Changes are also proposed in the marking requirements for containers. Further changes are proposed in the import and export license requirements and fee schedules and the exceptions to license requirements. In addition to the above changes, the non-standard fee schedule in Part 13 for an import/export license is amended.
DATES: Comments must be submitted on or before November 14, 1994.
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: Frank Shoemaker, Special Agent in Charge, Branch of Investigations, Division of Law Enforcement, Fish and Wildlife Service, U.S. Department of Interior, Washington, DC 20240, Telephone Number (703)358-1949.
SUPPLEMENTARY INFORMATION:
Background
The Fish and Wildlife Service (Service) has oversight responsibilities under statutory and regulatory authority to regulate the importation, exportation, and transportation of wildlife. The Service, consistent with this authority, has established an inspection program to properly oversee the importation, exportation, and transportation of wildlife and wildlife products. The Service, in support of its program activities, has promulgated regulations, subject to exemptions and permitted exceptions, restricting the importation and exportation of wildlife and wildlife products to certain designated ports, border ports, and special ports enumerated within the Code of Federal Regulations. Service regulations governing the importation, exportation, and transportation of wildlife are codified in 50 CFR 14 and are implemented through the cooperative efforts of the U.S. Fish and Wildlife Service, Special Agents and Wildlife Inspectors and with the essential support, cooperation and assistance of the U.S. Customs Service (Customs) and the Animal and Plant Health Inspection Service and other cooperative agencies.
The Service proposes to make the following changes to the Importation, Exportation, and Transportation Wildlife regulations in Part 14. A new Section 14.4, entitled "Definitions" is proposed to include several new definitions. In proposing these new definitions, the Service hopes that greater uniformity in the interpretation of Part 14 will be achieved. This section will also include a definition for the term "commercial" indicating when the commercial intent of a shipment becomes presumptive. This definition is intended to delineate when an import/export license will be required for a wildlife shipper and when other requirements applicable to commercial wildlife enterprises will ensue. A definition is also proposed for the term "export" to delineate when the filing of an export declaration will be required. The term "accompanying personal baggage" is also newly defined to remove any confusion as to when hand-carried items and checked baggage will be regarded by the Service as an export or import respectively. The meaning of the term "domesticated animal" has been defined to distinguish such animals from wildlife. In addition to the above changes, the term "worn" in SS 14.15 has been removed and replaced with the term "used" in order to clearly define when wildlife products will be included within the personal baggage and household effects exception to the designated port requirements.
The Service has made several administrative corrections within the text of the regulations. Corrections have been made changing the erroneous references to SS 14.93(d) in SS 14.82(a)(2) and the erroneous reference to SS 14.93(d)(1) in SS 14.93(c)(5) to read SS 14.93(c) and SS 14.93(c)(1) respectively. These cites reference the requisite record requirements applicable to holders of an import/export license.
A reference to the permit requirements of Part 23 is included within several sections of Part 14. The requirements of Part 23 implement the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The following provisions are being revised to include references to Part 23: at SS 14.21, the exception to the Service's license requirements for shellfish and fishery products; at SS 14.55, the exceptions to Service wildlife clearance requirements stating when wildlife and wildlife products may be imported without clearance; at SS 14.62(a), the exceptions to the import declaration requirements stating when a Service import declaration (Form 3-177) is not required; at SS 14.64(a), the exceptions to export declaration requirements stating when a Service export declaration (Form 3-177) is not required; and at SS 14.92 the exceptions to license requirements stating when wildlife may be imported or exported without the procurement of a Service import/export license.
The Service is proposing to change the age minimum in SS 14.22 for certain antique articles for consistency with changes in the Endangered Species Act. The Service is also adding in SS 14.21(a)(2) an exception to the designated port requirements for marine invertebrates of the Class Pelycopoda; species commonly known as oysters, clams, mussels, and scallops; and the eggs, larvae, or juvenile forms thereof exported for purposes of propagation, or research related to propagation, and for pearls imported for commercial purposes. The requirements for the clearance of wildlife, at SS 14.52, and the refusal of clearance of wildlife at SS 14.53 ar being revised to show the applicability of these sections to both exported and imported wildlife. The provisions of SS 14.52 have been revised to specifically state, in both import and export situations, the requirements of presentation of wildlife for clearance and the requirement of clearance of wildlife by a Service officer prior to export or prior to U.S. Custom Service release of an importation.
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The Service's refusal of clearance provisions at SS 14.53 are also revised to require the identification of wildlife by species or subspecies name. This change is intended to alleviate the confusion often caused by the use of common names. This section has also been revised to include as an additional basis for the refusal of clearance in SS 14.53 the failure to pay an assessed penalty levied upon an importer or exporter under Part 11. Another significant change being made to SS 24.53 is the establishment of a formal detention process, similar to that of the Customs Service, within the section. This detention procedure is necessary to provide for the Service's detention of wildlife, to identify or determine applicable state or foreign sovereign law, in order to establish probable cause to seize the wildlife in question.
In order to ensure humane and expeditious inspection and handling of shipments of wildlife, the Service is revision SS 14.54 to include a provision requiring the Service be notified at least 48 hours prior to the "estimated time of arrival" of live or perishable shipments of wildlife or wildlife products. The Service is to be similarly notified when wildlife inspection is requested to be accomplished upon arrival and when wildlife is required to be inspected prior to export.
The regulations concerning the requirements of the Service Form 3-177, Declaration for Importation or Exportation of Fish or Wildlife, in SS 14.61 are being revised to include changes brought about by the U.S. Customs Automated Commercial System (ACS) and the Automated Broker Interface (ABI) electronic entry system and to clarify the requirement of filing an import declaration. Changes in the U.S. Customs entry system allow entry documents to be filed electronically by an authorized Customs broker using the electronic entry system.
