[Federal Register: March 4, 2005 (Volume 70, Number 42)]
[Rules and Regulations]
[Page 10493-10507]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04mr05-6]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT54


Endangered and Threatened Wildlife and Plants; Special Rule To
Control the Trade of Threatened Beluga Sturgeon (Huso huso)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
promulgating a special rule under Section 4(d) of the Endangered
Species Act of 1973, as amended (Act), to exempt the import and export
of and foreign and interstate commerce in certain products of beluga
sturgeon (Huso huso) from threatened species permits normally required
under 50 CFR 17.32. The beluga sturgeon's historical range includes 18
countries within the watersheds of the Caspian Sea, Black Sea, Sea of
Azov, and the Adriatic Sea. The species is currently known to occur
only in the Caspian and Black Seas and certain rivers connected to
these basins. Of the 14 countries where the species still occurs, only
11 have significant beluga sturgeon habitat in the Caspian Sea, Black
Sea or Danube River and consequently these countries take
responsibility for cooperative management of the species (Azerbaijan,
Bulgaria, Georgia, Islamic Republic of Iran, Kazakhstan, Romania,
Russian Federation, Serbia and Montenegro, Turkey, Turkmenistan, and
Ukraine; hereafter referred to as the ``littoral states'').
Overharvest, severe habitat degradation, and other factors have led to
the listing of beluga sturgeon as threatened throughout its range under
the Act and in Appendix II of the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES). In our final rule
listing the beluga sturgeon as threatened, we delayed the effective
date of the listing for 6 months to allow time for us to promulgate a
special rule under Section 4(d) of the Act. The listing became
effective on October 21, 2004, yet this 4(d) rule was not yet
promulgated. Therefore, we promulgated a special interim rule on
October 21, 2004, to continue to allow CITES-consistent trade in all
beluga sturgeon and products until this 4(d) rule was finalized and
effective. When this 4(d) rule becomes effective, it will repeal the
special interim rule and the Act will prohibit all trade (import,
export, re-export, and foreign and interstate commerce) in beluga
sturgeon and beluga sturgeon products, except as provided in the
special rule or with permits under the provisions of Section 10 of the
Act. This special rule initially allows littoral states 6 months from
the rule's effective date to submit a suite of reports and management
measures to us for review. During this initial 6-month period, imports,
re-exports, and exports of, and interstate and foreign commerce in,
certain beluga sturgeon caviar and meat will continue without a
requirement for threatened species permits. This is intended to provide
the littoral states time to submit the required documents. Similarly,
we will consider making programmatic permit exemptions for commercial
aquaculture facilities outside the littoral states if they meet certain
criteria for: (1) Enhancing the survival of populations of wild beluga
sturgeon; and (2) not threatening native aquatic fauna in the country
in which the facility is located. CITES documentation will still be
required for any international movement of beluga sturgeon and beluga
sturgeon products, except as they may qualify for an exemption as
personal or household effects.
After an initial 6 months of gathering information from the
littoral states, these exemptions will occur only if the information
provided fulfills certain requirements, as described below. In
addition, all relevant provisions of CITES will continue to govern
international trade in all beluga sturgeon products. We are allowing
this conditional trade to promote the effective conservation of Huso
huso in the littoral states, through demonstrable law enforcement and
cooperative management activities.
DATES: This rule is effective March 4, 2005. The reasons for this
accelerated implementation, which replaces the standard 30-day time
frame, are described below in the ``Background'' section.
ADDRESSES: The complete file for this rule is available for inspection
by appointment during normal business hours in the office of the
Division of Scientific Authority, U.S. Fish and Wildlife Service, 4401
N. Fairfax Drive, Room 750, Arlington, Virginia 22203.
Requests for copies of the regulations regarding listed wildlife
and inquiries about prohibitions and permits may be addressed to:
Division of Management Authority, Branch of Permits--International,
U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Room 700,
Arlington, Virginia 22203.

FOR FURTHER INFORMATION CONTACT: Robert R. Gabel, Chief, Division of
Scientific Authority, at the above address (phone: 703-358-1708). For
permitting information, contact: Tim Van Norman, Chief, Branch of
Permits--International, at the address above (phone: 703-358-2104, or
toll free, 1-800-358-2104).

SUPPLEMENTARY INFORMATION:

Background

The beluga sturgeon is a large fish from which highly valued beluga
caviar is obtained. The species' range was reduced during the 20th
Century and is now limited to the Caspian and Black Sea basins
(including the Danube River upstream into Hungary). The species'
historic range comprises Azerbaijan, Bosnia and Herzegovina, Bulgaria,
Croatia, the Czech Republic, Georgia, Hungary, the Islamic Republic of
Iran, Italy, Kazakhstan, Moldova, Romania, the Russian Federation,
Slovenia, Serbia and Montenegro, Turkey, Turkmenistan, and Ukraine.
Only the 11 littoral states (Azerbaijan, Bulgaria, Georgia, Islamic
Republic of Iran, Kazakhstan, Romania, Russian Federation, Serbia and
Montenegro, Turkey, Turkmenistan, and Ukraine) apparently have
significant remaining habitat for beluga sturgeon, and these countries
take responsibility for cooperative management and conservation of
beluga sturgeon in the Caspian Sea and Black Sea. Hereafter the term
``Black Sea'' describes both the Black Sea and Sea of Azov basins,
which are connected via the Kerch Strait, although the species is
believed to be extremely rare or extinct in the Sea of Azov. Hereafter,
the term ``basin'' refers to an inland sea (e.g., Black Sea or Caspian
Sea) and its bordering coastal lands.
The species is threatened by habitat modification and degradation,
overexploitation for trade, and limited natural reproduction. On April
21, 2004, the Service published a final rule (69 FR 21425) to list the
beluga sturgeon, Huso huso, as threatened throughout its range

[[Page 10494]]

under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et
seq.). That listing in 50 CFR 17.11 will prohibit all trade (import,
export, re-export, and foreign and interstate commerce) in beluga
sturgeon, except as provided in this special rule. We delayed the
effective date of the listing until October 21, 2004, so that we could
gather public comments on this special rule, allow adequate time to
address those comments, and promulgate a final special rule.
On June 29, 2004, we published a proposed rule under Section 4(d)
of the Act (69 FR 38863). This proposal, also announced on our website,
initiated a 30-day comment period that closed July 29, 2004. This
abbreviated comment period was chosen because of the proximity of the
October 21, 2004, effective listing date for the species. We also
distributed the preamble (including a full description of the proposed
rule and its effects) in both English and Russian to 52 entities in 9
countries at the beginning of the comment period. These entities
included national fisheries agencies, research institutes, caviar
traders, and non-governmental organizations in the littoral states and
elswhere. In addition, we sent the English and Russian translations of
the preamble to 10 of the littoral states via U.S. embassies and
diplomatic visits. Also, we invited embassy personnel from 9 littoral
states that have diplomatic relations with the United States to a
briefing on July 22, 2004, at the Service's offices in Arlington,
Virginia. Officers from the embassies of Romania, Russia, and Ukraine
attended that briefing and listened to Service personnel introduce the
proposed rule, but did not offer substantive comments at that time.
Written comments were eventually received from government officials in
six littoral states, as summarized below. No range countries outside
the littoral states commented on the proposed rule. Service personnel
also met and discussed the proposed rule with sturgeon aquaculturists
and representatives of Caviar Emptor, a consortium of non-governmental
organizations that originally petitioned the Service to list the beluga
sturgeon under the Act.
As mentioned above, the listing of beluga sturgeon as threatened
under the Act became effective on October 21, 2004. This special rule
to govern and condition the U.S. trade in threatened beluga sturgeon
was not completed on that date, and thus we promulgated a special
interim rule on October 21, 2004, to allow the continuation of CITES-
consistent trade in beluga sturgeon. This special interim rule was
published in the Federal Register on October 26, 2004 (69 FR 62415),
and was intended to remain in effect until the present special rule
could be finalized and promulgated. Therefore, the special interim rule
is repealed with the promulgation of this special rule.
The proposed rule described circumstances and limitations that
would govern U.S. trade in beluga sturgeon and related products. It
proposed an exemption for U.S. traders wishing to import beluga
sturgeon caviar and meat originating from the littoral states above, on
the condition that these countries submit copies of cooperative fishery
management plans and meet certain reporting requirements (these
requirements are detailed in ``Description of the special rule''
below). Under the proposed exemption, individuals or businesses would
not have to obtain a threatened species permit from the Service, as
required under Section 10 of the Act, prior to trading in (importing,
exporting, re-exporting, or shipping in interstate or foreign commerce)
beluga sturgeon caviar or meat that came from the Caspian or Black Sea
basins, regardless of whether these products were of wild or hatchery
origin. Under the proposed rule, these traders could not use the
exemption to trade in live beluga sturgeon. Furthermore, the proposed
exemption did not extend to aquacultured beluga sturgeon products from
outside the littoral states (including from U.S. facilities), which
still would have required threatened species permits.
Beluga sturgeon populations have benefited from a number of
positive conservation measures for all Acipenseriformes species
(sturgeons and paddlefishes), which are listed in Appendices I (2
species of sturgeons) and II (23 species of sturgeons and paddlefishes)
of CITES. Although commercial trade in wild-caught Appendix-I species
is prohibited, CITES Appendix-II species (such as beluga sturgeon) may
be traded commercially under a system of permits and international
cooperation by the importing and exporting countries.
Over the last several years, the CITES Parties that harvest and
trade in sturgeons and sturgeon products (especially caviar) have been
compelled by the other CITES Parties to commit to cooperative quota
setting, better trade controls, improved enforcement of harvest and
trade restrictions, and new management systems to help ensure the
species' conservation. We believe that conservation measures for
Caspian Sea and Black Sea sturgeon species (like beluga sturgeon) that
have been required by the CITES Standing Committee could be effective
if fully implemented and expanded upon. We also believe that the most
effective way to motivate littoral states to implement these measures
is to allow continued open access to U.S. commercial markets (currently
responsible for 80 percent of the legal international beluga caviar
trade) contingent upon specific improvements in regional and national
management programs for the species. Therefore, we are promulgating
this special rule, as authorized under Section 4(d) of the Act, to
permit continued commercial trade of certain beluga sturgeon products
subject to specific provisions. We believe this special rule is
necessary and advisable for the species' conservation because it: (1)
Offers the greatest incentive for littoral states to remain engaged
with the United States in Huso huso recovery and conservation; (2)
exceeds the requirements of CITES for data reporting, management
planning, and research transparency; (3) will continue to impose
requirements on the littoral states beyond those currently stipulated
by CITES; and (4) will encourage the dissemination of knowledge and
expertise from foreign captive-breeding operations to the littoral
states. In accordance with 5 U.S.C. 553(d)(3), we find good cause to
make this rule effective less than 30 days following the date of
publication in the Federal Register. We are making this rule effective
upon publication. We believe that an immediate effective date is
necessary to expedite the engagement of the littoral states, initiate
the deadlines imposed for reporting and management actions, and prevent
further delays in conserving beluga sturgeon in the wild.

