[Federal Register Volume 75, Number 3 (Wednesday, January 6, 2010)]
[Proposed Rules]
[Pages 838-841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31373]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR 223 and 224

[Docket No. 0912231440-91443-01]
RIN 0648-XT28


Endangered and Threatened Wildlife; Notice of 90-Day Finding on a 
Petition to List Atlantic Sturgeon as Threatened or Endangered under 
the Endangered Species Act (ESA)

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

ACTION:  90-day petition finding; request for information.

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SUMMARY:  We (NMFS) announce a 90-day finding on a petition to list 
Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus) as endangered, or 
to list multiple distinct population segments (DPSs) as threatened or 
endangered and designate critical habitat under the ESA. We find that 
the petition presents substantial scientific or commercial information 
indicating that the petitioned actions may be warranted. A status 
review for Atlantic sturgeon was completed in February 2007, and we are 
currently preparing a determination on whether listing the species or 
DPSs of the species as threatened or endangered is warranted. To ensure 
that the determination considers information that is comprehensive and 
current, we solicit scientific and commercial information regarding 
this species.

DATES:  Information and comments must be submitted to NMFS by February 
5, 2010.

ADDRESSES: You may submit comments, information, or data, identified by 
the Regulation Identifier Number (RIN), 0648 XT28, by any of the 
following methods:
    Electronic Submissions: Submit all electronic public comments via 
the Federal eRulemaking Portal: http://www.regulations.gov.
    Mail: Assistant Regional Administrator, Protected Resources 
Division, NMFS, Northeast Regional Office, 55 Great Republic Drive, 
Gloucester, MA 01930 (for Atlantic sturgeon populations occurring in 
the Northeast); or Assistant Regional Administrator, Protected 
Resources Division, NMFS, Southeast Regional Office, 263 13th Avenue 
South, St. Petersburg, FL 33701 (for Atlantic sturgeon populations 
occurring in the Southeast).
    Facsimile (fax): 978-281-9394 (for Atlantic sturgeon populations 
occurring in the Northeast); 727-824-5309 (for Atlantic sturgeon 
populations occurring in the Southeast).
    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. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    Interested persons may obtain a copy of this petition and the 2007 
status review from the above addresses or online from the NMFS website: 
http://www.nmfs.noaa.gov/pr/species/fish/atlanticsturgeon.htm#documents.

FOR FURTHER INFORMATION CONTACT:  Kimberly Damon-Randall or Lynn 
Lankshear, (978) 282-8485 and (978) 282-8473, NMFS Northeast Region; 
Kelly Shotts, NMFS Southeast Region, (727) 824-5312; or Lisa Manning, 
NMFS, Office of Protected Resources, (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    On October 6, 2009, we received a petition from the Natural 
Resources Defense Council (NRDC) to list Atlantic sturgeon as 
endangered under the ESA. As an alternative, the petitioner requested 
that the species be delineated and listed as the five DPSs described in 
the 2007 Status Review of Atlantic Sturgeon (SRT, 2007); i.e., Gulf of 
Maine, New York Bight, Chesapeake Bay, Carolina, and South Atlantic 
DPS, with the Gulf of Maine and South Atlantic DPSs listed as 
threatened, and the remaining three DPSs listed as endangered. The 
petitioner also requested that critical habitat be designated for 
Atlantic sturgeon under the ESA. The petition summarizes how the 
species has declined as a result of overfishing during the 19th century 
and has failed to recover in the time since a coast-wide fishing 
moratorium was put in place in 1998. The petition cites bycatch, 
degraded water quality, dams, dredging, and ship strikes as the most 
important factors contributing to the continued decline of this 
species. The petition also cites global warming as a factor that will 
become increasingly significant as a stressor on Atlantic sturgeon 
populations by exacerbating harmfully low dissolved oxygen (DO) 
concentrations (or hypoxic water conditions), to which Atlantic 
sturgeon are particularly sensitive. The petition summarizes the 
biology, status, and threats for Atlantic sturgeon and for each 
petitioned DPS.
    As described in the petition and in the 2007 status review (SRT, 
2007), the historic range of Atlantic sturgeon in the United States 
included approximately 38 rivers, from the St. Croix River in Maine to 
the Saint Johns River in Florida. Atlantic sturgeon were also 
historically present in approximately four river systems in Canada. The 
Gulf of Maine DPS includes the Penobscot, Saco and Merrimack Rivers, 
and the estuarial complex of the Kennebec, Androscoggin, and Sheepscot 
Rivers. The New York Bight DPS includes the Taunton, Connecticut, 
Hudson, and Delaware River systems. The

[[Page 839]]

Chesapeake Bay DPS includes the York, James, Rappahannock, Potomac, 
Susquehanna, and Nanticoke Rivers. The Carolina DPS includes the 
Roanoke River and Abermarle Sound; the Tar and Neuse Rivers and Pamlico 
Sound; the Cape Fear River; Winyah Bay and Waccamaw, Great Pee Dee, and 
Sampit Rivers; and the Santee and Cooper Rivers. The South Atlantic DPS 
includes the Ashepoo, Combahee, and Edisto (ACE) River basin; and the 
Savannah, Ogeechee, Altamaha, Satilla, St. Mary's, and Saint Johns 
Rivers.

