[Federal Register Volume 75, Number 105 (Wednesday, June 2, 2010)]
[Rules and Regulations]
[Pages 30714-30730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13233]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 070910507-0037-02]
RIN 0648-AV94


Endangered and Threatened Wildlife and Plants: Final 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: Final rule and notice of availability of a final environmental 
assessment.

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SUMMARY: This final ESA section 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 apply the prohibitions listed 
under ESA section 9 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 provide a variety of methods by 
which take of the Southern DPS may be authorized. This document also 
announces the availability of a final draft environmental assessment 
(EA) that analyzes the environmental impacts of promulgating the 4(d) 
regulations for the Southern DPS.

DATES: The effective date of this final rule is July 2, 2010.

ADDRESSES: Reference materials regarding this final 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 
ESA section 9(a) prohibitions, including those regarding take of 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 actually kills or injures fish or wildlife. Such an act 
may include significant habitat modification or degradation which 
actually kills or injures fish or 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

[[Page 30715]]

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. Specific information requested can be 
found in the final rule (71 FR 17757; April 7, 2006). 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 of 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 requirements) 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).
    On May 21, 2009, we proposed protective regulations under section 
4(d) of the ESA to extend the prohibitions listed under ESA sections 
9(a)(1)(A) through 9(a)(1)(G) for the threatened Southern DPS, but 
included certain exceptions and exemptions from the take prohibitions 
for activities that we have determined to be adequately protective of 
the Southern DPS (74 FR 23822).

Summary of Comments and Information Received in Response to the 
Proposed Rule and Draft Environmental Assessment

    The public comment period for the proposed rule and draft 
Environmental Assessment (EA) was open from May 21, 2009, through July 
6, 2009. During the comment period, NMFS received 7 written comments on 
the proposed rule and draft EA from various agencies, non-governmental 
organizations, and individuals. A summary of the comments and NMFS' 
responses to those comments are presented here.

Comments and Responses

    Comment 1: One commenter requested clarification in the draft EA 
regarding the exception for emergency fish rescue activities under 
Alternative B. Specifically, the commenter was unclear what 4(d) 
programs were referred to in the sentence stating that ``[p]roject-
related activities * * * would not be considered an emergency fish 
rescue activity and would be subject to review under ESA section 7 or 
10, or under another 4(d) program.''
    Response: We corrected the sentence in the final EA to read 
``Project-related activities * * * would not be considered an emergency 
fish rescue activity and would be subject to review under ESA section 7 
or 10.'' We removed the phrase ``or under another 4(d) program'' 
because the ESA 4(d) Rule does not include a 4(d) program to cover such 
project-related activities.
    Comment 2: One commenter stated that the draft EA needs to describe 
the specific categories of activities to which the take prohibitions 
would be applied under Alternative C.
    Response: The final EA was revised to clarify that under 
Alternative C, the take prohibitions would apply to the same specific 
categories of activities and in the same areas as described under 
Alternative A. Those categories of activities are: Commercial, 
recreational, and tribal fisheries; collecting or handling Southern DPS 
fish for any purpose; habitat-altering activities affecting passage or 
spawning and rearing habitat in the Central Valley, California; 
operation of water diversion, dredging, and power plant activities 
resulting in entrainment or impingement of Southern DPS fish; 
application or discharge of pollutants adjacent to or within waterways 
occupied by Southern DPS fish; and introduction or release of non-
native species adjacent to or within waterways occupied by Southern DPS 
fish.
    Comment 3: One commenter felt that the proposed rule listed 
dredging as a threat to only juvenile green sturgeon and wanted NMFS to 
acknowledge that adult Southern DPS fish have the potential to be found 
in dredging areas outside the Central Valley, San Francisco Bay, Suisun 
Bay and San Pablo Bay.
    Response: The final rule was revised to acknowledge that dredging 
is a potential threat to adult green sturgeon. Dredging occurs in the 
following areas where adults also occur: The Lower Sacramento River, 
Sacramento-San Joaquin Delta, Elkhorn Slough, Suisun Bay, San Pablo 
Bay, San Francisco Bay, Noyo Harbor, and Humboldt Bay in California; 
Coos Bay, Yaquina Bay, Tillamook Bay, and Nehalem Bay in Oregon; the 
Lower Columbia River Estuary, the Lower Columbia River, Willapa Bay, 
Grays Harbor, and Puget Sound in Washington; and coastal U.S. marine 
waters (74 FR 52300, October 9, 2009). Although adults occur in areas 
where dredging takes place, we don't have any direct evidence of the 
effect that dredging has on adult green sturgeon.
    Comment 4: One commenter asked why the draft EA specifically 
excludes the Channel Islands from the list of areas known to be 
occupied by Southern DPS green sturgeon, noting that this exclusion was 
not mentioned in the proposed critical habitat designation for the 
species (73 FR 52084, September 8, 2008).
    Response: At this time we do not have any data showing that 
Southern DPS green sturgeon occur in waters around the California 
Channel Islands and we specifically noted this in the description of 
occupied areas in the draft EA. However, the protections under the ESA 
4(d) rule would apply to Southern DPS green sturgeon wherever they are 
found. Thus, if a Southern DPS green sturgeon occurred in the waters 
around the Channel Islands, the take prohibitions under the ESA 4(d) 
rule would apply to that fish. Because of similarity of appearance, any 
green sturgeon occurring in the marine environment (including estuaries 
in Washington, Oregon, and Humboldt Bay) would be considered the listed 
species as they cannot be identified as belonging to a particular DPS 
unless genetic samples are taken and analyzed. The final EA was revised 
to include a statement clarifying this.
    Comment 5: Two commenters felt that the five alternative approaches 
need to be described in greater detail and that the geographic 
limitations and distinctions of the proposed rule and alternatives are 
not clearly laid out. Further clarification was requested.

