[Federal Register Volume 69, Number 233 (Monday, December 6, 2004)]
[Rules and Regulations]
[Pages 70379-70382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26717]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 14

RIN 1018-AT59


Conferring Designated Port Status on Houston, TX; Louisville, KY; 
and Memphis, TN

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

SUMMARY: We, the U.S. Fish and Wildlife Service, make Houston, Texas; 
Louisville, Kentucky; and Memphis, Tennessee, designated ports under 
section 9(f) of the Endangered Species Act of 1973 (ESA). This action 
will allow the direct importation and exportation of wildlife and 
wildlife products through these growing international ports. We are 
changing the regulations in 50 CFR part 14 to reflect this designation.

DATES: This rule is effective January 5, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during regular business hours at 
the Branch of Investigations, U.S. Fish and Wildlife Service, Office of 
Law Enforcement, 4501 North Fairfax Drive, Suite 3000, Arlington, 
Virginia 22203.

FOR FURTHER INFORMATION CONTACT: Gregory Jackson, Special Agent in 
Charge, Branch of Investigations, U.S. Fish and Wildlife Service, 
Office of Law Enforcement, at (703) 358-1949.

SUPPLEMENTARY INFORMATION:

Background

    The ESA requires that all fish and wildlife, with only limited 
exceptions, be imported and exported through designated ports. 
Designated ports facilitate U.S. efforts to monitor wildlife trade and 
enforce wildlife protection laws and regulations by funneling wildlife 
shipments through a limited number of locations. The Secretary of the 
Interior, with the approval of the Secretary of the Department of 
Homeland Security, designates ports for wildlife trade by regulation 
after holding a public hearing and collecting and considering public 
comments. Public hearings were conducted in Houston on June 10, 2004, 
in Memphis on July 1, 2004, and in Louisville on July 8, 2004. We 
published a proposed rule to designate the ports of Houston, 
Louisville, and Memphis, with a 30-day comment period, on April 22, 
2004 (69 FR 21806).
    The Service selects designated ports based upon numerous criteria, 
such as volume of wildlife shipments, geographic diversity, frequency 
of requests for designated port exception permits, and the proximity to 
existing ports of entry. The Service presently has 14 designated ports 
of entry for the importation and exportation of wildlife and wildlife 
products: Anchorage, Alaska; Atlanta, Georgia; Baltimore, Maryland; 
Boston, Massachusetts; Chicago, Illinois; Dallas/Fort Worth, Texas; 
Honolulu, Hawaii; Los Angeles, California; Miami, Florida; New Orleans, 
Louisiana; New York, New York; Portland, Oregon; San Francisco, 
California; and Seattle, Washington. The Service maintains a staff of 
wildlife inspectors at each designated port to inspect and clear 
wildlife shipments.
    Regulatory exceptions allow certain types of wildlife shipments to 
enter or leave the country through ports that are not designated. Under 
certain conditions, importers and exporters can obtain a permit from 
the Service, called a designated port exception permit, that allows 
their use of non-designated ports. The importer or exporter will be 
responsible for additional fees associated with the designated port 
exception permit ($25) and the inspection of their wildlife shipment at 
a non-designated port.

