[Federal Register Volume 64, Number 58 (Friday, March 26, 1999)]
[Proposed Rules]
[Pages 14676-14685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7387]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF56


Endangered and Threatened Wildlife and Plants; Proposed Rule To 
List the Alabama Sturgeon as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), propose to list 
the Alabama sturgeon (Scaphirhynchus suttkusi) as endangered under the 
authority of the Endangered Species Act of 1973, as amended (Act). The 
Alabama sturgeon's historic range once included about 1,600 kilometers 
(km) (1,000 miles (mi)) of the Mobile River system

[[Page 14677]]

in Alabama (Black Warrior, Tombigbee, Alabama, Coosa, Tallapoosa, 
Mobile, Tensaw, and Cahaba rivers) and Mississippi (Tombigbee River). 
Since 1985, all confirmed captures have been from a short, free-flowing 
reach of the Alabama River below Miller's Ferry and Claiborne locks and 
dams in Clarke, Monroe, and Wilcox counties, Alabama. The historic 
decline of the Alabama sturgeon is attributed to over-fishing, loss and 
fragmentation of habitat as a result of navigation-related development, 
and water quality degradation. Current threats primarily result from 
its small population numbers and its inability to offset mortality 
rates with reproduction and recruitment. This proposed rule, if made 
final, would extend the Act's protection to the Alabama sturgeon.

DATES: Send your comments to reach us on or before May 26, 1999. We 
will not consider comments received after the above date in making our 
decision on the proposed rule. We must receive requests for public 
hearings by May 10, 1999.

ADDRESSES: Send comments and materials concerning this proposal to the 
Field Supervisor, U.S. Fish and Wildlife Service, 6578 Dogwood View 
Parkway, Jackson, Mississippi 39213. Comments and materials received 
will be available for public inspection, by appointment, during normal 
business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Paul Hartfield at the above address 
(telephone 601/965-4900, extension 25; facsimile 601/965-4340).

SUPPLEMENTARY INFORMATION:

Background

    The Alabama sturgeon (Scaphirhynchus suttkusi) is a small, 
freshwater sturgeon that was historically found only in the Mobile 
River Basin of Alabama and Mississippi. This sturgeon is an elongate, 
slender fish growing to about 80 centimeters (cm) (30 inches (in)) in 
length. A mature fish weighs 1 to 2 kilograms (kg) (2 to 3 pounds 
(lb)). The head is broad and flattened shovel-like at the snout. The 
mouth is tubular and protrusive. There are four barbels (whisker-like 
appendages used to find prey) on the bottom of the snout, in front of 
the mouth. Bony plates cover the head, back, and sides. The body 
narrows abruptly to the rear, forming a narrow stalk between the body 
and tail. The upper lobe of the tail fin is elongated and ends in a 
long filament. Characters used to distinguish the Alabama sturgeon from 
the closely-related shovelnose sturgeon (Scaphirhynchus platorynchus) 
include larger eyes, orange color, number of dorsal plates, dorsal fin 
ray numbers, and spines on snout.
    The earliest specimens of Alabama sturgeon in museum collections 
date from about 1880. The first mention of the fish in the scientific 
literature, however, was not until 1955, when a report of the 
collection of a single specimen from the Tombigbee River was published 
by Chermock. In 1976, Ramsey referred to the Alabama sturgeon as the 
``Alabama shovelnose sturgeon,'' noting that it probably was distinct 
from the shovelnose sturgeon which is found in the Mississippi River 
Basin, and was also historically known from the Rio Grande. In 1991, 
Williams and Clemmer formally described the species based on a 
comparison of relative sizes and numbers of morphological structures of 
Alabama and shovelnose sturgeons.
    The methods used by Williams and Clemmer (1991) to justify species 
designation for the Alabama sturgeon have been criticized. In 
unpublished manuscripts, (e.g., Blanchard and Bartolucci 1994, Howell 
et al. 1995), and in one published paper (Mayden and Kuhajda 1996), 
several authors identified a variety of statistical and methodological 
errors and limitations [e.g., small sample size, clinal variation, 
allometric growth (growth of parts of an organism at different rates 
and at different times), inappropriate statistical tests, and others] 
that appeared in the analyses used in the original description. Howell 
et al. (1995) in an unpublished manuscript, reexamined the data set 
used by Williams and Clemmer (1991), corrected certain errors, and 
recommended that S. suttkusi be synonymized with S. platorynchus. 
Mayden and Kuhajda (1996), in a peer-reviewed paper published in the 
journal Copeia, reevaluated the morphological distinctiveness of the 
Alabama sturgeon using improved statistical tests and new data derived 
from examination of additional shovelnose sturgeon specimens from a 
larger geographic area. Mayden and Kuhajda (1996) identified eight new 
diagnostic characters, found that there was little evidence of 
geographic clinal variation in these diagnostic features, and concluded 
that the Alabama sturgeon was a distinct and valid species. Bartolucci 
et al. (1998) showed the Alabama and shovelnose sturgeon to be 
indistinguishable using principal component analyses, as published in a 
peer-reviewed statistical journal.
    Genetic analyses of sturgeon DNA used in attempts to clarify 
taxonomic findings have met with limited success. In an unpublished 
report, Schill and Walker (1994) used tissue samples from the Alabama 
sturgeon collected in 1993 to compare the three nominal Scaphirhynchus 
species. Based on estimates of sequence divergence at the mitochondrial 
cytochrome b locus, they concluded that the Alabama, shovelnose, and 
pallid sturgeons were indistinguishable. Other studies have also found 
that the cytochrome b locus was not useful for discriminating among 
some congeneric fish species which were otherwise distinguished by 
accepted morphological, behavioral, and other characteristics (Campton 
et al. 1995).
    In two unpublished reports for us and the U.S. Army Corps of 
Engineers (Corps) by Genetic Analyses Inc. (1994, 1995), nuclear DNA 
fragments were compared among the three Scaphirhynchus species. The 
three Alabama sturgeon specimens examined proved genetically divergent 
from pallid and shovelnose, while there were no observed differences of 
DNA fragments between the pallid and shovelnose sturgeons. However, the 
1995 study also noted that two of the Alabama sturgeon differed 
substantially from the third, and recommended additional studies to 
examine genetic diversity within the Alabama sturgeon population.
    A comparative study of the mitochondrial DNA d-loop of 
Scaphirhynchus species has also been completed (Campton et al. 1995). 
The d-loop is considered to be a rapidly evolving part of the genome. 
Campton et al. (1995) found that haplotype (genetic markers) 
frequencies of the d-loop from the three Scaphirhynchus species were 
significantly different, with the Alabama sturgeon having a unique 
haplotype. However, the relative genetic differences among the three 
species was small, suggesting that the rate of genetic change in the 
genus is relatively slow and/or they have only recently diverged. The 
genetic similarity between the pallid and shovelnose sturgeon has been 
suggested to be due to interbreeding that has recently occurred as a 
result of niche overlap resulting from widespread habitat losses 
(Carlson et al. 1985, Keenlyne et al. 1994).
    We acknowledge that there is some disagreement concerning the 
Alabama sturgeon's taxonomic status. However, the description of the 
Alabama sturgeon (S. suttkusi) complies with the rules of the 
International Code of Zoological Nomenclature (Sec. 17.11(b)). 
Furthermore, our analysis of the best available evidence supports its 
consideration as a species in this proposed rule.
    Very little is known of the life history, habitat, or other 
ecological requirements

