Importation, Exportation, and Transportation of Wildlife

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 13 and 14

RIN 1018-AB49

Importation, Exportation, and Transportation of Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: This final rule updates the U.S. Fish and Wildlife Service

(Service) regulations providing for uniform rules and procedures for

the importation, exportation, and transportation of wildlife. Several

definitions are added and amended. The Service's exception to the

designated port of entry requirement for wildlife products or

manufactured articles worn as articles of clothing or contained in

accompanying personal baggage is amended. The exceptions to the import

declaration requirements and export declaration requirements are also

amended. The Service minimum age requirement for certain antique

articles, other than scrimshaw, imported into the United States is

changed. The Service is also revising its clearance requirements and

its refusal of clearance requirements. The Service's import declaration

filing requirements are also changed.

Changes are also made in the marking requirements for containers

used to ship fish or wildlife. Further changes are made in the import

and export requirements and fee schedules and the exceptions to license

requirements. In addition to the above changes, the non-standards fee

schedule in part 13 for an import/export license is amended. Finally,

the Service will allow the importation and exportation of dead,

preserved, dried, or embedded scientific wildlife specimens by

accredited scientists or accredited scientific institutions engaged in

taxonomic or systematic research at any U.S. Customs port, or by way of

the international mail.

EFFECTIVE DATE: This rule is effective July 22, 1996.

FOR FURTHER INFORMATION CONTACT: Thomas Striegler, Special Agent in

Charge, Branch of Investigations, Division of Law Enforcement, Fish and

Wildlife Service, U.S. Department of Interior, Washington, DC 20240,

Telephone Number (703) 358-1949.

SUPPLEMENTARY INFORMATION:

Background

The Fish and Wildlife Service (Service) has oversight

responsibilities under statutory and regulatory authority to regulate

the importation, exportation, and transportation of wildlife. The

Service, consistent with this authority, has established an inspection

program to oversee the importation, exportation, and transportation of

wildlife and wildlife products. The Service, in support of its program

activities, has promulgated regulations, subject to exemptions and

permitted exceptions, restricting the importation and exportation of

wildlife and wildlife products to certain designated ports, border

ports, and special ports enumerated within the Code of Federal

Regulations. Service regulations governing the importation,

exportation, and transportation of wildlife are codified in 50 CFR part

14 and are implemented through the efforts of Service Special Agents

and Wildlife Inspectors, and with the essential support, cooperation,

and assistance of the U.S. Customs Service (Customs) and the Department

of Agriculture, Animal and Plant Health Inspection Service (APHIS) and

other cooperating agencies.

The Service is making the following changes to the Importation,

Exportation, and Transportation of Wildlife regulations in part 14. A

new section Sec. 14.4, entitled ``Definitions'', is being added to

include several new definitions. In adding these new definitions, the

Service's intent is to provide greater uniformity in the interpretation

of part 14. This section, includes a definition for the term

``commercial'' to explain when the commercial intent of a shipment

becomes presumptive. The effect of this definition is to clarify when a

wildlife shipper is required to obtain an import/export license, and

when the personal baggage exception does not apply. A definition is

also added for the term ``export'' to delineate when the filing of an

export declaration and clearance by a Service Officer will be required.

The term ``accompanying personal baggage'' is also defined to eliminate

any ambiguity as to when hand-carried items and checked baggage will be

regarded by the Service as an export or import. The meaning of the term

``domesticated animal'' is defined to distinguish such animals from

wildlife.

The Service, in order to clarify its requirements, is defining the

terms ``Accredited scientific institutions'' and ``Accredited

scientist.'' The term ``Accredited scientific institution'' is defined

to include any public museum, public zoological park, accredited

institution of higher education, accredited member of the American Zoo

and Aquarium Association, accredited member of the American Association

of Systematic Collections, or any State or Federal government agency

that conducts biological or medical research. The term ``Accredited

scientist'' is defined to include any individual associated with,

employed by, or under contract to and accredited by an accredited

scientific institution for the purposes of conducting biological or

medical research, and whose research activities are approved and

sponsored by the scientific institution granting accreditation.

In addition to the above changes, the term ``worn'' in Sec. 14.15

is being removed and replaced with term ``used'' in order to clearly

define when wildlife products are included within the personal baggage

and household effects exception to the designated port requirements.

The Service is making several administrative corrections within the

text of the regulations. The erroneous references to Sec. 14.93(d) in

Sec. 14.82(a)(2) and the erroneous reference to Sec. 14.93(d)(1) in

Sec. 14.93(c)(5) are being changed to read Sec. 14.93(c) and

Sec. 14.93(c)(1), respectively. These citations refer to the requisite

record requirements applicable to holders of an import/export license.

A reference to the permit requirements of part 23 is included

within several sections of part 14. The requirements of part 23

implement the Convention on International Trade in Endangered Species

of Wild Fauna and Flora (CITES). The following provisions are being

changed to include references to part 23: At Sec. 14.21, the exceptions

to the Service's license requirements for shellfish and fishery

products; at Sec. 14.55, the exceptions to Service wildlife clearance

requirements stating when wildlife and wildlife products may be

imported without clearance; at Sec. 14.62(a), the exceptions to the

import declaration requirements stating when a Service import

declaration (Form 3-177) is not required; at Sec. 14.64(a), the

exception to export declaration requirements stating when a Service

export declaration (Form 3-177) is not required; and at

Sec. 14.92(a)(1) and 14.92(a)(2), the exceptions to license

requirements stating when wildlife may be imported or exported without

the procurement of a Service import/export license.

The Service is changing the age minimum in Sec. 14.22 for certain

antique articles to be consistent with changes in the Endangered

Species Act. The

[[Page 31851]]

Service is also adding in Sec. 14.21(a)(2) an exception to the

designated port requirements for live aquatic invertebrates of the

Class Pelecypoda (commonly known as oysters, clams, mussels, and

scallops) and the eggs, larvae, or juvenile forms thereof exported for

purposes of propagation, or research related to propagation. A

designated port exception is also added at Sec. 14.21(b) for pearls

imported or exported for commercial purposes.

The Service is also facilitating the importation or exportation of

dead, preserved, dried, or embedded scientific taxonomic or systematic

collection specimens, or parts thereof, by accredited scientists or

accredited institutions by making several changes in its current

regulations. The Service is adding a new section, at Sec. 14.24, to be

entitled ``Scientific Specimens.'' This new section provides that dead,

preserved, dried, or embedded taxonomic or systematic collection

specimens may be imported or exported by accredited scientists or

scientific institutions by way of any Customs port or to be shipped

through the international mail. This exception, however, does not apply

in situations where the wildlife being imported or exported requires a

permit under any of the Service regulations established in 50 CFR parts

16, 17, 18, 21, 22, and 23 that set forth the Service regulations

implementing: the Lacey Act, 18 U.S.C. 42; the Endangered Species Act

(ESA), 16 U.S.C. 1531-1543; the Marine Mammal Protection Act (MMPA), 16

U.S.C. 1361-1407; the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703-

712; the Bald and Golden Eagle Protection Act (Eagle Act), 16 U.S.C.

668; and the Convention on International Trade in Endangered Species of

Wild Flora and Fauna (CITES), respectively. In addition, this exception

does not apply to any specimen or part of any specimen taken as a

result of sport hunting. The term ``sport hunting'' will be given its

common and ordinary meaning.

The requirements for the clearance of wildlife, at Sec. 14.52, and

the refusal of clearance of wildlife, at Sec. 14.53, are being changed

to show the applicability of these sections to both exported and

imported wildlife. The provisions of Sec. 14.52 are being changed to

specifically state, in both import and export situations, the

requirements of presentation of wildlife for clearance and the

requirement of clearance of wildlife by a Service officer prior to

export or prior to U.S. Custom Service release of an importation.

The Service's refusal of clearance provisions at Sec. 14.53 are

also being changed to require the identification of wildlife by species

or subspecies name. This change is intended to alleviate the confusion

often caused by the use of common names. This section is also being

changed to include as an additional basis for the refusal of clearance

the failure to pay an assessed penalty levied upon an importer or

exporter under part 11. Another significant change being made to

Sec. 14.53 is the establishment of a formal detention process for

wildlife or wildlife products, similar to that of the Customs Service.

The detention procedure is necessary in order for the Service to

determine the applicability of state or foreign law relating to

imported or exported wildlife, and/or to ascertain the validity of

foreign permits.

In order to ensure humane and expeditious inspection and handling

of shipments of wildlife, the Service is revising Sec. 14.54 to include

a provision requiring that the Service be notified at least 48 hours

prior to the ``estimated time of arrival'' of live or perishable

shipments of wildlife or wildlife products. The Service is to be

similarly notified when wildlife inspection is requested to be

accomplished upon arrival or when wildlife is to be inspected prior to

export.

In general, all wildlife imported into the United States must be

cleared in accordance with Sec. 14.52 by a Service officer prior to its

release from detention by Customs officers. Clearance by a Service

officer may be obtained only at designated ports, border ports, special

ports, or any port where importation is authorized by permit, unless

the wildlife is otherwise exempted from such requirement. The Service's

existing exceptions to clearance requirements for certain wildlife are

set forth in Sec. 14.55. The Service is amending Sec. 14.55 by adding a

new paragraph at Sec. 14.55(d) providing an additional exception to the

Service clearance requirements for dead, preserved, dried, or embedded

specimens or parts thereof imported or exported by accredited

scientists or accredited scientific institutions for taxonomic or

systematic research purposes.

The regulations concerning the requirements of the Service Form 3-

177, Declaration for Importation or Exportation of Fish or Wildlife, in

Sec. 14.61 are being changed to include changes brought about by the

U.S. Customs Automated Commercial System (ACS) and the Automated Broker

Interface (ABI) electronic entry system, and to clarify the requirement

of filing an import declaration. Changes in Customs entry system allow

entry documents to be filed electronically by an authorized Customs

broker using the electronic entry system. The provisions of Sec. 14.61

require that a completed Declaration for Importation and Exportation of

Fish and Wildlife (Form 3-177) be filed with the Service when clearance

is requested. A Declaration for Importation and Exportation of Wildlife

does not have to be filed, however, for certain categories of wildlife

provided an exception under Sec. 14.62, entitled ``Exceptions to Import

Declaration Requirements.'' The Service is amending Sec. 14.62 by

revising Sec. 14.62(c) and adding a new paragraph at Sec. 14.6(d) to

provide an additional exception to the import declaration requirements.

New 14.62(d) provides that a Declaration for the Importation or

Exportation of Fish or Wildlife (Form 3-177) does not have to be filed

at the time of importation for shipments of dead, preserved, dried, or

embedded scientific specimens or parts thereof, imported by accredited

scientists or accredited scientific institutions for taxonomic or

systematic research purposes. Instead, Form 3-177 must be filed within

180 days of importation with the appropriate Assistant Regional

Director for Law Enforcement in the Region where the importation

occurs. The specimens must be identified to the most accurate taxonomic

classification reasonably practicable using the best available

taxonomic information, and the country of origin must be declared. This

exception to the import declaration requirements is limited to

exchanges made by accredited scientists or accredited scientific

institutions and does not apply to any specimens or parts thereof taken

as a result of sport hunting. In addition, this exception does not

apply in situations where the wildlife being imported requires a permit

under any of the Service regulations established in Title 50 CFR parts

16, 17, 18, 21, 22, and 23, or in situations involving non-accredited

scientists or institutions.

The Service's exceptions to import requirements in Sec. 14.62 also

are being changed to exclude, in addition to articles intended for

sale, articles or samples used as exhibits to solicit sales. In

addition, Sec. 14.62 is being revised to remove the incorrect reference

to an obsolete Customs Service form.

Section 14.63 sets forth the requirement that a completed

Declaration of Importation and Exportation of Fish or Wildlife (Form 3-

177) must be filed with the Service prior to the export of any

wildlife. Certain exceptions to this export declaration requirement are

provided in Sec. 14.64. The Service is amending Sec. 14.64 by adding a

new paragraph at Sec. 14.64(b)(3) to provide an additional exception to

[[Page 31852]]

the Service's export declaration requirements. This exception will

provide that a Declaration for the Importation or Exportation of Fish

or Wildlife (Form 3-177) does not have to be filed at the time of

exportation for shipments of dead, preserved, dried, or embedded

scientific specimens or parts thereof, exported by accredited

scientists or accredited scientific institutions for taxonomic or

systematic research purposes. This exception, however, will not apply

in situations where the wildlife being exported requires a permit under

any of the Service regulations established in Title 50 CFR parts 16,

17, 18, 21, 22, and 23, or in situations involving non-accredited

scientists or institutions. A Form 3-177 must be filed, however, within

180 days of exportation with the appropriate Assistant Regional

Director--Law Enforcement in the Region where the exportation occurs.

The specimens must be identified to the not accurate taxonomic

classification reasonably practicable using the best available

taxonomic information, and the country of origin must be declared. This

exception to the export declaration requirements will be limited to

exchanges made by accredited scientists or accredited scientific

institutions and will not apply to any specimens or parts thereof taken

as a result of sport hunting.

In Sec. 14.64(a) the Service is adding an additional exception to

the export declaration requirements for live aquatic invertebrates of

the Class Pelecypoda (commonly known as oysters, clams, mussels, and

scallops) and the eggs, larvae, or juvenile forms thereof exported for

the purposes of propagation, or research related to propagation. The

word ``live'' has been added to this exception to more accurately

reflect the Service's intent of applying to live specimens only. The

Service is also restating the exceptions to the export declaration

requirements under Sec. 14.64(b)(1) and Sec. 14.64(b)(2) by excluding,

in addition to wildlife articles intended for sale, articles or samples

used as exhibits to solicit sales.

Changes are also being made in the marking requirements of

Sec. 14.81, and the alternatives and exceptions to the marking

requirements in Sec. 14.82, to add provisions requiring the conspicuous

marking of containers or packages to indicate when the contents are

venomous species. In making this proposal, the Service hopes to prevent

injuries. The Service is also revising Sec. 14.81 to require that

wildlife shipments be accompanied with an accurate and legible list of

the contents by scientific species name and the number of each species.

Section 14.91(c) establishes that persons engaged in certain

enumerated activities are required to hold an import/export license.

The provisions of this section are being changed and amended to reduce

any ambiguity and to require persons who commercially import or export

wildlife in the form of food products taken from populations of non-

domesticated animals to be licensed. Sections 14.92(a)(5) and

14.92(a)(6) are being added to include within the exceptions to the

license requirements an exception for live aquatic invertebrates of the

Class Pelecypoda, (commonly known as oysters, clams, mussels, and

scallops) and the eggs, larvae, or juvenile forms thereof exported for

purposes of propagation, or research related to propagation, and for

pearls imported or exported for commercial purposes. Sections

14.92(b)(1) and 14.92(b)(2) are being amended to limit the existing

exception to the import/export license requirement for common carriers

and custom house brokers to instances where they are acting as

transporters or agents and not as the importer or exporter of record.

Inspection and License Fees

Inspectors working at designated ports of entry are vested with the

authority by statute and regulation to undertake the physical

inspection and identification of wildlife shipments and to examine all

associated wildlife shipment documentation for sufficiency. Service

uniform import export user fee schedules are currently set out at 50

CFR 14.93(f). With some exceptions, these inspection procedures are

required for all shipments of wildlife regardless of value, size of

shipment, or variety of regulated wildlife species, and therefore, are

equivalent in their demands upon work units of the Service. Because of

the nature of inspections and the administrative support required, a

direct correlation between the value of wildlife shipments and the

operating costs incurred by the Service in inspection of wildlife

cannot be made. The Service, therefore, has historically assessed user

fees according to standardized schedules codified in the Code of

Federal Regulations and has avoided as impracticable the levying of

fees based solely upon the value of wildlife shipped.