[[Page 30716]]

    Response: The final EA was revised to more clearly describe the 
geographic limitations and distinctions between the various 
alternatives considered.
    Comment 6: One commenter recommended that NMFS consult with the 
Pacific Fishery Management Council (PFMC) as early in the process as 
possible concerning the effects of the ESA 4(d) Rule on fisheries 
managed under the PFMC.
    Response: NMFS is currently working with the PFMC regarding the 
potential effects of the West Coast groundfish bottom trawl fishery on 
the listed Southern DPS of green sturgeon and its designated critical 
habitat.
    Comment 7: One commenter stated that the San Francisco Bay is not 
used as habitat for green sturgeon and that regulating take and 
requiring consultation on activities that are not limiting the recovery 
of the Southern DPS diverts staff resources from other permitting 
actions that would have positive effects.
    Response: The best available data for the San Francisco Bay 
indicate that green sturgeon are present in both Central and South San 
Francisco Bay, albeit in low numbers compared to other parts of the San 
Francisco Bay/Delta Region. The survey methods and sampling gear used 
in studies within San Francisco Bay were not designed to target green 
sturgeon, and thus the data may not be truly representative of the 
relative levels of green sturgeon use among the bays and the Delta. For 
example, given that all green sturgeon must pass through Central San 
Francisco Bay in their migrations to and from the ocean, it is expected 
that larger numbers of green sturgeon are using this area at certain 
times of the year. In addition, the catch data do not provide 
information about the distribution of juvenile green sturgeon 
throughout the bays and the Delta. Based on the best available 
information, juvenile green sturgeon are believed to distribute widely 
throughout the bays and Delta for feeding and rearing and be present in 
all months of the year. Detailed fishery-dependent data for the San 
Francisco Bay is provided in the final critical habitat designation (74 
FR 52300, October 9, 2009).
    Comment 8: One commenter strongly supports the 4(d) rule and 
provided the information that green sturgeon are vulnerable to selenium 
toxicity from feeding on the overbite clam. The commenter stated that 
selenium toxicity can cause reproductive failure and the threat of 
reduced recruitment through selenium toxicity puts additional stress on 
the Southern DPS population.
    Response: NMFS appreciates the information provided regarding green 
sturgeon vulnerability to selenium toxicity. Recent studies have shown 
that green sturgeon are more sensitive to selenium than white sturgeon 
and continued monitoring of selenium levels in sediments and research 
on the sensitivity of green sturgeon to this and other contaminants 
would be supported (Kaufman et al., 2008).
    Comment 9: One commenter felt that including marine coastal waters 
as green sturgeon critical habitat is unjustified as there is no 
reliable data on the take of the Southern DPS in coastal waters.
    Response: Comments pertaining to critical habitat were addressed in 
the final critical habitat designation for green sturgeon (74 FR 52300, 
October 9, 2009). Activities that occur in coastal marine waters that 
may cause take of green sturgeon include bottom trawling, disposal of 
dredged material, hydrokinetic projects and pollution from commercial 
shipping.
    Comment 10: One commenter stated that sand mining operations in San 
Francisco and Suisun Bays are highly regulated and there is very little 
evidence that sand mining in the San Francisco Bay-Delta Estuary 
negatively impacts green sturgeon or their habitat. The commenter 
