[Federal Register Volume 76, Number 212 (Wednesday, November 2, 2011)]
[Proposed Rules]
[Pages 67652-67656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28430]



[[Page 67652]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 111024651-1650-01]
RIN 0648-XA739


Listing Endangered and Threatened Wildlife and Plants; 90-Day 
Finding on a Petition To List Alewife and Blueback Herring as 
Threatened Under the Endangered Species Act

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

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

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SUMMARY: We, NMFS, announce a 90-day finding for a petition to list 
alewife (Alosa pseudoharengus) and blueback herring (Alosa aestivalis) 
as threatened under the Endangered Species Act and to designate 
critical habitat concurrent with a listing. We find that the petition 
presents substantial scientific information indicating the petitioned 
action may be warranted. Accordingly, we will conduct a review of the 
status of alewife and blueback herring, collectively referred to as 
river herring, to determine if the petitioned action is warranted. To 
ensure that the review is comprehensive, we solicit information 
pertaining to this species from any interested party.

DATES: Information related to this petition finding must be received by 
January 3, 2012.

ADDRESSES: You may submit comments, identified by the RIN 0648-XA739, 
by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http//www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail or hand-delivery: Assistant Regional Administrator, 
NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, 
MA 01930.
    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.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    The petition and other pertinent information are also available 
electronically at the NMFS Web site at http://www.nero.noaa.gov/prot_res/CandidateSpeciesProgram/RiverHerringSOC.htm.

FOR FURTHER INFORMATION CONTACT: Kim Damon-Randall, NMFS, Northeast 
Regional Office (978) 282-8485 or Marta Nammack, NMFS, Office of 
Protected Resources (301) 713-1401.

SUPPLEMENTARY INFORMATION: 

Background

    On August 5, 2011, we, the National Marine Fisheries Service 
(NMFS), received a petition from the Natural Resources Defense Council 
(NRDC), requesting that we list alewife (Alosa pseudoharengus) and 
blueback herring (Alosa aestivalis) each as threatened throughout all 
or a significant portion of their range under the Endangered Species 
Act (ESA). In the alternative, they requested that NMFS designate 
distinct population segments (DPS) of alewife and blueback herring as 
specified in the petition (Central New England (CNE), Long Island Sound 
(LIS), Chesapeake Bay (CB) and Carolina for alewives, and CNE, LIS, and 
CB for blueback herring). The petition contains information on the two 
species, including the taxonomy; historical and current distribution; 
physical and biological characteristics of the species' habitat and 
ecosystem relationships; population status and trends; and factors 
contributing to the species' decline. NRDC also included information 
regarding the possible DPSs of alewife and blueback herring as 
described above. The petition addresses the five factors identified in 
section 4(a)(1) of the ESA: (1) Present or threatened destruction, 
modification, or curtailment of habitat or range; (2) over-utilization 
for commercial, recreational, scientific, or educational purposes; (3) 
disease or predation; (4) inadequacy of existing regulatory mechanisms; 
and (5) other natural or man-made factors affecting the species' 
continued existence.

ESA Statutory Provisions and Policy Considerations

    Section 4(b)(3)(A) of the ESA (16 U.S.C. 1533(b)(3)(A)) requires 
that we make a finding as to whether a petition to list, delist, or 
reclassify a species presents substantial scientific or commercial 
information indicating the petitioned action may be warranted. ESA 
implementing regulations define substantial information as the amount 
of information that would lead a reasonable person to believe the 
measure proposed in the petition may be warranted (50 CFR 
424.14(b)(1)). In determining whether substantial information exists 
for a petition to list a species, we take into account several factors, 
including information submitted with, and referenced in, the petition 
and all other information readily available in our files. To the 
maximum extent practicable, this finding is to be made within 90 days 
of the receipt of the petition (16 U.S.C. 1533(b)(3)(A)), and the 
finding is to be published promptly in the Federal Register. If we find 
that a petition presents substantial information indicating that the 
requested action may be warranted, section 4(b)(3)(A) of the ESA 
requires the Secretary of Commerce (Secretary) to conduct a review of 
the status of the species. Section 4(b)(3)(B) requires the Secretary to 
make a finding as to whether the petitioned action is warranted within 
12 months of the receipt of the petition. The Secretary has delegated 
the authority for these actions to the NOAA Assistant Administrator for 
Fisheries.
    The ESA defines an endangered species as ``any species which is in 
danger of extinction throughout all or a significant portion of its 
range (ESA section 3(6)).'' A threatened species is defined as a 
species that is ``likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its range 
(ESA section 3(19)).'' As stated previously, under section 4(a)(1) of 
the ESA, a species may be determined to be threatened or endangered as 
a result of any one of the following factors: (1) Present or threatened 
destruction, modification, or curtailment of habitat or range; (2) 
over-utilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) inadequacy of 
existing regulatory mechanisms; or (5) other natural or manmade factors 
affecting its continued existence. Listing determinations are made 
solely on the basis of the best scientific and commercial data 
available, after conducting a review of the status of the species and 
taking into account efforts made by any state or foreign nation to 
protect such species.
    Under the ESA, a listing determination can address a species, 
subspecies, or a DPS of a vertebrate species (16 U.S.C. 1532 (16)). 
NRDC presents information in the petition proposing that DPSs of 
alewife and blueback herring are present in the United States and 
indicating that it may be appropriate to divide the population

