Endangered and Threatened Wildlife and Plants; Special Rule To Control the Trade of Threatened Beluga Sturgeon (Huso huso, 10493-10507 [05-4278]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 42 (Friday, March 4, 2005)]
[Rules and Regulations]
[Pages 10493-10507]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-4278]


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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, ther