Since 1988 there have been four studies of the Service's import/

export user fee policies: A 1988 report prepared by the Service,

Division of Finance, of findings and recommendations on review of Law

Enforcement Management Information System and Import/Export Fee Billing

and Collection System; a 1988 user charges and collection report by the

Department of Interior, Office of the Inspector General; a 1991 Law

Enforcement Functional Analysis Review prepared by a fish and Wildlife

Service Functional Analysis Review Team; and a 1992 draft of the CITES

Implementation Study, prepared by Traffic, U.S.A., a wildlife trade

monitoring group associated with the World Wildlife Fund. One

recommendation consistently made in these studies is that the Service

should change its user fee policies and rates to recover the full cost

of services provided to individuals and businesses. The recommendation

was also made that the Service license and charge user fees to all

commercial importers and exporters of wildlife and wildlife products.

The Service is therefore adjusting its fees for certain activities in

order to recover the actual costs of the services provided for all

commercial import/export activities. An analysis of import/export data

for the three most recent years for which complete data is available

from the Law Enforcement Management Information System database shows

that the Service is only recouping about $2 million annually of the

total wildlife inspection budget of $4.35 million. Thus, approximately

45 percent of the total cost of the Service's wildlife inspection

program is recovered through the current user fees rates.

Consequently, the Service is adjusting its fee schedules in order

to recoup the full cost of the import/export inspection program. The

new fee schedules are being moved to a new section, Sec. 14.94,

entitled ``Fees.'' First, the Service is requiring all commercial

importers and exporters of wildlife and wildlife products to obtain an

import/export license without regard to the total value of wildlife or

wildlife products imported or exported each year. Thus, the Service is

eliminating the yearly value exception in Sec. 14.92(b)(6). This is a

change from the current system in which only commercial importers/

exporters who import or export more than $25,000 in wildlife products

annually have been required to obtain a license. Second, the Service is

reducing the cost of an import/export license from the present rate of

$125 per year to $50 per year. Third, the Service is increasing the

fees charged at designated ports in order to cover the full cost of the

inspection services provided. The present inspection fee has been $25

since 1986. The Service's analysis indicates that the average cost

[[Page 31853]]

to the Service to process a shipment is approximately $55 per shipment.

Therefore, the Service is increasing the cost of this fee to $55 per

shipment to more realistically recover costs. Fourth, the Service is

increasing the administrative fee changed at non-designated ports from

$25 to $55, in addition to an hourly minimum fee, to recover its actual

costs and to make this fee consistent with the increase in the

designated port inspection fee. The Service believes these adjustments

in the fee rates and applications are reasonable and fair in light of

the actual demands upon limited Service resources.

The Service will make substantive changes to Title 50 CFR part 13

at a later time. The Service has changed the non-standard fee schedule

in Sec. 13.11(d)(4) to be consistent with the changes made to part 14.

Summary of Comments and Information Received

On Wednesday, September 14, 1994, the Service published, in the

Federal Register (59 FR 47212) a proposed rule revising Title 50 CFR

parts 13 and 14. In response to this notice, the Service received a

total of 568 comments from the public. These included: 14 from

academies, 13 from associations, 30 from companies, 11 from

congressmen, 106 from museums, 28 from societies, 17 from states, 107

from citizens, 163 from universities, and 70 from miscellaneous other

groups. Several of the comments received by the Service in response to

the proposed rule were either unrelated to the proposed changes or

resulted from lack of understanding of the current regulation, and are

not discussed below.

During the comment period, the Service received numerous inquiries

and comments from members of the scientific community. Members of the

scientific community were extremely concerned about the effects of the

Service's regulations upon the ordinary scientific exchange of

scientific specimens being shipped internationally through the mail or

by way of ports other than officially designated Service ports of

entry. Many expressed the concern that the Service's proposed

regulations would seriously discourage much needed scientific research

by adding significantly to its cost in dollars, hours worked, and

paperwork. The Service, in publishing its proposed rule of September

14, 1994, did not intend to make any substantive changes to the

existing requirements related to scientific specimens. The existing

requirements relating to the importation and exportation of wildlife at

Service Designated Ports, and the inclusion of invertebrates within the

definition of wildlife, remained unchanged.

The Service, however, has benefited from the many comments received

and is making additional changes to Part 14 to address the concerns of

the respondents. The numerous comments and inquiries received by the

Service have helped the Service identify the technical and procedural

problems associated with the present requirements in part 14, and those

problems contained in the proposed rule. The Service has already

acknowledged the need for some substantive changes and published in the

Federal Register (60 FR 15277) a supplementary proposed rule on

Thursday, March 23, 1995, allowing for scientific exchange. The

significant change is the addition of a new section at Sec. 14.24,

entitled ``Scientific Specimens'' that allows accredited scientists or

accredited scientific institutions to import or export, at any Customs

port or through the international mail system, dead, preserved, dried,

or embedded taxonomic or systematic collection specimens. This

exception would not apply to wildlife being imported or exported that

would require a permit under any of the Service regulations established

in Title 50, Code of Federal Regulations, parts 16, 17, 18, 21, 22, and

23.

Comments Pertaining to 50 CFR 14.4: Definitions

Comments

The Service received numerous comments on the definitions proposed

for inclusion within Sec. 14.4. Comments were received from a great

variety of interested persons on this section, including, numerous

scientists involved in importing or exporting scientific specimens for

taxonomic or biological control purposes, individual sportsmen and

sportsmen's organizations concerned with the importation or exportation

of sport-hunted trophies, commercial import/export businesses, and

``for-profit'' amusement parks importing or exporting live wildlife for

display purposes.

A significant portion of the comments pertaining to Sec. 14.4

concerned the Service's definition of ``commercial.'' This term is used

to clarify when a wildlife shipper is required to obtain an import/

export license, and when the personal baggage exception does not apply.

The proposed rule defines commercial to mean related to the offering

for sale or resale, purchase, trade, barter, or the actual or intended

transfer in the pursuit of gain or profit, of any item of wildlife and

includes the use of any wildlife article as an exhibit for the purpose

of soliciting sales, without regard to quantity or weight. A

presumption is also established within this definition to provide that

eight or more similar unused items will be considered by the Service to

be commercial use. This presumption specifically excludes such items as

antiques, collectibles, or curios. The effect of this presumption,

however, may be rebutted by the importer, exporter, or owner, or by the

Service.

Many scientists were of the opinion that the definition of

``commercial'' as written would have an adverse effect upon scientific

study by restricting the free exchange of scientific specimens among

researchers and systematic biologists. Another scientist noted that

systematic biology is a shared endeavor, that has as its basic

scientific data the natural history specimens that are maintained in

museums or similar institutions that are shared internationally by way

of scientific exchange.

Many respondents considered the presumption effect of this

definition to be inappropriate when applied to shipments of scientific

shipments such as insects. Some scientists characterized the definition

as a ``subjective determination'' that lacked all merit as applied to

invertebrates. Others saw the definition as having a ``vertebrate''

bias and thought that the regulations seem to be targeted to vertebrate

species and not invertebrates. The laws governing the traffic, loan,

and exchange of invertebrate scientific specimens, as one respondent

noted, should not be confused with commercial uses of wildlife.

Comments included the assertion that scientific specimens are not

generally imported or exported for profit or commercial gain, have no

commercial value or commercial use, and will often contain more than

eight similar items or scientific specimens within a shipment. Many

comments explained that an exchange of scientific specimens of insects

may contain many hundreds of specimens. Several other common themes ran

through many of the comments.

Service Response

The Service's definition of commercial has been misinterpreted to

apply to scientific exchange specimens. The Service acknowledges the

concerns of the many respondent scientists and has made changes to

accommodate scientific exchange in its final regulations by adding a

new section at

[[Page 31854]]

Sec. 14.24 allowing for certain exceptions to the designated port and

declaration filing requirements by accredited scientists and scientific

institutions. A definition of commercial is important to clearly

differentiate when a particular import or export is being done for a

commercial purpose, due to the obvious detrimental impact commercial

activity can have on wildlife populations. In many instances, items

intended for commercial sale or to solicit sales are declared as

personal effects. The effect of the presumption is merely to inform the

public that unless a person can prove otherwise, eight or more unused

items will automatically be considered a commercial shipment. Other

amounts can be considered commercial depending on the facts and

circumstances of each case. This definition was never intended to reach

taxonomic specimens since it was intended only to apply to wildlife

products and not scientific specimens.

Comments

One commercial exhibitor requested that the Service amend the

definition of commercial to include what the respondent termed ``the

use of any wildlife article as an exhibit for the purpose of soliciting

sales thereof.'' Another respondent from the business community

suggested the ``presumed commercial'' number be reduced from 8 to 3,

and further suggested that the Service include a value limit of

$5,000.00 for any individual wildlife item being imported or exported.

Another commenter from the wildlife import/export industry, questioned

whether wildlife items, imported for display at trade shows or as a

sample, would necessarily be considered a commercial importation under

what the respondent termed the ``eight or more'' commercial

presumption, if the item(s) themselves were not intended for sale. One

respondent requested that the definition of commercial be revised to

include a presumption that cataloged specimens, transported from one

research institution to another, are not commercial. Several

respondents suggested that such scientific collections be considered

``collectibles'' and therefore exempt from what was characterized as

the ``rule of eight'' commercial shipment presumption standard.

Service Response

The Service's intent was to clearly include samples used to solicit

sales within the definition of commercial, because of the obvious

commercial intent. Items used as exhibits in order to solicit sales are

clearly being transferred for a commercial purpose, although the

individual items may not actually be sold, they are being imported or

exported for a commercial purpose. The Service will keep the commercial

presumption at eight. This presumption number merely serves as a

threshold point and gives the public some notice of when the Service

will view their imports or exports as presumptively commercial. Again,

other lesser amounts can be determined to be commercial based upon the

facts and circumstances of each case. The Service will evaluate such

indicators of commercial intent such as the value, condition, the

purpose of the import etc., in making its determination.

Comments

Several comments were received from wildlife professionals

commenting in an unofficial capacity, regarding the exception provided

for antiques, collectibles and curios, within the proposed definition

of commercial. One individual noted that there has been an increase in

the commercial trade of such wildlife items, which in the commenter's

opinion, may encourage certain individuals to attempt to circumvent the

applicable declaration requirements and inspection fee by falsely

claiming this exception. The Service, however, also received extensive

comments from representatives of wildlife user groups suggesting that

additional exceptions be added within the definition of commercial for

such articles as antiques, collectibles, and curios that are presently

not included.

Service Response

The Service has considered the above comments carefully and agrees

with the commenters suggestion to eliminate the exception in the

definition of commercial for antiques, collectibles and curios, for the

following reasons. The Service believes that the commenter is correct

in stating that the trade in antiques, collectibles and curios

containing wildlife products is on the increase. Importers of antiques,

collectibles or curios containing wildlife which are subject to the

provisions of this part should be required to rebut the same commercial

presumption, for quantities of 8 or more, as importers of wildlife

products not considered to be antiques, collectibles or curios. the

intent of the commercial definition is to advise the public that the

Service will consider an importer to have commercial intent when

importing eight or more similar unused items containing wildlife, in

order to discourage commercial dealers from using the personal effects

exemption contained at Sec. 14.15 to circumvent declaration and license

requirements. This definition was proposed by the Service to address

the enforcement problem of wildlife dealers, including dealers in

antiques, curios and collectibles, using the personal effects exemption

improperly. The Service finds serious inequity in allowing dealers in

these items an exception in the definition of commercial while not

allowing exceptions for other commercial dealers. The Service has

removed this exception from the definition of commercial. Importers of

eight or more similar unused wildlife products will be considered

uniformly by the Service and will be required to rebut the same

presumption regardless of the wildlife being imported being classified

as an antique, curio or collectible. The Service has considered the

fact that removing this exception from the definition of commercial

will increase the volume of wildlife products being viewed as having

potential commercial intent and requiring additional attention by

Service personnel. This manpower consideration is, in part, what

prompted the inclusion of an exception in the definition of commercial

in the proposed rule initially. However, upon further review, the

Service believes that having a threshold number of eight before the

commercial presumption is triggered will eliminate many shipments from

requiring more detailed inquiry from Service personnel. This change to

the definition of commercial will relieve Customs and Service personnel

from defining ``antique, curio or collectibile'' (for purposes of the

commercial definition), will not change the ability of noncommercial

importers to rebut the commercial presumption if they are importing

eight or more similar items, and will make the Service's intent, of

requiring all commercial dealers to obtain import/export licenses and

declare their shipments, less ambiguous.

The commenters suggestion of not excepting antiques from the

definition of commercial has also been considered by the Service. The

Service believes that Sec. 14.22, Certain antique articles, adequately

addresses the importation of bona fide antiques containing endangered

or threatened species. The Service believes that to include an

additional exception in the definition of commercial for antiques is

unnecessary. Those antiques not containing endangered or threatened

species will be presumed commercial if eight or more similar items are

imported, requiring the importer to rebut the

[[Page 31855]]

commerical presumption, similar to importers of collectibles and

curios.

Comments

Several commenters expressed concern that their particular activity

involving the import and export of wildlife would be considered

``commercial'' using the Service's definition of commercial in the

proposed rule.

Service Response

Without exception, the Service intends that any activity meeting

the definition of commercial contained in Sec. 14.4 will be considered

as such and will require the individual or business to obtain an

Import/Export License. However, the use of the new definition of

commercial is not the only criteria which the Service uses to determine

if an Import/Export License is required. The current Sec. 14.91(a),

which is not being changed in this rulemaking, requires anyone

``engaging in business as an importer or exporter of wildlife'' to

first obtain a valid import/export license.

Comments

One representative of a hunting/conservation group expressed the

opinion that within the definition of commercial there should be an

additional exemption for ``personal use sport hunted trophies.'' Sport

hunted trophies as the respondent explained will often number more than

eight items and should be entitled to a presumption of being a

noncommercial import or export.

Service Response

The Service recognizes that the importation of most sport hunted

trophies are for personal use. However due to the fact that some sport

hunted trophies are of a commercial nature, the Service feels that a

categorical exemption is not warranted.

Comments

Many respondents proposed specific changes or additions to the

definitions provided to address their particular activity. One

respondent suggested that the Service define the terms ``item of

wildlife'' and ``similar unused items'' to exclude scientific

collection of invertebrates. Other respondents questioned whether the

word ``similar'' was to be defined by either Class, Family, Species,

Subspecies or some other classifying factors. Another respondent

representing a large animal advocacy group suggested that ``items of

wildlife'' and ``similar items'' do not adequately address shipments of

live animals and should be amended to read ``shipment of eight or more

similar items or live wild animals.''

Service Response

The Service believes that the terms to be used in the Definitions

section should be interpreted in the broadest sense and assigned their

common ordinary meaning. The Service does not see any merit in

attempting to define terms so narrowly as to apply only to one specific

activity or circumstance.

Comments

Although most respondents opposed the adoption of the commercial

presumption as written and its application to all wildlife being

imported or exported for scientific purpose, some respondents supported

the proposal. Most notably, one respondent expressed the opinion that

all such shipments should be uniformly considered commercial with the

burden of proof being placed upon the importer, exporter or owner to

clearly demonstrate otherwise.