Need for This Rulemaking

    Existing and projected increases in air and express cargo, along 
with substantial growth in the number of airline passengers, 
international visitors, and hunters seeking clearance of wildlife 
imports and exports, justify the designation of the ports of Houston, 
Louisville, and Memphis. The designation of these ports will improve 
service, while reducing costs, for international air and ocean cargo 
and mail carriers, small businesses, and the public, while maintaining 
effective monitoring and regulation of the U.S. wildlife trade.
    In the Fiscal Year 2004 budget appropriation for the Service's 
Office of Law Enforcement, monies were appropriated by Congress in the 
amount of $700,000 each for the purpose of establishing the designated 
ports of Louisville and Memphis. The Service has not received an 
appropriation from Congress to designate the port of Houston. However, 
the designation of Houston has been under discussion for some time. At 
present, the Service has three wildlife inspectors on duty in Houston, 
which fulfills the staffing requirement that the Service has 
established for a designated port in funding and staffing models. 
Therefore, the designation of Houston would amount to changing the 
status of an existing Service port and would not require start-up costs 
as would be the case in Louisville and Memphis.
    Houston is one of the fastest growing ports of entry in the nation 
in both international airfreight and shipping. The three airports 
comprising the Houston Airport System handled 42,016,609 passengers and 
330,701 tons of cargo in 2002. International air cargo tonnage at 
George Bush Intercontinental increased by more than 62 percent in the 
past 10 years with a 10 percent per year increase in the past 5 years. 
Houston is the primary air cargo gateway to and from Mexico, and the 
Houston sea port handles 81 steamship lines with 6,414 vessel calls, 
hauling 175,000,000 tons of cargo between Houston and 200 countries 
worldwide in 2002. The Port of Houston ranks first in the United States 
in tonnage imported, and third in tonnage exported. Houston also has an 
extensive designated Foreign Trade Zone.
    Service records indicate that a wide variety of wildlife and 
wildlife products are imported and exported through Houston under 
designated port exception permits. These wildlife and wildlife products 
include game trophies, reptile leather goods, scientific and museum 
specimens, live tropical fish, and curios. The number of designated 
port exception permits issued for the port of Houston suggests that 
demand for the use of this port is high. In addition, the number of 
import/export licenses issued to companies in the State of Texas has 
nearly doubled since 2001. Doubtless, many of these companies are doing 
business in or near the Houston area and will benefit from the 
designation of this port.
    Before this designation, the designated ports of entry for wildlife 
and wildlife products nearest to Houston were Dallas/Fort Worth, Texas 
(approximately 239 miles), and New Orleans, Louisiana (approximately 
347 miles). In the 2003 Fiscal Year, 4,434 wildlife shipments were 
processed in Dallas/Forth Worth, and 659 wildlife shipments were 
processed in New Orleans. We estimate that a significant fraction of 
this volume will be shipped directly to Houston for Service inspection 
and clearance with its

[[Page 70380]]