[[Page 14678]]

of the Alabama sturgeon. Observations by Burke and Ramsey (1985) 
indicate the species prefers relatively stable gravel and sand 
substrates in flowing river channels. Verified captures of Alabama 
sturgeon have primarily occurred in large channels of big rivers; 
however, at least two historic records were from oxbow lakes (Williams 
and Clemmer 1991). Examination of stomach contents of museum and 
captured specimens show that these sturgeon are opportunistic feeders, 
preying primarily on aquatic insect larvae (Mayden and Kuhajda 1996). 
Mayden and Kuhajda (1996) deduced other aspects of Alabama sturgeon 
life history by a review of spawning habits of its better known 
relative, the shovelnose sturgeon. Life history of the shovelnose 
sturgeon has also been recently summarized by Keenlyne (1997). These 
data indicate that Alabama sturgeon are likely to migrate upstream 
during late winter and spring to spawn. Downstream migrations may occur 
to search for feeding and summer refugia areas. Eggs are probably 
deposited on hard bottom substrates such as bedrock, armored gravel, or 
channel training works in deep water habitats, and possibly in 
tributaries to major rivers. The eggs are adhesive and require current 
for proper development. Sexual maturity is believed to occur at 5 to 7 
years of age. Spawning frequency is influenced by food supply and fish 
condition, and may occur every 1 to 3 years. Alabama sturgeon may live 
up to 15 years of age.
    The Alabama sturgeon's historic range consisted of about 1,600 km 
(1,000 mi) of river habitat in the Mobile River Basin in Alabama and 
Mississippi. There are records of sturgeon captures from the Black 
Warrior, Tombigbee, Alabama, Coosa, Tallapoosa, Mobile, Tensaw, and 
Cahaba rivers (Burke and Ramsey 1985, 1995). The Alabama sturgeon was 
once common in Alabama, and perhaps also in Mississippi. The total 1898 
commercial catch of ``shovel-nose'' sturgeons (i.e., Alabama sturgeon) 
from Alabama was reported as 19,000 kg (42,900 lb) in a statistical 
report to Congress (U.S. Commission of Fish and Fisheries 1898). Of 
this total, 18,000 kg (39,500 lb) came from the Alabama River and 1,000 
kg (2,300 lb) from the Black Warrior River. Given that an average 
Alabama sturgeon weighs about 1 kg (2 lb), the 1898 commercial catch 
consisted of approximately 20,000 fish. These records indicate a 
substantial historic population of Alabama sturgeon.
    Between the 1898 report and 1970, little information was published 
regarding the Alabama sturgeon. An anonymous article published in the 
Alabama Game and Fish News in 1930 stated that the sturgeon was not 
uncommon; however, by the 1970's, it had become rare. In 1976, Ramsey 
considered the sturgeon as endangered and documented only six specimens 
from museums. Clemmer (1983) was able to locate 23 Alabama sturgeon 
specimens in museum collections, with the most recent collection dated 
1977. Clemmer also found that commercial fishermen in the Alabama and 
Tombigbee rivers were familiar with the sturgeon, calling it 
hackleback, buglemouth trout, or devilfish.
    During the mid-1980's Burke and Ramsey (1985) conducted a status 
survey to determine the distribution and abundance of the Alabama 
sturgeon. Interviews were conducted with commercial fishermen on the 
Alabama and Cahaba rivers, some of whom reported catch of Alabama 
sturgeon as an annual event. However, during their collection efforts 
in areas identified by fishermen, Burke and Ramsey were able to collect 
only five Alabama sturgeons, including two males, two gravid females, 
and one juvenile about 2 years old. Burke and Ramsey (1985) concluded 
that the Alabama sturgeon had been extirpated from 57 percent (950 km 
or 600 mi) of its range and that only 15 percent (250 km or 150 mi) of 
its former habitat had the potential to support a good population. An 
additional sturgeon was taken in 1985 in the Tensaw River and 
photographed, but the specimen was lost (Mettee, Geologic Survey of 
Alabama, pers. comm. 1997).
    In 1990 and 1992, biologists from the Alabama Department of 
Conservation and Natural Resources (ADCNR), with the assistance of the 
Corps, conducted searches for Alabama sturgeon using a variety of 
sampling techniques, without success (Tucker and Johnson 1991, 1992). 
However, some commercial and sports fishermen continued to report 
recent catches of small sturgeon in Millers Ferry and Claiborne 
reservoirs and in the lower Alabama River (Tucker and Johnson 1991, 
1992).
    In 1993, our biologists and the ADCNR conducted another extensive 
survey for Alabama sturgeon in the lower Alabama River. On December 2, 
1993, a mature male was captured alive in a gill net downstream of 
Claiborne Lock and Dam, at river mile 58.8 in Monroe County, Alabama 
(Parauka, U.S. Fish and Wildlife Service, pers. comm. 1995). This 
specimen represented the first confirmed record of Alabama sturgeon in 
about 9 years. This fish was moved to a hatchery where it later died.
    On April 18, 1995, an Alabama sturgeon captured by fishermen below 
Claiborne Lock and Dam was turned over to ADCNR and Service biologists. 
This fish was carefully examined, radio-tagged, and returned to the 
river where it was tracked for 4 days before the transmitter switched 
off (Parauka, pers. comm. 1995). In June 1995, it was determined that 
the tag had dislodged. On May 19, 1995, our biologists took another 
Alabama sturgeon in Monroe County, Alabama, near the 1993 collection 
site. Unfortunately, shortly after the fish was tagged and released, it 
was found entangled and dead in a vandalized gill net lying on the 
river bottom (Parauka, pers. comm. 1995). On April 26, 1996, a 
commercial fisherman caught, photographed, and released an Alabama 
sturgeon (estimated at about 51 to 58 cm (20 to 23 in) total length and 
1 kg (2.5 lb) weight in the Alabama River, 5 km (3 mi) south of Millers 
Ferry Lock and Dam (Reeves, ADCNR, pers. comm. 1996).
    During the spring of 1996, members of the Mobile River Basin 
Recovery Coalition began discussions to develop and implement a 
conservation plan for the Alabama sturgeon that could receive wide 
support. A draft plan was subsequently endorsed by the ADCNR, Service, 
Mobile District Corps of Engineers, and representatives of the Alabama-
Tombigbee Rivers Coalition. The draft plan identified the need to 
develop life history information through capture, tagging, and 
telemetry; capture of broodstock for potential population augmentation; 
construction of hatchery facilities for sturgeon propagation; and 
habitat identification and quantification in the lower Alabama River.
    In March 1997, the ADCNR implemented the collection component of 
the conservation plan. The Geological Survey of Alabama, Corps, 
Waterways Experiment Station, Alabama Power Company, and the Service 
also participated in the effort. Up to four crews were on the river at 
any one time using gill nets and trot lines. Most of the effort focused 
on the lower Alabama River where recent previous captures had been 
made. Personnel from the ADCNR caught one small sturgeon (1 kg (2 lb) 
weight) on April 9, 1997, immediately below Claiborne Lock and Dam.
    The ADCNR continued fishing for sturgeon through the fall and 
winter and collected another sturgeon below Miller's Ferry Lock and Dam 
on December 10, 1997. This fish was also transported to the Marion Fish 
Hatchery, where both fish are being held for potential use as 
broodstock. In January 1998, the two fish were