The Service's exceptions to import requirements in SS 14.62 are revised to exclude, in addition to articles intended for sale, articles or samples used as exhibits to solicit sales. This section is to be further revised to remove an erroneous reference to an obsolete U.S. Customs Service form. In SS 14.64(a) the Service is adding an additional exception to the export declaration requirements for marine invertebrates of the Class Pelycopoda; species commonly known as oysters, clams, mussels, and scallops; and the eggs, larvae, or juvenile forms thereof exported for the purposes of propagation or research related to propagation. The Service is also restating the exceptions to the export declaration requirements under SS 14.64(b)(1) and SS 14.64(b)(2) by excluding, in addition to wildlife articles intended for sale, articles or samples used as exhibits to solicit sales.
Changes are proposed in the marking requirements of SS 14.81, and the alternatives and exceptions to the marking requirements in SS 14.82, to add provisions requiring the conspicuous marking of containers or packages to indicate when the contents are venomous species. In making this proposal, the Service hopes to prevent injuries. In accordance with SS 14.81, the Service will also require that wildlife shipments be accompanied with an accurate and legible list of the contents by scientific species name and the number of each species.
The provision of SS 14.91(c) establishes that persons engaged in certain enumerated activities are required to hold an import/export license. The provisions of this section have been revised and amended to be more clearly worded and to require persons who commercially import or export wildlife in the form of food products taken from populations of non-domesticated animals to be licensed. Sections 14.92(a)(5) and 14.92(a)(6) are being added to include within the exceptions to license requirements provisions providing an exception for marine invertebrates of the Class Pelycopoda; species commonly known as oysters, clams, mussels, and scallops; and the eggs, larvae, or juvenile forms thereof exported for purposes of propagation, or research related to propagation, and for pearls imported for commercial purposes. Sections 14.92(b)(1) and 14.92(b)(2) have been amended to allow for an exception to the import/export license requirement for common carriers and custom house brokers, only in instances where they are acting in their respective functions as transporters or agents and not as the importer or exporter of record.
Inspectors working at designated ports of entry are vested with the authority by statute and regulation to undertake the physical inspection and identification of wildlife shipments and to examine all associated wildlife shipment documentation for sufficiency. Generally, these inspection procedures are uniformly required and equivalent in their demands upon work-units of the Service, with some exceptions, for all shipments of wildlife regardless of value, size of shipment, or the variety of regulated wildlife species. Because of the nature of the inspection and the administrative support required, a direct correlation between the value of a wildlife shipment and the operating costs incurred by the Service in the inspection of wildlife cannot be made. The Service, therefore, has historically assessed user fees according to standardized schedules codified in the Code of Federal Regulations and has avoided as impracticable the levying of fees based solely upon the value of wildlife shipped.
Service uniform import/export user fee schedules have been set out and promulgated at 50 CFR 14. A review of the available user fee information shows that since 1988 there have been four studies of the Service's import/export user fee policies: a 1988 report prepared by the Service, Division of Finance, of findings and recommendations on review of Law Enforcement Management Information System and Import/Export Fee Billing and Collection System, a 1988 user chargers and collection report by the Department of the Interior, Office of the Inspector General; a 1991 Law Enforcement Functional Analysis Review prepared by a fish and Wildlife Service Functional Analysis Review Team; and finally a 1992 draft of the CITES Implementation Study, prepared by Traffic, U.S.A.
On recommendation consistently made in these studies is that the Service should revise its user fee policies and rates to recover the full cost of services provided to individuals and businesses. The recommendation was also made that the Service license and charge user fees to all commercial importers and exporters of wildlife and wildlife products. The Service is therefore proposing to adjust its fees for certain activities in order to recover the actual costs of the services provided for all commercial import/export activities as proposed herein.
Inspection Fees
All commercial importers and exporters of wildlife and wildlife products are charged an inspection fee for actual inspection time at a designated hourly rate (including salary and travel costs) with a 2 hour minimum for shipments imported or exported through any port other than one of the ports designated in SS 14.12. The current rate is $25 per hour. Where an inspection occurs on a holiday or a Sunday, the hourly rate is doubled. In addition, there is an administrative fee charged to all importers/exporters at non- designated ports to cover the costs of processing and filing the paperwork and the entry of data into the Service's computer system. The current administrative fee charged to all importers/exporters at non- designated ports is $25.
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Import/Export Licenses
Pursuant to its authority the Service requires persons engaged in business as importers and exporters of wildlife and wildlife products to obtain a wildlife import/export license and to comply with all administrative reporting and documentation requirements. The Service currently charges $125 per license annually. Holders of import/export licenses must pay a user fee for each shipment that is imported or exported at a designated port of entry listed in SS 14.12. The current fee is $25 for each shipment imported or exported at a designated port. In addition, overtime costs are charged to the importer or exporter at the rate of $25 per hour or a fractional increment thereof. However, non-commercial shipments and shipments imported or exported by persons or businesses exempt from the license requirements are not charged an inspection fee at designated ports, but may be charged overtime costs where such inspections are incurred at the specific request of the importer or exporter.
An analysis of import/export data for the three most recent years for which complete data is available from the Law Enforcement Management Information System database shows that the Service is only recouping about $2 million annually of the total wildlife inspection budget of $4.35 million. Thus, only approximately 45 percent of the total cost of the Service's wildlife inspection program is recovered through the current user fees rates.
Consequently, the Service is proposing to adjust its fee schedules in SS 14.93 in order to recoup the full cost of the import/export inspection program. First, the Service is proposing to require all commercial importers and exporters of wildlife and wildlife products to obtain an import/export license without regard to the total value of wildlife or wildlife products imported or exported each year. This would eliminate the yearly value exception in SS 14.92(b)(6). This is a change from the current system where only commercial importers/exporters who import or export more than $25,000 in wildlife products annually were required to obtain a license. Second, the Service is proposing to adjust the cost of issuing an import/export license by reducing the cost of a license from the present rate of $125 per year to $50 per year. Third, the Service is proposing to increase the fees charged at designated ports in order to cover the full cost of the inspection services provided. The present inspection fee has been $25 since 1986. The Service's analysis indicates that the average cost to the Service to process a shipment is $55 per shipment. Therefore, the Service is proposing to increase the cost of this fee to $55 per shipment in order to more realistically recover costs. Fourth, the Service is proposing to increase the administrative fee charged at non- designated ports from $25 to $55, in addition to the inspection fee, to recover its actual costs and to make this fee consistent with the proposed increase in the designated port inspection fee. the Service believes these adjustments in the fee rates and applications are reasonable and fair in light of the actual demands upon limited Service resources.
