[Federal Register: October 26, 2004 (Volume 69, Number 206)]
[Rules and Regulations]
[Page 62415-62418]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26oc04-15]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU02


Endangered and Threatened Wildlife and Plants; Interim Rule for
the Beluga Sturgeon (Huso huso)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Interim rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service, will allow the trade
in beluga sturgeon (Huso huso) and its by-products, provided that
specimens are accompanied by valid permits issued under the Convention
on International Trade in Endangered Species of Wild Fauna and Flora
(CITES). This interim rule will be effective until the publication of a
final rule under Section 4(d) of the Endangered Species Act of 1973, as
amended (Act), pertaining to trade in beluga sturgeon and its
by-products. This interim rule allows the take, import, export, re-
export, and interstate and foreign commerce in beluga sturgeon, without
the issuance of a threatened species permit under the Act for those
specimens that are traded in accordance with the requirements of CITES.
This rule will benefit entities which trade in these products and help
further conservation of this threatened species.

DATES: This rule is effective immediately October 21, 2004. The reasons
for this accelerated implementation for making this rule effective less
than 30 days after publication in the Federal Register are described
below in the section titled, ``Need for Interim Rule.''

FOR FURTHER INFORMATION CONTACT: Robert R. Gabel, Chief, Division of
Scientific Authority, U.S. Fish and Wildlife Service, at 4401 N.
Fairfax Drive, Room 700, Arlington, Virginia 22203 (phone: 703) 358-
1708). For permitting information contact: Peter Thomas, Chief,
Division of Management Authority, U.S. Fish and Wildlife Service, 4401
N. Fairfax Drive, Room 700, Arlington, Virginia 22203 (phone: 703-358-
2104, or toll free, 1-800-358-2104).

SUPPLEMENTARY INFORMATION:

Background

Upon petition from the public, the Service promulgated a rule (69
FR 21425, April 21, 2004) to list beluga sturgeon (Huso huso) as
threatened throughout its range under Section 4(d) of the Endangered
Species Act of 1973, as amended (Act). That listing in 50 CFR 17.11
prohibits all trade (foreign, international, and interstate) in beluga
sturgeon, except as allowed by permit in 50 CFR 17.32. We delayed the
effective date of the listing until October 21, 2004, in order to
promulgate a special rule under Section 4(d) of the Act. The proposed
4(d) rule, published on June 29, 2004 (69 FR 38863), included specific
exemptions from the regulatory requirements of the Act for the trade in
caviar and meat of threatened beluga sturgeon. Contingent upon whether
Black and Caspian Sea countries meet the requirements set forth in the
proposed 4(d) rule, it allows the continued trade in beluga sturgeon
species while continuing to provide the protection under CITES.
The proposed 4(d) rule links U.S. import requirements for beluga
sturgeon trade under the Act to Resolutions and Decisions on sturgeon
trade under the Convention on International Trade in Endangered Species
of Wild Fauna and Flora (CITES). However, given the specific criteria
of the Act, the proposed 4(d) rule would improve on the status quo of
beluga sturgeon under CITES, since the proposed rule aims to improve
transparency of range country actions and requires more specific
information than the CITES process. The proposed 4(d) rule sets
quantitative goals for the species' recovery, with specific targets for
range countries to meet in order for U.S. entities to continue to
import beluga sturgeon products into the United States without ESA
permits.
Under the proposed 4(d) rule, range countries in the Caspian Sea
and Black Sea basins would have 6 months from the proposed 4(d) rule's
effective date to submit their beluga sturgeon conservation and
management plans to the Service for review. During this time, imports,
exports, re-exports, and interstate and foreign commerce in certain
beluga sturgeon products would not require threatened species permits,
but must have legal documentation under CITES. The proposed 4(d) rule
exempts the transfer of beluga caviar and meat into and out of the
United States from additional threatened species regulatory
requirements of the Act when the specimens are obtained from fish that
are wild-caught or hatchery-reared from range countries that have
complied with the rule. The proposed 4(d) rule also exempts interstate
and foreign commerce in these products from the threatened species
regulatory requirements of the Act, if that trade occurs in the United
States or involves U.S. citizens.
In the proposed 4(d) rule, aquacultured specimens (i.e., from
commercial captive-breeding operations) from non-range countries,
including the United States, and live specimens are not exempted from
threatened species' permits. The Service lacked information on how
aquaculture in non-range countries would benefit the conservation of
wild populations, and, instead had an indication that the expansion of
aquaculture in non-range countries could actually diminish the
importance of beluga sturgeon conservation by reducing incentives to
protect the species in the wild. We were concerned that any additional
aquaculture of foreign sturgeon species in the United States might pose
a risk to domestic recovery efforts for several native sturgeon species
listed under the Act or under interstate recovery plans. The Service
believed that countries without native beluga populations, if exempted
from the provisions of the Act under the proposed 4(d) rule, might use
broodstock from countries with native wild populations to generate
products for export to the U.S. marketplace, and would not afford any
conservation benefit to the wild populations. The proposed 4(d) rule
did not include an exemption for live specimens because of concerns
about potential disease risks to native sturgeon and invasive species
concerns associated with possible accidental introductions that may
result with exotic sturgeons.
The proposed 4(d) rule has not been completed and is under review
in order to fully address the public comments received on the rule.
Therefore, absent a 4(d) rule, the Service is issuing this interim rule
to allow the continued trade in beluga sturgeon products, provided that
shipments are accompanied by valid CITES permits or are subject to a
CITES exemption. This interim rule will be effective until the
publication of the final 4(d) rule. This interim special rule allows
the take, import, export, re-export, and interstate and foreign
commerce of beluga sturgeon and its by-products, without the issuance
of additional threatened species permits.