[[Page 14679]]

biopsied to determine sex. The April specimen was found to be a mature 
female with immature eggs, whereas the December fish was a mature male.
    Alabama broodstock collection efforts in 1998 resulted in the 
capture of a single fish on November 12, 1998. A biopsy performed in 
December found the specimen to be a reproductively inactive male. The 
two 1997 fish were also biopsied at this time, and were determined to 
be candidates for propagation in the spring.
    The chronology of commercial harvest, scientific collections, and 
incidental catches by commercial and sport fishermen demonstrate a 
significant decline in both the population size and range of the 
Alabama sturgeon in the past 100 years. Historically the fish occurred 
in commercial abundance and was found in all major coastal plain 
tributaries of the Mobile River system. The Alabama sturgeon has 
apparently disappeared from the upper Tombigbee, lower Black Warrior, 
lower Tallapoosa, and upper Cahaba, where it was last reported in the 
1960's; the lower Coosa, last reported around 1970; the lower 
Tombigbee, last reported around 1975; and lower Cahaba, last reported 
in 1985 (Clemmer 1983; Burke and Ramsey 1985, 1995; Williams and 
Clemmer 1991; Mayden and Kuhajda 1996). The fish is known from a single 
1985 record in the Mobile-Tensaw Delta; however, no incidental catches 
by commercial or recreational fishermen have been reported since that 
time. Recent collection efforts indicate that very low numbers of 
Alabama sturgeon continue to survive in portions of the 216 km (130 mi) 
length of the Alabama River channel below Millers Ferry Lock and Dam.
    The historic population decline of the Alabama sturgeon was 
probably initiated by unrestricted harvesting near the turn of the 
century. Although there are no reports of commercial harvests of 
Alabama sturgeon after the 1898 report, it is reasonable to assume that 
sturgeon continued to be affected by the commercial fishery. Keenlyne 
(1997) noted that in the early years of this century, shovelnose 
sturgeon were considered a nuisance to commercial fishermen and were 
destroyed when caught. Interviews with commercial and recreational 
fishermen along the Alabama River indicate that Alabama sturgeon 
continued to be taken into the 1980's (Burke and Ramsey 1985). Studies 
of other sturgeon species suggest that newly exploited sturgeon 
fisheries typically show an initial high yield, followed by rapid 
declines. There may be little or no subsequent recovery with continued 
exploitation and habitat loss, even after nearly a century (National 
Paddlefish and Sturgeon Steering Committee 1993, Birstein 1993).
    Although unrestricted commercial harvesting of the Alabama sturgeon 
may have significantly reduced its numbers and initiated a population 
decline, the present curtailment of the Alabama sturgeon's range is the 
result of 100 years of cumulative impacts to the rivers of the Mobile 
River Basin (Basin) as they were developed for navigation. Navigation 
development of the Basin affected the sturgeon in major ways. This 
development significantly changed and modified extensive portions of 
river channel habitats; blocked long-distant movements, including 
migrations; and fragmented and isolated sturgeon populations.
    The Basin's major rivers are now controlled by more than 30 locks 
and/or dams, forming a series of lakes that are interspersed with 
short, free-flowing reaches. Within the sturgeon's historic range, 
there are three dams on the Alabama River (built between 1968 and 
1971); the Black Warrior has two (completed by 1959); and the Tombigbee 
six (built between 1954 and 1979). These 11 dams affect and fragment 
970 km (583 mi) of river channel habitat. Riverine (flowing water) 
habitats are required by the Alabama sturgeon to successfully complete 
its life cycle. Alabama sturgeon habitat requirements are not met in 
impoundments, where weak flows result in accumulations of silt making 
bottom habitats unsuitable for spawning and, perhaps, for the bottom-
dwelling invertebrates on which the sturgeon feed.
    Prior to widespread construction of locks and dams throughout the 
Basin, Alabama sturgeon could move freely between feeding areas, and 
from feeding areas to sites that favored spawning and development of 
eggs and larvae. Additionally the sturgeon may have sought thermal 
refuges during summer months, when high water temperatures became 
stressful. Such movements might have been extensive, since other 
Scaphirhynchus species of sturgeons are known to make long distance 
movements exceeding 250 km (150 mi) (Moos 1978, Bramblett 1996). Locks 
and dams, however, fragmented the sturgeons' range, forming isolated 
metapopulations between the dams where all the species' habitat needs 
were not necessarily met. With avenues of movement and migration 
restricted, these metapopulations also became more vulnerable to local 
declines in water and habitat quality caused by riverine and land 
management practices and/or polluting discharges.
    Most of the major rivers within the historic range of the Alabama 
sturgeon have also been dredged and/or channelized to make them 
navigable. For example, the 740-km (460-mi) long Warrior-Tombigbee 
Waterway channel was originally dredged to 45 meters (m) by 2 m (150 
feet (ft) by 6 ft) and later to 61 m by 2 m (200 ft by 9 ft). The lower 
Alabama and Tombigbee rivers are routinely dredged in areas of natural 
deposition to maintain navigation depths. Dredged and channelized river 
reaches, in comparison to natural river reaches, have reduced habitat 
diversity (e.g., loss of shoals, removal of snags, removal of bendways, 
reduction in flow heterogeneity, etc.), which results in decreased 
aquatic diversity and productivity (Hubbard et al. 1988 and references 
therein). The deepening and destruction of shoals and shallow runs or 
other historic feeding and spawning sites as a result of navigation 
development likely contributed to local and overall historic declines 
in range and abundance of the Alabama sturgeon.
    Dams constructed for navigation and power production also affected 
the quantity and timing of water moving through the Basin. Water depths 
for navigation are controlled through discharges from upstream dams, 
and flows have also been changed as a result of hydroelectric 
production by upstream dams (Buckley 1995; Freeman and Irwin, U.S. 
Geological Survey, pers. comm. 1997).
    The construction and operation of dams and development of 
navigation channels were significant factors in curtailment of the 
historic range of the Alabama sturgeon and in defining its current 
distribution. While these structures and activities are likely to 
continue to influence the ecology of this species and others, the 
present effects of the operation of existing structures, flow 
regulation, and navigation maintenance activities on the sturgeon are 
poorly understood. This is due in large part to lack of specific 
information on the behavior and ecology of the Alabama sturgeon.
    In summary, the Alabama sturgeon has undergone marked declines in 
population size and range during the past century. Over-fishing and 
navigation development were significant factors in the sturgeon's 
historic decline. The Alabama sturgeon currently inhabits only about 15 
percent of its historic range, and the species is known to survive only 
in the Alabama River channel below Millers Ferry Lock and Dam.

