[Federal Register Volume 76, Number 112 (Friday, June 10, 2011)]
[Proposed Rules]
[Pages 34023-34030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14454]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 100813359-1195-01]
RIN 0648-AY96


Endangered and Threatened Species; Proposed Protective 
Regulations for the Gulf of Maine Distinct Population Segment of 
Atlantic Sturgeon

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

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

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SUMMARY: This proposed rule proposes to extend the Endangered Species 
Act (ESA) section 9(a)(1)(A) through 9(a)(1)(G) prohibitions to all 
activities impacting the Gulf of Maine (GOM) Distinct Population 
Segment (DPS) of Atlantic sturgeon throughout its range except for two 
types of activities, scientific research and rescue/salvage activities, 
when those activities occur within the riverine range of the GOM DPS. 
The ESA section 9 prohibitions are comprehensive and pertain to any 
person subject to the jurisdiction of the United States. Specifically, 
section 9 of the ESA prohibits the import, export, taking, possession, 
sale or offering for sale in interstate or foreign commerce, delivery, 
receiving of, carrying, transportation, or shipping in interstate or 
foreign commerce any such species, or violation of any regulation 
pertaining to such species. On October 6, 2010, we, the National Marine 
Fisheries Service (NMFS), proposed to list the DPS of Atlantic sturgeon 
in the GOM as threatened under the ESA. When a species is listed as 
``threatened'' under the ESA, we are required to issue protective 
regulations under section 4(d) of the ESA. Such protective regulations 
are ones deemed ``necessary and advisable for the conservation of the 
species'' and may include any act prohibited for endangered species 
under section 9(a)(1) of the ESA. The prohibitions and exceptions 
proposed in this rule are deemed necessary and advisable for the 
conservation of this species. We expect that the result of extending 
such prohibitions will be to protect the GOM DPS of Atlantic sturgeon 
from direct forms of take, such as physical injury or killing, and from 
indirect forms of take, such as harm that results from habitat 
degradation while still allowing scientific research as well as salvage 
of dead fish and rescue of injured fish by experienced personnel. These 
actions will help preserve and recover the GOM DPS of Atlantic sturgeon 
by addressing the negative effects from stressors impeding recovery of 
the DPS.

DATES: Comments on this proposal must be received by August 9, 2011.

ADDRESSES: You may submit comments, identified by the RIN No. 0648-
AY96, by any of the following methods:
     Federal eRulemaking Portal: http//www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: To the attention of Lynn Lankshear at (978) 281-9394.
     Mail or hand-delivery: Submit written comments to the 
Assistant Regional Administrator, Protected Resources Division, NMFS, 
Northeast Region, 55 Great Republic Drive, Gloucester, MA 01930.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    We will accept anonymous comments (enter ``n/a'' in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    The proposed rule and other reference materials regarding this 
determination are available electronically at http://www.nero.noaa.gov/prot_res/atlsturgeon/under the section titled ``What's New'' or by 
submitting a request to the Assistant Regional Administrator, Protected 
Resources Division, NMFS, Northeast Region, 55 Great Republic Dive, 
Gloucester, MA 01930.

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

SUPPLEMENTARY INFORMATION:

Background

    As described in the Federal Register notices published October 6, 
2010 (75 FR 61872 and 75 FR 61904), NMFS determined that there are five 
Atlantic sturgeon DPSs within the United States. Along with the GOM 
DPS, there are also the New York Bight (NYB), Chesapeake Bay (CB), 
Carolina, and South Atlantic DPSs. NMFS has determined that listing all 
of the U.S. Atlantic sturgeon DPSs except the GOM DPS as endangered is 
warranted.
    The prohibitions listed under section 9(a)(1) of the ESA 
automatically apply when a species is listed as endangered but not when 
listed as threatened. Section 9 of the ESA prohibits any person subject 
to the jurisdiction of the United States from: (a) Importing any such 
species into, or exporting any such species from the U.S.; (b) taking 
any such species within the U.S. or the U.S. territorial sea; (c) 
taking any such species upon the high seas; (d)

[[Page 34024]]

