[Federal Register Volume 73, Number 138 (Thursday, July 17, 2008)]
[Rules and Regulations]
[Pages 40983-40986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16195]


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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.

[[Page 40985]]

    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.

[[Page 40986]]

    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.''
0
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]
BILLING CODE 4310-55-S