[[Page 14680]]

Previous Federal Actions

    The Alabama sturgeon was included in Federal Register notices of 
review for candidate animals in 1982, 1985, 1989, and 1991. In the 1982 
and 1985 notices (47 FR 58454 and 50 FR 37958), this fish was included 
as a category 2 species (a species for which we had data indicating 
that listing was possibly appropriate, but for which we lacked 
substantial data on biological vulnerability and threats to support a 
proposed rule). We discontinued designation of Category 2 species in 
the February 28, 1996, notice of review (61 FR 7956). In the 1989 and 
1991 notices (54 FR 554 and 56 FR 58816), the Alabama sturgeon was 
listed as category 1 candidate species (a species for which we have on 
file sufficient information on biological vulnerability and threats to 
support issuance of a proposed rule).
    On June 15, 1993, we published a proposed rule to list the Alabama 
sturgeon as endangered with critical habitat (58 FR 33148). On July 27, 
1993, we published a notice scheduling a public hearing on the proposed 
rule (58 FR 40109). We published a notice on August 24, 1993 (58 FR 
44643), canceling and rescheduling the hearing. On September 13, 1993 
(58 FR 47851), we published a notice re-scheduling the public hearing 
for October 4, 1993, and extending the comment period to October 13, 
1993. The October 4 public hearing was held on the campus of Mobile 
College, Mobile, Alabama. On October 25, 1993 (58 FR 55036), we 
published a notice announcing a second public hearing date, reopening 
the comment period, and stating the availability of a panel report. 
This second public hearing was canceled in response to a preliminary 
injunction issued on November 9, 1993.
    On January 4, 1994 (59 FR 288), we published a notice rescheduling 
the second public hearing and extending the comment period. However, 
this hearing was subsequently rescheduled in a January 7, 1994, notice 
(59 FR 997). We held the second public hearing on January 31, 1994, at 
the Montgomery Civic Center, Montgomery, Alabama.
    We published a 6-month extension of the deadline and reopening of 
the comment period for the proposed rule to list the Alabama sturgeon 
with critical habitat on June 21, 1994 (59 FR 31970). On September 15, 
1994 (59 FR 47294), we published another notice that further extended 
the comment period and sought additional comments on only the 
scientific point of whether the Alabama sturgeon still existed. We 
withdrew the proposed rule on December 15, 1994, (59 FR 64794) on the 
basis of insufficient information that the Alabama sturgeon continued 
to exist. On September 19, 1997, after capture of several individuals 
confirming that the species was extant, we included the Alabama 
sturgeon in the candidate species notice of review (62 FR 49403). A 
candidate species is defined as a species for which we have on file 
sufficient information on biological vulnerability and threats to 
support issuance of a proposed rule.
    We published Listing Priority Guidance for Fiscal Years 1998 and 
1999 on May 8, 1998 (63 FR 25502). That guidance clarifies the order in 
which we will process rulemakings, giving highest priority (Tier 1) to 
processing emergency rules to add species to the Lists of Endangered 
and Threatened Wildlife and Plants (Lists); second priority (Tier 2) to 
processing final determinations on proposals to add species to the 
Lists, processing new proposals to add species to the Lists, processing 
administrative findings on petitions (to add species to the Lists, 
delist species, or reclassify listed species), and processing a limited 
number of proposed or final rules to delist or reclassify species; and 
third priority (Tier 3) to processing proposed or final rules 
designating critical habitat. Processing of this proposed rule is a 
Tier 2 action.

