[Federal Register Volume 74, Number 97 (Thursday, May 21, 2009)]
[Proposed Rules]
[Pages 23822-23837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11945]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 070910507-81216-02]
RIN 0648-AV94


Endangered and Threatened Wildlife and Plants: Proposed 
Rulemaking to Establish Take Prohibitions for the Threatened Southern 
Distinct Population Segment of North American Green Sturgeon

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments; notice of availability of 
a draft environmental assessment.

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SUMMARY: Under section 4(d) of the Endangered Species Act (ESA), the 
Secretary of Commerce (Secretary) is required to adopt such regulations 
as he deems necessary and advisable for the conservation of species 
listed as threatened. This proposed ESA 4(d) rule represents the 
regulations that we, the National Marine Fisheries Service (NMFS), 
believe necessary and advisable to conserve the threatened Southern 
Distinct Population Segment of North American green sturgeon (Acipenser 
medirostris; hereafter Southern DPS). We propose to apply the 
prohibitions listed under ESA sections 9(a)(1)(A) through 9(a)(1)(G) 
for the Southern DPS, and we highlight specific categories of 
activities that are likely to result in take of Southern DPS fish. We 
do not find it necessary and advisable to apply the take prohibitions 
to certain categories of activities that contribute to conserving the 
Southern DPS. We also propose a variety of methods by which take of the 
Southern DPS may be authorized.
    We announce the availability of a draft environmental assessment 
(EA) that analyzes the environmental impacts of promulgating these 
proposed 4(d) regulations for the Southern DPS. Finally, we solicit 
comments regarding the draft EA and this proposed rule.

DATES: Comments regarding the proposed rule and supporting documents 
may be sent to the appropriate address or fax number (see ADDRESSES), 
no later than 5 p.m. Pacific Standard Time on July 20, 2009. A public 
hearing will be held promptly if any person so requests by July 6, 
2009. Notice of the location and time of any such hearing will be 
published in the Federal Register not less than 15 days before the 
hearing is held.

ADDRESSES: You may submit comments, identified by RIN 0648-AV94, by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
     Facsimile (fax): 562-980-4027, Attn: Melissa Neuman.

[[Page 23823]]

     Mail: Submit written comments to Chief, Protected 
Resources Division, Attn: Melissa Neuman, Southwest Region, National 
Marine Fisheries Service, 501 West Ocean Blvd., Suite 4200, Long Beach, 
CA 90802-4213.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    We will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    A list of reference materials regarding this proposed rule can be 
obtained via the Internet at http://www.swr.nmfs.noaa.gov or by 
submitting a request to the Assistant Regional Administrator, Protected 
Resources Division, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 
4200, Long Beach, CA 90802-4213.

FOR FURTHER INFORMATION CONTACT: Melissa Neuman, NMFS, Southwest Region 
(562) 980-4115 or Lisa Manning, NMFS, Office of Protected Resources 
(301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    We determined that the Southern DPS is at risk of extinction in the 
foreseeable future throughout all or a significant portion of its range 
and listed the species as threatened under the ESA on April 7, 2006 (71 
FR 17757). At that time we summarized the process for considering the 
application of ESA section 9 prohibitions to the threatened Southern 
DPS. In the case of threatened species, ESA section 4(d) states that 
the Secretary shall decide whether, and to what extent, to extend the 
section 9(a) prohibitions, including those regarding take, to the 
species, and authorizes us to issue regulations we consider necessary 
and advisable for the conservation of the species. Such regulations may 
include any or all of the prohibitions that automatically apply to 
endangered species. Those prohibitions, in part, make it illegal for 
any person subject to the jurisdiction of the United States to take the 
listed species. The term ``take'' means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or attempt to engage in 
any such conduct. (16 U.S.C. 1532(19)). The term ``harm'' is defined as 
any act which kills or injures fish or wildlife. Such an act may 
include significant habitat modification or degradation that results in 
death or injury of wildlife by significantly impairing essential 
behavioral patterns, including breeding, spawning, rearing, migrating, 
feeding, or sheltering. (50 CFR 222.102).
    Whether take prohibitions or other protective regulations are 
necessary or advisable is in large part dependent on the biological 
status of the species and potential impacts of various activities on 
the species. Green sturgeon have persisted for millions of years 
through cycles of naturally occurring perturbations that have likely 
presented short- and long-term challenges to the species' survival. We 
conclude that the threatened Southern DPS of North American green 
sturgeon is currently at risk of extinction primarily because of human-
induced ``takes'' involving elimination of freshwater spawning habitat, 
degradation of freshwater and estuarine habitat quality, water 
diversions, fishing, and other causes. Therefore, we conclude that 
extending the take prohibitions to the Southern DPS is necessary and 
advisable.
    When the final rule to list the Southern DPS was published on April 
7, 2006, we solicited the public for information that would inform the 
ESA section 4(d) rulemaking. Specifically, we requested information 
regarding: (1) green sturgeon spawning habitat within the range of the 
Southern DPS that was present in the past, but may have been lost over 
time; (2) biological or other relevant data concerning any threats to 
the Southern DPS; (3) current or planned activities within the range of 
the Southern DPS and their possible impact on the Southern DPS; (4) 
efforts being made to protect the Southern DPS; (5) necessary 
prohibitions on take to promote the conservation of the Southern DPS; 
(6) quantitative evaluations describing the quality and extent of 
freshwater and marine habitats (occupied currently or occupied in the 
past, but no longer occupied) for juvenile and adult Southern DPS fish; 
(7) activities that could be affected by an ESA section 4(d) rule; and 
(8) the economic costs and benefits of additional requirements of 
management measures likely to result from protective regulations. No 
substantive additional comments, beyond those that had been received 
during prior solicitations for information, were received.
    Public scoping workshops held on May 31 and June 1, 2006, helped 
advance our understanding of the threats that are likely to result in 
the take of Southern DPS fish. In cases where evidence of direct take 
due to a particular activity was lacking, activities that have caused 
take in species that use similar habitats (i.e., migratory, spawning, 
and rearing), consume similar prey types, have similar morphologies 
and/or physiologies, and/or share other life history requirements 
(e.g., white sturgeon (Acipenser transmontanus) and chinook salmon 
(Oncorhynchus tshawytscha)) were identified and considered for their 
effects on Southern DPS fish. More detailed justification regarding the 
use of take information for surrogate species (i.e. one that shares a 
similar life history or habitat requirement) to infer the take 
potential of an activity on the Southern DPS fish is provided in 
previous Federal Register notices (70 FR 17386, April 6, 2005; 71 FR 
17757, April 7, 2006).
    We conclude that the threatened Southern DPS of North American 
green sturgeon is at risk of extinction primarily because its 
populations have been reduced by human ``take,'' through activities 
that include, but are not limited to: (1) commercial and recreational 
fisheries activities that directly target or incidentally catch 
Southern DPS fish; (2) tribal fisheries activities that directly target 
or incidentally catch Southern DPS fish; (3) poaching; (4) collecting 
or handling Southern DPS fish for activities such as research, 
monitoring, and emergency rescues; (5) habitat-altering activities that 
result in the elimination, obstruction or delay of passage of adult 
Southern DPS fish to and from spawning areas, or otherwise result in 
the inability of adult Southern DPS fish to migrate to and from 
spawning areas; (6) habitat-altering activities that result in the 
destruction, modification or curtailment of spawning or rearing habitat 
for egg, larval or juvenile stages; (7) habitat altering activities 
that result in the elimination, obstruction or delay of downstream 
passage of larval or juvenile stages of Southern DPS fish; (8) 
entrainment and impingement of any life stage of Southern DPS fish 
during the operation of water diversions, dredging or power generating 
projects; (9) application of pesticides adjacent to or within waterways 
that contain any life stage of Southern DPS fish at levels that 
adversely affect the biological requirements of the Southern DPS; (10) 
discharge or dumping of toxic chemicals or other pollutants into waters 
or areas that contain Southern DPS fish; and (11) introducing or 
releasing non-native species likely to alter the Southern DPS'

[[Page 23824]]

habitat or to compete with the Southern DPS for space or food.

Spatial Context for Proposed 4(d) Rule Application

    As described in a Federal Register notice (68 FR 4433) published on 
January 23, 2003, we determined that based on genetic and behavioral 
information, North American green sturgeon is comprised of at least two 
DPSs that qualify as species under the ESA: (1) a northern DPS 
consisting of populations originating from coastal watersheds northward 
of and including the Eel River (``Northern DPS''); and (2) a southern 
DPS consisting of populations originating from coastal watersheds south 
of the Eel River (``Southern DPS'') and the Central Valley of 
California. These geographic boundaries were largely defined by genetic 
evidence indicating that, among samples from rivers where green 
sturgeon are known to spawn (i.e. the Rogue, Klamath, and Sacramento 
rivers), the Rogue and Klamath River fish were more similar to one 
another than to the Sacramento River fish (Israel et al., 2004). 
Although the Southern DPS boundaries are defined by the species' 
genetic structure and its likely strong homing capabilities and 
spawning site fidelity, the spatial extent of the ESA listing and 
proposed take prohibitions for the Southern DPS is not confined to 
areas south of the Eel River. Southern DPS subadults and adults tagged 
in San Pablo Bay, a northern extension of San Francisco Bay, have been 
tracked in estuarine and marine waters far north of the Eel River 
(Lindley et al., 2008), and preliminary genetic mixed stock analyses 
indicate that a proportion of green sturgeon in many estuaries north of 
the Eel River DPS boundary are of Southern DPS origin (J. Israel, UC 
Davis, 2006, unpublished data).
    Tracking data, genetic mixed stock analysis, and direct observation 
indicate that Southern DPS fish occur in freshwater rivers and coastal 
estuaries and bays along the west coast of North America, including, 
but not limited to: San Pablo Bay, CA; Suisun Bay, CA; San Francisco 
Bay, CA (Radtke, 1966; CDFG, 2002; Kelly et al., 2006; J. McLain, 
USFWS, 2006, unpublished data; Department of Water Resources Bay Delta 
and Tributaries data base, 2005, http://bdat.ca.gov/index.html); the 
Sacramento-San Joaquin Delta in the Central Valley California (Radtke, 
1966; CDFG, 2002; Wang, 2006); Sacramento River, CA (USFWS, 1992; Adams 
et al., 2002; Gaines and Martin, 2002; Israel et al., 2004; Heublein et 
al., in press); lower Feather River, CA (Adams et al., 2006; A. 
Seeholtz, CDWR, 2008, unpublished data; FERC, 2008, unpublished data); 
lower Yuba River, CA (Adams et al., 2002; CDFG, 2002; G. Reedy, South 
Yuba River Citizens League, 2006, unpublished data); Humboldt Bay, CA 
(Moyle et al., 1992; B. Pinnix, USFWS, 2008, unpublished data; S. 
Lindley, NMFS, 2008, unpublished data); Coos Bay, OR (Lindley and 
Moser, 2006); Winchester Bay, OR (Lindley and Moser, 2006; J. Israel, 
UC Davis, 2006, unpublished data); Yaquina Bay, OR (Emmett et al., 
1991; ODFW, 2002; D. M. Nelson, 2008, Letter to Steve Stone; J. 
Hightower, USGS, 2006, unpublished data); lower Columbia River and 
estuary, OR and WA (Israel et al., 2004; Lindley and Moser, 2006; WDFW, 
2006, unpublished data; ODFW, 2006, unpublished data); Willapa Bay, WA 
(Lindley and Moser, 2006; J. Israel and B. May, UC Davis, 2006, 
unpublished data; WDFW, unpublished data; ODFW, unpublished data); 
Grays Harbor, WA (Lindley and Moser, 2006; J. Israel and B. May, UC 
Davis, 2006, unpublished data); and Puget Sound, WA (Lindley and Moser, 
2006). Southern DPS fish also occur in coastal waters within 110 meters 
depth from Monterey Bay, CA, to Yakutat Bay, AK (Lindley and Moser, 
2006; Lindley et al., 2008), including the Strait of Juan de Fuca, WA.
    Green sturgeon have also been observed or collected in the 
following coastal rivers, estuaries, and marine waters; however, in 
many of these cases, individuals were not identified to the DPS level: 
Elkhorn Slough, CA (Moyle et al., 1992; Yoklavich et al., 2002; S. 
Lindley, NMFS, 2008, unpublished data; C. Raifsnider and J. Steinbeck, 
Tenera Environmental, 2006, personal communication); Tomales Bay, CA 
(Moyle et al., 1992; J. McLain,USFWS, 2006, unpublished data); Noyo 
Harbor, CA (Moyle et al., 1992; D. Catania, California Academy of 
Sciences, 2006, personal communication); Eel River, CA (Moyle et al., 
1992; Adams et al., 2006); Klamath/Trinity River, CA (Nakamoto et al., 
1995; VanEenenaam et al., 2001; Adams et al., 2002; Adams et al., 2006; 
VanEenenaam et al., 2006; Benson et al., 2007); Rogue River, OR (Rien 
et al.; 2001; Adams et al., 2002; Erickson et al., 2002; Adams et al., 
2006; Erickson and Hightower, 2007; Erickson and Webb, 2007; Webb and 
Erickson, 2007); Siuslaw River, OR (Emmett et al., 1991; S. Lindley and 
M. Moser, NMFS, 2008, unpublished data); Alsea River, OR (Emmett et 
al., 1991; D. M. Nelson, 2008, Letter to Steve Stone); Tillamook Bay, 
OR (Emmett et al., 1991; ODFW, 1997; ODFW, 2002; D. M. Nelson, 2008, 
Letter to Steve Stone); coastal waters within 110 m depth from the 
California/Mexico border to Monterey Bay, CA (Roedel, 1941; Norris, 
1957; R. Rasmussen, NMFS, 2006, unpublished data); and coastal waters 
northwest of Yakutat Bay, AK, including portions of the Gulf of Alaska, 
and the Bering Sea (J. Ferdinand and D. Stevenson, NMFS, 2006, 
unpublished data).