Summary of Comments and Recommendations

We received 33 written comments within the comment period on the
proposed rule. Of these, three commenters requested an extension of the
comment period. These requests were denied due to the short time frame
before the species became effectively listed as threatened on October
21, 2004. Of the 33 comments received, 4 were generally in support of
the proposed special rule, 25 expressed concerns regarding all or
certain parts of the proposed rule, and 4 were generally neutral
regarding the proposed rule.
A large number of the responses received referred specifically,
generally, or additionally to information contained in the April 21,
2004, final rule (69 FR 21425) listing beluga sturgeon as threatened
under the Endangered Species Act throughout its range.

[[Page 10495]]

Comments on the proposed special rule are summarized below. Comments of
a similar nature are grouped under a number of general issues.

Issues and Discussion

Issue 1--The rule is ambiguous about how it will treat hybrids of
beluga sturgeon, such as bester (a cross between Huso huso and
Acipenser ruthenus).
Response--The final rule that listed Huso huso as threatened (69 FR
21425) did not address hybrids, nor did it describe why protecting
beluga sturgeon hybrids would contribute to the conservation of the
species. Therefore, hybrids of Huso huso are not given any protection
under the Act, and the special rule (which governs activities in the
listed species only) does not affect activities involving bester or
other hybrids of beluga sturgeon. This is articulated in the Required
Determinations section on the Regulatory Flexibility Act, as well as
the definitions of terms in paragraph (y) of the rule (which only refer
to Huso huso, and not its hybrids). However, international trade and
interstate commerce in pure beluga (i.e., specimens with only the Huso
huso genotype) used in the pursuit of creating hybrids would be covered
by the provisions of the Act and this special rule.
Issue 2--The proposed rule poses an unfair trade barrier to
aquaculture facilities raising and selling beluga sturgeon outside of
the littoral states.
Response--After reviewing the information available to us while
developing the rule, we had determined that limiting the permit
exemption to beluga sturgeon products from the littoral states would be
the best way to engage those nations in cooperative conservation for
the species. We believed that such a focused approach would maximize
the littoral states' willingness to provide all of the reports and
management plans we are requiring for the exemption. However, for
reasons outlined under the next issue, we have modified the rule such
that certain aquaculture facilities outside the littoral states may
apply for programmatic exemptions from threatened species permits
governing trade in their products.
Issue 3--The special rule should be expanded to include a
threatened species permit exemption for aquaculture facilities outside
the littoral states.
Response--While developing the proposed rule, we had concerns about
the potential for U.S. or other aquaculture facilities outside the
littoral states to expand rapidly, shift markets away from wild
fisheries that financially support recovery programs, and substantially
diminish the importance of beluga sturgeon in littoral state
conservation priorities. In addition, we determined that such a permit
exemption should not apply to live beluga sturgeon, including
fertilized eggs, larvae, fingerlings, and juveniles. Continued
prohibitions on imports of live beluga sturgeon would help prevent
expanded and continual introductions of this exotic species into and
within the United States, where they may compete with or transmit
diseases to other threatened or endangered fishes, including other
Acipenseriform species. This control over exotic species introductions
is consistent with Federal recovery plans for listed species in the
United States. However, several comments on the proposed rule have
provided new insight to the nature of the trade in aquacultured beluga
sturgeon and the potential benefits to wild populations. For instance,
several comments from government officials and non-governmental
entities indicated that the sale of aquacultured beluga sturgeon
generates revenue for restocking initiatives, research, and law
enforcement in the Caspian and Black Sea basins.
Based on the comments received, it appears that littoral state
sturgeon recovery efforts benefit from technology transfer and
scientific expertise provided by the aquaculture community abroad. We
now have evidence that aquaculturists from the United States and other
countries conduct technical exchanges on tagging, physiology, release
protocols, and other aspects of captive breeding that directly benefit
hatchery programs in the littoral states. It is also apparent in the
comments received that many if not all aquaculture facilities outside
the littoral states utilize captive-bred broodstock (i.e., F1
generation and beyond), rather than relying on wild harvest to supply
breeding fish for their operations. Given this new information, we have
modified the special rule to allow certain exemptions from threatened
species permits for aquaculture facilities outside the littoral states.
Such exemptions would permit the import, re-export, and export of, and
interstate and foreign commerce in, aquacultured beluga sturgeon caviar
and meat from certain aquaculture facilities outside the littoral
states. The Service would issue these exemptions after a facility had
satisfactorily demonstrated to us that: (1) The relevant regulatory
authority has certified that the facility implements sufficient
controls to prevent the escape of live animals and disease pathogens;
(2) the facility does not rely on wild-origin broodstock for beluga
sturgeon production; and (3) the facility has engaged with one or more
littoral states in formal agreements to study, protect, or recover wild
populations of beluga sturgeon. This programmatic approach to permit
exemptions is outlined below. Any such exemption, if granted, will not
apply to international trade or interstate commerce in live beluga
sturgeon (including viable eggs, larvae, fingerlings, and juveniles)
given our ongoing concerns and statutory obligations outlined above.
Furthermore, the caviar from such facilities must be labeled as per
CITES requirements to allow us to distinguish such products in trade.
Issue 4--In Sec. 17.44(y)(3)(i)(B), it appears that the Service is
requiring CITES documents to accompany beluga sturgeon specimens
throughout interstate commerce in the United States. This would be
extending CITES beyond its usual application, and should be clarified.
Response--We do not intend to require CITES documentation for
beluga sturgeon products to move in interstate commerce within the
United States. We have clarified this language in the appropriate
section of the special rule.
Issue 5--Beluga sturgeon are close to extinction, and therefore the
special rule should not allow any commercial trade in the species. The
elements of the special rule do not meet the requirements of Section
4(d) of the Act, which mandates that such a rule provide for the
conservation of such species.
Response--In our final rule of April 21, 2004 (69 FR 21425), we
stated the reasons why we did not conclude that beluga sturgeon are
endangered with extinction. As stated earlier, Section 4(d) does not
prescribe specific actions that must be accomplished with a special
rule. Rather, this section of the Act says the Secretary shall issue
regulations as deemed ``necessary and advisable'' for the conservation
of the species. In our proposed rule, we articulated why we concluded
that permit exemptions for littoral state beluga sturgeon products were
advisable. Specifically, this special rule should enhance conservation
of wild beluga sturgeon by requiring properly designed and implemented
fishery management programs in the littoral states. We believe that the
greatest benefit for the conservation of beluga sturgeon will be
attained through continued involvement with littoral states that have
access to our

[[Page 10496]]

