Secretariat, CITES species internationally. Although reiteration of the application process for or foreign Management or Scientific the applicant for a CITES document CITES documents. A number of CITES Authorities before we make our needs to provide sufficient information species are protected under other laws findings. The burden of proof in for us to make the legal acquisition or treaties that we implement. If establishing that the issuance criteria finding, we base the amount of appropriate, we will accept one are met lies with the applicant. We can information we need on the risk that the application if the applicant provides the issue a CITES document only if we are specimen was illegally acquired. For information needed under all relevant satisfied that all criteria specific to the example, we consider whether the regulations. An applicant should review proposed activity are met. specimen is a hybrid; is common in the issuance criteria for all relevant One commenter believed that we were captivity in the United States; breeds or regulations when preparing an inconsistent when we stated in the 2006 propagates readily; has little illegal application to ensure he or she proposed rule (71 FR 20167) that we trade; or is commonly imported. We understands the kinds of information may consult with outside experts and give less scrutiny and require less we need. This review will help the others before making required findings, information when there is a low risk applicant submit a more complete yet we also stated that we rely on Parties that a specimen was illegally acquired application and prevent delays in or non-Parties to make appropriate and give more scrutiny and require processing. findings and would seek additional more detailed information when the risk When we review an application, we information only when we have a is greater. decide whether the requirements of an specific reason to do so (§ 23.26(d)). We One commenter was concerned with exemption document under Article VII believe that the commenter our response in the 2006 proposed rule of the Treaty can be met or whether we misunderstood our point in this section (71 FR 20167) to a previous comment need to process the application under with regard to consultation with outside that an applicant’s failure to provide the standard CITES requirements of experts. We may consult with outside adequate documentation showing Articles III, IV, or V (see §§ 23.35– experts to assist us in making our legality of a specimen, while not 23.39). If we find that the application is required findings. This is separate from necessarily evidence that the specimen incomplete, we will contact the the issue of whether or not we will was traded contrary to CITES, might applicant for additional information. If accept the findings made by a foreign prevent us from making the required the applicant does not respond to our CITES authority. findings or being able to issue the request within 45 days, we will abandon One commenter was concerned that necessary CITES documents for ebenthall on PRODPC61 with RULES3 the file. We will not re-open the the burden of proof is on the applicant subsequent import, export, or re-export. application if the applicant sends the to establish that the issuance criteria are The commenter suggested that the FWS additional information at a later date. met. The commenter noted that the FWS establish procedures or describe the The applicant may, however, submit a is more likely to have access to certain kinds of evidence we will accept in lieu new application, including any relevant information than the applicant (e.g., of positive documentation. VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48419 We have not specified the type of require the export permit to be issued discussion in the preamble for § 23.18). documentation that an applicant must before they can issue an import permit. This provision means that facilities that present in order for us to make Resolutions Conf. 10.14 (Rev. CoP13) are commercially breeding Appendix-I necessary findings because it is not and 10.15 (Rev. CoP12) recommend that wildlife must become registered under § possible to describe the full range of this requirement may be satisfied when 23.46 before they can export Appendix- information an applicant could use to the Management Authority of the I specimens. This does not affect the show that their activity is consistent importing country has provided written sale of specimens within the United with CITES requirements. In each case, assurance that an import permit will be States, nor does it preclude the export the applicant must present enough issued. Thus, for the export of live and of specimens where the purpose is information to allow the FWS to make dead Appendix-I specimens and re- noncommercial, such as for science, the required determinations, but the export of live Appendix-I specimens (as conservation, or personal use. source of this information and the level required by Article III of the Treaty), the Two commenters expressed their of detail needed to make the findings issuance criteria can be met either by support for registering breeding will vary. showing that the import permit has been facilities for Appendix-I wildlife and One commenter was concerned that issued or by providing confirmation allowing the export of wildlife from an importer might be unable to show from the Management Authority of the these registered facilities for commercial proof of legal import because the importing country that the import purposes. However, one commenter documents were retained by CBP and permit will be issued. For re-export of thought that measures such as not forwarded to the FWS. The retention dead specimens, the Management registering breeding facilities create of copies by the importer at the time of Authority does not need to see the loopholes and do not provide benefit to import is separate from whether CBP import permit before issuing a re-export Appendix-I species in the wild. CITES transfers paperwork for follow-up certificate, but the shipment still must allows for commercial trade in investigation or storage by the FWS. be accompanied by an import permit. Appendix-I specimens from registered Commercial importers must retain One commenter stated that we should breeding operations, and we do not copies of documents for their files. require the Management Authority of believe that this requirement creates a Noncommercial importers are the exporting country to acquire a copy loophole. The commenter also wanted encouraged to retain copies of any of the import permit before issuing an assurances that an Appendix-I specimen documents submitted to the government export permit or re-export certificate. bred for noncommercial purposes (i.e., for clearance as an ordinary part of the The commenter was concerned that, due not from a registered breeding facility) process whether or not they intend to either to limited resources or lack of would only be traded internationally for submit applications in the future. All interest, a country will not make the noncommercial purposes over its importers should also be aware that required findings if they know in lifetime. We will not authorize there are recordkeeping obligations advance that the importing country will commercial trade of an Appendix-I under customs laws (19 U.S.C. 1508 and allow the import. We believe that specimen that does not qualify for an 1509) and customs regulations (19 CFR countries strive to fulfill the exemption under which such trade part 163). requirements of the Treaty to the best of would be allowed. Additionally, we General requirements for standard their abilities and that it is unlikely that expect that countries that are party to CITES documents (§§ 23.35–23.39): The an importing country would issue an CITES will abide by the provisions of basic requirements for U.S. and foreign import permit based solely on the fact the Convention, however we do not CITES documents have not changed that the exporting country issued an have control over trade that does not since the Treaty took effect in 1975. We export permit. The commenter also involve the United States. have designed U.S. application forms contended that allowing the importing We address the exemption in Article for specific activities and protection country to provide a ‘‘letter of intent’’ or XIV(4) and (5) for certain Appendix-II levels to make applications easier to written assurance that an import permit marine species protected under another complete and to clarify what will be issued will lead to situations treaty, convention, or international information is needed. Each of these where the import permit will not be agreement that was in force on July 1, sections provides information to help an issued by the time the import actually 1975 (the date of entry into force of applicant determine which application occurs, placing border officials in a CITES). Export of a marine specimen form to use. The forms can be obtained difficult situation. It is the responsibility exempted under Article XIV requires a from our website or requested by phone, of the exporter to obtain all the CITES certificate indicating that the mail, or e-mail (see § 23.7). necessary documents before engaging in specimen was taken in accordance with These sections list the issuance international trade. We concur with the provisions of the other treaty, criteria for each type of document and Resolutions Conf. 10.14 (Rev. CoP13) convention, or international agreement. reference the appropriate section for and 10.15 (Rev. CoP12) that allowing One commenter appreciated the factors we consider in making a importing countries to provide written clarification in § 23.36(d) of the decision on certain criteria. The assurance that an import permit will be requirements for CITES documents for issuance criteria are based on the issued provides a workable solution that certain marine specimens exempted provisions of the Convention (Articles allows the administrative needs of both under Article XIV(4) and (5). III, IV, V, and XIV) and resolutions, the importing and exporting countries to We added a new application form to including Resolution Conf. 12.3 (Rev. be met. If the U.S. Management the table in (b) for export of caviar or CoP13) on permits and certificates. Authority receives a written meat from wild-caught sturgeon and Prior issuance of an import permit (§ confirmation that appears unusual or paddlefish (Form 3-200-76). This form 23.35(e)): Under Article III of the Treaty, inappropriate, we will investigate the was developed after the 2006 proposed before a Management Authority can situation further. rule (71 FR 20167) was published. ebenthall on PRODPC61 with RULES3 issue an export permit for an Appendix- Export permits (§ 23.36): To comply Certificate of origin (§ 23.38): A I specimen, it must be satisfied that an with Article II of the Treaty, the export certificate of origin allows the export of import permit has been issued for the of Appendix-I wildlife that qualifies for a specimen of a species listed in specimen. However, some countries source code ‘‘W’’ or ‘‘F’’ must be for Appendix III when the specimen have stricter national measures that noncommercial purposes (see originated in a non-listing country. This VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48420 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations section provides specific information on stated that the FWS should identify all may be issued for any purpose, the application form and issuance such agreements in force on July 1, including traveling exhibitions, for criteria for a certificate of origin. 1975, and provide an analysis Appendix-II or -III specimens. However, One commenter expressed concern comparing and contrasting requirements we generally do not issue bred-in- regarding documentation requirements imposed by these other agreements in captivity certificates for specimens in a for trade in Appendix-III specimens. relationship to CITES requirements. We traveling exhibition. Traveling While he believed that the requirements disagree. The exemption in Article exhibitions are addressed by Article were clear for specimens originating in XIV(4) and (5) for certain Appendix-II VII(7) of the Treaty and we refer the the listing country, he stated that there marine species is limited in scope and commenter to the procedures for is no uniform format for certificates of was purposely written into the Treaty to traveling exhibitions described in § origin, which results in considerable avoid conflicts with pre-existing 23.49. The same commenter asked variation in these documents, with some treaties, conventions, and agreements. whether we could issue a bred-in- countries no longer issuing any Changing or eliminating this exemption captivity certificate to facilitate import documents for the export of Appendix- would require amending the Treaty, of an Appendix-I specimen that had III specimens. He also noted that which we do not believe is practicable been bred for noncommercial purposes acceptance of these documents by the or warranted. in a foreign country. A Party cannot United States varies at different ports of Another commenter believed that issue a bred-in-captivity certificate for a entry and asked that we ‘‘formulate guidance was lacking on when an specimen outside of its national clear rules which reflect the ongoing introduction-from-the- sea certificate is jurisdiction. customs and regulations of other required. Introduction from the sea is The commenter also expressed countries.’’ defined in § 23.5, and § 23.20(f) and § concern that issuance of a bred-in- Sections 23.23 to 23.27 provide clear 23.39 explain clearly that unless the captivity certificate bypasses the descriptions of the information specimen qualifies for an exemption requirements in Article III, IV, and V to requirements for CITES documents, under Article XIV(4) and (5), the make a legal acquisition finding and the including certificates of origin. These introduction from the sea of an requirements in Article III and IV to requirements implement the current Appendix-I or -II specimen requires an make a finding that the export would resolution on permits and certificates, introduction- from-the-sea certificate. not be detrimental to the survival of the and therefore reflect what has been Criteria for issuance and acceptance of species. These findings are made agreed by the CITES Parties. Some introduction-from-the-sea certificates through our adoption of the standard countries have taken reservations for are provided in § 23.39. interpretation of the term ‘‘bred in certain Appendix-III species, and we Bred-in-captivity certificates (§ 23.41): captivity’’ in Resolution Conf. 10.16 refer the commenter to § 23.21 for an This section implements Article VII(5) (Rev.). We refer the commenter to § explanation of document requirements and allows us to issue a bred-in- 23.63 on the procedures for evaluating when a country has elected to take a captivity certificate for specimens of the breeding stock from which the reservation on an Appendix-III listing. Appendix-I species bred for specimen was derived. Introduction from the sea (§ 23.39): noncommercial purposes (see § 23.5) or The Parties have agreed that facilities Article XIV(4) and (5) of the Treaty traveling as part of an exhibition, and that are breeding Appendix-I species for provide a limited exemption for certain specimens of Appendix-II or -III species noncommercial purposes must be Appendix-II species when a country is bred for any purpose. At CoP12, the participating in a cooperative a party to another treaty, convention, or Parties agreed that facilities that are conservation program with one or more international agreement that protects the breeding Appendix-I species for range countries for the species. The listed marine species and was in force noncommercial purposes must be commenter noted that we have not on July 1, 1975 (the date of entry into participating in a cooperative provided a specific definition of what force of CITES). For introductions from conservation program with one or more constitutes a cooperative conservation the sea, this exemption applies only to of the range countries for that species. program. We amended the definition in specimens that were harvested by a ship We adopted this provision. If the § 23.5 slightly to make it clear that the registered in the country of introduction breeding facility is not participating in program must be conducted in that is also a party to the pre-existing a cooperative conservation program, cooperation with one or more of the treaty. This is in keeping with Article specimens will be assigned the source range countries for the species. XIV(4) and with the intent of the code ‘‘F’’ and are not eligible for a bred- However, we defined ‘‘cooperative provisions of Article IV of the Treaty. It in-captivity certificate. Export of such conservation program’’ in general terms also supports the CITES goal of Appendix-I specimens will be allowed because we did not want to limit what exempting only those introductions only when the export is for might be considered under such a from the sea that are certified as being noncommercial purposes (see the program. These programs may include a in compliance with a pre-existing treaty discussion in the preamble for § 23.18). wide variety of activities, and we cannot by a party to that treaty who is We also adopted the recommendations adequately address every variation in competent to make such a certification. of Resolution Conf. 10.16 (Rev.) for this rule. Instead, using our professional Should a commercially exploited specimens bred in captivity (see § judgment and through communication marine species that is exempt under 23.63). Appendix-I wildlife that with range countries and species Article XIV be listed in the future, qualifies for a bred-in-captivity experts, we will evaluate each breeding implementation details may need to be certificate does not need a CITES import situation to determine if the activities addressed at the time of listing. permit. being conducted constitute active One commenter was concerned that One commenter asked if we could participation in a cooperative allowing the use of other treaties, issue bred-in-captivity certificates for conservation program. ebenthall on PRODPC61 with RULES3 conventions, or international Appendix-II and -III specimens that are The commenter also expressed agreements to exempt specimens from part of a traveling exhibition, or for concern that the issuance of bred-in- CITES requirements may reduce their Appendix-I specimens in foreign-based captivity certificates would facilitate overall protection by allowing trade that traveling exhibitions performing in the fraudulent activities by providing a may not be permissible under CITES. He U.S. As stated above, such certificates loophole for the international movement VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48421 of wild-caught specimens. We disagree. The Parties agreed to a limited comment, this rule is not intended to We believe that the procedures we use exception for certain wildlife hybrids address that issue. to review applications for bred-in- under specific conditions. When the Some commenters stated that hybrid captivity certificates and our close hybrid specimen is a cross between a falcons should be exempt from CITES coordination with law enforcement, CITES species and a non-CITES species, controls because international trade in both domestically and internationally, and no purebred CITES specimen such specimens has no impact on the are a strong deterrent to such fraudulent appears in the previous four generations conservation of wild raptor populations. activities. of its ancestry, it is exempt from CITES Trade in hybrids is controlled by CITES General information on hybrids (§§ requirements. A hybrid of species because of the difficulty in 23.42 and 23.43): At CoP2, the Parties included in a higher-taxon listing, such distinguishing purebred and hybrid recognized that it can be difficult to as parrots, falcons, or sturgeons, would specimens. See the general discussion of distinguish between purebred and not be exempted under this provision hybrids above for the basis of applying hybrid specimens in trade. If hybrids because the crosses are generally CITES requirements to hybrids of CITES were not subject to CITES controls, between two CITES species within that species. persons wishing to avoid the controls of higher-taxon listing. We expect that the Personally owned live wildlife (§ CITES could falsely claim that the wildlife hybrid exemption will apply 23.44): Article VII(3) of the Treaty specimens in question were hybrids. only rarely. provides that, in some circumstances, Resolution Conf. 2.13 recommended A specimen that qualifies as an the provisions of Articles III, IV, and V that hybrids, even though not exempt wildlife hybrid does not require of the Treaty do not apply to specimens specifically listed in any of the CITES documents. However, at the time that are personal or household effects. Appendices, are subject to CITES if one of import, export, or re-export you must As discussed previously, Parties have or both parents are listed. The Parties provide sufficient information to generally excluded live wildlife from agreed at CoP10 to treat plant hybrids demonstrate to CITES border officials this exception. However, in Resolution differently from wildlife hybrids. that your wildlife specimen contains no Conf. 10.20, the Parties agreed that Resolution Conf. 2.13 was repealed, and purebred CITES species in the previous personally owned, live wildlife that is provisions for hybrids were placed in four generations of its lineage, and you registered by the Management Authority other resolutions. must follow the clearance requirements in the country where the owner usually Plant hybrids (§ 23.42): Resolution for wildlife in part 14 of this subchapter. resides may be moved internationally Conf. 11.11 (Rev. CoP13) contains Initially, we had proposed that either using a certificate of ownership, under provisions on trade in plant hybrids. a CITES document or an ‘‘excluded specific conditions. Trade in plant hybrids must meet the hybrid letter,’’ issued by a Management We have implemented this resolution, requirements of CITES unless the Authority, must accompany any exempt which should simplify the procedure for Parties agree to exempt an Appendix-II wildlife hybrid being imported into or people who frequently travel or -III hybrid by a specific annotation to exported from the United States. One internationally with companion animals the Appendices (see § 23.92). Plant commenter questioned how the United or wildlife used in noncommercial hybrids are subject to CITES controls if States could require that a CITES competitions, such as falconry. The one or both parents are listed in the document or a letter accompany an certificate of ownership acts like a Appendices. If the hybrid includes two exempt hybrid when other CITES passport, but can be issued only after CITES species in its lineage, it is listed Parties do not require such agreement between the Management in the more restrictive Appendix of documentation. After further review, we Authorities of the Parties concerned. either parent, with Appendix I being the have decided to eliminate this The owner must accompany the most restrictive. document requirement. However, as specimen when crossing international Two commenters stated that plant previously stated, individuals traveling borders, and the wildlife cannot be sold hybrids should be exempt from CITES with or shipping exempt wildlife or otherwise transferred when traveling document requirements. See the general hybrids should be aware that they must abroad. discussion of hybrids above for the basis provide information to clearly Five commenters supported the idea of applying CITES requirements to demonstrate to border officials that the of issuing certificates of ownership, or hybrids of CITES species. The same specimen qualifies as an exempt ‘‘passports.’’ One commenter, while commenters believed that the wildlife hybrid. supporting the concept, stated that the exemption for certain hybrids when the We received over 200 comments in certificates should be called ‘‘certificates specimens are traded in shipments support of this section as proposed. of stewardship’’ since wildlife should containing 20 or more plants of the While not specifically stated in most of not be ‘‘owned,’’ but should only be same hybrid is unfair to small growers. these comments, it was clear that the held in ‘‘trust.’’ We decline to make a This exemption was adopted by the commenters were under the impression change based on this suggestion since Parties as a listing annotation for certain that Bengal cats, a hybrid cross between the title of this CITES document was orchid species. The appropriateness of domestic cats and Asian leopard cats agreed upon by the Parties. specific species listings and listing (Prionailurus bengalensis), would be Seven other commenters also annotations is addressed by the CoP and automatically exempt from CITES supported the issuance of certificates of is beyond the scope of these regulations. document requirements. Although some ownership, but did not believe that the Wildlife hybrids (§ 23.43): In Bengal cat specimens may qualify as owners of birds covered under the Resolution Conf. 10.17 (Rev.), the exempt hybrids, if you cannot clearly MBTA should be required to notify us Parties agreed that wildlife hybrids with demonstrate that your specimen meets when their birds have died or been sold one or more Appendix-I or -II specimens the qualifications for the exemption, since they must report such events to in their recent lineage are controlled you must obtain a CITES document for their Regional Migratory Bird ebenthall on PRODPC61 with RULES3 under CITES. Therefore, in general, international trade. Management office via Form 3-186A. wildlife hybrids of CITES species must One commenter expressed a need for While we are working with the regional be accompanied by a CITES document, a clear definition of when an exotic migratory bird offices to ensure quick issued by the Management Authority of specimen becomes domesticated. While and accurate exchange of information, the country of export or re-export. we recognize the possible value of this we have not developed a reliable means VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48422 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations to share data that are submitted by officials of both the exporting/re- (including parts, products, and permittees on Form 3-186A. As a result, exporting and the importing countries derivatives) was removed from the wild and because of the different records must inspect the wildlife and the or born or propagated in a controlled management systems for handling accompanying certificate, fraudulent environment before the first date that information submitted by permittees activity would be detected. We believe CITES applied to the specimen. This and different uses of the data, it is that this provides sufficient control of information also is needed for products necessary that both the Division of the trade in these specimens to (such as manufactured items) or Migratory Bird Management and the minimize illegal activities. derivatives subsequently made from U.S. Management Authority are notified One commenter stated that live such specimens. If the specific of deaths or transfers. Many CITES specimens should not be considered acquisition date is unknown or cannot ‘‘passports’’ are issued for bird species personal or household effects. We agree be proved, then the applicant should that are not covered by the MBTA, and and refer the commenter to the provide any subsequent and provable therefore would not require the definitions of these terms in § 23.5. The date on which the item was first submission of information to a Regional commenter also suggested that § possessed by a person. Migratory Bird Management office. We 23.44(d)(5) be amended to state that the Even antiques that are at least 100 require that all ‘‘passport’’ holders applicant ‘‘will not sell, donate, or years old that clearly qualify as pre- notify us of any change in the status of transfer the wildlife while traveling Convention must be accompanied by their personally owned live wildlife. internationally’’ instead of ‘‘does not pre-Convention documents. The general Two additional commenters intend to sell, donate, or transfer the import regulations for antiques under supported the issuance of ‘‘passports,’’ wildlife while traveling internationally’’ the ESA are found in 50 CFR part 14. but questioned the length of validity of and that this restriction should also be Except in rare situations, we do not such documents. Both commenters expanded to limit sale, donation, or require a person to show the sequential believed that certificates of ownership transfer within the applicant’s usual ownership of pre-Convention should be valid until the animal dies or country of residence. Section 23.44(d) specimens, including antiques. If a has been transferred. They stated that a lists criteria for the issuance and CITES species is also listed under the 3–year period of validity would create a acceptance of certificates of ownership ESA and does not qualify under the ESA burden on the permittee. The 3–year and indicates that an applicant must as an antique, we will ask for period of validity was agreed upon by provide sufficient information for us to information on whether the specimen the Parties and is specified in determine that he or she does not intend has been sold or offered for sale because Resolution Conf. 12.3 (Rev.CoP13). We to sell or otherwise transfer the wildlife an ESA species loses its pre-Act status therefore cannot issue these certificates while traveling internationally (§ when placed in commerce. for longer than 3 years. 23.44(d)(5)). Section 23.44(e) lists U.S. We no longer apply the definition of Two commenters believed that the standard conditions for certificates of pre-Convention to cell lines whose process for obtaining certificates of ownership, including § 23.44(e)(3), originating line was established prior to ownership and for moving animals which states that the certificate holder the listing date of the species. These cell across international borders should be ‘‘must not sell, donate, or transfer the lines are continually growing and cells simplified. In particular, the specimen while traveling are harvested from growing cultures. commenters stated that the movement of internationally.’’ Expansion of this Applicants who wish to export cell lines CITES pets across the U.S.-Canadian restriction to cover activities within an must comply with CITES requirements, border should not require clearance by applicant’s country of residence is and provide sufficient documentation of an FWS Wildlife Inspector, but should beyond the scope of CITES and these legal acquisition and the date when the be handled solely by CBP officials. regulations. cell line was established. Although most While we strive to minimize any Pre-Convention specimen (§ 23.45): cell lines do not qualify as pre- inconvenience at the port, this Under Article VII(2) of the Treaty, a Convention, they may qualify for other particular comment cannot be addressed specimen acquired before the provisions types of CITES exemption certificates. by these regulations. The clearance of CITES applied to the species is One commenter expressed concern process is addressed in 50 CFR 14, exempt from Articles III, IV, and V of that international trade will be restricted which is not being revised as part of this the Treaty when a Management if cell lines are not traded as pre- rulemaking. Authority issues a certificate. Resolution Convention specimens. The commenter Two commenters believed that the Conf. 13.6 provides guidance on also argued that our suggestion in the issuance of certificates of ownership, determining when a specimen is 2006 proposed rule (71 FR 20167) that particularly for raptors, would facilitate considered pre-Convention. One these specimens may qualify for trade the illegal movement of specimens that commenter supported the use of the under another CITES exemption were not obtained legally. They did not date on which the species was first document, such as a bred-in-captivity think that the process under which listed in the Appendices to determine certificate, would be confusing because these certificates are issued would allow the pre-Convention status of a it differs from the interpretation of other for adequate control of specimens, specimen, as recommended in the authorities. As discussed previously, the particularly of Appendix-I species, since resolution. We define the term ‘‘pre- pre-Convention status applies to a only the exporting country needs to Convention’’ in § 23.5 and clarify in this specimen that was removed from the issue a certificate. The applicant must section the general provisions that apply wild or born or propagated in a provide adequate documentation to to the acceptance and issuance of pre- controlled environment before the first show that the specimen was legally Convention documents. date that CITES applied to the obtained before a certificate of The pre-Convention status applies to specimen. Cell lines that are continually ownership can be issued. In addition, the specimen, not to when it was growing and being harvested would ebenthall on PRODPC61 with RULES3 when applying for a certificate of possessed by the current owner. Before therefore not qualify for a pre- ownership, the applicant must confirm we can issue a pre-Convention Convention certificate. We believe that that he or she does not intend to sell or certificate, the applicant must provide this is an accurate interpretation of the transfer the specimen while outside of sufficient information for us to Treaty requirements and disagree that it the United States. Finally, since border determine that the wildlife or plant will result in a restriction of trade. VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48423 Based on our experience with this trade, ongoing discussion among CITES Migratory Bird Treaty Act permits). we do not believe that shipping cell Parties about which facilities should be However, under Article III(3)(c), wild lines under another type of CITES registered, the conservation value of stock may not be imported to augment document, other than a pre-Convention registration, and obstacles to the captive population of a registered certificate, will be problematic for registration. In addition, the commenter commercial breeding operation, and we foreign CITES authorities or that it will noted the refusal of the European Union therefore decline to make a change create difficulties for the industry. to implement the registration based on this suggestion. We have Registration of commercial breeding requirement. Another commenter amended § 23.46(d)(4) to clarify that, operations for Appendix-I species (§ opposed our implementation of where the establishment of a 23.46): Article VII(4) of the Treaty Resolution Conf. 12.10 (Rev. CoP13) commercial breeding operation for provides that specimens of Appendix-I because it would weaken the protection Appendix-I wildlife involves the species bred for commercial purposes of Appendix-I species. The United removal of animals from the wild, it will be deemed to be specimens of States has always supported the may only be allowed under exceptional species included in Appendix II for registration system and worked with circumstances and only for native CITES document requirements. A other Parties to craft the current species. Management Authority may grant an language in the resolution. We recognize Three commenters opposed our export permit or a re-export certificate that certain Appendix-I species are decision not to publish the receipt of an without requiring the prior issuance of widely bred in captivity to the second application to register commercial an import permit, thus allowing generation without the addition of wild breeding operations for Appendix-I specimens that originate in a CITES- stock. The registration system species in the Federal Register, which registered breeding operation to be encourages the captive breeding of would allow the public to comment. traded commercially. The specimens are Appendix-I species, discourages take of Another commenter suggested we still listed in Appendix I and are not specimens from the wild, may provide publish the first application received for eligible for any exemption granted to an conservation benefits, and is the only a species. As described in the 2006 Appendix-II species or taxon, such as mechanism by which such species can proposed rule (71 FR 20167), there is no less restrictive provisions for personal be traded commercially. legal requirement to obtain public and household effects. Several commenters argued that small comments on CITES applications, we The Parties recognize the potential falcon breeders should not be required make determinations on whether abuse inherent in this exemption to register. The Parties agreed, in specimens qualify as bred in captivity because it is difficult for inspectors to Resolution Conf. 12.10 (Rev. CoP13), for other CITES documents without distinguish between specimens bred in that the exemption in Article VII(4) obtaining public comments, and further captivity and those removed from the should be implemented through the review is conducted by the CITES wild. They also recognize that captive registration of operations breeding Secretariat and the CITES Parties. breeding for both commercial and Appendix-I species for commercial Publication in the Federal Register conservation purposes is increasing. purposes. Therefore, any breeding would result in delays in the These regulations implement Resolution operation, regardless of size, that wishes registration process. Once the Conf. 12.10 (Rev. CoP13) and establish to qualify for the exemption and engage Secretariat makes the application application procedures to allow an in commercial international trade of available, the Parties have 90 days in operation to become registered for each Appendix-I species, must be registered. which to comment. Thus, even without Appendix-I species maintained at the One commenter suggested that § a public comment period within the operation. The registration criteria 23.46(d)(7) should include ‘‘in the wild’’ United States, registration of an include whether the species qualifies as or ‘‘in situ’’ at the end of the sentence operation may take a minimum of bred in captivity (see § 23.63). to clarify that any breeding operation for several months. We acknowledge that Appendix-I wildlife from a registered Appendix-I species should benefit in members of the public will not have an breeding operation can be exported with situ conservation. We decline to adopt opportunity to comment on the an export permit under Article IV of the this suggestion because we believe that applications. However, we will consult Treaty. An import permit is not both in situ and ex situ activities can outside experts if necessary, and we required, and specimens can be used for contribute to improving the believe that the evaluation by the FWS, primarily commercial purposes. To conservation status of wild populations. the Secretariat, and the Parties is date, very few U.S. operations have The commenter also requested that we sufficient to make a determination as to chosen to complete the process of list guidelines or provide examples of whether an operation qualifies to be registering. Most U.S. commercial appropriate conservation activities. We registered. breeders are applying for permits under have not included a list because One commenter expressed concern Article III of the Treaty. We will issue meaningful conservation activities will that registered captive-breeding permits under Article III only in vary by taxon. operations could be used to launder exceptional circumstances. This reflects Several commenters urged us to illegal specimens and that the Service the intent of CITES to prohibit trade in amend § 23.46(b)(12) to permit the take should develop strict regulations for Appendix-I specimens for primarily of wild breeding stock of Appendix-I identifying specimens bred at a commercial purposes when they do not birds by registered facilities to augment registered operation. We believe that the qualify for an exemption to allow it. the captive population, as provided for criteria and oversight provided in § Thus, we encourage breeders to register in § 23.63 for noncommercial breeders. 23.46 and the marking requirements in their operations if they plan to trade in These birds would be used for § 23.56(a)(4) minimize the potential for Appendix-I specimens internationally maintaining genetic diversity and laundering and appropriately (see discussion in the preamble for § providing birds for conservation efforts, implement Resolution Conf. 12.10 (Rev. ebenthall on PRODPC61 with RULES3 23.18). such as State reintroduction programs CoP13). One commenter opposed the for peregrine falcons (Falco peregrinus). Exporting Appendix-I plants registration requirement for commercial In the United States, take of wild commercially (§ 23.47): The Parties captive-breeding operations for specimens may be authorized with recognize that the artificial propagation Appendix-I species because of the appropriate permits (e.g., State permits, of plants is essentially different from VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48424 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations captive breeding of wildlife and requires Resolution Conf. 11.15 (Rev. CoP12) philosophically opposed to the use of a different approach. Artificial recommends that Parties encourage CITES species by a scientific institution propagation of native plants can provide their natural history museums and for research, but supported the an economic alternative to traditional herbaria to inventory their holdings of statement that CITES specimens agriculture in countries of origin. By rare and endangered species. This obtained by scientific institutions making specimens readily available, recommendation allows researchers to cannot be used for commercial artificial propagation may have a efficiently borrow specimens for study purposes. Both commenters supported positive effect on the conservation of and reduce any potential adverse the requirement that specimens be wild populations by reducing pressure impacts that museum needs for research permanently recorded as being part of from collection, provided the parental specimens can have on small an institution’s collection but not stock was legally obtained in a non- populations of rare wildlife and plants. necessarily formally acquisitioned by detrimental manner. This section incorporates the the sending institution. However, the Article VII(4) of the Treaty provides standards in the resolution for commenters expressed concern that the that specimens of Appendix-I plants registration of scientific institutions. A requirement that Appendix-I specimens artificially propagated for commercial scientist who wishes to use this be centrally and permanently housed purposes will be deemed to be exemption must be affiliated with a means that the specimens must be kept specimens of species included in registered scientific institution. segregated from other specimens in the Appendix II for CITES document Specimens are to be acquired primarily institution’s collection and would requirements. Just as for wildlife in the for research that is to be reported in preclude the donation of such previous section, this means that a scientific publications, and no CITES specimens to other institutions. We Management Authority may grant an specimens obtained through the use of interpret this requirement to mean that export permit without requiring the this exemption may be used for Appendix-I specimens are to be prior issuance of an import permit. The commercial purposes. We clarify that maintained in a way that they will not specimens are still listed in Appendix I, offspring (i.e., cuttings, seeds, or be used in a manner incompatible with and they are not eligible for any propagules) may not be commercialized, the principles of CITES. Appendix-I exemption granted to an Appendix-II including sale through a catalog or as a specimens do not need to be separated species or taxon. fund-raising effort, because the from the rest of the collection provided Two commenters thought that a registration is for scientific purposes that they are incorporated into the registration system should be provided only. institution’s record system. They may for facilities that propagate Appendix-I Biological samples, including blood reside anywhere that is under the plants, similar to the registration system and tissue samples of preserved, frozen, control of the registered scientific for wildlife. This issue was addressed in dried, or embedded museum samples, institution. This may include field the 2006 proposed rule (71 FR 20167). herbarium specimens, or live plant stations, offsite storage facilities, or Although we recognize that there may material, that will be destroyed during other facilities managed by the be some advantages to developing a analysis will be eligible for this institution. As noted in the 2006 registration process, we have not exemption provided a portion of the proposed rule (71 FR 20167), a incorporated such a process into the sample is maintained and permanently specimen could be donated to another regulations due to the complex issues recorded at a registered institution for registered institution provided a record resulting from the decentralized system future scientific reference. Because not of the transaction is maintained. of regulating nurseries in the United all countries recognize these types of Both commenters supported allowing States. Instead, we have reserved § samples as being eligible to be traded the use of samples or subsamples from 23.47(e) for nursery registration, because under this exemption, registered specimens that are maintained by we will need to work with nurseries, scientific institutions should check with registered institutions. One commenter other State and Federal regulators, and the foreign Management Authority was concerned that exchange of such the interested public to develop before shipping such specimens under a samples could be inhibited by other regulations. scientific exchange certificate. countries’ Management Authorities. We We continue to implement Article All specimens for which the agree that this is a possibility and VII(4) of the Convention by reviewing a exemption is being claimed must have recommend that foreign Management nursery’s facilities during the been legally acquired. The specimens Authorities be consulted prior to application process and issuing CITES must have been permanently recorded shipment. The other commenter export permits with a source code ‘‘D.’’ by the sending registered institution suggested that we add a definition of This type of export permit indicates to before being shipped for exchange, ‘‘sample.’’ We do not think such a other Parties that we have treated the donation, or loan for scientific research definition is necessary as the meaning of nurseries as propagating Appendix-I purposes. The Parties were concerned this term is commonly understood. plants for commercial purposes. No about possible abuse of the exemption Traveling exhibitions (§ 23.49): import permit is required under CITES by scientists who might collect Article VII(7) of the Treaty allows for for the trade of these specimens. specimens and directly export them the international movement without Registered scientific institutions (§ without the permission of a registered CITES certificates of pre-Convention, 23.48): Article VII(6) of the Treaty institution in the exporting country. bred in captivity, or artificially provides an exemption from strict Thus, the registration criteria require the propagated specimens that are part of a CITES controls for preserved, dried, or orderly handling and permanent traveling zoo, circus, menagerie, plant embedded museum specimens, recording of specimens, including the exhibition, or other traveling exhibition. herbarium specimens, and live plant maintenance of permanent records for The exhibition must register each materials that carry an approved label. loans and transfers of specimens to specimen with its Management ebenthall on PRODPC61 with RULES3 The exemption covers the other institutions. In addition, scientists Authority, and live specimens must be noncommercial loan, donation, or may still need permits under other parts transported and cared for humanely. In exchange of these items between of this subchapter (see § 23.3). Resolution Conf. 8.16, the Parties agreed scientific institutions registered by each We received two comments on this to require traveling live-animal country’s Management Authority. section. One commenter was exhibitions to be accompanied by CITES VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48425 certificates to verify such registration, that it will streamline the permitting plants in this section and requiring that address technical problems, and prevent process and result in smoother border any animal covered by a traveling- potential fraud. At CoP12, the Parties crossings and more reliable exhibition certificate also have a health agreed to extend these provisions to all recordkeeping. Another commenter certificate issued by a licensed traveling exhibitions, not just traveling strongly supported the requirement that veterinarian. Section 23.23(c)(7) live-animal exhibitions. We describe the cross-border movement authorized requires that transport conditions for provisions for traveling exhibitions in under a traveling-exhibition certificate live animals comply with the this section and define the term may not be for any purpose other than CITES’Guidelines for transport and ‘‘traveling exhibition’’ in § 23.5. exhibition and the requirements in § preparation for shipment of live wild A traveling-exhibition certificate acts 23.49(d)(6) regarding marking. animals and plants or, for air transport, like a passport. The exhibitor (i.e., the Another commenter requested that with IATA LAR. We do not believe it is entity responsible for the specimens in this section be amended to allow the use necessary to repeat those requirements a traveling exhibition) must obtain a of traveling- exhibition certificates for here. The issuance of health certificates separate certificate for each live animal. activities other than exhibition, is beyond the scope of these regulations, In the 2006 proposed rule (71 FR including research and conservation of but we note that § 23.3 informs the 20167), we specified that the certificate museum specimens. We decline to make public that in addition to the could only be issued to an exhibitor a change based on this suggestion. requirements in part 23, they may also who owns the specimens. Based on Article VII(7) provides an exemption for need to comply with other Federal, comments received, we have revised our traveling exhibitions and the Parties State, tribal, or local requirements. definition and the language in this agreed in Resolution Conf. 12.3 (Rev. The same commenter suggested that section to indicate that the entity CoP13) that traveling-exhibition we ‘‘explicitly require’’ the exhibitor to responsible for the specimens in a certificates should be issued ‘‘for return with the same number of traveling exhibition may obtain the exhibition purposes only.’’ Article VII specimens as originally exported, that certificate. The exhibitor of live plants providesother exemptions and special the specimens be microchipped, and or dead parts, products, or derivatives provisions that may be appropriately that the exhibitor provide the necessary may be issued a certificate with an used for other purposes, including equipment to read the chips. Section inventory for all the specimens in the international transport of museum 23.49(e) requires that an entity may not exhibition. The exhibitor retains the specimens and specimens for research. sell or otherwise transfer a specimen original certificate, which must be The same commenter stated that it covered by a traveling-exhibition validated at each border crossing. We was not always clear who should obtain certificate while traveling include a number of conditions to the traveling- exhibition certificate, internationally. We do not believe that ensure that these certificates are used particularly when a specimen is loaned we need to require that all specimens be only for temporary cross-border for an exhibition hosted by one or more microchipped because the regulations as movement by the exhibitor. A certificate institutions, rather than by the owner of written provide sufficient means for may not be transferred to another the specimen, and suggested that the border officials to ensure that each exhibitor, and specimens cannot be sold certificate should be issued to the owner specimen exported or imported is the or otherwise transferred when traveling of the specimen rather than to the specimen indicated on the certificate. abroad. Specimens can be transported traveling exhibition. The resolution Sample collections § 23.50: At CoP13, internationally only for temporary specifies that the certificate be issued in an effort to address the international display activities, not for breeding, for specimens that are part of a traveling movement of display samples, such as propagating, or other purposes, and the exhibition; it does not specify that the sets of shoes or reptile skin samples, the specimens must return to the country in owners of the specimens must receive Parties defined such shipments as which the exhibition is based before the the certificates. Since there must be an sample collections and agreed to allow exhibition certificate expires. entity responsible for the traveling the in-transit shipment of these Many specimens covered by this exhibition and its specimens, a collections under specific conditions. exemption are listed in Appendix I. We certificate is issued to that entity, which Management Authorities could issue a require under the general conditions we refer to as the ‘‘exhibitor.’’ We have CITES document that would allow the (see § 23.56(a)(4)) that all live amended § 23.49 to clarify that it is the shipment to move from one country to Appendix-I specimens must be securely exhibitor who must obtain the another before returning to the marked or uniquely identified in a way certificate and to ensure that the terms originating country, rather than that border officials can verify that the ‘‘exhibitor,’’ ‘‘traveling exhibition,’’ and requiring the issuance of a re-export specimen and CITES document ‘‘exhibition’’ are used consistently. We certificate from each country visited. correspond. To ensure that each likewise revised the definition of Such a CITES document must be specimen exported or imported is the ‘‘traveling exhibition’’ in § 23.5 so that accompanied by a valid ATA carnet. specimen indicated on the certificate, it corresponds more precisely to use of The ATA carnet is an international we recommend that Appendix-II and -III the term in this section. customs document that allows the specimens also be clearly identified The same commenter believed the temporary introduction of goods and, if appropriate, uniquely marked. word ‘‘frequent’’ should be deleted from destined for fairs, shows, exhibitions, Tattoos, microchips, tags, or other marks the criteria for issuance and acceptance and other events. One commenter may be used. If a microchip is used, we of traveling-exhibition certificates as it supported the provisions allowing the may, if necessary, ask the importer, is not required by Resolution Conf. 12.3 movement of merchandise subject to exporter, or re-exporter to have (Rev. CoP13). We agree and have CITES regulations on an ATA carnet. equipment on hand to read the amended § 23.49(d)(1) accordingly. The CITES document must list the microchip at the time of import, export, Another commenter suggested that we same specimens that the accompanying ebenthall on PRODPC61 with RULES3 or re-export. strengthen the requirement for humane ATA carnet lists and must include the We received four comments on this transport by including a reference to number of the ATA carnet on its face. section. One commenter welcomed the IATA LAR and the CITES’ Guidelines The CITES document can only be valid incorporation of the traveling-exhibition for transport and preparation for for the same length of time as the ATA certificate into the regulations, stating shipment of live wild animals and carnet or 6 months, whichever is VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48426 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations shorter, and the shipment must return to specimens due to concern that wild- country to assess the circumstances the originating country prior to the caught live animals could be mislabeled surrounding a lost, damaged, stolen, or expiration of the CITES document. None and shipped fraudulently as captive- accidentally destroyed CITES of the specimens within the sample bred animals. Further, the commenter document. Then, the exporter or re- collection may be sold, donated, or suggested that such documents should exporter should contact the transferred while outside the originating not be used for animals in traveling Management Authority in that country country. The CITES document must be exhibitions. We did not adopt these concerning replacement documents, and presented at border crossings, but only suggestions. Partially completed the Management Authority will contact the ATA carnet must be stamped and documents are issued for specific taxa us directly. signed at each intermediary border and specific types of specimens. The Although the U.S. CITES document crossing by customs officials. At the permittee is authorized to fill in the states in block 15 that it is ‘‘valid only time of first export or re-export and at destination and, in the case of with inspecting official’s ORIGINAL re-import, the originating Party is to specimens from an approved-taxa list, stamp, signature and date in this block,’’ check the CITES document and sample the quantity of specimens in the we will not validate U.S. replacement collection closely to ensure that the shipment and an inventory page. documents for shipments that have collection was not changed. For import The other commenter requested that already left the United States because into and export or re-export from the we consider the use of partially we cannot compare the actual shipment United States, the shipment must completed documents for import of contents to the document. Instead, we comply with the FWS requirements for scientific specimens that were removed will issue a replacement document only wildlife in part 14 of this subchapter from the wild under the authority of the for the quantity that was originally and APHIS/CBP requirements for plants exporting government’s wildlife exported as shown on a cleared copy of in part 24 of this subchapter and 7 CFR management offices. The regulations as the FWS Wildlife Declaration (Form 3- parts 319, 355, and 356. written allow us to issue and accept 177) or a copy of the validated CITES Partially completed CITES documents documents issued under the provisions document for plants, and include a (§ 23.51): Under Article VIII(3) of the of this section for wild-collected condition on the document describing Treaty, Parties are to ensure that CITES scientific specimens in limited this policy so the importing country can specimens are traded with a minimum situations. accept it as valid. of delay. At CoP12, the Parties agreed to Replacement documents (§ 23.52): We One commenter requested that we issue partially completed documents adopted the provisions of Resolution allow copies of the stamped original when the permitted trade would have a Conf. 12.3 (Rev. CoP13) on replacing CITES document and the FWS Wildlife negligible impact or no impact on the documents that are lost, damaged, Declaration (Form 3-177) to be used for conservation of the species (see stolen, or accidentally destroyed. We clearance purposes when documents are Resolution Conf. 12.3 (Rev. CoP13)). clarify when replacement documents misplaced at the port after declarations The permittee would be authorized to may be available and how to request have been submitted to the FWS. We complete specifically identified boxes them. One of the issuance criteria decline to address this request since the on the document and would be required requires a full and reasonable provision proposed by the commenter is to sign the document to certify that the explanation of the circumstances under outside the scope of these regulations information entered is true and correct. which the CITES document was lost, and has already been addressed through We implement these procedures and damaged, stolen, or accidentally changes in port procedures. issue single-use documents that are destroyed. We will also check to see if Retrospective documents (§ 23.53): A partially completed under specific the exporter has requested a retrospective document authorizes an circumstances for exports that are replacement document before and export or re-export after that activity has repetitive in nature (i.e., when the same review the circumstances surrounding occurred, but before the shipment is types of specimens or the same any previous request. cleared for import. A shipment must be specimens are exported shipment after A replacement document must cleared when it first arrives at the port shipment). indicate on its face the reason the of import. At that time, we, APHIS, or An applicant should submit the document was replaced. Since we CBP inspect the paperwork to see that appropriate application form for the sometimes receive a replacement it meets the requirements of CITES. The proposed activity (see §§ 23.18–23.20) document that does not provide this request for a retrospective document and show that the use of this type of information, we may verify the validity needs to be made at the time the document is beneficial and appropriate. of such a document with the issuing specimens arrive at the port and are Upon review of the application, if Management Authority before deciding available for inspection. appropriate, we will create a master file if we will accept the document as a Resolution Conf. 12.3 (Rev. CoP13) or annual program file for native species valid replacement. It is important that recommends that a Party neither issue that contains all of the relevant we issue and accept replacement nor accept retrospective documents, but information about the proposed activity. documents only when the recognizes that there may be some We will issue single-use partially circumstances warrant doing so and that limited exceptions. This section allows completed documents based on the issuance of such documents prevents for the issuance and acceptance of master file or annual program file when the use of the original CITES document retrospective documents based on the we find that the issuance criteria for the for a different shipment. resolution. We generally limit issuance proposed activity and the issuance When a replacement document is of retrospective documents to criteria for a partially completed requested after a commercial shipment noncommercial items and, even then, document are met. has left the United States, we will only in certain prescribed We received two comments on this consult with the Management Authority circumstances, which are clarified in ebenthall on PRODPC61 with RULES3 section. While both commenters of the importing country. When a this section. Management Authorities of generally supported the concept of replacement document is needed for a both the exporting or re-exporting and partially completed documents, one shipment that arrives in the United the importing countries must be suggested limiting the use of such States, the importer should contact the satisfied either that any irregularities documents to pre-Convention exporter or re-exporter in the foreign that have occurred are not attributable VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48427 to the exporter or re-exporter or the Several commenters supported the regarding the issuance process and what importer, or, in the case of items for general concept and appreciated the kind of information an applicant would personal use, that evidence indicates a recognition that there are circumstances need to provide to obtain a retrospective genuine error was made and there was when issuance of retrospective document. We refer the commenters to no attempt to deceive. Thus, before a documents is warranted. Two other the discussion on this section in the retrospective document can be issued, commenters were opposed to the 2006 proposed rule (71 FR 20167). the exporter or re-exporter or importer issuance of retrospective documents One commenter incorrectly stated that must demonstrate either that he or she except to ensure humane treatment of the provisions in this section would was misinformed by an official who live specimens. While we agree that ‘‘absolutely eliminate’’ any possibility should have known the CITES issuance of retrospective documents for a hunter to receive a retrospective requirements (in the United States, an should be very limited, we believe it is permit if he or she had ever received a employee of the FWS for any species, or warranted under the specific CITES permit before. While we APHIS or CBP for plants; or in a foreign circumstances described in § 23.53. generally will not issue a retrospective country, an employee of the Two commenters asked document to an individual who has Management Authority or CITES howshipments are treated pending received CITES documents in the past, inspection authorities), or that the review of the circumstances to we recognize that there may be issuing Management Authority made a determine whether a retrospective situations where the importer or technical error on the CITES document permit can be issued. These exporter was not responsible for that was not prompted by the applicant. determinations are made by our whatever irregularity occurred and may An additional provision limited to enforcement officials on a case-by-case therefore qualify for a retrospective individuals exporting or re-exporting basis. We refer the commenters to the document (see § 23.53(b)(7)). certain specimens for personal use general import/export requirements for Period of document validity (§ 23.54): allows them to demonstrate that they wildlife in part 14 of this subchapter Article VI(2) of the Treaty states that an made a genuine error and did not and the requirements for plants in part export permit can be valid only for a attempt to deceive. 24 of this subchapter and 7 CFR parts period of 6 months from the date of 319, 355, and 356. issuance. Resolution Conf. 12.3 (Rev. The Parties intended for this One commenter asked why we CoP13) specifies the period of validity provision to be used rarely and only limited the issuance of retrospective for re-export certificates (6 months), under very narrow circumstances. The permits for Appendix-I specimens to import permits (12 months), certificates exporter is responsible for obtaining certain shipments for personal use. The of origin (12 months), and traveling CITES documents before making a Parties have agreed that Appendix-I exhibitions (3 years). Resolution Conf. shipment and for inspecting the CITES specimens must be subject to 10.20 recommends that certificates of documents to ensure the key particularly strict regulation and that ownership be valid for no more than 3 information on the face of the permit, trade in these specimens should be years. such as quantity and species, match authorized only in ‘‘exceptional This section incorporates the what was requested and what is in the circumstances.’’ As stated in the 2006 recommended periods of validity shipment. The provisions for proposed rule (71 FR 20167), we expect established in the Treaty and the retrospective documents are not to help commercial traders to know the laws resolutions. We also set the term for an resolve an enforcement issue, but to that apply to their business, including introduction-from-the-sea certificate at resolve a mistake by the government or CITES requirements, and to carefully 12 months since the activity is similar a genuine error made by a person inspect their documents for technical to import. All CITES documents must exporting or re-exporting specimens for errors. Consequently, we limit the specify the period of validity. All import their personal use. issuance of retrospective permits for and introduction-from-the-sea activities We recognize that in some countries Appendix-I specimens to certain pre- must be completed by midnight (local customs officials inspect and clear Convention Appendix-I specimens for time at the point of import) of the CITES shipments on behalf of the personal use that meet the requirements expiration date indicated on the Management Authority, and we will in § 23.53(d)(7). Another commenter document. The only situation where an consider that in making a decision. In suggested that we add to the rule the extension of the period of validity is the United States, however, although language from the preamble stating that authorized is for certain timber species CBP officials have the authority under we expect commercial importers and under limited circumstances (see § the ESA to enforce CITES, they are not exporters to know the law. We decline 23.73). generally responsible for the clearance to adopt this suggestion because we Several commenters suggested that of CITES wildlife or live plant believe that § 23.53(b)(7) adequately the periods of validity specified in this shipments except for live plants being describes that expectation. section for permits and certificates are imported from Canada (see § 23.7(e)). Another commenter suggested that we too short. Another stated that the period We will issue a retrospective clarify that the provision restricting sale of validity for traveling-exhibition document only if the Management of specimens within 6 months following certificates is too long. One commenter Authority of the importing country import under a retrospective document acknowledged that the periods of agrees to accept it. The provision (§ 23.53(b)(5)(iii)) applies only to validity for CITES documents are set out applies not only to the issuance of Appendix-II and –III species. We in the Treaty and in Resolution Conf. retrospective documents, but to the decline to adopt this suggestion. The 12.3 (Rev. CoP13), but urged us to ask acceptance of such documents. We note restriction on sale applies only to the Parties to revisit this issue. We that a number of CITES countries specimens imported for personal use believe the established timeframes are interpret this provision more strictly and therefore may apply to a pre- reasonable for the activities permitted, ebenthall on PRODPC61 with RULES3 than the United States, and travelers Convention Appendix-I specimen under and we do not believe it is appropriate may not qualify for a retrospective certain circumstances (see § to amend the Treaty or necessary to document for specimens, especially live 23.53(d)(7)). amend the resolutions in this regard. wildlife or plants, taken with them to Two commenters requested Another commenter believed that the these countries. clarification and additional details use of the phrase ‘‘no longer than...’’ in VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48428 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations § 23.54(b) to describe the period of important means of conserving these Nothing in the language of the validity of CITES documents creates species. One of these commenters was Convention requiring the finding that uncertainty for the regulated public. The concerned, however, that there is no the specimen ‘‘is not to be used for commenter requested that the section be mechanism, such as a reporting primarily commercial purposes’’ amended to state that a document is requirement, by which the FWS will indicates that this examination is valid for 6 months, 3 years, etc., as track use of specimens over time. We limited to the immediate use by the appropriate, unless the FWS places a have decided against adding any type of importer. As we indicated in the 2006 special condition on the document to periodic reporting requirement on proposed rule (71 FR 20167), the address some unusual circumstance. In subsequent use of imported specimens. commercialization of Appendix-I general, we issue CITES documents for The regulations are clear, however, that specimens following import can result the maximum period of validity allowed such specimens may be used only for in further demand, which is contrary to for the activity. We did not adopt the noncommercial purposes, and any use the intent of allowing trade in commenter’s suggestion because § 23.54 inconsistent with this standard would Appendix-I specimens only under provides the maximum period of be a violation of the regulations. As ‘‘exceptional circumstances.’’ validity for a CITES document, but a noted in the 2006 proposed rule (71 FR Appendix-II species that are annotated document may be issued for a shorter 20167), the FWS will investigate any to allow trade only for noncommercial period of time. situation for which we receive purposes face similar commercial Use of CITES specimens after import information that such an imported pressures. We can only determine that (§ 23.55): Unless an Appendix-I wildlife specimen is being commercialized. the use will not be for ‘‘primarily or plant specimen qualifies for an The same commenter expressed commercial purposes’’ when we know exemption under Article VII of the confusion over statements in the 2006 that the specimen will not be Treaty, it can be imported only when proposed rule (71 FR 20167) that certain subsequently used for economic gain or the intended use is not for primarily specimens may only be imported when benefit. commercial purposes. In addition, the they are not to be used for primarily One commenter disagreed with the Parties addressed subsequent use of commercial purposes and that such provisions in paragraph (d) of the table certain Appendix-I sport-hunted specimens may be used only for that allow for any use with certain types trophies by recommending that the noncommercial purposes. This of Appendix-I specimens and trophies be ‘‘imported as personal items commenter asked for clarification for questioned how concerns regarding that will not be sold in the country of what appeared to be two different commercialization of Appendix-I import’’ (Resolution Conf. 10.14 (Rev. standards. species will not be realized if CoP13) for leopard, Resolution Conf. Prior to importation of an Appendix- commercial use of such specimens is 10.15 (Rev. CoP12) for markhor, and I specimen, the Management Authority not prohibited. All of the situations Resolution Conf. 13.5 for black must be satisfied that the specimen is listed under § 23.55(d) represent rhinoceros). not to be used for primarily commercial provisions under Article VII of the This section provides conditions for purposes. We cannot make a finding of Convention that provide exemptions the import and subsequent use of not for primarily commercial purposes from the requirements otherwise certain CITES specimens. The import if the specimen could be imposed for Appendix-I species under and subsequent use of Appendix-I commercialized following import. Article III. These exemptions represent specimens and certain Appendix-II Therefore, this section is clear that any situations in which the Parties have specimens, including transfer, donation, subsequent use of such specimens must found that commercialization, or the or exchange, may be only for be noncommercial. potential for commercialization, of noncommercial purposes. Such imports One commenter argued that certain types of specimens does not are conditioned that the specimen and provisions in this section would prevent pose a threat to species whose trade all its parts, products, and derivatives future donations of specimens for must otherwise be limited to may not be imported and subsequently educational purposes. As explained in noncommercial uses. used for any commercial purpose. Other the 2006 proposed rule (71 FR 20167), CITES document conditions (§ 23.56): Appendix-II specimens and any certain specimens may only be imported General conditions apply to all CITES Appendix-III specimen may be used for when the use is not for primarily documents, standard conditions apply any purpose after import, unless the commercial purposes. Thus, any to specific types of documents, and trade allowed under CITES is only for subsequent use may be only for special conditions may be placed on a noncommercial purposes. noncommercial purposes. Nothing in CITES document when the authorized Section 9(c)(1) of the ESA, which the section prevents a person from activity warrants it. All CITES contains a prohibition on illegally donating or transferring an Appendix-I document conditions must be met for a traded specimens, confirms that the specimen or a specimen of a species shipment to be lawful. FWS’s regulatory responsibility does not listed in Appendix-II with an annotation Resolution Conf. 8.13 (Rev.) end at import. The commercialization of prohibiting commercial trade. These recommends that Parties, where Appendix-I specimens can result in specimens can still be donated, possible and appropriate, adopt the use further demand, which is contrary to the consistent with any other requirements of microchip transponders for the secure intent of allowing limited import of of law, as long as there is no economic identification of live Appendix-I Appendix-I specimens. We note that the use, gain, or benefit by either the person wildlife. Because the Parties have condition does not apply to specimens, or institution receiving the donation or identified a number of technical issues such as artificially propagated orchids, the person making the donation. (See that need to be addressed, we are not that are traded under a CITES Article also the discussion in the preamble requiring that all Appendix-I wildlife be VII exemption. under § 23.5 on the definition of marked with microchips. We do require, ebenthall on PRODPC61 with RULES3 Two commenters supported the ‘‘commercial.’’) however, that all live Appendix-I restriction on subsequent use of most Another commenter argued that it is wildlife be securely marked or uniquely imported Appendix-I species and only the purpose of the import at the identified. If a microchip is used, we Appendix-II species with an annotation time of import that is regulated by may, if necessary, ask the importer, prohibiting commercial trade as an CITES and any later use is irrelevant. exporter, or re-exporter to have VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48429 equipment on hand to read the making a legal acquisition finding, we than opening a loophole for laundering microchip at the time of import, export, may also consult with foreign illegally obtained specimens, will assist or re-export. One commenter supported Management and Scientific Authorities, in the suitable placement of specimens the requirement that Appendix-I the CITES Secretariat, other U.S. without leading to illegal or unjustified specimens be securely marked or governmental agencies, and removal of wildlife and plants from the uniquely identified. nongovernmental experts. wild. We emphasize that this provision We hold persons who conduct is only for limited, noncommercial What Are the Changes to Subpart D of commercial activities involving international trade in CITES species. 50 CFR Part 23—Factors Considered in protected wildlife and plants to a high We received over 40 comments on Making Certain Findings? standard in understanding and this section, all of which were Legal acquisition (§ 23.60): Under complying with the requirements of the supportive. One commenter was Articles III, IV, and V of the Treaty, we laws that affect their activities. We concerned about how we would obtain must make a legal acquisition finding apply a lower information requirement, data on the volume of illegal trade since before issuing export permits and re- in most instances, for a person who there is no centralized source of data on export certificates for Appendix-I, -II, acquires a specimen in the United States all illegal trade. It is true that there is and -III wildlife and plants. The Parties and wants to travel internationally with not a single, central source of illegal have also agreed through a number of it for personal use. One commenter trade data, but we do have the ability, resolutions to make this finding before disagreed with this approach and stated through consultation with other Parties, issuing certain exemption documents that all trade, whether commercial or the CITES Secretariat, nongovernmental under Article VII of the Treaty. These noncommercial, should be subject to the organizations, and law enforcement include Resolutions Conf. 10.16 (Rev.) same level of scrutiny. We believe this agencies to obtain data on illegal trade. and 12.10 (Rev. CoP13) on wildlife bred system for individuals traveling It is through the review of these data in captivity; Conf. 9.19 (Rev. CoP13) and internationally with their personal items that we are able to make a determination 11.11 (Rev. CoP13) on artificially or personally owned live wildlife is on the presumed level of illegal trade in propagated plants; Conf. 10.20 on appropriate for the limited number of CITES species. personally owned live wildlife; and specimens involved, for the low We removed ‘‘volume of legal trade’’ Conf. 11.15 (Rev. CoP12) on scientific conservation risk posed. We will, from the list of factors in § 23.60(d)(5) exchange. however, request additional information because the risk associated with the There are two types of legal when noncommercial trade in a volume of legal trade is not a continuum acquisition determinations: (a) whether particular species raises greater but rather must be considered on a case- a specimen and its parental stock were conservation concern. by-case basis when making a legal traded internationally under the For the export of specimens that are acquisition finding. provisions of CITES and (b) whether bred in captivity or artificially Non-detriment findings (§ 23.61): they were acquired consistent with propagated in the United States, we Under Articles III and IV of the Treaty relevant laws for the protection of consider whether the breeding stock or and Resolution Conf. 10.3 we must wildlife and plants. In the United States, cultivated parental stock was make a non-detriment finding before these laws include all applicable local, established under the provisions of issuing export permits and introduction- State, Federal, tribal, and foreign laws. CITES and relevant national laws from-the-sea certificates for Appendix-I We make the legal acquisition finding according to Resolutions Conf. 10.16 and-II wildlife and plants and import on a case-by-case basis considering a (Rev.) and 11.11 (Rev. CoP13). In permits for Appendix-I wildlife and number of general and specific factors addition, for the registration of plants. This section explains how the (see the preamble to Subpart E for a Appendix-I commercial breeding U.S. Scientific Authority makes its non- discussion of legal acquisition for State operations or nurseries, Resolutions detriment findings. or tribal programs). General factors Conf. 12.10 (Rev. CoP13) and 9.19 (Rev. We identify several factors that we include the status of the species; CoP13) require that a Management consider in making a non-detriment whether the specimen was cultivated Authority demonstrate that the parental finding. These factors include whether from exempt plant material, is a hybrid, stock was legally acquired. We defined the activity represents sustainable use or or was bred in captivity or artificially the terms ‘‘parental stock,’’ ‘‘breeding would result in net harm to the status propagated; whether the species is stock,’’ and ‘‘cultivated parental stock’’ of the species in the wild. We believe common in a captivity or cultivation in (see §§ 23.5, 23.63, and that ‘‘no net harm’’ is appropriate the United States and has been 23.64,respectively). because the finding required by CITES documented to breed or propagate We also allow the export of donated is whether a proposed activity will be readily in a controlled environment; and CITES specimens of unknown origin by detrimental to the survival of the whether significant illegal trade in the public institutions on a case-by-case species, not individual animals. For species occurs, specimens have been basis under limited circumstances. In both Appendix-I and -II species, this legally imported into the United States, some instances, public institutions, generally involves a determination of and the range countries allow primarily zoos, aquariums, and whether there is any effect, either commercial export of the species. We botanical gardens, receive unsolicited adverse or beneficial, on the species in also consider a number of specific donations of wildlife and plants. When the wild, and if so, an assessment of the factors, such as whether the specimen this occurs, the institution may not be productivity of the species to determine was confiscated, a donation of unknown able to obtain reliable information whether the removal of specimens from origin, or imported previously. Thus, concerning the origin of the specimen. the wild will adversely affect the while it is the responsibility of the It is extremely difficult to issue a permit species’ long-term viability. However, applicant to provide sufficient when no data exist on the origin of the Appendix-I species require ebenthall on PRODPC61 with RULES3 information for us to make this finding, specimen, especially when the donor consideration of additional factors, such we consider not only information remains anonymous. The underlying as the effect of the import or export on provided by the applicant but other purpose of CITES is to protect, conserve, recovery efforts for the species, relevant trade information, scientific and benefit the listed species. We including long-range strategies to ensure literature, and advice of experts. In believe that these regulations, rather the survival of the species. All the VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48430 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations effects of the proposed trade, whether breeding programs, are difficult to Most commenters agreed with our direct, indirect, or cumulative, must be propagate or breed, and, most description of how we make non- assessed to determine the aggregate importantly, could be adversely detriment findings. We received many ‘‘net’’ effect on the survival of the impacted by trade in wild-collected comments endorsing our statement that species before making the finding. We specimens due to a restricted range or controlled trade may create incentives amended 23.61(g)(5) so that it reads other factors. We use precautionary for conservation and our consideration ‘‘from high to low occurrence of legal measures when a review of the available of adaptive management in making non- trade’’ because high volumes of trade, information reveals an absence of detriment findings. Several commenters either legal or illegal, create potential for essential data as to the intensity of the supported our recognition of the detriment. Species subject to high effect of the proposed trade on the status potential ecological harm caused by volumes of trade may be selected as of the species in the wild. The lack of importation of invasive species under candidates for the Review of Significant information may cause the Scientific CITES permits. One supporter asked Trade to assess whether non-detriment Authority to be unable to findthat the why disease transmission is a factor findings are being made appropriately. import or export will not be detrimental considered in making the findings when One commenter asked us to further to the survival of the species. This invasive potential is not. We consider clarify our statement that a non- process was upheld by the Federal disease transmission because we are detriment finding must take into District Court in Prima v. DOI, (E.D. La. examining the potential effects disease account ‘‘no net harm’’ to the species Feb. 19, 1998) when we denied a CITES could have on other members of the rather than ‘‘no harm’’ to individuals document based on a lack of sufficient imported or exported species, whether within a species. Two commenters information to make a non-detriment in the wild or in captivity. Invasive strongly supported our view. One finding. potential describes the effects the supporter noted that it has become We only question the finding of the imported or exported species could increasingly necessary to engage in exporting country if our analysis of the have on other species, so it is not conservation activities that result in a best available biological information relevant to whether or not the trade is net benefit to the species, but which at shows a problem. We can neither accept detrimental to the survival of the the same time may result in some the finding of the exporting country nor species being imported or exported. negative impact on a limited number of ascertain the potential for detriment One commenter said that the FWS individuals. Our approach follows the derived from the purpose of the import should not collect information to make requirement of the Treaty, which without knowledge of the exporting focuses on species rather than country’s management program for the a non-detriment finding for imports of individual specimens with regard to species (including whether one exists or sport-hunted trophies of Appendix-I non-detriment findings. is being implemented) or what scientific species if the trophy is covered by an We consider a number of factors in information exists on the species itself. export quota reported by the range making the non-detriment finding, We must also determine whether the country to the Secretariat and the including biological, trade, and effect of allowing imports for a exporting country has issued its own management information on the species. particular purpose can be separated non-detriment determination. We and The information must include not only from other potentially detrimental several commenters disagree. This was what is known about the current status impacts on the species, including trade also discussed in the 2006 proposed of the species, but the potential for other purposes. rule (71 FR 20167). Resolution Conf. biological impact that the proposed We are bound to base our non- 2.11 (Rev.), on trade in hunting trophies import or export will have. For example, detriment finding on the best available of species listed in Appendix I, we consider whether the biological biological and management information, recommends that the Scientific impact is to reduce the population of and Resolution Conf. 9.21 (Rev. CoP13) Authority of the importing country the species (by direct removal of contains sufficient latitude to allow this. make an independent non-detriment animals) or to interfere with The resolution does not require us to finding in accordance with Article III of reproduction or recruitment (such as by accept imports of Appendix-I species the Convention. Resolution Conf. 9.21 targeting breeding animals or a specific blindly if the Parties have approved a (Rev. CoP13) regarding interpretation age-class for removal or sampling). The quota for the species for the country of and application of quotas for species type and magnitude of the biological export. Rather, the resolution contains a included in Appendix I also gives impact are weighed against the status provision that preserves the Parties the flexibility to evaluate and needs of the species to determine independent authority of the Scientific scientific and management data to whether issuance of the permit will be Authority of an importing country to determine whether the quota adequately detrimental to the survival of the make its own non-detriment finding if ensures the sustainability of the species. species. the quota has been exceeded or if ‘‘new The commenter objected to § 23.61(f)(4) This section describes how we use scientific or management data have because we indicate that, where both risk assessment and precautionary emerged to indicate that the species’ insufficient information is available to measures to make a non-detriment population in the range State concerned make the non-detriment finding, we finding. There is a continuum of how can no longer sustain the agreed quota.’’ take a precautionary approach and state stringent the documentation Similar to our rationale for obtaining that we are unable to find non- requirements may be for us to make a information from range countries for detriment. He suggests that, in such non-detriment finding. The higher-risk, making our non-detriment findings on situations, we use Resolution Conf. 8.3 rarer species will generally require a the import of trophies, we rely on the (Rev. CoP13), which recognizes the more complete documentation trail to best available scientific and socioeconomic and conservation show that they were obtained in a management information on the species benefits of trade in wildlife. We note ebenthall on PRODPC61 with RULES3 manner that was not detrimental to the for the exporting country to determine that Resolution Conf. 8.3 (Rev. CoP13) survival of the species. Documentation if the basis for the quota is still valid. indicates that there are benefits of requirements will be strictest for species We use the best available biological wildlife trade only ‘‘when carried out at that have been recently discovered, are information, not just the information levels that are not detrimental to the not established in cultivation or used as the basis for the quota. survival of the species in question.’’ VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48431 Three commenters stated that we requiring countries exporting specimens transactions in which noncommercial should not treat non-detriment to the United States to provide copies of aspects may predominate, and outline determinations for imports and exports their non-detriment findings to the U.S. factors we will consider in assessing the of Appendix-I species in the same Scientific Authority for review prior to level of information we will need to manner. We addressed this comment in export. As we explained previously, our make a finding. As with legal the 2006 proposed rule (71 FR 20167) determination of non-detriment for acquisition (§23.60) and non-detriment and refer the commenters there for Appendix-I species is independent of (§23.61) findings, we use a risk additional clarification. One commenter the finding made by the exporting assessment approach in evaluating the suggested we add language to the country. Although the exporting country level of information needed to make our regulations to consider the cumulative is not required to send copies of its non- finding. We require less detailed effects of past and likely future imports detriment finding on Appendix-II information when the import or of specimens on the survival of the species to the importing country, if introduction from the sea has a low risk species. This is generally considered in there is reason to suspect that of being primarily commercial, and § 23.61(e)(3). appropriate and valid findings are not require more detailed information when A few commenters recommended being made, a country or species can be the proposed activity poses greater risk. adding a provision that would considered for the Review of Significant For activities with a high risk of being accommodate a streamlined process for Trade by the CITES Animals or Plants primarily commercial, we will analyze making non-detriment findings under Committee. The commenter also anticipated measurable increases in circumstances where a range-wide suggested that non-detriment findings revenue and other economic value population assessment for a particular should not be limited to the survival of associated with the proposed import or Appendix-II species has been the species, but should require that introduction from the sea. Based on our completed. We agree that a range-wide there is a conservation benefit to the experience, we anticipate that we will population assessment would be very species from the import or export. We rarely receive an application that useful in making non-detriment disagree because the requirement for a involves activities with anticipated high findings. It may even expedite the conservation benefit would be beyond net profits. We expect that only in rare process by providing much of the the requirements of the Treaty. instances will we need to ask the information needed to make the finding; Two commenters requested that the applicant for the detailed analysis however, such an assessment would public be able to comment on described in § 23.62(e)(4). still need to be reviewed as part of our Appendix-I and Appendix-II Two commenters indicated that we independent process of determining applications. We responded to similar had not provided a clear enough non-detriment. comments in the 2006 proposed rule (71 explanation of what we consider a One commenter suggested that we FR 20167). ‘‘high-risk activity.’’ Although we do not modify § 23.61(e)(1) to allow Not for primarily commercial specifically define this term, we provide consideration of the risk of extinction purposes (§ 23.62): Under Article III of a list of the factors we consider (see § for both the species as a whole and the the Treaty, import permits or 23.62(d)) in making our finding and the population from which the specimen introduction-from-the-sea certificates for risk, from high to low, associated with was obtained when making a non- Appendix-I species can be issued only each factor. We ask applicants to detriment finding. Another commenter when a Management Authority is describe their proposed activity and asked that the FWS only consider the satisfied that the specimen will not be intended use. If information raises a species as a whole in making the used for primarily commercial reasonable question of whether finding. We maintained the text purposes. The Parties interpreted commercial motivation may have ‘‘species as a whole or the population ‘‘primarily commercial purposes’’ in influenced the proposed import, we will from which the specimen was obtained’’ Resolution Conf. 5.10. We incorporated ask for more detailed information. because, if during the course of our the provisions of this resolution in this One commenter disagreed with the review of the species throughout its section and defined ‘‘commercial’’ and use of a risk assessment process under range we determine that there is cause ‘‘primarily commercial purposes’’ in § this section. Another commenter stated for focusing on a specific region or 23.5. that the risk assessment approach population from which the specimen For an import or introduction from penalizes public display facilities that was removed, we may consider the the sea of an Appendix-I specimen to are interested in obtaining specimens more local threats. There may be qualify for a CITES document, the that have high public appeal or are not instances where the species is abundant noncommercial aspects of the import or common in the United States, thus throughout parts of its range, yet may be introduction must clearly predominate. raising the ‘‘risk’’ that the import is threatened in other parts. In addition, We evaluate each application on a case- commercial in nature. The risk Article IV of the Treaty states that the by-case basis and take all factors assessment approach is a tool to Scientific Authority should ensure that involved into account. The applicant facilitate review of applications. By the export of specimens listed in needs to provide core information on using such an approach, we are able to Appendix II is controlled in order to the purposes for carrying out the lower the documentation burden on maintain the species throughout its proposed activity and the intended use some applicants, without eliminating range at a level consistent with its role of the specimen after import or the possibility that for other in the ecosystems in which it occurs. introduction from the sea for us to applications we need more One commenter provided a list of consider in making our finding. If the documentation than normally additional biological factors to consider noncommercial aspects do not clearly requested. We consider the type of when making non-detriment findings. predominate, we will consider the entity as a factor in deciding the level Many of these suggested factors are import or introduction from the sea to of information we need to make a ebenthall on PRODPC61 with RULES3 already considered under the more be primarily commercial. finding. In general, the nature of for- general factors in § 23.61; others are not Instead of a specific list of profit organizations makes it more relevant. The commenter also requested information that each applicant must difficult for us to find that specimens regulatory changes that are not provide, we describe how we make our involved in a proposed import or consistent with the Treaty, such as finding, provide examples of types of introduction from the sea will not be VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48432 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations used for primarily commercial However, after additional analysis, we allowable provided that the specimen is purposes. In all cases, however, we believe that requiring all net profits a personally hunted trophy that will not make the required findings on a case-by- generated in the United States from be used for commercial purposes. We case basis taking intoaccount all such activities be used for the believe our definition of sport-hunted available information. conservation of the Appendix-I species trophies, as written, is in line with the One commenter disagreed with the in a range country may not be intent of the Parties (see discussion in statement in § 23.62(b)(5) that we will reasonable, or even desirable, in some the preamble for § 23.74). consider the purpose of the export in cases. We are aware that there are Bred in captivity (§ 23.63): Article making a not-for-primarily-commercial- situations where ex situ conservation VII(4) and (5) of the Treaty provide purposes finding and asserted that efforts, such as research or captive exemptions for wildlife bred in conservation benefits to range States breeding, may provide greater benefit to captivity. To establish a standard should not be considered as part of this a species than attempting to carry out in interpretation of the term ‘‘bred in finding. The same commenter argued situ conservation in a country where the captivity,’’ the Parties adopted that commercial enterprises, such as logistical or political situation would Resolution Conf. 10.16 (Rev.). We public display facilities, should never make such activities unworkable. As a incorporated provisions of the be allowed to import an Appendix-I result, we have modified § 23.62(b)(7). resolution in this section. specimen by claiming that the purpose We will still require that net profits be In making this finding, we consider is for conservation or education. We used for conservation of the species, but the conditions under which an disagree. It is possible that an import or will not specifically require that these individual specimen is bred, whether introduction from the sea, although funds be used in a range country. We the breeding stock was established superficially commercial, may qualify as will continue to request information on legally and in a non-detrimental not for primarily commercial purposes how revenue generated by the import of manner, and whether it is maintained because anticipated profit will be offset the Appendix-I specimen would be with limited introduction of wild by conservation benefits provided utilized, including a description of any specimens. We also consider whether funded conservation project and its the breeding stock has reliably produced through assistance to range countries, monitoring plan, for consideration when offspring to at least the second research, or other considerations that making our finding. generation (F2), or whether it is result from the import or introduction One commenter argued against the managed in a way that has been from the sea. economic analysis described in § demonstrated to result in the reliable In the 2006 proposed rule (71 FR production of F2 offspring and has 23.62(e). Another commenter supported 20167), we stated that all net profits produced some F1 offspring. an extensive review of all profits generated from activities associated We may consider whether specimens associated with the import and use of an with the import or introduction from the of a species qualify as bred in captivity Appendix-I specimen, but requested an sea of an Appendix-I species must be for the breeding population of an explanation of how we intend to used for conservation of the species in conduct such comprehensive reviews individual operation or any larger a range country. Two commenters and how we intend to monitor a facility conglomerate of breeding operations, up strongly supported this requirement. to ensure that it continues to use any to and including the entire U.S. captive Two other commenters voiced strong profits generated from the import in the population. The breeding stock of an opposition, citing a belief that there is manner required by the regulations. individual operation may no legal basis for such a requirement As stated previously, we do not independently meet the bred-in- and that it would be more appropriate anticipate that there will be many cases captivity criteria based on its own as part of an enhancement finding under in which the importer would need to history and production data, including the ESA. The same issue was raised provide in-depth, ongoing financial the reliable production of F2 offspring. earlier and addressed in our 2006 reporting. As both commenters correctly Few operations, however, have proposed rule (71 FR 20167). One of noted, the onlycurrent reporting of this sufficient stock to meet the criteria. these commenters also stated that type is for giant pandas. We believe that Also, we may limit bred-in-captivity requiring a permittee to give up profits the reporting requirements are being findings to individual operations when is a disincentive to participation in successfully implemented by the four information on a broader captive conservation activities, amounts to an U.S. zoos that currently hold pandas. To population is lacking, when there is illegal tax or fee, and violates the date, the reporting has provided clear ongoing import of wild-caught ‘‘takings clause’’ of the Fifth documentation to support our finding specimens into the United States, or if Amendment. that the import was not for primarily there is significant illegal trade in the Before we can issue a CITES commercial purposes and has allowed species. Alternatively, by evaluating a document, we need sufficient us to monitor the activities to ensure larger population, we have more information to make the required that our initial findings remain valid. extensive information with which to findings. We have determined that for One commenter suggested that this make our finding. If we can demonstrate activities with a high risk of being section should be revised to make it that the entire U.S. population or any primarily commercial (i.e., activities consistent with our definition of conglomerate of breeding operations that are anticipated to generate revenue commercial and argued that, if we meets the criteria, then all specimens above the operating cost of maintaining interpreted the concept correctly, we within that breeding population can be the specimen), the purpose of the could not consider the import of sport- considered to meet the criteria without import would be considered primarily hunted trophies to be not for primarily requiring a review of each individual commercial if the institution or commercial purposes. We allow the breeding facility. individual that imported the specimen import of Appendix-I sport-hunted Typically, we consider the entire U.S. ebenthall on PRODPC61 with RULES3 utilized the profits for any purpose trophies only for personal use, which is captive population of an exotic species other than for the conservation of the not a primarily commercial purpose. to meet the bred-in-captivity criteria if, species. We do not agree with the The Parties have recognized that trade among other things, the U.S. population commenter that this requirement is a in certain Appendix-I specimens and is a ‘‘closed’’ population that is not violation of the U.S. Constitution. annotated Appendix-II specimens is augmented through imports of wild- VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48433 caught specimens. These often are required by Resolution Conf. 10.16 mentioned that we do not include a populations that can be tracked to a (Rev.). The purpose of the augmentation marking requirement for captive-bred limited parental population that must be to prevent or alleviate specimens. However, the regulation is qualifies as pre-Convention or was deleterious inbreeding or to dispose of consistent with Resolution Conf. 10.16 otherwise legally established, and for confiscated animals. However, wild (Rev.), which recommends that trade in which there is both a lack of evidence Appendix-I specimens may not be a specimen bred in captivity be of current illegal trade into the United imported for the purpose of augmenting permitted only if it is marked in States and reliable breeding of the a commercial captive-breeding accordance with resolutions adopted by species within the United States to F2 operation because this would be a the Parties. We have incorporated those or beyond. Thus, we have determined violation of Article III. We added a resolutions in the appropriate sections that a number of species commonly held reference to § 23.46(b)(12) in § 23.63(d) of these regulations. in the United States (such as lions, to highlight this restriction. Artificially propagated (§ 23.64): tigers, and brown-eared pheasants) Two commenters were critical of § Article VII(4) and (5) of the Treaty qualify as bred in captivity. We may 23.63(c)(3)(iv) because they thought it provide exemptions for artificially find, however, that only part of the U.S. appeared to be stricter, and thus more propagated plants. Modern population qualifies as bred in captivity, difficult to meet, than Resolution Conf. developments in plant propagation, such as a population managed 10.16 (Rev.). They believed our addition such as the use of micropropagation and cooperatively by zoos, if only that part of ‘‘consistently’’ and ‘‘has produced growth of seedlings in sterile flasks, of the population can be shown to meet first-generation offspring’’ to the criteria have allowed large quantities of the criteria. in § 23.63(c)(3)(iv) went beyond the artificially propagated plants to be One commenter requested intent of the resolution. We addressed produced. Resolution Conf. 11.11 (Rev. clarification of whether animals bred this in the 2006 proposed rule (71 FR CoP13) addresses ways to reduce the and raised on a U.S. game ranch would 20167) and believe that this section as paperwork required to trade plants qualify as bred in captivity under these written is consistent with Article VII(4) internationally while maintaining regulations. To meet the definition of and (5) of the Treaty and the intent of protection of wild plants. bred in captivity, a specimen must be Resolution Conf. 10.16 (Rev.). We will This section is based on Resolution bred in a controlled environment that is base our determination of whether a Conf. 11.11 (Rev. CoP13), and actively manipulated to produce breeding operation has achieved incorporates criteria we use to decide specimens, enclosed to prevent the consistent production or second or whether plants, including cuttings or movement of specimens out of the subsequent generations on the life- divisions, grafted plants, and timber, environment, and have characteristics history characteristics of the taxon qualify as artificially propagated. To such as artificial housing, waste involved. Some species mature quickly, qualify as artificially propagated, a plant removal, provision of veterinary care, have short gestation periods, and must have been grown under controlled protection from predators, and produce many offspring, whereas other conditions. We also consider whether artificially supplied food. In general, we species take many years to mature, have the cultivated parental stock was would consider a controlled long gestation periods, and produce few established legally and in a non- environment as being a small enclosure offspring. Thus, fewer offspring could detrimental manner, and whether it is (less than a few acres) where an animal indicate consistent production in managed in a way to ensure its long- could not survive without direct human species that take many years to term maintenance. Plants grown from assistance. While it may be possible that reproduce when compared to species exempt plant material, including animals could be held in a controlled that would be expected to reproduce exempt seeds that may have been environment, as defined by the earlier and more frequently. If an collected from the wild, are considered regulations, on a game ranch, we would operation has not consistently produced artificially propagated when grown not normally consider a large (over a specimens to the second or subsequent under controlled conditions. few acres) area surrounded by a game generations, we require that it has At CoP13, the Parties agreed to amend fence to be such a controlled produced first-generation offspring and the definition of ‘‘artificially environment. Typically, game ranches is using husbandry methods propagated’’ to allow, in exceptional in the United States consist of hundreds demonstrated to result in the production circumstances, for some plants grown of acres of open area where there is of second and subsequent generations. from wild-collected seeds or spores to limitedhuman interaction, and the We cannot determine that a breeding be treated as artificially propagated if animals can survive without direct operation is able to implement methods certain conditions are met. The basis for human assistance. However, if you for producing second-generation the exception is the practical limitations believe specimens on your game ranch offspring if it has not demonstrated its that arise for long-lived, late-maturing meet the requirements, we will evaluate ability to reproduce the species at all. species, such as certain trees (e.g., the your request to designate animals bred One commenter was concerned that monkey-puzzle tree, Araucaria at your facility as bred in captivity. the bred-in-captivity provisions could araucana). The exception is allowed One commenter suggested that there allow for fraudulent labeling of wildlife only when the seeds or spores are should be an allowance for as captive-bred. To show that specimens legally collected and propagated in a noncommercial breeders of Appendix-I qualify as bred in captivity, applicants range country and the Scientific species to periodically augment their must demonstrate that they meet the Authority of that country has programs with wild stock. The criteria in § 23.63. Past applicants have determined that the collection of the commenter noted that this is included breeding records, photographs seeds or spores was not detrimental to particularly important for rare species, of the breeding facility, and the survival of the species in the wild, so that best-suited individuals are documentation of the origin of the and further that allowing trade in such ebenthall on PRODPC61 with RULES3 maintained in captivity and for re- founder stock. If we receive reports of specimens has a positive effect on the introduction, if required. This section of fraudulent documentation or other conservation of wild populations. A the rule allows the occasional illegal activity, we will work with our portion of the plants produced must be introduction of wild specimens and lists Office of Law Enforcement to take used for replanting in the wild, to conditions that are similar to those appropriate action. The commenter also enhance recovery of existing VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48434 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations populations, or to re-establish biological and husbandry or of experts to keep us informed about the populations that have been extirpated. horticultural needs. We would give less most recent advances in animal and Some plants produced under such scrutiny for a captive-born, commonly plant care and husbandry. circumstances must also be used to held species, like a scarlet macaw (Ara Two commenters noted that many establish a cultivated parental stock for macao), due to the ease with which imported animal specimens are covered future production so that removal of such a species can be held in captivity by the Animal Welfare Act (AWA), seeds or spores from the wild can and the availability of veterinary care which is administered by the USDA. eventually be reduced or eliminated. and commercially prepared diets. For a One commenter argued that this makes One commenter noted that the species such as the Chinese giant our regulations duplicative, and another definition and application of the term salamander (Andrias davidianus), asked whether the FWS or the USDA ‘‘artificially propagated’’ was too which is not commonly held in regulations would take precedence in restrictive for wild seeds. The captivity and has very restrictive determining whether or not a facility is commenter suggested that growers of husbandry and housing requirements, suitably equipped to house a particular woodsgrown American ginseng should we will require a greater level of detail species. The AWA is limited to warm- have the option of using locally regarding the facilities and personnel blooded vertebrates and does not cover harvested seeds from wild plants. As where the specimen would be held. all instances in which we would be described in the 2006 proposed rule (71 We also provide the general and required to make a finding under this FR 20167), we are applying the criteria specific factors that we consider in provision. We consider whether or not of CITES Resolution Conf. 11.11 (Rev. making this finding. We consider the applicant is USDA-licensed and CoP13) to determine whether plants whether a facility supplies adequate consult with the USDA about recent qualify as artificially propagated. If space, appropriate living conditions inspection reports. In cases where it is seeds from CITES plant species are (temperature, light, etc.), adequate applicable, we will use information exempt from CITES control, as is the veterinary or horticultural care, from the USDA to inform our decision case for American ginseng, then plants sufficient security, and properly trained about a particular facility. grown from exempt seed in controlled staff to care for the specimen being The commenter also requested that conditions are considered artificially imported. We also assess whether a we develop stringent species-specific propagated according to the criteria of facility has had a reasonable survival animal care regulations and include Resolution Conf. 11.11 (Rev. CoP13). rate of specimens of the same or similar regular inspections of facilities that However, this is a separate issue from species previously in its care. We receive imported specimens. We believe whether States allow ginseng seed to be believe 3 years of data on numbers of that this is unnecessary. Our regulations harvested from the wild for such animals or plants maintained at the allow for the evaluation of the housing purposes or whether we consider facility, mortalities, and occurrence of and care of the specimens of any taxon collection of wild seed for the significant disease generally provides under a variety of conditions. The FWS production of artificially propagated sufficient information for us to consider. staff may visit facilities, and if there is ginseng to be undermining the The 2006 proposed rule (71 FR 20167) reason to suspect that animal care and conservation of the species. included language that suggested that housing is not what was reported, we Suitably equipped to house and care we would consider a facility’s ability to can notify USDA inspectors or our for (§ 23.65): Under Article III(3)(b) and reproduce or propagate specimens in Office of Law Enforcement. The (5)(b) of the Treaty, we must determine making a finding under this section. We commenter encouraged us to consider that any individual or institution have deleted those references in making the finding for all imported receiving a live Appendix-I specimen paragraphs (d)(1) and (e)(3) because the specimens regardless of how the species being imported or introduced from the purpose of the finding is to determine is listed and whether or not the sea is suitably equipped to house and if a facility is able to house and care for specimen is captive bred. We have care for that specimen. These a specimen, not whether a facility is limited the regulations in this section to requirements are to ensure that rare capable of breeding or propagating it. implementing Article III (3)(b) and (5)(b) specimens will survive following An applicant may apply for a CITES of the Treaty. There is no basis for import. document to import or introduce from making such a finding for Appendix-II This section outlines the factors we the sea a specimen before the facility is or -III species. consider in making this finding. All completed or the staff who will individuals or institutions that will be What Are the Changes to Subpart E of maintain the specimen has been receiving specimens must be identified 50 CFR Part 23—International Trade in identified or properly trained. In such a in an application, whether or not they Certain Specimens? case, we review the information, are the actual importers of the including construction plans or This subpart deals with situations that specimens, and their facilities approved intended staffing, and make the finding are either covered by specific by us, including individuals or based on that information. We would, resolutions or by procedures we have institutions that are likely to receive however, condition any resulting permit developed to deal with certain native specimens within 1 year of the to require that the import could not CITES species from States or Tribes specimens’ arrival in the country. We occur until the facility has been with appropriate conservation consider all identified uses of the completed, or the staff hired and management programs and legal imported specimens that could be trained, and approved by us. controls. One commenter suggested that reasonably expected to occur, and the Three commenters supported the we add a section in this subpart to housing and care requirements for those provisions in this section. One address international trade in raptors uses. commenter encouraged us to maintain and another commenter requested the We base our finding on the best an open dialogue with experts addition of a section on trade in live ebenthall on PRODPC61 with RULES3 available information on the experienced with individual taxa animals to address humane transport requirements of the species and because the ‘‘state of the art’’ in animal issues in greater detail. We believe that information provided by the applicant. and plant care is constantly changing. requirements for trade in raptors and We give closer scrutiny to applications These regulations are designed to allow other live specimens are sufficiently for species with more demanding such flexibility. We welcome the input described in this rule as written, and VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48435 that separate sections covering such detriment findings, rather than State-by- the use of tags are monitored by the specimens are not necessary. State or Tribe-by-Tribe assessments. We Office of Law Enforcement and Export of heavily traded native approve programs for the export of disclosure is subject to the rules and species (§§ 23.68–23.70): Certain native American ginseng, furbearers, and regulations governing release of species (American ginseng (Panax crocodilians on a State-by-State or investigative information. quinquefolius), bobcat (Lynx rufus), Tribe-by-Tribe basis because they are American ginseng roots (§ 23.68): river otter (Lontra canadensis), Canada managed by individual States or Tribes. Most American ginseng, both collected lynx (Lynx canadensis), gray wolf We require specific information about from the wild and artificially (Canis lupus), brown bear (Ursus the population status and management propagated, is exported as roots. arctos), and American alligator of the species on those specific State Ginseng root is exported in a much (Alligator mississippiensis) that are and tribal lands. As discussed in § larger volume than any other native managed by a State or tribal 23.61, a range-wide population CITES plant species. Ginseng that has conservation program are traded assessment would be useful in making been legally harvested under State or internationally, sometimes in high non-detriment findings because it tribal requirements is certified by the volumes. As for all CITES Appendix-I would place the State or tribal programs appropriate State or tribal authority and -II species, before we can issue a in the context of species management prior to export. To document the legal CITES document to allow export, we and population status throughout its origin of the material, State or tribal must find that the specimens were range. However, in making a non- certificates must accompany the ginseng legally acquired and that the export will detriment finding, we must determine until the time of export from the United not be detrimental to the survival of the whether there are effects from the States. species in the wild. Over the past 25 export, including locally, that will We use two categories for ginseng, years, we have worked with State and impact the survival of the species. wild and artificially propagated, tribal governments to develop Generally, the information provided to because CITES only recognizes these procedures that allow us to make the the FWS by a State or Tribe is limited two categories. The permits we issue necessary findings programmatically to the species’ status in that State or and our annual report to the CITES rather than permit by permit. When tribal management area. If, however, Secretariat use only these two States and Tribes provide information sufficient information is provided by classifications. showing that they have established a States and Tribes within the range of a If an applicant wishes to export management program that ensures a particular species, we may review the ginseng as artificially propagated even sustainable harvest, and that they have information, in conjunction with other though it visually resembles wild the means to identify or mark specimens available information, on a range-wide ginseng, he or she must demonstrate that have been legally taken under their basis. We have, for example, made a that the ginseng indeed meets the system, we are able to make findings for range-wide non-detriment finding for criteria for artificially propagated plants. specimens harvested within their bobcat. We added provisions in § We note that the classification of jurisdiction and thereby approve their 23.69(b) to accommodate situations ginseng as either wild or artificially program. A tag or certificate issued by where the Scientific Authority has made propagated on export permits is only for the State or Tribe demonstrates that a a range-wide non-detriment finding. CITES purposes and is not intended to particular specimen was harvested The same commenters suggested that indicate marketing categories or value of under an approved program and that the re-evaluation periods for range-wide the roots. Furthermore, it does not appropriate findings have been made. findings should be no less than every 5 preclude the use of additional categories This alternative to making the legal years. As discussed in the 2006 by States and Tribes. We continue to acquisition and non-detriment findings proposed rule (71 FR 20167), monitor the use of additional categories on a permit-by-permit basis reduces a subsequent to programmatic approval by States and Tribes, and we may use potentially large workload for exporters for a State or Tribe, exports are such information in future decision as well as for our offices. approved as long as the periodic making on ginseng exports as we States and Tribes for which submission of information by the State evaluate the impact of trade on the programmatic findings have been made or Tribe shows that there is no viability of the wild populations. submit annual reports to us containing significant change in status or States or Tribes no longer provide us information on the previous harvest management of the species that might in their annual reports an estimate of season. In some cases, such as for some lead to different treatment of the the average age of wild-harvested plants. furbearer species, we make multi-year species. Instead, the U.S. Scientific Authority findings. Regular reporting from States One commenter requested stronger uses roots-per-pound information and Tribes allows us to determine language to mandate that States and provided by the States as an index to whether our findings remain valid. In Tribes provide relevant reports, and that indicate shifts in age structure of these sections, we include the types of the FWS disclose whether it has harvested roots. information we request from the States detected tag fraud for furbearers and One commenter suggested that we and Tribes on an annual basis to alligators issued to the States and modify § 23.68 (b)(1)(iii) so that State or maintain approval of their export Tribes. We review the CITES furbearer tribal personnel would only inspect and programs. A list of States and Tribes and alligator activity reports received certify wild-collected ginseng for export with approved CITES export programs, from each approved State or Tribe to and not all wild-collected ginseng copies of recent findings on which the determine if our programmatic findings harvested on State or tribal lands. Since approvals are based, and conditions that remain correct or if the species needs the majority of wild-collected ginseng is must be met for lawful export will be closer monitoring. If an assessment of exported, having State or tribal officials posted on our website or will be the information indicates that the inspect all ginseng harvested in a ebenthall on PRODPC61 with RULES3 available from us (see § 23.7). population may be declining, we may particular State will minimize the Many commenters supported the request additional information from the likelihood of under-aged or illegally provisions for approval of State and States or Tribes to conduct a more obtained wild-collected roots being tribal export programs, but would like comprehensive review to ensure that exported. Additionally, some States do the FWS to make range-wide non- our findings are still valid. Violations in not require inspection of wild-collected VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48436 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations ginseng for personal use, and ginseng similarity of appearance to species subsequently qualify under Article that does not enter international listed under Article II(2)(a) of the II(2)(a). commerce is not subject to CITES Treaty. These species are listed to Crocodilians (including American requirements. ensure that trade in the species to which alligator) (§ 23.70): This section One commenter asked us to provide they are similar is effectively controlled. incorporates Resolution Conf. 11.12 and the list of States and Tribes with We are obligated, however, by the extends the tagging requirements to all approved ginseng programs in the Treaty to ensure that such a species crocodilian skins entering international regulations as well as on the FWS does not decline to the point that it trade, which assists Parties in website (see § 23.7). It is easier to qualifies to be treated as an Appendix- identifying legal skins. Raw, tanned, or update the FWS website quickly, and II species under Article II(2)(a) of the finished crocodilian skins may be therefore, we will provide the list of Treaty. imported, exported, or re-exported only approved States and Tribes there. We do Under the current regulations, States if tagged with a non-reusable tag not believe it is necessary to provide the and Tribes with approved programs containing specific information. The list in the regulations as well. must have procedures for placement of requirements of the special rules in 50 In the 2006 proposed rule (71 FR CITES export tags on fur skins. When a CFR part 17 concerning the American 20167), we proposed changing the fur skin with a CITES tag is presented alligator and other threatened annual report date from May 31 to May for export, the tag provides assurance crocodilians must be met in addition to 1, to ensure that we receive information that the fur was harvested under an the requirements of this section. in time for us to make required CITES approved CITES export program and Like American ginseng and native findings before the beginning of the next that the necessary findings have been CITES furbearers, we have developed harvest season. Three commenters made. This allows the exporter to more specific CITES procedures for States and suggested that we not change the annual quickly obtain CITES documents from Tribes with an approved conservation reporting date from May 31 to May 1, either the U.S. Management Authority program for the American alligator. As because it would require States to revise or certain FWS Law Enforcement offices part of the reporting required under the their existing ginseng laws and would (see § 23.7). However, there may be program, participating States and Tribes decrease the amount of time ginseng flexibility in whether furbearer skins provide us with information on how dealers, States, and Tribes have to must be tagged. The utility and many alligators were taken during the prepare the requested information. One effectiveness of the current U.S. CITES wild harvest and how many alligators of the commenters strongly supported tagging regime has been the subject of were harvested from farming facilities. our intention to complete the required ongoing discussions between the FWS One commenter questioned why the CITES findings early. However, the and the States and Tribes. Through this requirements for marking of American commenter noted that the annual process we are exploring other ways to alligator meat and skulls are different reports are one of many references the demonstrate legal acquisition, for from those for other crocodilians. When FWS considers in making the findings. example, the possible use of a we incorporated the marking The commenter is correct in that we documentation system in lieu of tags, or requirements from the special rules in consider additional information as well issuance of a national legal acquisition part 17 into this section, we did not as information provided in the annual finding based on State and tribal legal change those requirements. The marking reports when making our non-detriment and enforcement systems. Any requirements for American alligator findings. However, under CITES we alternative system of determining legal meat and skulls were developed to must also make a legal acquisition acquisition must be as reliable as the accommodate different State marking finding, which is largely based on current system. Many State fish and requirements. information contained in the State wildlife agencies and fur trapper Two commenters asked us to develop reports. Based on further review of our associations endorsed efforts to develop a system to expedite issuance of export requirements, and in consultation with an alternative to tags. We will continue permits for American alligator skins, the State program coordinators, we have to work with States and Tribes to similar to the process in place for decided to maintain the current May 31 explore other ways to provide evidence Appendix-III turtles. The system in reporting date. of legal acquisition. place for Appendix-III wildlife is not CITES furbearers (§ 23.69): We define We review the information we receive appropriate for Appendix-II wildlife. ‘‘CITES furbearers’’ to include bobcat, annually from each State or Tribe to Export of specimens listed in Appendix river otter, Canada lynx, and the determine if our programmatic findings III, including certain turtle taxa native to Alaskan populations of gray wolf and remain correct or if the species needs the United States, requires only a legal brown bear. These species are included closer monitoring. Article IV(3) of the acquisition finding. By contrast, in Appendix II under the provisions of Convention requires the Scientific American alligators are listed in Article II(2)(b) of the Treaty because Authority to monitor trade in any Appendix II, and therefore, we must their parts, products, and derivatives are Appendix-II species, regardless of make a non-detriment finding in difficult to distinguish from certain whether it is listed under the provisions addition to a legal acquisition finding similar CITES Appendix-I and -II of Article II(2)(a) or II(2)(b). Species before issuing an export permit. species. listed in Appendix II are not designated Sturgeon caviar (§ 23.71): At CoP10, To streamline the export process for as being listed for similarity of all sturgeons that were not already CITES furbearers, we review the appearance (i.e., they are not designated included in the CITES Appendices were programs that States and Tribes have set as being listed under Article II(2)(a) or added to Appendix II. This section up for management and harvest. We II(2)(b)), and the Convention lacks a implements Resolution Conf. 12.7 (Rev. approve programs for States and Tribes mechanism for review of Appendix-II CoP13), including requirements for when they have provided information species to determine if they should labeling of caviar containers, provisions ebenthall on PRODPC61 with RULES3 that allows us to make the required non- continue to be listed under the for shared populations subject to annual detriment and legal acquisition findings. provisions of Article II(2)(b). It is the export quotas, and re-export timeframes Our non-detriment finding takes into responsibility of each range country to for caviar. account that the CITES furbearers are monitor its species listed under Article To assist Parties in identifying legal listed in Appendix II because of their II(2)(b) and determine whether they caviar in trade, the resolution VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48437 recommends a universal labeling CFR part 18 (marine mammals) for code (e.g., ‘‘P’’ for personal or ‘‘T’’ for system. Sturgeon caviar may be sport-hunted polar bear trophies, which commercial). The purpose code ‘‘H’’ imported, exported, or re-exported only was developed to ensure that the trade (sport-hunted) may not be used. if non-reusable labels containing in trophies was consistent with CITES. However, the Parties have established specific information are affixed to We considered language from a House greater controls over the international primary and secondary containers. If Committee Report (H.R. Rep. No. 439, movement of Appendix-I specimens. As caviar is repackaged before export or re- 103rd Cong., 2nd Sess. (1994)) that with Appendix-II or -III species, export, the containers must be re- states ‘‘trophies normally constitute the manufactured items produced from an labeled to reflect the change. hide, hair, skull, teeth, and claws of an Appendix-I species outside the United To improve monitoring of re-exports animal that can be used by a taxidermist States could be imported provided that in relation to the original export to create a mount of an animal for all of the required findings have been permits, the Parties agreed to establish display or tanned for use as a rug.’’ made and the items are not identified as time limits for re-exporting caviar. We Two commenters supported our a sport-hunted trophy. require that any re-export of caviar take definition, but one did not agree that We also included specific conditions place within 18 months from the sport-hunted trophies should be for import, export, or re-export of issuance date of the original export considered personal effects. This leopard, markhor, and black rhinoceros permit. We also clarify that caviar and commenter suggested that we remove hunting trophies as provided in caviar products that contain the roe of the phrase ‘‘for personal use’’ from the Resolutions Conf. 10.14 (Rev. CoP13), more than one species may only be definition. As stated above, the Parties Conf. 10.15 (Rev. CoP12), and Conf. imported into or exported from the have recognized that trade in certain 13.5, respectively. In any calendar year, United States if each species is Appendix-I specimens and annotated a hunter may import no more than two identified and the quantity of each Appendix-II specimens is allowable leopard trophies, one markhor trophy, species is specified on the CITES provided that the specimen is a and one black rhinoceros trophy. Any document. In the final rule, we personally hunted trophy that will not tagging or marking requirements for amended § 23.71(g) to more clearly be used for commercial purposes. We skins, horns, or other parts of trophies, describe this requirement and to believe our definition, as written, mounted or loose, must also be met. We underscore that we include products supports the intent of the Parties. The added a description of tag locking made with caviar under this paragraph. same commenter encouraged us to add requirements and tagging requirements To assist in monitoring the level of this definition to the general definition for mounted sport-hunted trophies to § exports in relation to annual export section (§ 23.5) as well. We defined 23.74(d)(i). These requirements are in quotas and to address certain some terms that apply to a specific type addition to any requirements in 50 CFR unscrupulous trade practices, the of trade, such as ‘‘sport-hunted trophy,’’ part 17. One commenter requested that Parties agreed to place a time limit on in the sections where they are used we clarify that the limits on the number export of caviar from shared stocks rather than in the general definition of certain sport-hunted trophies that subject to quotas. We allow import of section (§ 23.5) for efficiency. We do not may be imported in a given year apply sturgeon caviar from shared stocks believe it is appropriate to restate the to an individual hunter. We amended § subject to quotas only during the definition in two places. 23.74(d) accordingly. calendar year in which it was harvested. Two commenters believed that items Two commenters were opposed to all Personal sport-hunted trophies (§ manufactured from a trophy should be trophy hunting and recommended that 23.74): This section defines ‘‘sport- included in the definition. They we prohibit the import of all sport- hunted trophy’’ and outlines the expressed concern that our definition hunted trophies listed in the CITES requirements for trade in sport-hunted would preclude hunters from bringing Appendices. This issue was addressed trophies, including the use of a sport- such items into the United States in the 2006 proposed rule (71 FR hunted trophy after import (see § 23.55). because they would be considered 20167). CITES did not intend to ban the Some countries allow limited take of commercial. We do not agree that trade in sport-hunted trophies, and we Appendix-I species as part of an overall utilitarian items manufactured from a do not have the authority to impose a management plan. The Parties have trophy should be considered a trophy. ban on the import of any CITES species agreed to allow international movement In a number of instances, large without legal or scientific justification. of such trophies provided they are for quantities of fully manufactured the hunter’s personal use. The export of What Are the Changes to Subpart F of products, such as briefcases, handbags, Appendix-I hunting trophies requires 50 CFR Part 23—Disposal of and golf bags, have been imported as both export and import permits under Confiscated Wildlife and Plants? parts of a ‘‘hunting trophy.’’ Since we Article III of the Treaty (see § 23.35). accord a noncommercial status to Confiscated specimens (§ 23.78): This practice is re-affirmed in personal sport-hunted trophies, we must Article VIII(4) and (5) of the Treaty Resolution Conf. 2.11 (Rev.). be able to distinguish between a outline the requirements for disposal of We defined ‘‘sport-hunted trophy’’ to noncommercial trophy and commercial confiscated live specimens, and the provide the public with a clear products derived from an animal that Parties adopted Resolution Conf. 10.7, understanding of what we consider to may or may not have been taken by the which set out detailed guidance. Our be included in the term. The definition hunter as a sport-hunted trophy. general procedures for disposal of does not include handicraft items or This does not mean that the import or forfeited or abandoned property, under items manufactured from the trophy export of utilitarian items made from a CITES as well as other U.S. laws, are used as clothing, curios, ornamentation, trophy is not allowed. Provided that the contained in 50 CFR part 12, 7 CFR part jewelry, or other utilitarian items. We items are not identified as a sport- 356, and 19 CFR part 162. Section 23.78 based this definition on our experience hunted trophy, manufactured items of outlines the process we use in making ebenthall on PRODPC61 with RULES3 with international trade in these items Appendix-II and -III species may be a decision on how to dispose of and the commonly understood meaning imported into the United States or confiscated live CITES wildlife and of the term from the dictionary and exported from the United States with plants that have been forfeited or other wildlife regulations. The CITES export or re-export documents abandoned to FWS Law Enforcement, definition is similar to one used in 50 that indicate an appropriate purpose APHIS, or CBP. VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48438 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations We consider a number of factors, and documents, we must make the export. We decline to incorporate a consult the guidance in Resolution biological finding, which normally mandate for the placement of Conf. 10.7, when determining how to would have been made prior to export, confiscated specimens only with dispose of confiscated live specimens. before issuing a re-export certificate. scientific institutions. We must retain The most important factor we consider Two commenters urged us to develop the ability to determine the most is the welfare of the wildlife or plants. an action plan for the disposal of appropriate disposition of confiscated Generally, the disposal options are confiscated live specimens, as is specimens based on specific facts of the maintenance in captivity or cultivation, recommended in Resolution Conf. 10.7. case. return to the wild, and euthanasia or As noted in the 2006 proposed rule (71 Two commenters argued against destruction. In the absence of other FR 20167), due to the complexity of issues involved in placing seized returning confiscated live specimens to options, euthanasia or destruction may specimens, the FWS makes disposition the wild. One maintained that returning be the most humane or appropriate decisions on a case-by-case basis. raptors is only successful in the context option. Although under Article VIII of the Treaty, returning confiscated live One commenter asserted that we of a well-organized and carefully specimens to the country of export is should strictly control the breeding and implemented translocation program. one available option, we cannot always disposition of any progeny for any The other commenter noted that return them. For example, when wildlife specimen placed with a zoo, reintroduction programs require careful criminal charges are brought in sanctuary, or care facility. All live organization and implementation. That connection with confiscated specimens, wildlife placed with a zoo, sanctuary, or commenter also noted that returning litigation may require us to hold the similar care facility is accompanied by confiscated live wildlife to the country specimens as evidence for an extended a loan or donation document as of origin was often not realistic, noting period of time, and the court may described in 50 CFR part 12 that may that adequate facilities for caring for the decide how we are to dispose of them. include restrictions on use or live specimens may not exist. We have Return to the wild of confiscated disposition of the animal. We may also clarified under what limited specimens is rarely possible. It can carry place restrictions on breeding of the circumstances we would return risks for existing wild populations, such animal or disposition of the animal and confiscated specimens to the wild. With as introduction of disease, and can any progeny, as appropriate. regard to the return of confiscated live result in the death of the specimens One commenter urged us to place specimens to the country of origin, released due to starvation, disease, or confiscated specimens in scientific Resolution Conf. 9.10 (Rev. CoP13) predation. Before considering return to collections with restrictions on their recommends that confiscated specimens the wild, a country must decide if that transfer rather than re-export them back be returned to the country of origin or action would make a significant to the country of export. Another re-export when the Scientific Authority contribution to the conservation of the commenter expressed concern regarding of the confiscating State deems it in the species or might be harmful to the the option of selling confiscated interest of the specimens to do so, and conservation of the species in the wild. Appendix-II and -III specimens. Under the country of origin or re-export In many countries, including the United these regulations, as well as under 50 requests that the specimens be returned. States, some confiscated specimens are CFR part 12, the FWS disposes of The United States follows this donated to zoos, aquariums, or botanical confiscated specimens on a case-by-case recommendation in determining if it is gardens. This option may not be basis after considering the most appropriate to return confiscated available when a seizure involves a appropriate option. See 50 CFR part 12, specimens to the country of origin or re- large number of common species. Both subpart D, for the criteria we use when export. the botanical and zoological considering the appropriate disposition of abandoned and forfeited wildlife and One commenter argued that we communities recognize that placing plants, including the order of preferred should not allow confiscated live specimens of low conservation value in disposal methods. wildlife specimens to be given to limited space may benefit those individuals, but may detract from One commenter remarked on the scientific institutions unless the conservation efforts as a whole. impracticality of re-exporting seized institution does not intend to use the To comply with the intent of specimens to the country of export. The specimen for invasive scientific Resolution Conf. 9.10 (Rev. CoP13) and, commenter cited an instance where research. The commenter further argued in limited circumstances, to return seized specimens were re-exported to that we should not place such confiscated live Appendix-I specimens the country of origin, but despite efforts specimens with any organization that to the country of export, we included an to maintain the specimens, they could operates a traveling exhibition. The issuance criterion for re-export of not be salvaged once they arrived in the commenter noted particular concern confiscated specimens in § 23.37(c)(5). country of export and had to be regarding the regulations in 50 CFR part It requires us, before issuing a re-export discarded. The commenter 12 that allow for the sale of confiscated certificate, to find that the proposed re- recommended that the FWS place Appendix-II and -III wildlife and plants. export of confiscated specimens would seized specimens in scientific The commenter believed that this not be detrimental to the survival of the collections in the United States and option might cause the FWS to overlook species. Regulations in 50 CFR part 12 restrict the use of the specimens to other disposal options such as return to allow for the sale of confiscated prevent them from being transferred to the country of origin. As previously Appendix-II and -III wildlife and plants. the intended importer. discussed, the options available in 50 When specimens have been confiscated We believe that the re-export of CFR part 12 are ordinarily exercised in and subsequently sold or transferred by confiscated specimens to the country of the order in which the methods are the U.S. Government, we consider them origin or re-export is an appropriate outlined. Sale and destruction are the ebenthall on PRODPC61 with RULES3 legally acquired when the applicant option for certain specimens. Although final options to be exercised, and any provides the appropriate documentation the commenter cited an instance where sale must be in accordance with Federal to show the origin of the specimens. specimens could not be salvaged, we Property Management Regulations and However, because the specimens were have successfully re-exported many Interior Property Management imported without the proper CITES confiscated specimens to the country of regulations. VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48439 What Are the Changes to Subpart G of One commenter recommended that exempting such specimens in the past, 50 CFR Part 23—CITES we clarify that the effective date of no consensus has been reached on such Administration? resolutions and decisions adopted at a an exemption. Consequently, tissue, CoP is 90 days after the last day of the blood, and serum are not exempt from Development of U.S. documents and meeting at which they were adopted. CITES requirements. negotiating positions for a CoP (§ 23.87): We agree with the commenter and have Another commenter indicated that This section outlines the process we revised the final rule accordingly. our text regarding annotated Appendix- follow in developing documents for III wildlife (§ 23.92 (b)(1)) and submission to the CoP and our What Are the Changes to Subpart H of Appendix-II or -III plant species (§ 23.92 negotiating positions, including how the 50 CFR Part 23—List of Species? (b)(2)) was confusing. Upon review of public can participate in this process. Listing criteria for Appendix I or II (§ this section we realized these We will outline what the United States 23.89): We intend that the listing criteria paragraphs did not accurately reflect our is considering and our proposed identified in this section will faithfully current practice. As a result, we negotiating positions on agenda items track the criteria and principles set out combined (b)(1) and (b)(2) from the 2006 and proposals from other countries in Resolution Conf. 9.24 (Rev. CoP13). If proposed rule (71 FR 20167) into one either through Federal Register notices that resolution is substantially modified paragraph so that it is clear that for or postings on our website (see § 23.7). at a future CoP, then we may propose Appendix-III wildlife and Appendix-II We will also hold one or more public amendments to this section to maintain or -III plant listings we consider all meetings to discuss these issues. our science-based interpretation of parts, products, or derivatives to be However, we will not publish final criteria for the addition or removal of covered (and thus to require CITES negotiating positions because some species from Appendices I and II. documents) unless they are annotated to issues are extremely complex and A number of falconers argued that not indicate otherwise. We also added require extensive coordination, and our all Falconiformes should be included references in (b)(2) and (b)(3) to the final negotiating positions may not be under CITES, but only those species that section on artificially propagated plants available prior to the CoP. We hold are endangered or threatened. These to underscore the fact that these daily briefings at the CoP for U.S. regulations do not address specific specimens must qualify as artificially observers, where we often discuss our listings in the Appendices. However, propagated under § 23.64. tentative negotiating positions and any through a series of Federal Register notices and public meetings, Required Determinations changes to them. We no longer publish an official report after each CoP because individuals and organizations have an Regulatory Planning and Review: The information on the results of a CoP is opportunity to participate in U.S. Office of Management and Budget available from a number of sources, preparations for a CoP and should (OMB) has determined that this is a such as the CITES website (see § 23.7). provide information on potential listing significant regulatory action under Consequently, the production of a proposals through those means. Executive Order 12866 because it may separate report has become duplicative One commenter questioned our raise novel legal or policy issues. and unnecessary. statement regarding the use of Therefore this rule has been reviewed precautionary measures to ensure that by OMB. One commenter noted that we did not scientific uncertainty is not a reason for a. This rule will not have an annual indicate a timeframe for providing a failing to act in the best interest of the economic effect of $100 million or summary of our proposed negotiating conservation of the species when negatively affect a part of the economy, positions in preparation for a CoP. The considering a listing proposal. The productivity, jobs, the environment, or commenter suggested that we provide commenter argued that if adequate other units of government. An our proposed negotiating positions at information to evaluate conservation assessment to clarify the costs and least 2 weeks prior to the start of a CoP needs is lacking, it is difficult to benefits associated with this rule to allow sufficient time for public input determine those needs. The commenter follows. The purpose of this rule is to and comment. Although we make every asked how proposals under these clarify and update the regulations that effort to provide our proposed circumstances should be evaluated. The implement CITES. It is designed to negotiating positions sufficiently in statement to which the commeter refers assist individuals and businesses who advance of a CoP, it is not always is taken from the concept described in import and export specimens of CITES possible, and we have declined to adopt Annex 4 to Resolution Conf. 9.24 (Rev. species by clearly outlining the this suggestion. CoP13). In evaluating the need to list a requirements that the United States, as Another commenter opposed our species in the Appendices, we use the well as the other 170 Parties, must proposal not to make our final best available information. However, in follow under the Convention. As of negotiating positions available prior to a applying precautionary measures, we February 1, 2007, our records show CoP. We believe that this comment is may still take a listing action when the there are approximately 9,800 active adequately addressed in the 2006 best available information suggests the U.S. CITES documents (the period of proposed rule (71 FR 20167) and refer action is warranted despite incomplete validity for documents ranges from 6 the commenter to that document for information. months to 3 years). In the United States, further clarification. Exemptions (§ 23.92): This section the percentage of CITES documents Resolutions and decisions (§ 23.88): provides details on what materials are issued for various uses is generally as This section provides the legal basis and exempt. Upon import, export, or re- follows: 34 percent hunting trophies; 19 purpose of resolutions and decisions. export, you may be required to percent commercial wildlife; 18 percent We have implemented Resolution Conf. demonstrate that your specimens personal use; 8 percent scientific 4.6 (Rev. CoP13), which establishes that qualify as exempt under this section. research; 6 percent commercial plants; 6 ebenthall on PRODPC61 with RULES3 a resolution or decision becomes One commenter stated that tissue, percent zoological parks; 5 percent effective 90 days after the meeting at blood, and serum collected at the time breeding; 3 percent circuses; and 1 which it is adopted, unless the of necropsy for diagnostic testing should percent miscellaneous. resolution or decision specifies a not require permits under CITES. The overwhelming majority of different date. Although Parties have proposed countries that trade internationally in VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48440 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations wildlife and plants are CITES Parties. cooperativeconservation program, (3) I specimens and certain Appendix-II Because most of these Parties are conditioned noncommercial use of and -III specimens may not be imported currently implementing the Convention Appendix-I and certain Appendix-II and and subsequently used for a commercial and the current CITES resolutions and -III specimens after import into the purpose. This provision is to prevent decisions, this rule should cause little or United States, and (4) the need to label commercial use after import when the no impact for importers or exporters. sturgeon caviar and re-export caviar trade allowed under CITES is only for The foreign suppliers are, in most cases, within 18 months from the date of the a noncommercial purpose. The already required by their own country’s issuance of the original export permit. provision applies to Appendix-II laws to follow the Convention as well as To comply with Article II of the specimens that are subject to an the current CITES resolutions and Treaty, which states that Appendix-I annotation that allows noncommercial decisions. In addition, if a U.S. importer specimens ‘‘...must be subject to trade of sport-hunted trophies, such as were to receive a shipment that did not particularly strict regulation in order not the African elephant populations of comply with all of the requirements of to endanger further their survival and Botswana, Namibia, South Africa, and the country of export, the import may must only be authorized in exceptional Zimbabwe. Under this rule, these types violate the Lacey Act Amendments of circumstances,’’ we no longer allow the of trophies may be imported for 1981. Exporters need to comply with the use of Article III of the Treaty for personal use only and may not be sold requirements of the importing country commercial export of Appendix-I or otherwise transferred for economic in addition to U.S. requirements. If a wildlife. This new provision means that use, gain, or benefit after import into the shipment is not in compliance with all operations that are breeding Appendix- United States. From 2001 to 2005, the applicable laws, it may be seized, I wildlife for commercial purposes number of African elephant trophies detained, or refused clearance at its under Article VII(4) of the Treaty need imported into the United States destination. These revisions include to become registered. This does not annually ranged from 265 to 352. During clarifications of the Convention’s affect the sale of specimens within the the same time period, annual imports of provisions that have not previously United States, only the commercial leopard trophies ranged from 413 to been published. Thus, U.S. businesses export of such specimens; it also does 507. are already complying with most of the not preclude the export of specimens We implemented changes in revisions. Revisions that would impact when the export is not commercial, requirements for trade in sturgeon current business practices are addressed such as for scientific, conservation, or caviar agreed at CoP12 and CoP13. We below. personal use. require that all caviar be labeled in We do not expect that this rule will Wildlife may be exported with a accordance with Resolution Conf. 12.7 have a significant effect on the volume certificate under the bred-in-captivity (Rev. CoP13) and any re-exports of or dollar value of wildlife and plants exemption of Article VII(5). However, at caviar take place within 18 months from imported, exported, or re-exported to CoP12, the Parties agreed that for the date of issuance of the original and from the United States. There is no facilities to qualify as breeding export permit. We believe these indication that this rule will result in Appendix-I species for noncommercial procedures are consistent with current changes in levels of trade, permit purposes, they must be participating in industry practices and will not cause applications, or permit issuance or a cooperative conservation program any additional burden to applicants. denial that are statistically significant. with one or more of the range countries The publication of this final rule will Many of the costs incurred by for that species. Otherwise, if a facility assist U.S. businesses in complying with industry would be associated with is not cooperating with a range country, CITES requirements when engaging in changes to required information they are considered to be breeding for international wildlife trade. Many of the collections. These are annual, periodic, commercial purposes. We adopted this benefits associated with the rule are due or one-time collections. The costs new provision to ensure that trade in to clarified regulations. Benefits include presented represent the estimated yearly Appendix-I species will not be (1) streamlining procedures for traveling costs for all types of collections. Refer detrimental to the survival of the exhibitions, (2) establishing application to the ‘‘Paperwork Reduction Act’’ species in the wild. Many Appendix-I procedures for registration of operations section for more details. The yearly cost species also are listed under the ESA, breeding Appendix-I wildlife species for associated with new information and an export permit may be issued commercial purposes, (3) issuing a bred- collections described in the rule is only when the activity will provide for in-captivity certificate that eliminates $34,063 ($2,813 in value of burden the conservation of the species. Thus, the need to obtain an import permit, (4) hours + $31,250 in application fees). we do not expect administrative costs to using standardized coral nomenclature The 10–year quantitative cost is increase for facilities that want to export to simplify procedures and therefore $340,630 ($299,281 discounted at 3 Appendix-I species bred for provide relief to entities that trade in percent or $255,991 discounted at 7 noncommercial purposes. coral internationally, (5) informing the percent). We do not anticipate that this Unless an Appendix-I wildlife or public about proper CITES documents rulemaking will have a significant effect plant specimen qualifies for an and procedures for international travel on permit application processing time exemption under Article VII of the with personally owned live wildlife for CITES documents issued under 50 Treaty, it may be imported only when (e.g., pets), (6) streamlining procedures CFR part 23. We do not expect the intended use is not for primarily to issue permits for trade that would administrative costs to increase. commercial purposes. In addition, the have a negligible impact or no impact Costs not associated with information Parties agreed that Appendix-I trophies on the conservation of the permitted collections are more difficult to may be ‘‘imported as personal items that species and that is repetitive in nature, quantify. These costs include (1) the will not be sold in the country of (7) simplifying procedures for shipment need for operations that are breeding import’’ (Resolution Conf. 10.14 (Rev. of sample collections under an ATA ebenthall on PRODPC61 with RULES3 Appendix-I wildlife for commercial CoP13) for leopards, Resolution Conf. carnet, and (8) exempting certain purposes to become registered, (2) the 10.15 (Rev. CoP12) for markhor, and wildlife hybrids and urine, feces, and need for facilities that are breeding Resolution Conf. 13.5 for black synthetically derived DNA from CITES Appendix-I wildlife for noncommercial rhinoceros). We incorporated into 50 requirements. These benefits are purposes to participate in a CFR part 23 a provision that Appendix- presented qualitatively below. VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48441 We expect the regulations to provide Appendix-I wildlife is relatively small. on the conservation of the permitted relief by streamlining the CITES In 2006, we issued about 200 CITES species and that is repetitive in nature document procedures for traveling documents to export Appendix-I (i.e., the same type of specimens or the exhibitions. At CoP8, the Parties agreed specimens. same actual specimens are exported to issue CITES documents for live We exempted coral sand and coral shipment after shipment). Examples animals that qualify as pre-Convention fragments from CITES requirements, include biomedical companies shipping or bred in captivity and that travel because the Parties have recognized the biological samples derived from cell internationally as part of an exhibition. difficulty in identifying these coral lines they maintain and production The document is to be treated like a specimens. The Parties also agreed to facilities exporting certain native passport and allows the exhibitor to use the use of higher-taxon names (broader Appendix-II and Appendix-III species. the same CITES document to cross classification) for coral rock and live In the past, in an effort to facilitate the multiple borders, rather than having to and dead coral under certain conditions. timely movement of such specimens, we obtain a new document for each border We willaccept a CITES document that have issued multiple-use export crossing. This CITES document is valid uses a higher-taxon name for coral when documents that could be photocopied for 3 years rather than 6 months like a the CoP has agreed to its use. A current for use with multiple shipments. standard export permit. At CoP12, the list of acceptable higher-taxon names for However, many countries no longer Parties agreed to extend these coral is available on the CITES website accept photocopied documents. Thus, provisions to all traveling exhibitions, or from us (see § 23.7). We anticipate we have implemented streamlined not just traveling live-animal that the use of this standardized procedures adopted at CoP12 and issue exhibitions. We incorporated provisions nomenclature and the exemption of partially completed documents under for traveling exhibitions into these coral sand and coral fragments from specific circumstances. We do this by regulations and defined the term CITES requirements will simplify establishing a master file for a permittee traveling exhibition to include live procedures and therefore provide relief and then issue multiple documents animals and plants and dead items (e.g., to entities that trade in coral based on information in the master file. herbarium specimens and museum internationally. Because we are The permittee is authorized to complete specimens). We estimate that 50 uncertain how much of the trade would specifically identified boxes on the permittees would be affected by this be affected by these changes, we are document and is required to sign the procedure, although we do not unable to quantify their impact. document to certify that the information categorize permittees as traveling Resolution Conf. 10.20 provides for entered is true and correct. For U.S. exhibitors in our records and, therefore, the issuance of certificates for documents, an applicant must submit are not able to quantify the precise effect personally owned live wildlife that the appropriate application form for the of this relief. would be valid for a period of 3 years proposed activity and show that the use We have also implemented Resolution and allow for multiple imports, exports, of this type of document is beneficial to Conf. 12.10 (Rev. CoP13) and and re-exports of the covered both the applicant and to the Service. established application procedures for specimens. The final rule advises We can issue multiple partially an operation breeding Appendix-I travelers that they must have a CITES completed documents when we find wildlife species for commercial document to travel with their CITES- that the issuance criteria for the purposes to become registered for each listed personally owned live wildlife, proposed activity and the issuance Appendix-I species. Specimens that and it provides procedures for the criteria for a partially completed originate from registered facilities may issuance of these CITES documents. document are met. In 2005, we issued be granted export permits or re-export Individuals importing live CITES approximately 3,200 partially certificates without the issuance of an wildlife for personal use are required under this rule to obtain a CITES completed documents. In 2006, the import permit. This provides some document prior to arriving in the United number increased to around 9,300 economic relief by allowing specimens States. Since most Parties require CITES documents. Although the creation of a from registered facilities to be imported documents for international trade of all master file has somewhat increased the for commercial purposes, trade which is live specimens, this requirement will initial burden for applicants, the otherwise prohibited by the Treaty for ensure that pet owners are not subsequent issuance of documents Appendix-I specimens. The registration inadvertently violating the Lacey Act under a master file is streamlined. In fee in 50 CFR part 13 is set at $100. To date, the United States has registered Amendments of 1981 by exporting a addition, this process has brought our four operations breeding Appendix-I CITES species without having obtained procedures into line with most other species for commercial purposes. the required CITES permits. Although CITES Parties, which will no longer During 2005 and 2006, these four we can issue and accept retrospective accept multiple-use export documents. facilities combined exported a total of documents under limited circumstances This final rule will provide relief to 18 shipments per year. We anticipate for activities that have already occurred, applicants whotravel internationally that 15-20 operations would seek to be the practice is discouraged. On average, with collections of display samples, registered initially. we issue about 20 retrospective such as sets of shoes or reptile skin We adopted the definition of ‘‘bred for documents for personal shipments, samples. At CoP13, the Parties agreed to noncommercial purposes’’ in Resolution including live wildlife, annually. These allow the in-transit shipment of such Conf. 12.10 (Rev. CoP13) for Appendix- revised regulations will not impose an collections under specific conditions. I wildlife. Facilities that are breeding for additional paperwork or financial We can issue a CITES document that noncommercial purposes must burden on pet owners or falconers, but will allow these sample collections to participate in a cooperative may actually save time and money by move from one country to another conservation program with one or more clearly informing travelers of CITES before returning to the originating ebenthall on PRODPC61 with RULES3 of the range countries for that species. requirements. country, rather than requiring the Qualifying applicants are issued a bred- This rule will provide relief to permit issuance of a re-export certificate from in-captivity certificate that eliminates applicants by streamlining procedures each country visited. Such a CITES the need to obtain an import permit. to issue permits for trade that would document must be accompanied by a The number of facilities exporting have a negligible impact or no impact valid ATA carnet. An ATA carnet is an VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48442 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations international customs document that small businesses, small organizations, paperwork burden on the affected allows the temporary introduction of and small government jurisdictions) (5 members of the general public. goods destined for fairs, shows, U.S.C. 601 et seq.). However, no This rule also benefits these exhibitions, and other events. We regulatory flexibility analysis is required businesses by providing updated and estimate that approximately 50 if the head of an agency certifies that the more clearly written regulations for the applicants will benefit from this rule would not have a significant international trade of CITES specimens. simplified procedure. economic impact on a substantial We do not expect these benefits to be Under this rule, we require CITES number of small entities. Thus, for a significant under the Regulatory documents to accompany most wildlife regulatory flexibility analysis to be Flexibility Act. The authority to enforce hybrids that are imported, exported, or required, impacts must exceed a CITES requirements already exists re-exported. Certain wildlife hybrids threshold for ‘‘significant impact’’ and a under the ESA and is carried out by will no longer require CITES documents threshold for a ‘‘substantial number of regulations contained in 50 CFR part 23. if they meet a limited exemption. We small entities.’’ See 5 U.S.C. 605(b). The requirements that must be met to generally receive fewer than 50 SBREFA amended the Regulatory import, export, and re-export CITES inquiries concerning exempt hybrids Flexibility Act to require Federal species are based on the text of the annually. agencies to provide a statement of the Convention, which has been in effect in We have exempted urine, feces, and factual basis for certifying that a rule the United States since 1975. synthetically derived DNA of CITES would not have a significant economic Therefore, we have determined that species from CITES requirements under impact on a substantial number of small this rule will not have a significant certain circumstances. We consider entities. economic effect on a substantial number samples of urine and feces to be wildlife The U.S. Small Business of small entities as defined under the byproducts, rather than parts, products, Regulatory Flexibility Act (5 U.S.C. 601 Administration (SBA) defines a small or derivatives, and therefore do not et seq.). A Regulatory Flexibility business as one with annual revenue or require CITES permits for the Analysis is not required. Accordingly, a employment that meets or is below an international movement of these Small Entity Compliance Guide is not established size standard. To assess the specimens unless a permit is required required. effects of the rule on small entities, we Small Business Regulatory by the other country involved in the focus on industries that may have Enforcement Fairness Act: This rule is trade. This exemption applies only to businesses that import, export, or re- not a major rule under 5 U.S.C. 804(2), synthetically derived DNA. DNA export CITES specimens. Many of these the Small Business Regulatory extracted directly from blood and tissue businesses can be placed in the Enforcement Fairness Act. As discussed samples must comply with all CITES following categories: Zoos and Botanical above, this rule: permitting requirements. Because we do not maintain records on the trade in Gardens with an SBA size standard of a. Does not have an annual effect on these specimens, we are unable to $6.0 million in average annual receipts; the economy of $100 million or more. estimate the impact of this exemption. Merchant wholesalers, nondurable This rule provides the importing and b. This rule will not create goods, with an SBA size standard of 100 exporting community within the United inconsistencies with other agencies’ employees; Leather and allied product States updated and more clearly written actions. As the lead agency for manufacturers, with an SBA size regulations that implement CITES in the implementing CITES in the United standard of 500 employees; and United States. This rule will not have a States, we are responsible for Clothing and Clothing Accessories negative effect on this part of the monitoring imports and exports of Stores, with an SBA size standard economy. CITES wildlife and plants, including ranging from $6.0 million to $7.5 This final rule will affect all their parts, products, and derivatives, million in average annual receipts. The importers, exporters, and re-exporters and issuing import and export U.S. Economic Census does not capture equally, and the benefits of having documents under CITES. the detail necessary to determine the updated guidance on complying with c. This rule will not materially affect number of small businesses that are CITES requirements will be evenly entitlements, grants, user fees, loan engaged in international commerce in spread among all businesses, whether programs, or the rights and obligations CITES species. However, we expect that small or large. There is not a of their recipients. the overwhelming majority of the disproportionate share of benefits for d. OMB has determined that this rule entities involved with this type of small or large businesses. raises novel legal or policy issues. As a commerce would be considered small as b. Will not cause a major increase in Party to CITES, the United States is defined by the SBA. The declared value costs or prices for consumers; committed to fully and effectively for U.S. trade in CITES wildlife (not individual industries; Federal, State, implementing the Convention. This rule including plants) was $345 million in tribal, or local government agencies; or clarifies the requirements for the import, 2002, $394 million in 2003, $1.5 billion geographic regions. This rule clarifies export, and re-export of CITES in 2004 (including one export of a single and updates the regulations that specimens and informs individuals and panda to China with a declared value of implement CITES and, therefore, will businesses of the current requirements. $1 billion), and $737 million in 2005. provide benefits to all permit applicants Regulatory Flexibility Act: Under the These new regulations create no in terms of time savings. However, this Regulatory Flexibility Act (as amended substantial fee or paperwork changes in rule may result in a small increase in by the Small Business Regulatory the permitting process. Any increase in the number of applications and Enforcement Fairness Act (SBREFA) of costs due to information collections is processing fees for circuses, pet owners 1996), whenever a Federal agency is expected to be minimal. Response time trading in CITES animal species, required to publish a notice of for new information collections will commercial breeding operations for ebenthall on PRODPC61 with RULES3 rulemaking for any proposed or final vary from 6 minutes to 30 minutes per appendix-I species, and entities rule, it must prepare and make available response, and new application fees currently exporting under multiple-use for public comment a regulatory range from free to $100. The regulatory permits. This rule also proposes to flexibility analysis that describes the changes are not major in scope and establish processing fees for the effect of the rule on small entities (i.e., would create only a modest financial or following application types: VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48443 introduction from the sea ($100) and may eliminate the need for export tags international business in CITES registration of commercial breeding on skins of certain native furbearers) specimens. operations for Appendix-I species and, therefore, do not anticipate any b. This rule will not produce a ($100). We anticipate fewer than 30 change in economic effects or current Federalrequirement of $100 million or applicants will be affected annually by activities. greater in any year and is not a these new fees. States have the right and ‘‘significant regulatory action’’ under c. Does not have significant adverse responsibility to manage their wildlife the Unfunded Mandates Reform Act. effects on competition, employment, and plants. Many States have monitored Takings: Under Executive Order investment, productivity, innovation, or the harvest of CITES species since 12630, this rule does not have the ability of U.S.-based enterprises to before the Convention came into effect. significant takings implications. A compete with foreign-based enterprises. We have worked with States and Indian takings implication assessment is not This rule will enable U.S. importers and Tribes to use the information they required. This rule is not considered to exporters of CITES species to better collect to make CITES findings on a have takings implications because it understand and comply with the State or tribal basis where export does not further restrict the import, regulations covering international trade program approval is requested. This export, or re-export of CITES specimens. in CITES wildlife and plants. Without allows us to make findings for all Rather, the rule updates the regulations these revisions to the regulations, the specimens of a particular species from for the import, export, and re-export of U.S. importing and exporting a State or Tribe rather than requiring CITES specimens, which will assist the community may not be able to compete each individual applicant to supply the importing and exporting community in effectively with foreign-based information we need to make legal conducting international trade in CITES companies in the international trade of acquisition and non-detriment findings. specimens. CITES specimens. This rule will assist We supply States and Tribes that have Federalism: The revisions to part 23 U.S. businesses in ensuring that they are approved programs for the export of do not contain provisions that have meeting all current CITES requirements, skins with CITES export tags at no Federalism implications significant thereby decreasing the possibility that charge. These tags are placed on each enough to warrant preparation of a shipments may be delayed or even skin under State- or Tribe-monitored Federalism Assessment under Executive seized in another country that has conditions or regulations. The presence Order 13132. implemented CITES resolutions not yet of a tag on a skin indicates that the skin Civil Justice Reform: Under Executive incorporated into U.S. regulations. was taken under an approved program Unfunded Mandates Reform Act: Order 12988, the Office of the Solicitor and that the necessary findings have Under the Unfunded Mandates Reform has determined that this final rule does been made. By making programmatic Act (2 U.S.C. 1501, et seq.): not unduly burden the judicial system findings, we reduce the amount of a. This final rule will not significantly and meets the requirements of sections paperwork required considerably and, or uniquely affect small governments. A 3(a) and 3(b)(2) of the Order. thus, allow exporters of these species to Small Government Agency Plan is not Specifically, this rule has been reviewed benefit from streamlined export required. As the lead agency for procedures. Export from a State or from to eliminate errors and ensure clarity, implementing CITES in the United tribal lands where there is not an has been written to minimize potential States, we are responsible for approved program is also allowed. disagreements, provides a clear legal monitoring import and export of CITES However, where there is no approved standard for affected actions, and wildlife and plants, including their program, each applicant must complete specifies in clear language the effect on parts, products, and derivatives, and the standard application for export existing Federal law or regulation. issuing import and export documents (rather than the streamlined application Paperwork Reduction Act: This final under CITES. The structure of the for export from approved programs) and rule contains information collections for program imposes no unfunded must provide all information necessary which OMB approval is required under mandates. Therefore, this rule has no to determine that the specimens were the Paperwork Reduction Act of 1995 effect on small governments’ legally acquired and that their export (44 U.S.C. 3501 et seq.). We may not responsibilities. This rule affects States would not be detrimental to the survival conduct or sponsor and a person is not only as described below, concerning of the species. required to respond to a collection of export programs for certain native In this rule, we provide the criteria we information unless it displays a species listed under CITES. use in making decisions to approve a currently valid OMB control number. Some rural communities rely on the program. These criteria are consistent The information collections associated added income produced by harvesting with those that we currently employ in with this rule will be used to evaluate and selling certain CITES species that making such findings, and program applications for CITES documents and occur in the United States, such as the approval will continue to function as it registrations. We will use the American alligator, American ginseng, does now. This final rule provides the information to make decisions on the bobcat, river otter, Canada lynx, brown public with information on how the issuance, suspension, revocation, or bear, and gray wolf. The majority of Service makes findings regarding State denial of CITES documents and consumer products made from these and tribal programs. registrations. species are processed and manufactured These updated CITES regulations will The majority of the information overseas. During 2001-2005, annual assist those who rely on income from collection associated with this rule has exports of animal skins under the CITES the export of certain native CITES been approved under OMB control export programs ranged from species by providing clear, updated number 1018-0093. Forms approved approximately $29 to $61 million. requirements for international trade, under 1018-0093 include 3-200-19, 3- Annual exports of American ginseng thus allowing them to remain 200-20, 3-200-23 through 3-200-37, 3- ebenthall on PRODPC61 with RULES3 during the same timeframe ranged from competitive when conducting business 200-39, 3-200-43, 3-200-46 through 3- approximately $41 to $111 million. We in international markets. This final rule 200-48, 3-200-52, and 3-200-53, 3-200- have not changed the existing provides the importing and exporting 58, 3-200-61, 3-200-64 through 3-200-66, regulations for export from these community a better opportunity for 3-200-69, 3-200-70, 3-200-73, and 3-200- programs (although, in the future, we obtaining economic gain from 76. VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48444 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations We developed new application forms requested approval of the new collections is 1018-0137. The new for single-use permits under a master information collections, including forms information collections and the file or an annual program file and 3-200-74 and 3-200-75, from OMB for a estimated reporting burdens are registration of production facilities for 3–year period. The OMB control indicated in the following table. export of certain native species. We number for the new information NEW INFORMATION COLLECTIONS ASSOCIATED WITH THE FINAL RULE Total Estimated Total Total Total $ Value of Application Number of Completion AnnualNon- Form Number Activity Number of AnnualBurden Burden Processing Regulation Respond- Time Hour $ Cost Responses Hours Hours Fee ents (Hours) Burden 3-200-74 Single-Use Permits 350 1,000 0.1 100 $2,500 $5 * $30,000 50 CFR 23.51 Under a Master File or an Annual Pro- gram File 3-200-75 Registration of a Pro- 25 25 0.5 12.5 $313 $50 * $1,250 50 CFR 23.36, duction Facility for 23.20, 13.11 Export of Native CITES Species Totals 375 1,025 112.5 $2,813 $31,250 *These fees have been approved (see 70 FR 18311, April 11, 2005). We have made changes to the documents expire. We estimate that other information collection requirements for trade in sturgeon approximately 40 circuses import and requirements in the rule (recordkeeping, caviar (which includes paddlefish export CITES wildlife to and from the reporting, fees, etc.), which we caviar). The majority of these United States on a regular basis. If summarize and discuss in this requirements are already implemented exhibitors do not obtain individual preamble. We did not make any changes by other CITES Parties that are either documents for each specimen, they may to our burden estimates as a result of exporting caviar to the United States or encounter difficulties at border these comments. receiving imports of caviar from the crossings. During the comment period At any time, interested members of United States. Therefore, our on the 2000 proposal, one circus stated the public and affected agencies may codification of these existing that they would not wait for their comment on the information collection requirements will not impose a new documents to expire, but would obtain requirements contained in this rule. burden on traders. We require the the new documents as soon as possible Please send such comments to Hope labeling of containers of caviar being since the new type of documents should Grey, Information Collection Clearance imported into or exported or re-exported expedite border crossings. Officer, Fish and Wildlife Service, MS from the United States. Resolution Conf. The system for providing multiple 222-ARLSQ, 4401 North Fairfax Drive, 12.7 (Rev. CoP13) recommends single-use CITES documents, in lieu of Arlington, VA 22203 (mail); (703) 358- guidelines for a universal labeling a single multiple-use document, will 2269 (fax); or email@example.com (e- system to assist Parties in identifying result in increased permit fees ($5 per mail). legal caviar in trade. Sturgeon caviar document) for those entities that were We particularly invite your comments may be traded internationally only if utilizing photocopied multiple-use on: (1) whether or not the collection of non-reusable labels containing specific CITES documents. We are eliminating information is necessary for the proper information are affixed to primary and multiple-use documents because many performance of the functions of the secondary containers. In 2005 and 2006, Service, including whether or not the CITES Parties will no longer accept we issued approximately 200 CITES information will have practical utility; photocopied documents. We estimate documents annually to export and re- (2) the accuracy of our estimate of the 350 exporters will be impacted by this export caviar from the United States. burden for this collection; (3) ways to change.. enhance the quality, utility, and clarity CITES Resolution Conf. 12.3 (Rev. We estimate the public burden for all of the information to be collected; and CoP13) also requires each live animal in the information collections associated (4) ways to minimize the burden of the a traveling exhibition (such as a circus) with this rule, including those already collection of information on applicants.. that is pre-Convention or bred in approved under OMB control numbers National Environmental Policy Act captivity to be covered by a CITES 1018-0093 and 1018-0130, will vary (NEPA): The FWS has determined that document specific to that specimen. from 6 minutes to 85 hours per this final rule is categorically excluded Currently, circuses are allowed to have response, with the vast majority from further NEPA review as provided one document that covers several requiring 1 hour per response. This by 516 DM 2, Appendix 1.9, of the animals. Under these new regulations, estimate includes time for reviewing Department of the Interior National when a document covering multiple instructions, gathering and maintaining Environmental Policy Act Revised specimens qualifying as pre-Convention data, and completing and reviewing the Implementing Procedures (FR Volume or bred in captivity specimens expires, forms and reports. 