The Service will propose substantive changes to Title 50 CFR Part 13 at a later time. The Service is, however, revising the non-standard fee schedule in SS 13.11(d)(4) to be consistent with the proposed changes to Part 14.
Summary of Comments and Information Received
On Thursday, November 14, 1991, the Service published, in the Federal Register, (56 FR 57873), a Notice of Intent to Review Title 50 CFR Parts 13 and 14. The Service, in this notice, requested that all interested parties submit written comments. In response to this request, the Service received comments from a total of 66 individuals and organizations.
Specifically, written comments were received from 36 individuals, 11 government agencies, 8 sportsman associations, 1 American Indian tribe, 3 scientific associations, and 7 wildlife management and conservation associations. The Service has carefully considered all comments received in response to the Notice in proposing these changes to Parts 13 and 14.
Comments Pertaining to 50 CFR 14.12 Through 14.18
Several comments recommended the addition of the port of Detroit, Michigan to the list of "Designated Ports" in SS 14.12. The Service has carefully considered this request, but has decided not to list Detroit as a designated port at this time. The Service believes that designated port status is not warranted at this time because of the close proximity of Detroit to the designated port of Chicago, a major commercial airport hub for air cargo. Although Detroit has a growing air cargo sector, it is modest in comparison to Chicago. Detroit does have international air passenger service and a land border with Canada; however, the workload does not warrant designated port status at this time.
Several commenters recommended that the Service revise the words "not intended for sale" in SS 14.15 to include items being imported or exported for the stated purpose of display in order to solicit sales. Another specific change recommended to SS 14.15 favored the establishment of a limitation on the value or number of items of personal baggage and household effects that may be imported or exported pursuant to the designated port exception in SS 14.15 for accompanying personal baggage and household effects. The commenter further recommended that the Service make any exceeding of the proposed personal baggage and household effects limitation evidence of intent to sell. The Service agrees that the misuse of this designated port exception has become a concern.
The Service believes this problem is best addressed in two ways. First, greater cooperation with Customs officials is needed when quantities of wildlife items in excess of those allowed by Customs are clearly evident. Second, the Service is proposing to more clearly define the terms "commercial" and "accompanying personal baggage" to clearly distinguish commercial importations and exportations and effectively prevent the misuse of the designated port exception.
Several commenters expressed the concerns of the scientific community. One commenter requested that the Service provide a special designated port of entry exemption similar to those provided for personally owned birds, marine mammals, and personal effects in SS 14.15, SS 14.17, and SS 14.18 so that scientific specimens or wildlife intended for scientific use can be imported at any customs port of entry. This proposal, as noted by the commenter, would eliminate excessive paperwork and allow for unforeseen and uncontrollable circumstances.
The Service is sympathetic to the concerns of the scientific community. However, no changes are anticipated at this time. The Service notes in making this determination that the exemptions referred to by the commenter were personal exemptions. Scientific collections, however, are distinguishable in that they are not considered personal exemptions by the Service. The Service continues to recognize the need to carefully monitor the importation of scientific wildlife specimens.
Comments Pertaining to Section 14.22: Certain Antique Articles
Another commenter recommended that the limitation date specified in SS 14.22 for "Certain Antique Articles"
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be changed from the year "1830" to the phrase "100 years old." The Service agrees with the opinion expressed by the commenter and has proposed this change.
Comments Pertaining to Section 14.31: Permits to Import or Export Wildlife at Non-Designated Port for Scientific Purposes
A few commenters recommended that application procedures in SS 14.31(b)(2) be revised to alleviate unnecessary procedural delays imposed upon foreign researchers. These delays were said to be incurred in instances where scientific specimens are sent out on loan and later returned. Delays are said to occur because of the required listing of all species being sent out of the country and because of the additional time lost in waiting for written approval prior to shipping.
Another recommendation was that blanket permits be issued for terms of at least 4 years for movement of preserved specimens between that (sic) was termed 'bona fide" research institutions. One comment requested that "bona fide" non-profit research institutions that maintain voucher specimens for research on biological diversity and ecology be provided an exemption from the requirement of completing an import/export declaration under SS 14.62 for specimens on loan between scientific institutions. One commenter from the scientific community noted that there should be no need to inform the Service of the contents of loan packages prior to sending or receiving and opening loaned specimen shipments. In the opinion of the commenter, the importation and exportation of specimens for scientific research should be among the very least of the Service's concerns for wildlife. The concerns expressed by the commenters have been duly noted. The Service is concerned about any delays encountered during permit functions. The Service, however, must process the requests of all members of the public fairly and equitably without regard to status. The Service does not believe that the issuance of what was described as "blanket permit" would serve any useful regulatory purpose. The Service would have difficulty in implementing this proposal. For example, how would the terms "bona fide research institution" and "scientist" be realistically defined? This would require a subjective determination that the Service is not prepared to make.
In regards to the required submission of the Fish or (sic) Wildlife Declaration Form 3-177, current regulations at SS 14.62(c) allow 180 days for the submission of this form. The Service believes this provision provides adequate time for compliance.
Comments Pertaining to Section 14.51: Inspection of Wildlife
Other recommendations concerned the provisions governing Subpart #16, the "Inspection and clearance of wildlife." A specific recommendation was that the regulations state clearly that any shipment must obtain Service clearance prior to release of that shipment by Customs. One commenter recommended that Service Policy #16, entitled "Species Exempt from Law Enforcement Management Information System" (LEMIS), which is found in the Service Import/Export Manual and which relates to exemption from import/export license requirements, be incorporated into Part 14. The Service acknowledges these recommendations and has attempted to clarify its regulations and incorporate policy #16 in this revision.
