Topic: U.S. Fish and Wildlife Service proposes to increase permit fees
Update 11 April 2005: The final rule was issued today. See below for full text or
click here for a .pdf copy.
Background: Permit fees, which have not been increased since 1982, would increase under this proposal (.pdf document), published for comment on
26 August 2003. A table in the notice shows the actual increases.
Comments: The comment period closed 10 October 2003. Comments filed by the Ornithological Council can be found here (.pdf document).
Full text of final rule:
[Federal Register: April 11, 2005 (Volume 70, Number 68)]
[Rules and Regulations]
[Page 18311-18320]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 21
Revisions to General Permit Procedures
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: This final rule revises the U.S. Fish and Wildlife Service's
permit application fee schedule for permits issued by the Divisions of
Migratory Bird Management, Endangered Species, Law Enforcement, and
Management Authority. The rule also clarifies several aspects of
Service permit application procedures, and updates permit-related
Service addresses. Additionally, the rule extends the tenure of two
types of migratory bird permits.
DATES: This rule goes into effect on May 11, 2005.
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours, in the office of the
Division of Migratory Bird Management; U.S. Fish and Wildlife Service;
4401 North Fairfax Drive; MBSP-4107; Arlington, Virginia 22203-1610.
FOR FURTHER INFORMATION CONTACT: Brian Millsap, Chief, Division of
Migratory Bird Management, U.S. Fish and Wildlife Service, 703/358-
1714.
SUPPLEMENTARY INFORMATION:
Background
In implementing its responsibilities under the Endangered Species
Act of 1973, as amended (ESA), the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES), the Migratory Bird
Treaty Act (MBTA), the Bald and Golden Eagle Protection Act (BGEPA),
and other wildlife laws, the U.S. Fish and Wildlife Service issues
permits, licenses, and certificates that authorize the holders to
engage in certain wildlife-related activities that are regulated by
international treaty or laws of the United States. The Service charges
user fees to offset the cost of processing applications for these
permits, licenses, and certificates, as well as the cost of monitoring
and maintaining active permit files.
The general statutory authority to charge fees for processing
applications for permits and certificates is found in 31 U.S.C. 9701,
which states that services provided by Federal agencies are to be
``self-sustaining to the extent possible.'' The authority to charge
fees is also found under various wildlife laws. Specifically, the ESA,
16 U.S.C. 1540(f), authorizes the Secretary to ``charge reasonable fees
for expenses to the Government connected with permits or certificates
authorized by [the ESA] including processing applications.'' The Marine
Mammal Protection Act (MMPA), 16 U.S.C. 1374(g), also provides that the
``Secretary shall establish and charge a reasonable fee for permits''
issued under the MMPA.
Federal user fee policy, as stated in Office of Management and
Budget (OMB) Circular No. A-25, requires Federal agencies to recoup the
costs of ``special services'' that provide benefits to identifiable
recipients. Permits are special services, authorizing identifiable
recipients to engage in activities not otherwise authorized for the
general public. Some of the Service's programs that issue permits
receive little or no designated budget appropriations specifically for
permitting activities. Others receive some funding, but such funding is
part of the overall program budget and is not enough to completely
cover the permitting activity costs. Our ability to effectively provide
these special services depends in large part on user fees. As a result,
we have revised the standard permit application fee, designated under
title 50 of the Code of Federal Regulations (CFR) at Sec. 13.11(d)(4),
which has not been revised since 1982, in order to recoup more of the
costs associated with providing permitting services. [For additional
discussion of why the Service must raise the current application fees,
please refer to the proposed rule (68 FR 51222, published on August 26,
2003).]
While the fee revisions promulgated by this rule will help the
Service to recover a greater portion of the cost of administering
permits, the increases are not sufficient to cover the total cost of
our permit programs (much less defray other program costs). The new fee
structure is a compromise between recouping the entire cost of
providing these special services and the need to establish a fee
schedule that will not unduly burden individual applicants.
Summary of Comments and Recommendations
During the comment period, which was open from August 26 through
October 10, 2003, the Service received a total of 273 comments.
Thirteen of these comments were in agreement with raising application
fees and did not raise any specific concerns. Eighty-six comments were
in general disagreement with raising fees, but also did not raise any
specific concerns beyond objecting to the concept of raising fees. Two
comments addressed issues that were outside the scope of the proposed
rule and therefore will not be addressed here (these comments will be
passed on to the relevant Service office for further consideration).
The remaining issues raised by the commenters, and our responses to
each, are summarized below.
Issue 1: We received three comments recommending that tribal
entities and Native Americans be exempted from application fees. The
proposed rule would have waived permit application fees only for
Federal and State agencies and their agents, and for permits for Indian
religious use. Generally, these commenters requested that the fee
waiver be expanded to include all activities conducted by Native Americans or by tribal governments.
Another commenter questioned exempting tribal members from fees for
applications involving religious activities. This commenter did not see
such an exemption as being fair to other Americans who could not claim
such an exemption.
Response: We agree that fees should be waived for tribal
governments, and have revised the final rule at Sec. 13.11(d)(3) to
expand the fee waiver to tribal governments. However, the Service does
not agree that exempting all tribal members from all application fees
is justified. While we support, as indicated in the proposed rule, a
fee exemption for tribal members who are engaged in religious
activities, we do not believe that tribal members who request permits
for secular or commercial activities should be exempt from paying the
application fees. The basis for exempting tribal members from paying
application fees for permits for religious use is the American Indian
Religious Freedom Act of 1978 and the Service's Federal Trust
responsibilities toward Native American tribes. Therefore, for example,
we will not charge a fee for Native American religious eagle permits or
Native American religious purposes--eagle transport permits. As we
explained in the proposed rule, fees also may be waived on a case-by-
case basis for extraordinary extenuating circumstances provided that
the issuing permit office and a Regional or Assistant Director approve
the waiver.
