[Federal Register Volume 77, Number 24 (Monday, February 6, 2012)]
[Rules and Regulations]
[Pages 5880-5912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1946]



[[Page 5879]]

Vol. 77

Monday,

No. 24

February 6, 2012

Part II





Department of Commerce





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 National Oceanic and Atmospheric Administration





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50 CFR Parts 223 and 224





Endangered and Threatened Wildlife and Plants; Threatened and 
Endangered Status for Distinct Population Segments of Atlantic Sturgeon 
in the Northeast Region; Final Rule

  Federal Register / Vol. 77 , No. 24 / Monday, February 6, 2012 / 
Rules and Regulations  

[[Page 5880]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

RIN 0648-XJ00
[Docket No. 100903414-1762-02]


Endangered and Threatened Wildlife and Plants; Threatened and 
Endangered Status for Distinct Population Segments of Atlantic Sturgeon 
in the Northeast Region

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

ACTION: Final rule.

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SUMMARY: We, NMFS, are issuing a final determination to list the Gulf 
of Maine (GOM) Distinct Population Segment (DPS) of Atlantic sturgeon 
(Acipenser oxyrinchus oxyrinchus) as a threatened species under the 
Endangered Species Act (ESA), and the New York Bight (NYB) and 
Chesapeake Bay (CB) DPSs of Atlantic sturgeon as endangered species 
under the ESA. We have proposed protective regulations for the GOM DPS 
in accordance with ESA section 4(d) in a separate rulemaking published 
in the Federal Register on June 10, 2011. We are currently considering 
the available information in order to designate critical habitat. With 
this rule, we are also soliciting information that may be relevant to 
the designation of critical habitat for all three DPSs in the Northeast 
Region. Details of our analyses, their outcome, and a request for 
public comment on our proposed critical habitat designations will be 
published in subsequent Federal Register documents.

DATES: This final rule is effective on April 6, 2012.

ADDRESSES: Information concerning this final rule may be obtained by 
contacting NMFS, Protected Resources Division, 55 Great Republic Drive, 
Gloucester, MA 01930. The final rule, list of references and other 
materials relating to this determination can be found on our Web site 
at http://www.nero.noaa.gov./prot--res/atlsturgeon/.

FOR FURTHER INFORMATION CONTACT: Kimberly Damon-Randall, (978) 282-
8485; Lynn Lankshear, (978) 282-8473; or Lisa Manning, (301) 427-8466.

SUPPLEMENTARY INFORMATION:

Background

    We first identified Atlantic sturgeon as a candidate species under 
the ESA in 1991; at that time, the candidate species list served to 
notify the public that we had concerns regarding these species that may 
warrant listing in the future, and it facilitated voluntary 
conservation efforts. On June 2, 1997, the U.S. Fish and Wildlife 
Service (USFWS) and NMFS (collectively, the Services) received a 
petition from the Biodiversity Legal Foundation requesting that we list 
Atlantic sturgeon in the United States as threatened or endangered and 
designate critical habitat within a reasonable period of time following 
the listing. A notice was published in the Federal Register on October 
17, 1997, stating that the Services had determined substantial 
information existed indicating the petitioned action may be warranted 
(62 FR 54018). In 1998, after completing a comprehensive status review, 
the Services published a 12-month determination in the Federal 
Register, announcing that listing was not warranted at that time (63 FR 
50187; September 21, 1998). We retained Atlantic sturgeon on the 
candidate species list (subsequently changed to the Species of Concern 
List (69 FR 19975; April 15, 2004)). Concurrently, the Atlantic States 
Marine Fisheries Commission (ASMFC) completed Amendment 1 to the 1990 
Atlantic Sturgeon Fishery Management Plan (FMP), which imposed a 20-40 
year moratorium on all Atlantic sturgeon fisheries until the Atlantic 
Coast spawning stocks could be restored to a level where 20 subsequent 
year classes of adult females were protected (ASMFC, 1998). In 1999, 
pursuant to section 804(b) of the Atlantic Coastal Fisheries 
Cooperative Management Act (ACFCMA) (16 U.S.C. 5101 et seq.), we 
followed this action by closing the Exclusive Economic Zone (EEZ) to 
Atlantic sturgeon retention.
    In 2003, we sponsored a workshop with USFWS and the ASMFC titled 
``Status and Management of Atlantic Sturgeon,'' to discuss the status 
of Atlantic sturgeon along the Atlantic Coast and determine what 
obstacles, if any, were impeding their recovery (Kahnle et al., 2005). 
The results of the workshop indicated that some riverine populations 
seemed to be recovering while others were declining. Bycatch and 
habitat degradation were noted as possible causes for continued 
declines.
    Based on the information gathered from the 2003 workshop on 
Atlantic sturgeon, we decided that a second review of Atlantic sturgeon 
status was needed to determine if listing as endangered or threatened 
under the ESA was warranted. We therefore established an Atlantic 
sturgeon status review team (ASSRT) consisting of NMFS, USFWS, and U.S. 
Geological Survey (USGS) scientists with relevant expertise to assist 
us in assessing the viability of the species throughout all or a 
significant portion of its range. The ASSRT was asked to consider the 
best scientific and commercial information available, including the 
technical information and comments from state and regional experts. The 
draft status review report prepared by the ASSRT was peer reviewed by 
experts from academia, and their comments were incorporated. A Notice 
of Availability of this report was published in the Federal Register on 
April 3, 2007 (72 FR 15865).
    On October 6, 2009, we received a petition from the Natural 
Resources Defense Council to list Atlantic sturgeon throughout its 
range as endangered under the ESA. As an alternative, the petitioner 
requested that the species be listed as the five DPSs described in the 
2007 Atlantic sturgeon status review (ASSRT, 2007; i.e., GOM, NYB, CB, 
Carolina, and South Atlantic DPSs), with the GOM and South Atlantic 
DPSs listed as threatened, and the remaining three DPSs listed as 
endangered. The petitioner also requested that critical habitat be 
designated for Atlantic sturgeon under the ESA. We published a Notice 
of 90-Day Finding on January 6, 2010 (75 FR 838; January 6, 2010), 
stating that the petition presented substantial scientific or 
commercial information indicating that the petitioned actions may be 
warranted.
    We considered the information provided in the status review report, 
the petition, other new information available since completion of the 
status review report, and information submitted in response to the 
Federal Register announcement of the 90-day finding (75 FR 838; January 
6, 2010). Based on this information, we determined that there are five 
DPSs of Atlantic sturgeon that qualify as species under the ESA. We 
also determined that, for those DPSs that are located within the 
jurisdiction of NMFS' Northeast Region, the GOM DPS is likely to become 
endangered within the foreseeable future, and the NYB and CB DPSs are 
in danger of extinction. Therefore, on October 6, 2010, we published a 
proposed rule to list the GOM DPS of Atlantic sturgeon as threatened 
under the ESA, and the NYB and CB DPSs as endangered (75 FR 61872).
    After publication of the proposed rule, new tagging and tracking 
data as a result of on-going studies were provided to us indicating 
that Atlantic sturgeon tagged in the United States range in the marine 
environment from as far north as the St. Lawrence River, Canada (D. 
Fox, DSU, pers. comm.) to as far south as

[[Page 5881]]

Cape Canaveral, FL (T. Savoy, CTDEP, pers. comm.). The description of 
the northern and southern extent of the marine range for the GOM, NYB, 
and CB DPSs was extended to include these areas. Based on information 
provided in the proposed rule and this new information, the GOM, NYB, 
and CB DPSs are defined as follows. The GOM DPS includes all Atlantic 
sturgeons that are spawned in the watersheds from the Maine/Canadian 
border and extending southward to include all associated watersheds 
draining into the Gulf of Maine as far south as Chatham, MA. The NYB 
DPS includes all Atlantic sturgeons that are spawned in the watersheds 
that drain into coastal waters from Chatham, MA to the Delaware-
Maryland border on Fenwick Island. The CB DPS includes all Atlantic 
sturgeons that are spawned in the watersheds that drain into the 
Chesapeake Bay and into coastal waters from the Delaware-Maryland 
border on Fenwick Island to Cape Henry, VA. The marine range for the 
three DPSs is the same; all marine waters, including coastal bays and 
estuaries, from Labrador Inlet, Labrador, Canada to Cape Canaveral, FL. 
Each DPS also includes Atlantic sturgeon held in captivity (e.g., 
hatcheries, scientific institutions) that are identified as fish 
belonging to either the GOM, NYB, or CB DPS, respectively, based on 
genetic analyses, previously applied tags, previously applied marks, or 
documentation to verify that the fish originated from (was spawned in) 
a river within the range of that DPS, or is the progeny of any fish 
that originated from that DPS.

Listing Species Under the Endangered Species Act

    The ESA defines an endangered species as ``any species which is in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as one ``which is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.'' As provided in section 4(a) of the 
ESA, the statute requires us to determine whether any species is 
endangered or threatened because of any of the following five factors: 
(1) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (2) overutilization for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) the inadequacy of existing regulatory mechanisms; or (5) 
other natural or manmade factors affecting its continued existence 
(section 4(a)(1)(A)(E)).
    Recent case law (In Re Polar Bear Endangered Species Act Listing 
and Sec.  4(d) Rule Litigation, D.D.C WL 2601604 (June 30, 2011 Order); 
748 F.Supp.2d 19 (D.D.C. 2010)) regarding USFWS's listing of the polar 
bear as threatened provides a discussion of the ESA definitions of the 
terms threatened and endangered in the context of the Services' broad 
discretion and expertise to determine on a case by case basis whether a 
species is in danger of extinction. The Court found that Congress did 
not intend to make any single factor controlling when drawing the 
distinction between endangered and threatened species, nor did it seek 
to limit the applicability of the endangered category to only those 
species facing imminent extinction, and that Congress delegated 
responsibility to the Services to determine whether a species is `in 
danger of extinction' in light of the ESA section 4(a)(1) factors and 
the best available science for that species.
    To be considered for listing under the ESA, a group of organisms 
must constitute a ``species.'' A ``species'' is defined in section 3 of 
the ESA to include ``any subspecies of fish or wildlife or plants, and 
any distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature.'' On February 7, 1996, the 
Services adopted a policy to clarify our interpretation of the phrase 
``distinct population segment of any species of vertebrate fish or 
wildlife'' (61 FR 4722). The joint DPS policy identified two elements 
that must be considered when identifying a DPS: (1) The discreteness of 
the population segment in relation to the remainder of the species (or 
subspecies) to which it belongs; and (2) the significance of the 
population segment to the remainder of the species (or subspecies) to 
which it belongs. As stated in the joint DPS policy, Congress expressed 
its expectation that the Services would exercise authority with regard 
to DPSs sparingly and only when the biological evidence indicates such 
action is warranted.
    We evaluated whether Atlantic sturgeon population segments met the 
DPS Policy criteria and described the delineation of five Atlantic 
sturgeon DPSs in detail in the proposed rule. Comments regarding the 
delineation are addressed in the section below, ``Summary of Peer 
Review and Public Comments Received.''
    Section 4(b)(1)(A) of the ESA requires that listing determinations 
be based solely on the best scientific and commercial data available 
after taking into account efforts being made to protect the species. In 
judging the efficacy of protective efforts, we rely on the Service's 
joint ``Policy for Evaluation of Conservation Efforts When Making 
Listing Decisions'' (``PECE''; 68 FR 15100; March 28, 2003). The PECE 
provides direction for consideration of conservation efforts that have 
not yet been implemented, or have been implemented but not yet 
demonstrated their effectiveness.

Summary of Peer Review and Public Comments Received

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation. The OMB Bulletin, implemented under the Information 
Quality Act (Public Law 106-554), is intended to enhance the quality 
and credibility of the Federal government's scientific information, and 
applies to influential scientific information disseminated on or after 
June 16, 2005. Pursuant to our 1994 policy on peer review (59 FR 34270; 
July 1, 1994), we solicited peer review of the proposed listing 
determination from three independent sturgeon experts. One of the three 
reviewers submitted comments as part of his state agency's response to 
the proposed listing. Those comments and our responses are included in 
the response to public comments. The remaining two solicitations for 
review went unanswered. The independent expert review under the joint 
NMFS/USFWS peer review policy collectively satisfies the requirements 
of the OMB Peer Review Bulletin and the joint NMFS/USFWS peer review 
policy.
    We solicited comments on the proposed rule from all interested 
parties including the public, and other governmental agencies. Fifty-
five respondents provided comments during the 120-day comment period 
and four public hearings. We also received comments from 111 
respondents from a solicitation for information in the Notice of 90-Day 
Finding on the petition to list Atlantic sturgeon and designate 
critical habitat (75 FR 838; January 6, 2010). We have addressed all 
public comments received on the action, including comments received 
during the 120-day public comment period, comments received at the four 
public hearings, and comments and information received in response to 
the solicitation for information in the Notice of 90-Day Finding.
    Public comments supporting and opposing listing were submitted by 
interested individuals; state and Federal

[[Page 5882]]

agencies; fishing groups; environmental organizations; and industry 
groups. Some submissions provided information for our consideration, 
including additional information on Atlantic sturgeon distribution, 
information on tidal turbines in the East River, and management of 
Atlantic sturgeon in Canada. Many comments were complex and had 
multiple inferences, and thus individual statements are addressed in 
multiple comments and responses below. The comments addressed five 
general topics: (1) The 2007 Atlantic Sturgeon Status Review; (2) 
delineation of the GOM, NYB, and CB DPSs; (3) identification and 
consideration of specific threats; (4) conservation efforts for the 
GOM, NYB, and CB DPSs; and (5) additional comments.