69, No. 45, March 8, 2004). No further the permittee will need to obtain one During the proposed rule stage, we documentation will be made. document for each specimen. As a solicited comments on the new Government-to-Government ebenthall on PRODPC61 with RULES3 result, this rule may result in increased information collections (FWS Forms 3- Relationship with Tribes: Under the permit application processing fees ($100 200-74 and 3-200-75). While we did not President’s memorandum of April 29, per application) for a small number of receive any comments specifically for 1994, ‘‘Government-to-Government importers and exporters. This the new collection requirements, we did Relations with Native American Tribal requirement will be phased in as current receive several comments pertaining to Governments’’ (59 FR 22951) and 512 VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48445 DM 2, we have evaluated possible 50 CFR Part 23 § 13.1 General. effects on Federally recognized Indian Animals, Endangered and threatened (a) A person must obtain a valid Tribes and have determined that there species, Exports, Fish, Foreign officials, permit before commencing an activity are no effects. Individual tribal members Foreign trade, Forest and forest for which a permit is required by this must meet the same regulatory products, Imports, Incorporation by subchapter, except as provided in § requirements as other individuals who reference, Marine mammals, Plants, 23.53 of this subchapter for trade internationally in CITES species. Reporting and recordkeeping retrospective permits for certain CITES Energy Supply, Distribution, or Use: requirements, Transportation, Treaties, shipments under very specific On May 18, 2001, the President issued Wildlife. situations. Executive Order 13211 on regulations Regulation Promulgation (b) A person must apply for such a that significantly affect energy supply, permit under the general permit distribution, and use. Executive Order I For the reasons given in the preamble, procedures of this part and any other 13211 requires agencies to prepare we amend title 50, chapter I, subchapter regulations in this subchapter that apply Statements of Energy Effects when B of the CFR as follows: to the proposed activity. undertaking certain actions. This rule PART 10 – [AMENDED] (1) The requirements of all applicable revises the current regulations in 50 parts of this subchapter must be met. CFR part 23 that implement CITES. The I 1. The authority citation for part 10 continues to read as follows: (2) A person may submit one regulations provide procedures to assist application that includes the individuals and businesses that import, Authority: 18 U.S.C. 42; 16 U.S.C. 703-712; 16 U.S.C. 668a-d; 19 U.S.C. 1202; 16 U.S.C. information required in each part of this export, and re-export CITES wildlife 1531-1543; 16 U.S.C. 1361-1384, 1401-1407; subchapter, and a single permit will be and plants, and their parts, products, issued if appropriate. 16 U.S.C. 742a-742j-l; 16 U.S.C. 3371-3378. and derivatives, to meet international I 2. In § 10.12, the definition of United I 5. Section 13.11(d) is amended, as set requirements. Although this final rule is considered a significant regulatory States is revised to read as follows: forth below, by: action under Executive Order 12866, it § 10.12 Definitions. a. Removing the first two sentences in will not significantly affect energy * * * * * paragraph (d)(1) and adding in their supplies, distribution, and use. United States means the several States place the three new sentences set forth Therefore, this action is a not a of the United States of America, District below; and significant energy action and no of Columbia, Commonwealth of Puerto b. Adding to the table in paragraph Statement of Energy Effects is required. Rico, American Samoa, U.S. Virgin (d)(4) the following four entries in the Islands, Guam, Commonwealth of the section ‘‘Endangered Species Act/ List of Subjects Northern Mariana Islands, Baker Island, CITES/Lacey Act’’ immediately before 50 CFR Part 10 Howland Island, Jarvis Island, Johnston the last four entries in that section so Atoll, Kingman Reef, Midway Atoll, that all entries that begin with the word Exports, Fish, Imports, Law Navassa Island, Palmyra Atoll, and ‘‘CITES’’ are listed together: enforcement, Plants, Transportation, Wake Atoll, and any other territory or Wildlife. possession under the jurisdiction of the § 13.11 Application procedures. United States. * * * * * 50 CFR Part 13 * * * * * (d) Fees. (1) Unless otherwise Administrative practice and exempted under this paragraph (d), you procedure, Exports, Fish, Imports, PART 13 – [AMENDED] must pay the required permit processing Plants, Reporting and recordkeeping fee at the time that you apply for I 3. The authority citation for part 13 requirements, Transportation, Wildlife. issuance or amendment of a permit. You continues to read as follows: must pay in U.S. dollars. If you submit 50 CFR Part 17 Authority: 16 U.S.C. 668a, 704, 712, 742j- a check or money order, it must be made l, 1374(g), 1382, 1538(d), 1539, 1540(f), 3374; payable to the ‘‘U.S. Fish and Wildlife Endangered and threatened species, 4901-4916; 18 U.S.C. 42; 19 U.S.C. 1202; 31 U.S.C. 9701. Service.’’ * * * Exports, Imports, Reporting and recordkeeping requirements, I 4. Section 13.1 is revised to read as * * * * * Transportation. follows: (4) User fees. * * * Amendment Type of permit CFR Citation Fee fee * * * * * * * Endangered Species Act/CITES/Lacey Act * * * * * * * CITES Introduction from the Sea 50 CFR 23 100 50 CITES Participation in the Plant Rescue Center Program 50 CFR 23 (1) (1 ) CITES Registration of Commercial Breeding Operations for Appendix-I wildlife 50 CFR 23 100 ebenthall on PRODPC61 with RULES3 CITES Request for Approval of an Export Program for a State or Tribe (American Gin- 50 CFR 23 (1) (1 ) seng, Certain Furbearers, and American Alligator) * * * * * * * VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48446 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations * * * * * location in the United States where the § 17.42 Special rules—reptiles. I 6. Section 13.12(a)(1) is revised to records are available for inspection. (a) American alligator (Alligator read as follows: mississippiensis)—(1) Definitions. For PART 17 – [AMENDED] purposes of this paragraph (a) the § 13.12 General information requirements on applications for permits. I 9. The authority citation for part 17 following definitions apply: continues to read as follows: (i) American alligator means any (a) * * * specimen of the species Alligator (1) Applicant’s full name and address Authority: 16 U.S.C. 1361-1407; 16 U.S.C. mississippiensis, whether alive or dead, (street address, city, county, state, and 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99- including any skin, part, product, egg, zip code; and mailing address if 625, 100 Stat. 3500; unless otherwise noted. or offspring thereof held in captivity or different from street address); home and § 17.8 [Redesignated as § 17.9] from the wild. work telephone numbers; and, if I 10. Part 17 is amended by (ii) The definitions of crocodilian available, a fax number and e-mail redesignating § 17.8 as § 17.9. skins and crocodilian parts in § 23.70(b) address, and: I 11. New § 17.8 is added to read as of this subchapter apply to this (i) If the applicant resides or is located follows: paragraph (a). outside the United States, an address in (2) * * * the United States, and, if conducting § 17.8 Import exemption for threatened, (ii) * * * commercial activities, the name and CITES Appendix-II wildlife. (A) Any skin of an American alligator address of his or her agent that is (a) Except as provided in a special may be sold or otherwise transferred located in the United States; and rule in §§ 17.40 through 17.48 or in only if the State or Tribe of taking (ii) If the applicant is an individual, paragraph (b) of this section, all requires skins to be tagged by State or the date of birth, social security number, provisions of §§ 17.31 and 17.32 apply tribal officials or under State or tribal if available, occupation, and any to any specimen of a threatened species supervision with a Service-approved tag business, agency, organizational, or of wildlife that is listed in Appendix II in accordance with the requirements in institutional affiliation associated with of the Convention. part 23 of this subchapter; and the wildlife or plants to be covered by (b) Import. Except as provided in a (B) Any American alligator specimen the license or permit; or (iii) If the applicant is a business, special rule in §§ 17.40 through 17.48, may be sold or otherwise transferred corporation, public agency, or any live or dead specimen of a fish and only in accordance with the laws and institution, the tax identification wildlife species listed as threatened regulations of the State or Tribe in number; description of the type of under this part may be imported which the taking occurs and the State or business, corporation, agency, or without a threatened species permit Tribe in which the sale or transfer institution; and the name and title of the under § 17.32 provided all of the occurs. person responsible for the permit (such following conditions are met: (3) Import and export. Any person as president, principal officer, or (1) The specimen was not acquired in may import or export an American director); foreign commerce or imported in the alligator specimen provided that it is in course of a commercial activity; accordance with part 23 of this * * * * * (2) The species is listed in Appendix subchapter. I 7. Section 13.22(c) is revised to read II of the Convention. (4) Recordkeeping. as follows: (i) Any person not holding an import/ (3) The specimen is imported and § 13.22 Renewal of permits. subsequently used in accordance with export license issued by the Service * * * * * the requirements of part 23 of this under part 14 of this subchapter and (c) Continuation of permitted activity. subchapter, except as provided in who imports, exports, or obtains permits Any person holding a valid, renewable paragraph (b)(4) of this section. under part 23 of this subchapter for the permit may continue the activities (4) Personal and household effects import or export of American alligator authorized by the expired permit until (see § 23.5) must be accompanied by a shall keep such records as are otherwise the Service acts on the application for CITES document. required to be maintained by all import/ renewal if all of the following (5) At the time of import, the importer export licensees under part 14 of this conditions are met: must provide to the FWS subchapter. Such records shall be (1) The permit is currently in force documentation that shows the specimen maintained as in the normal course of and not suspended or revoked; was not acquired in foreign commerce business, reproducible in the English (2) The person has complied with this in the course of a commercial activity. language, and retained for 5 years from section; and (6) All applicable requirements of part the date of each transaction. (3) The permit is not a CITES 14 of this subchapter are satisfied. (ii) Subject to applicable limitations of document that was issued under part 23 I 12. Section 17.42 is amended as set law, duly authorized officers at all of this subchapter (because the CITES forth below by: reasonable times shall, upon notice, be document is void upon expiration). a. Republishing the heading for afforded access to examine such records paragraph (a); required to be kept under paragraph * * * * * I 8. Section 13.46 is amended by adding b. Revising paragraphs (a)(1), (a)(4)(i) of this section, and an a sentence at the end of the section to (a)(2)(ii)(A), and (a)(2)(ii)(B) to read as opportunity to copy such records. read as follows: set forth below; * * * * * c. Removing (a)(2)(ii)(C), (a)(2)(iii), (c) Threatened crocodilians—(1) What § 13.46 Maintenance of records. and (a)(2)(iv); are the definitions of terms used in this * * * Permittees who reside or are d. Adding paragraphs (a)(3) and (a)(4) paragraph (c)? ebenthall on PRODPC61 with RULES3 located in the United States and to read as set forth below; (i) Threatened crocodilian means any permittees conducting commercial e. Revising paragraph (c) to read as set live or dead specimen of the following activities in the United States who forth below; and species: yacare caiman (Caiman yacare), reside or are located outside the United f. Removing and reserving paragraph common caiman (Caiman crocodilus States must maintain records at a (g). crocodilus), brown caiman (Caiman VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48447 crocodilus fuscus, including Caiman re-exported must be tagged or labeled in (iii) We determine, based on crocodilus chiapasius), saltwater accordance with § 23.70 of this information from the CITES Secretariat crocodile (Crocodylus porosus) subchapter. or other reliable sources, that the originating in Australia (also referred to (B) Any countries re-exporting country is not effectively implementing as Australian saltwater crocodile), and crocodilian skins or parts must have the provisions of the Convention. Nile crocodile (Crocodylus niloticus). implemented an administrative system (5) Reporting requirements for yacare (ii) The definitions of crocodilian for the effective matching of imports caiman range countries. skins and crocodilian parts in § 23.70(b) and re-exports. (i) Biennial reports. Range countries and re-export in § 23.5 of this (C) If a shipment contains more than (Argentina, Bolivia, Brazil, and subchapter apply to this paragraph (c). 25 percent replacement tags, the U.S. Paraguay) wishing to export specimens (2) What activities involving Management Authority will consult of yacare caiman to the United States for threatened crocodilians are prohibited with the Management Authority of the commercial purposes must provide a by this rule? re-exporting country before clearing the biennial report containing the most (i) All provisions of §§ 17.31 and shipment. Such shipments may be recent information available on the 17.32 apply to live specimens, including seized if we determine that the status of the species. The first viable eggs, of all threatened requirements of the Convention have submission of a status report will be crocodilians and to any specimen of the not been met. required as of December 31, 2001, and Appendix-I Nile crocodile. (D) The country of origin and any every 2 years thereafter on the (ii) Except as provided in paragraph intermediary country(s) must be anniversary of that date. For each range (c)(2)(i) of this section, the following effectively implementing the country, all of the following information prohibitions apply to threatened Convention. If we receive persuasive must be included in the report. crocodilians. information from the CITES Secretariat (A) Recent distribution and (A) Import, export, and re-export. population data, and a description of or other reliable sources that a specific Except as provided in paragraph (c)(3) the methodology used to obtain such country is not effectively implementing of this section, it is unlawful to import, estimates. the Convention, we will prohibit or export, or re-export, or attempt to (B) Description of research projects restrict imports from such country(s) as import, export, or re-export without currently being conducted related to the appropriate for the conservation of the valid permits as required under parts 17 biology of the species in the wild, species. and 23 of this subchapter any particularly reproductive biology (for (ii) Meat, skulls, scientific specimens, threatened crocodilians, including their example, age or size when animals products, and noncommercial personal skins, parts, and products. become sexually mature, number of (B) Commercial activity. Except as or household effects. The tagging clutches per season, number of eggs per provided in paragraph (c)(3) of this requirements in paragraph (c)(3)(i) of clutch, survival of eggs, survival of section, it is unlawful, in the course of this section for skins and parts do not hatchlings). a commercial activity, to sell or offer for apply to the import, export, or re-export (C) Description of laws and programs sale, deliver, receive, carry, transport, or of threatened crocodilian meat, skulls, regulating harvest, including ship in interstate or foreign commerce scientific specimens, or products or to approximate acreage of land set aside as any threatened crocodilians, including the noncommercial import, export, or natural reserves or national parks that their skins, parts, and products. re-export of personal effects in provide protected habitat for yacare (C) It is unlawful for any person accompanying baggage or household caiman. subject to the jurisdiction of the United effects. (D) Description of current sustainable States to commit, attempt to commit, (4) When and how will the Service harvest programs, including ranching solicit to commit, or cause to be inform the public of additional (captive rearing of specimens collected committed any acts described in restrictions in trade of threatened from the wild as eggs or juveniles) and paragraphs (c)(2)(i) and (c)(2)(ii)(A) and crocodilians? Except in rare cases farming (captive-breeding) programs. (B) of this section. involving extenuating circumstances (E) Current harvest quotas for wild (3) What activities involving that do not adversely affect the populations. threatened crocodilians are allowed by conservation of the species, the Service (F) Export data for the last 2 years. this rule? Except as provided in (c)(2)(i), will issue an information bulletin Information should be organized you may import, export, or re-export, or (posted on our websites, http:// according to the source of specimens sell or offer for sale, deliver, receive, www.fws.gov/le and http:// such as wild-caught, captive-reared, or carry, transport, or ship in interstate or www.fws.gov/international) announcing captive-bred. foreign commerce and in the course of additional restrictions on trade of (ii) Review and restrictions. The U.S. a commercial activity, threatened specimens of threatened crocodilians if Scientific Authority will conduct a crocodilian skins, parts, and products any ofthe following criteria are met: review every 2 years, using information without a threatened species permit (i) The country is listed in a in the biennial reports and other otherwise required under §17.32 Notification to the Parties by the CITES available information, to determine provided the requirements of parts 13, Secretariat as not having designated whether range country management 14, and 23 of this subchapter and the Management and Scientific Authorities. programs are effectively achieving requirements of paragraphs (c)(3) and (ii) The country is identified in any conservation benefits for the yacare (4) of this section have been met. action adopted by the Conference of the caiman. Based on the best available (i) Skins and parts. Except as Parties to the Convention, the Standing information, we may restrict trade from provided in (c)(3)(ii) of this section, the Committee, or in a Notification issued a range country if we determine that the import, export, or re-export of by the CITES Secretariat, whereby conservation or management status of ebenthall on PRODPC61 with RULES3 threatened crocodilian skins and Parties are asked not to accept threatened yacare caiman populations crocodilian parts is allowed provided shipments of specimens of any CITES has changed, such that continued the following conditions are met: species from the country in question or recovery of the population in that (A) Each crocodilian skin and of any crocodilian species listed in the country may be compromised. Trade crocodilian part imported, exported, or CITES Appendices. restrictions, as addressed in paragraph VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48448 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations (c)(4) of this section, may be 23.24 What code is used to show the source 23.61 What factors are considered in implemented based on one or more of of the specimen? making a non-detriment finding? the following factors: 23.25 What additional information is 23.62 What factors are considered in (A) Failure to submit the reports required on a non-Party CITES making a finding of not for primarily document? commercial purposes? described above, or failure to respond to 23.26 When is a U.S. or foreign CITES 23.63 What factors are considered in requests for additional information. document valid? making a finding that an animal is bred (B) A change in range country laws or 23.27 What CITES documents do I present in captivity? regulations that lessens protection for at the port? 23.64 What factors are considered in yacare caiman. making a finding that a plant is Subpart C—Application Procedures, (C) A change in range country artificially propagated? Criteria, and Conditions 23.65 What factors are considered in management programs that lessens protection for the species. 23.32 How do I apply for a U.S. CITES making a finding that an applicant is (D) A documented decline in wild document? suitably equipped to house and care for 23.33 How is the decision made to issue or a live specimen? population numbers. deny a request for a U.S. CITES (E) A documented increase in document? Subpart E—International Trade in Certain poaching. 23.34 What kinds of records may I use to Specimens (F) A documented decline in habitat show the origin of a specimen when I 23.68 How can I trade internationally in quality or quantity. apply for a U.S. CITES document? roots of American ginseng? (G) Other natural or manmade factors 23.35 What are the requirements for an 23.69 How can I trade internationally in fur affecting the species’ recovery. import permit? skins and fur skin products of bobcat, 23.36 What are the requirements for an river otter, Canada lynx, gray wolf, and * * * * * export permit? brown bear? I 13. Part 23 is revised to read as 23.37 What are the requirements for a re- 23.70 How can I trade internationally in follows: export certificate? American alligator and other crocodilian 23.38 What are the requirements for a skins, parts, and products? PART 23—CONVENTION ON certificate of origin? 23.71 How can I trade internationally in INTERNATIONAL TRADE IN 23.39 What are the requirements for an sturgeon caviar? ENDANGERED SPECIES OF WILD introduction-from-the-sea certificate? 23.72 How can I trade internationally in FAUNA AND FLORA (CITES) 23.40 What are the requirements for a plants? certificate for artificially propagated 23.73 How can I trade internationally in Subpart A—Introduction plants? timber? Sec. 23.41 What are the requirements for a bred- 23.74 How can I trade internationally in 23.1 What are the purposes of these in-captivity certificate? personal sport-hunted trophies? regulations and CITES? 23.42 What are the requirements for a plant Subpart F—Disposal of Confiscated Wildlife 23.2 How do I decide if these regulations hybrid? and Plants apply to my shipment or me? 23.43 What are the requirements for a 23.3 What other wildlife and plant wildlife hybrid? 23.78 What happens to confiscated wildlife regulations may apply? 23.44 What are the requirements to travel and plants? 23.4 What are Appendices I, II, and III? internationally with my personally 23.79 How may I participate in the Plant 23.5 How are the terms used in these owned live wildlife? Rescue Center Program? regulations defined? 23.45 What are the requirements for a pre- Subpart G—CITES Administration 23.6 What are the roles of the Management Convention specimen? and Scientific Authorities? 23.46 What are the requirements for 23.84 What are the roles of the Secretariat 23.7 What office do I contact for CITES registering a commercial breeding and the committees? information? operation for Appendix-I wildlife and 23.85 What is a meeting of the Conference of the Parties (CoP)? 23.8 What are the information collection commercially exporting specimens? 23.86 How can I obtain information on a requirements? 23.47 What are the requirements for export CoP? of an Appendix-I plant artificially Subpart B—Prohibitions, Exemptions, and 23.87 How does the United States develop propagated for commercial purposes? Requirements documents and negotiating positions for 23.48 What are the requirements for a 23.13 What is prohibited? a CoP? registered scientific institution? 23.14 [Reserved] 23.88 What are the resolutions and 23.49 What are the requirements for an decisions of the CoP? 23.15 How may I travel internationally with exhibition traveling internationally? my personal or household effects, 23.50 What are the requirements for a Subpart H—Lists of Species including tourist souvenirs? sample collection covered by an ATA 23.89 What are the criteria for listing 23.16 What are the U.S. CITES carnet? species in Appendix I or II? requirements for urine, feces, and 23.51 What are the requirements for issuing 23.90 What are the criteria for listing synthetically derived DNA? a partially completed CITES document? species in Appendix III? 23.17 What are the requirements for CITES 23.52 What are the requirements for 23.91 How do I find out if a species is specimens traded internationally by replacing a lost, damaged, stolen, or listed? diplomatic, consular, military, and other accidentally destroyed CITES document? 23.92 Are any wildlife or plants, and their persons exempt from customs duties or 23.53 What are the requirements for parts, products, or derivatives, exempt? inspections? obtaining a retrospective CITES 23.18 What CITES documents are required document? Authority: Convention on International to export Appendix-I wildlife? 23.54 How long is a U.S. or foreign CITES Trade in Endangered Species of Wild Fauna 23.19 What CITES documents are required document valid? and Flora (March 3, 1973), 27 U.S.T. 1087; to export Appendix-I plants? 23.55 How may I use a CITES specimen and Endangered Species Act of 1973, as 23.20 What CITES documents are required after import into the United States? amended, 16 U.S.C. 1531 et seq. for international trade? 23.56 What U.S. CITES document Subpart A—Introduction ebenthall on PRODPC61 with RULES3 23.21 What happens if a country enters a conditions do I need to follow? reservation for a species? 23.22 What are the requirements for in- Subpart D—Factors Considered in Making § 23.1 What are the purposes of these transit shipments? Certain Findings regulations and CITES? 23.23 What information is required on U.S. 23.60 What factors are considered in (a) Treaty. The regulations in this part and foreign CITES documents? making a legal acquisition finding? implement the Convention on VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48449 International Trade in Endangered of the earth and must be protected for trade and ensure that any use of wildlife Species of Wild Fauna and Flora, also this and future generations. and plants is sustainable. known as CITES, the Convention, the (2) The value of wildlife and plants is (c) National legislation. We, the U.S. Treaty, or the Washington Convention, ever-growing from the viewpoints of Fish and Wildlife Service (FWS), TIAS (Treaties and Other International aesthetics, science, culture, recreation, implement CITES through the Acts Series) 8249. and economics. (b) Purpose. The aim of CITES is to (3) Although countries should be the Endangered Species Act (ESA). regulate international trade in wildlife best protectors of their own wildlife and § 23.2 How do I decide if these regulations and plants, including parts, products, plants, international cooperation is apply to my shipment or me? and derivatives, to ensure it is legal and essential to protect wildlife and plant does not threaten the survival of species species from over-exploitation through Answer the following questions to in the wild. Parties, recognize that: international trade. decide if the regulations in this part (1) Wildlife and plants are an (4) It is urgent that countries take apply to your proposed activity: irreplaceable part of the natural systems appropriate measures to prevent illegal Question on proposed activity Answer and action (a) Is the wildlife or plant species (including parts, products, deriva- (1) YES. Continue to paragraph (b) of this section. tives, whether wild-collected, or born or propagated in a controlled (2) NO. The regulations in this part do not apply. environment) listed in Appendix I, II, or III of CITES (see § 23.91)? (b) Is the wildlife or plant specimen exempted from CITES (see § (1) YES. The regulations in this part do not apply. 23.92)? (2) NO. Continue to paragraph (c) of this section. (c) Do you want to import, export, re-export, engage in international (1) YES. The regulations in this part apply. trade, or introduce from the sea? (2) NO. Continue to paragraph (d) of this section. (d) Was the specimen that you possess or want to enter into intrastate (1) YES. The regulations in this part apply. See § 23.13(c) and (d) or interstate commerce unlawfully acquired, illegally traded, or other- and sections 9(c)(1) and 11(a) and (b) of the ESA (16 U.S.C. wise subject to conditions set out on a CITES document that author- 1538(c)(1) and 1540(a) and (b)). ized import? (2) NO. The regulations in this part do not apply. § 23.3 What other wildlife and plant Protection (CBP), in 7 CFR parts 319, (c) Appendix III includes species regulations may apply? 355, and 356. listed unilaterally by a range country to (a) You may need to comply with (d) You may also need to comply with obtain international cooperation in other regulations in this subchapter that other Federal, State, tribal, or local controlling trade. require a permit or have additional requirements. restrictions. Many CITES species are § 23.5 How are the terms used in these § 23.4 What are Appendices I, II, and III? regulations defined? also covered by one or more parts of this subchapter or title and have additional Species are listed by the Parties in one In addition to the definitions requirements: of three Appendices to the Treaty (see contained in part 10 of this subchapter, (1) Part 15 (exotic birds). subpart H of this part), each of which and unless the context otherwise (2) Part 16 (injurious wildlife). provides a different level of protection requires, in this part: (3) Parts 17 of this subchapter and and is subject to different requirements. Affected by trade means that either a 222, 223, and 224 of this title Parties regulate trade in specimens of species is known to be in trade and the (endangered and threatened species). Appendix-I, -II, and -III species and trade has or may have a detrimental (4) Parts 18 of this subchapter and 216 their parts, products, and derivatives impact on the status of the species, or of this title (marine mammals). through a system of permits and a species is suspected to be in trade or (5) Part 20 (migratory bird hunting). certificates (CITES documents). Such there is demonstrable potential (6) Part 21 (migratory birds). documents enable Parties to monitor the international demand for the species (7) Part 22 (bald and golden eagles). effects of the volume and type of trade that may be detrimental to the survival (b) If you are applying for a permit, to ensure trade is legal and not of the species in the wild. you must comply with the general detrimental to the survival of the Annotation means an official footnote permit procedures in part 13 of this species. to the listing of a species in the CITES subchapter. Definitions and a list of (a) Appendix I includes species Appendices. A reference annotation birds protected under the Migratory threatened with extinction that are or provides information that further Bird Treaty Act can be found in part 10 may be affected by trade. Trade in explains the listing (such as ‘‘p.e.’’ for of this subchapter. Appendix-I specimens may take place possibly extinct). A substantive (c) If you are importing (including only in exceptional circumstances. annotation is an integral part of a introduction from the sea), exporting, or (b) Appendix II includes species that species listing. It designates whether the re-exporting wildlife or plants, you must are not presently threatened with listing includes or excludes a comply with the regulations in part 14 extinction, but may become so if their geographically separate population, of this subchapter for wildlife or part 24 trade is not regulated. It also includes subspecies, species, group of species, or of this subchapter for plants. Activities species that need to be regulated so that higher taxon, and the types of ebenthall on PRODPC61 with RULES3 with plants are also regulated by the trade in certain other Appendix-I or -II specimens included in or excluded from U.S. Department of Agriculture, Animal species may be effectively controlled; the listing, such as certain parts, and Plant Health Inspection Service these species are most commonly listed products, or derivatives. A substantive (APHIS) and Department of Homeland due to their similarity of appearance to annotation may designate export quotas Security, U.S. Customs and Border other related CITES species. adopted by the CoP. For species VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48450 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations transferred from Appendix I to II subject Management Authority of a Party or a Cultivated means a plant grown or to an annotation relating to specified competent authority of a non-Party tended by humans for human use. A types of specimens, other types of whose name and address is on file with cultivated plant can be treated as specimens that are not specifically the Secretariat to authorize the artificially propagated under CITES only included in the annotation are treated as international movement of CITES if it meets the criteria in § 23.64. if they are Appendix-I specimens. specimens. Export means to send, ship, or carry Appropriate and acceptable Commercial means related to an a specimen out of a country (for export destination, when used in an Appendix- activity, including actual or intended from the United States, see part 14 of II listing annotation for the export of, or import, export, re-export, sale, offer for this subchapter). international trade in, live animals, sale, purchase, transfer, donation, Flasked means plant material means that the Management Authority exchange, or provision of a service, that obtained in vitro, in solid or liquid of the importing country has certified, is reasonably likely to result in media, transported in sterile containers. based on advice from the Scientific economic use, gain, or benefit, Household effect means a dead Authority of that country, that the including, but not limited to, profit wildlife or plant specimen that is part proposed recipient is suitably equipped (whether in cash or in kind). of a household move and meets the to house and care for the animal (see Cooperative conservation program criteria in § 23.15. criteria in § 23.65). Such certification means a program in which participating Hybrid means any wildlife or plant must be provided before a CITES captive- breeding facilities produce that results from a cross of genetic document is issued by the Management Appendix-I specimens bred for material between two separate taxa Authority of the exporting or re- noncommercial purposes and when one or both are listed in Appendix exporting country. participate in or support a recovery I, II, or III. See § 23.42 for plant hybrids Artificially propagated means a activity for that species in cooperation and § 23.43 for wildlife hybrids. cultivated plant that meets the criteria with one or more of the species’ range Import means to bring, ship, or carry in § 23.64. countries. a specimen into a country (for import ATA carnet means a type of Coral (dead) means pieces of coral in into the United States, see part 14 of this international customs document (see § which the skeletons of the individual subchapter). 23.50). ATA is a combination of the polyps are still intact, but which contain International trade means the import, French and English words ‘‘Admission no living coral tissue. introduction from the sea, export, or re- Temporaire/Temporary Admission.’’ Coral fragments, including coral export across jurisdictional or Bred for commercial purposes means gravel and coral rubble, means loose international boundaries for any any specimen of an Appendix-I wildlife pieces of broken finger-like coral purpose whether commercial or species bred in captivity for commercial between 2 and 30 mm in diameter that noncommercial. purposes. Any Appendix-I specimen contain no living coral tissue (see § In-transit shipment means the that does not meet the definition of 23.92 for exemptions). transshipment of any wildlife or plant ‘‘bred for noncommercial purposes’’ is Coral (live) means pieces of coral that through an intermediary country when considered to be bred for commercial are alive. the specimen remains under customs purposes. Coral rock means hard consolidated control and either the shipment meets Bred for noncommercial purposes material greater than 30 mm in diameter the requirements of § 23.22 or the means any specimen of an Appendix-I that consists of pieces of coral and sample collection covered by an ATA wildlife species bred in captivity for possibly also cemented sand, coralline carnet meets the requirements of § noncommercial purposes, where each algae, or other sedimentary rocks that 23.50. donation, exchange, or loan of the contain no living coral tissue. Coral rock Introduction from the sea means specimen is noncommercial and is includes live rock and substrate, which transportation into a country of conducted between facilities that are are terms for pieces of coral rock to specimens of any species that were involved in a cooperative conservation which are attached live specimens of taken in the marine environment not program. other invertebrate species or coralline under the jurisdiction of any country. Bred in captivity means wildlife that algae that are not listed in the CITES ISO country code means the two-letter is captive-bred and meets the criteria in Appendices. country code developed by the § 23.63. Coral sand means material that International Organization for Captive-bred means wildlife that is consists entirely, or in part, of finely Standardization (ISO) to represent the the offspring (first (F1) or subsequent crushed coral no larger than 2 mm in name of a country and its subdivisions. generations) of parents that either mated diameter and that contains no living Live rock see the definition for coral or otherwise transferred egg and sperm coral tissue (see § 23.92 for exemptions). rock. under controlled conditions if Country of origin means the country Management Authority means a reproduction is sexual, or of a parent where the wildlife or plant was taken governmental agency officially that was maintained under controlled from the wild or was born or propagated designated by, and under the conditions when development of the in a controlled environment, except in supervision of, either a Party to offspring began if reproduction is the case of a plant specimen that implement CITES, or a non-Party to asexual, but does not meet the bred-in- qualified for an exemption under the serve in the role of a Management captivity criteria (see § 23.63). provisions of CITES, the country of Authority, including the issuance of Certificate means a CITES document origin is the country in which the CITES documents on behalf of that or CITES exemption document that specimen ceased to qualify for the country. identifies on its face the type of exemption. Noncommercial means related to an certificate it is, including re-export Cultivar means a horticulturally activity that is not commercial. ebenthall on PRODPC61 with RULES3 certificate, introduction-from-the-sea derived plant variety that has been Noncommercial includes, but is not certificate, and certificate of origin. selected for specific morphological, limited to, personal use. CITES document or CITES exemption physiological, or other characteristics, Non-Party means a country that has document means any certificate, permit, such as color, a large flower, or disease not deposited an instrument of or other document issued by a resistance. ratification, acceptance, approval, or VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48451 accession to CITES with the Depositary applied to the species and that meets Specimen means any wildlife or Government (Switzerland), or a country the criteria in § 23.45, and any product plant, whether live or dead. This term that was a Party but subsequently (including a manufactured item) or includes any readily recognizable part, notified the Depositary Government of derivative made from such specimen. product, or derivative unless otherwise its denunciation of CITES and the Primarily commercial purposes means annotated in the Appendices. denunciation is in effect. an activity whose noncommercial Sustainable use means the use of a Offspring of first generation (F1) aspects do not clearly predominate (see species in a manner and at a level that means a wildlife specimen produced in § 23.62). maintains wild populations at a controlled environment from parents Propagule means a structure, such as biologically viable levels for the long at least one of which was conceived in a cutting, seed, or spore, which is term. Such use involves a determination or taken from the wild. capable of propagating a plant. Readily recognizable means any of the productive capacity of the species Offspring of second generation (F2) or and its ecosystem to ensure that subsequent generations means a wildlife specimen that appears from a visual, physical, scientific, or forensic utilization does not exceed those specimen produced in a controlled capacities or the ability of the environment from parents that were also examination or test; an accompanying document, packaging, mark, or label; or population to reproduce, maintain itself, produced in a controlled environment. and perform its role or function in its Parental stock means the original any other circumstances to be a part, product, or derivative of any CITES ecosystem. breeding or propagating specimens that wildlife or plant, unless such part, Trade means the same as produced the subsequent generations of product, or derivative is specifically international trade. captive or cultivated specimens. Party means a country that has given exempt from the provisions of CITES or Transit see the definition for in-transit its consent to be bound by the this part. shipment. Re-export means to send, ship, or provisions of CITES by depositing an Traveling exhibition means a display carry out of a country any specimen instrument of ratification, acceptance, of live or dead wildlife or plants for previously imported into that country, approval, or accession with the entertainment, educational, cultural, or whether or not the specimen has been Depositary Government (Switzerland), other display purposes that is altered since import. and for which such consent is in effect. Reservation means the action taken by temporarily moving internationally. Permit means a CITES document that a Party to inform the Secretariat that it identifies on its face import permit or § 23.6 What are the roles of the is not bound by the effect of a specific Management and Scientific Authorities? export permit. listing (see § 23.21). Personal effect means a dead wildlife Scientific Authority means a Under Article IX of the Treaty, each or plant specimen, including a tourist governmental or independent scientific Party must designate a Management and souvenir, that is worn as clothing or institution or entity officially designated Scientific Authority to implement accessories or is contained in by either a Party to implement CITES, CITES for that country. If a non-Party accompanying baggage and meets the or a non-Party to serve the role of a wants to trade with a Party, it must also criteria in § 23.15. Scientific Authority, including making designate such Authorities. The names Personal use means use that is not scientific findings. and addresses of these offices must be commercial and is for an individual’s Secretariat means the entity sent to the Secretariat to be included in own consumption or enjoyment. designated by the Treaty to perform the Directory. In the United States, Precautionary measures means the certain administrative functions (see § different offices within the FWS have actions taken that will be in the best 23.84). been designated the Scientific Authority interest of the conservation of the Shipment means any CITES specimen and Management Authority, which for species when there is uncertainty about in international trade whether for purposes of this section includes FWS the status of a species or the impact of commercial or noncommercial use, Law Enforcement. When offices share trade on the conservation of a species. including any personal item. activities, the Management Authority is Pre-Convention means a specimen Species means any species, responsible for dealing primarily with that was acquired (removed from the subspecies, hybrid, variety, cultivar, management and regulatory issues and wild or born or propagated in a color or morphological variant, or the Scientific Authority is responsible controlled environment) before the date geographically separate population of for dealing primarily with scientific the provisions of the Convention first that species. issues. The offices do the following: U.S. U.S. Manage- Roles Scientific ment Authority Authority (a) Provide scientific advice and recommendations, including advice on biological findings for applications for certain x CITES documents, registrations, and export program approvals. Evaluate the conservation status of species to deter- mine if a species listing or change in a listing is warranted. Interpret listings and review nomenclatural issues. (b) Review applications for CITES documents and issue or deny them based on findings required by CITES. x (c) Communicate with the Secretariat and other countries on scientific, administrative, and enforcement issues. x x (d) Ensure that export of Appendix-II specimens is at a level that maintains a species throughout its range at a level con- x ebenthall on PRODPC61 with RULES3 sistent with its role in the ecosystems in which it occurs and well above the level at which it might become eligible for inclusion in Appendix I. (e) Monitor trade in all CITES species and produce annual reports on CITES trade. x VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48452 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations U.S. U.S. Manage- Roles Scientific ment Authority Authority (f) Collect the cancelled foreign export permit or re-export certificate and any corresponding import permit presented for x import of any CITES specimen. Collect a copy of the validated U.S. export permit or re-export certificate presented for export or re-export of any CITES specimen. (g) Produce biennial reports on legislative, regulatory, and administrative measures taken by the United States to enforce x the provisions of CITES. (h) Coordinate with State and tribal governments and other Federal agencies on CITES issues, such as the status of na- x x tive species, development of policies, negotiating positions, and law enforcement activities. (i) Communicate with the scientific community, the public, and media about CITES issues. Conduct public meetings and x x publish notices to gather input from the public on the administration of CITES and the conservation and trade status of domestic and foreign species traded internationally. (j) Represent the United States at the meetings of the CoP, on committees (see subpart G of this part), and on CITES x x working groups. Consult with other countries on CITES issues and the conservation status of species. Prepare discus- sion papers and proposals for new or amended resolutions and species listings for consideration at the CoP. (k) Provide assistance to APHIS and CBP for the enforcement of CITES. Cooperate with enforcement officials to facili- x x tate the exchange of information between enforcement bodies and for training purposes. (l) Provide financial and technical assistance to other governmental agencies and CITES officials of other countries. x x § 23.7 What office do I contact for CITES information? Contact the following offices to receive information about CITES: Type of information Office to contact (a) CITES administrative and management issues: U.S. Management Authority (1) CITES documents, including application forms and procedures; U.S. Fish and Wildlife Service lists of registered scientific institutions and operations breeding 4401 North Fairfax Drive, Room 700 Appendix-I wildlife for commercial purposes; and reservations Arlington, Virginia 22203 (2) Information on the CoP Toll Free: (800) 358-2104/permit questions (3) List of CITES species Tel: (703) 358-2095/other questions (4) Names and addresses of other countries’ Management and Fax: (703) 358-2281/permits Scientific Authority offices Fax: (703) 358-2298/other issues (5) Notifications, resolutions, and decisions E-mail: firstname.lastname@example.org (6) Standing Committee documents and issues Website: http://www.fws.gov/international and http://www.fws.gov/per- (7) State and tribal export programs mits (b) Scientific issues: (1) Animals and Plants Committees documents and issues U.S. Scientific Authority (2) Findings of non-detriment and suitability of facilities, and other U.S. Fish and Wildlife Service scientific findings 4401 North Fairfax Drive, Room 750 (3) Listing of species in the Appendices and relevant resolutions Arlington, Virginia 22203 (4) Names and addresses of other countries’ Scientific Authority Tel: (703) 358-1708 offices and scientists involved with CITES-related issues Fax: (703) 358-2276 (5) Nomenclatural issues E-mail: email@example.com Website: http://www.fws.gov/international (c) Wildlife clearance procedures: (1) CITES replacement tags Law Enforcement (2) Information about wildlife port office locations U.S. Fish and Wildlife Service (3) Information bulletins 4401 North Fairfax Drive, Mail Stop LE–3000 (4) Inspection and clearance of wildlife shipments involving import, Arlington, Virginia 22203 introduction from the sea, export, and re-export, and filing a Tel: (703) 358-1949 Declaration of Importation or Exportation of Fish or Wildlife Fax: (703) 358-2271 (Form 3–177) Website: http://www.fws.gov/le (5) Validation, certification, or cancellation of CITES wildlife docu- ments ebenthall on PRODPC61 with RULES3 VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48453 Type of information Office to contact (d) APHIS plant clearance procedures: U.S. Department of Agriculture APHIS/PPQ (1) Information about plant port office locations 4700 River Road (2) Inspection and clearance of plant shipments involving: Riverdale, Maryland 20737–1236 (i) Import and introduction from the sea of living plants Toll Free: (877) 770-5990/permit questions (ii) Export and re-export of living and nonliving plants Tel: (301) 734-8891/other CITES issues (3) Validation or cancellation of CITES plant documents for the Fax: (301) 734-5786/permit questions type of shipments listed in paragraph (d)(2) of this section Fax: (301) 734-5276/other CITES issues Website: http://www.aphis.usda.gov/plant_health (e) CBP plant clearance procedures: Department of Homeland Security (1) Inspection and clearance of plant shipments involving: U.S. Customs and Border Protection (i) Import and introduction from the sea of nonliving plants Office of Field Operations (ii) Import of living plants from Canada at designated border Agriculture Programs and Liaison ports (7 CFR 319.37–14(b) and 50 CFR 24.12(d)) 1300 Pennsylvania Avenue, NW, Room 2.5 B (2) Cancellation of CITES plant documents for the type of ship- Washington, DC 20229 ments listed in paragraph (e)(1) of this section Tel: (202) 344-3298 Fax: (202) 344-1442 (f) General information on CITES: CITES Secretariat (1) CITES export quota information Website: http://www.cites.org (2) CITES’Guidelines for transport and preparation for shipment of live wild animals and plants (3) Information about the Secretariat (4) Names and addresses of other countries’ Management and Scientific Authority offices (5) Official documents, including resolutions, decisions, notifica- tions, CoP documents, and committee documents (6) Official list of CITES species and species database (7) Text of the Convention § 23.8 What are the information collection (b) Introduce from the sea any prohibits or restricts the import, export, requirements? specimen of a species listed in or re-export of the item. The Office of Management and Budget Appendix I or II of CITES. (1) You or your shipment must be approved the information collection (c) Possess any specimen of a species accompanied by any document required requirements for application forms and listed in Appendix I, II, or III of CITES by a country under its stricter national reports contained in this part and imported, exported, re-exported, measures. assigned OMB Control Numbers 1018– introduced from the sea, or traded (2) In the United States, you must 0093 and 1018–0137. We cannot collect contrary to the provisions of CITES, the obtain any permission needed under or sponsor a collection of information ESA, or this part. other regulations in this subchapter (see and you are not required to provide § 23.3). information unless it displays a (d) Attempt to commit, solicit another to commit, or cause to be committed any (c) Required CITES documents. You currently valid OMB control number. must obtain a CITES document for of the activities described in paragraphs (a) through (c) of this section. personal or household effects and meet Subpart B—Prohibitions, Exemptions, the requirements of this part if one of and Requirements § 23.14 [Reserved] the following applies: § 23.13 What is prohibited? (1) The Management Authority of the § 23.15 How may I travel internationally Except as provided in § 23.92, it is importing, exporting, or re-exporting with my personal or household effects, unlawful for any person subject to the including tourist souvenirs? country requires a CITES document. jurisdiction of the United States to (2) You or your shipment does not conduct any of the following activities (a) Purpose. Article VII(3) of the meet all of the conditions for an unless they meet the requirements of Treaty recognizes a limited exemption exemption as provided in paragraphs (d) this part: for the international movement of through (f) of this section. (a) Import, export, re-export, or engage personal and household effects. (3) The personal or household effect in international trade with any (b) Stricter national measures. The for the following species exceeds the specimen of a species listed in exemption for personal and household quantity indicated in paragraphs (c)(3)(i) Appendix I, II, or III of CITES. effects does not apply if a country through (vi) in the table below: Major group Species (Appendix II only) Type of specimen Quantity1 Fishes (i) Acipenseriformes (sturgeon, includ- Sturgeon caviar (see § 23.71) 250 gm ing paddlefish) Fishes (ii) Hippocampus spp. (seahorses) Dead specimens, parts, products (in- 4 ebenthall on PRODPC61 with RULES3 cluding manufactured items), and derivatives VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48454 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations Major group Species (Appendix II only) Type of specimen Quantity1 Reptiles (iii) Crocodylia (alligators, caimans, Dead specimens, parts, products (in- 4 crocodiles, gavial) cluding manufactured items), and derivatives Molluscs (iv) Strombus gigas (queen conch) Shells 3 Molluscs (v) Tridacnidae (giant clams) Shells, each of which may be one in- 3 shells, total not exceeding 3 kg tact shell or two matching halves Plants (vi) Cactaceae (cacti) Rainsticks 3 1 To import, export, or re-export more than the quantity listed in the table, you must have a valid CITES document for the entire quantity. (d) Personal effects. You do not need otherwise acquired before you changed (1) You must obtain any collection a CITES document to import, export, or your residence. permit and CITES document required by re-export any legally acquired specimen (f) African elephant worked ivory. the foreign country. of a CITES species to or from the United You may export or re-export from the (2) If the foreign country requires you States if all of the following conditions United States worked African elephant to have a U.S. CITES document for these are met: (Loxodonta africana) ivory and then re- kinds of samples, you must apply for a (1) No live wildlife or plant (including import it without a CITES document if CITES document and meet the eggs or non-exempt seeds) is included. all of the following conditions are met: requirements of this part. (2) No specimen from an Appendix-I (1) The worked ivory is a personal or (b) Urine and feces. Except as species is included, except for certain household effect that meets the provided in paragraph (a) of this worked African elephant ivory as requirements of paragraphs (c) through section, we consider urine and feces to provided in paragraph (f) of this section. (e) of this section and you are a U.S. be wildlife byproducts, rather than (3) The specimen and quantity of resident who owned the worked ivory parts, products, or derivatives, and specimens are reasonably necessary or before leaving the United States and exempt them from the requirements of appropriate for the nature of your trip or intend to bring the item back to the CITES and this part. stay and, if the type of specimen is one United States. (c) DNA. We differentiate between listed in paragraph (c)(3) of this section, (2) The ivory is pre-Convention (see § DNA directly extracted from blood and the quantity does not exceed the 23.45). (The African elephant was first tissue and DNA synthetically derived as quantity given in the table. listed in CITES on February 26, 1976.) follows: (4) You own and possess the (3) You may not sell or transfer the (1) A DNA sample directly derived specimen for personal use, including ivory while outside the United States. from wildlife or plant tissue is regulated any specimen intended as a personal (4) The ivory is substantially worked by CITES and this part. gift. and is not raw. Raw ivory means an (2) A DNA sample synthetically (5) You are either wearing the African elephant tusk, or any piece of derived that does not contain any part specimen as clothing or an accessory or tusk, the surface of which, polished or of the original template is exempt from taking it as part of your personal unpolished, is unaltered or minimally the requirements of CITES and this part. baggage, which is being carried by you carved, including ivory mounted on a stand or part of a trophy. § 23.17 What are the requirements for or checked as baggage on the same (5) When you return, you are able to CITES specimens traded internationally by plane, boat, vehicle, or train as you. diplomatic, consular, military, and other (6) The specimen was not mailed or provide records, receipts, or other documents to show that the ivory is pre- persons exempt from customs duties or shipped separately. inspections? (e) Household effects. You do not Convention and that you owned and registered it before you left the United A specimen of a CITES species need a CITES document to import, imported, introduced from the sea, export, or re-export any legally acquired States. To register such an item you must obtain one of the following exported, or re-exported by a person specimen of a CITES species that is part receiving duty-free or inspection of a shipment of your household effects documents: (i) U.S. CITES pre-Convention exemption privileges under customs when moving your residence to or from laws must meet the requirements of the United States, if all of the following certificate. (ii) FWS Declaration of Importation or CITES and the regulations in this part. conditions are met: Exportation of Fish or Wildlife (Form 3– (1) The provisions of paragraphs (d)(1) § 23.18 What CITES documents are 177). required to export Appendix-I wildlife? through (3) of this section are met. (iii) Customs and Border Protection (2) You own the specimen and are Answer the questions in the following Certificate of Registration for Personal moving it for personal use. decision tree to find the section in this Effects Taken Abroad (Form 4457). (3) You import or export your part that applies to the type of CITES household effects within 1 year of § 23.16 What are the U.S. CITES document you need to export changing your residence from one requirements for urine, feces, and Appendix-I wildlife. See § 23.20(d) for country to another. synthetically derived DNA? CITES exemption documents or § 23.92 (4) The shipment, or shipments if you (a) CITES documents. We do not for specimens that are exempt from the cannot move all of your household require CITES documents to trade in requirements of CITES and do not need ebenthall on PRODPC61 with RULES3 effects at one time, contains only urine, feces, or synthetically derived CITES documents. specimens purchased, inherited, or DNA. BILLING CODE 4310–55–S VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48455 ebenthall on PRODPC61 with RULES3 ER23au07.001</GPH> VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4725 E:\FR\FM\23AUR3.SGM 23AUR3 48456 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations § 23.19 What CITES documents are part that applies to the type of CITES for specimens that are exempt from the required to export Appendix-I plants? document you need to export requirements of CITES and do not need Answer the questions in the following Appendix-I plants. See § 23.20(d) for CITES documents. decision tree to find the section in this CITES exemption documents or § 23.92 ebenthall on PRODPC61 with RULES3 VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48457 ebenthall on PRODPC61 with RULES3 BILLING CODE 4310–55–C ER23au07.002</GPH> VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48458 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations § 23.20 What CITES documents are of all countries concerned to obtain any 23.92). If one of the exemptions does not required for international trade? documentation required under stricter apply to the specimen, you must obtain (a) Purpose. Articles III, IV, and V of national measures. a CITES document as provided in the Treaty give the types of standard (c) CITES documents. Except as paragraph (e) of this section. The first CITES documents that must accompany provided in the regulations in this part, column in the following table an Appendix-I, -II, or -III specimen in you must have a valid CITES document alphabetically lists the type of specimen international trade. Articles VII and XIV to engage in international trade in any or activity that may qualify for a CITES recognize some exemptions and provide CITES specimen. exemption document. The last column that a CITES document must accompany (d) CITES exemption documents. The following table lists the CITES indicates the section of this part that most exempt specimens. (b) Stricter national measures. Before exemption document that you must contains information on the application importing, introducing from the sea, obtain before conducting a proposed procedures, provisions, criteria, and exporting, or re-exporting a specimen, activity with an exempt specimen (other conditions specific to each CITES check with the Management Authorities than specimens exempted under § exemption document, as follows: Type of specimen or activity Appendix CITES exemption document Section (1) Artificially propagated plant (see paragraph I, II, or III CITES document with source code ‘‘A’’1 23.40 (d)(4) of this section for an Appendix-I plant propagated for commercial purposes) (2) Artificially propagated plant from a country that II or III Phytosanitary certificate with CITES statement1 23.23(f) has provided copies of the certificates, stamps, and seals to the Secretariat (3) Bred-in-captivity wildlife (see paragraph (d)(5) I, II, or III CITES document with source code ‘‘C’’1 23.41 of this section for Appendix-I wildlife bred in captivity for commercial purposes) (4) Commercially propagated Appendix-I plant I CITES document with source code ‘‘D’’1 23.47 (5) Commercially bred Appendix-I wildlife from a I CITES document with source code ‘‘D’’1 23.46 breeding operation registered with the CITES Secretariat (6) Export of certain marine specimens protected II CITES document indicating that the specimen 23.36(e) under a pre-existing treaty, convention, or inter- was taken in accordance with provisions of the 23.39(e) national agreement for that species applicable treaty, convention, or international agreement (7) Hybrid plants I, II, or III CITES document unless the specimen qualifies 23.42 as an exempt plant hybrid (8) Hybrid wildlife I, II, or III CITES document unless the specimen qualifies 23.43 as an exempt wildlife hybrid (9) In-transit shipment (see paragraph (d)(14) of I, II, or III CITES document designating importer and coun- 23.22 this section for sample collections covered by an try of final destination ATA carnet) (10) Introduction from the sea under a pre-existing II Document required by applicable treaty, conven- 23.39(d) treaty, convention, or international agreement for tion, or international agreement, if appropriate that species (11) Noncommercial loan, donation, or exchange I, II, or III A label indicating CITES and the registration 23.48 of specimens between scientific institutions reg- codes of both institutions and, in the United istered with the CITES Secretariat States, a CITES certificate of scientific ex- change that registers the institution3 (12) Personally owned live wildlife for multiple I, II, or III CITES certificate of ownership2 23.44 cross-border movements (13) Pre-Convention specimen I, II, or III CITES document indicating pre-Convention sta- 23.45 tus1 (14) Sample collection covered by an ATA carnet I4, II, or III CITES document indicating sample collection2 23.50 (15) Traveling exhibition I, II, or III CITES document indicating specimens qualify as 23.49 pre-Convention, bred in captivity, or artificially ebenthall on PRODPC61 with RULES3 propagated2 1 Issued by the Management Authority in the exporting or re-exporting country. 2 Issued by the Management Authority in the owner’s country of usual residence. 3 Registration codes assigned by the Management Authorities in both exporting and importing countries. 4 Appendix-I species bred in captivity or artificially propagated for commercial purposes (see §§ 23.46 and 23.47). VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48459 (e) Import permits, export permits, re- under paragraph (d) of this section or § following CITES documents before export certificates, and certificates of 23.92 applies, you must obtain the conducting the proposed activity: origin. Unless one of the exemptions Appendix Type of CITES document(s) required I Import permit (§ 23.35) and either an export permit (§ 23.36) or re-export certificate (§ 23.37) II Export permit (§ 23.36) or re-export certificate (§ 23.37) III Export permit (§ 23.36) if the specimen originated in a country that listed the species; certificate of origin (§ 23.38) if the specimen originated in a country other than the listing country, unless the listing annotation indicates otherwise; or re-export certificate for all re-exports (§ 23.37) (f) Introduction-from-the-sea listing country, or a re-export certificate (c) Requesting the United States take certificates. For introduction from the for all re-exports (§ 23.37). a reservation. You may submit sea of Appendix-I or Appendix-II information relevant to the issue of § 23.21 What happens if a country enters specimens, you must obtain an a reservation for a species? whether the United States should take a introduction-from-the-sea certificate reservation on a species listing to the (a) Purpose. CITES is not subject to before conducting the proposed activity, U.S. Management Authority. The general reservations. Articles XV, XVI, unless the exemption in paragraph request must be submitted within 30 and XXIII of the Treaty allow a Party to (d)(10) of this section applies (see § calendar days after the last day of the enter a specific reservation on a species 23.39). The export of a specimen that CoP where a new or amended listing of listed in Appendix I, II, or III, or on was previously introduced from the sea parts, products, or derivatives of a a species in Appendix I or II occurs, or will be treated as an export (see § 23.36 species listed in Appendix III. at any time for a species (or its parts, for export, § 23.36(e) and § 23.39(e) for (b) General provision. A Party can products, or derivatives) listed in export of exempt specimens, or § 23.37 enter a reservation in one of the Appendix III. for re-export). Although an Appendix-III following ways: specimen does not require a CITES (d) Required CITES documents. (1) A Party must provide written document to be introduced from the sea, Except as provided in paragraph (d)(2) notification to the Depositary the subsequent international trade of the Government (Switzerland) on a specific of this section, Parties treat a reserving specimen would be considered an new or amended listing in the Party as if it were a non-Party for trade export. For export of an Appendix-III Appendices within 90 days after the in the species concerned (including specimen that was introduced from the CoP that adopted the listing, or at any parts, products, and derivatives, as sea you must obtain an export permit (§ time for Appendix-III species. appropriate). The following table 23.36) if the export is from the country (2) A country must provide written indicates when CITES documents must that listed the species in Appendix III, notification on a specific species listing accompany a shipment and which a certificate of origin (§ 23.38) if the when the country ratifies, accepts, Appendix should appear on the face of export is from a country other than the approves, or accedes to CITES. the document: If Then (1) The shipment is between a Party and a reserving Party, or the ship- The shipment must be accompanied by a valid CITES document(s) ment is from a non-Party to a reserving Party and is in transit (see § 23.26) that indicates the CITES Appendix in which the spe- through a Party cies is listed. (2) The shipment is from a reserving Party to another reserving Party1 The shipment must be accompanied by a valid CITES document(s) or non-Party and is in transit through a Party (see § 23.26) that indicates the CITES Appendix in which the spe- cies is listed.2 (3) The shipment is between a reserving Party and another reserving No CITES document is required.2 Party1 or non-Party and is not in transit through a Party 1 Both reserving Parties must have a reservation for the same species, and if the species is listed in Appendix III, a reservation for the same parts, products, and derivatives. 2 CITES recommends that reserving Parties treat Appendix-I species as if listed in Appendix II and issue CITES documents based on Appen- dix-II permit criteria (see § 23.36). However, the CITES document must show the specimen as listed in Appendix I. If the United States entered a reservation, such a CITES document would be required. (e) Reservations taken by countries. before reaching its final destination sample collections covered by an ATA You may consult the CITES website or without the need for the intermediary carnet. contact us (see § 23.7) for a list of Party to issue CITES documents. To (b) Document requirements. An in- countries that have taken reservations control any illegal trade, Parties are to transit shipment does not require a and the species involved. inspect, to the extent possible under CITES document from an intermediary their national legislation, specimens in ebenthall on PRODPC61 with RULES3 § 23.22 What are the requirements for in- country, but must be accompanied by transit shipments? transit through their territory to verify all of the following documents: the presence of valid documentation. (1) Unless the specimen qualifies for (a) Purpose. Article VII(1) of the Treaty allows for a shipment to transit See § 23.50 for in-transit shipment of an exemption under § 23.92, a valid an intermediary country that is a Party original CITES document, or a copy of VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48460 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations the valid original CITES document, that manipulated, or split unless authorized Article VII, must contain standardized designates the name of the importer in by the Management Authority of the information to allow a Party to verify the country of final destination and is intermediary country for inspection or that the specimen being shipped is the issued by the Management Authority of enforcement purposes. one listed on the document and that the the exporting or re-exporting country. A (d) Reserving Party or non-Party. All trade is consistent with the provisions copy of a CITES document is subject to the requirements of this section apply to of the Treaty. verification. shipments to or from a reserving Party (b) CITES form. A CITES document (2) For shipment of an Appendix-I or non-Party that are being transshipped issued by a Party must be on a form specimen, a copy of a valid import through a Party. The CITES document printed in one or more of the three permit that designates the name of the must treat the specimen as listed in the working languages of CITES (English, importer in the country of final Appendix as provided in § 23.21(d). Spanish, or French). A CITES document destination, unless the CITES document (e) Specimen protected by other from a non-Party may be in the form of in paragraph (b)(1) of this section is a regulations. Shipment of a specimen a permit or certificate, letter, or any CITES exemption document (see § that is also listed as a migratory bird other form that clearly indicates the 23.20(d)). (part 10 of this subchapter), injurious nature of the document and includes the (3) Transportation and routing wildlife (part 16 of this subchapter), information in paragraphs (c) through documents that show the shipment has endangered or threatened species (parts (e) of this section and the additional been consigned to the same importer 17 of this subchapter and 222–224 of information in § 23.25. and country of final destination as this title), marine mammal (parts 18 of (c) Required information. Except for a designated on the CITES document. this subchapter and 216 of this title), or phytosanitary certificate used as a (c) Shipment requirements. An in- bald or golden eagle (part 22 of this CITES certificate for artificially transit shipment, including items in an subchapter), and is moving through the propagated plants in paragraph (f) of on-board store, must meet the following: United States is considered an import, this section, or a customs declaration (1) When in an intermediary country, and cannot be treated as an in-transit label used to identify specimens being an in-transit shipment must stay only shipment (see § 23.3). moved between registered scientific for the time needed to immediately institutions (§ 23.48(e)(5)), a CITES transfer the specimen to the mode of § 23.23 What information is required on document issued by a Party or non-Party transport used to continue to the final U.S. and foreign CITES documents? must contain the information set out in destination and remain under customs (a) Purpose. Article VI of the Treaty this paragraph (listed alphabetically). control. Other than during immediate provides standard information that must Specific types of CITES documents must transfer, the specimen may not be stored be on a permit and certificate issued also contain the additional information in a duty-free, bonded, or other kind of under Articles III, IV, and V. To identify identified in paragraph (e) of this warehouse or a free trade zone. a false or invalid document, any CITES section. A CITES document is valid only (2) At any time during transit, an in- document, including a CITES when it contains the following transit shipment must not be sold, exemption document issued under information: Required information Description (1) Appendix The CITES Appendix in which the species, subspecies, or population is listed (see § 23.21 when a Party has taken a reservation on a listing). (2) Applicant’s signature The applicant’s signature if the CITES document includes a place for it. (3) Bill of lading, air waybill, or flight As applicable for export or re-export: (i) by ocean or air cargo, the bill of lading or air waybill number or (ii) number in accompanying baggage, the flight number, as recorded on the CITES document by the inspecting offi- cial at the port, if known at the time of validation or certification. (4) Dates Date of issue and date of expiration (‘‘valid until’’ date on the standardized CITES form), which is midnight of the date on the CITES document. See § 23.54 for the length of validity for different types of CITES documents. (5) Description of the specimen A complete description of the specimen, including whether live or the type of goods. The sex and age of a live specimen should be recorded, if possible. Such information must be in English, Spanish, or French on a CITES document from a Party. If a code is used to indicate the type of specimen, it must agree with the Guidelines for preparation and submission of CITES annual reports available from the CITES website or us (see § 23.7). (6) Document number A unique control number. We use a unique 12-character number. The first two characters are the last two digits of the year of issuance, the next two are the two-letter ISO country code, followed by a six-digit serial number, and two digits or letters used for national informational purposes. ebenthall on PRODPC61 with RULES3 VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48461 Required information Description (7) Humane transport of live wildlife If the CITES document authorizes the export or re-export of live wildlife, a statement that the document is valid only if the transport conditions comply with CITES’ Guidelines for transport and preparation for shipment of live wild animals and plants, or in the case of air transport of wildlife, with the International Air Transport Association Live Animals Regulations. The shipment must comply with the requirements of CITES’Guidelines for transport and preparation for shipment of live wild animals and plants, adopted by the Parties in 1979 and revised in 1981, or, in the case of air transport of wildlife, the Live Animals Reg- ulations (LAR), 33rd edition, October 1, 2006, by the International Air Transport Association (IATA), Ref- erence Number: 9105-33, ISBN 92-9195-818-2. The incorporation by reference of these documents was approved by the Director of the Office of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of CITES’ Guidelines for transport and preparation for shipment of live wild animals and plants may be obtained from the CITES Secretariat, International Environment House, Chemin des ´ ˆ Anemones, CH-1219, Chatelaine, Geneva, Switzerland, or through the Internet at http://www.cites.org/ eng/resources/transport/E-TranspGuide.pdf. Copies of the IATA LAR may be obtained from IATA, 800 Place Victoria, P.O. Box 113, Montreal, Quebec, Canada H4Z 1M1, by calling 1-800-716-6326, or order- ing through the Internet at http://www.iata.org. Copies of these documents may be inspected at the U.S. Management Authority, Fish and Wildlife Service, 4401 N. Fairfax Dr., Arlington, VA 22203 or at the Na- tional Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ ibr_locations.html. (8) Identification of the specimen Any unique identification number or mark (such as a tag, band, ring, microchip, label, or serial number), in- cluding any mark required under these regulations or a CITES listing annotation. For a microchip, the microchip code, trademark of the transponder manufacturer and, where possible, the location of the microchip in the specimen. If a microchip is used, we may, if necessary, ask the importer, exporter, or re-exporter to have equipment on hand to read the microchip at the time of import, export, or re-export. (9) Management Authority The complete name and address of the issuing Management Authority as included in the CITES directory, which is available from the CITES website or us (see § 23.7). (10) Name and address The complete name and address, including country, of the exporter and importer. (11) Purpose of transaction The purpose of the transaction identified either through a written description of the purpose of the trans- action or by using one of the codes given in paragraph (d) of this section. The code is determined by the issuing Management Authority through information submitted with an application. This is not required for a certificate of origin. (12) Quantity The quantity of specimens authorized in the shipment and, if appropriate, the unit of measurement using the metric system: (i) The unit of measurement should be appropriate to the type of specimen and agree with the Guidelines for the preparation and submission of CITES annual reports available from the CITES website or us (see § 23.7). General descriptions such as ‘‘one case’’ or ‘‘one batch’’ are not acceptable. (ii) Weight should be in kilograms. If weight is used, net weight (weight of the specimen alone) must be stated, not gross weight that includes the weight of the container or packaging. (iii) Volume should be in cubic meters for logs and sawn wood and either square meters or cubic meters for veneer and plywood. (iv) For re-export, if the type of good has not changed since being imported, the same unit of measure- ment as on the export permit must be used, except to change to units that are to be used in the CITES annual report. (13) Scientific name The scientific name of the species, including the subspecies when needed to determine the level of protec- tion of the specimen under CITES, using standard nomenclature as it appears in the CITES Appendices or the references adopted by the CoP. A list of current references is available from the CITES website or us (see § 23.7). A CITES document may contain higher-taxon names in lieu of the species name only under one of the following circumstances: (i) The CoP has agreed that the use of a higher-taxon name is acceptable for use on CITES documents. (A) If the genus cannot be readily determined for coral rock, the scientific name to be used is the order Scleractinia. (B) Live and dead coral must be identified to the level of species except where the CoP has agreed that identification to genus is acceptable. A current list of coral taxa identifiable to genus is available from the CITES website or us (see § 23.7). (C) Re-export of worked skins or pieces of Tupinambis species that were imported before August 1, 2000, may indicate Tupinambis spp. (ii) The issuing Party can show the use of a higher-taxon name is well justified and has communicated the justification to the Secretariat. (iii) The item is a pre-Convention manufactured product containing a specimen that cannot be identified to the species level. (14) Seal or stamp The embossed seal or ink stamp of the issuing Management Authority. ebenthall on PRODPC61 with RULES3 (15) Security stamp If a Party uses a security stamp, the stamp must be canceled by an authorized signature and a stamp or seal, preferably embossed. The number of the stamp must also be recorded on the CITES document. VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48462 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations Required information Description (16) Signature An original handwritten signature of a person authorized to sign CITES documents for the issuing Manage- ment Authority. The signature must be on file with the Secretariat. (17) Signature name The name of the person who signed the CITES document. (18) Source The source of the specimen. For re-export, unless there is information to indicate otherwise, the source code on the CITES document used for import of the specimen must be used. See § 23.24 for a list of codes. (19) Treaty name Either the full name or acronym of the Treaty, or the CITES logo. (20) Type of CITES document The type of CITES document (import, export, re-export, or other): (i) If marked ‘‘other,’’ the CITES document must indicate the type of document, such as certificate for artifi- cially propagated plants, certificate for wildlife bred in captivity, certificate of origin, certificate of owner- ship, introduction-from-the-sea certificate, pre-Convention certificate, sample collection covered by an ATA carnet, scientific exchange certificate, or traveling-exhibition certificate. (ii) If multiple types are authorized on one CITES document, the type that applies to each specimen must be clearly indicated. (21) Validation or certification The actual quantity of specimens exported or re-exported: (i) Using the same units of measurement as those on the CITES document. (ii) Validated or certified by the stamp or seal and signature of the inspecting authority at the time of export or re-export. (d) Purpose of transaction. If the purpose is not identified by a written description, the CITES document must contain one of the following codes: Code Purpose of transaction Code Purpose of transaction Code Purpose of transaction B ........... Breeding in captivity or artificial L ........... Law enforcement/judicial/forensic P ........... Personal propagation M .......... Medical research (including bio- Q .......... Circus and traveling exhibition E ........... Education medical research) S ........... Scientific G .......... Botanical garden N .......... Reintroduction or introduction into T ........... Commercial H .......... Hunting trophy the wild Z ........... Zoo (e) Additional required information. The following describes the additional information that is required for specific types of documents (listed alphabetically): Type of document Additional required information (1) Annex (such as an attached in- The page number, document number, and date of issue on each page of an annex that is attached as an ventory, conditions, or continu- integral part of a CITES document. An authorized signature and ink stamp or seal, preferably embossed, ation pages of a CITES docu- of the Management Authority issuing the CITES document must also be included on each page of the ment) annex. The CITES document must indicate an attached annex and the total number of pages. (2) Certificate of origin (see § A statement that the specimen originated in the country that issued the certificate. 23.38) (3) Copy when used in place of the (i) Information required in paragraph (e)(7) of this section when the document authorizes export or re-ex- original CITES document port. (ii) A statement by the Management Authority on the face of the document authorizing the use of a copy when the document authorizes import. (4) Export permit for a registered The registration number of the operation or nursery assigned by the Secretariat, and if the exporter is not commercial breeding operation or the registered operation or nursery, the name of the registered operation or nursery. nursery for Appendix-I specimens (see § 23.46) (5) Export permit with a quota Number of specimens, such as 500/1,000, that were: (i) Exported thus far in the current calendar year, including those covered by the current permit (such as 500), and (ii) Included in the current annual quota (such as 1,000). (6) Import permit (Appendix-I speci- A certification that the specimen will not be used for primarily commercial purposes and, for a live speci- men) (see § 23.35) men, that the recipient has suitable facilities and expertise to house and care for it. ebenthall on PRODPC61 with RULES3 VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48463 Type of document Additional required information (7) Replacement CITES document When a CITES document replaces an already issued CITES document that was lost, damaged, stolen, or (see § 23.52) accidentally destroyed: (i) If a newly issued CITES document, indication it is a ‘‘replacement,’’ the number and date of issuance of the CITES document that was replaced, and reason for replacement. (ii) If a copy of the original CITES document, indication it is a ‘‘replacement’’ and a ‘‘true copy of the origi- nal,’’ a new original signature of a person authorized to sign CITES documents for the issuing Manage- ment Authority, the date signed, and reason for replacement. (8) Partially completed documents (i) A list of the blocks that must be completed by the permit holder. (see § 23.51) (ii) If the list includes scientific names, an inventory of approved species must be included on the face of the CITES document or in an attached annex. (iii) A signature of the permit holder, which acts as a certification that the information entered is true and accurate. (9) Pre-Convention document (see (i) An indication on the face of the CITES document that the specimen is pre-Convention. § 23.45) (ii) A date that shows the specimen was acquired before the date the Convention first applied to it. (10) Re-export certificate (see § (i) The country of origin, the export permit number, and the date of issue. 23.37) (ii) If previously re-exported, the country of last re-export, the re-export certificate number, and the date of issue. (iii) If all or part of this information is not known, a justification must be given. (11) Retrospective CITES docu- A clear statement that the CITES document is issued retrospectively and the reason for issuance. ment (see § 23.53) (12) Sample collection covered by (i) A statement that the document covers a sample collection and is invalid unless accompanied by a valid an ATA carnet (see § 23.50) ATA carnet. (ii) The number of the accompanying ATA carnet recorded by the Management Authority, customs, or other responsible CITES inspecting official. (f) Phytosanitary certificate. A Party (iii) The plants were artificially (iii) A stamp, seal, or other specific may use a phytosanitary certificate as a propagated in the exporting country. indication stating that the specimen is CITES document under the following (3) The certificate contains the artificially propagated (see § 23.64). conditions: following information: (1) The Party has provided copies of § 23.24 What code is used to show the (i) The scientific name of the species, source of the specimen? the certificate, stamps, and seals to the including the subspecies when needed Secretariat. The Management Authority must (2) The certificate is used only when to determine the level of protection of the specimen under CITES, using indicate on the CITES document the all the following conditions are met: (i) The plants are being exported, not standard nomenclature as it appears in source of the specimen using one of the re-exported. the CITES Appendices or the references following codes, except the code ‘‘O’’ (ii) The plants are Appendix-II adopted by the CoP. for pre-Convention, which should be species, or are hybrids of one or more (ii) The type (such as live plant or used in conjunction with another code: Appendix-I species or taxa that are not bulb) and quantity of the specimens annotated to include hybrids. authorized in the shipment. Source of specimen Code (a) Artificially propagated plant (see § 23.40): A (1) An Appendix-II or -III artificially propagated specimen. (2) An Appendix-I plant specimen artificially propagated for noncommercial purposes or certain Appendix-I hybrids (see § 23.42) propagated for commercial purposes. (b) Bred-in-captivity wildlife (see § 23.41): C (1) An Appendix-II or -III specimen bred in captivity. (See paragraph (d)(1) of this section for wildlife that does not qualify as bred in captivity.) (2) An Appendix-I specimen bred for noncommercial purposes. (See paragraph (c)(1) of this section for an Appendix-I speci- men bred for commercial purposes.) (c) Bred in captivity or artificially propagated for commercial purposes (see §§ 23.46 and 23.47): D (1) An Appendix-I wildlife specimen bred in captivity for commercial purposes at an operation registered with the Secretariat. (2) An Appendix-I plant specimen artificially propagated for commercial purposes at a nursery that is registered with the Secre- tariat or a commercial propagating operation that meets the requirements of § 23.47. ebenthall on PRODPC61 with RULES3 VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48464 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations Source of specimen Code (d) Captive-bred wildlife (§ 23.36): F (1) An Appendix-II or -III wildlife species that is captive-bred. (2) An Appendix-I wildlife species that is one of the following: (i) Captive-bred. (ii) Bred for commercial purposes, but the commercial breeding operation is not registered with the Secretariat. (iii) Bred for noncommercial purposes, but the facility does not meet the definition in § 23.5 because it is not involved in a cooperative conservation program. (e) Confiscated or seized specimen (see § 23.78). I (f) Pre-Convention specimen (see § 23.45) (code to be used in conjunction with another code). O (g) Ranched wildlife (wildlife that originated from a ranching operation). R (h) Source unknown (must be justified on the face of the CITES document). U (i) Specimen taken from the wild: W (1) For wildlife, this includes a specimen born in captivity from an egg collected from the wild or from wildlife that mated or ex- changed genetic material in the wild. (2) For a plant, it includes a specimen propagated from a propagule collected from a wild plant, except as provided in § 23.64. § 23.25 What additional information is authority of a non-Party only if the through (e), a CITES document issued required on a non-Party CITES document? document substantially conforms to the by a non-Party must contain the (a) Purpose. Under Article X of the requirements of the Treaty. following certifications on the face of Treaty, a Party may accept a CITES (b) Additional certifications. In the document: document issued by a competent addition to the information in § 23.23(c) Activity by a non-Party Certification (1) Export (i) For Appendix-I and -II specimens, the Scientific Authority has advised that the export will not be detri- mental to the survival of the species. (ii) The Management Authority is satisfied that the specimen was legally acquired. (2) Import For Appendix-I specimens, the import will be for purposes that are not detrimental to the survival of the species. § 23.26 When is a U.S. or foreign CITES CITES document must be issued before (c) Acceptance of CITES documents. document valid? the import, introduction from the sea, We will accept a CITES document as (a) Purpose. Article VIII of the Treaty export, or re-export occurs, and the valid for import, introduction from the provides that Parties take appropriate document must accompany each sea, export, or re-export only if the measures to enforce the Convention to shipment. No copy may be used in place document meets the requirements of prevent illegal trafficking in wildlife of an original except as provided in § this section, §§ 23.23 through 23.25, and and plants. 