Summary of Factors Affecting the Species

    The procedures for adding species to the Federal lists are found in 
section 4 of the Act and the accompanying regulations (50 CFR part 
424). A species may be determined to be an endangered or threatened 
species due to one or more of the five factors described in section 
4(a)(1). These factors and their application to the Alabama sturgeon 
(Scaphirhynchus suttkusi) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. The Alabama sturgeon has 
apparently disappeared from 85 percent of its historic range. Its 
decline has been associated with construction of dams, flow regulation, 
navigation channel development, other forms of channel modification, 
and pollution. Dams in the Alabama River have reduced the amount of 
riverine habitat, impeded migration of Alabama sturgeon for feeding and 
spawning needs, and changed the river's flow patterns. The species is 
now restricted to a 216 km (130 mi) reach of the Alabama River below 
Millers Ferry Lock and Dam. It is unknown if the quantity of fluvial 
(stream) habitat currently available to the species in this river reach 
is adequate to meet all of its ecological needs.
    Changes in natural river flow regimes by operation of hydroelectric 
dams are known to be detrimental to other sturgeon species (e.g., 
Khoroshko 1972, Zakharyan 1972, Veshchev 1982, Veshchev and Novikova 
1983, Auer 1996). Flow quantity is believed to be adequate to sustain 
the sturgeon in the lower Alabama River (Biggins 1994). The Alabama 
Power Company currently releases 57 cubic meters per second (cms) (2000 
cubic feet per second (cfs)) seasonal minimum flow from Jordan Dam into 
the lower Coosa River, and 34 cms (1200 cfs) minimum flow from Thurlow 
Dam into the lower Tallapoosa River. These two releases provide a 
combined 91 cms (3200 cfs) minimum flow to the upper Alabama River for 
passage through the three Alabama River locks and dams. Alabama River 
flows are further augmented by generating flows from Jordan, Thurlow, 
and Bouldin dams, as well as other Alabama River tributary flows. The 
average daily flows measured over the last decade downstream of 
Claiborne Lock and Dam have ranged from over 100 cms to nearly 7,000 
cms (4,000 to 240,000 cfs). While there is no evidence to suggest that 
the Alabama sturgeon is limited by water quantity below Robert F. Henry 
and Millers Ferry locks and dams, these dams house hydropower 
facilities and neither is required to maintain a minimum flow. Current 
low flow releases from these two facilities can be as little as 3 hours 
of generation timed according to peaking needs, plus lockage releases. 
The effect of such daily flow fluctuations below Millers Ferry Lock and 
Dam on Alabama sturgeon reproductive, larval, or juvenile habitat 
requirements may be negative; however, the importance of the area 
between Robert F. Henry and Claiborne lock and dams for sturgeon 
reproduction is currently unknown.
    The most visible continuing navigation impact within presently 
occupied Alabama sturgeon habitat is maintenance dredging of navigation 
channels. At this time, there is no evidence that it currently 
constitutes a limiting factor to the sturgeon (Biggins 1994). The Corps 
has constructed 67 channel training works (jetties) at 16 locations in 
the lower Alabama River, eliminating about 60 percent of dredging 
requirements at those locations. In the Mississippi River drainage, 
such channel training works are believed to be used as spawning areas 
by other sturgeon species (Mayden and Kuhajda 1996).

[[Page 14681]]

    Maintenance dredging continues to be necessary in the Alabama River 
to remove seasonally accumulated material from deposition areas within 
the navigation channel. Dredged materials are usually placed on natural 
deposition features adjacent to the navigation channel, such as point 
bars or lateral bars. Due to the natural dynamics of river channels and 
annual sediment movement, maintenance areas have remained fairly 
constant over time, with the same areas repeatedly dredged or used for 
disposal. Recent investigations by us, the Corps, and ADCNR indicate 
that the distribution of stable benthic (bottom) habitats in the 
riverine portions of the Alabama River has been, and continues to be, 
strongly influenced by historical dredge and disposal practices. 
Changes in disposal practices could disrupt the existing equilibrium. 
For example, river channels are strongly influenced by the amount of 
sediment moving through them. Increases in sediment budget can cause 
aggradation (filling) of the channel, while decreases in sediment can 
cause degradation (erosion). With the upstream dams forming barriers to 
the movement of sediment through the Alabama River, additional 
reduction of sediment availability (e.g., through upland disposal) 
could increase river bed and bank erosion, including areas that are now 
important, stable habitats. In consideration of this, significant 
changes in current disposal methods in the Alabama River could 
adversely affect the Alabama sturgeon.
    Recent investigations by us and ADCNR biologists have documented 
the presence of high quality, stable river bottom habitats interspersed 
within and between dredge and disposal sites in the lower Alabama River 
(Hartfield and Garner 1998). These included stable sand and gravel 
river bottom supporting freshwater mussel beds, and bedrock walls and 
bottom. Mussel beds are excellent indicators of riverine habitat 
stability because freshwater mussels may live in excess of 30 years and 
mussel beds require many decades to develop (Neves 1993). Clean bedrock 
has been identified as potential Alabama sturgeon spawning habitat 
(Mayden and Kuhajda 1996). The significance of such areas of stability 
are suggested by the location of recent and historic Alabama sturgeon 
capture sites below Millers Ferry and Claiborne locks and dams. Dive 
surveys at 19 capture sites dating back to 1950 found 17 in the 
vicinity of dense mussel beds (15 sites) and/or clean bedrock riverine 
habitat (11 sites) (Hartfield and Garner 1998). Depths at these areas 
(5 to 15 m (15 to 45 ft)) are well below the minimum navigation 
maintenance depth of 3 m (9 ft).
    Sand and gravel mining has had historic impacts on riverine 
habitats in the lower Tombigbee and Alabama river channels. Instream 
dredging for sand and gravel can result in localized biological and 
geomorphic changes similar to those caused by channelization and 
navigation channel development. For example, mining of rivers has been 
shown to reduce fish and invertebrate biomass and diversity, and can 
induce geomorphic changes in the river channel both above and below 
mined areas (Simons et al. 1982, Brown and Lyttle 1992, Kanehl and 
Lyons 1992, Hartfield 1993, Patrick and Dueitt 1996). Sand and gravel 
dredging of the Tombigbee and Alabama river channels within the 
historic and current range of the Alabama sturgeon has occurred 
periodically since the 1930's (Simons et al. 1982). We are not aware of 
any currently active sand and gravel dredging operations in the Alabama 
River; however, future mining of gravel from stable river reaches used 
by the Alabama sturgeon would be detrimental to the species.
    Pollution may adversely impact sturgeon (Ruelle and Keenlyne 1993), 
and it was likely a factor in the decline of the Alabama sturgeon, 
especially prior to implementation of State and Federal water quality 
regulations. Presently, the major sources of water pollution in Alabama 
are agriculture, municipal point sources, resource extraction, and 
contaminated sediments, in order of decreasing importance based on 
numbers of miles impaired (Alabama Department of Environmental 
Management 1994). Water quality in the lower Alabama River is generally 
good; however, two localized river segments above Claiborne Lock and 
Dam have been reported as occasionally impaired due to excess nutrients 
and organic enrichment (Alabama Department of Environmental Management 
1994). Sources of impairment were broadly identified as the combined 
effects of industrial and municipal discharges, and runoff from 
agriculture and silviculture. These river segments are also affected by 
hydropower discharges from Millers Ferry Lock and Dam.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. As discussed in the ``Background'' section of 
this proposed rule, the Alabama sturgeon was commercially harvested 
around the turn of the century. Alabama State law (sect. 220-2--.26-4) 
now protects the Alabama sturgeon and other sturgeons requiring that 
``* * * any person who shall catch a sturgeon shall immediately return 
it to the waters from whence it came with the least possible harm.'' As 
a result, sturgeon are not currently pursued by commercial or 
recreational fishermen. Nonetheless, Alabama sturgeon are occasionally 
caught by fishermen in nets or trot lines set for other species. For 
example, one of the Alabama sturgeons caught in 1995 was hooked by a 
fisherman on a trot line, and the Alabama sturgeon caught in 1996 was 
trapped in a hoop net; both of these fish were released. Doubtless 
there have been additional, undocumented incidental captures by 
commercial and sport fishermen; however, the surveys and collection 
efforts of the past decade have shown such captures to be rare.
    C. Disease or predation. There are no known threats from disease or 
natural predators. To the extent that disease or predation occurs, it 
becomes a more important consideration as the total population 
decreases in number.
    D. The inadequacy of existing regulatory mechanisms. As we 
discussed in factor B, Alabama State law (sect. 220-2-.26-4) protects 
the Alabama sturgeon and other sturgeons requiring that ``* * * any 
person who shall catch a sturgeon shall immediately return it to the 
waters from whence it came with the least possible harm.'' As a result, 
sturgeon are not currently pursued by commercial or recreational 
fishermen. There is currently no requirement within the scope of other 
environmental laws or Alabama State law to specifically consider the 
Alabama sturgeon or ensure that a project will not jeopardize its 
continued existence.
    E. Other natural or manmade factors affecting its continued 
existence. The primary threat to the immediate survival of the Alabama 
sturgeon is its apparent inability to offset mortality rates with 
current reproduction rates. As noted in the ``Background'' section, 
incidents of capture of Alabama sturgeon have been steadily diminishing 
for the past two decades, indicating declining population numbers over 
this time. Recent studies suggest that below some minimum population 
size, termed ``minimum viable population'' (MVP), a species is unable 
to offset mortality rates with natural reproduction and recruitment 
(Soule 1987). In such cases, the species becomes more vulnerable to 
extinction from natural or human-induced random events (e.g., droughts, 
floods, competition, variations in prey abundance, toxic spills, etc.), 
which further reduce recruitment or increase mortality. Estimates of 
the MVP in vertebrates range from hundreds to thousands of reproducing 
individuals