The 2007 Atlantic Sturgeon Status Review

    Comment 1: Several commenters expressed concern over the divergence 
of the proposed listing rule from the status review team's (ASSRT, 
2007) listing classification recommendations that the CB DPS and the 
NYB DPS should be listed as threatened, and that there was not enough 
information for the GOM DPS to make a listing recommendation. 
Additionally, some commenters felt that there was insufficient 
information available to support a divergence from the 1998 negative 
listing determination for Atlantic sturgeon (63 FR 50187; September 21, 
1998), and that the eight reasons given for the negative finding are 
still applicable today. One commenter stated that the only differences 
between the 1998 determination and today are increased prevalence of 
sturgeon and decreased levels of bycatch as compared with 1989-2000 
(based on ASMFC, 2007 and Daniel, 2010).
    Response: NMFS must rely on the definition of ``endangered'' and 
``threatened'' species provided in section 3 of the ESA, the 
implementing regulations, and case law in applying the definitions to 
marine and anadromous species. Section 3 of the ESA defines an 
endangered species as one that is in danger of extinction throughout 
all or a significant portion of its range, and a threatened species as 
one that is likely to become endangered within the foreseeable future. 
Recent case law (In Re Polar Bear Endangered Species Act Listing and 
Sec.  4(d) Rule Litigation, D.D.C WL 2601604 (June 30, 2011 Order); 748 
F.Supp.2d 19 (D.D.C. 2010)) regarding USFWS's listing of the polar bear 
as threatened provides a discussion of the ESA's definitions of the 
terms threatened and endangered in the context of the Services' broad 
discretion and expertise to determine on a case by case basis whether a 
species is in danger of extinction. Upon listing the polar bear as 
threatened, USFWS's rule was challenged by a number of parties who 
claimed that the polar bear was in danger of extinction and should have 
been listed as endangered, and by others who conversely argued that the 
bear did not warrant listing even as threatened. The Court determined 
that neither the ESA nor its legislative history compels the 
interpretation of ``endangered'' as a species being in ``imminent'' 
risk of extinction, finding instead that the phrase ``in danger of 
extinction'' is ambiguous. The Court held that there is a temporal 
distinction between endangered and threatened species in terms of the 
proximity of the ``danger'' of extinction, noting that the definition 
of ``endangered species'' is phrased in the present tense, whereas a 
threatened species is ``likely to become'' so in the future. Thus, in 
the context of the ESA, the Services interpret an ``endangered 
species'' to be one that is presently at risk of extinction. A 
``threatened species,'' on the other hand, is not currently at risk of 
extinction, but is likely to become so. In other words, a key statutory 
difference between a threatened and endangered species is the timing of 
when a species may be in danger of extinction, either now (endangered) 
or in the foreseeable future (threatened). The Court concluded, 
however, that the distinction is not based ``solely and unambiguously'' 
on the imminence of the species' anticipated extinction,'' and that 
Congress delegated responsibility to the Services to determine whether 
a species is presently `in danger of extinction' in light of the five 
statutory listing factors and the best available science for that 
species. The Court ruled that although imminence of harm is clearly one 
factor that the Services weigh in their decision-making process, it is 
not necessarily a limiting factor. In many cases, the Services might 
appropriately find that the imminence of a particular threat is the 
dispositive factor that warrants listing a species as `threatened' 
rather than `endangered,' or vice versa. The Services have broad 
discretion to decide that other factors outweigh the imminence of the 
threat. In conclusion, the Court confirmed that the Services have 
flexibility to determine ``endangerment'' on a case-by-case basis. 
Congress did not intend to make any single factor controlling when 
drawing the distinction between endangered and threatened species, nor 
did it seek to limit the applicability of the endangered category to 
only those species facing imminent extinction.
    Thus, there is no per se requirement that a species be experiencing 
current or imminent significant downward trends, or that there are no 
single historical spawning riverine populations within the DPSs that 
are relatively abundant and simultaneously regularly-reproducing, in 
order to be listed as endangered. Our determination that the NYB and CB 
DPSs are endangered species and the GOM DPS is a threatened species is 
based on the exercise of our expert professional judgment on the basis 
of the best available information for each DPS, as was held appropriate 
in the polar bear listing litigation discussed above. In addition, we 
agree with the USFWS' judgment, discussed in its supplemental 
explanation filed in the polar bear litigation, that to be listed as 
endangered does not require that extinction be certain, and that it is 
possible for a species validly listed as ``endangered'' to actually 
persist indefinitely.
    We determined that the NYB and CB DPSs of Atlantic sturgeon are 
currently in danger of extinction throughout their range, and the GOM 
DPS of Atlantic sturgeon is likely to become endangered within the 
foreseeable future throughout its range, on the basis of low population 
size and the level of impacts and number of threats such as continued 
degraded water quality, habitat impacts from dredging, continued 
bycatch in state and federally-managed fisheries, and vessel strikes to 
each DPS. Historically, each of the DPSs likely supported more than 
10,000 spawning adults (Kennebec River Resource Management Plan 1993; 
Secor 2002; ASSRT, 2007). The best available data support that current 
numbers of spawning adults for each DPS are one to two orders of 
magnitude smaller than historical levels (e.g., hundreds to low 
thousands (ASSRT, 2007; Kahnle et al., 2007)). A long life-span allows 
multiple opportunities for Atlantic sturgeon to contribute to future 
generations, but it increases the timeframe over which exposure to the 
multitude of threats facing the DPSs can occur. Atlantic sturgeons also 
demonstrate clinal variation in growth associated with water 
temperature. For example, Atlantic sturgeons mature in South Carolina 
river systems at 5 to 19 years (Smith et al., 1982), in the Hudson 
River at 11 to 21 years (Young et al., 1998), and in the Saint Lawrence 
River at 22 to 34 years (Scott and Crossman, 1973). Thus, their late 
age at maturity also provides more opportunities for individual 
Atlantic sturgeon to be

[[Page 5883]]

removed from the population before reproducing.
    We have determined that for the long-term persistence of Atlantic 
sturgeon, it is important to have multiple stable riverine spawning 
populations within each DPS and suitable habitat to support the various 
life functions (spawning, feeding, growth) of Atlantic sturgeon. This 
is best supported by looking at the concept of metapopulations. 
Generally, each Atlantic sturgeon DPS should be comprised of multiple 
riverine populations, which is analogous to a metapopulation (i.e., a 
``population of populations'') (Levins, 1969). A metapopulation is a 
group of spatially separated populations of the same species which 
interact at some level. Separation into metapopulations is expected by 
sturgeon and other anadromous fishes, given their likely stepping-stone 
sequential model of recolonization of northern rivers following post-
Pleistocene deglaciation (Waldman et al. 2002).
    Metapopulation persistence depends on the balance of extinction and 
colonization in a static environment (Hanski, 1996). If habitat remains 
suitable following local extirpation, recolonization via immigrants 
into now-empty habitat may replace at least some of those losses 
(Thomas, 1994). However, if the cause of extinction is a deterministic 
population response to unsuitable conditions (e.g., lack of suitable 
spawning habitat, poor water quality, or disturbance of substrates 
through repeated dredging), the local habitat is likely to remain 
unsuitable after extinction and be unavailable for effective 
recolonization (Thomas, 1994). Therefore, recolonization is dependent 
upon both immigration from adjacent, healthy populations and habitat 
suitability. Because these DPSs are groups of populations, the 
stability, viability, and persistence of individual populations affects 
the persistence and viability of the larger DPS. The loss of any 
population within a DPS will result in: (1) A long-term gap in the 
range of the DPS that is unlikely to be recolonized, or recolonized 
only very slowly; (2) loss of reproducing individuals; (3) loss of 
genetic biodiversity; (4) potential loss of unique haplotypes; (5) 
potential loss of adaptive traits; and (6) reduction in total number.
    In the NYB DPS, there are two known spawning populations--the 
Hudson and Delaware Rivers. While the Hudson is presumably the largest 
extant reproducing Atlantic sturgeon population, the Delaware is 
presumably very small and extremely vulnerable to any sources of 
anthropogenic mortality. There are no indications of increasing 
abundance for the NYB DPS (ASSRT, 2009; 2010). There are anecdotal 
reports of increased sightings and captures of Atlantic sturgeon in the 
James River, which comprises the only known spawning river for the CB 
DPS. However, this information has not been comprehensive enough to 
develop a population estimate for the James River or to provide 
sufficient evidence to confirm increased abundance. Some of the impact 
from the threats that facilitated the decline of these two DPSs have 
been removed (e.g., directed fishing) or reduced as a result of 
improvements in water quality since passage of the Clean Water Act 
(CWA). In addition, there have been reductions in fishing effort in 
state and Federal waters, which most likely would result in a reduction 
in bycatch mortality of Atlantic sturgeon. Nevertheless, areas with 
persistent, degraded water quality, habitat impacts from dredging, 
continued bycatch in state and federally-managed fisheries, and vessel 
strikes remain significant threats to both the NYB and CB DPSs.
    Mixed stock analysis of Atlantic sturgeon collected along the U.S. 
coast indicates that Atlantic sturgeon occur most prominently in the 
vicinity of their natal river(s). This means that Atlantic sturgeon of 
the NYB and CB DPSs will occur most frequently in the coastal 
environment of the Mid-Atlantic. Bycatch mortality for Atlantic 
sturgeon is known to occur predominantly in sink gillnet gear (Stein et 
al., 2004; ASMFC, 2007), and this gear type is used in the monkfish and 
spiny dogfish fisheries that occur in the Mid-Atlantic. Based on the 
mixed stock analysis results, a significant number of bycatch 
interactions occur in the Mid Atlantic Bight region (see Figure 1), and 
over 40 percent of these interactions were with fish from the NYB DPS 
and 20 percent were with fish from the CB DPS. Given that fish from 
these two DPSs are most likely to occur in the Mid Atlantic Bight 
region (e.g., in close proximity to their rivers of origin), they are 
highly susceptible to take as bycatch in fisheries. In accordance with 
the Magnuson Stevens Fishery Conservation and Management Act (MSA), 
effort control measures were implemented to address rebuilding of 
monkfish and spiny dogfish stocks via fishery management plans 
developed in the late 1990's. Fish from the NYB and CB DPSs likely 
benefited from these effort control measures, because the amount of 
sink gillnets in Mid-Atlantic waters was reduced. However, monkfish is 
no longer overfished, and quota allocations for spiny dogfish have been 
increased. Therefore, as fish stocks are rebuilt, we anticipate that 
sink gillnet fishing effort will increase in the Mid-Atlantic. In 
addition, individual-based assignment and mixed stock analysis of 
samples collected from sturgeon captured in Canadian fisheries in the 
Bay of Fundy indicated that approximately 1-2% were from the NYB DPS, 
and perhaps 1% from the Chesapeake DPS (Wirgin et al., in draft). There 
are no current regulatory measures to address the bycatch threat to the 
NYB and CB DPSs of Atlantic sturgeon posed by U.S. Federal fisheries or 
fisheries that occur in Canadian waters.
    Studies have shown that Atlantic sturgeon can only sustain low 
levels of bycatch mortality (Boreman, 1997; ASMFC, 2007; Kahnle et al., 
2007). A recent study also indicated that the loss of only a few adult 
female Atlantic sturgeon from the Delaware River riverine population as 
a result of vessel strikes would hinder recovery of that riverine 
population (Brown and Murphy, 2010). We have concluded that the NYB and 
CB DPSs are currently at risk of extinction (i.e., are endangered) 
given the following: (1) Both the NYB and CB DPSs are at low levels of 
abundance with a limited number of spawning populations within each 
DPS; (2) both continue to be significantly affected by threats to 
habitat from continued degraded water quality and dredging in some 
areas as well as threats from bycatch and vessel strikes; (3) these 
threats are considered to be unsustainable at present and the threat 
posed by bycatch is likely to increase in magnitude in the future; and, 
(4) the lack of existing regulatory mechanisms to adequately address 
these threats.
    While there is only one known spawning population within the GOM 
DPS (i.e., the Kennebec River), there is possible spawning in the 
Penobscot River. Additionally, there are indications of increasing 
abundance of Atlantic sturgeon belonging to the GOM DPS. Atlantic 
sturgeon continue to be present in the Kennebec River; in addition, 
they are captured in directed research projects in the Penobscot River, 
and are observed in rivers where they were unknown to occur or had not 
been observed to occur for many years (e.g., the Saco River and the 
Presumpscot River). These observations suggest that abundance of the 
GOM DPS of Atlantic sturgeon is sufficient such that recolonization to 
rivers historically suitable for spawning may be occurring.
    As is the case for other DPSs, the GOM DPS was significantly 
affected by a directed fishery in the 1800's (Bigelow and Schroeder, 
1953; Kennebec River Resource Management Plan 1993).

[[Page 5884]]

Industrialization and population expansion during the same time period 
contributed to the decline in water quality and habitat availability 
(e.g., construction of dams, contamination of river systems) that 
likely impacted the GOM DPS as well. Despite these past impacts, the 
DPS has persisted and is now showing signs of potential recovery (e.g., 
increased abundance and/or expansion into its historical range). The 
level of impact from the threats which facilitated its decline have 
been removed (e.g., directed fishing) or reduced as a result of 
improvements in water quality since passage of the CWA; removal of dams 
(e.g., the Edwards Dam on the Kennebec River in 1999); reductions in 
fishing effort in state and Federal waters, which may have resulted in 
a reduction in overall bycatch mortality; and the implementation of 
strict regulations on the use of fishing gear in Maine state waters 
that incidentally catch sturgeon. Additionally, when completed, the 
Penobscot River Restoration Project will provide Atlantic sturgeon with 
access to all of historical spawning habitat in the Penobscot River.
    As indicated by the mixed stock analysis results, fish from the 
Gulf of Maine DPS are not commonly taken as bycatch in areas south of 
Chatham, MA (see Figure 1), with only 8 percent (e.g., 7 of the 84 
fish) of interactions observed in the Mid Atlantic/Carolina region 
being assigned to the GOM DPS. Tagging results also indicate that GOM 
DPS fish tend to remain within the waters of the Gulf of Maine and only 
occasionally venture to points south.
    While still present and still affecting the long term persistence 
of the fish from the GOM DPS, threats from bycatch and habitat impacts 
from areas of continued degraded water quality and dredging are not as 
significant in the Gulf of Maine as in other areas occupied by Atlantic 
sturgeon. Water quality within the Gulf of Maine has improved 
significantly over time and unlike in areas farther south, it is very 
rare to have issues with low dissolved oxygen concentrations (that 
negatively affect Atlantic sturgeon) in the Gulf of Maine. A 
significant amount of fishing in the Gulf of Maine is conducted using 
trawl gear, which is known to have a much lower mortality rate for 
Atlantic sturgeon. Given the reduced level of threat to the GOM DPS, 
the anticipated distribution of GOM DPS fish predominantly in the Gulf 
of Maine, and the positive signs regarding distribution and abundance 
within the DPS, we concluded that the GOM DPS is not currently 
endangered. Effort control measures were implemented to achieve 
rebuilding of groundfish, monkfish, and spiny dogfish and may have 
provided some indirect benefit to Atlantic sturgeon from the GOM DPS. 
However, as fish stocks are rebuilt, we anticipate that sink gillnet 
fishing effort will increase in the Gulf of Maine. In addition, 
individual-based assignment and mixed stock analysis of samples 
collected from sturgeon captured in Canadian fisheries in the Bay of 
Fundy indicated that approximately 35 percent were from the GOM DPS 
(Wirgin et al., in draft). There are no current regulatory measures to 
address the bycatch threat to GOM DPS Atlantic sturgeon posed by U.S. 
Federal fisheries or fisheries that occur in Canadian waters. As noted 
previously, studies have shown that Atlantic sturgeon can only sustain 
low levels of bycatch and other anthropogenic mortality (e.g., vessel 
strikes) (Boreman, 1997; ASMFC, 2007; Kahnle et al., 2007; Brown and 
Murphy, 2010). Therefore, despite some management efforts and 
improvements, we concluded that the GOM DPS is at risk of becoming 
endangered in the foreseeable future throughout all of its range (i.e., 
is a threatened species) based on the following: (1) The persistence of 
some degree of threat from bycatch and habitat impacts from continued 
degraded water quality and dredging in some areas; (2) the likelihood 
of increased impact from existing threats; and, (3) the lack of 
measures to address these threats.
BILLING CODE 3510-22-P

[[Page 5885]]

[GRAPHIC] [TIFF OMITTED] TR06FE12.000


Figure 1: Map of Atlantic Sturgeon, by DPS, Genetically Sampled Through
 the NEFOP
 

