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

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

We propose to revise the regulations that implement the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), a treaty that regulates international trade in certain protected species. CITES uses a system of international permits and certificates to help ensure that trade is legal and does not threaten the survival of wildlife or plant species in the wild. Since the existing regulations were finalized, the CITES Conference of the Parties (COP) has held nine meetings where resolutions have been adopted. We propose to incorporate certain applicable current resolutions into 50 CFR part 23. Revised regulations will help us more effectively promote species conservation, fulfill our responsibilities under the Treaty, and help those affected by CITES understand how to conduct international trade in CITES species.

DATES:

In preparing the final decision on this proposed rule, we will consider all information and comments received by August 7, 2000.

ADDRESSES:

Send comments to Ms. Teiko Saito, Chief, Office of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203. To the extent possible, reference the section of the proposed regulations on which you are commenting. You may also send comments via e-mail to: r9oma—cites@fws.gov. Please reference “Part 23 Comments” and include your name and return address in your e-mail message. Materials received will be available for public inspection by appointment from 7:45 a.m. to 4:15 p.m., Monday through Friday, at the above address.

FOR FURTHER INFORMATION CONTACT:

Ms. Teiko Saito, at the above address, telephone (703) 358-2093, fax (703) 358-2280.

SUPPLEMENTARY INFORMATION:

Acronyms Used in This Proposed Rule

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

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

CFR Code of Federal Regulations

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

DNA  Deoxyribonucleic acid

ESA  Endangered Species Act

Background

CITES was negotiated in 1973 in Washington, DC, at a conference attended by delegations from 80 countries. The United States ratified the Treaty on September 13, 1973, and it came into force on July 1, 1975, after the required 10 countries had ratified it. Section 8A of the Endangered Species Act (ESA), as amended in 1982, designates the Secretary of the Interior as the U.S. Management Authority and Scientific Authority for CITES. These authorities have been delegated to the Fish and Wildlife Service. The U.S. regulations implementing CITES took effect on May 23, 1977 (42 FR 10465, February 22, 1977), after the first COP was held. The COP meets every 2 to 3 years to vote on proposed resolutions that interpret and implement the text of the Treaty and on amendments to the listing of species in the CITES appendices. There are currently 151 Parties (countries that have ratified or acceded to CITES). As a Party to CITES, the United States is committed to fulfilling its obligations under the Treaty, including implementing species listings and appropriate resolutions of the COP.

Resolution consolidation. Between 1976 and 1994, at least 190 resolutions were adopted by the Parties. In 1994, the Parties began an effort to consolidate some of these resolutions. Some resolutions were no longer relevant, and others needed to be combined since there were several resolutions on the same or similar subjects adopted at different COP's. As a result of this process, there are currently 82 resolutions in effect. This proposed rule incorporates certain of these consolidated resolutions from COP 2 through COP 10, as appropriate and relevant to U.S. implementation of the Treaty.

Previous proposed rules. We published proposed rules on September 24, 1985 (50 FR 38683), to incorporate changes from COP 2 through COP 4, and on April 10, 1986 (51 FR 12350), to incorporate changes from COP 5. These proposed rules were never finalized, and we are withdrawing them here because of subsequent decisions of the COP.

Current proposed rule. We propose to replace the current regulations contained in 50 CFR part 23. In this proposed rule, we retained most of the general information from the current 50 CFR part 23, but we reorganized the sections, added provisions from certain resolutions, and revised text under the Government's plain language initiative to make the regulations clearer and easier to use.

Stricter national legislation. Article XIV of the Treaty explicitly recognizes the rights of Parties to adopt stricter national measures to restrict or prohibit trade, taking, possession, or transport of any wildlife or plant species. Resolution Conf. 2.6 (Rev.) recommends that Parties make use of stricter national measures if they have determined “that an Appendix-II or -III species is being traded in a manner detrimental to the survival of that species” or is being “traded in contravention of the laws of any country involved in the transaction.” Resolution Conf. 2.10 (Rev.) recommends that Parties experiencing significant problems in administering or enforcing CITES take stricter national measures to eliminate those problems. We have not incorporated elements of a number of resolutions into this proposal because our stricter national legislation, such as the ESA, the Marine Mammal Protection Act, and the Lacey Act, takes precedence.

Other resolutions. Some resolutions deal specifically with other countries and do not impact these regulations, such as Resolutions Conf. 6.5 (Rev.) and 8.2 (Rev.), which deal solely with the European Economic Community. A number of resolutions deal with general topics, including species conservation issues related to Houbara bustards, trade in sharks, and swiftlets. Although these are important resolutions, they are not regulatory in nature and, therefore, have not been addressed in this proposed rule.

Comments and Information Received

On August 5, 1997, the Fish and Wildlife Service published a notice of intent to propose rulemaking (62 FR 42093). The notice requested public input for the revision of these regulations. We received eight letters of comment: seven from organizations (Animal Welfare Institute, Busch Gardens Tampa, Defenders of Wildlife, Humane Society of the United States, Safari Club International, TRAFFIC USA, and Wildlife Management Institute) and one from an individual. Suggested changes reflected diverse viewpoints that, at times, supported opposite courses of action or interpretation. The comments fit into the following general categories.

Product contents. Two commenters stated that language should be added to 50 CFR part 23 so that products listing CITES species as ingredients must meet all CITES requirements. We propose to define the term “readily recognizable” to include any specimen that has accompanying documents, packaging, marks, or a label that indicates it contains CITES species.

Definitions. Most of the commenters wanted terms in resolutions defined. These included primarily commercial purposes, accompanying personal baggage, hybrid, commercial, bred in captivity, and artificially propagated. We propose to expand the current definitions section (see proposed § 23.5) to include those definitions with unique meanings under CITES.

Non-detriment. One commenter suggested that we include criteria for making non-detriment findings in the regulations, and two felt that the public should have the opportunity to comment on non-detriment findings. One commenter wanted regulations to enable us to question scientific non-detriment findings made by other countries for Appendix-II shipments and reject shipments if we find that the finding was inadequate.

In making a non-detriment finding, we use the best information available. We consult with other Federal agencies, State agencies, and experts to ensure that the information we use is current. We agree that the factors considered when making non-detriment findings should be included in the regulations and propose to include a section outlining those factors. In addition, we encourage people with information on a species or trade to send it to us at any time. As recommended in Resolutions Conf. 2.6 (Rev.) and 10.3, we currently request information on scientific findings from another Party when it appears appropriate. We propose to include the recommendations of these resolutions in the proposed section that outlines when a CITES document is valid (see proposed § 23.23).

Personal effects exemption. We received several comments concerning the personal effects exemption. Several requested that live wildlife or plants be excluded from this exemption, and some requested that limits be put on the number of items that could be considered as personal effects. We propose to revise the requirements for this exemption to exclude any live specimen, to implement Resolution Conf. 10.6, to include conditions that qualify what we would consider personal effects, and to provide guidelines for quantities rather than provide specific numbers.

Quotas for Appendix-I species. One commenter suggested that we expand our use of quotas for Appendix-I species, and another that we abide by the “plain” language of the Treaty rather than the resolutions concerning Appendix-I hunting trophies. The second commenter considered trophy hunting a primarily commercial industry and argued that the import of Appendix-I hunting trophies should not be allowed. The revisions we are proposing follow the relevant resolutions as well as stricter measures under U.S. laws. In general, we do not consider the import of hunting trophies by the person who killed the wildlife to be primarily commercial, even though commercial activity occurs in the exporting country as part of the hunt.

Registered operations. Two commenters wanted us to provide an opportunity for the public to comment on proposed registrations of captive-breeding facilities. We propose to publish notices in the Federal Register and invite public comment when we receive requests that U.S. operations be registered.

Resolutions. Most of the commenters discussed the inclusion of resolutions into the regulations. We received a wide range of comments, including: (1) Resolutions are confusing and contradictory, and not all of them should be incorporated; (2) resolutions are recommendations and should not be put into regulations; (3) we should only adopt resolutions that the United States supported at the COP's; (4) we should explain which resolutions are being incorporated and why; and (5) we should give a history of any resolution incorporated, including who proposed it and whether or not the United States supported it. We also received a number of comments on specific resolutions that commenters felt should be incorporated into the regulations. We propose to incorporate the resolutions that are regulatory in nature and consistent with U.S. interpretation of its obligations under CITES and under U.S. law. It is the goal of the Parties to adopt resolutions by consensus. The United States works hard at COP's to ensure that it can support the text of any resolution that is adopted.

We have reviewed all of the comments and addressed them wherever appropriate. Since there were conflicting recommendations, not all comments were incorporated into this proposal. Some comments were not relevant to 50 CFR part 23, but belong in other regulations and will be considered when those regulations are revised.

Analysis of Proposed Changes to 50 CFR Parts 10, 13, and 17

Definitions in 50 CFR 10.12: We propose to revise two definitions in 50 CFR 10.12 because the definitions provided in 50 CFR part 10 apply to all regulations in subchapter B if not separately defined in a specific part. We propose to expand the term “country of origin” to apply to plants as well as wildlife and to update the definition of the “United States” to reflect changes in areas under U.S. jurisdiction.

General permit procedures in 50 CFR part 13: We propose to reorganize 50 CFR 13.1 and to revise it to reflect that, under very limited circumstances, permits for non-commercial CITES shipments may be issued after the activity has occurred (see proposed § 23.43 on retrospective documents).

We also propose to revise 50 CFR 13.12 to change the general information required on an application to include an address within the United States. There have been a number of situations where a business in a foreign country has requested a CITES document from us for a shipment it owned that is being shipped out of the United States. If we issue the CITES document showing the exporter's foreign address rather than a U.S. address, it appears that we issued a CITES document for goods that were never in this country. The document can be issued to the owner of the items, but it must include either a U.S. address or the name and address of a U.S. agent. For commercial activities, the name and address of the commercial entity's agent in the United States must be included.

We propose to revise 50 CFR 13.22 that allows continuation of permitted activity during permit renewal. This general provision in 50 CFR part 13 does not apply to CITES documents since they are not considered valid for use upon expiration.

Permittees are required to maintain records. However, our authority to inspect records is limited to areas within the United States. Therefore, to ensure that we are able to carry out our responsibility to inspect records when necessary, we propose to revise 50 CFR 13.46 to require foreign permittees conducting commercial activities within the United States to maintain records in this country.

Import exemption for threatened, Appendix-II wildlife (50 CFR 17.8): We propose to add this new section to 50 CFR part 17. Section 9(c)(2) of the ESA sets out an exemption to the import prohibition for threatened, Appendix-II wildlife when the taking and export meets the provisions of CITES and the import is not made in the course of a commercial activity. The exemption includes sport-hunted trophies that were personally taken from the wild or on a ranch for personal use. We propose to define “sport-hunted trophy” the same as in proposed § 23.5. Handicraft items or items manufactured from the trophy for use as clothing, curios, ornamentation, jewelry, or other utilitarian items would not be allowed.

The purchase in foreign commerce of an item of an ESA species is prohibited under the ESA. Section 9(c)(2) only exempts import; it does not exempt foreign commerce. Thus, the exemption would not include trophy items or other items purchased in curio stores, even if the intended use was personal. It would not apply to species that have a special rule in 50 CFR part 17, such as the argali in 50 CFR 17.40(j). It also would not apply to Appendix-II specimens annotated for a specific use, such as export of hunting trophies for non-commercial purposes, where other specimens of that species are included in Appendix I. The annotation of African elephant populations in Zimbabwe, Namibia, and Botswana is an example of this type of annotation.

Analysis of Proposed Subpart A—Introduction

We propose to expand this subpart to give a clearer picture of our responsibilities under CITES. The following is a section-by-section description of proposed changes to the current regulations.

Parties: The existing regulations (§ 23.4) include a list of countries that are Parties. We propose to omit this list. CITES has grown to include 151 Party countries. To keep this list up to date, we would need to continually revise the list of Parties when more countries join and as contact information for Parties changes. The list of Parties (including addresses and phone/fax numbers) is available on our website, from our fax retrieval system, or by mail or e-mail (see proposed § 23.7). As changes occur, these sources can be more quickly and easily updated than issuing a revised rule.

Purposes (§ 23.1): This section provides background information on the Treaty and explains that CITES is implemented in the United States under the ESA. It outlines the aim of CITES as stated in the preamble to the Treaty. The Parties acknowledge that wildlife and plants have aesthetic, scientific, cultural, recreational, and other non-consumptive values as well as economic importance.

Scope (§ 23.2): We have used a table to help people determine if these regulations apply to their proposed activities. The first question to be answered is whether the specimen is regulated by CITES. The reader is referred to the CITES appendices for the list of species. The second and third questions list the few CITES exemptions and refer the reader to the specific sections in the regulations for these exemptions. The fourth question lists the types of international trade regulated by CITES. The fifth question raises the issue of specimens that were illegally acquired or traded in contravention of CITES. The possession and domestic trade of legal specimens is not regulated by CITES unless the specimens were in international trade under specific conditions of a CITES document that still apply. The possession and domestic or international trade of illegally imported specimens, however, is prohibited. Further, any offspring of illegal specimens are also considered illegal.

Other applicable regulations (§ 23.3): These regulations detail the requirements for CITES species. However, many CITES species are covered by one or more other laws that have regulations in other parts of subchapter B. This section tells you where to look for information on other requirements.

Appendices I, II, and III (§ 23.4): Species are listed at one of three levels of protection, which have different requirements for permits and certificates (CITES documents). This section briefly defines Appendices I, II, and III.

Definitions (§ 23.5): We have added a number of definitions that relate to these regulations. In some cases, we could not clearly define a term in one or two sentences. We have provided longer definitions where necessary and/or referenced a section that contains more detailed provisions. Whenever possible we have defined terms using the wording of the Treaty and the resolutions.

We use some basic terms throughout these regulations. We define “import,” “export,” “re-export,” “international trade,” and “introduction from the sea” to reflect the way they are used by the Parties. These definitions refer to international movement, whether the purpose is commercial or non-commercial. “Import” and “export” are further defined in 50 CFR part 14. We have also defined the term “shipment” to eliminate confusion.

