PROTECTION OF ENDANGERED SPECIES OF ANIMALS AND PLANTS ORDINANCE

Hong Kong Ordinances

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PROTECTION OF ENDANGERED SPECIES OF ANIMALS AND PLANTS ORDINANCE - SCHEDULE 3

CONVENTION INSTRUMENTS

[sections 2, 4, 19 &
48(1)]

This Schedule sets out, with or without modification, the relevant parts of Convention instruments that have the force of law in Hong Kong.

PART 1

INTERPRETATION AND APPLICATION

I. "Hybrid animal" (雜交動物)

1. Hybrid animals that have in their recent lineage one or more specimens of species included in Appendix I or Appendix II shall be subject to the provisions of this Ordinance just as if they were full species, even if the hybrid concerned is not specifically included in the Appendices.

2. If at least one of the animals in the recent lineage is of a species included in Appendix I, the hybrids shall be treated as specimens of species included in Appendix I (and shall be eligible for the exemptions of Article VII of the Convention when applicable).

3. If at least one of the animals in the recent lineage is of a species included in Appendix II, and there are no specimens of an Appendix I species in such lineage, the hybrids shall be treated as specimens of species included in Appendix II.

4. The words "recent lineage" shall generally be interpreted to refer to the previous four generations of the lineage.

II. "Appropriate and acceptable destination"
(適當和可接受的目的地)

Where the term "appropriate and acceptable destination" appears in an annotation to the listing of a species in Appendix II with reference to the export of or international trade in live animals, this term shall be defined to mean a destination where the relevant authority of the place of import is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it.

III. "Artificially propagated" (人工培植)

Regarding the definition of "artificially propagated"

1. The following definitions for terms are used—

(a) "under controlled conditions" means in a non-natural environment that is intensively manipulated by human intervention for the purpose of plant production. General characteristics of controlled conditions may include but are not limited to tillage, fertilization, weed and pest control, irrigation, or nursery operations such as potting, bedding or protection from weather; and

(b) "cultivated parental stock" means the ensemble of plants grown under controlled conditions that are used for reproduction, and which must have been, to the satisfaction of the relevant authority of the exporting place—

(i) established in accordance with the provisions of the Convention and relevant domestic laws and in a manner not detrimental to the survival of the species in the wild; and

(ii) maintained in sufficient quantities for propagation so as to minimize or eliminate the need for augmentation from the wild, with such augmentation occurring only as an exception and limited to the amount necessary to maintain the vigour and productivity of the cultivated parental stock.

2. The term "artificially propagated" shall be interpreted to refer to plant specimens—

(a) grown under controlled conditions; and

(b) grown from seeds, cuttings, divisions, callus tissues or other plant tissues, spores or other propagules that either are exempt or have been derived from cultivated parental stock.

3. Plants grown from cuttings or divisions shall be considered to be artificially propagated only if the traded specimens do not contain any material collected from the wild.

4. An exception may be granted and specimens deemed to be artificially propagated if grown from wild-collected seeds or spores only if, for the taxon involved—

(a) (i) establishment of a cultivated parental stock presents significant difficulties in practice because specimens take a long time to reach reproductive age, as for many tree species;

(ii) the seeds or spores are collected from the wild and grown under controlled conditions within a range state, which must also be the place of origin of the seeds or spores;

(iii) the relevant authority of that range state has determined that the collection of seeds or spores was legal and consistent with relevant domestic laws for the protection and conservation of the species; and

(iv) the relevant authority of that range state has determined that—

(A) collection of the seeds or spores was not detrimental to the survival of the species in the wild; and

(B) allowing trade in such specimens has a positive effect on the conservation of wild populations;

(b) at a minimum, to comply with subparagraph (a)(iv)(A) and (B) above—

(i) collection of seeds or spores for this purpose is limited in such a manner such as to allow regeneration of the wild population;

(ii) a portion of the plants produced under such circumstances is used to establish plantations to serve as cultivated parental stock in the future and become an additional source of seeds or spores and thus reduce or eliminate the need to collect seeds from the wild; and

(iii) a portion of the plants produced under such circumstances is used for replanting in the wild, to enhance recovery of existing populations or to re-establish populations that have been extirpated; and

(c) in the case of operations propagating Appendix I species for commercial purposes under such conditions they are registered with the Secretariat.