BILLING CODE 3510-22-C
    In response to comments about divergence from the status review's 
listing recommendations for the NYB, CB, and GOM DPSs, NMFS' Protected 
Resources Divisions have the responsibility to make listing 
recommendations to the Assistant Administrator. Status review reports 
are an important part of the information base for such recommendations, 
but NMFS must independently review the information in status review 
reports and apply the ESA's listing determination requirements in 
accordance with regulations, case law, and agency guidance. The 
Atlantic Sturgeon Status Review Report states that ``risks of 
extinction assessments are performed to help summarize the status of 
the species, and do not represent a decision by the Status Review Team 
on whether the species should be proposed for listing as endangered or 
threatened under the ESA'' (page 106; ASSRT, 2007). Subsequent to the 
status review report, we conducted a comprehensive assessment of the 
combined impact of

[[Page 5886]]

the five ESA section 4(a)(1) factors across each entire DPS in 
classifying extinction risk. We focused on evaluating whether the DPSs 
are presently in danger of extinction, or whether the danger of 
extinction is likely to develop in the future. In our proposed rules to 
list 5 DPSs of Atlantic sturgeon, we determined that each DPS was at 
greater risk of extinction than concluded in the 2007 status review 
report. In addition, because of the lapse in time between the 
development of the status review report (ASSRT, 2007) and the 
publication of the proposed listing rule (75 FR 61904, October 6, 
2010), new information on bycatch (ASMFC, 2007) and water quality 
(USEPA, 2008) became available to us, and we incorporated this 
information into our listing determinations.
    Since publication of the proposed rules, a Federal District Court 
has considered the definitions of threatened and endangered species in 
the ESA and issued an opinion regarding their interpretation, as 
discussed above (In re. Polar Bear Endangered Species Act Litigation). 
Prompted by this decision and the comments received requesting further 
explanation of the divergence of our proposed listing statuses and the 
conclusions of the ASSRT, we have reviewed our determinations and 
concluded that all of the proposed listings of specific DPS's as 
``threatened species'' or ``endangered species'', respectively, satisfy 
the requirements of the relevant ESA definitions. Thus, we have not 
changed these classifications in the final rules. We found that four 
DPSs of Atlantic sturgeon meet the definition of an endangered species 
because they are presently in danger of extinction, and thus, listing 
them as endangered is warranted. These DPSs are the NYB, CB, Carolina, 
and South Atlantic DPSs. We further determined that the GOM DPS meets 
the ESA's definition of a threatened species, because while it is not 
currently in danger of extinction, it is likely to become so in the 
foreseeable future.
    In 1998, the Services determined that an ESA listing of Atlantic 
sturgeon was not warranted (63 FR 50187; September 21, 1998). The 
Services cited eight reasons for the negative determination at that 
time: (1) Evidence that the historical range of the species has not 
been substantially reduced and that its current range is not likely to 
be significantly reduced in the foreseeable future; (2) persistence of 
at least 14 spawning populations; (3) existing prohibitions on harvest 
and possession in all 15 states comprising the species' U.S. range; (4) 
detailed evaluation of current habitat conditions and threats to 
habitat showing that conditions are adequate to sustain the species and 
are likely to remain so in the foreseeable future; (5) lack of 
substantial information indicating that overutilization for commercial, 
recreational, scientific or educational purposes is currently 
significantly affecting the species; (6) lack of information indicating 
that disease or predation are causing significant mortality; (7) 
existing regulatory mechanisms that provide adequate protection and 
further the conservation of the species; and (8) lack of information 
indicating that artificial propagation is currently posing a threat to 
the species.
    The proposed listing rule (75 FR 61872; October 6, 2010) discussed 
that bycatch, which was identified as the primary risk to the 
persistence of Atlantic sturgeon in the Northeast Region, is not 
adequately regulated and is contributing to the lack of recovery of 
Atlantic sturgeon populations. Furthermore, at the time of the 1998 
determination, the ASMFC moratorium on retention of Atlantic sturgeon 
had recently gone into effect. Because this eliminated directed fishing 
for Atlantic sturgeon, which was the primary known threat to the 
existence of the species at that time, the Services weighed this 
heavily in the decision not to list the species in 1998. NMFS followed 
this with the 1999 closure of the EEZ to fishing for Atlantic sturgeon. 
However, since implementation of the moratorium, additional bycatch 
information (Stein et al., 2004; ASMFC, 2007) became available 
indicating that Atlantic sturgeon are vulnerable to bycatch in 
commercial fisheries, and that the current rate of bycatch is 
unsustainable in the long term (ASMFC, 2007).
    Comment 2: Comments from the New Jersey Department of Environmental 
Protection, Division of Fish and Wildlife stated that in 2006, the 
Division's biologists employed an expert opinion-based technique (the 
Delphi technique) to determine the status of Atlantic sturgeon in New 
Jersey state waters (Jenkins and Bowers-Altman, 2007). Expert opinion 
and data were shared to try to reach consensus (defined as 85 percent 
or greater) on the species status of either endangered, threatened, 
special concern, stable/secure, undetermined, no opinion or not 
applicable. For this process, ``endangered'' was defined as applying to 
species whose prospects for survival within the state are in immediate 
danger due to one or several factors, such as loss or degradation of 
habitat, overexploitation, predation, competition, disease or 
environmental pollution, etc. (i.e., an endangered species likely 
requires immediate action to avoid extinction within New Jersey). A 
``threatened'' species was defined as a species that may become 
endangered if conditions surrounding it begin to or continue to 
deteriorate (i.e., a threatened species is one that is already 
vulnerable as a result of small population size, restricted range, 
narrow habitat affinities, significant population decline, etc.). 
Although consensus was not achieved for assigning Atlantic sturgeon 
species status using the Delphi technique, final votes were divided 
between endangered and threatened, with three more reviewers voting for 
the threatened status.
    Response: We appreciate the information provided. However, a 
listing of ``endangered'' or ``threatened'' under state law for a 
species within state jurisdiction does not equate to a listing of 
``endangered'' or ``threatened'' under the ESA. As described in 
response to Comment 1, above, recent case law (Ctr. for Biological 
Diversity, et al. v. Salazar, et al., No. 08-2113; State of Alaska v. 
Salazar, et al., No. 08-1352; Safari Club Int'l, et al. v. Salazar, et 
al., No. 08-1550; California Cattlemen's Ass'n, et al. v. Salazar, et 
al., No. 08-1689; Conservation Force, et al. v. Salazar, et al., No. 
09-245) supports that Congress did not intend to make any single factor 
controlling when drawing the distinction between endangered and 
threatened species, nor did it seek to limit the applicability of the 
endangered category to only those species facing imminent extinction.
    The Atlantic sturgeon status review team did use an approach 
comparable to the Delphi technique (see ASSRT, 2007, and Patrick and 
Damon-Randall, 2008 for a detailed description), and after completing 
their assessment, found that the NYB, CB, and Carolina DPSs of Atlantic 
sturgeon were at risk of becoming endangered within the foreseeable 
future (i.e., a ``threatened'' species as defined under the ESA). 
However, as described in response to Comment 1, while we considered and 
relied heavily on the biological information in the 2007 status review 
report, we independently reviewed the information in the status review 
report as well as new information on bycatch (ASMFC, 2007) and water 
quality (USEPA, 2008), and applied the ESA's listing determination 
requirements in accordance with regulations, case law and agency 
guidance. We thus concluded that the NYB and CB DPSs warranted listing 
as endangered, and the GOM DPS warranted listing as threatened.

[[Page 5887]]

    Comment 3: Numerous comments were submitted with respect to the 
lack of abundance data for Atlantic sturgeon as well as our reliance on 
the Kahnle et al. (2007) estimate for the Hudson River, which is based 
on data collected from 1985-1995 when there was still a directed 
fishery for Atlantic sturgeon in the Hudson River estuary. The 
commenters oppose listing until abundance data are available and 
encourage new or continued research to acquire this information in lieu 
of a listing determination at this time.
    Response: As was noted in the status review report (ASSRT, 2007) 
and the proposed listing rule, only two abundance estimates are 
available for Atlantic sturgeon riverine populations--one, for the 
Hudson River and one for the Altamaha River. The Hudson River riverine 
population was estimated to have 870 spawning adult Atlantic sturgeon 
per year based on data collected from 1985-1995 when a directed 
Atlantic sturgeon fishery was on-going (Kahnle et al., 2007). The 
Altamaha River riverine population was estimated to have 343 spawning 
adult Atlantic sturgeon per year based on more recent scientific 
research studies (Schueller and Peterson, 2006).
    Information was provided in the proposed rule that explained the 
caveats associated with the Kahnle et al. (2007) estimate for the 
Hudson River. Specifically, the accuracy of the estimate may be 
affected by bias in the reported harvest or estimated exploitation rate 
for that time period (Kahnle et al., 2007). Underreporting of harvest 
would have led to underestimates of stock size, while underestimates of 
exploitation rates would have resulted in overestimates of stock size 
(Kahnle et al., 2007). Therefore, the estimate may be either higher or 
lower than the actual number of spawning adults per year in the Hudson 
River during the 1985-1995 timespan. As stated in the proposed rule, we 
do not consider the Kahnle et al. (2007) estimate to be an estimate for 
the entire riverine population given that: (1) The estimate is for 
spawning adults only; (2) mature Atlantic sturgeon may not spawn every 
year (Vladykov and Greeley, 1963; Smith, 1985; Van Eenennaam et al., 
1996; Stevenson and Secor, 1999; Collins et al. 2000; Caron et al., 
2002); and, (3) it is unclear to what extent mature fish in a non-
spawning condition occur on the spawning grounds (Vladykov and Greeley, 
1963).
    Having received a petition and subsequently finding that there was 
substantial scientific and commercial information indicating that 
listing Atlantic sturgeon may be warranted (75 FR 838; January 6, 
2010), we are required to use the best scientific and commercial data 
available to determine whether Atlantic sturgeon should be listed under 
the ESA because of any of the following five factors: (1) The present 
or threatened destruction, modification, or curtailment of its habitat 
or range; (2) overutilization for commercial, recreational, scientific, 
or educational purposes; (3) disease or predation; (4) the inadequacy 
of existing regulatory mechanisms; or (5) other natural or manmade 
factors affecting its continued existence (section 4(a)(1)(A)(E)), and 
after taking into account efforts being made to protect the species. We 
are required to make a determination within 1 year of receipt of a 
petition. The best available information indicates that all riverine 
populations of Atlantic sturgeon in the Northeast Region are at reduced 
levels from those reported historically, and are being exposed to 
significant threats that are ongoing and not being adequately 
addressed.
    Under section 4(c)(2) of the ESA, we are required to evaluate the 
listing classification of a species every 5 years. New, relevant 
scientific and commercial information should be considered during the 
5-year evaluation process. Should new abundance data become available 
to indicate that the listing classification warrants changing, we would 
complete a thorough review of the best available data and proceed with 
any rulemaking as appropriate.
    Comment 4: The State of Maine, Department of Marine Resources 
cautioned that differences in catch-per-unit-effort for subadult and 
adult Atlantic sturgeon in the Kennebec River over two time periods may 
not be directly comparable since the areas sampled during the two time 
periods were not similar. The selection of the sampling location during 
the first time period likely resulted in an underestimate of catch-per-
unit-effort since fall sampling included areas where Atlantic sturgeon 
do not congregate at that time of year.
    Response: In this final rule we have revised the description of 
available abundance information for the GOM DPS to reflect the 
information submitted.
    Comment 5: One commenter felt that NMFS did not provide evidence of 
decreasing population abundance in the Chesapeake Bay DPS, and that 
abundance in other DPSs appears to be stable or increasing. We received 
several comments that the James River Atlantic sturgeon riverine 
population is increasing based on increased catches of sturgeon in the 
river by researchers and an increase in the number of Atlantic sturgeon 
unintentionally caught in commercial fishing gear. Several comments 
pointed to NMFS statements in the proposed rule and newspaper accounts 
that sturgeon are expanding in areas where they have historically never 
been.
    Response: We noted in the proposed rule that increasing numbers of 
Atlantic sturgeon are being observed in the James River (Garman and 
Balazik, unpub. data in Richardson et al., 2009). Similarly, we noted 
that Atlantic sturgeons are being observed in increasing numbers in the 
Kennebec River, Saco River, and the Merrimack River estuary. However, 
given the extensive mixing of Atlantic sturgeon from the five DPSs and 
Canada, genetic analysis is needed to identify whether and to what 
extent any reported increase in abundance within `mixing areas' is the 
result of increased abundance of the nearest spawning population or the 
result of increased abundance or movement of one or more of the other 
DPSs.
    Based on the best available information, we cannot determine 
whether the observations reflect actual increases in abundance. 
Directed sampling for Atlantic sturgeon has been limited in duration, 
intensity, and continuity. While the reports of increased sightings are 
encouraging, given the limited information, we cannot determine whether 
the increased sightings and/or captures are indicative of: (1) An 
increase in abundance of any one particular riverine population; (2) an 
increase in abundance of all Atlantic sturgeon riverine populations; or 
(3) an artifact of increased or improved sampling? Even relatively 
slight changes in sampling methodology can account for substantial 
differences in capture success of Atlantic sturgeon. For example, the 
Maine Department of Marine Resources has provided information on 
differences in sampling times and areas that likely account for 
perceived but not actual changes in abundance during two sampling time 
periods (see Comment 4).
    While it may be possible that some Atlantic sturgeon riverine 
populations are experiencing some increase in abundance, they remain at 
significantly reduced abundance levels compared to historical levels; 
and, factors such as bycatch mortality, vessel strikes, water quality 
and habitat destruction are keeping them at reduced levels despite the 
fishing moratorium and other protective efforts. Long-term, continuous, 
standardized studies of Atlantic sturgeon abundance (including genetic 
analysis to differentiate between