commercial markets for sturgeon products, especially caviar, and by
conditioning this access on proper management and recovery of wild
populations in their waters. The alternative to this special rule is to
strictly prohibit U.S. trade in beluga sturgeon products, except as
permitted under Section 10 of the Act. We believe this alternative is
less advisable than the special rule for a number of reasons, which are
described below in the section ``Effects of the Special Rule.''
Issue 6--The proposed rule appears unnecessary and duplicative with
the current CITES processes to address sturgeon trade, and may well
serve to undermine them. Perceived inadequacies in the CITES resolution
governing sturgeon trade should be fixed before a country moves to
unilateral measures affecting other CITES Parties.
Response--The special rule acknowledges that the CITES Parties have
instituted a suite of sound recommendations for the Caspian Sea
littoral states, including the ``Paris Agreement'' in 2001 and
subsequent policies, which stipulated numerous conservation actions on
behalf of these countries. We also note that there has been measurable
progress on these recommendations, and that Parties have codified
sturgeon conservation in CITES by adopting Resolution Conf. 12.7,
``Conservation of and trade in sturgeons and paddlefish.'' However,
since 2001 the CITES approach to sturgeon conservation in Eurasia has
largely involved littoral states reporting directly to the CITES
Secretariat for review of their actions under the Paris Agreement. The
Secretariat has since then announced its findings, and the reasons
behind them, to the other CITES Parties (including the United States).
The Secretariat has used these findings to endorse national export
quotas for the littoral states. Prior to the listing of beluga sturgeon
under the Act, the United States had little authority or reason to
scrutinize this arrangement between the littoral states and the
Secretariat. However, after we made the determination that the beluga
sturgeon is threatened, we had a statutory obligation to ensure the
species' conservation and recovery. We determined that simple reliance
on third-party reports (e.g., Secretariat newsletters, Notifications to
the Parties, etc.) about activities in the littoral states was
insufficient to meet our obligations under the Act, and could not
provide the level of detail we require to gauge recovery of the species
in the wild, and thus compromised our ability to delist the species in
the future. This approach is in accordance with Article XIV of CITES,
which states that the treaty's provisions ``shall in no way affect the
right of Parties to adopt stricter domestic measures regarding the
conditions for trade, taking, possession or transport of specimens''
covered by the treaty.
Issue 7--The proposed annual report schedules are inappropriate.
December 1 should be the deadline for submitting annual reports under
the special rule, because the beluga sturgeon fishery is still going on
in November. It's unclear why reports should be submitted annually,
when the Service will only review them biennially. If annual reports
remain part of the special rule, then the Service should take the time
to review those submissions annually.
Response--These recommendations are sensible, and we have changed
the reporting schedules to reflect reviews of biennial reports due on
December 1.
Issue 8--There are no standards or requirements for what must be
contained in the management plan for it to be deemed sufficient by the
Service. Moreover, international efforts to get the littoral states to
come up with such a plan have so far proved fruitless. The rule appears
to rely on subjective determinations by the Service, with no recourse
for verifying the reports from the littoral states.
Response--In paragraph (y)(4)(i) of the special rule, we specify
the minimum requirements for littoral state management plans. These
include statements of the recovery goals and objectives, definitions of
overfishing, statements of standard size limits or other regulations,
quota-setting models and their underlying data, and schedules for
adoption. In its official comments on the proposed rule, Iran submitted
a copy of the basin-wide management plan for Caspian Sea living
resources (including sturgeon). This plan had the signatures of
representatives from all but one of the littoral states in the basin
(Turkmenistan), and is apparently agreed to for implementation. The
Service has working relationships with governmental and non-
governmental institutions in Eurasia, and we intend to use these to
gather information and clarify the contents of reports submitted under
the special rule.
Issue 9--The special rule does not indicate a time frame under
which decisions are to be made about the reports submitted. For this
regulatory regime to work effectively, there must be a high level of
confidence that decisions will be made, with justification given, in a
timely and consistent manner.
Response--We acknowledge that the special rule does not specify a
time frame for the Service to finish its review of management plans and
the required national reports, stating that we will conduct such
reviews ``immediately'' after receiving the national reports. We
allowed this latitude because we were uncertain of how long the
national reports would be, whether the deadline would coincide with
unrelated Service deadlines in a particular year, whether translation
into English would be required, or how long it would take to establish
contact with appropriate officials in the littoral states. We chose to
establish unchanging deadlines so that the public could consistently
know when we were to begin our reviews, and question us about progress
accordingly. However, given the timelines we impose on littoral states
and the desire to clarify the Service's review process, we have imposed
a 90-day time limit on the Service's review of management plans and
national reports.
Issue 10--As a CITES Party, the United States should first attempt
to strengthen CITES processes for conservation of beluga sturgeon
before taking unilateral measures that affect other CITES Parties.
Response--The decision to list the beluga sturgeon under the Act
was prompted by a petition requesting the Service to list the species
as endangered. We are obligated to respond to petitions to list species
under the Act, and to list the species if listing is warranted. Because
we determined that the species qualifies as threatened under the Act,
we were obligated to list the species. However, in making the
determination to list the species as threatened, we did consider the
actions taken by the CITES Parties, including Resolutions and Decisions
that are still in effect. We have also crafted a special rule that
closely parallels the management and enforcement actions mandated by
the CITES Parties, and we have linked the exemptions of the special
rule to CITES permitting requirements. We will also continue to
actively work for continued improvements in the conservation of
sturgeons through CITES.
Issue 11--Sturgeon restoration in the Caspian and Azov--Black Sea
regions will be possible only by introducing a complete moratorium on
sturgeon harvest, directing littoral countries' efforts toward
restoration, and strictly regulating the internal markets of those
countries.
Response--Through the special rule, we intend to leverage the
monetary value of beluga caviar to accomplish these very goals, by
using continued

[[Page 10497]]

access into the U.S. market as an incentive to make improvements in
management and enforcement for beluga sturgeon. Based on the reporting
requirements, and by using corroborating information, we intend to
encourage littoral countries to limit harvest to sustainable levels,
implement recovery measures for wild populations, and improve
enforcement and control overharvest and trade, both domestically and
internationally. However, the United States cannot unilaterally impose
a ban on harvest in the littoral countries, and such a ban is unlikely
as long as the possibility exists to either export to other countries
or to use beluga sturgeon caviar and meat within the littoral states.
Issue 12--Implementation of the special rule, as proposed, will
necessitate verification of information supplied by the littoral
states, including a determination of whether they have taken the
necessary actions required by the special rule. It is difficult to
imagine that the Service has the capacity to undertake such a
responsibility.
Response--The Service implements a number of other similar special
rules, which depend on information from range countries as well as
other sources, including the monitoring of trade at our ports, CITES
trade data, trade reports from TRAFFIC and other non-governmental
organizations, and consultation with relevant experts. Indeed, the
decision to list the species under the Act required the same type of
information-gathering and analysis--including obtaining information
from littoral states--as will be required for determining whether to
allow trade under the special rule.

Summary of Differences Between Proposed and Final Special Rules for
Beluga Sturgeon

Based on the comments received and our professional judgment, we
modified only a few components of the proposed special rule when
finalizing it for promulgation. These changes are noted above in the
``Issues and Discussion'' section, and summarized here for ease of
interpretation.
The most notable change to the proposed rule was in the treatment
of aquaculture facilities outside the littoral states. In the proposed
rule, trade in beluga sturgeon caviar and meat originating from these
facilities would not have been exempt from threatened species permits
if such trade was conducted by persons under U.S. jurisdiction (except
for personal and household effects). In the final rule, we have made
allowances for aquaculture facilities outside the littoral states
(including those in the United States) to apply for programmatic
exemptions from threatened species permits. Such exemptions would only
apply to beluga sturgeon caviar and meat from these facilities, and
caviar must be labeled to note its origin as per the requirements of
CITES (even in U.S. interstate trade). Under this final rule, such
programmatic exemptions will only be granted if: (1) The relevant
regulatory agency has certified that the facility is using best
management practices to prevent escapes and disease introduction into
surrounding habitats, and the Service has approved the specific
practices; (2) the facility has entered into a formal agreement with
one or more littoral states to study, conserve, or otherwise enhance
the survival of wild populations of beluga sturgeon; and (3) the
facility is utilizing only captive-bred beluga sturgeon (i.e., captive
F1 generation and beyond) in its production systems. See paragraph
(y)(5) below in the Regulation Promulgation section for more detail on
these programmatic exemptions.
Second, we modified the proposed rule language to clarify that we
will not require CITES permits to accompany beluga sturgeon caviar and
meat in U.S. interstate commerce. This language change was noted and
corrected in the final language for Sec. 17.44(y)(3)(i)(B).
Third, we modified certain reporting deadlines and schedules in the
proposed rule. The proposed rule would have required littoral states
wishing to have their beluga sturgeon caviar and meat exempted from
threatened species permits to submit annual reports on November 1 of
each year. These reports would have been reviewed by the Service
biennially to determine if a trade suspension should be enacted for
beluga products from a particular country. In the final rule, we
modified this schedule so that the reporting deadline is December 1 and
national reports must be submitted biennially (instead of annually) to
coincide with our review schedule. We also inserted a 90-day deadline
for the Service to initially review management plans, national
regulations, and biennial reports. There was no such time limit on the
Service in the proposed rule.

Description of the Special Rule

The purpose of this special rule is to enhance the conservation of
wild beluga sturgeon by requiring properly designed and implemented
fishery management programs in the littoral states. We believe that the
greatest benefit for the conservation of beluga sturgeon will be
attained through continued involvement with littoral states that have
access to our commercial sturgeon markets, and by conditioning this
access on proper management and recovery of wild populations in their
waters. The alternative to this special rule is to strictly prohibit
U.S. trade in beluga sturgeon products, except as permitted under
Section 10 of the Act. We believe this alternative is less advisable
than the special rule for a number of reasons, as described at the end
of the section ``Effects of the Special Rule.'' We intend to use this
special rule to build upon the progress already made by the littoral
states in CITES forums, while recognizing that there are certain data
gaps and information and management needs yet to be filled.
For example, we note that since 2001 the littoral states in the
Black Sea and Caspian Sea basins have committed to cooperative
management frameworks, including the Black Sea Sturgeon Management
Group and the Commission on Aquatic Bioresources of the Caspian Sea.
These bodies have set annual quotas for beluga and other sturgeon
species in the two basins, and have representatives from each of the
sturgeon-harvesting and -trading littoral states in the respective
regions. Despite the progress made by the littoral states, we concur
with findings of recent reports from the CITES Secretariat (Anonymous
2002a, 2002b) on problems in national and regional Huso huso
management. These include: (1) The absence of a formal, written
management plan for Black Sea beluga sturgeon as called for in CITES
Resolution Conf. 12.7 (rev. COP13); (2) a lack of transparency in data
analysis and quota setting; (3) continued high levels of poaching and
illegal trade; and (4) a data-poor evaluation of hatchery protocols and
restocking programs. Therefore, for those littoral states wishing to
export beluga sturgeon caviar and meat to the United States, this
special rule would require:
1. Submission of basin-wide beluga sturgeon management plans for
the Black Sea and Caspian Sea littoral states;
2. Submission of national regulations that implement the basin-wide
cooperative plan mentioned in item 1, including information on hatchery
and restocking protocols and monitoring results;
3. Submission of biennial reports documenting management measures
in place and current status of Huso huso in the given country;
4. Labeling of imported, exported, and domestically traded beluga
caviar products as per CITES Resolutions and Decisions;

[[Page 10498]]

