[Federal Register Volume 59, Number 156 (Monday, August 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19672]
[[Page Unknown]]
[Federal Register: August 15, 1994]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 14
RIN 1018-AB61
Live Farm-Raised Fish; Exemption From Fish and Wildlife Export
Requirements Except for Marking Requirements
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The Service exempts live farm-raised fish and farm-raised fish
eggs from Service export requirements except for marking requirements.
This action exempts exporters of live farm-raised fish and farm-raised
fish eggs from import/export license requirements, designated port
requirements and payment of user fees.
EFFECTIVE DATE: This rule is effective on August 15, 1994.
FOR FURTHER INFORMATION CONTACT: Frank S. Shoemaker, Special Agent in
Charge, Investigations, Division of Law Enforcement, Fish and Wildlife
Service, U.S. Department of the Interior, Washington, D.C. 20240.
Telephone Number (703) 358-1949.
SUPPLEMENTARY INFORMATION:
Background
Only July 9, 1992, (57 FR 30459) the Service published a proposed
rule exempting live farm-raised fish and farm-raised fish eggs from
fish and wildlife export requirements except for marking requirements.
Current regulations (50 CFR Sections 14.21, 14.55, 14.64 and 14.92)
exempt shellfish and fisheries products imported or exported for human
or animal consumption from Service import and export requirements. This
exemption is based on language in the Endangered Species Act of 1973
(16 U.S.C. 1538) (Act) that authorizes the Secretary to prescribe
necessary and appropriate regulations. This action does not relieve the
Service of any responsibilities for the enforcement of provisions of
the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES). Any species of live farm-raised fish or fish
eggs listed in Appendix I, II, or III, and expected from the United
States would remain subject to all regulations governing such exports.
After reviewing inspection situations involving the import and
export of live farm-raised fish and farm-raised fish eggs, the
Secretary has determined that the interests of the Act and CITES are
best served by concentrating the inspection efforts of the Service on
those fish imports or exports which are endangered or threatened.
Section 1538(d) requires anyone engaging in the business of importing
or exporting fish or wildlife to obtain permission from the Secretary
to do so. Under this final rule, exports of live farm-raised fish and
farm-raised fish eggs which are not classified as endangered or
threatened under the Act or are not listed under CITES, would be
required to be marked according to contents, but would be otherwise
permitted as exempted from Service export regulations. Exporters of
live farm-raised fish and farm-raised fish eggs would not be required
to obtain a license to export their live farm-raised fish and farm-
raised fish eggs from the United States.
Under Section 1538(f), the Secretary may permit the importation or
exportation of wildlife at non-designated ports and under such term as
may be prescribed may permit both importation or exportation for other
reasons, if in the Secretary's discretion, it is deemed appropriate and
consistent with the Act. The Secretary views this exemption, as it
pertains to live farm-raised fish and farm-raised fish eggs, as a means
to concentrate Service enforcement efforts on species directly covered
by the Act, including CITES. It also affords Service managers
additional flexibility to direct wildlife inspection efforts where they
are most needed. The costs to both the Service and fish farmers for
export inspection of live farm-raised fish and farm-raised fish eggs
that are non-endangered, non-threatened, non-CITES, and are raised for
consumptive purposes (such as catfish) or ornamental purposes (such as
guppies), outweigh any benefits that might be accrued by such
inspection. Continued deployment of limited wildlife inspection
services to the export of captive-bred live farm-raised fish and farm-
raised fish eggs in an inefficient means of enforcing the Act when
shipments of fish containing endangered, threatened, or CITES species
needing inspection may be by-passed by Service personnel. Also, this
action does not preclude the Service from conducting any inspection of
a fish shipment where it is believed endangered, threatened or CITES
species may occur, no does it relieve any exporter of live farm-raised
fish or farm-raised fish eggs from meeting provisions of the Act,
CITIES or any other regulations or directive issued by the Service.
Since June 11, 1992, when Director's Order No. 48, Export of Live
Farm-Raised Fish and Farm-Raised Fish Eggs was issued, the Service has
determined that the exemption of live farm-raised fish and farm-raised
fish eggs from Service export requirements has not significantly
increased the risk that illegally taken wild fish are being exported as
farm-raised. Nor have the effects of this order been detrimental to
Service's fisheries management or law enforcement programs. However,
concerns about the possible introduction of injurious species into this
country's wild fisheries will require that the Service continue to
enforce its regulations relating to the import of all fish and fish
eggs.
Results of Written Comments
A total of 12 written comments were received by the Service during
the comment period. Three expressed enforcement concerns, two related
to the inclusion of shellfish in the rule change, one opposed the rule
change, one requested information and five supported the rule change
unconditionally.
