[Federal Register Volume 87, Number 36 (Wednesday, February 23, 2022)]
[Rules and Regulations]
[Pages 10073-10080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03533]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 23
[Docket No. FWS-HQ-IA-2020-0019; FF09A30000-190FXIA16710900000]
RIN 1018-BF14
Implementing the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES); Updates Following the
Eighteenth Meeting of the Conference of the Parties (CoP18) to CITES
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Direct final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS or Service), are
[[Page 10074]]
taking direct final action to revise regulations that implement the
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES or Treaty or Convention) by incorporating certain non-
controversial provisions adopted at the sixteenth through eighteenth
meetings of the Conference of the Parties (CoP16-CoP18) to CITES and
clarifying and updating certain other provisions. These changes will
bring U.S. regulations in line with certain revisions adopted at the
three most recent meetings of the Conference of the Parties, which took
place in March 2013 (CoP16), September-October 2016 (CoP17), and August
2019 (CoP18). 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.
DATES: This rule is effective May 24, 2022 without further action,
unless we receive significant adverse comment that provides strong
justifications as to why this rule should not be adopted or why it
should be changed by March 25, 2022. The incorporation by reference of
the material listed in this rule is approved by the Director of the
Federal Register as of May 24, 2022. If we receive significant adverse
information that provides strong justifications regarding why this rule
should not be adopted or why it should be changed, we will publish a
timely withdrawal of the rule in the Federal Register informing the
public that the rule will not take effect, in whole or in part.
ADDRESSES:
Comment submission: You may submit comments regarding this direct
final rule by one of the following methods:
Electronically using the Federal eRulemaking Portal:
http://www.regulations.gov in Docket No. FWS-HQ-IA-2020-0019 (the
docket number for this rulemaking).
U.S. mail: Public Comments Processing, Attn: FWS-HQ-IA-
2020-0019; U.S. Fish and Wildlife Service Headquarters, MS: JAO/3W,
5275 Leesburg Pike, Falls Church, VA 22041-3803.
We will not accept email or faxes. Comments and materials we
receive, as well as supporting documentation, will be available for
public inspection on http://www.regulations.gov.
Supplementary materials: For the CITES guidelines for the non-air
transport of live wild animals and plants incorporated by reference
(IBR) in this rule, contact CITES Secretariat, Palais des Nations,
Avenue de la Paix 8-14, 1211 Gen[egrave]ve 10, Switzerland; telephone
+41-(0)22-917-81-39/40; email info@cites.org. You may find this CITES
IBR material on the CITES Secretariat's website at https://www.cites.org/eng/resources/transport/index.php and on our website at
https://www.fws.gov/international/travel-and-trade/live-animal-transport.html. For the International Air Transport Association Live
Animals Regulations and the International Air Transport Association
Perishable Cargo Regulations incorporated by reference, contact IATA,
800 Place Victoria, P.O. Box 113, Montreal, Canada H4Z 1M1; telephone
1-800-716-6326. Interested persons may purchase a copy of the IBR IATA
publications at: https://www.iata.org/publications. To view this IBR
material at the Division of Management Authority office (see FOR
FURTHER INFORMATION CONTACT), please email us regarding the current
status of our office facility at: managementauthority@fws.gov.
FOR FURTHER INFORMATION CONTACT: Pamela Hall Scruggs, Chief, Division
of Management Authority, U.S. Fish and Wildlife Service, 5275 Leesburg
Pike, MS: IA, Falls Church, VA 22041-3803; telephone 703-358-2095 or
email: managementauthority@fws.gov.
SUPPLEMENTARY INFORMATION:
I. 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 it had been ratified by 10 countries. Currently, 182
countries and the European Union (EU) have ratified, accepted,
approved, or acceded to CITES; these countries and the EU (a regional
economic integration organization) are known as Parties. On January 4,
2022, Andorra will become the 184th Party to CITES. The Convention is
an international treaty designed to control and regulate international
trade in certain animal and plant species that are now or may become
threatened with extinction and may be affected by trade. These species
are listed in Appendices to CITES, which are available on the CITES
Secretariat's website at http://www.cites.org/eng/app/index.php. The
Convention calls for regular biennial meetings of the Conference of the
Parties (CoP), unless the Conference of the Parties decides otherwise.