ESA Statutory Provisions and Policy Considerations

    Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531 et 
seq.), requires, to the maximum extent practicable, that within 90 days 
of receipt of a petition to list a species as threatened or endangered, 
the Secretary of Commerce (Secretary) make a finding on whether that 
petition presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted. Joint ESA-
implementing regulations between NMFS and U.S. Fish and Wildlife 
Service (USFWS; 50 CFR 424.14) define ``substantial information'' as 
the amount of information that would lead a reasonable person to 
believe that the measure proposed in the petition may be warranted.
    In making a finding on a petition to list a species, the Secretary 
must consider whether the petition: (i) clearly indicates the 
administrative measure recommended and gives the scientific and any 
common name of the species involved; (ii) contains a detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species; (iii) provides 
information regarding the status of the species over all or a 
significant portion of its range; and (iv) is accompanied by the 
appropriate supporting documentation in the form of bibliographic 
references, reprints of pertinent publications, copies of reports or 
letters from authorities, and maps (50 CFR 424.14(b)(2)). Within 12 
months of receipt of the petition, we shall conclude the review with a 
finding as to whether the petitioned action is warranted.
    Under the ESA, a listing determination may address a species, 
subspecies, or a distinct population segment of any vertebrate species 
which interbreeds when mature (16 U.S.C. 1532(15)). In 1996, the USFWS 
and NMFS published the Policy on the Recognition of a Distinct 
Vertebrate Population Segments under the Endangered Species Act (61 FR 
4722; February 7, 1996). This policy identifies two criteria that must 
be considered in determining whether DPSs exist for a species: 
discreteness and significance. If both criteria are met, then the 
conservation status of the DPS is evaluated to determine if it is 
threatened or endangered.
    A species, subspecies, or DPS is ``endangered'' if it is in danger 
of extinction throughout all or a significant portion of its range, or 
``threatened'' if it is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its range 
(ESA sections 3(6) and 3(20), respectively).

