[Federal Register Volume 73, Number 237 (Tuesday, December 9, 2008)]
[Rules and Regulations]
[Pages 74615-74631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29070]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 14

[FWS-R9-LE-2008-0024; 99011-1224-0000-9B]
RIN 1018-AV31


Importation, Exportation, and Transportation of Wildlife; 
Inspection Fees, Import/Export Licenses, and Import/Export License 
Exemptions

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), publish this 
final rule to revise subpart I--Import/Export Licenses, of title 50 of 
the Code of Federal Regulations, part 14 (50 CFR 14), to clarify the 
import/export license and fee requirements, adjust the inspection fee 
schedule, and update license and inspection fee exemptions. We are 
clarifying when an import/export license is required by persons who 
engage in the business of importing and exporting wildlife as well as 
changing the license requirement exemptions. Revised regulations will 
help those importing and exporting wildlife better understand when an 
import/export license is required and will allow us to consistently 
apply these requirements. We are gradually increasing inspection fees, 
and now publishing the changes for 2008 through 2012. We determined 
that these inspection fees must be adjusted every year to cover the 
increased cost of providing inspection services. Because we are 
publishing these inspection fee changes now, importers and exporters 
can accurately predict the costs of importing and exporting wildlife 
several years in advance.

DATES: This final rule is effective January 8, 2009.

FOR FURTHER INFORMATION CONTACT: Kevin Garlick, Special Agent in 
Charge, Branch of Investigations, Office of Law Enforcement, U.S. Fish 
and Wildlife Service, telephone (703) 358-1949, fax (703) 358-1947.

SUPPLEMENTARY INFORMATION:

Public Assistance for Import/Export Questions

    We highly recommend that you contact our wildlife inspectors about 
importing and exporting procedures and requirements before you import 
or export your wildlife. We have wildlife inspectors stationed at 
numerous ports throughout the country. You can find contact information 
for our wildlife inspectors on our Web site at: http://www.fws.gov/le/ImpExp/inspectors.htm. In addition, the Service has a telephone hotline 
that is staffed Monday through Friday, 8 a.m. through 8 p.m. Eastern 
time, to provide assistance for any questions you may have regarding 
importing and exporting wildlife, at 1-800-344-WILD.

Background

    We have oversight responsibilities under statutory and regulatory 
authority to regulate the importation, exportation and transportation 
of wildlife. Consistent with this authority, we have established an 
inspection program to oversee the importation, exportation, and 
transportation of wildlife and wildlife products. In support of our 
program activities, we promulgated regulations contained in 50 CFR 14 
to provide individuals and businesses with guidelines and procedures to 
follow when importing or exporting wildlife, including parts and 
products. These regulations explain the requirements for individuals or 
businesses importing or exporting wildlife for commercial purposes, or 
for people moving their household goods, personal items, or pets, as 
well as the exemptions provided for specific activities or types of 
wildlife. The regulations at 50 CFR 14 provide individuals and 
businesses with the specific ports and locations where these activities 
may be conducted and any fees that may be charged as a result of these 
activities.

Final Rule

    The following parts of this preamble explain the final rule and 
present discussion of the substantive issues of each section that we 
are changing in subpart I of part 14, along with our responses to 
comments we received on the proposed rule. The final rule largely 
implements the changes we described in the proposed rule but makes some 
adjustments based upon public comments. We are changing the 
requirements for an import/export license, how to apply for an import/
export license, what inspection fees apply to importers and exporters, 
and what exemptions we apply to licenses and fees.
    On February 25, 2008, we published a proposed rule in the Federal 
Register (73 FR 9972) revising 50 CFR 14, Subpart I. The public comment 
period remained open until April 25, 2008. In addition, we sent letters 
to organizations and associations that represent businesses that could 
be affected by the rulemaking. We wanted to ensure that these entities 
had an opportunity to review and comment on our proposed rule.
    In response to this proposed rule, we received 72 comments from the 
public. These included comments from industry representatives importing 
or exporting fur, aquacultured white sturgeon, elk, deer, mother-of-
pearl shell, tropical fish, corals, insects, seafood products, and 
other wildlife commodities, as well as comments from one foreign 
embassy and several trade councils, associations, and non-governmental 
organizations. Four of the comments were unrelated to the proposed rule 
and are not discussed below. We also held a public meeting on April 3, 
2008, that was attended by 14 persons. Two commenters provided oral 
comments at the meeting. The majority of comments we received were in 
writing and pertained to changes in the inspection fee structure. Many 
comments were form letters that were identical or nearly identical in 
content. Many comments provided variations on the same substantive 
issues and ranged from strongly supportive to strongly critical.

Our Changes to Import/Export License Requirements (Sec.  14.91--When do 
I need an import/export license?)

    We are removing the definition of ``engage in business as an 
importer or exporter of wildlife,'' because the elements of the 
definition are already expressed in the current definition of 
``commercial,'' and the broader definition of commercial more 
accurately reflects what we consider as ``engaging in business.''
    We are removing the existing section on certain persons required to 
be licensed, Sec.  14.91(c), and replacing it with a table that 
provides examples of when we consider persons to be engaging in 
business as an importer or exporter of wildlife. We are limiting who 
should be licensed to those persons directly involved with importing 
and exporting wildlife. Therefore, we are

[[Page 74616]]

eliminating requirements for persons who are indirectly involved with a 
shipment either before or after our clearance of the shipment. Based 
upon comments, we added one example related to hobbyists and commercial 
activities and one example regarding hunting trophies to the table. We 
also made changes to the language in other examples to further clarify 
when we require an import/export license.

Comments on Our Proposed Changes to Sec.  14.91

    Three commenters responded to the changes in this section. One 
commenter representing 11 nongovernmental organizations agreed with our 
use of the definition of commercial to replace the phrase ``engage in 
business.''
    We received one comment stating we should not treat imports of 
hunting trophies as commercial shipments when they are consigned in the 
hunter's name in care of a taxidermist or tannery. We agree with the 
commenter and have added an example to reflect this. Imports of 
personal hunting trophies for a hunter that are shipped in care of a 
taxidermist or tannery are not considered commercial shipments. We 
recognize that many hunting trophies imported by a hunter are sent 
directly to a taxidermist for preparation after import clearance. The 
commercial work that is conducted domestically after clearance does not 
cause a personal trophy import to be considered commercial.
    One commenter representing 11 nongovernmental organizations 
suggested several changes to the table in Sec.  14.91(c). One comment 
suggested we change Sec.  14.91(c)(4) to include laboratory suppliers. 
We agree and have updated the table accordingly. Another suggestion was 
that we change Sec.  14.91(c)(5) to include the phrase ``of personally 
owned live wildlife (pets).'' We agree with the concept and have 
updated the table accordingly. A final suggestion was that we change 
Sec.  14.91(c)(6) regarding hobbyists to include the phrase 
``individual owner of personal and household effects'' and limit this 
example to previously owned specimens. We decline to adopt this 
suggestion since we do not believe the narrowing of this example to 
personal or household effects that are previously owned specimens would 
be appropriate. All noncommercial imports and exports for personal use 
are exempt from the import/export license whether or not they are 
shipped as a personal or household effect or are previously owned. This 
example remains unchanged from the proposed rule.

Our Changes to Exemptions to Import/Export License Requirements (Sec.  
14.92--What are the exemptions to the import/export license 
requirements?)

    We are removing two exemptions from our import/export license 
requirements for businesses that import or export products from several 
mammal species that have been bred and born in captivity and for 
circuses that import or export wildlife.
    Until the effective date of this final rule, our regulations have 
allowed businesses that exclusively import or export chinchilla, 
fisher, fox, marten, mink, muskrat, and nutria that have been bred and 
born in captivity, and products of these animals, to conduct business 
without obtaining an import/export license. If a particular business 
chooses to import or export wild specimens of these species or species 
other than those listed above, they must obtain an import/export 
license. Upon the effective date of this final rule, we are removing 
the import/export license exemption in Sec.  14.92 for businesses that 
exclusively import or export chinchilla, fisher, fox, marten, mink, 
muskrat, and nutria that have been bred and born in captivity or 
products of these animals.
    Our current import/export license regulations also exempt 
businesses that import or export products from the rabbit and karakul. 
The karakul, which is a variety of the domestic sheep, and the rabbit 
are defined as domesticated species and, therefore, are already 
exempted from all Service import or export requirements.
    Our import/export data show that the majority of businesses that 
import or export mammals or products made from mammals do not deal 
exclusively in chinchilla, fisher, fox, marten, mink, muskrat, and 
nutria that have been bred and born in captivity. Rather, most 
businesses deal in a mixture of these species and other species that do 
not qualify for the import/export license exemption, or the trade is in 
wild-caught specimens. Only approximately 1.5 percent of the shipments 
declared to us in fiscal year 2005 consisted exclusively of captive-
bred specimens of the above-listed species. Although many businesses 
have not taken advantage of the exemption, any exempted shipments still 
require our inspection and clearance.
    All other wildlife types that are identified as being exempt from 
the import/export license, such as certain shellfish and nonliving 
fishery products, are also wildlife that the Endangered Species Act (16 
U.S.C. 1531 et seq.) or these regulations have exempted from inspection 
and clearance. No statutory or regulatory inspection or clearance 
exemptions are provided for captive-bred mammals or their products. 
This exemption has had the unfortunate consequence of creating a 
monetary incentive for the global trade community to falsely declare 
wild mammal specimens as captive-bred upon import into the United 
States. In addition, due to shipping and other business practices, 
importers of foreign-sourced mammal products imported into the United 
States are more likely to declare the products as captive-bred for 
purposes of claiming the exemption than exporters of U.S.-sourced 
mammal products.
    Because these specific captive-bred mammal shipments are exempt 
from the import/export license requirements, the corresponding 
importers or exporters are not required to maintain records of their 
imports or exports or any subsequent dispositions and do not have to 
provide the Service with access to these records or inventories of 
wildlife upon reasonable notice. The lack of recordkeeping requirements 
and access to these records hinders our ability to investigate 
instances of false declarations. These corresponding importers and 
exporters are also exempt from paying inspection fees and filing 
reports with the Service upon request. Because of all the problems that 
have resulted from this exemption, we are removing the exemption to the 
import/export license requirements for persons engaging in the business 
of importing or exporting shipments containing only chinchilla, fisher, 
fox, marten, mink, muskrat, and nutria that have been bred and born in 
captivity or their products.
    We also have determined that circuses will no longer qualify for 
the exemption from our import/export license requirements. Our current 
import/export regulations allow certain persons and businesses, 
including circuses, to import or export wildlife without obtaining an 
import/export license. However, with the exception of circuses, it is 
apparent that these exempt businesses or organizations, which include 
common carriers, custom house brokers, public museums, scientific or 
educational institutions, and government agencies, are not engaging in 
business as importers or exporters of wildlife. While circuses 
typically do not import or export wildlife for resale, they do import 
or export wildlife to stimulate additional business through ticket 
sales or other promotions.
    We clarify that importers and exporters of shellfish and nonliving 
fishery products are exempt from the import/export license requirement. 
We

[[Page 74617]]

had proposed to change the language in this section to ``nonliving fish 
products,'' which reflects the historical working implementation by the 
Service of this exemption. The Service defines shellfish in 50 CFR 
10.12 as ``an aquatic vertebrate with a shell including but not limited 
to, (a) an oyster, clam, or other mollusk; and (b) a lobster or other 
crustacean; or any other part, product, egg, or offspring thereof, or 
the dead body or parts thereof (excluding fossils), whether or not 
included in a manufactured product or in a processed food product.'' 
The Service has also long defined fishery products as nonliving fish 
products. However, based upon comments received, we retained the 
original wording of ``fishery product'' but accepted the change of 
``nonliving.'' This change makes it clear that the Service considers 
only dead fishery products to be granted the exemption. Nothing in this 
wording change affects how the Service implements this exemption.