As the respondent further elaborated, this is especially applicable

to situations where commercially traded highly priced wildlife and

wildlife products are imported or exported in small quantities.

Service Response

The Service continues to believe that there is a strong rationale

and basis for the application of the presumption provided in the

definition of commercial.

Comments

The Service received a few comments on the definition of export.

One broker, concerned about the definition of export in Sec. 14.4,

noted that the single act of presenting a shipment by a broker or

exporter to a Service Wildlife Inspector for export should not

automatically constitute an export or attempt to export as proposed by

the Service. The respondent further emphasized that there are occasions

when the required documentation or tags for the export of wildlife is

only discovered to be missing after the wildlife has been presented for

export clearance. This, the respondent maintained, has subjected

exporters to civil and or criminal penalties, even where such omissions

are due to innocent behavior and no illegal act was attempted. The

respondent suggested that the exporter and the Service should be given

an opportunity to mutually determine whether a particular shipment has

met all the legal requirements.

Service Response

The burden of presenting the proper documentation is clearly upon

the importer or exporter of record. The effect of the Service

regulations is merely to establish when an item is an export or import.

In the case of imports the Service will only have access to items when

those items have been imported. The Service is also required to inspect

shipments of wildlife being exported. In such situations the status of

the item needs to be clearly understood for declaration filing and for

validation of CITES permits. The Service's intent was to clearly define

when an item has become an export, all allow the public to ascertain at

what point in the shipping process the Service considers a wildlife

item to be exported. For example, the Service would consider the

consignment of goods to a common carrier destined for a point outside

the United States as an attempt to export.

Comments

Responses were received concerning the definition proposed in

Sec. 14.4 for Domesticated animals. Several respondents requested the

inclusion of particular species within the list provided of recognized

``domesticated animals.'' One respondent suggested the inclusion of

such vertebrates as the corn snake, rat snake, king snake, milk snake,

bearded dragon, leopard gecko, garter snake, and others. Another

importer suggested the Service include within its list several

additional species of reptiles and amphibians such as the prairie king

snake, clawed frog, alligator, red-eared slider, bullfrog, and leopard

frog. One respondent requested that the Asian water buffalo and the

bactrian camel also be included.

Service Response

The list of domesticated animals incorporates Service policy which

was developed over a substantial period of time. This list represents

many of the most commonly seen species that have been domesticated

historically. The list was never intended to be all inclusive and many

additional species could be added. The Service will reevaluate the list

on a periodic basis. The Service has reviewed the suggestions made and

has determined that the domesticated animals definition will remain as

proposed, with the exception of the addition of honeybees.

Comments

A few comments were received that concerned the list of

domesticated birds contained within the definition of domesticated

animals in Sec. 14.4. One respondent suggested the Service

[[Page 31856]]

further explain what was meant by the descriptive words ``Ducks and

geese--domesticated varieties.'' Another respondent requested that the

Service delete from the list of domesticated birds the word domestica

from the scientific name Columba livia domestica.

Service Response

The terms, ducks and geese--domesticated varieties, means common

varieties of ducks and geese that are raised in animal husbandry and

are not commonly found in the wild. The scientific name ``domestica''

is intended to indicate that the Service considers only domesticated

varieties of this species to be domesticated animals.

Comments

One respondent was concerned with the Service list of domesticated

fish categorized as domestic for export purposes only. This list, as

the respondent noted, includes domesticated carp and goldfish. The

respondent was concerned about the effects of such classification for

there has been an increased number of smuggling cases of fish that are

falsely marked as goldfish. The respondent suggested that a wildlife

declaration form, 3-177, should be a minimum requirement for the import

or export of such items. A few respondents were concerned with insects

listed as domesticated. One respondent suggested adding honeybees, with

the exclusion of the Africanized honeybees, to the list of domesticated

insects.

Service Response

The Service is cognizant that any exemption to its inspection and

clearance requirements may be perceived as an opportunity for persons

to smuggle. The Service, however, is prepared for such eventualities

and will periodically spot check the trade in such items to ascertain

the degree of compliance. The Service does not believe that the

regulation of such exempt items is warranted at this time. The Service

does, however, see merit in the suggestion of adding honeybees, not to

include africanized honeybees, to the list of insects exempted from

inspection and clearance. Honeybees do not represent an enforcement

concern for the Service, are considered to be ecologically beneficial

insects that are not endangered or threatened or proposed for such

listing under the Endangered Species Act, and have historically been

domesticated. In response to the comments received, honeybees have been

added to the list of domesticated insects at Sec. 14.4.

Comments

A significant number of comments were received from the scientific

community regarding the shipment of scientific specimens in the form of

taxonomic or systematic collections via the U.S. and international mail

systems. Most respondents expressed great concern that without this

method of shipment the U.S. scientific community would become isolated

from foreign institutions. This would result, according to the

respondent, in the scientific community becoming unwilling and

economically unable to ship scientific materials to the United States

for research purposes. Most respondents felt that an exemption should

be included within the definition of commercial in Sec. 14.4 or at

Sec. 14.55 for bona fide research specimens.

Many respondents were troubled by the Service's failure to define

the terms ``bona fide research institution'' and ``scientist.'' Many

respondents specifically requested that the Service define the terms

``scientific institution'' and ``scientific collection'' by regulation

and provide such entities an exception to the marking and clearance

requirement of part 14. One respondent suggested that the term

``Research Institution'' should be defined to include any institution,

organization, or agency established for the purpose of conducting

scientific biological research and educational activities, that is

eligible for registration as a scientific institution by the Management

Authority of the CITES Conference 2.14 standards for registration of

scientific institutions.

Service Response

The Service, as mentioned earlier in the discussion, has taken

steps to clarify its requirements as they pertain to scientific

specimens. The Service does not use the term ``bona fide research

institution'' and has defined the terms accredited scientific

institution and accredited scientist. The Service has made several

changes in its regulations to provide an exception for dead, preserved,

dried, or embedded scientific specimens in Sec. 14.24. The Service is

also providing an exception to its clearance requirements in

Sec. 14.55, an exception to import declaration requirements in

Sec. 14.62, and an exception in its export declaration requirements in

Sec. 14.64 for such specimens in response to commenters concerns.

Comments

Several respondents were opposed to the Service providing any

special status to bona fide scientists or scientific institutions. One

respondent noted that much valuable research has been done by

``amateurs'' such as Charles Darwin and James Audubon and that the

ability of such persons to continue their valuable work should not be

hindered and that they too should be included within the definition of

``scientist.''

Service Response

The Service provided for this exemption because it did not intend

to interfere with the work of accredited scientists engaged in

scientific pursuits. The Service was faced with the problem, however,

of how it could provide for scientific exchange yet maintain oversight

and differentiate such exchange from commercial shipments. The Service

acknowledges that much important work in the natural sciences has and

continues to be done by independent collectors and researchers, many of

which lack formal degrees in science. Amateur scientists, however, can

seek and obtain accreditation for their work from such institutions as

defined, or can simply comply with the requirements of this part. The

Service believes this to be a proper and reasonable alternative in view

of the recent trend of commercial sale of insects, particularly,

species of butterflies and beetles. The Service arrived at what it

believed was a fair standard in providing for such exchange by

accredited scientists working with accredited institutions.

Comments Pertaining to 50 CFR 14.12 Designated Ports

Many comments were received concerning the use of designated ports

for the import or export of wildlife and the shipment of wildlife items

through the U.S. mail. Many respondents requested that the shipment of

scientific specimens through the mail be made exempt from the

designated port and border port requirements for wildlife. Many

respondents were concerned about the anticipated economic hardship if

the shipment of scientific specimens were limited to Service designated

ports for clearance and the ordinary use of the mail was restricted.

One respondent suggested that the scientific specimens should be

included within the revised Sec. 14.15, or that Sec. 14.31(b)(4) be

rephrased to read: ``The port(s) of entry, including all ports of entry

for international mail, where importation or exportation is requested *

* *.''

[[Page 31857]]

Service Response

The Service acknowledges the concerns scientists have about the use

of the mail and has provided a limited exemption explicitly at

Sec. 14.24.

Comments Pertaining to Sec. 14.15: Personal Baggage and Household

Effects

One respondent requested that the Service define the terms

``household effects'' and ``residence.'' One representative of a

scientific institution requested that the Service include scientific

specimens within the existing provisions of Sec. 14.15 that provide for

personal baggage and household effects. This, as noted by the

respondent, would allow scientific specimens contained in a person's

personal baggage or household effects to be imported or exported at any

Customs port of entry and would help to avoid any confusion regarding

certain scientific specimens, particularly bird and mammal skins, being

considered ``raw or dressed fur, raw, salted, or crusted hide or

skin.'' These, as the respondent noted, are specifically excluded at

Sec. 14.15(b) from this exception to the designated port requirement

for imported or exported wildlife.

One respondent representing a falconry association requested that

falconry birds, lawfully held pursuant to a permit under 50 CFR 21.28

and 21.29 be included in the ``personal baggage exemption'' for

temporary imports and exports when such imports and exports are to

Mexico or Canada for recreational sport hunting purposes.

Service Response

The Service finds no merit in the above suggestions. The provisions

of Sec. 14.15 were intended to cover only certain kinds of wildlife

products and manufactured articles not intended for sale and used as

clothing or contained in personal baggage, or such products and

articles as mounted game trophies or tanned hides which are a common

part of a shipment of household effects. These exceptions to the

designated port requirements were never intended to apply to live

wildlife, or to wildlife requiring a permit, even if the intended use

is of a scientific nature. Live wildlife, and wildlife covered under

the provisions of 50 CFR parts 16, 17, 18, 21 or 23, require a higher

level of oversight by the Service.

Comments Pertaining to 50 CFR 14.21 Shellfish and Fishery Products

One respondent expressed some concern about the harvest and export

of freshwater mussel shells within the Class Pelecypoda. Although the

amendment as proposed in Sec. 14.21(a)(2) specifically states ``aquatic

invertebrates of the Class Pelecypoda,'' the respondent felt that there

would be some confusion by the public and the courts. The respondent

suggested that the Service identify what freshwater species of aquatic

invertebrates are not exempt.

Service Response

The Service finds no merit in the above suggestion in view of the

burden of codifying thousands of species of aquatic invertebrates when

comparatively few species are being exempted.

Comments

Another respondent recommended changes to Sec. 14.21(b) Pearls,

suggesting that this part should be expanded to include both import and

export by including ``pearls imported or exported for commercial

purposes may enter or leave.''

Service Response

The Service finds merit in this suggestion in that it points out a

deficiency in the proposed language of the exception. The Service's

intent in referencing Pearls under the shellfish and fishery products

exemption at Sec. 14.21 is to grant the same exemption to pearls as is

currently given fishery products for human consumption, which includes

exemption from the designated port requirement and declaration

requirement for exports. The addition of Sec. 14.21(b) is intended to

codify Service policy on pearls issued in March 1985, in which pearls

would be considered shellfish and fishery products. The language at

Sec. 14.21(b) will be changed in this final rule to reflect the intent

of the Service to exempt pearls exported for commercial purposes.

Section 14.21(b) will be modified to read ``pearls imported or exported

for commercial purposes may enter or exit the United States at any

Customs port of entry.''

Comments Pertaining to 50 CFR 14.22 Certain Antique Articles

Under the provisions of Sec. 14.22 as revised, any person may

import any article, other than scrimshaw, that is at least 100 years

old, and is composed in whole or in part of an endangered or threatened

species listed under 50 CFR 17.11 or 17.12, and has not been repaired

or modified with any part of any endangered or threatened species.

Under this section, such importations are authorized to occur at any

port designated by Customs for the importation of such antique

articles. Several comments were received in regards to this section.

One respondent recommended that this section be amended to include both

importations and exportations. The respondent suggesting addition of

text to the section to provide that ``Except for antique items

requiring a permit pursuant to part 23, any person may import or export

at any port * * *.'' One respondent recommended that the exemptions for

certain antiques in Sec. 14.22 be completely eliminated and noted as a

basis for making this recommendation the apparent increased commercial

trade in such items. A concern expressed by one respondent was that

certain dealers would attempt to circumvent the declaration requirement

and inspection fee by falsely claiming the exemption. Another

respondent who was similarly concerned noted that as proposed this

section would allow the importation of antique elephant ivory.

Service Response

The Service has carefully considered these comments and responds by

noting that the exemption at Sec. 14.22 is intended to only apply to

the import of certain antique articles. The statutory exemption

contained at 16 U.S.C. 1539(h) is specific in granting the exemption

only to imports. To authorize export of certain antiques under this

Section would clearly be beyond the Service's statutory authority. This

section, however, does not prohibit persons from applying for a permit

to export certain antique articles containing endangered species from

the United States under the provisions of 16 U.S.C. 1539(f). It is

clearly the intent of the Service that antique articles containing

parts of species now listed as endangered or threatened and meeting

certain standards be exempt from the designated port requirement. With

respect to the commenter's suggestion of eliminating the exemption in

this part for certain antiques, collectibles and curios, the Service

believes it has addressed the issue that many of these items are

destined for commercial markets by removing the exemption for antiques,

collectibles and curios from the definition of commercial. The Service

believes that it has adequately and reasonably addressed this issue.

With respect to the commenter's suggestion that the revision to

Sec. 14.22 will allow the importation of antique elephant ivory,

antique ivory is already allowed to be imported under provisions of the

African Elephant Conservation Act.

[[Page 31858]]

Comments Pertaining to 50 CFR 14.52 Clearance of Wildlife

Many respondents expressed some concern about the effects of

physical inspection on fragile scientific specimens by Service Wildlife

Inspectors. Many of these respondents strongly recommended that the

transfer of scientific collections between ``accredited scientific

institutions'' be made exempt from the inspection and clearance

requirements. One scientist suggested that if documents are provided

for non-protected species then actual physical inspection of such

specimens should not be required. Several environmental education and

animal advocacy groups expressed contrary views and were insistent that

all shipments of wildlife be physically inspecte4d prior to clearance.

On a related issue, many representatives of animal welfare

organizations were concerned with the adequacy of the Service's

inspection program and expressed the view that all shipments,

particularly importations and exportations of live wildlife, should be

physically inspected.

One representative of an entomological society was concerned with

what the respondent perceived as the Service's increased, burdensome

regulations upon entomologists. The respondent further noted that the

Service's regulations as proposed would require the hiring of brokers

and agents to facilitate the shipment of scientific specimens through

Service designated ports. The respondent also noted that such

requirements will significantly increase the costs of scientific

exchange.

Service Response

The Service has responded to these concerns raised by the

scientific community in the provisions added at Sec. 14.24. This

section provides for an exception to the designated port requirement

and extends the declaration filing requirements of dead, preserved,

dried, or embedded scientific specimens, not requiring a permit, that

are imported or exported by accredited scientists or accredited

scientific institutions.

Comments

Other respondents were concerned with Sec. 14.52(c)(3), which

requires the importer to make available to the Service all permits and

documents required by the laws or regulations of any foreign country

prior to obtaining clearance by the Service. Many respondents were

concerned about the detainment and possible seizure of cargo while the

Service determines the permits and documentation required by a foreign

country.