Issue 2: Twenty-five comments were received about the need to
improve the permitting process as a way to reduce the cost of running
the permitting programs and, thus, require lower fees from applicants.
Response: The Service agrees that we need to continue improving the
permitting process to ensure that it is effective and responsive to
user needs. All of the Divisions that issue permits are involved in
such efforts. While it is true that making the permitting process more
effective and efficient should reduce some costs of the programs, it
will not eliminate the need for application fees. In addition, since it
has been so long since the fees were raised, the increased fees are
needed to give the Service critical resources that will help us to
improve the efficiency of the programs. As stated in the proposed rule,
the Service will periodically re-evaluate the application fees to
determine if changes are warranted.
Issue 3: We received 18 comments regarding the financial difficulty
migratory bird rehabilitators will face in paying a fee for the permit
necessary to carry out their work. There was a general agreement among
these commenters that rehabilitators spend a large amount of their own
financial resources to rehabilitate injured migratory birds and as such
should not be required to pay an application fee.
Response: The Service recognizes that migratory bird rehabilitators
provide care to injured and sick birds and help to increase public
awareness about wildlife. Nevertheless, the Service incurs substantial
costs when processing applications for these permits. As stated in the
proposed rule, the $50 application fee would be for permits that are
valid for 5 years. This means that the annual cost for obtaining a
migratory bird rehabilitation permit is only $10/year. The Service does
not consider such a fee to be a significant economic burden for permit
applicants.
Issue 4: One commenter questioned the Service's commitment to
scientific research, and raised concerns about application fees for
scientific research and collection permits being too high and, as such,
having an adverse effect on the ability of researchers to carry out
their work. The commenter believes there is a disparity between the
application fee for scientific collecting permits and the fee for other
permitted activities, such as rehabilitation permits or scientific
research import permits under the Wild Bird Conservation Act (WBCA).
The same commenter noted that migratory bird scientific collecting
permits are not always issued for the full 3-year tenure authorized by
regulations at 50 CFR 21.23, which provide that ``the term of the
permit shall not exceed three (3) years.'' The commenter felt that the
proposed fees would be more acceptable if the permit tenure was
lengthened.
Response: The Service is committed to promoting scientific research
and facilitating the authorization of such activities. The Service also
understands that researchers, particularly graduate students, may be
constrained by budgetary issues and that application fees are one issue
they face. However, the Service does not agree that the proposed
application fees are too high or that implementing such fees would
result in less research being carried out. As stated in the proposed
rule, the Service will strive to combine permitting authorization to
eliminate the need to submit multiple applications to cover all aspects
of a researcher's work. By combining the permitting authority, the
applicant would need to submit only one application (and only one fee)
to request the required authorization to carry out their work. For
instance, an applicant conducting research on eagles and migratory
birds and importing or exporting specimens may obtain a single permit
under the MBTA, BGEPA, and CITES. With regard to the apparent disparity
between the cost of different applications, it is important to realize
that the time and resources necessary to process different types of
applications vary. As a rule, applications that involve take of healthy
wildlife (as opposed to sick and injured wildlife) from the wild
require more extensive review. The workload associated with the review
is not necessarily less if the duration of the proposed project is less
than 3 years. Rather, the processing workload is determined by the
species, quantity, and status of the species. Given the different
levels of review required for different types of applications and the
varying issuance criteria under different laws, the application fees
for different applications must vary.
As far as permit tenure for migratory bird scientific collecting
permits, many of these permits are issued for less than 3 years, for a
variety of reasons. First, if an applicant proposes a project lasting
only 1 or 2 years, the permit may be issued for less than 3 years.
Second, new permits (as opposed to renewals) often will be issued for
less than 3 years because our policy has been to coordinate scientific
collecting permits to expire on the same date in a given year. This
facilitates our administration by enabling us to generate permit
renewal notices and renewed permits in large batches. In January 2003,
we shifted the expiration date for scientific collecting permits from
December 31 to March 31 to create a smoother renewal process for
permittees and us. The shift benefits permittees by enabling them to
submit their renewal request with their annual report, which is due
January 31 of the year following conduct of the activities. Further, it
benefits the permittee by better ensuring that we will have received
the permittee's renewal request 30 days before expiration of the
permit, which enables the permittee to continue to conduct permitted
activities if the permit expires before the Service acts on the
renewal. However, as a result of this fixed expiration date, the tenure
of new permits will rarely be for a full 3 years (unless the permit was
issued on or around March 31). Finally, scientific collecting permits
are occasionally issued for less than 3 years because of biological
concerns or uncertainties regarding the species to be taken, but these
instances are rare.
For projects that are not already limited to less than 3 years
because of
the duration of the proposed scientific research project, and which are
not limited by biological concerns, we will consider revising our
procedures so that these permits can be valid for the full 3-year
tenure authorized by regulation. We will also consider amending the
scientific collecting permit regulation to extend the authorized permit
tenure for collecting permits. However, since we did not propose
extending the tenure of scientific collecting permits in our proposed
rulemaking, we cannot amend the regulation by including it here in a
final rulemaking. We intend to revise migratory bird scientific
collecting regulations in the near future, and we will consider this
option during the course of that rulemaking process.
Issue 5: Forty-six commenters expressed concern that the increase
in fees, particularly application fees for CITES re-export
certificates, was too high and would adversely impact small businesses.
The primary concern expressed by these commenters was the slim profit
margin under which their businesses operate, such that any increase in
application fees could adversely affect their business.