[[Page 5888]]

sturgeon) are needed. We are funding several studies of Atlantic 
sturgeon within the riverine range of the CB, NYB, and GOM DPS to 
better assess abundances of Atlantic sturgeon riverine populations.
    Comment 6: One commenter questioned NMFS' proposed listing of the 
NYB DPS as endangered and noted NMFS' statement from the proposed 
listing rule in regard to the Hudson River abundance estimate that 
``The current number of spawning adults may be higher given that the 
estimate is based on the time period prior to the moratorium on fishing 
for and retention of Atlantic sturgeon'' (page 61881, 75 FR 61872; 
October 6, 2010).
    Response: In the proposed rule we relied on the best available 
data, which included the existing population estimate for the Hudson of 
870 spawning adults per year (Kahnle et al., 2007). We provided context 
for this estimate and indicated that it does not represent an estimate 
of the total number of adults in the riverine population, since mature 
Atlantic sturgeon may not spawn every year (Vladykov and Greeley, 1963; 
Smith, 1985; Van Eenennaam et al., 1996; Stevenson and Secor, 1999; 
Collins et al., 2000; Caron et al., 2002), and it is unclear to what 
extent mature fish in a non-spawning condition occur on the spawning 
grounds. The accuracy of the estimate may also be affected by bias in 
the reported harvest or estimated exploitation rate for that time 
period (Kahnle et al., 2007). Underreporting of harvest would have led 
to underestimates of stock size, while underestimates of exploitation 
rates would have resulted in overestimates of stock size (Kahnle et 
al., 2007). In addition to these caveats, as the commenter indicates, 
we noted in the proposed rule that the current number of spawning 
adults may be higher given that the estimate is based on commercial 
fisheries data collected 16-26 years ago and prior to the moratorium on 
fishing for and retention of Atlantic sturgeon. This information was 
provided to further clarify why the estimate of 870 spawning adults per 
year (Kahnle et al., 2007) could not be used to generate a total 
abundance estimate for the current Hudson River riverine population of 
Atlantic sturgeon.
    The Kahnle et al. estimate does, however, provide a benchmark of 
the number of spawning adults per year for the Hudson River prior to 
the moratorium on fishing for Atlantic sturgeon. Kahnle et al. (2007) 
also showed that the level of fishing mortality from the Hudson River 
Atlantic sturgeon fishery during the period of 1985-1995 exceeded the 
estimated sustainable level of fishing mortality for the riverine 
population. Information on catch-per-unit-effort of juvenile Atlantic 
sturgeon in the Hudson River estuary from 1985-2010 suggest that 
recruitment has declined since the mid-1980's and remains depressed 
relative to catches of juvenile Atlantic sturgeon in the estuary during 
the mid-late 1980's (Sweka et al., 2007; ASMFC, 2010).
    Comment 7: Some commenters noted that while NMFS recognized that 
the abundance data cited for the Hudson River (Kahnle et al., 2007) may 
underestimate current conditions, no mention was made of an updated 
report, Kahnle et al., (in press), titled ``Status of Atlantic sturgeon 
of the Hudson River estuary'', published by the American Fisheries 
Society.
    Response: The report, ``Kahnle et al. (in press),'' was referenced 
in the Atlantic sturgeon status review report, and is the same as 
Kahnle et al. (2007) since publication of the report occurred after the 
status review report was made available. The full citation for the 
report is as follows: Kahnle, A.W., K.A Hattala, and K.A. McKown. 2007. 
Status of Atlantic sturgeon of the Hudson River estuary, New York, USA. 
American Fisheries Society Symposium 56:347-363.
    Comment 8: Some commenters recommended that Atlantic sturgeon be 
listed only in areas where they are rare, and that the listing not 
apply to areas where many sturgeons are known to be found.
    Response: To be considered for listing under the ESA, a group of 
organisms must constitute a ``species.'' A ``species'' is defined in 
section 3 of the ESA to include ``any subspecies of fish or wildlife or 
plants, and any distinct population segment of any species of 
vertebrate fish or wildlife which interbreeds when mature.'' Given the 
ESA's definition of ``species'', if Atlantic sturgeons are found to 
comprise multiple DPSs, it is possible to list some but not all DPSs if 
such a listing is warranted. Such was the case for green sturgeon on 
the U.S. West Coast where the southern DPS of green sturgeon is listed 
as threatened, and the northern DPS of green sturgeon is not listed 
under the ESA (71 FR 17757, April 7, 2006). Once listed, the species 
retains that listing status wherever it is found, and all persons 
within U.S. jurisdiction must comply with the protective regulations of 
the ESA for that listed species. Based on our review of the best 
available data, we determined that all U.S. DPSs of Atlantic sturgeon 
warrant listing under the ESA.
    Comment 9: A commenter stated that the lack of recent abundance 
estimates does not allow NMFS to evaluate the efficacy of the coastwide 
moratorium and expressed concern that NMFS has not allowed enough time 
to pass, nor collected enough data since 1998 to adequately conclude 
whether the moratorium alone has served to prevent the species from 
further decline.
    Response: We would like to have had recent and complete abundance 
information for each DPS prior to making a final determination. 
However, we must comply with the statutory and regulatory requirements 
that we make a finding within a specified timeframe and use the best 
scientific and commercial data currently available in making this 
finding.
    The objective of the coastwide moratorium is to restore Atlantic 
sturgeon abundance to a level at which each riverine population 
contains 20 consecutive year classes of females. The exact time that 
this will take is unknown but is expected to range from 20-40 years 
given Atlantic sturgeon's generation time. At a workshop in 2003, 
``Status and Management of Atlantic Sturgeon'', Atlantic sturgeon 
experts met to discuss the status of the species and identify any 
threats that might be impeding recovery. Because participants of the 
workshop were concerned that some populations were continuing to 
decline, a status review was initiated. As described in the status 
review report (ASSRT, 2007) the abundance of Atlantic sturgeon spawning 
populations is far below historical levels, some spawning populations 
have likely been extirpated (i.e., no longer exist), and most DPSs have 
only one or two spawning populations. There are threats to each DPS 
that are not being adequately addressed, and at least some could have a 
greater effect on Atlantic sturgeon in the foreseeable future (e.g., 
changes in fishing practices resulting in higher Atlantic sturgeon 
bycatch, changes to major ports resulting in more and/or larger ships 
where vessel strikes are known to occur). Based on the review of the 
information, the status review team concluded that at least three 
Atlantic sturgeon DPSs warranted listing under the ESA. As described in 
the proposed rule, additional information on threats was received after 
completion of the status review report. Our evaluation of this 
information indicates that the moratorium on directed fisheries has not 
and will not be sufficient to address the impacts that are preventing 
sturgeon populations from recovering (including bycatch, habitat 
degradation, and vessel strikes).

[[Page 5889]]

    In January 2010, we determined that a petition to list Atlantic 
sturgeon presented substantial information indicating that the 
requested listing actions may be warranted (75 FR 838). Once such a 
finding is made, we are required by regulation to comply with specific 
timeframes. Specifically, we were required (50 CFR 424.14(B)(3)) to 
determine within 12 months of receipt of the petition whether listing 
is warranted and publish in the Federal Register either a proposed rule 
to list or a notice that listing is not warranted. Since we determined 
that listing the five Atlantic sturgeon DPSs was warranted and 
published proposed rules to that effect (75 FR 61872 and 75 FR 61904; 
October 6, 2010), we are required to make a final determination on the 
proposed listing within 1 year of publication of the proposed rule. 
Therefore, we are required to make a final listing determination for 
the GOM, NYB, and CB DPSs no later than October 6, 2011, unless there 
is substantial disagreement among scientists knowledgeable about the 
species concerned regarding the sufficiency or accuracy of the 
available data relevant to the determination, in which case we could 
have extended the timeframe for making the final listing determination 
by up to 6 months (50 CFR 424.17(a)(1)(iv)). Information provided 
during the public comment period on the proposed rule did not indicate 
that such substantial disagreement exists. Thus, we were required to 
comply with the statutory requirement to publish a final determination 
by October 6, 2011. However, additional time was necessary given the 
complexity of ensuring consistency between the two rules that address 
listing of the five DPSs of Atlantic sturgeon.

Delineation of the GOM, NYB, and CB DPSs

    Comment 10: One commenter felt that instead of having five 
individual DPSs, we should list the whole population as one entity. The 
commenter added that it would be simpler for NMFS and the Federal 
agencies engaging in ESA section 7 consultations.
    Response: If the species were listed as one entity, the section 7 
consultation process would likely be simpler to conduct given that 
there is substantial mixing throughout the marine range of Atlantic 
sturgeon. However, we found that discrete and significant population 
segments of Atlantic sturgeon exist, as defined in Services' joint DPS 
Policy (61 FR 4722; February 7, 1996), and have decided to list the 
species as DPSs. Regardless of how the entities are listed, 
consultations under section 7 will follow the same process and will 
apply the same standards.
    For purposes of section 7, Federal agencies proposing to take an 
action will need to describe the effects of the proposed action on each 
of the Atlantic sturgeon DPSs that are likely to occur within the 
action area. We, as the consulting agency, will need to consider 
whether the proposed action is likely to jeopardize the continued 
existence of any of the Atlantic sturgeon DPSs that occur within the 
action area, provide an incidental take statement, and monitor the take 
of Atlantic sturgeon by DPS as a result of the proposed action. We 
acknowledge that this will be difficult given the complexity of 
Atlantic sturgeon life history and available information. However, 
while this issue may add complexity, at least temporarily, to 
consultations, we have determined that the identified DPSs warrant 
listing under the ESA. Furthermore, information is available to help us 
and other Federal agencies to address the section 7 requirements. Such 
information includes genetic information from a mixed stock analysis of 
Atlantic sturgeon captured in marine waters from Canada to North 
Carolina. Genetic analyses of additional Atlantic sturgeon tissue 
samples are in progress to improve our understanding of the extent of 
DPS mixing in the marine environment. The results of the additional 
analyses will be available by spring 2012.
    Comment 11: A commenter representing a group of fishermen stated 
that the data used in formulating the proposed listing of the NYB DPS 
as endangered are flawed and incomplete. Specifically, the commenter 
asserts that no mention is made of Wirgin et al., 2007, which provides 
information indicating that the genetic structure of sturgeon 
populations in the Hudson River and Delaware River are distinct. Nor 
did we note the statements made in Grunwald et al., 2008, with respect 
to statements made in Sweka et al. 2007, that there was evidence of 
increasing Atlantic sturgeon recruitment in the Hudson River since the 
fishery closure in 1996. The conclusions reached by these scientists 
support that the Hudson River riverine population and the Delaware 
River riverine population must be viewed as distinct and given separate 
risk analyses.
    Response: We disagree with the commenter. The word ``distinct'' as 
commonly used is not synonymous with the phrase ``distinct population 
segment''. A vertebrate population that is, in layman's terms, distinct 
from another is not necessarily a ``distinct population segment''. The 
DPS Policy (61 FR 4722; February 7, 1996) describes how we will 
interpret the term ``distinct population segment'' for the purposes of 
listing, delisting, and reclassifying vertebrates under the ESA. While 
genetic differences between Atlantic sturgeon originating in the 
Delaware and Hudson Rivers have been detected, and while there are 
likely differences in abundance, the Hudson and Delaware River riverine 
populations of Atlantic sturgeon meet the criteria for listing as a 
single DPS.
    As described in the proposed listing rule (75 FR 61872), genetic 
analyses for Atlantic sturgeon using mitochondrial DNA (mtDNA), which 
is maternally inherited, and nuclear DNA (nDNA), which reflects the 
genetics of both parents, have consistently shown that Atlantic 
sturgeon riverine populations are genetically diverse and that 
individual riverine populations can be differentiated (Bowen and Avise, 
1990; Ong et al., 1996; Waldman et al., 1996a; Waldman et al., 1996b; 
Waldman and Wirgin, 1998; Waldman et al., 2002; King et al., 2001; 
Wirgin et al., 2002; Wirgin et al., 2005; Wirgin and King supplemental 
data, 2006; Grunwald et al., 2008). The results of Wirgin et al. (2007) 
are consistent with the studies cited in the proposed listing rule. 
However, genetic discreteness alone does not qualify a population as a 
DPS. In evaluating whether the test for discreteness has been met under 
the DPS policy, we allow but do not require genetic evidence to be used 
(DPS policy at page 4723), and the measures of both discreteness and 
significance must be met for a vertebrate population to be recognized 
as a DPS (DPS policy at page 4724).
    Nothing in the DPS policy points to differences in abundance as a 
reason for or against delineating DPSs. For clarification, Grunwald et 
al. (2008) incorrectly cited the source for the information on juvenile 
abundance in the Hudson River as Sweka et al. (in press) (subsequently 
published as Sweka et al., 2007). The source of this information on 
juvenile abundance is the New York State Department of Environmental 
Conservation 2004 annual compliance report to the ASMFC for Atlantic 
sturgeon (NYSDEC, 2005). The 2010 ASMFC Annual Report provides an 
update of catch-per-unit-effort of juvenile Atlantic sturgeon in the 
Hudson River estuary between 1996 and 2004. As described in NYSDEC 
(2005), catch-per-unit-effort was slightly higher in 2004 compared to 
1996 but has remained relatively unchanged since 2004 (ASMFC, 2010).

[[Page 5890]]