designation, resulting in considerable savings in shipping time and 
costs. Before this designation, importations or exportations of 
wildlife or wildlife products arriving in Houston without Service 
clearance had to be either shipped in-bond, under U.S. Bureau of 
Customs and Border Protection (CBP) authority, to designated ports of 
entry for Service inspection and clearance, or had to be accompanied by 
a designated port exception permit that authorized Service inspection 
and clearance in Houston. Designated port exception permits for Houston 
have been issued on a regular basis since the Service does have three 
wildlife inspectors on duty at that location. However, either 
alternative creates delays and increased costs to businesses.
    In Louisville, the presence of the United Parcel Service (UPS) hub 
at the Louisville International Airport makes Louisville the 6th 
largest handler of air cargo in the world. In 2002, UPS at Louisville 
handled 3,360,155,981 lbs. of air cargo in 3.5 million shipments, 
including approximately 665,000 CBP import entries. In addition, the 
port of Louisville had 34,354 CBP entries for other importations and 
waterborne cargo at the Louisville Container Freight Port separate from 
the UPS facility.
    Before this designation, the designated ports of entry for wildlife 
and wildlife products nearest to Louisville were Chicago, Illinois 
(approximately 297 miles), and Atlanta, Georgia (approximately 421 
miles). In the 2003 Fiscal Year, 5,434 wildlife shipments were 
processed in Chicago, and 2,020 wildlife shipments were processed in 
Atlanta. In addition, 11,800 wildlife shipments were processed in 
Anchorage, which is the Pacific rim first port of landing for UPS. We 
estimate that a significant fraction of this volume will be shipped 
directly to Louisville for Service inspection and clearance with its 
designation, resulting in considerable savings in shipping time and 
costs. Before this designation, importations or exportations of 
wildlife or wildlife products arriving in Louisville without Service 
clearance had to be shipped in-bond, under CBP authority, to designated 
ports of entry for Service inspection and clearance, thereby creating 
delays and increased costs to businesses. Designated port exception 
permits for Louisville have been issued on an extremely limited basis 
since the Service does not currently have staff at that location, and 
issuing these permits can only be done subject to the availability of 
Service staff from other ports to conduct inspections.
    In Memphis, the presence of the Federal Express (FedEx) 
headquarters and Superhub makes Memphis International Airport the 
world's largest processor of international airfreight, handling 2.63 
million metric tons in 2001, more than Los Angeles or Hong Kong. 
FedEx's global network spans over 210 countries, and 121,000 
international shipments pass through the Memphis hub each day. More 
than 130 foreign-owned firms from 22 countries employing over 17,000 
workers have relocated to Memphis in the past 20 years. In addition, 
Memphis is home to both rail and waterborne freight imports and 
exports, with a CBP port of entry for such cargo. In 2001, the 
International Port of Memphis handled 16,907,000 tons of cargo. Memphis 
is served by five Class 1 railroads, which operate approximately 220 
freight trains daily through the city.
    Before this designation, the designated ports of entry for wildlife 
and wildlife products nearest to Memphis were New Orleans, Louisiana 
(approximately 402 miles), Dallas, Texas (approximately 452 miles), and 
Atlanta, Georgia (approximately 463 miles). In the 2003 Fiscal Year, 
659 wildlife shipments were processed in New Orleans, 4,434 wildlife 
shipments were processed in Dallas, and 2,020 wildlife shipments were 
processed in Atlanta. In addition, 11,800 wildlife shipments were 
processed in Anchorage, which is the Pacific rim first port of landing 
for FedEx. We estimate that a significant percentage of this volume 
will be shipped directly to Memphis for Service inspection and 
clearance with its designation, resulting in considerable savings in 
shipping time and costs. Before this designation, importations or 
exportations of wildlife or wildlife products arriving in Memphis 
without Service clearance had to be shipped in-bond, under CBP 
authority, to designated ports of entry for Service inspection and 
clearance, thereby creating delays and increased costs to businesses. 
Designated port exception permits for Memphis have been issued on an 
extremely limited basis since the Service has only one special agent at 
that location whose responsibilities extend far beyond the port. While 
there are 18 CBP inspectors and 10 U.S. Department of Agriculture 
Inspectors in Memphis, the absence of Service inspectors has increased 
the likelihood that illegal wildlife shipments have been imported or 
exported through Memphis, impacting both the United States' ability to 
fulfill treaty obligations under the Convention on International Trade 
in Endangered Species (CITES) and creating an avenue for the 
introduction of injurious or invasive species into the nation. Prior to 
September 11, 2001, CBP inspectors in Memphis initiated about 156 
wildlife-related seizures per year, mostly consisting of reptile 
leather goods. The single Service agent stationed in Memphis is 
responsible for criminal investigations in all of West Tennessee and, 
therefore, has had very little time to devote to import/export matters. 
However, by spending minimal time at the FedEx air facility, he has 
routinely made about 40 seizures of illegally imported wildlife or 
wildlife products annually. Designated port status for Memphis will 
expedite the processing of wildlife shipments, which is financially 
advantageous for Memphis' and the region's carriers, importers, and 
exporters, while interdicting the illegal international import and 
export trade in wildlife and wildlife products.
    In summary, the Service makes Houston, Louisville, and Memphis 
designated ports under section 9(f) of the ESA. The justification for 
this designation is based primarily on past and projected increases in 
the import and export of wildlife or wildlife products through these 
ports. The result of this designation will be to ease the financial and 
administrative burden on companies and individuals seeking to import or 
export wildlife or wildlife products through the ports of Houston, 
Louisville, and Memphis. With this final rule, the list of designated 
ports is now alphabetized by city name.

Summary of Public Comments Received

    In response to our proposed rule to designate the ports of Houston, 
Louisville, and Memphis, published on April 22, 2004 (69 FR 21806), we 
received a total of 35 comments. All of these comments supported the 
designation of Houston, Louisville, and Memphis. In addition, we 
received three written comments at our hearing in Houston, and one 
written comment at our hearing in Louisville. All of these comments 
supported the designation of these ports.

Required Determinations

Executive Order 12866 (Regulatory Planning and Review)

    This rule has not been reviewed by the Office of Management and 
Budget (OMB) under Executive Order 12866. Under the criteria in 
Executive Order 12866, this rule is not a significant regulatory 
action.
    a. This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-

[[Page 70381]]