Comments Pertaining to 50 CFR 14.61 and 14.62: Import Declaration Requirements, Exceptions to Import Declaration Requirement
Several commenters recommended that the Service establish in SS 14.61 procedural requirements for the entry of imported commodities electronically through the Customs Automated Commercial System (ACS), including discussions on statement processing and collection of user and license fees, prefiling, when physical documentation would be required, and participant cargo clearance responsibilities. The Service concurs and has included references to the U.S. Customs electronic entry system in this revision. The Service is hesitant to codify entry procedures at this point in time because of the evolving nature of ACS.
Another commenter noted that the port of entry exemption at SS 14.21 for shellfish and fishery products, which allow recreational catches to enter from Canada, and the exemptions to import declaration requirements in SS 14.62(1) have been beneficial to the sports fishing community and should be continued. This Service is proposing a change to SS 14.62(a) to include a reference to the permit requirements of Part 23 within the text of the section. The regulations in Part 23 essentially implement the Convention on International Trade in Endangered species of Wild Fauna and Flora (CITES). Under CITES, additional import/export wildlife permit requirements may be imposed. CITES, therefore, is also a necessary consideration for anyone importing shellfish and fishery products. The Service hopes in making this change to re-emphasize the already existing permit requirements of Part 23 by this reference in SS 14.21.
One commenter requested that an amnesty program be set up for trophy hunters who have inadvertently imported wildlife specimens that, as the commenter noted, "these individuals should not have imported." The Service does not concur and believes the suggested amnesty would logically tend to circumvent the deterrent effect of its regulations.
Comments Pertaining to 50 CFR 14.91 Through 14.93 License Requirements, Exceptions to License Requirement; License Application Procedure, Conditions, and Duration
Numerous comments were received recommending changes to import/export license requirements, exceptions to license requirements, license application procedures, conditions, and duration. Several comments recommended that the Service eliminate the $25,000 import/export minimum required in SS 14.92(b)(6) because it has required the maintenance of cumbersome manual files.
One recommendation was to revise the regulations in SS 14.93(f)(2) to provide for the licensing of all commercial importers or exporters of wildlife, with the additional requirement that an inspection fee be levied for each shipment inspected. Another commenter similarly recommended that all commercial importers or exporters of wildlife be licensed and an inspection fee charged for each shipment.
One commenter recommended that the Service provide for the charging of an inspection fee in situations where a license is not required, but inspection in still necessary. This is particularly true, the commenter noted, in the case of certain designated captive-bred animals otherwise exempt under the exception t license requirement in SS 14.92(a)(3). The commenter further noted that "these animals whether or not they are born in captivity still require a Service inspection of the shipment." Recommendations were also made to increase license and inspection fees in SS 14.93(f)(1) and SS 14.93(f)(2) and to eliminate license requirements for first-time individual importations.
The Service agrees with many of the comments made and has proposed several changes in the import and export license requirements, to fee schedules, and in the exceptions to Service import/export license requirements. The Service is proposing to require all commercial importers and
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exporters of wildlife and wildlife products to obtain an import/export license without regard to the total value of wildlife or wildlife products imported or exported each year. Such a change would eliminate the yearly value exception in SS 14.92(b)(6). This is a change from the current system, where only commercial importers/exporters who import or export more than $25,000 in wildlife products annually were required to obtain a license. The Service believes that this change is more equitable in the assessment of costs among importers and exporters and that it will alleviate unnecessary and burdensome record- keeping.
The Service is also proposing to adjust the cost of a wildlife import/export license. The Service is proposing to reduce the cost of a license from $125 per year to $50 per year. The Service believes that this change, together with the requirement that all commercial importers and exporters of wildlife and wildlife products obtain an import/export license, will assist the Service in recovering its actual costs through the equitable assessment of license fees.
The Service is also proposing to adjust the inspection fee charged to licensees at designated ports. The Service is proposing an increase in fees in order to cover the full costs of the inspection services provided. The present inspection fee is set at the rate of $25 per shipment. However, the Service's analysis indicates that the average cost to the Service to process a shipment is $55. The Service is therefore proposing to increase the cost of this fee to $55 per shipment in order to more fully recover costs.
The Service is also proposing to adjust the administrative fee charged for each wildlife shipment cleared at a non-designated port. This change is consistent with the increase proposed for the designated port inspection fee and would assist the Service in recouping its actual costs.
One recommendation was to reduce by one half, the time limit for submission of the report required by SS 14.93(c)(5). The Service response is that any reduction in the time limit for the submission of the report required by SS 14.93(c)(5) would unfairly increase existing record reporting requirements set out in SS 14.93(c). Another recommendation was that the Service correct the erroneous identification of "(d)(1)," to correctly read "(c)(1)" in SS 14.93(c)(4) and SS 14.93(c)(5). The recommendation was made to include a citation referencing "Part 23," in SS 14.16(c), SS 14.21, SS 14.55, SS 14.62(1), and SS 14.64(a) where the citation is currently omitted from the text of the regulations. The Service acknowledges the need to make the recommended corrections and has made efforts in several of the suggested sections to do so in this revision.
Need for Proposed Rulemaking
The Fish and Wildlife Service is updating the regulations for the importation, exportation, and transportation of wildlife. Definitions have been added and several errors and missing references have been corrected. Several ambiguities in the text have been restated for clarity. Changes were necessary in several sections for the purposes of identification of wildlife, to provide uniformity with the Customs Service, to more clearly articulate requirements, to circumscribe exceptions to requirements, and to provide for the safety of inspectors.
Changes in the Service import/export user fees policies and rates were made in order to recover the full costs of license and inspection services to require all commercial importers and exporters of wildlife and wildlife products to obtain an import/export license, to adjust the cost of a wildlife import/export license, to adjust the inspection fee charged to licensees at designated ports, and to adjust the administrative fee charged for each wildlife shipment cleared at a non-designated port.
Required Determinations
This rule was not subject to review by the Office of Management and Budget (OMB) under Executive Order 12866. The Department of the Interior (Department) has determined that this proposed 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.). This action is not expected to have significant taking implications, as per Executive Order 12630.
