The US Fish & Wildlife Service (FWS) has published a proposed rule to revise its regulations implementing CITES with updates for CoP14 and 15: Revisions of Regulations Implementing the Convention on International Trade in Endangered Species and Wild Fauna and Flora (CITES); Updates Following…. 74 FR 14200, March 8, 2012. You can view the proposal on Conservation Force’s website at http://www.conservationforce.org/pdf/2012-CITESregs-4986.pdf. Note that these are only proposals, so you continue to be subject to the existing rules for now. That said, it may be best to start practicing the more restrictive procedures when appropriate.
This is an extremely important proposal that requires detailed attention. Though not of the magnitude of the 2007 regulations that are still causing havoc today, the proposal is the same kind. In fact, it addresses some of the problems with the Service’s 2007 regulations, such as the re-definition of hunting trophies, which it proposes to largely roll back to what it was before 2007.
FWS notes that the CITES Parties established a definition at CoP15, and FWS proposes to adopt that definition for itself with some qualifications. That is the age-old definition we all know that does not change a trophy. A trophy is a trophy.
Manufactured items made from the sport-hunted animal will now be importable.
Thanks to successful remedial work at CITES CoP15, Res. Conf. 12.3, Rev. CoP15, the FWS writes, “allows manufactured items derived from the hunted animal to be considered part of a ‘hunting trophy,’ whereas our definition (USF&WS) in 50 CFR Part 23 (2007) specifically excludes such items….” The FWS states, “We continue to have concerns…(yet) we propose to incorporate into Section 23.74 the definition contained in Resolution Conf. 12.3 (Rev. CoP15) with some additional text to clarify the conditions under which we will allow the import into the United States of manufactured items as part of a ‘hunting trophy.’”
This would eliminate the current definition against trophies if the item is crafted or worked (buttons, clothing, elephant hair bracelets, gun scabbards, belts, buckets, ornaments, etc.). It would also eliminate the need to code items as “personal” property on the export permit instead of “trophies” and avoid the hail of seizures arising from such foolishness. It will eliminate the confusion in trade statistics arising out of the FWS demand that trophy items worked or crafted not be coded as trophies. It remains to be seen if it applies to scrimshawed tusks or more serious carvings. Many hunters chose to have the Big Five pencil-etched on tusks of one-tusk elephant or on inferior tusks in the past, and we still have one case in litigation.
It is important to note the new “conditions” below required by the proposal because any violation invalidates the export permit and “subjects” the item to seizure. Today, seizure is a given.
(1) Is raw, processed, or manufactured;…
(4) Includes worked, manufactured, or hand-crafted items made from the sport-hunted animal only when:
(i) Such items are contained in the same shipment as raw or tanned parts of the sport-hunted animal and are for the personal use of the hunter;
(ii) The quantity of such items is no more than could reasonably be expected given the number of animals taken by the hunter as shown on the license or other documentation of the authorized hunt accompanying the shipment; and
(iii) The accompanying CITES documents (export document and, if appropriate, import permit) contain a complete itemization and description of all items included in the shipment.
This last condition, (iii), presumably is satisfied by completing the validation box on the export permit in detail, but if it is not there, you will lose it. On the import side, when import permits are necessary for Appendix I species, then your application will need to specify the item. Essentially, the proposal states that the fact the trophy is manufactured (worked, crafted, modified) has to appear on the import permit; so, you will have to describe that in your permit application and make sure the import permit reflects that specification. This is in addition to the description on the export permit, which is issued after the fact. It is not clear if the crafted item is to be treated the same when it is the primary trophy rather than a separate part that is crafted, i.e. does your import application and permit have to state painted elephant tusks even though it is only one piece. So, you need to know of any crafting before applying for an import permit so that you can have it specified on the permit, then the description on the export permit description must be compatible. This is not just true of separate items; it is true of whole items that have any working even though they are one piece.
This is not yet a home run. There is still a lot of work ahead for this to survive the proposal process. The Service expresses extreme concern that some non-trophy items have been imported disguised as parts of trophies and emphasizes they will “carefully monitor imports” of such items to “evaluate the impact of this change” and “revisit our definition” as needed. That said, we are concerned that the conditions don’t serve as unnecessary traps in the course of time, as they no doubt will for some.
Use of Trophies After Import
The FWS is also adding text to emphasize that prohibited uses of trophies after import are unlawful. This may signal a new enforcement focus; so, heads up! It makes clear that the transfer, donation, exchange or sale of Appendix I species and certain Appendix II species (like elephant on Appendix II with an annotation that it is for trophy purposes only – Botswana, RSA, Namibia, Zimbabwe) may only be for non-commercial purposes. This means you can’t ever sell your leopard, elephant, rhino, etc., even within your home state, because that prohibition is put on all import permits as a condition of import.
Replacement Documents
The FWS is making the replacement of documents that are lost, damaged or destroyed more onerous and more like that necessary for retrospective documents that need amendment or were never issued in the first place. For example, the proposed criteria for acceptance of a replacement document requires that the trophies be presented for inspection without delay upon arrival, a replacement document request be made at the same time and a signed, dated, notarized statement at the same time that describes the circumstances that resulted in the lost, damaged, stolen or accidentally destroyed document and, fourth, that a copy of the document in question be provided at that same time. Those are a lot of new conditions that go beyond the underlying CITES Resolution. Normally when a document is lost or stolen the problem is not discovered until the point of arrival/import, so how does one meet all of these conditions instantly? We will wait to see what the expert import brokers advise, but the FWS seems to be proposing an impossibility. If possible, it will have to be skillfully and precisely executed by professionals who are well prepared for it in advance and can identify the nature of the problem instantly (what the FWS calls a sworn “statement of responsibility”). Certainly brokers need to speak up and against this requirement if it is too burdensome. All of the actions have to be taken before a search for the missing documents, so act accordingly. See Section 23.52 on page 14220 of the Notice. Imagine requesting an export country to issue a new permit before a search for a lost document is even made or swearing what happened before you know. Who is going to swear until the facts are known?
Make no mistake, Law Enforcement is not happy with import brokers that have held off declaring imported items until a search is made or, worse, until a replacement permit is obtained. It must be remembered that until recently Law Enforcement gave importers a 30-day “grace period” to correct mistakes and to find or replace missing or damaged permits. Law Enforcement also did not hold hunters liable for government-to-government differences. So, in effect, FWS has eliminated the grace period to correct errors and losses, is holding the hunter responsible for government errors and is now eliminating the wiggle room when permits are lost and need to be replaced. It is difficult to imagine requesting a replacement permit before making a search for a missing document, but that is what the proposal distinctly states.
What may be as important are issues not addressed in the proposal, like the recent US enforcement of double quotas when trophies are imported in a different year than taken, so brokers should be advised. There also is no revision of the FWS regulation on validation/endorsement upon export that is leading to a growing number of seizures. The Parties to CITES adopted a revision so that when things go awry, the importing and exporting countries could attempt to work it out. Instead the FWS is seizing and forfeiting shipments even though there is no doubt about the quantity or authenticity of the items. Perhaps these issues should be brought up by commenters as well. The deadline for comments is April 9, 2012.
