00-1790. Proposed Rule: Notice of Intent To Include Several Native U.S. Species in Appendix III to the Convention on International Trade in Endangered Species of Wild Fauna and Flora

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), an international treaty, regulates international trade in certain animals and plants. Countries that have ratified or acceded to CITES monitor and regulate species listed in Appendices I, II, and III. Any country that is a Party to CITES may propose amendments to Appendix I or II for consideration by the other Parties; any country that is a Party may unilaterally list its native species in CITES Appendix III. Parties submit an Appendix III listing to the CITES Secretariat, which then notifies all CITES Party countries of this listing. With this proposed rule, we are announcing a proposal to include the Alligator snapping turtle (Macroclemys temminckii) and all species of map turtles (Graptemys sp.), native US species, in CITES Appendix III.

DATES:

You must send us your comments on this proposed rule by March 13, 2000.

ADDRESSES:

You may send comments about this proposed rule to the Chief, Office of Scientific Authority; 4401 North Fairfax Drive, Room 750; Arlington, Virginia 22203. Fax number: 703-358-2276, E-mail: [e-mail]. Comments and other information received are available for public inspection, by appointment, from 8 a.m. to 4 p.m. Monday through Friday, at the Arlington, Virginia, address. You may obtain information about permits by contacting the Office of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax number: 703-358-2095, E-mail: [e-mail], website: http:/www.fws.gov.

FOR FURTHER INFORMATION CONTACT:

Dr. Susan Lieberman, Chief, Office of Scientific Authority, US Fish and Wildlife Service, Washington, DC, telephone: [phone], fax: [phone], E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Background

Appendix III Background

CITES regulates import, export, re-export, and introduction from the sea of certain animal and plant species. CITES lists these species in one of three Appendices. Appendix I includes species threatened with extinction that are or may be affected by international trade. Appendix II includes species that, although not necessarily threatened with extinction now, may become so unless the trade is strictly controlled. It also lists species that CITES must regulate so that trade in other listed species may be brought under effective control (e.g., because of similarity of appearance between listed species and other species). Appendix III includes native species identified by any Party country that needs to be regulated to prevent or restrict exploitation and that requests the help of other Parties to monitor and control the trade of that species.

To include a species in Appendices I or II, a Party country must propose an amendment to the Appendices for consideration at a biennial meeting of the Conference of the Parties (COP). The adoption of such a proposal is by approval of at least two-thirds of the Parties present and voting. A Party country makes the addition of a native species in Appendix III, however, independently, without the vote of other Parties, under Articles II and XVI of the CITES treaty. As described below, Appendix III listings have many advantages, and many species are currently listed in CITES Appendix III. A list of all species included in the three Appendices is presented in 50 CFR Part 23 and is also available on request from us (see ADDRESSES, above). A list of the species and the text of the CITES treaty are also available from the Fish and Wildlife Service website at: http://www.fws.gov. We propose to include native U.S. species in Appendix III to derive the following benefits:

1. Appendix III listings are based on an individual country's decision that its domestic conservation program for its own species involved in international trade requires the assistance of the other CITES Parties through the enforcement of CITES trade restrictions. Since the decision on Appendix-III listing is made by an individual country, no vote of the CITES Parties is required, as would be necessary for Appendix-I and -II listing actions. The effect of this independent listing is that, if an Appendix-III species' situation improves or new information shows that it no longer needs to be listed, the listing country can remove the species from the list without consulting the other CITES parties. Therefore, the United States could remove a species it listed on Appendix III without requiring a vote of the CITES Parties, or even without waiting for a meeting of the CITES Conference of the Parties.

2. Listing U.S. native species in Appendix III would in appropriate cases enhance the enforcement of State and Federal conservation measures enacted for the species in international (and domestic) trade. When a shipment containing a non-listed, native species is exported from the United States, it is a lower inspection priority for both an importing country and the Service than if the shipment contained CITES-listed species. When CITES-listed species, including Appendix-III species, are exported, the shipment is inspected and monitored both at the port of departure and the port of arrival in the importing country. Furthermore, many foreign importing countries have limited legal authority and resources to inspect shipments of non-CITES-listed wildlife. Appendix-III listings for U.S. species will give these foreign importing countries the legal basis and priority obligation to inspect such shipments, and deal with CITES and national violations when they detect them.

3. The practical outcome of listing a species in Appendix III is that records are kept and trade in the species is monitored. We will gain and share new information on the trade with State fish and wildlife agencies, interjurisdictional fisheries commissions, and others who have jurisdiction over resident populations of this species. They will then be able to better determine the impact of the trade on resident species and the effectiveness of existing State management activities, regulations, and cooperative efforts.