At these meetings, the Parties review the implementation of CITES, make
provisions enabling the CITES Secretariat in Switzerland to carry out
its functions, consider amendments to the lists of species in
Appendices I and II, consider reports presented by the Secretariat and
the permanent CITES committees (Standing, Animals, and Plants
Committees), and make recommendations for the improved effectiveness of
CITES. Any country that is a Party to CITES may propose amendments to
Appendices I and II, resolutions, decisions, and other agenda items for
consideration by all of the Parties at the meetings.
Section 8A of the Endangered Species Act, as amended (16 U.S.C.
1531 et seq.) (ESA), designates the Secretary of the Interior as the
U.S. Management Authority and U.S. Scientific Authority for CITES.
Section 8A further states that the respective functions of these
authorities shall be carried out through the U.S. Fish and Wildlife
Service.
II. Previous Federal Actions
The original U.S. regulations implementing CITES took effect on May
23, 1977 (42 FR 10462, February 22, 1977), after the first CoP was
held. We have since updated the regulations several times. U.S. CITES
regulations were most recently updated in May 2014 (79 FR 30400, May
27, 2014) and contain applicable provisions adopted at meetings of the
Conference of the Parties up to and including the fifteenth meeting
(CoP15), which took place in 2010.
III. This Rule
As a Party to CITES, the United States has the responsibility under
Article II(4) of the Treaty to ensure that all trade is consistent with
the Treaty. To ensure that U.S. businesses and individuals understand
the requirements for lawful international trade in CITES specimens, it
is necessary for us to periodically update our CITES implementing
regulations. With this direct final rule we are incorporating minor,
noncontroversial updates to our regulations to reflect certain
technical changes adopted by the CITES Parties during the sixteenth
through eighteenth meetings of the Conference of the Parties to CITES
(CoP16-CoP18) and clarifying and updating other provisions. The
revisions in this direct final rule bring U.S. regulations in line with
certain revisions adopted at these meetings of the Conference of the
Parties, which took place in March 2013 (CoP16), September-October 2016
(CoP17), and August 2019 (CoP18). The revised regulations will help us
more effectively promote species conservation, help us continue to
fulfill
[[Page 10075]]
our responsibilities under the Treaty, and help those affected by CITES
understand how to conduct lawful international trade.
IV. Use of a Direct Final Rule
An agency uses direct final rulemaking without prior proposal when
it anticipates that a rule will be noncontroversial. Examples include
minor substantive revisions to regulations and direct incorporations of
mandates from new legislation. We are publishing this rule without a
prior proposal because these changes are noncontroversial actions 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 previously noted, as a Party to CITES,
the United States has the responsibility under Article II(4) of the
Treaty to ensure that all trade is consistent with the Treaty, which
includes aligning import, introduction from the sea, export, and re-
export provisions as agreed by the Parties. Thus, we have good cause to
find that standard notice and public 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 above in DATES, unless we receive significant
adverse comments on or before the comment due date specified in DATES.
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. Please note that if we receive adverse comment on
an amendment, paragraph, or section of this rule and if that provision
may be severed from the remainder of the rule, we may withdraw only
that provision, and otherwise adopt as final those provisions of the
rule that are not the subject of an adverse comment.
In the event that we do receive significant adverse comments, we
will engage in the normal rulemaking process to promulgate changes to
50 CFR part 23 as necessary. In addition, to address other necessary
changes to our regulations as a result of the last three CoPs that are
more complex than the provisions in this rulemaking document, we will
soon publish a proposed rule for public comment.
V. Changes to 50 CFR Part 23
Section 23.5 How are the terms used in these regulations defined?
Whenever possible we define terms using the wording of the Treaty
and the Resolutions. In this direct final rule, we are amending Sec.
23.5 to include a definition of the term ``assisted production.'' We
are making this amendment together with our amendment of Sec. 23.24 to
add a new source code ``Y'' for assisted production plants. (See the
preamble discussion for Sec. 23.24.)
