FWS Proposes to Update Regs to Align with CITES Rules, Etc.

(The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) entered into force in 1975 and currently has 175 member countries, including the U.S. CITES works by subjecting international trade in specimens of selected species to certain controls. All import, export, re-export and introduction from the sea of species covered by CITES has to be authorized through a licensing system. The species covered by CITES are listed in three Appendices, according to the degree of protection they need.¹)

Proposed Changes Would Clarify How to Comply with Permit Requirements, Etc.

According to the FWS, the proposed rule changes would bring U.S. regulations in line with revisions adopted at the most recent meetings of the Conference of the Parties, which took place in June 2007 (CoP14) and March 2010 (CoP15). The revised regulations would help the FWS more effectively promote species conservation and continue to fulfill its responsibilities under the Treaty. They would also clarify language and otherwise make it easier for the public to understand how to comply with permit requirements for trade in protected species.

The following are highlights of the proposed changes to the regulations in 50 CFR Parts 13, 17, and 23 (see proposed rule for complete list of changes):

Definitions of Selected Terms

Bred for commercial purposes, etc. The current definition of ‘‘bred for noncommercial purposes’’ specifies that a specimen only qualifies to be treated as bred for noncommercial purposes and therefore eligible for an exemption certificate, if every donation, exchange, or loan of the specimen is between facilities that are involved in a cooperative conservation program. FWS proposes to remove the requirement that the trade be conducted between facilities that are involved in a cooperative conservation program and, consequently, remove the definition of "cooperative conservation program" from the regulations. This change would allow an Appendix-I specimen that was bred in captivity to be traded under a CITES exemption certificate where each donation, exchange, or loan of the specimen is noncommercial.

Sport-hunted trophies. CoP15's definition of "hunting trophy" allows manufactured items derived from a hunted animal to be considered part of a hunting trophy, whereas FWS regulations specifically exclude such items. FWS continues to have concerns about the possible import of fully manufactured products as part of a 'hunting trophy" when the items were actually purchased at a store or from a taxidermist, for example, and were not made from the sport-hunted trophy animal. Therefore, FWS proposes to incorporate the CoP15 definition with some additional text to clarify the conditions under which FWS will allow the import into the U.S. of manufactured items as part of a "hunting trophy". (See proposed 50 CFR 23.74 for proposed definition and import conditions.)

Corals. FWS proposes to amend its definitions of "coral (dead)," "coral fragments," "coral (live)," and "coral sand" by adding text contained in the coral definitions from CoP15 regarding the level to which certain coral specimens are identifiable. In addition, FWS proposes to add a definition of "coral (stony)" consistent with CoP15 to clarify that the coral definitions in 50 CFR 23.5 apply to stony corals in the orders Helioporacea, Scleractinia, Stolonifera, Milleporina, and Stylasterina. FWS proposes to further revise the definitions of "coral fragments" and "coral sand" to clarify the size of a specimen that meets these definitions and may therefore be considered exempt from the provisions of CITES. FWS also proposes the same clarification for the definition of "coral rock."

Cultivar. FWS proposes to amend the definition of "cultivar" in 50 CFR 23.5 to more closely match the definition adopted by the Parties at CoP15, in which cultivar means "a horticulturally derived plant variety that: (a) has been selected for a particular character or combination of characters; (b) is distinct, uniform, and stable in these characters; and (c) when propagated by appropriate means, retains these characters. The cultivar name and description must be formally published in order to be recognized under CITES."

Sturgeon caviar. FWS proposes to amend its definition of ‘‘sturgeon caviar’’ to clarify that it refers to roe processed for human consumption, the commonly understood meaning of the term, and does not include sturgeon or paddlefish eggs or extracts contained in shampoos, cosmetics, lotions, or other products for topical application.

CITES Documentation Requirements

Electronic docs must also be issued in print. The proposed rule would amend 50 CFR 23.23(b), which currently indicates that a CITES document must be ‘‘printed,’’ to reflect the CoP15 agreement that CITES documents may be issued in an electronic format. While the Parties agreed that it was possible to issue CITES documents electronically, they also recognized that there is no obligation on Parties to do so. Unless there is specific agreement by all Parties involved that electronic documents are acceptable, Parties issuing electronic documents must also issue them in paper format.