possessing, selling, delivering, carrying, transporting, or shipping, 
by any means whatsoever, any such species that was illegally taken; (e) 
delivering, receiving, carrying, transporting, or shipping in 
interstate or foreign commerce, by any means whatsoever and in the 
course of commercial activity, any such species; (f) selling or 
offering for sale in interstate or foreign commerce any such species; 
or (g) violating any regulation pertaining to such species or to any 
threatened species of fish or wildlife. The ESA defines ``take'' as 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 in the regulations as any act which kills 
or injures fish or wildlife. Such an act may include significant 
habitat modification or degradation that results in death or injury of 
wildlife by significantly impairing essential behavioral patterns, 
including breeding, spawning, rearing, migrating, feeding, or 
sheltering (50 CFR 222.102). The term ``harm'' is used in this proposed 
rule as defined in the regulations.
    In the case of a species listed as threatened, section 4(d) of the 
ESA requires the Secretary of Commerce (Secretary) to issue such 
regulations as deemed necessary and advisable to provide for the 
conservation of the species. The Secretary may by regulation prohibit 
with respect to any threatened species any act prohibited under section 
9(a)(1). Whether section 9(a)(1) prohibitions are necessary and 
advisable for a threatened species is largely dependent on the 
biological status of the species and the potential impacts of various 
activities on the species. The proposed rule (75 FR 61872) and Atlantic 
Sturgeon Status Review (Atlantic Sturgeon Status Review Team (ASSRT), 
2007) provided extensive information on the status of the GOM DPS and 
impacts to Atlantic sturgeon belonging to the GOM DPS. The information 
is summarized here.
    Genetics data and tagging information support the conclusion that 
the GOM DPS includes all anadromous Atlantic sturgeon whose freshwater 
range occurs in the watersheds from the Maine/Canadian border southward 
to include all associated watersheds draining into the Gulf of Maine as 
far south as Chatham, MA. Within this range, Atlantic sturgeon have 
been documented from the Penobscot, Kennebec, Androscoggin, Sheepscot, 
Saco, Piscataqua, and Merrimack rivers. The marine range, including 
coastal bays and estuaries, of Atlantic sturgeon belonging to the GOM 
DPS extends from the Bay of Fundy, Canada to the St. Johns River, FL 
and overlaps throughout with the marine range of Atlantic sturgeon that 
originate from the other four U.S. DPSs that are proposed to be listed 
as endangered.
    Because Atlantic sturgeon use both riverine waters and the marine 
environment, they are affected by a multitude of activities. Coast-wide 
commercial over-harvesting throughout the 19th century and most of the 
20th century caused a precipitous decline in Atlantic sturgeon 
abundance for all of the U.S. Atlantic sturgeon DPSs. A coast-wide 
moratorium on harvesting Atlantic sturgeon was implemented in 1998 
pursuant to Amendment 1 of the Atlantic States Marine Fisheries 
Commission's (ASMFC) Interstate Fishery Management Plan for Atlantic 
sturgeon (ASMFC, 1998). Retention of Atlantic sturgeon from the U.S. 
Exclusive Economic Zone (EEZ) was prohibited by NMFS in 1999 (64 FR 
9449; February 26, 1999). However, despite these prohibitions on 
directed fishing for and retention of incidentally caught Atlantic 
sturgeon, other anthropogenic activities continue to take Atlantic 
sturgeon. These include incidental bycatch in commercial fisheries, 
vessel strikes, activities affecting water quality, and habitat 
disturbances such as dredging. Bycatch, water quality and dredging are 
primary stressors for the GOM DPS of Atlantic sturgeon (ASSRT, 2007). 
As described in the proposed rule (75 FR 61872), new analyses suggest 
that the level of bycatch mortality is not sustainable for the GOM DPS 
in the long-term (ASMFC, 2007). With respect to habitat, the water 
quality for coastal waters north of Cape Cod is generally fair to good 
(EPA, 2008), and the majority of historical Atlantic sturgeon spawning 
habitat is accessible in all but the Merrimack River of the GOM DPS 
(ASSRT, 2007). Nevertheless, it is difficult to verify whether Atlantic 
sturgeon spawning habitat in the GOM DPS is fully functional. In 
addition, NMFS has not implemented any bycatch reduction measures 
specifically for Atlantic sturgeon, and existing bycatch reduction 
measures are inadequate for reducing bycatch of Atlantic sturgeon in 
federally regulated fisheries. NMFS does not have the authority or 
discretion to require action to reduce the effects of in-water projects 
(e.g., dredging) specifically for Atlantic sturgeon and there are no 
specific regulations requiring action(s) to reduce effects of in-water 
projects to Atlantic sturgeon. NMFS has limited authority and 
discretion by which to regulate vessel activities in areas where 
Atlantic sturgeon occur.
    Comprehensive information on current abundance for the GOM DPS of 
Atlantic sturgeon does not exist (ASSRT, 2007). However, surveys have 
provided qualitative information on Atlantic sturgeon abundance for the 
GOM DPS, including river-specific information on abundance, trends, 
evidence of spawning, and/or documentation of multiple year-classes. 
For example, new evidence of Atlantic sturgeon year-round presence in 
the Saco River, where they have not been observed for many years, 
suggests that the numbers of Atlantic sturgeon in the GOM DPS may be 
increasing. Additionally, the catch-per-unit effort (CPUE) of subadult 
Atlantic sturgeon during gill net surveys in the Kennebec River 
increased considerably from 1977-2000 (1977 B 1981 CPUE = 0.30 versus 
1998 B 2000 CPUE = 7.43) while the CPUE of adult Atlantic sturgeon 
showed a slight increase over the same time period (1977-1981 CPUE = 
0.12 versus 1998-2000 CPUE = 0.21) (Squiers, 2004).
    The Kennebec River is currently the only known spawning river for 
the GOM DPS. Spawning likely occurs in the Penobscot River, and 
Atlantic sturgeon that use other historical spawning rivers may 
represent additional spawning groups (ASSRT, 2007). However, there is, 
as yet, no evidence that Atlantic sturgeon of the GOM DPS spawn in any 
river other than the Kennebec River (ASSRT, 2007).
    Protecting the GOM DPS of Atlantic sturgeon from direct forms of 
take, such as physical injury or killing, whether incidental or 
intentional, will help preserve and recover the DPS's remaining 
subpopulations. Protecting the GOM DPS of Atlantic sturgeon from 
indirect forms of take, such as harm that results from habitat 
degradation, will likewise help preserve the DPS's subpopulations and 
also decrease synergistic, negative effects from other stressors 
impeding recovery of the DPS. We therefore propose to extend the ESA 
section 9(a)(1)(A) through 9(a)(1)(G) prohibitions to all activities 
impacting the GOM DPS throughout its range except for two types of 
activities, scientific research and rescue/salvage activities, when 
those activities occur within the riverine range of the GOM DPS. 
Specifically, we propose to exempt from the section 9(a)(1)(B) take 
prohibitions: (a) Scientific research of Atlantic sturgeon belonging to 
the GOM DPS when conducted in the manner specified in this proposed 
rule; and, (b) salvaging dead and aiding/resuscitating live Atlantic 
sturgeon belonging to the GOM DPS by NMFS personnel or their designated 
agents as specified in this

[[Page 34025]]

proposed rule. NMFS is proposing to exempt these activities from the 
ESA section 9 take prohibitions only when these activities occur within 
the riverine range of the GOM DPS to ensure that only Atlantic sturgeon 
belonging to the GOM DPS are taken. We have determined that exempting 
these activities as specified is necessary and advisable for the 
conservation of this DPS.

