[Federal Register: July 17, 2008 (Volume 73, Number 138)]
[Rules and Regulations]
[Page 40983-40986]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jy08-15]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 23
[FWS-R9-IA-2008-0003] [96000-1671-0000-P5]
RIN 1018-AV70
Revision of Regulations Implementing the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES); Import and Export of Sturgeon Caviar
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Direct final rule.
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SUMMARY: We, the Fish and Wildlife Service (FWS), are amending certain
provisions related to international trade in sturgeon caviar in the
regulations that implement the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES). We are reducing the
quantity of caviar that may be imported or exported under the CITES
personal effects exemption and amending the requirements for import of
caviar from shared stocks subject to quotas. These changes are not
controversial and will bring U.S. regulations in line with revisions
adopted by consensus at the most recent meeting of the Conference of
the Parties to CITES (June 2007). The revised regulations will help us
more effectively promote species conservation, help us continue to
fulfill our responsibilities under the Treaty, and help those affected
by CITES to understand how to conduct lawful international trade in
sturgeon caviar.
DATES: This rule is effective September 15, 2008 without further
action, unless adverse comment is received or postmarked on or before
August 18, 2008. If we receive adverse comment, then we will publish a
timely withdrawal of the rule in the Federal Register.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: RIN 1018-AV70; Division of Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington,
VA 22203.
We will not accept e-mail or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the
[[Page 40984]]
Public Comments section at the end of SUPPLEMENTARY INFORMATION for
further information about submitting comments).
FOR FURTHER INFORMATION CONTACT: Robert R. Gabel, Chief, Division of
Management Authority; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, Suite 212; Arlington, VA 22203 (telephone, (703) 358-2093; fax,
(703) 358-2280).
SUPPLEMENTARY INFORMATION:
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. Currently 172
countries have ratified, accepted, approved, or acceded to CITES; these
countries are known as Parties.
Section 8A of the Endangered Species Act of 1973, as amended in
1982 (16 U.S.C. 1531 et seq.), 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 Fish and Wildlife
Service. The original U.S. regulations implementing CITES took effect
on May 23, 1977 (42 FR 10465, February 22, 1977), after the first
meeting of the Conference of the Parties (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. The current U.S. CITES
regulations took effect on September 24, 2007, and incorporate
provisions from applicable resolutions and decisions adopted at
meetings of the Conference of the Parties up to and including the
thirteenth meeting (CoP13), which took place in 2004.
Article VII(3) of the Treaty provides for the import, export, or
re-export of specimens that are personal or household effects (see the
definitions in 50 CFR 23.5) without CITES documents under specific
circumstances. For some species, including sturgeon and paddlefish
(Acipenseriformes), the Parties have established limits on the quantity
of certain specimens that may be transported as personal and household
effects. At CoP14, in June 2007, the Parties agreed to reduce the
quantity of sturgeon or paddlefish caviar that may be imported or
exported under the personal effects exemption from 250 grams to 125
grams (see Resolution Conf. 12.7 (Rev. CoP14) and Resolution Conf. 13.7
(Rev. CoP14)). This change was originally recommended by the
International Sturgeon Enforcement Workshop to Combat Illegal Trade in
Caviar (Brussels, 2006) and was endorsed by the United States and
adopted by consensus at CoP14. We are amending 50 CFR 23.15(c)(3)(i) to
incorporate this change.
The Parties also agreed to a new quota-setting process for caviar
from shared stocks, including a change in the quota year so that it
will coincide with the harvest season rather than the calendar year.
Previously, under Resolution Conf. 12.7 (Rev. CoP13), ``Conservation of
and trade in sturgeons and paddlefish,'' caviar from shared stocks
subject to quotas (i.e., the Black Sea, Caspian Sea, and Amur River
basins) had to be exported by the end of the calendar year in which it
was harvested and processed. At CoP14, the Parties agreed that, from
2008 onward, the quota year will begin on the first of March and end on
the last day of February of the following year. Exports of caviar from
shared stocks subject to quotas must take place during the quota year
in which the caviar is harvested and processed.
In addition, the sturgeon resolution was amended to specifically
state that quotas must not be detrimental to the survival of the
species in the wild and to remove the requirement that the Secretariat
must confirm that the quotas have been agreed to by all relevant
countries (see Resolution Conf. 12.7 (Rev. CoP14)). These changes were
adopted by consensus at CoP14. We are amending 50 CFR 23.71(d) to
reflect the relevant changes to the quota-setting process for caviar
from shared stocks.
We are publishing this rule without a prior proposal because this
is a non-controversial action that, in the best interest of the
regulated public, should be undertaken in as timely a manner as
possible. The Parties agreed by consensus that these changes are
appropriate for the conservation of the species and implementation of
the Treaty. As a Party to CITES, the United States has the
responsibility under Article II(4) to ensure that all trade is
consistent with the Treaty, which includes aligning import, export, and
re-export provisions in a timely manner as agreed by the Parties. Thus,
we have good cause to find that standard notice and pubic comment
procedures would be unnecessary and contrary to the public interest.