The new term ``assisted production'' was developed and adopted by
the Parties for use with certain plant specimens that do not fall
within the definition of ``artificially propagated'' and are not
considered to be ``wild'' because they are propagated or planted in an
environment with some level of human intervention for the purpose of
plant production. The term is the result of extensive, substantive
discussions at the direction of the Conference of the Parties that
resulted in recommendations by the Plants Committee (PC24; Geneva,
2018) and the Standing Committee (SC70; Sochi, 2018), to amend
Resolution Conf. 12.3, Permits and certificates, and Resolution Conf.
11.11, Regulation of trade in plants, to add the concept and definition
of ``assisted production'' and its associated new source code ``Y'' for
use on CITES documents. The United States was a member of the Plants
Committee's intersessional and in-session working groups on this topic
and the in-session Standing Committee working group at SC70. The
recommendations were developed as a result of the recognized need for
an intermediate source code for international trade in plant specimens.
These recommended changes to Resolution Conf. 12.3 and Resolution Conf.
11.11, to establish an intermediate source code for international trade
in plant specimens that do not qualify as ``artificially propagated''
according to CITES but are also not wild specimens, were adopted by the
Parties at CoP18 with support from the United States.
Under the newly revised Resolution Conf. 11.11 (Rev. CoP18),
``assisted production'' means plant specimens that do not fulfill the
definition of ``artificially propagated'' and are considered not to be
``wild'' because they are propagated or planted in an environment with
some level of human intervention for the purpose of plant production.
We are implementing this definition with nonsubstantive changes for
clarity and for consistency with language in our current regulations.
Material used to produce plant specimens from assisted production
systems can be derived from plant material that is exempt from the
provisions of the Convention, or derived from artificially propagated
plants, or derived from plants grown in an environment with some level
of human intervention, or derived from plant materials collected
sustainably from wild populations in accordance with the provisions of
CITES and relevant national laws and in a manner not detrimental to the
survival of the species in the wild. Trade in assisted production
plants (source code Y) will continue to require compliance with the
provisions of Articles III, IV, and V of the Convention, the same as
for trade in wild plants (source code W).
The Parties envisioned that Source Code Y could be used as an
intermediate source code under a number of different scenarios to fill
a gap in the previously available source codes. These scenarios include
situations in which: (1) Countries have developed plant production
systems that clearly reduce pressure on wild-sourced plant material,
but this development is not reflected if the Source Code W is used; (2)
using Source Code W for plant material that comes from managed
production systems reduces scientific accuracy and misrepresents the
trade data; and (3) identifying the source of species harvested outside
their natural range does not fit logically under Source Code W or
Source Code A (for artificially propagated plants). As noted above, the
Parties also confirmed that the new Source Code Y would continue to
require compliance with the provisions of Articles III, IV, and V of
the Convention, including the making of required non-detriment findings
for Appendix-I and Appendix-II specimens and required legal acquisition
findings for Appendix-I, Appendix-II, and Appendix-III specimens;
therefore, ensuring that impact on the wild population and possible
conservation concerns would be considered. The United States also
believes that Source Code Y could be used in cases where the best
available information demonstrates that the plants for export were not
wild harvested, but the applicant cannot provide sufficient information
to prove that the plants were artificially propagated, as is generally
the case in a household move of personal plants purchased from a
nursery or other retailer.
We are therefore amending our regulations to implement the new
definition of ``assisted production''
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adopted by the Parties together with our amendment of Sec. 23.24 to
add a new source code ``Y'' for assisted production plants. (See the
preamble discussion for Sec. 23.24.) This action fulfills the needs
described above, as it will promote more effective implementation of
CITES for plants, will more accurately reflect the range of sources
from which CITES-listed plants are derived, and will help promote the
conservation of CITES-listed plants.
Section 23.6 What are the roles of the Management and Scientific
Authorities?
In this direct final rule, we amend the table in Sec. 23.6, which
lists the roles of the U.S. Management and Scientific Authorities, to
reflect the revisions to Resolution Conf. 11.17 (Rev. CoP18), National
reports, that were adopted at CoP16. The revised Resolution includes a
new recommendation that the CITES biennial report, required under
Article VIII, paragraph 7(b) of the Treaty, be submitted 1 year before
each meeting of the Conference of the Parties, instead of every 2
years, and that the name of the report therefore be changed from
``biennial report'' to ``report required under the provisions of
Article VIII, paragraph 7(b).'' We change ``biennial reports'' in Sec.
