Revision of Regulations for the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 20168-20260 [06-3444]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 75 (Wednesday, April 19, 2006)]
[Proposed Rules]
[Pages 20168-20260]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3444]



[[Page 20167]]

-----------------------------------------------------------------------

Part II





Department of the Interior





-----------------------------------------------------------------------



Fish and Wildlife Service



-----------------------------------------------------------------------



50 CFR Part 10 et al.



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

Federal Register / Vol. 71, No. 75 / Wednesday, April 19, 2006 / 
Proposed Rules

[[Page 20168]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 10, 13, 17, and 23

RIN 1018-AD87


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reproposal.

-----------------------------------------------------------------------

SUMMARY: We, the Fish and Wildlife Service, propose to revise the 
regulations that implement the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES), a treaty that 
regulates international trade in certain protected species. The United 
States was one of the original signatories to CITES, which has been in 
effect since July 1, 1975. CITES uses a system of permits and 
certificates to help ensure that international trade is legal and does 
not threaten the survival of wildlife or plant species in the wild. 
Since the existing regulations were finalized, the CITES Conference of 
the Parties (CoP) has held a number of meetings where resolutions have 
been adopted. The Parties adopt resolutions as a means of standardizing 
interpretation and implementation of the provisions of the Treaty. On 
May 8, 2000, we proposed a revision of the regulations to incorporate 
applicable resolutions, as appropriate, adopted through the tenth 
meeting of the Conference of the Parties to CITES (CoP10). This new 
proposal includes consideration of the comments received in response to 
the 2000 proposal and incorporates appropriate resolutions adopted at 
CoP11 through CoP13. Revised regulations will help us more effectively 
promote species conservation, continue to fulfill our responsibilities 
under the Treaty, and help those affected by CITES to understand how to 
conduct lawful international trade in CITES species.

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

ADDRESSES: You may send comments, identified by RIN 1018-AD87, by one 
of the following methods:
     Federal e-Rulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: part23@fws.gov.
     Fax: (703) 358-2280.
     Mail or hand delivery: Dr. Peter Thomas, Chief, Division 
of Management Authority, U.S. Fish and Wildlife Service, 4401 N. 
Fairfax Drive, Room 700, Arlington, Virginia 22203.
    See Public Comments Solicited at the end of SUPPLEMENTARY 
INFORMATION for further information about submitting comments. All 
comments received will be available for public inspection by 
appointment from 7:45 a.m. to 4:15 p.m., Monday through Friday, at the 
above address.
    Comments specific to the information collection aspects of this 
proposed rule should be submitted to the Desk Officer for the 
Department of the Interior at OMB-OIRA via facsimile or e-mail using 
the following fax number or e-mail address: (202) 395-6566 (fax); 
OIRA--DOCKET@omb.eop.gov (e-mail). Please provide a copy of your 
comments to the U.S. Fish and Wildlife Service's Information Collection 
Officer, 4401 N. Fairfax Drive, MS 222 ARLSQ, Arlington, Virginia 
22203; (703) 358-2269 (fax); or hope_grey@fws.gov (e-mail).

FOR FURTHER INFORMATION CONTACT: Dr. Peter Thomas, at the above address 
(telephone, (703) 358-2093; fax, (703) 358-2280).

SUPPLEMENTARY INFORMATION:

What Acronyms and Abbreviations Are Used in This Rule?

AECA African Elephant Conservation Act
APHIS U.S. Department of Agriculture, Animal and Plant Health 
Inspection Service
CITES Convention on International Trade in Endangered Species of 
Wild Fauna and Flora, also referred to as the Convention or Treaty
CBP Department of Homeland Security, U.S. Customs and Border 
Protection
CFR Code of Federal Regulations
CoP CITES Conference of the Parties or meeting of the Conference of 
the Parties
ESA Endangered Species Act
FOIA Freedom of Information Act
FWS U.S. Fish and Wildlife Service
IATA LAR International Air Transport Association Live Animals 
Regulations
ISO International Organization for Standardization
WBCA Wild Bird Conservation Act

Background

    CITES was negotiated in 1973 in Washington, DC, at a conference 
attended by delegations from 80 countries. The United States ratified 
the Treaty on September 13, 1973, and it entered into force on July 1, 
1975, after the required 10 countries had ratified it. Section 8A of 
the ESA, as amended in 1982, designates the Secretary of the Interior 
as the U.S. Management Authority and U.S. Scientific Authority for 
CITES. These authorities have been delegated to the FWS. The U.S. 
regulations implementing CITES took effect on May 23, 1977 (42 FR 
10465, February 22, 1977), after the first CoP was held. The CoP meets 
every 2 to 3 years to vote on proposed resolutions and decisions that 
interpret and implement the text of the Treaty and on amendments to the 
listing of species in the CITES Appendices. Currently 169 countries 
have ratified, accepted, approved, or acceded to CITES; these countries 
are known as Parties.
    Previous proposed rule and comments received: We published a 
proposed rule on May 8, 2000 (65 FR 26664) (2000 proposal), to 
incorporate changes from CoP2 through CoP10. The 2000 proposal was 
never finalized, and we are here proposing a new rule, which includes 
consideration of the 206 comments we received on the 2000 proposal. A 
little over half of the comments were general comments. Most of these 
were submitted by orchid hobbyists, commercial orchid growers, or 
taxidermists. We also received 88 letters with specific comments from 
42 individuals, 35 organizations, and 11 governmental agencies. We 
reviewed all of the comments on the 2000 proposal and addressed them 
where appropriate in this current proposed rule. We received 
conflicting recommendations, and not all comments were incorporated 
into this new proposal.
    Current proposed rule: We propose to revise the current regulations 
contained in 50 CFR part 23 to incorporate, as appropriate, applicable 
resolutions adopted at CoP2 through CoP13 which continue to remain in 
effect. In this proposed rule, we retained most of the general 
information in the current 50 CFR part 23. We are reproposing the 
regulations to include certain resolutions adopted at CoP11 through 
CoP13, and to incorporate changes that resulted from public comment on 
the 2000 proposal. We retained the organizational structure set out in 
the 2000 proposal in this new proposed rule.
    Resolution consolidation and incorporation: Since 1976, the Parties 
have adopted 256 resolutions or revisions to resolutions. In 1994, the 
Parties began an effort to consolidate some of these resolutions. Some 
resolutions were no longer relevant, and