23.23(e)(3) or when a shipment is in the following conditions: (b) Original CITES documents. A transit (see § 23.22). Fax or electronic separate original or a true copy of a copies are not acceptable. Key phrase Conditions for an acceptable CITES document (1) Altered or modified CITES doc- The CITES document has not been altered (including by rubbing or scratching out), added to, or modified ument in any way unless the change is validated on the document by the stamp and authorized signature of the issuing Management Authority, or if the document was issued as a partially completed document, the Management Authority lists on the face of the document which blocks must be completed by the per- mit holder. (2) Annual reports The Party issuing the CITES document has submitted annual reports and is not subject to any action under Article VIII paragraph 7(a) that would not allow trade in CITES species. (3) CITES document U.S. and foreign CITES documents must meet the general provisions and criteria in subparts C and E. (4) Conditions All conditions on the CITES document are met. (5) Convention implementation The Party issuing the CITES document is not subject to any action under Article VIII or Article XIII para- graph 3 that would not allow trade in the species. ebenthall on PRODPC61 with RULES3 (6) Extension of validity The validity of a CITES document may not be extended except as provided in § 23.73 for certain timber species. VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48465 Key phrase Conditions for an acceptable CITES document (7) Fraudulent CITES document or The CITES document is authentic and does not contain erroneous or misleading information. CITES document containing false information (8) Humane transport Live wildlife or plants were transported in compliance with CITES’ Guidelines for transport and preparation for shipment of live wild animals and plantsor, in the case of air transport of wildlife, the International Air Transport Association Live Animals Regulations. (See § 23.23(c)(7).) (9) Legal acquisition The Party or non-Party issuing the CITES document has made the required legal acquisition finding. (10) Management Authority and The CITES document was issued by a Party or non-Party that has designated a Management Authority Scientific Authority and Scientific Authority and has provided information on these authorities to the Secretariat. (11) Name of importer and exporter A CITES document is specific to the name on the face of the document and may not be transferred or as- signed to another person. (12) Non-detriment The Party or non-Party issuing the CITES document has made the required non-detriment finding. (13) Phytosanitary certificate A phytosanitary certificate may be used to export artificially propagated plants only if the issuing Party has provided copies of the certificates, stamps, and seals to the Secretariat. (14) Quota For species with a quota on file with the Secretariat, the quantity exported from a country does not exceed the quota. (15) Registered commercial breed- (i) The operation is included in the Secretariat’s register. ing operation for Appendix-I wild- (ii) Each specimen is specifically marked, and the mark is described on the CITES document. life (16) Registered commercial nursery The operation is included in the Secretariat’s register. for Appendix-I plants (17) Retrospective CITES docu- A CITES document was not issued retrospectively except as provided in § 23.53. ments (18) Shipment contents The contents of the shipment match the description of specimens provided on the CITES document, in- cluding the units and species. A shipment cannot contain more or different specimens or species than certified or validated on the CITES document at the time of export or re-export; the quantity of speci- mens validated or certified may be less, but not more, than the quantity stated at the time of issuance. (19) Wild-collected specimen A wild-collected specimen (indicated on the CITES document with a source code of ‘‘W’’) is not coming from a country that is outside the range of the species, unless we have information indicating that the species has been established in the wild in that country through accidental introduction or other means. (d) Verification of a CITES document. (5) We have reasonable grounds to officials must verify that valid CITES We may request verification of a CITES believe that the specimen identified as documents accompany shipments and document from the Secretariat or a bred in captivity or artificially take enforcement action when foreign Management Authority before propagated is a wild specimen, was shipments do not comply with the deciding whether to accept it under produced from illegally acquired Convention. some circumstances, including, but not parental stock, or otherwise does not (b) U.S. port requirements. In the limited to, the following: qualify for these exemptions. United States, you must follow the (1) We receive reliable information (6) The import of a specimen clearance requirements for wildlife in that indicates the need for CITES designated as bred in captivity or part 14 of this subchapter and for plants document verification. artificially propagated is from a non- in part 24 of this subchapter and 7 CFR (2) We have reasonable grounds to Party. For an Appendix-I specimen, we parts 319, 352, and 355, and the specific believe that a CITES document is not must consult with the Secretariat. requirement in paragraphs (c) and (d) of valid or authentic because the species is (7) For a retrospectively issued CITES this section. being traded in a manner detrimental to document, both the importing and (c) General validation or certification the survival of the species or in exporting or re-exporting countries’ process. Officials in each country violation of foreign wildlife or plant Management Authorities have not inspect the shipment and validate or laws, or any applicable Management or agreed to the issuance of the document. certify the CITES document. The table Scientific Authority finding has not (8) For a replacement CITES in this paragraph (c) provides been made. document, we need clarification of the information on: reason the document was issued. (3) The re-export certificate refers to (1) The types of original CITES an export permit that does not exist or § 23.27 What CITES documents do I documents you must present to be ebenthall on PRODPC61 with RULES3 is not valid. present at the port? validated or certified by the inspecting (4) We have reasonable grounds to (a) Purpose. Article VIII of the Treaty official to export or re-export from a believe that the document is fraudulent, provides that Parties establish an country. contains false information, or has inspection process that takes place at a (2) When you need to surrender a unauthorized changes. port of exit and entry. Inspecting copy of the original CITES document to VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48466 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations the inspecting official at the time of (3) When you need to surrender the inspecting official at the time of import export or re-export. original CITES document to the or introduction from the sea. Present original for export Surrender original upon Surrender copy upon Type of CITES document or re-export validation or import or introductionfrom export or re-export certification the sea Bred-in-captivity certificate Required Required Required Certificate for artificially propagated plants Required Required Required Certificate of origin Required Required Required Certificate of ownership Required Required Not required; submit copy Export permit Required Required Required Import permit Not required Required Required Introduction-from-the-sea certificate Not applicable Not applicable Required Multiple-use document Required1 Required Not required; submit copy Phytosanitary certificate Required Required Not required; submit copy Pre-Convention document Required Required Required Re-export certificate Required Required Required Registered Appendix-I commercial breeding operation, Required Required Required export permit Registered Appendix-I nursery, export permit Required Required Required Replacement document where a shipment has been Not required Not required Required made and is in a foreign country Replacement document where a shipment has not left Required Required Required the United States Retrospective document Not required Not required Required Sample collection covered by an ATA carnet, CITES Required Required Not required; submit copy document Traveling-exhibition certificate Required Required Not required; submit copy 1 Original must be available for inspection, but permit conditions will indicate whether an original or copy is to be validated. (d) Customs declaration labels. The endangered or threatened species, see § provide the information within 45 customs declaration label used to 23.3), the requirements of all parts must calendar days, we will abandon your identify specimens being moved be met. You may submit a single application. If your application is between registered scientific institutions application that contains all the abandoned and you wish to apply for a (§ 23.48) must be affixed to the shipping information needed to meet the permit at a later time, you must submit container. The label does not require requirements of CITES and other a new application. export or re-export validation or applicable parts. certification at the port. (d) You must also follow the general § 23.33 How is the decision made to issue permit procedures in part 13 of this or deny a request for a U.S. CITES Subpart C—Application Procedures, document? subchapter. Criteria, and Conditions (e) You should review the criteria in (a) Upon receiving a complete all applicable regulations in this application, we will decide whether to § 23.32 How do I apply for a U.S. CITES issue a CITES document by considering: subchapter that apply to the type of document? (1) The general criteria in § 13.21(b) permit you are seeking before (a) To apply for a U.S. CITES completing the application form. of this subchapter and, if the species is document, you must complete a (f) We will review your application to protected under a separate law or treaty, standard application form and submit it assess whether it contains the criteria in any other applicable parts. to the appropriate office shown on the information needed to make the (2) The CITES issuance criteria top of the form. required findings. provided in this subpart (see subpart D (b) To determine the type of CITES (1) Based on available information, we of this part for factors we consider in ebenthall on PRODPC61 with RULES3 document needed for your shipment, go will decide if any of the exemptions making certain findings). to §§ 23.18 through 23.20 for further apply and what type of CITES document (b) As needed, the U.S. Management guidance. you need. Authority, including FWS Law (c) If a species is also regulated under (2) If we need additional information, Enforcement, will forward a copy of the another part of this subchapter (such as we will contact you. If you do not application to the U.S. Scientific VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48467 Authority; State, tribal, or other Federal § 23.34 What kinds of records may I use to (2) We require less detailed government agencies; or other show the origin of a specimen when I apply information when the import, applicable experts. We may also query for a U.S. CITES document? introduction from the sea, export, or re- the Secretariat and foreign Management (a) When you apply for a U.S. CITES export poses a low risk to a species in and Scientific Authorities for document, you will be asked to provide the wild and more detailed information information to use in making the information on the origin of the when the proposed activity poses required findings. specimen that will be covered by the greater risk to a species in the wild (see (c) You must provide sufficient Subpart D of this part for factors we CITES document. information to satisfy us that all criteria consider in making certain findings). specific to the proposed activity are met (1) You need to provide sufficient before we can issue a CITES document. information for us to determine if the (b) Information you may want to (d) We will base our decision on issuance criteria in this part are met (see provide in a permit application whether to issue or deny the application the sections in this subpart for each type includes, but is not limited to, the on the best available information. of CITES document). following: Source of specimen Types of records (1) Captive-bred or cultivated1 (i) Records that identify the breeder or propagator of the specimens that have been identified by birth, hatch, or propagation date and for wildlife by sex, size, band number, or other mark, or for plants by size or other identifying feature: (A) Signed and dated statement by the breeder or propagator that the specimen was bred or propagated under controlled conditions. (B) Name and address of the breeder or propagator as shown by documents such as an Inter- national Species Information System (ISIS) record, veterinary certificate, or plant nursery li- cense. (ii) Records that document the breeding or propagating of specimens at the facility: (A) Number of wildlife (by sex and age- or size-class) or plants at the facility. (B) How long the facility has been breeding or propagating the species. (C) Annual production and mortalities. (D) Number of specimens sold or transferred annually. (E) Number of specimens added from other sources annually. (F) Transaction records with the date, species, quantity of specimens, and name and address of seller. (G) Marking system, if applicable. (H) Photographs or video of facility, including for wildlife any activities during nesting and pro- duction and rearing of young, and for plants, different stages of growth. (2) Confiscated or seized Copy of remission decision, legal settlement, or disposal action after forfeiture or abandonment, which demonstrates the applicant’s legal possession. (3) Exempt plant material Records that document how you obtained the exempt plant material, including the name and ad- dress of the person from whom you received the plant material. (4) Imported previously (i) A copy of the cancelled CITES document that accompanied the shipment into the United States. (ii) For wildlife, copies of cleared Declarations for Importation or Exportation of Fish or Wildlife (Form 3–177) associated with each specimen. (5) Pre-Convention Records that show the specimen was acquired before the date the provisions of the Convention first applied to it, such as: (i) Receipt or invoice. (ii) Catalog, inventory list, photograph, or art book. (iii) Statement from a qualified appraiser attesting to the age of a manufactured product. (iv) CBP (formerly U.S. Customs Service) import documents. (v) Phytosanitary certificate. (vi) Veterinary document or breeding or propagation logs. (6) Sequential ownership or purchase (i) Records that specifically identify the specimen, give the name and address of the owner, and show the specimen’s origin (pre-Convention, previously imported, wild-collected, or born or propa- gated in a controlled environment in the United States). (ii) Records that document the history of all transfers in ownership (generally not required for pre- Convention specimens). (7) Unknown origin, for noncommercial A complete description of the circumstances under which the specimen was acquired (where, when, purposes and from whom the specimen was acquired), including efforts made to obtain information on the origin of the specimen. ebenthall on PRODPC61 with RULES3 VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48468 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations Source of specimen Types of records (8) Wild-collected Records, such as permits, licenses, and tags, that demonstrate the specimen or the parental stock was legally removed from the wild under relevant foreign, Federal, tribal, State, or local wildlife or plant conservation laws or regulations: (i) If taken on private or tribal land, permission of the landowner if required under applicable law. (ii) If taken in a national, State, or local park, refuge, or other protected area, permission from the applicable agency, if required. 1 If the wildlife was born in captivity from an egg collected from the wild or from parents that mated or exchanged genetic material in the wild, or the plant was propagated from a non-exempt propagule collected from a wild plant, see paragraph (b)(8) of this section. (c) If you intend to engage in of the specimen, you should provide Management Authority can issue an international trade with a CITES such records on the origin of the import permit. specimen in the future, you should keep specimen to the new owner. (b) U.S. application forms. Complete sufficient records to establish your § 23.35 What are the requirements for an the appropriate form for the proposed eligibility for a CITES document for as import permit? activity and submit it to the U.S. long as you possess the specimen, and (a) Purpose. Article III(3) of the Treaty Management Authority: if you sell, donate, or transfer ownership sets out the conditions under which a Type of application for an import permit for an Appendix-I specimen Form no. (1) CITES: Southern African Leopard, African Elephant, and Namibian Southern White Rhinoceros Sport-hunted Trophies 3–200–19 Appendix-I Plants 3–200–35 Appendix-I Wildlife 3–200–37 Appendix-I Biological Samples 3–200–29 (2) Endangered Species Act and CITES: ESA Plants 3–200–36 ESA Sport-hunted Trophies 3–200–20 ESA Wildlife 3–200–37 (3) Marine Mammal Protection Act and CITES: Marine Mammals 3–200–43 (4) Wild Bird Conservation Act and CITES: Personal Pet Bird 3–200–46 Under an Approved Cooperative Breeding Program 3–200–48 Scientific Research or Zoological Breeding/Display 3–200–47 (c) Criteria. The criteria in this permits. When applying for a U.S. your proposed activity meets all of the paragraph (c) apply to the issuance and import permit, you must provide following criteria: acceptance of U.S. and foreign import sufficient information for us to find that Criteria for an import permit for an Appendix-I specimen Section (1) The proposed import would be for purposes that are not detrimental to the survival of the species. 23.61 (2) The specimen will not be used for primarily commercial purposes. 23.62 (3) The recipients are suitably equipped to house and care for any live wildlife or plant to be imported. 23.65 (4) The scientific name of the species is the standard nomenclature in the CITES Appendices or the references adopted by the 23.23 CoP. (d) U.S. standard conditions. You country has either issued an import (3) Issue a re-export certificate for a must meet all of the provisions on use permit or confirmed in writing that an dead specimen without confirmation after import in § 23.55 and the standard import permit will be issued. that the import permit has been issued. conditions in § 23.56. (2) Accept oral confirmation from the (e) Prior issuance of an import permit. § 23.36 What are the requirements for an Management Authority of the importing export permit? For Appendix-I specimens, the country that an import permit will be Management Authority of the exporting issued in an emergency situation where (a) Purposes. Articles III, IV, and V of ebenthall on PRODPC61 with RULES3 country may: the Treaty set out the conditions under the life or health of the specimen is (1) Issue an export permit for live or threatened and no means of written which a Management Authority may dead specimens or a re-export certificate communication is possible. issue an export permit for an Appendix- for live specimens only after the I, -II, or -III specimen. Article XIV sets Management Authority of the importing out the conditions under which a VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48469 Management Authority may issue a (b) U.S. application forms. Complete Enforcement at certain ports or regional document for export of certain the appropriate form for the proposed offices: Appendix-II marine specimens activity and submit it to the U.S. protected under a pre-existing treaty, Management Authority. Form 3–200–26 convention, or international agreement. may also be submitted to FWS Law Type of application for an export permit Form no. (1) CITES: American Ginseng 3–200–34 Appendix-I Plants Artificially Propagated for Commercial Purposes 3–200–33 Biological Specimens 3–200–29 Captive-born Raptors 3–200–25 Captive-born Wildlife (except raptors) 3–200–24 Caviar/Meat of Paddlefish or Sturgeon, Removed from the Wild 3–200–76 Export of Skins/Products of Bobcat, Canada Lynx, River Otter, Brown Bear, Gray Wolf, and American Alligator Taken under 3–200–26 an Approved State or Tribal Program Personal Pets, One-time Export 3–200–46 Plants 3–200–32 Registration of a Native Species Production Facility 3–200–75 Single-use Permits under a Master File or an Annual Program File 3–200–74 Trophies by Taxidermists 3–200–28 Wildlife, Removed from the Wild 3–200–27 (2) Endangered Species Act and CITES: ESA Plants 3–200–36 ESA Wildlife 3–200–37 (3) Marine Mammal Protection Act and CITES: Biological Samples 3–200–29 Live Captive-held Marine Mammals 3–200–53 Take from the Wild for Export 3–200–43 (c) Criteria. The criteria in this marine specimens in paragraph (d) of your proposed activity meets all of the paragraph (c) apply to the issuance and this section. When applying for a U.S. following criteria: acceptance of U.S. and foreign export permit or certificate, you must provide permits except as provided for certain sufficient information for us to find that Appendix of the specimen Sec- Criteria for an export permit tion I II III (1) The wildlife or plant was legally acquired. Yes Yes Yes 23.60 (2) The proposed export would not be detrimental to the survival Yes Yes n/a 23.61 of the species. (3) An import permit has already been issued or the Management Yes n/a n/a 23.35 Authority of the importing country has confirmed that it will be issued. (4) The scientific name of the species is the standard nomen- Yes Yes Yes 23.23 clature in the CITES Appendices or the references adopted by the CoP. (5) Live wildlife or plants will be prepared and shipped so as to Yes Yes Yes 23.23 minimize risk of injury, damage to health, or cruel treatment of the specimen. (6) The specimen originated in a country that listed the species. n/a n/a Yes 23.20 (7) For wildlife with the source code ‘‘W’’ or ‘‘F,’’ the export is for Yes n/a n/a – noncommercial purposes. (See § 23.46 for the export of speci- mens that originated at a commercial breeding operation for Appendix-I wildlife that is registered with the Secretariat.) (d) Export of certain exempt marine convention, or international agreement plants requires only that the shipment is ebenthall on PRODPC61 with RULES3 specimens. Article XIV(4) and (5) of the that was in force at the time CITES accompanied by a document issued by Treaty provide a limited exemption for entered into force. When all of the the Management Authority of the Appendix-II marine species that are following conditions are met, export of exporting country indicating that the protected under another treaty, exempt Appendix-II marine wildlife or specimens were taken in accordance VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48470 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations with the provisions of the other document from the U.S. Management (2) The scientific name of the CITES international treaty, convention, or Authority that indicates the specimen species is in the standard nomenclature agreement: was taken in accordance with the in the CITES Appendices or references (1) The exporting country is a CITES provisions of another international adopted by the CoP (see § 23.23). Party and is a party to an international treaty, convention, or agreement that (3) The ship that harvested the treaty, convention, or agreement that was in force on July 1, 1975. (f) U.S. application for export of specimen is registered in the exporting affords protection to the species and exempt specimens. To apply for a CITES country. was in force on July 1, 1975. (2) The ship that harvested the exemption document under paragraph (4) The specimen was taken within specimen is registered in the exporting (e) of this section, complete the waters under the jurisdiction of the country. appropriate form for your activity and exporting country or in the marine (3) The specimen was taken within submit it to the U.S. Management environment not under the jurisdiction waters under the jurisdiction of the Authority. of any country. exporting country or in the marine (g) Criteria for certain exempt marine environment not under the jurisdiction specimens. The criteria in this § 23.37 What are the requirements for a re- of any country. paragraph (g) apply to the issuance and export certificate? (4) The specimen was taken in acceptance of U.S. and foreign export (a) Purposes. Articles III, IV, and V of accordance with the other international documents. To obtain a U.S. CITES the Treaty set out the conditions under treaty, convention, or agreement, document for export of specimens which a Management Authority may including any quotas. exempted under paragraph (d) of this issue a re-export certificate for an (5) The shipment is accompanied by section you must provide sufficient Appendix-I, -II, or -III specimen. any official document required under information for us to find that your the other international treaty, proposed export meets all of the (b) U.S. application forms. Complete convention, or agreement or otherwise following issuance criteria: the appropriate form for the proposed required by law. (1) The specimen was taken in activity and submit it to the U.S. (e) Export of exempt specimens from accordance with the provisions of an Management Authority. Form 3–200–73 the United States. To export a specimen applicable international treaty, may also be submitted to Law exempted under paragraph (d) of this convention, or agreement that was in Enforcement at certain ports or regional section, you must obtain a CITES force on July 1, 1975. offices: Type of application for a re-export certificate Form no. (1) CITES: Biological Specimens 3–200–29 Plants 3–200–32 Single-use Permits under a Master File or an Annual Program File 3–200–74 Trophies by Taxidermists 3–200–28 Wildlife 3–200–73 (2) Endangered Species Act and CITES: ESA Plants 3–200–36 ESA Wildlife 3–200–37 (3) Marine Mammal Protection Act and CITES: Biological Samples 3–200–29 Live Captive-held Marine Mammals 3–200–53 (c) Criteria. The criteria in this certificates. When applying for a U.S. proposed activity meets all of the paragraph (c) apply to the issuance and certificate, you must provide sufficient following criteria: acceptance of U.S. and foreign re-export information for us to find that your Appendix of the specimen Sec- Criteria for a re-export certificate tion I II III (1) The wildlife or plant was legally acquired. Yes Yes Yes 23.60 (2) The scientific name of the species is the standard nomen- Yes Yes Yes 23.23 clature in the CITES Appendices or the references adopted by the CoP. (3) For a live specimen, an import permit has already been Yes n/a n/a 23.35 issued or the Management Authority of the importing country has confirmed that it will be issued. This criterion does not apply to a specimen with the source code ‘‘D.’’ ebenthall on PRODPC61 with RULES3 (4) Live wildlife or plants will be prepared and shipped so as to Yes Yes Yes 23.23 minimize risk of injury, damage to health, or cruel treatment of the specimen. VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48471 Appendix of the specimen Sec- Criteria for a re-export certificate tion I II III (5) For re-export of a confiscated specimen, the proposed re-ex- Yes Yes n/a 23.61 port would not be detrimental to the survival of the species. (6) For wildlife with the source code ‘‘W’’ or ‘‘F,’’ the re-export is Yes n/a n/a – for noncommercial purposes. § 23.38 What are the requirements for a certificates of origin. When applying for risk of injury, damage to health, or cruel certificate of origin? a U.S. certificate, you must provide treatment of the specimen (see § 23.23). (a) Purpose. Article V(3) of the Treaty sufficient information for us to find that requires that a shipment of Appendix-III your proposed activity meets all of the § 23.39 What are the requirements for an specimens be accompanied by a following criteria: introduction-from-the-sea certificate? certificate of origin when the shipment (1) The specimen originated in the (a) Purpose. Articles III(5), IV(6), and is not from a country that listed the country of export, which is not a IV(7) of the Treaty set out the conditions species in Appendix III and is not a re- country that listed the species in under which a Management Authority export. Appendix III. In the case of a listing that may issue an introduction-from-the-sea (b) U.S. application forms. For a is annotated to cover only a certain certificate. certificate of origin, complete one of the population, no CITES document is following forms and submit it to the required if the listed population does (b) U.S. application form. Complete U.S. Management Authority: not occur in the country of export. For Form 3–200–31 and submit it to the U.S. (1) Form 3–200–27 for wildlife U.S. applicants, the country of origin Management Authority. removed from the wild. must be the United States. (c) Criteria. The criteria in this (2) Form 3–200–24 for captive-born (2) The scientific name of the species paragraph (c) apply to the issuance and wildlife. is the standard nomenclature in the acceptance of U.S. certificates. You (3) Form 3–200–32 for plants. CITES Appendices or the references must provide sufficient information for (c) Criteria. The criteria in this adopted by the CoP (see § 23.23). paragraph (c) apply to the issuance and (3) Live wildlife or plants will be us to find that your proposed activity acceptance of U.S. and foreign prepared and shipped so as to minimize meets all of the following criteria: Appendix of the specimen Criteria for an introduction-from-the-sea certificate Section I II (1) The specimen was taken in the marine environment not under the jurisdic- Yes Yes – tion of any country. (2) The proposed introduction from the sea would not be detrimental to the sur- Yes Yes 23.61 vival of the species. (3) The specimen will not be used for primarily commercial purposes. Yes n/a 23.62 (4) The recipients are suitably equipped to house and care for live wildlife or Yes n/a 23.65 plants. (5) The scientific name of the species is the standard nomenclature in the Yes Yes 23.23 CITES Appendices or the references adopted by the CoP. (6) Live wildlife or plants will be prepared and shipped so as to minimize risk of Yes Yes 23.23 injury, damage to health, or cruel treatment of the specimen. (d) Exemption. As allowed under (2) The ship that harvested the Management Authority that indicates Article XIV(4) and (5) of the Treaty, you specimen is registered in the United the specimen was taken in accordance may directly introduce into the United States. with the provisions of the other States any Appendix-II wildlife or plant (3) The specimen was taken in international treaty, convention, or taken in the marine environment that is accordance with the other international agreement that was in force on July 1, not under the jurisdiction of any treaty, convention, or agreement, 1975. See requirements in § 23.36 (e) country without a CITES document including any quotas. through (g). (4) The shipment is accompanied by when all of the following conditions are (f) Appendix III. Appendix-III species any official document required under met: introduced from the sea do not require the other international treaty, (1) The United States is a party to an convention, or agreement or otherwise introduction-from-the-sea certificates. ebenthall on PRODPC61 with RULES3 international treaty, convention, or required by U.S. law. However, the subsequent international agreement that affords protection to the (e) Export of exempt specimens. To trade of an Appendix-III specimen species and was in force on July 1, 1975. export a specimen exempted under introduced from the sea would be paragraph (d) of this section, you must considered an export requiring a CITES obtain a CITES document from the U.S. document (see § 23.20(f)). VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48472 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations § 23.40 What are the requirements for a a certificate for artificially propagated (c) U.S. application form. Complete certificate for artificially propagated plants? Appendix-I, -II, or -III plants: Form 3–200–33 and submit it to the U.S. (a) Purpose. Article VII(5) of the (1) The certificate for artificially Management Authority. Treaty grants an exemption to plants propagated plants and any subsequent (d) Criteria. The criteria in this that are artificially propagated when a re-export certificate must show the paragraph (d) apply to the issuance and source code as ‘‘A’’ for artificially acceptance of U.S. and foreign Management Authority issues a propagated. certificates. When applying for a U.S. certificate. (2) For an Appendix-I specimen that certificate, you must provide sufficient (b) U.S. and foreign general satisfies the requirements of this information for us to find that your provisions. The following provisions section, no CITES import permit is proposed activity meets all of the apply to the issuance and acceptance of required. following criteria: Appendix of the specimen Criteria for a certificate for artificially propagated plants Section I II III (1) The plant was artificially propagated. Yes Yes Yes 23.64 (2) The plant specimen is one of the following: Yes n/a n/a (i) Was propagated for noncommercial purposes. (ii) Is part of a traveling exhibition. (iii) Is a hybrid of one or more Appendix-I species or taxa that is not annotated to include hybrids in the listing and was propagated for commercial or non- commercial purposes. (3) The scientific name of the species is the standard no- Yes Yes Yes 23.23 menclature in the CITES Appendices or the references adopted by the CoP. (4) The live plant will be prepared and shipped so as to Yes Yes Yes 23.23 minimize risk of injury, damage to health, or cruel treat- ment of the specimen. (e) U.S. standard conditions. In (3) You may export a native plant a certificate for Appendix-I, -II, or -III addition to the conditions in § 23.56, under this certificate only when wildlife that was bred in captivity: you must meet all of the following specifically approved for export and (1) The certificate and any subsequent conditions: listed on the certificate, inventory sheet, re-export certificate must show the (1) You may not export or re-export a or an approved species list. source code as ‘‘C’’ for bred in captivity. plant (including its parts, products, or (4) You may export a specimen under (2) For an Appendix-I specimen that a higher-taxon name only if you satisfies the requirements of this derivatives) under this certificate if the identified the taxon in your application section, no CITES import permit is plant was removed from the wild or and we approved it on this certificate. required. grown directly from a wild seed, except (c) U.S. application form. Complete for plants grown from exempt plant § 23.41 What are the requirements for a Form 3–200–24 and submit it to the U.S. materials that qualify as artificially bred-in-captivity certificate? Management Authority. propagated. (a) Purpose. Article VII(5) of the (d) Criteria. The criteria in this (2) You may not export an Appendix- Treaty grants an exemption to wildlife paragraph (d) apply to the issuance and I species that was propagated for that is bred in captivity when a acceptance of U.S. and foreign commercial purposes under this Management Authority issues a certificates. When applying for a U.S. certificate, except for hybrids of one or certificate. certificate, you must provide sufficient more Appendix-I species or taxa that are (b) U.S. and foreign general information for us to find that your not annotated to include hybrids in the provisions. The following provisions proposed activity meets all of the listing. apply to the issuance and acceptance of following criteria: Appendix of the specimen Criteria for a bred-in-captivity certificate Section I II III (1) The wildlife was bred in captivity. Yes Yes Yes 23.63 (2) The wildlife specimen was bred for noncommercial purposes or is part of a traveling ex- Yes n/a n/a 23.5 hibition. ebenthall on PRODPC61 with RULES3 (3) The scientific name of the species is the standard nomenclature in the CITES Appen- Yes Yes Yes 23.23 dices or the references adopted by the CoP. (4) Live wildlife will be prepared and shipped so as to minimize risk of injury, damage to Yes Yes Yes 23.23 health, or cruel treatment of the specimen. VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48473 § 23.42 What are the requirements for a export, or import of a plant hybrid of a plant hybrid? CITES species must be accompanied by General provisions. Except as a valid CITES document that shows the provided in § 23.92, the export, re- Appendix of the specimen as follows: Question on a plant hybrid Answer and status of specimen (a) Is the specimen an artificially propagated hybrid of one or more Ap- (1) YES. Continue to paragraph (b) of this section. pendix-I species or taxa? (2) NO. Continue to paragraph (c) of this section. (b) Is one or more of the Appendix-I species or taxa in paragraph (a) of (1) YES. The hybrid is listed in Appendix I. this section annotated to include hybrids? (2) NO. The hybrid is listed in Appendix I, but may be granted a certifi- cate for artificially propagated plants even if propagated for commer- cial purposes. (c) Is the specimen a hybrid that includes two or more CITES species (1) YES. Consider the specimen to be listed in the more restrictive Ap- or taxa in its lineage? pendix, with Appendix I being the most restrictive and Appendix III the least. (2) NO. Continue to paragraph (d) of this section. (d) Is the specimen a hybrid that includes one CITES species or taxon (1) YES. Consider the specimen to be listed in the Appendix in which in its lineage? the species or taxon is listed in the CITES Appendices. (2) NO. The hybrid is not regulated by CITES. § 23.43 What are the requirements for a (b) U.S. and foreign general (c) CITES documents. All CITES wildlife hybrid? provisions. Except as provided in documents must show the wildlife (a) Definition. For the purposes of this paragraph (f) of this section, the import, hybrid listed in the following Appendix: section, recent lineage means the last export, or re-export of a hybrid CITES four generations of a specimen’s wildlife specimen must be accompanied ancestry (direct line of descent). by a valid CITES document. Then the specimen is If at least one specimen in the recent lineage is listed in: listed in: (1) Appendix I Appendix I (2) Appendix II, and an Appendix-I species is not included in the recent lineage Appendix II (3) Appendix III, and an Appendix-I or -II species is not included in the recent lineage Appendix III (d) U.S. application for wildlife species in the previous four generations or re-export from each country and hybrid. To apply for a CITES document, of its ancestry. Although a CITES should not collect the original certificate complete the appropriate form for the document is not required, you must at the border. proposed activity (see §§ 23.18 through follow the clearance requirements for (3) If offspring are born or an 23.20) and submit it to the U.S. wildlife in part 14 of this subchapter, additional specimen is acquired while Management Authority. including the prior notification the owner is outside his or her country (e) Criteria. For export of a hybrid that requirements for live wildlife. of primary residence, the owner must contains a CITES species in its recent obtain the appropriate CITES document lineage, you must meet the requirements § 23.44 What are the requirements to travel internationally with my personally owned for the export or re-export of the of § 23.36. wildlife, not a certificate of ownership, live wildlife? (f) Exempt wildlife hybrids. The from the Management Authority of that following provisions apply to import, (a) Purpose. A Management Authority country. export, or re-export of exempt wildlife may use the exemption in Article VII(3) of the Treaty to issue a certificate of (4) Upon returning home, the owner hybrids: may apply for a certificate of ownership (1) A hybrid between a CITES species ownership that authorizes frequent cross-border movements of personally for wildlife born or acquired overseas. and a non-CITES species may be exempt from CITES document requirements if owned live wildlife for personal use. (c) U.S. application form. Complete there are no purebred CITES species in (b) U.S. and foreign general Form 3–200–64 and submit it to the U.S. the previous four generations of the provisions. The following provisions Management Authority. specimen’s ancestry (direct line of apply to the issuance and acceptance of (d) Criteria. The criteria in this descent). Under this section, a hybrid a certificate of ownership for frequent paragraph (d) apply to the issuance and between two CITES species is not international travel with live wildlife for acceptance of U.S. and foreign exempt. personal use: certificates. When applying for a U.S. (2) For import, export, or re-export of (1) The certificate must be obtained certificate, you must provide sufficient ebenthall on PRODPC61 with RULES3 an exempt wildlife hybrid without from the Management Authority in the information for us to find that your CITES documents, you must provide country of the owner’s primary proposed activity meets all of the information at the time of import or residence. following criteria: export to clearly demonstrate that your (2) Parties should treat the certificate (1) The traveler owns the live wildlife specimen has no purebred CITES like a passport for import to and export and it will accompany the owner. VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48474 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations (2) The cross-border movement will (1) Trade in a specimen under the pre- apply to the registration of U.S. and be frequent and for personal use, Convention exemption is allowed only foreign commercial breeding operations including, but not limited to, if the importing country will accept a for Appendix-I wildlife: companionship or use in a pre-Convention certificate. (1) If the Management Authority is noncommercial competition such as (2) The pre-Convention date is the satisfied that the operation in its falconry. date the species was first listed under country meets the conditions for (3) To apply for a U.S. certificate, the CITES regardless of whether the species registration in paragraph (d) of this owner resides in the United States. has subsequently been transferred from section, it will send the request to (4) The wildlife was legally acquired one Appendix to another. register a breeding operation to the (see § 23.60). (3) For a pre-Convention Appendix-I Secretariat. (5) The owner does not intend to sell, specimen, no CITES import permit is (2) The Secretariat will verify that the donate, or transfer the wildlife while required. application is complete and notify the traveling internationally. (4) The pre-Convention exemption Parties of the request. (6) The scientific name of the species does not apply to offspring or cell lines (3) If any Party objects to or expresses is the standard nomenclature in the of any wildlife or plant born or concern about the registration within 90 CITES Appendices or the references propagated after the date the species days from the date of the Secretariat’s adopted by the CoP (see § 23.23). was first listed under CITES. notification, the Secretariat will refer (7) The Management Authority of the (c) U.S. application form. Complete the application to the Animals country of import has agreed to the Form 3–200–23 (wildlife) or Form 3– Committee. The Committee has 60 days cross-border movement. 200–32 (plants) and submit it to the U.S. to respond to objections. The Secretariat (8) The wildlife is securely marked or Management Authority. will provide the recommendations of uniquely identified in such a manner (d) Criteria. The criteria in this the Committee to the Management that the border official can verify that paragraph (d) apply to the issuance and Authority of the Party that submitted the specimen and CITES document acceptance of U.S. and foreign the application and the Party that correspond. certificates. When applying for a U.S. objected to the registration, and will (9) The wildlife is transported and certificate, you must provide sufficient facilitate a dialogue for resolution of the cared for in a way that minimizes risk information for us to find that the identified problems within 60 days. of injury, damage to health, or cruel specimen meets all of the following (4) If the objection is not withdrawn treatment of the specimen (see § 23.23). criteria: or the identified problems are not (1) The specimen was removed from resolved, approval of the registration (e) U.S. standard conditions. In the wild or born or propagated in a will require a two-thirds majority vote addition to the conditions in § 23.56, all controlled environment before the date by the Parties at the next CoP or by a of the following conditions must be met: CITES first applied to it, or is a product postal vote. (1) You must accompany the wildlife (including a manufactured item) or (5) If other operations have already during any cross-border movement. (2) You must transport the wildlife for derivative made from such specimen. been registered for the species, the (2) The scientific name of the species Secretariat may send the request to personal use only. is the standard nomenclature in the appropriate experts for advice only if (3) You must not sell, donate, or CITES Appendices or the references transfer the specimen while traveling significant new information is available adopted by the CoP (see § 23.23). internationally. or if there are other reasons for concern. (3) Live wildlife or plants will be (4) You must present the certificate to (6) If the Secretariat is not satisfied prepared and shipped so as to minimize the official for validation at each border that the operation meets the conditions risk of injury, damage to health, or cruel crossing. for registration, it will provide the treatment of the specimen. (5) If the certificate is lost, stolen, or (4) For the re-export of a pre- Management Authority that submitted accidentally destroyed, you must obtain Convention specimen previously the registration request with a full a replacement certificate from the imported under a CITES document, the explanation of the reasons for rejection issuing Management Authority. wildlife or plant was legally imported. and indicate the specific conditions that (6) If you no longer own the live must be met before the registration can wildlife, you must immediately return § 23.46 What are the requirements for be resubmitted for further consideration. the original document to the issuing registering a commercial breeding (7) When the Secretariat is satisfied Management Authority and report on operation for Appendix-I wildlife and that the operation meets the registration the disposition of the wildlife, such as commercially exporting specimens? requirements, it will include the death, sale, or transfer. (a) Purpose. Article VII(4) of the operation in its register. Treaty provides that Appendix-I (8) Operations are assigned an § 23.45 What are the requirements for a specimens that are bred in captivity for identification number and listed in the pre-Convention specimen? commercial purposes shall be deemed official register. Registration is not final (a) Purpose. Article VII(2) of the to be listed in Appendix II. This means until the Secretariat notifies all Parties. Treaty exempts a pre-Convention that an Appendix-I specimen originating (9) If a Party believes that a registered specimen from standard permitting from a commercial breeding operation operation does not meet the bred-in- requirements in Articles III, IV, and V of that is registered with the CITES captivity requirements, it may, after the Treaty when the exporting or re- Secretariat may be traded under an consultation with the Secretariat and exporting country is satisfied that the export permit or re-export certificate the Party concerned, propose that the specimen was acquired before the based on Appendix-II criteria. The CoP delete the operation from the provisions of CITES applied to it and specimen is still listed in Appendix I register by a two-thirds vote of the issues a CITES document to that effect. and is not eligible for any exemption Parties. Once an operation has been ebenthall on PRODPC61 with RULES3 (b) U.S. and foreign general granted to an Appendix-II species or deleted, it must re-apply and meet the provisions. The following general taxon, including any exemption granted registration requirements to be provisions apply to the issuance and by an annotation (see § 23.92). reinstated. acceptance of pre-Convention (b) U.S. and foreign general (10) The Management Authority, in documents: provisions. The following provisions collaboration with the Scientific VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48475 Authority, of a country where any (11) A Party may unilaterally request (c) U.S. application to register. registered operation is located must the removal of a registered operation Complete Form 3–200–65 and submit it monitor the operation to ensure that it within its jurisdiction by notifying the to the U.S. Management Authority. continues to meet the registration Secretariat. (d) Criteria. The criteria in this requirements. The Management (12) An Appendix-I specimen may not paragraph (d) apply to the registration of Authority will advise the Secretariat of be imported for purposes of establishing U.S. and foreign commercial breeding any major change in the nature of the or augmenting a commercial breeding operations for Appendix-I wildlife. For operation or in the types of products operation, unless the specimen is pre- your breeding operation to be registered being produced for export, and the Convention (see § 23.45) or was bred at in the United States, you must provide Animals Committee will review the a commercialbreeding operation that is sufficient information for us to find that operation to determine whether it registered with the CITES Secretariat as your proposed activity meets all of the should remain registered. provided in this section. following criteria: Criteria for registering a commercial breeding operation for Appendix-I wildlife Section (1) The operation breeds wildlife for commercial purposes. 23.5 (2) The parental stock was legally acquired. 23.60 (3) The wildlife meets bred-in-captivity criteria. 23.63 (4) Where the establishment of a breeding operation involves the removal of animals from the wild (allowable only under excep- – tional circumstances and only for native species), the operation must demonstrate to the satisfaction of the Management Author- ity, on advice of the Scientific Authority and of the Secretariat, that the removal is or was not detrimental to the conservation of the species. (5) The potential escape of specimens or pathogens from the facility does not pose a risk to the ecosystem and native species. – (6) The scientific name of the species is the standard nomenclature in the CITES Appendices or the references adopted by the 23.23 CoP. (7) The breeding operation will make a continuing, meaningful contribution to the conservation of the species according to the con- – servation needs of the species. (8) The operation will be carried out at all stages in a humane (non-cruel) manner. – (e) Standard conditions of the (4) You must allow our agents to enter microchip at the time of import, export, registration. In addition to the the premises at any reasonable hour to or re-export. conditions in § 23.56, you must meet all inspect wildlife held or to inspect, (2) The export permit, and any of the following conditions: audit, or copy applicable records. subsequent re-export certificate, must (1) You must uniquely mark all (f) U.S. and foreign general provisions show the specimen as listed in specimens from the breeding operation for export of specimens that originated Appendix I and the source code as ‘‘D,’’ in the manner proposed at the time of in a registered breeding operation. The and give the identification number of registration. Birds may be marked with following provisions apply to the the registered breeding operation where closed bands, although other methods the specimen originated. issuance and acceptance of export may be used. (3) No CITES import permit is permits for Appendix-I specimens bred required for a qualifying specimen. (2) You may not import Appendix-I at an operation registered with the (g) U.S. application form. Complete specimens for primarily commercial CITES Secretariat: Form 3–200–24 and submit it to the U.S. purposes (such as to establish a (1) An export permit may be issued to Management Authority. commercial captive-breeding operation) the registered operation or to persons (h) Criteria. The criteria in this except from breeding operations who have purchased a specimen that paragraph (h) apply to the issuance and registered for that species. originated at the registered operation if acceptance of U.S. and foreign export (3) You must provide information to the specimen has the unique mark permits. When applying for a U.S. the Management Authority each year on applied by the operation. If a microchip permit, you must provide sufficient the year’s production and your current is used, we may, if necessary, ask the information for us to find that your breeding stock. You may provide the importer, exporter, or re-exporter to proposed activity meets all of the information by mail, fax, or e-mail. have equipment on hand to read the following criteria: Criteria for an export permit Section (1) The specimen was bred at a commercial operation for Appendix-I wildlife that is registered with the CITES Secretariat. 23.46 (2) The proposed export would not be detrimental to the survival of the species. 23.61 ebenthall on PRODPC61 with RULES3 (3) Live wildlife will be prepared and shipped so as to minimize risk of injury, damage to health, or cruel treatment of the specimen. 