benefit and economic analysis is not required.
    The purpose of this rule is to confer designated port status on 
Houston, Louisville, and Memphis. Changing the status of these ports 
will have very little or no adverse effect on the economic sector, 
productivity, jobs, or the environment, or other units of government. 
This rule is intended to decrease the administrative and financial 
burden on wildlife importers and exporters by allowing them to use the 
ports of Houston, Louisville, and Memphis for all varieties of wildlife 
shipments. This rule provides a significant benefit to those businesses 
that import or export wildlife or wildlife products by allowing the 
inspection of shipments in Houston, Louisville, and Memphis, and will 
result in a savings for the importer or exporter in both time and the 
expense of shipping to a designated port for Service inspection and 
clearance.
    b. This rule will not create inconsistencies with other agencies' 
actions.
    The Service is the lead agency regulating wildlife trade through 
the declaration process, the issuance of permits to conduct activities 
affecting wildlife and their habitats, and carrying out the United 
States' obligations under CITES. Therefore, this rule has no effect on 
other agencies' responsibilities and will not create inconsistencies 
with other agencies' actions.
    c. This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients.
    This rule will not materially affect entitlements, grants, loan 
programs, or the rights and obligations of their recipients. This rule 
will, however, affect user fees. User fees will be decreased or 
cancelled depending on whether the import or export of wildlife or 
wildlife products is for commercial purposes. For example, when we 
establish Houston, which is currently staffed with three wildlife 
inspectors, as a designated port, commercial importers and exporters 
will save a minimum of $40 per shipment and noncommercial importers and 
exporters will save a minimum of $95 per shipment. When we establish 
Memphis and Louisville, which are not currently staffed with wildlife 
inspectors, as designated ports, commercial importers and exporters 
will save all costs associated with inspections and clearance, such as 
travel, salary, and per diem, and noncommercial importers and exporters 
will save the $55 administrative fee plus all costs associated with 
inspections and clearance. In addition, when we establish Houston, 
Louisville, and Memphis as designated ports, all importers and 
exporters will save the $25 designated port exception permit fee.
    d. This rule will not raise novel legal or policy issues.
    This rule will not raise novel legal or policy issues because it is 
based upon specific language in the ESA and the Code of Federal 
Regulations, which has been applied numerous times to various ports 
around the country.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    The Department of the Interior has determined that this rule will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
An initial regulatory flexibility analysis is not required. In 
addition, a Small Entity Compliance Guide is not required.
    Most of the businesses that engage in commerce by importing or 
exporting wildlife or wildlife products would be considered small 
businesses as defined under the Regulatory Flexibility Act. This rule 
is intended to ease the financial and administrative burden on 
companies and individuals seeking to import or export wildlife or 
wildlife products through the ports of Houston, Louisville, and 
Memphis. This burden will be eased through the reduction or elimination 
of user fees, and the elimination of the need for designated port 
exception permits. In addition, the designation of these ports will 
provide small entities with opportunities for additional brokerage, 
freight forwarding, and related services to accommodate the increased 
volume of imports and exports of wildlife and wildlife products through 
these ports. These businesses would be considered by the Small Business 
Administration (SBA) as ``All Other Support Activities for 
Transportation,'' with an SBA size standard of $6 million in average 
annual receipts.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act.
    a. This rule does not have an annual effect on the economy of $100 
million or more.
    This rule will not increase costs for small entities. Before this 
designation, a shipper who requested Service clearance at Houston, 
Louisville, or Memphis had to have the shipment continue under CBP bond 
to a designated port. With the designation of Houston, Louisville, and 
Memphis, the elimination of costs associated with shipping under CBP 
bond to a designated port will amount to a substantial savings for 
importers and exporters of wildlife or wildlife products. In addition, 
the designation of these ports will provide small entities with 
opportunities for additional brokerage, freight forwarding, and related 
services to accommodate the increased volume of imports and exports of 
wildlife and wildlife products through these ports.
    b. This rule will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    This rule is intended to ease the financial and administrative 
burden on companies and individuals seeking to import or export 
wildlife or wildlife products through the ports of Houston, Louisville, 
and Memphis, thereby decreasing costs or prices for consumers or 
individual businesses.
    c. This rule does not have significant negative effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based companies to compete with foreign-based 
companies.
    This rule is intended to ease the financial and administrative 
burden on companies and individuals seeking to import or export 
wildlife or wildlife products through the ports of Houston, Louisville, 
and Memphis, thereby promoting competition, employment, and investment, 
and increasing the ability of U.S.-based enterprises to compete with 
foreign-based enterprises.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    Under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), 
this rule, as proposed, will not ``significantly or uniquely'' affect 
small governments.
    a. This rule will not significantly or uniquely affect small 
governments. A Small Government Agency Plan is not required.
    We are the lead agency for carrying out regulations that govern and 
monitor the importation and exportation of wildlife and wildlife 
products. Therefore this rule has no effect on small government's 
responsibilities.
    b. This rule will not produce a Federal requirement that may result 
in the combined expenditure by State, local, or tribal governments of 
$100 million or greater in any year, so it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act.