23.6(g) to ``periodic Article VIII, paragraph 7(b) reports'' to reflect
this new recommendation. This paragraph states that it is a role of the
U.S. Management Authority to produce such reports.
Section 23.7 What office do I contact for CITES information?
This section contains contact information for offices involved in
CITES implementation in the United States and for the CITES
Secretariat. In this direct final rule we update the information in
paragraph (f) regarding guidelines currently available on the
Secretariat's website for humane transport of CITES specimens. (See the
preamble discussion for Sec. 23.23.)
Section 23.9 Incorporation by Reference
In this direct final rule, we are finalizing regulatory text that
includes incorporation by reference. We currently require that CITES
export and re-export documents for live specimens contain a specific
condition that the document is valid only if the transport complies
with certain humane-transport standards. At CoP14, the Parties agreed
to promote the full and effective use of the International Air
Transport Association (IATA) Live Animals Regulations (for animals) and
Perishable Cargo Regulations (for plants) as the standards for the
preparation and transport of live specimens. The IATA Live Animals
Regulations (LAR), 40th edition, and Perishable Cargo Regulations
(PCR), 13th edition, are incorporated by reference into our regulations
at Sec. 23.9. With this direct final rule, we update our regulations
by incorporating by reference the 48th edition of the IATA LAR and the
21st edition of the PCR to replace the 40th and 13th editions,
respectively, that are incorporated by reference in our current
regulations.
At CoP16, the Parties adopted the CITES guidelines for the non-air
transport of wild animals and plants, recognizing that the non-air
transport of live specimens of certain species may require transport
conditions in addition to or different from those in the IATA
regulations (see the preamble discussion for Sec. 23.23). In this
direct final rule we incorporate by reference (in Sec. 23.9) the CITES
guidelines for the non-air transport of live wild animals and plants as
the standard for the non-air transport of certain CITES-listed animals
and plants.
In accordance with requirements of 1 CFR 51.5, we are finalizing
the incorporation by reference of the CITES guidelines for the non-air
transport of live wild animals and plants, the 48th edition of the IATA
Live Animals Regulations (LAR), and the 21st edition of the IATA
Perishable Cargo Regulations (PCR). The LAR establishes regulations for
air transportation of all animals including CITES-listed species. The
IATA PCR establishes regulations for air transportation of perishable,
including all plants and those species that are CITES-listed. The CITES
guidelines for the non-air transport of live wild animals and plants
establishes regulations for the non-air transport of CITES-listed
animals and plants for those species that have methods different than,
or in addition to, the methods prescribed by the LAR or PCR. The
regulations and standards provided by these three references for the
safe and humane transport of all animals and plants must be complied
with for the legal international transport of all CITES-listed animals
and plants. We update the references to humane transport requirements
elsewhere in part 23 (Sec. Sec. 23.7, 23.23, 23.26, and 23.56) to
reflect these changes. Copies of the materials incorporated by
reference normally may be inspected by appointment, between 8 a.m. and
4 p.m., Monday through Friday, except Federal holidays, at: U.S. Fish
and Wildlife Service Headquarters, Division of Management Authority,
5275 Leesburg Pike, Falls Church, VA 22041-3803; telephone 703-358-
2095. However, the COVID-19 pandemic may affect when these materials
are available for inspection. For information on the availability to
view this material at the Division of Management Authority office,
please email us regarding the current status of our office facility at:
managementauthority@fws.gov. You may find the CITES IBR material on the
CITES Secretariat's website at https://www.cites.org/eng/resources/transport/index.php and on our website at https://www.fws.gov/international/travel-and-trade/live-animal-transport.html. Interested
persons may purchase a copy of the IATA publications at: https://www.iata.org/publications.
Section 23.23 What information is required on U.S. and foreign CITES
documents?
This section details information that must be included on CITES
documents.
To authorize export and re-export of living specimens, Articles
III, IV, V, and VII of the Convention require the Management Authority
to be satisfied the living specimens will be so prepared and shipped as
to minimize the risk of injury, damage to health, or cruel treatment.