Identification of Activities That Would Constitute a Violation of 
Section 9 of the ESA

    On July 1, 1994 (59 FR 34272), NMFS and the U.S. Fish and Wildlife 
Service (collectively, the ``Services'') published a policy committing 
us to identify, to the maximum extent practicable at the time a species 
is listed, those activities that would or would not constitute a 
violation of section 9 of the ESA. The intent of this policy is to 
increase public awareness of the effect of a listing on proposed and 
ongoing activities within the species range.
    Based upon available information, we believe that the activities 
that may take Atlantic sturgeon belonging to the GOM DPS include, but 
are not limited to: (1) Commercial and recreational fisheries; (2) 
scientific research and monitoring of Atlantic sturgeon, (3) emergency 
rescue/salvage of Atlantic sturgeon; (4) scientific research and 
monitoring directed at other species; (5) habitat altering activities 
affecting passage of adult sturgeon to and from spawning areas and 
availability of habitat for egg, larval or juvenile stages; (6) 
entrainment and impingement of all life stages of GOM DPS sturgeon 
during the operation of water diversions, dredging projects, and power 
plants; (7) activities impacting water quality for all life stages of 
GOM DPS sturgeon such as discharge, dumping, or applications of toxic 
chemicals, pollutants, or pesticides into waters or areas that contain 
GOM DPS sturgeon; (8) vessel strikes; and, (9) introduction or release 
of non-native species that are likely to alter the habitats of, or to 
compete for space or food, with GOM DPS sturgeon.
    This list is not exhaustive. It is intended to provide examples of 
the types of activities that are most likely to result in take of GOM 
DPS Atlantic sturgeon and a violation of this proposed rule (unless 
within the specific exemptions proposed by this rule). Whether a take 
results from a particular activity is dependent upon the facts and 
circumstances of each incident. The fact that an activity may fall 
within one of these categories does not mean that the specific activity 
will cause a take. Due to such factors as location and scope, specific 
actions may not result in direct or indirect adverse effects on the 
species. Further, an activity not listed here may in fact result in a 
take. Questions regarding whether specific activities would constitute 
a take prohibited by this rule, and general inquiries regarding 
prohibitions and permits, should be directed to NMFS--Northeast 
Regional Office (see ADDRESSES).

Activities Affecting the GOM DPS That Do Not Violate Section 9 
Including Exemptions

    Section 9(a)(1)(A), 10(a)(1)(A), and 10(a)(1)(B) of the ESA provide 
the authority to grant exemptions to the section 9 prohibitions. 
Section 10(a)(1)(A) scientific research and enhancement permits may 
authorize exemptions to any of the section 9 prohibitions and may be 
issued to Federal and non-Federal entities conducting research or 
conservation activities that involve directed (i.e., intentional) take 
of listed species. Section 10(a)(1)(B) take permits may be issued to 
non-Federal entities performing activities that may incidentally take 
listed species in the course of an otherwise legal activity. These 
section 10 permits are mechanisms for providing exemptions to the 
section 9(a)(1)(B) prohibitions should the GOM DPS become listed, and 
impacts on the GOM DPS from actions in compliance with such permits 
would not constitute violations of this proposed rule.
    Likewise, should the GOM DPS become listed, federally funded or 
approved activities that incidentally take Atlantic sturgeon belonging 
to the GOM DPS would not constitute violations of this proposed rule 
when the activities are conducted in accordance with an incidental take 
statement issued through a biological opinion provided by NMFS pursuant 
to section 7 of the ESA. Section 7 of the ESA requires all Federal 
agencies to consult with NMFS if actions they fund, authorize, or carry 
out may affect any ESA-listed species under NMFS jurisdiction. Section 
7 authorizes NMFS to issue an incidental take statement with a 
biological opinion if NMFS has determined that the activity may 
adversely affect, but will not jeopardize, the continued existence of 
the listed species. Therefore, if this rule and the proposed rule to 
list the GOM DPS are finalized, incidental take of GOM DPS Atlantic 
sturgeon resulting from federally funded, authorized, or implemented 
activities would not violate the section 9(a)(1)(B) or 9(a)(1)(C) take 
prohibitions, provided the activities are conducted in accordance with 
an incidental take statement and all reasonable and prudent measures 
and terms and conditions to minimize the effects of the taking on the 
listed species.
    As described above, we have determined that in certain 
circumstances, extending the ESA section 9(a)(1)(B) take prohibitions 
to the GOM DPS of Atlantic sturgeon is not necessary and advisable. We 
are proposing two exemptions to these prohibitions for activities that 
provide for the conservation of the GOM DPS: (1) Scientific research 
conducted on GOM DPS Atlantic sturgeon within the riverine portion of 
its range and in accordance with accepted NMFS protocol(s); and, (2) 
salvage of dead and recovery of live stranded or injured GOM DPS 
Atlantic sturgeon found within the riverine range of the GOM DPS. These 
exemptions are described in more detail rule in later sections (see 
``Exemption for Scientific Research'' and ``Salvage and Recovery'' 
below).
    The prohibitions of section 9(a)(1)(B) apply to all other 
activities that do not meet the specific exemptions for scientific 
research, salvage and recovery as described in this proposed rule. All 
other prohibitions of sections 9(a)(1)(A) and 9(a)(1)(C) through 
9(a)(1)(G) would apply to the GOM DPS unless authorized under a section 
10 permit or through consultation under section 7 as previously 
described.
    In determining that it is not necessary and advisable to apply ESA 
section 9 take prohibitions on the certain activities described here, 
we recognize that new information may require a reevaluation of that 
conclusion at any time. For any of the exemptions from the prohibitions 
described in this proposed rule, we will periodically evaluate the 
activity's effect on the conservation of the GOM DPS of Atlantic 
sturgeon. We will impose take prohibitions on the activities previously 
exempted through rulemaking if we determine that it is necessary and 
advisable for the conservation of the species.