Regarding grafted plants

5. Grafted plants shall be recognized as artificially propagated only when both the root-stock and the graft have been taken from specimens that have been artificially propagated and grafted specimens consisting of taxa from different Appendices shall be treated as specimens of the taxon included in the more restrictive Appendix.

Regarding hybrids

6. Hybrids shall be subject to the provisions of this Ordinance even though not specifically included in the Appendices if one or both of their parents are of taxa included in the Appendices, unless the hybrids are excluded by a specific annotation in Appendix II or Appendix III.

7. Regarding artificially propagated hybrids—

(a) any plant species or other taxa listed in Appendix I shall be annotated in accordance with Article XV of the Convention if the provisions of this Ordinance relevant to Appendix I are to apply to artificially propagated hybrids derived from such species or taxa;

(b) if a plant species or other taxon listed in Appendix I is annotated, an export permit or re-export certificate shall be required for trade in specimens of all artificially propagated hybrids derived from it; but

(c) artificially propagated hybrids derived from one or more unannotated Appendix I species or other taxa shall be treated as being included in Appendix II and entitled therefore to all exemptions applicable to artificially propagated specimens of species listed in Appendix II.

Regarding flasked seedlings of Appendix I orchids

8. Flasked seedlings of orchid species listed in Appendix I obtained in vitro, in solid or liquid media, and transported in sterile containers, shall not be considered as specimens of a scheduled species for the purposes of this Ordinance if they have been artificially propagated.

IV. "Bred in captivity" (圈養繁殖)

Regarding terminology

1. For specimens of animal species bred in captivity—

(a) "first-generation offspring (F1)" are specimens produced in a controlled environment from parents at least one of which was conceived in or taken from the wild;

(b) "offspring of second generation (F2) or subsequent generation (F3, F4, etc.)" are specimens produced in a controlled environment from parents that were also produced in a controlled environment;

(c) the "breeding stock" of an operation means the ensemble of the animals in the operation that are used for reproduction;

(d) "a controlled environment" is an environment that is manipulated for the purpose of producing animals of a particular species, that has boundaries designed to prevent animals, eggs or gametes of the species from entering or leaving the controlled environment, and the general characteristics of which may include but are not limited to: artificial housing; waste removal; health care; protection from predators; and artificially supplied food.

Regarding the term "bred in captivity"

2. The definition provided below shall apply to the specimens bred in captivity of species included in the Appendices, whether or not they were bred for commercial purposes.

3. The term "bred in captivity" shall be interpreted to refer only to specimens born or otherwise produced in a controlled environment, and shall apply only if—

(a) the parents mated or gametes were otherwise transferred in a controlled environment, if reproduction is sexual, or the parents were in a controlled environment when development of the offspring began, if reproduction is asexual; and

(b) the breeding stock, to the satisfaction of the competent government authorities of the exporting place—

(i) was established in accordance with the provisions of the Convention and relevant domestic laws and in a manner not detrimental to the survival of the species in the wild;

(ii) is maintained without the introduction of specimens from the wild, except for the occasional addition of animals, eggs or gametes, in accordance with the provisions of the Convention and relevant domestic laws and in a manner not detrimental to the survival of the species in the wild—

(A) to prevent or alleviate deleterious inbreeding, with the magnitude of such addition determined by the need for new genetic material; or

(B) to dispose of confiscated animals; or

(iii) has produced offspring of second generation (F2) or subsequent generation (F3, F4, etc.) in a controlled environment; or is managed in a manner that has been demonstrated to be capable of reliably producing second-generation offspring in a controlled environment.

Regarding marking of specimens of Appendix I
species bred in captivity

4. A specimen bred in captivity shall be marked in accordance with the provisions on marking in the Resolutions adopted by the Conference of the Parties and the type and number of the mark shall be indicated on any Convention certifying document issued in respect of the specimen.