The text of the Treaty uses the terms “permits” (for import and export) and “certificates” (for re-export, exemptions, certificates of origin, and introduction from the sea) in referring to documents issued by CITES Management Authorities (a governmental agency officially designated by a Party or non-Party to implement CITES). However, some Parties refer to all CITES documents as “permits.” For this reason, we have defined and use the term “CITES documents” to refer to all permits and certificates that are issued by a Management Authority. The definition of “permit” in this section is expanded from the definition in 50 CFR § 10.12 to include documents issued by any Management Authority, not just documents “issued by the Service.”

The current regulations (§ 23.3) define the Management Authority in terms of Parties only and do not define Scientific Authority. We propose to define both and to include non-Parties in the definitions. If non-Parties wish to trade with Parties, they need to have entities officially designated as Management and Scientific Authorities to implement CITES and make the findings needed to grant CITES documents.

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

Although the term “readily recognizable” is used in the Treaty (Article I), it is not specifically defined in the Treaty. However, Resolution Conf. 9.6 defines the term, and we have based our proposed definition on the text of the resolution.

Management and Scientific Authorities (§ 23.6): Under Article IX, each Party must designate a Management Authority and Scientific Authority. In the United States, these authorities have been delegated by the Secretary of the Interior and the Director of the Service to two different offices. We propose to add a section that summarizes the major roles of these authorities in the United States. The roles include a wide range of activities such as the issuance and denial of permits; scientific and management findings; monitoring of trade and trade impacts; communication with the Secretariat and other countries on scientific, administrative, and enforcement issues; and evaluation of species' status and trade. Another of our roles is to provide training and technical assistance to countries when possible (Resolution Conf. 3.4 on Technical Co-operation).

Contact information (§ 23.7): The table in this section outlines the type of information available from the Office of Management Authority, Office of Scientific Authority, Office of Law Enforcement, APHIS, and the Secretariat and the different ways you can contact each office. In an effort to serve the public more efficiently, we have developed a website and a fax retrieval system that provide information, such as application forms for CITES documents, the names and addresses of Management and Scientific Authority offices in Party and non-Party countries, and the list of CITES species.

Information collection (§ 23.8): Each permit application form that we use must be reviewed and approved by the Office of Management and Budget for information collection under the Paperwork Reduction Act. These forms undergo review every 3 years. This process provides an opportunity for the public to provide input concerning the amount of time that it takes to complete the forms and prepare the information requested on the forms.

Analysis of Proposed Subpart B—Prohibitions, Exemptions, and Requirements

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

Prohibitions (§ 23.11): We propose minor changes to the prohibitions section in the current regulations. We listed “introduction from the sea” separately from “import” to clarify that CITES treats the activities differently. We added the phrase “engage in international trade” to the list of prohibitions to clarify that international trade in specimens in violation of these regulations by any person under U.S. jurisdiction is prohibited even if specimens are not actually imported into or exported from the United States.

Personal and household effects (§ 23.12): Article VII(3) provides for the import, export, or re-export of specimens that are personal or household effects without CITES documents under certain circumstances. We propose to clarify the current regulations (§ 23.13(d)) based on our experience in administering the Convention. Since many Parties do not recognize this exemption and require CITES documents for personal and household effects, we added new paragraphs explaining when CITES documents for personal and household effects may be required.

We also propose to exclude live wildlife and plants (including eggs and non-exempt seeds) and Appendix-I specimens from the exemption. The drafting history of CITES, as well as significant debate that occurred at COP 4 (the resulting resolution was consolidated into Resolution Conf. 10.6), clearly supports the view that this exemption applies only to nonliving items, such as clothing, jewelry, or household effects, that are being used by an individual for personal needs and are not for resale. In addition, few countries allow the import or export of Appendix-I specimens, including personal pets, without CITES documents, even for personal or household effects. In the United States, many Appendix-I species are listed under the ESA, which does not have an exemption for personal or household effects. Therefore, to assist in the enforcement of the Convention and to reduce the risk to Appendix-I species in the wild, we propose to be more restrictive and require CITES documents for all Appendix-I specimens, except for certain worked items made from African elephant ivory (see proposed § 23.12(g)).

The proposed rule clarifies that personal effects must be personally owned by the traveler for exclusively non-commercial purposes, be reasonably appropriate for the purpose of the trip or stay, and either be worn as clothing or accessories or part of accompanying personal baggage. We have encountered a number of instances, both in the United States as well as abroad, where individuals have had souvenirs or other items seized when these items were mailed or shipped to them. Although these could be considered items for personal use, the CITES exemption does not apply in these cases.

The proposal also clarifies that household effects must be personally owned items that are part of a non-commercial household move. We understand that sometimes it is not possible to ship household goods all at one time. Thus, we propose to allow a person to make as many shipments as needed to accomplish the move as long as they occur within 1 year of the person's change in residence. A shipment may contain only items acquired before the individual moves. It may not include items purchased, inherited, or otherwise acquired after the person has moved, even though the household goods have not yet been shipped.

At COP 10, the Parties recommended in Resolution Conf. 10.12 that the personal effects exemption for sturgeon caviar be limited to no more than 250 grams for each person. We propose to allow this exemption for caviar from species of Appendix-II sturgeon not listed under the ESA. The caviar must be strictly for personal use, and all other requirements of the personal effects exemption would apply. If a person is bringing in more than 250 grams of caviar, a CITES document is required that covers the entire amount, not just the amount over 250 grams. For example, if a person arrives in a country with 265 grams of sturgeon caviar without a CITES document for 265 grams, he or she will not be allowed to keep 250 grams as personal effects and simply surrender the excess amount. Since he or she did not have the required CITES document, the whole amount would be subject to seizure. All other parts and products of Appendix-II sturgeon species that are not listed under the ESA, such as a mounted fishing trophy, can be traded internationally as personal or household effects if they meet the conditions of the exemption.

The African Elephant Conservation Act is stricter U.S. legislation concerning the import or re-export of African elephant ivory. We propose to allow U.S. residents to travel out of and return to the United States with worked African elephant ivory as personal or household effects under certain conditions. Upon import, travelers would need to show records that they owned the ivory before leaving the United States. The exemption does not include items that are purchased while abroad or intended as gifts. We propose to adopt a definition of “raw ivory” similar to the one in the special rule concerning African elephants in 50 CFR 17.40(e) and Resolution Conf. 10.10. Individuals should contact the Management Authority in the country of their destination to find out about its requirements.

Urine, feces, and synthetically derived DNA (§ 23.13): We propose that the international trade of these types of specimens be exempt from CITES requirements. We consider samples of urine and feces to be wildlife by-products, rather than parts and products.

We differentiate between DNA extracted directly from blood or tissue samples and synthetically derived DNA. DNA extracted directly from blood and tissue samples must comply with all CITES permitting requirements. At COP 8, the Parties rejected Denmark's draft resolution to exempt blood and tissue samples to be used for DNA studies. The Parties agreed that such tissues should not be exempt from CITES controls. In 1994, we developed a policy that clarified that we consider synthetically derived DNA as exempt from CITES requirements since it contains no part of the original template. We believe that trade in synthetically derived DNA samples will not adversely affect the conservation of, or effective regulation of trade in, CITES species and their parts and derivatives. We are considering, however, whether we should expand this policy to exempt from CITES requirements DNA that has been extracted directly from tissue. We believe there is little commercial trade in this type of DNA and that exempting it from CITES requirements is of low conservation risk. We will be discussing this issue with other Parties and invite comment to assist us in making a final decision.

Since the Parties have not discussed whether urine, feces, or synthetically derived DNA are regulated by CITES, some countries may require CITES documents for these types of samples. If a country requires CITES documents, we will honor that country's interpretation and process an application.

Although we propose not to regulate these types of specimens under CITES, we believe it is important that researchers collect samples in a manner that does not harm the wildlife and that complies with the laws of the country where the collection occurs. Before collecting samples, researchers should contact the foreign Management Authority or other relevant wildlife or plant authorities to obtain information on collecting and export requirements.

Diplomats and other customs-exempt persons (§ 23.14): CITES Decision 10.34 urges the Parties to remind their diplomatic missions, their delegates on mission in foreign countries, and their troops serving under the flag of the United Nations that they are not exempt from the provisions of the Convention. We propose to add this provision to the regulations to better inform persons who receive duty-free and inspection waiver privileges under customs laws that CITES applies to their activities.

Required CITES documents (§ 23.15-23.17): Articles III, IV, and V lay out the types of documents that must accompany Appendix-I, -II, or -III specimens in international trade. Article VII recognizes some exemptions (such as pre-Convention, bred in captivity, and artificially propagated) that usually require specimens to be accompanied by CITES documents.

We propose to organize the information on what types of CITES documents are required (§ 23.12 and part of § 23.13 in the current regulations) into two decision trees and three tables.

Although the tables include Appendix-I specimens, we developed separate decision trees specifically to address the confusion expressed by the public on the export requirements for Appendix-I wildlife and plants. The decision trees and tables should make it easier for importers and exporters to understand what type of document is needed for a shipment. They refer the user to the section in these regulations that explains the application procedures, provisions, issuance criteria, and conditions. The foreign Management Authority should be contacted for information on how to meet its requirements.

Reservations (§ 23.18): Articles XV, XVI, and XXIII allow a Party to take a reservation on a species' listing. Generally, a reserving Party is treated as a non-Party with respect to trade in the reserved species. Some countries take a reservation because they choose not to recognize a listing and wish to continue trading in the species with other reserving Parties or non-Parties. To date, the United States has not taken a reservation. We believe that commercial trade in Appendix-I species by reserving Parties undermines the effectiveness of the Convention. A current list of species' reservations taken by Parties is available from us (see proposed § 23.7).

To clarify the requirements of the Treaty and to promote conservation, we propose to add this new section to emphasize what types of documents are required from Parties that have taken a reservation on a species. We are incorporating Resolution Conf. 4.25, which recommends that Parties who take a reservation when a species is transferred from Appendix II to Appendix I continue to treat the species as if listed in Appendix II, rather than not listed, when trading with other reserving Parties or non-Parties. This provision should promote the conservation of species listed in Appendix I and continue the reserving Party's obligations for the species.

In-transit (§ 23.19): Due to limited transportation routes and schedules, exporters and re-exporters may not always be able to ship specimens from one country directly to another without transhipping them through intermediary countries. Shipments of marine specimens harvested from international waters may need to move through waters under the jurisdiction of intermediary countries before reaching their port of introduction. Article VII(1) provides an exemption for specimens that are in-transit through a country while the specimens remain under customs control. We propose to define “in-transit shipment” as the immediate transhipment of a wildlife or plant through an intermediary country when the specimen remains under customs control.

In 1983, the COP recognized the potential for abuse of this provision, such as when importers claimed the exemption and delayed shipment of the transiting specimen in order to find a buyer in a foreign country. In 1989, the COP noted that if a valid CITES export document was required to accompany shipments through intermediary countries, Parties could discover illegal trade. The inspection of in-transit shipments was recommended in 1992. Resolution Conf. 9.7 consolidates the earlier resolutions concerning in-transit shipments (Resolutions Conf. 4.10, 7.4, and 8.8).

To prevent misuse of the in-transit exemption, we propose to revise § 23.13(b) to reflect the recommendations of the COP. In-transit shipments must be accompanied by a valid original CITES document issued by the Management Authority of the exporting or re-exporting country that designates the name of the importer in the country of final destination, a copy of a valid import permit for Appendix-I specimens where required, and transportation routing documents that show that the shipment has been consigned to the importer listed on the CITES documents. In-transit shipments must only stay in an intermediary country for the time necessary to transfer the specimens to the mode of transport used to continue to the final destination; must remain under customs control; and may not be sold, manipulated, or split. In addition to these requirements, shipments of specimens from non-Parties or reserving Parties must be accompanied by CITES documents.

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

In a separate Federal Register rulemaking proposal, we plan to propose a revision of 50 CFR part 14 to clarify that shipments to duty-free shops, free ports, or similar zones, or shipments traveling under a customs carnet are considered imports and are not in-transit shipments.

Required information on CITES documents (§ 23.20): Article VI provides basic requirements for CITES documents for import, introduction from the sea, export, and re-export. At the first COP, the Parties recognized the importance of having standardized documents. They also recognized that the process of developing the standards would be a continuous one. Resolutions Conf. 2.5, 3.6, and 7.3 on permits and certificates were consolidated at COP 9 (Resolution Conf. 9.3) and reorganized at COP 10 into Resolution Conf. 10.2. This comprehensive resolution provides guidance on all aspects of CITES documents.

The use of standardized documents assists Parties in implementing CITES. Such standardization allows countries to verify that the specimen being shipped is the one listed on the document and helps identify false and invalid CITES documents. It facilitates the collection of information on the volume of trade in wildlife and plants, providing standard information for annual reports and allowing better monitoring of the levels of commercial trade on a species-specific basis. It also facilitates the clearance of shipments at ports of exit and entry by making all necessary information available to the inspector in a familiar format.

We propose this new section to provide detailed information on what all CITES documents must contain. It applies not only to documents issued by the United States, but also to ones issued by Parties and non-Parties. Most of the information is presented in a series of tables, organized alphabetically by key phrase, code, or type of document. This section should help those shipping and receiving specimens to understand what information is needed on CITES documents.

Most of the requirements are taken directly from Resolution Conf. 10.2 and need no further explanation. However, we discuss some here to clarify issues raised in the past.

Dates: We have had many questions about the “valid until date.” We propose to clarify that the validity of a document expires at midnight (local time at the place of presentation) on the date indicated on the document. All activities, including, but not limited to, transport and presentation for import must be completed before that time.

Description of the specimen: The use of standard descriptions for a specimen is needed to do accurate global trade analyses, particularly for purposes of evaluating the impact of trade on the conservation of the species in the wild. We propose to require that descriptions be in English, Spanish, or French (the three working languages of the Treaty) on documents from Parties to assist inspectors in determining if documents match the accompanying shipment. We have experienced difficulties in processing CITES documents written in languages other than English, Spanish, or French, and clearance of some shipments has been delayed. Limiting descriptions to the three languages of the Treaty should help prevent or reduce such delays, while assisting in enforcement efforts.