[[Page 67653]]

into DPSs of alewife and blueback herring as specified in the petition. 
If we find that listing at the species level is not warranted, we will 
determine whether any populations of these species meet the DPS policy 
criteria, and if so, whether any DPSs are endangered or threatened 
under the ESA.

Life History of Alewife and Blueback Herring

    Alewife and blueback herring are collectively referred to as 
``river herring.'' Due to difficulties in distinguishing between the 
species, they are often harvested together in commercial and 
recreational fisheries, and managed together by the Atlantic States 
Marine Fisheries Commission (ASMFC). Throughout this finding, where 
there are similarities, they will be collectively referred to as river 
herring, and where there are distinctions they will be identified by 
species.
    River herring can be found along the Atlantic coast of North 
America, from the maritime provinces of Canada to the southeastern 
United States (Mullen et al., 1986; Shultz et al., 2009). The coastal 
ranges of the two species overlap, with blueback herring found in a 
greater and more southerly distribution ranging from Nova Scotia down 
to the St. John's River, Florida; and alewife found in a more northerly 
distribution, from Labrador and Newfoundland to as far south as South 
Carolina, though the extreme southern range is a less common occurrence 
(Collette and Klein-MacPhee, 2002; ASMFC, 2009a; Kocik et al., 2009). 
Adults are most often found at depths less than 100 m (328 ft) in 
waters along the continental shelf (Neves, 1981; ASMFC, 2009a; Shultz 
et al., 2009).
    River herring have a deep and laterally compressed body, with a 
small, pointed head with relatively large eyes, and a lower jaw that 
protrudes further than the upper jaw (Collette and Klein-MacPhee, 
2002). The dorsal fin is small and slightly concave, pelvic fins are 
small, pectorals are moderate and low on the body, and the caudal fin 
is forked (Collette and Klein-MacPhee, 2002).
    The coloring varies, ranging from dark blue and bluish green to 
grayish green and bluish gray dorsally; and silvery with iridescence in 
shades of green and violet on the sides and abdomen. In adults, there 
is often a dusky spot that is located at eye level on both sides behind 
the margin of the gill cover. The colors of alewife are thought to 
change in shade according to substrate as the fish migrates upstream, 
and sea run fish are thought to have a golden cast to their coloring 
(Collette and Klein-MacPhee, 2002).
    Blueback herring and alewife are similar in appearance; however, 
there are some distinguishable characteristics: Eye diameter and the 
color of the peritoneum. The eye diameter with alewives is relatively 
larger than that of blueback herring. In blueback herring, the snout 
length is generally the same as the eye diameter; however with 
alewives, the snout length is smaller than the diameter of the eye 
(Collette and Klein-MacPhee, 2002). In alewives, the peritoneum is 
generally pale/light gray or pinkish white, whereas the peritoneum in 
blueback herring is generally dark colored and either brown or black, 
and sometimes spotted (Collette and Klein-MacPhee, 2002; ASMFC, 2009a).
    River herring are anadromous, meaning that they migrate up coastal 
rivers in the spring from the marine environment, to estuarine and 
freshwater rivers, ponds, and lake habitats to spawn (Collette and 
Klein-MacPhee, 2002; ASMFC, 2009a; Kocik et al., 2009). They are highly 
migratory, pelagic, schooling species, with seasonal spawning 
migrations that are cued by water temperature (Collette and Klein-
MacPhee, 2002; Schultz, 2009). Depending upon temperature, blueback 
herring typically spawn from late March through mid-May. However, they 
have been documented spawning in the southern parts of their range as 
early as December or January, and as late as August in the northern 
range (ASMFC, 2009a). Alewives generally migrate earlier than other 
alosine fishes, but have been documented spawning as early as February 
to June in the southern portion of their range, and as late as August 
in the northern portion of the range (ASMFC, 2009a). It is thought that 
river herring return to their natal rivers for spawning, and do exhibit 
natal homing. However, colonization of streams where river herring have 
been extirpated has been documented; therefore, some effective straying 
does occur (ASMFC, 2009a).
    Throughout their life cycle, river herring use many different 
habitats ranging from the ocean, up through estuaries and rivers, to 
freshwater lakes and ponds. The substrate preferred for spawning varies 
greatly and can include substrates consisting of gravel, detritus, and 
submerged aquatic vegetation. Blueback herring prefer swifter moving 
waters than alewife (ASMFC, 2009a). Nursery areas can include 
freshwater and semi-brackish waters; however, little is known about 
their habitat preference in the marine environment (Meadows, 2008; 
ASMFC, 2009a).

