Importation, Exportation, and Transportation of Wildlife

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 14

RIN 1018-AE08

Importation, Exportation, and Transportation of Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would revise the U.S. Fish and Wildlife

Service (Service) regulations providing for user fee collections from

commercial importers and exporters of wildlife and wildlife products.

We, the Service, propose a licensing and fee scheme which will exempt

certain commercial importers and exporters from our inspection fee,

based upon specific criteria, including country of origin, numbers of

items, and permitting requirements. We propose to modify our user fee

regulations to grant relief to certain individuals and small

businesses, meeting the outlined criteria, from the designated port

inspection fee and nondesignated port administrative fee and hourly

minimums only. This proposal, if implemented, will allow us to continue

to collect data on fee collections in order to analyze the impact of

user fees on small business for future decision making.

We will also update the authority citation for this part to delete

an obsolete reference and to reflect the current United States Code

citation regarding fees and charges for Government services.

DATES: Comments must be submitted on or before March 23, 1998.

ADDRESSES: Comments and materials concerning this proposal should be

sent to the Director, U.S. Fish and Wildlife Service, P.O. Box 3247,

Arlington, Virginia 22203-3247. Comments and materials may be hand-

delivered to the U.S. Fish and Wildlife Service, Division of Law

Enforcement, 4401 N. Fairfax Drive, Room 500, Arlington, Virginia,

between the hours of 8 a.m. and 4 p.m. Monday through Friday.

RESSES: Comments and materials concerning this proposal should be

sent to the Director, U.S. Fish and Wildlife Service, P.O. Box 3247,

Arlington, Virginia 22203-3247. Comments and materials may be hand-

delivered to the U.S. Fish and Wildlife Service, Division of Law

Enforcement, 4401 N. Fairfax Drive, Room 500, Arlington, Virginia,

between the hours of 8 a.m. and 4 p.m. Monday through Friday.

FOR FURTHER INFORMATION CONTACT:

Kevin R. Adams, Chief, Division of Law Enforcement, Fish and Wildlife

Service, U.S. Department of the Interior, Washington, D.C. 20240,

Telephone Number (703) 358-1949.

SUPPLEMENTARY INFORMATION:

Background

On June 21, 1996, we published a final rule (61 FR 31850) which

established a new requirement in Part 14 for all commercial importers

and exporters of wildlife and wildlife products to obtain an Import/

Export License (license) and also provided for our charging license

holders increased inspection and overtime fees. The final rule

eliminated the $25,000 annual dollar value exemption the Service had

utilized since 1984 in determining whether a particular business or

individual was required to have a license. The final rule raised the

inspection fees charged to licensees to enable the Service to more

fully recoup the costs of operating the wildlife inspection program. We

published the June 21, 1996, final rule after several lengthy comment

periods which began with the notice of intent to review published on

November 14, 1991 (56 FR 57873). Of the 800 total comments received, 81

were on the new fee structure discussed in the notice of intent, the

proposed rule published November 15, 1994 (59 FR 58811), and the

supplemental proposed rule published March 23, 1995 (60 FR 15277). We

received 64 favorable comments on the fee increase out of 81 total with

17 commenters opposed to a user fee increase. Several of the 17

commenters opposed to the fee increase requested that we maintain a

dollar value exemption for small businesses

intent, the

proposed rule published November 15, 1994 (59 FR 58811), and the

supplemental proposed rule published March 23, 1995 (60 FR 15277). We

received 64 favorable comments on the fee increase out of 81 total with

17 commenters opposed to a user fee increase. Several of the 17

commenters opposed to the fee increase requested that we maintain a

dollar value exemption for small businesses. We acknowledged these

commenters' concerns and expressed our own concern for the new fee

structure being perceived as overly burdensome on small business, and

replied, as restated in this proposed rule, that we are attempting to

maintain the most efficient inspection program possible without being

overly burdensome on smaller importers. We were attempting to implement

the smallest fee increase possible which would allow us to recoup the

cost of the wildlife inspection program. At the same time we were

attempting to respond to several studies of the Service's inspection

program that clearly indicate a need to raise inspection fees and

overtime rates commensurate with costs incurred by the Service. In

addition to the studies cited in the June 21, 1996, final rule, a 1994

General Accounting Office report states in its recommendations to the

Secretary of the Interior, that the Service should ``Proceed with plans

to increase the user fees charged by the wildlife inspection program *

* *.''