Response: The Service is keenly aware that some businesses based on
the utilization of wildlife may run on a very low profit margin. We
recognize that if the overall cost of conducting business is
significantly increased due to the application fee rising, there may be
a negative impact on the business. This may be particularly true when
requesting authorization to re-export a limited number of CITES listed
species. For example, if a proposed re-export shipment of two snakes
going to Japan is valued at only $300, an application fee of $75, one
quarter of the shipment's value, may appear high. While the fee
increase is not intended to restrict or eliminate the sustainable
utilization of wildlife, it may have an economic effect on small
shipments or transactions. However, as stated in the proposed rule, the
Service must expend time and resources to review and process
applications. In the case of businesses applying to conduct activities
that are otherwise prohibited by law, the permits authorizing such
activities are special use permits, and the burden for addressing such
requests falls on the applicant and his/her customers, not the general
public. It may be necessary for some businesses to readdress 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 fees may impact some businesses, we must raise the fees
to ensure that we can adequately address our responsibilities under the
various regulations and laws.
Issue 6: Three commenters raised the point that local governments
carry out similar activities as State and Federal agencies with regard
to wildlife conservation and management. It was their opinion that the
fee exemption should be extended to local government agencies as well.
Response: The Service agrees that local governments should also be
exempt from the requirement to pay application fees for Service
permits. Accordingly, we have revised the final rule at Sec.
13.11(d)(3) to extend the fee waiver to local governments, as well as
tribal governments, and individuals and institutions acting on behalf
of a Federal, tribal, State, or local government agency.
Issue 7: Four commenters suggested that the application fees for
migratory bird depredation permits not be raised. These commenters were
concerned that the public would have to pay $50 or $100 to address the
problem of property damage caused by migratory birds, and that it would
be inappropriate to require homeowners and businesses to pay more than
the current $25 application fee to process requests for depredation
permits, particularly given the amount of time it sometimes takes to
obtain this type of permit.
Response: The final rule continues to require a $50 application fee
for homeowner depredation permits and a $100 application fee for other
depredation permits. We have not revised this fee from the proposed
rule because these permits are among the most complex to process due to
the extra level of scrutiny that we are required to undertake when
issuing permits that would authorize taking birds--sometimes lethally--
from the wild. Even though this fee is one of the lowest of all the
permit application fees the Service will charge, the increased fees
will help the Migratory Bird Program to more quickly and efficiently
issue these and other types of permits.
Issue 8: One commenter stated that the application fee for ESA
enhancement-of-survival permits for landowners entering into Safe
Harbor Agreements (SHAs) and Candidate Conservation Agreements with
Assurances (CCAAs) should not be raised to $50. The commenter expressed
an opinion that no fee should be charged since the landowners are
entering into a voluntary agreement with the Service that helps ``the
Service achieve its objectives and legal responsibilities under the
ESA.'' As such, the commenter called for the application fee to be
rescinded in order to encourage more landowners to enter into CCAAs and
SHAs.
Response: While we recognize and appreciate the important
conservation work that private landowners perform on their land, we
incur substantial cost when processing enhancement-of-survival permit
applications for CCAAs and SHAs. These agreements provide important
benefits to listed and unlisted species, while the participating non-
Federal landowner benefits by receiving assurances and allowances for
future take. The $50 application fee applies to permits that are valid
for differing lengths of time, from 10 years and up to 50 or more years
in some cases. We do not believe this fee is a significant economic
burden to permit applicants, especially when averaged over the lifetime
of the permit, or that the fee will be a disincentive to landowners.
Additionally, private landowners may enter into an ``umbrella'' or
programmatic agreement where a nongovernment organization, State
agency, or other entity applies for and holds the permit under which
they enroll private landowners through a Certificate of Inclusion. In
these cases, the private landowner would not incur any application fee.
Issue 9: A single commenter raised the point that, instead of
raising the application fees for ESA permits, the Service should charge
a fee for ``Section 7 consultations conducted by the Service, or for
subsequent permits that are issued to a developer or project
proponent'' who would be more economically able to bear the financial
costs.
Response: This final rule increases the fees for ESA incidental
take permits associated with Habitat Conservation Plans, as well as the
fees for recovery permits. Section 7 consultations are conducted on
those projects that are authorized, funded, or carried out by Federal
agencies. Congress has not given the Service authority to collect fees
from other Federal agencies or their applicants to conduct section 7
consultations.
Issue 10: A large number of commenters (97) commented on the cost
of applying for falconry permits and how the program was being managed.
A majority of these commenters specifically referred to an issue
recently raised at an International Association of Fish and Wildlife
Agencies (IAFWA) meeting. IAFWA called on the Service to transfer the
Federal permitting responsibility of falconry to State agencies, thus
consolidating the permitting requirements in one agency (the State), as
opposed to two (State and Federal). Most of those commenting on
falconry permit application fees felt the proposed fee was too high,
particularly given the current regulations requiring the renewal of a
falconer's Federal permit at the same time State permits are renewed.
Some States require renewal annually, while others require renewal
every 2 or 3 years. The commenters pointed out that if the cost of a
Federal falconry permit is $100 each time it is renewed, in a 3-year
period, falconers who need to renew annually would pay $300, while
others who have to renew only every 3 years would pay only $100.
Response: We recognize that the Federal renewal process for
falconers who live in States with regulations that require renewal of
falconry permits every year or every 2 years may create an additional
burden that other falconers may not face. However, in addition to
creating more work and expense for the falconer, both the 1-year and 2-
year renewal requirements result in increased workload and staffing
demands for the Service. The Service's costs associated with processing
these renewals do not decrease because the permit tenure is shorter--
the workload entailed in processing these renewals remains the same
regardless of how frequently we are required to undertake it because of
a State's regulations. Therefore, we believe that a fee of $100 for
Federal falconry permits and renewals, no matter in which State the
applicant/falconer resides, is both necessary and appropriate.
While the IAFWA proposal to consolidate falconry permitting may
have merit, it exceeds the scope of the present rulemaking. We believe
that this rule is not the appropriate venue for considering this
option. To this end, a proposed rule addressing this specific issue was
published on February 9, 2005 (70 FR 6978).