Exemption for Scientific Research

    Adult and subadult Atlantic sturgeon that originate from different 
rivers mix in the marine environment (Stein et al., 2004; USFWS, 2004), 
and are visually indistinguishable from each other regardless of the 
river or DPS of origin. However, mixing is not known to occur within 
the riverine environment. Atlantic sturgeon use the riverine 
environment for spawning and are intolerant of saline environments from 
the egg stage through the first year of life

[[Page 34026]]

(Van Eenennaam et al., 1996; Niklitschek, 2001). Thus, the spawning 
adults must enter the riverine environment to spawn. Genetic analyses 
and other information support that Atlantic sturgeon originating from 
the Kennebec River are part of a discrete population segment (ASSRT, 
2007). This means that straying of Atlantic sturgeon from other 
Atlantic sturgeon DPSs into riverine waters of the GOM DPS of Atlantic 
sturgeon does not typically occur and is unlikely to occur. Therefore, 
Atlantic sturgeon that occur in riverine waters of the GOM DPS are 
considered GOM DPS Atlantic sturgeon.
    To ensure that the proposed exemption would result in the taking of 
only GOM DPS Atlantic sturgeon, we are proposing that the scientific 
research exemption to the section 9(a)(1)(B) take prohibitions apply 
only to Atlantic sturgeon found within the riverine range of the GOM 
DPS (Table 1). Within-river boundaries for the proposed exemptions were 
selected using reported salinity data, threshold salinities of less 
than 20 ppt (highest reported value for bottom salinity was used, when 
available), and identification of easily recognizable landmarks, such 
as a bridge, located at or upstream of the location where the 
referenced salinity measurement was taken. For example, for the 
Kennebec River (and Androscoggin, which flows into the Kennebec above 
the salinity-based cutoff point), the location where salinity is 
unlikely to exceed 20 ppt was determined using Mayer et al. (1996), who 
reported a maximum salinity of 19.38 at 15 m depth in September 1994 at 
a sampling station approximately 5 km downstream of the U.S. Route 1 
bridge crossing in Bath, ME. In order to clearly demarcate the area in 
which the proposed exemptions would apply, the U.S. Route 1 Bridge in 
Bath, ME is proposed as the exemption boundary. The exemption to the 
section 9(a)(1) prohibitions for scientific research would apply 
upstream of this boundary; whereas downstream, the exemption would not 
apply. Exemption boundaries for other river systems within the range of 
the GOM DPS were determined using similar methodology. Latitude and 
longitude are also provided for points on either side of each river. 
The straight line between the two points can be used to help identify 
the exemption boundary.

 Table 1--Exemption Boundary for Each Named River. The Exemptions Apply
to Waters Upstream of the Exemption Boundary. Latitude and Longitude Are
    Provided for a Single Point on Either Side of Each River To Help
  Identify the Exemption Boundary. The Reported Salinities and the Data
         Sources Used To Identify Exempted Waters Are Indicated.
------------------------------------------------------------------------
                          Exemption      Right and left   Salinity (ppt)
        River              boundary       bank points       and source
------------------------------------------------------------------------
Merrimack............  U.S. Rt. 1       42.813848N,      20.74; EPA NCA.
                        Bridge           70.874524W.
                        Newburyport,    42.817869N,
                        MA.              70.870277W.
Piscataqua...........  Leigh's Mill     43.218014N,      17.9; EPA NCA.
                        Pond South       70.813416W.
                        Berwick, ME.    43.217966N,
                                         70.811286W.
Saco.................  Main St. Bridge  43.492736N,      20; Gupta et
                        Biddeford, ME    70.449813W.      al., 1994.
                        (2 spans).      43.493564N,
                                         70.448071W.
                                        43.495848N,
                                         70.447886W.
                                        43.496733N,
                                         70.446901W.
Kennebec.............  U.S. Rt. 1       43.911797N,      19.38; Mayer et
                        Bridge Bath,     69.813828W.      al., 1996.
                        ME.             43.911835N,
                                         69.802635W.
Androscoggin.........  U.S. Rt. 1       43.911797N,      19.38; Mayer et
                        Bridge Bath,     69.813828W.      al., 1996.
                        ME.             43.911835N,
                                         69.802635W.
Sheepscot............  Sheepscot Rd     44.05154N,       19.38; Mayer et
                        Bridge           69.613313W.      al., 1996.
                        Newcastle, ME.  44.049814N,
                                         69.609584W.
Penobscot............  Cove Brook       44.693549N,      0-26.7\1\;
                        Winterport, ME.  68.849642W.      Goulette,
                                        44.696325N,       2004.
                                         68.831188W.
------------------------------------------------------------------------
\1\ Source Goulette (2004, unpub. data) reported a maximum bottom
  salinity of 26.7 ppt during low flows at Bald Hill Cove in Winterport,
  ME. However, because this value was significantly higher than the next
  highest reported bottom salinity (17 ppt) and was measured during very
  low flow conditions, NMFS considered it to be an outlier.

