[Federal Register Volume 63, Number 14 (Thursday, January 22, 1998)]
[Proposed Rules]
[Pages 3298-3301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1414]


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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.

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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.

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. 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. 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

[[Page 3299]]

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.
    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. 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. By using distinctions already drawn in the regulation, we believe 
that the proposed criteria represent a balance between maintaining user 
fee revenues and providing small business economic relief.
    In addition to the primary criteria, the Service will use 
additional criteria, outlined below, to ensure that the user fee 
exemption is utilized by those intended and to allow for statistical 
tracking of the exemption's use. As stated, the importer or exporter of 
record who is shipping wildlife that otherwise meets the inspection fee 
exemption criteria will still have to obtain an Import/Export License 
from the Service at a cost of $50 annually (see 50 CFR part 14, subpart 
I). The raw fur, raw, salted or crusted hides or skins, or separate 
parts thereof cannot have been previously bought or sold if the 
inspection fee exemption is to apply. The fee exemption will not apply 
to manufactured products or live animals of any kind.
    The reason for the latter two criteria is that the fee exemption is 
intended to apply to small, low volume businesses engaged in wildlife 
trade on a small scale where there is relatively low cash flow, or to 
individuals 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.
    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

[[Page 3300]]

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; 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:

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                                     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.
----------------------------------------------------------------------------------------------------------------

    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

    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:

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.
* * * * *

[[Page 3301]]

    (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;
    (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