[[Page 20169]]

others needed to be combined because several resolutions were adopted 
at different CoPs on the same or similar subjects. As a result of this 
process, there are currently 79 resolutions in effect. This proposed 
rule incorporates certain of these consolidated resolutions, as 
appropriate and relevant to U.S. implementation of the Treaty. We cite 
the current numbers of resolutions since previous resolutions have been 
renumbered. This allows the reader to easily access the documents 
currently in effect on the CITES Web site (https://www.cites.org).
    One commenter thought we said in the 2000 proposal that we were 
incorporating the provisions of treaties other than CITES, such as the 
Convention on Biological Diversity, and questioned the legal basis for 
such inclusion. To clarify, these regulations are based on CITES and do 
not implement other treaties, including the Convention on Biological 
Diversity. Two commenters asked us to develop a plan to regularly 
review and update the regulations after each CoP. We plan to evaluate 
newly adopted decisions and resolutions after each CoP and will update 
the regulations when appropriate and necessary.
    Stricter national measures: Article XIV of the Treaty explicitly 
recognizes the rights of Parties to adopt stricter national measures to 
restrict or prohibit trade, taking, possession, or transport of any 
wildlife or plant species. Resolution Conf. 11.3 (Rev. CoP13) 
recommends that Parties make use of stricter national measures if they 
have determined ``that an Appendix-II or -III species is being traded 
in a manner detrimental to the survival of that species' or is being 
``traded in contravention of the laws of any country involved in the 
transaction.'' The United States has adopted stricter national 
measures, such as the ESA, Marine Mammal Protection Act, and Lacey Act.
    One commenter pointed out that the adoption of a resolution 
endorsing stricter national measures does not in itself confer 
authority on a Party to undertake regulatory actions that are not 
otherwise provided for by national law. We acknowledge that it is the 
adoption of the stricter national measures by legislative or executive 
action that provides the legal basis for a country to take an action.
    The same commenter considered this provision one of the major 
problems with CITES: Because each Party adopts its own set of 
requirements regarding imports and exports, the result is conflicting 
CITES requirements among Parties. The commenter also thought the 
imposition of more restrictive import requirements may be considered an 
intrusion on an exporting country's sovereignty. As outlined in the 
preamble to CITES, ``peoples and States are and should be the best 
protectors of their own wild fauna and flora.'' CITES recognizes the 
sovereign right of a country to regulate trade by passing stricter 
national measures to help in the conservation of species. Under CITES, 
an exporting country does not have a sovereign right to override an 
importing country's laws. When a Party sends information to the 
Secretariat on how its stricter national measures will affect trade in 
CITES species, the Secretariat provides that information to other 
Parties through a notification. These notifications are available to 
the public on the CITES Web site.
    Plain language: We revised the text of the previous regulations 
using plain language to make the regulations clearer and easier to use. 
One commenter considered them to be written at too high a reading 
level, and thought we should have several members of the general public 
read the regulations for clarity. Several commenters, however, found 
the overall approach to be user friendly and easy to understand, and 
thought the use of charts and tables was helpful. We believe the 
regulations use an appropriate level of language to lay out the 
technical requirements of a multilateral treaty.

Section-by-Section Analysis

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

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

    Definitions (section 10.12): We propose to revise the definition of 
the ``United States'' to reflect changes in areas under U.S. 
jurisdiction.
    General permit procedures (section 13.1): We propose to revise 
section 13.1 to reflect that, under very limited circumstances, permits 
for certain CITES shipments may be issued after the activity has 
occurred (see proposed section 23.53 on retrospective documents).
    Application procedures (section 13.11): We propose to amend the 
paragraphs on permit processing fees (section 13.11(d)(1) and (4)) to 
clarify that the fee must be paid in U.S. dollars and to include 
requests to participate in the Plant Rescue Center Program and requests 
for approval of a CITES export program for American ginseng, certain 
furbearers, or American alligator by a State or Tribe as described in 
the proposed revision to 50 CFR part 23. We also propose to add 
Introduction from the Sea and Registration of Appendix-I Commercial 
Breeding Operations which were inadvertently left out of the fee 
schedule for all FWS permits published on April 11, 2005 (70 FR 18311). 
The proposed processing fees are to help defray the cost of 
administering the permit program. We based the fees on a number of 
factors, including the complexity of processing the permit type, 
whether the permittee stands to benefit commercially from the permit, 
and whether the permitted activity serves the public interest.
    As noted in our final rule on FWS permit fees, we will not charge a 
fee to any Federal, tribal, State, or local government agency. 
Therefore, we propose not to charge a fee to a State or Tribe seeking 
to gain approval of a CITES export program. We also propose not to 
charge a fee to add an institution to the Plant Rescue Center Program 
because this is a voluntary program designed to place live plant 
specimens that have been confiscated upon import or export, and thereby 
helps the U.S. fulfill its CITES implementing responsibilities.
    U.S. address for permit applicants (section 13.12): We propose to 
revise this section to require an applicant to provide an address 
within the United States when applying for a permit. In a number of 
situations, a business or an individual in a foreign country has 
requested a CITES document from us for a shipment the entity owned, but 
that is being shipped out of the United States. We cannot issue the 
CITES document showing the exporter's foreign address for items that 
are leaving the United States.
    For commercial activities conducted by applicants that reside or 
are located outside of the United States, the name and address of the 
commercial entity's agent in the United States must be included. One 
commenter questioned whether the agent must formally agree to accept 
service for the foreign entity. We note that an applicant may select 
any agent as long as the agent is authorized to receive service. 
Another commenter suggested that we define what constitutes 
``conducting commercial activities'' to clarify whether the import of a 
personal sport-hunted trophy would be considered conducting a 
commercial activity. We do not believe it is necessary to define 
``conducting commercial activities'' because we have defined 
``commercial.'' We consider any transaction involving a seller and a 
buyer, or any retail or wholesale transaction that provides a valuable 
consideration in exchange for