requested that additional exceptions be included for activities such as 
sand mining that pose a low risk of take.
    Response: In 2006, NMFS completed formal consultation with the U.S. 
Corps of Engineers under section 7 of the ESA for sand mining 
activities in the San Francisco and Suisun Bay region. The resulting 
biological opinion concluded that sand mining activities were not 
likely to jeopardize threatened green sturgeon (NMFS, 2006). An 
Incidental Take Statement (that remains discretionary until a 4(d) rule 
has been promulgated) was included with the biological opinion that 
provides protection to the sand miners for the entrainment of one green 
sturgeon per year for each of the three sand mining companies operating 
in the region at the time the biological opinion was written.
    Comment 11: One commenter stated that we do not have data to 
differentiate between Northern DPS and Southern DPS green sturgeon in 
fisheries bycatch, but we require a Fisheries Management and Evaluation 
Plan (FMEP) to include measures specifically to protect Southern DPS 
green sturgeon.
    Response: Acknowledging the fact that we cannot tell the difference 
between NDPS and SDPS fish due to similarity of appearance, the FMEPs 
must address green sturgeon and do not require that the DPS be 
determined.
    Comment 12: One commenter stated that the green sturgeon fishery 
was mismanaged and that more care should have been taken to prevent the 
fishery from becoming overfished.
    Response: NMFS acknowledges that a lack of monitoring and directed 
management of the green sturgeon has likely contributed to its current 
threatened status. However, since the listing, academic institutions, 
the states, NMFS and the tribes have been conducting more comprehensive 
studies that focus on green sturgeon in an effort to better understand 
its biology, status and recovery needs. It is our hope that finalizing 
this 4(d) rule and enforcing the take prohibitions will further the 
conservation of the species and aid in its recovery.
    Comment 13: One commenter provided the information that there is a 
new surge in the green sturgeon population in Yaquina Bay, and feels 
that listing green sturgeon as threatened in this area is inaccurate 
and unfounded.
    Response: NMFS appreciates the information provided regarding 
observations of green sturgeon in Yaquina Bay and agrees that 
additional studies are needed to better understand the use of coastal 
estuaries (including Yaquina Bay) and coastal marine waters by both 
DPSs of green sturgeon. Southern DPS presence in Yaquina Bay was 
confirmed in 2006 by the detection of one tagged Southern DPS green 
sturgeon (pers. comm. with Dan Erickson, ODFW, September 3, 2008). The 
Southern DPS was listed based on several threats, including the 
concentration of spawning to one river. Each Southern DPS green 
sturgeon carries the listing with it wherever it goes as the listing is 
not limited by geographic area. We acknowledge the commenter's 
observations suggesting that the number of green sturgeon using Yaquina 
Bay has increased. While this news is promising: (1) We recognize that 
green sturgeon may experience sporadic recruitment success depending on 
many factors that are not well understood; and (2) this uncertainty 
coupled with a lack of population abundance estimates and a limited 
understanding of population structure has led us to adopt regulations 
necessary and advisable for the conservation of the Southern DPS. We 
will conduct periodic status reviews of both DPSs and as more 
information becomes available we will revise our regulations if 
necessary.
    Comment 14: One commenter felt that the requirement that research 
or monitoring that involves action, permitting or funding by a Federal 
agency must still comply with the