Analysis of Petition and Information Readily Available in NMFS Files

    In the following sections, we use the information presented in the 
petition and in our files to: (1) Describe the distribution of alewife 
and blueback herring; and (2) evaluate whether alewife and blueback 
herring are at abundance levels that would lead a reasonable person to 
conclude that listing under the ESA may be warranted due to any of the 
five factors listed under section 4(a)(1) of the ESA.

Abundance

    The NRDC asserts that alewife and blueback herring populations have 
suffered dramatic declines over the past 4 decades (ASMFC, 2008). The 
NRDC cites the ASMFC as stating that alewife and blueback herring 
harvest averaged almost 43 million pounds (19,504 metric tons (mt)) per 
year from 1930 to 1970. NRDC also cites ASMFC (2008) in stating that 
peak harvest occurred in the late 1940s and early 1950s and was highest 
in Virginia and North Carolina. The NRDC notes that commercial landings 
of river herring began declining sharply coastwide in the 1970s. 
However, ASMFC (2009a) reports that 140 million pounds (63,503 mt) of 
river herring were commercially landed in 1969, marking the peak in 
river herring catch; this is a discrepancy from what is stated in the 
petition. From the peak landings in 1969, landings declined to a point 
where domestic landings recently (2000-2007) exceeded only 2 million 
pounds (907 mt) yearly (ASMFC, 2009a). Declines in catch per unit 
effort (CPUE) have also been observed in two rivers for blueback 
herring and for alewife, and declining trends in CPUE for the combined 
species were also observed in two out of three rivers examined (ASMFC, 
2009a).
    ASMFC (2009a) also reports declines in abundance through run size 
estimates for river herring combined, as well as for individual species 
of alewife and blueback herring. Abundance declined in seven out of 
fourteen rivers in New England from the late 1960s to 2007, with no 
obvious signs of recovery; however, since 2004, there have been some 
signs of recovery in five out of fourteen rivers (ASMFC, 2009a). 
Coastwide declines have been observed, particularly in southern New 
England (Davis and Schultz et al., 2009). In the Connecticut River the 
number of blueback herring passing Holyoke Dam declined from 630,000 in 
1985 to a low of 21 in 2006 (Schultz et al., 2009).