Since the implementation of the new fee schedule on August 1, 1996,

we have received comments, including eight Congressional inquiries,

indicating that the burden on small business may be greater than the

Service initially anticipated in the June 21, 1996, rulemaking. In the

economic effects section of that document, we estimated the costs to

newly licensed small businesses and individuals who are now subject to

the inspection fee requirement

August 1, 1996,

we have received comments, including eight Congressional inquiries,

indicating that the burden on small business may be greater than the

Service initially anticipated in the June 21, 1996, rulemaking. In the

economic effects section of that document, we estimated the costs to

newly licensed small businesses and individuals who are now subject to

the inspection fee requirement. In the analysis we used estimated

numbers extrapolated from 1994 data contained in the Law Enforcement

Management Information System (LEMIS) which represented the best

information available. Based upon comments received subsequent to

publication of the final rule, we believe that we may have

underestimated the cumulative effect that the increased licensing and

inspection fees may impose on small business and certain individuals.

We have determined that we may need better data upon which to rely in

making a definitive analysis of

the effect of user fee increases on small business. The proposed system

will continue to provide that data.

The Regulatory Flexibility Act of 1980 establishes as a principle

of regulatory issuance that ``* * * agencies shall endeavor, consistent

with the objectives of the rule and of applicable statutes, to fit

regulatory and informational requirements to the scale of the business,

organizations, and governmental jurisdictions subject to regulation.''

Therefore, in order to address the immediate concerns of small business

and maintain consistency with the Regulatory Flexibility Act, we

propose a new licensing and inspection fee system that will accomplish

two objectives. First, the new system contained in this proposed rule

would grant immediate relief from the economic burden of the increased

inspection fees, and/or administrative fees and hourly minimums, to

importers and exporters of wildlife and wildlife products at designated

ports, border or special ports, and nondesignated ports that meet

specific criteria

e system that will accomplish

two objectives. First, the new system contained in this proposed rule

would grant immediate relief from the economic burden of the increased

inspection fees, and/or administrative fees and hourly minimums, to

importers and exporters of wildlife and wildlife products at designated

ports, border or special ports, and nondesignated ports that meet

specific criteria.

Second, by continuing to require that all commercial importers and

exporters be licensed, the new system would allow the Service to

continue to monitor wildlife import/export activity in order to gather

the data necessary to make future decisions on the true impact of our

user fees on small businesses and certain individuals.