4. When we list a U.S. native species on CITES Appendix III, a CITES Party is required to deny the export of a specimen of that species if it originated in the United States and was acquired or taken in violation of the laws of the United States. Closer inspection by importing countries helps to protect U.S. native Appendix-III species from illegal trade and reinforces U.S. Federal and State laws, particularly since a CITES Appendix-III export permit is issued only after we have made a legal acquisition finding.

5. When any live CITES-listed species (including Appendix-III) is exported (or imported), it must be packed and shipped according to the International Air Transport Association (IATA) Live Animals Regulations to reduce the risk of injury and cruel treatment. This requirement helps to ensure the survival of the animals while they are in transport. All of the species proposed for listing in Appendix III by the Service through this notice are traded as live animals (although some trade in alligator snapping turtle meat also occurs).

6. By listing a species in Appendix III, international trade data and other relevant information can be gathered to help policy makers determine whether we should propose the species for addition to Appendix II, remove it from Appendix III, or retain it in Appendix III.

7. Since many States regulate commercial trade in a number of wildlife species, data gathering on Appendix-III species, through international import/export control and permit issuance, will help to control illegal wildlife harvest and trade within the United States.

Criteria for Listing a Native U.S. Species in Appendix III

Article II, paragraph 3, of the CITES treaty states that “Appendix III shall include all species which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the cooperation of other parties in the control of trade.” Article XVI, paragraph 1, of the treaty states further that “Any party may at any time submit to the Secretariat a list of species which it identifies as being subject to regulation within its jurisdiction for the purpose mentioned in paragraph 3 of Article II. Appendix III shall include the names of the Parties submitting the species for inclusion therein, the scientific names of the species so submitted, and any parts or derivatives of the animals or plants concerned that are specified in relation to the species for the purposes of subparagraph (b) of Article I.” At the ninth meeting of the Conference of the Parties to CITES (COP9), held in the United States in 1992, the Parties adopted Resolution Conf. 9.25, which provides further guidance to Parties for the listing of their native species in Appendix III. The Resolution recommends that: “A Party (a) Ensure that (i) The species is native to its country; (ii) Its national regulations are adequate to prevent or restrict exploitation and to control trade, for the conservation of the species, and include penalties for illegal taking, trade or possession and provisions for confiscation; and (iii) Its national enforcement measures are adequate to implement these regulations; and (b) Determine that, notwithstanding these regulations and measures, there are indications that the cooperation of the Parties is needed to control illegal trade; and (c) Inform the Management Authorities of other range States, the known major importing countries, the Secretariat and the Animals Committee or the Plants Committee that it is considering the inclusion of the species in Appendix III and seek their opinion on the potential effects of such inclusion.” Therefore, we have used the following criteria in deciding to propose listing these U.S. species in Appendix III, and we will use these criteria for future proposed listings:

1. The species must be native to the United States. Although the species do not have to be endemic to the United States, a significant portion of their range should be in the United States.

2. The species must be subject to regulation within the United States, at either the State or Federal level. At least one State and preferably more than one (if found in more than one State) should have laws or regulations to control the take, trade, or possession of the species.

3. The species must be subject to international trade. We should also have some evidence that illegal trade (violating Federal or State laws or regulations) is occurring. The supporting evidence can be extensive, documented, or even anecdotal (although if so it must be verifiable).

4. Significant evidence that international or domestic trade in the species may not be occurring at sustainable levels does not have to exist, although such information is important. However, a need must exist to monitor international trade in the species and have the assistance of importing countries to identify and possibly confiscate shipments illegally exported from the United States.

5. The Treaty does not allow the exclusion of particular parts or products for any species listed in Appendix I or the exclusion of parts or products of animal species in Appendix II. Article XVI of the treaty, however, allows for either all specimens of a species or only certain identifiable parts or products of a specimen to be listed in Appendix III. For example, the current listing in CITES Appendix III of Swietenia macrophylla (bigleaf mahogany) by Bolivia, Brazil, Costa Rica, and Mexico includes only logs, sawn wood, and veneer sheets. Therefore, if the criteria listed above are met, we could list any designated parts, products, or life stages of a species in Appendix III, if we inform the CITES Secretariat of the limited listing.