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ESA Section 4(a)(1) Factors

Present or Threatened Destruction, Modification or Curtailment of 
Habitat or Range
    In the petition, the NRDC states that habitat alterations, loss of 
habitat, and impaired water quality have contributed to the decline of 
river herring since colonial times. NRDC further states that climate 
change now poses an increasing threat as well. NRDC states that dams 
and turbines block access to spawning and foraging habitat, may 
directly injure or kill passing fish, and change water quality through 
alterations in flow and temperature, which NRDC asserts is 
significantly impacting river herring. NRDC cites ASMFC (2009b) which 
indicates that flow variations caused by dams, particularly hydropower 
dams, can displace eggs as well as disrupt migration patterns, which 
will adversely affect the survival and productivity of all life stages 
of river herring as well as other anadromous fish. ASMFC (2009b) 
indicates that increased flows at dams with fishways can also adversely 
affect the upstream migration of adults, impeding their ability to make 
it up through the fishway, as well as the downstream migration of 
juveniles, causing an early downstream migration and higher flows 
through sluiceways resulting in mortality. According to NRDC, dams have 
caused river herring to lose access to significant portions of their 
spawning and foraging habitat. In addition to altering flow and 
changing environmental parameters such as temperature and turbidity, 
NRDC indicates that dams, particularly hydropower dams, cause direct 
mortality to various life stages of river herring through entrainment 
and impingement in turbines, and changing water pressures. In addition, 
NRDC states that turbines used in tidal hydroelectric power plants may 
impact river herring with each tidal cycle as the fish migrate through 
the area.
    Dredging and blasting were also identified by NRDC as significant 
threats to river herring. The petition cites ASMFC (2009b), asserting 
that increased suspended sediment, changes in water velocities, and 
alteration of substrates through dredging can directly impact river 
herring habitat. In addition, NRDC asserts that these operations may 
affect migration patterns and spawning success, and they can directly 
impact gill tissues, producing near fatal effects (NMFS, 1998; ASMFC, 
2009b).
    The NRDC also asserts that water quality poses a significant threat 
to river herring through changes in water temperature and flow, 
introduction of toxic pollutants, discharge, erosion, and nutrient and 
chemical run-off (ASMFC, 2009b). NRDC states that ``poor water quality 
alone can significantly impact an entire population of alewife or 
blueback herring.'' ASMFC (2008) notes that significant declines in 
dissolved oxygen (DO) levels in the Delaware River during the 1940s and 
1950s from heavy organic loading made portions of the river during the 
warmer months of the year uninhabitable to river herring. ASMFC (2008, 
2009a) indicates that river herring abundance is significantly affected 
by low DO and hypoxic conditions in rivers and that these conditions 
may also prevent spawning migrations.
    River herring susceptibility to toxic chemicals and metals was also 
identified by NRDC as a threat to the species. The NRDC asserts that 
river herring are subjected to contaminants through their habitat, 
which may be contaminated with dioxins, polychlorinated aromatic 
hydrocarbons, organophosphate and organochlorine pesticides, 
polychlorinated biphenyls, and other hydrocarbon compounds, as well as 
toxic metals. Citing ASMFC (1999), the NRDC states that because of 
industrial, residential, and agricultural development, heavy metal and 
various types of organic chemical pollution has increased in nearly all 