    Many important aspects of Atlantic sturgeon life history are still 
unknown (Murawski and Pacheco, 1977; Van den Avyle, 1983; Smith and 
Dingley, 1984; Smith and Clugston, 1997; Bain, 1997; Bemis and Kynard, 
1997; Kynard and Horgan, 2002; ASSRT 2007). Scientific research 
(including monitoring) is vital for improving our understanding of the 
status and risks facing Atlantic sturgeon, and providing critical 
information for assessing the effectiveness of current and future 
management practices. Research activities aid in the conservation of 
listed species by furthering our understanding of the species' life 
history and biological requirements. We recognize, however, that many 
scientific research activities involve take and may pose some level of 
risk to individuals or to the species. Therefore, it is necessary for 
research activities to be carried out in a manner that minimizes the 
adverse impacts of the activities on individuals and the species while 
obtaining crucial information that will benefit the species.
    Properly planned and implemented research and assessment are 
critical to minimizing the risks and maximizing the conservation 
benefit of the research. Guidelines developed by sturgeon researchers 
in cooperation with NMFS for Atlantic and other sturgeon species have 
helped facilitate standardization of research protocols while 
minimizing risk to the species as a result of handling and sampling. In 
2000, Moser et al. developed guidelines for shortnose and Atlantic 
sturgeons that described the most acceptable methods (i.e., minimizing 
stress and mortality) at that time for short-term holding, 
identification and measurement, tagging, tissue sampling, gastric 
lavage, and collection. In 2007, NMFS provided funding to the ASMFC to 
co-host a workshop in order to identify necessary activities, 
techniques and methodologies for updating Moser et al. (2000), which 
was intended to be a `living document' to be revised as new or refined 
techniques were developed. As a result of this workshop, a subgroup of 
sturgeon researchers was formed to write a comprehensive document, 
subject to peer review, describing research protocols and techniques 
specifically for Atlantic sturgeon. The resulting document, titled 
``Atlantic

[[Page 34027]]

Sturgeon Research Techniques'' (Damon-Randall et al., 2010), is 
intended as a guide that describes the purpose and application of 
common Atlantic sturgeon research techniques. A second document, titled 
``A Protocol for Use of Shortnose, Atlantic, Gulf, and Green 
Sturgeons'' (Kahn and Mohead, 2010), was also developed by NMFS to 
provide a comprehensive review of safe, standardized research practices 
for the multiple sturgeon species under NMFS's jurisdiction. This 
document was intended as a guide to assist researchers in applying for 
appropriate research permits and includes safe handling and sampling 
protocols in cases where Atlantic sturgeon co-occur with other ESA-
listed fishes (e.g. shortnose sturgeon). As described in more detail 
below, any research activities exempted under this proposed rule would 
first be required to undergo review by NMFS to ensure consistency with 
recommended protocols.
    Technologies and methods for research that do not require capture 
of individual sturgeon are becoming more widely available (e.g., side-
scan sonar, Didson, in-water detection technology). These technologies 
have been shown to be effective at providing needed information on, 
among other things, Atlantic sturgeon habitat use and abundance, while 
eliminating the likelihood of injury or mortality to the sturgeon that 
can result from capture and handling. Technological advances are also 
making it possible to use non-invasive methods (e.g., ultrasound) in 
place of invasive methods (e.g., laparoscopy) for sturgeon research, 
thus reducing the risk of harm to the sturgeon even when capture and 
handling is necessary. Damon-Randall et al. (2010) includes a 
recommendation on using passive techniques such as sonar, video, and a 
combination of both whenever possible. These non-invasive techniques 
have not been shown to negatively affect Atlantic sturgeon behavior 
(i.e., do not cause harm), may increase the likelihood of successfully 
obtaining data, reduce the effort needed to achieve the research 
objectives, and reduce the potential for gear loss (e.g., nets used for 
capturing sturgeon).
    As described above, the collection of needed scientific information 
provides a conservation benefit to ESA-listed species. The permitting 
process (see 50 CFR parts 222, 223 and 224) is intended to ensure that, 
in the course of conducting bona-fide research, work is conducted in a 
manner that minimizes harm (including injury and death) to the species 
and individual animals. However, research of the GOM DPS that is 
already in progress may potentially be impeded if researchers are 
required to suspend work and obtain a section 10(a)(1)(A) permit, given 
that permit processing times can take 90 days or more, and that NMFS 
cannot process and finalize a permit request until publication of a 
final rule listing the GOM DPS under the ESA. Delay or interruption of 
research could negatively affect the ability to maintain time-series 
data and acquisition of information necessary for the survival and 
recovery of the species. Therefore, we conclude that it is not 
necessary and advisable to impose the ESA-take prohibitions on research 
that results in take, but not harm, of Atlantic sturgeon belonging to 
the GOM DPS under certain specified conditions.
    To comply with the research exemption proposed in this rule, 
researcher(s) would be required to submit a notice to NMFS's Northeast 
Regional Administrator (RA) at least 60 days prior to the commencement 
of such research, providing: (a) A statement describing the purpose of 
the research; (b) a detailed description of the study design, including 
all techniques and methodologies for sampling, and the data to be 
collected; (c) a list of the researchers performing the proposed 
research activities, including information demonstrating the level of 
experience for each of the technologies/methods to be used and the 
institution to which each is affiliated; (d) an estimate of the total 
take anticipated from such research by life stage; and, (e) the time 
period and specific location(s) of the research. To ensure that 
Atlantic sturgeon belonging to the GOM DPS, Atlantic sturgeon belonging 
to other DPSs, or any other ESA-listed species are not harmed as a 
result of this exemption to the 9(a)(1)(B) take prohibitions, and to 
monitor and enforce the use of this exemption, research activities: (a) 
Must be conducted in accordance with NMFS-approved methods for Atlantic 
sturgeon or use technologies that do not require capture or handling of 
Atlantic sturgeon; (b) must be directed at Atlantic sturgeon of the GOM 
DPS and not be incidental to research of another species; (c) must be 
conducted within the riverine range of the GOM DPS as specified in this 
rule; (d) must be intended as involving only non-lethal take; (e) must 
not take Atlantic sturgeon for artificial spawning or enhancement 
activities; (f) must comply with all other laws, including state 
permits, if applicable; and, (g) must be conducted by researchers with 
documented experience conducting the proposed methodologies/techniques 
on Atlantic sturgeon or another sturgeon species. Once the RA receives 
information for scientific research as described above, the RA will 
review the information and respond to the researcher(s) with a letter 
acknowledging that the research meets the exemption to the take 
prohibitions applied to Atlantic sturgeon GOM DPS, or a letter 
informing the researcher(s) that the exemption does not apply to the 
proposed research. The RA's letter is not a permit, and the letter does 
not provide authorization to conduct the research. Rather, the letter 
is intended as an acknowledgement that the specified research is or is 
not consistent with the exemption to the take prohibitions for 
scientific research provided in this rule. In order to give researchers 
enough time to submit a letter to the RA, we propose that ESA section 9 
take prohibitions not apply to the scientific research that would 
otherwise fall under the exemption until two months after publication 
of a final section 4(d) rule.
    The researcher(s) must provide a report of the research results to 
the RA no later than 60 days following completion or termination of the 
research activity, including the total take (by life stage) and the 
method of take (e.g., harassment, capture, handling, etc.). For multi-
year studies, researchers must provide an annual report to the RA 
summarizing the results to date, including the number of Atlantic 
sturgeon takes (by life stage) and the method of take (e.g., 
harassment, capture, handling, etc.). The research must be immediately 
suspended and the RA notified if any aspect of the research results in 
or is believed to have resulted in take causing harm (i.e., injury or 
death) to any Atlantic sturgeon belonging to the GOM DPS, or take (with 
or without causing harm) of any other ESA-listed species for which the 
researcher does not have an incidental take permit issued in accordance 
with Section 10(a)(1)(B).