5. Biennial review by the Service of littoral state management and
restocking programs for beluga sturgeon;
6. Compliance with CITES provisions and recommendations (including
permits) for beluga sturgeon imports and exports involving the United
States; and
7. Suspension of imports basin-wide or by country if the
conservation status or management approach for Huso huso changes and
compromises the recovery of beluga sturgeon in the wild. See discussion
below for how such a suspension would be imposed.
The trade in caviar and meat taken from wild or hatchery-origin
beluga sturgeon originating from the littoral states would be exempt
from threatened species permits under this special rule.
This special rule would not exempt from threatened species permit
requirements international trade (import, export, re-export, or foreign
commerce) or interstate commerce in live specimens of beluga sturgeon,
including adults, gametes (eggs or sperm), viable eggs, fingerlings,
and juveniles. We have concluded that aquaculture or grow-out of
foreign sturgeon species in the United States can pose a risk to the
recovery efforts for several native sturgeon species listed under the
Act or under interstate recovery plans. This risk comes from the
potential competition between native sturgeons and unintentionally
released fish from facilities culturing exotic sturgeons and disease
transmission from foreign species. These concerns are articulated in
both State and Federal sturgeon recovery plans (ASMFC 1998; NMFS 1998;
USFWS and GSMFC 1995), as well as Federal policy on invasive species
and fish health. Therefore, we intend to use this special rule to limit
the dispersal of live beluga sturgeon throughout the United States yet
utilize existing captive populations for maximum conservation benefit
in the littoral states. Except in certain circumstances, this special
rule does not exempt beluga sturgeon or any beluga sturgeon products
derived from aquaculture or grow-out operations outside the littoral
states from the provisions of the Act, which could (1) undermine the
incentives for conserving wild Huso huso in the littoral states; (2)
utilize Huso huso broodstock from the littoral states without any
direct benefit to wild populations; and (3) result in the release of
beluga sturgeon or disease pathogens into habitats outside their native
range. Therefore, import, export, re-export, or interstate or foreign
commerce involving any beluga sturgeon products that originate from
aquaculture operations outside the littoral states will normally
require a threatened species permit in addition to any applicable CITES
documents (except as provided for captive-bred wildlife in 50 CFR
17.21(g)). However, the Service will consider programmatic exemptions
to this prohibition for beluga caviar and meat from aquaculture
facilities that provide information to our offices to demonstrate that
(1) the relevant regulatory agency has certified that the facility is
using best management practices to prevent escapes and disease
introduction into surrounding habitats, and the Service has approved
the specific practices; (2) the facility has entered into a formal
agreement with one or more littoral states to study, conserve, or
otherwise enhance the survival of wild populations of beluga sturgeon;
and (3) the facility is utilizing only captive-bred beluga sturgeon
(i.e., captive F1 generation and beyond) in its production systems. The
facilities will be required to file biennial reports with the Service
in order for us to document the results and efficacy of any
arrangements with littoral states. See paragraph (y)(5) below in the
Regulation Promulgation section for more detail on these programmatic
exemptions.
As per CITES Resolution Conf. 12.9, and existing U.S. policy, this
special rule would allow for the legal export, re-export, and import of
personal effects of caviar. Under Resolution Conf. 12.9, individuals
may export, re-export, or import up to 250 grams of any Appendix-II
Acipenseriformes caviar without a CITES permit. This allowance would
apply in the United States, and export, re-export, or import of
personal effects of beluga caviar (as defined by the CITES Parties)
would not require a threatened species permit under the Act. However,
any trade suspension administratively implemented under this special
rule would also prohibit the importation of beluga caviar personal
effects.
Under the rule we will require the submission of certain
documentation from the littoral states, specifically:
1. Within 6 months of the effective date of this special rule, if
adopted, each littoral state wishing to export beluga caviar or beluga
meat to the United States without the need for a threatened species
permit issued under Sec. 17.32 must submit to the Service's Division
of Scientific Authority a copy of a cooperative management plan for
their respective basin. This plan must be agreed to by each littoral
state in the relevant basin (not just exporting nations). These
comprise Bulgaria, Georgia, Romania, Serbia and Montenegro, Turkey, and
Ukraine in the Black Sea and Danube River, and Azerbaijan, the Islamic
Republic of Iran, Kazakhstan, the Russian Federation, and Turkmenistan
in the Caspian Sea. This basin-wide management plan must contain the
following elements:
a. A clear statement of the recovery and management objectives for
the plan, including a specification of the stock(s) concerned, a
definition of what constitutes over-fishing for that stock, and a
rebuilding objective and schedule for that stock;
b. A statement of standard fishery management measures and habitat
improvement strategies to be utilized by the nations involved (e.g.,
size limits, target harvest rates, quotas, seasons, fishing gear,
effort caps, fish passage improvement, water quality controls);
c. A complete statement of the specific regulatory, monitoring, and
research requirements that each cooperating nation must implement to be
in compliance with the management plan;
d. A complete description of how stock survey data and fisheries
data are used to establish annual catch and export quotas, including a
full explanation of any models used and the assumptions underlying
those models;
e. Procedures under which the nations may implement and enforce
alternative management measures that achieve the same conservation
benefits for beluga sturgeon as the standards mentioned in paragraph b;
and
f. A complete schedule by which nations must take particular
actions to be in compliance with the plan.
The Service's Division of Scientific Authority will review these
basin-wide management plans within 90 days of receipt for completeness
and clarity. If any elements of the management plans are missing or
unclear, we will ask the appropriate littoral states to provide
additional information within 60 days of the date we contact them. If
the littoral states fail to respond or fail to submit basin-wide
management plans by the specified deadlines, or if we are unable to
confirm that all littoral states are signatories to those plans, we
will immediately suspend trade with all littoral states in the given
basin (Caspian Sea or Black Sea) until we are satisfied that such
management plans exist.
2. Within 6 months of the effective date of this special rule, all
littoral states wishing to export beluga caviar and meat to the United
States exempt from threatened species permits must submit copies of
national legislation and national fishery regulations pertaining to the
harvest, trade, aquaculture, restocking, and processing of beluga
sturgeon. These laws and regulations

[[Page 10499]]

must exhibit clear means to implement the cooperative management plans
mentioned in paragraph 1 above. Upon receipt, the Service's Division of
Scientific Authority will review these laws and regulations within 90
days for completeness and clarity. If any elements of the national
legislation or national fishery regulations are missing or unclear, we
will ask the appropriate littoral state(s) to provide additional
information within 60 days of the date we contact them. If the littoral
states fail to respond or fail to submit copies of national laws and
regulations by the specified deadlines, we will immediately suspend
trade with the given littoral states until we are satisfied that such
laws and regulations are in effect.
3. No later than December 1, 2005, and every 2 years on that
anniversary, all littoral states wishing to export beluga sturgeon
products to the United States must submit a report to the Service. This
report must contain, at a minimum:
a. A description of the specific fishery regulations that affect
the harvest of Huso huso in the respective littoral state, with any
changes from the previous report highlighted;
b. A description of any revisions to the cooperative management
program mentioned above, including any new models, assumptions, or
equations used to set harvest and export quotas;
c. Updated time-series of information on beluga sturgeon obtained
from monitoring programs, including estimates of relative or absolute
stock size, fishing mortality, natural mortality, spawning activity,
habitat use, hatchery and restocking programs, and other relevant
subjects;
d. A summary of law enforcement activities undertaken in the last 2
years, and a description of any changes in programs to prevent poaching
and smuggling, including indicators of their effectiveness;
e. A summary of the revenues generated by the commercial
exploitation of beluga sturgeon in the respective littoral state, and a
summary of any documented conservation benefits resulting from the
commercial harvest program in that country (e.g., revenues allocated to
hatchery and restocking programs or research programs); and
f. Export data for the previous 2 calendar years.
Starting in December 2005, the Service will conduct a review of
information in the littoral state reports and any other pertinent
information on wild beluga sturgeon conservation. Thereafter, we will
continue to conduct these reviews biennially within 90 days of
receiving the reports. If any elements of the biennial reports are
missing or unclear, the Service will ask the appropriate littoral
states to provide additional information within 60 days of the date we
contact them. If the littoral states fail to respond or fail to submit
biennial reports by the specified deadline, we will immediately suspend
trade with the given littoral states. We propose to use these reviews
to determine whether littoral state management programs are leading to
recovery of wild beluga sturgeon stocks.
Although we have no ability to regulate take or institute recovery
plans for beluga sturgeon in the littoral states, we have identified
general short-term and long-term recovery objectives for beluga
sturgeon in the Caspian and Black Seas. These objectives will help us
gauge the efficacy of this special rule, and monitor progress toward
beluga sturgeon restoration in the wild as indicated in the biennial
reports mentioned above. The short-term objective is to prevent further
reduction of existing wild populations of beluga sturgeon. Baseline
population indices for each beluga sturgeon stock are under development
(Anonymous 2002c) or in the planning stages (Anonymous 2002a, 2002b),
and changes in these indices will be evaluated over 3- to 5-year
periods. The long-term recovery goal for beluga sturgeon is to
establish self-sustaining stocks in the Caspian and Black Sea basins
that can withstand directed fishing pressure. A self-sustaining stock
is one in which the average rate of recruitment to the juvenile stage
at least equals the average mortality rate across the population over a
12- to 17-year period (the period required for beluga sturgeon to reach
maturity).
Based on the review of biennial reports, we propose to
administratively suspend or restrict imports, exports, and interstate
commerce involving beluga sturgeon products from the littoral states if
we determine that wild beluga sturgeon stock status worsens or threats
to the species increase. Any such restriction would also apply to
foreign commerce in beluga sturgeon products involving U.S. citizens.
Trade restrictions or suspensions may result basin-wide or for specific
littoral states under one or more of the following scenarios:
1. Failure to submit copies of any of the reports, legislation, and
management plans described above, or failure to respond to requests for
additional information;
2. A change in regional cooperative management that threatens the
recovery of wild beluga sturgeon;
3. A change in littoral state laws or regulations that compromises
beluga sturgeon recovery or survival in the wild;
4. Adoption of scientifically unsound hatchery practices or
restocking programs for beluga sturgeon;
5. A decline in wild Huso huso populations, as documented in
national reports outlined above or the scientific literature, that goes
unaddressed by regional or national management programs;
6. Failure to address poaching or smuggling in beluga sturgeon,
their parts, or products in the littoral states or re-exporting
countries, as documented in national reports described above or other
law enforcement sources;
7. Failure of the littoral states to address the loss of beluga
sturgeon habitat quality or quantity;
8. Failure of the littoral states or re-exporting countries to
follow the caviar-labeling recommendations of the CITES Parties
(currently embodied in Resolution Conf. 12.7);
9. Recommendations from the CITES Standing Committee to suspend
trade in beluga sturgeon from one or more countries;
10. An aquaculture facility outside the littoral states has been
issued a programmatic exemption from threatened species permits, but is
not abiding by the conditions placed on that facility by the Service,
or
11. Any other natural or human-induced phenomenon that threatens
the survival or recovery of beluga sturgeon.
Under this special rule, we will decide whether to suspend trade in
beluga sturgeon products for an entire basin or on a country-specific
basis, including re-exporting countries (i.e., those that import beluga
sturgeon products from elsewhere and then export them to the United
States). This decision, made by the Service's Division of Scientific
Authority in consultation with relevant experts, will depend on the
scope of the problem observed, the magnitude of the threat to wild
beluga sturgeon, and whether remedial action is necessary at a local,
national, or region-wide scale. Upon determination that a trade
restriction or suspension is necessary, we will publish our findings in
the Federal Register with the following information:
(A) The problem(s) identified in the biennial reports or other
salient documents.
(B) The scope of the problem and the number of nations involved.