Purpose of transaction: Resolution Conf. 10.2 lists standard transaction codes to be used on documents. These are the same codes used by Parties in their CITES annual reports. Although in some cases more than one code may apply, Parties must assign one code that best describes the overall activity. For example, a specimen may be exported for breeding purposes, but the wildlife was sold and the ultimate use is commercial. In this case, the permit will be marked as “T” for commercial, rather than “B” for breeding in captivity. The Management Authority is responsible for reviewing all information provided in an application and then determining which category best describes the transaction or is most appropriate.

Quantity: Many shipments have been presented for clearance with quantities identified as “one box” or “one case.” These quantities give little clear information about how much wildlife or plants are actually in the shipment. A box may contain one wildlife or plant specimen, or it may contain hundreds. The unit of measurement should be appropriate for the type of specimen and agree with the preferred or alternative unit to be used in the CITES annual report, if possible. The unit should be in metric measurement. If weight is given, it is important to provide the weight of the specimen, not the packing material. Some items are more accurately reported by volume, such as timber, which should be shown as cubic meters. To effectively monitor trade, we need records on quantities that actually reflect the volume of that trade.

Scientific name: We propose that the scientific name of the species on the CITES document must include the subspecies when that information is needed to determine the level of protection of the specimen under CITES and/or the ESA. For example, under CITES, three subspecies of cougar (Puma (=Felis) concolor coryi, P. c. costaricensis, and P. c. cougar) are included in Appendix I, while all other subspecies are included in Appendix II. Under the ESA, the Louisiana black bear (Ursus americanus luteolus) is listed as a threatened species; while under CITES, the entire species is included in Appendix II with no subspecies included in Appendix I.

The document must contain the scientific name of the species that is of the standard nomenclature as it appears in the CITES appendices or in the references adopted by the COP. CITES has adopted nomenclature references for most, but not all, species. Resolution Conf. 10.22 provides a list of these references for mammals, birds, reptiles, amphibians, and plants. Taxonomy evolves, and different references may use different scientific names for the same organism. Having one standard that we can follow is important to ensure that documents are issued for the correct species. Any changes of adopted nomenclature references would be by a resolution of the COP. The most current list of references is available from us or the Secretariat's website.

Resolution Conf. 10.2 recommends three situations when a higher taxon name (such as genus or family) could be used on a CITES document. We propose to incorporate the recommendations of the resolution as adopted. We would accept a CITES document that uses a higher taxon name only when the COP has agreed to its use, the issuing Party can show it is well justified and has communicated it to the Secretariat, or when the item is a pre-Convention manufactured product containing a specimen that cannot be identified to the species' level.

Signature: We propose to implement the CITES requirement that the signatures of individuals authorized to sign CITES documents for a Management Authority must be on file with the Secretariat. This proposed requirement should help us determine if a document is valid and avoid delays in the clearance of shipments.

The proposed table in paragraph (e) provides details on additional information that is required for specific types of documents, such as an annex or certificate of origin. Some documents require additional information because of the type of transaction, the specimen involved, or special provisions, such as quotas.

CITES allows phytosanitary certificates to be used in lieu of CITES certificates for Appendix-II and -III artificially propagated plants only and under specific circumstances. Proposed paragraph (f) lists information that is required on these certificates. At this time, the United States does not use phytosanitary certificates in lieu of CITES certificates.

Source of the specimen (§ 23.21): The source of a specimen is needed by Management and Scientific Authorities to make the findings required to issue CITES documents and is an important component in analyzing data and monitoring trade. We are providing a list of standardized codes that Management Authorities use on documents. Each code is defined as to the source of the specimen under CITES. The Management Authority will determine the appropriate code based on information provided in an application.

We often receive questions about the difference between the source codes “C” and “F.” Wildlife bred in captivity can be given the source code “C” only if the specimen meets the requirements adopted by the COP as “bred in captivity” (see proposed § 23.53). If it is an Appendix-I specimen, it also must have been bred for non-commercial purposes (see proposed § 23.55) to qualify for an exemption certificate (see proposed § 23.33). If a captive-born specimen does not meet these criteria, it is assigned the source code “F” and requires CITES documents under Article III, IV, or V. For an Appendix-I specimen, both import and export permits are required, and the import may not be for primarily commercial purposes.

Additional information required on non-Party documents (§ 23.22): Article X provides that a Party may accept documentation from a non-Party if it is issued by a competent authority and substantially conforms with the requirements of CITES. Because the Parties were concerned that the trade of CITES specimens through non-Parties might jeopardize the effectiveness of the Convention, Resolution Conf. 9.5 was adopted. This resolution recommends that Parties accept documents from non-Parties only if they contain certain basic information, including certifications that they have made the findings required under Articles III, IV, and V.

Because of the need for standardized information concerning CITES species from all sources, to ensure that appropriate protection is given to CITES species, and to reduce the risk of detrimental or illegal trade from non-Parties, we propose to be stricter and incorporate the requirements of not only this resolution, but also Resolution Conf. 10.2 on permits and certificates. This proposed policy means that for us to consider a non-Party CITES document valid, it would essentially need to contain the same information as a Party document. This proposed section would replace § 23.14 in the current regulations.

Valid CITES documents (§ 23.23): Article VIII outlines measures that Parties should take to enforce the provisions of the Convention. Resolutions Conf. 2.6 (Rev.), 3.9 (Rev.), 6.4 (Rev.), 7.5, 9.8 (Rev.), 9.9, and 10.2 further detail these measures. For CITES to be effective, shipments must be accompanied by valid CITES documents issued by the appropriate authority and must meet all conditions of those documents. Each Party must have border controls for the inspection and validation of CITES documents. To ensure that specimens traded in violation of CITES are not re-entered into illegal trade, Parties are to consider seizure of specimens, rather than refusal of entry of the shipment. Parties are encouraged to cooperate with other Parties, the Secretariat, and international enforcement organizations to further effective enforcement of the Treaty and provide protection to CITES species.

We propose to include this new section in the regulations to clarify what requirements must be met before CITES documents are considered valid. We present this information in a table arranged alphabetically by key phrase to assist importers and exporters. Most of the requirements are self-explanatory; however, we feel it would be helpful to discuss specific ones.

Management Authority and Scientific Authority: We propose to incorporate the recommendation of Resolutions Conf. 3.9 (Rev.), 9.5, and 10.3 that documents should be accepted only from Parties and non-Parties that have designated a Management Authority and Scientific Authority and have provided that information to the Secretariat. If countries have not designated Management and Scientific Authorities, we cannot be sure that the required findings have been made. Without these findings, CITES documents are not valid.

Ranched: A number of species have been transferred from Appendix I to Appendix II based on ranching of the species. Resolution Conf. 10.18 recommends that Parties not allow trade in such species from a non-Party or a Party that has taken a reservation on the species. We propose to incorporate this recommendation. Trade in this type of specimen cannot be properly monitored when specimens are traded through non-Parties and Parties that hold reservations and do not require CITES documents.

Shipment contents: The proposed language reflects current practice. CITES documents must be obtained before the shipment occurs. Documents are specific to the specimens identified on the document, and the shipper may not substitute a new specimen to replace the one approved. The inspecting official may inspect the shipment and verify that the contents match the specimens described on the document. The official will validate or certify on the CITES document the actual quantities that are being shipped. The quantity may be less than the quantity shown on the document at the time it was issued, but cannot be more than that quantity.

Quotas: The COP approves export quotas for some species. For other species, countries determine their own export quotas. The Secretariat notifies the Parties of these quotas each year. We propose to require that the quantity exported may not exceed the quota.

We outline in paragraph (d) of this section the situations when we may request verification of documents from the Secretariat or the Management Authority of any country involved in the shipment. It includes instances when we have reasonable grounds to believe a document is not valid or authentic.

In paragraph (e), we propose to issue an information bulletin if we determine that a country is not effectively implementing CITES. The bulletin would indicate how we will handle shipments involving that country or a species from that country. We may issue such a bulletin if we receive reliable information from the COP, Standing Committee, Secretariat, or other credible source that there are reasonable grounds to believe that documents from a country are not valid. We will consider all available information, including whether the trade is detrimental to the species, the trade is in violation of any foreign law, or if the applicable findings are not being made when CITES documents are issued by a country. We will no longer publish separate notices of information in the Federal Register, but will use a number of more timely ways to provide this information to the public. These could include posting the bulletin on our website, mailing it to all import/export license holders and recipients of our CITES updates, and providing it to the media through press releases.

Presentation of CITES documents at the port (§ 23.24): Inspecting officials at the ports of exit and entry must verify that shipments are accompanied by valid CITES documents and take enforcement action when shipments do not comply with CITES. To help importers and exporters, we propose this new section, which provides a table that outlines the type of U.S. and foreign documents that they must present for validation or certification or surrender when importing, introducing from the sea, exporting, or re-exporting CITES species. The general requirements for import and export are given in 50 CFR part 14 for wildlife and 7 CFR part 355 for plants.

Analysis of Proposed Subpart C—Application Procedures, Issuance Criteria, and Conditions

This proposed subpart expands the current § 23.15(c) through (f) to provide more detailed information on application procedures, decisions on applications, and records needed to apply for U.S. documents. The general requirements of this proposed subpart apply to both U.S. and foreign CITES documents.

Application procedures (§ 23.25): This proposed section gives a general overview of the application process for U.S. CITES documents. A number of CITES species are protected under other laws or treaties that we implement. If appropriate, we will accept one application if the applicant provides the information needed under all relevant regulations. Applicants should review the issuance criteria for all relevant regulations when preparing an application to ensure they understand the kinds of information we need. This review should help the applicant submit a more complete application and prevent delays in processing.

When we review an application, we decide whether the requirements of an exemption document under Article VII can be met or whether we need to process the application under the standard CITES requirements of Articles III, IV, or V. For example, a person may apply to export a specimen that was born in captivity. We will first look to see if the specimen meets the bred-in-captivity exemption. If the specimen does not meet the issuance criteria for this exemption, we will consider the application under the standard CITES requirements for an export permit.

Decisions on applications (§ 23.26): This new proposed section explains the procedures we follow in making a decision on an application. When an application is complete, we review the information under all applicable issuance criteria, including 50 CFR part 13, regulations under other wildlife and plant laws, and the CITES regulations. We may consult with outside experts, scientists, and staff within the Federal Government, State and tribal agencies, the Secretariat, or foreign Management or Scientific Authorities before we make our findings. The burden of proof in establishing that the issuance criteria are met lies with the applicant. We can issue a CITES document only if we are satisfied that all criteria specific to the proposed activity are met.

Records (§ 23.27): When applying for a U.S. CITES document, an applicant must provide documents on the origin of the specimens and/or parental or founder stock. This information must be sufficient for us to make the required findings for the type of document requested. This proposed section summarizes the types of general records that potential applicants should consider keeping for specimens that have been in or may enter international trade. Documents should be maintained as long as a specimen is owned by a potential applicant and should be transferred to any subsequent owner.

Requirements for standard CITES documents (§§ 23.28-23.31): The basic requirements for U.S. and foreign CITES documents are the same as in the current regulations (§ 23.15). We have designed U.S. application forms for specific activities and protection levels to make applications easier to complete and to clarify what information is needed. The information provided in paragraph (b) of each of these proposed sections is designed to help an applicant determine which application form to request. The forms can be obtained from our website and fax retrieval system or requested by phone or e-mail. We propose to omit the application information from the regulations since we have made application forms for specific activities available to the public.

The information in paragraph (c) or (d) of each of these proposed sections lists the issuance criteria for each type of document and references the appropriate section for factors we consider in making a decision on certain criteria. The issuance criteria are based on the provisions of the Convention (Articles III, IV, V, and XIV) and resolutions, including Resolution Conf. 10.2 on permits and certificates.

Under Article III, before a Management Authority can issue an export permit for an Appendix-I specimen, it must be satisfied that an import permit has been granted for the specimen. However, some countries have stricter national legislation that requires the export permit be issued before they can issue an import permit. Resolutions Conf. 10.14 and 10.15 recommend that this requirement may be satisfied when the Management Authority of the importing country has provided written assurance that an import permit will be granted. Thus, we propose in § 23.29(d)(1) that the issuance criteria can be met either by showing that the import permit has been granted or by providing confirmation from the Management Authority of the importing country that the import permit will be granted. We propose the same issuance criteria for the re-export of live specimens as required by Article III(4)(b). For re-export of dead specimens, the Management Authority does not need to see the import permit before issuing a re-export certificate, but the shipment still must be accompanied by an import permit.

As discussed earlier, to comply with Resolution Conf. 10.2, CITES documents must show the scientific name of the species using the standard nomenclature in the CITES appendices or the references adopted by the COP. Although current regulations (§ 23.15(c)(1)) require that applications include scientific names, they do not mandate use of the nomenclature in the CITES appendices and references. We propose to add this requirement as an issuance criterion to conform with Resolution Conf. 10.2, expedite review of permit applications, and ensure that documents are issued for the correct species.

Because Appendix-I wildlife and plants can be imported only when the intended use is not for primarily commercial purposes, we propose to condition all import permits that the specimen can be imported and subsequently used only for the permitted purpose. If the importer wants to transfer the specimen where it would be used for a different purpose, he or she would need to obtain permission from us. The importer would not be allowed to use or transfer the specimen for commercial purposes once in the United States.

To comply with the intent of Resolution Conf. 9.10 (Rev.), we propose to add an issuance criterion for re-export of confiscated Appendix-II specimens in § 23.29(d)(2). It would require us, before issuing a re-export certificate, to find that the proposed re-export of confiscated specimens would not be detrimental to the survival of the species. Regulations in 50 CFR 12.37 allow for the sale of confiscated Appendix-II and -III wildlife and plants. When specimens have been confiscated and subsequently sold or transferred, we consider them legally acquired. However, because the specimens were imported without the proper CITES documents, we need to make the biological finding (that normally would have been made prior to export) before issuing a re-export certificate.