Salvage and Recovery

    To ensure that only Atlantic sturgeon listed as threatened would be 
affected, this proposed exemption would apply only to Atlantic sturgeon 
found within the riverine range of the GOM DPS (Table 1) given the 
overlap in distribution of all five U.S. DPSs within marine waters.
    Atlantic sturgeon carcasses and live, stranded sturgeon can provide 
pertinent life history data and information on activities affecting the 
GOM DPS. Collection of samples, as appropriate, from carcasses and live 
stranded or injured sturgeon can also help reduce the need for the 
intentional capture of Atlantic sturgeon for scientific research.

[[Page 34028]]

Therefore, salvage of dead Atlantic sturgeon and recovery of live, 
stranded Atlantic sturgeon belonging to the GOM DPS affords a 
conservation benefit to the species by providing valuable data without 
putting the DPS at further risk.
    In order to obtain the most information, carcasses must be 
collected and transported as quickly as possible to an appropriate 
facility. Similarly, prompt attention to a live, stranded or injured 
sturgeon will increase its chances of survival. NMFS does not have 
sufficient personnel throughout the riverine range of the GOM DPS to 
respond promptly to all Atlantic sturgeon salvage and recovery events. 
NMFS does, however, work cooperatively with the U.S. Fish and Wildlife 
Service (FWS) and state wildlife agencies for salvage and recovery 
events involving other protected species including shortnose sturgeon, 
sea turtles and marine mammals. Some exemptions to the ESA take 
prohibitions for salvage or to aid a sick or injured animal already 
exist for some of these species. Therefore, we propose a similar 
exemption from the take prohibitions of section 9(a)(1)(B) for any 
agent or employee of NMFS, FWS, or any other Federal land or water 
management agency, or any agent or employee of a state agency 
responsible for fish and wildlife who is designated by his or her 
agency for such purposes, when acting in the course of his or her 
official duties to take Atlantic sturgeon belonging to the GOM DPS 
without a permit if such taking is necessary to salvage a dead 
specimen, which may be useful for scientific study; dispose of a dead 
specimen; or aid a sick, injured, or stranded specimen. Whenever 
possible, live specimens must be returned to their aquatic environment 
as soon as possible. This exception to the take prohibitions would only 
apply if the action is reported to the NMFS Northeast Regional 
Administrator within 30 days of occurrence of the event.

References Cited

    A complete list of the references used in this proposed rule is 
available upon request (see ADDRESSES).