Distribution and Life History of Atlantic Sturgeon

    Currently, Atlantic sturgeon presence is documented in 36 rivers in 
the United States and Canada, combined (SRT, 2007; J. Sulikowski, UNE, 
pers. comm.). At least 20 rivers are believed to support spawning based 
on available evidence (i.e., presence of young-of-year or gravid 
Atlantic sturgeon documented within the past 15 years; SRT, 2007). 
These rivers include the Saint Lawrence, QB; Annapolis, NS; Saint John, 
NB; Kennebec, ME; Hudson, NY; Delaware, NJ/DE/PA; James, VA; Roanoke, 
NC; Tar-Pamlico, NC; Cape Fear, NC; Waccamaw, SC; Great PeeDee, SC; 
Santee, SC; Cooper, SC; Combahee, SC; Edisto, SC; Savannah, SC/GA; 
Ogeechee, GA; Altamaha, GA; and, the Satilla, GA (SRT, 2007). Rivers 
with possible, but unconfirmed, spawning include the St Croix, NB/ME; 
Penobscot, Androscoggin, and Sheepscot, ME, York, VA; and, Neuse, NC 
(SRT, 2007).
    Comprehensive information on current abundance of Atlantic sturgeon 
is lacking for any of the spawning rivers (SRT, 2007). In the United 
States, an estimate of 870 spawning adults per year is available for 
the Hudson River (Kahnle et al., 2007). However, the estimate is based 
on data collected from 1985-1995 and may underestimate current 
conditions (Kahnle et al., 2007). An estimate of 343 spawning adults 
per year is available for the Altamaha River, GA, based on data 
collected in 2004-2005 (Schueller and Peterson, 2006). Data collected 
from the Hudson River and Altamaha River studies cannot be used to 
estimate the total number of adults in either population since mature 
Atlantic sturgeon may not spawn every year (Vladykov and Greeley, 1963; 
Smith, 1985; Van Eenennaam et al., 1996; Stevenson and Secor, 1999; 
Collins et al., 2000; Caron et al., 2002), and it is unclear to what 
extent mature fish in a non-spawning condition occur on the spawning 
grounds. Nevertheless, since the Hudson and Altamaha rivers are 
presumed to have the healthiest Atlantic sturgeon populations within 
the U.S., other U.S. populations are predicted to have fewer spawning 
adults than either the Hudson or the Altamaha (SRT, 2007).
    It is clear that Atlantic sturgeon underwent significant range-wide 
declines from historical abundance levels due to overfishing (reviewed 
in Smith and Clugston, 1997). In 1870, a significant fishery for the 
species developed when a caviar market was established. Record landings 
were reported in 1890, when over 3,350 metric tons (mt) of Atlantic 
sturgeon were landed from coastal rivers along the Atlantic Coast 
(reviewed in Smith and Clugston, 1997; Secor and Waldman, 1999). The 
fishery collapsed in 1901, ten years after peak landings, when less 
than 10% (295 mt) of its 1890 peak landings were reported. During the 
1950s, the remaining fishery switched to targeting sturgeon for flesh, 
rather than caviar. Commercial fisheries were active in many rivers 
during all or some of the period from 1962 to 1997, although at much 
lower levels than in the late 1800's to early 1900's (Taub, 1990; Smith 
and Clugston, 1997). Nevertheless, many of these contemporary fisheries 
also resulted in overfishing, which prompted the Atlantic States Marine 
Fisheries Commission (ASMFC) to impose the 1998 coastwide moratorium 
for fisheries targeting Atlantic sturgeon and prompted NMFS to close 
the U.S. exclusive economic zone (EEZ) to Atlantic sturgeon retention 
in 1999.
    The general life history pattern of Atlantic sturgeon is that of a 
long lived (approximately 60 years; Mangin, 1964; Stevenson and Secor, 
1999), late maturing, estuarine dependent, anadromous species (SRT, 
2007). Atlantic sturgeon can reach lengths of up to 14 feet (4.26 m), 
and weights of over 800 pounds (364 kg). Atlantic sturgeon are 
distinguished by armor-like plates and a long snout with a ventrally 
located protruding mouth. Four barbels crossing in front of the mouth 
help the sturgeon to locate prey. Sturgeon are omnivorous benthic 
feeders (feed off the bottom) and filter quantities of mud along with 
their food. Adult sturgeon diets include mollusks, gastropods, 
amphipods, isopods, and fish. Juvenile sturgeon feed on aquatic insects 
and other invertebrates (SRT, 2007).
    Fecundity of female Atlantic sturgeon has been correlated with age 
and body size, with observed egg production ranging from 400,000 to 4 
million eggs

[[Page 840]]

