[Federal Register Volume 75, Number 169 (Wednesday, September 1, 2010)]
[Rules and Regulations]
[Pages 53598-53606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21861]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2009-0027; 92220-1113-0000; ABC Code: C3]
RIN 1018-AW27


Endangered and Threatened Wildlife and Plants; Threatened Status 
for Shovelnose Sturgeon Under the Similarity of Appearance Provisions 
of the Endangered Species Act

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, determine it necessary 
to treat shovelnose sturgeon (Scaphirhynchus platorynchus) as 
threatened due to similarity of appearance to the endangered pallid 
sturgeon (Scaphirhynchus albus) under the similarity of appearance 
provisions of the Endangered Species Act of 1973, as amended. The 
shovelnose sturgeon and the endangered pallid sturgeon are difficult to 
differentiate in the wild and inhabit overlapping portions of the 
Missouri and Mississippi River basins. Commercial harvest of shovelnose 
sturgeon has resulted in the documented take of pallid sturgeon where 
the two species coexist and is a threat to the pallid sturgeon. This 
determination to treat shovelnose sturgeon due to similarity of 
appearance will substantially facilitate law enforcement actions to 
protect and conserve pallid sturgeon. This rule extends take 
prohibitions to shovelnose sturgeon, shovelnose[dash]pallid sturgeon 
hybrids, and their roe when associated with a commercial fishing 
activity in areas where pallid sturgeon and shovelnose sturgeon 
commonly coexist. Accidental or incidental capture of pallid or 
shovelnose sturgeon, or shovelnose[dash]pallid sturgeon hybrids, in 
commercial fishing gear will not be considered take provided the 
sturgeon are immediately released to the wild at the point where taken 
with roe intact.

DATES: This rule becomes effective on October 1, 2010.

FOR FURTHER INFORMATION CONTACT: George Jordan, Pallid Sturgeon 
Recovery Coordinator, 2900 4th Avenue North, Room 301, Billings, 
Montana 59101 (telephone (406) 247-7365; facsimile (406) 247-7364). 
Public comments and literature referenced in association with this rule 
are available at http://www.regulations.gov at Docket No. FWS-R6-ES-
2009-0027 and at the above office, by appointment, during normal 
business hours. Persons who use a telecommunications device for the 
deaf (TDD) may call the Federal Information Relay Service (FIRS) at 
800/877-8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

Background

    In 1990, the U.S. Fish and Wildlife Service (Service) listed the 
pallid sturgeon (Scaphirhynchus albus) as endangered under the 
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 
seq.) (55 FR 36641, September 6, 1990). The pallid sturgeon has a 
flattened, shovel-shaped snout, possesses a long and slender and 
completely armored caudal peduncle, and lacks a spiracle and belly 
scutes (Forbes and Richardson 1905, pp. 38-41). The pallid sturgeon is 
a bottom-oriented species found only in portions of the Missouri and 
Mississippi River basins (Kallemeyn 1983, p. 4). The species can be 
long-lived (40 plus years), with females reaching sexual maturity later 
than males (Keenlyne and Jenkins 1993, pp. 393, 395). Pallid sturgeon 
at the northern end of their range can attain sizes (both length and 
weight) much larger than pallid sturgeon at the southern end of their 
range (Service 1993, p. 3). Current known threats to the pallid 
sturgeon include habitat modification, small population size, limited 
natural reproduction, hybridization, pollution and contamination, 
entrainment, and commercial harvest (Service 2007, pp. 38-59).
    The pallid sturgeon and the shovelnose sturgeon are both members of 
the genus Scaphirhynchus. These sturgeon can be difficult to 
differentiate in the wild and inhabit overlapping portions of the 
Missouri and Mississippi River basins. Within these areas of overlap, 
four States continue to allow commercial harvest of shovelnose 
sturgeon. Take of the endangered pallid sturgeon has been documented to 
occur where this commercial fishery is allowed (Sheehan et al. 1997, p. 
3; Service 2007, pp. 45-48; Bettoli et al. 2009, p. 3). Incidental and 
illegal harvest of pallid sturgeon is a significant impediment to the 
survival and recovery of this species in some parts of its range 
(Service 2007, p. 45). Our recent 5-year status review recommended that 
we identify and implement measures to eliminate or significantly reduce 
illegal and accidental harvest of pallid sturgeon (Service 2007, p. 
59).

Previous Federal Actions

    On September 6, 1990, the pallid sturgeon was listed as endangered 
under the Act (55 FR 36641). At the time of listing, the primary 
threats and vulnerabilities for pallid sturgeon were curtailment of 
range, habitat destruction and modification, low population size, lack 
of recruitment, commercial harvest, pollution and contaminants, and 
hybridization (55 FR 36641, September 6, 1990; Service 1993, pp. 10-
15). Since listing, we worked cooperatively with State partners to 
address the threat posed by commercial harvest. A recent status review 
found that restrictions imposed through State fishing regulations had 
helped, but that incidental and illegal take during commercial harvest 
of shovelnose sturgeon was still having a substantial and detrimental 
effect on the pallid sturgeon (Service 2007, pp. 45-48). To address 
this issue, on September 22, 2009, we published in the Federal Register 
a proposed rule to treat the shovelnose sturgeon as a threatened 
species due to its similarity of appearance to the endangered pallid 
sturgeon (74 FR 48215).

Public Comments Solicited

    As part of the September 22, 2009, proposed rule (74 FR 48215), we 
requested interested parties to provide comments and materials 
concerning the proposed rule during a 60-day public comment period. We 
contacted all appropriate State and Federal agencies, county 
governments, elected officials, scientific organizations, and other 
interested parties and invited them to comment. During the public 
comment period, we received several requests for a public hearing. On 
January 14, 2010, we published a Federal Register notice announcing a 
21-day reopening of the comment period and an informational meeting and 
public hearing on January 28, 2010, in Cape Girardeau, Missouri (75 FR 
2102).