The rule will be effective, as published in this document, on the
effective date specified in the DATES section of this document, unless
we receive significant adverse comments on or before the comment due
date specified in the DATES section of this document. Significant
adverse comments are comments that provide strong justifications as to
why the rule should not be adopted or why it should be changed.
If we receive significant adverse comments, we will publish a
notice in the Federal Register withdrawing this rule before the
effective date. In the event that we do receive significant adverse
comments, we will engage in the normal rulemaking process to promulgate
these changes to 50 CFR part 23. Therefore, elsewhere in today's issue
of the Federal Register, we have published a proposed rule regarding
these regulatory changes. We will give the same consideration to
comments submitted in response to either the direct final rule or the
proposed rule; you do not need to submit separate comments for both
documents.
Required Determinations
Regulatory Planning and Review: This is not a significant
regulatory action under Executive Order 12866 and therefore was not
reviewed by the Office of Management and Budget (OMB).
a. This rule will not have an annual economic effect of $100
million or more or adversely affect a part of the economy,
productivity, jobs, the environment, or other units of government. This
rule reduces the quantity of sturgeon or paddlefish caviar that an
individual may import or export under the personal effects exemption
(i.e., without a CITES document) from 250 grams to 125 grams. The
personal effects exemption applies only to specimens for personal use
that are hand-carried or checked as personal baggage on the same boat,
plane, etc., as the traveler. This rule also informs the public of a
change in the quota-setting process and timeframe for export of caviar
from shared stocks (i.e., the Black Sea, Caspian Sea, and Amur River
basins). Publication of this rule will assist U.S. businesses in
complying with CITES requirements when engaging in international trade
in sturgeon and paddlefish caviar.
We do not expect that this rule will have a significant effect on
the volume or dollar value of sturgeon or paddlefish caviar imported,
exported, or re-exported to and from the United States. There is no
indication that this rule would result in statistically significant
higher or lower levels of trade, permit applications, or permit
issuance or denial. An economic analysis is not necessary for this rule
as it will not have an economic impact on large or small entities.
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b. This rule will not create inconsistencies with other agencies'
actions. As the lead agency for implementing CITES in the United
States, we are responsible for monitoring imports and exports of CITES
wildlife and plants, including their parts, products, and derivatives,
and issuing import and export documents under CITES.
c. This rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
d. This rule will not raise novel legal or policy issues. As a
Party to CITES, the United States is committed to fully and effectively
implementing the Convention. All sturgeon and paddlefish
(Acipenseriformes) are listed under CITES. This rule informs
individuals and businesses of provisions adopted at the most recent CoP
for international trade in sturgeon and paddlefish caviar.
Regulatory Flexibility Act: Under the Regulatory Flexibility Act
(as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever a Federal agency is required to publish a
notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions) (5
U.S.C. 601 et seq.). However, no regulatory flexibility analysis is
required if the head of an agency certifies that the rule would not
have a significant economic impact on a substantial number of small
entities. Thus, for a regulatory flexibility analysis to be required,
impacts must exceed a threshold for ``significant impact'' and a
threshold for a ``substantial number of small entities.'' See 5 U.S.C.
605(b). SBREFA amended the Regulatory Flexibility Act to require
Federal agencies to provide a statement of the factual basis for
certifying that a rule would not have a significant economic impact on
a substantial number of small entities.
The U.S. Small Business Administration (SBA) defines a small
business as one with annual revenue or employment that meets or is
below an established size standard. We expect that the majority of the
entities involved with international caviar trade would be considered
small as defined by the SBA. The declared value for U.S. international
trade in sturgeon and paddlefish caviar was $13.4 million in 2005 and
$13.7 million in 2006.
These new regulations create no substantial fee or paperwork
changes in the permitting process. The regulatory changes are not major
in scope and would create only a modest financial or paperwork burden
on the affected members of the general public.
This rule benefits businesses engaged in international caviar trade
by providing updated regulations for the international trade of CITES
specimens. We do not expect these benefits to be significant under the
Regulatory Flexibility Act. 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. The requirements that must be
met to import, export, and re-export CITES species are based on the
text of CITES, which has been in effect in the United States since
1975.
We therefore certify that this 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
Regulatory Flexibility Analysis is not required. Accordingly, a Small
Entity Compliance Guide is not required.
Small Business Regulatory Enforcement Fairness Act: This rule is
not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory
Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more. This rule provides the importing and exporting community in the
United States with updated regulations implementing CITES. This rule
will not have a negative effect on this part of the economy. This rule
will affect all caviar importers, exporters, and re-exporters equally,
and the benefits of having updated guidance on complying with CITES
requirements will be evenly spread among all businesses, whether large
or small. 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, tribal, or local
government agencies; or geographic regions. This rule may result in a
small increase in the number of applications for import/export of
caviar for personal use. A CITES document is now required for any
amount of caviar over 125g (a reduction from the 250g previously
allowed without a permit).