The Service proposed to add a paragraph at Sec. 13.52(c)(5) to

provide that the Service will require ``any documents and permits

required by the country of natal origin of the wildlife'' to be

provided upon importation or exportation. Many respondents were

concerned with problems in establishing the ``country of natal origin''

of wildlife. Several respondents were concerned with the scope of this

additional documentation requirement. The respondents noted, that

importers and exporters would be required to obtain export licenses,

captive-breeding certificates, or breeding licenses from the ``country

of natal origin.'' Some respondents were concerned about potential

challenges to foreign permits and the procedures that would become

necessary to establish the validity of such permits and other

documentation. Many importers expressed concern with ``country of natal

origin'' requirements and believed that it would often be impossible to

determine what documentation was required. Several respondents

anticipated problems in obtaining the required documentation and were

concerned that shipments may be detained and seized under the

procedures specified in Sec. 14.53(a). One respondent was concerned

about having to obtain documents and permits from foreign governments

within the proposed time period. The respondent recommended that a

mechanism be provided for the granting of extensions. Several

respondents asked: if wildlife is currently to be exported legally, why

should additional documentation be required? It would be difficult,

noted one respondent, to obtain documents and permits from the country

of natal origin for ``thousands of specimens.'' Another respondent

suggested that this requirement should be maintained for endangered

invertebrate wildlife but believed such a requirement to be unworkable

when applied to non-protected species.

Service Response

The Service has historically required, and will continue to

require, the importer of record to satisfy the provisions of Sec. 14.52

by supplying those items listed under paragraph (c), in order for the

Service to make a determination as to the legality of the wildlife or

wildlife products being imported. It is clearly the position of the

Service that those individuals engaged in importing wildlife or

wildlife products into the United States make reasonable efforts to

determine lawful origin of the wildlife or wildlife products and to

ensure compliance with applicable foreign law. It is also the intent of

the Service to detain shipments containing wildlife or wildlife

products when compliance with foreign law is in question. Questions

will arise as to the status of a shipment under foreign law or CITES

when the importer of record fails to supply the Service with permits or

other documentation which are known or suspected by the Service to be

required by a foreign country. In some instances it may require an

additional amount of time (in excess of 30 days) for the Service to

verify the requirements of a foreign country when a shipment is

questioned, in which case the revision to Sec. 14.53(a) allows, for the

extension of the 30 day provision to ``a longer period if specifically

stated.''

The Service's intent in modifying Sec. 14.52 is to clarify for the

public what documentation the importer of record is required to supply

upon requesting clearance for imported wildlife and wildlife products.

In proposing to require documentation from the ``country of natal

origin'' the Service was attempting to address the enforcement concern

of wildlife being unlawfully exported from an originating country in

violation of an existing ban on exports, or in violation of a foreign

law designed to regulate the export of such wildlife, and its

subsequent re-exportation from a secondary country to the United

States. The Service is bound by domestic law and international treaty

to ensure compliance with foreign law. The Service finds merit,

however, in the comments submitted. The Service recognizes that

determining the natal origin and requiring documentation for each

successive importation and re-exportation of wildlife may impose an

unreasonable burden on importers and Service personnel. In response to

these concerns the Service will revise Sec. 14.52(c)(5) to read: ``Any

documents and permits required by the country of export or re-export of

the wildlife.'' This revision will allow the public to more easily

determine when they have met the requirements imposed by CITES or of

foreign law. However, this revision will not completely relieve the

importer of the burden of providing proof of lawful export in

circumstances where wildlife is coming from a country known to the

Service to have a ban on the export of such wildlife, even if coming

through a re-exporting country. In those circumstances the importer may

be required to show proof of lawful export from the ``country of natal

origin'' to the country of re-export or to the United States. In

response to the comments received, the Service has

[[Page 31859]]

determined that it would be unreasonable to require country of natal

origin documentation with every importation, especially in the absence

of reasonable suspicion of unlawful export from the country of natal

origin. This Section has been appropriately revised in this final rule.

Comments Pertaining to 50 CFR 14.53 Detention and Refusal of Clearance

The Service has proposed several amendments to the Refusal of

Clearance section in Sec. 14.53. Many respondents were concerned about

the new detention and refusal of clearance requirements in

Sec. 14.53(a) and the process by which a detention becomes a formal

seizure. In general, this new section provides that any Service officer

may detain imported wildlife in accordance with established procedures.

The Service, however, will provide notice of the detention containing a

description of the wildlife involved, and the basis for the detention,

and describe the general nature of the tests or inquiries to be

conducted during the detention. This section also provides that if the

legality of the wildlife has not been determined within 30 days after

the date of notice, or other period as stated, that the wildlife shall

be deemed to be seized and no further notification of seizure will be

issued. This requirement is intended to establish a limit to the

duration of any detention by the Service of wildlife items being

imported or exported and to specify when such detention may be given

the status of having been seized for the purposes of filing an appeal.

The effect of this change is to clearly distinguish at what point an

ordinary detention of wildlife for purpose of inspection, clearance, or

identification can be regarded as having been seized.

One representative of the pet industry thought the proposed

conversion, from a detention to a ``formal'' seizure would violate

Constitutional Due Process requirements. Another respondent was

concerned that the 30-day seizure rule could be manipulated in the

Service's favor by dragging its feet. This respondent was also

concerned that detained property, that later became a seizure, would be

disposed of without further notice to the importer. Another wildlife

exhibitor expressed concern regarding the detention of large animals

without providing the shipper the opportunity to respond ``within a

reasonable period of time'' after being notified.

Service Response

The Service does not intend for any of the changes in Sec. 14.53 to

discourage dialog between an importer and the Service during a period

of detention. The importer of wildlife being detained would be free to

offer, in good faith, any information documentary or otherwise, to

assist the Service in its inquiry of the legality, identity, or origin

of wildlife or wildlife products being imported.

Comments

Another respondent requested that formal detention criteria be

established similar to the criteria outlined for refusal of clearance

in Sec. 14.53(b). The respondent noted that without such guidelines

there would be significant inconsistencies in the application of

detention and the potential for abuse. One representative of the

wildlife import/export industry remarked that although there are

guidelines provided for the Service's ``refusal of clearance'' of

wildlife shipments, there are no such guidelines for the ``detention''

of wildlife.

Service Response

Guidelines are offered in this section for refusal of clearance due

to a refusal being of a direct nature which could lead to the immediate

seizure and initiation of forfeiture action or other appropriate action

by the Service. Detention of wildlife or wildlife products being

imported is merely a formal inquiry period whereby the Service

establishes the status of a given shipment. The Service believes that

providing for a formal detention period giving the importer or exporter

time in which to comply with Service requirements is reasonable, given

the alternative of refusing clearance on the shipment, and possibly

seizing it and seeking forfeiture. The myriad circumstances which would

give rise to some reasonable suspicion and would then dictate formal

detention are so numerous and variable that the Service needs some

flexibility in its application of detention. In general, goods will be

detained either to identify the wildlife being imported, or to verify

foreign permits presented for clearance. The Service would note that

specific guidelines for seizure and forfeiture of imported wildlife and

wildlife products are contained at 50 CFR part 12.

Comments

One respondent suggested that the Service amend the proposed

changes to Sec. 14.53(a) by adding safeguards found in Customs law

found at 19 U.S.C. 1499. Specifically, the respondent requested that

the Service add two phrases: ``the anticipated length of the

detention''; and ``what information should be furnished by the importer

or consignee that may accelerate the disposition of the detention.''

Service Response

This section will require the Service to inform the importer or

consignee of the maximum period of detention, after which the wildlife,

if not released, will be considered seized. As stated, the Service is

willing to accept any information, offered in good faith, that the

importer or consignee can provide to assist in determining the status

of imported wildlife. However, the Service does not want to require

information to be submitted by the importer in each detention

circumstance, since detention frequently involves communication between

the Service and foreign governments in document verification, which is

beyond the control of the importer or does not require input from the

importer.

Comments

Several respondents suggested that the text of Sec. 14.53(a) be

amended to provide for the detention for both imported and exported

wildlife. Another respondent suggested adding APHIS inspectors to those

officers vested with the authority to detain wildlife shipments. The

respondent noted that APHIS has the authority to regulate CITES plant

material under part 24 and on those occasion when Customs or Service

Inspectors are not available, APHIS Inspectors are available to detect

shipments which need Service attention. Many respondents were concerned

about the storage of detained wildlife. Other respondents were

concerned about who would be responsible for the storage costs incurred

as a result of the Service detaining an importation and whether, in the

case of live wildlife shipments, they would be stored in adequate

facilities.

Service Response

The USDA, in particular APHIS, unlike the Customs Service has not

been granted authority in this regulation to detain wildlife shipments

for the Service. Although the USDA provides valuable assistance to the

Service in detecting shipments containing wildlife, only the Customs

Service is authorized to act in the absence of Service personnel.

The Service clearly intends for the cost of storage or demurrage of

shipments in a formal detention status to be borne by the importer or

owner of those goods as is customary with other regulatory agencies

such as the Customs Service.

[[Page 31860]]

Comments

Several respondents were concerned about Sec. 14.53(b)(2). This

paragraph provides that any Service officer may refuse clearance of

imported or exported wildlife and any Customs officer acting under

Sec. 14.54 may refuse clearance of imported wildlife when there are

reasonable grounds to believe that the correct identity and country of

origin of the wildlife has not been established. This paragraph further

provides that in such cases the burden is upon the owner, importer,

exporter, consignor, or consignee to establish such identity by

scientific names to the species level or, if any subspecies is

protected by the laws of this country or the country of origin, to the

subspecies level. Several respondents expressed concern with the

addition at Sec. 14.53(b)(5), which provides that the Service, or any

Customs officer acting under Sec. 14.54, may refuse clearance of

imported or exported wildlife when there is reasonable grounds to

believe that any fee or assessed penalties against the importer or

exporter under part 11 of this chapter have not been paid. A few

respondents felt that they would be penalized for exercising their

right to contest a civil or criminal penalty which had previously been

assessed.

Service Response

The Service has carefully considered these comments and believes

that nothing in the amendment to Sec. 14.53 will actually deny any

individual the right to contest or appeal a civil or criminal penalty

levied against them. The Service finds merit, however, in the

commenter's concern that this Section may appear to be coercive, and

would discourage an importer or exporter from exercising their right to

file an appeal under part 11. In response to the commenter's concerns,

and to clarify for the public when the Service will or will not

exercise its authority under Sec. 14.53, the Service will further

revise this section to read that the Service will refuse clearance for

non-payment of assessed penalties, except for those assessments on

appeal. The revised Sec. 14.53(b)(5) will read as follows: ``Any fee or

portion of balance due for inspection fees required by Sec. 14.93,

14.94, or penalties assessed against the importer or exporter under 50

CFR part 11, has not been paid. This paragraph shall not apply to

penalty assessments on appeal in accordance with the provisions of part

11.''

Comments Pertaining to 50 CFR 14.54 Unavailability of Service Officers

Many respondents were concerned with Service proposals to change

Sec. 14.54(a). Several scientists thought the requirement to notify the

Service 48 hours in advance of importations and exportations was

impractical for such shipments are often times made on a continuous

basis during the scientific field work season. One Service employee

responding in a private capacity noted that the Service in

Sec. 14.54(a) needs to expand or define the term ``conditional

release'' as it relates to shipments released to importers prior to

clearance. Another respondent noted that the phrase ``within a

reasonable time'' could be subject to differing interpretations if it

was not better explained or defined. One respondent noted the proposed

amendments changed the word ``if'' to ``where'' in the phrase ``where a

Service officer is not available.'' The respondent further remarked

that at designated ports Service officers are available. One wildlife

professional commenting in a private capacity suggested that the 48

hour notification should be required to be made during normal business

hours. Another respondent suggested that to cover weekend and holidays

the 48 hour notification should be increased to 72 hours. Importers, as

one respondent explained, often do not receive notice of importations

until 12 hours prior to the importations. Another respondent claimed

that wildlife importers are often not notified of the arrival of such

shipments until after they are in route. One respondent suggested that

in such circumstances a ``special inspection fee,'' similar to that

assessed for overtime fees, should be charged to provide for these

unscheduled inspections.

Service Response

The Service has carefully reviewed these comments and notes that

the revisions to Sec. 14.54(a) do not apply to every importation. This

section is intended to apply to circumstances involving import of live

or perishable wildlife or wildlife products or when inspection is

requested at the time of arrival. The Service believes that businesses

dealing in perishable wildlife or wildlife products at least

contemplate the arrival of shipments within a 48 hour time frame, which

would allow for Service notification. The Service is attempting to

provide an increased level of service to those persons dealing in live

or perishable wildlife or to those whose shipments must be expedited

upon arrival. The Service cannot provide this level of response, if

some form of prior notification is not given. The Service will keep the

notification requirement at 48 hours for affected imports.

Comments

Many other comments were received concerning the proposed provision

to require that the Service be notified and the shipment be made

available for inspection 48 hours prior to exportation. Several

respondents from the Alaskan fur trade anticipated problems with the

Service notification requirement.

The lack of basic communication, as one respondent explained, from

the ``bush,'' the prevalence of ``multi-carrier'' methods of shipments

originating with small bush carriers, and the usual delays caused by

weather are all significant factors which would complicate or inhibit

individual compliance with such notification requirements. Several

representatives of the wildlife import/export industry thought the 48

hour advance notice for exportations in Sec. 14.54(f) was unreasonable,

particularly when notice is given to a Designated Port during normal

working hours. Several other respondents agreed with the 48 hour prior

notification for exports in Sec. 14.54(f) but believed it would not be

possible to make shipments of live perishable wildlife available for

inspection 48 hours prior to shipment. One respondent requested that

the term ``time of exportation'' be made clearer and suggested that the

term be revised to read ``the scheduled time of departure'' of the

vehicle, vessel, or aircraft from the port where the shipment was

presented for inspection. One commenter believed that such a

requirement would be detrimental to the welfare of live wildlife. The

respondent suggested that the proposal be amended to provide for a 24

hour notice and to require that the shipment be made available for

inspection at least five (5) hours prior to shipment. One respondent

representing a sports hunting and conservation organization expressed

concern with the term ``perishable'' and asked if salted or dried skins

and sport hunted trophies would be considered as perishable wildlife.

The respondent further noted that without a more specific definition of

the term, there would be inconsistencies in the interpretations made by

individual Wildlife Inspectors. One respondent was particularly

concerned that Sec. 14.54(f) did not include the same provision for

``when Service officers are not available'' as does Sec. 14.54(a). The

respondent noted that in situations when a shipment is prepared for

export

[[Page 31861]]

and the Service is unavailable to inspect it, there should be a

provision to allow the shipment to be sent without physical inspection

by the Service so as not to incur additional fees and charges.

Service Response

The Service believes that the 48 hour notification requirement is

reasonable in view of the ability of Customs Officers to act on behalf

of Service Officers under the authority of Sec. 14.54 when Service

Officers are not available, and the provision under Sec. 14.54

requiring clearance by a Service Officer ``unless expressly authorized

otherwise.'' This last provision will allow for clearance of exports

without physical inspection in unusual situations. The Service is

attempting to maintain effective oversight while allowing for clearance

in those situations in which an export would be delayed an unreasonable

period of time waiting for physical inspection, or in which an officer

is not available. The 48 hour notification becomes particularly

important, in view of the requirement to obtain clearance prior to

export, when dealing with live wildlife. The Service cannot maintain a

high level of service, maintain oversight, and avoid unnecessary and

costly live wildlife mortality, without some prior notification of the

intent to export. The Service will not automatically consider salted or

dried skins or sport-hunted trophies to be perishable items.