Classification

National Environmental Policy Act (NEPA)

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

Executive Order (E.O.) 12866

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

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this determination is as follows.
    The proposed action would establish protective regulations for the 
Gulf of Maine Distinct Population Segment (GOM DPS) of Atlantic 
sturgeon. NMFS has proposed to list the GOM DPS of Atlantic sturgeon as 
threatened, and to list four other Atlantic sturgeon DPSs as endangered 
(75 FR 61872 and 75 FR 61904; October 6, 2010). All five DPSs share the 
same marine range, but each DPS has a unique riverine range.
    The prohibitions under section 9(a)(1) of the ESA apply 
automatically when a species is listed as endangered but not when a 
species is listed as threatened. In the case of threatened species, 
section 4(d) of the ESA leaves it to the Secretary's discretion whether 
and to what extent to extend the section 9 prohibitions of the ESA and 
directs the agency to issue regulations it considers necessary and 
advisable for the conservation of the species. Protecting the GOM DPS 
of Atlantic sturgeon from direct forms of take (including harass, harm, 
pursue, hunt, shoot, wound, kill, trap, or collect; or to attempt any 
of these) and indirect forms of take, such as harm that results from 
habitat degradation, will help preserve and recover the DPS. However, 
applying the section 9(a)(1) prohibitions to all forms of take for GOM 
DPS Atlantic sturgeon could impede necessary scientific research given 
the lengthy processing time to acquire a section 10(a)(1)(A) scientific 
research permit. Scientific research activities aid in the conservation 
of listed species by furthering our understanding of the species' life 
history and biological requirements. Collection of samples, as 
appropriate, from carcasses and live stranded or injured sturgeon can 
also help reduce the need for the intentional capture of Atlantic 
sturgeon for scientific research. Therefore, we propose to extend the 
ESA section 9(a)(1)(A) through 9(a)(1)(G) prohibitions to all 
activities impacting the GOM DPS throughout its range except for: (1) 
Scientific research conducted on GOM DPS Atlantic sturgeon within the 
riverine portion of its range and in accordance with accepted NMFS 
protocol(s); and, (2) salvage of dead and recovery of live stranded or 
injured GOM DPS Atlantic sturgeon found within the riverine range of 
the GOM DPS.
    Within the marine range of the GOM DPS of Atlantic sturgeon, the 
section 9(a)(1) prohibitions proposed by this action are the same as 
the prohibitions that will automatically apply to the same area upon 
listing of any of the other four DPSs as endangered. Therefore, the 
entities affected by this action are those which conduct the activities 
exempted from the section 9 prohibitions for GOM DPS Atlantic sturgeon. 
These are Federal and state agencies, research institutions and 
universities which conduct scientific research, salvage, and recovery 
activities for Atlantic sturgeon within the river range of the GOM DPS. 
The only impact to these entities would be that scientific research, 
salvage of dead and recovery of live injured GOM DPS Atlantic sturgeon 
in the river portion of its range could take place without a section 
10(a)(1)(A) permit. This action would not impose any additional 
economic impacts on these affected entities.
    As a result, an initial regulatory flexibility analysis is not 
required and has not been prepared.

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 OMB Control Number. This proposed rule contains 
collection-of-information requirements subject to the Paperwork 
Reduction Act (PRA) and which have been submitted to OMB for review and 
approval. Public reporting burden per response for this collection of 
information is estimated to average: (1) 40 hours to prepare reports on 
research of GOM DPS Atlantic sturgeon; and (2) 5 hours to prepare 
reports on emergency rescue, salvage or disposal of GOM DPS Atlantic 
sturgeon. These estimates include the time for reviewing instructions, 
searching existing data

[[Page 34029]]

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).

Information Quality Act

    The Information Quality Act directed the Office of Management and 
Budget to issue government wide guidelines that ``provide policy and 
procedural guidance to federal agencies for ensuring and maximizing the 
quality, objectivity, utility, and integrity of information (including 
statistical information) disseminated by federal agencies.'' Under the 
NOAA guidelines, this action is considered a Natural Resource Plan. It 
is a composite of several types of information from a variety of 
sources. Compliance of this document with NOAA guidelines is evaluated 
below.
     Utility: The information disseminated is intended to 
describe a management action and the impacts of that action. The 
information is intended to be useful to state and Federal agencies, 
non-governmental organizations, industry groups and other interested 
parties so they can understand the management action, its effects, and 
its justification.
     Integrity: No confidential data were used in the analysis 
of the impacts associated with this document. All information 
considered in this document and used to analyze the proposed action, is 
considered public information.
     Objectivity: The NOAA Information Quality Guidelines 
standards for Natural Resource Plans state that plans be presented in 
an accurate, clear, complete, and unbiased manner. NMFS strives to 
draft and present proposed management measures in a clear and easily 
understandable manner with detailed descriptions that explain the 
decision making process and the implications of management measures on 
natural resources and the public. This document was reviewed by a 
variety of biologists, policy analysts, and NOAA attorneys.

E.O. 13132--Federalism

    In keeping with the intent of the Administration and Congress to 
provide continuing and meaningful dialogue on issues of mutual state 
and Federal interest, this proposed rule will be given to the relevant 
state agencies in each state in which Atlantic sturgeon belonging to 
the GOM DPS occurs as well as the ASMFC, and they will be invited to 
comment. We intend to continue engaging in informal and formal contacts 
with the States and ASMFC, and other affected local or regional 
entities, giving careful consideration to all written and oral comments 
received.

E.O. 12898--Environmental Justice

    E.O. 12898 requires that Federal actions address environmental 
justice in decision-making process. In particular, the environmental 
effects of the actions should not have a disproportionate effect on 
minority and low-income communities. The proposed protective 
regulations are not expected to have a disproportionately high effect 
on minority populations or low-income populations.

Coastal Zone Management Act (16 U.S.C. 1451 et seq.)

    Section 307(c)(1) of the Federal Coastal Zone Management Act of 
1972 requires that all Federal activities that affect any land or water 
use or natural resource of the coastal zone be consistent with approved 
state coastal zone management programs to the maximum extent 
practicable. NMFS has determined that this action is consistent to the 
maximum extent practicable with the enforceable policies of approved 
Coastal Zone Management Programs of each of the states within the range 
of the GOM DPS. Letters documenting NMFS's determination, along with 
the proposed rule, have been sent to the coastal zone management 
program offices in each affected state. A list of the specific state 
contacts and a copy of the letters are available upon request.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: June 6, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 223 is 
proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

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

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

    2. In subpart B, add Sec.  223.211 to read as follows:


Sec.  223.211  Atlantic sturgeon.