Issue 11: One commenter expressed confusion regarding the fee that
would be charged for the importation of non-native threatened or
endangered sport-hunted trophies. This commenter thought that the
narrative did not clearly explain how this fee would be applied.
Response: The application fee for a permit to import a non-native
threatened or endangered sport-hunted trophy will be $100. No
additional fees would be charged in relation to CITES requirements. If
the permit needs to be renewed due to a delay in importing the
specimen, we will charge a $50 fee to reissue the permit.
Issue 12: One commenter questioned whether some of the policies
addressed in the proposed rule, such as ``Renewals and Amendments,''
merely codify existing Service policies or if they are actually new
policies that are being presented for the first time. The commenter
requested that the Service clearly indicate which of these issues are
clarifications and which are new policies.
Response: Most of the issues raised in the proposed rule are merely
clarifications of procedures currently used by the Service. Since some
issues, such as when a request is for a renewal versus when a request
is for a new permit, have not been codified, doing so in this rule was
important to ensure that the Service is being consistent across
programs and to provide the public with clear guidance.
Issue 13: One commenter was concerned about the proposed amendment
to Sec. 13.42, which states that a permit is specific to a particular
activity and that permittees are subject to appropriate conditions
placed on the permit. The commenter was particularly concerned that the
proposed language for Sec. 13.42 would give the Director the
discretion to establish specific conditions for the issuance of
permits, giving the Director the ability to treat different applicants
disparately and inviting arbitrariness into the permit issuance system.
Response: The proposed language for Sec. 13.42 is intended to
clarify the existing regulatory language, not to change the criteria
the Service uses to issue permits. The new language was proposed for
Sec. 13.42 to reiterate that a permittee may have specific conditions
placed on the permit that affect when, how, where, and to what extent
the permitted activity can be carried out. Such specific conditions are
needed to allow the Service to tailor individual permit authorizations
to the applicant's particular qualifications, and to ensure the
continued conservation of the affected species. Without the ability to
refine permit conditions, all permittees would have identical permit
authorizations, no matter what experience, facilities, or other
qualifications they possess, and without regard for the unique
conservation needs of the affected species.
After further review of the proposed changes to Sec. 13.42, we
realized that the language was somewhat redundant to language already
codified in Sec. 13.21(e)(1). We have therefore taken the first two
sentences of the proposed language for Sec. 13.42 and amended Sec.
13.21(e)(1) to contain this language. This administrative change was
made to eliminate duplicating language and to make the regulations
easier to understand.
The concept that permits are specifically issued for a particular
activity is not a new idea, and the new language only clarifies the
current section. This new language in no way alters or affects how the
Service can issue or deny a permit request. The issuance of every
permit must conform to the general issuance criteria for that permit
type. These criteria are established in separate regulations addressing
permit authorization for that type of activity (e.g., falconry or
captive breeding for endangered species).
Revised Fee Language
After reviewing the comments we received, the Service believes that
the majority of the proposed changes to Sec. 13.11 are acceptable and
should be implemented. However, as mentioned above in ``Summary of
Comments and Recommendations,'' we have made a few revisions to this
final rule from what we proposed originally.
Changes in CITES Permits and the Corresponding Fee Changes
With the implementation of new CITES Resolutions and in an ongoing
effort to improve the efficiency of the permitting process, the
Division of Management Authority has implemented certain internal
changes to the permit procedures. The Service announced some of these
new procedures in a previous Federal Register proposed rule (65 FR
26664; May 8, 2000). Other procedural changes were outlined in the
proposed rule to this final rule. The procedural changes that were
previously addressed were presented in the proposed rule to this final
rule for information purposes and to explain why some additional fees
were required. They were not proposed for codification.
Combining Permit Authorizations
As stated in the proposed rule, when applicants need more than one
type of permit to cover their proposed activities (e.g., for the export
of a bird covered by both CITES and the MBTA, or the take from the wild
of a bird covered by both the ESA and MBTA), the Service may issue a
consolidated permit combining the multiple authorizations. We received
no comments on this issue and will retain the language presented in the
proposed rule.
Renewals and Amendments
To ensure consistency, the Service is taking this opportunity to
clarify its position on permit renewals and amendments. As stated in
the proposed rule, applications to renew a permit when the tenure of a
permit is expiring or has expired are effectively new permit applications. Therefore, all
applicable fees will be assessed. For most permit types, the Service
will assess a fee for amendments to a valid permit where the amendment
reflects a substantive change within the scope of the permit. We will
not charge permittees for administrative changes to valid permits, such
as address and telephone number changes. The amount for an amendment is
identified in the fee schedule. If there is no fee next to the
permitted activity you wish to amend, this indicates either that your
particular permit cannot be amended and a new application would need to
be submitted or that no fee would be charged for amending the permit
(you would need to contact the issuing office to determine which
situation applies). For further discussion on this issue, please see
the proposed rule at 68 FR 51222.
Waivers
Currently, Sec. 13.11(d)(3) provides for a waiver of permit fees
for ``any Federal, State or local government agency, [or] to any
individual or institution under contract to such agency for the
proposed activities.'' In the proposed rule, we suggested limiting the
fee waiver for public institutions to Federal and State governmental
agencies and to individuals or institutions under contract to such
agencies. We also stated that fees could be waived on a case-by-case
basis for extraordinary extenuating circumstances provided that the
issuing permit office and a Regional or Assistant Director approves the
waiver. However, after reviewing comments stating that we should waive
fees for applications from both local and tribal governments, we agree
that the fee waiver should include these entities. (See discussion
under Issues 1 and 6, above.) In addition, we have altered the language
to identify that individuals or institutions ``acting on behalf of ''
any Federal, tribal, State, or local government agency would be exempt
from application fees. We have amended the proposed language in Sec.
13.11(d)(3) to reflect these changes.