Comments on Our Proposed Changes to Sec.  14.92

    We received 12 comments from commenters related to our proposal to 
remove the exemption to the import/export license requirements for 
persons engaging in the business of importing or exporting shipments 
containing only chinchilla, fisher, fox, marten, mink, muskrat, and 
nutria that have been bred and born in captivity or their products. 
Nine commenters representing U.S. retail businesses, a U.S. fur 
industry coalition, a Canadian fur industry coalition, and the 
government of Canada strongly opposed the elimination of the import/
export license exemption because of ``increased costs for shipping furs 
and fur products between the United States and Canada.''
    Several commenters opposed to the elimination stated that the 
elimination would create an inequity of treatment between the United 
States and Canada because Canada does not charge for inspections of 
wildlife. Other commenters argued that elimination of the exemption 
undermines the North American Free Trade Agreement (NAFTA) and one 
commenter argued the elimination is contrary to U.S. obligations under 
the General Agreement on Tariffs and Trade (GATT). Another commenter 
stated the elimination of the exemption represented a discriminatory 
action against small retailers and manufacturers. Two commenters stated 
that if cost recovery was our objective, then we should remove all 
exemptions.
    Three commenters representing 11 nongovernmental organizations 
strongly supported the elimination of the exemption that in their view 
had created incentives to falsely declare wild animals as captive-bred. 
One commenter stated that the exemption hampered the Service's ability 
to track the trade and any possible impacts on wildlife populations, 
while another commenter stated that removal would weaken the ability of 
the trade to falsely declare wild-source products as from captive-bred 
animals. One commenter stated that in the interest of fairness the 
exemptions should be revoked and that it was ``unclear why for-profit 
endeavors'' had ever been exempted since ``these businesses should 
share in the funding of the inspection program in tandem with other 
commercial traders.''
    As previously stated, most businesses deal in a mixture of these 
species and other fur-bearing species that do not qualify for the 
import/export license exemption, or the trade is in wild-caught 
specimens. For those shipments that do qualify, we still must provide 
inspection and clearance services to fulfill our legal mandates. In 
addition, as noted previously, retention of this exemption would allow 
some members of the trade to continue to falsely declare the source of 
their specimens in order to receive a fee exemption and our inability 
to review import records would not allow us to detect these false 
practices. This exemption has had the unintended consequences of 
unfairly granting a fee exemption primarily to foreign-origin goods. 
Finally, as discussed throughout this rule, we do not find it fair that 
nonexempt businesses pay more than their share of the costs in order 
for us to recover the costs not paid by exempt businesses. See the 
preamble discussion associated with inspection fees (Our Changes to 
Inspection Fees; Sec. 14.94--What fees apply to me?), for a further 
discussion on fees related to this exemption.
    We have determined that removing this exemption is wholly 
consistent with the United States' obligations under NAFTA and GATT 
because the exemption provided an advantage to businesses that deal 
exclusively in chinchilla, fisher, fox, marten, mink, muskrat, and 
nutria that have been bred and born in captivity. Besides, GATT clearly 
permits the recovery of costs for services rendered to importers and 
exporters. In addition, neither GATT nor NAFTA overrules our 
obligations to regulate the international wildlife trade under the 
Convention on International Trade in Endangered Species (CITES) or 
stricter U.S. conservation laws, provided we do so in a non-
discriminatory manner. Those currently not receiving the exemption pay 
a disproportionate share of the costs of the inspection program. The 
final rule establishes a level playing field.
    Although some countries do not currently charge for import/export 
related services, inspection fees for these types of services are being 
adopted by more and more countries. In the United States, commercial 
importers and exporters of wildlife must have permission to engage in 
the business of importing or exporting wildlife, file required 
declarations, and receive clearance from the Service. These are not 
activities that the general taxpayer engages in and thus the recipient 
of these services should be responsible for paying for the costs of 
these services. We are not making any changes to the rule in response 
to these comments.
    We received four comments in response to our proposal to eliminate 
the import/export license exemption for circuses. As previously 
mentioned, two commenters stated that if cost recovery was our 
objective, then we should remove all exemptions. One commenter strongly 
concurred that circuses should no longer qualify for exemption since 
the ``circus trade results in high profits for this industry.'' Another 
commenter strongly supported the removal of the exemption since 
commercial entertainment such as circuses, magic acts, and animal acts 
are for-profit businesses. We agree that circuses are importing and 
exporting for commercial purposes. We are therefore removing the 
exemption from the import/export license requirements. We consider 
shipments of wildlife imported or exported as part of commercial 
entertainment, such as magic acts or animal shows, commercial as well 
and are not exempting them from import/export license requirements.
    Seven commenters representing the seafood industry and the National 
Oceanic and Atmospheric Administration National Marine Fisheries 
Service (NOAA-Fisheries) provided comments related to the proposed 
wording in Sec.  14.92 regarding the exemption from the import/export 
license requirements for certain shellfish and nonliving fish products. 
The comments addressed shipments of squid, octopus, and cuttlefish. All 
of the comments from industry opposed the change in wording because of 
what they perceived to be a narrowing of the exemption and a creation 
of new requirements for squid, octopus, and cuttlefish. As stated 
above, the change in wording does not affect the way the Service 
currently implements the exemption.
    One commenter stated that the legislative history of the Endangered

[[Page 74618]]

Species Act (ESA; 16 U.S.C. 1531 et seq.) suggests that Congress 
intended to exempt squid from licensing requirements. We disagree. 
Nothing in the legislative history of the ESA provides guidance on what 
species are included in the statutory exemption. Indeed the same 
commenter also indicates that the initial House bill, the Senate bill, 
and the Conference report all failed to provide any explanations as to 
what was intended to be covered by the exemption. Several commenters 
referred to other legislation, such as the Saltonstall-Kennedy Act and 
the Magnuson-Stevens Act, which include squid as a fishery product. We 
note, however, that the referenced pieces of legislation have overly 
broad definitions of both ``fish'' and ``fishery products'' that in 
many instances include all aquatic plants and animals. Nothing in these 
references requires us to apply these definitions to wildlife shipments 
regulated under the ESA.
    NOAA-Fisheries, our partner agency in oversight of these species, 
commented that both the Magnuson-Stevens Act provisions and the 
regulations of the agency's Northeast Region lack a clear definition of 
shellfish. The NOAA-Fisheries commenter referenced a definition of 
shellfish from the United Nations Food and Agriculture Organization 
that states ``shellfish includes both mollusks, such as clams, and 
crustaceans, such as lobsters,'' as well as the Service's definition of 
shellfish, and stated that their understanding is that organisms in the 
class Cephalopoda are shellfish. While we would agree that squid, 
octopus, and cuttlefish are mollusks, we do not consider them to be an 
aquatic invertebrate with a shell as is required under the definition 
and is shown through examples in the definitions. NOAA-Fisheries 
requested that we provide clarification in the rule on the definition 
of shellfish and requested that the Service change the language in the 
rule from ``Shellfish and fishery products'' to ``Shellfish, as defined 
by 50 CFR 10.12, and nonliving fishery products.'' Although nothing in 
this wording changes our implementation of the exemption, we accepted 
these comments and changed the language accordingly.
    Several comments we received from industry questioned our authority 
to regulate shipments of squid, octopus, cuttlefish, and other seafood. 
The ESA provides the Service with broad authority to regulate the 
import and export of fish and wildlife through licensing of importers 
and exporters, inspecting shipments, and charging and retaining 
reasonable fees for processing applications and performing inspections. 
This authority is not limited to endangered or threatened species or 
those protected under CITES.
    Several of these commenters referenced the Reorganization Plan 4 of 
1970 and a memorandum of understanding between NOAA-Fisheries and the 
Service transferring certain responsibilities to NOAA-Fisheries. 
Nothing in the reorganization plan transferred the authority for 
imports and exports of wildlife to NMFS. In fact, regulations at 50 CFR 
222.205 state that importers or exporters of fish or wildlife subject 
to NMFS jurisdiction should refer to our regulations at 50 CFR 14 for 
importing and exporting requirements. We also note that NOAA-Fisheries 
submitted comments on this exemption and not only did not question our 
authority but indicated it looked ``forward to working with FWS in 
advancing environmentally sound import/export regulations.''
    Several commenters complained about the Service's selective 
enforcement of this exemption. We are aware of the inconsistencies in 
enforcement at our ports and are working nationwide to implement the 
requirements consistently. We note that the Service currently does not 
have direct access to manifest or entry information provided to U.S. 
Customs and Border Protection (CBP) and relies heavily upon the import/
export community to comply with our regulatory requirements. Working 
with CBP and our partners in the U.S. Food and Drug Administration, we 
hope to gain greater compliance from the trade and consistent 
application of the requirements.
    Several commenters stated that the removal of the shellfish 
exemption would create a financial burden and that we had provided an 
inaccurate analysis of the costs of adding this new requirement. We are 
not removing the exemption or adding requirements associated with 
shellfish and nonliving fishery products. As we stated earlier, nothing 
about the language change in this rule affects the way we currently 
implement the exemption.

Our Changes to Import/Export License Application Requirements (Sec.  
14.93--How do I apply for an import/export license?)

    We are removing the specific additional information language from 
the current Sec. 14.93(b) because we updated the import/export license 
application form, FWS Form 3-200-3, to include this additional specific 
information. We are also reorganizing the license conditions section 
for clarity and to add the requirement that importers and exporters are 
responsible for providing current contact information, including an 
address, that the Service will use for official notifications.
    For clarity, we are reorganizing the section that outlines 
issuance, denial, suspension, revocation, or renewal of an import/
export license. We are also adding two new factors that are grounds for 
suspension, revocation, denial, or renewal of an import/export license. 
Although these factors are already generally covered by the regulations 
in part 13 of subchapter B of chapter I of title 50 of the Code of 
Federal Regulations, we wish to highlight these two factors for 
wildlife importers and exporters. We are going to consider repeated 
failure to provide the required prior notification for certain 
shipments as possible grounds for action against an existing import/
export license holder or during consideration of a new or renewal 
import/export license application. Failure by importers or exporters to 
provide this required notification risks the health or condition of 
live and perishable shipments because of clearance delays and requires 
us to accommodate last-minute inspection schedule changes that directly 
impact the schedules of other importers or exporters.
    We are also adding the repeated import or export of certain types 
of wildlife without following the requirements in this subpart as 
grounds for action against an existing import/export license holder or 
during consideration of a new or renewal import/export license 
application. This repeated failure to follow requirements for certain 
wildlife imports or exports may result in a restriction of the license 
to disallow engaging in business with those particular types of 
wildlife while still allowing the importer or exporter to continue to 
engage in business with other wildlife.