Inspection Fee Exemption Criteria

We propose to amend the inspection fee system to establish specific

criteria that we will use to determine if the inspection fee applies at

the time of import or export. The proposed revision uses distinctions

that are already established in the regulation. The Service currently

uses these distinctions to determine the applicability of various parts

of the regulation to wildlife being imported or exported. We propose to

use these same distinctions to establish if the inspection fee applies

to wildlife shipments at the time of import to or export from the

United States. Shipments will have to meet several basic criteria in

order to qualify for the inspection fee exemption. The basic exemption

criteria are outlined as follows: First, the inspection fee exemption

will only apply to shipments that do NOT require permits under 50 CFR

parts 16 (Injurious wildlife), 17 (Endangered and threatened wildlife

and plants), 18 (Marine mammals), 21 (Migratory bird permits), or 23

(Endangered species convention). Those shipments that contain wildlife

that require permits will not be eligible for any inspection fee

exemption

ws: First, the inspection fee exemption

will only apply to shipments that do NOT require permits under 50 CFR

parts 16 (Injurious wildlife), 17 (Endangered and threatened wildlife

and plants), 18 (Marine mammals), 21 (Migratory bird permits), or 23

(Endangered species convention). Those shipments that contain wildlife

that require permits will not be eligible for any inspection fee

exemption. Second, the wildlife must have been lawfully taken from the

wild in the United States, Canada, or Mexico, and imported or exported

between the United States and Canada or Mexico. Shipments containing

wildlife taken in any other country and imported or exported between

any countries other than the United States, Canada, or Mexico will not

be eligible for the inspection fee exemption. Third, the wildlife

shipment must be imported or exported by the person who took the

wildlife from the wild, or by a member of that person's immediate

family, provided, that the importer or exporter of record is licensed

in accordance with 50 CFR 14.91. Last, the shipment must consist of raw

fur, raw, salted, or crusted hides or skins, or separate parts thereof,

and the shipment cannot exceed 100 raw furs, raw, salted, crusted,

hides or skins or separate parts thereof. The intent of this rulemaking

is to provide financial relief from the burden of the inspection fees

for small business and certain individuals who may be

disproportionately affected. The Service believes that a cutoff point

of 100 raw furs, raw, salted, or crusted hides or skins, or separate

parts thereof will adequately distinguish between small shippers

disproportionately affected and those commercial wildlife dealers less

impacted by the user fee.

All of the primary criteria for the user fee exemption outlined

above serve as a means of limiting the exemption application to certain

individuals or small business, while at the same time maintaining the

integrity and intent of the user fee rulemaking published on June 21,

1996

s who take wildlife from the wild as a hobby or to supplement

their income and who do not deal in manufactured products or live

animals as a primary means of income. We believe that wildlife traders

buying and selling imported wildlife in the United States and those

dealing in manufactured products or live animals require a higher level

of oversight and are less impacted by the inspection fee.

The importer or exporter whose wildlife shipments meet the user fee

exemption criteria will still be required to pay overtime fees or

designated port exception permit fees if applicable. If wildlife being

shipped requires a Convention on International Trade in Endangered

Species (CITES) permit, no exemption from the user fee will be granted

due to the higher level of oversight required by the Service on these

shipments.

Certification

In order for the Service to have some means of verifying that the

raw furs, raw, salted or crusted hides or skins, or separate parts

thereof are, in fact, taken from the wild by the licensee who is acting

as importer/exporter of record, or taken from the wild by a member of

his or her immediate family, the licensee must sign a certification

statement supplied by the Service at the time clearance is requested.

The certification statement will ask that the licensee certify, subject

to the penalties provided for under 18 U.S.C. Section 1001 for false or

fraudulent statements, that he or she took the raw furs, raw, salted,

or crusted hides or skins, or separate parts thereof from the wild or

that they were taken from the wild by a member of that person's

immediate family. We will consider the term ``immediate family'' to

mean a licensee's spouse, parents, siblings, and children. The Service

believes that extending the meaning to include grandparents, cousins,

aunts, or uncles would compromise the intent of this rule. This signed

certification statement will have to be presented to a Service officer

at the time clearance is requested

person's

immediate family. We will consider the term ``immediate family'' to

mean a licensee's spouse, parents, siblings, and children. The Service

believes that extending the meaning to include grandparents, cousins,

aunts, or uncles would compromise the intent of this rule. This signed

certification statement will have to be presented to a Service officer

at the time clearance is requested.

The Service intends that this inspection fee exemption framework

utilize existing regulatory language that grants various exemptions to

50 CFR part 14, including Sec. 14.15 and Sec. 14.62. In addition, 50

CFR part 14 already exempts certain ``classes'' of wildlife

from various regulatory requirements, including farm-raised fish from

the designated port requirement on export, aquatic invertebrates of the

Class Pelecypoda from the designated port and declaration requirement,

and captive-bred furbearers from the marking requirement. We believe

that these distinctions are consistent with the intent of the

regulation.