FWS may request verification of CITES docs. FWS proposes to add the following three additional circumstances in 50 CFR 23.26(d) for which the agency may request verification of a CITES document: (1) if a CITES document is issued for a species with an annotated quota that raises concerns about the validity of the shipment; (2) for a shipment of captive-bred Appendix-I wildlife when the specimens did not originate from a breeding operation that is registered with the CITES Secretariat and FWS has reason to believe the import is for commercial purposes; and (3) a CITES export document on which the actual quantity exported has not been validated or certified at the time of export.

Cancellation & collection of docs for wildlife shipments. FWS proposes to add text from the CITES Treaty to 50 CFR 23.27 to highlight the requirement for Management Authorities² to cancel and retain original CITES documents upon import. FWS also proposes to clarify that authorized inspecting officials for imports into the U.S. of CITES-listed plants are responsible for the cancellation and collection of original documents for submission to the U.S. Management Authority. (FWS collects original CITES documents accompanying wildlife shipments entering the U.S. and makes them available to the U.S. Management Authority. U.S. Customs and Border Protection (CBP) and the Animal and Plant Health Inspection Service (APHIS) collect original CITES documents accompanying imports of CITES-listed plant specimens for submission to the U.S. Management Authority.)

FWS also proposes to clarify that individuals may not use one of the documents issued under a master file³ or annual program as a replacement document, but must apply for and receive a separate replacement document.

Issuance & acceptance of replacement docs. FWS proposes to clarify the procedures and amend the criteria in 50 CFR 23.52 for issuance and acceptance of replacement CITES documents in the U.S. Since the 2007 CITES regulations, FWS has experienced situations in which individuals have significantly delayed submission of required documents for clearance of a shipment while they tried to obtain a replacement document without FWS' knowledge. In addition, importers or their agents have attempted to submit "replacement" documents when no document had ever been issued or when the original document was invalid.

FWS proposes to more closely align the criteria for issuance and acceptance of replacement CITES documents in the U.S. with those for issuance and acceptance of retrospective documents found in 50 CFR 23.53. Proposed amendments to the criteria include: requirements that specimens are presented to the appropriate official at the time of import and that the request for a replacement document is made at that time; the need for proof of original valid documents; and a statement of responsibility. FWS also proposes to clarify that individuals may not use one of the documents issued under a master file or annual program as a retrospective document, but must apply for and receive a separate replacement document.

Issuance & acceptance of retrospective docs. In certain limited circumstances, CITES documents may be issued and accepted to authorize an export or re-export that has already occurred or to correct technical errors on a document accompanying a shipment that has already occurred. FWS proposes to add text to 50 CFR 23.53 to clarify that FWS may issue or accept a retrospective document in circumstances where a technical error was made by the issuing Management Authority at the time the original document was issued.

New applications for export permits. Since FWS regulations were last updated, FWS has created two new application forms tailored to specific activities to facilitate the application process: (1) one for the export of sturgeon and sturgeon products from aquaculture facilities; and (2) another for establishment of a master file for the export of live animals that qualify as bred-in-captivity. FWS proposes to add these new applications to the table in 50 CFR 23.36 which lists the types of applications (and FWS form numbers) for export permits and to update the entry in the table for export trophies to make clear that it can be used by both hunters and taxidermists.

Humane-transport standards. FWS currently requires that CITES export and re-export documents for live wildlife contain a specific condition that the documents are only valid if the transport complies with the humane-transport standards in the CITES Guidelines, which have not been updated since 1981, and International Air Transport Association (IATA) live animals regulations, which are amended annually. As IATA regulations are more responsive to changing needs, FWS proposes to remove reference to the CITES Guidelines and incorporate by reference the IATA regulations as the standards for the transport of CITES-listed animals and plants.

Higher-taxon names for black coral. The Parties have agreed to a few specific exceptions to the requirement that specimens be identified on CITES documents using the scientific name of the species to which they belong. CoP15 allowed the use of higher-taxon names for worked specimens of black coral and agreed that it may be identified at the genus level when the species cannot be readily determined, and by the order Antipatharia when the genus cannot be readily determined. FWS proposes to revise 50 CFR23.23(c)(13)(i) to allow the use of higher-taxon names for worked specimens of black coral. However, FWS will continue to require that raw black coral and live black coral be identified at the species level.