[[Page 20170]]

the transfer of a wildlife or plant specimen as conducting a commercial 
activity. However, a hunter who exports his or her personal sport-
hunted trophy would not be involved in a commercial activity that would 
require an agent under this section.
    Two commenters questioned what U.S. address should be used for an 
individual staying at a hotel or for tourists visiting the United 
States. For these individuals, we would accept a U.S. address where the 
individual is temporarily residing, including a hotel. Another 
commenter was concerned that foreign individuals may not have a social 
security number and another that some applicants do not have fax or e-
mail information. We clarify that this information is only required if 
available.
    Continuation of permitted activity during renewal (section 
13.22(c)): We propose to revise this paragraph that sets out the 
general permit procedures that allow continuation of the permitted 
activity after application for renewal. One commenter suggested all 
businesses should be required to renew permits before they expire. The 
regulations in 50 CFR part 13 follow the Administrative Procedure Act 
(5 U.S.C. 558(c)). When a permittee has made timely and sufficient 
application for renewal of a permit for an activity of a continuing 
nature, the permit does not expire until the agency has made a final 
determination on the application.
    CITES documents do not cover an activity of a continuing nature and 
are considered void upon expiration. Therefore, we propose to revise 
this section to clarify that a permittee may not use a CITES document 
once it has expired. For other permits of a continuing nature, however, 
we propose to retain the process that allows the permittee to conduct 
permitted activities during renewal if the conditions outlined in 50 
CFR part 13 are met.
    Another commenter suggested that the FWS include a 60-day time 
limit to respond to an applicant. We refer the commenter to the current 
regulations that already provide a general expectation of processing 
times in section 13.11(c). We process applications as quickly as 
possible taking into account the number and complexity of applications 
received and our resources.
    Maintenance of records (section 13.46): Permittees are required to 
maintain records. However, our authority to inspect records is limited 
to areas within the United States. Therefore, to ensure that we are 
able to carry out our responsibility to inspect records when necessary, 
we propose to revise section 13.46 to require permittees who reside or 
are located in the United States and permittees who reside or are 
located outside the United States and are conducting commercial 
activities within the United States to maintain records in this 
country.
    Import exemption for threatened, Appendix-II wildlife (section 
17.8): We propose to add this new section to 50 CFR part 17. The ESA in 
Section 9(c)(2) sets out an exemption to the import prohibition for 
threatened, Appendix-II wildlife when the taking and export meet the 
provisions of CITES and the import is not made in the course of a 
commercial activity. This ESA provision only exempts import; it does 
not exempt acquisition in foreign commerce in the course of a 
commercial activity. Therefore, we require both the acquisition and 
import to be noncommercial because we consider any transfer of a 
specimen in pursuit of gain or profit to be a commercial activity. 
Thus, we are proposing that a person who is importing a specimen under 
this provision must provide documentation to the FWS at the time of 
import that shows the specimen was not acquired in foreign commerce in 
the course of a commercial activity.
    One commenter stated that this section violates the ESA and should 
be deleted because a regulation permitting import of sport-hunted 
trophies of threatened species is not consistent with the duty to 
conserve such species. We disagree with the commenter because we 
believe that this section faithfully implements section 9(c)(2) of the 
ESA, and the Congress has stated on frequent occasions that 
scientifically based hunting programs can be conducted for threatened 
species in foreign countries consistent with the conservation of those 
species.
    Some commenters seemed to think that this section only applied to 
sport-hunted trophies, which is not the case. The proposed rule 
clarifies that section 17.8 applies to live and dead wildlife.
    Two commenters suggested that the exemption for ``personally taken 
trophies'' should not allow trophies taken ``for the importer,'' but 
only allow trophies taken ``by the importer.'' We agree, but note that 
this proposed section no longer defines ``sport-hunted trophy.'' 
Instead, it requires that a specimen meet the provisions of 50 CFR part 
23, which defines the term, including the requirement that the trophy 
must be taken by the importer, exporter, or re-exporter.
    Two commenters stated that threatened wildlife species that have 
been transferred from Appendix-I to Appendix-II subject to a 
substantive annotation under CITES should qualify for the import 
exemption in section 9(c)(2) of the ESA, especially in the case of 
sport-hunted trophies of African elephants in Botswana, Namibia, South 
Africa, and Zimbabwe. They expressed concern that the apparent effect 
of proposed section 17.8 would be to require the issuance of threatened 
species import permits for personal sport-hunted trophies of Appendix-
II African elephants, regardless of the statutory exemption in section 
9(c)(2) of the ESA. We agree that no ESA import permits are required 
for trophies of Appendix-II species that are imported for personal use 
and that are properly declared in accordance with paragraphs (d), (e), 
and (f) of section 9 of the ESA. Appropriate corrections have been made 
in the new proposed rule. However, it is important to note that if a 
threatened species, such as the African elephant, has a special rule, 
proposed section 17.8 does not apply; the provisions of the special 
rule apply.
    One commenter questioned the legality of proposed section 17.8 
because any special rule promulgated by the FWS that imposes 
restrictions on the import of threatened, Appendix-II fish or wildlife 
specimens that are tighter than the requirements imposed by CITES is 
not authorized except in ``very narrow and limited circumstances'' 
under section 9(c)(2). The commenter argued further that existing 
import restrictions in special rules for threatened species ``become 
inapplicable by operation of law'' when such species are transferred 
from Appendix-I to Appendix-II. We disagree. Import restrictions 
adopted by special rule for threatened species are based upon an 
explicit determination that such measures are ``necessary and advisable 
to provide for the conservation'' of such species. See section 4(d) of 
the ESA. Once that determination is made, the protective regulations 
that set out those measures must be promulgated and enforced to carry 
out the conservation purposes of the ESA for threatened species. Any 
presumption of lawful import that otherwise would result from the 
operation of section 9(c)(2) of the ESA is rebutted on the basis of the 
rulemaking record and our administrative finding. As noted by the 
United States District Court for the Western District of Texas in 
Safari Club International v. Babbitt (Aug. 12, 1993), no provision of 
the ESA indicates that ``the Secretary's duty and authority to issue 
protective regulations [special rules] is preempted, circumscribed, or 
modified by section 9(c)(2).'' See slip

[[Page 20171]]

