[Federal Register Volume 73, Number 138 (Thursday, July 17, 2008)]
[Proposed Rules]
[Pages 41022-41025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16198]


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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: Proposed rule.

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SUMMARY: We, the Fish and Wildlife Service (FWS), propose to revise the 
regulations that implement the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES) by incorporating 
certain provisions related to international trade in sturgeon caviar 
adopted at the fourteenth meeting of the Conference of the Parties 
(CoP14) to CITES. We propose to reduce the quantity of caviar that may 
be imported or exported under the CITES personal effects exemption and 
amend the requirements for import of caviar from shared stocks subject 
to quotas. These changes would 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 
would 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: We will accept comments received on or before August 18, 2008.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.

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     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 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, 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 Sec.  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 propose to amend 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 propose to amend 50 CFR 23.71(d) to 
reflect the relevant changes to the quota-setting process for caviar 
from shared stocks.
    Elsewhere in today's Federal Register, we have published a direct 
final rule to promulgate the same regulatory changes to 50 CFR part 23 
as proposed here. We published the direct final rule because these 
changes are non-controversial and we anticipate no significant adverse 
public comment. Therefore we had good cause to find that standard 
notice and public comment procedures would be unnecessary and contrary 
to the public interest. If we receive no significant adverse comments 
regarding these amendments on or before the comment due date specified 
in the DATES section of this document and the direct final rule, then 
these changes will become effective on the effective date specified in 
the DATES section of the direct final rule, and we will take no further 
action on this proposed rule. If we do receive significant adverse 
comments, then this proposed rule initiates the normal notice-and-
comment rulemaking process.

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 proposed rule would 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 
proposed 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 proposed 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 proposed rule would 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 proposed rule would 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 proposed 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 proposed rule as it would not have an economic impact on large or 
small entities.
    b. This proposed rule would 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.

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    c. This proposed rule would not materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients.
    d. This proposed rule would 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 proposed 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.
    This proposed rule creates 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 proposed rule would benefit 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 proposed rule would 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 proposed 
rule is not a major rule under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. This rule:
    a. Would not have an annual effect on the economy of $100 million 
or more. This proposed rule provides the importing and exporting 
community in the United States with updated regulations implementing 
CITES. This proposed rule would not have a negative effect on this part 
of the economy. It would affect all caviar importers, exporters, and 
re-exporters equally, and the benefits of having updated guidance on 
complying with CITES requirements would be evenly spread among all 
businesses, whether large or small. There is not a disproportionate 
share of benefits for small or large businesses.
    b. Would not cause a major increase in costs or prices for 
consumers; individual industries; Federal, State, tribal, or local 
government agencies; or geographic regions. This proposed rule may 
result in a small increase in the number of applications for import/
export of caviar for personal use. Under the proposed rule, a CITES 
document would be required for any amount of caviar over 125g (a 
reduction from the 250g currently allowed without a permit under the 
personal effects exemption).
    c. Would 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 
proposed rule would 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 proposed rule would 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 proposed rule would have 
no effect on small governments' responsibilities.
    b. This proposed rule would 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 proposed rule does not 
have significant takings implications. A takings implication assessment 
is not required. This proposed rule is not considered to have takings 
implications because it would 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 proposed rule would update the 
regulations for the import, export, and re-export of CITES specimens, 
which would assist the importing and exporting community in conducting 
international trade in CITES specimens.
    Federalism: These proposed 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 proposed 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 proposed 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.
    National Environmental Policy Act (NEPA): The FWS has determined 
that this proposed rule is categorically

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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 proposed rule would revise 
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 proposed rule would 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 proposed 
rule allow the affected public to effectively comply with CITES. You 
may submit your comments and materials concerning this proposed 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 proposed 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.

Proposed Regulation Promulgation

    For the reasons given in the preamble, we propose to amend title 
50, chapter I, subchapter B of the CFR as follows:

PART 23 - [AMENDED]

    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]

    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.''
    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. E8-16198 Filed 7-16-08; 8:45 am]
BILLING CODE 4310-55-S