Ranched specimen. Prior to CoP15, FWS considered any specimen that had been removed from the wild at an early age and raised in captivity to be wild-caught, and as a result, FWS used the source code ‘‘W’’ when issuing CITES documents for these specimens. FWS proposes to incorporate into its regulations the definition of ‘‘ranched specimen’’ that was adopted at CoP15. Many of the specimens FWS previously considered ‘‘wild’’ would qualify as ‘‘ranched’’ under the new definition. FWS also proposes to add an entry to the table in 50 CFR 23.34 describing the types of records an applicant may want to provide to demonstrate that his or her specimens qualify for issuance of a CITES document with source code ‘‘R’’ (ranched wildlife).

Wildlife hybrids. 50 CFR 23.43 allows for an exemption from CITES document requirements for hybrid wildlife specimens that meet specific criteria. FWS proposes to clarify that an individual who is unable to clearly demonstrate that his or her wildlife specimen meets the criteria for an exempt hybrid must contain a CITES document. Since 2007, FWS has experienced problems at the ports with individuals claiming the exemption for hybrids without documentation to clearly demonstrate that their specimens meet the criteria. FWS proposes to provide examples of the types of records an individual may use to demonstrate that a particular specimen meets the exemption criteria.

FWS also proposes to revise the list in 50 CFR 23.55(d) of Appendix-I specimens imported with a CITES exemption document that may be used for any lawful purpose after import (unless other restrictions apply), by adding hybrid plants derived from one or more unannotated Appendix-I species exported under a certificate for artificially propagated plants (with a source code ‘‘A’’). The CITES Parties have agreed that such specimens are regarded as being included in Appendix II.

Treatment of CITES Specimens After Import

Change in listing status after import. FWS has given further consideration to the allowed use of a specimen within the U.S. when the listing status of the species changes after a specimen has been imported. FWS proposes to amend this section to clarify that the allowed use after import into the U.S. is determined by the current status of the specimen under CITES and the ESA, except for a specimen of an Appendix-I species or an Appendix-II species annotated for noncommercial purposes that was imported before the species was listed in Appendix I or listed in Appendix II with an annotation disallowing commercial use.

• Movement to higher appendices. If an Appendix-II specimen is imported with no restrictions on its use and the species is subsequently transferred to Appendix-I, if an individual can demonstrate that his or her specimen was imported with no restrictions on its use after import, prior to the species being listed in Appendix I (or Appendix II if not previously listed) with a relevant annotation, FWS proposes to continue to allow its unrestricted use within the U.S.

• Movement to lower appendices. FWS continues to believe that restrictions on the allowed use after import of specimens of Appendix-I species may be relaxed if the status of the species improves and it is subsequently listed in Appendix II or removed from the Appendices. In such a case, the allowed use of the specimen within the U.S. would be determined by the current listing status of the species, not the status of the species at the time it was imported.

Restrictions on use. FWS proposes to add a paragraph to the table in 50 CFR 23.2 to clarify that if a CITES specimen a person possesses or wants to enter into intrastate or interstate commerce is subject to restrictions on its use after import, then the CITES regulations in 50 CFR 23 apply.

Requirements for Commercial Breeding Operations

Eliminate registration requirement. The CITES Treaty provides that specimens of Appendix-I wildlife species bred in captivity for commercial purposes shall be deemed to be specimens of species included in Appendix II. Such specimens can therefore be traded without the need for an import permit. However, current regulations require commercial breeders of Appendix-I wildlife to be registered with the CITES Secretariat in order to export Appendix-I specimens, regardless of the purpose of the import.

FWS proposes to amend the decision tree in 50 CFR 23.18 that helps readers determine what type of CITES document is needed for export of an Appendix-I specimen. Because of the way the decision tree is structured, export of specimens bred in captivity at commercial operations that are not registered with the CITES Secretariat is prohibited, even in small numbers when the intended use of the specimens in the importing country is noncommercial. FWS has concluded that this interpretation is overly restrictive and proposes to amend the decision tree by eliminating the boxes that ask if the export is for noncommercial purposes, which will eliminate the requirement that commercial operations breeding Appendix-I species must be registered with the Secretariat to export specimens under any circumstances.