[[Page 30717]]

requirements of ESA section 7(a)(2) negates the exception from the take 
prohibitions for all researchers and stated that Federal employees who 
can fulfill all other requirements cannot use this exception. If non-
Federal studies do not need to be analyzed in order to ensure that they 
would not jeopardize the species, then it seems counterintuitive that 
Federal studies with the same requirements would create jeopardy. The 
commenter also felt that the requirement that the activity must comply 
with required state reviews or permits negates the exception because as 
part of the application process, state permits require a copy of the 
authorization from NMFS when working with species listed under the ESA.
    Response: Under the 4(d) Rule, we can exempt a non-Federal entity 
from the take prohibitions, but cannot exempt Federal agencies from the 
jeopardy standard under section 7 of the ESA. Compliance with section 
7(a)(2) of the ESA would be required, but the consultation would be 
limited to an analysis of whether the activity may jeopardize the 
continued existence of the species or destroy or adversely modify 
critical habitat, and would not involve an assessment of take. Section 
7 of the ESA does not apply to non-Federal entities. Although Federal 
employees are still subject to the section 7 jeopardy standard, under 
the exception they would not be required to obtain an ESA section 
10(a)(1)(A) permit for their research/monitoring activities if 
conducted according to the exception criteria. The Federal biologists 
carrying out research activities would need to obtain state permits 
regardless of whether Federal take prohibitions are in place or not. 
The exception simplifies the NMFS review and approval process for 
research activities and relies on the state review and permits to 
minimize impacts related to the research activities. In the state 
application, applicants will need to identify that their activities 
meet the exception criteria and will need to indicate that they have 
submitted the information to NMFS or indicate that NMFS has confirmed 
that their activities meet the exception criteria.
    Comment 15: One commenter felt that NMFS has not taken into account 
the extent of the existing regulatory programs and improvement to the 
health of the San Francisco Bay-Delta ecosystem that has taken place 
over the last 30 years and stated that certain activities are already 
regulated under other Federal, state and local programs that directly 
govern activities that NMFS stated could result in the take of green 
sturgeon. The commenter recommended that NMFS provide exceptions from 
the take prohibitions for navigation channel and harbor berths 
dredging, dredged material placement, mineral extraction and 
maintenance and installation of in-water and shoreline structures. The 
commenter also recommended that exceptions for the small business 
category of construction activities be considered.
    Response: NMFS acknowledges that many of the activities that may 
cause take of green sturgeon are already regulated by existing Federal, 
state and local laws and regulations, and appreciates any efforts that 
have been made to protect and improve habitats where green sturgeon 
reside. However, these laws, regulations, and programs may not 
specifically address green sturgeon and may not be as protective of 
green sturgeon as the 4(d) Rule. For example, there is a 50-year 
dredging program in the San Francisco Bay region that currently has not 
implemented measures that would specifically protect green sturgeon. 
Construction activities conducted by small businesses may also not 
include measures that would be adequately protective of green sturgeon. 
However, any protections already afforded to green sturgeon through 
existing programs would be considered in NMFS' analyses under section 7 
or section 10 of the ESA.
    Comment 16: One commenter requested that a public hearing be held 
in coastal Oregon prior to publishing the final rule.
    Response: A workshop to discuss the ESA 4(d) rule prohibitions and 
exceptions/exemptions with state fishery management agencies, NMFS, and 
representatives from the fishing industry was held in Newport, Oregon 
on March 15, 2010.
    Comment 17: One commenter requested clarification on the 
Protection/Conservation Measures or Benefits under Table 1, as 
emergency rescue and habitat restoration indicates that there are no 
benefits provided to green sturgeon in these activities.
    Response: The Note section under Table 1 was clarified to state 
that the ``Protective/conservation measures or benefits'' column refers 
to whether the activity, as it is currently conducted, includes 
protections or benefits to green sturgeon. Emergency rescue activities 
and habitat restoration activities that are not conducted according to 
the criteria under the exceptions do not provide benefits to green 
sturgeon and are therefore not covered under the exceptions. If these 
activities may cause take of green sturgeon, that take must be covered 
under section 7 or 10 of the ESA, or come under compliance with the 
exceptions criteria.
    Comment 18: One commenter requested clarification in the draft EA 
regarding which states' recreational fishing regulations, prior to 
2006, did not differentiate between white sturgeon and green sturgeon.
    Response: The final EA was revised to clarify that, prior to 2006, 
state recreational fishing regulations in Washington, Oregon, and 
California did not differentiate between white sturgeon and green 
sturgeon.
    Comment 19: One commenter suggested updating the 2005 reference for 
the Environmental Water Account because the program expired in 2007 and 
a revised program is currently in place with adjusted water amounts to 
augment instream flows.
    Response: The final EA was updated to remove the outdated reference 
for the Environmental Water Account.

