Mr. Robert Gabel
Chief, Division of Scientific Authority
U.S. Fish and Wildlife Service
4401 N. Fairfax Drive, Room 750
Arlington, Virginia 22203

July 29, 2004

The Natural Resources Defense Council (NRDC), SeaWeb, and Pew Institute for Ocean Science (PIOS), which collectively constitute the Caviar Emptor campaign, are writing to express serious concern regarding the recently proposed special rule under Section 4(d) of the Endangered Species Act of 1973, as amended (“ESA”), to exempt the international, foreign, and interstate commerce of certain beluga sturgeon (Huso huso) products from threatened species permits normally required under 50 CFR 17.32.  69 Fed. Reg. 38863 (June 29, 2004). 

First, we reiterate our view that beluga sturgeon clearly qualify as an endangered species under the ESA. (See, Natural Resources Defense Council, et al., “A Petition to List Beluga Sturgeon (Huso huso) as an Endangered Species” (Dec. 11, 2000) (“Petition”), and subsequent related correspondence.  Recent information and analyses further confirm that beluga sturgeon are on the brink of extinction, and meet all the criteria set forth in the Act for classification as endangered. We believe the Service erred in declaring the species threatened rather than endangered. 

Our concern over the “threatened” listing has deepened with the issuance of the proposed 4(d) rule.  This proposed rule clearly does not meet the requirements of Section 4(d) of the Act, which mandates that such a rule “provide for the conservation of such [threatened] species.” Our conclusion is based on the following considerations (with supporting notes):

A.  The proposed rule fails to impose meaningful, enforceable requirements on range states seeking to export beluga caviar into the United States.

The proposed rule sets out a series of requirements that range states must meet in order to continue exporting beluga caviar to the United States. These requirements lack meaningful standards, are virtually impossible for the Service to effectively monitor and enforce, and place excessive reliance on international action to promote recovery, which to date has proven largely ineffective.

For example, the proposed rule would require range states to submit basin-wide beluga sturgeon management plans for the Black Sea and Caspian Sea range countries (69 FR 38865).  There are no standards or requirements for what must be contained in the management plan for it to be deemed sufficient by the Service, leaving it entirely to the range states to decide what is acceptable. Moreover, international efforts to get the range states to come up with such a plan have so far proved fruitless (see below). We could find no explanation in the proposed rule indicating why the Service believes this approach would be any more effective.

Similarly, the proposed rule requires range states to submit national regulations that implement the basin-wide plan, assuming one is adopted, along with “information on hatchery and restocking protocols and monitoring results” (id.) that will be reviewed by the Service biennially. There are again no standards, such as those governing U.S. domestic fisheries management (Magnuson-Stevens Fishery Conservation and Management Act, Public Law 94-265) by which the Service proposes to evaluate these regulations or the information required.  Without such standards, it is impossible for the public to have any kind of assurance that the Services’ assessment of the adequacy of regulations and information is “contributing to the conservation of the species”, as required by the Act.

Of particular concern is the lack of any specificity with respect to the quality and type of information the Service will require regarding the current status of beluga sturgeon in the range states, and standards governing recovery plans.  As discussed below, the stock assessments that have been done by the range states to date have been significantly flawed. And there is nothing in the proposed rule that would require the Service to reject a range state recovery plan that relies on hypothetical actions, or designate a recovery date at some indeterminate point in the far future.  Without standards to govern the Service in evaluating status information, there is no way to determine whether the proposed rule will be effective in conserving the species.

This problem pervades virtually every aspect of the rule. The Service proposes to suspend the import of_beluga_caviar_if_range_states_fail_to__ldquo.css;address” poaching or smuggling, “address” the loss of beluga sturgeon habitat quality or quantity, or, most alarmingly, in the event of a decline in wild populations, ONLY if the decline “goes unaddressed by regional or national management programs” (Id., 38867).  There are no details about what the Service would consider “addressed.”   Range states could easily “address” any of these problems without doing anything effective to counter them. This is far too vague and lenient a standard to ensure the conservation of the species.

Lastly, meaningful implementation of the requirements set forth in the proposed rule will necessitate constant verification of the information supplied and the actions taken by the range states, significant scrutiny of the data collection and analysis methodologies used, and substantial oversight to ensure the effective implementation of laws and regulations. The proposed system, within which observation triggers decision making, will require that the Service make frequent independent observations through a sustained presence in the region to verify actualities. It is difficult to imagine that the Service has the capacity to undertake such a weighty burden of responsibility.