Additionally, under Article VIII of the Convention, Parties are
required to ensure that all living specimens, during any period of
transit, holding, and shipment, are properly cared for so as to
minimize the risk of injury, damage to health, or cruel treatment. To
meet these obligations, we currently require that CITES export and re-
export documents for live specimens contain a specific condition that
the document is valid only if the transport complies with certain
humane-transport standards and require that shipments containing live
CITES specimens comply with these standards. At CoP14, the Parties
agreed to promote the full and effective use of the International Air
Transport Association (IATA) Live Animals Regulations (LAR) (for
animals) and Perishable Cargo Regulations (PCR) (for plants) as the
standards for the preparation and transport of live specimens. These
IATA documents are incorporated by reference into our regulations at
Sec. 23.9.
At CoP16, the Parties adopted the CITES guidelines for the non-air
transport of wild animals and plants. These new guidelines were
developed by a joint Animals Committee/Plants Committee working group
(under Decision 15.59) recognizing that the non-air transport of live
specimens of certain species may require transport conditions in
addition to or different from those in the IATA regulations. The United
States participated in the working group and supported the
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adoption of the guidelines at CoP16. With this direct final rule we
incorporate by reference (in Sec. 23.9) the CITES guidelines for the
non-air transport of live wild animals and plants as the standard for
the non-air transport of certain CITES-listed animals and plants. In
addition, we update our regulations by incorporating by reference (in
Sec. 23.9) the 48th edition of the IATA LAR and the 21st edition of
the IATA PCR to replace the 40th edition of the LAR and the 13th
edition of the PCR that are incorporated by reference in our current
regulations. We update the references to humane transport requirements
elsewhere in part 23 (Sec. Sec. 23.7, 23.26, and 23.56) to reflect
these changes.
Sec. 23.24 What code is used to show the source of the specimen?
The Management Authority must indicate on CITES documents the
source of the specimen being traded. The table in Sec. 23.24 contains
source codes agreed by the CITES Parties for use on CITES documents. At
CoP16, the Parties agreed to a framework for application of the
provisions in Articles III and IV of the Treaty for trade in specimens
taken in the marine environment not under the jurisdiction of any
country (Resolution Conf. 14.6 (Rev. CoP16), Introduction from the
sea). At the same time, the Parties agreed to the use of source code
``X'' on CITES documents issued for such specimens, through the
adoption of changes to Resolution Conf. 12.3 (Rev. CoP18) on Permits
and certificates. With this direct final rule, we are adding source
code ``X'' to the table in Sec. 23.24 for specimens taken in the
marine environment not under the jurisdiction of any country.
The Parties agreed, at CoP18, to adopt revisions to Resolution
Conf. 11.11 (Rev. CoP18), Regulation of trade in plants, including
addition of the term ``assisted production'' (see the discussion in the
preamble for Sec. 23.5 regarding the definition of ``assisted
production'') and to the use of source code ``Y'' on CITES documents
for such specimens, through the adoption of changes to Resolution Conf.
12.3 (Rev. CoP18) on Permits and certificates. With this direct final
rule, we add this new source code to the table in Sec. 23.24 for
assisted production plants.
Sec. 23.26 When is a U.S. or foreign CITES document valid?
With this direct final rule, we update the documents incorporated
by reference into our regulations at Sec. 23.23(c)(7) that provide
guidance on humane transport of live specimens. (See the preamble
discussion for Sec. 23.23.) We update the entry on humane transport in
the table at Sec. 23.26 to reflect these changes.
Sec. 23.56 What U.S. CITES document conditions do I need to follow?
With this direct final rule, we update the documents incorporated
by reference into our regulations at Sec. 23.9 that provide guidance
on humane transport of live specimens. (See the preamble discussions
for Sec. Sec. 23.9 and 23.23.) Therefore, we update the text at Sec.
23.56(a)(2) regarding humane-transport conditions to reflect these
changes.
VI. Public Comments
We will not consider comments regarding this direct final rule sent
by email or fax or to an address not listed in ADDRESSES. If you submit
a comment via http://www.regulations.gov, your entire comment,
including any personal identifying information, will be posted on the
website. If you submit a hardcopy comment that includes personal
identifying information, 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. We will post all
hardcopy comments on http://www.regulations.gov.