Spatial Context for ESA 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 take 
prohibitions for the Southern DPS is not confined to areas south of the 
Eel River. Detailed information on occurrences of the Southern DPS 
green sturgeon is provided in the proposed 4(d) rule (74 FR 23822, May 
21, 2009).
    Sections 10(a)(1)(A) and 10(a)(1)(B) provide exceptions to the 
section 9 take prohibitions. NMFS can authorize research and 
enhancement through section 10(a)(1)(A) permits and

[[Page 30718]]

incidental take through section 10(a)(1)B) permits. While this rule 
applies the section 9 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.
    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. Recently, the California Fish and Game Commission approved 
revised regulations, effective March 1, 2010, that prohibit all 
sturgeon fishing in the upper Sacramento River where southern DPS green 
sturgeon spawn. 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 Oregon Fish and Wildlife 
Commission voted to prohibit the retention of green sturgeon in 
commercial nearshore fisheries, effective January 1, 2010, and is 
prohibiting the retention of green sturgeon in recreational fisheries 
statewide, effective April 1, 2010. 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 to determine the amount of take, 
the DPS of the green sturgeon that are caught (through genetic 
analysis), and in the future to address the long-term fate of these 
individuals through tagging. 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

[[Page 30719]]

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 and Monitoring 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.

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, man-made habitat alterations, national 
defense activities, security emergencies, etc. Allowing take of the 
Southern DPS for emergency rescue and salvage activities is likely to 
enhance survival and recovery of the listed species. However, it is 
important that measures be taken to investigate emergency events during 
or after they have occurred in order to determine whether a non-ESA-
compliant action(s) necessitated the rescue or salvage.

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 June 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

[[Page 30720]]

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 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. Additional studies 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 are encouraged.
    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 
has 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

[[Page 30721]]

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, 
and there is a possibility that green sturgeon are also entrained at 
power plants. 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 2,000 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. Dredging may also be a potential threat to adult green 
sturgeon because they occur in areas where dredging operations take 
place. Dredging stirs up the sediments causing the release of 
contaminants that would have adverse impacts on growth, reproductive 
development, and reproductive success of green 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 (Ganssle, 1966; 
Miller, 1972; CDFG, 2002; Jahn, 2006; BDAT, 2009). 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 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 juveniles. 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.

4(d) Protective Regulations for the Southern DPS

    We 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

[[Page 30722]]

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)(B) 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. Evaluation of 
activities that may occur throughout the area affected by the 
prohibitions for Southern DPS fish, eggs or larvae is shown in Table 1.

Exceptions, Criteria for Exceptions, and Reporting Requirements

    We establish exceptions to the ESA section 9(a)(1)(B) and 
9(a)(1)(C) prohibitions (the ``take prohibitions'') for specific 
activities. These 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 DPS. If the agency 
or entity carrying out the activity 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. If the activities do not meet the 
exception criteria any take must be covered under an ESA section 7 
incidental take statement (i.e. for activities with a Federal nexus) or 
ESA section 10(a)(1)(B) incidental take permit. The take of the 
Southern DPS will 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 the NMFS Southwest 
Regional Office (see ADDRESSES: above) at least 60 days prior to the 
start of the study, or, for ongoing studies, by August 31, 2010; (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. NMFS will respond in a letter 
either confirming the activities meet the exception criteria or stating 
that the activities do not meet the exception criteria and are subject 
to the take prohibitions. The letter would acknowledge receipt of the 
project information and provide the schedule for submission of 
research/progress reports and technical assistance to clarify when the 
ESA section 9 prohibitions apply.
    (2) 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 must benefit the Southern DPS; (d) a report must be submitted to 
the NMFS Southwest Regional Office (see ADDRESSES: above) that 
includes, at a minimum, the number and status of fish handled, the 
location of rescue and/or salvage operations and the potential cause(s) 
of the emergency situation within 10 business days after carrying out 
the rescue.
    (3) Habitat restoration activities, including barrier removal or