per spawning year (Smith et al., 1982; Van Eenennaam et al., 1996; Van 
Eenennaam and Doroshov, 1998; Dadswell, 2006). Female gonad weight 
varies from 12-25 percent of the total body weight (Smith, 1907; Huff, 
1975; Dadswell, 2006). The average age at which 50 percent of the 
maximum lifetime egg production is achieved is estimated to be 29 years 
(Boreman, 1997).
    Multiple studies have shown that spawning intervals for Atlantic 
sturgeon range from 1-5 years for males (Smith, 1985; Collins et al., 
2000; Caron et al., 2002) and 2-5 years for females (Vladykov and 
Greeley, 1963; Van Eenennaam et al., 1996; Stevenson and Secor, 1999). 
While there is a window of time for each river during which spawning 
occurs, spawning females do not migrate upstream en masse. Individual 
females make rapid spawning migrations upstream and quickly depart 
following spawning (Bain, 1997). Spawning males usually arrive on the 
spawning grounds before any of the females have arrived and leave after 
the last female has spawned (Bain, 1997). Presumably, this provides an 
opportunity for a single male to fertilize eggs of multiple females.
    Spawning is believed to occur in flowing water between the salt 
front of estuaries and the fall line of large rivers, where optimal 
flows are 46-76 cm/s and depths are 11-27 meters (Borodin, 1925; 
Leland, 1968; Scott and Crossman, 1973; Crance, 1987; Bain et al., 
2000). Sturgeon eggs are highly adhesive and are deposited on the 
bottom substrate, usually on hard surfaces such as cobble (Gilbert, 
1989; Smith and Clugston, 1997). Hatching occurs approximately 94 and 
140 hours after egg deposition at temperatures of 20 and 18[deg] C, 
respectively, and, once hatched, larvae assume a demersal existence 
(Smith et al., 1980). The yolksac larval stage is completed in about 8-
12 days, during which time the larvae move downstream to the rearing 
grounds (Kynard and Horgan, 2002). During the first half of this 
migration, larvae move only at night and use benthic structure (e.g., 
gravel matrix) as refuge during the day (Kynard and Horgan, 2002). 
During the latter half of migration to the rearing grounds, when larvae 
are more fully developed, movement occurs during both day and night. 
Larvae transition into the juvenile phase as they continue to move 
farther downstream into brackish waters, developing a tolerance to 
salinity as they go, and eventually becoming residents in estuarine 
waters for months or years. Juveniles then transition to the subadult 
phase while commencing oceanic migrations. Subadults travel widely once 
they emigrate from rivers (Holland and Yelverton, 1973; Doevel and 
Berggen, 1983; Waldman et al., 1996; Dadswell, 2006; SRT, 2007). 
Atlantic sturgeon spend most of their adult life in the marine 
environment distributed along the eastern coast of North America (SRT, 
2007). However, adult Atlantic sturgeon generally return to their natal 
rivers to spawn (Collins et al., 2000; K. Hattala, NYSDEC, pers. comm. 
in SRT, 2007).
    Atlantic sturgeon exhibit clinal variation in growth rate, age at 
maturity, and timing of spawning. In general, Atlantic sturgeon 
originating from more southern river systems show faster growth and 
earlier age at maturation than fish in northern systems, although not 
all data sets conform to this trend. For example, Atlantic sturgeon 
mature in South Carolina at 5 to 19 years (Smith et al., 1982), in the 
Hudson River at 11 to 21 years (Young et al., 1998), and in the Saint 
Lawrence River at 22 to 34 years (Scott and Crossman, 1973). Spawning 
migrations generally occur during February-March in southern systems, 
April-May in mid-Atlantic systems, and May-July in Canadian systems 
(Murawski and Pacheco, 1977; Smith, 1985; Bain, 1997; Smith and 
Clugston, 1997; Caron et al., 2002). In some rivers, predominantly in 
the south, a fall spawning migration may also occur (Rogers and Weber, 
1995; Weber and Jennings, 1996; Moser et al., 1998).

Analysis of the Petition

    We evaluated the information referenced in the petition and all 
other information readily available in our files to determine if the 
petition presents substantial scientific or commercial information 
indicating that the petitioned actions may be warranted. In the 
petition, NRDC provided relevant data and citations, a detailed 
narrative justification for the recommended listings, and available 
information regarding past and present numbers and distribution of the 
species. The petition provides a detailed overview of current threats 
to the species according to the factors in section 4(a)(1) of the ESA: 
(1) the present or threatened destruction, modification, or curtailment 
of its habitat or range; (2) over utilization for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) the inadequacy of existing regulatory mechanisms; or (5) 
other natural or manmade factors affecting [the species] continued 
existence (section 4 (a)(1) of the ESA). Below, we summarize our 
analysis of the threats information presented in the petition.
    The petition cites the 2007 status review (SRT, 2007), which 
provides information on sources of past and present habitat destruction 
and modification that have impacted Atlantic sturgeon. Among the most 
significant sources of habitat modification and destruction are dams 
and tidal turbines, dredging and blasting, water quality, and climate 
change. Dams and tidal turbines can block access to spawning and 
foraging habitat, alter river flow and temperature regimes, and cause 
physical injury and mortality to migrating fish. Dredging and blasting 
operations in support of commercial shipping, boating, mining and 
construction have impacted Atlantic sturgeon habitat through 
disturbance of benthic prey, elimination of habitat structure (e.g., 
deep holes), and alteration of benthic substrate (e.g., siltation of 
rocky substrates). The petition also discusses evidence of diminished 
water quality in large portions of coastal waters along the East Coast, 
in particular in the Northeast and in the Chesapeake Bay; however, some 
improvements have been observed (EPA, 2008). The petitioner cites 
evidence that indicates climate change has the potential to further 
threaten Atlantic sturgeon habitat through exacerbation of low DO 
levels and changes in salinity as a result of rising sea level.
    As described previously, Atlantic sturgeon once supported extensive 
commercial fisheries along the East Coast, and overharvest through 
these fisheries led to significant reductions in abundance and 
distribution of Atlantic sturgeon (SRT, 2007). The petition presents 
information to indicate that, in addition to direct harvest, bycatch of 
Atlantic sturgeon in commercial fisheries, sink-net and trawl fisheries 
in particular, is a current source of mortality within inland, coastal 
and Federal waters along the entire U.S. Atlantic coast (SRT, 2007).
    Very little is known about natural predation rates on Atlantic 
sturgeon. However, the petition discusses management concerns regarding 
predation of juvenile Atlantic sturgeon by the introduced flathead 
catfish in various river basins. The petition also indicates that some 
disease organisms have been identified in wild Atlantic sturgeon, and 
that pathogens introduced through aquaculture operations and release of 
aquarium fish are a potential concern.
    As summarized here, the petition discusses the numerous Federal 
(U.S. and Canadian), state and provincial, and inter-jurisdictional 
laws, regulations, and agency activities directed at