VII. Required Determinations
Clarity of the Rule
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:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) 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 ADDRESSES. 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.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with this rule. This rule does not constitute a
major Federal action significantly affecting the quality of the human
environment. A detailed statement under NEPA is not required because
the rule is covered by a categorical exclusion. This rule is a
regulation that is of an administrative, legal, technical, or
procedural nature, and its environmental effects are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
under NEPA. The FWS has determined that this rule is categorically
excluded from further NEPA review as provided by 516 DM 8 (Department
of the Interior Manual, Series 31, Part 516, Chapter 8: Managing the
NEPA Process--U.S. Fish and Wildlife Service) and 43 CFR 46.210(i). We
have also determined that the rule does not involve any of the
extraordinary circumstances listed in 43 CFR 46.215 that would require
further analysis under NEPA.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA), whenever an 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 effects of the rule
on small entities (i.e., small businesses, small organizations, and
small government jurisdictions). However, no regulatory flexibility
analysis is required if the head of the agency certifies the rule will
not have a significant economic impact on a substantial number of small
entities.
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA; 5 U.S.C. 801 et seq.) amended the RFA to require Federal
agencies to provide a certification statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities. According to the Small Business
Administration, small entities include small organizations such as
independent nonprofit organizations; small governmental jurisdictions,
including school boards and city and town governments that serve fewer
than 50,000 residents; and small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less
[[Page 10078]]
than $27.5 million in annual business, special trade contractors doing
less than $11.5 million in annual business, and agricultural businesses
with annual sales less than $750,000. We expect that the majority of
the entities involved with international trade in CITES specimens would
be considered small as defined by the SBA.
This rule would create no substantial fee or paperwork changes in
the permitting process. The regulatory changes are not major in scope
and would not change the modest financial or paperwork burden on the
affected members of the general public currently approved under the
Paperwork Reduction Act.
This rule would benefit businesses engaged in international trade
by providing updated and clearer regulations for the international
trade of CITES specimens. We do not expect these benefits to be
significant under the RFA. The authority to enforce CITES requirements
already exists under the ESA and is carried out by regulations
contained in 50 CFR part 23. The requirements that must be met for
import, introduction from the sea, export, and re-export of 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 would not have a significant
economic effect on a substantial number of small entities as defined
under the RFA, and a regulatory flexibility analysis is not required.
Small Business Regulatory Enforcement Fairness Act (SBREFA) (5 U.S.C.
801 et seq.)
This rule is not a major rule under SBREFA. This rule:
(a) Will 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 and more clearly written regulations
implementing CITES. This rule will not have a negative effect on this
part of the economy. It will affect import, introduction from the sea,
export, and re-export of CITES specimens by any person 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.
(c) Will 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.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2 (Department of the Interior Manual,
Series 30, Part 512, Chapter 2: Departmental Responsibilities for
Indian Trust Resources), we readily acknowledge our responsibility to
communicate meaningfully with recognized Federal Tribes on a
government-to-government basis. In accordance with Secretarial Order
3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We have evaluated this rule under the criteria in Executive
Order 13175 under the Department's consultation policy and have
determined that it has no substantial direct effects on federally
recognized Indian Tribes and that consultation under the Department's
Tribal consultation policy is not required. Individual Tribal members
must meet the same regulatory requirements as other individuals who
trade internationally in CITES species.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Management and
Budget (OMB) will review all significant rules. OMB has determined that
this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of energy effects when undertaking
certain actions. 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, introduce from the sea,
export, and re-export CITES wildlife and plants, and their parts,
products, and derivatives, to meet international requirements. This
rule does not significantly affect energy supplies, distribution, and
use. Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both Federal
intergovernmental mandates and Federal private sector mandates. These
terms are defined in 2 U.S.C. 658(5)-(7).