op. at 29-30. The exemption, therefore, would not apply to species that 
have a special rule in 50 CFR part 17, such as the argali in section 
17.40(j).
    Special rule for American alligator (section 17.42(a)): We propose 
to revise the special rule for American alligator for clarity, to 
renumber the paragraphs, and to delete outdated information. We propose 
to change the term ``hides'' to ``skins'' to be consistent with the 
language in 50 CFR part 23 and in the special rule for threatened 
crocodilians. For consistency, we also propose to apply the definitions 
of ``crocodilian skins'' and ``crocodilian parts'' proposed in 50 CFR 
part 23 to the American alligator special rule. In addition, we clarify 
that marking and tagging requirements for American alligator meat and 
skulls are different from those for other threatened crocodilians. We 
also propose to remove specific tagging language and instead direct the 
public to the CITES tagging requirements in 50 CFR part 23.
    Special rules for threatened crocodilians and caiman (sections 
17.42(c) and (g)): We propose to delete section 17.42(g) for threatened 
caiman, and add the requirements of that special rule into section 
17.42(c) for threatened crocodilians. We propose to combine these 
special rules to bring them up-to-date and harmonize them with the 
proposed language in Subpart E of 50 CFR part 23 regarding crocodilian 
tagging and import and export requirements. This results in one special 
rule that covers all threatened crocodilians except the American 
alligator.
    We propose to harmonize the definitions of ``skins'' and ``parts'' 
and clarify that skins of sport-hunted trophies are included in the 
definition of ``skins.'' The proposed revisions would move the 
definitions of ``crocodilian skins'' and ``crocodilian parts'' to 50 
CFR part 23 and incorporate them by reference in the special rule to 
avoid redundancy. We propose to not define ``caiman product'' currently 
in section 17.42(g). We think the definition is unnecessary since the 
common usage of the term is clear, i.e., products include processed or 
manufactured items, including curios and souvenirs. In addition, the 
use of the phrase ``that are ready for retail sale'' currently found in 
the definition of ``caiman product'' is misleading and appears to 
narrow the definition of what caiman products are regulated by the 
special rule. We propose to remove the specific CITES tagging language 
and instead direct the public to 50 CFR part 23 for CITES tagging 
requirements. We propose to make the following technical corrections: 
(a) Delete the definition of ``country of export'' because the rule 
references 50 CFR part 23, which defines ``export;'' (b) delete the 
phrase ``or present for export or re-export'' currently found in the 
threatened caiman special rule and instead use the phrase ``to attempt 
to'' found in the ESA regulations; and (c) delete the definition of and 
references to the CITES ``tagging resolution'' and instead refer simply 
to the Convention.
    We also propose to allow meat of saltwater crocodiles originating 
in Australia and Appendix-II Nile crocodiles to be traded without tags 
as is currently allowed for threatened caiman. We clarify that this 
includes all forms of meat by not using the phrase ``processed meat.'' 
We do not believe that international trade in crocodilian meat poses a 
significant conservation risk, but we note that CITES documents still 
would be required for any meat shipments. The proposed revisions to the 
special rule also would prohibit import into the United States of live 
specimens and viable eggs of any threatened crocodilians without an ESA 
import permit. Currently this provision applies only to threatened 
caiman. This revision is necessary and advisable for the conservation 
of all listed crocodilians which cannot withstand pressure from non-
native crocodilians.
    We are also proposing to amend this combined special rule to 
include yacare caiman status reporting requirements for range 
countries. In our final rule (65 FR 25867) published on May 4, 2000, we 
noted that the Service depends primarily on range countries to monitor 
yacare caiman. We also said that to monitor the status of yacare 
caiman, governments of the range countries (Argentina, Bolivia, Brazil, 
and Paraguay) wishing to export such specimens to the United States for 
commercial purposes must provide us every two years, for the following 
10 years, with the most recent information available on the status of 
the species, gathered by the respective range countries to fulfill 
their CITES scientific and management requirements. The first 
submission of status reports was due December 31, 2001. We provided a 
list of information that must be included in the range country status 
report. However, we unintentionally excluded from the regulatory 
language the reporting requirements as discussed in the preamble. We 
propose to add these reporting requirements to correct that error. We 
also propose to not limit the submission of biannual status reports to 
10 years beyond the publication of the final rule. The collection of 
this information is important in determining the most current 
conservation status of the species. Indeed, it would be used to 
consider whether the species is recovering and may warrant delisting. 
We have also added a section describing conditions under which trade 
restrictions can be applied to the import of yacare caiman from range 
countries, including the failure to submit the reports or failure to 
respond to requests for additional information. These conditions are 
necessary and advisable for the conservation of the species, and are 
similar to conditions for other threatened species with special rules 
such as the Vicugna vicugna in section17.40(m)(4)(ii).

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

    We propose to expand this subpart to give a clearer picture of our 
responsibilities under CITES. We also propose to delete some 
information from the current regulations, such as the list of countries 
(section 23.4) that are Parties. To keep this list of Parties up to 
date, we would need to continually revise it when new countries join or 
when a Party's contact information changes. The list of Parties 
(including addresses and telephone and fax numbers) is available from 
us or on the CITES Web site (see proposed section 23.7). As changes 
occur, these sources can be more quickly and easily updated than 
issuing a revised rule.
    Purposes (section 23.1): This proposed section outlines the aim of 
CITES as stated in the preamble to the Treaty. The Parties acknowledge 
that wildlife and plants have aesthetic, scientific, cultural, 
recreational, and other nonconsumptive values as well as economic 
importance. One commenter stated that the ESA is different from CITES 
and did not understand the reference to the ESA in this section. We 
agree that CITES and the ESA are different. However, the ESA is the 
U.S. law that provides the authority for the United States to carry out 
its responsibilities under CITES.
    Scope (section 23.2): This proposed section consists of a table 
with a series of questions and answers to help people determine if 
CITES regulations apply to their proposed activities. Decisions involve 
whether a specimen is listed by CITES, is exempt from CITES, is 
involved in a type of international trade regulated by CITES, and was 
illegally acquired or traded in contravention of CITES.
    The possession and domestic trade of legal specimens are not 
regulated by CITES unless the specimens had been traded internationally 
under specific

[[Page 20172]]