Peer Review

    In accordance with our policy for peer review (59 FR 34270, July 1, 
1994), and

[[Page 53599]]

the Office of Management and Budget's (OMB) Final Information Quality 
Bulletin for Peer Review, dated December 16, 2004, we solicited review 
of the science in this rule from five independent specialists. That 
review process was conducted to ensure the use of the best scientific 
and commercial information available and to ensure and maximize the 
quality, objectivity, utility, and integrity of the information upon 
which this action is based. We received written responses from three of 
the peer reviewers. All three reviewers indicated: (1) The data 
presented were relevant and accurate; (2) the conclusions in the 
proposed rule were logically supported by the data presented; (3) 
necessary and pertinent information was included; and (4) the action 
will help conserve pallid sturgeon. Specific issues raised are 
discussed below.

Summary of Public Comments

    During the comment periods, we received approximately 40 comments 
(written and oral) representing 8 State agencies, 1 Federal agency, and 
20 individuals representing themselves or their businesses and/or 
organizations, as well as responses from three peer reviewers. All 
comments are now available for inspection at http://www.regulations.gov 
in Docket No. FWS-R6-ES-2009-0027.
    We reviewed and considered all comments in this final decision. 
Written comments and oral statements presented at the public hearing 
and received during the comment periods are addressed in the following 
summary or incorporated directly into this final rule. Comments of a 
similar nature are grouped together under subject headings in a series 
of ``Issues'' and ``Responses.''
    Issue 1: Several commenters indicated that treating shovelnose 
sturgeon as threatened due to similarity of appearance to pallid 
sturgeon will close commercial sturgeon fishing resulting in a negative 
economic impact on those engaged in this activity.
    Response: We recognize that treating shovelnose sturgeon as 
threatened due to similarity of appearance with pallid sturgeon will 
close commercial harvest of shovelnose sturgeon from waters commonly 
occupied by pallid sturgeon. Under section 4(e), the Act allows us to 
regulate commerce and take to the extent advisable when it is 
considered necessary to protect a listed species. In order to comply 
with the Act and reduce potential negative economic impacts, this rule 
covers the minimal geographic extent necessary to effectively conserve 
pallid sturgeon. This rule will not affect commercial shovelnose 
sturgeon harvest, where permitted by the States or tribes, in waters 
where pallid sturgeon do not commonly occur (i.e., those areas not 
identified under Sec.  17.44, Special rules--fishes, in this rule).
    Issue 2: A few commenters felt the methods used to estimate 
mortality of both pallid and shovelnose sturgeon in the proposed rule 
(74 FR 48215, September 22, 2009) were flawed because the methods of 
both Killgore et al. (2007) and Colombo et al. (2007) used a catch 
curve to estimate mortality. Specifically, the commenters asserted that 
the assumption that there is consistent reproduction and recruitment 
among years is not consistent with the life-history characteristics of 
shovelnose and pallid sturgeon.
    Response: In both the Killgore et al. (2007) and Colombo et al. 
(2007) peer-reviewed publications, the authors describe their methods 
to account for inconsistent reproduction and recruitment. Killgore et 
al. (2007, p. 453) pooled their data among years and examined their 
data for variability among year-classes. Colombo et al. (2007, p. 445) 
also pooled their data by age class among years. Pooling annual data 
from successive sample years is an acceptable method to account for 
moderate and random fluctuations in recruitment when employing catch 
curves to estimate survival (Ricker 1975, p. 36). We believe these 
studies present the best available data and use accepted methodologies.
    Issue 3: One commenter believed that existing harvest length 
regulations are protective of gravid female pallid sturgeon. These 
regulations set a maximum harvest limit for shovelnose sturgeon on the 
Mississippi River in Missouri and Illinois at 81.3 centimeters (cm) 
(32.0 inches (in.)) fork length. The commenter had never observed a 
gravid pallid sturgeon smaller than this limit and thought gravid 
female pallid sturgeon should be readily identifiable based on length.
    Response: Since 1992, 11 wild-caught female pallid sturgeon were 
spawned in captivity at Missouri's Blind Pony State Fish Hatchery 
(Drecktrah 2009). Of these, five were less than 81.3 cm (32.0 in.) fork 
length, one measured 81.5 cm (32.1 in.) fork length, and five were 
longer than 98.8 cm (38.9 in.) (Drecktrah 2009). The two smallest 
gravid female pallid sturgeon spawned were 77.5 cm (30.5 in.) fork 
length. In 2009, at Neosho National Fish Hatchery, one gravid female 
pallid sturgeon was spawned that was 75.7 cm (29.8 in.) (Herzog 2010). 
These data illustrate the fact that that size alone cannot be used to 
identify species and current maximum harvest size limits for shovelnose 
sturgeon on the Mississippi River (81.3 cm (32 in.)) and the Missouri 
River (76.2 cm (30 in.)) are inadequate to protect all gravid female 
pallid sturgeon.
    Issue 4: Several commenters indicated that protection for 
shovelnose-pallid sturgeon hybrids was unwarranted and that allowing 
harvest of hybrid sturgeon would be a benefit to pallid sturgeon.
    Response: The evolutionary relationship between pallid and 
shovelnose sturgeon is poorly understood and additional data and 
analyses are necessary to fully understand the relationship between 
putative hybrids and pallid and shovelnose sturgeon (Service 2007, pp. 
25-26). In one study, morphometric-only indices assigned study 
specimens to the pallid sturgeon, shovelnose sturgeon, and putative 
hybrid groups (Murphy et al. 2007, p. 319). However, sheared principal 
component analysis of the same study specimens resulted in some 
putative hybrid specimens clustering with the pallid sturgeon group and 
other hybrid specimens clustering with the shovelnose sturgeon group 
(Murphy et al. 2007, p. 319). In another study, genetic identification 
revealed that pallid sturgeon identified using the character index (CI) 
and morphometric character index (mCI) were miscategorized (Schrey 
2007, pp. 74-75, 120). Thus, some sturgeon that appear intermediate in 
character based on the CI or the mCI (presumed hybrids) may actually be 
pallid sturgeon. Given these uncertainties, law enforcement personnel 
would have substantial difficulty enforcing regulations allowing 
harvest of shovelnose-pallid sturgeon hybrids. Thus, extending 
protections to shovelnose sturgeon and to shovelnose-pallid sturgeon 
hybrids is the only way to ensure that pallid sturgeon are not 
inadvertently harvested from areas where these two species co-occur.
    Issue 5: Several commenters indicated that treating shovelnose 
sturgeon as threatened due to similarity of appearance to pallid 
sturgeon is not warranted. These commenters referenced recent 
regulation changes implemented by the Illinois Department of Natural 
Resources and a study of the new regulation's effectiveness sanctioned 
by the Mississippi Interstate Cooperative Resources Association (Maher 
et al. 2009). These commenters state that in this study 946 sturgeon 
carcasses were collected from commercial fishermen, and none were 
determined by genetic analysis to be pallid sturgeon. Based on those 
data, commenters contend that differentiation between pallid and 
shovelnose sturgeon could occur with a 100 percent level of