``Federal intergovernmental mandate'' includes a regulation that
would impose an enforceable duty upon State, local, or Tribal
governments with two exceptions. It excludes a condition of Federal
assistance. It also excludes a duty arising from participation in a
voluntary Federal program, unless the regulation relates to a then-
existing Federal program under which $500,000,000 or more is provided
annually to State, local, and Tribal
[[Page 10079]]
governments under entitlement authority, if the provision would
increase the stringency of conditions of assistance or place caps upon,
or otherwise decrease, the Federal Government's responsibility to
provide funding, and the State, local, or Tribal governments lack
authority to adjust accordingly. At the time of enactment, these
entitlement programs were: Medicaid; Aid to Families with Dependent
Children work programs; Child Nutrition; Food Stamps; Social Services
Block Grants; Vocational Rehabilitation State Grants; Foster Care,
Adoption Assistance, and Independent Living; Family Support Welfare
Services; and Child Support Enforcement. ``Federal private sector
mandate'' includes a regulation that ``would impose an enforceable duty
upon the private sector, except (i) a condition of Federal assistance
or (ii) a duty arising from participation in a voluntary Federal
program.''
(2) The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. As the lead agency
for implementing CITES in the United States, we are responsible for
monitoring international trade in CITES wildlife and plants, including
their parts, products, and derivatives, and issuing documents under
CITES to authorize international trade in CITES wildlife and plants.
The structure of the program imposes no unfunded mandates; this rule
imposes no obligations on State, local, or Tribal governments.
Therefore, a Small Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of this rule.
This rule does not affect a taking of private property or otherwise
have taking implications under Executive Order 12630. The rule would
not further restrict the import, export, or re-export of CITES
specimens. Rather, this rule updates and clarifies 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. A takings implication assessment is not required.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (federalism), this rule does not have
significant federalism effects. A federalism summary impact statement
is not required. These revisions to 50 CFR part 23 do not contain
significant federalism implications.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
this rule does not unduly burden the judicial system and meets the
requirements of sections 3(a) and 3(b)(2) of the Order. Specifically,
this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). An agency 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.
List of Subjects in 50 CFR Part 23
Animals, Endangered and threatened species, Exports, Fish, Foreign
trade, Imports, Incorporation by reference, Plants, Transportation,
Treaties, Wildlife.
Regulation Promulgation
Therefore, for the reasons discussed in the preamble, we hereby
amend part 23 of title 50, Code of Federal Regulations, as set forth
below.
PART 23--CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF
WILD FAUNA AND FLORA (CITES)
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.
0
2. Amend Sec. 23.5 by adding, in alphabetical order, a definition of
``assisted production'' to read as follows:
Sec. 23.5 How are the terms used in these regulations defined?
* * * * *
Assisted production means a plant specimen that does not fall
within the definition of ``artificially propagated'' and the source of
the specimen is considered not to be taken from the wild because it was
propagated or planted in an environment with some level of human
intervention for the purpose of plant production.
* * * * *
Sec. 23.6 [Amended]
0
3. Amend Sec. 23.6 by removing the word ``biennial'' in paragraph (g)
and adding in its place the words ``periodic Article VIII, paragraph
7(b)''.
Sec. 23.7 [Amended]
0
4. Amend Sec. 23.7(f)(2) by removing the words ``CITES' Guidelines for
transport and preparation for shipment of live wild animals and
plants'' and adding in their place the words ``CITES Guidelines for the
non-air transport of live wild animals and plants''.
0
5. Revise Sec. 23.9 to read as follows:
Sec. 23.9 Incorporation by reference.
Certain material is incorporated by reference into this part with
the approval of the Director of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. All approved material is available for
inspection at U.S. Fish and Wildlife Service, International Affairs,
Division of Management Authority, 703-358-2104 and is available from
the sources listed elsewhere in this section. It is also available for
inspection at the National Archives and Records Administration (NARA).
For information on the availability of this material at NARA, email
fr.inspection@nara.gov or go to www.archives.gov/federal-register/cfr/ibr-locations.html.
(a) International Air Transport Association (IATA), 800 Place
Victoria, P.O. Box 113, Montreal, Quebec, Canada H4Z 1M1, 1-800-716-
6326, www.iata.org.
(1) Live Animals Regulations (LAR) 48th edition, effective January
1, 2022, into Sec. Sec. 23.23, 23.26, and 23.56.
(2) Perishable Cargo Regulations (PCR) 21st edition, effective
January 1, 2022, into Sec. Sec. 23.23, 23.26, and 23.56.