V. "Readily recognizable part or derivative"
(可輕易地識別的部分或衍生物)

1. The term "readily recognizable part or derivative" shall be interpreted to include any specimen which appears from an accompanying document, the packaging or a mark or label, or from any other circumstances, to be a part or derivative of an animal or plant of a species included in the Appendices, unless such part or derivative is specifically exempted from the provisions of this Ordinance.

2. Coral sand and coral fragments shall not be considered as specimens of a scheduled species for the purposes of this Ordinance.

3. In this Schedule—

(a) "coral sand" means coral material not identifiable to the level of genus and consisting entirely or in part of finely crushed fragments of dead coral no larger than 2 mm in diameter and which may also contain, amongst other things, the remains of Foraminifera, mollusc and crustacean shell, and coralline algae;

(b) "coral fragments" means unconsolidated fragments of broken finger-like dead coral and other coral material between 2 and 30 mm in diameter, which are not identifiable to the level of genus;

(c) "coral rock" means hard consolidated coral material not identifiable to the level of genus but identifiable to the level of order, larger than 3 cm in diameter, formed of fragments of dead coral and which may also contain cemented sand, coralline algae and other sedimentary rocks, and includes live rock and substrate, but does not include dead coral;

(d) "live rock" means pieces of coral rock to which are attached live specimens of invertebrate species and coralline algae not included in the Appendices and which are transported moist, but not in water, in crates;

(e) "substrate" means pieces of coral rock to which are attached invertebrates (of species not included in the Appendices) and which are transported in water like live corals;

(f) "dead coral" means pieces of coral identifiable to the level of species or genus, which are dead when exported, but which may have been alive when collected, and in which the structure of corallites (the skeleton of the individual polyp) is still intact;

(g) "live coral" means pieces of coral identifiable to the level of species or genus, which are alive and transported in water.

PART 2

PERMITS AND CERTIFICATES

Regarding standardization of permits and certificates
issued under the Convention

1. To fulfil the requirements of Article VI of the Convention and relevant Resolutions, export and import permits, re-export and pre-Convention certificates, certificates of origin and certificates of captive breeding and artificial propagation (except where phytosanitary certificates are used for this purpose) shall include all the information specified in the Annex.

2. Every form shall be printed in one or more of the working languages of the Convention (English, Spanish, French) and in the national language if it is not one of the working languages.

Regarding export permits and re-export certificates

3. A re-export certificate shall also specify—

(a) the place of origin, the number of the export permit of the place of origin and its date of issue; and

(b) the place of last re-export, the number of the re-export certificate of that place and its date of issue,

or if the case arises—

4. Subject to paragraph 12 of this Part, the provisions of Article III, paragraph 3, Article IV, paragraph 4, Article V, paragraph 3, and Article VI, paragraph 2, of the Convention shall be understood to mean that an export permit or re-export certificate shall be valid for a period of no more than 6 months from the date on which it was granted and that it shall not be accepted to authorize export, re-export or import except during the period of validity.

Regarding pre-Convention certificates

5. A pre-Convention certificate shall also specify—

(a) that the specimen covered by the certificate is pre-Convention; and

(b) the date of acquisition of the specimen.

6. For the purposes of determining whether a specimen was acquired before the provisions of the Convention applied to the specimen ("pre-Convention")—

(a) the date from which the provisions of the Convention apply to a specimen shall be the date on which the species concerned was first included in the Appendices to the Convention; and

(b) the date on which a specimen is acquired shall be considered as the date the specimen was known to be either—

(i) removed from the wild; or

(ii) born in captivity or artificially propagated in a controlled environment; or

(iii) if such date is unknown or cannot be proved, any subsequent and provable date on which it was first possessed by a person.

7. All pre-Convention certificates shall include either the precise date of acquisition of the specimens concerned or a certification that the specimens were acquired before a specific date, in accordance with paragraph 6(b) above.

Regarding certificates of origin

8. The provisions of Article V, paragraph 3, of the Convention shall be understood to mean that a certificate of origin shall be valid for a period of not more than 12 months from the date on which it was granted, and that it shall not be accepted to authorize export or import except during the period of validity.

