[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]


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

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.

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

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