[[Page 30723]]

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 the NMFS Southwest 
Regional Office (see ADDRESSES: above) at least 60 days prior to the 
start of the restoration project, or, for ongoing studies, by August 
31, 2010, 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 fish 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. NMFS will respond in a letter 
either confirming the activities meet the exception criteria and are 
not subject to the take prohibitions, or stating that the activities do 
not meet the exception criteria and are subject to the take 
prohibitions and any take must be covered under an ESA section 7 
incidental take statement or ESA section 10 permit. The letter would 
also provide the schedule for submission of progress reports and would 
provide technical assistance to clarify when the ESA section 9 
prohibitions apply.

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

    We provide 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.

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 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; (8) provide a timeframe for FMEP 
implementation; and (9) 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 will issue a letter of 
concurrence to the entity 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 until 
September 30, 2010 if a letter of intent to develop an FMEP addressing 
green sturgeon has been received by the NMFS Southwest Regional Office 
(see ADDRESSES: above) by July 2, 2010. 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 July 2, 2010, a draft FMEP must be 
received by NMFS within 6 months from the date of receipt of the letter 
of intent. A final FMEP must be received by NMFS within 3 months from 
the date of receipt of NMFS' comments on the draft FMEP. Ongoing 
commercial and recreational fisheries activities may continue until 
NMFS issues a letter of concurrence (or denial) for final FMEPs.
    Once a final FMEP has been submitted to NMFS for review, NMFS will: 
(1) Provide a public comment period (>=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 every 5 years and identify changes that would improve 
their effectiveness; and (4) provide a public comment period (>=30 
days) before withdrawing approval of an FMEP.

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 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. Tribal Plans

[[Page 30724]]

should be sent to the NMFS Southwest Regional Office (see ADDRESSES). 
NMFS 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 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.

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 conduct or sponsor 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, making use of the system already in 
place. Otherwise, the state would be required to prepare a program and 
submit it to the NMFS Southwest Regional Office (see ADDRESSES: above) 
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 Web site 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 
used; 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 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(a)(1)(A) research or enhancement 
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 Web site 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 Web site Authorizations 
and Permits for Protected Species (APPS) at https://apps.nmfs.noaa.gov, 
during the mid-September through mid-October 2010 application period. 
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 during the mid-September to mid-
October application period, ongoing state-supported scientific research 
activities may continue until NMFS issues a written decision of 
approval or denial. If approved, the state 4(d) program authorization 
will cover one calendar year and state supported researchers would have 
to renew authorizations annually during subsequent application periods.

Take Exemptions Provided By ESA Sections 7 or 10

    Federally funded, authorized, or implemented activities that may 
require take coverage (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

[[Page 30725]]

not federally funded, authorized, or implemented) that may require take 
coverage, 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, preferably through the 
NMFS online application Web site https://apps.nmfs.noaa.gov, no later 
than November 29, 2010. 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 by November 29, 2010, ongoing 
research activities may continue without take prohibitions until NMFS 
issues or denies a permit.
    Evaluation of activities that may occur throughout the area 
affected by the prohibitions for Southern DPS fish, eggs, or larvae is 
shown in Table 1. Evidence of take of the Southern DPS during the 
course of an activity is indicated; if there is no such evidence, then 
evidence of take of a surrogate species is indicated. Existence of 
protective/conservation measures to minimize take of or benefit the 
Southern DPS fish during the course of the activity as it is currently 
conducted is indicated. Based on best available information, whether an 
activity requires take authorization or is illegal according to other 
laws and therefore cannot be authorized is indicated, and whether 
methods for allowing take resulting from a particular activity exist 
through ESA sections 7 or 10 or through an ESA section 4(d) Program is 
specified. This is not an exhaustive list of all activities that occur 
throughout the area affected by the take prohibitions. Please see 4(d) 
Protective Regulations for the Southern DPS for the full range of 
activities for which NMFS is prohibiting take.
    Table 1. This table indicates whether evidence of take of the 
Southern DPS or take of a surrogate species exist (yes or no; Y or N) 
and whether protective/conservation measures to minimize take are 
currently in place (Y or N). The table also indicates whether under 
this rule an activity requires take authorization (Y or N), or cannot 
be authorized (N/A), and whether methods that allow take exist through 
ESA sections 7 or 10 (Y or N) or through an ESA section 4(d) program (Y 
or N)