B. The proposed rule mimics ineffective international actions.

Much of the proposed rule follows an approach similar to that adopted by parties to the Convention on International Trade in Endangered Species (CITES).  In June 2001, the Standing Committee of the Convention on International Trade in Endangered Species (CITES) reached an agreement with sturgeon range states of the Caspian Sea (the “Paris Agreement” CITES SC45 Doc.12.2). This agreement temporarily suspended fishing for sturgeon in the Caspian Sea and established deadlines for addressing various management, scientific, and enforcement issues related to Caspian sturgeon fisheries. These deadlines have long passed, with very little progress achieved on any front. The most important of the Paris agreement obligations, the limitations of those obligations, and the failures to date in achieving them, are briefly described below.

By December 31, 2001, the range states were to have “conducted a comprehensive survey of sturgeon stocks in the Caspian Sea involving representatives of all States that conduct commercial fishing of sturgeon in the Caspian Sea;” and “requested Interpol to conduct an analysis of illegal trade in sturgeons.”  (Paris Agreement, Section 1(d)(ii) and (iii).

As discussed in previous comments, the surveys of sturgeon conducted in 2001 and 2002 can hardly be called comprehensive, did not include a comprehensive survey of the Caspian Sea, and most importantly, were flawed in design and analysis, an assessment confirmed by the Service’s independent reviewers.

With respect to Interpol, according to the Secretariat, “the data currently available on illegal harvesting, trade and enforcement are too limited for analysis by Interpol.” CITES COP 12 Doc 42.1 at 3. Thus, the problem has yet to be adequately described, let alone addressed.

By June 20, 2002, the range states were to have:

a. “Adopted a collaborative basin-level management system for sturgeon fisheries in the Caspian Sea as the basis for sustainable commercial exports of sturgeons”   (Paris Agreement, Section 1(e)(iii)).

This requirement has clearly not been achieved. Indeed, the range states have reportedly been unable to agree on a scientific basis for establishing and allocating sturgeon quotas, let alone a comprehensive management plan.

b. “Established a long-term survey programme as the basis for future management of sturgeon stocks in the Caspian Sea, incorporating up-to-date technology and techniques”  (Paris Agreement, Section 1(e)(i)).

In the words of the Secretariat, “catch quotas have traditionally been based on stock assessments in the marine environment, but stock assessments have seldom been satisfactory in terms of basin-wide coverage and sampling intensity…. In some cases, sampling trawls have produced such limited catches of sturgeons, probably because of the currently reduced densities of most sturgeon stocks, that little can be inferred about the age structure and recruitment of stocks, and statistical variation in most demographic and biological parameters remains unknown.” (COP 12 Doc 42.1 p.9).

Indeed, the Secretariat warns that questionable stock assessments may be part of the problem: “significant volumes of sturgeons are also caught as part of stock assessments, research and monitoring. Greater transparency in large-scale non-commercial or research-related fisheries is required to avoid concerns that such fisheries are merely a subterfuge for commercial fisheries and trade.” Id.

c.  “Significantly increased efforts to combat illegal harvesting and illegal trade, and to regulate domestic trade”  (Paris Agreement, Section 1(e)(iv)). 

The Secretariat reports that “much more vigorous enforcement is needed, in parts of the Eurasian region in particular, in order to combat illegal fishing and illegal trade.” (COP 12 Doc 42.1 p.9).  Thus, despite efforts, illegal fishing and trade remain a major problem.

The attached news reports reiterate this. The proceeds from illegal fishing have been compared to the illegal sale of weapons and narcotics, while 90% of the black caviar on the market is thought to come from poaching. In one article, Russian President Vladimir Putin himself indicates that “Nearly 80 percent of the Russian fish trade is illegal” with the trade in Russian caviar particularly corrupt.

d.  “Fully implemented all other recommendations of the [CITES] Animals Committee made in accordance with Resolution Conf. 8.9(Rev.)” (Paris Agreement, Section 1(e)(viii)).

The many ways in which the range states have failed to implement the recommendations made by the Animals Committee are documented by the Secretariat in COP 12 Doc 42.1.

In summary the range states have not met the requirements laid out in the Paris agreement. Even if those requirements had been met, moreover, they would be insufficient to resolve the intractable problems that face beluga sturgeon. These problems require long-term solutions. Unfortunately, beluga sturgeon do not have the luxury of time and cannot wait for the profound reforms necessary to render Caspian sturgeon fisheries sustainable. Immediate action to halt the trade in beluga caviar is necessary to help preserve the species while long-term solutions are developed and implemented.

C. The proposed rule further delays already long overdue action.

As demonstrated repeatedly throughout the history of this rulemaking, beluga sturgeon is a species on the brink of extinction. The source of the world’s most prized caviar, these remarkable fish have been decimated by overfishing and poaching to supply the caviar trade, loss of critical spawning habitat, and ineffective management.  International action to date has failed to halt beluga’s downward spiral, and the point is rapidly approaching where the species may no longer be recoverable.