[[Page 53600]]

accuracy with proper training and implementation.
    Response: In 2007, the Illinois Department of Natural Resources 
instituted additional protective State regulations intended to 
eliminate pallid sturgeon harvest. These regulations prohibited take of 
or harm to pallid sturgeon and mandated their immediate release upon 
capture. These regulations also prohibited commercial harvest of 
shovelnose-pallid sturgeon hybrids downstream from Lock and Dam 26 on 
the Mississippi River. Specifically, these regulations prohibited take 
and mandated immediate release of any Scaphirhynchus that had any of 
the following: (1) Belly completely lacking in scales; (2) bases of 
outer barbels located slightly behind bases of inner barbels; or (3) 
length of inner barbels at least 6.3 times the length of head.
    The new Illinois regulations as well as the existing Missouri and 
Kentucky regulations were evaluated to determine if they were effective 
in preventing bycatch of pallid sturgeon in the harvest of shovelnose 
sturgeon (Maher et al. 2009, p. 2). This study examined 946 carcasses 
from commercial fisherman including 513 collected in Illinois under 
their new regulations (Maher et al. 2009, pp. 3-4). Specimens were 
evaluated based on CI, mCI, barbel alignment, the presence or absence 
of belly scales, and the ratio of head length to barbel length (Maher 
et al. 2009, p. 3). Based on professional judgment, the authors did not 
believe any of the carcasses were pallid sturgeon (Maher et al. 2009, 
p. 4). However, the data were less clear.
    The CI and mCI scores yielded different results when applied to the 
same carcasses. The CI scores indicated 4 of the carcasses were pallid 
sturgeon including 2 harvested by Illinois fishermen; 31 specimens were 
likely shovelnose-pallid sturgeon hybrids including 24 harvested by 
Illinois fishermen (Maher et al. 2009, pp. 4, 8-11). None of these 946 
carcasses were deemed to be pallid sturgeon based on mCI scores, but 30 
specimens were likely shovelnose-pallid sturgeon hybrids including 9 
harvested by Illinois fishermen (Maher et al. 2009, pp. 4, 14-17). 
Genetic testing on 84 sturgeon (44 from Illinois, 20 from Kentucky, and 
20 from Missouri) with the lowest CI values (most pallid sturgeon like) 
indicated that several of the carcasses were likely shovelnose-pallid 
sturgeon hybrids (Heist and Boley 2009, p. 3). Eighty-five of the 
specimens had barbel alignment consistent with pallid sturgeon 
including 78 in Illinois (Maher et al. 2009, pp. 4-5). None of the 
specimens had bellies that were absent scales consistent with pallid 
sturgeon, but 37 carcasses had partial or small scales on their bellies 
indicative of shovelnose-pallid sturgeon hybrids (Maher et al. 2009, 
pp. 4-5). Finally, none of the specimens' ratio of head length to 
barbel length were indicative of pallid sturgeon (Maher et al. 2009, 
pp. 4-5).
    As these data demonstrate, field-level identification based solely 
on character indices is subjective and not without some uncertainty. 
This subjectivity and uncertainty is reflected in the 2007 Illinois 
regulations. These regulations indicate that it is illegal to harvest 
any sturgeon that has ``bases of outer barbels located slightly farther 
behind bases of inner barbels.'' The word ``slightly'' is subjective 
and difficult to apply consistently among observers (Maher et al. 2009, 
p. 4). For instance, 28 of the 78 sturgeon caught in Illinois had 
barbel alignment consistent with pallid sturgeon; however, because the 
outer barbels inserted only ``slightly'' behind the inner barbels, the 
data were analyzed with and without the 28 specimens (Maher et al. 
2009, p. 4). In this case, the word ``slightly'' introduced ambiguity 
into identification efforts.
    In total, more than 10 percent of the specimens harvested in 
Illinois were harvested in violation of Illinois regulations as they 
showed characteristics intermediate between pallid and shovelnose 
sturgeon (Maher et al. 2009, pp. 5-6). Because some sturgeon that 
appear intermediate (i.e., presumed hybrids) may actually be pallid 
sturgeon (Wills et al. 2002, pp. 255-256; Schrey 2007, pp. 74, 120), we 
remain concerned that even in a highly regulated arena, harvest of 
shovelnose sturgeon and their roe results in the take of pallid 
sturgeon where the two species are sympatric.
    One of the requirements of treating any species as endangered or 
threatened under Section 4(e) of the Act is related to law enforcement 
difficulties with differentiating between a listed and unlisted 
species. The available data demonstrate that both fishermen and 
enforcement personnel are having and will continue to have substantial 
difficulty in differentiating between these species where they coexist.
    Issue 6: A few commenters highlighted an error in Table 1 of the 
proposed rule (74 FR 48215, September 22, 2009). Specifically, we 
reported 3,808 kilograms (8,395 pounds) of roe being harvested in 
Illinois' Mississippi River below Melvin Price Lock and Dam (Lock and 
Dam 26) in 2005, when the actual number was 166 kilograms (365 pounds).
    Response: This error has been corrected in Table 1 of this rule. 
Consideration of this error does not change our determination. The 
available data demonstrate a substantial level of commercial harvest of 
shovelnose, including both flesh and roe, is occurring in areas where 
both pallid and shovelnose sturgeon coexist. This harvest is resulting 
in incidental and illegal harvest of pallid sturgeon (Sheehan et al. 
1997, p. 3; Bettoli et al. 2009, p. 3), which is a significant 
impediment to the survival and recovery of the pallid sturgeon.
    Issue 7: One commenter was unable to find any evidence that we 
conducted an environmental impact study to determine the economic 
impact to fishermen and associated communities as a result of this 
decision.
    Response: An Environmental Assessment or Environmental Impact 
Statement, as defined under the authority of the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4331 et seq.), need not be 
prepared in connection with listing regulations adopted pursuant to 
section 4 of the Act. We published a notice outlining our reasons for 
this determination in the Federal Register on October 25, 1983 (48 FR 
49244). We determined that this rationale also applies to the 
associated section 4(d) rule.
    Issue 8: Several States and one not-for-profit organization 
observed that closing commercial shovelnose sturgeon fishing in waters 
where they commonly coexist with pallid sturgeon could result in 
increased shovelnose sturgeon harvest pressures in waters that remain 
open. The concern raised is that this shift in pressure could result in 
overharvest of shovelnose sturgeon populations in areas outside the 
range of pallid sturgeon.
    Response: Twenty-four States comprise the historical range of 
shovelnose sturgeon. Of these, eight allow for commercial harvest of 
shovelnose sturgeon; this action will halt commercial harvest of 
shovelnose sturgeon in four of these eight where shovelnose and pallid 
sturgeon coexist. Shovelnose sturgeon that occupy waters outside the 
areas regulated by this rule are subject to State commercial fishing 
regulations. Those States that acknowledged that a probable shift in 
harvest pressures is likely as a result of this rule indicated that 
their existing regulations are adequate to conserve shovelnose 
sturgeon. We believe that a combination of existing State regulations 
and the additional protections provided under this rule will facilitate 
conservation of both shovelnose and pallid sturgeon. However, we 
acknowledge this rule does not afford additional protections to