    Comment 12: Commenters felt that the genetic analyses used to 
support the discreteness of the NYB DPS were not accurate, because 
genetic samples for the Delaware River riverine population used in 
these analyses were collected from subadult fish in the Delaware Bay. 
Subadult fish that are non-natal to the Delaware River are known to 
occur in the Delaware Bay.
    Response: Genetic analyses used in determining the DPS structure 
for Atlantic sturgeon did not include analysis of samples from subadult 
fish, because subadults are known to travel widely and enter estuaries 
of non-natal rivers. New analyses of both mitochondrial DNA, which is 
maternally inherited, and nuclear DNA, which reflects the genetics of 
both parents, were conducted specifically for the status review. In 
comparison to previous studies, the genetic analyses used in the DPS 
analysis used larger sample sizes from multiple rivers, and limited the 
samples analyzed to those collected from young-of the-year and mature 
adults (> 130 cm total length (TL)) to ensure that samples represented 
fish originating from the particular river in which it was sampled 
(King, Supplemental data. 2011; Wirgin and King supplemental data, 
2006; ASSRT, 2007).
    Comment 13: One commenter also questioned the analysis we used to 
support grouping the Hudson River and Delaware River riverine 
populations into the same DPS as it relates to the significance 
criterion in our DPS Policy. The commenter asserted that while there 
are many similarities between the Hudson and Delaware watersheds, there 
are also sufficient differences between the watersheds to produce 
distinct genetic adaptations to each watershed, and that combining the 
Hudson and Delaware riverine populations into the same DPS dismisses 
the unique genetic lineage of the Delaware River riverine population. 
In addition, some benthic habitat categorizations based on The Nature 
Conservancy's marine ecoregions for U.S. Atlantic coastal waters can be 
used to place the waters off of New York and Delaware into separate 
habitat groups. The commenter also noted that the argument under the 
significance criterion that loss of the NYB DPS would create a 
significant gap in the range of the species could be applied to any 
grouping of populations of Atlantic sturgeon and is therefore 
meaningless. Similarly, the commenter stated that the argument that the 
DPS represents the only surviving natural occurrence of a taxon that 
may be found more abundantly elsewhere could also be applied to any 
geographic grouping.
    Response: We agree that the Hudson River and Delaware River 
riverine populations are genetically distinguishable. The proposed rule 
described four factors cited in the DPS Policy that could be considered 
when evaluating populations under the significance criterion of the 
policy. These four factors are: (1) Persistence of the discrete 
population segment in an ecological setting unusual or unique for the 
taxon; (2) evidence that loss of the discrete population segment would 
result in a significant gap in the range of the taxon; (3) evidence 
that the DPS represents the only surviving natural occurrence of a 
taxon that may be more abundant elsewhere as an introduced population 
outside its historical range; or, (4) evidence that the discrete 
population segment differs markedly from other populations of the 
species in its genetic characteristics. We used evidence of persistence 
of the discrete population segment in an ecological setting unusual or 
unique for the taxon, and evidence that loss of the discrete population 
segment would result in a significant gap in the range of the taxon for 
identifying the Atlantic sturgeon DPSs, including the NYB DPS. We did 
not present any evidence that any of the DPSs represents the only 
surviving natural occurrence of a taxon that may be more abundant 
elsewhere.
    We evaluated whether the five discrete populations we identified 
persist in ecological settings unique for the taxon by comparing the 
area encompassing the present or historical spawning range of each 
discrete population with the terrestrial ecoregions identified by The 
Nature Conservancy. We used the terrestrial ecoregions rather than the 
Nature Conservancy marine ecoregions because the terrestrial ecoregions 
included rivers in which Atlantic sturgeon spawn. Since the separation 
of Atlantic sturgeon to different spawning rivers accounts for the 
differences in genetic variation observed among the discrete 
populations, we focused on whether spawning rivers represented unique 
ecological settings versus evaluating the uniqueness of the coastal 
marine areas where Atlantic sturgeon originating from different rivers 
can co-occur.
    We also considered whether the loss of any of the DPSs would create 
a significant gap in the range of the taxon. The loss of the discrete 
population which is comprised of the Hudson River and Delaware River 
riverine populations would create a gap in known Atlantic sturgeon 
spawning rivers from the Kennebec River, Maine to the James River, 
Virginia. Genetic data support the idea that the straying of 
individuals from the Kennebec River to the James River or vice versa 
for spawning is unlikely to occur. Therefore, the loss of the NYB DPS 
would be significant.
    Comment 14: Several commenters questioned the proposal to list the 
CB DPS of Atlantic sturgeon as endangered. Some commenters felt that 
this DPS warrants listing as threatened, and others recommended no 
listing at all under the ESA. We received several comments that the 
James River Atlantic sturgeon riverine population is increasing based 
on increased catches in the river. One commenter reported that Virginia 
Commonwealth University researchers have interacted with 87 different 
spawning adult Atlantic sturgeon on the James River and noted 
increasing numbers of Atlantic sturgeon (from two in 2007 to 34 in 
2010) while gill netting in the James River near the confluence with 
the Appommattox River. Other commenters pointed to anecdotal reports of 
increased interactions in commercial fisheries, as well as the work of 
other Virginia researchers who have also documented capture of a very 
large number of sturgeon from 1997 to the present (see Spells, 1998). 
Commenters also pointed to the presence of sturgeon in tributaries of 
the York River, the potential presence of a spawning population in the 
York River, the likelihood that the threats identified in the proposed 
rule would remain the same or decrease as a result of current measures 
(e.g., temporal dredging restrictions, the recently published Total 
Maximum Daily Load measures for the Chesapeake Bay), and the discovery 
of summer holding areas in the James River and possibly the Mattaponi 
River.
    Response: While these reports are encouraging, this perceived 
increase in abundance may not reflect an actual increase in abundance 
for the CB DPS; several reasons for this are discussed further in our 
response to Comment 5 above. Additionally, no data have been provided 
to suggest that the increased catch consisted entirely of Atlantic 
sturgeon from the CB DPS. The Chesapeake Bay and tributaries are known 
to be a mixing zone for Atlantic sturgeon of multiple DPSs (ASSRT, 
2007). Without genetic analyses or other identifying information (e.g., 
tags), it is not possible to attribute increases in the catch of non-
spawning adults to an increase in abundance of a particular DPS or 
riverine population. The proposed listing rule did note that increasing 
numbers of Atlantic sturgeon are being observed in the Chesapeake Bay 
area (Garman and Balazik, unpublished data in Richardson et al., 2009). 
These fish may originate from the

[[Page 5891]]

James River; however, the data do not allow us to make any conclusions 
regarding the origin of the fish. Richardson et al. (2009) went on to 
say that the Chesapeake Bay DPS remained severely depleted, and that 
little information exists on sturgeon behavior, movements, and 
reproduction in the Chesapeake Bay. The status review team acknowledged 
that spawning may be occurring in the York River (ASSRT, 2007), and the 
proposed rule likewise stated that spawning is suspected to occur in 
the York River.
    We acknowledge, as stated in the proposed rule, that the 
Commonwealth of Virginia imposes a dredging moratorium during the 
spawning season for anadromous fish species in the James River, and 
that waivers to this restriction are only granted in very limited 
circumstances (e.g., studying the impacts of dredging on sturgeon). 
However, there remains the potential for habitat degradation as a 
result of dredging operations, and for Atlantic sturgeon to be taken in 
dredging operations that occur outside of the spawning season 
restriction period. With respect to water quality, the Total Maximum 
Daily Load for Nitrogen, Phosphorous, and Sediments (USEPA, 2010) 
should contribute to the trend of improving water quality that has been 
reported for the Northeast Coast in general (USEPA, 2008), and add to 
initiatives that are already in place to improve water quality within 
the Chesapeake Bay (Executive Order, May 12, 2009; NOAA's Chesapeake 
Bay Protection and Restoration Final Strategy, 2010). Nevertheless, the 
extensive watersheds of this area funnel nutrients, sediment, and 
organic material into secluded, poorly flushed estuaries that are more 
susceptible to eutrophication (USEPA, 2008). Using a multivariable 
bioenergetics and survival model, Niklitschek and Secor (2005) 
demonstrated that within the Chesapeake Bay, a combination of low 
dissolved oxygen, water temperature, and salinity restricts available 
Atlantic sturgeon habitat to 0-35 percent of the Bay's modeled surface 
area during the summer.
    Comment 15: Some commenters disagreed with the proposed listing 
determination for the NYB DPS, and felt that the best available 
information indicates that the DPS should be listed as threatened. 
Specifically, the commenters felt that evidence of spawning in the 
Delaware River, increasing returns from the New Jersey Ocean Assessment 
Trawl from 2001-2008, and increases in juvenile and adult Atlantic 
sturgeon abundance in the Hudson River indicate that the status of the 
NYB DPS is improving. Additionally, commenters felt that the threat of 
bycatch was overstated in the proposed listing rule, impacts from 
climate change are uncertain and were inadequately explained in the 
proposed listing rule, and that a listing is not likely to result in 
the ability to reduce ship strikes in the Delaware River. One commenter 
also felt that if the DPS were listed as threatened, NMFS should 
provide a 4(d) exemption for scientific research that follows recently 
published research protocols (Damon-Randall et al., 2010), as the 
Agency's attention would be better focused on managing threats to the 
species.
    Response: In making a listing determination for the NYB DPS, we 
considered that the Delaware River was a spawning river for Atlantic 
sturgeon. We determined that the NYB DPS of Atlantic sturgeon was 
currently in danger of extinction on the basis of precipitous declines 
to population sizes that are unstably low, the protracted period in 
which sturgeon populations have been depressed, the limited amount of 
current spawning, and the impacts and threats that have and will 
continue to prevent population recovery.
    With respect to other information suggesting increases in abundance 
of Atlantic sturgeon, we refer to the response for comment 5. We have 
not received any new information to show that there is an increasing 
abundance of juvenile and/or adult Atlantic sturgeon in the Hudson 
River. Information on catch-per-unit-effort of juvenile Atlantic 
sturgeon in the Hudson River estuary from 1985-2010 suggest that 
recruitment has declined since the mid-1980's and remains depressed 
relative to catches of juvenile Atlantic sturgeon in the estuary in the 
mid-late 1980's (Sweka et al., 2007; ASMFC, 2010). As described above, 
identifying information (e.g., genetic data or tags) is necessary to 
determine whether sturgeon abundance in mixing areas is attributable to 
a particular DPS.
    We disagree with the comments that bycatch was overstated in the 
proposed rule as a threat to the DPSs. While the most recent bycatch 
report for Atlantic sturgeon (ASMFC, 2007) suggests a level of bycatch 
mortality that is less than what was reported by Stein et al., 2004, 
the levels of bycatch mortality in sink gillnet gear are still high and 
unsustainable based on modeling of anthropogenic mortality for Atlantic 
sturgeon (Boreman 1997, ASMFC, 2007; Kahnle et al., 2007; Brown and 
Murphy, 2010). In addition, reported levels of bycatch mortality are 
expected to be a minimum of what is actually occurring since some fish 
may be released alive but later die, and some bycatch mortality may be 
unreported.
    We agree with the commenter that the extent of impacts from climate 
change is uncertain. Expected environmental effects from climate 
change, according to the latest report from the Intergovernmental Panel 
on Climate Change (IPCC), include higher water temperatures and changes 
in extreme weather events, including floods and droughts, that are 
projected to affect water quality and exacerbate many forms of water 
pollution, including sediments, nutrients, dissolved organic carbon, 
pathogens, pesticides, and salt, as well as thermal pollution, with 
possible negative impacts on ecosystems, human health, and water system 
reliability and operating costs. Changes in water quality (e.g., 
temperature, salinity, dissolved oxygen, contaminants) have the 
potential to impact Atlantic sturgeon riverine populations using 
impacted river systems. Although these effects are expected to be more 
severe for southern portions of the U.S. range of Atlantic sturgeon, 
low dissolved oxygen levels from eutrophication have impacted systems 
throughout the range of the species, and recent water quality 
improvements (including increases in dissolved oxygen such as those 
noted for the Delaware River) indicate that even northern riverine 
populations of Atlantic sturgeon could be impacted by degraded water 
quality as a result of climate change. Simulations conducted by 
Niklitschek and Secor (2005), predicted that a 1 [deg]C increase of 
water temperature in the Chesapeake Bay would decrease the amount of 
available Atlantic sturgeon habitat by 65 percent.
    Vessel strikes are a significant threat to the species in certain 
portions of its range (e.g., the Delaware River and the James River). 
Thus, it is appropriate to consider vessel strikes when determining the 
ESA listing status of Atlantic sturgeon. We agree that vessel strikes 
of Atlantic sturgeon are a challenging problem given the limited 
information of how, where, and when the strikes occur. However, the ESA 
provides tools for addressing threats to ESA-listed species, including 
funding of research initiatives, use of existing Federal authorities in 
accordance with section 7(a)(1), consultation with Federal agencies in 
accordance with section 7(a)(2), as well as public awareness and 
outreach with state agencies and non-Federal partners. We will use 
these tools to address the problem of vessel strikes of Atlantic 
sturgeon in the Delaware River and elsewhere within its range.

[[Page 5892]]

    All of the prohibitions listed under section 9(a)(1) of the ESA 
apply automatically when a species is listed as endangered but not when 
listed as threatened. In the case of a species listed as threatened, 
section 4(d) of the ESA requires the implementation of measures deemed 
necessary and advisable for the conservation of species. We have 
proposed measures in accordance with section 4(d) for the GOM DPS (76 
FR 34023; June 10, 2011). The proposed 4(d) regulations for the GOM DPS 
include an exception for certain scientific research conducted within 
the river range of the DPS when the research followed NMFS-approved 
research protocols (e.g., Damon-Randall et al., 2010; Kahn and Mohead, 
2010). If other DPSs were listed as threatened, we would likewise 
consider what measures were necessary for the conservation of the 
species, including any exceptions to those measures (e.g., for 
scientific research).
    Comment 16: Some commenters felt that listing the NYB DPS should be 
expedited due to several projects that could imminently place the 
species at risk of extinction. Other commenters felt that the Delaware 
River should be listed as its own DPS, and on an emergency basis, with 
the entire Delaware River Estuary designated as critical habitat. The 
commenters cited several projects that could occur in 2011 and that 
have the potential to cause the extirpation of the Delaware River 
riverine population. The projects that commenters felt necessitated an 
emergency listing included the: (1) Delaware Deepening project; (2) 
Southport River fill project; (3) airport expansion project; (4) 
natural gas drilling in the Upper Delaware River and the Schulykill 
River; and, (5) LNG Crown Point project.
    Response: We considered whether the Delaware River riverine 
population of Atlantic sturgeon met the definition of a DPS as 
identified in the DPS policy (61 FR 4722; February 7, 1996). As 
described in comment 13 above, we evaluated whether Atlantic sturgeon 
population segments met the DPS Policy criteria and described the 
delineation of five Atlantic sturgeon DPSs in detail in the proposed 
rule. Based on application of the DPS policy criteria, we determined 
that the Delaware River riverine population does not meet the criteria 
of a DPS on its own.
    Although the Delaware River riverine population of Atlantic 
sturgeon does not meet the criteria for a DPS on its own, we did 
consider whether the NYB DPS, of which the Delaware River riverine 
population is a part, warranted an emergency listing under the ESA 
given activities expected to occur in the Delaware River. Emergency 
listing is authorized under the section 4(b)(7) of the ESA at the 
discretion of the Secretary upon determination that an emergency poses 
a significant risk to the well-being of the species. In the case of an 
emergency listing, the Secretary must publish the regulation with a 
detailed explanation of why the regulation is necessary, and provide 
notice of the regulation to each state where the species is known to 
occur. The listing goes into effect immediately at the time of 
publication in the Federal Register and is in effect for 240 days 
following its publication, at which time any regular rulemaking that 
occurred during the emergency listing period would go into effect.
    We concluded that multiple planned actions including those 
identified by the commenter did not pose significant risk to the well-
being of the NYB DPS to warrant an emergency listing. We are currently 
conferencing with the Army Corp of Engineers (USACE) on the Delaware 
Deepening project and the Southport River fill project in accordance 
with section 7(a)(4) of the ESA. As the agency responsible for carrying 
out the project, the USACE is working with us to ensure that the 
project does not jeopardize the continued existence of any Atlantic 
sturgeon DPS.
    In 2010, the Federal Aviation Administration (FAA) consulted with 
us to ensure that the Philadelphia International Airport expansion 
project did not jeopardize the existence of shortnose sturgeon. As part 
of this consultation, we provided technical assistance on candidate 
species in the action area, including Atlantic sturgeon. Additionally, 
in our letter to the FAA, we indicated that the FAA should coordinate 
with us prior to beginning any in-water work, in order to ensure that 
Atlantic sturgeon and shortnose sturgeon are sufficiently protected. In 
2006, the Federal Energy Regulatory Commission (FERC) consulted with us 
on the Crown Point LNG project. At this time, the project is not moving 
ahead, and there is no indication that it will be initiated. We have no 
information that the natural gas drilling project is already occurring 
or is about to occur. If the action agency informs us of its proposal 
to drill in the upper Delaware River, we will consult on the action to 
determine what effects there will be to Atlantic sturgeon or any other 
ESA-listed species.
    Critical habitat will be considered in a separate rulemaking. We 
welcome information that will assist us in identifying the physical or 
biological features essential to the conservation of the species which 
may require special management considerations or protection. We have 
not yet determined which portions, if any, of the Delaware River 
Estuary, contain such features.
    Comment 17: One commenter requested that we consider the importance 
of Atlantic sturgeon to the Delaware Estuary when making our final 
listing decision. This commenter noted that Atlantic sturgeon have been 
identified as a priority resource by the Delaware Estuary Program's 
Habitat Task Force.
    Response: We are responsible for determining whether Atlantic 
sturgeon are threatened or endangered under the ESA (16 U.S.C. 1531 et 
seq.). Accordingly, based on the statutory, regulatory, and policy 
provisions described in the proposed rule (October 6, 2011; 75 FR 
61872), we evaluated the status of the species and the factors 
affecting it, and identified and assessed efforts being made to protect 
the species. After considering public comment on the proposed rule, we 
believe the best available information as outlined in the proposed 
listing and as supplemented by public comments and our responses to the 
public comments, continue to support the determination that the NYB DPS 
is in danger of extinction throughout all or a significant portion of 
its range.
    Comment 18: One commenter submitted a scientific paper (Erickson et 
al., 2011) that showed Atlantic sturgeon mixing during their time in 
the ocean, with Atlantic sturgeon tagged in the Hudson River (the 
authors presumed that these were fish from the NYB DPS) traveling as 
far south as the coast of Georgia and as far north as the Bay of Fundy. 
Given this data, the commenter suggests that all DPSs be listed as 
endangered, and the impact of Canadian fisheries on Atlantic sturgeon 
populations that spawn in the United States be considered in the 
recovery plan.
    Response: The information provided in the proposed rule and this 
final rule notes the extensive mixing of Atlantic sturgeon in the 
marine environment. We appreciate the information presented that 
further demonstrates the mixing of Atlantic sturgeon in the marine 
environment. Listing decisions are made on the basis of the best 
available scientific and commercial information, taking into 
consideration: The status of the species and the factors affecting it, 
and efforts being made to protect the species. The notable mixing of 
Atlantic sturgeon in the marine environment does not necessitate that 
all Atlantic sturgeon DPSs are listed identically. Because each DPS was 
considered for