Comments on Our Proposed Changes to Sec.  14.93

    We received one comment from a license holder related to our 
addition of repeated failure to provide prior notification as a 
criterion for taking action against an import/export license holder. 
The commenter stated we should clearly indicate that denial should be 
made only where the violations can be considered egregious. The 
commenter requested that we include examples of what those egregious 
violations might be.
    We consider the repeated failure to provide prior notification to 
be a serious violation. As we stated in the proposed

[[Page 74619]]

rule, failure by importers or exporters to provide this required 
notification risks the health or condition of live and perishable 
shipments. It causes clearance delays and requires us to accommodate 
last-minute inspection schedule changes that directly impact the 
schedules of other importers or exporters. Importers and exporters 
wishing to engage in the business of importing or exporting wildlife 
must receive the Service's permission in order to do so. We believe 
that continual failure to abide by Service import/export requirements 
should subject a license holder to the potential denial of an import/
export license. The general permit conditions in 50 CFR part 13 do not 
limit the use of this denial authority to only egregious violations, 
and therefore we have not changed the rule based upon this comment.
    We received two comments suggesting that the Service should define 
``repeated'' in the context of revoking or not reissuing import/export 
licenses, with one commenter suggesting we replace ``repeatedly'' with 
``more than once.'' We decline to accept these comments. We feel that 
the terms ``repeated'' and ``repeatedly'' give sufficient guidance in 
the context of revoking or not reissuing import/export licenses, and 
that in some circumstances, more than one violation may not warrant 
revocation or not reissuing an import/export license.

Our Changes to Inspection Fees (Sec.  14.94--What fees apply to me?)

    This final rule implements the fee structure described in the 
proposed rule. We clarified it to state that if updates to the fee 
schedule are not in place by December 31, 2012, the fees from 2012 will 
apply to shipments from 2013 and beyond until a new fee structure is in 
place. As we stated in the proposed rule, the regulations in 50 CFR 14 
contain an inspection fee schedule for inspections of wildlife 
shipments. We are changing the inspection fee structure and will 
generally increase inspection fees to cover the increased cost of 
providing these services and the required support.
    The inspection fees currently apply primarily to commercial 
importers and exporters whose shipments of wildlife are declared to, 
and inspected and cleared by, Service wildlife inspectors, to ensure 
compliance with wildlife protection laws. These fees are not intended 
to fully fund the wildlife inspection program, which includes both a 
compliance monitoring function involving services to the trade 
community and a vital smuggling interdiction mission focused on 
detecting and disrupting illegal wildlife trade. The fee increase 
appropriately focuses only on recovering costs associated with services 
provided to importers and exporters engaged in legal wildlife trade.
    In developing this final rule, the Service is guided by the 
Independent Offices Appropriations Act of 1952, codified at 31 U.S.C. 
9701 (``the User Fee Statute''), which provides that services provided 
by Federal agencies are to be ``self-sustaining to the extent 
possible.'' The Act allows for agencies to prescribe regulations 
establishing charges for services provided. Each charge is to be fair 
and based upon costs to the government, the value of the service to the 
recipient and the public policy or interest served. The Act also 
authorizes the establishment of charges for special benefits provided 
to a recipient that are at least as great as costs to the government of 
providing the special benefits.
    We are also guided by the Office of Management and Budget (OMB) 
Circular No. A-25, Federal user fee policy, which establishes Federal 
policy regarding fees assessed for government services. It provides 
that user fees will be sufficient to recover the full cost to the 
Federal Government of providing the service, will be based on market 
prices, and will be collected in advance of, or simultaneously with, 
the rendering of services. The policy requires Federal agencies to 
recoup the costs of ``special services'' that provide benefits to 
identifiable recipients.
    The ESA (16 U.S.C. 1540(f)) also authorizes the Service to charge 
and retain reasonable fees for processing applications and for 
performing reasonable inspections of importation, exportation, and 
transportation of wildlife. The benefit of inspection fees is the shift 
in the payment of services from taxpayers as a whole to those persons 
who are receiving the government services.
    While taxes may not change by the same amount as the change in 
inspection fee collections, there is a related shift in the 
appropriations of taxes to government programs, which allows those tax 
dollars to be applied to other programs that benefit the general 
public. Therefore, there could be a relative savings to taxpayers as a 
result of the changes in inspection fees.
    The inspection and clearance of wildlife imports and exports is a 
special service provided to importers and exporters who are authorized 
to engage in activities not otherwise authorized for the general 
public. Our ability to effectively provide these services and the 
necessary support for these services depends on inspection fees. 
Although the Service began collecting inspection fees in February 1986, 
we have been unable to achieve full cost recovery as several categories 
of importers and exporters have been exempt from paying fees, and fees 
were not established at levels that would cover all costs of the 
services provided to the trade community. Inspection fees currently 
recover less than half the costs of the inspection program. Exempt 
businesses have included most noncommercial importers/exporters; 
companies dealing in specific captive-bred or personally trapped furs, 
meat from bison, ostrich, and emu, and aquacultured sturgeon food 
items; and circuses.
    The inspection fee schedule in Sec. 14.94 we are modifying has been 
in place since 1996. These fees were calculated based solely upon the 
salary and benefits of a journeyman-level wildlife inspector and did 
not attempt to recover other costs of conducting compliance inspections 
and providing clearance services to the wildlife trade community. 
Before the effective date of this final rule, commercial importers or 
exporters (i.e., entities that hold a Service import/export license) 
have paid a flat rate of $55 per shipment for inspections at designated 
ports during normal working hours. Additional per-hour charges have 
been applied when inspections are conducted outside normal working 
hours; non-licensees receiving inspections outside normal working hours 
also paid these hourly charges.
    All importers or exporters, whether licensed or not, have paid a 
$55 administrative fee for inspections at a staffed nondesignated port, 
plus a 2-hour minimum of $20 per hour for inspections during normal 
working hours. Higher hourly charges applied to inspections outside 
normal working hours. Importers and exporters whose inspections occur 
at nondesignated ports that are not staffed by Service inspectors have 
been charged all costs associated with providing the inspection, 
including salary, travel, transportation, and per diem costs.
    Under this final rule, the inspection fee structure consists of a 
flat rate base inspection fee based upon the type of port ($85 for 
designated ports or ports acting as designated ports; $133 for staffed, 
nondesignated ports; and $133 for nonstaffed, nondesignated ports) that 
reflects the recovery of specific direct and indirect costs; and two 
premium inspection fees, each $19, reflecting additional labor costs 
associated with specific types of commodities. The inspection fee 
structure also provides for overtime fees. The inspection fees

[[Page 74620]]

reflect the cost of the services provided for routine shipments, 
shipments that contain species that are protected by Federal law or 
international treaty, and shipments that contain live specimens. 
Routine shipments are charged a base inspection fee based upon the type 
of port. Shipments containing protected species or live specimens are 
charged a premium inspection fee in addition to any applicable base 
inspection fee. If a shipment contains both protected species and live 
specimens, we charge two premium inspection fees in addition to any 
applicable base inspection fee.
    For commercial shipments at designated ports, our regulations have 
required an inspection fee of $55. The new inspection fee structure 
requires an $85 base inspection fee for inspections at these ports. 
Upon the effective date, these shipments are subject to an additional 
$30 in inspection fees per shipment (a change from $55 to $85) in 2008 
under the new fee structure. A further increase of $8 is spread out 
over the next 4 years (2009-2012), to yield an inspection fee of $93 in 
2012 for a routine shipment at a designated port. For fiscal year 2005, 
approximately half of the shipments at designated ports did not contain 
species that are protected by Federal law or international treaty or 
live specimens and would be considered routine shipments under these 
regulations.
    In addition to the nonstaffed, nondesignated port base inspection 
fee ($133 in 2008, rising to $145 by 2012), all importers or exporters 
who use these types of ports will be required to pay any associated 
travel and per diem expenses needed for our wildlife inspector to 
conduct an inspection at these ports. Until this final rule becomes 
effective, our current regulations require importers or exporters who 
use these types of nonstaffed ports to pay these travel and per diem 
expenses, plus the salary of the wildlife inspector conducting the 
inspection, in addition to a base hourly administrative fee. However, 
the new fee structure simplifies the fees for a nonstaffed, 
nondesignated port to consist of a flat rate base fee of $133 in 2008 
to use these ports, which incorporates the salary of the wildlife 
inspector conducting the inspection, in addition to any travel and per 
diem costs. Importers and exporters using this type of port are also 
responsible for payment of premium fees if their shipment includes live 
or protected specimens, as is the case at the other types of ports.
    We are publishing 5 years' worth of fees, for the period 2008-2012, 
and applying an inflation factor to the base fees, premium fees, and 
overtime fees. Throughout the 5-year period, we will increase the base 
inspection fees annually, based upon inflation, using the Gross 
Domestic Product (GDP) indices. We will increase the premium inspection 
fees gradually over the 5-year period, reflecting both inflation and a 
gradual move to 100-percent cost recovery. Because we are publishing 
these inspection fee changes for a 5-year period, importers and 
exporters of wildlife can incorporate these fee increases into their 
budget planning. Within the 5-year period, we will publish a proposed 
rule on inspection fees that will be effective for the year 2013 and a 
number of years beyond, to be determined. In the event the rulemaking 
establishing inspection fees for 2013 and beyond is delayed beyond 
December 31, 2012, the inspection fees in this final rule for the year 
2012 will be in effect for the year 2013 and beyond, as needed, until 
the updated rulemaking is finalized.

Comments on Our Proposed Changes to Sec.  14.94

    We received 39 comments on the proposed changes to the inspection 
fees. Thirty-four comments were generally opposed to the increased 
fees, although several commenters acknowledged the need to recover 
increasing costs. Three commenters strongly supported the increase in 
inspection fees, and two commenters indicated they had no concerns with 
the fees because they recognized the need to recover increased costs.
    As previously mentioned, we must make the wildlife trade compliance 
program as self-sustaining as possible. The collection of inspection 
fees currently funds approximately 40 percent of the inspection 
program. The remainder is funded through limited appropriated funds. We 
do not consider it proper to pass these increased costs on to the 
general public who are not the primary beneficiaries of these services. 
In order to maintain the same level of inspection services, we have no 
option but to raise inspection fees and move toward achieving cost 
recovery from the trade for the compliance portion of the inspection 
program.
    Many of the commenters opposed to the increased fees represent 
industries that do not import or export routine wildlife shipments, but 
import or export shipments which require additional specialized 
services for live or protected species. In our economic analysis, we 
determined that approximately 50 percent of the shipments imported or 
exported at designated ports were live or protected species and thus 
would be subject to these increased premium fees. We do not consider it 
equitable to require the other half of the trade to pay even more fees 
in order to spread out the costs of these additional specialized 
services.
    Other commenters opposed to the increased fees are currently exempt 
from fees and wish to remain exempt. As we state above, we must still 
provide services to these industries and we do not find it equitable 
that nonexempt businesses must pay more than their share of the costs 
in order for us to recover the costs not paid by exempt businesses. We 
realize that increases in inspection fees will increase the upfront 
cost of doing business. In the past, however, many businesses were 
subsidized by taxpayers and were not charged.
    We received 16 comments stating that the new fees will discourage 
small shipments. We are aware that some businesses may run on a very 
low profit margin. This may be particularly true when importing or 
exporting a limited number of wildlife specimens. While the inspection 
fee increase is not intended to restrict or eliminate the international 
trade of wildlife, it may have an economic effect on those dealing in 
small shipments or transactions. However, the Service must expend time 
and resources to process these shipments. In addition, the costs of 
providing services to the international wildlife trade community are 
not dependent upon the size of the shipment.
    It may be necessary for some businesses to reassess how they are 
conducting their activities to ensure that the most productive and 
efficient procedures are being used. While the Service understands that 
the increased inspection fees may impact some businesses, we must raise 
the inspection fees to ensure that we can adequately address our 
responsibilities under various wildlife laws and regulations. We do not 
anticipate that these inspection fees will greatly affect the number of 
specimens in international trade, although the number of shipments may 
be reduced due to consolidation.
    Some commenters proposed that we exempt small businesses or 
establish a minimal processing fee. As we stated earlier in the rule, 
the majority of businesses importing and exporting wildlife are 
considered small businesses. The base inspection fees cover the basic 
minimum service we provide. Our inspection fee costs are calculated to 
represent average costs of providing the service. We cannot predict or 
control the frequency of