[[Page 14682]]

(Belovsky 1987, Shaffer 1987, Lande and Barrowclough 1987).
    Sturgeons may be especially sensitive to MVP effects (likely to 
become extinct) for several reasons. Age at first spawning (ranging 
from 5 to 7 years for shovelnose sturgeon) is much delayed in 
comparison to other fishes, and female sturgeons may not spawn for 
intervals of several years (Wallus et al. 1990). Thus, the effective 
population size (number of adult males and females capable of 
reproducing in a given year) is much smaller than it would be if 
reproduction began earlier and took place annually. Also, recruitment 
success in fish is subject to considerable natural variability owing to 
fluctuations of environmental conditions, and there can be several 
years between periods of good recruitment.
    Currently, there are no population estimates for the Alabama 
sturgeon. Recent collection efforts demonstrate its increasing rarity. 
For example, beginning in the spring of 1997 through 1998, up to four 
crews of professional fisheries biologists have expended approximately 
3,000 man-hours of fishing effort in the lower Alabama River to capture 
Alabama sturgeon for use as broodstock. This effort resulted in the 
capture of only three Alabama sturgeon. During this time, commercial 
and recreational fishermen encountered on the Alabama River were 
interviewed, and asked to report any captures of sturgeon to the ADCNR. 
No incidental catches were reported. Thus, approximately 18 months of 
fishing by professional, commercial, and recreational fishermen 
resulted in the capture of only three Alabama sturgeon. Compared to the 
estimated 20,000 Alabama sturgeon reported in the 1898 harvest, the 
amount of effort currently required to capture Alabama sturgeon 
indicates that the species' population numbers are extremely low. This 
strongly suggests that the Alabama sturgeon is highly vulnerable to MVP 
effects.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by the Alabama sturgeon in determining to propose this rule. 
Based on this evaluation, the preferred action is to list the Alabama 
sturgeon as endangered. The Act defines an endangered species as one 
that is in danger of extinction throughout all or a significant portion 
of its range. A threatened species is one that is likely to become an 
endangered species in the foreseeable future throughout all or a 
significant portion of its range. Endangered status is appropriate for 
the Alabama sturgeon due to the extensive curtailment of its range and 
extremely low population numbers.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
consideration or protection and; (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. Our 
regulations (50 CFR 424.12(a)(1)) state that designation of critical 
habitat is not prudent when one or both of the following situations 
exist: (1) The species is threatened by taking or other activity and 
the identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) Such designation of critical 
habitat would not be beneficial to the species. We find that 
designation of critical habitat is not presently prudent for the 
Alabama sturgeon.
    Critical habitat receives consideration under section 7 of the Act. 
Section 7(a)(2) requires Federal agencies to consult with the Service 
to ensure that any action they carry out, authorize, or fund does not 
jeopardize the continued existence of a federally listed species or 
destroy or adversely modify designated critical habitat. The Service's 
implementing regulations (50 CFR part 402) define ``jeopardize the 
continuing existence of'' and ``destruction or adverse modification 
of'' in very similar terms. To jeopardize the continuing existence of a 
species means to engage in an action ``that reasonably would be 
expected, directly or indirectly, to reduce appreciably the likelihood 
of both the survival and recovery of a listed species by reducing the 
reproduction, numbers, or distribution of that species.'' Destruction 
or adverse modification of habitat means a ``direct or indirect 
alteration that appreciably diminishes the value of critical habitat 
for both the survival and recovery of a listed species in the wild.'' 
Common to both definitions is an appreciable detrimental effect to both 
the survival and recovery of a listed species.
    For any listed species, an analysis to determine jeopardy under 
section 7(a)(2) would consider impacts to the species resulting from 
impacts to habitat. Therefore, an analysis to determine jeopardy would 
include an analysis closely parallel to or, for the Alabama sturgeon, 
equivalent to an analysis to determine adverse modification of critical 
habitat. For the Alabama sturgeon, any modification to suitable habitat 
within the species' range has the potential to affect the species. 
Actions that may affect the habitat of the Alabama sturgeon in the 
lower Alabama River include those with impacts on river channel 
morphology, bottom substrate composition, water quantity and quality, 
and stormwater runoff. Any activity that would be determined to cause 
an adverse modification to critical habitat also would jeopardize the 
continued existence of this fish given its restricted distribution and 
imperiled status.
    Critical habitat designation within a species' occupied range 
heightens the awareness of Federal agencies to the potential presence 
of the species, and encourages consideration of the effects of Federal 
actions on the species' habitat. We have worked closely with Federal 
agencies, particularly the Corps, in evaluating Federal agency actions 
and their potential effects to the Alabama sturgeon (Biggins 1994). All 
potentially affected Federal agencies are currently aware of the 
location and extent of habitat occupied by the Alabama sturgeon. In 
addition, should the species be listed, Federal actions that might 
affect occupied sturgeon habitat would be subject to review under 
section 7(a)(2) of the Act, whether or not critical habitat is 
designated. Therefore, habitat protection for the Alabama sturgeon can 
be accomplished through the section 7 jeopardy standard and there is no 
benefit in designating occupied habitat as critical habitat.
    Designation of unoccupied habitat as critical habitat may, in 
certain instances, provide additional protection to that afforded by 
the jeopardy standard. Specific areas outside the geographic area 
occupied by a species at the time it is listed may be designated as 
critical habitat, if it is determined that such areas are essential for 
the conservation of the species. The ecological requirements of the 
Alabama sturgeon are so poorly known, its historical habitats are so 
severely modified and fragmented, and its population numbers are so 
small, that extensive research

