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



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU02

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Interim rule.


SUMMARY: We, the U.S. Fish and Wildlife Service, will allow the trade 
in beluga sturgeon (Huso huso) and its by-products, provided that 
specimens are accompanied by valid permits issued under the Convention 
on International Trade in Endangered Species of Wild Fauna and Flora 
(CITES). This interim rule will be effective until the publication of a 
final rule under Section 4(d) of the Endangered Species Act of

[[Page 62416]]

1973, as amended (Act), pertaining to trade in beluga sturgeon and its 
by-products. This interim rule allows the take, import, export, re-
export, and interstate and foreign commerce in beluga sturgeon, without 
the issuance of a threatened species permit under the Act for those 
specimens that are traded in accordance with the requirements of CITES. 
This rule will benefit entities which trade in these products and help 
further conservation of this threatened species.

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

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



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

Need for Interim Rule

    This interim special rule is necessary to allow the CITES-
consistent trade in beluga sturgeon and its by-products without a 
threatened species permit until a final 4(d) rule is completed and 
published. The Service's intent was to publish the final 4(d) rule to 
coincide with the effective date of the beluga sturgeon threatened 
listing on October 21, 2004. However, the process to finalize the 4(d) 
rule required more time than anticipated because the Service received 
comments on the proposed rule on a number of complex issues. We also 
received new information, which the Service lacked, related to:
     The development of aquaculture for beluga sturgeon within 
the United States,
     How aquaculture in non-range countries could benefit the 
conservation of wild populations, and
     On the scope of aquaculture activities with this species 
in the United States, including information on cooperative activities 
between U.S. entities and range countries.
    The Service did not anticipate the extent of the public response 
from aquaculturists, scientists, and State offices related to this 
issue. It is the Service's responsibility to carefully review all 
public comments on this issue and to consider whether some adjustments 
should be made, and if so, to determine what measures are necessary to 
regulate the trade in aquacultured beluga sturgeon from non-

[[Page 62417]]

range countries, including the United States. This interim rule will 
provide the Service additional time to carefully and appropriately 
respond to all the comments received, including those related to the 
role of aquaculture in the conservation of and trade in sturgeon 
species and their products without disrupting the trade and current 
conservation efforts for beluga sturgeon. The Service is actively 
working to complete the final special 4(d) rule and to publish it by 
the end of January. Without this interim rule, commercial activities 
involving beluga sturgeon and its by-products would be prohibited by 
the general threatened species regulations under the Act, thereby 
disrupting CITES-consistent, sustainable trade in beluga sturgeon.
    Under these circumstances, the Service has determined that prior 
notice and opportunity for public comment are contrary to the public 
interest and there is good cause under 5 U.S.C. 553 for making this 
rule effective less than 30 days after publication in the Federal 
Register. If necessary, we will amend the Code of Federal Regulations 
to remove this rule when the final 4(d) rule is effective.

Required Determinations

Executive Order 12866 (Regulatory Planning and Review)

    This interim rule has not been reviewed by the Office of Management 
and Budget (OMB) under Executive Order 12866. Under the criteria in 
Executive Order 12866, this interim rule is not a significant 
regulatory action.
    a. This interim rule will not have an annual economic effect of 
$100 million or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government. A cost-benefit and 
economic analysis is not required.
    b. This interim rule will not create inconsistencies with other 
agencies' actions. We are the lead agency regulating international 
wildlife trade, domestic wildlife trade, the issuance of permits to 
conduct activities affecting wildlife and their habitats, and carrying 
out U.S. obligations under CITES. Therefore, this interim rule has no 
effect on other agencies' responsibilities and will not create 
inconsistencies with other agencies' actions.
    c. This interim rule will not materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients.
    d. This interim rule will not raise novel legal or policy issues. 
This rule is basically a special 4(d) rule under the ESA. The Service 
has issued numerous 4(d) rules in the past to ensure the conservation 
of endangered and threatened species.

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

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

Small Business Regulatory Enforcement Fairness Act

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

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

    Under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), 
this interim rule will not ``significantly or uniquely'' affect small 
    a. This interim rule will not significantly or uniquely affect 
small governments. A Small Government

[[Page 62418]]

Agency Plan is not required. We are the lead agency regulating wildlife 
trade through the declaration process, the issuance of permits to 
conduct activities affecting wildlife and their habitats, and carrying 
out the United States obligations under CITES. No small government 
assistance or impact is expected as a result of this interim rule.
    b. This interim rule will not produce a Federal requirement that 
may result in the combined expenditure by State, local, or tribal 
governments of $100 million or greater in any year, so it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. This interim rule will not result in any combined expenditure by 
State, local, or tribal governments.

Executive Order 12630 (Takings)

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

Executive Order 13132 (Federalism)

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

Executive Order 12988 (Civil Justice Reform)

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

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

    This interim rule does not contain any information collection 
requirements that require approval by the OMB under the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq.

National Environmental Policy Act

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

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

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

Executive Order 13211

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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


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.

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

Sec.  17.31  Prohibitions.

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

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