[[Page 53601]]

shovelnose sturgeon outside of its sympatric range of the pallid 
sturgeon. Thus, we will continue to work and cooperate with State 
resource agencies, the Mississippi Interstate Cooperative Resources 
Association and the Upper Mississippi River Conservation Committee, and 
other interested parties to help manage and monitor shovelnose sturgeon 
harvest where it occurs.
    Issue 9: Several commenters highlighted other threats to pallid 
sturgeon, including non-native invasive species and habitat alteration. 
These comments imply we should focus on these other threat factors 
rather than the take issue being addressed by this rule.
    Response: This rule is being undertaken to address documented take 
of an endangered species, the pallid sturgeon, due to similarity of 
appearance to shovelnose sturgeon. The take is occurring through 
commercial harvest of shovelnose sturgeon where allowed. Through the 
provisions of section 4(e) of the Act, we are employing a mechanism to 
help address this take, which is an identified threat to the pallid 
sturgeon (55 FR 36641; Service 2007, pp. 45-48, 57). We are not 
assessing the pallid sturgeon in this rule in accordance with section 
4(a) of the Act. However, we concur with the commenter that habitat 
destruction or alteration is a threat to this species as we described 
in our 2007 5-year review (Service 2007, pp. 38-45, 56). We are 
actively working with State and Federal partners to implement 
restoration activities to address habitat issues throughout the range 
of the pallid sturgeon. Examples include the efforts of the Upper and 
Lower Mississippi River Conservation Committees and U.S. Army Corps of 
Engineers Missouri River Recovery Program. These partnerships and 
programs have restored side channel connectivity and modified existing 
in-channel structures (i.e., dike notching) to increase habitat 
complexity. We are currently reviewing available data to better 
evaluate effects from invasive species. While these are important 
efforts, we also determined that the mortality of reproductive-
condition female pallid sturgeon associated with commercial fishing 
must be addressed in order to conserve the species and achieve 
recovery.
    Issue 10: The State of Wyoming identified potential confusion 
associated with the word ``entire'' found under the column heading 
``Vertebrate population where endangered or threatened'' in Sec.  17.11 
Endangered and Threatened Wildlife. The confusion is associated with 
the rule treating shovelnose sturgeon as threatened due to similarity 
of appearance to pallid sturgeon in waters where both species commonly 
coexist. There are several States identified in this table that are not 
within the documented historical range of pallid sturgeon.
    Response: The table in Part 17 delineates the historic range of the 
shovelnose sturgeon and identifies the population where treated as 
endangered or threatened is over the entire range of the species. 
However, section 4(e) allows for regulation of commerce and take as 
deemed advisable. The special rule described under Sec.  17.44(aa) 
articulates the portions of the range in which take will be regulated 
under this rule. In this case, the shovelnose sturgeon's historic range 
occurs in 24 States; however, shovelnose and shovelnose-pallid sturgeon 
hybrid populations covered by this special rule occur in portions of 13 
States. Therefore, Wyoming and several other States that historically 
or currently support shovelnose sturgeon populations but not pallid 
sturgeon are not identified in this rule and will not be regulated and 
subject to shovelnose sturgeon take prohibitions as a result of this 
rule.
    Issue 11: One commenter encouraged us to conduct a review of 
shovelnose sturgeon to determine if threatened status is warranted for 
this species range-wide. This commenter provided references to several 
publications that suggest shovelnose sturgeon are being over-harvested 
in the middle and upper Mississippi Rivers (Colombo et al. 2007; Koch 
et al. 2007; Tripp et al. 2009). The commenter also recommended that if 
additional protections were not warranted, we should work with State 
agencies to implement strict size limits on commercial harvest to 
better protect shovelnose sturgeon where they are commercially 
harvested.
    Response: This action was initiated to address documented take 
occurring of an existing listed species and provide for the 
conservation of that listed species--the endangered pallid sturgeon. We 
are not assessing the status of the shovelnose sturgeon in this rule. 
We have a separate petition process and our own internal candidate 
assessment process to elevate species for listing consideration. In the 
context of this regulation, we have considered this comment and believe 
that the combination of existing State regulations and the protections 
provided in this rule address many of the concerns highlighted in the 
cited literature (Colombo et al. 2007; Koch et al. 2007; Tripp et al. 
2009). We also intend to continue working with the States and various 
committees to ensure adequate regulations exist where commercial 
shovelnose sturgeon harvest is permitted. Should future data indicate 
the shovelnose sturgeon meets the Act's definition of threatened or 
endangered, we would initiate a status review and propose listing the 
species if warranted.