[[Page 10500]]

(C) The scope of the trade restriction or suspension we are
imposing, including products covered, duration of the restriction or
suspension, and criteria for lifting it and reinstating any exemption
to threatened species permits.
(D) How the public can provide input, make comments, and recommend
remedial action to withdraw the trade measures imposed.

Effects of the Special Rule

Consistent with Sections 3(3) and 4(d) of the Act, this special
rule amends 50 CFR 17.44 to allow importation and exportation of, and
foreign and interstate commerce in, beluga sturgeon caviar and meat,
without a threatened species permit otherwise required by 50 CFR part
17, if all requirements of the special rule and 50 CFR part 13 (General
Permit Procedures), part 14 (Importation, Exportation, and
Transportation of Wildlife), and part 23 (Endangered Species
Convention--CITES) are met. This special rule also repeals 50 CFR
17.31(d), which resulted from our special interim rule of October 21,
2004, and is now replaced by the provisions of this special rule.
This special rule does not end protection for the species. To
qualify for permit exemptions under this special rule, beluga sturgeon
caviar and meat must originate from: (1) Fish taken in littoral states
that have complied with the management and reporting requirements
mentioned above, or (2) aquaculture operations in countries other than
littoral states that enhance the survival of beluga sturgeon and do not
pose a threat to native species where they are located. Furthermore,
beluga caviar must be labeled as per the recommendations of the CITES
Parties (even for U.S. domestic trade), and all beluga sturgeon
products imported into or exported from the United States must be
accompanied by valid CITES Appendix-II export permits or re-export
certificates. The special rule will not encourage the export and
diversion of hatchery broodstock from the littoral states into the
United States, which could undermine conservation efforts for wild
beluga sturgeon in the littoral states. Import or export of, and
interstate and foreign commerce in (involving persons under U.S.
jurisdiction), all live Huso huso would still require a threatened
species permit. Issuance of these permits is predicated on some direct
benefit to wild populations of beluga sturgeon in all range countries
(including the littoral states) and avoidance of risk to U.S. native
species posed by the expansion of exotic sturgeon aquaculture.
Imports into the United States of beluga sturgeon products will be
allowed from countries that have designated both a CITES Management
Authority and Scientific Authority, and have not been identified by the
CITES Conference of the Parties, the CITES Standing Committee, or in a
Notification from the CITES Secretariat as countries from which Parties
are asked not to accept shipments of specimens of beluga sturgeon or
all CITES-listed species. This restriction will also apply to
intermediary countries that import beluga sturgeon products and
subsequently export them to the United States. The Service's Division
of Management Authority will provide on request a list of those
countries that have not designated either a Management Authority or a
Scientific Authority, or that have been identified as a country from
which Parties are asked not to accept shipments of specimens of any
CITES-listed species that would include beluga sturgeon.
As noted above, this special rule exempts trade in beluga caviar or
meat from the requirements for threatened species permits when the
caviar or meat originates from certain aquaculture facilities outside
of littoral states, provided they meet certain criteria to ensure
protection of wild beluga sturgeon as well as the ecosystems of the
countries in which they are located. We will exempt these specimens
from threatened species permits for import, export, re-export, and
interstate and foreign commerce when the activity enhances the
conservation of the species in the wild and does not pose a threat to
native species (especially other Acipenseriformes) or ecosystems where
the facilities are located. In addition, all imports, exports, and re-
exports of beluga sturgeon specimens will require the presentation of
valid CITES permits and certificates as per 50 CFR part 23.
As noted above, the Service's Division of Scientific Authority will
conduct a review beginning in December 2005 and every 2 years
thereafter based on information in the littoral state reports, and
other available information, to determine whether littoral state and
regional management programs are effectively achieving conservation
benefits for wild beluga sturgeon populations. Trade restrictions or a
trade suspension can be placed on a littoral state if the Service's
Division of Scientific Authority administratively determines that the
conservation or management status of beluga sturgeon in that country
has changed such that continued recovery of the species is compromised.
This provision gives the Service the ability to react effectively to
potential conservation concerns that may emerge, such as persistent
high levels of poaching in some areas, changes in laws or regulations
that appear to be detrimental to the species in the wild, or the lack
of submission of the required biennial reports and management plans.
We believe the issuance of this special rule is necessary and
advisable for the conservation of the species for the following
reasons:
1. Exempting the commercial trade in wild-origin and hatchery-
origin beluga caviar and meat from permit requirements, with
conditions, will expedite transfer of specimens into and out of the
United States without compromising the species' recovery. This
expedited trade offers an incentive to littoral states to meet the
requirements in this special rule, which are stricter than those
imposed by CITES and require more detailed information on stock status
and management measures than CITES reports.
2. Without this special rule, we would prohibit all commercial
trade in beluga caviar and meat unless authorized with a threatened
species permits and appropriate CITES documentation. Such a restriction
could reasonably be expected to: (a) Hamper or cease multilateral
discussions between the United States and the littoral states on beluga
sturgeon conservation; (b) diminish or eliminate the high revenue
gained from U.S. beluga caviar markets that is used by littoral states
to support recovery programs for the species; (c) redirect beluga
sturgeon products from monitored international trade into unmonitored
domestic markets; and (d) force us to rely on limited international
trade data when assessing changes in harvest levels and market demand.
All of these outcomes increase the conservation risks for the species
while reducing the amount of data needed for informed decision-making
at the regional and international level.
3. Nearly all of the recommendations promulgated by the CITES
Standing Committee for the littoral states have been achieved or nearly
achieved, according to the CITES Secretariat. The CITES Parties have
recently modified their resolution on trade in sturgeons, calling for
some ongoing review of littoral state conservation strategies in the
Black Sea and Caspian Sea basins. At this time, however, we are unable
to predict how the CITES system will require updates and systematic
changes in littoral state management programs for Huso huso after the
Standing Committee and the Parties review compliance with the 2001

[[Page 10501]]

recommendations and the new Resolution on sturgeon conservation. If
pressure from CITES processes abates, this special rule offers our most
promising tool for getting information from the littoral states and
influencing recovery programs for beluga sturgeon throughout its range.

Required Determinations

A Record of Compliance was prepared for this rule. A Record of
Compliance certifies that a rulemaking action complies with the various
statutory, Executive Order, and Department Manual requirements
applicable to rulemaking. Without this special rule, individuals
subject to the jurisdiction of the United States would be prohibited
from engaging in domestic and international trade in beluga sturgeon
meat and caviar except as permitted by Section 10 of the Act. Without
this rule, anyone engaging in those activities would need to seek an
authorization from us through a permit under Section 10(a) of the Act.
This process takes time and can involve an economic cost. The rule
would allow these individuals to avoid the costs associated with
abstaining from conducting these activities or with seeking a
threatened species permit from us. These economic benefits, while
important, do not rise to the level of ``significant'' under the
following required determinations.

Regulatory Planning and Review

In accordance with the criteria in Executive Order 12866, this rule
is a significant regulatory action. The Office of Management and Budget
makes the final determination under Executive Order 12866. We have
prepared a Record of Compliance (ROC) that describes the economic
effects of this final rule, and this ROC is available upon request. Our
analysis examined each of the five exemptions of ESA Section 9 trade
prohibitions that would be created by the 4(d) rule. Any costs incurred
are associated with businesses satisfying particular conditions to
partake in import and export trade and aquaculture. In terms of
benefits, we do not expect any changes due to this rulemaking. All
trade exemptions will permit the continuation of current activities.
This rule will not create inconsistencies with other Federal agencies'
actions. Other Federal agencies will be mostly unaffected by this rule.
This rule will not materially affect entitlements, grants, user fees,
loan programs, or the rights and obligations of their recipients.
Because this rule will allow individuals to continue otherwise
prohibited activities without first obtaining individual authorization,
the rule's impacts on affected individuals will be positive. This rule
will not raise novel legal or policy issues. We have previously
promulgated special rules under Section 4(d) of the Act for other
species, including other foreign species.

Regulatory Flexibility Act

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, we focus 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.
The U.S. Small Business Administration defines a ``small business'' as
one with annual revenue or employment that meets or is below the
established size standard, which is $6 million for ``Fish and Seafood
Markets'' (NAICS 445220), 100 employees for ``Fish and Seafood Merchant
Wholesalers'' (NAICS 424460), and $750,000 for ``Finfish Farming and
Fish Hatcheries'' (NAICS 112511). The U.S. Economic Census does not
capture the detail necessary to determine the number of small
businesses that are engaged in commerce with beluga products.
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 to the United States. It is possible that some of
these businesses did not trade in beluga sturgeon. For those 15
importers, the 10 largest importers accounted for 94% of all imported
caviar (by weight), whereas the top 6 importers accounted for 85% of
the U.S. trade (by weight). All importers in 2002 and 2003 had
estimated retail sales less than $6 million in beluga caviar products
(based on the average $3,200/kg). However, it is likely that these
businesses sell other products in addition to beluga caviar. Therefore,
it is difficult to estimate the size of each business and the relative
impact of the proposed rulemaking.
Currently, there are no U.S. entities commercially producing caviar
and meat from aquaculture of pure (i.e., non-hybridized) H. huso.
However, there is at least one U.S. institution that is currently
holding beluga sturgeon for future commercial production of beluga
caviar and meat, the State of Florida is working with aquaculture
facilities on the feasibility of commercial aquaculture of hybrid
``bester'' sturgeon products (bester is a hybrid of beluga sturgeon and
sterlet, Acipenser ruthenus, another sturgeon species), and another
facility in Nevada has been identified that is working toward
production of bester caviar. These businesses may be impacted by the
costs to meet the conditions outlined earlier. We do not expect these
costs to have a significant impact.
This rule reduces the regulatory burden of the listing of beluga
sturgeon, because without this rule all trade prohibitions of Section 9
of the ESA would apply to the import, export, re-export, or foreign and
interstate commerce in H. huso. This rule allows certain activities to
continue, avoiding costs that may be associated with abstaining from
trade in beluga sturgeon or going through the ESA permitting process.
The rule exempts five activities from the trade prohibitions: the take,
import, export (including re-export), foreign commerce, and interstate
commerce in beluga sturgeon products originating from the waters of the
Caspian and Black Seas or derived from aquaculture. The rule also
exempts the international movement of personal effects (as defined in
the rule itself) containing beluga sturgeon from ESA permitting
provisions.
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. Accordingly, a Small
Entity Compliance Guide is not required.