Comments Pertaining to 50 CFR 14.55 Exceptions to Clearance

Requirements

Many representatives of professional scientific organizations were

concerned with the effect of clearance requirements on the field of

biological control. One respondent noted that wildlife shipments are

already regulated by APHIS under the Plant Pest Act and should,

therefore, be exempted from the Service's inspection and clearance

requirement. Customs and APHIS, in the respondent's opinion, already

adequately regulate the movement of such wildlife and the Service

regulations are, therefore, overly burdensome. The Service, as the

respondent suggested, could be alternatively notified of pending

shipments by the receipt of an APHIS PPQ-526 permit.

Service Response

Neither APHIS nor the Customs Service is mandated to regulate the

import and export of wildlife and wildlife products to and from the

United States. The Service's mission and expertise is different than

that of APHIS or the Customs Service and no additional exceptions under

this part can be justified.

Comments Pertaining to 50 CFR 14.61 Import Declaration Requirements

One respondent representing an entomological society requested that

Sec. 14.64(b)(1) apply to both imports and exports of scientific

specimens. Numerous respondents expressed concern with the requirement

to file 3-177 declarations with wildlife identification to the species

level, stating that identifying scientific specimens is a long and

laborious process that would take much longer than the 180 day

requirement. Numerous other respondents expressed concern with the

anticipated administrative burden and cost associated with the

declaration requirement. Many respondents suggested exempting the trade

of scientific specimens from the Service's requirement to file a

Declaration for Importation or Exportation of Fish or Wildlife (Form 3-

177) except where shipments contained endangered species. Other

respondents were concerned with what was characterized as the

anticipated ``endless loop of filing for extensions.''

Numerous respondents representing museums and the systematic

scientists' community expressed concern with the requirement to file 3-

177 for shipments of scientific collections. Many commenters noted that

their current inventory of specimens is extensive and, therefore, would

be impossible to list. Another respondent similarly noted that

shipments of scientific collections are often made in bulk and the

required inventory would be impossible to provide.

Service Response

The Service believes that it has addressed these concerns in its

addition of Sec. 14.24 to this Part.

Comments Pertaining to 50 CFR 14.62 Exceptions to Import Declaration

Requirements

One respondent believed that the 180 day requirement to update a

declaration in Sec. 14.62(c) is too long a time period. This, in the

respondent's opinion, had made it difficult for the Service to track

incomplete 3-177s. One scientist requested that the text of

Sec. 14.62(a) be revised to provide that a 3-177 form does not have to

be filed for importation of scientific specimens that are being shipped

from one scientific institution to another. The respondent further

noted that ``the Service can have no particular interest in keeping

track of the tens of thousands of scientific specimens in museums that

are being sent to experts or authorities around the world for study

purposes.''

Service Response

The Service believes it has addressed these comments in its

addition of Sec. 14.24 to this part.

Comments Pertaining to 50 CFR 14.64 Exception to Export Declaration

Requirements

Several respondents suggested that the export of American raw furs

should be made totally exempt from the Service's regulations. Several

other respondents expressed similar opinions about what they regarded

as the over-regulation of the fur trapping ``industry.'' One self-

described producer of captive-bred reptiles and amphibians requested

that an exemption for reptiles and amphibians be added, similar to that

provided in Sec. 14.64(a) for live aquatic invertebrates. This, the

respondent proposed, would allow the shipment of such animals for

propagation purposes such as the exchange of breeding stocks. One

respondent noted, regarding Sec. 14.64(b)(1), that because the value of

wildlife products is arbitrary, the threshold value of $250.00 should

be eliminated as a specific exemption to the declaration requirement.

One representative of an entomological society requested that

Sec. 14.64(b)(1) be made uniformly applicable to both the import and

export of scientific specimens. One respondent from a sport hunting

association requested that the Service eliminate the exception for game

trophies in Sec. 14.62(b)(2). The respondent believed that there was a

continued need for the Service to monitor this activity as it relates

to the illegal harvest and subsequent exportation of wildlife. One

respondent representing an animal advocacy organization suggested

eliminating the game trophy exemption of this part and cited the

Service's need to maintain records pertaining to noncommercial

exportations of sport taken trophy fish and big game animals by foreign

hunters and fisherman departing with wildlife trophies as personal

baggage.

Numerous respondents suggested that scientific specimens should be

allowed to be shipped via the U.S. mail. Many respondents suggested

amending this section to include scientific specimens for scientific

institutions and museums. Many scientists concerned with the import and

export of biological control agents stated there should be an exemption

to the declaration requirement for these items. One representative of a

state wildlife agency

[[Page 31862]]

noted that scientific specimens have no commercial value or a value

less than $250.00 and, therefore, should be exempted from the export

declaration requirement. It has been suggested that noncommercial

importations of scientific specimens be exempted as well. One

respondent suggested that wildlife being imported as personal

accompanying baggage should be required to be declared and the 3-177

presented.

Service Response

The Service must balance effective oversight of activities

involving the import and export of wildlife against the inconveniences

caused by regulation. Those species indigenous to the U.S. and those

species of wildlife common in trade are of particular importance in the

regulatory scheme due to the Service's mission of protecting both

indigenous wildlife and wildlife around the world threatened by over-

utilization. The United States is a leader in wildlife management and

the world's largest consumer of wildlife products, which places a

burden on the Service to ensure that wildlife imported or exported

complies with appropriate state and foreign law. Exceptions to

regulatory requirements are carefully considered by the Service and

developed over a long period of time. The Service does not see any

merit in adding species commonly found in commercial trade, and not

currently captive-bred to any large degree, to the exceptions to export

declaration requirements. The suggestions made by commenters to expand

the export declaration exemptions to species whose survival is affected

by trade would be inconsistent with the mission of the Service and the

intent of the regulation. Conversely, the Service cannot regulate all

exports made under the personal effects exemption due to the Service's

limited statutory authority, and the obvious impact this would have on

movement of persons into and out of the United States. The Service will

maintain oversight of export activity and make adjustments to the

exceptions section as appropriate. The Service believes that the

exceptions granted to scientific specimens in this part are warranted

and adequately address those respondents' concerns.

The Service has added the word ``live'' to the export declaration

exception at Sec. 14.64(a) for aquatic invertebrates of the Class

Pelecypoda, to more accurately reflect the Service's intent of

exempting only living specimens of oysters, clams, mussels, and

scallops.

Comments Pertaining to 50 CFR 14.81 Marking Requirements

Numerous comments were received in regards to Sec. 14.81. One

respondent expressed concern with toxic substances being shipped

incidental to importations or exportations of wildlife, for example,

insecticides in shipments of raw hides. The containers, according to

the respondent, should be marked as to the hazard/identity of the toxic

substances. One respondent suggested that the change the term

``scientific species name'' to read ``species scientific name.'' One

representative of a Federal agency expressed concern regarding the

inability to accurately identify scientific specimens to meet this

requirement. Several representatives of scientific institutions noted

that it may not be possible to identify scientific specimens to species

level at the time of importation. Many state agency representatives

expressed similar concern regarding the identification of scientific

specimens to the species level. It was noted by several such agencies

that such invertebrate shipments often contain thousands of specimens

which may take years to identify.

Several specific suggestions were received concerning the marking

of containers. One respondent suggested marking as ``specimens for

scientific study'' with the shipper and receiver being on a registry of

``registered scientific collections.'' The respondent further noting

that if follow up document inspections were required by the Service,

the shipments would be well documented by the scientific facility

making such inspection possible. Numerous representatives of foreign

scientific institutions also expressed concern with the marking of as

yet unidentified scientific specimens being submitted for

identification. Several representatives of foreign institutions noted

that scientific collections are generally sent as rough-sorted, bulk

shipments and meeting this requirement would be impossible. One

respondent from the wildlife import/export business community noted

that the requirement to submit a shipping list containing the

scientific name being shipped was a redundant effort as the 3-177

already contains this information. Additionally, the shipping documents

are often provided by the shipper's agent and not directly under the

control of the importer. Several respondents noted that they may have

many different species in an insect specimen shipment. Another

requested that the wording be amended to provide for a legible list of

a shipment's contents containing the identification of the specimens

identified to the lowest taxonomic level that is scientifically

possible. This would involve the number of each taxon listed and

whether the members of the listed taxa are venomous.

Service Response

The Service's intent in revising this section is twofold. First, is

the obvious safety concern of Wildlife Inspectors examining live

wildlife shipments that may contain venomous species. This requirement

will allow inspectors to identify the presence of venomous species

without having the importer's declaration present. Declarations are

generally filed when making entry, not necessarily when the shipment

arrives. Second, this revision will assist Wildlife Inspectors in

determining the applicability of this part when encountering wildlife

shipments for which no declaration has been filed.

Comments Pertaining to 50 CFR 14.82 Aternatives and Exceptions to the

Marking Requirement

Several responses received pertained to this Section. One

representative of a large animal advocacy group suggested using the

words ``the scientific name the identifies the species,'' due to what

the respondent noted as the variety and confusion concerning the use of

common names and the problem of proper identification using those

names.

Service Response

The Service finds merit in this suggestion but will not make any

additional changes to this section at this time in order to avoid

making the revision to the marking requirement overly burdensome on

wildlife shippers.

Comments Pertaining to 50 CFR 14.91 License Requirements

Many comments were received regarding Sec. 14.91. Several wildlife

importers agreed with the requirement that all persons engaged in the

business as an importer or exporter of wildlife obtain a valid import/

export license, and that no exemption by class or threshold dollar

amount should be provided. One respondent questioned, with regard to

Sec. 14.91(c)(5), whether the requirement was to include a taxidermist

who is not the ``importer of record'' but is a direct recipient of

hunting trophies taken by the ``importer of record.''

Service Response

This section requires certain persons who engage in the enumerated

activities to hold a valid Service import/export license, including

taxidermists. If a

[[Page 31863]]

taxidermist is importing or exporting wildlife for commercial purposes

as the ``importer or exporter of record,'' then a license is required.

No license is required if a taxidermist is the mere recipient of

wildlife or delivery point for a hunter acting as ``importer or

exporter of record,'' since the actual importing and exporting is

arranged and paid for by the hunter himself.

Comments

Several comments were received from trappers in Alaska pertaining

to this section. Many of these respondents expressed concern with the

proposed change that would require them to obtain a license to export

furs to Canada. Many of these trappers, according to the respondent,

are part-time operators who did not previously meet the $25,000.00

threshold license requirement. Many commenters believed that this

proposal was unwarranted due to the fact that they currently have to

obtain CITES permits and non-designated port permits. Several fur

industry representatives were concerned about the regulations as they

would apply to the shipment of furs and were opposed to the elimination

of the $25,000.00 threshold. Many believed that the added cost of this

requirement was not warranted. Several respondents were concerned about

the effects of the Service's license requirements on small importers or

exporters. One respondent thought that small import or export business

should not be required to obtain licenses. One respondent requested the

duration of an import/export license in Sec. 14.93(d) to be changed to

a period of two years to reduce costs incurred by smaller importers.

Service Response

Clearly, fur trappers exporting furs from the United States are

doing so with a commercial intent. Therefore, those persons are

``engage[d] in business as an importer or exporter of wildlife,''

whether they do so on a full-time or part-time basis. Moreover,

although the Service recognizes that the elimination of the $25,000

threshold will impose additional costs on some small importers and

exporters, the revised licensing system will more accurately reflect

the Service's costs in providing inspection services.

Comments

One respondent inquired as to whether the proposed regulation

changes were in compliance with the ``Regulatory Flexibility Act,''

which establishes procedural requirements for Federal agencies to

determine whether a particular regulation is having a significant

economic effect on a substantial number of small entities. This law is

intended to ensure that laws and regulations designed for application

to large scale entities have been applied uniformly to small

businesses, small organizations, and small governmental jurisdictions

even though the problems that gave rise to government action may not

have been caused by those small entities.

Service Response

The Service has determined that this regulatory change will not

have a significant economic effect on a substantial number of small

entities as required by the Regulatory Flexibility Act (See Required

Determinations).

Comments

Many respondents representing scientific institutions had

misunderstandings concerning the license requirement for noncommercial,

scientific shipments. Many were concerned that they would now be

presumed to be commercial under the presumption of commercial intent

provided within the definition of commercial in Sec. 14.4.

Service Response

The Service clearly intends to exclude scientific specimens from

the license and designated port requirements unless those scientific

specimens are imported or exported for primarily commercial purposes.

The exceptions contained at Sec. 14.24 apply to dead, preserved, dried,

or embedded scientific specimens imported or exported by accredited

scientists or accredited scientific institutions for research purposes

only. The license requirement will apply to those importers or

exporters of scientific specimens whose intent is commercial.

Comments

One environmental education company and several animal advocacy

groups suggested that convicted wildlife violators should be prohibited

from obtaining an Import/Export license. The respondent further

suggested that any license already issued should be revoked by the

Service upon the individual or organization's conviction.

Service Response

Provisions for the revocation or suspension of permits or licenses

are contained at 50 CFR part 13.

Comments Pertaining to 50 CFR 14.92 Exception to License Requirements

Numerous comments were received regarding Sec. 14.92. One Service

employee responding in a private capacity requested a change in

Sec. 14.92(a)(3) to require importers to document their claim that

certain imported items are ``ranched,'' meaning the item was derived

from ranched-raised wildlife. The respondent believed that many such

shipments are routinely declared as ranched to circumvent fee

requirements. Another respondent suggested deleting this exception

entirely. The respondent explained that this exception was first

established to assist World War II veterans operating fur ranches as a

commercial business. The respondent noted that other commercial

businesses dealing with captive-raised wildlife have not been afforded

a similar exception. One respondent suggested that Sec. 14.92(a)(6) be

amended to include export within the exception provided to exempt

pearls imported or exported for commercial purposes.

Service Response

The Service finds merit in the above responses but will not make

the changes to Sec. 14.92(a)(3) regarding furbearers born and bred in

captivity at this time due to the prevalence of ranched furs in the fur

industry, and due the Service's ability to verify whether or not furs

have in fact been taken from the wild and portrayed as captive bred.

The Service also finds merit in the addition of the word ``exported''

to Sec. 14.92(a)(6) to exempt pearls exported for commercial purposes

from the license requirement. The Service has made the appropriate

revision to this section in response to comments received.

Comments

Numerous respondents representing wildlife importers and exporters

requested that the Service add the words, ``for-profit zoological

institutions and theme parks'' to this section to provide for when

importation or exportations are for educational or exhibition purposes

and not for resale. One respondent representing the falconry community

requested that falconers, licensed pursuant to part 21 or by the nation

of permanent residence, importing or exporting legally held raptors for

falconry purposes and not for purchase, sale, barter, or transfer of

such raptors, be included as an exemption to this license requirement

in Sec. 14.92(b).

Service Response

The Service believes that it has adequately addressed the most

common exceptions to the license requirement in this section. The

Service believes that to categorically exempt faconers or ``for-profit

zoological institutions and theme

[[Page 31864]]

parks'' from the license requirement would be inappropriate since these

activities can involve a commercial purpose. The exceptions listed in

this part represent longstanding exceptions to several regulatory

requirements of the Service. If falconers or zoological institutions

are not engaged in the business of importing or exporting wildlife, as

defined at Sec. 14.91(b), then the license requirement will not apply.

Comments Pertaining to 50 CFR 14.94-Fees

Numerous comments were received on the issue of user fees provided

for in Sec. 14.94 Fees. This section establishes the Service fee

schedule for a variety of services provided by the Service to importers

and exporters of wildlife.