On December 11, 2000, NRDC, WCS, and SeaWeb filed a petition with the Service to list beluga sturgeon as an endangered species pursuant to the ESA and its implementing regulations. See Natural Resources Defense Council, et al., “A Petition to List Beluga Sturgeon (Huso huso) as an Endangered Species” (Dec. 11, 2000) (“Petition”).  After the Service failed to respond to the Petition within either of the statutorily required 90-day or 12-month deadlines, NRDC sued the Service in April 2002.

In response to the lawsuit, the Service proposed to list beluga sturgeon as an endangered species on July 31, 2002, more than a year and a half after it received our petition. See 67 Fed. Reg. 49657 (July 31, 2002) (“Proposed Rule”).  The Service subsequently further delayed the rulemaking by extending the comment period on the proposed rule, and then adopted yet another delay until January 2004.  Now the Service proposes more delays.  If adopted, the proposed 4(d) rule would not be finalized until October. As proposed, the rule will allow range states 6 months to submit various pieces of information. The Service has an unlimited time period in which to review the information and ask questions, and the range states have another 60 days to respond. The Service then has another unlimited period of deliberation before they actually have to determine whether the response is adequate. In summary, urgent action is necessary, yet time and time again, the Service has delayed issuing proposals, rules and other actions.

D.  Conclusion.

The U.S. imports roughly 60% of all the beluga caviar exported from the range states.  As the number one importer of beluga caviar, the United States is playing a major role in the decline and pending extinction of beluga sturgeon.  The proposed rule will not materially improve the prospects of this seriously endangered species.

One part of the proposed rule that we agree with is making no special exception for aquaculture of beluga sturgeon in the U.S. We would like to see this remain in the final rule for several reasons.  First, U.S. aquaculture would increase, not diminish, pressure on wild populations by removing critical broodstock from the wild.  Second, the culture of non-indigenous sturgeons in the U.S. threatens native sturgeon species through the possibility of escapement.  Establishing aquaculutre in Florida could endanger the already threatened Gulf sturgeon, Acipenser oxyrinchus desotoi.  Escapement of sturgeon from captive facilities has been shown to be a reality most recently in France, where escapement of 27 tonnes of Siberian sturgeon (A. baerii) into the last watershed harboring the critically endangered European sturgeon, A. sturio threatens recovery of the native species (Rochard, 2003 attached).  Siberian sturgeon have also escaped from aquaculture facilities in South America, and are can now be found in the Uruguay River (Vigliano & Darrigran, attached).  Lastly, as indicated in the Proposed Special Rule that aquaculture outside of the range states could “… undermine the economic incentives for sustainable harvests of wild Huso huso in the range countries.” (69 FR 38865). We therefore strongly urge the Service to include no special exception for aquaculture in their final rule.

Section 4(a)(1) of the ESA sets forth the criteria for listing a species as endangered or threatened. 16 U.S.C. § 1533(a)(1).  As indicated in previous comments, beluga sturgeon meet all 5 of these criteria.  Further, Section 4 of the ESA empowers the Service to immediately list any species in the face of an “emergency posing a significant risk to the well-being” of the species.  16 U.S.C. § 1533(b)(7).  We believe that the continued harvest of beluga sturgeon since we filed our petition poses just such a risk, as evidenced by recent reports of a scarcity of large fish and of decreases in hatchery production because of insufficient numbers of mature fish. An immediate ban on trade in beluga would be the best course of action, be in the best interest of the fish, and would promote the fastest recovery of the species. Such an approach would be less burdensome on the Service, be more conducive to the conservation of the species in the wild, unlike the CITES approach, which to date has not been effective.

Regarding the inaction of CITES with respect to their judgment of compliance with the Paris Agreement by Azerbaijan, Kazakhstan, and the Russian Federation and Turkmenistan, we note that at the 50th meeting of the Standing Committee in Geneva, Switzerland, March 15-19, 2004 (SC50), the Paris Agreement issue was considered, and it was “…recommended that the Secretariat make available within three months information regarding its finding, with regard to remaining issues” (SC50 Sum. 6 (18/3/2004)). To our knowledge, no progress has been made, despite the fact that the three-month deadline expired in mid-June 2004. In addition, as in 2003, CITES export quotas still have not been established, even though the spring fishery is over.

While new information is constantly emerging, it does not affect the basic, exceedingly grim picture for beluga sturgeon.  Further delay risks the future of this remarkable fish. We urge that the Service immediately issue an emergency regulation listing beluga sturgeon as an endangered species. We believe that there should be a shift in the burden of proof, with a trade ban implemented immediately and until the range states have demonstrated that an adequate conservation program is in place, illegal fishing has been significantly curbed, and recovery of beluga is apparent and verified by independent observers.

Lisa Speer
Natural Resources Defense Council

Dr. Ellen Pikitch
Pew Institute for Ocean Science

Vikki Spruill

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