Similarity of Appearance Determination

    Section 4(e) of the Act and implementing regulations (50 CFR 17.50-
17.52) authorize the Secretary of the Interior to treat a species as an 
endangered or threatened species even though it is not itself listed 
if: (a) The species so closely resembles in appearance a listed 
endangered or threatened species that law enforcement personnel would 
have substantial difficulty in attempting to differentiate between the 
listed and unlisted species; (b) the effect of this substantial 
difficulty is an additional threat to an endangered or threatened 
species; and (c) such treatment of an unlisted species will 
substantially facilitate the enforcement and further the purposes of 
the Act. With regard to shovelnose sturgeon, we believe all of these 
factors apply.
    The shovelnose sturgeon (Scaphirhynchus platorynchus) is similar in 
appearance to the pallid sturgeon and inhabits overlapping portions of 
the Missouri and Mississippi River basins (Bailey and Cross 1954, pp. 
175-190). Morphological characteristics (i.e., body measurements) and 
meristic counts (i.e., number of fin rays) have been used to 
distinguish between the two Scaphirhynchus species. However, those 
characters were based on a limited number of pallid sturgeon (15) and 
of shovelnose sturgeon (16) specimens (Bailey and Cross 1954, pp. 177-
179).
    Two indices, CI and mCI, were developed to help differentiate 
between the species and account for putative hybrid individuals (Wills 
et al. 2002, pp. 249-258). The CI uses both morphometric ratios and 
meristic counts (number of fin rays in both the dorsal and anal fins); 
mCI is based only on the five morphometric ratios and was developed 
because the meristic counts can be difficult to accurately obtain from 
live specimens (Wills et al. 2002, p. 250). Both indices utilized five 
ratios of morphometric measurements based on careful length 
measurements of both the inner and outer barbels, the head length, the 
interrostrum length, and the mouth-to-inner-barbel distance. While both 
indices did a good job of properly classifying pallid sturgeon (Wills 
et al. 2002, p. 253), errors occurred when putative hybrids overlapped 
the parental forms (Wills et al. 2002, pp.

[[Page 53602]]

