[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
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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.
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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