estuarine waters along the Atlantic coast, including river herring 
spawning and nursery habitat. NRDC asserts that these contaminants can 
directly impact fish through reproductive impairment, reduced 
survivorship of various life stages, and physiological and behavioral 
changes (ASSRT, 2007; 75FR 61872).
    The NRDC also identified climate change as a threat to river 
herring habitat. According to NRDC, the spatial distribution, 
migration, and reproduction of alewife may be affected through rising 
water temperatures caused by climate change. Citing the International 
Panel on Climate Change (IPCC) (2001), NRDC states that fish larvae and 
juveniles may have a high sensitivity to water temperature and suggests 
that headwaters and rivers may be more vulnerable; thus, the effects of 
climate change may be more significant to anadromous species, which 
utilize a multitude of habitats. According to ASMFC (2009b), as water 
temperatures rise, the upstream spawning migration of alewife declines, 
and will mostly cease once temperatures have risen above 21 degrees 
Celsius. In addition to increasing water temperatures, climate change 
may affect river herring through increased precipitation that may 
affect rivers and estuaries along the coast. Citing Kerr et al. (2009), 
the NRDC reports that a 10 percent increase in annual precipitation is 
expected in the Northeast United States from 1990 to 2095 and that 
precipitation has already increased 8 percent over the past 100 years 
(Markham and Wake, 2005). As increased water flows may affect 
anadromous fish migration, increased precipitation and the potential 
for flooding in rivers due to climate change may pose a significant 
threat to river herring (Limburg and Waldman, 2009).
Overutilization for Commercial, Recreational, Scientific or Education 
Purposes
    The NRDC identified direct harvest, bycatch, and incidental catch 
as significant threats to river herring. River herring were 
historically fished through inshore fisheries, and constitute one of 
the oldest fisheries in North America (Haas-Castro, 2006). Commercial 
landings of river herring reached nearly 34,000 metric tons (mt) in the 
1950s, but in the 1970s, landings fell below 4,000 mt. According to 
ASMFC (2008), foreign commercial exploitation of river herring in the 
1960s led to drastic declines in abundance of river herring. Annual 
commercial landings over the past decade have varied from 137 mt to 931 
mt, and 90 percent of this catch was typically harvested by Maine, 
North Carolina, and Virginia fisheries (Haas-Castro, 2006). 
Historically, river herring were targeted for food, bait and fertilizer 
purposes; however, they are currently most often used for bait in 
commercial fisheries (Collette and Klein-MacPhee, 2002). The NRDC 
contends that declines in river herring abundance are greatly affected 
by commercial overharvest, noting that direct harvest of river herring 
currently takes place in Maine, New Hampshire, New York, New Jersey, 
some rivers in Delaware, Maryland, Virginia, and South Carolina.
    Bycatch and incidental catch were also identified by NRDC as 
resulting in significant mortality of river herring, stating that this 
catch occurs in both state and Federal waters. NRDC asserts that the 
anadromous life history of river herring presents the potential for 
increased bycatch due to the species schooling behavior at congregation 
sites throughout different portions of migration. Citing Lessard and 
Bryan (2011), NRDC indicates that ``hot spots'' of bycatch and 
incidental catch have been found in the winter between Cape Cod and 
Cape Hatteras, in the spring with blueback herring in the southern 
region, and in the fall in the Gulf of Maine and Georges Bank. The NRDC 
states that a variety of sources including landings records, log books, 
portside sampling efforts, and the NMFS observer program provide 
information

