You are mostly correct that Appendix II Nepenthes seed according to the CITES Convention are exempt from needing a permit. Footnote #4 specifies an exemption under what is normally covered under CITES. However, we have to be careful to ensure that our interpretation of the CITES convention matches how the ESA interprets the Convention, since the ESA is the regulatory arm of CITES in the USA.
Originally Posted by silenceisgod
I believe that is incorrect. And I quote from a US Fish & Wildlife Service publication entitled U.S. Endangered Species Act: Permits for Non-native Species or Import and Export of Non-native and Native Species, "The U.S. Endangered Species Act (Act) was passed to prevent the extinction of native and non-native animals and plants by providing measures to help alleviate the loss of species and their habitats" (p. 1, emphasis added).
Originally Posted by silenceisgod
And again I quote from Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service,
Endangered Species Act of 1973 (16 U.S.C. 1531-1544, 87 Stat. 884), as amended -- Public Law 93-205, approved December 28, 1973, repealed the Endangered Species Conservation Act of December 5, 1969 (P.L. 91-135, 83 Stat. 275). The 1969 Act had amended the Endangered Species Preservation Act of October 15, 1966 (P.L. 89-669, 80 Stat. 926).
The 1973 Act implemented the Convention on International Trade in Endangered Species of Wild Fauna and Flora (T.I.A.S. 8249), signed by the United States on March 3, 1973, and the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (50 Stat. 1354), signed by the United States on October 12, 1940.
Furthermore, the interpretation conveyed by the ESA in the Federal Regulations does include seeds, "The prohibitions apply equally to live or dead animals or plants, their progeny (seeds in the case of plants), and parts or products derived from them." (Digest of Federal Resource Laws, p. 1, emphasis added). And from the act itself, "The term 'plant' means any member of the plant kingdom, including seeds, roots and other parts thereof." (16 U.S.C. 1532, 14). However, under the wording of the ESA, it is likely that the importation of some exempted Appendix II seed is legal upon the following basis:
Any importation into the United States of fish or wildlife shall, ifó
(A) such fish or wildlife is not an endangered species listed pursuant to section 4 of this Act but is listed in Appendix II of the Convention;
(B) the taking and exportation of such fish or wildlife is not contrary to the provisions of the Convention and all other applicable requirements of the Convention have been satisfied;
(C) the applicable requirements of subsection (d), (e), and (f) of this section have been satisfied; and
(D) such importation is not made in the course of a commercial
be presumed to be an important not in violation of any provision of this Act or any regulation issued pursuant to this Act. (16 U.S.C. 1538, 9(c))
But, do note that that the exemption here is for species that are listed as Appendix II and are not endangered. The determination of what is an endangered species is determined by the Secretary of Commerce (ESA, section 4).
What is not criminally illegal by CITES (because again CITES is an international treaty, not US criminal law) can be made criminal by US Law in this case the ESA. There is language in the ESA to make regulations stricter than is required by CITES or even the act itself,
Any State law or regulation respecting the taking of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in this Act or in any regulation which implements this Act but not less restrictive than the prohibitions so defined. (16 U.S.C. 1535, (f)2)
The problem with the trade of exempted Appendix II seeds is that it is possible for them to be covered under the ESA by regulatory fiat; for example, regulatory fiat has stated that the seeds from exempted Appendix II species cannot be wild-collected. "Seeds of threatened plants require permits if the seed came from wild plants, but do not require permits if the seeds are from artificially propagated plants. A label stating that the seeds are of cultivated origin must accompany the shipment of such seeds." (http://www.fws.gov/permits/faqs/FaqNOPQ.shtml)
So, are nepenthes seeds covered by ESA interpretation of CITES? Yes, but there are exemptions.
And regardless of whether a CITES permit is required, the USDA always requires a seeds permit of some kind.
- If it is wild-collected Appendix II nep seed, then a permit is needed.
- If Appendix II nep seed is bought or sold in regular commerce, then a permit is required.
- If it is seed from artificially propagated Appendix II nep plants, then a permit is not needed.
- If it is an Appendix I species, then both an import and an export permit are needed.