Regarding phytosanitary certificates

9. A phytosanitary certificate used as a certificate of artificial propagation in accordance with Article VII, paragraph 5, of the Convention for the purpose of the export of an artificially propagated specimen of an Appendix II species shall include the scientific name of the species and the type and quantity of the specimens covered by the certificate, and bear a stamp, seal or other specific indication stating that the specimens are artificially propagated.

10. Phytosanitary certificates shall be used exclusively for the purpose of export from the place of artificial propagation of the specimens concerned.

Regarding permits and certificates for coral specimens

11. On permits and certificates for trade in specimens of coral rock, where the genus cannot be readily determined, the scientific name for the specimens shall be "Scleractinia".

Regarding permits and certificates for timber species included
in Appendix II and Appendix III with the annotation
"Designates logs, sawn wood and veneer sheets"

12. The validity of the export permit or re-export certificate may be extended beyond the normal maximum of 6 months after the date of issue, on the condition that—

(a) the shipment has arrived in a place of import before the date of expiration indicated on the permit or certificate and is being held in Customs bond (i.e. is not considered as imported);

(b) the time extension does not exceed 6 months from the date of expiration of the permit or certificate and no previous extension has been granted;

(c) the appropriate enforcement personnel of the place of import who extended the validity of the permit or certificate has included the date of arrival in that place and the new date of expiration in the box relating to special conditions, or an equivalent place, on the permit or certificate, certifying the modification with an official stamp or seal and signature;

(d) the shipment is to be imported into another place for consumption from the place of import before the new date of expiration; and

(e) a copy of the permit or certificate as amended in accordance with subparagraph (c) above is sent to the relevant authority of the place of export or re-export, allowing it to amend its annual report, and to the Secretariat.

Regarding retrospective issue of permits and
certificates

13. A permit or certificate issued retrospectively shall not be accepted unless it was issued in accordance with the requirements concerning the retrospective issue of documents under the Convention or any Convention instrument.

Regarding acceptance and clearance of documents
and security measures

14. Where a permit or certificate has been altered (by rubbing out, scratching out, etc.), modified or crossed out, the alteration, modification or crossing-out shall be authenticated by the stamp and signature of the relevant authority issuing the document.

15. Where a security stamp is affixed to a permit or certificate, the security stamp shall be cancelled by the stamp or seal and signature of the relevant authority issuing the document.

16. Permits and certificates shall indicate the scientific name of the species concerned (including subspecies when appropriate), except in the case where—

(a) the Conference of the Parties has agreed that the use of higher taxon names is acceptable;

(b) the relevant authority issuing the permit or certificate can show it is well justified and has communicated the justification to the Secretariat;

(d) worked skins or pieces thereof of

Tupinambis

species that were imported before 1 August 2000 are being re-exported, in which case it is sufficient to use the indication

Tupinambis

spp.

Regarding documents for sample collection covered by
ATA (which means "temporary admission") carnets

17. For the purpose of the procedure described in paragraphs below, the term "sample collection" refer to collections of legally acquired dead specimens, parts and derivatives of species included in Appendix II or Appendix III and of Appendix I species bred in captivity or artificially propagated, which are treated as Appendix II specimens, which are not entitled to be sold or otherwise transferred, and that will cross borders for presentation purposes before returning to the place from which such movement was first authorized.

18. Such sample collections shall be considered as "in transit" and entitled to the special provisions stipulated in Article VII, paragraph 1, of the Convention on the following conditions—

(a) a sample collection shall be covered by an ATA carnet and be accompanied by a document, on which it shall be indicated that the document is a permit or certificate either for "export" or "re-export", as appropriate, and/or "other" and, in addition, it shall be clearly specified that the document is issued for a "sample collection";

(b) it shall be specified in an appropriate place of the document that "This document covers a sample collection and is invalid unless accompanied by a valid ATA carnet. The specimen(s) covered by this certificate may not be sold or otherwise transferred whilst outside the territory of the place that issued this document." The number of the accompanying ATA carnet shall be recorded;

(c) the name and address (including the country) of the importer and the exporter or re-exporter shall be identical, and in an appropriate place of the document the names of the places to be visited shall be indicated;

(d) the date of expiry of such a document shall not be later than that of the ATA carnet accompanying it and the period of validity shall not be more than 6 months from the date on which it was granted.