This proposed rule does not contain any additional information collection requirements, beyond those already approved under OMB Approval Number 1018-0012, which would require approval by the Office of Management and Budget under the Paperwork Reduction Act, 4 U.S.C. 3501 et seq. This action does not contain any federalism impacts as described in Executive Order 12612.
These proposed changes in the regulations in Parts 13 and 14 are regulatory and enforcement actions which are covered by a categorical exclusion from National Environmental Policy Act procedures under 516 Department Manual and an Environmental Action Memorandum is on file at the Service's office in Arlington, Virginia. A determination has been made pursuant to Section 7 of the Endangered Species Act that the proposed revision of Part 14 will not effect (sic) federally listed species. The Department has certified to OMB that these regulations meet the applicable standards provided in Sections 2(a) and 2(b)(2) of Executive Order 12778.
Authorship
The originator of this proposed rule is Law Enforcement Specialist Paul McGowan, Division of Law Enforcement, U.S. Fish and Wildlife Service, Washington, DC.
List of Subjects
50 CFR Part 13
Administrative practice and procedure, Exports, Fish, Imports, Plants, Reporting and recordkeeping requirements, Transportation, Wildlife.
50 CFR Part 14
Animal welfare, Exports, Fish, Imports, Labeling, Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
For the Reasons set out in the preamble, Title 50, Chapter I, Subchapter B of the Code of Federal Regulations is proposed to be amended as set forth below:
PART 13 - GENERAL PERMIT PROCEDURES
1. The authority citation for Part 13 is revised to read as follows:
Authority: 16 U.S.C. 668a, 704, 712, 742j-l, 1382, 1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C. 1202; E.O. 11911, 41 FR 15683; 31 U.S.C. 9701.
Subpart B - Applications for Permits
2. Section 13.11 is amended by revising the table in (d)(4) to read as follows:
SS 13.11 Application procedures.
* * * * *
(d) * * *
(4) * * *
(Table)
Type of permit Fee
==========================================
Import/Export License (SS 14.93).....$50
Marine Mammal (SS 18.31).....100
Migratory Bird-Banding or marking (SS 21.22).....None
Bald or Golden Eagles (Part 22).....None
(End Table)
* * * * *
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PART 14 - IMPORTATION, EXPORTATION, AND TRANSPORTATION OF WILDLIFE
1. The authority citation for Part 14 continues to read as follows:
Authority:
16 U.S.C. 704, 712, 1382, 1538(d)-(f), 1540(g), 3371-3378, 4223-4244, and 4901- 4916; 18 U.S.C. 41; 31 U.S.C. 483(a).2. A new SS 14.4 entitled "Definitions" is added to Subpart A to read as follows:
SS 14.4 Definitions
In addition to definitions contained in Part 10 of this subchapter, the following terms shall be construed to mean and include:
(a) Commercial means the offering for sale or resale, purchase, trade, barter, or the actual or intended transfer in the pursuit of gain or profit, of any item of wildlife and includes the use of any wildlife article as an exhibit for the purpose of soliciting sales, without regard to quantity or weight. There is a presumption that eight or more similar unused items (except for antiques, collectibles, or curios) are for commercial use. This presumption may be rebutted by the importer/exporter/owner or by the Service based upon the particular facts and circumstances of each case.
(b) Export means to depart from, to send from, to ship from, or to carry out of, or attempt to depart from, to send from the (sic) ship from, or to carry out of any place subject to the jurisdiction of the United States, whether or not such departure, sending or carrying or shipping constitutes and exportation within the meaning of the Customs laws of the United States.
(c) Accompanying personal baggage includes all hand-carried items and all checked baggage of a person entering into or departing from the United States. When a passenger leaving the jurisdiction of the United States enters the designated international area of embarkation of an airport, all accompanying personal hand-carried items and checked baggage will be regarded as exports.
(d) Domesticated animals includes, but is not limited to the following domesticated animals which are exempted from the requirements of this subchapter B (except for species obtained from wild populations).
Mammals
Aplaca (sic)-Lama alpaca; Chamel-Camelus dromedarius; Camel (Boghdi)-Camelus bactrianus; Cat (domestic)-Felis domesticus; Cattle-Bos taurus; Dog (domestic)- Canis familiaris; European rabbit-Oryctolagus cuniculus; Ferret (domestic)-Mustela putorium; goat-Capra hircus; Horse-Equus caballus; Llama-Lama glama; Pig-Sus scrofa; Sheep-Ovis aries; Water buffalo-Bubalus bubalus; White lab mice-Mus musculus; White lab rat-Rattus norvegicus.
Fish (For Export Purposes only)
Carp (koi)-Cyprinus carpio; Goldfish-Carassius auratus;
Birds
Chicken-Gallus domesticus; Ducks & geese-domesticated varieties, Guinea fowl-Numida meleagris; Peafowl-Pavo cristatus; Pigeons (domestic)-Columba livia domestica; Turkey-Meleagris gallopavo; Domesticated or Barnyard Mallards include: Pekin; Aylesbury; Bouen; Cayuga; Gray Call; White Call, East Indian; Crested; Swedish; Buff Orpington; Indian Rummer; Campbell; Duclair; Merchtem; Termonde; Magpie; Chinese, Khaki Campbell.
Insects
Crickets, mealworms, and similar insects that are routinely farm raised.
Invertebrates
Earthworms and similar invertebrates that are routinely farm raised.
3. Section 14.15 is amended by revising paragraph (a) to read as follows:
SS 14.15. Personal baggage and household effects.
(a) Wildlife products or manufactured articles which are not intended for sale or exhibit for sale and are
used as clothing or contained in accompanying personal baggage may be imported into or exported from
the united States at any Customs port. However, this exception to the designated port requirement does
not apply to any raw or dressed fur; raw, salted, or crusted hide or skin; game trophy; or to wildlife
requiring a permit pursuant to Part 16, 17, 21, or 23 of this Subchapter B.
* * * * *
4. Sections 14.21 is revised to read as follows:
SS 14.21 Shellfish and fishery products.