Evaluation of Activities

    While this proposal applies the take prohibitions to any activity 
that takes the Southern DPS, we wanted to determine which activities 
would most likely impede efforts necessary to conserve and recover the 
Southern DPS. To do this, we considered the following questions: (1) 
For which activities do we have evidence of take of Southern DPS fish; 
(2) for those activities where evidence of Southern DPS take does not 
exist, is there evidence of take of surrogate species that share 
similar biological requirements with Southern DPS fish; (3) are 
protective/conservation measures underway to reduce or minimize take 
imposed by some activities; and (4) are there additional protective/
conservation measures that, if taken, would reduce take to low enough 
levels such that particular activities could proceed without 
appreciably reducing the likelihood of survival and recovery of the 
Southern DPS?

Commercial and Recreational Fisheries Activities

    Take of Southern DPS fish occurs during commercial and recreational 
fishing activities throughout the range of North American green 
sturgeon. However, quantifying fishery-related take reliably and 
assessing its effects is challenging because: (1) Northern and Southern 
DPS fish are morphologically indistinguishable from one another and 
when green sturgeon have been taken, they have rarely been identified 
to the DPS level; (2) until recently some fisheries did not report 
green sturgeon take, and (3) in cases where data on take of green 
sturgeon is available, methods for estimating the total annual take by 
a fishery are still being developed. The two DPSs co-inhabit some 
coastal areas and bays in Northern California, Oregon, and Washington, 
and the proportion of Southern DPS fish contributing to overall 
populations in these areas may be high (e.g., 80 percent in the 
Columbia River; J. Israel, UC Davis, 2008, unpublished data). Thus, 
while we know that fisheries-related take is occurring, we are 
uncertain how this take is apportioned between the two DPSs, different 
locales, and different types of fisheries.

[[Page 23825]]

    Green sturgeon are taken as bycatch in white sturgeon fisheries, 
salmon gillnet fisheries, coastal groundfish trawl fisheries, and 
coastal California halibut set net fisheries (Adams et al., 2006; R. 
Rasmussen, NMFS, 2006, unpublished data; J. Ferdinand et al., NMFS, 
2006, unpublished data). These fisheries have taken large numbers of 
green sturgeon historically and have been cited as factors in the 
decline of the species (70 FR 17386, April 6, 2005; 71 FR 17757, April 
7, 2006). For example, from 1985 to 1993, the harvest of green sturgeon 
in commercial fisheries in the Columbia River and in Washington ranged 
from 3,000 to over 7,500 fish per year. Sport fishing harvest during 
the same period ranged from less than 100 to over 500 fish, with the 
majority harvested from the Columbia River. Since 1993, commercial and 
sport harvest of green sturgeon has declined in the Columbia River and 
Washington fisheries to about 150 fish harvested in 2003 (Adams et al. 
2006).
    State recreational and commercial fishing regulations have been 
revised in response to evidence of recent sturgeon declines and to the 
listing of the Southern DPS. In California, the California Fish and 
Game Commission approved revised regulations, effective March 1, 2007, 
to prohibit retention of green sturgeon, alter the slot (size) limit 
(142 cm) and bag limit (one individual daily; 3 individuals annually) 
for white sturgeon, and require implementation of a sturgeon report 
card system. The Washington Fish and Wildlife Commission adopted a 
permanent rule to prohibit retention of green sturgeon in recreational 
fisheries statewide effective May 1, 2007. In addition, the Washington 
Department of Fish and Wildlife and Oregon Department of Fish and 
Wildlife voted to prohibit the retention of green sturgeon in Columbia 
River recreational fisheries from Bonneville Dam to the mouth of the 
river, effective January 1, 2007. For commercial fisheries, the 
retention of green sturgeon has been prohibited in the Columbia River 
by emergency rule since July 2006 and statewide in Washington by 
permanent rule since January 26, 2007. The State of California has 
prohibited commercial fishing for sturgeon since 1917. While these 
emergency and permanent rules offer Southern DPS fish protection, it is 
unclear whether the state closures will remain in effect over the long-
term and ultimately what overall effect the closures will have on the 
Southern DPS.
    Commercial groundfish trawl fisheries occurring in coastal waters 
along the West coast of North America take green sturgeon. Fish are 
primarily caught as bycatch off the coast of California. Over a 6-year 
period, from 2001-2007, 450 green sturgeon were reported as by-catch in 
trawls off the California coast. Almost all green sturgeon caught in 
this fishery are released alive (J. Majewski, NMFS, 2006, unpublished 
data), but the long-term fate of these individuals remains unknown. A 
program for monitoring green sturgeon take was established with the 
NMFS Observer Program in January 2007. Additional measures that may be 
implemented to protect green sturgeon and the Southern DPS include zero 
retention of green sturgeon in all fisheries, minimizing incidental 
catch, monitoring of incidental catch, increased enforcement, fisheries 
closures in areas important to the species, and outreach and education 
on proper catch and release methods and green sturgeon conservation 
issues.

Tribal Fisheries

    Green sturgeon are taken as bycatch in tribal salmon and sturgeon 
fisheries conducted by the Quinault Tribe in coastal Washington waters. 
Tribal harvest of green sturgeon occurs in Grays Harbor and at the 
mouth of tributaries, primarily the Chehalis and Humptulips rivers. The 
number of green sturgeon taken annually from 1985 to 2003 ranged from 
less than 10 to almost 200 fish (Adams et al., 2006). In 2006, the 
Quinault Tribe implemented zero retention of green sturgeon for the 
Grays Harbor fishery (J. Schumacker, Quinault Indian Tribe, 2006, 
personal communication). A large proportion of green sturgeon caught in 
Grays Harbor may be Southern DPS fish, based on hydroacoustic tracking 
information (Lindley and Moser, 2006) and a genetic study indicating 
that approximately 50 percent of green sturgeon sampled in Grays Harbor 
belong to the Southern DPS (J. Israel and B. May, UC Davis, 2006, 
unpublished data).
    Green sturgeon are also taken, though rarely, in tribal commercial 
and subsistence salmon fisheries occurring in freshwater and coastal 
marine waters of Washington, including the Strait of Juan de Fuca, 
Georgia and Rosario straits, and Puget Sound (W. Beattie, NW Indian 
Fisheries Commission, 2008, personal communication). The Yurok and 
Hoopa Tribes harvest green sturgeon in the Klamath River in California, 
but most of the fish are believed to be Northern DPS green sturgeon (J. 
Israel, UC Davis, 2006, unpublished data). Overall, the take of green 
sturgeon in tribal fisheries has been low compared to non-tribal 
fisheries. Measures that may be implemented to conserve the Southern 
DPS include a commitment by the Quinault Tribe, and perhaps other 
Tribes within the occupied range of the Southern DPS, to minimize take 
and monitor incidental catch of green sturgeon over the long-term.

Poaching

    Poaching is a potential threat to the Southern DPS. In recent 
years, several arrests have been made for illegal harvest of white 
sturgeon for their meat and roe from the Sacramento River (CDFG, 2003 
and 2006), the Sacramento-San Joaquin Delta (CDFG, 2004), and the lower 
Columbia River (Cohen, 1997). In the lower Columbia River, an estimated 
2,000 sturgeon were killed over a 5-year period by poachers to produce 
caviar (Cohen, 1997). Poaching may be less significant than incidental 
take associated with white sturgeon sportfishing (Williamson, 2003). 
However, the tendency for green sturgeon to form aggregations for long 
periods of time may make them easy targets for poachers (Erickson et 
al., 2002). Increased public outreach and awareness, increased 
enforcement, and heavier sentences and fines for poachers may help to 
protect green sturgeon from the threats of poaching.

Research, Monitoring and Enforcement Activities

    Scientific research and monitoring of the Southern DPS contributes 
valuable information for the management, conservation, and future 
status reviews of the species. However, collection or handling 
associated with scientific research and monitoring constitutes take and 
may result in stress, injuries, or mortality of Southern DPS fish. In 
recent years, much research and monitoring effort has been placed on: 
(1) tracking the movements and habitat use of Southern DPS fish by 
using a variety of non-lethal tagging techniques; and (2) identifying 
the DPS of origin using non-lethal genetic sampling techniques. These 
two research and monitoring activities provide information crucial to 
the development of an effective recovery strategy for the species. The 
best available information indicates that these procedures, when done 
according to accepted protocols, result in minimal short-term stress to 
the fish and do not result in lethal take. Important scientific 
information (e.g., genetic, pathologic, taxonomic, meristic) is also 
gathered from already dead individuals, thereby providing valuable data 
without putting the species at further risk.
    Enforcement of the ESA and its implementing regulations is an 
essential component of protecting and recovering

[[Page 23826]]

species once they are listed. Enforcement of this proposed regulation 
for the Southern DPS of green sturgeon may involve take. For example, 
when acting in the course of his or her official duties, a NMFS 
enforcement agent investigating an alleged ESA take violation may need 
to collect a Southern DPS fish or samples thereof as evidence of the 
violation.