[[Page 74621]]

unusually small importations or exportations. To ensure that our basic 
costs are always covered, we charge the base inspection fee. At a 
minimum, any service we provide involves a fixed set of costs. These 
fixed costs include the direct costs of providing the service and the 
indirect costs of support providing the service. We cannot establish a 
lower minimum fee, because doing so would prevent us from recovering 
the full costs of providing the services.
    Two commenters stated that the proposed inspection fees should have 
a sliding scale based upon the value or the quantity of specimens in a 
particular shipment. The base inspection fees resulting from our 
economic analysis apply to all shipments of wildlife regardless of 
quantity or value of specimens in a particular shipment. We calculated 
the average costs of providing the service. Therefore, some of the 
inspection fees may appear too high or too low based upon an 
individual's experience, but in fact the fees represent the average 
cost of providing the service for the type of shipment and type of 
port.
    There is no direct correlation between the number of wildlife items 
in a shipment or the value of the shipment and the complexity of the 
inspection or costs of services that we must provide. A fee based upon 
quantity or value would automatically overcharge many large or high-
value shipments and undercharge shipments of low value or quantity. 
Importers importing their routine shipment should not be required to 
bear the higher costs associated with inspections of live or protected 
species shipments simply because their routine shipment contains more 
specimens or specimens of a higher value.
    We received one comment stating that inspection fees should 
distinguish between dealers and collectors. Imports and exports for 
personal use are exempt from base inspection fees at designated ports 
or ports acting as designated ports. If, however, collectors are 
importing and exporting for commercial purposes, including trade and 
barter, then they must be licensed and pay appropriate fees. For 
example, collectors who import small numbers of specimens that are 
promptly sold over the Internet are operating in no less of a 
commercial manner than is a dealer in wildlife specimens. In addition, 
the cost of providing services to a collector is no different than the 
cost of providing such services to a dealer. We consider it unfair to 
require dealers and other members of the wildlife trade community to 
bear a disproportionate share of the costs in order to exempt 
collectors. We therefore are making no changes to the rule based upon 
this comment.
    We received seven comments opposed to the proposed premium 
inspection fee for shipments containing live specimens or protected 
species. The inspection of shipments that contain live specimens 
requires considerably more knowledge, time, and equipment than is 
required for a routine shipment. In addition to the increased time 
required for inspection of the shipment, and oftentimes the need for 
additional officers, the inspection of these premium shipments in many 
cases requires the use of equipment that ensures the safety of the 
wildlife inspector conducting the inspection. Inspection of shipments 
containing protected species also requires considerably more time and 
knowledge. In addition, the costs of services supporting these types of 
shipments are considerably higher than for routine shipments.
    The majority of commenters stated that the time it takes to inspect 
their shipment is no more than for other shipments and that any 
``rookie'' could inspect their shipment. Other commenters indicated 
that the fees represented an unfair allocation of the costs to the 
Service or were not related to our costs. Other commenters felt the 
fees unfairly targeted certain segments of the trade. We calculated the 
average time to inspect these premium shipments, which on average is 
considerably longer than for a routine shipment. The time includes pre-
inspection research and document review often conducted with the 
assistance of senior inspectors, as well as the actual physical 
inspection of the shipment.
    Since the costs have been averaged for all shipments of a 
particular premium type, some users may view the fees as higher than 
the costs for their individual shipment. Under the current system, the 
higher costs to process these premium shipments are borne predominantly 
by the taxpayers but also by importers and exporters dealing in non-
premium shipments. As stated in the proposed rule, these fees reflect 
both the increase in costs as well as the inclusion of cost components 
that had not been included before. This rule seeks to recover the costs 
associated with these special services and equipment from those 
directly responsible for the shipments. Therefore, we feel that the 
premium fees for live and protected specimens are warranted and have 
been set at reasonable levels. See Sec.  14.94(f) for a definition of 
premium fees.
    We received one comment that the travel and per diem costs 
associated with a nonstaffed nondesignated port were unfair if there 
were multiple importers and exporters requesting inspection at the same 
time. The commenter suggested that we prorate travel and per diem 
expenses when multiple importers or exporters are involved. We agree 
with the commenter and have updated the regulations to reflect this 
change. Although this circumstance is rare, we will charge prorated 
travel, transportation, and per diem costs when a wildlife inspector 
travels to process shipments for multiple importers or exporters at the 
same location. However, each shipment will be assessed the 
nondesignated port base inspection fee and, if applicable, the 
appropriate premium inspection fees.
    We received two comments suggesting that we ``abandon normal work 
schedules'' for wildlife inspectors thus eliminating the need for 
overtime charges. The majority of activities involving the clearance of 
imports and exports, such as working with customs brokers and CBP, in 
addition to frequent communication with the regulated public, are 
conducted during normal business hours. We recognize, however, that 
some shipments, particularly those with live specimens, are imported or 
exported outside normal business hours. The Service does not have the 
staff resources to provide regular service 7 days a week, 24 hours a 
day, at all locations. In addition, other Federal inspection service 
agencies do not work these hours without charging overtime.
    However, in several locations, our wildlife inspectors do work 
shifts to process express shipments. Under Federal law, we must 
compensate wildlife inspectors who regularly work overtime hours. In 
order to recover the costs for these additional salary and benefit 
expenses, whether our inspectors are working overtime or are working a 
normal shift during generally understood overtime hours, we must have 
the users of these overtime services compensate the government through 
overtime charges. We believe it is more equitable to have the importers 
and exporters of after hours shipments pay for these additional 
services rather than requiring higher fees for all shipments.
    We received five comments questioning how the proposed overtime and 
inspection fees apply to multiple shipments. As we previously stated, 
and is currently the practice, if an importer or exporter has multiple 
shipments at the same time and the same location, they will only be 
assessed one overtime fee for the inspection of those shipments. 
However, we will assess each shipment the appropriate base

[[Page 74622]]

inspection fee and, if applicable, the appropriate premium inspection 
fees.

Calculation of Inspection Fees

    As stated in the proposed rule, we conducted an economic analysis 
of the costs associated with the services provided to the legal 
wildlife trade community, and we created an inspection fee template 
(Sec.  14.94(h)) that formed the basis for the determination of this 
inspection fee increase. The economic analysis used data on shipment 
types and quantities, inspection times required for different types of 
shipments, and direct and indirect costs associated with the services 
provided to the legal wildlife trade community.
    In order to calculate these inspection fees, we analyzed the actual 
total costs of providing services to the legal wildlife trade community 
during fiscal year 2005 as compared to the actual total money that we 
collected for activities authorized by the wildlife inspection program 
during fiscal year 2005.
    The total costs include wildlife inspector salaries and benefits; 
the appropriate portion of our managers' salaries and benefits; direct 
costs such as vehicle operation and maintenance, equipment purchase and 
replacement, data entry and computer support for the Service's 
electronic filing system, communications costs, office supplies, 
uniforms, and administrative costs; and indirect costs such as office 
space. We calculated these costs using a Service-wide standard of 22 
percent of direct costs. The total cost of providing services to the 
legal wildlife trade community during fiscal year 2005 was $20,083,627.
    The total amount of money that we collected for activities 
authorized by the wildlife inspection program during fiscal year 2005 
was $8,724,289. This total includes application fees for import/export 
licenses, designated port exception permits, and CITES permits and 
certificates, as well as inspection and overtime fees. At the time of 
our analysis, our data did not distinguish between license and permit 
fees and inspection fees. However, it is readily apparent that whatever 
portion of this total is derived from inspection fees, it falls well 
below the $20,083,627 we spent on the wildlife trade compliance program 
during fiscal year 2005. Subsequent to the proposed rule, we instituted 
a revenue tracking system to separate inspection fees, including 
overtime, from designated port exception permit application fees and 
CITES document application fees.
    The inspection of shipments that contain species protected by 
Federal law or international treaty or live specimens requires 
considerably more knowledge, time, and equipment than is required for a 
routine shipment. In addition to the increased time required for 
document inspection and handling of the shipment, the inspection of 
these ``premium'' shipments requires more thorough knowledge of Federal 
law or international treaty, or, in the case of shipments containing 
live specimens, the use of equipment that ensures the safety of the 
wildlife inspector conducting the inspection. Inspection of live 
shipments routinely requires the services of more than one wildlife 
inspector and may also require timely consultation with outside 
experts.
    In addition, there are other costs associated with the inspection 
of premium shipments. In many instances, foreign documents that are 
presented for clearance of shipments containing protected species under 
CITES must be verified with foreign governments, a process that can be 
extremely time consuming. These foreign documents must be stored and 
recorded in our electronic database. Data on shipments containing 
wildlife protected under CITES must be analyzed for quality and 
reported internationally on an annual basis as one of our obligations 
as a party nation to this international treaty.
    Since the trade compliance portion of the wildlife inspection 
program is to be ``self-sustaining to the extent possible,'' we created 
an inspection fee structure that will provide 100-percent cost recovery 
by the end of the 5-year period 2008-2012. If we had developed an 
inspection fee structure to provide 100-percent cost recovery 
immediately, the initial premium fees would have been substantially 
higher than the premium fees described in this final rule.
    During the development of the inspection fee structure, we 
estimated the inflation rate based upon the GDP. The GDP indices are 
obtained from the Economic Report of the President, which projects the 
growth of real GDP. For the 5-year period covered in this final rule, 
the GDP indices were as follows: 2.1 percent for 2008, 2009, and 2010, 
and 2.2 percent for 2011 and 2012. We decided to use inflation using 
the GDP indices as the only factor contributing to the increased costs 
by the end of the 5-year period. This is a conservative approach since 
wildlife inspector salaries and benefits could increase at a 
substantially greater rate than inflation by the end of the 5-year 
period. While salaries may increase consistent with inflation, 
promotions would increase salaries considerably more than inflation.
    In order to calculate these inspection fees, we estimated what the 
fiscal year 2005 base inspection fees and premium inspection fees would 
need to be to provide 100-percent cost recovery by the end of the 5-
year period, and inflated those fees to 2008 dollars. We used this 
approach, because this rulemaking will not be finalized until 2008, and 
if, at that time, we used 2005 dollars consistent with actual total 
costs during fiscal year 2005, 100-percent cost recovery by the end of 
the 5-year period would not be possible.
    It is extremely difficult to estimate what portion of the money we 
collected for activities authorized by the wildlife inspection program 
was derived from travel and per diem expenses and overtime fees we 
received. Currently, our data do not distinguish between license and 
permit fees and inspection fees. However, these amounts are a very 
small portion of the total amount that is derived from inspection fees, 
and will have little impact on the total amount of money that we 
collect for activities authorized by the wildlife inspection program. 
Therefore, during the development of the inspection fee structure, we 
decided not to include overtime fees or salary, travel, and per diem 
expenses collected at a nonstaffed, nondesignated port.
    During the development of the inspection fee template, we 
considered the impact that increased inspection fees would have on 
small businesses. Essentially all of the businesses that engage in 
commerce by importing or exporting wildlife are considered small 
businesses according to the Small Business Administration (SBA). 
Examples of some of these businesses can be placed in the following SBA 
categories: ``Zoos and Botanical Gardens,'' with an SBA size standard 
of $6.0 million in average annual receipts; ``Merchant wholesalers, 
nondurable goods,'' with an SBA size standard of 100 employees; 
``Leather and allied product manufacturers,'' with an SBA size standard 
of 500 employees; and ``Clothing and Clothing Accessories Stores,'' 
with an SBA size standard ranging from $6.0 million to $7.5 million in 
average annual receipts.
    Since essentially all of these businesses are small, we believe 
that those companies that deal with more complex shipments requiring 
additional services from us, such as those containing species that are 
protected by Federal law or international treaty or live specimens, 
should assume a greater share of the costs associated with the 
additional services. The alternative is to

[[Page 74623]]

spread these additional costs among all importers and exporters.
    To help determine how realistic our inspection fee increases are, 
we calculated what the inspection fees in place since 1996 would be 
equal to in the beginning of and by the end of the 5-year period, based 
only on inflation using the GDP indices. This calculation yielded an 
inspection fee of $70 for 2008, and an inspection fee of $76 by the end 
of the 5-year period in 2012. Both of these projected fees are quite 
close to the base inspection fee of $85. Recognizing that the 1996 
inspection fees were based only on the salary and benefits of a 
journeyman-level wildlife inspector and did not take into account all 
of the other costs associated with the services provided to the legal 
trade community, we think the base inspection fee, which is based on 
all of the associated costs of the wildlife inspection program, is 
reasonable.

