Petition to Revise Regulation and for Suspension

Dear Director Hall,

This is a petition to revise 50 CFR 23.22(c)(1) which is Shipment requirements for in-transit shipment. Specifically, the regulation is the new requirement that in-transit shipments, although under Customs custody, “must stay only for the time needed to immediately transfer the specimen to the mode of transportation used to continue to the final destination…” in the intermediary country they are transiting.

This is also a request that the enforcement of the subsection in issue be suspended and seized trophies be returned in the interval. Tons of trophies costing tens of millions of dollars are expected to be placed in jeopardy by the interpretation and enforcement of the new subsection over the next 60 days.

The Regulation Subsection is Ultra Vires

Article VII, Exemptions and Other Special Provisions Relating to Trade provides an exemption from import, export and re-import permitting of listed species in-transit as long as they remain under custody of Customs. It is unconditional.

1. The provisions of Articles III, IV and V shall not apply to the transit or transshipment of specimens through or in the territory of a Party while the specimens remain in Customs control.
Article VII

The preexisting U.S. regulations provided the same unqualified, express exemption:

23.13 Exceptions
(b) The prohibitions in section 23.11(b) through (d) concerning importation shall not apply to wildlife or plants listed in Appendix I, II, III that are being transshipped through the United States provided such wildlife or plants remain in Customs custody.

This is the only USF&WS regulation prior to the new regulation adopted in August, 2007, effective September 2007. It has been an unconditional exemption as long as the items remained in Customs custody.
The new definition of in-transit shipment is to the same unconditional effect:

23.5 Definitions
In-transit shipment means the transshipment of any wildlife or plant through an intermediary country when the specimen remains under Customs control and either the shipment meets the requirements of section 23.22 or the sample collection covered by an ATA carnet meets the requirements of section 23.50.

The additional language is unrelated to the issue herein.

The first problem is not from that definition, but language in the subsection needing revision:

23.22 What are the requirements for in-transit shipments?
(a) Purpose. Article VII(1) of the Treaty allows for a shipment to transit an intermediary country that is a Party before reaching its final destination without the need for the intermediary Party to issue CITES documents. To control any illegal trade, Parties are to inspect, to the extent possible under their national legislation, specimens in transit through their territory to verify the presence of valid documentation. See §23.50 for in-transit shipment of sample collections covered by an ATA carnet.
(b) Document requirements. An in-transit shipment does not require a CITES document from an intermediary country....
(c) Shipment requirements. An in-transit shipment, including items in an on-board store, must meet the following:
(1) When in an intermediary country, an in-transit shipment must stay only for the time need to immediately transfer the specimen to the mode of transport used to continue to the final destination and remain under customs control. Other than during immediate transfer, the specimen may not be stored in a duty-free, bonded, or other kind of warehouse or a free trade zone. (Emphasis added to language in issue.)

The new condition that the connections or transfers take place “immediately” is foreign to the history of CITES and the related Resolutions. Its literal interpretation comes as a complete surprise to the community.
The Convention has no such condition. To the contrary, the Convention provides an unconditional exemption for in-transit shipments. Resolution Conf. 4.10 recommended that interruptions in movement be for transshipment-related purposes. Resolution Conf. 7.4 recommended that Parties inspect transit shipments rather than ship them onward immediately. Resolution Conf. 9.7 is little more than an expansion of Resolution Conf. 4.10 and 7.4. Though the proposal for the new regulation in issue states it is for the purpose of implementing the Resolutions of the Parties, the subsection in issue has no such basis. (Ironically, many other Resolutions were wholly rejected so the process was selective and in this case a step beyond the intent of the Parties.) It is a home brewed imposition that actually contradicts the inspection recommendation and international long-standing and even necessary practices.