Current regulations (§ 23.12(b)(2)) provide only general information about certificates of origin. We are proposing a new section (§ 23.30) to provide specific information on the application form and issuance criteria for certificates of origin. These documents allow the export of specimens of species listed in Appendix III when the specimens originate in a non-listing country.

Article XIV(4) and (5) provides a limited exemption for introduction from the sea of Appendix-II species when a country is a party to another treaty, convention, or international agreement that protects the listed marine species and was in force on July 1, 1975 (the entry into force of CITES). Based on this article, we propose in § 23.31(d) to apply this exemption only to specimens that were harvested by a ship registered in the country of introduction.

Certificates for artificially propagated plants (§ 23.32): The Parties recognize that a different approach for plants is sometimes necessary because of the unique aspects of plant biology and trade. This proposed section implements Article VII(5) and expands on the current regulations in § 23.15(d)(8). It allows us to issue a certificate for artificially propagated plants for specimens of Appendix-I species and hybrids of annotated Appendix-I species propagated for non-commercial purposes and for hybrids of unannotated Appendix-I species and specimens of Appendix-II or -III species or hybrids propagated for any purpose. It is important to note that there are no annotated Appendix-I plant species at this time, so all hybrids of Appendix-I species that qualify as artificially propagated are eligible for this exemption certificate. (See proposed § 23.39 to export Appendix-I plants propagated for commercial purposes under Article VII(4).) We propose to adopt the conditions of Resolution Conf. 9.18 (Rev.) to decide whether plants qualify as artificially propagated (see proposed § 23.54). This resolution means that not all “cultivated” (see proposed § 23.5) plants grown under controlled conditions qualify as artificially propagated, and the shipper may need a CITES export permit rather than a certificate for artificially propagated plants (see proposed § 23.29). An Appendix-I plant that qualifies for this exemption does not need a CITES import permit.

Bred-in-captivity certificates (§ 23.33): Bred-in-captivity wildlife is also covered under Article VII(4) and (5). In adopting Resolutions Conf. 8.15 and 10.16, the Parties recognized the need for a standard interpretation of these two paragraphs. The Parties have expressed concern that trade in specimens falsely declared as bred in captivity is contrary to the Convention and may be detrimental to the survival of wild populations. (See proposed § 23.38 concerning the registration of operations that breed Appendix-I wildlife for commercial purposes to meet the provisions of Article VII(4).) This proposed section implements Article VII(5) and expands the current regulations in § 23.15(d)(8). It allows us to issue a bred-in-captivity certificate for specimens of Appendix-I species bred for non-commercial purposes and specimens of Appendix-II or -III species bred for any purpose. We propose to adopt the conditions of Resolution Conf. 10.16 for bred in captivity (see proposed § 23.53). Wildlife that is born in captivity, but does not qualify under this criterion, can be shipped only with a CITES export permit (see proposed § 23.29). Appendix-I wildlife that qualifies for a bred-in-captivity certificate does not need a CITES import permit.

Hybrids. At COP 2, the Parties recognized that it is difficult to distinguish between purebred and hybrid specimens for trade identification purposes. If hybrids were not subject to CITES controls, persons wishing to avoid the controls of CITES could falsely claim that the specimens in question were hybrids. Resolution Conf. 2.13 recommended that hybrids, even though not specifically listed in any of the appendices, are subject to CITES if one or both parents are listed. The Parties agreed at COP 10 to treat plant hybrids differently from wildlife hybrids. Resolution Conf. 2.13 was repealed, and provisions for hybrids were placed in other resolutions.

Plant hybrids (§ 23.34): Resolution Conf. 9.18 (Rev.) on trade in plants was revised to add a section on trade in plant hybrids. We are proposing a new section in the regulations to implement this resolution. Trade in plant hybrids must meet the requirements of CITES unless the Parties agree to exempt an Appendix-II and -III hybrid by a specific annotation to the appendices. At COP 10 a number of artificially propagated hybrids of some “supermarket” cacti were granted this general exemption. Plant hybrids are subject to CITES controls if one or both parents are in the appendices. If the hybrid includes two CITES species in its lineage, it is listed in the more restrictive appendix of either parent, with Appendix I being the most restrictive. Most plant hybrids are the product of artificial propagation using well-established nursery stocks that have been artificially propagated for many years. Thus, the Parties agreed to treat artificially propagated hybrids of one or more unannotated Appendix-I species as if listed in Appendix II and allow them to be traded with a certificate for artificially propagated plants.

Wildlife hybrids (§ 23.35): In Resolution Conf. 10.17, the Parties agreed that wildlife hybrids with one or more specimens of Appendix-I or -II species in their recent lineage are controlled under CITES as if they were “genetically pure” specimens of the listed species. The term “recent lineage” was discussed during the drafting of this resolution, but a definition was not included in the final version. The term was again discussed at the 14th meeting of the Animals Committee in May 1998. Following the Animals Committee meeting, CITES Notification to the Parties No. 1998/28 advised the Parties that the Animals Committee had agreed that the term “recent lineage” would refer to the previous four generations of a species' ancestry. Because of listing in the CITES appendices of higher taxa, such as falcons or parrots, few commonly hybridized species of wildlife would qualify for this exemption. However, specimens of the domesticated bengal cat could qualify for this exemption, depending on when a wild leopard cat (Prionailurus (=Felis) bengalensis) was in a specimen's ancestry.

To confirm that a hybrid is exempt from CITES controls, we propose to require that the specimen be accompanied by a letter issued by the Management Authority of the country of export, or a CITES document if required by the exporting or re-exporting country. The letter would need to certify that the wildlife hybrid contains no CITES specimens in its recent lineage. Since not all countries will be aware of this U.S. requirement, a person who plans to import an exempt wildlife hybrid needs to contact the Management Authority of the exporting or re-exporting country to get the appropriate letter or CITES document before making a shipment. For export or re-export from the United States, once a person provides information to verify the hybrid's lineage and scientific name, we could issue a letter.

Personally owned live wildlife (§ 23.36): Article VII(3) provides that, in some circumstances, the provisions of Articles III, IV, and V do not apply to specimens that are personal or household effects. As discussed previously, Parties have generally excluded live wildlife from this exception. However, in Resolution Conf. 10.20, the Parties recommend that the term “personal and household effects” include personally owned, live wildlife that is registered by the Management Authority in the country where the owner usually resides. To monitor frequent international movement and reduce administrative and technical problems, the Parties agreed to use a certificate of ownership under specific conditions. We propose to implement this resolution, which will simplify the procedure for people who frequently travel internationally with companion animals or wildlife used in non-commercial competitions, such as falconry. The certificate of ownership would act like a passport, but could be issued only after agreement between the Management Authorities of the Parties concerned. The owner must accompany the specimen when crossing international borders, and the wildlife cannot be sold or otherwise transferred when traveling abroad.

Pre-Convention specimen (§ 23.37): Under Article VII(2), a specimen acquired before the provisions of CITES applied to the species involved is exempt from Articles III, IV, and V when the Management Authority issues a pre-Convention certificate. Resolution Conf. 5.11 provides guidance on determining pre-Convention dates. This proposed section expands the current regulations in § 23.15(d)(8) and clarifies when a pre-Convention certificate may be issued.

The pre-Convention date for a specimen may vary depending on when a Party joined CITES or on a country's stricter national legislation. Although Parties may differ on the date they consider as pre-Convention for a species, a pre-Convention certificate is valid only if both importing and exporting countries consider the specimen to be pre-Convention. The Parties agreed to put the date the species was acquired on the face of the certificate so the importing country could confirm that the specimen qualifies as pre-Convention for them. Since the United States became a Party to CITES when it first came into force, the pre-Convention date for the United States is always the date a species was first listed in any of the appendices. Thus, we do not consider pre-Convention certificates issued for a specimen acquired after that date as valid for entry into the United States.

We propose that the applicant provide information that the wildlife or plant (including parts or products) was removed from the wild or held in captivity or a controlled environment before the first date that CITES applied to the specimen before we can issue a pre-Convention certificate. A certificate is also needed to export items that are antiques (over 100 years old).

We are also proposing a voluntary registration of any inventory or stockpile of live specimens or parts and products when species are initially listed on the CITES appendices. We would especially encourage businesses that have an inventory or stockpile in their possession to register it with us before the effective date of a listing. Our experience with certain listings, such as sturgeon and Brazilian rosewood, has shown that it becomes difficult to assess the pre-Convention status of stock over time. It would be advantageous to the exporter to register inventory, since registration would allow us to process applications for pre-Convention certificates faster. Commercial export or re-export of pre-Convention stock that had not been registered would require other convincing evidence that the specimens are pre-Convention.

Registration of Appendix-I commercial breeding operations (§ 23.38): Article VII(4) provides that specimens of Appendix-I species bred in captivity for commercial purposes will be regarded as species included in Appendix II. The Parties recognize the potential abuse inherent in this exemption since it is difficult for inspectors to distinguish between specimens bred in captivity and those removed from the wild. They also recognize that captive breeding for commercial and conservation purposes is increasing. The registration of operations that breed Appendix-I species for commercial purposes has been the subject of a series of resolutions (Conf. 4.15, 5.21, and 7.10), which were repealed with the adoption of Resolution Conf. 8.15.

We propose to implement this resolution, which provides guidelines in registering and monitoring these operations. We are proposing application procedures to allow an operation to register each Appendix-I species at the operation. The issuance criteria would include whether the species qualifies as bred in captivity (see proposed § 23.53, which is based on Resolution Conf. 10.16) and whether the founder stock has been legally acquired.

Instead of publishing a detailed notice in the Federal Register describing each application received, we propose to publish a notice of receipt that identifies the registration request and invites public comment. This action would allow for a more streamlined process and still give the public an opportunity to comment.

Wildlife from a registered breeding operation can be exported with an Appendix-II export permit under Article IV. Since no import permit is required, specimens can be used for primarily commercial purposes. To date, only one U.S. operation has chosen to complete the process of registering. We encourage breeders to register their operations if they plan to trade in Appendix-I specimens internationally. Currently most commercial breeders in the United States are applying for permits under Article III, rather than registering and taking advantage of this exemption. Article III, however, allows trade only when the import is not for primarily commercial purposes. The use of Article III is becoming more limited since an increasing number of Parties allow import of Appendix-I wildlife that was bred for commercial purposes only if the specimen originated in an operation registered with the Secretariat.

Debate continues on the best way to implement this exemption. Resolution Conf. 8.15 was discussed at COP 10, where it was referred to the Animals Committee to examine the effectiveness of and need for the existing registration system. This issue will also be discussed at COP 11, and any changes to the registration system that result from that discussion will be considered for incorporation into the regulations.

Exporting Appendix-I plants commercially (§ 23.39): The Parties recognize that the artificial propagation of plants is essentially different from captive breeding of wildlife and requires a different approach. Artificial propagation of native plants can provide an economic alternative to traditional agriculture in countries of origin. By making specimens readily available, artificial propagation may have a positive effect on the conservation of wild populations by reducing pressure from collection. Article VII(4) provides that specimens of Appendix-I plants artificially propagated for commercial purposes will be regarded as species included in Appendix II.

At COP 9, the Parties adopted Resolution Conf. 9.19, which recommends guidelines on the registration of nurseries that export artificially propagated Appendix-I plants. At the same time, the Parties recognized that nurseries that are not registered could still export artificially propagated Appendix-I plants using the standard procedures.

To date we have not registered any nurseries. We continue to implement this provision of the Convention by reviewing a nursery's facilities during the application process for CITES documents and issuing export permits. We recognize that there may be some advantages to developing a registration process. However, due to the complexity of this issue, we propose to not incorporate Resolution Conf. 9.19 into the regulations, but to reserve § 23.39(e) for nursery registration. We anticipate seeking public comment on this issue in a separate Federal Register notice at a later date.

Registered scientific institutions (§ 23.40): Article VII(6) provides an exemption from strict CITES controls for preserved, dried, or embedded museum specimens, herbarium specimens, and live plant material that carry an approved label. The exemption covers the non-commercial loan, donation, or exchange of these items between scientists or scientific institutions registered by each country's Management Authority. Resolution Conf. 1.4 recommends that Parties encourage their natural history museums and herbaria to inventory their holdings of rare and endangered species. This recommendation was to allow researchers to efficiently borrow specimens for study and reduce any potential adverse impacts that museum needs for research specimens can have on small populations of rare wildlife and plants. In Resolution Conf. 2.14, the Parties recommended guidelines for implementing this exemption.

This proposed section would combine §§ 23.13(g), 23.15(d)(8)(iii), and 23.15(e)(3) in the current regulations and adopt the guidelines of the resolutions. A scientist who wishes to use this exemption must be affiliated with a registered scientific institution. We would broaden the exemption to include frozen museum specimens. Specimens could be used for scientific research, but not for decoration, trophies, or commercial purposes. We are clarifying that preserved, frozen, dried, or embedded biological samples, including blood and tissue samples, that would be partially destroyed during analysis are eligible for this exemption. A portion of each sample would need to be maintained at the museum for future scientific reference. Samples that would be completely destroyed during analysis would not be eligible for this exemption and would require the applicable CITES documents. Since not all countries recognize these types of samples as being eligible to be traded under this exemption, registered scientific institutions should check with the foreign CITES Management Authority before shipping such specimens under a scientific exchange certificate.

We also propose that all specimens for which the exemption is being claimed must have been legally acquired and under the control of a registered scientific institution. The specimens must have been permanently recorded by the sending registered institution before being shipped for exchange, donation, or loan for scientific research purposes. The Parties were concerned about possible abuse of the exemption by scientists who might collect specimens and directly export them without the permission of a registered institution in the exporting country. Thus, the registration criteria require the orderly handling and permanent recording of specimens, including the maintenance of permanent records for loans and transfers of specimens to other institutions. In addition, scientists may still need permits under other parts of this subchapter.