253-254). Both indices had an error rate of approximately 10 percent 
(Wills et al., pp. 255-256). Thus, Wills et al. (2002, p. 257) 
recommended incorporating molecular genetic techniques to verify 
species delineations.
    Genetic analysis of Scaphirhynchus specimens to test the 
performance of several character indices, including CI and mCI suggest 
that at least 1.9 percent of sampled individuals were misidentified 
(Schrey 2007, p. 75). Specifically, CI appeared to perform better than 
the other indices by not classifying genetic pallid sturgeon as 
shovelnose or shovelnose-pallid sturgeon hybrids, but did classify 
genetic shovelnose sturgeon as pallid sturgeon (Schrey 2007, pp. 75-
76). Similarly, mCI did not classify genetic pallid sturgeon as 
shovelnose sturgeon, but did classify genetic shovelnose as pallid 
sturgeon (Schrey 2007, p. 75). However, mCI misclassified genetic 
pallid sturgeon as shovelnose-pallid sturgeon hybrids (Schrey 2007, p. 
75). The CI performs better than the other indices because it relies on 
dorsal and anal fin ray counts. However, dorsal and anal fin ray counts 
can be difficult to obtain from live specimens (Wills et al. 2002, p. 
250; Schrey 2007, p. 76); mCI was developed in recognition of this 
difficulty. In order to provide the greatest confidence in species 
identification, both genetic and morphological analyses are required 
(Schrey 2007, p. 80).
    Other recent analyses confirm limited success applying character 
indices universally across the geographic range of the species (Kuhajda 
et al. 2007, pp. 344-346; Murphy et al. 2007, p. 322). Furthermore, 
available data indicate character indices do not work well on smaller 
sized specimens (Kuhajda et al. 2007, pp. 324, 344).
    Currently, biologists use an approach requiring up to 13 
morphometric body measurements, multivariate analysis, meristic counts 
(i.e., the number of dorsal and anal fin rays), and genetic data to 
reliably differentiate between the 2 species. Many of these methods 
require data collection and analysis that are not easily implemented in 
field-level applications and are not immediately available to 
commercial fishermen at the time of harvest or to law enforcement 
personnel at the time of determining whether a violation has occurred.
    Finally, while genetic tests can differentiate Scaphirhynchus eggs 
from those of other genera, at this time, processed roe cannot be 
differentiated as having been derived from shovelnose sturgeon, harvest 
of which may be legal, or pallid sturgeon, harvest of which is illegal 
(Curtis 2008). This similarity poses a problem for Federal and State 
law enforcement agents trying to address illegal trade in pallid 
sturgeon roe.
    While harvest of pallid sturgeon is prohibited by section 9 of the 
Act and by State regulations throughout its range, commercial harvest 
of shovelnose sturgeon has resulted in the documented take of pallid 
sturgeon (Sheehan et al. 1997, p. 3; Bettoli et al. 2009, p. 3; Service 
2007, pp. 45-48). Four States allow commercial harvest of shovelnose 
sturgeon from waters commonly occupied by pallid sturgeon (Service 
1993, pp. 3-5). These are Tennessee (Tennessee 2008, pp. 4-5), Missouri 
(except on the Missouri River upstream of the Kansas River to the Iowa 
border) (Missouri 2008, pp. 10-11), Kentucky (Kentucky 2008, pp. 1-2), 
and Illinois (below Mel Price Locks and Dam) (Illinois 2007, pp. 3-5; 
Illinois 2008, p. 2). To protect pallid sturgeon, fishing seasons with 
maximum harvestable size limits for shovelnose sturgeon have been 
established (Bettoli et al. 2009, pp. 1-2). However, harvestable size 
limits for shovelnose sturgeon cannot protect pallid sturgeon that fall 
within the harvestable size limits if pallid sturgeon cannot be 
reliably differentiated from shovelnose sturgeon.
    Along the Tennessee portion of the Mississippi River, commercial 
fishers misidentified 29 percent of the encountered pallid sturgeon 
(Bettoli et al. 2009, p. 3) and a minimum of 1.8 percent of total 
sturgeon harvest was endangered pallid sturgeon (Bettoli et al. 2009, 
p. 3). Applying this minimum harvest estimate to the 2005-2007 
commercial shovelnose fishing seasons within Tennessee results in a 
minimum harvest estimate of 169 adult pallid sturgeon (Bettoli et al. 
2009, p. 1). Extrapolating this minimum estimate of pallid sturgeon 
take across the four States that allow for commercial harvest of 
shovelnose sturgeon where the two species commonly coexist implies 
annual incidental take is a substantial source of pallid sturgeon 
mortality and a threat to the species' survival and recovery.
    Furthermore, total annual pallid sturgeon mortality rates are 
higher where commercial harvest of shovelnose sturgeon occurs compared 
to areas without commercial harvest (30 percent versus 7-11 percent) 
(Killgore et al. 2007, pp. 454-455). Maximum identified ages of pallid 
sturgeon are substantially lower in commercially fished reaches of the 
Mississippi River (14 years) than in noncommercially fished reaches of 
the Mississippi River (21 years) (Killgore et al. 2007, p. 454). 
Harvested and protected populations should have considerably different 
mortality rates (and, therefore, corresponding different maximum ages); 
however, the endangered pallid sturgeon have similar mortality rates as 
the harvested shovelnose sturgeon in the middle Mississippi River 
(Colombo et al. 2007, p. 449). This information provides further 
evidence that illegal harvest of pallid sturgeon is occurring. Because 
female sturgeon do not begin egg development until ages 9-12 years, may 
not spawn until ages 15-20 years, and may not spawn every year 
(Keenlyne and Jenkins 1993, p. 395), mortality associated with 
commercial fishing activity is likely substantially lowering 
recruitment, negatively impacting population growth, and ultimately 
affecting recovery.
    Much of the domestic sturgeon fishing pressure has been driven by 
international sturgeon supply and increasing price trends. 
International sturgeon catch declined from the record peak of 32,078 
metric tons (70,719,884 pounds) in 1978 to 2,658 metric tons (5,859,886 
pounds) in 2000 (FAO Fisheries Circular 2004, executive summary). This 
reduction in supply resulted in exponential increase in caviar prices 
subsequent to the 1978 peak (Bardi and Yaxley 2005, p. 2). Since 1998, 
international trade in all species of sturgeon has been regulated under 
the Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES) owing to concerns over the impact of 
international trade on sturgeon populations in the wild. Recent CITES 
sturgeon quotas have further limited supply and exacerbated price 
pressures (CITES 2005, pp. 1-5, 8-9; CITES 2006, pp. 1, 5-6, 10-11; 
CITES 2007, pp. 1, 3-5, 8-9; CITES 2008, pp. 3, 7, 8, 11, 14). We 
expect commercial pressures on domestic sturgeon to remain constant or 
possibly increase due, in part, to current restrictions on importation 
of beluga sturgeon (Huso huso) caviar into the United States (70 FR 
57316, September 30, 2005; 70 FR 62135, October 28, 2005) due to its 
status as a threatened species and the general trend toward reduced 
caviar exports from the Caspian Sea and Black Sea sturgeon stocks.
    State commercial fishing data (Table 1) demonstrate a substantial 
level of commercial harvest of shovelnose sturgeon, including both 
flesh and roe, from areas where both shovelnose and pallid sturgeon 
coexist (Williamson 2003, pp. 118-120; Maher 2008; Scholten 2008a; 
Scholten 2008b; Travnichek 2008; Illinois DNR 2009).