In summary, the Service will exempt commercial wildlife shipments

from the designated port inspection fee and/or the nondesignated port

administrative fee and hourly minimums, whichever applies, for

shipments meeting the following criteria: no permits are required under

50 CFR parts 16, 17, 18, 21, or 23; imports or exports are between the

United States and Canada or Mexico of raw furs, raw, salted, or crusted

hides or skins, or separate parts thereof, lawfully taken from the wild

in the United States, Canada, or Mexico; imported or exported by the

person taking the wildlife from the wild, or taken from the wild by a

member of the importer or exporters' immediate family; provided, the

importer or exporter of record is licensed; the shipment or any part

thereof has not been previously bought or sold; the shipment does not

exceed 100 raw furs, raw, salted, or crusted, hides or skins, or

separate parts thereof; the shipment does not contain any manufactured

products or live animals; overt

from the wild by a

member of the importer or exporters' immediate family; provided, the

importer or exporter of record is licensed; the shipment or any part

thereof has not been previously bought or sold; the shipment does not

exceed 100 raw furs, raw, salted, or crusted, hides or skins, or

separate parts thereof; the shipment does not contain any manufactured

products or live animals; overtime fees, if applicable, have been paid;

and the importer or exporter has attached a certification statement

stating that the shipment contains items taken from the wild by the

importer/exporter of record or by a member of that person's immediate

family.

The following chart illustrates the commercial user fee charges at

designated and nondesignated ports during normal working hours before

the June 21, 1996, final rule, after the August 1, 1996, effective date

of that final rule, and under this proposed rule, for comparison:

----------------------------------------------------------------------------------------------------------------

Prior to June 21, 1996 After August 1, 1996

Fees final rule effective date Proposed

----------------------------------------------------------------------------------------------------------------

Designated Port.................. Under 25K/year No Charge. $50/year License Fee. $50/year License Fee.

$125/year License Fee. $55/Shipment Inspection $55/Shipment Inspection

$25/Shipment Inspection Fee. Fee if criteria not

Fee. met. No Charge if

criteria met.

Nondesignated Port............... Under 25K/year No Charge. $50/year License Fee. $50/year License Fee.

$125/Shipment $55 Administrative Fee $55 Administrative Fee

Administrative Fee plus plus 2 hour minimum at plus 2 hour minimum at

2 hour minimum at $25/hr $20/hr ($40). $20/hr ($40) if

($50). criteria not met. No

Charge if criteria met.

----------------------------------------------------------------------------------------------------------------

/year License Fee. $50/year License Fee.

$125/Shipment $55 Administrative Fee $55 Administrative Fee

Administrative Fee plus plus 2 hour minimum at plus 2 hour minimum at

2 hour minimum at $25/hr $20/hr ($40). $20/hr ($40) if

($50). criteria not met. No

Charge if criteria met.

----------------------------------------------------------------------------------------------------------------

All interested parties are invited to submit comments on this

proposal.

Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

This proposed rule affects only the requirement to pay an

inspection fee for shipments and contains no information collections

for which Office of Management and Budget approval is required under

the Paperwork Reduction Act (44 U.S.C. 3501). Importers/exporters

subject to this rule may be subject to the requirement to file a

Declaration for Importation or Exportation of Fish or Wildlife (FWS

form 3-177; OMB approval number 1018-0012; expiration date August 31,

2000). This rule does not change or affect the information collection

requirements associated with the declaration form 3-177.

Required Determinations

The Service has determined that these proposed regulations meet the

applicable standards provided in Sections 3(a) and 3(b)(2) of Executive

Order 12988.

The Service has determined and certifies pursuant to the Unfunded

Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not

impose a cost of $100 million or more in any given year on local or

State governments or private entities.