Traveling live-animal exhibitions (§ 23.41): Article VII(7) allows for the international movement of pre-Convention or bred-in-captivity specimens that are part of a traveling zoo, circus, menagerie, or other traveling animal exhibition without CITES certificates. The exhibition must register the wildlife with its Management Authority, and the wildlife must be transported and cared for humanely. Parties have agreed, however, to require exhibitions to be accompanied by CITES certificates to verify such registration. To address technical problems and to prevent potential fraud, the Parties adopted Resolution Conf. 8.16. We propose to incorporate the provisions of this resolution into these regulations. The term “traveling live-animal exhibition” is proposed in § 23.4 to include live wildlife used for display or entertainment where the exhibition is temporarily moving internationally. Typically, exhibitions are circuses and performing acts, but trainers that travel across borders with wildlife that perform in movies or television programs could also apply for this exemption. An exhibition certificate would be treated like a passport. The exhibitor would retain the original certificate, which must be validated at each border crossing.

Exhibitors would need to obtain a pre-Convention or bred-in-captivity certificate for each specimen. This exemption does not apply to specimens that do not qualify for one of these exemptions. Since exhibitors currently may have a number of specimens on one document, we propose phasing in this requirement and allowing existing documents to be used until they expire. At that time, the exhibitor would need to obtain a separate certificate for each specimen. This provision facilitates the identification of each specimen in the exhibition and validation of documents by border officials.

We are also proposing a number of conditions to ensure these certificates are used only for temporary cross-border movement by the exhibitor who owns the specimen. For example, a document may not be transferred to another exhibitor, and specimens cannot be sold or otherwise transferred when traveling abroad. Specimens could only be transported internationally for display or entertainment purposes, not for breeding or other purposes.

Many specimens covered by this exemption are Appendix-I specimens. We propose under the general conditions (see proposed § 23.45(a)(7)) to require that all live Appendix-I specimens be uniquely marked. To ensure that each specimen exported or imported is the specimen indicated on the certificate, we recommend that Appendix-II and -III specimens also be clearly identified and, if appropriate, uniquely marked. Tattoos, microchips, tags, or other marks may be used.

Replacement of documents (§ 23.42): Resolution Conf. 10.2 provides guidelines for replacing documents that are lost, damaged, stolen, or accidentally destroyed. In this section, we propose to incorporate the provisions of this resolution and clarify when replacement documents may be available and how to obtain one. One of the proposed issuance criteria requires a full and reasonable explanation of the circumstances surrounding the lost, damaged, stolen, or accidentally destroyed CITES document. We will also check to see if the exporter has requested a replacement document before and review the circumstances surrounding any previous request.

When a replacement document is requested after a commercial shipment has left the United States, we will consult with the Management Authority of the importing country. When we issue a replacement document for a shipment that has already left the country, we will not validate it because we cannot compare the actual shipment contents to the document. It is important that we issue replacement documents only when the circumstances warrant doing so and that issuance of such documents prevents the use of the original CITES document for a different shipment.

Retrospective documents (§ 23.43): A retrospective document authorizes an export or re-export after that activity has occurred, but before the shipment is cleared for import.

Resolution Conf. 10.2 recommends that a Party neither issue nor accept retrospective documents, but recognizes limited exceptions. We propose to amend 50 CFR 13.1 to add this new section to allow for the issuance of retrospective permits for specimens based on this resolution. Retrospective documents would be issued only after both the exporting (or re-exporting) and importing countries have thoroughly investigated the situation and agreed to the issuance of the document. The investigation would need to reveal that the exporter, re-exporter, or importer is not responsible for any irregularities and that the shipment is otherwise in compliance with CITES and the national laws of the involved countries.

This proposed section details the situations when we would consider issuing a retrospective document and gives the issuance criteria. Based on the intent of the original resolution (Resolution Conf. 6.6, which is now part of Resolution Conf. 10.2), we propose to generally limit issuance of retrospective documents for non-commercial items. Eligible individuals would include travelers hand-carrying Appendix-II or -III items with them as personal effects or persons who can demonstrate that they were misinformed by an employee of the Service, APHIS (for plants), or a Management Authority of the foreign country that should have known the CITES requirements. We also are proposing to include live Appendix-II or -III wildlife and plants that are outside the proposed CITES personal effects exemption. Such shipments would need to be limited to no more than two specimens, be for personal use, and accompany the person as personal baggage. Retrospective documents would be allowed for Appendix-I wildlife and plants, including live specimens, parts, and products, only when they are personal pre-Convention specimens. We would issue a retrospective document only if the Management Authority of the importing country agrees to accept it.

Length of document validity (§ 23.44): Article VI(2) states that an export permit can be valid only for a period of 6 months from the date of issue. The Convention does not specify validity time frames for other documents. Resolution Conf. 10.2 specifies validity time frames for re-export certificates (6 months), import permits (12 months), and certificates of origin (12 months). We are also proposing that an introduction-from-the-sea certificate be valid for a maximum of 12 months since the activity is similar to import. Resolutions Conf. 8.16 and 10.20 recommend that certificates for traveling live-animal exhibitions and certificates of ownership be valid for no more than 3 years.

We propose to expand the current regulations (§ 23.15(f)) to incorporate the recommended validity times endorsed in the resolutions. All CITES documents would specify the length of validity. All import and introduction-from-the-sea activities must be completed by midnight (local time at the point of import) of the expiration date indicated on the document. The only situation where an extension of the validity date is authorized is for certain timber species under limited circumstances (see proposed § 23.64).

CITES document conditions (§ 23.45): Section 23.15(e) would be replaced by this proposed section, which addresses the topic of CITES document conditions. General conditions apply to all CITES documents, standard conditions apply to specific types of documents, and special conditions may be placed on a CITES document when the activity with a species warrants it. All CITES document conditions must be met for a shipment to be lawful.

Resolution Conf. 8.13 recommends that Parties, where possible and appropriate, adopt the use of microchip transponders for the secure identification of live Appendix-I wildlife. The Parties, however, have identified a number of technical issues that need to be addressed and have asked the Animals Committee to monitor this issue. The Animals Committee has drafted a resolution to be considered at COP 11. Thus, we are not proposing that all Appendix-I wildlife be marked with microchips. We propose that all live Appendix-I wildlife be securely marked or uniquely identified to ensure that the wildlife presented with a document is actually the specimen for which the document was issued.

Analysis of Proposed Subpart D—Factors We Consider in Making Certain Findings

Legal acquisition (§ 23.50): One of the issuance criteria in the current regulations at § 23.15(d)(2) is whether the wildlife or plant was acquired lawfully. Under Articles III, IV, and V, we must make a legal acquisition finding before granting export permits and re-export certificates for Appendix-I, -II, and -III wildlife and plants. The Parties have also agreed through a number of resolutions to make this finding before granting certain exemption documents under Article VII. These include Resolutions Conf. 2.14 (scientific exchange), Conf. 10.16 and 8.15 (bred-in-captivity wildlife), Conf. 9.18 (Rev.) and 9.19 (artificially propagated plants), and Conf. 10.20 (personally owned live wildlife).

The determination of legal acquisition includes an assessment of whether the specimen and its founder stock were traded internationally in accordance with CITES and whether they were acquired consistent with national laws for the protection of wildlife and plants. In the United States, these laws include all applicable local, State, Federal, tribal, and foreign laws.

We make the legal acquisition finding on a case-by-case basis considering all available information. Since the applicant is responsible for providing sufficient information to show that the specimen was legally acquired, potential applicants need to keep good records (see proposed § 23.27). General statements that there is no available information or that there is no evidence that the specimen or its founder stock is illegal will not be sufficient for us to make the legal acquisition finding. In addition to the information provided by the applicant, we consider other relevant trade information, scientific literature, and advice of experts. We may consult with foreign Management Authorities, the CITES Secretariat, other U.S. governmental agencies, and non-governmental experts.

We propose to add this section to the regulations to clarify the factors we consider in making a legal acquisition finding. This section should help individuals provide complete information at the time they apply for a CITES document and better understand the kind of records they should be keeping.

Persons who conduct commercial activities involving protected wildlife and plants are held to a high standard in understanding and complying with the requirements of the laws that affect their activities. We expect these persons to provide clear records that each specimen was legally acquired, including a record of the history of ownership, copies of cleared CITES documents, and records of parental or founder stock for specimens bred or propagated in the United States. We apply a lower information requirement, in most instances, for persons who acquired a specimen in the United States and want to travel internationally with it for personal, non-commercial use. We believe this system is appropriate for the limited number of specimens that would be involved, for the low conservation risk posed, and because most specimens are purchased from retailers who, as businesses, are expected to be prepared to comply with the laws. We will, however, request additional information when non-commercial trade in a particular species raises greater conservation concern.

For the export of specimens that are bred or propagated in captivity in the United States, we consider whether the parental or founder stock was legally acquired. Resolutions Conf. 9.18 (Rev.) and 10.16 require that a Management Authority find that the breeding or propagation stock was established in accordance with CITES and national laws. We propose to define founder stock to mean the original breeding or propagation stock that produced the subsequent generations of captive specimens. This stock includes specimens that are pre-Convention, were previously imported into the United States, or were removed from the wild if the species is native to the United States. Standardized records, such as the International Species Inventory System (ISIS), provide this kind of information. Founder stock may differ from the parental stock, which is the immediate parents of a specimen.

We propose that applicants provide information on parental stock for species of lower conservation risk and information on founder stock for species of higher risk. For some species, we will look at a number of factors to decide if we need founder stock information. These factors include whether the species is uncommon in captivity in the United States, the species has not been documented to breed or propagate readily in captivity, illegal trade in the species is significant, few specimens have been legally imported into the United States, and the range country does not allow commercial export of the species.

We also propose to allow the export or re-export of donated

CITES specimens of unknown origin by public institutions on a case-by-case basis under limited circumstances. In some instances, public institutions, primarily zoos, aquariums, and botanical gardens, receive unsolicited donations of wildlife and plants. These donations may be brought in by individuals or left anonymously on the doorstep and may include specimens found sick or injured by well-meaning citizens, pets or plants that are no longer wanted, or specimens that owners fear they may possess in violation of the law. When this occurs, the institution may not be able to obtain reliable information concerning the origin of the specimen. Justifying issuance of a permit under CITES is extremely difficult when there are no data on the origin of the specimen, especially when the donor remains anonymous. We do not wish to open a loophole for laundering specimens that were illegally obtained by the donor or by someone else in the chain of ownership. However, the underlying purpose of CITES is to protect, preserve, and benefit the listed species. We believe that the provisions proposed will assist in the suitable placement of specimens without leading to illegal or unjustified take of wildlife and plants from the wild.

Non-detriment findings (§ 23.51): Under Articles III and IV and Resolution Conf. 10.3, the Scientific Authority must find that a proposed export or introduction from the sea of Appendix-I or -II specimens is not detrimental to the survival of the species and that a proposed import of an Appendix-I species is not for purposes that would be detrimental to the survival of the species. Although many activities could be considered detrimental or potentially detrimental, we would consider the following, among other things, to be detrimental: non-sustainable use and proposed activities that would pose a net harm to the status of the species in the wild. For Appendix-I species, we would also consider, among other things, whether the proposed activity would stimulate further trade in the species. We are proposing to use the definition of “sustainable use” as provided in 50 CFR part 15 under the Wild Bird Conservation Act. The wording has been slightly edited to be consistent with language used in this part.

Since a permit grants permission to an institution or individual to engage in an otherwise prohibited activity, the applicant must provide sufficient information to satisfy us that the proposed activity is not detrimental to the species concerned. If we can make a finding of non-detriment, and if all other issuance criteria are met, we can issue the relevant CITES document. If, however, the requested activity does not meet the criteria, we will either make a finding of detriment or be unable to determine that the activity is non-detrimental. In either case, we will not issue a CITES document.

Although we are proposing no changes in this proposed rule in how we make a non-detriment finding, we are proposing to list the factors used to determine if the requested import or export of CITES specimens would be non-detrimental to the survival of the species. These factors would be used for all specimens in a single shipment or in multiple shipments if the anticipated international trade is over a given period. Approval on a shipment-by-shipment or multiple-shipment basis is at our discretion. We have the option under CITES to issue our required scientific findings on a shipment-by-shipment basis (a different finding for each individual shipment) or management or conservation program basis (one finding to cover all shipments from a particular program).

Some Appendix-II species in the United States are listed under Article II(2)(b) because they or their parts and products (such as furs) are similar in appearance to other Appendix-I or -II species. Examples of such species include the river otter (Lontra canadensis), bobcat (Lynx rufus), and white sturgeon (Acipenser transmontanus). These species are listed to ensure that trade in the species to which they are similar is brought under control. Our non-detriment finding for these species takes this issue into consideration. We are obligated, however, to ensure that a species does not decline to the point that it qualifies to be listed in Appendix II under Article II(2)(a). Many of these species are included in State or tribal programs that manage the species and control removal of specimens from the wild. We receive information from the States and Tribes every year that allows us to monitor exports and be assured that exports are not detrimental to the species.

The status of the species in the wild and the degree of risk to the species posed by the proposed activity determine the level of scrutiny we give an application in making a finding. We give greater scrutiny, require more detailed information, and make our decision in a more precautionary manner for proposed activities that pose a greater risk to a species in the wild. In addition, we consider whether a living specimen being imported or exported would have an adverse impact if it was intentionally or accidently released into the wild. With the adverse impacts that invasive species are having both in the United States and in other countries, it is important that activities conducted under CITES do not further complicate the situation. We consider the cumulative risk, recognizing each aspect of international trade has a continuum of risk associated with it. For example, the export of an Appendix-II, non-native specimen bred in captivity would be less of a conservation risk than the import of an Appendix-I, wild-caught specimen that is being heavily impacted by illegal trade. Likewise, the export of plants grown from exempt seed or flasked seedlings or tissue culture would present a lower conservation risk than plants grown from non-exempt seeds. In all cases, if the species is subject to pressure from high levels of commercial trade or subject to significant illegal trade, the degree of scrutiny increases.

The Parties have agreed that export quotas for the non-commercial use of Appendix-I species can be proposed by a range country and agreed to by the COP. This situation often pertains to trophy hunting. When making a non-detriment finding for the import of a specimen of a species where a quota has been established, we consider the biological and management factors used as a basis of the export quota. If necessary, we will contact the Scientific and Management Authorities of the exporting country for additional information to complete our finding. We clarify in this proposed section that even when a quota has been established, we will review any application for the import of a specimen of that species and make the required non-detriment finding as required under Article III.