[[Page 53603]]



  Table 1--Reported Commercial Harvest of Shovelnose Sturgeon Flesh and Roe in Pounds From 1995-2007 From the Portions of Illinois, Kentucky, Missouri,
                                        and Tennessee Where Both Shovelnose Sturgeon and Pallid Sturgeon Coexist
                                      [Illinois DNR 2009; Scholten 2008a, 2008b; Travnichek 2008; Williamson 2003]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       1995     1996     1997     1998     1999     2000     2001     2002     2003     2004     2005     2006     2007
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Flesh
--------------------------------------------------------------------------------------------------------------------------------------------------------
Illinois...........................      405    3,475    6,115    2,855    3,798    1,576    3,074    1,541      600    2,931    2,599        *        *
Kentucky...........................        *        *        *        *       25    9,938   13,059    8,324    1,413    5,167   16,324   14,130   10,043
Missouri...........................    6,201   10,142    8,231    9,089   19,655   23,394   77,498   43,211   23,956   28,818   10,002    6,526    5,220
Tennessee..........................        *        *        *        *        *    4,178    2,178    3,519    5,759    4,005   17,297   12,926    7,812
                                    --------------------------------------------------------------------------------------------------------------------
    Total..........................    6,606   13,617   14,346   11,944   23,478   39,086   95,809   56,595   31,728   40,921   46,222   33,582   23,075
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Roe
--------------------------------------------------------------------------------------------------------------------------------------------------------
Illinois...........................        0       28       65       87        0       16      208      402      136      585      365      554        *
Kentucky...........................        *        *        *        *        *      527    1,021      731      258      554    1,844    1,648    1,738
Missouri...........................        *        *        *        *        *        *        *        *    4,490    3,504    2,356    1,907    1,420
Tennessee..........................        *        *        *        *        *        *        *      660    1,001      665    2,290    2,027    1,366
                                    --------------------------------------------------------------------------------------------------------------------
    Total..........................        0       28       65       87        0      543    1,229    1,793    5,883    5,308    6,855    6,136    4,524
--------------------------------------------------------------------------------------------------------------------------------------------------------
Illinois shovelnose harvest includes Mississippi River catch downstream of Mel Price Locks and Dam; Missouri shovelnose harvest includes both
  Mississippi River (downstream of Mel Price Locks and Dam) and Missouri River (except on the Missouri River upstream of the Kansas River to the Iowa
  border) catches; and Tennessee and Kentucky shovelnose harvest includes Mississippi River catch. Tennessee's flesh data were extrapolated using length-
  weight relationships from total fish harvested.
An asterisk (*) indicates no data reported or data otherwise unavailable.

    Incidental, illegal harvest of pallid sturgeon is a significant 
impediment to the survival and recovery of this species in some 
portions of its range (Service 2007, p. 45). We recommended in our 2007 
5-year status review that we should identify and implement measures to 
eliminate or significantly reduce illegal and accidental harvest of 
pallid sturgeon (Service 2007, p. 59).
    Treating the shovelnose sturgeon as a threatened species, under 
section 4(e) of the Act, will result in termination of commercial 
harvest of shovelnose sturgeon and shovelnose-pallid sturgeon hybrids 
where they commonly coexist with pallid sturgeon. This action will 
facilitate the enforcement of take protections for pallid sturgeon and 
substantially reduce or eliminate take of pallid sturgeon associated 
with commercial harvest of shovelnose sturgeon and their roe. Reduction 
of take of pallid sturgeon will facilitate the species' survival, 
reproduction, and, ultimately, its recovery. For these reasons, we will 
treat the shovelnose sturgeon as threatened due to similarity of 
appearance to the pallid sturgeon in those areas where the two species 
commonly coexist, in accordance with section 4(e) of the Act.

Section 4(d) ``Special Rule'' Regulating Take

    When a species is considered threatened under the Act, the 
Secretary may specify regulations that he deems necessary to provide 
for the conservation of that species under a rule authorized by section 
4(d) of the Act. These rules, commonly referred to as ``special 
rules,'' are found in part 17 of title 50 of the Code of Federal 
Regulations (CFR) in sections 17.40-17.48. This special rule for Sec.  
17.44, which deals with fishes, prohibits take of any shovelnose 
sturgeon, shovelnose-pallid sturgeon hybrids, or their roe when 
associated with or related to a commercial fishing activity in those 
portions of its range that commonly overlap with the range of the 
endangered pallid sturgeon. In this context, commercial fishing 
purposes is considered as any activity where shovelnose sturgeon and 
shovelnose-pallid sturgeon hybrid roe or flesh is attempted to be, or 
is intended to be, traded, sold, or exchanged for financial 
compensation, goods, or services. Capture of shovelnose sturgeon or 
shovelnose-pallid sturgeon hybrids in commercial fishing gear is not 
prohibited if it is accidental or incidental to otherwise legal 
commercial fishing activities, such as commercial fishing targeting 
nonsturgeon species, provided the animal is released immediately upon 
discovery, with all roe intact, at the point of capture. All otherwise 
legal activities involving shovelnose sturgeon and shovelnose-pallid 
sturgeon hybrids that are conducted in accordance with applicable 
State, Federal, tribal, and local laws and regulations are not 
considered to be take under this regulation.