(b) CITES Secretariat: Palais des Nations, Avenue de la Paix 8-14,
1211 Gen[egrave]ve 10, Switzerland; telephone +41-(0)22-917-81-39/40;
email info@cites.org, www.cites.org.
(1) CITES Guidelines for the non-air transport of live wild animals
and plants, effective January 2, 2017, into Sec. Sec. 23.23, 23.26,
and 23.56, available for downloading at
(i) https://cites.org/eng/resources/transport/index.php
[[Page 10080]]
(ii) https://www.fws.gov/international/travel-and-trade/live-animal-transport.html
(2) [Reserved]
0
6. Amend Sec. 23.23 by revising paragraph (c)(7) to read as follows:
Sec. 23.23 What information is required on U.S. and foreign CITES
documents?
* * * * *
(c) * * *
----------------------------------------------------------------------------------------------------------------
Required information Description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
(7) Humane transport of live specimens................. If the CITES document authorizes the export or re-
export of live specimens, a statement that the
document is valid only if the transport conditions
comply with the International Air Transport
Association Live Animals Regulations (for animals)
(incorporated by reference, see Sec. 23.9) or the
International Air Transport Association Perishable
Cargo Regulations (for plants) (incorporated by
reference, see Sec. 23.9) or, in the case of non-air
transport of species that may require transport
conditions in addition to or different from the Live
Animals Regulations or the Perishable Cargo
Regulations, the CITES Guidelines for the non-air
transport of wild animals and plants (incorporated by
reference, see Sec. 23.9). A shipment containing
live specimens must comply with the International Air
Transport Association Live Animals Regulations (for
animals) or the International Air Transport
Association Perishable Cargo Regulations (for plants)
or, in the case of non-air transport of species that
may require transport conditions in addition to or
different from the Live Animals Regulations or the
Perishable Cargo Regulations, the CITES Guidelines for
the non-air transport of wild animals and plants.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
0
7. Amend Sec. 23.24 by adding paragraphs (j) and (k) to read as
follows:
Sec. 23.24 What code is used to show the source of the specimen?
* * * * *
------------------------------------------------------------------------
Source of specimen Code
------------------------------------------------------------------------
* * * * * * *
(j) Specimens taken in the marine environment X
not under the jurisdiction of any country (see
Sec. 23.39).
(k) Assisted production plant (see Sec. 23.5). Y
------------------------------------------------------------------------
0
8. Amend Sec. 23.26 by revising paragraph (c)(8) to read as follows:
Sec. 23.26 When is a U.S. or foreign CITES document valid?
* * * * *
(c) * * *
----------------------------------------------------------------------------------------------------------------
Key phrase Conditions for an acceptable CITES document
----------------------------------------------------------------------------------------------------------------
* * * * * * *
(8) Humane transport................................... Live wildlife or plants were transported in compliance
with the International Air Transport Association Live
Animals Regulations (for animals) (incorporated by
reference, see Sec. 23.9) or the International Air
Transport Association Perishable Cargo Regulations
(for plants) (incorporated by reference, see Sec.
23.9) or, in the case of non-air transport of species
that may require transport conditions in addition to
or different from the Live Animals Regulations or the
Perishable Cargo Regulations, the CITES Guidelines for
the non-air transport of live wild animals and plants
(incorporated by reference, see Sec. 23.9).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
0
9. Amend Sec. 23.56 by revising paragraph (a)(2) to read as follows:
Sec. 23.56 What U.S. CITES document conditions do I need to follow?
(a) * * *
(2) For export and re-export of live wildlife and plants, transport
conditions must comply with the International Air Transport Association
Live Animals Regulations (for animals) (incorporated by reference, see
Sec. 23.9) or the International Air Transport Association Perishable
Cargo Regulations (for plants) (incorporated by reference, see Sec.
23.9) or, in the case of non-air transport of species that may require
transport conditions in addition to or different from the Live Animals
Regulations or the Perishable Cargo Regulations, the CITES Guidelines
for the non-air transport of live wild animals and plants (incorporated
by reference, see Sec. 23.9).
* * * * *
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2022-03533 Filed 2-22-22; 8:45 am]
BILLING CODE 4333-15-P