Of the three comments regarding enforcement issues, the most
specific concern was one relating to the illegal export of paddlefish
eggs. The commenter was concerned that exempting live farm-raised fish
and farm-raised fish eggs from license and export inspection
requirements might exacerbate an existing problem regarding the illegal
harvest of paddlefish eggs sold as caviar. ``We * * * have no means
(export documents or reports) to determine that the fish or fish eggs
leaving the State are legally-taken wild fish or farm raised.'' The
second enforcement commenter related concerns regarding the
applicability of the exemption in a foreign country, determination of
ultimate utilization of the product, the possible re-export of wild-
caught tropical fish, limitations on the Service's ability to inspect
due to the rule change, illegal exports of wild-caught illegally taken
fish from Pacific territories, the mixing of wild-caught and captive-
raised specimens, verification of captive-produced fish by hobbyists,
and the question of shellfish raised in seeded beds as qualifying as
bred-in-captivity. The commenter stated: ``* * * unscrupulous tropical
fish exporters could claim the exemption with only a few fish tanks in
the basement.'' The commenter proposed not exempting live tropical
aquarium fish, including live shellfish within the ruling, excluding
re-exports and applying the exemption only to live products. The third
enforcement commenter expressed concern about exports of live farm-
raised fish containing other wildlife and that the rule change would
provide ``little deterrence to laundering wild-caught fish.''
The Service is concerned about any potential impact of this rule on
the wild fish resource and the ability of law enforcement agencies to
protect the resource. The Service believes that the increased illegal
take and export of wild-caught paddlefish is primarily an economic
phenomenon resulting from the diminished supply of caviar exported from
States formerly comprising the Soviet Union. The Service does not
believe that this situation would be relieved by abandoning this rule.
A more effective means of addressing the problem of illegal take of
paddlfish may lie in reviewing current regulatory approaches and
enforcement strategies, developing more effective means of monitoring
paddlefish resources and establishing closer liaison with the Service's
Division of Law Enforcement in instances where Federal laws such as the
Lacey Act apply.
Regarding the second set of enforcement concerns, it is true that
the unscrupulous exporter of tropical fish can claim a bred-in-
captivity status for any export of tropical fish. However, the Service
has not relinquished any importation inspection authority. Since nearly
all tropical fish in the United States have either been captive-bred or
imported, additional inspection at the time of export is duplicative
and would render no benefit to the resource. Neither can the Service
propose to define every category of exempt utilizations of live farm-
raised fish. While it is true that Service export inspection options
become somewhat more limited under this rule in instances where live
farm-raised fish exports might contain illegal wildlife or even fish
that are wild-caught, the Service cannot penalize or delay legitimate
exports on unfounded suspicion. Nor can it penalize legitimate
exporters of exotic or tropical fish because producers or hobbyists may
be unregulated by States.
On June 11, 1992, Director's Order No. 48, Export of Live Farm-
Raised Fish and Farm-Raised Fish Eggs was issued. This order expanded
the exemption from import/export requirements of 50 CFR 14.21 (for
shellfish and fisheries products imported or exported for human or
animal consumption) to the export of live farm-raised fish and farm-
raised fish eggs. Since the issuance of this directive, no significant
increase in illegally taken wild fish re-exported as live farm-raised
fish has been reported. Also, nothing in this rule prevents law
enforcement authorities from enforcing existing laws regarding illegal
importation or exportation or using existing law enforcement techniques
in conducting investigations of commercial laundering of fish or other
wildlife.
The Service recognizes that like other segments of the animal trade
industry, certain individuals may not wish to invest in breeding
operations with respect to wild-caught fish species currently imported
and re-exported for sale. Such exports of wild-caught fish, if
undeclared, remain illegal and are subject to investigation. The
commenter also cited aquarium fish exported from the Pacific
territories as a specific concern because the wild-caught population is
``bound'' to be caught by destructive means. Fish taken by such means
may be laundered as captive-bred wildlife, speculated the commenter. As
in the case of illegal paddlefish exportations, the Service believes
this is a situation that must first be addressed by local authorities.
Service inspection of shipments containing such illegally taken fish
will diminish but not eliminate a root cause, which is the lack of
internal controls at the territorial level. This commenter also stated
that shellfish should be included in the Final Rule even if they do not
meet the current definition of ``bred in captivity'' and ``captivity''
under 50 CFR Part 17.