Economic Effects

determined that these proposed regulations meet the

applicable standards provided in Sections 3(a) and 3(b)(2) of Executive

Order 12988.

The Service has determined and certifies pursuant to the Unfunded

Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not

impose a cost of $100 million or more in any given year on local or

State governments or private entities.

Economic Effects

The Service conducted an economic analysis of this proposed rule.

The declared value of all wildlife shipments requiring Service

clearance in Fiscal Year 1995 was approximately $860,000,000. In 1996,

the total value of all wildlife shipments which may be eligible for the

proposed exemption was $700,734. Fees payable to the Service on these

shipments would be reduced between $22,935 and $39,615 under the

proposed rule. No substantial indirect economic effects are anticipated

so the effect of the rule is much less than $100 million annually.

Shipment volume is not expected to rise to a level that would generate

$100 million annual impact. This rulemaking was not subject to review

by the Office of Management and Budget under Executive Order 12866.

Accordingly, under the Regulatory Flexibility Act of 1980 (5 U.S.C.

601 et seq.), this rulemaking will not have a significant economic

effect on a substantial number of small entities, which include

businesses, organizations, or governmental jurisdictions. The proposed

rule exempts small shippers from the Fish and Wildlife Service

inspection fee and so represents an adaptation of the current fee

structure to provide relief for small shippers, therefore, this rule

will have a beneficial effect on such entities.

List of Subjects in 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, the Service proposes to

amend Title 50, Chapter I, subchapter B of the Code of Federal

Regulations as set forth below:

rule

will have a beneficial effect on such entities.

List of Subjects in 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, the Service proposes to

amend Title 50, Chapter I, subchapter B of the Code of Federal

Regulations as set forth below:

PART 14--IMPORTATION, EXPORTATION, AND TRANSPORTATION OF WILDLIFE

1. Revise the authority citation for Part 14 to read as follows:

Authority: 16 U.S.C. 668, 704, 712, 1382, 1538(d)-(f), 1540(f),

3371-3378, 4223-4244, and 4901-4916; 18 U.S.C. 42; 31 U.S.C. 9701.

2. Amend Sec. 14.94 by revising paragraph (a) and adding paragraph

(e) 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. Licensees who

import into or export from the United States wildlife shipments meeting

the criteria outlined in paragraph (e) of this section are exempt from

the designated port inspection fee, or nondesignated port

administrative fee and hourly minimums, whichever apply, provided, that

all overtime fees and permit fees still apply.

* * * * *

(e) Exemption criteria. Wildlife shipments meeting all of the

following criteria are exempt from the designated port inspection fee

or nondesignated port administrative fee and hourly minimums:

(1) No permits are required under parts 16, 17, 18, 21, 22, or 23

of this subchapter;

(2) The wildlife is imported or exported between the United States

and Canada or Mexico;

(3) The wildlife shipment consists of raw fur, raw, salted, or

crusted hides or skins, or separate parts thereof, lawfully taken from

the wild in the United States, Canada, or Mexico;

istrative fee and hourly minimums:

(1) No permits are required under parts 16, 17, 18, 21, 22, or 23

of this subchapter;

(2) The wildlife is imported or exported between the United States

and Canada or Mexico;

(3) The wildlife shipment consists of raw fur, raw, salted, or

crusted hides or skins, or separate parts thereof, lawfully taken from

the wild in the United States, Canada, or Mexico;

(4) The wildlife was taken from the wild by the importer or

exporter of record or a member of his immediate family;

(5) The importer or exporter of record is licensed in accordance

with Sec. 14.91;

(6) The wildlife or any part thereof has not been previously bought

or sold;

(7) The shipment does not exceed 100 raw furs, raw, salted, or

crusted hides or skins, or separate parts thereof;

(8) The shipment does not contain any manufactured products or live

animals.

Donald J. Barry,

Deputy Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 98-1414 Filed 1-21-98; 8:45 am]

BILLING CODE 4310-55-M