Additional Revisions
In the proposed rule, we proposed several administrative changes to
Sec. 13.3, ``Scope of regulations''; Sec. 13.11(b) regarding Service
addresses; and Sec. 13.11(c), regarding the time required to process
some requests. We received no comments regarding these administrative
changes, and because they will improve the permitting process, all of
the proposed changes will be implemented as proposed.
In reviewing the proposed rule, we determined that the proposed
addition of Sec. 13.12(c) and the proposed revision of Sec. 13.42
contained language that was somewhat redundant to language that had
already been codified in Sec. Sec. 13.12(a)(9) and 13.21(e)(1). To
eliminate any redundancy in Sec. 13.12, we will not finalize Sec.
13.12(c) as proposed, but have instead revised Sec. 13.12(a)(9) to
include the new language. In addition, we have removed the first
sentence of the proposed Sec. 13.42, which contained the redundancy
with Sec. 13.21(e)(1), and combined it with Sec. 13.21(e)(1). The
remaining proposed language of Sec. 13.42 will be implemented as
proposed.
Extension of Permit Tenure for Two Migratory Bird Permits
We received no comments on the proposal to extend the permit tenure
for taxidermist permits (Sec. 21.24) and waterfowl sale and disposal
permits (Sec. 21.25) from 3 years to 5 years, and we will implement
the proposed changes through this final regulation.
Endangered Species Act Consideration
Section 7(a)(1) of the ESA (16 U.S.C. 1531 et seq.) provides that
``[t]he Secretary [of the Interior] shall review other programs
administered by him and utilize such programs in furtherance of the
purposes of this Act.'' Furthermore, section 7(a)(2) of the Act
requires all Federal agencies to ``insure that any action authorized,
funded, or carried out * * * is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in
the destruction or adverse modification of [critical] habitat.'' Our
review of this rule pursuant to section 7 of the ESA concluded that
this action will not affect listed or proposed species or critical
habitat.
Required Determinations
Responsibilities of Federal Agencies To Protect Migratory Birds (E.O.
13186)
This rule has been evaluated for impacts to migratory birds, with
emphasis on species of management concern, and is in accordance with
the guidance in Executive Order 13186.
Regulatory Planning and Review (E.O. 12866)
In accordance with the criteria in Executive Order 12866, this rule
is not a significant regulatory action. OMB has made this determination
of significance under Executive Order 12866.
a. This rule will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. A cost-benefit and economic
analysis is not required. The purpose of this rule is to more closely
align the fee structure with the Federal cost of permit processing for
permits issued by the Divisions of Migratory Bird Management, Law
Enforcement, Endangered Species, and Management Authority. Fees charged
for permits issued by the Fish and Wildlife Service have not increased
since 1982. During that time period, Federal salaries have increased by
128 percent and since permit reviews are a labor-intensive activity,
Service programs have had to absorb the additional cost of permit
processing.
In total, the Service processes approximately 25,000 permits
annually.
About half of these permits are issued to small entities, many of
whom can pass on the economic effect of the fee increase (an average of
$50 per year per permit) to consumers, depending on the elasticity of
demand. The maximum loss in consumer surplus, if all costs were passed
along to consumers, would be $1.25 million annually. However, for
commercial permittees, the average $50 cost increase of the permits
will be spread over many products and result in negligible price
increases to consumers. The Service believes that the permit fee for
working with regulated plants and wildlife is a very small part of the
cost of these activities and will result in a negligible economic
impact to consumers and businesses.
The benefit of better aligning the permit application fees schedule
to the cost of Federal processing is that this will shift more of the
burden of payment for these services from taxpayers as a whole to those
persons who are receiving the government services. User fee increases
reflect a related shift in appropriations of taxes to government
programs, allowing those tax dollars to be applied to other programs
that benefit the general public.
The administrative costs involved in implementing this rule are
minimal, since the Service permit programs are already established, and
the mechanisms for collecting the permit application fees are already
in place. Therefore, the net gain of reducing the costs on taxpayers
greatly outweighs the costs of introducing the user fee increases.
b. This rule will not create serious inconsistencies or otherwise
interfere with other agencies' actions. This rule pertains to a Federal
permit application process that already exists, and the only purpose of
this rule is to update the fee structure to recover Federal costs of
processing the permit applications.
c. This rule will not negatively impact or affect entitlements,
other grants, user fees, loan programs, or the rights and obligations
of their recipients. This rule affects user fees charged for plant and
wildlife permits by updating and better aligning the fees with the
Federal cost of processing the permits. The average fee increase will
be $50 per year with a range of annual fee increases running from $10
for a migratory bird rehabilitation permit to $275 for a marine mammal
public display permit. Multiplying the expected 25,000 permits issued
annually by the average fee increase of $50 yields a maximum of $1.25
million, which is well below the threshold for a significant regulatory
action.
d. This rule does not raise novel legal or policy issues. The
current fee schedule for plant and wildlife related permits has been in
place since July 15, 1982. No new permits are included in this
rulemaking. The only purpose of this rulemaking is to update and better
align the permit fee schedule with the actual Federal cost for
processing the applications.
List of Subjects
50 CFR Part 13
Administrative practice and procedure, Exports, Fish, Imports,
Plants, Reporting and recordkeeping requirements, Transportation,
Wildlife.
50 CFR Part 21
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
For the reasons set forth in the preamble, title 50, chapter I,
subchapter B of the Code of Federal Regulations is amended as follows:
PART 13--[AMENDED]
1. The authority citation for part 13 is revised to read as follows:
Authority: 16 U.S.C. 668a, 704, 712, 742j-l, 1374(g), 1382,
1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C.
1202; 31 U.S.C. 9701.
2. Revise Sec. 13.3 to read as follows:
Sec. 13.3 Scope of regulations.