[[Page 5893]]

listing as a species, we evaluated the status of each DPS to determine 
their appropriate listing classification under the ESA.
    The Erickson et al. (2011) reference shows that while two Atlantic 
sturgeon tagged in the Hudson River made extensive migrations (i.e., 
they were tracked to Georgia and the Bay of Fundy), the remaining 
thirteen fish did not leave the Mid-Atlantic Bight. The same pattern is 
expected to be seen for each Atlantic sturgeon riverine population, 
with the highest concentrations of fish from a riverine population 
being found in close proximity to the spawning river from which they 
originated. Because of this pattern, we expect fish from each Atlantic 
sturgeon riverine population to be exposed to similar threats, yet at 
different degrees. This differential threat exposure, combined with the 
differing population status of each DPS, has led to the listing 
determination that the NYB and CB DPSs are endangered, while the GOM 
DPS is threatened.
    We expect to prepare a recovery plan for each DPS. Canada's 
Department of Fisheries and Oceans has submitted information to us with 
respect to operation of the Atlantic sturgeon fisheries that occur in 
the St. Lawrence River and in the Bay of Fundy. We will consider all of 
this information when preparing the recovery plans for the GOM, NYB, 
and CB DPSs as well as in ESA section 7 consultations.
    Comment 19: Some commenters felt that the NYB and CB DPSs should 
not be listed under the ESA, or should be listed as threatened rather 
than endangered, with section 4(d) take exemptions for recreational 
fishing and boating, as well as cooperative fisheries, management and 
scientific research activities.
    Response: As noted previously, the best available information 
indicates that Atlantic sturgeon are currently at reduced levels that 
are well below historical abundance levels, and are impacted by 
ongoing, significant threats that are not currently being adequately 
regulated (e.g. water quality, dredging, vessel strikes, and bycatch in 
commercial fisheries). These threats place the NYB and CB DPSs at risk 
of extinction. Thus, we have concluded that listing both the NYB and CB 
DPSs as endangered is warranted. Listing as endangered precludes the 
use of section 4(d) of the ESA to promulgate other protective 
regulations as suggested by the commenter. We have, however, proposed 
protective 4(d) regulations for the GOM DPS (76 FR 34023; June 10, 
2011).

Identification and Consideration of Specific Threats

    Comment 20: Several commenters recommended that there should be 
more research done on the potential impacts on Atlantic sturgeon and 
ways to mitigate and reduce these impacts. Some research subjects that 
were mentioned include: Structures that block passages such as dams, 
genetic diversity, vessel strikes, Atlantic sturgeon habitat that could 
be potentially threatened by dredging, bycatch mortality, toxins, 
climate change, migration patterns, and behavioral (e.g., spawning, 
nursing, overwintering, foraging, etc.) investigations, and habitat 
mapping. Other commenters stated that data on the threats of Atlantic 
sturgeon are incomplete and more research is needed.
    Response: We agree with the comments that more research on threats 
to Atlantic sturgeon and their habitat is needed. Currently, there are 
multiple Atlantic sturgeon research initiatives underway, the results 
of which should aid in the management and recovery of the species. We 
are actively working with many partners, including ASMFC, state 
agencies, and academic institutions to fill some of the existing data 
gaps identified by the commenters and have funded several research 
projects through regional and Species Recovery Grant awards (``section 
6'' grants).
    Comment 21: One commenter stated that silviculture activities and 
forest manufacturing facilities do not appear to have significant 
implications for sturgeon or their habitat, particularly when compared 
to other land uses like agriculture or development. The commenter 
supplied information on forestry best management practices, 
sedimentation, the use of herbicides, and urged us to reconsider our 
assertion that forest management practices pose a significant threat to 
biological diversity or to habitat for the Atlantic sturgeon.
    Response: In the discussion on impacts to the species' habitat or 
range, the proposed listing rule identified forestry as one of several 
activities that can affect water quality. Degraded water quality from 
past activities such as agriculture, urban development, and forestry 
activities may have negatively impacted the GOM, NYB, and CB DPSs. 
Forestry practices were not identified as a threat to the GOM, NYB, or 
CB DPSs. Forestry practices were mentioned as a contributing factor to 
past water quality degradation in the GOM DPS. However, the proposed 
rule also noted that many rivers and watersheds within the range of the 
GOM DPS have demonstrated improvement in water quality (USEPA, 2008). 
In general, the most recent (third edition) USEPA Coastal Condition 
Report identified that water quality was good to fair for waters north 
of Cape Cod (USEPA, 2008).
    We appreciate the information provided by the commenter on the 
degree of threat to Atlantic sturgeon from forestry activities, as well 
as forestry best management practices (BMPs) and the efforts of the 
industry to ensure successful BMP implementation, including education 
and monitoring. We believe that our characterization of the past threat 
of forestry practices to the GOM, NYB, and CB DPSs was correctly 
characterized in the proposed listing rule, and was consistent with 
information provided by the commenter.
    Comment 22: One commenter argues that not only has bycatch 
decreased, but so has fishing in general. For example, there are fewer 
fishermen each year, and very few young people go into the fishing 
industry. Therefore, fishing effort and bycatch have both decreased.
    Response: Bycatch and bycatch mortality of Atlantic sturgeon have 
been well documented, and occur in multiple fisheries in marine waters 
from Maine through Virginia (Stein et al., 2004, and ASMFC, 2007). 
Based on modeling work (Boreman, 1997; Kahnle et al., 2007, ASMFC, 
2007), the most recent estimate of bycatch mortality is expected to not 
be sustainable for any of the DPSs (ASMFC, 2007). It should also be 
noted that the levels of bycatch mortality described in ASMFC, 2007 and 
Stein et al. (2004) are assumed to be underestimates of true bycatch 
levels. Atlantic sturgeon can only sustain relatively low levels of 
anthropogenic mortality (Boreman, 1997; Kahnle et al., 2007). Estimated 
levels of bycatch mortality exceed levels that Atlantic sturgeon can 
sustain (Boreman, 1997; Kahnle et al., 2007, ASMFC, 2007), and bycatch 
mortality is in addition to mortality suffered from other anthropogenic 
activities such as vessel strikes (Brown and Murphy, 2010).
    We also note that levels of fishing effort can increase or decrease 
depending on the condition of the stocks and their status under the 
Magnuson-Stevens Fishery Conservation and Management Act (MSA). The 
most recent Status of the Stocks report indicates that in the 
Northeast, several stocks are no longer being overfished and/or 
overfishing is no longer occurring (NMFS, 2011); therefore, fishing 
effort in these fisheries may increase. In the absence of measures to 
address Atlantic sturgeon

[[Page 5894]]

bycatch mortality in fisheries in which it is known to occur, fisheries 
bycatch remains a threat to the GOM, NYB, and CB DPSs now and in the 
foreseeable future.
    Comment 23: One commenter felt that our portrayal of predation and 
disease as driving factors for the decrease in Atlantic sturgeon 
abundance is based on assumptions. The commenter then referred to a 
recent tank study that showed that sturgeon juveniles were not the 
preferred prey for most predators.
    Response: As discussed in the status review report and the proposed 
listing rule, disease and predation are not likely contributing 
significantly to the decline of the GOM, NYB or CB DPSs, and are not 
discussed as primary factors necessitating listing the GOM, NYB or CB 
DPSs of Atlantic sturgeon. The proposed rule describes potential 
threats from predation, including seal predation of shortnose sturgeon 
in the GOM DPS, and the potential for predation of Atlantic sturgeon by 
introduced flathead catfish in the Delaware River and Susquehanna 
River. However, as there is no evidence that these threats are 
impacting Atlantic sturgeon to any significant degree, we concluded 
that predation was not a significant factor contributing to the listing 
of the species.
    Although we did not consider disease to be a primary factor 
impacting Atlantic sturgeon populations significantly, the proposed 
listing rule did note that the species may be impacted by saxitoxin 
poisoning after eating infected shellfish. This evidence comes from one 
event in Sagdahoc Bay, Maine where thirteen sturgeon were found dead. 
Two of these were confirmed to be Atlantic sturgeon. Stomach content 
analysis of shortnose sturgeon carcasses recovered during the event 
revealed that the sturgeon had saxitoxin levels of several hundred 
nanograms per gram (S. Fire, NOAA, pers. comm., 2009). However, it was 
not conclusively determined that saxitoxin poisoning was the cause of 
death. Therefore, based on this information and other considerations of 
disease for Atlantic sturgeon, we concluded that disease is not a 
primary threat to the GOM, NYB or CB DPSs of Atlantic sturgeon.
    Comment 24: One commenter stated that the ongoing national 
consultation between the USEPA and the Services over cyanide national 
water quality criteria was never considered in the proposed rule. The 
commenter suggested that this may be of particular importance to the 
NYB DPS, and a more restrictive criterion may be needed for Atlantic 
sturgeon. The commenter suggested adding information on the 
consultation to the water quality discussion contained in the proposed 
rule.
    Response: In 2007, the Services entered into consultation with the 
USEPA on USEPA'a aquatic life criteria for cyanide. This followed from 
a 2001 Memorandum of Agreement (MOA) to enhance coordination under the 
ESA and the Clean Water Act (CWA). In 2004, the first data exchanges 
pursuant to the MOA began between the agencies. The Services sent a 
letter in 2006 to the USEPA detailing why we could not concur with the 
USEPA'a determination that its cyanide water quality standards ``may 
effect, but are not likely to adversely affect'' threatened and 
endangered species or critical habitat. The formal consultation is 
currently underway. Information on this consultation will be added to 
the information considered for this rule.
    Comment 25: One commenter noted that we mentioned but did not 
explicitly describe potential threats from artificial propagation 
activities, in the ``Other Natural or Manmade Factors Affecting the 
Species Continued Existence'' section of the listing factor analysis of 
the proposed rule.
    Response: Because artificial propagation was not considered a 
significant threat to the species, specific threats that may arise from 
artificial propagation were not discussed in the proposed listing rule. 
However, the status review report (ASSRT, 2007) identifies potential 
threats stemming from artificial propagation activities, including the 
unintentional introduction of cultured fish into wild populations that 
may compete with wild fish for scarce resources and potentially 
introduce pathogens or non-native genetic strains into wild 
populations. Additionally, while commercial aquaculture operations can 
provide a legal product that reduces illegal harvest of the species, 
enforcement of a ban on possession of wild fish could become difficult 
if cultured fish and wild fish are indistinguishable.
    Comment 26: One commenter agreed with the endangered listing for 
the NYB DPS, but requested that we identify open loop cooling systems 
as an important threat to Atlantic sturgeon in the Delaware River and 
other rivers on the East Coast of the United States, specifically 
citing the Indian Point nuclear power plant on the Hudson River, NY, in 
addition to several Delaware River power plants (Salem I and II nuclear 
plants, Delaware City Refinery, Conectiv, Inc. power plant in Edgemoor, 
DE, and a power plant in Eddystone, PA). The commenter stated that we 
should continue the ban on commercial fishing for Atlantic sturgeon, 
enforce the CWA, which would include a ban on open loop cooling 
systems, and require industries to use closed loop cooling systems to 
protect Atlantic sturgeon.
    Response: We appreciate the information provided by the commenter 
and acknowledge that open loop cooling systems were not specifically 
identified in the proposed listing rule or the status review as a major 
threat to the GOM, NYB or CB DPSs of Atlantic sturgeon. The potential 
for mortality due to the discharge of heated effluents was discussed in 
both documents. However, as stated in the proposed listing rule there 
are no known mortalities as a result of effluent discharge of heated 
water.
    The CWA, also known as the Federal Water Pollution Control Act, 
mandates Federal protection of water quality. The USEPA is the Federal 
agency responsible for administration of the CWA, and we do not have 
the authority to mandate closed loop cooling systems through that law. 
However, we will consult under section 7 of the ESA as appropriate to 
ensure that projects do not jeopardize the continued existence of any 
Atlantic sturgeon DPS.
    Comment 27: One commenter stated that 100 percent of historical 
habitat is available in the Connecticut River, because Atlantic 
sturgeon were mostly limited to below the fall line near Enfield, CT, 
where significant rapids may have inhibited passage of Atlantic 
sturgeon, especially during periods of high flows. The commenter also 
indicated that of the three reported incidents of Atlantic sturgeon 
upstream of Enfield mentioned in the ASSRT status review report (2007), 
only one was likely to be an Atlantic sturgeon. The other two 
historical observations might have been shortnose sturgeon. The 
commenter felt that no critical habitat for Atlantic sturgeon is 
present upstream of Enfield, CT.
    Response: This comment refers to the Judd (1905) reference cited in 
the ASSRT status review report (2007). We agree that Judd (1905) refers 
only to the term ``sturgeon'', and it is possible that the fish were 
shortnose sturgeon. However, as described in the ASSRT status review 
report, a fish captured in the Holyoke fish lift was positively 
identified as an Atlantic sturgeon. Therefore, the best available 
information indicates that Atlantic sturgeon are capable of accessing 
areas of the Connecticut River up to Holyoke Dam. Critical habitat will 
be considered in a separate rulemaking, and we welcome