Comments on Calculation of Inspection Fees

    We received one comment suggesting that the Service's Office of Law 
Enforcement should have a better way to track import/export license, 
CITES permit, and inspection fees. We agree with the commenter and have 
already implemented internal controls to track these fees since the 
publication of the proposed rule.
    We received one comment stating that the Service did not address 
the criteria under the User Fee Statute when establishing the new 
inspection fees. We disagree. As stated previously, the criteria under 
the User Fee Statute include that the fees be fair, and that they be 
based upon actual costs to the government, the value of the service to 
the recipient, and public policy or interests that are being served. We 
consider these fees to be fair for reasons stated in this final rule. 
The fees reflect the actual cost to the government for the specific 
services provided, and they were established at levels that will 
provide 100-percent cost recovery for the wildlife trade compliance 
program, as authorized by the User Fee Statute. In addition, if we do 
not increase inspection fees, funds will not be available to continue 
to provide inspection services at a level sufficient to meet customer 
demand.

Exemptions to Inspection Fees (New Section, Sec.  14.94(k))

    During the development of the inspection fee template, we decided 
that some individuals or organizations, or certain commodities, should 
continue to be exempt from inspection fees. These longstanding 
exemptions reflect the lack of regular inspection services provided and 
the limited numbers of shipments for which services are required.
    Government agencies at the Federal, State, local, or tribal level 
have been exempt from inspection fees in the past and will continue to 
be exempt from the inspection fees, including overtime fees. The 
retention of this exemption complements other Service regulations.
    Individuals who import or export shipments of 100 or fewer raw furs 
or raw, salted, or crusted mammal hides or skins between the United 
States, Canada, or Mexico have been exempt from inspection fees in the 
past and will continue to be exempt from designated port base 
inspection fees. However, this exemption applies only to shipments of 
mammal furs, hides, or skins lawfully taken from the wild by those 
individuals or their family members in the United States, Canada, or 
Mexico, from species that are not protected under parts 17, 18, or 23 
of title 50. These individuals will still require an import/export 
license and be responsible for overtime fees for any shipments 
inspected outside normal working hours.
    Individuals or organizations that import or export shipments of 
wildlife for noncommercial purposes at designated ports that do not 
contain species that are protected by Federal law or international 
treaty, along with individuals or organizations that import or export 
live specimens, will continue to be exempt from designated port 
inspection fees. These individuals or organizations will still be 
responsible for overtime fees for any shipments inspected outside 
normal working hours, as well as all fees for import or export through 
a nondesignated port.
    Individuals or organizations that import or export shipments of 
wildlife for noncommercial purposes at designated ports that contain 
species that are protected by Federal law or international treaty, 
along with individuals or organizations that import or export live 
specimens, will pay premium inspection fees when importing or exporting 
via air, ocean, rail, or truck cargo. However, these shipments will 
continue to be exempt from base inspection fees. Examples of these 
individuals or organizations would include but not be limited to: 
individuals importing or exporting personal pets that may or may not be 
protected species; hunters importing or exporting protected game 
species; or public museums, zoos, and scientific or educational 
institutions importing or exporting protected species or live 
specimens.
    Inspection of these premium shipments requires considerably more 
knowledge, time, and equipment than is required for a routine shipment. 
It should be noted that the Service does not consider these individuals 
or organizations to be exempt from paying for other services that 
provide benefits. Our regulations in part 13 already require 
individuals or organizations to pay application fees for permits that 
authorize them to engage in activities not otherwise authorized for the 
general public. We note that other agencies do not make a distinction 
between commercial and noncommercial individuals or organizations when 
considering inspection fees for import and export. Based upon these 
findings, we decided to charge premium fees but exempt these shipments 
from base inspection fees as long as the shipments are imported or 
exported through a designated port. These shipments will continue to be 
subject to overtime fees and all fees for import or export through a 
nondesignated port.
    Individuals or organizations who import or export shipments that 
contain protected species or live specimens for noncommercial purposes 
at designated ports by using the mail, by traveling as passengers, or 
by using a personal vehicle will be exempt from designated port base 
inspection fees and premium inspection fees. However, they will still 
be responsible for overtime fees for any inspections that take place 
outside normal working hours. These shipments are currently exempt from 
designated port inspection fees other than overtime charges. We decided 
to retain this exemption under these circumstances because we do not 
consistently provide inspection services at mail facilities or 
passenger terminals, or for personal vehicles.
    Until the effective date of this final rule, our regulations exempt 
certain captive-bred mammals from designated port inspection fees as 
part of an exemption from the import/export license requirements. With 
this final rule, however, we are establishing the import/export license 
requirement for these types of shipments. Although most businesses have 
not taken advantage of the exemption as discussed earlier, any exempted 
shipments still require inspection and clearance. This exemption has 
also had the unintended consequence of creating a monetary incentive to 
falsely declare certain mammals and their products as captive-bred.
    By policy, we currently exempt the export of sturgeon and 
paddlefish that are captive-bred in aquaculture facilities from 
inspection fees, including

[[Page 74624]]

nondesignated port fees, if the shipments are for immediate human or 
animal consumption. This exemption applies to caviar, meat, and other 
food items, but does not cover live fish. By policy, we also currently 
exempt the export of American bison, ostrich, and emu meat produced in 
ranching operations in the United States from inspection fees if the 
meat is intended for human consumption. All of these shipments still 
require inspection and clearance by us.
    Our ability to effectively provide inspection and clearance 
services and the necessary support for these services depends on 
inspection fees. When we exempted these types of shipments from 
inspection fees, the costs associated with inspection and clearance 
have been borne either by the taxpayers through appropriated funds or 
by other importers and exporters. The services provided to these exempt 
businesses are specialized services that do not directly benefit the 
public as a whole and, as such, the costs should not be borne by the 
taxpayer. As discussed earlier, the majority of importers and exporters 
of wildlife are small businesses. We do not believe it equitable that 
nonexempt businesses must pay more than their share of the costs in 
order for us to recover the costs not paid by exempt businesses.

Comments on Sec.  14.94(k)

    We received one comment regarding our proposed retention of the 
exemption for individuals or organizations who import or export 
shipments that contain protected species or live specimens for 
noncommercial purposes at designated ports by using the mail, by 
traveling as passengers, or by using a personal vehicle. The commenter 
stated that passengers on international flights should be assessed 
premium inspection fees since the majority of these shipments contain 
protected species. We disagree with this comment and will retain the 
exemption as proposed. As we stated earlier, we do not consistently 
provide inspection services for noncommercial shipments imported or 
exported at mail facilities or passenger terminals, or by personal 
vehicles.
    One commenter specifically opposed retaining the exemption for 
individuals who import or export shipments of 100 or fewer raw furs or 
raw, salted, or crusted mammal hides or skins between the United 
States, Canada, or Mexico. Two other commenters generally opposed the 
retention and stated that if cost recovery was our objective, then we 
should remove all exemptions. One commenter stated that this exemption 
could allow unscrupulous businesses to break up their shipments to get 
around license fees. One commenter approved of the continuation of this 
exemption, while two commenters requested that we extend the current 
exemption from inspection fees for shipments of raw furs or raw, 
salted, or crusted hides or skins to include shipments of processed or 
manufactured furs of similar size and value. We decline to accept the 
recommendations made in these comments.
    The current exemption from inspection fees for shipments consisting 
of raw furs or raw, salted, or crusted hides or skins, or separate fur 
or skin parts lawfully taken from the wild in the United States, 
Canada, or Mexico, is intended to provide assistance to subsistence 
hunters and trappers. We believe retention of this exemption is 
warranted. However, when we consider the difficulties that are inherent 
in subsistence hunting, we do not think that commercial importers or 
exporters of processed or manufactured furs should be entitled to the 
same assistance extended to subsistence hunters. Finally, we have the 
ability to monitor the volume of importing and exporting by a business 
or individual and have not detected any abuse of this exemption. 
Therefore, we are making no changes to the rule based upon these 
comments.
    We received four comments from the U.S. white sturgeon farming 
community stating that we should not remove the exemption from 
inspection fees for exports of sturgeon and paddlefish that are 
captive-bred in aquaculture facilities and are intended for immediate 
human or animal consumption. We also received four comments in favor of 
removing the exemption. Two commenters in favor stated that the 
businesses required inspection services and should therefore pay for 
this service as do other importers and exporters. Two other commenters 
stated that if cost recovery was our objective, then we should remove 
all exemptions.
    The commenters opposed to the removal of the exemption argued that 
since the species are farmed, they are not wildlife and are not subject 
to the fees. The commenters also stated that poaching is already 
controlled at the source and farming protects endangered species by 
decreasing pressure on wild stock. Though we recognize that farming of 
white sturgeon may relieve pressure on wild stocks, we would remind the 
commenters that the ESA, under which permission must be obtained to 
engage in the business of importing or exporting wildlife, defines 
wildlife to include specimens that are born or bred in captivity. In 
addition, CITES requires CITES documents for international trade of all 
sturgeon and paddlefish regardless of whether the species are captive-
bred. Finally, the commenters argued that the proposed new fees were 
too high. See the preamble discussion on the inspection fee schedule 
(Our Changes to Inspection Fees (Sec.  14.94--What fees apply to me?)) 
for additional discussion of fees.
    As stated above, we currently exempt the export of sturgeon and 
paddlefish that are captive-bred in aquaculture facilities from 
inspection fees, including nondesignated port fees, if the shipments 
are for immediate human or animal consumption. However, these shipments 
still require inspection and clearance by us, and exporters often use 
ports with little or no staff available. As we have previously stated, 
we do not find it equitable that nonexempt businesses must pay more 
than their share of the costs in order for us to recover the costs not 
paid by exempt businesses.
    Since foreign sturgeon aquaculture facilities must pay inspection 
fees when their goods are imported, removal of the exemption for 
domestic businesses will establish a level playing field. Therefore, we 
are removing the inspection fee exemption for businesses that export 
food items derived from aquacultured sturgeon and paddlefish.
    Four commenters supported the elimination of the inspection fee 
exemption for businesses that export meat from American bison, ostrich, 
and emu. Two commenters stated that if cost recovery was our objective, 
then we should remove all exemptions. One commenter stated that those 
who utilize the inspection services must bear the cost, while another 
commenter stated that these businesses require inspection and clearance 
and are operating commercially.
    We agree with the commenters. As we have stated throughout this 
final rule, we do not find it equitable that nonexempt businesses must 
pay more than their share of the costs in order for us to recover the 
costs not paid by exempt businesses. In addition, since both imports 
and re-exports with an origin other than the United States are subject 
to the inspection fees, removal of the exemption for domestic 
businesses will establish a level playing field. Therefore, we are 
removing the inspection fee exemption for businesses that export food 
items derived from ranch-raised American bison, ostrich, and emu.