Submission of Information to the CITES Secretariat

Besides this proposed rule, we will consult with any other range countries where the species being considered for Appendix III can also be found. For this listing, we will consult Canada regarding Graptemys geographica. After reviewing the results of these consultations and the information submitted in response to this proposed rule, we will decide whether to include these species in CITES Appendix III. We will publish that information in the Federal Register and notify the public of our decision on whether we will submit these species to the CITES Secretariat for inclusion in Appendix III. Upon notifying the Secretariat, the listing will take effect 90 days after the CITES Secretariat informs the CITES Parties of the listing.

Change in Status of Appendix III Species Based on New Information

We will monitor the trade of any U.S. Appendix-III species. If either of the following occurs, we will consider removing the species from Appendix III: (1) International trade in the species is very limited (fewer than 5 shipments per year or fewer than 100 individual animals or plants); or (2) Trade (legal and illegal) in the species (either internationally or in interstate commerce) is determined, after consulting with the States, not to be a concern.

If, after monitoring the trade of any U.S. Appendix-III species and evaluating its status in the wild, we determine that the species meets the CITES criteria for listing in Appendix II, based on Resolution Conf. 9.24, Annex 2a or 2b, we could consider proposing listing the species in Appendix II. Based on those criteria, the species would qualify for Appendix II if “It is known, inferred or projected that the harvesting of specimens from the wild for international trade has, or may have, a detrimental impact on the species by either: (i) Exceeding, over an extended period, the level that can be continued in perpetuity; or (ii) Reducing it to a population level at which its survival would be threatened by other influences.” The species would also qualify for listing in Appendix II if “The specimens resemble specimens of a species included in Appendix II under the provisions of Article II, paragraph 2(a), or in Appendix I, such that a non-expert, with reasonable effort, is unlikely to be able to distinguish between them.”

Practical Effects of Listing a Native U.S. Species in Appendix III

Permits and other requirements: The export of an Appendix-III species requires that before specimen(s) leave the country, the U.S. Fish and Wildlife Service's Office of Management Authority (OMA) must issue an export permit and the exporter must declare the export to our Office of Law Enforcement (LE). The requirement to declare a shipment to LE and comply with applicable regulations for wildlife exports is not changed by the CITES listing. OMA can issue a permit only if the applicant obtained the specimen(s) legally, without violating any applicable U.S. laws, including relevant State wildlife laws and regulations, and the live specimens are packed and shipped according to the IATA Live Animals Regulations to reduce the risk of injury and cruel treatment. No scientific non-detriment finding is required by the Service's Office of Scientific Authority (OSA). However, OMA, in determining if the applicant legally obtained the specimens, is required to consult relevant State agencies. Since the conservation and management of these species is under the jurisdiction of State agencies, it is their responsibility to decide if shipments follow State laws and regulations. OSA will monitor and evaluate the trade, to decide if there is a conservation concern that would require any further Federal action on our part.

Process, Findings, and Fees: To apply for a CITES permit, an applicant is required to furnish to OMA a completed CITES export permit application with a $25 check or money order to cover the cost of processing the application. You may obtain information about CITES permits from our website or from OMA (see: ADDRESSES, above). We will review the application to decide if the export meets the following criteria: (a) You did not obtain the specimen in violation of any U.S. Federal or State laws. You must provide documentation showing that you legally obtained the specimen. The applicant is often required to have a State license or permit to engage in certain activities with native species. When applying to OMA for a permit, an applicant is required to furnish copies of any license or permit. OMA will also contact the relevant U.S. States to verify the legality of collecting and possessing this particular native species. (b) As required by CITES, live animals must be shipped to reduce the risk of injury, damage to health, or cruel treatment. We carry out this CITES treaty requirement (and applicable CITES resolutions) by stating clearly on all CITES permits that shipments must comply with the IATA Live Animals Regulations. The LE Wildlife Inspectors are authorized to inspect shipments of CITES-listed species during export to ensure that the shipment complies with these regulations. Additional information on permit requirements is available from the OMA; additional information on declaration of shipments, inspection, and clearance of shipments is available on request from the Office of Law Enforcement.

Species Proposed for Listing in Appendix III

We propose to list the following species in CITES Appendix III:

1. Macroclemys temminckii (Alligator Snapping Turtle)

Macroclemys temminckii is found in the following States: Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Kansas, Louisiana, Mississippi, Missouri, Oklahoma, Tennessee, and Texas. It is confined to river systems that drain into the Gulf of Mexico. It is widely distributed in the Mississippi Valley from as far north as Kansas, Illinois, and Indiana to the Gulf. The species has been found in most river systems from the Suwanee River, Florida, to eastern Texas. M. temminckii is the largest freshwater turtle in North America. Adults are usually found in deeper water of large rivers and their major tributaries and are also found in lakes, canals, oxbows, swamps, ponds, and bayous associated with river systems. Management and regulation in the States are quite varied, and include, among others: Prohibitions on all take from the wild; prohibitions on all commercial take from the wild; inclusion on State lists of endangered and threatened wildlife; prohibitions on all possession, buying, selling, sale, transport, or export; and closed seasons.