In addition to better utilization of Service personnel resources
and to more effectively enforce the Act, the Service is able through
this action to address the economic needs of an important industry
which farm raises fin fish and their eggs and to simplify the export of
a product which is not taken from a wild resource under the
jurisdiction of the Service. Under the provisions of 50 CFR 14.64(a),
shellfish and fishery products for human or animal consumption are
exempt from Service export declaration requirements. The Service
recognizes that those who export shellfish specifically for purposes of
human consumption frequently export these products in their immature
forms, which complete their growth abroad before being sold for human
consumption. Exporters of this class of shellfish are frequently
required to meet wildlife export regulations because shellfish, such as
clam ``spat'', are not directly consumed by animals or humans but are
exported for transplantation prior to such consumption. The Service
determined from the comments it received that this issue is of
significant concern and that it is most appropriate to address this
issue by reviewing the provisions of 50 CFR 14.21 in a forthcoming
proposed rule which covers a broader range of importation and
exportation procedures.
Another commenter was disconcerted because no supporting
documentation for the Service's proposed actions regarding the lifting
of inspection requirements of live farm-raised fish or farm-raised fish
eggs exports was offered. (This concern was also raised as the sole
comment in another letter.) The commenter concluded that this was
because the Service's decision regarding the non-inspection of live
farm-raised fish or farm-raised fish eggs exports was ``biologically
unsound'' and ``. . that the export of live fish and fish eggs should
be monitored more intensively rather than removing virtually all
monitoring activity.''
The commenter cited the Canadian Journal of Fisheries and
Aquaculture Sciences, Volume 48 (Supplement No. 1), 1991, containing a
series of papers on ``The Ecological and Genetic Implications of Fish
Introductions.'' The commenter also stated that the Service violated
both the requirements of, and the spirit of E.O. 11987, by encouraging
the export of species that would be exotic to receiving ecosystems.
The commenter cited instances of international fish disease
introductions in Japan, Russia and several European countries. Such
introductions, the commenter stated, amount to ``* * * a solid
scientific argument that the export of live fish and fish eggs should
be monitored more intensely rather than removing virtually all
monitoring activity.'' The commenter suggested that a user-fee program
be set up so that live farm-raised fish and farm-raised fish eggs could
be certified as pathogen and parasite free. Also, the commenter
requested that a formal Environmental Impact Statement (EIS) be
prepared on the proposed rule and stated that the exclusion of this
rule from an EIS was a ``perversion'' of the National Environmental
Policy Act (NEPA).
The Service recognizes that introductions can, and sometimes do,
have the impacts cited by the commenter. The Service, like the
commenter, recognizes that the accidental introduction of pathogens can
and have caused serious problems for ecosystems. The history and
results of accidental and damaging pathogen introductions are of
concern to the Service. Consistent with the awareness of the problems
such introductions may have, it is also important to consider that not
all pathogens discovered in a new location have necessarily been new
introductions. The limits of so-called natural, native range of
bacterial pathogens is not entirely known. The commenter listed several
diseases as examples of harmful pathogens having been introduced by
fish from one ecosystem to another. One disease cited by the commenter
as an introduced pathogen was Bacterial Kidney Disease. This disease is
not now believed to have been an introduction caused by non-native fish
but may well have been circumpolar in range long before it was
identified. Also, another disease mentioned by the commenter,
Ichthyophthirius multifiliis, is believed to have been a world wide
pathogen before it too, was identified.
To assert that the vast majority of all pathogens are human
introductions to a virgin ecosystem is to view solely one frame of a
film of biological history while ignoring introductions occurring in
previous frames of the same film. The Service must consider the fact
that it has jurisdiction only with respect to U.S. fish resources. It
cannot constrain legal trade to protect the resources of other nations
from a presumptive belief that the export of farm-raised fish products
damages foreign ecosystem. Also, the receiving ecosystems are normally
fish farms, laboratories or even fish markets. This class of receiving
ecosystems are low risk in terms of potential pathogen spread and most
likely to be highly subject to government regulators abroad. The
implicit assumption that exported fish will be stocked in the wild is
rarely the case.
The five letters comprising the balance of comments received were
supportive of the Service's exempting live farm-raised fish and farm-
raised fish eggs from export requirements except for marking. One
representative of the aquaculture industry, while supportive,
complained that the Service's definition of aquaculture was outdated
because it did not encompass shellfish, aquatic plants and other farm-
raised aquatic organisms. Another commenter representing some 340
members of a tropical fish farm association stated that this rule would
enable tropical fish producers to gain a larger market share from
foreign competitors. Another commenter stated that the Service's action
in this rule making would have no adverse action on wild fishery
resources but may have positive benefits to exporters of farm-raised
fishery products in that State. The aquaculture development program
manager of one State said that ``export trade in these areas . . .
could be grown substantially is regulatory constraints which impact
profit margin are reduced or eliminated.'' The commissioner of
Agriculture for another State explained that the removal of live farm-
raised fish and farm-raised fish eggs from Service export requirements
except for marking was of immeasurable benefit to an industry in which
sales of the previous year totaled $32.8 million. The commenter stated
that a major hindrance to the expansion of tropical fish exports has
been lack of access to international airports with Service inspectors.