Replace annual reporting with registration renewal. Current regulations include an annual requirement to facilitate monitoring of registered commercial breeding operations of Appendix-I listed wildlife. FWS proposes to eliminate the annual reporting requirement in 50 CFR 23.46 and establish instead a process for registration renewal. FWS states that the registration renewal would be less burdensome for the registrants, but would allow the agency to monitor those facilities and identify major changes in their operating practices. FWS also proposes to limit the length of time a registration is valid to not more than five years.

Marking & Labeling Requirements

Elephant ivory marking and vicuña labeling. FWS proposes to move the special rules for African elephant trophy-marking and vicuña cloth labeling from 50 CFR 17.40(e) and 50 CFR 17.40(m), respectively, and insert them into 50 CFR 23.74(e) and 23.26.

• Elephant ivory. At CoP15, the Parties adopted a change to the accepted methods for marking elephant ivory to allow the use of new technologies for permanent marking. FWS proposes to incorporate this change into 50 CFR 23.74, which covers international trade in personal sport-hunted trophies, and proposes to clarify the marking requirements for elephant ivory consistent with CoP15. (See proposed rule for full details.)

• Vicuña wool and products thereof. CoP14 most recently amended the labeling requirements for cloth made from vicuña wool and products made from such cloth. FWS proposes to update its labeling requirements to bring them in line with the CITES requirements contained in the current Appendix-II listing annotations for vicuña. The proposed rule would retain the marking requirements in the special rule for shipments of wool sheared from live vicuña because marking of raw wool is not required under CITES. Additionally, current text refers to "raw fiber" to describe shipments of raw vicuña wool. FWS proposes to amend this language by using the term "raw wool" instead of "raw fiber" to more accurately characterize the specimens in trade.

Tagging of fur and crocodilian skins. FWS proposes to amend 50 CFR 23.69 and 23.70 to clarify the appropriate use of CITES replacement tags for CITES fur skins and crocodilian skins. These sections specify that skins with broken, cut, or missing tags may not be exported and provide a procedure for obtaining replacement tags where this is the case. However, the regulations are not intended to allow for the use of CITES replacement tags in place of tags that have been deliberately removed to facilitate processing or for other reasons.

In addition, FWS proposes to incorporate changes to tagging requirements adopted by the Parties at CoP15, including adding ‘‘tamper-resistant’’ to the required characteristics of CITES tags for crocodilians and clarifying that the ‘‘year of production’’ refers to the year of skin production. FWS also proposes to remove the requirement that chalecos must have a tag attached to each flank.

Sturgeon and caviar labeling. FWS proposes to revise 50 CFR 23.71 to provide further guidance on caviar-labeling requirements and the requirements for trade in sturgeon and sturgeon products other than caviar. FWS also proposes to provide information on how U.S. exporters and re-exporters may be added to the ‘‘Register of licensed exporters and of processing and repackaging plants for specimens of sturgeon and paddlefish species’’ maintained by the CITES Secretariat in accordance with CoP14.

¹The three Appendices are as follows: (i) Appendix I includes species threatened with extinction and trade in specimens of these species is permitted only in exceptional circumstances; (ii) Appendix II includes species not necessarily threatened with extinction, but in which trade must be controlled in order to avoid utilization incompatible with their survival; and (iii) Appendix III contains species that are protected in at least one country, which has asked other CITES Parties for assistance in controlling the trade. See more here.

The CITES CoP meets every 2 to 3 years to vote on proposed resolutions and decisions that interpret and implement the text of CITES and on amendments to the lists of species in the CITES Appendices. The Endangered Species Act (ESA) implements the CITES Treaty in the U.S. Current regulations in the U.S. contain provisions from applicable resolutions and decisions adopted at meetings up to and including CoP13, which took place in 2004. In 2008, through a direct final rule, FWS incorporated certain provisions adopted at CoP14 regarding international trade in sturgeon caviar. (See ITT's Online Archives 08072315 for summary.)

²Each Party to CITES must designate one or more Management Authorities in charge of administering the licensing system for trade in CITES-listed species and one or more Scientific Authorities to advise them on the effects of trade on the status of the species.

³A CITES Master File includes files for artificial propagation, biomedical, etc. and covers import, export, and re-export documents.

FWS press released (dated 03/08/12) is available here.

FWS summary of the proposed rule's revisions is available here.

FWS proposed rule is available here, and subsequent correction here.