conditions of a CITES document and the conditions still apply. The 
possession and domestic or international trade of illegally imported 
specimens, however, are prohibited. Further, any possession of 
offspring of illegal specimens is also considered illegal. Two 
commenters considered this statement concerning offspring to be 
unacceptable, with one of the commenters suggesting that we establish a 
grace period for illegal offspring. We do not agree with this 
suggestion since we treat specimens traded contrary to CITES the same 
as other forms of illegally acquired goods. A specimen that has been 
traded contrary to CITES becomes contraband at the time it enters the 
jurisdiction of the United States. If such a specimen makes its way 
into the United States, the individual or business holding or having 
control of the specimen has no custodial or property rights to the 
specimen and, therefore, no right to possess, transfer, breed, or 
propagate such specimens.
    One commenter expressed confusion as to why we had included 
intrastate and interstate trade if this regulation applies only to 
international trade. Although CITES regulates international trade, we 
wanted to ensure that the public knows that it is unlawful under 
section 9(c)(1) of the ESA to possess any CITES specimen that was 
traded contrary to CITES. We clarify that intrastate or interstate 
movement of specimens traded contrary to CITES involves possession of 
unlawfully traded specimens and is, therefore, prohibited.
    We further note that these prohibitions are not new with this 
proposed rule. The regulatory requirements for CITES specimens, 
including possession, have been in place since 1977, and the statutory 
prohibition has been in effect since July 1975.
    Other applicable regulations (section 23.3): We reference in this 
proposed section applicable regulations in other parts of subchapter B 
and title 50 since many CITES species are covered by one or more other 
laws. One commenter suggested that we include other Federal laws, such 
as the Marine Mammal Protection Act (MMPA) Amendments of 1994, the 
Rhinoceros and Tiger Conservation Act (RTCA), and the African Elephant 
Conservation Act (AECA). We did not adopt this suggestion. The MMPA 
regulations contained in 50 CFR part 18 are already referenced, and 
permit requirements are administered consistent with the 1994 
Amendments to the MMPA. The AECA contains prohibitions that affect the 
trade in African elephant ivory, and the RTCA contains prohibitions 
regarding the import, export, and sale of products containing or 
labeled or advertised as containing products derived from rhinoceros 
and tiger, but these laws have no separate implementing regulations. 
This section refers readers to other regulations that might apply to 
CITES species and is not the appropriate place to cross-reference all 
laws that may have an impact on trade.
    Another commenter suggested that we include a reference to State 
and local regulations. Since all CITES documents issued by us are 
conditioned such that all applicable State, tribal, and local 
requirements must be met, we propose to add a new paragraph (d) to 
notify the public about the possible application of these laws. Under 
Article XIV(1)(a) of the Treaty, each Party retains the right to adopt 
stricter national measures that regulate or prohibit the import, 
export, taking, possession, or transport of CITES species. More 
restrictive State or local laws that regulate or prohibit the import, 
export, or re-export of such species, or their parts, products, or 
derivatives, must be observed for CITES species that are not listed 
under the ESA. See H.J. Justin & Sons, Inc. v. Deukmejian, 702 F.2d 758 
(9th Cir. 1983), cert denied, 464 U.S. 823. However, in instances where 
a CITES species is also listed as endangered or threatened under the 
ESA, any State or local law that would effectively prohibit the import 
or export of, or interstate or foreign commerce in, specimens of such 
species is void to the extent that such trade is authorized under the 
ESA, its implementing regulations, or any ESA permit or exemption. See 
16 U.S.C. section 1535(f); Man Hing Ivory & Imports, Inc. v. 
Deukmejian, 702 F.2d 760 (9th Cir. 1983).
    Appendices I, II, and III (section 23.4): Species are listed in one 
of three Appendices that provide for different levels of regulation and 
have different requirements for permits and certificates (CITES 
documents). This section briefly defines Appendices I, II, and III. One 
commenter stated that all exemptions should be included in this 
section. We revised this section to provide the basic definitions for 
the Appendices based on those in the Convention rather than discuss 
exemptions in this section. Exemptions that may apply are discussed in 
proposed section 23.20(d).
    Definitions (section 23.5): We propose to add a number of 
definitions. Whenever possible we have defined terms using the wording 
of the Treaty and the resolutions. Most defined terms are included in 
this section, but some less frequently used terms are defined in the 
section that applies to a specific situation. For example, ``caviar'' 
is defined in section 23.71 on trade in sturgeon caviar, not in the 
general definition section.
    Definition of applicant: One commenter suggested that we define 
``applicant'' to exclude any person acting solely as a freight broker, 
freight consolidator, customhouse broker, or carrier. The commenter 
suggested that we should not issue permits to these entities because 
they are not the owners of the specimen and are not required to have 
import/export licenses. Although in most instances the applicant is the 
owner of the specimen, we decline to make ownership a requirement for 
obtaining a permit. We believe that an entity, such as a broker, is not 
precluded from being an applicant just because he or she is not 
required to obtain an import/export license under 50 CFR part 14.
    We are not proposing to define ``applicant'' in this part since the 
general permit regulations in 50 CFR 13.1 provide sufficient guidance 
concerning the applicant. An applicant must have a valid connection to 
the transaction and be the person who is responsible for meeting the 
terms and conditions of the permit. When a broker, attorney, 
taxidermist, or other person applies for a permit on behalf of the 
owner of the specimen, he or she must establish a connection to the 
transaction through a contract or power of attorney and, along with the 
person represented, becomes the responsible party to meet the terms and 
conditions of the permit.
    Definitions of bred for commercial purposes and bred for 
noncommercial purposes: We propose to define these two terms as they 
relate to the export and re-export of Appendix-I wildlife specimens. 
These definitions are the result of in-depth discussions by the Parties 
over the registration of commercial breeding facilities, which resulted 
in the adoption of Resolution Conf. 12.10 (Rev. CoP13). The Treaty 
provides in Article VII(4) that specimens of Appendix-I species bred-
in-captivity for commercial purposes shall be deemed to be in Appendix 
II (see proposed section 23.46). It also provides in Article VII(5) 
that specimens that are bred-in-captivity may be issued an exemption 
certificate (see proposed section 23.41). Although the Treaty does not 
use the term ``bred for noncommercial purposes'' in this paragraph, the 
Parties have agreed to use this term as the intended meaning of Article 
VII(5) because Article VII(4) addresses bred for commercial purposes. 
In Resolution Conf. 12.10 (Rev. CoP13), the Parties agreed to strict 
definitions for these two terms.

[[Page 20173]]