[[Page 14683]]

over an extended period of time would be required to identify any 
existing essential unoccupied habitats (see ``Background'' and 
``Summary of Factors Affecting the Species'' sections).
    Though critical habitat designation directly affects only Federal 
agency actions, this process can arouse public concern and resentment. 
Although Alabama sturgeon are currently protected from commercial or 
recreational fishing, they are occasionally captured (see factor B). 
Publicity or controversy accompanying critical habitat designation may 
increase the potential for illegal take. For example, on June 15, 1993, 
the Alabama sturgeon was initially proposed for endangered status with 
critical habitat (59 FR 33148). Proposed critical habitat included the 
lower portions of the Alabama, Cahaba, and Tombigbee rivers in south 
Alabama. The proposal generated thousands of comments with the primary 
concern that the proposed listing and designation of these rivers as 
critical habitat would devastate the economy of the State of Alabama 
and severely impact adjoining States. There were reports from State 
conservation agents and other knowledgeable sources of rumors inciting 
the capture and destruction of Alabama sturgeon.
    The primary threat to the Alabama sturgeon has been identified as 
its small numbers and its apparent inability to offset mortality rates 
with current reproduction rates (see factor E). As noted in the 
``Available Conservation Measures'' section, a collaborative effort by 
public and private partners to address this threat and conserve the 
Alabama sturgeon was initiated in 1997. Essential to this effort is the 
collection of sturgeon for use as broodstock for hatchery propagation, 
and for telemetry studies on habitat and behavior. Commercial and 
recreational fishermen have caught two of the seven fish captured over 
the past decade. Their continued cooperation is important to on-going 
Alabama sturgeon conservation efforts. The loss of the cooperation of 
fishermen and other private partners, as a result of proposed 
designation of unoccupied habitat as critical habitat, would be 
detrimental to the survival and recovery of the species.
    It should also be noted that regardless of critical habitat 
designation, Federal agencies are required by section 7(a)(1) of the 
Act to utilize their authorities in furtherance of the Act's purposes 
by carrying out conservation activities for listed species. We have 
been working with the Corps and other partners to assess habitat 
quantity, quality, and accessibility within the historic range of the 
Alabama sturgeon. Such studies, along with ongoing broodstock 
collection efforts, hatchery propagation, and other activities have 
focused attention on the sturgeon, its habitat, and threats to its 
existence, and will continue should the species be listed. Thus, any 
benefit that might accrue from designation of unoccupied habitat as 
critical is being accomplished under the existing coordination process.
    Based on the above analysis, we have concluded critical habitat 
designation would provide no additional benefit for the Alabama 
sturgeon beyond that which would accrue from listing under the Act. In 
addition, we also conclude that any potential benefit from such a 
designation would be outweighed by a loss of cooperation by fishermen 
and other partners in current conservation efforts, and an increased 
level of vulnerability to illegal take. Therefore, the designation of 
critical habitat for the Alabama sturgeon is not prudent.

Available Conservation Measures

    The ADCNR has implemented a conservation plan for the sturgeon that 
addresses the immediate threat to the species, its depressed population 
size, and seeks to develop information on the species and its habitat 
needs. A variety of public and private groups, including the Service, 
Army Corps of Engineers, Geological Survey of Alabama, Auburn 
University, the Alabama-Tombigbee Rivers Coalition, and the Mobile 
River Basin Coalition are participating in, and/or endorse, 
implementation of this plan. The immediate focus of the plan is to 
prevent extinction through a captive breeding program and release of 
propagated fish. Other objectives of the plan include habitat 
restoration and determining life history information essential to 
effective management of the species. A freshwater sturgeon conservation 
plan working group composed of scientists and resource managers from a 
variety of Federal and State agencies, industry, and local universities 
was formed in September 1996 to establish collection and handling 
protocols, and to recommend and participate in research efforts. 
Implementation of the conservation plan began in March 1997, with 
broodstock collection efforts. A female and two male sturgeon have been 
collected and are being held at the Marion Fish Hatchery. The hatchery 
has been upgraded to accommodate sturgeon propagation. An attempt to 
spawn the captive sturgeon is planned for spring 1999. Coordinated 
studies are currently in progress by us, the ADCNR, and the Corps to 
identify and quantify stable riverine habitat in the Alabama River, and 
to develop strategies for its management. Life history and habitat 
studies in progress include habitat characterization at historic 
sturgeon collection sites, prey density studies, and larval sturgeon 
surveys.
    The Mobile River Basin Aquatic Ecosystem Recovery Coalition, a 
partnership comprised of diverse business, environmental, private 
landowner, and agency interests, has been meeting regularly to 
participate in recovery planning for 15 listed aquatic species in the 
Basin (U.S. Fish and Wildlife Service 1998). The Coalition promotes 
increased stewardship awareness by private landowners throughout the 
Basin, and encourages the control of nonpoint source pollution through 
the implementation of Best Management Practices. All aquatic habitats, 
including Alabama sturgeon habitat, will benefit from such efforts.
    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the States and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against taking and harm are discussed, in 
part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) requires Federal agencies to confer 
informally with us on any action that is likely to jeopardize the 
continued existence of a proposed species or result in destruction or 
adverse modification of proposed critical habitat. If a species is 
listed, section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of such a species or to destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into formal consultation with us.
    Federal activities that could occur and impact the Alabama sturgeon 
include, but are not limited to, the carrying out or the issuance of 
permits for reservoir