Need for Interim Rule

This interim special rule is necessary to allow the CITES-
consistent trade in beluga sturgeon and its by-products without a
threatened species permit until a final 4(d) rule is completed and
published. The Service's intent was to publish the final 4(d) rule to
coincide with the effective date of the beluga sturgeon threatened
listing on October 21, 2004. However, the process to finalize the 4(d)
rule required more time than anticipated because the Service received
comments on the proposed rule on a number of complex issues. We also
received new information, which the Service lacked, related to:
The development of aquaculture for beluga sturgeon within
the United States,
How aquaculture in non-range countries could benefit the
conservation of wild populations, and
On the scope of aquaculture activities with this species
in the United States, including information on cooperative activities
between U.S. entities and range countries.
The Service did not anticipate the extent of the public response
from aquaculturists, scientists, and State offices related to this
issue. It is the Service's responsibility to carefully review all
public comments on this issue and to consider whether some adjustments
should be made, and if so, to determine what measures are necessary to
regulate the trade in aquacultured beluga sturgeon from non-
range countries, including the United States. This interim rule will
provide the Service additional time to carefully and appropriately
respond to all the comments received, including those related to the
role of aquaculture in the conservation of and trade in sturgeon
species and their products without disrupting the trade and current
conservation efforts for beluga sturgeon. The Service is actively
working to complete the final special 4(d) rule and to publish it by
the end of January. Without this interim rule, commercial activities
involving beluga sturgeon and its by-products would be prohibited by
the general threatened species regulations under the Act, thereby
disrupting CITES-consistent, sustainable trade in beluga sturgeon.
Under these circumstances, the Service has determined that prior
notice and opportunity for public comment are contrary to the public
interest and there is good cause under 5 U.S.C. 553 for making this
rule effective less than 30 days after publication in the Federal
Register. If necessary, we will amend the Code of Federal Regulations
to remove this rule when the final 4(d) rule is effective.

Required Determinations

Executive Order 12866 (Regulatory Planning and Review)

This interim rule has not been reviewed by the Office of Management
and Budget (OMB) under Executive Order 12866. Under the criteria in
Executive Order 12866, this interim rule is not a significant
regulatory action.
a. This interim 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.
b. This interim rule will not create inconsistencies with other
agencies' actions. We are the lead agency regulating international
wildlife trade, domestic wildlife trade, the issuance of permits to
conduct activities affecting wildlife and their habitats, and carrying
out U.S. obligations under CITES. Therefore, this interim rule has no
effect on other agencies' responsibilities and will not create
inconsistencies with other agencies' actions.
c. This interim rule will not materially affect entitlements,
grants, user fees, loan programs, or the rights and obligations of
their recipients.
d. This interim rule will not raise novel legal or policy issues.
This rule is basically a special 4(d) rule under the ESA. The Service
has issued numerous 4(d) rules in the past to ensure the conservation
of endangered and threatened species.