[[Page 5895]]

any additional information on the current or historical use of habitat 
in the Connecticut River.
    Comment 28: One commenter questioned our assertions that dredging 
negatively impacts Atlantic sturgeon. The commenter provided a power 
point presentation showing the results of a study involving a hydraulic 
cutterhead dredge and five Atlantic sturgeon implanted with acoustic 
transmitters. Movements of the tagged Atlantic sturgeon in the James 
River were not impeded during dredging operations, and no attraction or 
avoidance behavior in relation to the active dredging operation was 
detected during the study. The commenter asserted that there is no 
scientific evidence supporting our claim that dredging impacts spawning 
habitat, and pointed out that, based on the same study, turbidity 
plumes from dredging are of a sufficiently limited scope (e.g., ambient 
turbidity was observed within about 200m from dredging activity in 
monitoring data submitted by the commenter) such that they do not 
impact Atlantic sturgeon. Another commenter suggested that a threatened 
listing may allow more monitoring of dredging projects.
    Response: As the commenter and the proposed listing rule cited, 
USACE data on sturgeon taken during hopper dredging indicate a minimum 
rate of 0.6 Atlantic sturgeon takes per year coast-wide. We also note 
that this estimate is likely to represent a minimum estimate, because 
documentation of any Atlantic sturgeon is incidental to observer 
coverage of dredging activities for other, already listed species 
(e.g., shortnose sturgeon and sea turtles). Given that Atlantic 
sturgeon do not have the same temporal and spatial distribution as 
these ESA-listed species, it is likely that Atlantic sturgeon takes 
occur during unobserved dredging operations.
    Impacts of dredging on habitat and water quality have been 
documented in the scientific literature. According to the status review 
report, environmental impacts of dredging include the following: Direct 
removal/burial of benthic prey organisms; turbidity/siltation effects; 
contaminant resuspension; noise/disturbance; alterations to 
hydrodynamic regime and physical habitat and actual loss of riparian 
habitat (Chytalo, 1996; Winger et al., 2000). According to Smith and 
Clugston (1997), dredging and filling impact important features of 
Atlantic sturgeon habitat as they disturb benthic fauna, eliminate deep 
holes, and alter rock substrates. Nellis et al. (2007) documented 
similar impacts as dredge spoil was documented to drift 12 km 
downstream over a 10 year period in the Saint Lawrence River, and those 
spoils have significantly lower amounts of macrobenthic biomass 
compared to control sites. Using an acoustic trawl survey, researchers 
found that Atlantic and lake sturgeon were substrate dependent and 
avoided spoil dumping grounds (McQuinn and Nellis, 2007). Similarly, 
Hatin et al. (2007) tested whether dredging operations affected 
Atlantic sturgeon behavior by comparing catch-per-unit-effort before 
and after dredging events in 1999 and 2000. The authors documented a 
three to seven-fold reduction in Atlantic sturgeon presence after 
dredging operations began, indicating that sturgeon avoid these areas 
during operations.
    The level of monitoring for dredging projects is not conditioned on 
whether the species being monitored is listed as threatened or 
endangered. In many cases, monitoring may occur for more than one 
protected species (e.g., ESA-listed, MMPA-listed, state protected 
species) at the same time.
    Comment 29: Some commenters felt that we currently have sufficient 
regulatory authority to restrict the gill net and otter trawl fisheries 
in the range of Atlantic sturgeon enough to eliminate bycatch, and 
thus, listing under the ESA is not necessary. One commenter stated that 
an endangered listing for the NYB DPS would provide no greater 
protection to sturgeon than a threatened listing, as NMFS could still 
work to incorporate bycatch reduction measures into fisheries where 
sturgeon take is known to occur.
    Response: In accordance with the ESA, a species must be listed as 
endangered if it is in danger of extinction throughout all or a 
significant portion of its range because of one or more of the factors 
enumerated in section 4(a)(1) of the ESA. A listing determination made 
under the ESA does not include consideration of whether additional 
protections for the species will result from the listing or whether the 
species may be afforded better protection under some other regulatory 
authority or mechanism. In making a listing determination, we are 
required to consider efforts being made to protect the species. The 
Services' joint Policy for Evaluation of Conservation Efforts When 
Making Listing Decisions'' (``PECE''; 68 FR 15100; March 28, 2003) 
establishes two basic criteria for evaluating protective efforts: (1) 
The certainty that the conservation efforts will be implemented and, 
(2) the certainty that the efforts will be effective. Satisfaction of 
the criteria for implementation and effectiveness establishes a given 
protective effort as a candidate for consideration but does not mean 
that effort will ultimately change the risk assessment for the species.
    The available data indicate that Atlantic sturgeon bycatch occurs 
in both state and federally-managed fisheries. We have responsibility 
for regulating federally-managed fisheries under the MSA, and we work 
with the regional fishery management councils. Measures to reduce 
bycatch of Atlantic sturgeon in federally-managed fisheries could be 
considered for incorporation into relevant fishery management plans; 
however, none currently do include such measures. There are a variety 
of other Federal, state, and local laws and programs (e.g., regulations 
governing construction activities and gear configurations that reduce 
bycatch) that benefit Atlantic sturgeon, but we believe that threats 
from habitat modification and bycatch (as well as other threats) are 
not sufficiently managed through current regulatory mechanisms in 
place. We have also evaluated efforts according to the criteria in PECE 
and have determined that the current protective efforts do not negate 
the need to list the GOM, NYB, or CB DPSs of Atlantic sturgeon. 
Therefore, the listing determinations made through this final rule are 
warranted.
    We acknowledge that it is possible that an endangered listing for 
the NYB DPS may not necessarily provide greater protection to NYB DPS 
sturgeon than a threatened listing. All of the prohibitions listed 
under section 9(a)(1) of the ESA apply automatically when a species is 
listed as endangered but not when listed as threatened. In the case of 
a species listed as threatened, section 4(d) of the ESA requires the 
implementation of measures deemed necessary and advisable for the 
conservation of species. Therefore, for any species listed as 
threatened, we can impose any or all of the section 9 prohibitions if 
such measures are necessary and advisable for the conservation of the 
species. However, determining whether a species warrants listing as 
endangered or threatened must be made in accordance with the statutory 
and regulatory requirements, and policy (see Comment 1). If a species 
warrants listing as endangered, then it must be listed as endangered 
regardless of whether we could impose the same prohibitions under 
section 4(d) for a similar species that is listed as threatened.
    Comment 30: One commenter felt that we did not adequately describe 
the impacts of impaired water quality on Atlantic sturgeon and did not 
detail how activities that can impair water

[[Page 5896]]

quality contribute to the problem in areas containing important habitat 
for the species. Another commenter argued that the impacts of water 
quality are only theoretical due to the lack of supporting data.
    Response: In our ``Analysis of Factors Affecting the Three 
Northeast Region DPSs of Atlantic Sturgeon'' in the proposed listing 
rule, we considered the best available data. While we agree with the 
commenter that data on specific impacts to Atlantic sturgeon are 
lacking, some evidence is available to indicate that impaired water 
quality is a threat to Atlantic sturgeon and their habitat. Where data 
were available, the proposed listing rule provided more specific 
information on some of the likely impacts to Atlantic sturgeon in 
certain areas (e.g., effect of coal tar leachate in the Connecticut 
River and legacy pollution from PCB contamination in the Hudson River 
on sturgeon reproduction). The best available data also indicate that 
Atlantic and shortnose sturgeon are both sensitive to contaminants 
(Dwyer et al., 2000), and that coal tar leachate from the Connecticut 
River may be impairing reproduction in shortnose sturgeon, which may 
have sensitivities similar to those of Atlantic sturgeon. Bioenergetics 
studies combined with modeling of environmental conditions in the 
Chesapeake Bay revealed that a combination of low dissolved oxygen, 
water temperature, and salinity restricts available Atlantic sturgeon 
habitat to 0-35 percent of the Bay's modeled surface area during the 
summer (Niklitschek and Secor, 2005). This and other information 
provided in the proposed rule supported the conclusion that water 
quality is one of the significant threats affecting the GOM, NYB, and 
CB DPS of Atlantic sturgeon.
    Activities identified in the proposed listing rule that have 
contributed to water quality issues included industrial activities, 
agricultural activities, forestry, land development, and urbanization. 
These activities have the potential to reduce reproductive success 
(e.g., as a result of damaging spawning habitat, reducing hatching 
success, damaging nursery habitat), reduce foraging success (e.g. 
contamination of sediments and/or prey species where foraging occurs, 
changes to the distribution and or abundance of prey species resulting 
from habitat alterations as a result of eutrophication, siltation, 
water availability) or cause other negative effects to Atlantic 
sturgeon. We will consider specific information and how a specific 
activity may or may not contribute to impaired water quality through 
section 7 consultation with Federal agencies that are proposing to 
authorize, fund, or carry-out these activities.
    Comment 31: One commenter felt that recreational fishing and 
boating in tidal and brackish waters of the CB DPS do not pose a risk 
to sturgeon and should not be subject to the prohibitions of the ESA if 
the CB DPS is listed.
    Response: Once a species is listed as endangered, the ESA section 9 
take prohibitions of the ESA automatically apply and any `take' of the 
species is illegal unless that take is authorized under an incidental 
take statement following ESA section 7 consultation or under an ESA 
section 10 permit authorizing directed take (e.g., for scientific 
research or enhancement of the species) or incidental take during an 
otherwise lawful activity. If recreational fishing and boating do not 
take Atlantic sturgeon then it is not necessary to pursue one of these 
ESA take authorizations.
    Comment 32: One commenter felt that our conclusion in the proposed 
listing rule that water quality is improving in the Delaware River was 
based in part on the designation of a portion of the Delaware River 
(Roebling-Trenton area) as a Superfund site by the USEPA. The commenter 
requested that we acknowledge that absent implementation of remediation 
efforts, the designation as a Superfund site simply indicates that the 
river is contaminated.
    Response: Our conclusion that water quality has improved in the 
Delaware River was not based on designating the Roebling-Trenton area 
as a Superfund site. Our intent in including information on the 
Superfund site in the proposed listing rule was to illustrate that 
steps are being taken or considered that could further improve water 
quality in the Delaware River. We agree with the commenter that 
designating the Superfund site (with no remediation efforts to address 
the contamination) merely indicates that the river is contaminated. Our 
conclusion that water quality has improved is based on information in 
the USEPA Coastal Condition Report III (USEPA, 2008), suggesting that 
other fish species are using the Delaware River mainstem as spawning 
and rearing habitat (e.g., striped bass, American shad, and river 
herring), apparent improvements in dissolved oxygen levels (e.g., 
dissolved oxygen levels have not dropped below minimum state standards 
since 1990; R. Green, Delaware DNREC, pers. comm. 1998), and 
improvements to the population status of shortnose sturgeon in the 
Delaware River. Steps are being taken to ensure that the observed water 
quality improvements will continue as illustrated by designation of the 
Superfund site in the Roebling-Trenton area, and consideration of ways 
to cap or reduce the contamination from the Roebling Steel plant.
    Comment 33: Some commenters felt that the degree of uncertainty 
over the impacts of climate change on Atlantic sturgeon is too great to 
contribute to the listing determination. One commenter noted that the 
uncertainty surrounding the impacts of climate change on Atlantic 
sturgeon does not necessarily mean that extinction risk will increase, 
but simply indicates that there is greater uncertainty in estimating 
that risk. Another commenter noted that sturgeon have overcome more 
drastic climate changes in their evolutionary past, and would, 
therefore, still be able to increase in abundance during this current 
climate change.
    Response: The status review report (ASSRT, 2007) did not address 
climate change in its assessment of threats to the species, but we 
believe climate change should be considered as part of the evaluation 
of threats to the species and assessment of extinction risk. Section 
4(a)(1)(A) of the ESA stipulates that a species may be threatened or 
endangered as a result of the present or threatened destruction, 
modification, or curtailment of the species' habitat or range. Climate 
change is one of several threats (e.g, dams, dredging, turbines, and 
water quality) that we considered under this broader habitat factor. 
Anticipated impacts to the environment from climate change include 
changes in frequency and intensity of floods and droughts and higher 
water temperatures (IPCC, 2007), which could exacerbate many forms of 
water pollution, such as sediments, nutrients, dissolved organic 
carbon, pathogens, pesticides, salt, and thermal pollution. These 
impacts could in turn affect Atlantic sturgeon habitat. Based on 
bioenergetics studies, Niklitschek and Secor (2005) found that a 1 
[deg]C increase in water temperature in the Chesapeake Bay would reduce 
available Atlantic sturgeon habitat by 65 percent. Therefore, we 
believe that climate change represents a real threat to the species.
    Species adaptations occur over evolutionary timescales. The rate of 
climate change reported and/or anticipated to occur is faster than what 
we can reasonably expect Atlantic sturgeon to be able to adapt to, 
particularly at reduced population levels.
    Comment 34: One commenter felt that using ship strikes as a 
prominent reason for listing the NYB DPS as endangered was improper 
given that it only affects

[[Page 5897]]