[[Page 841]]

Atlantic sturgeon. The ASMFC manages Atlantic sturgeon through an 
interstate fisheries management plan (FMP) that was developed in 1990 
(Taub, 1990). In 1998, the ASMFC amended the Atlantic sturgeon FMP to 
establish a moratorium on Atlantic sturgeon commercial fishing until 20 
year classes of adults were established, effectively closing the 
fishery for 20-40 years. The Atlantic Coastal Fisheries Cooperative 
Management Act (ACFCMA), authorized under the terms of the ASMFC 
Compact, as amended (Public Law 103-206), provides the Secretary with 
the authority to implement regulations in the EEZ in the absence of an 
approved Magnuson-Stevens FMP that is compatible with ASMFC FMPs. In 
1999, under the authority of the ACFCMA, NMFS implemented regulations 
to prohibit the retention and landing of Atlantic sturgeon bycatch from 
federally regulated fisheries. Many states within the riverine and 
estuarine range of Atlantic sturgeon have regulations for their inshore 
gillnet fisheries to reduce the likelihood of Atlantic sturgeon bycatch 
mortality in the nets. However, there are no fishery-specific 
regulations currently in place to address Atlantic sturgeon bycatch in 
federally regulated fisheries. In addition, the petitioner cites other 
Federal laws and regulations that have not adequately addressed threats 
to Atlantic sturgeon habitat, including poor water quality, dredging, 
and altered water flows.
    The petition presents information on other natural or manmade 
factors that may affect Atlantic sturgeon, including impingement and 
entrainment (by commercial, agricultural, and municipal water intake 
structures), vessel strikes (by commercial and recreational boats), and 
artificial propagation (stock enhancement and commercial aquaculture). 
In summary, vessel strikes are a significant stressor in rivers with 
large ports and narrow waterways (e.g., the Delaware, James, and Cape 
Fear Rivers). Impingement/entrainment may represent a significant 
threat to the species in particular areas, especially when intake 
structures are located near spawning grounds. Artificial propagation 
may impact Atlantic sturgeon as a result of escapement and consequent 
introduction of disease, hybridization, and food competition.

Petition Finding

    We have reviewed the petition, the literature cited in the 
petition, and other literature and information available in our files. 
The petition frequently references the status review that was completed 
in 2007. Based on the literature and information, we find that the 
petition meets the aforementioned requirements of the regulations under 
50 CFR 424.14(b)(2) and, therefore, determine that the petition 
presents substantial information indicating that the requested listing 
actions may be warranted.

Information Solicited

Information on Status of the Species

    The most recent status review of Atlantic sturgeon was completed in 
2007 (72 FR 15865; April 3, 2007). We intend that any final action in 
response to this petition be as accurate and as effective as possible. 
Therefore, we are soliciting information from the public, government 
agencies, the scientific community, industry, and any other interested 
parties on the status of Atlantic sturgeon throughout its range, 
including:
    (1) Historical and current distribution and abundance of Atlantic 
sturgeon throughout its range (U.S. and Canada);
    (2) Historic and current condition of Atlantic sturgeon habitat and 
whether any areas should be classified as critical habitat;
    (3) Population density and trends;
    (4) Information on the effects of climate change on the 
distribution and condition of Atlantic sturgeon and its habitat over 
the short- and long-term;
    (5) Information on the effects of threats, including bycatch, 
dredging, dams, pollution, hypoxia, disease, predation, poaching, 
aquaculture, vessel strikes, climate change, and aquatic invasive 
species, on the distribution and abundance of Atlantic sturgeon over 
the short- and long-term; and
    (6) Information on management programs or protective efforts for 
Atlantic sturgeon, including mitigation measures related to any of the 
threats listed under (5) above, any ongoing efforts to protect and 
conserve Atlantic sturgeon, as well as information on recently 
implemented or planned activities and their likely impact(s).

    Authority: The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: December 30, 2009.
James W. Balsiger,
Acting Assistant Administrator, National Marine Fisheries Service.
[FR Doc. E9-31373 Filed 1-5-10; 8:45 am]
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