Many comments were directed specifically at the requirements of

Sec. 14.94(a)(1), which provides that an overtime fee may be charged,

in addition to the inspection fee, for certain importations or

exportations of wildlife, where the wildlife being imported or exported

is part of a commercial shipment. One respondent expressed concern that

the Service would not be charging overtime fees for noncommercial

shipments, i.e., personal pets, or shipments by scientific non-profit

institutions.

Many respondents expressed concern with the proposed $55.00

inspection fee and questioned whether such a fee would apply to

scientific specimens imported for research purposes. Many respondents

believed that this would present them with a significant problem

considering their limited operating budgets. Several representatives

from foreign scientific institutions were concerned with the imposition

of inspection fees for scientific specimens, believing that such

shipments would now be considered as presumptively commercial under the

Service's revised definition of commercial.

One respondent suggested that the calculation of the inspection

fees should be based on 5% of the declared value of the shipment with a

minimum level of $100.00 per inspection. The monies collected,

according to the respondent, should then be used to increase the number

of physical inspections performed. The U.S. taxpayer, as the respondent

noted, should not be subsidizing the wildlife import and export

business. Another respondent suggested that the Service adopt an

overtime fee schedule consistent with other regulatory agencies. One

respondent was concerned as to the collection of fees by the Service

for commercial shipments made via the mail. The respondent wondered

whether such items would be subject to a Service refusal of clearance

while the Service is awaiting payment.

Several of the respondents were concerned about the application of

overtime fees as provided in Sec. 14.94(b), as such fees relate to

after-hour noncommercial importations. Respondents expressed concern

regarding the Service's increase in inspection fees while at the same

time reducing the license fee to commercial operators. This, as one

respondent expressed, seemingly discriminates against the noncommercial

importers in favor of commercial users. A respondent noted that the

preamble background information, found in the Federal Register notice

(September 14, 1994; 59 FR 47214) states that noncommercial shipments

and shipments by persons exempt from the license requirements are not

to be charged an inspection fee, but may be charged ``overtime costs''

incurred at the specific request of the importer or exporter. The

respondent further noted that under Sec. 14.94(a)(1) overtime fees

apply only to ``commercial shipments.''

Service Response

The Service appreciates these comments because it points out a

deficiency in the proposed rule which erroneously tied overtime fees to

``commercial shipments.'' The Service clearly intends for overtime fees

to apply to importers and exporters of wildlife who request clearance

outside of normal work hours, regardless of commercial or noncommercial

status. The language in the proposed rule which erroneously linked

overtime fees to those holding import/export licenses may have

suggested to the respondents that the Service was ``discriminating''

against noncommercial importers. Section 14.94(b) has been revised

appropriately to reflect the Service's intent and in response to

commenters concerns. Paragraph (b) has been revised in this final rule

to reflect that any importer or exporter requiring clearance by a

Service Officer who requests that an inspection be done outside of

normal work hours will be charged an overtime fee in accordance with

the fee schedule found in Sec. 14.94(d). The structure of the fee

schedule at Sec. 14.94(d) has also been redesigned in this final rule

to make the applicability of the new fees clearer and less confusing

for the public. The fees themselves will remain as proposed for the

reasons stated.

Comments

Many commercial importers expressed concern with the proposed

increase in inspection fees. One representative of a wildlife import/

export business complained that the average cost of $55 to process a

shipment was not valid and that a flat, per-shipment fee is not the

best method. The respondent further suggested that the Service adopt a

fee schedule similar to that used by Customs which uses an ``ad

valorem'' with flat fee minimum/reimbursable overtime. One respondent

noted that at the John F. Kennedy International Airport tropical fish

shipments routinely arrive on Sundays. The respondent questioned why

such fees were necessary, when other Federal regulatory agencies

schedule employees to work on Sunday without charging higher fees. The

Service, as the respondent further noted, should be more flexible in

scheduling their Inspector work hours to fit the needs of individual

ports. Several importers requested that a cap on importation filing

fees of $1250.00 annually be placed on smaller importers. Another

respondent similarly suggested eliminating the fee for, small business

which do not import more than $20,000.00 annually. Another respondent

suggested that the Service eliminate the fee for reexports for, as the

respondent explained, the importer had been charged originally without

the shipment having been changed.

Service Response

The Service acknowledges these concerns and is attempting, through

this revision, to maintain the most efficient inspection program

possible without allowing its fee structure to become overly burdensome

to smaller importers. The analyses of the Service's inspection program

mentioned in the proposed rule clearly indicate a need to raise

inspection fees and overtime rates to be commensurate with costs

incurred by the Service. Most ports, both designated and non-

designated, are not staffed to allow for the inclusion of ``regular

hours'' on weekends or holidays or after normal business hours, which

may require certain importers or exporters to pay more for inspections

done at these hours. The Service has, in the past, examined the ``ad

valorem'' method of reimbursement and has determined that a flat fee is

the best method, since actual work required to inspect wildlife

shipments does not correlate well with the value of the shipment. In

other words, shipments of high value do not always require Wildlife

Inspectors to perform more work. The Service will monitor the

collection of fees closely and in the event fees generate sufficient

revenue to pay for additional staffing at certain ports to allow for

expanded

[[Page 31865]]

hours of inspection, the Service will respond accordingly.

Comments

One response was received with regards to the Service billing of an

overtime inspection in which three wildlife shipments were inspected.

The respondent noted that the charges for the three inspections were

not prorated over the three shipments but all three received the same

full charge. The respondent suggested the Service prorate the charge

for multiple importations and incorporate a 1 hour minimum overtime

charge. One respondent noted that in his opinion the fees were so high

with regards to exportations that it seemed to constitute a ``tax'' on

exportations which, in his words, was unconstitutional. One exporter

commented that most of his business is exporting the same or like item

over and over. His inspection consists of sending in his fee and

3-177 with his shipments never being physically inspected. He suggests

reducing or eliminating this repetitive process but gave no suggestions

on how this might be accomplished.

Service Response

As noted in the proposed rule the Service is merely attempting to

recoup costs incurred in the inspection process by adjusting its fee

schedule in this final rule. In those instances, as described by the

commenter, when several shipments are inspected outside normal work

hours or multiple shipments are inspected for one importer on multiple

entries, the Service, by policy, does not prorate associated charges.

However, in response to commenter's concerns the Service has added an

exception at Sec. 14.94(b)(4) to allow for multiple shipments consigned

to the same importer/exporter and inspected at one location on

overtime, to pay one minimum hourly overtime fee at designated ports.

The inspection fee will still apply to each shipment.

Comments

Many comments were received from the animal welfare community that

requested increased inspections at port of Miami and that the Service

should increase fees to a minimum of $100 to pay for the increased cost

of law enforcement personnel. Many comments were received from

representatives of scientific institutions concerning fees. Many

respondents representing scientific organizations expressed concern

with the inspection fee of $55.00 per shipment, noting that such a fee

imposed upon wildlife imports and exports would be too high for their

budgets. Several respondents perceived the Service's proposal as an

increased regulatory burden on the scientific community and believed it

had the potential to ``isolate'' the United States from the

international scientific community. Of particular concern to several

scientists was the ``trade'' of non-endangered species. One respondent

noted that he knew of no evidence that supported the notion that

scientific collecting poses a threat to non-endangered insects. Another

scientist similarly suggested that the Service, due to lack of funding

and manpower, should concentrate its regulatory effort on threatened

and endangered species and those covered by CITES.

Service Response

The Service notes that these commenters' concerns are precisely why

an inspection program was established by the Service in 1975. In order

for the Service to determine if a shipment contains threatened or

endangered species, or CITES species, and consequently to determine if

those species are affected by trade, the shipment must be inspected by

qualified personnel who can make that determination. Again,

noncommercial importers and exporters of wildlife will not be subject

to fees unless requiring and requesting clearance outside of normal

business hours, or using nondesignated ports.

Comments

Many respondents appeared to have some misunderstanding regarding

the collection of fees and quoted the overtime schedule as if the

overtime fees applied to all inspections. Other respondents suggested

that higher rates be charged for inspections performed at non-

designated ports. Many respondents opposed the reduction in the license

fee but supported an increase in the inspection fee to cover the

inspection program, to the extent that such an increase would allow for

100% inspection of shipments. One respondent suggested that the service

should establish a mileage fee for overtime inspections similar to

Customs. A pet industry spokesman suggested the increase in fees be

phased in over time and requested that a more detailed justification of

the hourly rate for inspections be made available when the final rule

is published. Several respondents suggested that the inspection fee be

prorated when multiple inspections are being performed for the same

importer, primarily at non-designated ports. Numerous respondents

requested the Service justify the increased inspection fee.

Service Response

Under the new user fee structure the Service will charge a higher

rate at nondesignated ports, in the form of an Administrative fee plus

a 2 hour minimum charge, to cover the increased administrative costs

associated with nondesignated ports. The Service has determined that

inspection fees or administrative fees at nondesignated ports will not

be prorated due to the obvious incentive given to importers/exporters

to combine shipments, when the workload for wildlife inspectors would

remain the same. The Service intends to charge mileage fees for

inspections conducted at nondesignated ports with no permanent law

enforcement staff present. The Service understands the concerns raised

by respondents regarding justification of user fee increases, and

refers to the following four studies, conducted since 1988 which

recommended, and justified, fee increases in the inspection program:

the Service, Division of Finance, findings and recommendations on

review of the Law Enforcement Management Information System and Import/

Export Fee Billing and Collection System, a 1988 user charges and

collection report by the Department of the Interior Office of Inspector

General, a 1991 Law Enforcement Functional Analysis Review, and a 1992

draft of the CITES Implementation Study prepared by Traffic USA, the

trade monitoring group associated with the World Wildlife Fund.

Comments

Many respondents were concerned with the low numbers of physical

inspections of wildlife shipments being imported into the United

States. One respondent expressed support for the Service's regulation

of imports and exports of wildlife and other products being imported

for a commercial purpose, particularly, as the respondent noted, when

such imports or exports involve threatened and endangered species.

Service Response

The Service anticipates an increase in the physical inspection rate

of wildlife shipments on a nationwide basis, due, in part, to the

increase in fees justified in the studies mentioned in this final rule.

Fee adjustments allowing the Service to more accurately recover costs

may also allow the Service to hire additional personnel.

[[Page 31866]]

Summary of Comments Received to the Supplemental Rule

On March 23, 1995, the Service published in the Federal Register

(60 FR 15277) a supplemental proposed rule proposing additional changes

to these parts. In response to this notice the Service received a total

of 12 comments. These included 2 from associations, 2 from states, 3

from museums, 1 council, 1 union, 1 club, 1 university and a citizen.

The comments were as follows:

One respondent noted an error in the definition section provided at

Sec. 14.4. The respondent noted that the term ``accredited member of

the American Zoological Association'' was stated twice. The correct

name according to the respondent is the American Zoo and Aquarium

Association.

In regards to Sec. 14.53(b)(2), one respondent noted that in his

research during foreign explorations for natural enemies of targeted

plant pests, which are collected and shipped to quarantine facilities,

organisms are usually identified to a higher level of taxa than

species. Identification of such collected materials, may not be

available for a considerable period of time. Another respondent noted

that although the original Lacey Act recognized the existence of the

Federal Plant Pest Act, the new FWS regulations appear to overlook this

provision.

Several comments pertained to the Service 3-177 form. One

respondent suggested the Service make the reporting of dead specimens

an annual or biannual report. One scientific institution noted that

their collections do not specify whether the wildlife was taken as a

result of sport hunting, and that, therefore, such collections should

be given a blanket exemption for already deposited specimens. Another

respondent was concerned with the perceived requirement that a

scientific collector obtain a hunting license and worried that

scientific collecting may be viewed as sport hunting.

One respondent observed that the Service's definition of scientist

does not include retired professors or those at smaller colleges that

do not have established public collections, who are generally

considered amateurs in the field of entomology. Another respondent

noted that dead specimens should be allowed to be transported freely

(3-177 form only) without further clearance. One respondent requested

that the Service automate the 3-177 form to streamline the process by

downloading the data from each accredited institution twice annually.

One respondent suggested that birds should not require authentication

of collecting and export permits from the country of origin each time

they are transferred; that dead, non-endangered or CITES listed birds

should have no restriction on importation; and that a 3-177 should not

be needed for dead birds. Instead, the respondent noted that the

paperwork could be kept at the institution and open for inspection at

any time. Another respondent asked for additional time to respond to

what the respondent characterized as a complicated piece of law.

Another respondent noted that if a specimen was procured for a

scientific institution, the regulations that are applied to permit the

legal import should be consistent across the board with no exceptions

as to how it was acquired. Once a permit is issued, the respondent

noted, the specimens covered by that permit should have the status of

specimens that do not require a permit. Other respondents, however, saw

no logical reason why scientific specimens legally taken as the result

of sport hunting should be excluded from the exceptions provided. One

respondent requested that the Service not require authentication of

collecting and export permits from the country of origin each time they

are transferred internationally. One respondent suggested that the

Migratory Bird Office and Law Enforcement get together on a common

definition of scientific institution to avoid two different standards.

The only shipments that should require reporting to the Service, one

respondent noted, should be those that contain species listed under

CITES or the U.S. Endangered Species Act. One respondent requested that

State and Federal government agencies should be exempt from

requirements pertaining to permits and be given some kind of blanket

import-export permit.

Service Response

The Service appreciates these comments and responds by stating that

the Federal Government, in particular the Service, is bound by

international treaty and domestic law to require certain types of

documentation, reporting, declaration, and regulation as relates to the

import and export of wildlife and wildlife products (including

insects). The Service, in its revision of this part, has been

responsive to the demands of the public while fulfilling its

obligations under law. The Service believes that the modification of

these regulations, in particular addressing the concerns of the

scientific collecting community, have taken into account public

concerns while fulfilling the Service's obligations.

Need for Final Rule Making

The Fish and Wildlife Service is updating the regulations for the

importation, exportation, and transportation of wildlife. Definitions

have been added and several errors and missing references have been

corrected. Several ambiguities in the text have been restated for

clarify. Changes were necessary in several sections for the purposes of

identification of wildlife, to provide uniformity with the Customs

Service, to more clearly articulate requirements, to circumscribe

exceptions to requirements, and to provide for the safety of

inspectors.

Changes in the Service import/export user fees policies and rates

were made in order to recover the full costs of license and inspection

services to require all commercial importers and exporters of wildlife

and wildlife products to obtain an import/export license, to adjust the

cost of a wildlife import/export license, to adjust the inspection fee

charged to licensees at designated ports, and to adjust the

administrative fee charged for each wildlife shipment cleared at a non-

designated port.

Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C.

3507(d)), the Service has received approval for collection of

information under this regulation using the Declaration for Importation

or Exportation of Fish or Wildlife form 3-177, approval number 1018-

0012 which expires June 30, 1997, and using the Federal Fish and

Wildlife License/Permit Application form 3-200, approval number 1018-

0022 which expires January 31, 1997.

Information collection is accomplished under this part through the

use of these two forms and is used to satisfy various requirements in

this regulation, including, species and shipping information from the

Declaration form 3-177, and licensing information from the Application

form 3-200. The information requested on these forms is not being

modified in this rule, however, changes are being made which will

affect the number of persons or businesses required to file an Import/

Export License Application form 3-200 to obtain an Import/Export

License.

Changes also are being made in the exceptions granted to certain

persons from the Declaration filing requirements.