(a)(1) General. Except for wildlife requiring a permit pursuant to Part 17 and/or 23 of this subchapter, shellfish and fishery products thereof (as defined by SS 10.12) imported or exported for purposes of human or animal consumption or taken in waters under the jurisdiction of the United States or on the high seas for recreational purposes may be imported or exported at any Customs port.
(2) Except for wildlife requiring a permit pursuant to Part 17 and/or Part 23 of this subchapter, marine invertebrates of the Class Pelycopoda; species commonly known as oysters, clams, mussels, and scallops; and the eggs, larvae, or juvenile forms thereof may be exported for purposes of propagation, or research related to propagation, at any Customs port.
(b) Pearls. Except for wildlife requiring a permit pursuant to Part 17 and/23 (sic) of this subchapter, pearls, imported for commercial purposes, may enter the United States at any Customs port of entry and for the purposes of this Part all references to the term shellfish and fishery products shall include pearls.
5. Section 14.22 is revised to read as follows:
SS 14.22 Certain antique articles.
Any person may import at any U.S. Customs Service port any article (other than scrimshaw, which is defined in 16 U.S.C. 1539(f)(1)(B) and 50 CFR 217.12, as any art form which involves the etching or engraving of designs upon, or the carving of figures, patterns, or designs from, any bone or tooth of any marine mammal of the order Cetacea) that is at least 100 years old, is composed in whole or in part of any endangered or threatened species listed under SS 17.11 or SS 17.12 of this subchapter and has not been repaired or modified with any part of any endangered or threatened species on or after December 28, 1973.
6. Section 14.32 is amended by revising paragraph (c)(2) to read as follows:
SS 14.32 Permits to import or export wildlife at nondesignated port to minimize deterioration or loss.
* * * * *
(c) * * *
(2) Permittee shall pay fees in accordance with SS 14.94.
* * * * *
7. Section 14.33 is amended by revising paragraph (c)(2) to read as follows:
SS 14.33 Permits to import or export wildlife at nondesignated port to alleviate undue economic hardship.
* * * * *
(c) * * *
(2) Permittee shall pay fees in accordance with SS 14.94.
* * * * *
8. Section 14.52 is amended by revising paragraphs (a), (b), the introductory text of paragraph (c), paragraphs (c)(3), and (c)(4), and by adding paragraph (c)(5) to read as follows:
SS 14.52 Clearance of wildlife.
(a) Except as otherwise provided by this subpart, all wildlife imported into the United States must be presented for clearance and cleared by a Service officer prior to release from detention by Customs officers. All wildlife to be exported from the United States must be
(Page 47218)
presented for clearance, in a condition suitable for clearance, and cleared by a Service officer prior to the physical loading of the merchandise on a vehicle, aircraft, or the containerization or pelletizing (sic) of such merchandise for export, unless expressly authorized otherwise. Such clearance does not constitute a certification of the legality of an importation or exportation under the laws or regulations of the United States.
(b) Clearance by a Service officer may be obtained only at designated ports (SS 14.12), at border ports (SS 14.16), at special ports (SS 14.19), or at a port where importation or exportation is authorized by a permit issued under Subpart C of this Part. Any wildlife released without a Service officer's clearance or clearance by Customs for the Service under authority of SS 14.54 must be returned forthwith to a port where clearance may be obtained pursuant to this subpart.
(c) To obtain clearance, the importer, exporter, or the importer's or exporter's agent, shall make available
to a Service officer or a Customs officer acting under SS 14.54:
* * * * *
(3) All permits or other documents required by the laws or regulations of any foreign country;
(4) The wildlife being imported or exported; and
(5) Any documents and permits required by the country of natal origin of the wildlife.
9. Section 14.53 is revised to read as follows:
SS 14.53 Detention and Refusal of clearance.
(a) Detention. Any Service officer, or Customs officer acting under SS 14.54, may detain imported wildlife. As soon as practicable following the importation and decision to detain, the Service shall mail a notice of detention by registered or certified mail, return receipt requested, to the importer or consignee, if known or easily ascertainable. Such notice shall describe the detained wildlife or other property, indicate the reason for the detention, describe the general nature of the tests or inquiries to be conducted, and indicate that if the releasability of the wildlife has not been determined within 30 days after the date of the notice, or a longer period if specifically stated, that the wildlife shall be deemed to be seized and no further notification of seizure will be issued.
(b) Refusal of Clearance. Any Service officer may refuse clearance of imported or exported wildlife and any customs officer acting under SS 14.54 may refuse clearance of imported wildlife when there are reasonable grounds to believe that:
(1) A Federal law or regulation has been violated;
(2) The correct identity and country of origin of the wildlife has not been established (in such cases, the burden is upon the owner, importer, exporter, consignor, or consignee to establish such identity by scientific name to the species level or, if any subspecies is protected by the laws of this country or the country of origin, to he subspecies level);
(3) Any permit, license or other documentation required for clearance of such wildlife is not available, is not currently valid or has been suspended or notice of revocation made; or, is not authentic;
(4) The importer, exporter, or the importer's or exporter's agent has filed an incorrect or incomplete declaration for importation or exportation as provided in SS 14.61 or SS 14.63; or
(5) Any fee or portion of balance due for inspection fees required by SS 14.93 or assessed penalties against the importer or exporter under Part 11 of this chapter has not been paid.
10. Section 14.54 is amended by revising paragraph (a), and adding paragraph (f) to read as follows:
SS 14.54 Unavailability of Service officers.
(a) Designated ports. All wildlife arriving at a designated port must be cleared by a Service officer prior to Customs clearance and release. When live or perishable shipments of wildlife or wildlife products are expected or when inspection is requested at the time of arrival, the Service must be notified at least 48 hours prior to the estimated time of arrival. However, where a Service officer is not available within a reasonable time, live or perishable wildlife may be cleared by Customs officers subject to post- clearance inspection and investigation by the Service.
* * * * *
(f) Exports. The Service shall be notified and the shipment made available for inspection at least 48 hours prior to the estimated time of exportation of any wildlife.
11. Section 14.55 is amended by revising the introductory text of the section to read as follows:
SS 14.55 Exceptions to clearance requirements.