    (a) Prohibitions. The prohibitions of sections 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 Gulf of Maine Distinct Population Segment (GOM 
DPS) of Atlantic sturgeon listed in Sec.  223.102(c)(30).
    (b) Exemptions. Exemptions to the take prohibitions described in 
section 9(a)(1)(B) of the ESA (16 U.S.C. 1538(a)(1)(B)) applied in 
paragraph (a) of this section to the threatened GOM DPS listed in Sec.  
223.102(c)(30) are described in paragraphs (b)(1) and (2) of this 
section.
    (1) Scientific research exemption. The prohibitions of paragraph 
(a) of this section relating to the threatened GOM DPS listed in Sec.  
223.102(c)(30) do not apply to ongoing or future scientific research 
if:
    (i) The scientific research is conducted in accordance with NMFS-
approved methods for Atlantic sturgeon or uses technologies that do not 
require capture or handling of Atlantic sturgeon;
    (ii) The research is directed at Atlantic sturgeon of the GOM DPS 
and is not incidental to research of another species;
    (iii) The research is conducted upstream of the U.S. Route 1 Bridge 
at Newburyport, MA on the Merrimack River, upstream of Leigh's Mill 
Pond, South Berwick, ME on the Piscataqua River, upstream of the Main 
Street Bridge, Biddeford, ME on the Saco River, upstream of the U.S. 
Route 1 Bridge at Bath, ME on the Kennebec River, upstream of the 
Sheepscot Road Bridge at Newcastle, ME on the Sheepscot River, or 
upstream of Cove Brook at Winterport, ME on the Penobscot River (i.e., 
within the riverine range of the GOM DPS);
    (iv) The research is conducted in compliance with all other laws, 
including state permits, if applicable;
    (v) The research is conducted by researchers with documented 
experience conducting the proposed methodologies/techniques on Atlantic 
sturgeon or another sturgeon species;
    (vi) Researchers make every effort to ensure that take is non-
lethal;
    (vii) Take does not involve artificial spawning or enhancement 
activities;
    (viii) The researcher provides the following to the NMFS Northeast 
Regional Administrator at least 60 days prior to the commencement of 
such research (or, for ongoing research, within 60 days of issuance of 
a final

[[Page 34030]]

rule): a description of the study objectives and justification; a 
summary of the study design and methodology; a list of the researchers 
who will perform the study, including information demonstrating prior 
experience with Atlantic sturgeon or another sturgeon species for each 
of the technologies/methods to be used; the institution to which each 
participating researcher is affiliated; an estimate of the total take 
(by life stage) anticipated from the study; and the time period and 
location of the research;
    (ix) Reports that include the total take (by life stage) and the 
method of taking (e.g., harassment, capture, handling) are provided to 
the NMFS Northeast Regional Administrator no later than 60 days 
following completion or termination of the research activity, or 
annually for multi-year studies; and
    (x) The researcher(s) immediately suspend field studies and report 
to the NMFS Northeast Regional Administrator if any aspect of the 
research results in or is believed to have resulted in take causing 
injury or mortality of any Atlantic sturgeon belonging to the GOM DPS, 
or take (with or without causing injury or mortality) of any other ESA-
listed species for which the researcher does not have an incidental 
take permit issued in accordance with section 10(a)(1)(B) of the ESA.
    (2) Salvage and Recovery Exemption. The prohibitions of paragraph 
(a) of this section relating to the threatened GOM DPS of Atlantic 
sturgeon listed in Sec.  223.102(c)(30) do not apply to Atlantic 
sturgeon salvage and rescue activities performed by persons described 
in paragraph (b)(2)(i) of this section, that include disposing of dead 
fish, salvaging dead Atlantic sturgeon for use in scientific studies or 
aiding sick, injured, or stranded Atlantic sturgeon, if:
    (i) The activity is conducted by an employee of NMFS, the U.S. Fish 
and Wildlife Service, any other Federal land or water management 
agency, or any agent or employee of a state agency responsible for fish 
and wildlife who is designated by his or her agency for such purposes, 
when acting in the course of his or her official duties;
    (ii) The activity is conducted in compliance with all other laws, 
including state permits, if applicable;
    (iii) The activity is conducted upstream of the U.S. Route 1 Bridge 
at Newburyport, MA on the Merrimack River, upstream of Leigh's Mill 
Pond, South Berwick, ME on the Piscataqua River, upstream of the Main 
Street Bridge, Biddeford, ME on the Saco River, upstream of the U.S. 
Route 1 Bridge at Bath, ME on the Kennebec River, upstream of the 
Sheepscot Road Bridge at Newcastle, ME on the Sheepscot River, or 
upstream of Cove Brook at Winterport, ME on the Penobscot River (i.e., 
within the riverine range of the GOM DPS);
    (iv) Live specimens are returned to their natural environment as 
soon as the sturgeon is no longer in danger (i.e., sick or injured); 
and
    (v) The Northeast Regional Administrator is notified within 30 days 
after such an event whether the activity was a salvage or recovery, the 
individual(s) who salvaged or recovered the sturgeon, his or her agency 
affiliation, and the disposition of the specimen.

[FR Doc. 2011-14454 Filed 6-9-11; 8:45 am]
BILLING CODE 3510-22-P