19. Such a permit or certificate shall not be transferable and when, during a stay in a place, it is lost, stolen or accidentally destroyed, only the relevant authority that issued it may issue a duplicate. This duplicate will bear the same number, if possible, and the same date of validity as the original document, and contain the following statement: "This document is a true copy of the original" or state that it replaces the original bearing the number XX.

20. If specimens in the collection are stolen, destroyed or lost, the owner of the collection shall inform the relevant authority issuing the document and the relevant authority of the place in which that matter occurred as soon as practicable.

Regarding permits and certificates issued by the
state not party to the Convention

21. Permits and certificates issued by states not party to the Convention shall contain—

(a) the name, stamp and signature of a competent issuing authority;

(b) sufficient identification of the species concerned for the purposes of the Convention;

(c) certification of the origin of the specimen concerned including the export permit number from the place of origin, or justification for omitting such certification;

(d) in the case of export of specimens of a species included in Appendix I or Appendix II, certification to the effect that the competent scientific institution has advised that the export will not be detrimental to the survival of the species (in case of doubt a copy of such advice shall be required) and that the specimens were not obtained in contravention of the laws of the place of export;

(e) in the case of re-export, certification to the effect that the competent authority of the place of origin has issued an export document that substantially meets the requirements of Article VI of the Convention;

(f) in the case of export or re-export of live specimens, certification to the effect that they will be transported in a manner that will minimize the risk of injury, damage to health or cruel treatment.

22. Documentation from states not party to the Convention shall only be accepted if details of the competent authorities and scientific institutions of such states are included in the most recent updated list of the Secretariat or after consultation with the Secretariat.

ANNEX TO PART 2

PERMITS AND CERTIFICATES

Information that shall be included in permits and certificates
issued under the Convention

(a) The full name and the logo of the Convention
(b) The complete name and address of the relevant authority issuing the permit
(c) A unique control number
(d) The complete names and addresses of the exporter and importer
(e) The scientific name of the species to which the specimens belong (or the subspecies when it is relevant in order to determine in which Appendix the taxon concerned is included) in accordance with the adopted standard nomenclature
(f) The description of the specimens, in one of the Convention's 3 working languages, using the nomenclature of specimens distributed by the Secretariat
(g) In the case of an export permit, the numbers of the marks appearing on the specimens if they are marked or if the Conference of the Parties prescribes marking (specimens from ranches, subject to quotas approved by the Conference of the Parties, originating from operations which breed animals included in Appendix I in captivity for commercial purposes, etc.)
(h) The Appendix in which the species or subspecies or population is listed
(i) The source of the specimens
(j) The quantity of specimens and, if appropriate, the unit of measure used
(k) The date of issue and the date of expiry
(l) The name of the signatory and his or her signature
(m) The embossed seal or ink stamp of the relevant authority
(n) In the case of a certificate of origin, a statement that the specimens originate in the place that issued the certificate.

PART 3

REQUIREMENTS RELATING TO EXEMPTION FOR NON-COMMERCIAL
LOAN, DONATION OR EXCHANGE OF MUSEUM AND
HERBARIUM SPECIMENS

For the purposes of implementing the exemption for scientific exchange in Article VII, paragraph 6, of the Convention, the requirement that herbarium specimens, preserved, dried or embedded museum specimens, frozen museum specimens, duplicate herbarium specimens or live plant material or the container used to transport such specimens carry a label issued or approved by a relevant authority shall be met if the label—

(a) bears the acronym "CITES";

(b) identifies the contents as herbarium specimens, preserved, dried or embedded museum specimens, frozen museum specimens, duplicate herbarium specimens or live plant material for scientific study; and

(c) sets out the name and address of the sending institution and the codes of the exporting and importing institutions over the signature of a responsible officer of that registered scientific institution.

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