Effects of These Rules

    Treating the shovelnose sturgeon as threatened under the 
``similarity of appearance'' provisions of the Act extends take 
prohibitions to shovelnose sturgeon, shovelnose-pallid sturgeon 
hybrids, and their roe when associated with a commercial fishing 
activity. Capture of shovelnose sturgeon or shovelnose-pallid sturgeon 
hybrids in commercial fishing gear is not prohibited if it is 
accidental or incidental to otherwise legal commercial fishing 
activities, such as commercial fishing targeting nonsturgeon species, 
provided the animal is released immediately upon discovery, with all 
roe intact, at the point of capture. All otherwise legal activities 
within the areas identified that may involve shovelnose sturgeon and 
shovelnose-pallid sturgeon hybrids and which are conducted in 
accordance with applicable State, Federal, tribal, and local laws and 
regulations will not be considered take under this regulation.
    Under this special 4(d) rule, take is prohibited where shovelnose 
and pallid sturgeons' range commonly overlap (Service 1993, pp. 3-5, 
16-17). Specifically, this includes: (1) The portion of the Missouri 
River in Iowa, Kansas, Missouri, Montana, North Dakota, Nebraska, and 
South Dakota; (2) the portion of the Mississippi River downstream from 
the Melvin Price Locks and Dam (Lock and Dam 26) in Arkansas, Illinois, 
Kentucky, Louisiana,

[[Page 53604]]

Missouri, Mississippi, and Tennessee; (3) the Platte River downstream 
of the Elkhorn River confluence in Nebraska; (4) the portion of the 
Kansas River downstream from the Bowersock Dam in Kansas; (5) the 
Yellowstone River downstream of the Bighorn River confluence in North 
Dakota and Montana; and (6) the Atchafalaya River in Louisiana. See the 
map in the rule portion of this document.
    This designation of similarity of appearance under section 4(e) of 
the Act would not extend any other protections of the Act, such as the 
requirements to designate critical habitat, the recovery planning 
provisions under section 4(f), or consultation requirements for Federal 
agencies under section 7, to shovelnose sturgeon. Therefore, Federal 
agencies are not required to consult with us on activities they 
authorize, fund, or carry out that may affect shovelnose sturgeon.

Paperwork Reduction Act

    The OMB regulations at 5 CFR part 1320 implement provisions of the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The OMB regulations 
at 5 CFR 1320.3(c) define a ``collection of information'' as the 
obtaining of information by or for an agency by means of identical 
questions posed to, or identical reporting, recordkeeping, or 
disclosure requirements imposed on, 10 or more persons. Furthermore, 5 
CFR 1320.3(c)(4) specifies that ``10 or more persons'' refers to the 
persons to whom a collection of information is addressed by the agency 
within any 12-month period. For purposes of this definition, employees 
of the Federal Government are not included. A Federal agency may not 
conduct or sponsor and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number. This rule does not contain collections of information 
other than those permit application forms already approved under the 
Paperwork Reduction Act and assigned OMB control number 1018-0094.

National Environmental Policy Act

    We have determined that an Environmental Assessment or 
Environmental Impact Statement, as defined under the authority of the 
NEPA, need not be prepared in connection with listing regulations 
adopted pursuant to section 4, including section 4(a), of the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of references cited in this rule is available upon 
request from the Pallid Sturgeon Recovery Coordinator (see FOR FURTHER 
INFORMATION CONTACT section above).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we hereby amend part 17, subchapter B of chapter I, title 
50 of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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



0
2. Amend Sec.  17.11(h) by adding an entry for ``Sturgeon, 
shovelnose'', in alphabetical order under ``FISHES,'' to the List of 
Endangered and Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Sturgeon, shovelnose.............  Scaphirhynchus        U.S.A. (AL, AR, IA,  Entire.............  T (S/A)                 778          N/A    17.44(aa)
                                    platorynchus.         IL, IN, KS, KY,
                                                          LA, MN, MO, MS,
                                                          MT, ND, NE, NM,
                                                          OH, OK, PA, SD,
                                                          TN, TX, WI, WV,
                                                          WY).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.44 by adding a new paragraph (aa) to read as follows:


Sec.  17.44  Special rules--fishes.

* * * * *
    (aa) Shovelnose sturgeon (Scaphirhynchus platorynchus).
    (1) Within the geographic areas set forth in paragraph (aa)(2) of 
this section, except as expressly noted in this paragraph, take of any 
shovelnose sturgeon, shovelnose-pallid sturgeon hybrids, or their roe 
associated with or related to a commercial fishing activity is 
prohibited. Capture of shovelnose sturgeon or shovelnose-pallid 
sturgeon hybrids in commercial fishing gear is not prohibited if it is 
accidental or incidental to otherwise legal commercial fishing 
activities, such as commercial fishing targeting nonsturgeon species, 
provided the animal is released immediately upon discovery, with all 
roe intact, at the point of capture.
    (2) The shovelnose and shovelnose-pallid sturgeon hybrid 
populations covered by this special rule occur in portions of Arkansas, 
Iowa, Illinois, Kansas, Kentucky, Louisiana, Missouri, Mississippi, 
Montana, North Dakota, Nebraska, South Dakota, and Tennessee. The 
specific areas are:
    (i) The portion of the Missouri River in Iowa, Kansas, Missouri, 
Montana, North Dakota, Nebraska, and South Dakota;
    (ii) The portion of the Mississippi River downstream from the 
Melvin Price Locks and Dam (Lock and Dam 26) in Arkansas, Illinois, 
Kentucky,

[[Page 53605]]

Louisiana, Missouri, Mississippi, and Tennessee;
    (iii) The Platte River downstream of the Elkhorn River confluence 
in Nebraska;
    (iv) The portion of the Kansas River downstream from the Bowersock 
Dam in Kansas;
    (v) The Yellowstone River downstream of the Bighorn River 
confluence in North Dakota and Montana; and
    (vi) The Atchafalaya River in Louisiana.
    (3) A map showing the area covered by this special rule (the area 
of shared habitat between shovelnose and pallid sturgeon) follows:
BILLING CODE 4310-55-C
[GRAPHIC] [TIFF OMITTED] TR01SE10.000



[[Page 53606]]


    Dated: August 25, 2010.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-21861 Filed 8-31-10; 8:45 am]
BILLING CODE 4310-55-P