Emergency Rescue and Salvage Activities

    Emergency fish rescue activities, including aiding sick, injured, 
or stranded fish, disposing of dead fish, or salvaging dead fish for 
use in scientific studies, are forms of take. Rescue activities would 
benefit the Southern DPS in the event of emergency situations that 
result from natural disasters or national defense or security 
emergencies (see 50 CFR 402.05). Activities such as the rescue of fish 
stranded behind a man-made barrier (e.g., weirs, nets, dams) are not 
considered emergency fish rescue activities and should be subject to 
NMFS ESA review.

Habitat-altering Activities

    Dams and water diversion structures have caused the elimination, 
obstruction, or delay of passage for green sturgeon and other sturgeon 
species and may reduce body condition and reproductive success. For 
example, dams and water diversion structures have been observed to 
obstruct or disrupt the upstream spawning migrations of shortnose 
sturgeon in the lower Cape Fear River, NC (Moser and Ross, 1995). White 
sturgeon have also been found stranded behind the Fremont Weir in the 
Yolo Bypass, CA (Harrell and Sommer, 2006). Disruptions in migration 
may cause fish to stop their upstream migration or may delay access to 
spawning habitats (Moser and Ross, 1995). The inability to reach 
spawning habitats may cause fish to spawn in habitats of lower quality, 
resulting in decreased recruitment (Cooke and Leach, 2004). Several 
dams and water diversion structures exist along the spawning migration 
route of the Southern DPS and would be expected to have detrimental 
effects similar to those observed in surrogate species. Fish passage 
studies at the Red Bluff Diversion Dam (RBDD) in the Sacramento River 
show that the RBDD blocks the upstream migration of the Southern DPS 
when the gates are lowered between May 15 and September 15 (Heublein et 
al., 2006; Brown, 2007). Mitigation measures have been implemented, 
including the raising of RBDD gates from September 15 to May 15 each 
year to allow fish passage and the protection and restoration of 
spawning and rearing habitat along the Sacramento River, bays, and the 
Sacramento-San Joaquin Delta. However, when the gates are raised, green 
sturgeon may become disoriented or suffer injuries due to the high 
velocity of water passing under the gates (M. Tucker, NMFS, 2007, 
personal communication). Between May 18 and June 10, 2007, carcasses of 
10 adult Southern DPS fish (168-226 cm total length) were found at 
(n=2) or downstream (n=8) of RBDD (E. Campbell, USFWS, 2007, 
unpublished data). Locations of the retrieved carcasses and necropsy 
results suggest that the fish suffered mortality due to injuries 
inflicted by the gates at RBDD. Installation of adequate fish passage 
facilities, modification of existing passage facilities, or other 
provisions to specifically aid sturgeon passage at dams and diversions, 
and application of other mitigation measures, such as salvage 
operations, would contribute to the protection of the Southern DPS.
    The elimination, obstruction, or delay of downstream passage is a 
concern for larval and juvenile stages of the Southern DPS, as are 
habitat-altering activities that destroy, modify, or curtail spawning 
or rearing habitats for egg, larval, or juvenile stages. Specific 
concerns include, but are not limited to: increased sediment input or 
runoff into streams; filling in or isolation of stream channels, side 
channels, and intermittent waters; direct removal or alteration of 
physical structures; and obstruction of downstream migration.
    Increased input or runoff of fine sediments into streams may result 
from a number of activities including, but not limited to, mining, 
logging, farming, grazing, and bridge and road construction. Increased 
erosion and sediment input or runoff into streams caused by land use 
and other human activities have been found to reduce the survival and 
successful development of eggs and embryos of salmon and other fish 
species (Scrivener and Brownlee, 1989; Owen et al., 2005). The effects 
on green sturgeon eggs and embryos are likely to be similar. Green 
sturgeon eggs are large and dense and likely sink into rock crevices or 
attach to hard surfaces (Deng et al., 2002; Kynard et al., 2005). Once 
hatched, green sturgeon embryos remain near the bottom and use rocks as 
cover (Kynard et al., 2005). Excess fine sediments can compromise 
successful development by burying already-deposited eggs , reducing 
interstitial dissolved oxygen available for eggs (Scrivener and 
Brownlee, 1989), or filling areas used by embryos for cover. Thus, 
Southern DPS eggs or embryos may be taken due to habitat-altering 
activities that increase input of fine sediments or runoff into 
spawning or rearing habitat. The effect that increased input of fine 
sediments or runoff has at the individual, population and species 
levels will depend on the temporal and spatial extent of habitat 
change. The only way to determine this is to analyze particular 
activities on a case-by-case basis.
    The filling in or isolation of stream channels, side channels, and 
intermittent waters may destroy or block access to rearing habitats, or 
impede or delay downstream migration by trapping larvae and juveniles 
that have entered these areas. Activities that fill in or isolate 
waters include, but are not limited to, the installation of tide gates, 
culverts, and debris- or sediment-trapping road crossing structures. 
These activities and their effects are a concern for listed salmon and 
steelhead and may also affect larval and juvenile Southern DPS fish. 
However, we currently lack the information needed to quantitatively 
assess these effects. Although relatively large numbers of juveniles 
have been collected in shallow areas of the Santa Clara shoal in the 
Sacramento-San Joaquin Delta (Radtke, 1966), the use of stream 
channels, side channels, and intermittent waters as rearing habitat by 
green sturgeon larvae and juveniles has not been documented. 
Information regarding the use of these habitats by early life stages of 
green sturgeon is needed.
    Direct removal or alteration of physical structures essential to 
the integrity and function of the Southern DPS's spawning or rearing 
habitat, including rocks, soil, gravel, and vegetation, may adversely 
affect the growth and survival of larvae and juveniles. Green sturgeon 
likely use specific substrate types at different life stages, but 
observations of early life stages of green sturgeon in the field are 
lacking. Studies suggest that spawning most likely occurs over cobble 
substrates that provide crevices and cover for eggs (Kynard et al., 
2005; Nguyen and Crocker, 2006). However, in a laboratory study of 
substrate use by post-hatch larval green sturgeon, growth and survival 
was greatest in flat slate-rock substrates that provided cover and 
sufficient foraging opportunities (Nguyen and Crocker, 2006). Survival 
was low in cobble substrates, because larvae became trapped in crevices 
and died; whereas in sand substrates, the cause of lower survival and 
growth was attributed to the ingestion of sand particles similar in 
size to food particles (Nguyen and Crocker, 2006). Juveniles

[[Page 23827]]

likely use deep pool habitats with rock structure during the winter 
(Kynard et al., 2005). Removal or alteration of these physical 
structures (i.e. cobble for spawning and egg development; flat rock for 
larval rearing; deep pool habitats with rock structure for juvenile 
rearing) may reduce spawning or rearing success rates. Information 
regarding the use of spawning habitats by Southern DPS early life 
stages and the effects of removing or altering physical components of 
Southern DPS spawning habitat on recruitment success is needed.
    The construction and maintenance of dams and water diversion 
structures may impede or delay downstream migration and alter habitats 
important to larval and juvenile stages of the Southern DPS. Dams and 
water diversions may block downstream migration of larvae and 
juveniles, unless fish transport or bypass facilities exist. Passage 
across dams and water diversion structures may also disorient or injure 
larvae and juveniles and make them more vulnerable to predation, as has 
been observed for juvenile salmonids at RBDD (Bigelow and Johnson, 
1996; Gaines and Martin, 2002). The actual construction of dams and 
water diversion structures may cause increased erosion and 
sedimentation and disrupt or alter physical structures in spawning or 
rearing habitats, with effects as described in the previous paragraphs.
    While existing laws require mining, timber harvest, and other 
resource use plans to address erosion and other adverse impacts on 
stream habitats, these laws may not be adequate to protect the Southern 
DPS. Additional measures that would help reduce potential adverse 
impacts on Southern DPS fish are: (1) protection of riparian habitat by 
limiting activities that cause erosion, sediment input or runoff into 
streams, or roadway and other linear development near or across 
streams; (2) construction of fish protection and passage facilities; 
and (3) limiting the temporal and/or spatial scopes of habitat 
alteration activities that occur in and near spawning and rearing 
locations.

Habitat Restoration

    The primary purpose of habitat restoration is to restore natural 
aquatic or riparian habitat conditions or processes over the long-term. 
Specifically, we define habitat restoration as the process of 
reestablishing a self-sustaining habitat that closely resembles natural 
conditions in terms of structure and function for the Southern DPS. A 
variety of habitat-altering activities such as barrier removal or 
modification to restore natural water flows, river and estuarine bed 
restoration, natural bank protection, restoration of native vegetation, 
removal of non-native species, and removal of contaminated sediments 
have been used to reestablish natural river and estuarine functions 
over the long-term. Although take of green sturgeon could potentially 
occur during the course of completing restoration activities, we do not 
have evidence that these types of activities have taken the Southern 
DPS or a surrogate species. It is likely that these activities are 
important to the conservation and recovery of the Southern DPS.

Entrainment and Impingement Risks

    The operation of water diversions, power generating projects, and 
dredging activities pose entrainment and impingement threats to all 
life stages of the Southern DPS. We define entrainment to mean the 
incidental trapping of any life stage of fish within waterways or 
structures that carry water being diverted for anthropogenic use. We 
define impingement to mean the entrapment of any life stage of fish on 
the outer part of any structure (e.g., intake structures, screening 
devices) that separates water traveling a natural course of passage 
from water that is being diverted for anthropogenic use. Unscreened 
water diversions number in the hundreds to thousands in the Sacramento 
River and the Sacramento-San Joaquin Delta (Herren and Kawasaki, 2001). 
Factors that determine the entrainment risk of fish at diversions 
include the location and size of fish. A study of fish entrainment at 
an unscreened diversion in the Sacramento River documented entrainment 
of fish ranging in size from 9 to 59 mm fork length (FL) in July 2000 
and 2001 (Nobriga et al., 2004). Green sturgeon were not among the 
species documented in the study, but Southern DPS larvae and small 
juveniles within the size range of 9-59 mm FL occur in the Sacramento 
River at that time of year and are believed to also be at risk of 
entrainment at unscreened diversions. Entrainment of juvenile green 
sturgeon has been documented at the state and Federal fish facilities 
in the south Sacramento-San Joaquin Delta, where fish are salvaged 
before they enter the pumps (Adams et al., 2006). Programs to install 
fish screens at water diversions are being implemented and many major 
diversions have already been screened. Installation of fish screens, 
construction of bypass and other fish protection facilities (Bigelow 
and Johnson, 1996; Gaines and Martin, 2002), adjustments in the timing 
of operations, and continuation of fish salvage operations, where 
applicable, would help minimize and mitigate entrainment of Southern 
DPS fish at water diversions.
    Evidence exists for the impingement of green sturgeon in the 
operation of coastal power plants using cooling water intake systems. 
Two juvenile green sturgeon were impinged and died on cooling water 
intake screens at the now retired Contra Costa Plant Units 1-5 in 1978-
1979 and at the Moss Landing Power Plant in 2006 (C. Raifsnider and J. 
Steinbeck, Tenera Environmental, 2006, personal communication). Current 
conservation efforts include the installation of screens to reduce 
entrainment, studies of fish impingement and entrainment at power 
plants, and laws that require the minimization of fish impingement and 
entrainment. Other actions that can be taken to reduce impingement and 
entrainment include altering the time of day when water intake pumps 
are operated, altering the velocity of water intake, and the use of 
alternative cooling systems that do not require water intake.
    Dredging operations in freshwater rivers, bays, and estuaries where 
Southern DPS fish occur may pose entrainment risk. Although entrainment 
of green sturgeon in dredging operations has not been documented, the 
effects could be significant. Approximately two thousand juvenile white 
sturgeon were entrained during operation of a large suction dredge in 
the lower Columbia River (Buell, 1992). Juvenile green sturgeon would 
be expected to face similar entrainment risks from dredging operations 
because they are also bottom-oriented and occur in habitats similar to 
white sturgeon. Long-term management strategies for San Francisco Bay 
dredging operations have established regional environmental work 
windows, or periods of time when certain fish species are not likely to 
be present in a location. Currently, it is believed that Southern DPS 
juveniles reside in San Francisco, Suisun, and San Pablo bays year-
round so environmental work windows will likely not be effective in 
reducing the risks of dredging operations to the Southern DPS in these 
locations. However, the use of specific types of dredging equipment 
with modified designs would reduce the entrainment risk to Southern DPS 
fish from dredging operations.