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

We have determined that this rule will not have a significant
economic effect on a substantial number of small entities as defined
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial
regulatory flexibility analysis is not required, and a Small Entity
Compliance Guide is not required. To assess the effects of the rule on
small entities, the Service focused on the caviar import, export, and
aquaculture industries in the United States because these are the
entities most likely to be affected by the rule, particularly those
engaged in beluga caviar importation, production, and distribution in
the United States. In 2002, the most recent year for which we have
import data, 15 businesses accounted for all of the foreign-source
sturgeon caviar legally imported into the United States. It is possible
that some of these businesses did not trade in beluga sturgeon. In
those 15, the 10 largest importers accounted for 94 percent of all
imported caviar (by weight), whereas the top 6 importers accounted for
85 percent of the U.S. trade (by weight). Illegal imports are not
readily quantifiable, and were not addressed further in our analysis.
According to the information available to us, only two U.S.
entities are involved in the commercial aquaculture of pure (i.e., non-
hybridized) H. huso to obtain products such as caviar and meat, and
neither is generating these products yet. At least one U.S. institution
is conducting feasibility studies on the commercial aquaculture of
hybrid ``bester'' sturgeon products. This type of aquaculture utilizes
live beluga sturgeon and live sterlet (Acipenser ruthenus) to produce
caviar in controlled, ex situ environments. Neither the threatened
listing for beluga sturgeon nor the special rule affects trade in
bester sturgeon products directly. However, there may be certain
amounts of live beluga sturgeon required by these entities from Black
and Caspian Sea countries. Given the apparently limited aquaculture use
of beluga sturgeon, this rule should have no significant economic
impact on U.S. markets.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule will not have
an annual effect on the economy of $100 million or more; will not cause
a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
United States-based enterprises to compete with foreign-based
enterprises.
This rule will have little or no economic effect on the import,
export, interstate commerce, and foreign commerce. In foreign
countries, this exemption will allow individuals and businesses subject
to U.S. jurisdiction to engage in commerce involving beluga sturgeon
products without the need for threatened species permits. We are not
aware of such commerce currently, and therefore this exemption will
create minimal benefits.
This rule will not have significant economic effects in regard to
scientific samples or personal effects moving in and out of the United
States, given our recorded low volume of such transactions. However,
this rule will provide significant benefits to beluga sturgeon traders
commercially importing, exporting, and selling across State lines
beluga sturgeon caviar and meat. Without the rule, Section 9 of the Act
would prevent all current import, export, and interstate commerce, and
traders would receive no income from lucrative U.S. markets for beluga
sturgeon and its by-products. With the rule, this international trade
and interstate commerce can continue without interruption, a beneficial
effect of the rule.
We are unable to quantify the U.S. economic impact of the exemption
from permits granted for aquaculture facilities outside of the Caspian
and Black countries (including U.S. operations). This is primarily
because (1) U.S. aquaculture facilities are not yet producing beluga
sturgeon caviar and meat; and (2) the global extent of aquacultured
beluga sturgeon production is largely unquantified. Given the
information available on the species' long reproductive cycle and the
high cost of starting beluga sturgeon aquaculture, we expect the
economic impact to be relatively small.

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

Under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.),
this interim rule will not ``significantly or uniquely'' affect small
governments.
a. This interim rule will not significantly or uniquely affect
small governments. A Small Government Agency Plan is not required.
We are the lead agency regulating wildlife trade through the declaration
process, the issuance of permits to conduct activities affecting wildlife
and their habitats, and carrying out the United States obligations under
CITES. No small government assistance or impact is expected as a result
of this interim rule.
b. This interim 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 interim rule will not result in any combined expenditure by
State, local, or tribal governments.

Executive Order 12630 (Takings)

Under Executive Order 12630, this interim rule does not have
significant takings implications or affect any constitutionally
protected property rights. This interim rule will not result in the
physical occupancy of property, the physical invasion of property, or
the regulatory taking of any property. A takings implication assessment
is not required. Therefore, this interim rule does not have significant
takings implications.

Executive Order 13132 (Federalism)

Under Executive Order 13132, this interim rule does not have
significant Federalism effects. A Federalism assessment is not
required. This interim 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 Executive Order 12988, the Office of the Solicitor has
determined that this interim rule does not overly burden the judicial
system and meets the requirements of sections 3(a) and 3(b)(2) of the
Order. Specifically, this interim rule has been reviewed to eliminate
errors and ensure clarity, has been written to minimize lawsuits,
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 interim rule does not contain any information collection
requirements that require approval by the OMB under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.

National Environmental Policy Act

This interim rule has been analyzed under the criteria of the
National Environmental Policy Act and 318 DM 2.2 (g) and 6.3 (D). This
interim rule does not amount to a major Federal action significantly
affecting the quality of the human environment. An environmental impact
statement/evaluation is not required. This interim rule is
categorically excluded from further National Environmental Policy Act
requirements, under part 516 of the Departmental Manual, Chapter 2,
Appendix 1.10.

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), Executive Order 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, export, buy, sell, transport, receive or acquire beluga
sturgeon products.

Executive Order 13211

We have evaluated this rule in accordance with E.O. 13211 and have
determined that this rule will have no effects on energy supply,
distribution, or use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

0
For the reasons set out in the preamble, we hereby amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.


0
2. Amend Sec. 17.31 by adding a new paragraph (d) as set forth below:


Sec. 17.31 Prohibitions.

* * * * *
(d) Except for specimens that are or have been imported into the
United States in compliance with the requirements of CITES, the
prohibitions of Sec. 17.21 and this section and the permit
requirements of Sec. 17.32 apply to the take, import, export, re-
export, and interstate and foreign commerce in beluga sturgeon (Huso
huso) and its by-products.

Dated: October 21, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-23993 Filed 10-21-04; 5:07 pm]
BILLING CODE 4310-55-P