Except for wildlife requiring a permit pursuant to Part 17 and/or 23 of this Subchapter B, clearance is not required for importation of the following wildlife.
* * * * *
12. Section 14.61 is revised to read as follows:
SS 14.61 Import declaration requirements.
Except as otherwise provided by the regulations of this subpart, either a completed Declaration for Importation or Exportation of Fish or Wildlife (Form 3-177) signed by the importer or the importer's agency or an electronic Form 3-177, filed through the United States Customs Service Automated commercial System (ACS) by an authorized Customs broker using the Automated Broker Interface (ABI), shall be filed with the Service upon the importation of any wildlife at the place where Service clearance under SS 14.52 is requested. However, wildlife may be transshipped under bond to a different port for release from custody by Customs Service officers under 19 U.S.C. 1499. For certain antique articles as specified in SS 14.22, a Form 3-177 shall be filed with the District Director of Customs at the port of entry prior to release from Customs custody. All applicable information requested on the Form 3-177 shall be furnished and the importer, or the importer's agent, shall certify that the information furnished in true and complete to the best of his/her knowledge and belief.
13. Section 14.62 is amended by revising paragraph (a), by removing paragraph (b)(2) and by redesignating existing paragraphs (b)(3) and (b)(4) as paragraphs (b)(2) and (b)(3) respectively and revising them to read as follows:
SS 14.62 Exceptions to import declaration requirements.
(a) Except for wildlife requiring a permit pursuant to Part 17 and/or Part 23 of this Subchapter B, a Declaration for Importation or Exportation of Fish or Wildlife (Form 3-177) does not have to be filed for importation of shellfish and fishery products imported for the purposes of human or animal consumption, or taken in waters under the jurisdiction of the United States or on the high seas for recreational purposes;
(b) * * *
(2) Wildlife products or manufactured articles which are not intended for sale or exhibit for sale and are used as clothing or contained in accompanying personal baggage, except that a Form 3-177 must be filed for raw or dressed furs, for raw, salted, or crusted hides or skins; and for game or game trophies; and
(3) Wildlife products or manufactured articles which are not intended for sale or exhibit for sale and are a part of a shipment of the household effects or (sic) persons moving their residence to the United States, except that declaration
(Page 47219)
must be filed for raw or dressed furs, and for raw, salted, or crusted hides or skins. * * * * *
14. Section 14.64 is amended by revising paragraphs (a), (b)(1), and (b)(2) to read as follows:
SS 14.64 Exeptions (sic) to export declaration requirements.
(a) Except for wildlife requiring a permit pursuant to Part 17 and/or Part 23 of this subchapter B, a Declaration for Importation or Exportation of Fish or Wildlife (Form 3-177) does not have to be filed for the exportation of shellfish and fishery products exported for the purposes of human or animal consumption or taken in waters under the jurisdiction of the United States or on the high seas for recreational purposes, and does not have to be filed for the exportation of marine invertebrates of the Class Pelycopoda; species commonly known as oysters, clams, mussels, and scallops; and the eggs, larvae, or juvenile forms thereof exported for purposes of propagation, or research related to propagation.
(b) * * *
(1) Wildlife which is not intended for sale or exhibit for sale where the value of such wildlife is under $250; and
(2) Wildlife products or manufactured articles, including game trophies, which are not intended for sale or exhibit for sale and are used as clothing or contained in accompanying personal baggage or are part of a shipment of the household effects of persons moving their residence from the United States.
15. Section 14.81 is revised to read as follows:
SS 14.81 Marking requirement.
Except as otherwise provided in this subpart, no person may import, export, or transport in interstate commerce any container or package containing any fish or wildlife (including shellfish and fishery products) unless each container or package is conspicuously marked on the outside with both the name and address of the shipper and consignee. The entire shipment shall be accompanied by an accurate and legible list of its contents by scientific species name and the number of each species and whether or not the listed species are venomous.
16. Section 14.82 is amended by revising paragraphs (a)(1)(ii)(A), (a)(2), and (a)(3) to read as follows:
SS 14.82 Alternatives and exceptions to the marking requirement.
(a) * * *
(1) * * *
(ii) * * *
(A) The common name that identifies the species [examples include: chinook (or king) salmon; bluefin tuna; and whitetail deer] and whether or not the listed species is venomous; and
* * * * *
(2) Affixing the shipper's wildlife import/export license number preceded by the three letters "FWS" on the outside of each container or package containing fish or wildlife, if the shipper has a valid wildlife import/export license issued under the authority of 50 CFR Part 14. For each shipment marked in accordance with this paragraph, the records maintained under SS 14.93(c) must include a copy of the invoice, packing list, bill of lading, or other similar document which accurately states in information required by paragraph (a)(1)(ii) of this section.
(3) In the case of subcontainers or packages within a larger packing container, only the outermost container must be marked in accordance with this section. Provided, that for live fish or wildlife that are packed in subcontainers within a larger packing container, if the subcontainers are numbered or labeled, the packing list, invoice, bill of lading, or other similar document, must reflect that number or label. However, each subcontainer containing a venomous species must be clearly marked as venomous. * * * * *
17. Section 14.91 is amended by revising paragraphs (a) and (c) to read as follows:
SS 14.91 License requirement.
(a) Prohibition. Except as otherwise provided in this subpart, it is unlawful for any person to engage in business as an importer or exporter of wildlife without first having obtained a valid import/export license from the Director. * * * * *
(c) Certain persons required to be licensed. The definition in paragraph (b) of this section includes, but is not limited to, persons who import or export wildlife for commercial purposes:
(a) For trade, sale, or resale, such as animal dealers, animal brokers, pet dealers, pet suppliers, and laboratory research suppliers;
(2) In the form of fur for tanning, manufacture, or sale, such as fur trappers, fur dealers, fur brokers, and fur manufacturers;
(3) In the form of hides and skins for tanning, manufacture, or sale, such as hide, skin and leather dealers, brokers, manufacturers and processors;
(4) In the form of products (such as garments, bags, shoes, boots, jewelry, rugs, or curios) for sale, such as wholesalers, retailers, distributors, and brokers;
(5) As taxidermists importing and exporting wildlife in connection with the mounting, processing, or storage of trophies or specimens; and
(6) As freight forwarders.