Pesticides and Discharge of Pollutants

    The application of pesticides adjacent to or within waterways that 
contain any life stage of the Southern DPS may adversely affect their 
growth and

[[Page 23828]]

reproductive success. Several pesticides have been detected in the 
Sacramento River Basin at levels that are likely to be harmful to 
aquatic life (Domagalski et al., 2000). The accumulation of industrial 
chemicals and pesticides such as polychlorinated biphenyls (PCBs), 
dichloro-diphenyl-trichloroethanes (DDTs), and chlordanes in white 
sturgeon gonad, liver, and muscle tissues affects growth and 
reproductive development and results in lower reproductive success 
(Fairey et al., 1997; Foster et al., 2001a; Foster et al., 2001b; Kruse 
and Scarnecchia, 2002; Feist et al., 2005; Greenfield et al., 2005). 
Green sturgeon are believed to experience similar risks from 
contaminants, although their exposure may be reduced because a greater 
proportion of their subadult and adult lives are spent in marine waters 
(70 FR 17386, April 6, 2005). Pesticides may also indirectly affect 
green sturgeon through effects on their prey species. For example, 
green sturgeon are believed to enter Willapa Bay to feed on burrowing 
ghost shrimp (Neotrypaea californiensis), which have declined in 
abundance due to the deliberate application of carbaryl (Moser and 
Lindley, 2006).
    The discharge or dumping of toxic chemicals or other pollutants 
into waters and areas where Southern DPS fish occur would be expected 
to reduce their growth and reproductive success. Pollutants including 
mercury, selenium, and arsenic have been detected in white sturgeon 
gonad, liver, and muscle tissues and are believed to affect growth, 
reproductive development, and reproductive success (Fairey et al., 
1997; Davis et al., 2002; Kruse and Scarnecchia, 2002; Greenfield et 
al., 2005; Webb et al., 2006). Again, the effects on green sturgeon are 
likely to be similar.
    Under the Federal Clean Water Act, acceptable levels for 
contaminants in waterways have been established by the States and the 
U.S. Environmental Protection Agency (EPA). Entities must also obtain 
National Pollutant Discharge Elimination System (NPDES) permits to 
discharge contaminants. However, NPDES permits are not required for 
irrigated agriculture and agricultural stormwater runoff. Furthermore, 
the national standards for use of pesticides and toxic substances may 
not be conservative enough to adequately protect the Southern DPS as 
was found for listed salmonids in recent draft and final jeopardy 
biological opinions issued by NMFS to the EPA (NMFS 1998, NMFS 2000, 
NMFS 2008). Thus, programs to aid agricultural producers in meeting 
NMFS-imposed water quality standards may be required to minimize 
adverse impacts on the Southern DPS.

Non-native Species Introductions

    Non-native species are a continuing problem in freshwater rivers 
and coastal bays and estuaries and may affect the Southern DPS through 
trophic interactions. Introduced species, such as striped bass in the 
Sacramento River and the Sacramento-San Joaquin Delta, may prey on 
green sturgeon. Non-native species may also replace prey species of 
green sturgeon and result in greater bioaccumulation of contaminants. 
For example, Potamocorbula amurensis, a non-native bivalve, has become 
widespread in the San Francisco Bay and the Sacramento-San Joaquin 
Delta and has replaced other common prey items for white sturgeon. P. 
amurensis is an efficient bioaccumulator of selenium, a reproductive 
toxin that causes deformities in embryos and reduced hatchability of 
eggs, and has been linked with increased selenium levels in white 
sturgeon (Linville et al., 2002). P. amurensis has also been identified 
in the gut contents of at least one green sturgeon (CDFG, 2002). Non-
native species may also alter the Southern DPS' habitat or compete with 
the Southern DPS for space or food. Although existing laws prohibit the 
release of non-native species into the environment, accidental and 
intentional introduction of non-native species remains a problem. 
Eradication programs for non-native species, increased public education 
and outreach, and increased fines or penalties for the release of non-
native species would help to alleviate this problem.

Proposed 4(d) Protective Regulations for the Southern DPS

    We propose to apply the prohibitions listed under ESA sections 
9(a)(1)(A) through 9(a)(1)(G) for the Southern DPS, including all the 
ESA section 9(a)(1)(B) and 9(a)(1)(C) prohibitions (the ``take 
prohibitions'') except for specific activities described below (see 
Exceptions, Criteria for Exceptions, and Reporting Requirements). ESA 
section 9(a)(1)(A) states that it is unlawful to import or export 
endangered species into or from the United States; ESA section 
9(a)(1)(B) states that it is illegal to take endangered species within 
the United States or the territorial sea of the United States; ESA 
section 9(a)(1)(C) states that it is illegal to take endangered species 
upon the high seas; ESA section 9(a)(1)(D) states that it is illegal to 
possess, sell, deliver, carry, transport, or ship, by any means 
whatsoever, endangered species taken in violation of 9(a)(1)(A) and 
9(a)(1)(C); ESA section 9(a)(1)(E) states that it is illegal to 
deliver, receive, carry, transport, or ship in interstate or foreign 
commerce by any means whatsoever and in the course of a commercial 
activity, endangered species; ESA section 9(a)(1)(F) states that it is 
illegal to sell or offer for sale in interstate or foreign commerce, 
endangered species; and ESA section 9(a)(1)(G) states that it is 
illegal to violate any regulation pertaining to endangered species or 
to any threatened species of fish or wildlife listed pursuant to 
section 4 of the ESA and promulgated by the Secretary pursuant to 
authority provided by the ESA.
    These prohibitions are necessary and advisable for the conservation 
of the Southern DPS because human ``take'' via activities including, 
but not limited to, detrimental habitat alteration, modification, and 
curtailment; fisheries catch and bycatch; application of pesticides, 
toxic chemicals, or other pollutants adjacent to or within waterways; 
entrainment or impingement of eggs or fish during water diversion 
operations, dredging, or power generation; unnecessary collection or 
handling; and introduction of non-native species that disrupt trophic 
pathways, has contributed to the decline of the Southern DPS and is 
likely to impede its conservation and recovery.

Exceptions, Criteria for Exceptions, and Reporting Requirements

    We propose exceptions to the ESA section 9(a)(1)(B) and 9(a)(1)(C) 
prohibitions (the ``take prohibitions'') for specific activities. These 
proposed exceptions encompass specific activities that may be excluded 
from the take prohibitions for the Southern DPS through the relatively 
informal coordination process described below. In determining that it 
is necessary and advisable to not impose take prohibitions on certain 
activities, we are mindful that new information may require a 
reevaluation of that conclusion at any time. For any of the exceptions 
to the take prohibitions described below, we would evaluate on a 
regular basis the effectiveness of the activities in conserving and 
protecting the Southern DPS. If the activities are not effective in 
conserving and protecting the Southern DPS, we would identify ways in 
which the activities need to be altered or strengthened. For habitat-
related exceptions to the take prohibitions, changes may be required if 
the activities are not achieving desired habitat functionality or the 
habitat is not supporting population productivity levels needed to 
conserve the Southern

[[Page 23829]]

DPS. If the responsible agency does not make changes to respond 
adequately to the new information, we would publish notification in the 
Federal Register announcing the intention to impose take prohibitions 
on those activities. Such an announcement would provide for a comment 
period of not less than 30 days, after which we would make a final 
determination whether to extend the ESA section 9(a)(1)(B) and (C) take 
prohibitions to the activities. We propose that take of the Southern 
DPS not be prohibited during the course of the following activities:
    (1) Federal, state or private-sponsored research or monitoring 
activities if they adhere to all of the following: (a) the activity 
must comply with required state reviews or permits; (b) the research or 
monitoring activity must be directed at the Southern DPS and not be 
incidental to research or monitoring of another species; (c) take of 
live mature adults in the lower Feather River from the confluence with 
the Sacramento River to the Oroville Dam (rkm 116), the lower Yuba 
River from the confluence with the Feather River to the Daguerre Dam 
(rkm 19), or Suisun, San Pablo, and San Francisco Bays or the 
Sacramento-San Joaquin Delta from the Golden Gate Bridge up into the 
Sacramento River to Keswick Dam (rkm 483) may only occur from July 1 
through March 1 so as to substantially increase the likelihood that 
uninterrupted upstream spawning migrations of adults will occur; (d) 
take must be non-lethal; (e) take involving the removal of any life 
stage of the Southern DPS from the wild must not exceed 60 minutes; (f) 
take must not involve artificial spawning or enhancement activities; 
(g) a description of the study objectives and justification, a summary 
of the study design and methodology, estimates of the total non-lethal 
take of Southern DPS fish anticipated, estimates of incidental take of 
other ESA listed species anticipated and proof that those takes have 
been authorized by NMFS or the USFWS, identification of funding 
sources, and a point of contact must be reported to NMFS at least 60 
days prior to the start of the study, or for ongoing studies within 60 
days after publication of the final rule; (h) reports that include the 
total number of Southern DPS and any other ESA listed species taken, 
information that supports that take was non-lethal, and a summary of 
the project results must be submitted to NMFS on a schedule to be 
determined by NMFS staff; (i) research or monitoring that involves 
action, permitting or funding by a federal agency must still comply 
with the requirements of ESA section 7(a)(2) in order to ensure that 
the action will not jeopardize the continued existence of the 
threatened Southern DPS.
    (2) Enforcement activities when an employee of NMFS, acting in the 
course of his or her official duties, takes the Southern DPS without a 
permit, if such action is necessary for purposes of enforcing the ESA 
or its implementing regulations.
    (3) Emergency fish rescue and salvage activities that include 
aiding sick, injured, or stranded fish, disposing of dead fish, or 
salvaging dead fish for use in scientific studies, if they adhere to 
all of the following: (a) the activity must comply with required state 
or other Federal reviews or permits; (b) activities may only be 
conducted by an employee or designee of NMFS or the U.S. Fish and 
Wildlife Service (USFWS), any Federal land management agency, or 
California Department of Fish and Game (CDFG), Oregon Department of 
Fish and Wildlife (ODFW), Washington Department of Fish and Wildlife 
(WDFW), or Alaska Department of Fish and Game (ADFG); (c) the emergency 
rescue may only occur because of situations that result from natural 
disasters, national defense, or security emergencies (see 50 CFR 
402.05); (d) the emergency rescue must benefit the Southern DPS; (e) a 
report must be submitted to NMFS that includes, at a minimum, the 
number and status of fish handled and the location of rescue and/or 
salvage operations within 30 days after conducting the emergency 
rescue.
    (4) Habitat restoration activities, including barrier removal or 
modification to restore water flows, riverine or estuarine bed 
restoration, natural bank stabilization, restoration of native 
vegetation, removal of non-native species, or removal of contaminated 
sediments, that reestablish self-sustaining habitats for the Southern 
DPS, if they adhere to all of the following: (a) compliance with 
required state and Federal reviews and permits; (b) a detailed 
description of the restoration activity sent to NMFS at least 60 days 
prior to the start of the restoration project which includes: the 
geographic area affected; when activities will occur; how they will be 
conducted; and the severity of direct; indirect, and cumulative impacts 
of activities on the Southern DPS; identification of funding sources; 
demonstration that all state and federal regulatory requirements have 
been met; a description of methods used to ensure that the likelihood 
of survival or recovery of the listed species is not reduced; a plan 
for minimizing and mitigating any adverse impacts to Southern DPS 
spawning or rearing habitat; an estimate of the amount of incidental 
take of the listed species that may occur and a description of how that 
estimate was made; a plan for effective monitoring and adaptive 
management; a pledge to use best available science and technology when 
conducting restoration activities; and a point of contact; (c) progress 
reports that include the total number of Southern DPS taken, 
information regarding whether the take was lethal or non-lethal, a 
summary of the status of the project, and any changes in the methods 
being employed, must be submitted to NMFS on a schedule to be 
determined by NMFS staff; (d) activities that involve action, 
permitting or funding by a federal agency must still comply with the 
requirements of ESA section 7(a)(2) in order to ensure that the action 
will not jeopardize the continued existence of the threatened Southern 
DPS.