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
rule will assist U.S. businesses and individuals traveling abroad in
ensuring that they are meeting all current CITES requirements, thereby
decreasing the possibility that shipments may be delayed or even seized
in another country that has implemented CITES resolutions not yet
incorporated into U.S. regulations.
Unfunded Mandates Reform Act: Under the Unfunded Mandates Reform
Act (2 U.S.C. 1501, et seq.):
a. This rule will not significantly or uniquely affect small
governments. A Small Government Agency Plan is not required. As the
lead agency for implementing CITES in the United States, we are
responsible for monitoring import and export of CITES wildlife and
plants, including their parts, products, and derivatives, and issuing
import and export documents under CITES. The structure of the program
imposes no unfunded mandates. Therefore, this rule has no effect on
small governments' responsibilities.
b. This 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 rule does not have
significant takings implications. A takings implication assessment is
not required. This rule is not considered to have takings implications
because it does not further restrict the import, export, or re-export
of CITES specimens. Import, export, and re-export of caviar in amounts
greater than 125 grams will still be allowed with the appropriate CITES
documents. The rule updates the regulations for the import, export, and
re-export of CITES specimens, which will assist the importing and
exporting community in conducting international trade in CITES
specimens.
Federalism: These revisions to part 23 do not contain significant
Federalism implications. A Federalism Assessment under Executive Order
13132 is not required.
Civil Justice Reform: Under Executive Order 12988, the Office of
the Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act: This rule does not contain any new
information collections or recordkeeping requirements for which OMB
approval is required under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). 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.
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National Environmental Policy Act (NEPA): The FWS has determined
that this direct final rule is categorically excluded from further NEPA
review as provided by 516 DM 2, Appendix 1.9, of the Department of the
Interior National Environmental Policy Act Revised Implementing
Procedures (69 FR 10866, March 8, 2004). No further documentation will
be made.
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 trade internationally in CITES species.
Energy Supply, Distribution or Use: On May 18, 2001, the President
issued Executive Order 13211 on regulations that significantly affect
energy supply, distribution, and use. This rule revises the current
regulations in 50 CFR part 23 that implement CITES. The regulations
provide procedures to assist individuals and businesses that import,
export, and re-export CITES wildlife and plants, and their parts,
products, and derivatives, to meet international requirements. This
rule will not significantly affect energy supplies, distribution, and
use. Therefore, this action is a not a significant energy action and no
Statement of Energy Effects is required.
Clarity of this regulation: We are required by Executive Orders
12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to
write all rules in plain language. This means that each rule we publish
must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Public Comments
We are seeking comments on whether the provisions in this direct
final rule allow the affected public to effectively comply with CITES.
You may submit your comments and materials concerning this rule by one
of the methods listed in the ADDRESSES section. We will not accept
comments sent by e-mail or fax or to an address not listed in the
ADDRESSES section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If you provide
personal identifying information in your written comments you may
request at the top of your document that we withhold this information
from public review. However, we cannot guarantee that we will be able
to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this direct final rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service; Division of Management Authority; 4401 N. Fairfax
Drive, Suite 212; Arlington, VA 22203; telephone, (703) 358-2093.
List of Subjects in 50 CFR Part 23
Animals, Endangered and threatened species, Exports, Fish, Foreign
officials, Foreign trade, Imports, Reporting and recordkeeping
requirements, Transportation, Treaties, Wildlife.
Regulation Promulgation
For the reasons given in the preamble, we amend title 50, chapter
I, subchapter B of the CFR as follows:
PART 23--[AMENDED]
0
1. The authority citation for part 23 continues to read as follows:
Authority: Convention on International Trade in Endangered
Species of Wild Fauna and Flora (March 3, 1973), 27 U.S.T. 1087; and
Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.
Sec. 23.15 [Amended]
0
2. Amend Sec. 23.15(c)(3)(i), the first entry in the table, by
removing the words ``250 gm'' in the Quantity column and by adding in
their place the words ``125 gm.''
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3. Amend Sec. 23.71(d) by removing paragraph (d)(4) and revising
paragraphs (d)(1), (d)(2), and (d)(3) to read as follows:
Sec. 23.71 How can I trade internationally in sturgeon caviar?
* * * * *
(d) * * *
(1) The relevant countries have established annual export quotas
for the shared stocks that were derived from catch quotas agreed among
the countries. The quotas are based on an appropriate regional
conservation strategy and monitoring regime and are not detrimental to
the survival of the species in the wild.
(2) The quotas have been communicated to the CITES Secretariat and
the Secretariat has communicated the annual export quotas to CITES
Parties.
(3) The caviar is exported during the quota year (March 1 - last
day of February) in which it was harvested and processed.
* * * * *
Dated: June 5, 2008
David M. Verhey
Acting Assistant Secretary for Fish and Wildlife and Parks
[FR Doc. E8-16195 Filed 7-16-08; 8:45 am]
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