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on bycatch and incidental catch, asserting that most of these sources 
are likely to underestimate the amount of bycatch that occurs.
    The NRDC cites Lessard and Bryan (2011) in stating that the 
majority of bycatch of river herring is taken with mid-water otter 
paired trawls, and that catch with this gear type appears to be 
increasing from 2000-2008, with an estimation of around 500,000 to 2.5 
million pounds (227 to 1,134 mt) of river herring caught annually as 
bycatch. In addition, the NRDC asserts that the Atlantic herring and 
Atlantic mackerel fisheries are increasing their use of single and pair 
mid-water trawls, and are using larger, more efficient nets, increasing 
the effort and efficiency in this fishery. The petition further 
outlines specific overharvesting issues within the Damariscotta, 
Hudson, Delaware, Potomac, Chowan, Santee-Cooper, and the St. John's 
Rivers, as well as Chesapeake Bay and Albermarle Sound.
Predation and Disease
    The NRDC identifies predation and disease as another threat facing 
river herring. Citing the Maine Department of Marine Resources (ME DMR) 
(2003), NRDC states that river herring may be preyed upon by striped 
bass, bluefish, tuna, cod, haddock, halibut, American eel, brook trout, 
rainbow trout, brown trout, lake trout, landlocked salmon, smallmouth 
bass, largemouth bass, pickerel, pike, white and yellow perch, 
seabirds, bald eagle, osprey, great blue heron, gulls, terns, 
cormorants, seals, whales, otter, mink, fox, raccoon, skunk, weasel, 
fisher, and turtles. It asserts that the decline of some populations of 
river herring is due to increased predation, citing ASMFC (2008) as 
noting a concern with increasing striped bass abundance, and 
identifying predation by striped bass as contributing significantly to 
the decline of river herring in some rivers. Additionally, many species 
of cormorants along the coast are increasing in abundance, and 
predation on alosines by cormorants has been increasing, although 
Dalton et al. (2009) suggested that the double-crested cormorant is not 
believed to pose an immediate threat to the recovery of alewife in 
Connecticut.
    According to the NRDC, significant cumulative mortality can occur 
with viral hemorrhagic septicemia, which is a viral infection known to 
infect certain anadromous fish, including river herring. Additionally, 
NRDC asserts that when levels of suspended solids are present during 
spawning, alewife eggs are significantly more likely to contract a 
naturally occurring fungus infection.
Inadequacy of Existing Regulatory Mechanisms
    The NRDC states that state and Federal regulatory mechanisms are 
insufficient and contributing to drastic declines in river herring 
populations that continue throughout all or a significant portion of 
the species' ranges. Due to difficulties in distinguishing between the 
species, alewife and blueback herring are managed together by the ASMFC 
as river herring. NRDC states that ASMFC has the authority to develop 
and issue interstate fishery management plans (FMP) for fisheries 
administered by the state agencies and will coordinate management with 
Federal waters.
    According to NRDC, ASMFC adopted an amendment to the coast-wide FMP 
for American shad and river herring in 2009, to specifically address 
the declining river herring populations coastwide. The petition asserts 
that this amendment is not likely to protect river herring 
sufficiently, as it ``does not require, and is not likely to result in, 
adequate measures to reduce significant incidental catch and bycatch/
bycatch mortality of these species, particularly in federal waters.'' 
NRDC also asserts that this amendment does not address non-fishing 
stressors on river herring sufficiently. The petition further states 
that four states have already had prohibitions on the harvest of river 
herring in place, and even with this prohibition on all harvest, these 
states have continued to see declines.
    The petition notes that river herring are not subject to the 
requirements and protections of the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA) because they are not currently 
managed under an FMP as a stock, and therefore, are not federally 
managed in regard to overfishing and depleted stocks under the MSA. 
Even though river herring are caught and sold as bycatch, and FMPs are 
meant to minimize bycatch, the NRDC asserts that any provisions in FMPs 
meant to address bycatch of river herring have proven to be ineffective 
and inadequate. NRDC further asserts that bycatch reporting is 
inadequate and limited and that there are currently no FMPs under the 
MSA that specifically address bycatch and bycatch mortality of river 
herring.
    The NRDC notes that currently the Mid-Atlantic Fisheries Management 
Council (MAFMC) is developing two amendments to two separate FMPs that 
include proposals for improving the monitoring of bycatch of river 
herring in these fisheries; however, it asserts that it was unknown 
whether the bycatch monitoring measures for river herring would be 
included in the final amendment.
    NRDC also indicates that under the MSA or the Atlantic Coast 
Fisheries Act, NMFS has the potential to initiate emergency rulemaking 
or other actions to reduce bycatch of river herring in small mesh 
fisheries, but has declined to do so thus far. NRDC further notes that 
NMFS has declined to take emergency rulemaking actions for bycatch of 
river herring in small-mesh fisheries in New England and the Mid-
Atlantic.
    Federally managed stocks are required to have essential fish 
habitat (EFH) designated under the MSA; however, since river herring 
are not considered a federally managed stock under the MSA, EFH has not 
been designated for this species. A provision under the 1996 amendments 
to the MSA provides for comments from regional councils on activities 
that may affect anadromous fish habitat; however, the NRDC asserts that 
this provision has not provided any significant modifications to 
activities affecting anadromous fish habitat.
    In addition to fisheries, the petition indicates that Federal laws 
and regulations have also failed to protect river herring and their 
habitat from threats such as poor water quality, dredging, and altered 
water flows. The petition briefly describes the Clean Water Act (CWA), 
the Federal Power Act (FPA), and the Anadromous Fish Conservation Act, 
and identifies where these regulations present inadequacies that are 
failing to protect river herring. NRDC notes that the CWA should limit 
discharge of pollutants into navigable waters and that some progress 
has been made in terms of industrial sources. NRDC also concludes that 
the CWA has not ``adequately regulated nutrients and toxic pollutants 
originating from non-point sources.'' In addition, some permits for 
dredging and excavation require permitting from the Army Corps of 
Engineers, and NRDC notes that these may benefit river herring through 
placing restrictions on the timing and location of activities in river 
herring habitats. The FPA allows for protection of fish and wildlife 
that may be affected by hydroelectric facilities. As mentioned 
previously, NRDC asserts that fish passage at hydroelectric facilities 
can be inefficient, and the dams themselves affect water flow which can 
pose a significant threat to river herring. Thus, according to NRDC, 
FPA protections for river herring are inadequate. The NRDC further 
states that the Anadromous Fish Conservation Act does not require any 
measures for river herring that would improve