Exemptions Provided by NMFS-approved ESA 4(d) Programs

    We propose exemptions from the take prohibitions for certain 
activities included within a NMFS-approved 4(d) program. Activities 
included in a 4(d) program would be excused from the take prohibitions 
for the Southern DPS through a formal NMFS 4(d) program approval 
process described below.

ESA 4(d) Program for Commercial and Recreational Fishery Management

    Take of green sturgeon in commercial and recreational fisheries 
activities would be allowed if fisheries activities were conducted 
under approved Fisheries Management and Evaluation Plans (FMEPs). We 
expect that, in many cases, fisheries will have acceptably small 
impacts on the threatened Southern DPS as long as state fishery 
management programs are specifically tailored to meet certain criteria. 
NMFS-approved FMEPs must address limiting take of green sturgeon in 
order to protect the listed entity, the Southern DPS. We consider this 
necessary because discrimination between the non-listed Northern DPS 
and listed Southern DPS, via gear specificity, visual indicators, 
spatial distribution, etc., is not currently possible. In order for 
NMFS to exempt commercial or recreational fishing activities from the 
take prohibitions, an FMEP must: (1) prohibit retention of green 
sturgeon (i.e. zero bag limit); (2) set maximum incidental take levels; 
(3) include measures to minimize incidental take of green sturgeon 
(e.g., temporal/spatial restrictions, size, gear); (4) provide a 
biologically based rationale demonstrating that the incidental take 
management strategy will not significantly reduce the

[[Page 23830]]

likelihood of survival or recovery of the Southern DPS; (5) include 
effective monitoring and evaluation plans; (6) provide for evaluating 
monitoring data and making revisions to the FMEP; (7) provide for 
effective enforcement and education; and (8) report the amount of 
incidental take and summarize the effectiveness of the FMEP to NMFS on 
a biannual basis. If we find that an FMEP meets these criteria, we 
would issue a letter of concurrence to the State that sets forth the 
terms of the FMEP's implementation and the duties of the parties 
pursuant to the FMEP.
    Section 9(a)(1)(B) and (a)(1)(C) take prohibitions would not apply 
to ongoing commercial and recreational fisheries activities after 
publication of the final rule, for up to 120 days, if a letter of 
intent to develop an FMEP addressing green sturgeon has been received 
by NMFS within 30 days after the final rule is published in the Federal 
Register. The exemption will be suspended if the letter of intent is 
rejected without further review of an FMEP. If the letter of intent is 
received within 30 days of publication of the final 4(d) rule in the 
Federal Register, a final FMEP must be received by NMFS within 120 days 
from the date of receipt of the letter of intent. Ongoing commercial 
and recreational fisheries activities may continue until NMFS issues a 
letter of concurrence (or denial) for final FMEPs.
    Once an FMEP has been submitted to NMFS for review, NMFS will: (1) 
provide a public comment period ([gteqt] 30 days) before approval of 
new or amended FMEPs; (2) provide a letter of concurrence for approved 
FMEPs that specifies the implementation and reporting requirements; (3) 
evaluate FMEPs on a regular basis and identify changes that would 
improve their effectiveness; and (4) provide a public comment period 
([gteqt] 30 days) before withdrawing approval of an FMEP.

ESA 4(d) Program for Tribal Fishery Management

    Fishery harvest or other activities conducted by a tribe, tribal 
member, tribal permittee, tribal employee, or tribal agent in Willapa 
Bay, WA, Grays Harbor, WA, Coos Bay, OR, Winchester Bay, OR, Humboldt 
Bay, CA, and any other area where tribal treaty fishing occurs are 
eligible to obtain take authorization via the same method outlined in 
the NMFS final rule for authorizing take of threatened salmon and 
steelhead for actions under tribal resource management plans (July 10, 
2000; 65 FR 42481). This method has been modified below for the 
Southern DPS. We consider current tribal fishing activities to have 
acceptably small impacts on the threatened Southern DPS and propose 
that if the tribes, either singly or jointly, develop tribal resource 
management plans for the Southern DPS, or incorporate the Southern DPS 
into existing tribal resource management plans, that current and future 
tribal activities are not likely to appreciably reduce the likelihood 
of survival and recovery of the species.
    A tribe intending to exercise a tribal right to fish or undertake 
other resource management actions that may impact the threatened 
Southern DPS could create a tribal resource management plan (Tribal 
Plan) that would assure that those actions would not appreciably reduce 
the likelihood of survival and recovery of the species. The Secretary 
would stand ready to the maximum extent practicable to provide 
technical assistance to any tribe that so requests in examining impacts 
on the listed Southern DPS and in the development of Tribal Plans that 
meet tribal management responsibilities and needs. In making a 
determination whether a Tribal Plan will appreciably reduce the 
likelihood of survival and recovery of the threatened Southern DPS, the 
Secretary, in consultation with the tribe, would use the best available 
scientific and commercial data (including careful consideration of any 
tribal data and analysis) to determine the Tribal Plan's impact on the 
biological requirements of the species. The Secretary would also assess 
the effect of the Tribal Plan on survival and recovery in a manner 
consistent with tribal rights and trust responsibilities. Before making 
a final determination, the Secretary would seek comment from the public 
on his pending determination whether or not implementation of a Tribal 
Plan will appreciably reduce the likelihood of survival and recovery of 
the listed Southern DPS. The Secretary would publish notification in 
the Federal Register of any determination regarding a Tribal Plan and 
the basis for that determination.

ESA 4(d) Program for Scientific Research and Monitoring Activities

    State-coordinated research activities for scientific research or 
enhancement purposes that do not fall into the exception category 
described above (see Exceptions, Criteria for Exceptions, and Reporting 
Requirements) may receive an exemption from the take prohibitions for 
the Southern DPS for activities included in a state-sponsored, ESA-
compliant, scientific research program between state fishery agencies 
(i.e., CDFG, ODFW, WDFW, or ADFG) and NMFS, hereafter referred to as a 
state 4(d) research program. Activities conducted as part of a state 
4(d) research program must meet existing state and federal laws and 
regulations and would include research and monitoring projects 
conducted by state employees or by recipients of state fishery agency-
issued permits (including Federal and non-Federal entities), that 
directly or incidentally take Southern DPS green sturgeon. We find that 
in carrying out their responsibilities to manage state fisheries, state 
agencies are conducting or sponsoring research vital for improving our 
understanding of the status and risks facing the Southern DPS and other 
listed species that occur in overlapping habitat, and provide critical 
information for assessing the effectiveness of current and future 
management practices.
    State 4(d) research programs have been developed and implemented in 
California, Oregon, and Washington for listed West coast salmon and 
steelhead and are consistent with ESA requirements for research-related 
take of these listed species. The Southern DPS would most likely be 
incorporated into the existing state 4(d) research programs established 
for listed salmon and steelhead. Otherwise, the state would be required 
to prepare a program and submit it to NMFS for approval. NMFS may 
approve the program or return the program to the state agency for 
revision.
    In general, we conclude that as long as state biologists and 
cooperating agencies carefully consider the benefits and risks of 
activities included in a state 4(d) research program, such programs 
would help streamline the take authorization process for researchers, 
state agencies, and NMFS by allowing state fishery agencies to maintain 
primary responsibility for coordination and oversight of research 
activities. Each year, researchers would be required to submit research 
applications to the state fishery agency preferably through the NMFS 
online application website Authorizations and Permits for Protected 
Species (APPS) at https://apps.nmfs.noaa.gov. Research applications 
must include, at a minimum, the following information: (1) an estimate 
of the total direct or incidental take of Southern DPS fish that is 
anticipated; (2) a description of the study design and methodology; (3) 
a justification for take of Southern DPS fish and the techniques to be 
employed; and (4) a point of contact. The state agency would have 
access, via NMFS, to the submitted applications, evaluate and determine 
which projects are eligible for inclusion under the program, and 
approve or deny individual project applications. Once the state agency

[[Page 23831]]

review is complete, the state agency would be required to provide for 
NMFS' review and approval a list of project applications approved for 
possible inclusion in a 4(d) research program for the coming year. 
After our review of the applications and follow-ups with the 
researchers to address concerns if necessary, we would analyze effects 
of the activities on the Southern DPS. Finally, we would complete the 
ESA section 7 consultation and NEPA documentation and issue an approval 
letter to the state fishery agency confirming that the research 
activities covered within the 4(d) research program are exempt from the 
ESA take prohibitions. A section 10 permit is not issued. Researchers 
have to comply with the conditions of the 4(d) research program and 
must submit an annual report, preferably through the NMFS online 
application website Authorizations and Permits for Protected Species 
(APPS) at https://apps.nmfs.noaa.gov. The annual report must include, 
for each project: (1) a summary of the number of green sturgeon taken 
directly or incidentally; and (2) a summary of the results of the 
project, in order for NMFS to evaluate the effects of the research 
project on the Southern DPS. We would continue to work with the state 
fishery agencies to ensure authorized research involving listed 
Southern DPS fish is both coordinated and conducted in a manner that 
does not jeopardize the conservation and recovery of the Southern DPS.
    Section 9(a)(1)(B) and 9(a)(1)(C) take prohibitions would not apply 
to ongoing state-supported scientific research and enhancement 
activities seeking take authorization of the Southern DPS fish through 
a state 4(d) program, if the above information is provided to NMFS, 
preferably through the NMFS online application website Authorizations 
and Permits for Protected Species (APPS) at https://apps.nmfs.noaa.gov 
, within 120 days after publication of the final 4(d) rule. The take 
prohibitions would take effect if the state 4(d) program package is 
rejected as insufficient or is denied. If the state 4(d) research 
program package is received no later than 120 days after publication of 
the final 4(d) rule, ongoing state-supported scientific research 
activities may continue until NMFS issues a written decision of 
approval or denial.