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.
The Service examined each of the four exemptions of the Act's
Section 9 trade prohibitions that will be created by the special rule
(import, export, interstate commerce, and foreign commerce). We
determined that the foreign commerce

[[Page 10502]]

exemption will have little or no economic effect (i.e., will not ease
any significant cost that would have been imposed by Section 9 without
the rule). In foreign countries, this exemption will allow individuals
and businesses subject to U.S. jurisdiction to engage in commerce
involving beluga sturgeon products originating from littoral states
without the need for threatened species permits. We are not aware of
such commerce currently, and therefore this exemption will create
minimal benefits.
The Service also examined the impact of the special rule on import,
export, and re-export of, and interstate commerce in, beluga sturgeon
products originating from littoral states. This exemption 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 exemption will
create significant benefits to beluga sturgeon traders commercially
importing, exporting, and selling across State lines beluga sturgeon
caviar and meat originating from the littoral states. Without the rule,
Section 9 would prevent all current import, export, re-export, and
interstate commerce, and traders would receive no income from lucrative
U.S. markets for beluga sturgeon meat or caviar. With the rule, this
international trade and interstate commerce could continue with an
estimated annual net income of $16-39 million for the traders, 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 littoral
states (including U.S. operations) under paragraph (y)(5) in the rule.
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 individual beluga sturgeon aquaculture
operations, we expect the economic impact of such exemptions to be
positive, but relatively small.

Unfunded Mandates Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,
et seq.), this rule will not impose an unfunded mandate on State,
local, or tribal governments or the private sector of more than $100
million per year. This rule will not have a significant or unique
effect on State, local, or tribal governments or the private sector. A
Small Government Agency Plan is not required.

Takings

In accordance with Executive Order 12630, this rule does not have
significant takings implications. By reducing the regulatory burden
placed on affected individuals resulting from the listing of the beluga
sturgeon as a threatened species, this rule will reduce the likelihood
of potential takings. Affected individuals will have more freedom to
pursue activities (i.e., import and re-export) involving beluga
sturgeon without first obtaining individual authorization.

Federalism

In accordance with Executive Order 13132, this rule does not have
sufficient Federalism implications to warrant the preparation of a
Federalism assessment.

Civil Justice Reform

In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of Sections 3(a) and 3(b)(2)
of the Executive Order.

Paperwork Reduction Act

Office of Management and Budget (OMB) regulations at 5 CFR 1320
implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et
seq.). The OMB regulations at 5 CFR 1320.3(c) define a ``collection of
information'' as the obtaining of information by or for an agency by
means of identical questions posed to, or identical reporting,
recordkeeping, or disclosure requirements imposed on 10 or more
persons. Furthermore, 5 CFR 1320.3(c)(4) specifies that ``10 or more
persons'' refers to the persons to whom a collection of information is
addressed by the agency within any 12-month period. For purposes of
this definition, employees of the Federal Government are not included.
A Federal agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid OMB control number.
This rule refers to CITES permits required for the export to or
from the United States of beluga sturgeon caviar and meat. Our CITES
permit applications are already approved by OMB under OMB control
number 1018-0093, which expires June 30, 2007.
In addition, this rule will newly require certain other
information, including national management plans, national regulations,
annual reports, and labeling of shipments, to be provided to the
Service by littoral states wishing to export beluga sturgeon products
to the United States. The rule also requires information to be
submitted by aquaculture facilities outside of littoral states if they
wish to be exempted from permit requirements under the Endangered
Species Act. The new information requirements do not, however, require
OMB approval under the Paperwork Reduction Act, as explained below.
Although we identify 11 countries with significant habitat in the
current range of the beluga sturgeon, only 8 of these countries
(Azerbaijan, Bulgaria, Iran, Kazakhstan, Romania, Russia, Serbia and
Montenegro, and Turkmenistan) currently have a national program to
commercially harvest and export beluga sturgeon. Therefore, only those
8 countries with existing beluga sturgeon export industries will be
able to provide the information required by this rule to the Service.
In addition, we are currently aware of only one aquaculture facility,
located in the United States and which is not yet commercially viable,
that may eventually take advantage of the exemption for aquacultured
specimens originating from outside littoral states. Therefore, the
threshold of 10 or more respondents per year is not met, and OMB
approval is not required.

National Environmental Policy Act

We have analyzed this rule in accordance with the criteria of the
National Environmental Policy Act of 1969 (NEPA), and have determined
that this rule does not constitute a major Federal action significantly
affecting the quality of the human environment within the meaning of
Section 102(2)(C) of the NEPA, and it will not involve unresolved
conflicts concerning alternative uses of available resources (516 DM
2.3A). Therefore, this rule is categorically excluded under 516 DM 2,
Appendix 1.10.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations With Native American Tribal
Governments'' (59 FR 22951) and E.O. 13175, we have evaluated possible
effects on Federally recognized Indian Tribes. We have determined that,
because no Indian trust resources occur within the range of the beluga
sturgeon, this rule will have no effects on Federally recognized Indian
Tribes.

Executive Order 13211

We have evaluated this rule in accordance with E.O. 13211 and have

[[Page 10503]]

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.

Literature Cited

Anonymous. 2002a. Caspian Sea sturgeons. Interpretation and
implementation of the Convention, significant trade in Appendix-II
species. 47th meeting of the Standing Committee; 1-2 November 2002;
Santiago, Chile. SC47 Doc. 11.
Anonymous. 2002b. Conservation of Acipenseriformes; implementation
of Decisions 11.59 and 11.152. Notification to the Parties 2002/012
(6 March 2002). Geneva, Switzerland.
Anonymous. 2002c. Report on results of complex interstate all-
Caspian Sea expedition on the assess of sturgeon species stocks.
FSUI CaspNIRKh, Atyrau branch of KazNIRKh, AzerNIRKh, State Fishery
Department of Turkmenistan, Iran Scientific Research Center
(Shilat). Astrakhan.
ASMFC. 1998. Amendment 1 to the interstate fishery management plan
for Atlantic sturgeon. Fishery management report no. 31 of the
Atlantic States Marine Fisheries Commission. July 1998. 43 pp.
NMFS. 1998. Final recovery plan for the shortnose sturgeon,
Acipenser brevirostrum. December 1998. U.S. Department of Commerce,
National Oceanic and Atmospheric Administration, National Marine
Fisheries Service. 104 pp.
USFWS and GSMFC. 1995. Gulf sturgeon recovery plan. U.S. Fish and
Wildlife Service and Gulf States Marine Fisheries Commission.
Atlanta, Georgia. 170 pp.

Author

The primary author of this rule is John Field, Division of
Scientific Authority, U.S. Fish and Wildlife Service, 4401 North
Fairfax Drive, Room 750, Arlington, Virginia 22203 (telephone: 703-358-
1708).

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 stated in the preamble, the Service hereby amends part
17, subpart 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. In Sec. 17.11(h) revise the entry for the ``Sturgeon, beluga,''
under ``Fishes,'' on the List of Endangered and Threatened Wildlife to
read as follows:


Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------ population where Special
Historic range endangered or Status When listed Critical habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
FISHES

* * * * * * *
Sturgeon, beluga................ Huso huso.......... Azerbaijan, Bosnia Entire............ T 743 NA 17.44 (y)
and Herzegovina,
Bulgaria,
Croatia, Czech
Republic,
Georgia, Hungary,
Islamic Republic
of Iran, Italy,
Kazakhstan,
Republic of
Moldova, Romania,
Russian
Federation,
Serbia and
Montenegro,
Turkey,
Turkmenistan,
Ukraine.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Sec. 17.31 [Amended]

0
3. Amend Sec. 17.31 by removing paragraph (d).

0
4. Amend Sec. 17.44 by adding paragraph (y) to read as follows:


Sec. 17.44 Special rules--fishes.

* * * * *
(y) Beluga sturgeon. This paragraph applies to the threatened
beluga sturgeon (Huso huso).
(1) How are various terms defined in this special rule? In addition
to the definitions specified in Sec. 10.12 of subchapter B of this
chapter, we define certain terms that specifically apply to beluga
sturgeon trade and this special rule as follows:
Aquacultured beluga sturgeon products. Eggs, larvae, fingerlings,
or other products derived from Huso huso captive-bred or grown in
captivity for commercial purposes starting at least at the F1
generation in captivity (i.e., captive-bred for at least one
generation).
Beluga caviar. Processed unfertilized eggs from female Huso huso
intended for human consumption, including products containing such eggs
(e.g., cosmetics).
Beluga meat. Excised muscle tissue of Huso huso destined for human
consumption.
Black Sea. The contiguous waters of the Black Sea and the Sea of
Azov.
CITES. The Convention on International Trade in Endangered Species
of Wild Fauna and Flora.
Export. The transport of a beluga sturgeon specimen out of its
country of origin.
Hatchery-origin beluga sturgeon. Specimens of Huso huso captive-
bred solely in the littoral states, primarily for reintroduction and
stock enhancement purposes. Such specimens can occur in the natural
marine environment of the littoral states.
Live or living beluga sturgeon. Any living specimen of Huso huso,
including viable unfertilized or fertilized eggs, larvae, fingerlings,
juveniles, and adults.