[[Page 67656]]

habitat, reduce bycatch, or mitigate other threats to river herring, 
and therefore provides inadequate protection for the species. The NRDC 
notes that there are Federal protections that may benefit river herring 
which are intended for other anadromous species such as Atlantic salmon 
and shortnose sturgeon; however, it asserts that any benefits from 
these protections are minor and insufficient to fully protect river 
herring.
Other Natural or Manmade Factors Affecting Its Existence
    The petition describes other natural or manmade factors that may be 
affecting river herring, including invasive species, impingement, 
entrainment, and water temperature alterations. The petition states 
that invasive species may threaten food sources for alewives and 
blueback herring. ASMFC (2008) describes the negative effect zebra 
mussel introduction to the Hudson River had on phytoplankton and 
zooplankton, and subsequently water quality. According to ASMFC (2008), 
a decrease in both micro and macro zooplankton as well as phytoplankton 
improved water clarity and increased shallow water zoobenthos by 10 
percent. Early life stages of river herring feed on zooplankton as well 
as phytoplankton (ASMFC, 2008). Strayer et al. (2004) hypothesized that 
the introduction of this invasive species created competition for 
availability of the preferred food source of early life stages of river 
herring, and found that larval river herring abundance decreased with 
increased zebra mussel presence. Thus, according to the petition, 
invasive species introduction and subsequent water quality changes 
which may affect plankton abundance can decrease the abundance of early 
life stages of river herring.
    As described previously, the petition asserts that various life 
stages of river herring may be impinged or entrained through water 
intake structures from commercial, agricultural, or municipal 
operations. These intake structures alter flow, and may cause direct 
mortality to various life stages of river herring if they are impinged 
or entrained by the intake. In addition, aside from direct mortality, 
the petition asserts that intakes alter flow, which can affect water 
quality, temperature, substrate, velocity, and stream width and depth. 
NRDC suggests that these alterations can affect spawning migrations as 
well as spawning and nursery habitat, which could pose a significant 
threat to river herring.

Petition Finding

    Based on the above information, which indicates ongoing multiple 
threats to both species as well as potential declines in both species 
throughout their ranges, and the criteria specified in 50 CFR 
424.14(b)(2), we find that the petition presents substantial scientific 
and commercial information indicating that the petitioned action 
concerning alewife and blueback herring may be warranted. Under section 
4(b)(3)(A) of the ESA, this positive 90-day finding requires NMFS to 
commence a status review of the species. During our status review, we 
will review the best available scientific and commercial information, 
including the effects of threats and ongoing conservation efforts on 
both species throughout their ranges. Alewife and blueback herring are 
now considered to be candidate species (69 FR 19976; April 15, 2004). 
Within 12 months of the receipt of the petition (August 5, 2011), we 
will make a finding as to whether listing alewife and/or blueback 
herring as endangered or threatened is warranted, as required by 
section 4(b)(3)(B) of the ESA. If listing these species is not 
warranted, we will determine whether any populations of these species 
meet the DPS policy criteria (61 FR 4722; February 7, 1996), and if so, 
whether any DPSs are endangered or threatened under the ESA. If listing 
either species (or any DPS) is warranted, we will publish a proposed 
listing determination and solicit public comments before deciding 
whether to publish a final determination to list them as endangered or 
threatened under the ESA.

References Cited

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

Information Solicited

    To ensure the status review is based on the best available 
scientific and commercial data, we solicit information pertaining to 
alewife and blueback herring. Specifically, we solicit information in 
the following areas: (1) Historical and current distribution and 
abundance of these species throughout their ranges; (2) population 
status and trends; (3) any current or planned activities that may 
adversely impact these species, especially as related to the five 
factors specified in section 4(a)(1) of the ESA and listed above; (4) 
ongoing efforts to protect and restore these species and their habitat; 
and (5) any biological information (life history, morphometrics, 
genetics, etc.) on these species. We request that all information be 
accompanied by: (1) Supporting documentation such as maps and 
bibliographic references; and (2) the submitter's name, address, and 
any association, institution, or business that the person represents.

Peer Review

    On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife 
Service, published a series of policies regarding listings under the 
ESA, including a policy for peer review of scientific data (59 FR 
34270). OMB issued its Final Information Quality Bulletin for Peer 
Review on December 16, 2004. The Bulletin became effective on June 16, 
2005, and generally requires that all ``influential scientific 
information'' and ``highly influential scientific information'' 
disseminated on or after that date be peer reviewed. The intent of the 
peer review policy is to ensure that decisions are based on the best 
scientific and commercial data available. Independent peer reviewers 
will be selected to review the status review report from the academic 
and scientific community, tribal and other Native American groups, 
Federal and state agencies, the private sector, and public interest 
groups.

    Authority:  16 U.S.C. 1531 et seq.

    Dated: October 27, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 2011-28430 Filed 11-1-11; 8:45 am]
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