Take Authorizations Provided By ESA Sections 7 or 10

    Federally funded, authorized, or implemented activities that may 
require take authorization (see Proposed 4(d) Protective Regulations 
for the Southern DPS), and are not covered under Exceptions, Criteria 
for Exceptions, and Reporting Requirements or Exemptions Provided by 
NMFS-approved 4(d) Programs above, will be examined on a case-by-case 
basis through interagency consultation as prescribed by ESA section 7. 
All other activities (i.e., those not federally funded, authorized, or 
implemented) that may require take authorization, and are not covered 
under Exceptions, Criteria for Exceptions, and Reporting Requirements 
or Exemptions Provided by NMFS-approved 4(d) Programs above, will be 
examined on a case-by case basis as prescribed by ESA section 10.
    Federal, state and private-sponsored research activities for 
scientific research or enhancement purposes that are not covered under 
Exceptions, Criteria for Exceptions, and Reporting Requirements or 
Exemptions Provided by NMFS-approved 4(d) Programs above, may take 
Southern DPS fish pursuant to the specifications of an ESA section 10 
permit. Section 9(a)(1)(B) and (a)(1)(C) take prohibitions would not 
apply to ongoing research activities if an application for an ESA 
section 10 (a)(1)(A) permit is received by NMFS no later than 120 days 
after publication of the final 4(d) rule. The take prohibitions would 
take effect if the permit application is rejected as insufficient or a 
permit is denied. If the permit application is received no later than 
120 days after publication of the final 4(d) rule, ongoing research 
activities may continue without take prohibitions until NMFS issues or 
denies a permit.

    Table 1. Evaluation of activities that may occur throughout the area affected by the proposed prohibitions for Southern DPS fish, eggs or larvae.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                    Methods of Take
                                                                           Take of         Protective/                               Authorization
                         Activity                             Take        Surrogate       Conser-vation   Take Authorization ---------------------------
                                                                           Species         Measures or         Necessary       ESA section
                                                                                            Benefits                             7 or 10    4(d) Program
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fishing
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Commercial                                                Y           ...............  Y                 Y                   Y             Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Recreational                                              Y           ...............  Y                 Y                   Y             Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Tribal                                                    Y           ...............  Y                 Y                   Y             Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
Poaching                                                   N           Y                N                 N/A                 N             N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Collection or Handling
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Research/monitoring
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Federal, State or Private-sponsored (compliant with       Y           ...............  Y                 N                   ............  ............
 Exceptions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 State-sponsored (outside scope of Exceptions)             Y           ...............  Y                 Y                   Y             Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Federal or Private-sponsored (outside scope of            Y           ...............  Y                 Y                   Y             N
 Exceptions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Emergency Rescue (compliant with Exceptions)              N           Y                Y                 N                   ............  ............
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 23832]]

 
 Emergency Rescue (outside scope of Exceptions)            N           Y                N                 Y                   Y             N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Detrimental Habitat-Altering Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Activities that Eliminate, Obstruct, or Delay Passage
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Dam installation, repair, modification, operation         Y           ...............  Y                 Y                   Y             N
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Diversion installation, repair, modification, operation   Y           ...............  Y                 Y                   Y             N
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Activities that Destroy, Modify, or Curtail Spawning or Rearing Habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Input of fine sediments/runoff                            N           Y                Y                 Y                   Y             N
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Dam installation, repair, modification, operation         Y           ...............  Y                 Y                   Y             N
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Diversion installation, repair, modification, operation   Y           ...............  Y                 Y                   Y             N
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Filling/isolation of channels/intermittent waters         N           N                Y                 Y                   Y             N
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Removal/alteration of physical structure that provides    N           N                Y                 Y                   Y             N
 spawning/rearing habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
Habitat Restoration (compliant with Exceptions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Barrier removal/modification to restore flows             N           N                Y                 N                   ............  ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Riverine or estuarine bed restoration                     N           N                Y                 N                   ............  ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Natural bank protection                                   N           N                Y                 N                   ............  ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Restoration of native vegetation                          N           N                Y                 N                   ............  ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Removal of non-native species                             N           N                Y                 N                   ............  ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Removal of contaminated sediments                         N           N                Y                 N                   ............  ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Habitat Restoration (outside scope of Exceptions)          N           N                N                 Y                   Y             N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Entrainment/Impingement
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Water diversions                                          Y           ...............  Y                 Y                   Y             N
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Power generating projects                                 Y           ...............  Y                 Y                   Y             N
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Dredging                                                  N           Y                Y                 Y                   Y             N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pesticide/Pollutant Discharge                              N           Y                Y                 Y                   Y             N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-native Species Introductions                           N           Y                Y                 N/A                 N             N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Evidence of take of the Southern DPS during the course of an activity is indicated (yes or no; Y or N); if there is no such evidence, then
  evidence of take of a surrogate species is indicated (Y or N). Existence of protective/conservation measures to minimize take of Southern DPS fish
  during the course of the activity or to benefit the Southern DPS is indicated (Y or N). Based on best available information and expert opinion,
  whether an activity requires take authorization (Y or N) or is illegal according to other laws and therefore cannot be authorized (N/A), and whether
  methods for allowing take resulting from a particular activity exist through ESA sections 7 or 10 or through a proposed ESA section 4(d) Program (Y or
  N). This is not an exhaustive list of all activities that occur throughout the area affected by the proposed take prohibitions. Please see Proposed
  4(d) Protective Regulations for the Southern DPS for the full range of activities for which NMFS is proposing to prohibit take.

    Under section 9(b)(1) of the ESA, Southern DPS fish held in 
captivity or a controlled environment prior to the ESA listing are 
exempt from the prohibitions of section 9(a)(1)(A) and (a)(1)(G) of the 
ESA and would therefore also be exempt from the prohibitions of this 
proposed regulation, provided that holding and any subsequent holding 
or use of the fish is not for commercial activity. The burden of proof 
that Southern DPS fish were taken prior to listing lies with the 
individual holding the animals. The prohibitions of this proposed 
regulation would, however, apply to any progeny of Southern DPS fish 
taken prior to listing.

Summary

    We propose to apply the section 9 take prohibitions to the Southern 
DPS,

[[Page 23833]]

while providing exceptions for some activities (i.e., some types of 
research/monitoring, enforcement, emergency rescue/salvage, and habitat 
restoration; see Exceptions, Criteria for Exceptions, and Reporting 
Requirements) that NMFS finds will not impede, and in most cases will 
promote, the conservation of the species. However, if the activity is 
federally funded, authorized or implemented it will still be subject to 
NMFS review under the ESA jeopardy standard (i.e. ESA section 7(a)(2)). 
Apart from the subset of activities defined in Exceptions, Criteria for 
Exceptions, and Reporting Requirements above, if the Southern DPS is 
anticipated to be taken during the course of an activity, several 
methods may be pursued to obtain take authorization depending on the 
specific circumstances of the activity. For federally funded, 
authorized or implemented activities, the traditional method of seeking 
take coverage through ESA sections 7 or 10 exists. For activities that 
are not federally funded, authorized or implemented, take authorization 
may be obtained through ESA section 10, by establishing a NMFS-approved 
4(d) program (i.e., for commercial or recreational fishing activities 
or state-sponsored research outside the scope of those activities 
defined in Exceptions, Criteria for Exceptions, and Reporting 
Requirements) that adequately protects the Southern DPS, or by 
developing a tribal resource management plan that will not appreciably 
reduce the likelihood of survival and recovery of the Southern DPS (see 
Exemptions Provided by NMFS-approved ESA 4(d) Programs). Take of the 
Southern DPS due to poaching and non-native species introductions is 
illegal according to existing state and/or federal laws, thus no method 
of take authorization is being proposed for these activities.

Public Comments Solicited

    We invite comments and suggestions from all interested parties 
regarding the proposed protective regulations for the Southern DPS 
under section 4(d) of the ESA (see ADDRESSES). Data, information, and 
comments that are accompanied by supporting documentation such as maps, 
logbooks, bibliographic references, personal notes, and/or reprints of 
pertinent publications are helpful and appreciated.

Public Hearing

    The ESA provides for a pubic hearing on this proposal, if 
requested. Requests must be filed by the date specified in the DATES 
section above. Such requests must be made in writing and addressed to 
the Chief, Protected Resources Division, Attn: Melissa Neuman, 
Southwest Region, National Marine Fisheries Service, 501 West Ocean 
Blvd., Suite 4200, Long Beach, CA 90802-4213.

Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review (Peer Review 
Bulletin) establishing minimum peer review standards, a transparent 
process for public disclosure, and opportunities for public input. The 
Peer Review Bulletin, implemented under the Information Quality Act 
(Public Law 106 554), is intended to provide public oversight on the 
quality of agency information, analyses, and regulatory activities. The 
text of the Peer Review Bulletin was published in the Federal Register 
on January 14, 2005 (70 FR 2664). The Peer Review Bulletin requires 
Federal agencies to subject ``influential'' scientific information to 
peer review prior to public dissemination. Influential scientific 
information is defined as ``information the agency reasonably can 
determine will have or does have a clear and substantial impact on 
important public policies or private sector decisions,'' and the Peer 
Review Bulletin provides agencies broad discretion in determining the 
appropriate process and level of peer review. The Peer Review Bulletin 
establishes stricter standards for the peer review of ``highly 
influential'' scientific assessments, defined as information whose 
``dissemination could have a potential impact of more than $500 million 
in any one year on either the public or private sector or that the 
dissemination is novel, controversial, or precedent-setting, or has 
significant interagency interest.'' We do not consider the scientific 
information underlying the proposed protective regulations to 
constitute influential scientific information as defined in the Peer 
Review Bulletin. The information is not novel; similar information for 
listed salmonids whose range substantially overlaps with that of the 
Southern DPS has been used in support of protective regulations that 
have been in existence for a number of years. Therefore the agency 
expects the information to be non-controversial and have minimal 
impacts on important public policies or private sector decisions.

References

    A complete list of the references used in this proposed rule is 
available upon request (see ADDRESSES) or via the internet at http://www.swr.noaa.gov.