Facilities that are breeding for commercial purposes must be registered 
to export specimens. Facilities that are breeding for noncommercial 
purposes must be participating in a cooperative conservation program 
with one or more of the range countries for that species.
    Definition of captive-bred: We propose to define this term to help 
distinguish wildlife bred and born in captivity from the CITES 
definition of ``bred-in-captivity.''
    Definitions of coral (dead, fragments, live, coral rock, and coral 
sand): The Parties agreed at CoP11 to a number of definitions of coral 
because of its unique nature, namely that coral skeletons are 
persistent and that coral forms the foundations of reefs. The 
definitions provide the basis of whether CITES regulates a specific 
form of coral and what scientific name must appear on CITES documents.
    Definition of country of origin: The term ``country of origin'' is 
defined in 50 CFR 10.12. We are proposing to define the term in section 
23.5 for CITES purposes to include plants. At CoP13, the Parties agreed 
that, in the case of a plant specimen that ceases to qualify for an 
exemption under CITES (e.g., plants grown from exempt seeds), the 
country of origin would be the country in which the specimen ceased to 
qualify for the exemption. One commenter opposed the inclusion of 
plants in the definition of ``country of origin'' because a person 
cannot determine country of origin for artificially propagated species 
or parental stock of orchid hybrids. We propose to adopt the definition 
to include plants since CITES requires us to obtain and report 
information on country of origin for specimens in international trade. 
The country of origin is an important piece of information used to 
evaluate the impact of trade and to track the legal movement of 
wildlife and plants. We note that the United States would be the 
country of origin for plants artificially propagated in the United 
States.
    Definitions of import, export, re-export, international trade, and 
shipment: We use these basic terms throughout the regulations and 
define them to reflect the way the terms are used by the Parties. These 
definitions refer to international movement of wildlife and plant 
specimens, whether the purpose is commercial or noncommercial. 
``Import'' and ``export'' are further defined in 50 CFR part 14. We 
have also defined the term ``shipment'' to eliminate confusion.
    Definition of introduction from the sea: In 2000, we proposed to 
define this term. One commenter wanted us to re-examine the proposed 
definition since considerable discussion of the term occurred at CoP11. 
We believe, however, that it is important to define the term in the 
regulations at this time with the language in Article I(e) of the 
Treaty. We recognize that the Parties may decide on an interpretation 
of this term in the future, but in the meantime the regulations need to 
clarify when the prohibition applies and when and what types of CITES 
documents are needed for international trade. Over the last few years, 
a number of important events have occurred related to introduction from 
the sea. At CoP11 and CoP13, the Parties considered proposed 
resolutions on introduction from the sea and were unable to reach 
consensus on a definition. At CoP12, the Parties agreed to look at 
marine issues, including introduction from the sea, in consultation 
with the Food and Agriculture Organization of the United Nations (FAO). 
In May and June of 2004, FAO convened two Expert Consultations to 
consider introduction from the sea and other issues related to marine 
species covered by CITES. At CoP13, the Parties agreed to convene a 
workshop on introduction from the sea, taking into account the work 
done through FAO and the relevant documents and discussions from 
previous CoPs. The workshop was held in November-December 2005. The 
CITES Secretariat will prepare a document on introduction from the sea, 
based on discussions at the workshop, for consideration by the Parties 
at CoP14.
    Definitions of Management and Scientific Authorities: The current 
regulations (section 23.3) define the Management Authority in terms of 
Parties only and do not define Scientific Authority. We propose to 
define both and to include non-Parties in the definitions. If non-
Parties wish to trade with Parties, they must have entities officially 
designated that fulfill the roles of Management and Scientific 
Authorities to make the required findings and to issue comparable CITES 
documents. One commenter stated that including non-Parties in the 
definition of Management and Scientific Authorities is incorrect under 
the Convention, has no basis in current law, and would violate the 
Administrative Procedure Act. We do not agree, and we endorse the steps 
taken by the CITES Secretariat to ask non-Parties that wish to trade 
with Parties to provide information on what authority is competent to 
provide comparable findings and documentation. See the discussion in 
the preamble on non-Party documents (section 23.25).
    Definition of parental stock: In 2000, we proposed to define the 
terms ``founder stock'' and ``parental stock.'' However, we now propose 
no longer to use the term ``founder stock'' in these regulations 
because the term is not used in the resolutions adopted by the CITES 
Parties. Thus, based on the language in Conf. 9.19 (Rev. CoP13) on 
nursery registration and Conf. 12.10 (Rev. CoP13) on registration of 
operations that breed Appendix-I wildlife for commercial purposes, we 
are proposing to use the term ``parental stock'' to mean the original 
breeding or propagating specimens that produced subsequent generations 
of captive specimens.
    Definitions of permit, certificate, CITES document, and CITES 
exemption document: The text of the Treaty uses the terms ``permits'' 
(for import and export) and ``certificates'' (for re-export, 
exemptions, certificates of origin, and introduction from the sea) in 
referring to documents issued by a CITES Management Authority. However, 
some Parties refer to all CITES documents as ``permits.'' For this 
reason, we propose to define the term ``CITES documents'' to refer to 
all permits and certificates that are issued by a Management Authority. 
We also propose to expand the definition of ``permit'' in this section 
from the definition of ``permits'' in 50 CFR 10.12 to include documents 
issued by any Management Authority, not just documents ``issued by the 
FWS.''
    Definition of precautionary measures: When there is uncertainty 
regarding the status of a species or the impact of trade on the 
conservation of a species we are cautious and act in the best interest 
of the conservation of the species in making decisions on CITES 
listings and permit findings. We define and use the term 
``precautionary measures'' to describe this approach. One commenter 
stated that the definition is ambiguous and appears to be a new policy. 
It is not a new policy. While the proposed definition is taken from the 
concept described in Annex 4 of Resolution Conf. 9.24 (Rev. CoP13), we 
use it in these regulations because it describes the way we have always 
approached non-detriment findings and species listing decisions when 
there is uncertainty regarding the status of a species or the impact of 
trade on the conservation of a species. The use of precautionary 
measures in these instances is consistent with the intent of the 
Treaty, which is to protect species against over-exploitation. We 
disagree that the definition is ambiguous and we believe the proposed 
definition represents an important concept in the effective 
implementation of CITES.

[[Page 20174]]