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Protective/                       Methods of take authorization
                                                                         Take of        Conservation         Take      ---------------------------------
                     Activity                             Take          surrogate       measures or     authorization    ESA section 7
                                                                         species          benefits        necessary          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                      Y   ...............               Y                N   ...............  ...............
         (compliant with Exceptions)..............
        State-sponsored (outside scope of                        Y   ...............               Y                Y                Y                Y
         Exceptions)..............................
        Federal or Private-sponsored (outside                    Y   ...............               Y                Y                Y                N
         scope of Exceptions).....................
    Emergency Rescue (compliant with Exceptions)..               N                Y                Y                N   ...............  ...............
    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,                  Y   ...............               Y                Y                Y                N
         operation................................
        Diversion installation, repair,                          Y   ...............               Y                Y                Y                N
         modification, operation..................
    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,                  Y   ...............               Y                Y                Y                N
         operation................................
        Diversion installation, repair,                          Y   ...............               Y                Y                Y                N
         modification, operation..................
        Filling/isolation of channels/intermittent               N                N                Y                Y                Y                N
         waters...................................
        Removal/alteration of physical structure                 N                N                Y                Y                Y                N
         that provides spawning/rearing habitat...
Habitat Restoration (compliant with Exceptions)
    Barrier removal/modification to restore flows.               N                N                Y                N   ...............  ...............

[[Page 30726]]

 
    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
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Under section 9(b)(1) of the ESA, people holding Southern DPS fish 
in captivity or in 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 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 regulation 
would, however, apply to any progeny of Southern DPS fish taken prior 
to listing. Any activity involving Southern DPS fish taken pre-listing 
that is authorized, funded, or carried out by a Federal agency would 
also be subject to the consultation requirements of section 7 of the 
ESA.
    We apply the section 9 take prohibitions to the Southern DPS, 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 is through ESA section 7. 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 provided 
for these activities.

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 
(Pub. L. 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 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 final rule is 
available upon request (see ADDRESSES) or via the Internet at http://www.swr.noaa.gov.

Classification

Regulatory Flexibility Act

    This final 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 those 
activities are within a carefully circumscribed set of activities on 
which NMFS will not impose the take prohibitions. Hence, the universe 
of entities reasonably expected to be

[[Page 30727]]

directly or indirectly impacted by the prohibition is broad.
    Based on the language of the 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 FRFA identified the 
following activities that may be affected by this final 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 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 FRFA 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 rule, we considered five alternative 
approaches, described in more detail in the FRFA. 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 FRFA. 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.

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

    This rule has been determined to be not significant for the 
purposes of E.O. 12866.

E.O. 12988--Civil Justice Reform

    We have determined that this final 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 providing 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 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 
rule. During the development of the proposed and final rules, we 
provided drafts of relevant sections of the 4(d) Rule to potentially 
affected tribes and held conference calls with potentially affected 
tribes to discuss the 4(d) Rule and obtain the tribes' input.

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 rule. In fact, this notice provides 
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. Even though this 
rule does not have federalism implications, we requested information 
from appropriate State resource agencies in California, Oregon, and 
Washington regarding the proposed action. As subsequent issues with ESA 
compliance and rulemaking arise (e.g., issuance of permits, critical 
habitat designation, recovery planning), we will continue to 
communicate with the States, and other affected local or regional 
entities, giving careful consideration to all concerns and comments 
received.