Classification

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601B612) was 
designed to ensure that agencies carefully assess whether aspects of a 
proposed regulatory scheme (record keeping, safety requirements, etc.) 
can be tailored to be less burdensome for small businesses while still 
achieving the agency's statutory responsibilities. When an agency 
proposes regulations, the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601B612) requires the agency to prepare and make available for public 
comment an initial regulatory flexibility analysis (IRFA) that 
describes the impact of the proposed rule on small businesses, 
nonprofit enterprises, local governments, and other small entities, 
unless the agency is able to certify that the action will not have a 
significant impact on a substantial number of small entities. This 
proposed ESA 4(d) rule has specific requirements for regulatory 
compliance and sets an enforceable performance standard (do not take 
listed fish) when conducting specific activities unless that activity 
is within a carefully circumscribed set of activities on which NMFS 
proposes not to impose the take prohibitions. Hence, the universe of 
entities reasonably expected to be directly or indirectly impacted by 
the prohibition is broad.
    Based on the language of the proposed 4(d) rule, as well as a 
review of existing section 7 consultations for the Southern DPS of 
green sturgeon and co-existing salmon and steelhead species, the IRFA 
identified the following activities that may be affected by this 
proposed rule: commercial, recreational and tribal fisheries; dams and 
water diversions; power production (electric services and gas 
distribution); crop agriculture and point source polluters (NPDES-
permitted activities); habitat-altering activities; and in-water 
construction and dredging activities. A great deal of uncertainty 
exists with regard to how potentially regulated entities will attempt 
to avoid take of the Southern DPS. This is caused by two factors: 
relatively little data exist on green sturgeon abundance and behavior, 
and NMFS has a short history of managing the Southern DPS. In addition, 
the spatial distribution of the Southern DPS overlaps nearly entirely 
with habitat for salmon and steelhead species. Several key variables, 
such as whether current fish passage facilities and fish screens 
designed to protect salmon species will be considered adequate to 
provide

[[Page 23834]]

passage for the Southern DPS over the long term, remain undetermined at 
this time. Thus, while baseline protections are expected to be afforded 
to the Southern DPS on behalf of salmon and steelhead species, the 
degree to which incremental measures would be required for the Southern 
DPS has not been determined. As such, the IRFA does not provide 
estimates of total costs of conservation measures likely to be 
undertaken for the Southern DPS. Instead, the analysis characterizes 
potential impacts on affected industries.
    In formulating this proposed rule, we considered five alternative 
approaches, described in more detail in the IRFA. These are: (1) a No 
Action Alternative where no ESA section 9(a)(1) prohibitions or any 
other protective regulations are applied to the Southern DPS; (2) a 
Full Action Alternative where all ESA section 9(a)(1) prohibitions are 
applied to the Southern DPS; (3) Alternative A where the prohibitions 
listed under ESA section 9(a)(1)(A) and 9(a)(1)(D) through 9(a)(1)(G) 
are applied to the Southern DPS and the take prohibitions (ESA section 
9(a)(1)(B) and 9(a)(1)(C)) are applied to specific categories of 
activities that either cause take of Southern DPS fish; (4) Alternative 
B (Proposed Action) where ESA section 9(a)(1) prohibitions are applied 
to the Southern DPS as in the Full Action Alternative, but with 
exceptions and exemptions for activities that NMFS has determined to be 
adequately protective of the Southern DPS; and (5) Alternative C where 
the ESA section 9(a)(1) prohibitions are applied as described in 
Alternative A, but with exceptions from the take prohibitions (ESA 
section 9(a)(1)(B) and 9(a)(1)(C)) for activities that NMFS has 
determined to be adequately protective of the Southern DPS.
    The comparative analysis of the alternatives is described in more 
detail in the IRFA. In summary, the Full Action Alternative and 
Alternative B (Proposed Action) are anticipated to affect the largest 
number of industries, but the impacts Alternative B will have on those 
industries is expected to be less severe because certain activities may 
be allowed to continue (e.g., some habitat restoration, emergency 
rescue, and research/monitoring activities) under this alternative. 
Alternatives A and C are anticipated to affect a smaller number of 
industries than the Full Action Alternative and Alternative B. For 
reasons similar to those explained above, Alternative C is expected to 
have a less severe impact on the affected industries than Alternative 
A. The No Action Alternative will have no effect on industries. We 
invite comments on the alternative contained in this proposed rule and 
on whether there is a preferable alternative (including alternatives 
not described here) that would meet the statutory requirements of ESA 
section 4(d). We also solicit information regarding the impact that 
alternative would have on your economic activity and why the 
alternative is preferable.

Executive Order (E.O.) 12866 - Regulatory Planning and Review

    The proposed ESA section 4(d) regulations addressed in this rule 
have been determined to be not significant for the purposes of E.O. 
12866. Section 1(b)(12) of E.O. 12866 also requires each agency to 
write regulations that are easy to understand. We invite your comments 
(see ADDRESSES) on how to make this proposed rule easier to understand, 
including answers to questions such as the following: (1) Are the 
requirements in the rule clearly stated? (2) Does the rule contain 
technical language or jargon that interferes with its clarity? (3) Does 
the format of the rule (grouping and order of sections, use of 
headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the 
rule be easier to understand if it were divided into more (but shorter) 
sections? (5) Is the description of the rule in the SUPPLEMENTARY 
INFORMATION section of the preamble helpful in understanding the rule? 
(6) What else could NMFS do to make the rule easier to understand?

E.O. 12988 - Civil Justice Reform

    We have determined that this proposed rule does not unduly burden 
the judicial system and meets the requirements of sections 3(a) and 
3(b)(2) of E.O. 12988. We are proposing protective regulations pursuant 
to provisions in the ESA using an existing approach that improves the 
clarity of the regulations and minimizes the regulatory burden of 
managing ESA listings while retaining the necessary and advisable 
protections to provide for the conservation of threatened species.

E.O. 13175 - Consultation and Coordination With Indian Tribal 
Governments

    E.O. 13175 requires that if NMFS issues a regulation that 
significantly or uniquely affects the communities of Indian tribal 
governments and imposes substantial direct compliance costs on those 
communities, NMFS must consult with those governments, or the Federal 
Government must provide the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. This proposed rule 
may impose substantial direct compliance costs on the communities of 
Indian tribal governments within the range of this DPS. Accordingly, 
the requirements of section 5(b) and (c) of E.O. 13175 may apply to 
this proposed rule. Thus, we intend to inform potentially affected 
tribal governments and to solicit their input on the proposed rule and 
will continue coordination and discussions with interested tribes as 
NMFS moves toward a final rule.

E.O. 13132 - Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
consultation directives for situations where a regulation will preempt 
state law, or impose substantial direct compliance costs on state and 
local governments (unless required by statute). Neither of those 
circumstances is applicable to this proposed rule. In fact, this notice 
proposes mechanisms by which NMFS, in the form of 4(d) exceptions to 
take prohibitions, may defer to state and local governments where they 
provide necessary protections for the Southern DPS.

Paperwork Reduction Act

    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    This proposed rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA) and which have been 
submitted to OMB for review and approval. Public reporting burden per 
response for this collection of information is estimated to average: 
(1) 40 hours for development of a Fisheries Management and Evaluation 
Plan; (2) 20 hours for development of a Tribal Fishery Management Plan; 
(3) 40 hours for development of a State-sponsored scientific research 
program; (4) 5 hours to prepare reports on emergency rescue, salvage or 
disposal of Southern DPS fish; (5) 40 hours to prepare reports on 
restoration activities; and (6) 40 hours to prepare reports on federal 
and private-sponsored research and monitoring. These estimates include 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. We invite comments regarding these 
burden estimates, or any other aspect of this data collection, 
including suggestions for reducing the burden, to

[[Page 23835]]

NMFS (see ADDRESSES) and to OMB at the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC. 
20503 (Attention: NOAA Desk Officer).

National Environmental Policy Act (NEPA)

    Whenever a species is listed as threatened, the ESA requires that 
we shall issue such regulations as we deem necessary and advisable to 
provide for its conservation. Accordingly, the promulgation of ESA 
section 4(d) protective regulations is subject to the requirements of 
NEPA, and we have prepared a draft Environmental Assessment (EA) 
analyzing the proposed 4(d) regulations and alternatives. We are 
seeking comment on the draft EA, which is available on the Federal 
eRulemaking Portal web site (http://www.regulations.gov) or upon 
request (see DATES and ADDRESSES, above).

E.O. 13211 - Energy Supply, Distribution, or Use

    E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. According to E.O. 13211, 
Asignificant energy action'' means any action by an agency that is 
expected to lead to the promulgation of a final rule or regulation that 
is a significant regulatory action under E.O. 12866 and is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. NMFS has determined that the energy effects are unlikely to 
exceed the energy impact thresholds identified in E.O. 13211 because 
this proposed rule is not significant under E.O. 12866, and the spatial 
scope of this proposed rule overlaps with areas where protections for 
listed salmon are in effect. It is likely that the modifications 
required for salmon are similar enough to those that would be required 
for the Southern DPS such that the proposed action is not a significant 
energy action, and no Statement of Energy Effects is required.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: May 14, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 223 is 
proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 continues to read as 
follows:

    Authority: 16 U.S.C. 1531 1543; subpart B, Sec.  223.201 202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).

    2. In subpart B of part 223, add Sec.  223.210 to read as follows:


Sec.  223.210  North American green sturgeon.