Primarily commercial purposes (§ 23.52): Under Article III, import permits or introduction-from-the-sea certificates for Appendix-I species can be issued only when a Management Authority is satisfied that the specimen is not to be used for primarily commercial purposes. Resolution Conf. 5.10 provides details on the interpretation of “primarily commercial purposes,” including examples. We consider this resolution to be an accurate interpretation of the Treaty. The United States supports its provisions and has been using the principles and examples set out in the resolution in evaluating applications for import documents for Appendix-I species. We propose to incorporate the provisions of this resolution in these regulations.

For an import or introduction of an Appendix-I specimen to qualify, the non-commercial aspects of the import or introduction must clearly predominate. While the nature of the transaction between the owner and the proposed recipient may be commercial, it is the intended use of the specimen that must not be for primarily commercial purposes. When we determine whether or not an import or introduction is primarily commercial, we must take into consideration all factors involved. Each application is considered on a case-by-case basis. The applicant must provide sufficient information for us to make a finding.

We propose that all applicants provide basic information on intended use, planned public outreach that may increase revenues, planned disposition of offspring, and an assessment of the reasons the proposed activities are not primarily commercial. Under certain circumstances, the commercial nature of the organization or the public appeal of a species would make it more difficult for us to make this finding. Thus, we propose that for-profit applicants would need to provide more detailed information. We would also ask for more detailed information from any applicant when we find that the proposed activity is with a species that is uncommon in captivity in the United States, has high public appeal, or is capable of generating substantial revenues. The additional information would include a statement from a licensed, independent certified public accountant that the applicant's internal accounting system is sufficient to account for and track funds generated by the proposed activities. We are also proposing that all net profits generated in the United States must be used for the conservation of the Appendix-I species in a range country. It is possible that an import or introduction, although superficially commercial, may qualify based on the overwhelming conservation benefits that will be provided through assistance to range countries, research, or other considerations that result from the import or introduction.

Bred in captivity (§ 23.53): Article VII, paragraphs 4 and 5, provides exemptions for wildlife bred in captivity. To establish a standard interpretation of the term “bred in captivity,” the Parties adopted Resolution Conf. 2.12, which was revised at COP 10. After much discussion among the Parties, Resolution Conf. 2.12 (Rev.) was repealed and Resolution Conf. 10.16 adopted. We propose to incorporate this resolution into this new section.

In making this finding, we consider the conditions under which an individual specimen is bred and whether the breeding stock was established legally and in a non-detrimental manner and whether it is maintained with limited introduction of wild specimens. We also consider whether the breeding stock has consistently produced offspring of at least second generation (F2) or whether the U.S. captive population is managed in a way that shows it is capable of reliably producing F2 offspring. If a facility has sufficient breeding stock to meet all of the criteria, including consistently producing F2 offspring, then the wildlife at that facility can be considered bred in captivity. Few facilities, however, have sufficient stock to meet the criteria. Alternatively, if the majority of captive specimens of a species within the United States meets the criteria, then specimens bred by any U.S. facility that uses standard management procedures could meet the criteria for bred in captivity. Thus, we have determined that a number of species commonly held in the United States (such as lions, tigers, brown eared pheasants, and Burmese pythons) qualify as bred in captivity.

Artificially propagated (§ 23.54): Article VII, paragraphs 4 and 5, provides exemptions for artificially propagated plants. The Parties recognize the unique aspects of plant biology and trade. Modern developments in plant propagation, such as the use of flasked orchid seedlings, have allowed large quantities of artificially propagated plants to be produced. Resolution Conf. 9.18 (Rev.) addresses ways to reduce the paperwork involved to move plants internationally while maintaining protection of wild plants.

This proposed section expands the current § 23.15(d)(8) and incorporates from that resolution the criteria for artificially propagated. In making this finding, we consider the controlled conditions under which a plant is propagated. We also consider whether the cultivated parental stock was established legally and in a non-detrimental manner and whether it is managed in a way to ensure its long-term maintenance. For example, we would not consider plants grown from seeds, cuttings, or other propagules collected from wild plants and grown out under controlled conditions as artificially propagated. Hybrid plants must meet the same criteria. Grafted plants can also be considered artificially propagated if both the rootstock and the graft have been artificially propagated according to criteria in this section.

Some plant materials of CITES species are exempt from CITES requirements (see proposed § 23.88(c)). However, plants grown from exempt plant materials are regulated under CITES and are not automatically considered artificially propagated. Since these plant materials can be imported into the United States without any CITES documents, we propose to usually require less information on the origin of the exempt plant material than we would require on the origin of non-exempt plant material. Importers of exempt plant material should keep records that document who sold them the material. In general, we will consider plants grown from flasked seedlings or tissue culture as artificially propagated unless we have reasonable grounds to believe the plants were grown from wild propagules. However, it is more difficult to know if plants grown from exempt seeds meet the criteria for artificially propagated plants. If importers want to ensure plants they have grown from exempt seeds will qualify for a CITES certificate for artificially propagated plants, rather than an export permit, they may want to keep records that document the cultivated origin of imported exempt seeds. We understand that limited information may be available on the origin of exempt seeds. Therefore, we would typically require less information when determining whether plants grown from exempt seed would be considered artificially propagated. We would consider whether the species is commonly artificially propagated and whether substantial numbers of seeds are collected from the wild.

Bred or propagated for commercial purposes (§ 23.55): The Treaty provides in VII(4) that specimens of Appendix-I species bred in captivity or artificially propagated for commercial purposes would be deemed to be in Appendix II. It also provides in VII(5) that specimens that are bred in captivity or artificially propagated may be granted an exemption document. To decide whether to process an application under Article VII(4) or Article VII(5), we must decide whether an Appendix-I specimen was bred or propagated for commercial purposes. We propose this new section to clarify what we consider in making this finding. We would use the definition of “commercial” (see proposed § 23.5) provided in Resolution Conf. 5.10. We would assess the purpose of the breeding and propagation activities, considering a variety of information, including the reproductive biology of the species and all aspects of the breeding or propagation program. Although generally we have found non-profit institutions are breeding specimens for non-commercial purposes, there have been instances when we have found they were breeding for commercial purposes. This issue of what is considered “bred for commercial purposes” has been discussed at some length within the Animals Committee and will be discussed at COP 11 in April of 2000.

Suitably equipped to house and care (§ 23.56): Under Article III(3)(b) and (5)(b), the Scientific Authority must determine that an individual or institution has facilities that are suitably equipped to house and care for an Appendix-I specimen being imported or introduced from the sea. These requirements are to ensure that rare specimens will have a reasonable chance for survival.

We propose this section to clarify the factors we consider in making this finding. All individuals or institutions that will be receiving specimens must be identified in an application, and their facilities approved by us, including individuals or institutions that are likely to receive specimens within 1 year of the specimen's arrival in the country. We will consider all possible uses that could be reasonably expected to occur and the housing and care requirements for those uses. For example, if the applicant is importing specimens for display and there was the possibility of offspring being produced, we would consider whether the applicant could provide adequate housing and care for the offspring.

We will base our finding on the best available information on the requirements of the species and information provided by the applicant. We will give closer scrutiny to applications for species with more demanding biological and husbandry or horticultural needs. For a captive-born, commonly held species, like a scarlet macaw, we would be less critical due to the ease with which such a species can be held in captivity and the availability of veterinary care and commercially prepared diets. For a species, such as the Chinese giant salamander, that is not commonly held in captivity and has very restrictive husbandry and housing requirements, we would require a greater level of detail regarding the facilities where the specimen would be held.

We have provided in this proposed section the general and specific factors that we consider in making this finding. We consider whether a facility supplies adequate space, appropriate living conditions, adequate veterinarian or horticultural care, sufficient security, and properly trained staff to care for the specimen. In addition, we consider if appropriate housing and care are available for any potential offspring.

An applicant may apply for a CITES document to import or introduce from the sea a specimen before the facility is completed or the staff to maintain the specimen has been identified or properly trained. In such a case, we can review the information, including construction plans or intended staffing, and make the finding based on that information. We would, however, condition the finding that the import could not occur until the facility has been completed or the staff hired and/or trained and approved by us.

Analysis of Proposed Subpart E—International Trade in Certain Specimens

This proposed subpart deals with situations that are either covered by specific resolutions or by procedures we have developed to deal with certain heavily traded native CITES species. We need information that allows us to make the required findings before we can issue CITES documents for export or re-export. Where this information is available from a State or tribal management program and is sufficient to allow us to make our required scientific and management findings, we have made export findings on a State or tribal basis. These findings certify that the programs contain the elements needed to allow us to make the findings required for export under CITES. For Tribes, we can make findings only for Tribes that have full wildlife management authority over the resource. In the past, we have published findings in the Federal Register for export of American ginseng, bobcat, river otter, Alaska lynx, Alaska gray wolf, Alaska brown bear, and American alligator. States and Tribes for which findings have been made are requested to submit an annual report to us containing certain information on the previous year's harvest. In some cases, such as for many furbearer species, our findings have been made on a multi-year basis. Annual reports from States allow us to remain assured that our original findings remain valid. In these sections, we are proposing to include the information we request from the States and Tribes on an annual basis. The non-detriment findings we make are based on § 23.51.

Initially, making findings on a State or tribal basis was a new way to address large-scale export of certain native species. If the legal acquisition and non-detriment findings were made on a permit-by-permit basis, it would present a tremendous workload for exporters as well as for our offices. It is standard practice for many Parties to issue findings on an annual basis for species with biologically based management programs. Although the State-and Tribe-based findings are not a rulemaking, we published them in the Federal Register as a convenient way of notifying the public. Since there are now more timely ways to provide this information to the public, we propose to discontinue publication of the findings in the Federal Register. A list of States and Tribes that have findings made on a State or tribal basis and copies of the findings would either be posted on our website or be available on request. Any requests to make findings for new States or Tribes will continue to be evaluated on a case-by-case basis.

American ginseng (§ 23.60): This proposed section is a revision of § 23.51. Most American ginseng is collected or grown for export and is exported in a much larger volume than any other native CITES plant species. Ginseng that has been collected under State or tribal requirements is certified as legally harvested. The State or tribal certificates accompany the ginseng until the time of export to document the origin of the material.

Under CITES, ginseng is considered either artificially propagated or wild. However, the industry has a number of other designations. In order to obtain more accurate information from exporters, we propose to include a chart in the regulations that describes different types of ginseng, such as wild simulated and cultivated woodsgrown, within the broad categories of wild and artificially propagated.

Native furbearers (§ 23.61): This proposed section consolidates and revises §§ 23.52-23.56. The bobcat, river otter, Alaska lynx, Alaska gray wolf, and Alaska brown bear are included in Appendix II under the provisions of Article II(2)(b) because their parts and products are difficult to distinguish from certain similar CITES Appendix-I and -II species. Approved States and Tribes have procedures for placement of CITES export tags on skins ( including furs and pelts) that were legally taken. The presence of a tag on a skin provides us with reasonable assurance that the skin was obtained legally and provides a basis for our legal acquisition finding. We review the information we receive annually from each State or Tribe to determine if there is a need to reevaluate our State-or Tribe-based finding or if the species needs closer monitoring.

Crocodilians (including American alligator) (§ 23.62): This proposed section revises § 23.57 and expands it to incorporate Resolution Conf. 9.22 concerning tagging of all crocodilians. The proposed revision extends the tagging requirements to all crocodilian skins that are being imported, exported, or re-exported. This action would ensure that our requirements for trade in all crocodilians are consistent with the resolution and the international practices of all countries exporting native crocodilians. This standardization of requirements will assist with inspection efforts, reduce risk to wild crocodilian populations, and standardize procedures for importers and exporters. The requirements of the special rules in 50 CFR part 17 concerning the American alligator and certain threatened crocodilians must be met in addition to the requirements of this section. The current requirements for export of American alligator skins remain the same.

Sturgeon caviar (§ 23.63): At COP 10, all sturgeon that were not already included in the CITES appendices were added to Appendix II. Resolution Conf. 10.12 provides recommendations to the Parties to assist in the conservation of these vulnerable species. One specific recommendation is that Parties “monitor the storage, processing and re-packaging of sturgeon specimens in Customs free zones and free ports, and for airline and cruise line catering.” Under the ESA, a shipment is considered an import as soon as it is in an area under the jurisdiction of the United States, whether or not it is considered an import under Customs law.

Caviar is regularly served to passengers on airplanes and cruise ships. Although the caviar is exported from the United States, the intent is not to import it into another country, but to serve it for consumption during the trip. We propose to provide specific guidelines to the travel industry on what quantities can be loaded on board and when a CITES document is required. Industry officials will need to carefully determine the amount likely to be consumed on an airplane or cruise ship since any unconsumed caviar that is on board at the foreign destination may be considered an import, even if left on board, and would require CITES documents.

According to industry sources, caviar is perishable and has a normal shelf life of 1 year. Since all sturgeon have been included in the CITES appendices since 1997, we no longer accept pre-Convention certificates for caviar. This practice is consistent with the CITES Notification No. 1999/23, which recommended that no permits or certificates declaring caviar as pre-Convention should be accepted after April 1, 1999. In order to be imported legally into the United States, shipments of sturgeon caviar must be accompanied by the appropriate export or re-export document (see our policy in the December 6, 1999, Federal Register (64 FR 68113)) .

Timber (§ 23.64): The Parties recognize that trade in timber may require some variations on standard CITES procedures.

Resolution Conf. 10.13 discusses the implementation of the Convention for timber species. Resolution 10.2 incorporates specific recommendations for timber species listed in Appendix II or III that have an annotation regulating only the trade in logs, sawn wood, and veneer sheets. It allows that under specific circumstances the period of validity for CITES documents for timber may be extended for a maximum of 6 months. It also includes provisions for changing the ultimate consignee for a shipment after export or re-export. We propose to incorporate these recommendations into this section.