The Declaration filing exceptions contained in this final rule will

not result in any increased information

[[Page 31867]]

collection by the Service. However, those persons or businesses

engaging in business as an importer or exporter of wildlife who may

have previously been excepted from the license requirement, will now be

required to file a 3-200 Application form with the Service in order to

obtain an import/export license. This will result in increased use of

an existing information collection. The information to be collected

will include the applicant's name and complete address, type of

business and description of the activity for which a license is

required, principal officer information, location where activity under

the license is conducted, and business, agency, or institutional

affiliation of the applicant. The likely respondents to this collection

of information will be persons engaging in business as importers or

exporters of wildlife who are not currently licensed by the Service.

This information will be used by the Service to determine the

applicability of the license requirement, and to implement the

licensing and fee collection process. This information collection will

be required annually and will require approximately a 1.0 hour total

annual reporting and recordkeeping burden per respondent. The Service

estimates that the number of likely respondents will be approximately

700, making a total annual reporting and recordkeeping burden of 700

hours.

Economic Effects

This rulemaking was not subject to review by the Office of

Management and Budget under Executive Order 12866.

The Service conducted a cost/benefit analysis in compliance with

the provisions of the Small Business Regulatory Enforcement Fairness

Act of 1996 (Pub. L. 104-121). Data for commercial imports and exports

of wildlife and wildlife products for the 1994 calendar year were used

to estimate the financial impact on commercial wildlife importers and

exporters from the revised user fee schedule contained in the proposed

rule and in this final rule. Calendar year 1994 data were chosen for

the analysis for their completeness and because the Service feels that

the commercial data for 1994 are typical of calendar year totals. The

analysis shows that the Service processes approximately 70,000 wildlife

and wildlife product imports and exports per year, and that of those

shipments approximately 56,000 are imported or exported for commercial

purposes. The 1994 data show that the Service issued approximately

1,700 commercial import/export licenses in 1994, and those licensees

imported or exported approximately 40,000 commercial shipments. These

figures equate to approximately 23 commercial shipments per licensee

per year. The total number of shipments made for commercial purposes

(56,000) minus the number of commercial shipments made by licensees

(40,000) equals 16,000 shipments made for commercial purposes by non-

licensees that, presumably, meet one of the current licensing

exceptions. The most likely exception in these cases would be the

$25,000 annual threshold requirement for obtaining a license. This

exception is being eliminated in this final rule. By using the 23

shipments per licensee per year figure as representative of all

commercial importers and exporters, the Service estimates that 700 non-

licensed commercial importers and exporters shipping 16,000 shipments

per year will be affected by the new license requirement. Based upon

the 23 shipments per year figure, the 1,700 licensees currently paying

$25 per shipment in user fees and $125 annual license fee are paying

$700 annually in user fees. Under this final rule those licensees will

pay an additional $615 based upon $55 per shipment and a $50 license

fee, or $1,315 annually in user fees. The 700 non-licensed commercial

importers and exporters who are now exempt from the fee requirement

also will pay $1,315 per year based upon the 23 shipment per year

average and the new user/license fees. As stated in this final rule,

these fees will generate approximately $2 million in additional user

fees which will allow the Service to more closely recoup actual costs

of the wildlife inspection program.

A review under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601

et seq.) has revealed that this rulemaking will not have a significant

effect on a substantial number of small entities, which include

businesses, organizations, or governmental jurisdictions. The

Department of the Interior is seeking to assess the least possible fee

increase that will enable the Service to recoup its costs associated

with the Service's Import/Export program. As discussed in the proposed

rule, fees have not been increased since 1986. This fee increase will

more closely align the Federal Government's operating cost with

revenues. This rule will affect all importers and exporters equally and

is expected to remove any competitive advantage enjoyed by unlicensed

importers or exporters. Because of the modest cost involved, the fee

increase is expected to have a minimal effect on those small entities

as defined in the Regulatory Flexibility Act.

The Service has determined and certifies pursuant to the Unfunded

Mandates Act, 2 U.S.C. 1502 et seq., that his rulemaking will not

impose a cost of $100 million or more in any given year or local or

State governments or private entities.

National Environmental Policy Act (40 CFR part 1500)

Pursuant to the requirements of section 102(2)(C) of the National

Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), an

environmental assessment was not prepared for this action. The action

that is covered under a categorical exclusion from the National

Environmental Policy Act procedures. An Environmental Action memorandum

is on file at the Service's office in Arlington, Virginia. A

determination has been made pursuant to section 7 of the Endangered

Species Act that the revision of part 14 will not affect any Federally

listed or proposed for listing threatened or endangered species or

their critical habitats.

Authorship

The originators of this final rule are Law Enforcement Specialist

Paul McGowan and Special Agent John M. Neal, Division of Law

Enforcement, U.S. Fish and Wildlife Service, Washington, DC.

List of Subjects

50 CFR Part 13

Administrative practice and procedure, Exports, Fish, Imports,

Plants, Reporting and recordkeeping requirements, Transportation,

Wildlife.

50 CFR Part 14

Animal welfare, Exports, Fish, Imports, Labeling, Reporting and

recordkeeping requirements, Transportation, Wildlife.

Regulation Promulgation:

For the Reasons set out in the preamble, title 50, chapter I,

subchapter B of the Code of Federal Regulations is amended as set forth

below:

PART 13--GENERAL PERMIT PROCEDURES

1. The authority citation for part 13 is revised to read as

follows:

Authority: 16 U.S.C. 668a, 704, 712, 742j-1, 1382, 1538(d),

1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C. 1202; E.O.

11911, 41 FR 15683; 31 U.S.C. 9701.

[[Page 31868]]

Subpart B--Applications for Permits

2. Section 13.11 is amended by revising the table in (d)(4) to read

as follows:

Sec. 13.11 Application procedures.

* * * * *

(d) * * *

(4) * * *

------------------------------------------------------------------------

Type of permit Fee

------------------------------------------------------------------------

Import/Export License (Section 14.93)....... $50.

Marine Mammal (Section 18.31)............... $100.

Migratory Bird-Banding or marking (21.22)... None.

Bald or Golden Eagles (Part 22)............. None.

------------------------------------------------------------------------

* * * * *

PART 14--IMPORTATION, EXPORTATION, AND TRANSPORTATION OF WILDLIFE

1. The authority citation for part 14 continues to read as follows:

Authority: 16 U.S.C. 704, 712, 1382, 1538(d)-(f), 1540(f), 3371-

3378, 4223-4244, and 4901-4916; 18 U.S.C. 42; 19 U.S.C. 42; 31

U.S.C. 483(a).

2. A new Sec. 14.4 entitled ``Definitions'' is added to subpart A

to read as follows:

Sec. 14.4 Definitions.

In addition to definitions contained in Part 10 of this subchapter,

in this part:

Accompanying personal baggage means all hand-carried items and all

checked baggage of a person entering into or departing from the United

States.

Accredited scientist means any individual associated with, employed

by, or under contract to and accredited by an accredited scientific

institution for the purpose of conducting biological or medical

research, and whose research activities are approved and sponsored by

the scientific institution granting accreditation.

Accredited scientific institutions means any public museum, public

zoological park, accredited institution of higher education, accredited

member of the American Zoo and Aquarium Association, accredited member

of the American Association of Systematic Collections, or any State or

Federal government agency that conducts biological or medical research.

Commercial means related to the offering for sale or resale,

purchase, trade, barter, or the actual or intended transfer in the

pursuit of gain or profit, of any item of wildlife and includes the use

of any wildlife article as an exhibit for the purpose of soliciting

sales, without regard to quantity or weight. There is a presumption

that eight or more similar unused items are for commercial use. The

Service or the importer/exporter/owner may rebut this presumption based

upon the particular facts and circumstances of each case.

Domesticated animals includes, but is not limited to, the following

domesticated animals that are exempted from the requirements of this

subchapter B (except for species obtained from wild populations).

Mammals: Alpaca--Lama alpaca; Camel--Camelus dromedarius; Camel

(Boghdi)--Camelus bactrianus; Cat (domestic)--Felis domesticus;

Cattle--Bos taurus; Dog (domestic)--Canis familiaris; European rabbit--

Ortyctolagus cuniculus; Ferret (domestic)--Mustela putorius; Goat--

Capra hircus; Horse--Equus caballus; Llama--Lama glama; Pig--Sus

scrofa; Sheep--Ovis aries; Water buffalo--Bubalus bubalus; White lab

mice--Mus musculus; White lab rate--Rattus norvegicus.

Fish (For export purposes only): Carp (koi)--Cyprinus carpio;

Goldfish--Carassius auratus.

Birds: Chicken--Gallus domesticus; Ducks & geese--domesticated

varieties; Guinea fowl--Numida meleagris; Peafowl--Pavo cristatus;

Pigeons (domesticated)--Columba livia domestrica; Turkey--Meleagris

gallopavo; Domesticated or Barnyard Mallards include: Pekin; Aylesbury;

Bouen; Cayuga; Gray Call; White Call; East Indian; Crested; Swedish;

Buff Orpington; Indian Runner; Campbell; Duclair; Merchtem; Termonde;

Magpie; Chinese; Khaki Campbell.

Insects: Crickets, mealworms, honeybees (not to include Africanized

varieties), and similar insects that are routinely farm raised.

Other Invertebrates: Earthworms and similar invertebrates that are

routinely farm raised.

Export means to depart from, to send from, to ship from, or to

carry out of, or attempt to depart from, to send from, to ship from, or

to carry out of, or to consign to a carrier in any place subject to the

jurisdiction of the United States with an intended destination of any

place not subject to the jurisdiction of the United States, whether or

not such departure, sending, or carrying, or shipping constitutes an

exportation within the meaning of the Custom laws of the United States.

When a passenger leaving the jurisdiction of the United States enters

the designated international area of embarkation of an airport, all

accompanying personal hand-carried items and checked baggage will be

regarded as exports.

Import means to land on, bring into, or introduce into, or attempt

to land on, bring into, or introduce into any place subject to the

jurisdiction of the United States, whether or not such landing,

bringing, or introduction constitutes an importation within the meaning

of the tariff laws of the United States.

3. Section 14.15 is amended by revising paragraph (a) to read as

follows:

Sec. 14.15 Personal baggage and household effects.

(a) Any person may import into or export from the United States at

any Customs port wildlife products or manufactured articles that are

not intended for commercial use and are used as clothing or contained

in accompanying personal baggage. However, this exception to the

designated port requirement does not apply to any raw or dressed fur;

raw, salted, or crusted hide or skin; game trophy; or to wildlife

requiring a permit pursuant to part 16, 17, 18, 21, or 23 of this

subchapter B.

* * * * *

4. Section 14.21 is revised to read as follows:

Sec. 14.21 Shellfish and fishery products.

(a) (1) General. Except for wildlife requiring a permit pursuant to

part 17 or 23 of this subchapter, shellfish and fishery products

imported or exported for purposes of human or animal consumption or

taken in waters under the jurisdiction of the United States or on the

high seas for recreational purposes may enter or exit at any Customs

port.

(2) Except for wildlife requiring a permit pursuant to part 17 or

part 23 of this subchapter, live aquatic invertebrates of the Class

Pelecypoda (commonly known as oysters, clams, mussels, and scallops)

and the eggs, larvae, or juvenile forms thereof may be exported for

purposes of propagation, or research related to propagation, at any

Customs port.

(b) Pearls. Except for wildlife requiring a permit pursuant to part

17 or 23 of this subchapter, pearls imported or exported for commercial

purposes may enter or exit the United States at any Customs port of

entry. For the purposes of this Part, all references to the term

shellfish and fishery products will include pearls.

5. Section 14.22 is revised to read as follows:

Sec. 14.22 Certain antique articles.

Any person may import at any Customs Service port designated for

such purpose, any article (other than scrimshaw, defined in 16 U.S.C

1539(f)(1)(B) and 50 CFR 217.12 as any art form that involves the

etching or

[[Page 31869]]

engraving of designs upon, or the carving of figures, patterns, or

designs from, any bone or tooth of any marine mammal of the order

Cetacea) that is at least 100 years old, is composed in whole or in

part of any endangered or threatened species listed under Sec. 17.11 or

Sec. 17.12 of this subchapter, and has not been repaired or modified

with any part of any endangered or threatened species on or after

December 28, 1973.

6. A new Sec. 14.24 is added to read as follows:

Sec. 14.24 Scientific specimens.

Except for wildlife requiring a permit pursuant to parts 16, 17,

18, 21, 22 or 23 of this subchapter, dead, preserved, dried, or

embedded scientific specimens or parts thereof, imported or exported by

accredited scientists or accredited scientific institutions for

taxonomic or systematic research purposes may enter or exit through any

U.S. Customs port, or may be shipped through the international mail

system. Provided, that this exception will not apply to any specimens

or parts thereof taken as a result of sport hunting.

7. Section 14.32 is amended by revising paragraph (c)(2) to read as

follows:

Sec. 14.32 Permits to import or export wildlife at non-designated port

to minimize deterioration or loss.

* * * * *

(c) * * *

(2) Permittee must pay fees in accordance with Sec. 14.94.

* * * * *

8. Section 14.33 is amended by revising paragraph (c)(2) to read as

follows:

Sec. 14.21 Permits to import or export wildlife at non-designated port

to alleviate undue economic hardship.

* * * * *

(c) * * *

(2) Permittee must pay fees in accordance with Sec. 14.94.

* * * * *

9. Section 14.52 is amended by revising paragraphs (a), (b), the

introductory text of paragraph (c), paragraphs (c)(3), and (c)(4) and

by adding paragraph (c)(5) to read as follows:

Sec. 14.52 Clearance of wildlife.

(a) Except as otherwise provided by this subpart, a Service officer

must clear all wildlife imported into the United States prior to

release from detention by Customs officers. A Service officer must

clear all wildlife to be exported from the United States prior to the

physical loading of the merchandise on a vehicle or aircraft, or the

containerization or palletizing of such merchandise for export, unless

a Service officer expressly authorizes otherwise. Such clearance does

not constitute a certification of the legality of an importation or

exportation under the laws or regulations of the United States.

(b) An importer/exporter or his/her agent may obtain clearance by a

Service officer only at designated ports (Sec. 14.12), at border ports

(Sec. 14.16), at special ports (Sec. 14.19), or at a port where

importation or exportation is authorized by a permit issued under

subpart C of this part. An importer/exporter must return forthwith any

wildlife released without a Service officer's clearance or clearance by

Customs for the Service under authority of Sec. 14.54 to a port where

clearance may be obtained pursuant to this subpart.

(c) To obtain clearance, the importer, exporter, or the importer's

or exporter's agent will make available to a Service officer or a

Customs officer acting under Sec. 14.54:

* * * * *

(3) All permits or other documents required by the laws or

regulations of any foreign country;

(4) The wildlife being imported or exported; and

(5) Any documents and permits required by the country of export or

re-export for the wildlife.

10. Section 14.53 is revised to read as follows:

Sec. 14.53 Detention and refusal of clearance.

(a) Detention. Any Service officer, or Customs officer acting under

Sec. 14.54, may detain imported or exported wildlife and any associated

property. As soon as practicable following the importation or

exportation and decision to detain, the Service will mail a notice of

detention by registered or certified mail, return receipt requested, to

the importer or consignee, or exporter, if known or easily

ascertainable. Such notice mut describe the detained wildlife or other

property, indicate the reason for the detention, describe the general

nature of the tests or inquiries to be conducted, and indicate that if

the releasability of the wildlife has not been determined within 30

days after the date of the notice, or a longer period if specifically

stated, that the Service will deem the wildlife to be seized and will

issue no further notification of seizure.