23.23 VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48476 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations § 23.47 What are the requirements for specimens artificially propagated for (3) The export permit, and any export of an Appendix-I plant artificially commercial purposes: subsequent re-export certificate, must propagated for commercial purposes? (1) An Appendix-I specimen may not show the specimen as listed in (a) Purpose. Article VII(4) of the be imported for purposes of establishing Appendix I and the source code as ‘‘D,’’ Treaty provides that Appendix-I plants or augmenting a nursery or commercial and if from a nursery registered with the artificially propagated for commercial propagating operation, unless the Secretariat, give the identification purposes shall be deemed to be listed in specimen is pre-Convention (see § number of the registered nursery where Appendix II. This means that an 23.45) or was propagated at a nursery the specimen originated. Appendix-I specimen originating from a that is registered with the CITES (c) U.S. application form. Complete commercial nursery that is registered Secretariat or a commercial propagating Form 3–200–33 or Form 3–200–74 (for with the CITES Secretariat or that meets operation that qualifies under paragraph additional single-use permits under a the requirements of this section may be (d) of this section, and the CITES master file or an annual export program traded under an export permit or re- document indicates the source code as file). Complete Form 3–200–32 for one- export certificate based on Appendix-II ‘‘D.’’ time export. Submit the completed form criteria. The specimen is still listed in (2) An export permit may be issued to to the U.S. Management Authority. Appendix I and is not eligible for any a CITES-registered nursery, to a (d) Criteria. The criteria in this exemption granted to an Appendix-II commercial propagating operation that paragraph (d) apply to the issuance and species or taxon, including any qualifies under paragraph (d) of this acceptance of U.S. and foreign export exemption granted by an annotation. section, or to persons who have permits. When applying for a U.S. (b) U.S. and foreign general acquired a specimen that originated at permit, you must provide sufficient provisions. The following provisions such a nursery or operation. No CITES information for us to find that your apply to the issuance and acceptance of import permit is required for a proposed activity meets all of the export permits for Appendix-I qualifying specimen. following criteria: Criteria for an export permit Section (1) The specimen was propagated for commercial purposes. 23.5 (2) The parental stock was legally acquired. 23.60 (3) The proposed export would not be detrimental to the survival of the species. 23.61 (4) The plant was artificially propagated. 23.64 (5) The scientific name of the species is the standard nomenclature in the CITES Appendices or the references adopted by the 23.23 CoP. (6) The live plant will be prepared and shipped so as to minimize risk of injury, damage to health, or cruel treatment of the speci- 23.23 men. (e) Nursery registration. [Reserved] ensure that the institution meets the must provide sufficient information for standards and assign it a unique code. us to find that your institution meets all § 23.48 What are the requirements for a (ii) The Management Authority must of the following criteria: registered scientific institution? communicate the name, address, and (1) Collections of wildlife or plant (a) Purpose. Article VII(6) of the assigned code to the Secretariat, which specimens are permanently housed and Treaty grants an exemption that allows maintains a register of scientific professionally curated, and international trade in certain specimens institutions and provides that corresponding records are kept. for noncommercial loan, donation, or information to all Parties. (2) Specimens are accessible to all exchange between registered scientific (2) A registered scientific institution qualified users, including those from institutions. does not need separate CITES other institutions. (b) U.S. and foreign general documents for the noncommercial loan, provisions. The following provisions (3) Specimens are properly donation, or exchange of preserved, accessioned in a permanent catalog. apply to the registration of scientific frozen, dried, or embedded museum institutions and acceptance of (4) Records are permanently specimens, herbarium specimens, or shipments from registered scientific maintained for loans and transfers to live plant material with another institutions: and from other institutions. registered institution. The shipment (1) The receiving and sending must have an external label that (5) Specimens are acquired primarily scientific institutions must be registered contains information specified in for research that is to be reported in with the Management Authority in their paragraph (e)(5) of this section. scientific publications, and CITES country. Scientists who wish to use this (c) U.S. application to register as a specimens are not used for commercial exemption must be affiliated with a scientific institution. To register, purposes or as decorations. registered scientific institution. complete Form 3–200–39 and submit it (6) Collections are prepared and (i) When a Management Authority is to the U.S. Management Authority. arranged in a way that ensures their satisfied that a scientific institution has (d) Criteria. The criteria in this accessibility to researchers. ebenthall on PRODPC61 with RULES3 met the criteria for registration, it will paragraph (d) apply to the registration of (7) Specimen labels, permanent assign the institution a five-character U.S. and foreign institutions for catalogs, and other records are accurate. code consisting of the ISO country code scientific exchange. To be issued a (8) Specimens are legally acquired and a unique three-digit number. In the certificate of scientific exchange as a and lawfully possessed under a case of a non-Party, the Secretariat will registered U.S. scientific institution, you country’s wildlife and plant laws. VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48477 (9) Appendix-I specimens are provisions apply to the issuance and (3) The traveling exhibition is based permanently and centrally housed acceptance of a certificate for live in the country that issued the certificate. under the direct control of the wildlife and plants, or their parts, (4) The specimen meets the criteria institution. products, or derivatives in an exhibition for a bred-in-captivity certificate, (e) U.S. standard conditions. In that travels internationally: certificate for artificially propagated addition to the conditions in § 23.56, (1) The Management Authority in the plants, or pre-Convention certificate. any activity conducted under a country of the exhibitor’s primary place (5) The exhibitor does not intend to certificate of scientific exchange must of business must have determined that sell or otherwise transfer the wildlife or meet all of the following conditions: the specimens are bred in captivity, plant while traveling internationally. (1) Both scientific institutions artificially propagated, or pre- (6) The wildlife or plant is securely involved in the exchange must be Convention and issued a traveling- marked or identified in such a way that registered by the applicable exhibition certificate. border officials can verify that the Management Authorities (or the (2) The certificate must indicate that certificate and specimen correspond. If Secretariat in the case of a non-Party), the wildlife or plant is part of a traveling a microchip is used, we may, if and be included in the Secretariat’s exhibition. necessary, ask the importer, exporter, or register of scientific institutions. (3) A separate certificate must be re-exporter to have equipment on hand (2) An institution may send and issued for each live wildlife specimen; to read the microchip at the time of receive only preserved, frozen, dried, or a CITES document may be issued for import, export, or re-export. embedded museum specimens, more than one specimen for a traveling (e) U.S. standard conditions. In herbarium specimens, or live plant exhibition of live plants and dead parts, addition to the conditions in § 23.56, materials that have been permanently products, or derivatives of wildlife and you must meet all of the following and accurately recorded by one of the plants. conditions: institutions involved in the exchange (4) The certificate is not transferable. (1) The certificate may be used by and that are traded as a noncommercial (5) Parties should treat the certificate you, and you must not transfer or assign loan, donation, or exchange. like a passport for import and export or it to another person or traveling (3) An institution may use specimens re-export from each country, and should exhibition. acquired under a certificate of not collect the original certificate at the (2) You must transport the specimen scientificexchange and their offspring border. internationally only for exhibition, not only for scientific research or (6) Parties should check specimens for breeding, propagating, or activities educational display at a scientific closely to determine that each specimen other than exhibition. institution and may not use specimens matches the certificate and ensure that (3) You must present the certificate to for commercial purposes. each live specimen is being transported the official for validation at each border (4) The institution must keep records and cared for in a manner that crossing. to show that the specimens were legally minimizes the risk of injury, damage to (4)For live plants, the quantity of acquired. health, or cruel treatment of the plants must be reasonable for the (5) A customs declaration label must specimen. purpose of the traveling exhibition. be affixed to the outside of each (7) If offspring are born or a new (5) You must not sell or otherwise shipping container or package that specimen is acquired while the traveling transfer the specimen, or any offspring contains all of the following: exhibition is in another country, the born to such specimen, while traveling (i) The acronym ‘‘CITES.’’ exhibitor must obtain the appropriate internationally. (ii) A description of the contents CITES document for the export or re- (6) If the certificate is lost, stolen, or (such as ‘‘herbarium specimens’’). export of the specimen from the accidentally destroyed, you may obtain (iii) The names and addresses of the Management Authority of that country. a replacement certificate only from the sending and receiving registered (8) Upon returning home, the U.S. Management Authority. institutions. exhibitor may apply for a traveling- (7) If you no longer own the wildlife (iv) The signature of a responsible exhibition certificate for wildlife born or plants, or no longer plan to travel as officer of the sending registered overseas or for wildlife or plants a traveling exhibition, the original scientific institution. acquired overseas. certificate must be immediately (v) The scientific institution codes of (c) U.S. application form. Complete returned to the U.S. Management both registered scientific institutions Form 3–200–30 for wildlife and Form Authority. involved in the loan, donation, or 3–200–32 for plants, and submit it to the (8) You must return the traveling exchange. U.S. Management Authority. exhibition to the United States before (6) A registered institution may (d) Criteria. The criteria in this the certificate expires. destroy samples during analysis, paragraph (d) apply to the issuance and provided that a portion of the sample is acceptance of U.S. and foreign § 23.50 What are the requirements for a certificates. When applying for a U.S. sample collection covered by an ATA maintained and permanently recorded certificate, you must provide sufficient carnet? at a registered scientific institution for future scientific reference. information for us to find that your (a) Purpose. Article VII(1) of the proposed activity meets all of the Treaty allows for the transit of § 23.49 What are the requirements for an following criteria: specimens through or within a Party exhibition traveling internationally? (1) The traveling exhibition makes country while the specimens remain (a) Purpose. Article VII(7) of the multiple cross-border movements, and under customs control. Treaty grants an exemption for will return to the country in which the (b) Definition. For purposes of this specimens that qualify as bred in exhibition is based before the certificate section, sample collection means a set of ebenthall on PRODPC61 with RULES3 captivity, artificially propagated, or pre- expires. legally acquired parts, products, or Convention and are part of a traveling (2) The cross-border movement must derivatives of Appendix-II or -III exhibition. be for exhibition, and not for breeding, species, or Appendix-I species bred in (b) U.S. and foreign general propagating, or activities other than captivity or artificially propagated for provisions. The following general exhibition. commercial purposes, that will: VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48478 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations (1) Cross international borders only (d) U.S. application form. Complete (iii) The specimens are one of the for temporary exhibition or display Form 3–200–29 for wildlife and Form following: purposes and return to the originating 3–200–32 for plants, and submit it to the (A) Biological samples. country. U.S. Management Authority. (B) Pre-Convention specimens. (2) Be accompanied by a valid ATA (e) Criteria. The criteria in this (C) Specimens that qualify as bred in carnet and remain under customs paragraph (e) apply to the issuance and captivity or artificially propagated. control. acceptance of U.S. and foreign (D) Appendix-I specimens from (3) Not be sold or otherwise documents. When applying for a U.S. registered commercial breeding transferred while traveling document, you must provide sufficient operations. internationally. information for us to find that your (E) Appendix-I plants artificially (c) U.S. and foreign general proposed activity meets all of the propagated for commercial purposes. provisions. The following general following criteria: (F) Other specimens that the provisions apply to the issuance and (1) The specimens meet the definition Management Authority determines acceptance of a CITES document for the of a sample collection as provided in qualify for partially completed movement of sample collections: paragraph (b) of this section. documents. (1) The Management Authority in the (2) The wildlife or plant specimens (2) A Management Authority may country where the sample collection must be securely marked or identified in register applicants for species that may originated must issue a CITES document such a way that border officials can be traded under partially completed that: verify that the CITES document, ATA documents. (i) Clearly specifies that the document carnet, and specimens correspond. (3) Partially completed CITES was issued for a ‘‘sample collection.’’ (f) U.S. standard conditions. In documents require the permit holder to: addition to the conditions in § 23.56, (i) Enter specific information on the (ii) Includes the condition in block 5, you must meet all of the following CITES document or its annex as or an equivalent place, of the document conditions: conditioned on the face of the CITES that it is valid only if the shipment is (1) You must transport the sample document. accompanied by a valid ATA carnet and (ii) Enter scientific names on the that the specimens must not be sold, collection only for temporary exhibition CITES document only if the donated, or otherwise transferred while or display purposes. (2) You must not transfer or assign the Management Authority included an outside the originating country. inventory of approved species on the (2) The number of the accompanying CITES document toanother person. (3) You must not sell, donate, or face of the CITES document or an ATA carnet must be recorded on the attached annex. CITES document, and if this number is transfer specimens while traveling internationally. (iii) Sign the CITES document, which not recorded by the Management acts as a certification that the Authority, it must be entered by a (4) You must present the CITES document and the ATA carnet to the information entered is true and customs or other CITES enforcement accurate. official responsible for the original official for validation at each border crossing. (4) CITES documents issued for endorsement of the CITES document. biological samples may be validated at (3) The name and address of the (5) You must return the sample collection to the United States prior to the time of issuance provided that upon exporter or re-exporter and importer export the container is labeled with the must be identical, and the names of the the expiration of the CITES document. (6) If the CITES document is lost, CITES document number and indicates countries to be visited must be indicated it contains CITES biological samples. in block 5 or an equivalent place. stolen, or accidentally destroyed, you may obtain a replacement certificate (c) U.S. application form. Complete (4) The date of validity must not be the appropriate form for the proposed later than that of the ATA carnet and the only from the U.S. Management Authority. activity (see §§ 23.18 through 23.20) and period of validity must not exceed 6 submit it to the U.S. Management months from the date of issuance. (7) If you no longer own the sample collection, or no longer plan to travel Authority. (5) At each border crossing, Parties (d) Criteria. The criteria in this must verify the presence of the CITES with the sample collection, you must paragraph (d) apply to the issuance and document, but allow it to remain with immediately return the original acceptance of U.S. and foreign CITES the shipment, and ensure that the ATA document to the U.S. Management documents. When applying for a U.S. carnet is properly endorsed with an Authority. CITES document, you must provide authorized stamp and signature by a § 23.51 What are the requirements for sufficient information for us to find that customs official. issuing a partially completed CITES your proposed activity meets the criteria (6) The exporter or re-exporter must document? in subpart C for the appropriate CITES return the sample collection to the (a) Purpose. Under Article VIII(3), document and the following criteria: originating country prior to the Parties are to ensure that CITES (1) The use of partially completed expiration of the CITES document. specimens are traded with a minimum documents benefits both the permit (7) Parties should check the CITES of delay. holder and the issuing Management document and sample collection closely (b) U.S. and foreign general Authority. at the time of first export or re-export provisions. The following provisions (2) The proposed activity will have a and upon its return to ensure that the apply to the issuance and acceptance of negligible impact or no impact upon the contents of the sample collection have partially completed CITES documents. conservation of the species. not been changed. (1) A Management Authority may (e) U.S. standard conditions. In (8) For import into and export or re- issue partially completed CITES addition to the conditions in § 23.56 export from the United States, the documents only when: and any standard conditions in this part ebenthall on PRODPC61 with RULES3 shipment must comply with the (i) The permitted trade will have a that apply to the specific CITES requirements for wildlife in part 14 of negligible impact or no impact on the document, the following conditions this subchapter and for plants in part 24 conservation of the species. must be met: of this subchapter and 7 CFR parts 319, (ii) All provisions of CITES have been (1) You must enter the information 352, and 355. met. specified in block 5, either on the face VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48479 of the CITES document or in an annex provisions do not apply to a document that it is a ‘‘replacement’’ and a ‘‘true to the document. that has expired or that requires copy of the original,’’ contain a new (2) You may not alter or enter any amendment. To amend or renew a dated original signature of a person information on the face of the CITES CITES document, see part 13 of this authorized to sign CITES documents for document or in an annex to the subchapter. the issuing Management Authority, and document that is not authorized in (b) U.S. and foreign general give the reason for replacement. block 5 or an equivalent place. provisions. The following provisions (5) If the replacement CITES (3) If you are authorized to enter a apply to the issuance and acceptance of document is a newly issued original scientific name, it must be for a species a replacement CITES document: document, it must indicate that it is a authorized in block 5 or an equivalent (1) The permittee must notify the ‘‘replacement,’’ include the number and place, or in an attached annex of the issuing Management Authority that the date of issuance of the document being CITES document. document was lost, damaged, stolen, or replaced, and give the reason for (4) You must sign the CITES accidentally destroyed. replacement. document to certify that all information (2) The issuing Management (c) U.S. application procedures. To entered by you is true and correct. Authority must be satisfied that the apply for a replacement CITES § 23.52 What are the requirements for CITES document was lost, damaged, document, you must do all of the replacing a lost, damaged, stolen, or stolen, or accidentally destroyed. following: accidentally destroyed CITES document? (3) The issuing Management (1) Complete application Form 3– (a) Purpose. A Management Authority Authority should immediately inform 200–66 and submit it to the U.S. may issue a duplicate document, either the Management Authority in the Management Authority. a copy of the original or a re-issued country of destination and, for (2) Consult the list to find the types original, when a CITES document has commercial shipments, the Secretariat. of information you need to provide been lost, damaged, stolen, or (4) If the replacement CITES (more than one circumstance may apply accidentally destroyed. These document is a copy, it must indicate to you): If Then (i) The shipment has already oc- Provide copies of: curred (A) Any correspondence you have had with the shipper or importing country’s Management Authority concerning the shipment. (B) For wildlife, the validated CITES document and cleared Declaration for Importation or Exportation of Fish or Wildlife (Form 3–177). (C) For plants, the validated CITES document. (ii) The original CITES document Submit a signed, dated, and notarized statement that: no longer exists (A) Provides the CITES document number and describes the circumstances that resulted in the loss or destruction of the original CITES document. (B) States whether the shipment has already occurred. (C) Requests a replacement U.S. CITES document. (iii) An original CITES document Submit the original damaged CITES document and a signed, dated, and notarized statement that: exists but has been damaged (A) Describes the circumstances that resulted in the CITES document being damaged. (B) States whether the shipment has already occurred. (C) Requests a replacement U.S. CITES document. (d) Criteria. The criteria in this (2) A CITES document issued for a has occurred, but before the shipment is paragraph (d) apply to the issuance and shipment that has already occurred does cleared for import. acceptance of U.S and foreign not require validation. (b) U.S. and foreign general documents. When applying for a U.S. (f) Validation. For an export or re- provisions. The following provisions replacement document, you must export that has not left the United apply to the issuance and acceptance of provide sufficient information for us to States, follow the procedures in § 23.27. a retrospective CITES document: find that your proposed activity meets If the shipment has left the United (1) A retrospective document may not all of the following criteria: States and is in a foreign country, be issued for Appendix-I specimens (1) The circumstances for the lost, submit the unvalidated replacement except for certain specimens for damaged, stolen, or accidentally CITES document to the appropriate personal use as specified in paragraph destroyed CITES document are foreign authorities. We will not validate (d)(7) of this section. reasonable. the replacement CITES document for a (2) The exporter or re-exporter must (2) If the shipment has already been shipment that has already been shipped notify the Management Authority in the made, the wildlife or plant was legally to a foreign country. We do not require exporting or re-exporting country of the exported or re-exported, and the validation on replacement documents irregularities that have occurred. Management Authority of the importing issued by foreign Management (3) A retrospective document may be country has indicated it will accept the Authorities. one of the following: replacement CITES document. (i) An amended CITES document (e) U.S. standard conditions. In § 23.53 What are the requirements for where it can be shown that the issuing ebenthall on PRODPC61 with RULES3 addition to the conditions in § 23.56, obtaining a retrospective CITES document? Management Authority made a the following conditions apply: (a) Purpose. Retrospective CITES technical error that was not prompted (1) If the original CITES document is documents may be issued and accepted by the applicant. found, you must return it to the U.S. in certain limited situations to authorize (ii) A newly issued CITES document Management Authority. an export or re-export after that activity where it can be shown that the VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48480 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations applicant was misinformed by CITES (2) The specimens were presented to (C) The quantity is reasonably officials or the circumstances in (d)(7) of the appropriate official for inspection at necessary or appropriate for the nature this section apply and a shipment has the time of import and a request for a of your trip or stay. occurred without a document. retrospective CITES document was (e) U.S. standard conditions. In (4) Retrospective documents can only made at that time. addition to the conditions in § 23.56, be issued after consultation between the (3) The export or re-export and import the following condition applies: A Management Authorities in both the of the specimens was otherwise in CITES document issued for a shipment exporting or re-exporting country and compliance with CITES and the relevant that has already occurred does not the importing country, including a national legislation of the countries require validation. thorough investigation of circumstances involved. (f) Validation. Submit the original and agreement between them that (4) The importing Management unvalidated retrospective CITES criteria in paragraph (d) of this section Authority has agreed to accept the document to the appropriate foreign have been met. retrospectively issued CITES document. (5) The specimens must be Appendix- authority. We will not validate the (5) The issuing Management II or -III wildlife or plants, except as retrospective CITES document for a Authority must provide all of the provided in paragraph (d)(7) of this shipment that has already been shipped following information on any section. to a foreign country, and we do not retrospective CITES document: (i) A statement that it was issued (6) Except as provided in paragraph require validation on retrospective retrospectively. (d)(7) of this section, the exporter or re- documents issued by foreign (ii) A statement specifying the reason exporter and importer were not Management Authorities. for the issuance. responsible for the irregularities that § 23.54 How long is a U.S. or foreign (iii) In the case of a document issued occurred and have demonstrated one of CITES document valid? for personal use, a condition restricting the following: sale of the specimen within 6 months (i) The ManagementAuthority or (a) Purpose. Article VI(2) of the Treaty following the import of the specimen. officials designated to clear CITES sets the time period within which an (6) The issuing Management shipments misinformed the exporter or export permit is valid. Validity periods Authority must send a copy of the re-exporter or the importer about the for other CITES documents are retrospective CITES document to the CITES requirements. In the United prescribed in this section. Secretariat. States, this would be an employee of the (b) Period of validity. CITES (7) In general, except when the FWS (for any species) or APHIS or CBP documents are valid only if presented exporter or re-exporter and importer (for plants). for import or introduction from the sea have demonstrated they were not (ii) The Management Authority within the period of validity (before responsible for the irregularities, any unintentionally made a technical error midnight on the expiration date) noted person who has been issued a CITES that was not prompted by information on the face of the document. document in the past will not be eligible provided by the applicant when issuing (1) An export permit and re-export to receive a retrospective document. the CITES document. certificate will be valid for no longer (c) U.S. application. Complete (7) In the case of specimens for than 6 months from the issuance date. application Form 3–200–58 and submit personal use, you must either show that (2) An import permit, introduction- it to the U.S. Management Authority. In you qualify under paragraph (d)(6) of from-the-sea certificate, and certificate addition, submit one of the following: this section, or that a genuine error was of origin will be valid for no longer than (1) For a shipment that occurred made and that there was no attempt to 12 months from the issuance date. under a document containing a deceive. The following specimens for technical error, the faulty CITES (3) A traveling-exhibition certificate personal use may qualify for issuance of and certificate of ownership will be document. a retrospective document: (2) For a shipment that occurred valid for no longer than 3 years from the (i) Personal or household effects. without a CITES document, a completed (ii) Live Appendix-II or -III specimens issuance date. application form for the type of activity or live pre-Convention Appendix-I (4) Other CITES documents will state you conducted (see §§ 23.18 through specimens that you own for your the period of their validity, but no U.S. 23.20). personal use, accompanied you, and CITES document will be valid for longer (d) Criteria. The criteria in this number no more than two. than 3 years from the issuance date. paragraph (d) apply to the issuance and (iii) Parts, products, or derivatives of (c) Extension of validity. The validity acceptance of U.S. and foreign an Appendix-I species that qualify as of a CITES document may not be documents. When applying for a U.S. pre-Convention when the following extended beyond the expiration date on document, you must provide sufficient conditions are met: the face of the document, except under information for us to find that your (A) You own and possess the limited circumstances for certain timber activity meets all of the following specimen for personal use. species as outlined in § 23.73. criteria: (B) You either wore the specimen as (1) The specimens were exported or clothing or an accessory or took it as § 23.55 How may I use a CITES specimen re-exported without a CITES document part of your personal baggage, which after import into the United States? or with a CITES document that was carried by you or checked as You may use CITES specimens after contained technical errors as provided baggage on the same plane, boat, car, or import into the United States for the in paragraph (d)(6)(ii) of this section. train as you. following purposes: ebenthall on PRODPC61 with RULES3 VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48481 If the species is listed in Allowed use after import (a) Appendix I, except for specimens imported with a CITES exemption The specimen may be used, including a transfer, donation, or ex- document listed in paragraph (d) of this section. change, only for noncommercial purposes. (b) Appendix II with an annotation for noncommercial purposes where other specimens of that species are treated as if listed in Appendix I. (c) Appendix II and threatened under the ESA, except as provided in a special rule in §§ 17.40 through 17.48 or under a permit granted under §§ 17.32 or 17.52. (d) Appendix I, and imported with a CITES exemption document as fol- The specimen may be used for any purpose, except if the regulations lows: in this part or other parts of this subchapter or a permit condition al- (1) U.S-issued certificate for personally owned wildlife. lowed the import only for noncommercial purposes, then the import (2) Pre-Convention certificate. and subsequent use must be only for noncommercial purposes. (3) Export permit or re-export certificate for wildlife from a reg- istered commercial breeding operation. (4) Export permit or re-export certificate for a plant from a reg- istered nursery or under a permit with a source code of ‘‘D.’’ (5) U.S.-issued traveling-exhibition certificate. (e) Appendix II, other than those in paragraphs (b) and (c) of this sec- tion. (f) Appendix III. § 23.56 What U.S. CITES document (c) Special conditions. We may place paragraphs (e) through (k) of this conditions do I need to follow? special conditions on a CITES document section. (a) General conditions. The following based on the needs of the species or the (4) As necessary, we consult with general conditions apply to all U.S. proposed activity. You must comply foreign Management and Scientific CITES documents: with any special conditions contained Authorities, the CITES Secretariat, State (1) You must comply with the in or attached to a CITES document. conservation agencies, Tribes, FWS Law provisions of part 13 of this subchapter Enforcement, APHIS or CBP, and other Subpart D—Factors Considered in appropriate experts. as conditions of the document, as well Making Certain Findings as other applicable regulations in this (d) Risk assessment. We review the subchapter, including, but not limited § 23.60 What factors are considered in general factors listed in this paragraph to, any that require permits. You must making a legal acquisition finding? and additional specific factors in comply with all applicable local, State, (a) Purpose. Articles III, IV, and V of paragraphs (e) through (k) of this section Federal, tribal, and foreign wildlife or the Treaty require a Management to assess the level of scrutiny and plant conservation laws. Authority to make a legal acquisition amount of information we need to make (2) For export and re-export of live finding before issuing export permits a finding of legal acquisition. We give wildlife and plants, transport conditions and re-export certificates. The Parties less scrutiny and require less-detailed must comply with CITES’Guidelines for have agreed that a legal acquisition information when there is a low risk transport and preparation for shipment finding must also be made before that specimens to be exported or re- of live wild animals and plantsor, in the issuing certain CITES exemption exported were not legally acquired, and case of air transport of live wildlife, documents. give more scrutiny and require more with International Air Transport (b) Types of legal acquisition. Legal detailed information when the proposed Association Live Animals Regulations. acquisition refers to whether the activity poses greater risk. We consider (3) You must return the original specimen and its parental stock were: the cumulative risks, recognizing that CITES document to the issuing office if (1) Obtained in accordance with the each aspect of the international trade you do not use it, it expires, or you provisions of national laws for the has a continuum of risk from high to request renewal or amendment. protection of wildlife and plants. In the low associated with it as follows: (4) When appropriate, a Management United States, these laws include all (1) Status of the species: From Authority may require that you identify applicable local, State, Federal, tribal, Appendix I to Appendix III. Appendix-II and -III wildlife or plants and foreign laws; and (2) Origin of the specimen: From wild- with a mark. All live Appendix-I (2) If previously traded, traded collected to born or propagated in a wildlife must be securely marked or internationally in accordance with the controlled environment to bred in uniquely identified. Such mark or provisions of CITES. captivity or artificially propagated. identification must be made in a way (c) How we make our findings. We (3) Source of the propagule used to that the border official can verify that make a finding that a specimen was grow the plant: From documentation the specimen and CITES document legally acquired in the following way: that the plant was grown from a non- correspond. If a microchip is used, we (1) The applicant must provide exempt seed or seedling to may, if necessary, ask the importer, sufficient information (see § 23.34) for documentation that the plant was grown exporter, or re-exporter to have us to make a legal acquisition finding. from an exempt seed or seedling. equipment on hand to read the (2) We make this finding after (4) Origin of the species: From species microchip at the time of import, export, considering all available information. native to the United States or its ebenthall on PRODPC61 with RULES3 or re-export. (3) The amount of information we bordering countries of Mexico or (b) Standard conditions. You must need to make the finding is based on our Canada to nonnative species from other comply with the standard conditions review of general factors described in countries. provided in this part for specific types paragraph (d) of this section and (5) Volume of illegal trade: From high of CITES documents. additional specific factors described in to low occurrence of illegal trade. VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 48482 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations (6) Type of trade: From commercial to shipment was cleared by FWS, APHIS, based sustainable-use management plan noncommercial. or CBP. that is designed to eliminate over- (7) Trade by range countries: From (i) Personal use. For a wildlife or utilization of the species. range countries that do not allow plant specimen that is being exported or (3) If no sustainable-use management commercial export, or allow only re-exported for personal use by the plan has been established, the removal limited noncommercial export of the applicant, we consider whether: of the animal or plant from the wild species, to range countries that allow (1) The specimen was acquired in the would not contribute to the over- commercial export in high volumes. United States and possessed for strictly utilization of the species, considering (8) Occurrence of the species in a personal use. both domestic and international uses. controlled environment in the United (2) The number of specimens is (4) The proposed activity, including States: From uncommon to common in reasonably appropriate for the nature of the methods used to acquire the a controlled environment in the United your export or re-export as personal use. specimen, would pose no net harm to States. (3) No persuasive evidence exists on the status of the species in the wild. (9) Ability of the species to be bred or illegal transactions involving the (5) The proposed activity would not propagated readily in a controlled specimen. lead to long-term declines that would environment: From no documentation (j) Sequential ownership. For a place the viability of the affected that the species can be bred or specimen that was previously possessed population in question. propagated readily in a controlled by someone other than the applicant, we (6) The proposed activity would not environment to widely accepted may consider the history of ownership lead to significant habitat or range loss information that the species is for a specimen and its parental stock, or restriction. commonly bred or propagated. breeding stock, or cultivated parental (d) Additional factor for Appendix-II (10) Genetic status of the specimen: stock. species. In addition to the general From a purebred species to a hybrid. (k) Wild-collected in the United factors in paragraph (c) of this section, (e) Captive-bred wildlife or a States. For a specimen collected from we will consider whether the intended cultivated plant. For a specimen that is the wild in the United States, we export of an Appendix-II species would captive-bred or cultivated, we may consider the site where the specimen cause a significant risk that the species consider whether the parentalstock was was collected, whether the species is would qualify for inclusion in legally acquired. known to occur at that site, the Appendix I. (f) Confiscated specimen. For a abundance of the species at that site, (e) Additional factors for Appendix-I confiscated Appendix-II or -III and, if necessary, whether permission of species. In addition to the general specimen, we consider whether the appropriate management agency or factors in paragraph (c) of this section, information shows that the transfer of landowner was obtained to collect the we will consider whether the proposed the confiscated specimen or its offspring specimen. activity: met the conditions of the remission § 23.61 What factors are considered in (1) Would not cause an increased risk decision, legal settlement, or disposal making a non-detriment finding? of extinction for either the species as a action after forfeiture or abandonment. (a) Purpose. Articles III and IV of the whole or the population from which the (g) Donated specimen of unknown Treaty require that, before we issue a specimen was obtained. origin. For an unsolicited specimen of CITES document, we find that a (2) Would not interfere with the unknown origin donated to a public proposed export or introduction from recovery of the species. institution (see § 10.12 of this the sea of Appendix-I or -II specimens (3) Would not stimulate additional subchapter), we consider whether: is not detrimental to the survival of the trade in the species. If the proposed (1) The public institution follows species and that a proposed import of an activity does stimulate trade, we will standard recordkeeping practices and Appendix-I specimen is for purposes consider whether the anticipated has made reasonable efforts to obtain that would not be detrimental to the increase in trade would lead to the supporting information on the origin of survival of the species. decline of the species. the specimen. (b) Types of detriment. Detrimental (f) How we make our findings. We (2) The public institution provides activities, depending on the species, base the non-detriment finding on the sufficient information to show it made could include, among other things, best available biological information. a reasonable effort to find a suitable unsustainable use and any activities that We also consider trade information, recipient in the United States. would pose a net harm to the status of including trade demand, and other (3) The export will provide a the species in the wild. For Appendix- scientific management information. We conservation benefit to the species. I species, it also includes use or removal make a non-detriment finding in the (4) No persuasive information exists from the wild that results in habitat loss following way: on illegal transactions involving the or destruction, interference with (1) We consult with the States, Tribes, specimen. recovery efforts for a species, or other Federal agencies, scientists, other (5) The export is noncommercial, with stimulation of further trade. experts, and the range countries of the no money or barter exchanged except (c) General factors. The applicant species. for shipping costs. must provide sufficient information for (2) We consult with the Secretariat (6) The institution has no history of us to make a finding of non-detriment. and other Parties to monitor the level of receiving a series of rare and valuable In addition to factors in paragraphs (d) trade that is occurring in the species. specimens or a large quantity of wildlife and (e) of this section, we will consider (3) Based on the factors in paragraphs or plants of unknown origin. whether: (c) through (e) of this section, we (h) Imported previously. For a (1) Biological and management evaluate the biological impact of the ebenthall on PRODPC61 with RULES3 specimen that was previously imported information demonstrates that the proposed activity. into the United States, we consider any proposed activity represents sustainable (4) In cases where insufficient reliable, relevant information we receive use. information is available or the factors concerning the validity of a CITES (2) The removal of the animal or plant above are not satisfactorily addressed, document, regardless of whether the from the wild is part of a biologically we take precautionary measures and VerDate Aug<31>2005 15:36 Aug 22, 2007 Jkt 211001 PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR3.SGM 23AUR3 Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / Rules and Regulations 48483 would be unable to make the required (b) How we make our findings. We (2) Scientific purposes. The import or finding of non-detriment. must find that the intended use of the introduction from the sea of an (g) Risk assessment. We review the Appendix-I specimen is not for Appendix-I specimen by a scientist or status of the species in the wild and the primarily commercial purposes before scientific institution may be permitted degree of risk the proposed activity we can issue a CITES document. in situations where resale, commercial poses to the species to determine the (1) We will make this decision on a exchange, or exhibit of the specimen for level of scrutiny needed to make a case-by-case basis considering all economic benefit is not the primary finding. We give greater scrutiny and available information. intended use. require moredetailed information for (2) The applicant must provide (3) Conservation, education, or activities that pose a greater risk to a sufficient information to satisfy us that training. Generally an Appendix-I species in the wild. We consider the the intended use is not for primarily specimen may be imported or cumulative risks, recognizing that each commercial purposes. introduced from the sea by government aspect of international trade has a (3) The definitions of ‘‘commercial’’ agencies or nonprofit institutions for continuum of risk (from high to low) and ‘‘primarily commercial purposes’’ purposes of conservation, education, or associated with it as follows: in § 23.5 apply. training. For example, a specimen could (1) Status of the species: From (4) We will look at all aspects of the be imported or introduced from the sea Appendix I to Appendix II. intended use of the specimen. If the primarily to train customs staff in (2) Origin of the specimen: From wild- noncommercial aspects do not clearly effective CITES control, such as for collected to born or propagated in a predominate, we will consider the identification of certain types of controlled environment to bred in import or introduction from the sea to specimens. captivity or artificially propagated. be for primarily commercial purposes. (4) Biomedical industry. Import or (3) Source of the propagule used to (5) While the nature of the transaction introduction from the sea of an grow the plant: From documentation between the owner in the country of Appendix-I specimen by an institution that the plant was grown from a non- export and the recipient in the country or company in the biomedical industry exempt seed or seedling to of import or introduction from the sea is initially presumed to be commercial documentation that the plant was grown may have some commercial aspects, since specimens are typically imported from an exempt seed or seedling. such as the exchange of money to cover or introduced from the sea to develop (4) Origin of the species: From native the costs of shipment and care of and sell products that promote public species to nonnative species. specimens during transport, it is the health for profit. However, if (5) Volume of legal trade: From high intended use of the specimen, including theimporter clearly shows that the sale to low occurrence of legal trade. the purpose of the export, that must not of products is only incidental to public (6) Volume of illegal trade: From high be for primarily commercial purposes. health research and not for the primary to low occurrence of illegal trade. (6) We will conduct an assessment of purpose of economic benefit or profit, (7) Type of trade: From commercial to factors listed in paragraph (d) of this then such an import or introduction noncommercial. section. For activities involving an from the sea could be considered as (8) Genetic status of the specimen: anticipated measurable increase in scientific research under paragraph From a purebred species to a hybrid. revenue and other economic value (9) Risk of disease transmission: From (c)(2) of this section if the principles of associated with the intended use, we paragraph (b) of this section are met. high to limited risk of disease will conduct an analysis as described in (5) Captive-breeding or artificial transmission. (10) Basis for listing: From listed paragraph (e) of