Paperwork Reduction Act (PRA)

    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 Office of Management and Budget (OMB) Control Number.
    This final rule contains collection-of-information requirements 
subject to the PRA, 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;

[[Page 30728]]

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 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 final Environmental Assessment (EA) 
analyzing the 4(d) regulations and alternatives. The EA is available 
upon request (see ADDRESSES), via our Web site at http://swr.nmfs.noaa.gov, or via the Federal eRulemaking Web site at http://www.regulations.gov.

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, 
``significant 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 this rule is not a significant 
energy action. First, this rule is not significant under E.O. 12866. 
Second, this rule would not be likely to result in significant adverse 
effects on the supply, distribution, or use of energy, because the 
spatial scope of this rule overlaps with areas where protections for 
ESA-listed salmonids are in effect and it is likely that the 
modifications required for ESA-listed salmonids are similar to those 
that would be required for the Southern DPS. Thus, no Statement of 
Energy Effects is required for this rule.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: May 25, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 223 is amended as 
follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
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).


0
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 section 223.102(c) are described in the following paragraphs 
(b)(1) through (b)(3).
    (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 by August 31, 2010 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; and
    (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;

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    (iii) The activity benefits the Southern DPS; and
    (iv) Those carrying out the activity submit a report to the NMFS 
Southwest Regional Office in Long Beach that includes, at a minimum, 
the number and status of fish handled, the location of rescue and/or 
salvage operations, and the potential causes(s) of the emergency 
situation within 10 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, or, for ongoing studies, by August 31, 2010, 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 fish 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 used, to 
the NMFS Southwest Regional Office in Long Beach on a schedule to be 
determined by NMFS; and
    (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 during the mid-September through mid-October 2010 application 
period. This exception to the section 9 take prohibitions expires if 
the proposal is rejected as insufficient or is denied. If the state 
4(d) research program package is received during the mid-September to 
mid-October application period, ongoing state-supported scientific 
research activities may continue until NMFS issues a written decision 
of approval or denial. If approved, the state 4(d) program 
authorization will cover one calendar year and state-supported 
researchers would have to renew authorizations annually during 
subsequent application periods.
    (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 applicant.
    (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 of 
the Southern DPS; include effective monitoring and evaluation plans; 
provide for evaluating monitoring data and making revisions to the 
FMEP; provide for effective enforcement and education; provide a 
timeframe for FMEP implementation; 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 until September 30, 2010 if a letter of intent to develop an 
FMEP that is protective of green sturgeon has been received by NMFS by 
July 2, 2010. The exemption will expire if the letter of intent is 
rejected without further review of a FMEP. If the letter of intent is 
received by August 31, 2010, a draft FMEP must be received by NMFS 
within 6 months from the date of receipt of the letter of intent. A 
final FMEP must be received by NMFS within 3 months from the date of 
receipt of NMFS' comments on the draft FMEP. 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 (>=30 days) before 
approval of new or amended FMEPs; provide a letter of concurrence for

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approved FMEPs that specifies the implementation and reporting 
requirements; evaluate FMEPs every 5 years and identify changes that 
would improve their effectiveness; and provide a public comment period 
(>=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 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 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) The exceptions of section 10 of the ESA (16 U.S.C. 1539) and 
other exceptions under the ESA relating to endangered species, 
including regulations in part 222 of this chapter II implementing such 
exceptions, also apply to the threatened Southern DPS of North American 
green sturgeon listed in Sec.  223.102(c)(1). Federal, state, and 
private-sponsored research activities for scientific research or 
enhancement purposes that are not covered under Scientific Research and 
Monitoring Exceptions as described in paragraph (b)(1) of this section 
or Scientific Research and Monitoring Exemptions as described in 
paragraph (c)(1) of this section, 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, preferably through the NMFS online application Web 
site https://apps.nmfs.noaa.gov, no later than November 29, 2010. 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 by November 29, 2010, ongoing research 
activities may continue without take prohibitions until NMFS issues or 
denies a permit.
    (e) 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 his or her 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. 2010-13233 Filed 6-1-10; 8:45 am]
BILLING CODE 3510-22-P