The provisions in this part are in addition to, and are not in lieu
of, other permit regulations of this subchapter and apply to all
permits issued thereunder, including ``Importation, Exportation and
Transportation of Wildlife'' (part 14), ``Wild Bird Conservation Act''
(part 15), ``Injurious Wildlife'' (part 16), ``Endangered and
Threatened Wildlife and Plants'' (part 17), ``Marine Mammals'' (part
18), ``Migratory Bird Permits'' (part 21), ``Eagle Permits'' (part 22),
and ``Endangered Species Convention'' (the Convention on International
Trade in Endangered Species of Wild Fauna and Flora) (part 23). As used
in this part 13, the term ``permit'' will refer to a license, permit,
certificate, letter of authorization, or other document as the context
may require, and to all such documents issued by the Service or other
authorized U.S. or foreign government agencies.
3. Revise Sec. 13.11 to read as follows:
Sec. 13.11 Application procedures.
The Service may not issue a permit for any activity authorized by
this subchapter B unless you have filed an application under the
following procedures:
(a) Forms. Applications must be submitted in writing on a Federal
Fish and Wildlife License/Permit Application (Form 3-200) or as
otherwise specifically directed by the Service.
(b) Forwarding Instructions. Applications for permits in the
following categories should be forwarded to the issuing office
indicated below.
(1) You may obtain applications for migratory bird banding permits
(50 CFR 21.22) by writing to: Bird Banding Laboratory, USGS Patuxent
Wildlife Research Center, 12100 Beech Forest Road, Laurel, Maryland
20708-4037. Submit completed permit applications to the same address.
(2) You may obtain applications for designated port exception
permits and import/export licenses (50 CFR 14) by writing to the
Special Agent in Charge (SAC) of the Region in which you reside (see 50
CFR 2.2 or the Service Web site, http://www.fws.gov, for addresses and
boundaries of the Regions). Submit completed permit applications to the
same address.
(3) You may obtain applications for Wild Bird Conservation Act
permits (50 CFR 15); injurious wildlife permits (50 CFR 16); captive-
bred wildlife registrations (50 CFR 17); permits authorizing import,
export, or foreign commerce of endangered and threatened species, and
interstate commerce of non-native endangered or threatened species (50
CFR 17); marine mammal permits (50 CFR 18); and permits and
certificates for import, export, and reexport of species listed under
the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) (50 CFR 23) from: U.S. Fish and Wildlife
Service, Division of Management Authority, 4401 N. Fairfax Drive, Room
700, Arlington, Virginia 22203-1610. Submit completed permit
applications to the same address.
(4) You may obtain Endangered Species Act permit applications (50
CFR 17) for activities involving native endangered and threatened
species, including incidental take, scientific purposes, enhancement of
propagation or survival (i.e., recovery), and enhancement of survival
by writing to the Regional Director (Attention: Endangered Species
Permits) of the Region where the activity is to take place (see 50 CFR
2.2 or the Service Web site, http://www.fws.gov, for addresses and
boundaries of the Regions). Submit completed applications to the same
address (the Regional office covering the area where the activity will
take place). Permit applications for interstate commerce for native
endangered and threatened species should be obtained by writing to the
Regional Director (Attention: Endangered Species Permits) of the Region
that has the lead for the particular species, rather than the Region
where the activity will take place. You can obtain information on the
lead Region via the Service's Endangered Species Program Web page
(http://endangered.fws.gov/wildlife.html) by entering the common or
scientific name of the listed species in the Regulatory Profile query
box. Send interstate commerce permit applications for native listed
species to the same Regional Office that has the lead for that species.
Endangered Species Act permit applications for the import or export of
native endangered and threatened species may be obtained from the
Division of Management Authority in accordance with paragraph (b)(3) of
this section.
(5) You may obtain applications for bald and golden eagle permits
(50 CFR 22) and migratory bird permits (50 CFR 21), except for banding
and marking permits, by writing to the Migratory Bird Permit Program
Office in the Region in which you reside. For mailing addresses for the
Migratory Bird Regional Permit Offices,
see below, or go to: http://permits.fws.gov/mbpermits/addresses.html.
Send completed applications to the same address.
The mailing addresses for the Regional Migratory Bird Permit Offices are as follows:
Region 1 (CA, HI, ID, NV, OR, WA): U.S. Fish and Wildlife Service,
Migratory Bird Permit Office, 911 N.E. 11th Avenue, Portland, OR 97232-
4181.
Region 2 (AZ, NM, OK, TX): U.S. Fish and Wildlife Service, Migratory
Bird Permit Office, P.O. Box 709, Albuquerque, NM 87103.
Region 3 (IA, IL, IN, MN, MO, MI, OH, WI): U.S. Fish and Wildlife
Service, Migratory Bird Permit Office, One Federal Drive, Fort
Snelling, MN 55111.
Region 4 (AR, FL, GA, KY, LA, MS, NC, SC, TN, PR, VI): U.S. Fish and
Wildlife Service, Migratory Bird Permit Office, P.O. Box 49208,
Atlanta, GA 30359.
Region 5 (CT, DC, DE, MA, MD, ME, NH, NJ, NY, PA, RI, VA, VT, WV):
U.S. Fish and Wildlife Service, Migratory Bird Permit Office, P.O. Box
779, Hadley, MA 01035-0779.
Region 6 (CO, KS, MT, ND, NE, SD, UT, WY): U.S. Fish and Wildlife
Service, Migratory Bird Permit Office, P.O. Box 25486, DFC (60130),
Denver, CO 80225-0486.
Region 7 (AK): U.S. Fish and Wildlife Service, Migratory Bird Permit
Office (MS-201), 1011 E. Tudor Road, Anchorage, AK 99503.