[[Page 10504]]

Littoral states. Azerbaijan, Bulgaria, Georgia, Islamic Republic of
Iran, Kazakhstan, Romania, Russian Federation, Serbia and Montenegro,
Turkey, Turkmenistan, and Ukraine.
Re-export. Export of beluga sturgeon specimens that were previously
imported.
Wild beluga sturgeon. Specimens of Huso huso born and reared in the
natural marine environment within the current or former geographic
range of the species.
(2) What activities involving beluga sturgeon are affected by this
rule? (i) International trade in beluga sturgeon. Except as provided in
paragraph (y)(3) and (y)(5) of this section, all prohibitions and
provisions of Sec. Sec. 17.31(a) and 17.32 apply to the international
trade in beluga sturgeon, including its parts and derivatives. Live
beluga sturgeon remain subject to all the prohibitions and provisions
of Sec. Sec. 17.31(a) and 17.32.
(ii) Trade without CITES documents. Except as provided in
paragraphs (y)(3) of this section, you may not import, export, or re-
export, or present for export or re-export beluga sturgeon or beluga
sturgeon products without valid CITES permits and other permits and
licenses issued under parts 13, 17, and 23 of this chapter.
(iii) Commercial activity. Except as provided in paragraphs (y)(3)
and (5) of this section and Sec. 17.32, you may not sell or offer for
sale, deliver, receive, carry, transport, or ship in interstate or
foreign commerce in the course of a commercial activity any beluga
sturgeon or beluga sturgeon products.
(iv) It is unlawful for any person subject to the jurisdiction of
the United States to commit, attempt to commit, solicit to commit, or
cause to be committed any acts described in paragraphs (y)(2)(ii) and
(iii) of this section.
(3) What activities are exempted from threatened species permits by
this rule? (i) Import, export or re-export, and interstate and foreign
commerce involving certain caviar and meat obtained from beluga
sturgeon. You may import, export or re-export, or conduct interstate or
foreign commerce in beluga sturgeon caviar and meat without a
threatened species permit issued according to Sec. 17.32 only if the
caviar and meat are derived from wild or hatchery-origin beluga
sturgeon that were caught and processed in the littoral states, or the
caviar and meat are exempt from permits because they originate from
qualifying aquaculture facilities outside of littoral states (see
paragraph (y)(5)). Also, the provisions in parts 13, 14, and 23 of this
chapter and the following requirements must be met:
(A) Any beluga caviar must comply with all CITES labeling
requirements, as defined in relevant Resolutions or Decisions of the
Conference of the Parties, including beluga caviar in interstate
commerce in the United States. All individuals or businesses in the
United States wishing to engage in domestic interstate commerce of
beluga sturgeon caviar must follow the CITES caviar-labeling
requirements.
(B) The shipment must be accompanied by a valid CITES permit or
certificate upon import, export, or re-export.
(C) For each shipment covered by this exemption, the country of
origin and each country of re-export, and the country of import
involved in the trade of a particular shipment, must have designated
both a CITES Management Authority and Scientific Authority, and have
not been identified by the CITES Conference of the Parties, the CITES
Standing Committee, or in a Notification from the CITES Secretariat as
a country from which Parties should not accept permits for beluga
sturgeon or all CITES-listed species in general.
(D) The littoral state from which the beluga sturgeon caviar or
meat originated has complied with all of the requirements shown in
paragraph (y)(4) of this section, and none of the exporting, importing,
or re-exporting countries involved in the commercial activity has been
subject to an administrative trade restriction or suspension as
outlined in paragraphs (y)(6) and (7) of this section.
(E) Any relevant aquaculture facility located outside of a littoral
state has complied with all of the requirements shown in paragraph
(y)(5) of this section.
(ii) Import and re-export of non-commercial personal or household
effects. You may import, export or re-export, or conduct interstate or
foreign commerce in beluga sturgeon personal or household effects
without a threatened species permit issued according to Sec. 17.32.
Also, for CITES permits, Article VII.3. of CITES recognizes a limited
exemption for the international movement of personal and household
effects, including specimens of beluga sturgeon.
(A) Stricter national measures. The exemption for personal and
household effects does not apply if a country prohibits or restricts
the import, export, or re-export of the item.
(1) You or your shipment must be accompanied by any document
required by a country under its stricter national measures.
(2) In the United States, you must obtain any permission needed
under other regulations in this subchapter.
(B) Required CITES documents. You must obtain a CITES document for
personal or household effects and meet the requirements of this part if
one of the following applies:
(1) The Management Authority of the importing, exporting, or re-
exporting country requires a CITES document.
(2) You or your shipment does not meet all of the conditions for an
exemption as provided in paragraphs (y)(3)(ii)(C) through (E) of this
section.
(3) The personal or household effect exceeds 250 grams of beluga
caviar. To import, export, or re-export more than 250 grams, you must
have a valid CITES document for the entire quantity.
(C) Personal effects. You do not need a CITES document to import,
export, or re-export any part, product, derivative, or manufactured
article of a legally acquired beluga sturgeon specimen to or from the
United States if all of the following conditions are met:
(1) No living beluga sturgeon is included.
(2) You personally own and possess the item for non-commercial
purposes, including any item intended as a personal gift.
(3) The item and quantity of items are reasonably necessary or
appropriate for the nature of your trip or stay.
(4) You are either wearing the item as clothing or an accessory or
taking it as part of your personal baggage, which is being carried by
you or checked as baggage on the same plane, boat, car, or train as
you.
(5) The item was not mailed or shipped separately.
(D) Household effects. You do not need a CITES document to import,
export, or re-export any part, product, derivative, or manufactured
article of a legally acquired beluga sturgeon specimen that is part of
a shipment of your household effects when moving your residence to or
from the United States, if all of the following conditions are met:
(1) No living beluga sturgeon is included.
(2) You personally own the item and are moving it for non-
commercial purposes.
(3) The item and quantity of items are reasonably necessary or
appropriate for household use.
(4) You import, export, or re-export your household effects within
1 year of changing your residence from one country to another.
(5) The shipment, or shipments if you cannot move all of your
household effects at one time, contains only items

[[Page 10505]]

purchased, inherited, or otherwise acquired before you moved your
residence.
(E) Trade restrictions. Regardless of the provisions above for
personal and household effects, any trade suspension or trade
restriction administratively imposed by the Service under paragraphs
(y)(6) or (7) of this section could also apply to personal and
household effects of beluga caviar.
(4) What must beluga sturgeon littoral states do to be authorized
under the special rule to export to the United States? The following
requirements apply to the littoral states wishing to export beluga
caviar or beluga meat to the United States without the need for a
threatened species permit issued under Sec. 17.32. These requirements
apply to all shipments of beluga caviar and beluga meat that originate
in the littoral states, even if the shipments are re-exported to the
United States via an intermediary country. (See paragraph (y)(7) of
this section for more information on the Service's biennial reviews
under the special rule.)
(i) Basin-wide beluga sturgeon management plans. By September 6,
2005, each littoral state wishing to export beluga caviar or beluga
meat to the United States without the need for a threatened species
permit issued under Sec. 17.32 must submit to the Service's Division
of Scientific Authority a copy of a cooperative management plan for its
respective basin (i.e., Black Sea or Caspian Sea) that addresses Huso
huso conservation. Each of these two basin-wide management plans must
be agreed to by all of the littoral states (not just exporting nations)
in the Black Sea or the Caspian Sea, as appropriate. Upon receipt, the
Division of Scientific Authority will review these basin-wide
management plans within 90 days for completeness and clarity. If any
elements of the management plans are missing or unclear, we will ask
the appropriate littoral states to provide additional information
within 60 days of the date we contact them. If the littoral states fail
to respond or fail to submit basin-wide management plans by the
specified deadline, or if we are unable to confirm that all littoral
states are signatories to those plans, we will immediately suspend
trade with all littoral states in the given basin (Caspian Sea or Black
Sea) until we are satisfied that such management plans exist.
Submission of documents in English may help expedite the Service's
review. These cooperative management plans must contain the following
elements:
(A) A clear statement of the recovery and management objectives of
the plan, including a specification of the stock(s) concerned, a
definition of what constitutes over-fishing for that stock, and a
rebuilding objective and schedule for that stock;
(B) A statement of standard regulations and habitat improvement
strategies (e.g., size limits, target harvest rates, quotas, seasons,
fishing gear, effort caps, fish passage improvement, water quality
controls) to be utilized by the nations involved;
(C) A complete statement of the specific regulatory, monitoring,
and research requirements that each cooperating nation must implement
to be in compliance with the management plan;
(D) A complete description of how stock survey data and fisheries
data are used to establish annual catch and export quotas, including a
full explanation of any models used and the assumptions underlying
those models;
(E) Procedures under which the nations may implement and enforce
alternative management measures that achieve the same conservation
benefits for beluga sturgeon as the standards mentioned in paragraph
(y)(4)(i)(B) of this section; and
(F) A complete schedule by which nations must take particular
actions to be in compliance with the plan.
(ii) National regulations. By September 6, 2005, each littoral
state wishing to export beluga caviar or beluga meat to the United
States under this special rule must provide the Service's Division of
Scientific Authority with copies of national legislation and
regulations that implement the basin-wide cooperative management plan
described in paragraph (y)(4)(i) of this section, including regulations
pertaining to the harvest, trade, aquaculture, restocking, and
processing of beluga sturgeon. Upon receipt, the Division of Scientific
Authority will review these basin-wide management plans within 90 days
for completeness and clarity. If any elements of the national
legislation or national fishery regulations are missing or unclear, we
will ask the appropriate littoral states to provide additional
information within 60 days of the date we contact them. If the littoral
states fail to respond or fail to submit copies of national laws and
regulations by the specified deadline, we will immediately suspend
trade with the given littoral states until we are satisfied that such
laws and regulations are in effect. Submission of documents in English
may help expedite the Service's review.
(iii) Caviar labeling. All caviar shipments imported into the
United States must follow the CITES caviar-labeling requirements as
agreed to in the relevant Resolutions and Decisions of the CITES
Parties. Current labeling requirements can be obtained by contacting
the Service (see FOR FURTHER INFORMATION CONTACT above).
(iv) CITES compliance. Except as provided in paragraph (y)(3)(ii)
of this section, all shipments of beluga sturgeon specimens, including
those exempted from threatened species permits under this special rule,
will require accompanying valid CITES permits and certificates upon
import, export, or re-export.
(v) Initial reporting period. Until September 6, 2005, no
threatened species permits will be required for the import, export, re-
export, or interstate or foreign commerce of beluga sturgeon caviar and
meat that originated in the littoral states, in order to provide the
littoral states time to submit the required documentation. After this
6-month period, the exemption from threatened species permits will
continue only while the Service reviews littoral state compliance with
paragraphs (y)(4)(i) through (iv) of this section. If this review
demonstrates that the provisions of this special rule are not met, the
Service will announce and institute trade restrictions or suspensions
in beluga sturgeon caviar or meat with one or more littoral states as
per paragraph (y)(7) of this section.
(vi) Biennial reports. Littoral state governments wishing to export
specimens of beluga sturgeon caviar or meat to the United States under
this special rule must provide to the Service's Division of Scientific
Authority reports containing the most recent information available on
the status of the species, following the information guidelines
specified below. The Service must receive the first report no later
than December 1, 2005, and every 2 years thereafter on the anniversary
of that date. Starting in December 2005, and thereafter on a biennial
basis, the Service will review the national reports within 90 days of
receiving them and any other pertinent information on wild beluga
sturgeon conservation. If any elements of the biennial reports are
missing or unclear, the Service will ask the appropriate littoral
states to provide additional information within 60 days of the date we
contact them. If the littoral states fail to respond or fail to submit
biennial reports by the specified deadline, we will immediately suspend
trade with the given littoral states (see paragraph (y)(7) of this
section for details on how such a suspension would be instituted and
announced). Submission of documents in English may help