Other Relevant Comments

    We received one comment stating that the regulations should contain 
a

[[Page 74625]]

provision that would allow prior disclosures to be made without penalty 
if non-compliance is found internally by businesses. As we stated in 
our final rule of August 23, 2007 (72 FR 48401), on the implementation 
of CITES, we cannot accept this recommendation because this provision 
would undermine our enforcement efforts and our obligations under 
international and domestic laws. We treat specimens traded contrary to 
law the same as other forms of illegally traded goods.
    We received 22 comments regarding an exemption from all Service 
import or export requirements for ranch-raised elk and deer and their 
products of Canadian origin. The commenters suggested we could reduce 
our costs by exempting their commodities from regulation. We also 
received one comment requesting that shipments containing mother of 
pearl products should be exempt from all Service import or export 
requirements.
    The only wildlife species completely exempt from Service import/
export requirements are domesticated species that have become modified, 
through selective breeding and a long historical association with 
humans, from the wild species from which they were derived. The 
domesticated species can differ from the wild species in color, form, 
function, and/or behavior to such an extent that the domesticated 
species is unable to survive in the wild without human care. The 
Service does not consider ranch-raised elk and deer or mother of pearl 
to meet these requirements. In addition, granting an exemption for 
products only of Canadian origin might create a protectionist effect 
for Canadian goods.
    We received one comment stating that the Service should reduce or 
eliminate inspection fees for the import and export of dead insect 
specimens. We decline to adopt this suggestion. As stated in our 
proposed rule, the goal of this fee increase is to recover the costs of 
the compliance portion of the Service's wildlife inspection program. We 
do not consider it to be fair or equitable for importers or exporters 
of wildlife other than dead insect specimens to bear the additional 
costs incurred by reducing or eliminating fees for dead insect 
specimens. These shipments require inspection and clearance by us as do 
all other wildlife shipments; therefore, we are making no changes to 
the rule based upon this comment.
    We received one comment requesting that the funds collected by the 
Service remain in the port where they are collected. The commenter 
indicated that some ports receive subsidized funding from customs 
brokers associations. We decline to adopt this recommendation. 
Inspection fees monies are collected to support the entire import/
export compliance program, and not all of the costs are resident in a 
particular port. We note that the Service does not receive any funding 
from customs brokers associations.
    One commenter questioned whether this rule applied to plants, and 
requested confirmation of any other changes involving hunting and 
fishing, other than the need for individuals or organizations that 
import or export shipments for noncommercial purposes that contain 
protected species to pay premium fees. This rule applies only to fish 
and wildlife as defined in 50 CFR 10.12 and does not apply to plants. 
With respect to additional provisions that might affect hunting or 
fishing, the commenter should read Sec.  14.91, which provides examples 
of license requirements related to hunters and taxidermists.
    One commenter suggested that the Service should eliminate 
inspections on Canada-U.S. shipments except for CITES species. We 
decline to adopt this suggestion. The Service must enforce the ESA. The 
ESA provides us with broad authority to regulate the import and export 
of fish and wildlife through licensing importers and exporters, 
inspecting shipments, and charging and retaining reasonable fees for 
processing applications and performing inspections. This authority is 
not limited to endangered or threatened species or those protected 
under CITES. As previously stated, this broad authority requires 
importers and exporters who wish to engage in the international trade 
of wildlife to obtain permission to do so. Eliminating inspections of 
shipments to and from Canada would undermine our obligations under U.S. 
law and would unfairly discriminate against shippers trading with 
countries other than Canada.

Required Determinations

Regulatory Planning and Review (Executive Order 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant under Executive Order 12866 (E.O. 12866). OMB 
bases its determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

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

    This final rule will not have a significant economic effect on a 
substantial number of small businesses as defined under the Regulatory 
Flexibility Act. An initial Regulatory Flexibility Analysis is not 
required. Accordingly, a Small Entity Compliance Guide is not required. 
During the development of the inspection fee template, we considered 
the impact that increased inspection fees would have on small 
businesses. Essentially all of the businesses that engage in commerce 
by importing or exporting wildlife or wildlife products would be 
considered small businesses according to the Small Business 
Administration (SBA). Examples of some of these businesses can be 
placed in the following SBA categories: ``Zoos and Botanical Gardens,'' 
with an SBA size standard of $6.0 million in average annual receipts; 
``Merchant wholesalers, nondurable goods,'' with an SBA size standard 
of 100 employees; ``Leather and allied product manufacturers,'' with an 
SBA size standard of 500 employees; and ``Clothing and Clothing 
Accessories Stores,'' with an SBA size standard ranging from $6.0 
million to $7.5 million in average annual receipts.
    This final rule will not have a significant economic effect on 
these businesses. In most cases, the increased inspection fees will 
represent a small fraction of the value of the affected wildlife 
shipment. In addition, the small entities directly affected by this 
final rule are not likely to bear the full burden of the inspection fee 
increases because some or most of the cost increases will be passed on 
to the purchasers of the wildlife.

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

    This final rule is not a major rule under the Small Business 
Regulatory Enforcement Fairness Act. This final rule:
    a. Does not have an annual effect on the economy of $100 million of 
more.
    The removal of two exemptions from our import/export license 
requirements for businesses that import or export certain captive-bred 
mammals or their products and circuses that import or

[[Page 74626]]

export wildlife will not adversely affect those businesses.
    For fiscal year 2005, our records indicate that 2,628 shipments of 
captive-bred chinchilla, fisher, fox, marten, mink, muskrat, and nutria 
were imported or exported by 351 businesses. However, 296 of these 
businesses already have import/export licenses because they also trade 
in species other than these captive-bred mammals. We are proposing that 
the remainder of these businesses must obtain an import/export license, 
at a cost of $100 per year. These changes will result in an additional 
cost to these businesses of $5,500 as importers or exporters of these 
captive-bred mammals or their products (351 - 296 = 55 businesses x 
$100 = $5,500).
    We estimate that approximately 30 circuses will import or export 
animals during a given year. We are proposing that these circuses must 
obtain an import/export license. These changes will result in an 
additional cost to these circuses of $3,000 as importers or exporters 
of circus animals.
    The total cost to businesses and circuses based upon the removal of 
two exemptions from our import/export license requirements will be 
approximately $8,500.
    We have determined that routine shipments must be charged a base 
inspection fee based upon the type of port. Shipments containing 
protected species or live specimens must be charged a premium 
inspection fee in addition to the base inspection fee. If a shipment 
contains both protected species and live specimens, we charge two 
premium inspection fees in addition to the base inspection fee. The fee 
structure requires an $85 base inspection fee for inspections at 
designated ports and a $19 premium inspection fee.
    The greatest increased costs contained in the fee structure apply 
to wildlife shipments imported or exported at nonstaffed, nondesignated 
ports. Assuming that every shipment we inspect occurs at one of these 
ports, the total net annual economic effect in the worst-case scenario 
will be approximately $20 million.
    For inspections at these ports, our regulations have required an 
administrative fee of $55 plus all costs associated with the inspection 
and clearance, including salary, travel, and per diem for the wildlife 
inspector conducting the inspection. The new fee structure requires a 
$133 base inspection fee for inspections at these ports. Assuming that 
every shipment at these ports contained species that are protected by 
Federal law or international treaty and live specimens, these shipments 
will require an additional $38 in premium inspection fees, for a total 
of $171 per shipment.
    The worst-case scenario for inspections at nonstaffed, 
nondesignated ports, as described above, and not including travel and 
per diem, will result in an additional $116 in inspection fees per 
shipment (the difference between $171 and $55) under the new fee 
structure. We estimate that we inspect approximately 170,000 shipments 
per year nationwide. Assuming that all shipments are inspected at 
nonstaffed, nondesignated ports, the net annual economic effect could 
equal $19,720,000 under the new fee structure. While the new fee 
structure of $133 to use these ports does require the additional 
payment of travel and per diem expenses, it does not require the 
additional payment of the salary of the wildlife inspector conducting 
the inspection. In many cases, the base fee of $133 will be 
considerably less than the salary of the wildlife inspector conducting 
the inspection.
    In reality, nearly one-half of our inspections are conducted at 
designated ports for shipments that do not contain species that are 
protected by Federal law or international treaty or live specimens, so 
the net annual economic effect of the new fee structure is considerably 
less than $19,720,000. For commercial shipments at designated ports, 
our regulations have required an inspection fee of $55. The new fee 
structure requires an $85 base inspection fee for inspections at 
designated ports. These shipments will result in an additional $30 in 
inspection fees per shipment (the difference between $85 and $55) under 
the new fee structure. For fiscal year 2005, we inspected 83,203 
shipments at designated ports that did not contain species that are 
protected by Federal law or international treaty or live specimens. The 
net annual economic effect for inspections of these shipments will/
could equal $2,496,090 under the new fee structure.
    As described above, the removal of two exemptions from our import/
export license requirements for businesses that import or export 
certain captive-bred mammals or their products and circuses means that 
these entities must pay inspection fees authorized under their import/
export license.
    For fiscal year 2005, our records indicate that 2,628 shipments of 
certain captive-bred mammals or their products were imported or 
exported by 351 businesses. These new regulation changes will result in 
an additional cost to these businesses of $223,380 when they import or 
export shipments of certain captive bred mammals or their products at 
designated ports (2,628 shipments x $85 base inspection fee at 
designated ports).
    Our records indicate that, at most, there could be 75 shipments of 
circus animals imported or exported during a given year by 
approximately 30 circuses. Circuses will likely be assessed two premium 
inspection fees per shipment, since most of their shipments will 
contain live specimens that are protected by Federal law or 
international treaty. Under the worst-case scenario, these changes will 
result in an additional cost to these circuses of $9,225, when they 
import or export circus animals at designated ports (75 shipments x $85 
base inspection fee at designated ports + 75 shipments x $38 premium 
inspection fee).
    For fiscal year 2005, our records indicate that 7,800 shipments 
that contained species that are protected by Federal law or 
international treaty or live specimens were imported or exported for 
noncommercial purposes at designated ports via air, ocean, rail, or 
truck cargo. With the effective date of this final rule, these persons 
must pay premium inspection fees for these shipments. In many cases, 
these shipments will contain species that are protected by Federal law 
or international treaty and live specimens. Under the worst-case 
scenario, these changes will result in an additional cost to these 
persons of $296,400, when they import or export these shipments at 
designated ports (7,800 shipments x $38 premium inspection fee).
    For fiscal year 2005, our records indicate that 145 shipments of 
American bison, ostrich, emu, or sturgeon and paddlefish products were 
exported. These changes will result in an additional cost to these 
businesses of $12,325 when they export shipments of American bison, 
ostrich, or emu meat at designated ports (145 shipments x $85 base 
inspection fee at designated ports).
    The total cost to businesses, circuses, and persons importing or 
exporting species that are protected by Federal law or international 
treaty or live specimens for noncommercial purposes, based upon the 
removal of license fee exemptions, will be approximately $541,330.
    Considering that nearly one-half of the shipments that we inspect 
account for an annual economic effect of just under $2.5 million, it is 
safe to assume that all of the other types of shipments that we inspect 
at all of our other ports, when combined with this amount, will total 
far less than $100 million. The