    Definition of ranching: We are not proposing to define the term at 
this time. At CoP13, the Animals and Plants Committees (committees 
established by the Parties to provide administrative and technical 
support to the Parties and to the Secretariat) were tasked with looking 
at production systems, including the consideration of source codes, 
which include ``R'' for ranching.
    Definition of readily recognizable: Although this term is used in 
Article I of the Treaty, it is not specifically defined. However, 
Resolution Conf. 9.6 (Rev.) defines the term, and we have based our 
proposed definition on the text of the resolution. Several commenters 
supported the inclusion of this definition in the regulations. Another 
commenter suggested that we use the CITES term ``derivatives'' in the 
definition. Although the term ``derivative'' is not commonly used in 
the United States, we accepted the commenter's suggestion since the 
term is used in the Treaty.
    Based on questions we routinely receive from the public, we wish to 
clarify here that venom is considered a readily recognizable product, 
and that antivenin, which is either produced from non-CITES listed 
species or produced synthetically, is not subject to CITES.
    Definition of specimen: We used the definition of ``specimen'' 
given in the Treaty to clarify that, under these regulations, the term 
refers only to species listed in any of the CITES Appendices.
    Definition of sustainable use: We propose to define this term as 
the use of a species in a manner and at a level that maintains wild 
populations at biologically viable levels for the long term. It is 
essentially the same definition used in 50 CFR part 15 under the WBCA. 
The wording has been slightly edited to be consistent with language 
used in these regulations. One commenter thought it was inappropriate 
to use the definition from the WBCA because the CITES non-detriment 
finding is narrower than the WBCA finding. We point out that the WBCA's 
primary purpose is to encourage and support effective implementation of 
CITES. The non-detriment finding is the same under both, and the 
concept of sustainable use remains the same, regardless of context.
    Two commenters argued that the definition of ``sustainable use'' is 
excessive for meeting the non-detriment finding for the issuance of 
permits. We believe that sustainable use is the essence of a CITES non-
detriment finding, and these proposed regulations provide a clear, 
scientifically based definition of the term. An exporting country can 
make a finding of non-detriment only if it can show that a given level 
of harvest is consistent with the long-term viability of the species. 
This finding must be based on professionally recognized management 
practices and the best available biological information. The Parties 
adopted Resolution Conf. 12.8 (Rev. CoP13), which provides for review 
of significantly traded species, to ensure that countries exporting 
those species have made the appropriate findings and the export levels 
are sustainable. Countries with species subject to this review must 
demonstrate the scientific basis for the quantity of exports they are 
allowing.
    One commenter stated that the terms ``ecosystem'' and ``role or 
function of a species in its ecosystem'' do not appear in the Treaty. 
We note these terms are used in Article IV(3) of the Convention, which 
specifically requires the Scientific Authority of each Party to 
determine whether exports of specimens of a species ``* * * should be 
limited in order to maintain the species throughout its range at a 
level consistent with its role in the ecosystems in which it occurs * * 
*'' Although the phrase ``or function'' does not appear in the text, it 
is implicit since a species' function relates to its role. Another 
commenter thought it was too burdensome to require an applicant to 
provide information on a species' role and function in the ecosystem. 
See the discussion in the preamble on non-detriment findings (section 
23.61).
    One commenter stated that the proposed definition precluded the use 
of adaptive management. We believe the use of adaptive management could 
fit under this definition in certain circumstances. Under adaptive 
management, production rates are monitored and the amount of harvest 
allowed is commensurate with increases and decreases in productivity of 
the species. Thus, Parties could use adaptive management in terms of 
changing decisions if new information becomes available. Adaptive 
management, however, does not imply that when there are gaps in 
information the assumption would be that trade would be sustainable.
    Two commenters contended that the proposed definition will require 
range countries to undertake costly studies to demonstrate the 
productive capacity of the species and its ecosystem. The proposed 
definition does not dictate the type of studies a country needs to 
conduct, only that the use of a species must allow for the maintenance 
of viable population levels for the long term. Exporting countries must 
conduct some level of monitoring of productivity and impact of harvest 
to determine whether exports are detrimental to the survival of the 
species. Resources are needed for a country to manage species 
sustainably, and only a range country can determine whether the 
expenditure of resources is cost effective relative to the benefits of 
trade.
    Definition of trade: One commenter stated that the definition of 
``trade'' should not include both commercial and noncommercial 
shipments and should be based on economic value or intent since there 
is conservation value in a healthy public interest in natural history. 
The commenter believed that, by not discriminating between commercial 
trade and noncommercial activities, we are failing to adequately 
protect species and are promoting inconsistency and confusion in 
enforcement.
    Our proposed definition of ``trade'' is based on Article I(c) of 
the Treaty, which explicitly states that ``trade'' means ``export, re-
export, import and introduction from the sea.'' We propose to define 
``trade'' to include both commercial and noncommercial transactions 
since there is no mention of intent in the Treaty definition. CITES and 
our proposed regulations, however, afford greater flexibility to 
noncommercial shipments, such as through the registration of scientific 
institutions and the limited exemption for personal and household 
effects. We believe this broad definition of ``trade'' and the 
flexibility recognized by CITES and our proposed regulations provide 
consistency, assist in enforcement, and offer a system that promotes 
species conservation.
    Management and Scientific Authorities (section 23.6): Under Article 
IX of the Treaty, each Party must designate at least one Management 
Authority and one Scientific Authority. In the United States, these 
authorities have been delegated by the Secretary of the Interior and 
the Director of the FWS to different offices within the FWS. We propose 
to add a section to summarize the major roles of these authorities in 
the United States. The roles include a wide range of activities, such 
as the issuance and denial of permits; making scientific and management 
findings; monitoring of trade and trade impacts; communication with the 
Secretariat and other countries on scientific, administrative, and 
enforcement issues; and evaluation of species' status and trade. 
Another role is to provide training and technical assistance to 
countries when possible (Resolution Conf. 3.4 on Technical 
cooperation). Other Federal

[[Page 20175]]

agencies also play a role in CITES efforts, for example in 
communicating with the Secretariat and representing the United States 
at CITES meetings.
    One commenter noted that there appears to be duplication in the 
roles of the Management and Scientific Authorities as shown in the 
chart. We note that, although there is some interrelationship in 
activities carried out by the Management and Scientific Authorities, 
the focus of these activities and the expertise of both offices are 
different. Within the broad categories, the Management Authority is 
responsible for dealing primarily with management and regulatory 
issues, and the Scientific Authority is responsible for dealing 
primarily with scientific issues. Text was added to the proposed rule 
to show this distinction.
    Another commenter urged the addition of a clause in the regulations 
requiring Management and Scientific Authorities to fulfill their roles 
as required under the Treaty. We do not believe this is necessary. 
These offices are charged with the responsibility of fulfilling certain 
roles under the Treaty by their designation as Management and 
Scientific Authorities.
    Contact information (section 23.7): The table in this proposed 
section outlines the type of information available from the U.S. 
Management Authority, U.S. Scientific Authority, Law Enforcement, 
APHIS, CBP, and the Secretariat, and the different ways you can contact 
each office. APHIS is the contact office for information on plant 
clearance procedures even though the formation of CBP split CITES 
responsibilities for import and export of plants. CBP inspects and 
clears shipments of dead CITES plant materials being imported into the 
United States and live plants being imported from Canada at a 
designated border port. CBP also identifies and regulates CITES 
materials in passenger baggage, including live plants. APHIS continues 
to inspect and clear shipments for the export and re-export of live and 
dead plants, and the import of live plants, except for live plants 
being imported from Canada at a designated border port.
    One commenter stated that this section should also contain contact 
information for the National Marine Fisheries Service and information 
on import, export, possession, and sale of marine mammal parts and 
products under the MMPA. We disagree because the purpose of these 
regulations is to explain and implement CITES. To assist those dealing 
with such species, we provided information in proposed section 23.3 on 
where to find those requirements. Persons with questions about CITES 
compliance should contact the office identified in this section. 
Persons with questions about other laws that apply should contact the 
office that is responsible for administering those laws.
    Information collection (section 23.8): Each information collection, 
including each application form, that we use must be reviewed and 
approved by the Office of Management and Budget under the Paperwork 
Reduction Act. These information collections undergo review every 3 
years. This process gives the public an opportunity to provide input 
concerning the amount of time it takes to complete the forms and 
reports and to prepare the information requested. One commenter 
suggested that the term ``amend'' be added to paragraph (c). We made 
this revision to the new proposed rule to make the paragraph consistent 
with 50 CFR 13.23.