[[Page 10506]]

expedite the Service's review. We propose to use these reviews to
determine whether littoral state management programs are leading to
recovery of wild beluga sturgeon stocks. For each littoral state, the
following information must be provided in the biennial reports:
(A) A description of the specific fishery regulations that affect
the harvest of Huso huso in the respective littoral state, with any
changes from the previous report highlighted;
(B) A description of any revisions to the cooperative management
program mentioned in paragraph (y)(4)(i) of this section, including any
new models, assumptions, or equations used to set harvest and export
quotas;
(C) New information obtained in the last 2 years on beluga sturgeon
distribution, stock size, models used for quota-setting, spawning
activity, habitat use, hatchery programs and results, or other relevant
subjects;
(D) A summary of law enforcement activities undertaken in the last
2 years, and a description of any changes in programs to prevent
poaching and smuggling, including indicators of their effectiveness;
(E) A summary of the revenues generated by the commercial
exploitation of beluga sturgeon in the respective littoral state, and a
summary of any documented conservation benefits resulting from the
commercial harvest program in that country (e.g., revenues allocated to
hatchery and restocking programs or research programs); and
(F) Export data for the previous two calendar years.
(5) Can aquacultured beluga sturgeon products be exempt from
threatened species permits if the products originate outside the
littoral states? We will consider exemptions from threatened species
permits for beluga caviar and meat obtained from aquaculture facilities
outside the littoral states. These exemptions will be for individual
facilities, and would allow aquacultured beluga caviar and meat
originating from these facilities to be imported, exported, re-
exported, or traded in interstate and foreign commerce without
threatened species permits issued under Section 10 of the Act.
Aquaculture facilities within the United States could also be exempt
from prohibitions against take for purposes of harvesting caviar or
meat (i.e., killing of beluga sturgeon), or for conducting activities
involving research to enhance the survival or propagation of the
species. Facilities outside the littoral states wishing to obtain such
exemptions must submit a written request to the Division of Management
Authority, Branch of Permits--International (see FOR FURTHER
INFORMATION CONTACT above) and provide to the Service's Division of
Scientific Authority, at a minimum, information that shows all of the
following:
(i) The facility in question is using best management practices to
prevent the escape of beluga sturgeon and disease pathogens into local
ecosystems, as certified by the relevant regulatory agency. In the case
of the United States, the relevant regulatory authority will be the
state agency with jurisdiction over aquaculture. In the case of foreign
aquaculture facilities outside the littoral states, the relevant
regulatory agency will be the designated CITES Management Authority
with jurisdiction over sturgeon. Best management practices that affect
the applicant's facility must be part of the application and available
for Service review.
(ii) The facility in question has entered into a formal agreement
with one or more littoral states to study, protect, or otherwise
enhance the survival of wild beluga sturgeon. Copies of such agreements
must be provided.
(iii) The facility in question does not rely on wild beluga
sturgeon for broodstock. Proof of broodstock origin, including relevant
CITES permits that accompanied broodstock specimens upon import into
the United States, must be part of the application.
(iv) Exemptions granted under this paragraph shall not apply to
trade (import, export, re-export, or interstate and foreign commerce)
in live beluga sturgeon, and may be revoked at any time if the Service
determines that any of the criteria shown in paragraphs (y)(5)(i)
through (iii) of this section are not met by the facility. Applicants
will be required to submit biennial reports on their compliance with
paragraphs (y)(5)(i) through (iii) of this section, starting on the
second anniversary of any programmatic exemption granted to the
applicants. These biennial reports must show that exempted facilities
have actively cooperated with one or more littoral states in a
meaningful way to support beluga sturgeon conservation. Any beluga
caviar originating from aquaculture facilities outside the littoral
states must comply with CITES caviar-labeling requirements, even in
interstate commerce within the United States. We will publish an
information notice if the Service grants a programmatic exemption to
any aquaculture facility outside the littoral states, and announce such
actions through our website and posting notices at our wildlife ports
of entry. We will follow the provisions of paragraphs (y)(6) and (y)(7)
of this section to announce restrictions or revocations of such
programmatic exemptions, based on our review of facilities' biennial
reports.
(6) How will the Service inform the public of CITES restrictions on
trade in beluga sturgeon? We will issue an information bulletin that
identifies a restriction or suspension of trade in specimens of beluga
sturgeon and post it on our websites (http://le.fws.gov and http://
international.fws.gov) and at our staffed wildlife ports of entry if
any criterion in paragraphs (y)(6)(i) through (iii) of this section is
met:
(i) The country is lacking a designated Management Authority or
Scientific Authority for the issuance of valid CITES documents or their
equivalent for beluga sturgeon.
(ii) The country is identified in any action adopted by the CITES
Conference of the Parties, the CITES Standing Committee, or in a
Notification to the Parties issued by the CITES Secretariat as a
country from which Parties are asked not to accept shipments of
specimens of beluga sturgeon or all CITES-listed species.

Note to paragraph (y)(6): A listing of all countries that have
not designated either a Management Authority or Scientific
Authority, or that have been identified as countries from which
Parties should not accept permits, is available by writing to:
Division of Management Authority, U.S. Fish and Wildlife Service,
4401 N. Fairfax Drive, Room 700, Arlington, Virginia 22203.

(7) How will the Service set trade restrictions or prohibitions
under the special rule? The Service's Division of Scientific Authority
will conduct a biennial review of beluga sturgeon conservation based on
information in the cooperative basin-wide management plans, national
regulations and laws, and biennial reports (submitted as per paragraph
(y)(4) of this section, and paragraph (y)(5) for aquaculture
facilities). We will combine that review with a review of other
relevant information (e.g., scientific literature, law enforcement
data, government-to-government consultations) to determine whether
littoral state management programs and aquaculture operations are
effectively achieving conservation benefits for beluga sturgeon. Based
on this information, or the failure to obtain it, the Service may
restrict or prohibit trade from a littoral state, a re-exporting
intermediary country, or an entire basin (i.e., the Caspian Sea or
Black Sea) or a specific aquaculture facility outside the littoral
states if we determine that the conservation or management status of
beluga sturgeon has been adversely affected and the continued recovery
of beluga sturgeon may be compromised.

[[Page 10507]]

The decision to restrict or prohibit trade in beluga sturgeon products
on a national, basin, or region-wide scale will depend on the scope of
the problem observed, the magnitude of the threat to wild beluga
sturgeon, and whether remedial action is necessary at a national,
basin, or region-wide scale.
(i) Trade restrictions or suspensions may result basin-wide, for
specific littoral states, or for non-littoral state aquaculture
facilities under one or more of the following scenarios:
(A) Failure to submit any of the reports, legislation, and
management plans described above, or failure to respond to requests for
additional information;
(B) A change in regional cooperative management that threatens the
recovery of wild beluga sturgeon;
(C) A change in littoral state laws or regulations that compromises
beluga sturgeon recovery or survival in the wild;
(D) Adoption of scientifically unsound hatchery practices or
restocking programs for beluga sturgeon;
(E) A decline in wild Huso huso populations, as documented in
national reports outlined above or the scientific literature, that goes
unaddressed by regional or national management programs;
(F) Failure to address poaching or smuggling in beluga sturgeon,
their parts, or products in the littoral states or re-exporting
countries, as documented in national reports described above or other
law enforcement sources;
(G) Failure of the littoral states to address the loss of beluga
sturgeon habitat quality or quantity;
(H) Failure of the littoral states or re-exporting countries to
follow the caviar-labeling recommendations of the CITES Parties
(currently embodied in Resolution Conf. 12.7);
(I) Recommendations from the CITES Standing Committee to suspend
trade in beluga sturgeon from one or more countries; or
(J) An aquaculture facility outside the littoral states has been
issued a programmatic exemption from threatened species permits under
paragraph (y)(5) of this section, but is not abiding by the provisions
of paragraph (y)(5)(i) through (iii) or, based on the biennial reports
required under (y)(5), has not actively cooperated with one or more
littoral states in a meaningful way to support beluga sturgeon
conservation.
(K) Any other natural or human-induced phenomenon that threatens
the survival or recovery of beluga sturgeon.
(ii) We will publish an information notice in the Federal Register,
as well as on our Web site and at our wildlife ports of entry, if the
Service's Division of Scientific Authority administratively suspends or
restricts trade in beluga sturgeon products after determining that wild
beluga sturgeon stock status worsens or threats to the species
increase. This information notice will provide:
(A) The problem(s) identified in the biennial reports or other
salient documents.
(B) The scope of the problem and the number of nations involved.
(C) The scope of the trade restriction or suspension we are
imposing, including products covered, duration of the restriction or
suspension, and criteria for lifting it and reinstating any exemption
to threatened species permits.
(D) How the public can provide input, make comments, and recommend
remedial action to withdraw the trade measures imposed.

Dated: January 10, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-4278 Filed 3-3-05; 8:45 am]
BILLING CODE 4310-55-U