Personal sport-hunted trophies (§ 23.65): Some countries allow limited take of Appendix-I species as part of an overall management plan. The export of Appendix-I hunting trophies requires both export and import permits under Article III (see proposed § 23.28). This practice is reaffirmed in Resolution Conf. 2.11(Rev.). Because imports of Appendix-I species cannot be for primarily commercial purposes, Resolutions Conf. 10.14 and 10.15 recommend that trophies of Appendix-I species must be acquired by the owner in the country of export, are being imported as personal items, and will not be sold in the country of import.

We propose to incorporate these requirements into 50 CFR part 23 and clarify what is considered a trophy. In a number of instances, large numbers of fully manufactured products, such as briefcases, handbags, and golf bags, have been imported as part of a “hunting trophy.” Manufactured items of Appendix-II and -III species may be imported with the appropriate CITES export or re-export documents, which specifically describe the individual items, rather than including them under a general description of “trophy.” It is unlikely that the requirements for import of Appendix-I species could be met for such items. We also would require Appendix-I specimens not be used or transferred for a commercial purpose for those trophies imported for personal use. We would include the specific conditions for leopard hunting trophies as provided in Resolution Conf. 10.14. These requirements would be in addition to any requirements in 50 CFR part 17. A hunter would not be allowed to import more than two leopard trophies in one calendar year, and any skin would need to meet tagging requirements.

Analysis of Proposed Subpart F—Disposal of Confiscated Live Wildlife and Plants

Confiscated live specimens (§ 23.70): Article VIII(4) and (5) outlines the requirements for disposal of confiscated live specimens, and the Parties have adopted Resolution Conf. 10.7 which sets out detailed guidance. For the United States, the general procedures for disposal of forfeited or abandoned property are in 50 CFR part 12. These procedures apply to CITES as well as the other laws that we enforce. We are not proposing to revise 50 CFR part 12, but to add a section to these regulations on the process we use in making a decision to dispose of confiscated live CITES wildlife and plants that have been forfeited or abandoned to our Division of Law Enforcement or APHIS.

Sometimes the country of export would like to have a shipment of confiscated live specimens returned. Although under Article VIII this is one of the options a country should consider, we are not always able to select this option or return specimens quickly. For example, when criminal charges are brought in connection with confiscated specimens, litigation may require us to hold the specimens as evidence for an extended period of time and the court may decide how we are to dispose of them.

Many factors must be considered when live specimens are seized. The most important of these factors is the welfare of the wildlife or plants. Resolution Conf. 10.7 details a number of options for disposal as well as the difficulties associated with each option. We propose to consult this recommended guidance as necessary in making a decision. For wildlife, the options discussed include maintenance in captivity, return to the wild, and euthanasia. For plants, the resolution discusses maintenance in cultivation, return to the wild, and destruction.

In many countries, including the United States, some confiscated specimens have been donated to zoos, aquariums, or botanical gardens. However, this option is not always open when large numbers of common species are seized. The zoological community recognizes that placing animals of low conservation value in limited cage space may benefit those individuals, but may detract from conservation efforts as a whole. As a result, they are setting conservation priorities for cage space. Botanical gardens are in a similar situation.

It is rare that confiscated specimens can or should be returned to the wild. Before return to the wild should be considered, a country must decide if that action would make a significant contribution to the conservation of the species or might be harmful to the conservation of species in the wild. Specimens held in captivity and/or transported may be exposed to a variety of diseases and parasites. Reintroduction of these specimens to the wild could result in introduction of diseases with potentially catastrophic effects. It is also unlikely that the exact point of collection could be determined. Therefore, the specimens could not be returned to their home areas. Introduction into other areas may result in genetic pollution and adverse impacts on the species native to that area. Sometimes range countries request return of confiscated wildlife or plants for educational or related purposes. The least popular solution to disposal of confiscated wildlife, euthanasia, may often be the simplest and most humane option available.

Participation in the Plant Rescue Center Program (§ 23.71): We propose to add this section on how a public institution can participate in our Plant Rescue Center Program. Whenever a shipment of plants arrives in the United States in violation of CITES and the plants are confiscated or seized, the plants are transferred to a participating center. We have enlisted more than 60 public institutions, such as non-profit botanical gardens, arboretums, zoological parks, and research institutions in the United States, to cooperate with us in this program.

Analysis of Proposed Subpart G—CITES Administration

Roles of the Secretariat and the committees (§ 23.75): This proposed section adds to the information in subpart D of the current regulations. It outlines the responsibilities of the Secretariat, which is established under Article XII, and the committees, which were established under resolutions (Resolution Conf. 9.1 (Rev.), which repeals Resolutions Conf. 6.1 and 7.1). The committees provide administrative and technical support to both the Parties and the Secretariat. The resolution also outlines how regional representatives are selected to serve on the various committees and their responsibilities.

Conference of the Parties (COP) (§ 23.76): We propose to add basic information on what a COP entails, how COP locations and dates are determined, and who can attend the meetings.

Notice of a COP (§ 23.77): This proposed section revises §§ 23.31-23.39 to clarify how we provide information to the public concerning a COP and how the public may participate in preparations for it. We propose to continue publishing notices in the Federal Register as soon as information is available concerning the location, dates, agenda, proposed amendments to the appendices, proposed resolutions for a COP, and public meetings. Since each notice will provide current information on participation in the public meetings, including the correct address for submission of any written comments and a telephone number for further information, we propose not to include the address and telephone number in 50 CFR part 23.

Development of U.S. negotiating positions (§ 23.78): We propose to reorganize the information in §§ 23.33, 23.35, and 23.38 to show the process we follow in developing our negotiating positions, including how the public can participate in this process. We will continue to publish proposals that the United States is considering and our proposed negotiating positions on agenda items and proposals. We will also continue to hold public meetings to discuss these issues. We propose to no longer publish our final negotiating positions in the Federal Register, but rather to make them available in more timely ways, such as posting them on our website and mailing them to people upon request. Some issues are extremely complex and require extensive coordination, and our final negotiating positions may not be available prior to the COP. We also propose to delete § 23.39 of the current regulations and no longer publish an official report after each COP. Information on the results of a COP is available from a number of sources, such as our website or CITES Update, much sooner than an official report could be published and printed. We propose to delete § 23.36 as a separate section since this information is incorporated into other newly proposed sections.

Analysis of Proposed Subpart H—List of Species

Listing criteria for Appendix I or II (§ 23.85): CITES lists species in one of three levels of protection depending on the degree of threat to the survival of the species and the protection in international trade believed to be necessary by the Parties (see proposed § 23.4). In 1992 at COP 8, the Parties directed the Standing Committee to undertake, with the assistance of the Secretariat, a revision of the criteria for amending the appendices in Resolution Conf. 1.1 (referred to as the Berne criteria). This review, carried out in consultation with the Parties, was based on initial technical work done by IUCN in collaboration with species experts. A joint meeting of the Plants and Animals Committees addressed all aspects of this review, in association with the Standing Committee, held in Brussels in September 1993.

From this review, the Parties adopted Resolution Conf. 9.24, which establishes specific criteria for listing species. This proposed section basically adopts this resolution as it is written. When considering any proposal to amend Appendix I or II, the Parties should apply a precautionary approach so that scientific uncertainty should not be used as a reason for failing to act in the best interest of the conservation of the species. We propose to define the term “precautionary measures” in proposed § 23.5.

Under Article II, Appendix II should include species that could be threatened with extinction if trade is not monitored (Article II(2)(a)) and species where trade should be monitored because the species resembles another listed species and could be misidentified while in trade (Article II(2)(b)). In both cases, we are concerned that international trade does not adversely affect the listed species and that it does not develop to a level that is detrimental to the species in the wild. We are concerned that trade does not get to a level where the species would meet the criteria for listing in Appendix I and that the species is maintained at a level consistent with its role in its ecosystem.

To monitor the effectiveness of protection offered by the Convention, range countries in cooperation with the Animals Committee or the Plants Committee are to regularly review the status of species included in Appendices I and II. The Parties will fully review the listing criteria in Resolution Conf. 9.24 before COP 12 (approximately 2002) with regard to the scientific validity of the criteria, definitions, notes, and guidelines and their applicability to different groups of organisms.

Listing criteria for Appendix III (§ 23.86): Article II(3) sets out that Appendix III includes native species that a Party lists to obtain international cooperation in controlling trade. Under Article XVI, a party can include a species in Appendix III by submitting information to the Secretariat. No vote of the Parties is required. The criteria to list a species in Appendix III includes that the species must be native to the listing country, be protected under that country's regulations to prevent or restrict exploitation and control trade, and be in international trade, with an indication that cooperation of other Parties would help to control illegal trade. The listing Party can request the species be removed from Appendix III at any time. By listing a species in Appendix III, trade data and other relevant information can be gathered to assist policy makers in a country determine whether the species should be proposed for inclusion in Appendix II, removed from Appendix III, or retained in Appendix III.

This proposed section incorporates Resolution Conf. 9.25 by outlining the criteria that a country must address to list a species in Appendix III. In addition, it gives a general description of the process we will use to decide if a species native to the United States should be listed in Appendix III. At this time, we have not listed any species in Appendix III, but we proposed several species in the January 26, 2000, Federal Register (65 FR 4217).

Organization of the list and exemptions (§§ 23.87-23.88): These proposed sections are a revision and reorganization of current § 23.23. In addition, we propose to discontinue publication of the unofficial list in the CFR, but continue to provide information concerning exempt wildlife or plants and their parts or products in proposed § 23.88. The official CITES list is the one maintained by the Secretariat. It is based on decisions by the Parties and is available from the Secretariat's website or from our office. Although the unofficial list would no longer be in the CFR, we would continue to maintain it because it is in a more detailed and easier to use format. This list would be available on our website and as a printed publication.

Required Determinations

Regulatory Planning and Review

This proposed rule has been reviewed by OMB under Executive Order 12866.

a. This proposed rule will not have an annual economic effect of $100 million or negatively affect a part of the economy, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required. The purpose of this proposed rule is to clarify and update the regulations that carry out CITES. It is designed to assist individuals and businesses who import and export specimens of CITES species by clearly outlining the requirements that the United States, as well as the other 145 Parties, must follow under the Treaty. As of October 15, 1999, our records showed 5,368 currently valid CITES documents that we have issued (the period of validity for a document ranges from 6 months to 4 years).

The majority of our trading partners for wildlife and plants are CITES Parties. Because most of these Parties are currently implementing the resolutions, the proposed rule should cause little or no change to the way importers are currently doing business. The foreign suppliers are already required by their own country's laws and international customary law to follow the consensus interpretations embodied in the resolutions. In addition, if an importer were to receive a shipment that did not comply with all of the requirements of the country of shipment, the import may violate the Lacey Act Amendments of 1981.

Exporters need to comply with the requirements of the receiving country in addition to U.S. requirements. As a result, many are already complying with the recommendations and interpretations in the CITES resolutions. If a shipment is not in compliance with all applicable resolutions, it may be seized or detained at the destination. The proposed revisions will assist exporters in determining what procedures they need to follow to trade internationally.

These proposed revisions incorporate existing trade requirements that have not previously been published, but are required internationally by a treaty. The publication of the proposed revisions will assist U.S. businesses in complying with the requirements under CITES and in engaging in international trade.

Therefore, we do not expect that this proposed rule would have a significant effect on the volume or dollar value of wildlife and plants imported, introduced from the sea, exported, or re-exported to and from the United States. There is no indication that this proposed rule will result in statistically significant higher or lower levels of trade, permit applications, or permit issuance or denial.

b. This proposed rule will not create inconsistencies with other agencies' actions. As the lead agency for carrying out CITES in the United States, we are responsible for monitoring imports and exports of CITES wildlife and plants, including their parts and products, and issuing import and export documents under CITES.

c. This proposed rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

d. This proposed rule will not raise novel legal or policy issues because it only updates and clarifies existing regulations that implement CITES. As a member of CITES, the United States is committed to implementing the consensus interpretations of the Treaty that are embodied in the resolutions collectively approved by the Parties. This proposed rule would clarify the requirements for the import, introduction from the sea, export, and re-export of shipments of CITES specimens and would provide individuals and businesses access to current, clearly written regulations.

Regulatory Flexibility Act

The proposed rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). A final Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.

The overwhelming majority of the entities that import, export, or re-export CITES specimens are considered small as defined under the Regulatory Flexibility Act. This proposed rule provides these businesses with updated and more clearly written regulations for the import, export and re-export of shipments of CITES specimens. The authority to enforce CITES requirements already exists under the Endangered Species Act and is carried out by regulations contained in 50 CFR part 23.

a. Many rural communities rely on the added income produced by harvesting and selling certain CITES species that occur in the United States, such as the American alligator, American ginseng, bobcat, river otter, Alaska lynx, Alaska brown bear, and Alaska wolf. The majority of consumer products made from these species are processed overseas. In 1997, approximately $24 million in wildlife species and $79 million in ginseng were exported from the United States under CITES. We are not proposing any changes from the existing export regulations and, therefore, do not anticipate any economic effect to the current level of activity.

We recognize that the States have the right and responsibility to manage their wildlife. Many States have monitored the harvest of CITES species since before the Treaty came into effect. Because of this, we have worked with States and Indian Tribes to use the information they collect to make CITES findings on a State-by-State or Tribe-by-Tribe basis where export approval is requested. This system allows us to make findings for all specimens of a particular species from a State or Tribe rather than requiring each applicant to supply the information we need to make legal acquisition and non-detriment findings. When we are able to make State- or Tribe-based findings, at no charge we supply those States and Tribes with CITES export tags. These tags are placed on each skin under State- or Tribe-monitored conditions. The presence of a tag on a skin provides us with reasonable assurance that the skin was acquired legally. By making these administrative findings on a State-wide or reservation-wide basis, we considerably reduce the amount of paperwork required and allow exporters of these species to use streamlined procedures.

In the proposed revisions, we provide the criteria we use in making decisions concerning administrative findings. However, these criteria are the same as we have used since the beginning of such findings. The proposed revisions would provide the public details on how these findings are made.