The new USF&WS regulation in issue states:

We define an in-transit shipment as the transshipment of any wildlife or plant through an intermediary country, including storage in a duty-free, bonded, or other kind of warehouse or a free-trade zone, only for the time necessary to transfer the specimens to the mode of transport used to continue to the final destination.

and

Section 23.22(c) Shipment requirements. An in-transit shipment, including items in an on-board store, must meet the following:
(1) When in an intermediary country, an in-transit shipment must stay only for the time need to immediately transfer the specimen to the mode of transport used to continue to the final destination and remain under customs control. Other than during immediate transfer, the specimen may not be stored in a duty-free, bonded, or other kind of warehouse or a free trade zone.

The related Article of CITES itself plainly states that import, export and re-export permit requirements “shall not apply to the transit or transshipment of specimens through or in the territory of a Party while the specimens remain in Customs control,” Article VII. The new regulation of USF&WS changes the determination from “Customs control” to one of time. Customs control is no longer a saving factor if “Customs control” is for a period of time longer than immediate.

Problems

The subsection in question changes the exemption determination condition from Customs control/custody to one of time. The time period is not specified except to be “immediate”. This contradicts the Resolutions and USF&WS’s own regulations that the in-transit shipments be inspected. It appears to necessitate a month or more delay for storage, import permit extension and costs while a re-export permit is issued by the country that has not even cleared it for entry. In the case of Appendix I species, the shipment will have to be separated and the Appendix I species sent back to the country of export/origin until import and re-export permits can be duly issued by the in-transit country authorities. All of this happens in an intermediary country far removed from the exporter or importer. The added delays for permits from the intermediary authorities are not for foreseeable periods, so import permits will inevitably expire. It is an unconscionable imposition on everyone of little added value unless one wants to hinder this form of trade.

Whatever the case, it causes more problems and risks than it solves. Without incident or problems trophies have been taking up to 30 days to transit through RSA under Customs custody and control. Going into the Christmas holidays simultaneously with the end or near-end of the Southern and Eastern African tourist hunting seasons, there is a deluge of trophy shipments going through RSA in-transit within the next 60 days. It is tens of millions of dollars of trophies that are lawfully acquired; trophies taken as part of the wildlife and habitat conservation strategies of the neighboring countries. The CITES listed species are in shipments with tens of thousands of unlisted specimens. Seizures have begun.

Chicago has already begun seizing trophies. Craig Boddington and his wife, Dianna Grey, INV 2008304718 and 2008304719, had their elephant trophies seized upon arrival in Chicago on September 12, 2008. Their wooden trophy crates had to be fumigated while in-transit in RSA because of a recent USDA regulation and then were in line for the next available flight, which takes weeks at this time of year and always will. The transfer was not “immediate”, but fully within Customs custody and control and long term practices. The fumigation of the wooden transport crates is necessary before importation into the U.S. under new USDA regulations. The alternative is not comprehensible. The second seizure in Chicago is the seizure of two (2) Gobi argali from the personal checked-through baggage of Gary Young, who stopped over in Korea while his trophy remained in Custom custody outside of his possession. Those two seizures are hardships, but nothing compared to the sky that is about to fall and the confusion spreading in the industry.

There needs to be a timeout while this is resolved. There also needs to be unambiguous communication and detailed advice to the transit country authorities. What is immediate and what is not? When is the clock running and when does it stop, such as when the hold-up is for inspection for permits, identification, investigation, holding for permitting, fumigation to meet other new USDA (USA) regulations. Cost has to be a consideration as it will more than double in many instances. This can become “The Perfect Storm” for the tourist safari industry and for the dependent conservation/management plans of developing nations around the world.

This petition is submitted by Conservation Force and its allied and affiliated sportsmen’s conservation organizations. It is also on behalf of Mochaba in Botswana and RSA CITES Authorities.

Respectfully submitted,

John J. Jackson, III
Attorney for Petitioners
Conservation Force
3240 S. I-10 Service Rd. W, Ste. 200
Metairie, LA 70001-6911
Phone: 504-837-1233
Fax: 504-837-1145
Email: jjw-no@att.net