The species does not breed until 11-13 years and lays one clutch of 9-52 eggs/year. The species has declined throughout its range (mainly the Mississippi River drainage and other river systems in the Southeast), due particularly to loss of bottomland hardwood forests, but also extensive collection for personal consumption and commercial marketing of meat. Because of the species life history, collection of breeding adults can quickly become unsustainable. Intensive collecting has severely depleted local populations and altered demographic structure in others, such as in southern Louisiana. The species is considered threatened in much of the northern part of its range and has been considered for candidate status under the Endangered Species Act (ESA). IUCN (the World Conservation Union) classifies M. temminckii as “vulnerable” (a species that will likely move into the “endangered” category in the future, if the factors leading to its endangerment continue operating). Although commercial use is prohibited in most States other than Louisiana (which allows wild-capture) and Mississippi (farm-hatched only), people can take the species for personal use in most States, and there is almost no management of the species by State agencies. Anecdotal information from turtle trappers shows that M. temminckii has declined drastically throughout its range, due to over-collection and habitat loss.

Small specimens of M. temminckii are used for the domestic pet trade, and the larger specimens are traded as meat for human consumption. Some hatchlings offered by dealers are said to have been “captive-bred,” although these are likely to have been hatched from eggs collected from nests in the wild. Larger specimens, costing as much as $750 each or $1,100 per pair, are less commonly offered in the pet trade. To supply most of the hatchling turtles, more than 1,000 female turtles are held in live ponds until June, when their eggs are fertile and are laid. The turtles are then butchered for their meat, and the eggs are artificially hatched. The M. temminckii meat trade is much larger than the pet trade.

Analysis of import/export data obtained from the Office of Law Enforcement showed that live M. temminckii have been exported in increasing numbers in recent years. The annual exports of live specimens have increased from 290 in 1989, to 4,447 in 1994. We also know that illegal trade occurs. The export figures from 1989-1994 reveal that international trade in M. temminckii primarily for human consumption and as pets increased dramatically during the 6-year period. Besides international trade, a significant domestic trade reportedly exists.

The Chelonian Advisory Group (CAG) to the American Association of Zoological Parks and Aquariums recommended that M. temminckii become a high priority for future conservation efforts. The CAG reported to the Captive Breeding Specialist Group of the IUCN that this species was one of three North American turtles most in need of management.

The United States submitted a proposal to CITES COP10 in Zimbabwe (June 1997) to include the species in CITES Appendix II. The proposal was withdrawn after some countries expressed the view that international trade is small and conservation problems for the species should be dealt with through domestic measures. The State of Louisiana also opposed the proposal then. Many countries at the COP suggested that, for an endemic species such as this, inclusion in Appendix III would be preferable.

2. Graptemys spp.: All 12 Species of Map Turtles

The 12 Graptemys species (see Table below) are endemic to the United States, except G. geographica, which ranges into southern Quebec. Most species have fairly restricted ranges in various drainages in the southeastern United States. Three species, G. geographica, G. pseudogeographica (= kohnii), and G. ouachitensis, are widespread and locally common (the Mississippi and Missouri River drainages). G. pseudogeographica and G. ouachitensis probably account for most of the trade. Populations of most species have declined because of habitat degradation. Two species (G. flavimaculata, G. oculifera) are listed as threatened under the Federal Endangered Species Act and endangered by the State of Mississippi. A third species (G. nigrinoda) is also listed as endangered by the State of Mississippi. Reproductive potential is moderate: 20-30 eggs total in several clutches. Overall, the more restricted species in the Southeast may have lower reproductive potential.

Scientific name	Common name
Graptemys barbouri	Barbour's map turtle.
Graptemys caglei	Cagle's map turtle.
Graptemys ernsti	Escambia map turtle.
Graptemys flavimaculata	Yellow-blotched map turtle.
Graptemys gibbonsi	Pascagoula map turtle.
Graptemys nigrinoda	Black-knobbed map turtle.
Graptemys oculifera	Ringed map turtle.
Graptemys pulchra	Alabama map turtle.
Graptemys versa	Texas map turtle.
Graptemys geographica	Common map turtle.
Graptemys ouachitensis	Ouachita map turtle.
Graptemys pseudogeographica	False map turtle.