[[Page 74627]]

removal of import/export license exemptions and inspection fee 
exemptions accounts for an additional $549,830. To summarize, this 
final rule will have an annual economic effect of far less than $100 
million.
    Though this final rule will not have an annual economic effect of 
$100 million, we recognize that these fee increases will have a 
negative effect on small entities. Since essentially all of the 
businesses that engage in commerce by importing or exporting wildlife 
would be considered small businesses, and considering that the wildlife 
trade compliance program is to be ``self-sustaining to the extent 
possible,'' we have no option but to raise inspection fees to cover the 
increasing costs associated with the wildlife trade compliance program. 
It would not be appropriate to pass these increased costs on to the 
general public, who are not the primary beneficiaries of these 
services.
    b. Will not cause a major increase in costs or prices for 
consumers; individual industries; Federal, State, or local government 
agencies; or geographic regions.
    This final rule will increase costs for individual industries and 
potentially consumers; however, because the wildlife trade compliance 
program is to be ``self-sustaining to the extent possible,'' we have no 
option but to raise inspection fees to cover the increasing costs 
associated with the wildlife trade compliance program. If we do not 
increase inspection fees, funds will not be available to continue to 
provide these services at a level sufficient to meet customer demand.
    c. Does not have significant negative effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based companies to compete with foreign-based companies.
    This final rule will not have significant adverse effects on the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises, because foreign-based enterprises that are subject to U.S. 
jurisdiction must comply with the same regulatory requirements as U.S.-
based enterprises who import or export wildlife. In addition, this 
final rule removes the exemption from an import/export license 
requirements and payment of inspection fees for shipments of certain 
captive-bred mammals or their products. Due to shipping and other 
business practices, foreign-sourced mammals or their products imported 
into the United States are more likely to be declared as captive-bred 
and appropriate for the current exemption than exports of U.S.-sourced 
mammals or their products. The removal of the exemption will result in 
equal treatment of foreign-sourced and U.S.-sourced mammals or their 
products.

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

    Under the Unfunded Mandates Reform Act:
    a. This final rule will not significantly or uniquely affect small 
governments. A Small Government Agency Plan is not required.
    We are the lead Federal agency for implementing regulations that 
govern and monitor the importation and exportation of wildlife and 
carrying out the United States' obligations under CITES. Therefore, 
this final rule has no effect on small governments' responsibilities.
    b. This final rule will not produce a Federal requirement that may 
result in the combined expenditure by State, local, or tribal 
governments of $100 million or greater in any year, so it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act.
    This rule will not result in any combined expenditure by State, 
local, or tribal governments.

Executive Order 12630 (Takings)

    Under E.O. 12630, this final rule does not have significant takings 
implications. A takings implication evaluation is not required. Under 
E.O. 12630, this final rule does not affect any constitutionally 
protected property rights. This final rule will not result in the 
physical occupancy of property, the physical invasion of property, or 
the regulatory taking of any property.

Executive Order 13132 (Federalism)

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

Executive Order 12988 (Civil Justice Reform)

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

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

    This final rule does not contain any new information collection 
requirements that require approval by the Office of Management and 
Budget under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. OMB 
has approved the information collection requirements contained in this 
subpart I and assigned OMB Control Number 1018-0092, which expires on 
November 30, 2010. The Service may not conduct or sponsor and you are 
not required to respond to a collection of information unless it 
displays a currently valid OMB control number.

National Environmental Policy Act

    We analyzed this rule under the criteria of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4332(C)) and part 
516 of the Department of the Interior's Departmental Manual (DM), 
Chapter 8. This final rule does not constitute a major Federal action 
significantly affecting the quality of the human environment. An 
environmental impact statement/assessment is not required.
    A categorical exclusion from NEPA documentation applies to 
publication of these amendments to our import/export regulations, 
because the changes are technical and procedural in nature, and the 
environmental effects are too broad, speculative, or conjectural to 
lend themselves to meaningful analysis (516 DM 2, Appendix 1.10). 
Concerning the actions that are the subject of this rulemaking, NEPA 
has been complied with at the project level where each change was 
developed. This is consistent with the Department of the Interior 
instructions for compliance with NEPA where actions are covered 
sufficiently by an earlier environmental document (516 DM 3.2A).

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

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

[[Page 74628]]

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

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, and use. E.O. 
13211 requires agencies to prepare Statements of Energy Effects when 
undertaking certain actions. This final rule will clarify the import/
export license and fee requirements, adjust the inspection fee 
schedule, and update license and inspection fee exemptions. This final 
rule is not a significant regulatory action under E.O. 12866, and it is 
not expected to significantly affect energy supplies, distribution, and 
use. Therefore, this action is a not a significant energy action and no 
Statement of Energy Effects is required.

List of Subjects in 50 CFR Part 14

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

Regulation Promulgation

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

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

0
1. The authority citation for part 14 continues to read as follows:

    Authority: 16 U.S.C. 668, 704, 712, 1382, 1538(d)-(f), 1540(f), 
3371-3378, 4223-4244, and 4901-4916; 18 U.S.C. 42; 31 U.S.C. 9701.


0
2. Revise subpart I to read as follows:
Subpart I--Import/Export Licenses and Inspection Fees
Sec.
14.91 When do I need an import/export license?
14.92 What are the exemptions to the import/export license 
requirement?
14.93 How do I apply for an import/export license?
14.94 What fees apply to me?

Subpart I--Import/Export Licenses and Inspection Fees


Sec.  14.91  When do I need an import/export license?

    (a) The Endangered Species Act (16 U.S.C. 1538(d)(1)) makes it 
unlawful for any person to engage in business as an importer or 
exporter of certain fish or wildlife without first having obtained 
permission from the Secretary. For the purposes of this subchapter, 
engage in business means to import or export wildlife for commercial 
purposes.
    (b) Except as provided in Sec.  14.92, if you engage in the 
business of importing or exporting wildlife for commercial purposes 
(see Sec.  14.4), you must obtain an import/export license prior to 
importing or exporting your wildlife shipment.
    (c) The following table includes some examples of when an import/
export license is required:

------------------------------------------------------------------------
 If I import into the United States or export      . . . do I need an
            from the United States               import/export  license?
------------------------------------------------------------------------
(1) Wildlife in the form of products such as    Yes.
 garments, bags, shoes, boots, jewelry, rugs,
 trophies, or curios for commercial purposes.
(2) Wildlife in the form of hides, furs, or     Yes.
 skins for commercial purposes.
(3) Wildlife in the form of food for            Yes.
 commercial purposes.
(4) As an animal dealer, animal broker, pet     Yes.
 dealer, or pet or laboratory supplier.
(5) As an individual owner of a personally      No.
 owned live wildlife pet for personal use.
(6) As a collector or hobbyist for personal     No.
 use.
(7) As a collector or hobbyist for commercial   Yes.
 purposes, including sale, trade or barter.
(8) As a laboratory researcher or biomedical    Yes.
 supplier for commercial purposes.
(9) As a customs broker or freight forwarder    No.
 engaged in business as a dispatcher, handler,
 consolidator, or transporter of wildlife or
 if I file documents with the Service on
 behalf of others.
(10) As a common carrier engaged in business    No.
 as a transporter of wildlife.
(11) As a taxidermist, outfitter, or guide      Yes.
 importing or exporting my own hunting
 trophies for commercial purposes.
(12) As a taxidermist, outfitter, or guide      No.
 transporting or shipping hunting trophies for
 clients or customers.
(13) As a U.S. taxidermist receiving a U.S.     No.
 client's personal hunting trophies after
 import clearance for processing.
(14) As a U.S. taxidermist importing wildlife   Yes.
 from or exporting wildlife to foreign owners
 who are requesting my services.
(15) As a foreign owner of wildlife exporting   No.
 my personal hunting trophies from the United
 States to my home.
(16) As a circus for exhibition or resale       Yes.
 purposes.
(17) As a Federal, State, municipal, or tribal  No.
 agency.
(18) As a public museum, or public scientific   No.
 or educational institution for noncommercial
 research or educational purposes.
------------------------------------------------------------------------

Sec.  14.92  What are the exemptions to the import/export license 
requirement?

    (a) Certain wildlife. Any person may engage in business as an 
importer or exporter of the following types of wildlife without 
obtaining an import/export license:
    (1) Shellfish (see Sec. 10.12 of this chapter) and nonliving 
fishery products that do not require a permit under parts 16, 17, or 23 
of this subchapter, and are 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;
    (2) Live farm-raised fish and farm-raised fish eggs of species that 
do not require a permit under parts 16, 17, or 23 of this subchapter, 
that meet the definition of ``bred-in-captivity'' as stated in Sec.  
17.3 of this subchapter and that are for export only; and
    (3) Live aquatic invertebrates of the Class Pelecypoda, commonly 
known as oysters, clams, mussels, and scallops, and their eggs, larvae, 
or juvenile forms, that do not require a permit under parts 16, 17, or 
23 of this subchapter, and are exported only for the purposes of 
propagation or research related to propagation; and
    (4) Pearls that do not require a permit under parts 16, 17, or 23 
of this subchapter.
    (b) Certain persons.
    (1) The following persons may import or export wildlife without 
obtaining an import/export license, provided that these persons keep 
records that will fully and correctly describe each importation or 
exportation of wildlife made by them and the subsequent disposition 
made by them with respect to the wildlife.
    (i) Public museums, or other public, scientific, or educational 
institutions, importing or exporting wildlife for noncommercial 
research or educational purposes; and
    (ii) Federal, State, tribal, or municipal agencies.
    (2) Subject to applicable limitations of law, duly authorized 
Service officers at

[[Page 74629]]

all reasonable times will, upon notice, be given access to these 
persons' places of business, an opportunity to examine their inventory 
of imported wildlife or the wildlife to be exported, the records 
described in paragraph (1) of this section, and an opportunity to copy 
those records.


Sec.  14.93   How do I apply for an import/export license?