The proposed changes to the CITES regulations will assist those that rely on income from the export of certain native CITES species to remain competitive when conducting business in international markets. This proposed rule provides the importing and exporting community a better opportunity for obtaining economic gain from international business in CITES specimens.

b. CITES Resolution Conf. 8.16 requires that each wildlife specimen in a traveling live-animal exhibition (often a circus) must be covered by a CITES document specific to that specimen. Currently, many circuses have one document that covers several specimens. Under the proposed revisions, when a document covering multiple specimens expires, the permittee would need to obtain one document for each specimen. As a result, this proposed rule may result in increased permit application processing fees ($25 per application) for a small number of importers and exporters who trade in CITES species. The requirement will be phased in as current documents expire. We estimate that approximately 70 circuses import and export CITES wildlife to and from the United States on a regular basis. If exhibitors do not obtain individual documents for each specimen, they may encounter difficulties at border crossings.

c. CITES Resolution Conf. 10.6 (which incorporates Resolution Conf. 4.12) specifically states that the personal effects exemption that covers tourist souvenirs does not apply to live specimens. In addition, most Parties require CITES documents for all live specimens, even if they are personal items. Resolution Conf. 10.20 provides for the issuance of certificates for personal live wildlife that would be valid for a period of 3 years and allow for multiple imports, exports, and re-exports of the specimens. Current U.S. regulations do not advise the reader of this. However, if an individual leaves the United States with their pet that is protected under CITES (such as a parrot), they risk having the pet seized upon import into another CITES Party. The proposed revisions would advise travelers that they must have a CITES document in order to travel with their CITES pet and provide for the issuance of a 3-year document. In addition, individuals importing live CITES wildlife as pets will be required under this proposed rule to obtain a CITES document prior to arriving in the United States. In most cases, this requirement would ensure that they are not inadvertently violating the Lacey Act by exporting their pet from a CITES Party without an export document since most Parties require CITES documents for all live specimens. On the average between 1996 and 1998, we issued 21 retrospective documents for personal shipments, including live wildlife, annually. Since recipient Parties required individuals to obtain retrospective documents before allowing import of the live wildlife, this requirement will not place an additional paperwork or financial burden, but may actually save time and money.

The proposed regulations will create no other substantial fee or paperwork changes in the permitting process. The changes discussed above are not major in scope and will create only a modest financial or paperwork burden on the affected members of the general public. Therefore, we do not believe that this proposed rule will have a significant economic effect on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

Similarly this proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:

a. Does not have an annual effect on the economy of $100 million or more. This proposed rule provides the importing and exporting community within the United States updated and more clearly written regulations that implement CITES in the United States. This proposed rule will not have a negative effect on this part of the economy.

This proposed rule will affect all importers and exporters equally, and the benefits of having updated guidance on complying with CITES requirements will be evenly spread among all businesses, whether small or large. There is not a disproportionate share of benefits for small or large businesses.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This proposed rule will clarify and update the regulations to carry out CITES, and as such, will provide benefits to all permit applicants in terms of time savings. This proposed rule may result in a small increase in the number of permit applications and permit processing fees for some circuses and pet owners.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This proposed rule will enable U.S. importers and exporters of CITES species to better understand and comply with the regulations covering international trade in CITES wildlife and plants. Without these proposed revisions to the regulations, the U.S. importing and exporting community may not be able to effectively compete with foreign-based companies in the international trade of CITES specimens. This proposed rule will assist U.S. businesses in ensuring that they are meeting all required CITES resolutions and decrease the possibility that shipments may be delayed or even seized in another country that has implemented applicable CITES resolutions.

Unfunded Mandates Reform Act

Under the Unfunded Mandates Reform Act (2 U.S.C. 1501, et seq.):

a. This proposed rule will not significantly or uniquely affect small governments. A Small Government Agency Plan is not required. As the lead agency for carrying out CITES in the United States, we are responsible for monitoring imports and exports of CITES wildlife and plants, including their parts and products, and issuing import and export documents under CITES. This proposed rule affects States only as described in 2.a. above, concerning export of certain native CITES species. Therefore, this proposed rule has no effect on small government's responsibilities.

b. This proposed rule will not produce a Federal requirement of $100 million or greater in any year and is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

Takings

Under Executive Order 12630, this proposed rule does not have significant takings implications. A takings implication assessment is not required. This proposed rule is not considered to have takings implications because it does not further restrict the import, export, or re-export of specimens of CITES specimens. Rather, the proposed rule updates the regulations for the import, export, and re-export of CITES specimens, which will assist the importing and exporting community in carrying out international trade in CITES specimens.

Federalism

These proposed revisions to CFR part 23 do not contain provisions that have Federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132. These proposed regulations cover U.S. responsibilities under CITES which is an international agreement that focuses on international trade in protected species. The activities of import and export are national in scope and are not sovereign powers reserved to the States. The portions of the proposed regulations which have direct links to the States are basically unchanged and were initially developed after extensive consultation with the States and with the International Association for Fish and Wildlife Agencies.

Civil Justice Reform

Under Executive Order 12988, the Office of the Solicitor has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. Specifically, this proposed rule has been reviewed to eliminate errors and ensure clarity, has been written to minimize disagreements, provides a clear legal standard for affected actions, and specifies in clear language the effect on existing Federal law or regulation.

Paperwork Reduction Act and Information Collection

This proposed rule contains information collections for which approvals are required under the Paperwork Reduction Act. The majority of the information collection associated with this proposed rule is covered by OMB approval number 1018-0093 (Forms 3-200-19 through 3-200-49, 3-200-52, and 3-200-53). Any comments on this record collection should be directed to the Information Collection Clearance Officer, Mail Stop 222, Arlington Square, U.S. Fish and Wildlife Service, Washington, DC 20240.

We are proposing ten new forms (listed below). These proposed forms are based on forms that are already approved and would require only submission of information specific to the activity covered by the form. The collection of information described for those forms has been submitted to the Office of Management and Budget (OMB) for approval under the provisions of the Paperwork Reduction Act of 1995 (Public Law 104-13). We may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The proposed information collection will be used to evaluate applications for CITES documents. We will use the information to review applications and make decisions, according to criteria established in various Federal wildlife conservation statutes and regulations, on the issuance, suspension, revocation, or denial of CITES documents. Your response is required to obtain a CITES document. We estimate the public reporting burden for these reporting requirements to vary from 30 minutes to 40 hours per response with an average of 1 hour per response, including time for reviewing instructions, gathering and maintaining data, and completing and reviewing the forms.

Comments on this proposed information collection should be directed to the attention of the Desk Officer for the Interior Department, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503. A copy of the comments should also be sent to the Information Collection Clearance Officer, Mail Stop 222, Arlington Square, U.S. Fish and Wildlife Service, Washington, DC 20240. The Office of Management and Budget has up to 60 days to approve or disapprove the information collection but may respond after 30 days. Public comments should be submitted to OMB within 30 days in order to assure their maximum consideration. The new forms and the estimated reporting burdens are as follows:

We are specifically seeking public comments as to:

a. Whether the collection of information is necessary for the proper performance of the functions of the Service, including whether the information will have practical utility;

b. The accuracy of the Service's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

c. The quality, utility, and clarity of the information to be collected; and

d. How to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated electronic, mechanical, or other forms of information technology.

National Environmental Policy Act

The Department of the Interior has determined that the issuance of this action is categorically excluded under the Department's NEPA procedures in 516 DM 2, Appendix 1.10.

Government-to-Government Relationship With Tribes

Under the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated possible effects on federally recognized Indian Tribes and have determined that there are no effects. Individual tribal members must meet the same regulatory requirements as other individuals who participate in international trade of CITES species.

Public Comments Solicited

We invite interested organizations and the public to comment on this proposed rule. It generally reflects the way we currently implement CITES under the current resolutions. We have drafted the proposal as part of our ongoing permits reform effort to simplify procedures, use risk assessment to reduce paperwork while still ensuring effective species conservation, and help people understand how to conduct international trade in CITES species. We are seeking comments, in particular, on whether the provisions of the proposed rule allows the affected public to effectively comply with CITES and whether the proposed rule is written in a manner that the public can easily understand and use.

List of Subjects

50 CFR Part 10

• Exports
• Fish
• Imports
• Law enforcement
• Plants
• Transportation
• Wildlife

50 CFR Part 13

• Administrative practice and procedure
• Exports
• Fish
• Imports
• Plants
• Reporting and recordkeeping requirements
• Transportation
• Wildlife

50 CFR Part 17

• Endangered and threatened species
• Exports
• Imports
• Reporting and recordkeeping requirements
• Transportation

50 CFR Part 23

• Animals
• Endangered and threatened species
• Exports
• Fish
• Foreign officials
• Foreign trade
• Forest and forest products
• Imports
• Marine mammals
• Plants
• Reporting and recordkeeping requirements
• Transportation
• Treaties
• Wildlife

Proposed Regulations

For the reasons given in the preamble, Title 50, Chapter I, Subchapter B of the CFR, is proposed to be amended to read as follows:

PART 10—[AMENDED]

1. The authority citation for part 10 continues to read as follows:

Authority: 18 U.S.C. 42; 16 U.S.C. 703-712; 16 U.S.C. 668a-d; 19 U.S.C. 1202; 16 U.S.C. 1531-1544; 16 U.S.C. 1361-1407; 16 U.S.C. 742a-742j-l; 16 U.S.C. 3371-3378.

2. In § 10.12, the definitions of Country of origin and United States are revised to read as follows:

PART 13—[AMENDED]

3. The authority citation for part 13 continues to read as follows:

Authority: 16 U.S.C. 668a, 704, 712, 742j-l, 1382, 1538(d), 1539, 1540(f), 3374; 4901-4916; 18 U.S.C. 42; 19 U.S.C. 1202; E.O. 11911, 41 FR 14583; 31 U.S.C. 9701. 4. Section 13.1 is revised to read as follows:

PART 17—[AMENDED]

8. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

PART 23—CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND FLORA (CITES)

Authority: 27 U.S.T. 1087; 16 U.S.C. 1531 et seq.

Subpart A—Introduction

Contact one of the following offices to receive information about CITES:

Subpart B—Prohibitions, Exemptions, and Requirements

Answer the questions in the following decision tree to find out the section in the regulations in this part that applies to the type of CITES document you need to export Appendix-I plants:

(d) Purpose of transaction. If possible, the CITES document should contain one of the following codes:

(e) Additional required information. The following describes the additional information that is required for specific types of documents (listed alphabetically):

(f) Phytosanitary certificate. A Party that uses a phytosanitary certificate as a CITES document for the export of artificially propagated Appendix-II and -III plants and artificially propagated hybrids of unannotated Appendix-I plants must include all of the following information:

(1) The scientific name of the species, including the subspecies when needed to determine the level of protection of the specimen under CITES, using standard nomenclature as it appears in the CITES appendices or the references adopted by the COP.

(2) The type (such as live plant or bulb) and quantity of the specimen authorized to be in the shipment.

(3) A stamp, seal, or other specific indication stating that the specimen is artificially propagated as defined by CITES (see § 23.54).

Subpart C—Application Procedures, Issuance Criteria, and Conditions

(c) Issuance criteria. You must provide sufficient information for us to find that your proposed activity meets all of the following criteria:

(d) Standard conditions. In addition to the conditions in § 23.45, you must meet all of the following:

(1) You may import and subsequently use the wildlife or plant only for the purposes stated in your application and specifically approved and conditioned in the permit. To ensure that the specimen will not be used for primarily commercial purposes after import, you must get a letter of approval from us to use the specimen for a different purpose or transfer the specimen where it will be used for a different purpose.

(2) You may not import, subsequently use, or transfer the specimen for any commercial purpose.

(3) The specimen may not be used by you or any other person to establish or participate in an operation or nursery that is breeding or propagating the species for commercial purposes.

(a) General provisions. Except as provided in paragraph (b) of this section, the export, re-export, or import of a plant hybrid must be accompanied by a valid CITES document, as follows:

(b) Exception. Plant hybrids may be excluded from CITES controls by an annotation in Appendix II or III (see § 23.88).

Subpart D—Factors We Consider in Making Certain Findings

Subpart E—International Trade in Certain Specimens

(2) Artificially propagated ginseng (also referred to as cultivated ginseng) categories include:

(b) Approved export. States and Tribes set up and maintain ginseng management and harvest programs designed to monitor and protect American ginseng from over-harvest. For States and Tribes with management programs that provide us with the necessary information, we make administrative findings on a State-wide or reservation-wide basis. States and Tribes for which these administrative findings have been made are requested to complete and submit form 3-200-61 as an annual report to provide information on the previous year's harvest to us by May 31 of each year. Annual reports should include at least the following:

(1) Pounds of wild ginseng and artificially propagated ginseng harvested.

(2) For wild ginseng, average number of roots per pound.

(3) Average age of wild-harvested plants estimated by counting bud scars or converting dry weight to age.

(4) Trends in abundance of wild ginseng populations, preferably as measured in field surveys.

(5) Information that the export of ginseng will not be detrimental to the survival of the species in the wild in that State or on tribal lands.

(6) Information on, and a copy of, any changes in ginseng laws or regulations.

(c) New State-wide or reservation-wide export approval for wild ginseng. States or Tribes that wish to set up a new management program for wild ginseng to obtain export approval on a State or tribal basis must provide us with sufficient information to determine that the export of ginseng will not be detrimental to the survival of the species in the wild in that State or on tribal lands, and that the ginseng was legally obtained.

(d) New State-wide or reservation-wide export approval for cultivated ginseng. States or Tribes that wish to set up a new management program for cultivated ginseng to obtain export approval on a State or tribal basis must be able to document the source of the ginseng used. In addition, they should develop procedures to minimize the risk that wild-collected plants would be claimed as cultivated.

(e) U.S. application forms. A list of approved States and Tribes and application forms can be obtained from our website or by contacting us. Complete and submit the applicable form to the Office of Management Authority (see § 23.7):

Subpart F—Disposal of Confiscated Live Wildlife and Plants

Subpart G—CITES Administration

Subpart H—Lists of Species