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

    In this proposed subpart, we detail the activities that are 
prohibited, circumstances when exemptions may apply, and requirements 
for international movement of specimens. CITES uses a system of 
documents to ensure that trade in protected species is legal and does 
not threaten the survival of wildlife or plant species in the wild. The 
Treaty outlines standardized information that needs to be included on 
these documents, and based on experience in inspecting shipments and 
enforcing CITES, the Parties have adopted a number of resolutions to 
refine the types of information that need to be included on documents 
for Parties and non-Parties.
    Prohibitions (section 23.13): We are proposing minor changes to the 
prohibitions section in the current regulations. This section 
implements the prohibitions on international trade under CITES. We 
listed ``introduction from the sea'' separately from ``import'' to 
clarify that CITES treats these activities differently. We added the 
phrase ``engage in international trade'' to the list of prohibitions to 
clarify that international trade in specimens in violation of these 
regulations by any person subject to U.S. jurisdiction is prohibited 
even if specimens are not actually imported into or exported from the 
United States.
    One commenter supported the language ``engaging in international 
trade,'' whereas two commenters opposed it. Several commenters 
expressed confusion over how this activity could be regulated. The 
regulatory language is derived from the language in section 9(c)(1) of 
the ESA, which makes it unlawful for any person subject to the 
jurisdiction of the United States to engage in trade contrary to the 
provisions of CITES. The ESA does not limit this prohibition to import 
into or export from the United States, but further requires U.S. 
citizens, and others subject to U.S. jurisdiction, engaging in trade 
outside of the United States to abide by CITES requirements as a matter 
of U.S. law. Although this activity may be difficult to detect, we will 
take enforcement action when appropriate. For example, a U.S. company 
engaging in illegal international trade of tiger products could be 
found in violation of this section even if the items never entered the 
United States.
    One commenter suggested that the prohibition on engaging in trade 
should apply only to intentional acts. We disagree because the 
prohibitions in section 9(c)(1) of the ESA do not recognize an 
exception for unintentional conduct. Further, penalties and enforcement 
provisions that address CITES violations already distinguish between 
violations that are knowingly or intentionally committed and those that 
are not.
    One commenter opposed the prohibition on possession and stated that 
simple possession should not be a violation. We agree that possession 
alone is not a violation. However, the regulations specifically 
implement the statutory language that prohibits possession of any 
specimen traded contrary to the provisions of CITES. If a specimen was 
traded in violation of CITES, any possession of that illegally traded 
specimen is prohibited.
    Several commenters questioned whether ``possession'' and ``traded 
contrary to CITES'' were considered prohibitions just because there was 
no positive documentation provided in an application to the U.S. 
Management Authority. The lack of supporting documentation in a permit 
application does not necessarily mean a specimen is illegally possessed 
or has been traded contrary to CITES. However, we may not be able to 
make the required findings or issue CITES documents if there is a lack 
of documentation or other evidence showing legality (see the discussion 
in the preamble for proposed section 23.60).
    Personal and household effects (section 23.15): Article VII(3) of 
the Treaty provides for the import, export, or re-export of specimens 
that are personal or household effects without CITES documents under 
certain circumstances. We propose to clarify the

[[Page 20176]]

current regulations (section 23.13(d)) based on our experience in 
administering the Convention and Resolution Conf. 13.7. This section 
details the circumstances under which a person may travel with personal 
items of CITES wildlife and plants worn as clothing or accessories, or 
contained in accompanying luggage. It also details how a person may 
move personal items of CITES wildlife and plants from one country to 
another as part of a change of residence. We propose to define 
``personal effects'' and ``household effects'' in section 23.5. Based 
on one commenter's recommendation, we clarify that we consider 
qualifying tourist souvenirs to be personal effects.
    In Resolution Conf. 13.7, the Parties agreed not to require CITES 
documents for personal or household effects of dead specimens, parts, 
products, or derivatives of Appendix-II species unless a Party requires 
a CITES document. Parties are to notify the Secretariat if they require 
CITES documents for personal and household effects, and the Secretariat 
will maintain a list on the CITES Web site. Importing countries would 
generally assume that an export permit is not required if the exporting 
country had not notified the Secretariat otherwise. For species covered 
by the Lacey Act, however, the United States would require an export 
permit if a Party requires such a permit even if the Party had not 
notified the Secretariat of the requirement. It is the responsibility 
of the importer to consult with the exporting country to determine 
whether an export permit is needed in such instances.
    For certain species, the Parties also agreed to numerical limits of 
specific types of specimens that qualify as personal and household 
effects. These specimens include sturgeon caviar, seahorse and 
crocodilian products, giant clam and queen conch shells, and 
rainsticks. We note that if someone wants to import, export, or re-
export more than the quantity designated in the regulations, the 
specimens no longer qualify for the personal effects exemption, and 
they must be accompanied by a valid CITES document for the entire 
quantity. For example, if a person is bringing in more than 250 grams 
of caviar, a CITES document is required that covers the entire amount, 
not just the amount over 250 grams. If a person arrives in the United 
States with 265 grams of sturgeon caviar without a CITES document for 
265 grams, the whole amount would be subject to seizure. The importer 
would not be allowed to keep 250 grams as a personal effect.
    We propose to exclude live wildlife and plants (including eggs and 
non-exempt seeds) and most Appendix-I specimens from the exemption. The 
drafting history of CITES, as well as significant debate that occurred 
at CoP4, clearly supports the view that this exemption applies only to 
dead items, such as clothing or jewelry, that are being used by an 
individual for personal needs and are not for resale. In addition, few 
countries allow the import or export of Appendix-I specimens, including 
personal pets, without CITES documents. In the United States, many 
Appendix-I species are also listed under the ESA and other laws that do 
not provide an exemption for personal or household effects. Therefore, 
to assist in the enforcement of the Convention and to reduce the risk 
to Appendix-I spec