(c) Time notice. The Service will process all applications as
quickly as possible. However, we cannot guarantee final action within
the time limit you request. You should ensure that applications for
permits for marine mammals and/or endangered and threatened species are
postmarked at least 90 calendar days prior to the requested effective
date. The time we require for processing of endangered and threatened
species incidental take permits will vary according to the project
scope and significance of effects. Submit applications for all other
permits to the issuing/reviewing office and ensure they are postmarked
at least 60 calendar days prior to the requested effective date. Our
processing time may be increased by the procedural requirements of the
National Environmental Policy Act (NEPA), the requirement to publish a
notice in the Federal Register requesting a 30-day public comment
period when we receive certain types of permit applications, and/or the
time required for extensive consultation within the Service, with other
Federal agencies, and/or State or foreign governments. When applicable,
we may require permit applicants to provide additional information on
the proposal and on its environmental effects as may be necessary to
satisfy the procedural requirements of NEPA.
(d) Fees. (1) Unless otherwise exempted under this subsection, you
must pay the required permit processing fee at the time that you apply
for issuance or amendment of a permit. You must pay by check or money
order made payable to the ``U.S. Fish and Wildlife Service.'' The
Service will not refund any application fee under any circumstances if
we have processed the application. However, we may return the
application fee if you withdraw the application before we have
significantly processed it.
(2) If regulations in this subchapter require more than one type of
permit for an activity and the permits are issued by the same office,
the issuing office may issue one consolidated permit authorizing the
activity in accordance with Sec. 13.1. You may submit a single
application in such cases, provided that the single application
contains all the information required by the separate applications for
each permitted activity. Where more than one permitted activity is
consolidated into one permit, the issuing office will charge the
highest single fee for the activity permitted.
(3) Circumstances under which we will not charge a permit
application fee are as follows:
(i) We will not charge a permit application fee to any Federal,
tribal, State, or local government agency or to any individual or
institution acting on behalf of such agency. Except as otherwise
authorized or waived, if you fail to submit evidence of such status
with your application, we will require the submission of all processing
fees prior to the acceptance of the application for processing.
(ii) As noted in paragraph (d)(4) of this section.
(iii) We may waive the fee on a case-by-case basis for
extraordinary extenuating circumstances provided that the issuing
permit office and a Regional or Assistant Director approves the waiver.
(4) User fees. The following table identifies specific fees for
each permit application or amendment to a current permit. If no fee is
identified under the Amendment Fee column, this particular permit
either cannot be amended and a new application, and application fee,
would need to be submitted or no fee will be charged for amending the
permit (please contact the issuing office for further information).
----------------------------------------------------------------------------------------------------------------
Amendment
Type of permit CFR citation Fee fee
----------------------------------------------------------------------------------------------------------------
Migratory Bird Treaty Act
----------------------------------------------------------------------------------------------------------------
Migratory Bird Import/Export.............. 50 CFR 21................................. $75 ...........
Migratory Bird Banding or Marking......... 50 CFR 21................................. ........... ...........
Migratory Bird Scientific Collecting...... 50 CFR 21................................. 100 $50
Migratory Bird Taxidermy.................. 50 CFR 21................................. 100 ...........
Waterfowl Sale and Disposal............... 50 CFR 21................................. 75 ...........
Special Canada Goose...................... 50 CFR 21................................. ........... ...........
Migratory Bird Special Purpose/Education.. 50 CFR 21................................. 75 ...........
Migratory Bird Special Purpose/Salvage.... 50 CFR 21................................. 75 ...........
Migratory Bird Special Purpose/Game Bird 50 CFR 21................................. 75 ...........
Propagation.
Migratory Bird Special Purpose/ 50 CFR 21................................. 100 ...........
Miscellaneous.
Falconry.................................. 50 CFR 21................................. 100 ...........
Raptor Propagation........................ 50 CFR 21................................. 100 ...........
Migratory Bird Rehabilitation............. 50 CFR 21................................. 50 ...........
Migratory Bird Depredation................ 50 CFR 21................................. 100 50
Migratory Bird Depredation/Homeowner...... 50 CFR 21................................. 50 ...........
-------------------------------------------
Bald and Golden Eagle Protection Act
----------------------------------------------------------------------------------------------------------------
Eagle Scientific Collecting............... 50 CFR 22................................. 100 50
Eagle Exhibition.......................... 50 CFR 22................................. 75 ...........
Eagle Falconry............................ 50 CFR 22................................. 100 ...........
Eagle--Native American Religion........... 50 CFR 22................................. ........... ...........
Eagle Depredation......................... 50 CFR 22................................. 100 50
Golden Eagle Nest Take.................... 50 CFR 22................................. 100 50
Eagle Transport--Scientific or Exhibition. 50 CFR 22................................. 75 ...........
Eagle Transport--Native American Religious 50 CFR 22................................. (\1\) (\1\)
Purposes.
-------------------------------------------
Endangered Species Act/CITES/Lacey Act
----------------------------------------------------------------------------------------------------------------
ESA Recovery.............................. 50 CFR 17................................. 100 50
ESA Interstate Commerce................... 50 CFR 17................................. 100 50
ESA Enhancement of Survival (Safe Harbor 50 CFR 17................................. 50 25
Agreement).
ESA Enhancement of Survival (Candidate 50 CFR 17................................. 50 25
Conservation Agreement with Assurances).
ESA Incidental Take (Habitat Conservation 50 CFR 17................................. 100 50
Plan).
ESA and CITES Import/Export and Foreign 50 CFR 17................................. 100 50
Commerce.
ESA and CITES Museum Exchange............. 50 CFR 17................................. 100 50
ESA Captive-bred Wildlife Registration.... 50 CFR 17................................. 200 100
--Renewal of Captive-bred wildlife 50 CFR 17................................. 100 ...........
registration.
CITES Import (including trophies under ESA 50 CFR 17, 18, 23......................... 100 50
and MMPA).
CITES Export.............................. 50 CFR 23................................. 100 50
CITES Pre-Convention...................... 50 CFR 23................................. 75 40
CITES Certificate of Origin............... 50 CFR 23................................. 75 40
CITES Re-Export........................... 50 CFR 23................................. 75 40
CITES Personal Effects and Pet Export/Re- 50 CFR 23................................. 50 ...........