The Service originally intended that this rule cover only live farm-
raised fish and farm-raised fish eggs. Captive-raised amphibians
mentioned by a commenter have not been considered. The intent of these
regulatory changes is to reduce the regulatory burden and resulting
negative economic impacts imposed on a farm industry or any industry
that exports live farm-raised fish and farm-raised fish eggs, which are
not removed from wild fish resources. The Service also believes it has
the responsibility to provide the public with relief from regulations
which are burdensome and do not serve their intended purpose. In this
case, the Service has concluded that little if any benefit is accrued
to endangered, threatened or CITES species or native species by
continued treatment of exports of life farm-raised fish and farm-raised
fish eggs as a wild resource.
Required Determinations
This final rule was not subject to Office of Management and Budget
review under Executive Order 12866. This rule will not have a
significant effect on a significant number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This action is not
expected to have any significant takings implications, as per Executive
Order 12630. This rule does not contain any information collection
requirements which require approval by the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq). This
action does not contain any federalism impacts as described in
Executive Order 12612. The changes in the regulations in Part 14 are
regulatory and enforcement actions which are covered by a categorical
exclusion from National Environmental Policy Act procedures under
Section 516 of the Departmental Manual and an Environmental Action
Memorandum is on file at the U.S. Fish and Wildlife Service office in
Arlington, Virginia. A determination has been made pursuant to Section
7 of the Endangered Species Act that the revision of Part 14 will not
affect federally listed species.
Author
The primary author of this rule is Special Agent Marcia Cronan,
Division of Law Enforcement, U.S. Fish and Wildlife Service,
Washington, D.C.
List of Subjects in 50 CFR Part 14
Animal welfare, Exports, Fish, Imports, Labeling, Reporting and
recordkeeping requirements, Transportation, Wildlife.
For the reasons set out in the preamble, Title 50, Chapter I,
Subchapter B of the code of Federal Regulations, is amended as follows:
PART 14--IMPORTATION, EXPORTATION, AND TRANSPORTATION OF WILDLIFE
1. The authority citation for Part 14 continues to read as follows:
Authority: 16 U.S.C. 705, 712, 1382, 1538(d)-(f), 1540(f), 3371-
3378, 4223-4244, and 4901-4916; 18 U.S.C. 42; 31 U.S.C. 483(a).
2. Section 14.3 is added to read as follows:
Sec. 14.3 Information collection requirements.
The information collection requirements contained within this Part
14 have been approved by the Office of Management and Budget under 44
U.S.C. 3507 and assigned a Clearance Number 1018-0012. This information
is being collected to provide information about wildlife imports or
exports, including products and parts, and will be used to facilitate
enforcement of the Endangered Species Act of 1973 as amended (16 U.S.C.
1531 et seq.) and to carry out the provisions of the Convention on
International Trade in Endangered Species of Wild Fauna and Flora.
Public reporting burden for this form is estimated to vary from 10 to
15 minutes per response. Direct comments regarding the burden estimate
or any other aspect of this form to the Service Information Collection
Clearance Office, U.S. Department of the Interior, 1849 C Street, N.W.,
Washington, D.C. 20240, and the Interior Desk Officer, Office of
Management and Budget, Washington, D.C. 20503.
3. Section 14.23 is added to read as follows:
Sec. 14.23 Live farm-raised fish and farm-raised fish eggs.
Live farm-raised fish and farm-raised fish eggs meet the definition
of ``bred in captivity'' as stated in 50 CFR 17.3. Except for wildlife
requiring a permit pursuant to Parts 17 or 23 of this subchapter, live
farm-raised fish and farm-raised fish eggs may be exported from any
U.S. Customs port.
4. Section 14.64 is amended by adding paragraph (c) to read as
follows:
Sec. 14.64 Exceptions to export declaration requirements.
* * * * *
(c) Except for wildlife requiring a period pursuant to parts 17 or
23 of this subchapter, a Declaration for the Importation or Exportation
of Fish or Wildlife (Form 3-177) does not have to be filed for the
exportation of live farm-raised fish and farm-raised fish eggs as
defined in Sec. 14.23.
Sec. 14.92 [Amended]
5. Section 14.92(a)(2) is amended by removing the last word
``and''.
6. Section 14.92(a)(3) is amended by removing the period and adding
in its place the word ``and'' preceded by a semicolon.
7. Section 14.92(a)(4) is added to read as follows:
Sec. 14.92 Exceptions to license requirement.
(a) * * *
* * * * *
(4) live farm-raised fish and farm-raised fish eggs of species not
requiring a permit under Parts 17 or 23 of this subchapter B which are
being exported.
* * * * *
Dated: June 10, 1994.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 94-19672 Filed 8-12-94; 8:45 am]
BILLING CODE 4310-55-M