[[Page 14684]]

construction, stream alterations, discharges, wastewater facility 
development, water withdrawal projects, pesticide registration, mining, 
and road and bridge construction. It has been our experience that 
nearly all section 7 consultations have been resolved so that the 
species have been protected and the project objectives have been met.
    The Act and its implementing regulations found at 50 CFR 17.21 set 
forth a series of general prohibitions and exceptions that apply to all 
endangered wildlife. These prohibitions, in part, make it illegal for 
any person subject to the jurisdiction of the United States to take 
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or 
collect; or to attempt any of these), import or export, ship in 
interstate commerce in the course of commercial activity, or sell or 
offer for sale in interstate or foreign commerce any listed species. It 
also is illegal to possess, sell, deliver, carry, transport, or ship 
any wildlife that has been taken illegally. Certain exceptions apply to 
our agents and agents of State conservation agencies.
    It is our policy, published in the Federal Register on July 1, 1994 
(59 FR 34272), to identify, to the maximum extent practicable, those 
activities that would or would not constitute a violation of section 9 
of the Act if this species is listed. The intent of this policy is to 
increase public awareness as to the effects of these proposed listings 
on future and ongoing activities within a species' range.
    Activities that we believe are unlikely to result in a violation of 
section 9 for the Alabama sturgeon are:
    (1) Discharges into waters supporting the sturgeon, provided these 
activities are carried out in accordance with existing regulations and 
permit requirements (e.g., activities subject to section 404 of the 
Clean Water Act and discharges regulated under the National Pollutant 
Discharge Elimination System (NPDES)).
    (2) Maintenance dredging of unconsolidated sediments undertaken or 
approved by the Corps of Engineers.
    (3) Development and construction activities designed and 
implemented pursuant to State and local water quality regulations and 
implemented using approved Best Management Practices.
    (4) Lawful commercial and sport fishing.
    (5) Actions that may affect the Alabama sturgeon and are 
authorized, funded or carried out by a Federal agency when the action 
is conducted in accordance with an incidental take statement issued by 
the Service pursuant to section 7 of the Act.
    Activities that we believe could potentially result in ``take'' of 
the Alabama sturgeon, if it becomes listed, include:
    (1) Illegal collection of the Alabama sturgeon.
    (2) Unlawful destruction or alteration of the Alabama sturgeon's 
habitat (e.g., un-permitted instream dredging, channelization, 
discharge of fill material).
    (3) Violation of any discharge or water withdrawal permit in waters 
supporting the Alabama sturgeon.
    (4) Illegal discharge or dumping of toxic chemicals or other 
pollutants into waters supporting the Alabama sturgeon.
    Other activities not identified above will be reviewed on a case-
by-case basis to determine if a violation of section 9 of the Act may 
be likely to result from such activity should the sturgeon become 
listed. We do not consider these lists to be exhaustive and provide 
them as information to the public.
    You should direct questions regarding whether specific activities 
will constitute a violation of section 9, should the sturgeon be 
listed, to the Field Supervisor of our Jackson Field Office (see 
ADDRESSES section).
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife species under certain circumstances. 
Regulations governing permits are codified at 50 CFR 17.22 and 17.23. 
Such permits are available for scientific purposes, to enhance the 
propagation or survival of the species, and/or for incidental take in 
connection with otherwise lawful activities. Send requests for copies 
of regulations regarding listed species and inquiries about 
prohibitions and permits to the U.S. Fish and Wildlife Service, 
Ecological Services Division, 1875 Century Boulevard, Atlanta, Georgia 
30345 (telephone 404/679-7313; facsimile 404/679-7081).

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. Comments particularly are sought 
concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to this species;
    (2) The location of any additional populations of this species and 
the reasons why any habitat should or should not be determined to be 
critical habitat as provided by section 4 of the Act;
    (3) Additional information concerning the range, distribution, and 
population size of this species; and
     (4) Current or planned activities in the lower Alabama River and 
their possible impacts on this species.
    We will take into consideration your comments and any additional 
information received on this species when making a final determination 
regarding this proposal. We will also submit the available scientific 
data and information to appropriate, independent specialists for 
review. We will summarize the opinions of these reviewers in the final 
decision document. The final determination may differ from this 
proposal based upon the information we receive.
    You may request a public hearing on this proposal. Your request for 
a hearing must be made in writing and filed within 45 days of the date 
of publication of this proposal in the Federal Register. Address your 
request to the Field Supervisor (see ADDRESSES section).

Executive Order 12866

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand including answers to the following: (1) 
Are the requirements of the rule clear? (2) Is the discussion of the 
rule in the Supplementary Information section of the preamble helpful 
in understanding the rule? (3) What else could we do to make the rule 
easier to understand?

National Environmental Policy Act

    We have determined that Environmental Assessments and Environmental 
Impact Statements, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
clearance number 1018-0094. An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a

[[Page 14685]]

currently valid control number. For additional information concerning 
permit and associated requirements for endangered species, see 50 CFR 
17.22.

References Cited

    A complete list of all references cited in this document, as well 
as others, is available upon request from the Field Supervisor (see 
ADDRESSES section).
    Author: The primary author of this document is Paul Hartfield (see 
ADDRESSES section)(601/965-4900, extension 25).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, the Service proposes to amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as set forth 
below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Amend section 17.11(h) by adding the following to the List of 
Endangered and Threatened Wildlife, in alphabetical order under FISHES:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
              Fishes
 
                   *                  *                  *                  *                  *                  *                  *
Sturgeon, Alabama................  Scaphirhynchus        U.S.A.(AL, MS).....  Entire.............  E                                     NA           NA
                                    suttkusi.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: March 18, 1999.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 99-7387 Filed 3-23-99; 9:43 am]
BILLING CODE 4310-55-P