[[Page 70382]]

    This rule will not result in any combined expenditure by State, 
local, or tribal governments.

Executive Order 12630 (Takings)

    Under Executive Order 12630, this rule does not have significant 
takings implications. Under Executive Order 12630, this rule does not 
affect any constitutionally protected property rights. This rule will 
not result in the physical occupancy of property, the physical invasion 
of property, or the regulatory taking of any property. A takings 
implication assessment is not required. The purpose of this rule is to 
confer designated port status on the ports of Houston, Louisville, and 
Memphis. The result will be easing the financial and administrative 
burden on the public by eliminating the need for non-designated port 
permits, and decreasing or eliminating the administrative fees 
associated with shipment inspections. Therefore, this rule does not 
have significant takings implications.

Executive Order 13132 (Federalism)

    Under Executive Order 13132, this rule does not have significant 
Federalism effects. A Federalism evaluation is not required. This rule 
will not have a substantial direct effect on the States, on the 
relationship between the Federal Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.

Executive Order 12988 (Civil Justice Reform)

    Under Executive Order 12988, the Office of the Solicitor has 
determined that this rule does not overly burden the judicial system 
and meets the requirements of sections 3(a) and 3(b)(2) of the Order. 
Specifically, this rule has been reviewed to eliminate errors and 
ensure clarity, has been written to minimize lawsuits, provides a clear 
legal standard for affected actions, and specifies in clear language 
the effect on existing Federal law or regulation.

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

    This rule does not contain any information collection requirements 
that require approval by the Office of Management and Budget under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

National Environmental Policy Act

    This rule has been analyzed under the criteria of the National 
Environmental Policy Act and 318 DM 2.2(g) and 6.3(D). This rule does 
not amount to a major Federal action significantly affecting the 
quality of the human environment. An environmental impact statement/
evaluation is not required. This rule is categorically excluded from 
further National Environmental Policy Act requirements, under part 516 
of the Departmental Manual, Chapter 2, Appendix 1.10.

Executive Order 13175 (Tribal Consultation) and 512 DM 2 (Government-
to-Government Relationship With Tribes)

    Under the President's memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59 
FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated 
possible effects on Federally recognized Indian tribes and have 
determined that there are no effects. Individual tribal members are 
subject to the same regulatory requirements as other individuals who 
engage in the import and export of wildlife or wildlife products.

Executive Order 13211 (Energy Supply, Distribution, or Use)

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. The purpose of this 
rule is to confer designated port status on the ports of Houston, 
Louisville, and Memphis. This rule is not a significant regulatory 
action under Executive Order 12866 and it is not expected to 
significantly affect energy supplies, distribution, and use. Therefore, 
this action is a not a significant energy action and no Statement of 
Energy Effects is required.

Endangered Species Act

    A determination has been made under section 7 of the ESA that the 
revision of part 14 will not affect federally listed species.

Author

    The originator of this rule is Mark Phillips, Office of Law 
Enforcement, U.S. Fish and Wildlife Service, Washington, DC.

List of Subjects in 50 CFR Part 14

    Animal welfare, Exports, Fish, Imports, Labeling, Reporting and 
recordkeeping requirements, Transportation, Wildlife.

Regulation Promulgation

0
For the reasons described above, we amend part 14, subchapter B of 
chapter 1, title 50 of the Code of Federal Regulations as set forth 
below.

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

0
1. The authority citation for part 14 continues 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.


0
2. Revise Sec.  14.12 to read as follows:


Sec.  14.12  Designated ports.

    The following ports of entry are designated for the importation and 
exportation of wildlife and wildlife products and are referred to 
hereafter as ``designated ports'':


(a) Anchorage, Alaska.

(b) Atlanta, Georgia.

(c) Baltimore, Maryland.

(d) Boston, Massachusetts.

(e) Chicago, Illinois.

(f) Dallas/Fort Worth, Texas.

(g) Honolulu, Hawaii.

(h) Houston, Texas.

(i) Los Angeles, California.

(j) Louisville, Kentucky.

(k) Memphis, Tennessee.

(l) Miami, Florida.

(m) New Orleans, Louisiana.

(n) New York, New York.

(o) Portland, Oregon.

(p) San Francisco, California.

(q) Seattle, Washington.

    Dated: November 29, 2004.
David P. Smith,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-26717 Filed 12-3-04; 8:45 am]
BILLING CODE 4310-55-P