Live Farm-Raised Fish; Exemption From Fish and Wildlife Export Requirements Except for Marking Requirements

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