Hatchlings of many of the map turtle species are popular in the pet trade because of their bright colors. Turtle farmers in recent years in the Southeast have apparently achieved considerable success with captive-breeding operations, but we believe all such operations draw upon the wild to replace breeding stock. The degree of wild harvest is unknown but could be very substantial. Many species of Graptemys are also eaten, but it is not known if much meat is handled commercially. Export numbers have risen dramatically, from 8,600 in 1991 to 37,000 in 1993 and probably more than 100,000 in 1995. More recent data are not readily available. The majority of these may represent farm-raised animals that may or may not been taken directly from the wild.

The United States submitted a proposal to CITES COP10 in 1997 to include nine species of map turtles in Appendix II (and to leave as unlisted the three more common species). Prior to that meeting, most but not all range States supported that proposal. The proposal obtained the majority of votes, but was not adopted since it missed the necessary two-thirds majority by one vote, with 37 for and 19 against. We believe that including the whole genus (the nine rarer species and the three more heavily traded species) in Appendix III is preferable, to both adequately monitor trade and obtain the advantages of Appendix III listings.

Required Determinations

The Office of Management and Budget has not reviewed this document under Executive Order 12866.

The Department of the Interior certifies that this document will not have a significant effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This proposed rule establishes the means to monitor the international trade in several native U.S. species and does not impose any new or changed restriction on the trade of legally acquired specimens. Based on current exports of these species, we estimate that the costs to implement this rule will be less than $2,000,000 annually due to the costs associated with obtaining permits. Similarly, 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. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

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 proposed rule does not impose an unfunded mandate of more than $100 million per year or have a significant or unique effect on State, local, or tribal governments or the private sector because we, as the lead agency for CITES implementation in the United States, are responsible for the authorization of shipments of live wildlife, or their parts and products, that are subject to the requirements of CITES.

Under Executive Order 12630, this proposed rule does not have significant takings implications since there are no changes in what may be exported. The permit requirement will not alter the current criteria for exports of these specimens.

Under Executive Order 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment because it will not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Although this proposed rule will generate information that will be beneficial to State wildlife agencies, it is not anticipated that any State monitoring or control programs will need to be developed to fulfill the purpose of this proposed rule. We have consulted the States, through the International Association of Fish and Wildlife Agencies, on this proposed action.

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.

This proposed rule does not contain new or revised information collection for which Office of Management and Budget approval is required under the Paperwork Reduction Act. The referenced information collection is covered by an existing OMB approval and has been assigned clearance No. 1018-0093, Form 3-200-27, with an expiration date of January 31, 2001; implementing regulations for the CITES documentation appear at 50 CFR 23. 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.

This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment. The action is categorically excluded under 516 DM 2, Appendix 1.10 in the Departmental Manual. A detailed statement under the National Environmental Policy Act of 1969 is not required.

Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical language that interferes with its clarity? What else could we do to make this proposed rule easier to understand? (3) Does the format of the proposed rule (grouping and order of the sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the regulation in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the regulation?

EO 12866 provides for a 60-day comment period as a general practice. But, in this case, we believe that a 60-day comment period is unnecessary for the following reasons: (1) Since the proposed listings included species that were previously proposed for listing in Appendix II at the last COP, the Service has received substantial comments in the past, and (2) The Service has had preliminary discussions with various State wildlife agencies regarding the proposed listings. In addition, we believe that the listing of these species on Appendix III should correspond closely with the next COP, which will be held in April 2000.

Authors: This proposed rule was prepared by Dr. Susan Lieberman and Timothy VanNorman, Office of Scientific Authority, under authority of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

This proposed rule, if adopted, would result in a final decision that would amend 50 CFR 23.23 by adding Alligator snapping turtle (Macroclemys temminckii) and all species of map turtles (Graptemys sp.) to Appendix III of CITES for the United States. After analysis of the comments on the proposed rule, we will publish our decision in the Federal Register. If adopted, we would submit the additions to the CITES Secretariat, who has 90 days for inclusion in Appendix III and formal notification to the CITES Party countries. Therefore, the effective date for implementing the amendment to 50 CFR 23 would be 90 days from publishing the final rule. However, we will contact the Secretariat prior to publishing the final rule, if adopted, to clarify the exact time period required by the Secretariat to implement the listing.

Dated: December 21, 1999.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and Parks.