Export.
CITES Appendix II Export (native 50 CFR 23................................. 100 50
furbearers and alligators--excluding live
animals).
CITES Master File (includes files for 50 CFR 23................................. 200 100
artificial propagation, biomedical, etc.
and covers import, export, and re-export
documents).
--Renewal of CITES Master File........ 50 CFR 23................................. 100 ...........
--Single-use permits issued on Master 50 CFR 23................................. \2\ 5 ...........
File.
CITES Annual Program File................. 50 CFR 23................................. 50 ...........
--Single-use permits issued under 50 CFR 23................................. \2\ 5 ...........
Annual Program.
CITES replacement documents (lost, stolen, 50 CFR 23................................. 50 50
or damaged documents).
CITES Passport for Traveling Exhibitions 50 CFR 23................................. \3\ 75 ...........
and Pets.
CITES/ESA Passport for Traveling 50 CFR 23................................. \3\ 100 ...........
Exhibitions.
Import/Export License..................... 50 CFR 14................................. 100 50
Designated Port Exception................. 50 CFR 14................................. 100 50
Injurious Wildlife Permit................. 50 CFR 16................................. 100 50
--Transport Authorization for 50 CFR 16................................. 25 ...........
Injurious Wildlife.
-------------------------------------------
Wild Bird Conservation Act (WBCA)
----------------------------------------------------------------------------------------------------------------
Personal Pet Import....................... 50 CFR 15................................. 50 ...........
WBCA Scientific Research, Zoological 50 CFR 15................................. 100 50
Breeding or Display, Cooperative Breeding.
WBCA Approval of Cooperative Breeding 50 CFR 15................................. 200 100
Programs.
--Renewal of a WBCA Cooperative 50 CFR 15................................. 50 ...........
Breeding Program.
WBCA Approval of a Foreign Breeding 50 CFR 15................................. \4\ 250 ...........
Facility.
-------------------------------------------
Marine Mammal Protection Act
----------------------------------------------------------------------------------------------------------------
Marine Mammal Public Display.............. 50 CFR 18................................. 300 150
Marine Mammal Scientific Research/ 50 CFR 18................................. 150 75
Enhancement/Registered Agent or Tannery.
--Renewal of Marine Mammal Scientific 50 CFR 18................................. 75 ...........
Research/Enhancement/Registered Agent
or Tannery.
----------------------------------------------------------------------------------------------------------------
\1\ No fee.
\2\ Each.
\3\ Per animal.
\4\ Per species.
(5) We will charge a fee for substantive amendments made to permits
within the time period that the permit is still valid. The fee is
generally half the original fee assessed at the time that the permit is
processed; see paragraph (d)(4) of this section for the exact amount.
Substantive amendments are those that pertain to the purpose and
conditions of the permit and are not purely administrative.
Administrative changes, such as updating name and address information,
are required under 13.23(c), and we will not charge a fee for such
amendments.
(6) Except as specifically noted in paragraph (d)(4) of this
section, a permit renewal is an issuance of a new permit, and
applicants for permit renewal must pay the appropriate fee listed in
paragraph (d)(4) of this section.
(e) Abandoned or incomplete applications. If we receive an
incomplete or improperly executed application, or if you do not submit
the proper fees, the issuing office will notify you of the deficiency.
If you fail to supply the correct information to complete the
application or to pay the required fees within 45 calendar days of the
date of notification, we will consider the application abandoned. We
will not refund any fees for an abandoned application.
4. Amend Sec. 13.12 by revising paragraph (a)(9) to read as follows:
Sec. 13.12 General information requirements on applications for
permits.
(a) * * *
(9) Such other information as the Director determines relevant to
the processing of the application, including, but not limited to,
information on the environmental effects of the activity consistent
with 40 CFR 1506.5 and Departmental procedures at 516 DM 6, Appendix
1.3A.
* * * * *
5. Amend Sec. 13.21 by revising paragraph (e)(1) to read as follows:
Sec. 13.21 Issuance of permits.
* * * * *
(e)(1) Conditions of issuance and acceptance. Any permit
automatically incorporates within its terms the conditions and
requirements of subpart D of this part and of any part(s) or section(s)
specifically authorizing or governing the activity for which the permit
is issued, as well as any other conditions deemed appropriate and
included on the face of the permit at the discretion of the Director.
* * * * *
6. Revise Sec. 13.42 to read as follows:
Sec. 13.42 Permits are specific.
The authorizations on the face of a permit that set forth specific
times, dates, places, methods of taking or carrying out the permitted
activities, numbers and kinds of wildlife or plants, location of
activity, and associated activities that must be carried out; describe
certain circumscribed transactions; or otherwise allow a specifically
limited matter, are to be strictly interpreted and will not be
interpreted to permit similar or related matters outside the scope of
strict construction.
PART 21--[AMENDED]
7. The authority citation for part 21 continues to read as follows:
Authority: Pub. L. 95-616; 92 Stat. 3112 (16 U.S.C. 712(2)); Pub
L. 106-108.
8. Amend Sec. 21.24 by revising paragraph (e) to read as follows:
Sec. 21.24 Taxidermist permits.
* * * * *
(e) Term of permit. A taxidermist permit issued or renewed under
this part expires on the date designated on the face of the permit
unless amended or revoked, but the term of the permit will not exceed
five (5) years from the date of issuance or renewal.
9. Amend Sec. 21.25 by revising paragraph (d) to read as follows:
Sec. 21.25 Waterfowl sale and disposal permits.
* * * * *
(d) Term of permit. A waterfowl sale and disposal permit issued or
renewed under this part expires on the date designated on the face of
the permit unless amended or revoked, but the term of the permit will
not exceed five (5) years from the date of issuance or renewal.