(b) Refusal of clearance. Any Service officer may refuse clearance

of imported or exported wildlife and any Customs officer acting under

Sec. 14.54 may refuse clearance of imported wildlife when there are

responsible grounds to believe that:

(1) A Federal law or regulation has been violated;

(2) The correct identity and country of origin of the wildlife has

not been established (in such cases, the burden is upon the owner,

importer, exporter, consignor, or consignee to establish such identity

by scientific name to the species level or, if any subspecies is

protected by the laws of this country or the country of origin to the

subspecies level);

(3) Any permit, license, or other documentation required for

clearance of such wildlife is not available, is not currently valid,

has been suspended or revoked, or is not authentic;

(4) The importer, exporter, or the importer's or exporter's agent

has filed an incorrect or incomplete declaration for importation or

exportation as provided in Sec. 14.61 or Sec. 14.63; or

(5) The importer, exporter, or the importer's or exporter's agent

has not paid any fee or portion of balance due for inspection fees

required by Sec. 14.93 or Sec. 14.94, or penalties assessed against the

importer or exporter under 50 CFR part 11. This paragraph does not

apply to penalty assessments on appeal in accordance with the

provisions of part 11.

11. Section 14.54 is amended by revising paragraphs (a), and adding

paragraph (f) to read as follows:

Sec. 14.54 Unavailability of Service officers.

(a) Designated ports. All wildlife arriving at a designated port

must be cleared by a Service officer prior to Customs clearance and

release. When importers or their agents expect live or perishable

shipments of wildlife or wildlife products or request inspection at the

time of arrival, they must notify the Service at least 48 hours prior

to the estimated time of arrival. However, where a Service officer is

not available within a reasonable time, Customs Officers may clear live

or perishable wildlife subject to post-clearance inspection and

investigation by the Service.

* * * * *

(f) Exports. Exporters or their agents must notify the Service and

make the shipment available for inspection at least 48 hours prior to

the estimated time of exportation of any wildlife.

12. Section 14.55 is amended by revising the introductory text of

the section and by adding paragraph (d) to read as follows:

Sec. 14.55 Exceptions to clearance requirements.

Except for wildlife requiring a permit pursuant to part 17 or 23 of

this subchapter B, clearance is not required

[[Page 31870]]

for the importation of the following wildlife:

* * * * *

(d) Dead, preserved, dried, or embedded scientific specimens or

parts thereof, imported or exported by accredited scientists or

accredited scientific institutions for taxonomic or systematic research

purposes. Except: That this exception will not apply to any specimens

or parts thereof taken as a result of sport hunting.

13. Section 14.61 is revised to read as follows:

Sec. 14.61 Import declaration requirements.

Except as otherwise provided by the regulations of this subpart,

importers or their agents must file with the Service either a completed

Declaration for Importation or Exportation of Fish or Wildlife (Form 3-

177), signed by the importer or the importer's agent, or an electronic

Form 3-177, filed through the United States Customs Service Automated

Commercial System (ACS) by an authorized Customs broker using the

Automated Broker Interface (ABI), upon the importation of any wildlife

at the place where Service clearance under Sec. 14.52 is requested.

However, wildlife may be transshipped under bond to a different port

for release from custody by Customs Service officers under 19 U.S.C.

1499. For certain antique articles as specified in Sec. 14.22,

importers or their agents must file a Form 3-177 with the District

Director of Customs at the port of entry prior to release from Customs

custody. Importers or their agents must furnish all applicable

information requested on the Form 3-177 and the importer, or the

importer's agent, must certify that the information furnished is true

and complete to the best of his/her knowledge and belief.

14. Section 14.62 is amended by revising paragraph (a), by removing

paragraph (b)(2) and by redesignating existing paragraphs (b)(3) and

(b)(4) as (b)(2) and (b)(3) respectively, and by revising paragraph (c)

and adding paragraph (d) to read as follows:

Sec. 14.62 Exceptions to import declaration requirements.

(a) Except for wildlife requiring a permit pursuant to part 17 or

23 of this subchapter B, an importer or his/her agent does not have to

file a Declaration for Importation or Exportation of Fish or Wildlife

(Form 3-177) for importation of shellfish and fishery products imported

for purposes of human or animal consumption, or taken in waters under

the jurisdiction of the United States or on the high seas for

recreational purposes;

(b) * * *

(2) Wildlife products or manufactured articles that are not

intended for commercial use and are used as clothing or contained in

accompanying personal baggage, except that an importer or his/her agent

must file a Form 3-177 for raw or dressed furs; for raw, salted, or

crusted hides or skins; and for game or game trophies; and

(3) Wildlife products or manufactured articles that are not

intended for commercial use and are a part of a shipment of the

household effects of persons moving their residence to the United

States, except that an importer or his/her agent must file a

declaration for raw or dressed furs and for raw, salted, or crusted

hides or skins.

* * * * *

(c) General declarations for certain specimens. Notwithstanding the

provisions of 14.61 and except for wildlife included in paragraph (d)

of this section, an importer or his/her agent may describe in general

terms on a Declaration for the Importation or Exportation of Fish or

Wildlife (Form 3-177) scientific specimens imported for scientific

institutions for taxonomic, systematic research, or faunal survey

purposes. An importer or his/her agent must file an amended Form 3-177

within 180 days after filing of the general declaration with the

Service. The declaration must identify specimens to the most accurate

taxonomic classification reasonably practicable using the best

available taxonomic information. The Director may grant extensions of

the 180-day period.

(d) Except for wildlife requiring a permit pursuant to part 16, 17,

18, 21, 22 or 23 of this subchapter, an importer or his/her agent does

not have to file a Declaration for the Importation or Exportation of

Fish or Wildlife (Form 3-177) at the time of importation for shipments

of dead, preserved, dried, or embedded scientific specimens or parts

thereof, imported by accredited scientists or accredited scientific

institutions for taxonomic or systematic research purposes. An importer

or his/her agent must file a Form 3-177 within 180 days of importation

with the appropriate Assistant Regional Director--Law Enforcement in

the Region where the importation occurs. The declaration must identify

the specimens to the most accurate taxonomic classification reasonably

practicable using the best available taxonomic information, and must

declare the country of origin. Except: That this exception will not

apply to any specimens or parts thereof taken as a result of sport

hunting.

15. Section 14.64 is amended by revising paragraphs (a), (b)(1),

(b)(2) and by adding (b)(3) to read as follows:

Sec. 14.64 Exceptions to export declaration requirements.

(a) Except for wildlife requiring a permit pursuant to Part 17 or

23 of this subchapter B, an exporter or his/her agent does not have to

file a Declaration for Importation or Exportation of Fish or Wildlife

(Form 3-177) for the exportation of shellfish and fishery products

exported for purposes of human or animal consumption or taken in waters

under the jurisdiction of the United States or on the high seas for

recreational purposes, and does not have to file for the exportation of

live aquatic invertebrates of the Class Pelecypoda (commonly known as

oysters, claims, mussels, and scallops) and the eggs, larvae, or

juvenile forms thereof exported for purposes of propagation, or

research related to propagation.

(b) * * *

(1) Wildlife that is not intended for commercial use where the

value of such wildlife is under $250;

(2) Wildlife products or manufactured articles, including game

trophies, that are not intended for commercial use and are used as

clothing or contained in accompanying personal baggage or are part of a

shipment of the household effects of persons moving their residence

from the United States; and

(3) Shipments of dead, preserved, dried, or embedded scientific

specimens or parts thereof, exported by accredited scientists or

accredited scientific institutions for taxonomic or systematic research

purposes. An exporter or his/her agent must file a Form 3-177 within

180 days of exportation with the appropriate Assistant Regional

Director--Law Enforcement in the Region where the exportation occurs.

The declaration must identify the specimens to the most accurate

taxonomic classification reasonably practicable using the best

available taxonomic information, and must declare the country of

origin. Except: That this exception will not apply to any specimens or

parts thereof taken as a result of sport hunting.

16. Section 14.81 is revised to read as follows:

Sec. 14.81 Marking requirement.

Except as otherwise provided in this subpart, no person may import,

export, or transport in interstate commerce any container or package

containing any fish or wildlife (including shellfish and fishery

products) unless he/she marks each container or package

[[Page 31871]]

conspicuously on the outside with both the name and address of the

shipper and consignee. An accurate and legible list of its contents by

species scientific name and the number of each species and whether or

not the listed species are venomous must accompany the entire shipment.

17. Section 14.82 is amended by revising paragraphs (a)(1)(ii)(A),

(1)(2), and (a)(3) to read as follows:

Sec. 14.82 Alternatives and exceptions to the marking requirement.

(a) * * *

(1)(i) * * *

(ii) * * *

(A) The common name that identifies the species (examples include:

Chinook (or king) salmon; bluefin tuna; and whitetail deer) and whether

or not the listed species is venomous; and

* * * * *

(2) Affixing the shipper's wildlife import/export license number

preceded by the three letters ``FWS'' on the outside of each container

or package containing fish or wildlife, if the shipper has valid

wildlife import/export license issued under authority of 50 CFR part

14. For each shipment marked in accordance with this paragraph, the

records maintained under Sec. 14.93(c) must include a copy of the

invoice, packing list, bill of lading, or other similar document that

accurately states the information required by paragraph (a)(1)(ii) of

this section.

(3) In the case of subcontainers or packages within a larger

packing container, only the outermost container must be marked in

accordance with this section. Except, that for live fish or wildlife

that are packed in subcontainers within a larger packing container, if

the subcontainers are numbered or labeled, the packing list, invoice,

bill or lading, or other similar document, must reflect that number or

label. However, each subcontainer containing a venomous species must be

clearly marked as venomous.

* * * * *

18. Section 14.91 is amended by revising paragraph (a) and (c) to

read as follows:

Sec. 14.91 License requirement.

(a) Prohibition. Except as otherwise provided in this subpart, it

is unlawful for any person to engage in business as an importer or

exporter of wildlife without first having obtained a valid import/

export license from the Director.

* * * * *

(c) Certain persons required to be licensed. The definition in

paragraph (b) of this section includes, but is not limited to, persons

who import or export wildlife for commercial purposes:

(1) For trade, sale, or resale, such as animal dealers, animal

brokers, pet dealers, pet suppliers, and laboratory research suppliers;

(2) In the form of fur for tanning, manufacture, or sale, such as

fur trappers, dealers, brokers, and manufacturers;

(3) In the form of hides and skins for tanning, manufacture, or

sale, such as hide, skin, and leather dealers, brokers, manufacturers,

and processors;

(4) In the form of products (such as garments, bags, shoes, boots,

jewelry, rugs, or curios) for sale, such as wholesalers, retailers,

distributors, and brokers;

(5) As taxidermists in connection with the mounting processing, or

storage of trophies or specimens;

(6) As freight forwarders; and

(7) In the form of food products taken from populations of non-

domesticated animals.

19. Section 14.92 is amended by revising paragraphs (a)(1), (a)(2),

(a)(3), and (a)(4) and adding (a)(5) and (a)(6), and by revising

(b)(1), (b)(2), (b)(4), and (b)(5) and by removing paragraph (b)(6) to

read as follows:

Sec. 14.92 Exceptions to license requirements.

(a) * * *

(1) Shellfish and fishery products that do not require a permit

under Part 17 or 23 of this subchapter B and that are imported or

exported for purposes of human or animal consumption;

(2) Shellfish and fishery products that do not require a permit

under part 17 or 23 of this subchapter B and that are taken in waters

under the jurisdiction of the United States or on the high seas for

recreational purposes;

(3) Fox, nutria, rabbit, mink, chinchilla, marten, fisher, muskrat,

and karakul and their products if the animals have been bred and born

in captivity;

(4) Live farm-raised fish and farm-raised eggs of species not

requiring a permit under part 17 or 23 of this subchapter B that are

being exported;

(5) Live aquatic invertebrates of the Class Pelecypoda (commonly

known as oysters, clams, mussels, and scallops) and the eggs, larvae,

or juvenile forms thereof exported for purposes of propagation or

research related to propagation; and

(6) Pearls imported or exported for commercial purposes.

(b) * * *

(1) Common carriers when engaged as transporters and not as

importers or exporters of record;

(2) Custom house brokers when engaged as agents and not as

importers or exporters of record;

* * * * *

(4) Federal, State, or municipal agencies; and

(5) Circuses importing or exporting wildlife for exhibition

purposes only and not for purchase, sale, barter, or transfer of such

wildlife.

20. Section 14.93 is amended by revising paragraphs (c)(4), and

(c)(5) to read as set forth below, and by removing paragraph (f).

Sec. 14.93 License application procedure, conditions, and duration.

* * * * *

(c) * * *

(4) Subject to applicable limitations of law, licensees must

provide duly authorized Service officers at all reasonable times, upon

notice, access to the licensee's places of business and give an

opportunity to examine the licensee's inventory of imported wildlife

and the records required to be kept under paragraph (c)(1) of this

section, and give an opportunity to copy such records;

(5) Licensees must, upon written request by the Director, submit

within 30 days of such request a report containing the information

required to be maintained by paragraph (c)(1) of this section.

* * * * *

21. Section 14.94 is added to read as follows:

Sec. 14.94 Fees.

(a) License and Inspection fees. The Service will impose a yearly

fee for a license pursuant to Sec. 14.93. In addition, each licensee

must pay an inspection fee for each wildlife shipment imported into or

exported from the United States at a designated port.

(b) Designated port overtime fees. The Service may charge importers

or exporters of wildlife, regardless of being licensed as a commercial

importer or exporter, a fee for overtime for inspections that begin

before normal working hours, that extend beyond normal working hours,

or are on a holiday, Saturday, or Sunday if the importer/exporter

requested that the inspection be performed outside normal work hours.

Overtime fees consist of an increased hourly rate equal to 1\1/2\ times

the average hourly rate of a journeyman level wildlife inspector.

Overtime fees will be in addition to inspection fees imposed for

license holders at designated ports. If an importer/exporter presents a

shipment for inspection during normal work hours but the Service cannot

perform the inspection

[[Page 31872]]

during normal work hours on that day, the service will give the

importer/exporter the option of performing the inspection later during

normal work hours or charging for overtime. The Service's ability to

perform inspections during overtime hours will depend on the

availability of Service personnel. The Serivce will use the following

parameters when calculating the overtime fee:

(1) Inspection overtime commences when a Service officer departs

that officer's residence or official duty station enroute to the

inspection site or at the end of normal work hours. Inspection overtime

terminates when the officer returns to the point of departure or

official duty station or when the inspection is completed, whichever

occurs later.

(2) For an inspection at a designated port beginning less than 1

hour before normal work hours, the Service will charge 1 hour of time,

at an hourly rate of 1\1/2\ times the average hourly rate of a

journeyman level Wildlife Inspector. For all other overtime inspections

at a designated port the Service will charge a minimum of 2 hours of

time, at an hourly rate of 1\1/2\ times the average hourly rate of a

journeyman level Wildlife Inspector, except that for all inspections

performed on a federal holiday the Service will charge a minimum of 2

hours at twice the average hourly rate of a journeyman level Wildlife

Inspector.

(3) The Service will charge any inspection time in excess of the 2-

hour minimum in quarter hour increments at the same hourly rate as the

first 2 hours. The Service will round up inspection time of 10 minutes

or more to the next quarter hour and will disregard any time less than

10 minutes.

(4) The fee schedule will apply to all inspections regardless of

importer/exporter of record, except, that the Service will charge

multiple shipments consigned to the same importer/exporter and

inspected at one location one 2-hour minimum or actual time, whichever

is greater.

(c) Nondesignated port fees. The Service will charge permittees

is

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