    (a) Prohibitions. The prohibitions of section 9(a)(1)(A) through 
9(a)(1)(G) of the ESA (16 U.S.C. 1538) relating to endangered species 
apply to the threatened Southern Distinct Population Segment (DPS) of 
North American green sturgeon listed in Sec.  223.102(c)(1).
    (b) Exceptions. Exceptions to the take prohibitions described in 
section 9(a)(1)(B) and (C) of the ESA (16 U.S.C. 1538(a)(1)(B) and (C)) 
applied in paragraph (a) of this section to the threatened Southern DPS 
listed in Sec.  223.102(c) are described in paragraphs (b)(1) through 
(b)(3) of this section.
    (1) Scientific research and monitoring exceptions. The prohibitions 
of paragraph (a) of this section relating to the threatened Southern 
DPS listed in Sec.  223.102(c)(1) do not apply to ongoing or future 
Federal, state, or private-sponsored scientific research or monitoring 
activities if:
    (i) The scientific research or monitoring activity complies with 
required state reviews or permits.
    (ii) The research or monitoring activity is directed at the 
Southern DPS and is not incidental to research or monitoring of another 
species.
    (iii) Take of live mature adults in the lower Feather River from 
the confluence with the Sacramento River to the Oroville Dam (rkm 116), 
the lower Yuba River from the confluence with the Feather River to the 
Daguerre Dam (rkm 19), or Suisun, San Pablo, and San Francisco Bays or 
the Sacramento-San Joaquin Delta from the Golden Gate Bridge up into 
the Sacramento River to Keswick Dam (rkm 483) occurs from July 1 
through March 1 so as to substantially increase the likelihood that 
uninterrupted upstream spawning migrations of adults will occur.
    (iv) Take is non-lethal.
    (v) Take involving the removal of any life stage of the Southern 
DPS from the wild does not exceed 60 minutes.
    (vi) Take does not involve artificial spawning or enhancement 
activities.
    (vii) A description of the study objectives and justification, a 
summary of the study design and methodology, estimates of the total 
non-lethal take of Southern DPS fish anticipated, estimates of 
incidental take of other ESA listed species anticipated and proof that 
those takes have been authorized by NMFS or the USFWS, identification 
of funding sources, and a point of contact is reported to the NMFS 
Southwest Regional Office in Long Beach at least 60 days prior to the 
start of the study, or within 60 days after publication of the final 
rule for ongoing studies.
    (viii) Reports that include the total number of Southern DPS and 
any other ESA listed species taken, information that supports that take 
was non-lethal, and a summary of the project results is submitted to 
the NMFS Southwest Regional Office in Long Beach on a schedule to be 
determined by NMFS.
    (ix) Research or monitoring that involves action, permitting or 
funding by a Federal agency still complies with the requirements of ESA 
section 7(a)(2) in order to ensure that the action will not jeopardize 
the continued existence of the threatened Southern DPS.
    (2) Enforcement exception. The prohibitions of paragraph (a) of 
this section relating to the threatened Southern DPS listed in Sec.  
223.102(c)(1) do not apply to any employee of NMFS, when the employee, 
acting in the course of his or her official duties, takes the Southern 
DPS listed in Sec.  223.102(c)(1) without a permit, if such action is 
necessary for purposes of enforcing the ESA or its implementing 
regulations.
    (3) Emergency fish rescue and salvage exceptions. The prohibitions 
of paragraph (a) of this section relating to the threatened Southern 
DPS listed in Sec.  223.102(c)(1) do not apply to emergency fish rescue 
and salvage activities that include aiding sick, injured, or stranded 
fish, disposing of dead fish, or salvaging dead fish for use in 
scientific studies, if:
    (i) The activity complies with required state or other Federal 
reviews or permits.
    (ii) The activity is conducted by an employee or designee of NMFS 
or the U.S. Fish and Wildlife Service (USFWS), any Federal land 
management agency, or California Department of Fish and Game, Oregon 
Department of Fish and Wildlife, Washington Department of Fish and 
Wildlife, or Alaska Department of Fish and Game.
    (iii) The activity occurs only because of emergency situations that 
result from natural disasters, national defense, or security 
emergencies (see Sec.  402.05 of this title).
    (iv) The activity benefits the Southern DPS.
    (v) Those carrying out the activity submit a report to the NMFS 
Southwest Regional Office in Long Beach that includes, at a minimum, 
the number

[[Page 23836]]

and status of fish handled and the location of rescue and/or salvage 
operations within 30 days after conducting the emergency rescue.
    (4) Habitat restoration exceptions. The prohibitions of paragraph 
(a) of this section relating to the threatened Southern DPS listed in 
Sec.  223.102(c)(1) do not apply to habitat restoration activities 
including barrier removal or modification to restore water flows, 
riverine or estuarine bed restoration, natural bank stabilization, 
restoration of native vegetation, removal of non-native species, or 
removal of contaminated sediments, that reestablish self-sustaining 
habitats for the Southern DPS, if:
    (i) The activity complies with required state and Federal reviews 
and permits.
    (ii) Those carrying out the activity submit a detailed description 
of the restoration activity to the NMFS Southwest Regional Office in 
Long Beach at least 60 days prior to the start of the restoration 
project which includes: the geographic area affected; when activities 
will occur; how they will be conducted; and the severity of direct; 
indirect, and cumulative impacts of activities on the Southern DPS; 
identification of funding sources; demonstration that all state and 
federal regulatory requirements have been met; a description of methods 
used to ensure that the likelihood of survival or recovery of the 
listed species is not reduced; a plan for minimizing and mitigating any 
adverse impacts to Southern DPS spawning or rearing habitat; an 
estimate of the amount of incidental take of the listed species that 
may occur and a description of how that estimate was made; a plan for 
effective monitoring and adaptive management; a pledge to use best 
available science and technology when conducting restoration 
activities; and a point of contact.
    (iii) Those carrying out the activity submit progress reports that 
include the total number of Southern DPS taken, information regarding 
whether the take was lethal or non-lethal, a summary of the status of 
the project, and any changes in the methods being employed, to the NMFS 
Southwest Regional Office in Long Beach on a schedule to be determined 
by NMFS.
    (iv) An activity that involves action, permitting or funding by a 
federal agency complies with the requirements of ESA section 7(a)(2) in 
order to ensure that the action will not jeopardize the continued 
existence of the threatened Southern DPS.
    (c) Exemptions via ESA 4(d) program approval. Exemptions from the 
take prohibitions described in section 9(a)(1)(B) and (C) of the ESA 
(16 U.S.C. 1538(a)(1)(B) and (C)) applied in paragraph (a) of this 
section to the threatened Southern DPS listed in Sec.  223.102(c) are 
described in paragraphs (c)(1) through (c)(3) of this section.
    (1) Scientific research and monitoring exemptions. The prohibitions 
of paragraph (a) of this section relating to the threatened Southern 
DPS listed in Sec.  223.102(c)(1) do not apply to ongoing or future 
state-sponsored scientific research or monitoring activities that are 
part of a NMFS-approved, ESA-compliant state 4(d) research program 
conducted by, or in coordination with, state fishery management 
agencies (California Department of Fish and Game , Oregon Department of 
Fish and Wildlife, Washington Department of Fish and Wildlife , or 
Alaska Department of Fish and Game ), or as part of a monitoring and 
research program overseen by, or coordinated by, one of these agencies. 
State 4(d) research programs must meet the following criteria:
    (i) Descriptions of the ongoing and future 4(d) research or 
monitoring activity, as described in paragraph (c)(1)(ii) of this 
section, must be received by the NMFS Southwest Regional Office in Long 
Beach within 120 days after publication of the final 4(d) rule. This 
exception to the section 9 take prohibitions expires if the proposal is 
rejected as insufficient or is denied.
    (ii) Descriptions of ongoing and future state-supported research 
activities must include the following information and should be 
submitted to NMFS by the State: an estimate of total direct or 
incidental take; a description of the study design and methodology; a 
justification for take and the techniques employed; and a point of 
contact.
    (iii) NMFS will provide written approval of a state 4(d) research 
program.
    (iv) The State agency will provide an annual report to NMFS that, 
at a minimum, summarizes the number of Southern DPS green sturgeon 
taken directly or incidentally, and summarizes the results of the 
project.
    (2) Fisheries exemptions. The prohibitions of paragraph (a) of this 
section relating to the threatened Southern DPS listed in Sec.  
223.102(c)(1) do not apply to fisheries activities that are conducted 
in accordance with a NMFS-approved Fishery Management and Evaluation 
Plan (FMEP). If NMFS finds that an FMEP meets the criteria listed 
below, a letter of concurrence which sets forth the terms of the FMEP's 
implementation and the duties of the parties pursuant to the FMEP, will 
be issued to the state.
    (i) An FMEP must prohibit retention of green sturgeon (i.e. zero 
bag limit); set maximum incidental take levels, include restrictions to 
minimize incidental take of the green sturgeon (e.g., temporal/spatial 
restrictions, size of fish, gear used); provide a biologically based 
rationale demonstrating that the incidental take management strategy 
will not significantly reduce the likelihood of survival or recovery; 
include effective monitoring and evaluation plans; provide for 
evaluating monitoring data and making revisions to the FMEP; provide 
for effective enforcement and education; and report the amount of 
incidental take and summarize the effectiveness of the FMEP to NMFS on 
a biannual basis.
    (ii) The ESA section 9(a)(1)(B) and (a)(1)(C) take prohibitions 
will not apply to ongoing commercial and recreational fisheries 
activities after publication of the final rule, for up to 120 days, if 
a letter of intent to develop an FMEP that is protective of green 
sturgeon has been received by NMFS within 30 days after the final rule 
is published in the Federal Register. The exemption will expire if the 
letter of intent is rejected without further review of a FMEP. If the 
letter of intent is received within 30 days of publication of the final 
4(d) rule in the Federal Register, a final FMEP must be received by 
NMFS within 120 days from the date of receipt of the letter of intent. 
Ongoing commercial and recreational fisheries activities may continue 
until NMFS issues a letter of concurrence or denial for final FMEPs.
    (iii) NMFS' will provide a public comment period ([gteqt] 30 days) 
before approval of new or amended FMEPs; provide a letter of 
concurrence for approved FMEPs that specifies the implementation and 
reporting requirements; evaluate FMEPs on a regular basis and identify 
changes that would improve their effectiveness; and provide a public 
comment period ([gteqt] 30 days) before withdrawing approval of an 
FMEP.
    (3) Tribal exemptions. The prohibitions of paragraph (a) of this 
section relating to the threatened Southern DPS listed in Sec.  
223.102(c)(1) do not apply to fishery harvest or other activities, 
undertaken by a tribe, tribal member, tribal permittee, tribal 
employee, or tribal agent in Willapa Bay, WA, Grays Harbor, WA, Coos 
Bay, OR, Winchester Bay, OR, Humboldt Bay, CA, and any other area where 
tribal treaty fishing occurs, if those activities are compliant with a 
tribal resource management plan (Tribal Plan), provided that the 
Secretary determines

[[Page 23837]]

that implementation of such Tribal Plan will not appreciably reduce the 
likelihood of survival and recovery of the Southern DPS. In making that 
determination the Secretary shall use the best available biological 
data (including any tribal data and analysis) to determine the Tribal 
Plan's impact on the biological requirements of the species, and will 
assess the effect of the Tribal Plan on survival and recovery, 
consistent with legally enforceable tribal rights and with the 
Secretary's trust responsibilities to tribes.
    (i) A Tribal Plan may include, but is not limited to, plans that 
address fishery harvest, artificial production, research, or water or 
land management, and may be developed by one tribe or jointly with 
other tribes. The Secretary will consult on a government-to-government 
basis with any tribe that so requests and will provide, to the maximum 
extent practicable, technical assistance in examining impacts on the 
Southern DPS as tribes develop Tribal Plans. A Tribal Plan must specify 
the procedures by which the tribe will enforce its provisions.
    (ii) Where there exists a Federal court proceeding with continuing 
jurisdiction over the subject matter of a Tribal Plan, the plan may be 
developed and implemented within the ongoing Federal Court proceeding. 
In such circumstances, compliance with the Tribal Plan's terms shall be 
determined within that Federal Court proceeding.
    (iii) The Secretary shall seek comment from the public on the 
Secretary's pending determination whether or not implementation of a 
Tribal Plan will appreciably reduce the likelihood of survival and 
recovery of the listed Southern DPS.
    (iv) The Secretary shall publish notification in the Federal 
Register of any determination regarding a Tribal Plan and the basis for 
that determination.
    (d) Affirmative defense. In connection with any action alleging a 
violation of the prohibitions of paragraph (a) of this section with 
respect to the threatened Southern DPS of North American green sturgeon 
listed in Sec.  223.102(c)(1), any person claiming that their take is 
authorized via methods listed in paragraph (b) of this section shall 
have a defense where the person can demonstrate that the take 
authorization is applicable and was in force, and that the person fully 
complied with the take authorization requirements at the time of the 
alleged violation. This defense is an affirmative defense that must be 
raised, pleaded, and proven by the proponent. If proven, this defense 
will be an absolute defense to liability under section 9(a)(1)(G) of 
the ESA with respect to the alleged violation.
[FR Doc. E9-11945 Filed 5-20-09; 8:45 am]
BILLING CODE 3510-22-S