(7) In the form of food products taken from populations of don-domesticated animals.
18. Section 14.92 is amended by revising paragraphs (a)(1), (a)(2), (a)(3), (a)(4) and adding (a)(5) and (a)(6), and by revising (b)(1), (b)(2), (b)(4), and (b)(5) and by removing paragraph (b)(6) to read as follows:
SS 14.92 Exceptions to license requirement.
(a) * * *
(1) Shellfish and fishery products which do not require a permit under Part 17 and/or Part 23 of this Subchapter B and which are imported or exported for purposes of human or animal consumption;
(2) Shellfish and fishery products which do not require a permit under Part 17 and/or Part 23 of this Subchapter B and which are taken in waters under the jurisdiction of the United States or on the high seas for recreational purposes;
(3) Fox, nutria, rabbit, mink, chinchilla, marten, fisher, muskrat, and karakul or their products if the animals have been bred and born in captivity;
(4) Live farm-raised fish and farm-raised eggs of species not requiring a permit under Parts 17 or 23 of this subchapter B which are being exported;
(5) Marine invertebrates of the Class Pelycopoda; species commonly known as oysters, clams, mussels, and scallops; and the eggs, larvae, or juvenile forms thereof exported for purposes of propagation, or research related to propagation; and
(6) Pearls imported for commercial purposes.
(b) * * *
(1) Common carriers when engaged as a transporter and not as the importer or exporter of record;
(2) Custom house brokers when engaged as an agent and not as the importer or exporter of record; * * * * *
(4) Federal, State, or municipal agencies; or
(5) Circuses importing or exporting wildlife for exhibition purposes only and not for purchase, sale, barter, or transfer of such wildlife.
19. Section 14.93 is amended by revising paragraphs (c)(4) and (c)(5) to read as set forth below, and by removing paragraph (f).
(Page 47220)
SS 14.93 License application procedure, conditions, and duration.
* * * * *
(c) * * *
(4) Subject to applicable limitations of law, duly authorized Service officers at all reasonable times shall, upon notice, be afforded access to the licensee's places of business, be afforded an opportunity to examine the licensee's inventory of imported wildlife and the records required to be kept under paragraph (c)(1) of this section, and an opportunity to copy such records;
(5) Licensees shall, upon written request by the Director, submit within 30 days of such request a report containing the information required to be maintained by paragraph (c)(1) of this section, and * * * * *
20. Section 14.94 is added to subpart I to read as follows:
SS 14.94 Fees.
(a) Overtime Fees. Importers or exporters of wildlife may be charged a fee for overtime in addition to the inspection fee for inspections which begin before normal working hours, which extend beyond normal working hours, or are on a holiday, Saturday, or sunday if the following conditions are met:
(1) The wildlife being imported or exported is part of a commercial shipment; and
(2) The importer/exporter requested that the inspection be performed outside normal work hours. If a live or perishable shipment is presented for inspection during normal work hours but the inspection cannot be performed during normal work hours on that day, the importer/exporter will be given the option of selecting to have the inspection performed later during normal work hours or being charged for overtime. The Service's ability to perform inspections during overtime hours for non-perishable shipments will depend on the availability of Service personnel.
(b) Overtime Fee Parameters. The following parameters shall be followed when calculating fees to be collected for overtime:
(1) Inspection time commences when a Service officer departs their residence or official duty station en route to the inspection site and terminates when they return to the point of departure or official duty station.
(2) For an inspection beginning less than 1 hour before normal work hours, 1 hour of time will be charged, at an hourly rate of 1 1/2 times the average hourly rate of a journeyman level Wildlife Inspector. For all other inspections performed outside of normal work hours or on a Saturday, a minimum of 2 hours of time will be charged, at an hourly rate of 1 1/2 times the average hourly rate of a journeyman level Wildlife Inspector.
(3) Any inspection which continues in excess of the 2-hour minimum will be charged in quarter hour increments. Inspection time of 10 minutes or more will be rounded up to the next quarter hour and any time less than 10 minutes will be disregarded.
(4) Inspections performed on a holiday or a Sunday will be charged a minimum of 2 hours at twice the average hourly rate of a journeyman level Wildlife Inspector.
(c) Nondesignated Port Fees. Fees for inspections performed at nondesignated ports shall be a minimum of 2 hours at 1 1/2 times the average hourly rate of a journeyman level Wildlife Inspector plus the administrative fee in accordance with 50 CFR 14.32(c)(2) and 14.33(c)(2)
(d)(1) Schedule.
(Table)
GENERAL FEES
License fee.....$50 per year
Inspection fee.....Each licensee shall pay an inspection fee of $55 per shipment for each wildlife shipment
imported into or exported from the United States.
(end Table)
(2) General Calculation of Inspection Fees.
(Table)
INSPECTION FEE SCHEDULE
Inspections at Designated port beginning before normal work hours:
Administrative fee.....$55
Up to 1 hour before normal work hours.....30.00
More than 1 hour before normal work hours.....2 hour minimum at $30.00 per hour.
Inspections at Designated port Outside normal work hours (including Saturdays)
Administrative fee.....55
Less than 2 hours.....2 hour minimum at $30.00 an hour
Exceeds 2 hours.....Quarter hour multiples ($7.50 per quarter hour) Service time. 10 minutes or more
rounded to the next quarter hour, less than 10 minutes is disregarded. Plus 2 hour minimum.
Inspections at all ports during Sundays and Holidays.....2 hour minimum at the rate of $40.00 per hour
Administrative fee.....55
Inspections at Non-Designated ports, border and special ports.....2 hour minimum at the rate of $30.00 per hour.
Administrative fee.....55
(End Table)
(3) No fee or any portion of any license or inspection fee shall be refundable or payment of fee excused because importation or clearance of wildlife shipment is refused for any reason.
Dated: August 19, 1994
George T. Frampton, Jr., Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 94-22542 Filed 9-13-94; 8:45 am]
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