    (a) Application form. You must submit a completed FWS Form 3-200-3, 
including the certification found on the form and in Sec.  13.12(a) of 
this subchapter, to the appropriate regional Special Agent in Charge 
under the provisions of this subpart and part 13 of this subchapter.
    (b) Import/export license conditions. In addition to the general 
permit conditions in part 13 of this subchapter, you must comply with 
the following conditions:
    (1) You must comply with all requirements of this part, all other 
applicable parts of this subchapter, and any specific conditions or 
authorizations described on the face of, or on an annex to, the import/
export license;
    (2) You must pay all applicable license and inspection fees as 
required in Sec.  14.94;
    (3) You are responsible for providing current contact information 
to us, including a mailing address where you will receive all official 
notices the Service sends;
    (4) You must keep, in a U.S. location, the following records that 
completely and correctly describe each import or export of wildlife 
that you made under the import/export license and, if applicable, any 
subsequent disposition that you made of the wildlife, for a period of 5 
years:
    (i) A general description of the wildlife, such as ``live,'' ``raw 
hides,'' ``fur garments,'' ``leather goods,'' ``footwear,'' or 
``jewelry'';
    (ii) The quantity of the wildlife, in numbers, weight, or other 
appropriate measure;
    (iii) The common and scientific names of the wildlife;
    (iv) The country of origin of the wildlife, if known, as defined in 
Sec.  10.12 of this subchapter;
    (v) The date and place the wildlife was imported or exported;
    (vi) The date of the subsequent disposition, if applicable, of the 
wildlife and the manner of the subsequent disposition, whether by sale, 
barter, consignment, loan, delivery, destruction, or other means;
    (vii) The name, address, telephone, and e-mail address, if known, 
of the person or business who received the wildlife;
    (viii) Copies of all permits required by the laws and regulations 
of the United States; and
    (ix) Copies of all permits required by the laws of any country of 
export, re-export, or origin of the wildlife.
    (5) You must, upon notice, provide authorized Service officers with 
access to your place(s) of business at all reasonable times and give us 
an opportunity to examine your inventory of imported wildlife or the 
wildlife to be exported, the records required to be kept by paragraph 
(b)(4) of this section, and an opportunity to copy these records 
subject to applicable limitations of the law;
    (6) You must submit a report containing the information you must 
keep in paragraph (b)(4) of this section within 30 days of receiving a 
written request from us; and
    (7) An import/export license gives you general permission to engage 
in business as an importer or exporter of wildlife. An import/export 
license is in addition to, and does not supersede, any other license, 
permit, or requirement established by Federal, State, or tribal law for 
the import or export of wildlife.
    (c) Duration of import/export license. Any import/export license 
issued under this section expires on the date shown on the face of the 
import/export license. In no case will the import/export license be 
valid for more than 1 year after the date of issuance.
    (d) Issuance, denial, suspension, revocation, or renewal of import/
export license. We may deny, suspend, revoke, restrict, or deny renewal 
of an import/export license to any person named as the holder, or a 
principal officer or agent of the holder, under any of the criteria 
described in part 13 of this chapter or under the following criteria:
    (1) Failure to pay fees, penalties, or costs required by this part;
    (2) You repeatedly fail to notify our Service officers at the 
appropriate port at least 48 hours prior to the estimated time of 
arrival of a live or perishable wildlife shipment under Sec.  14.54(a) 
or at least 48 hours prior to the estimated time of exportation of any 
wildlife under Sec.  14.54(f);
    (3) You repeatedly import or export certain types of wildlife 
without meeting the requirements of this part or other applicable parts 
of this subchapter.


Sec. 14.94  What fees apply to me?

    (a) Import/export license application fees. You must pay the 
application and amendment fees, as defined in Sec.  13.11(d)(4), for 
any required import/export license processed under Sec.  14.93 and part 
13 of this subchapter.
    (b) Designated port exception permit application fees. You must pay 
the application and amendment fees, as defined in Sec.  13.11(d)(4), 
for any required designated port exception permit processed under 
subpart C of this part.
    (c) Designated port base inspection fees. Except as provided in 
paragraph (k) of this section, an import/export license holder must pay 
a base inspection fee, as defined in Sec.  14.94(h)(1), for each 
wildlife shipment imported or exported at a designated port or a port 
acting as a designated port. You can find a list of designated ports in 
Sec.  14.12 and the criteria that allow certain ports to act as 
designated ports in Sec.  Sec. 14.16-14.19, Sec.  14.22, and Sec.  
14.24 of this part.
    (d) Staffed nondesignated port base inspection fees. You must pay a 
nondesignated port base inspection fee, as defined in Sec.  
14.94(h)(2), for each wildlife shipment imported or exported at a 
staffed nondesignated port, using a designated port exception permit 
issued under subpart C of this part. This fee is in place of, not in 
addition to, the designated port base fee.
    (e) Nonstaffed, nondesignated port base inspection fees. You must 
pay a nondesignated port base inspection fee, as defined in Sec.  
14.94(h)(3), for each wildlife shipment imported or exported at a 
nonstaffed, nondesignated port using a designated port exception permit 
issued under subpart C of this part. You must also pay all travel, 
transportation, and per diem costs associated with inspection of the 
shipment. These fees are in place of, not in addition to, the 
designated port base fee. The Service will prorate charges for travel, 
transportation, and per diem costs if multiple importers or exporters 
require inspection at the same time at the same location. All 
applicable base and premium fees apply to each shipment.
    (f) Premium inspection fees. You must pay a premium inspection fee 
in addition to any base inspection fees required in paragraphs (c), 
(d), and (e) of this section, as defined in Sec.  14.94(h)(4), for the 
following types of shipments:
    (1) Except as provided in paragraph (k) of this section, any 
shipment containing live or protected species, as defined in Sec.  
14.94(h)(4), imported or exported by an import/export license holder at 
a designated port or a port acting as a designated port. You can find a 
list of designated ports in Sec.  14.12 and the criteria that allow 
certain ports to act as designated ports in Sec.  Sec. 14.16-14.19, 
Sec.  14.22, and Sec.  14.24;

[[Page 74630]]

    (2) Any shipment containing live or protected species, as defined 
in Sec.  14.94(h)(4), imported or exported via air, ocean, rail, or 
truck cargo, by persons not requiring an import/export license under 
Sec.  14.91, at a designated port or a port acting as a designated 
port. You can find a list of designated ports in Sec.  14.12 and the 
criteria that allow certain ports to act as designated ports in Sec.  
Sec. 14.16-14.19, Sec.  14.22, and Sec.  14.24;
    (3) Any shipment containing live or protected species, as defined 
in Sec.  14.94(h)(4), imported or exported at a nondesignated port 
using a designated port exception permit issued under subpart C of this 
part.
    (4) You must pay two premium inspection fees in addition to any 
base inspection fees required in paragraphs (c), (d), and (e) of this 
section, as defined in Sec.  14.94(h)(4), if your wildlife shipment 
contains live and protected species.
    (g) Overtime fees. You must pay fees for any inspections, including 
travel time, that begin before normal working hours, that extend beyond 
normal working hours, or are on a Federal holiday, Saturday, or Sunday.
    (1) Overtime fees are in addition to any base inspection fees or 
premium inspection fees required for each shipment. We will charge 
these fees regardless of whether or not you have an import/export 
license.
    (2) Our ability to perform inspections during overtime hours will 
depend upon the availability of Service personnel. If we cannot perform 
an inspection during normal working hours, we may give you the option 
of requesting an overtime inspection.
    (3) The overtime fee is calculated using a 2-hour minimum plus any 
actual time in excess of the minimum. It incorporates the actual time 
to conduct an inspection and the travel time to and from the inspection 
location.
    (4) The Service will charge any overtime, including travel time, in 
excess of the minimum in quarter-hour increments of the hourly rate. 
The Service will round up an inspection time of 10 minutes or more 
beyond a quarter-hour increment to the next quarter-hour and will 
disregard any time over a quarter-hour increment that is less than 10 
minutes.
    (5) The Service will charge only one overtime fee when multiple 
shipments are consigned to or are to be exported by the same importer 
or exporter and we inspect all at the same time at one location. The 
overtime fee will consist of one 2-hour minimum or the actual time for 
inspection of all the applicable shipments, whichever is greater. All 
applicable base and premium fees will apply to each shipment.
    (6) We will charge 1 hour of time at 1\1/2\ times the hourly labor 
rate for inspections beginning less than 1 hour before normal working 
hours.
    (7) We will charge a minimum of 2 hours of time at an hourly rate 
of 1\1/2\ times the average hourly labor rate for inspections outside 
normal working hours, except for inspections performed on a Federal 
holiday.
    (8) We will charge a minimum of 2 hours of time at an hourly rate 
of 2 times the average hourly labor rate for inspections performed on a 
Federal holiday.
    (h) Fee schedule.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Fee cost per shipment per year
      Inspection fee schedule       --------------------------------------------------------------------------------------------------------------------
                                              2008                    2009                    2010                   2011             2012 and beyond
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Designated port base inspection  $85...................  $87...................  $89..................  $91..................  $93.
 fee (see Sec.   14.94 (c)).
(2) Staffed nondesignated port base  $133..................  $136..................  $139.................  $142.................  $145.
 inspection fee (see Sec.
 14.94(d)).
(3) Nonstaffed nondesignated port    $133..................  $136..................  $139.................  $142.................  $145.
 base inspection fee (see Sec.
 14.94(e)).
(4) Premium inspection fee at any
 port (see Sec.   14.94 (f)):
    (i) Protected species. Any       $19...................  $37...................  $56..................  $74..................  $93.
     species that requires a permit
     under parts 15, 16, 17, 18,
     21, 22, or 23 of this chapter;.
    (ii) Live species. Any live      $19...................  $37...................  $56..................  $74..................  $93.
     wildlife, including live
     viable eggs and live pupae.
(5) Overtime inspection fee (see
 Sec.   14.94(g)):
    (i) Inspections beginning less   $48...................  $49...................  $51..................  $52..................  $53.
     than 1 hour before normal work
     hours.
    (ii) Inspections after normal    $96 min. + $48/hr.....  $98 min. + $49/hr.....  $101 min. + $51/hr...  $103 min. + $52/hr...  $105 min. + $53/hr.
     work hours, including Saturday
     and Sunday. (2 hour minimum
     charge plus fee for additional
     time).
    (iii) Inspections on Federal     $128 min. + $64/hr....  $131 min.+ $65/hr.....  $133 min. + $67/hr...  $136 min. + $68/hr...  $139 min. + $70/hr.
     holidays. (2 hour minimum
     charge plus fee for additional
     time).
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (i) The Service will not refund any fee or any portion of any 
license or inspection fee or excuse payment of any fee because 
importation, exportation, or clearance of a wildlife shipment is 
refused for any reason.
    (j) All base inspection fees, premium inspection fees, and overtime 
fees will apply regardless of whether or not a physical inspection of 
your wildlife shipment is performed, and no fees will be prorated 
except as provided in paragraphs (e) and (g)(5) of this section.
    (k) Exemptions to inspection fees.
    (1) Certain North American-origin wild mammal furs or skins. 
Wildlife shipments that meet all of the following criteria are exempt 
from the designated port base inspection fee (however, these shipments 
are not exempt from the designated port overtime fees or the import/
export license application fee):
    (i) The wildlife is a raw fur; raw, salted, or crusted hide or 
skin; or a separate fur or skin part, lawfully taken from the wild in 
the United States, Canada, or Mexico that does not require permits 
under parts 17, 18, or 23 of this chapter; and
    (ii) You, as the importer or exporter, or a member of your 
immediate family, such as your spouse, parents, siblings, and children, 
took the wildlife from the

[[Page 74631]]

wild and are shipping the wildlife between the United States and Canada 
or Mexico; and
    (iii) You have not previously bought or sold the wildlife described 
in paragraph (k)(1)(i) of this section, and the shipment does not 
exceed 100 raw furs; raw, salted, or crusted hides or skins; or fur or 
skin parts; and
    (iv) You certify on Form 3-177, Declaration for Importation or 
Exportation of Fish or Wildlife, that your shipment meets all the 
criteria in this section.
    (2) You do not have to pay base inspection fees, premium inspection 
fees, or overtime fees if you are importing or exporting wildlife that 
is exempt from import/export license requirements as defined in Sec.  
14.92(a) or you are importing or exporting wildlife as a government 
agency as defined in Sec.  14.92(b)(1)(ii).
    (3) You do not have to pay base inspection fees, premium inspection 
fees, or overtime fees if you are importing or exporting wildlife that 
meets the criteria for ``domesticated animals'' as defined in Sec.  
14.4.

    Dated: October 16, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks. .
 [FR Doc. E8-29070 Filed 12-8-08; 8:45 am]
BILLING CODE 4310-55-P