the Delaware River riverine population of Atlantic sturgeon of the NYB 
DPS.
    Response: While vessel strikes were considered among the threats 
known to be impacting the NYB DPS, the proposed listing rule listed 
bycatch as the primary threat impacting Atlantic sturgeon in the NYB 
DPS. The proposed listing rule cited vessel strikes as a threat to 
Atlantic sturgeon in their riverine range in the NYB DPS. When 
evaluating threats to a DPS, we considered impacts to any riverine 
population within that DPS and did not limit analysis of threats to 
only those that affect the entire DPS. Additionally, it should be noted 
that Hudson River Atlantic sturgeon and Atlantic sturgeon from other 
DPSs are likely to be impacted by vessel strikes in the Delaware River, 
due to the coastal migrations and the use of non-natal estuaries.
    Comment 35: While poor water quality was a concern in the Delaware 
River, there have been noted improvements and it is no longer thought 
to be hampering sturgeon recovery, as evidenced by increases in 
population abundance of other species in the river (e.g., striped bass, 
American shad, shortnose sturgeon).
    Response: As mentioned in the proposed listing rule, we agree that 
water quality has improved in the Delaware River. This conclusion was 
based on the apparent improvement in the status of shortnose sturgeon 
in the Delaware River, as well as improved dissolved oxygen levels (R. 
Green, Delaware DNREC, pers. comm., 1998). Nevertheless, waters from 
Connecticut to Delaware received fair and poor ratings in the USEPA's 
Third Coastal Condition Report (USEPA, 2008). In particular, the report 
noted that most of the Northeast Coast sites with poor water quality 
ratings were concentrated in a few estuarine systems, including New 
York/New Jersey Harbor, some tributaries of the Delaware Bay, and the 
Delaware River (USEPA, 2008).
    Comment 36: Some commenters felt that our analysis of the impact of 
bycatch on Atlantic sturgeon was inaccurate. One commenter argued that 
information in the status review report was at odds with conclusions 
drawn in the proposed listing rule. Another commenter felt that the 
updated bycatch information cited in the ASMFC (2007) bycatch report 
provided only similar, or perhaps less damaging, evidence for the 
impact of bycatch mortality over the report analyzed by the ASSRT 
(2007) report (Stein et al. 2004), since reported bycatch was similar 
between the reports and mortality rates were lower in the ASMFC (2007) 
report. Thus, the commenter felt that we did not provide sufficient 
bycatch evidence to warrant an endangered listing.
    Response: We agree with the commenter that the ASMFC (2007) bycatch 
report provided similar estimates of Atlantic sturgeon bycatch to the 
bycatch report used by the ASSRT (2007) status review (i.e., Stein et 
al., 2004), and documented lower mortality than the earlier report 
(mean mortality of 13.8 percent versus 22 percent mortality estimated 
in Stein et al., 2004). However, Atlantic sturgeon can only sustain 
relatively low levels of anthropogenic mortality (Boreman, 1997; Kahnle 
et al., 2007), and bycatch mortality is in addition to mortality 
suffered from other anthropogenic activities such as vessel strikes 
(Brown and Murphy, 2010).
    Based on modeling work (Boreman, 1997; Kahnle et al., 2007, ASMFC, 
2007), the most recent estimate of bycatch mortality is expected to not 
be sustainable for any of the DPSs (ASMFC, 2007). Additionally, the 
report noted that the estimates of bycatch used in the analysis are 
likely to be underestimates of true bycatch and mortality levels, since 
they rely only on reported bycatch from the NMFS Observer program, 
which does not account for delayed mortality.
    Comment 37: One commenter noticed that the proposed rule mentioned 
only the Delaware River Dredging Project and not other dredging 
projects along the East Coast. The commenter also mentioned that small 
recreational vessels should not be singled out as the only cause of 
ship strikes.
    Response: The proposed rule discussed dredging as a threat to each 
of the Atlantic sturgeon DPSs, since dredging occurs in almost all 
major rivers where Atlantic sturgeon are found. Specifically, we are 
aware of dredging projects in the Northeast Region that could take or 
have taken Atlantic sturgeon in the Kennebec River, the Penobscot 
River, the Hudson River, the Delaware River, and the James River, as 
discussed in the proposed listing rule. The Delaware River Main Channel 
Deepening Project was discussed in detail in the proposed rule, because 
information on this project became available after the status review 
report, and the location and scope of the project in the Delaware 
River, coupled with the lack of information on the precise location of 
spawning and other important habitat in the Delaware River, indicate 
that the project could be very harmful to the Delaware River riverine 
population of Atlantic sturgeon.
    The proposed listing rule stated that external examination of 
Atlantic sturgeon apparently struck by vessels indicates that most 
vessel strikes are likely from larger, ocean going vessels. However, 
because strikes by large vessels may cause more apparent injuries, 
vessel strikes by smaller vessels, including recreational vessels, may 
be less frequently identified. There have been small vessel strikes of 
Atlantic sturgeon in the Delaware River and the Kennebec River. Thus, 
we felt it important to provide information on both types of vessel 
strikes in the listing determination.
    Comment 38: Some commenters felt that threats other than bycatch 
were responsible for the continued low abundance of Atlantic sturgeon 
populations. Commenters cited loss of habitat, dams, and vessel strikes 
as larger impediments to recovery of Atlantic sturgeon than bycatch.
    Response: We agree with the commenter that there are various 
threats to Atlantic sturgeon throughout the range of the species. 
However, we have determined that one of the primary threats to the 
species is bycatch in commercial fisheries, as evidenced by the ASMFC 
bycatch report (ASMFC, 2007). During recovery planning, we will 
consider all threats to the species and will develop strategies to 
minimize those threats, in order to recover the species.
    Comment 39: One commenter stated that he has observed more ship 
strikes than bycatch mortalities in the James River. Based on his 
observations, he suggests that boats should be restricted from running 
up and down the river instead of having gill net restrictions.
    Response: Conservation measures provided for species listed as 
endangered or threatened under the ESA include recovery actions (16 
U.S.C. 1533(f)), critical habitat designations, Federal agency 
consultation requirements (16 U.S.C. 1536), and prohibitions on taking 
(16 U.S.C. 1538). Recognition of the species' plight through listing 
promotes conservation actions by Federal and state agencies, private 
groups, and individuals. Specific measures to address the threats to 
the CB DPS will be addressed using all of the conservation measures of 
the ESA.

Conservation Efforts for the GOM, NYB and CB DPSs

    Comment 40: Several commenters pointed to the 1998 ASMFC moratorium 
on Atlantic sturgeon retention, as well as other state and Federal 
moratoria on Atlantic sturgeon harvest, and argued that NMFS did not 
adequately describe the impact that these conservation efforts are 
having on the species or

[[Page 5898]]

allow enough time for these existing conservation measures to prove 
their effectiveness. One commenter cited the 1998 ASMFC moratorium on 
Atlantic sturgeon retention, the closure of the EEZ to Atlantic 
sturgeon retention, periodic closure of gillnet fisheries aimed at 
protecting bottlenose dolphins, harbor porpoise, and large whales which 
reduce fishing effort, as examples of regulatory mechanisms that 
protect Atlantic sturgeon. The commenter wondered how these 
protections, which were significant enough to preclude NMFS from 
listing Atlantic sturgeon in 1998, are not sufficient for the species 
at this time.
    Response: In the 1998 negative finding on the petition to list 
Atlantic sturgeon, the ASMFC moratorium was considered to be the 
critical component in the Atlantic sturgeon FMP that indicated Atlantic 
sturgeon were not likely to become endangered in the foreseeable future 
throughout all or a significant portion of the species' range. We 
followed this with the 1999 closure of the EEZ to fishing for Atlantic 
sturgeon. However, since implementation of the moratorium, additional 
bycatch information (Stein et al., 2004; ASMFC, 2007) became available 
indicating that Atlantic sturgeon are vulnerable to bycatch in 
commercial fisheries, and that the current rate of bycatch is 
unsustainable in the long term (ASMFC, 2007).
    We understand the concerns that listing is premature because the 
moratorium has not been allowed to run its course and realize all 
potential resultant benefits. However, having received a petition and 
subsequently finding that there was substantial scientific and 
commercial information indicating that listing Atlantic sturgeon may be 
warranted (75 FR 838; January 6, 2010), we are required to use the best 
scientific and commercial data available to determine within one year 
of receipt of a petition whether Atlantic sturgeon should be listed 
under the ESA because of any of the five factors (see Comment 3). The 
best available information indicates that all riverine populations of 
Atlantic sturgeon in the Northeast Region remain at reduced levels 
compared to those reported historically, and are being exposed to 
significant threats that are ongoing and not being adequately 
addressed.
    The ASSRT (2007) status review report and the proposed listing rule 
both discussed conservation efforts and analyzed them according to the 
PECE and pursuant to section 4(b)(1)(A) of the ESA. The ASMFC Atlantic 
sturgeon FMP was considered in these analyses, including the 1998 
moratorium. It was concluded that the 1998 Amendment to the ASMFC 
Atlantic Sturgeon FMP strengthens conservation efforts by formalizing 
the closure of the directed fishery and eliminates any incentive to 
retain Atlantic sturgeon. However, bycatch is known to occur in several 
fisheries (ASMFC, 2007), and it is widely accepted that bycatch is 
underreported (PECE Implementation criterion 5). Despite actions taken 
by the states and NMFS to prohibit directed fishing and retention of 
Atlantic sturgeon, subsequent to the 1998 Amendment, we learned that 
Atlantic sturgeon bycatch mortality is a major threat affecting the 
recovery of Atlantic sturgeon. Therefore, there is considerable 
uncertainty that the Atlantic Sturgeon FMP will be effective in meeting 
its conservation goals (PECE Effectiveness criterion 1). In addition, 
there are limited resources for assessing current abundance of spawning 
females for each of the DPSs. Therefore, PECE effectiveness criterion 5 
is not being met. For these reasons, there is no certainty of 
implementation and effectiveness of the intended ASMFC FMP conservation 
effort for the GOM, NYB, or CB DPSs of Atlantic sturgeon.
    Restrictions on gill net fisheries that occur in Atlantic sturgeon 
habitat are likely to provide a conservation benefit to Atlantic 
sturgeon. However, the estimates of bycatch and bycatch mortality 
reported in the ASMFC bycatch report (2007) were derived from observer 
data collected from 2001-2006, meaning that any closures or 
restrictions on fishing practices would have been implemented and 
accounted for during the data collection process. It should also be 
noted that the observer data most likely provided an underestimate of 
true bycatch levels, since the observer program primarily targets 
Federal fisheries. Additionally, if restrictions put in place for other 
species are removed or reduced (due to changes in status of the species 
of interest or gear modifications that reduce interactions with the 
species of interest), Atlantic sturgeon bycatch and bycatch mortality 
may increase.
    Comment 41: One commenter agreed that the protective measures 
(e.g., the moratorium) implemented by the ASMFC FMP for Atlantic 
sturgeon have not been sufficient in the Delaware River, citing 
juvenile catch rates that are lower than prior to the implementation of 
the moratorium.
    Response: The commenter's point is noted and appreciated.
    Comment 42: Multiple commenters recommended that we continue to 
work with ASMFC and individual states to ensure Atlantic sturgeon are 
being adequately protected, and that ASMFC should retain management 
authority of the species. It was further recommended that if the 
species is to be federally managed (e.g., listed under the ESA), then 
management should be focused on riverine units rather than DPSs. One 
commenter said that DPS configurations are subjective and do not 
consider the management needs of specific Atlantic sturgeon riverine 
populations.
    Response: The ASMFC has been very active in the management of 
Atlantic sturgeon. In 1990, a Fishery Management Plan for Atlantic 
sturgeon was published, and in 1998, Amendment 1 to the FMP imposed a 
20-40 year moratorium on all Atlantic sturgeon fisheries until the 
Atlantic Coast spawning stocks could be restored to a level where 20 
subsequent year classes of adult females were protected (ASMFC, 1998). 
These represented important management measures for the species. In 
2007, the ASMFC published a bycatch report (ASMFC, 2007), which 
indicated that bycatch is having a negative impact on Atlantic sturgeon 
population growth and recovery. In combination with the ASSRT (2007) 
report, we determined that the best scientific and commercial data 
available indicated that each DPS of Atlantic sturgeon is in danger of 
extinction or likely to become endangered within the foreseeable 
future.
    We agree that the most appropriate management unit to achieve 
recovery of Atlantic sturgeon is the riverine population unit. Although 
there is considerable mixing of Atlantic sturgeon stocks in the marine 
environment, Atlantic sturgeon exhibit a high degree of spawning river 
fidelity, and managing the species at the spawning river level is the 
most logical option based on the biology of the species. We intend to 
publish a recovery plan in accordance with ESA section 4(f)(1) unless 
it is determined that such a plan will not promote the conservation of 
the Atlantic sturgeon. If a recovery plan is developed, recovery 
criteria will be developed for each DPS, and recovery activities aimed 
at achieving those criteria will be based on the individual riverine 
populations of Atlantic sturgeon. We intend to work closely with ASMFC 
during the recovery planning process.
    Comment 43: One commenter noted that ongoing studies by state 
researchers in the Delaware River have provided information that has 
allowed the state of Delaware to more effectively regulate and require 
delays and modifications to projects in order to protect sturgeon. This 
commenter was concerned that vessel traffic may increase as a result of

[[Page 5899]]

the Delaware deepening project, and that Atlantic sturgeon mortalities 
due to vessel strikes may increase with the increase in vessel traffic.
    Response: We appreciate the update on the usefulness of current 
research projects being conducted by state agencies in enhancing 
management actions to protect Atlantic sturgeon. Research projects that 
provide information on the spatial and temporal habitat use patterns of 
Atlantic sturgeon will also assist us when providing project 
modifications pursuant to ESA section 7 consultations to ensure that 
projects that are carried-out, authorized or funded by a Federal agency 
do not jeopardize the existence of the species.
    We appreciate and share the concern over vessel strikes in the 
Delaware River. An endangered listing of Atlantic sturgeon in the NYB 
DPS will make take (e.g., capture, killing) of the species illegal 
pursuant to section 9 of the ESA.
    Comment 44: Some commenters suggested that critical habitat and 
other Federal protection for species like shortnose sturgeon and sea 
turtles may protect Atlantic sturgeon as well. Another commenter felt 
that designating critical habitat for shortnose sturgeon would be 
appropriate and would provide ancillary protection for Atlantic 
sturgeon.
    Response: It is true that take prohibitions put in place because of 
the listing of other species, such as shortnose sturgeon, may in part 
protect Atlantic sturgeon in areas where their ranges overlap. We have 
undertaken a number of activities to protect shortnose sturgeon and 
their habitat, including publishing a recovery plan for the species (63 
FR 69613; December 17, 1998), funding research on the species, and 
consulting with Federal agencies under section 7 of the ESA to ensure 
shortnose sturgeon are not jeopardized by activities that may harm the 
fish or their habitat. Some of these efforts also benefit Atlantic 
sturgeon, as noted in the proposed listing. Because we were petitioned 
to list Atlantic sturgeon, we were required to evaluate the status of 
the species and the threats it is facing and make a finding on whether 
the petitioned action was warranted within 12 months, which resulted in 
our proposed listing determination of endangered for the NYB and CB 
DPSs, and threatened for the GOM DPS of Atlantic sturgeon. 
Additionally, if a species is determined to be threatened or endangered 
based on any of the five ESA section 4(a)(1) factors, we are required 
to list it.
    Comment 45: Some commenters felt that we have not done enough to 
support private and state efforts to protect important habitat for 
Atlantic sturgeon, and that rather than list the species under the ESA, 
collaborative efforts should be pursued to protect the species from the 
threats identified in the proposed listing rule. One commenter also 
suggested expanding the 1965 Anadromous Fish Conservation Act (ACFA) 
for species like Atlantic sturgeon.
    Response: As described in the proposed listing and in the previous 
response, the best available scientific and commercial information on 
the status of, and threats to, Atlantic sturgeon is sufficient to 
warrant listing of the NYB and CB DPSs of Atlantic sturgeon as 
endangered under the ESA, and the GOM DPS of Atlantic sturgeon as 
threatened. Therefore, we cannot enter into multi-state, multi-agency 
partnerships or increase fishery regulations to address Atlantic 
sturgeon issues in lieu of listing.
    We are working with multiple state agencies to expand our knowledge 
of the species and enhance conservation efforts. In 1999, pursuant to 
section 804(b) of the Atlantic Coastal Fisheries Cooperative Management 
Act (16 U.S.C. 5101 et seq.), we supported the ASMFC's moratorium on 
Atlantic sturgeon by closing the EEZ to Atlantic sturgeon retention. In 
2003, we sponsored a workshop with the USFWS and ASMFC to discuss the 
status of sturgeon along the Atlantic Coast and determine what 
obstacles, if any, were impeding their recovery. State wildlife agency 
employees and scientific researchers with sturgeon expertise also 
contributed to the status review. Also, as described in the example 
given in the response above, we have entered into multi-state, multi-
agency partnerships to conduct research. Section 6 of the ESA provides 
a mechanism for cooperation with the States in the conservation of 
threatened, endangered, and candidate species. Under section 6, we are 
authorized to enter into agreements with any State that establishes and 
maintains an ``adequate and active'' program for the conservation of 
endangered and threatened species. Once a State enters into such an 
agreement, we are authorized to assist in, and provide Federal funding 
for, implementation of the State's conservation program. Federal 
funding, provided in the form of grants, can be used to support 
management, outreach, research, and monitoring projects that have 
direct conservation benefits for listed species, recently de-listed 
species, and candidate species that reside within that State. We have 
provided substantial funding to States and their partners to support 
Atlantic sturgeon research, monitoring, and outreach projects through 
section 6 grants.
    Multiple Atlantic sturgeon related projects have received funding 
through the AFCA program, making alteration of the existing AFCA 
unnecessary. Projects funded under the AFCA are conducted for the 
conservation, development, and enhancement of anadromous fishery 
resources and must be approved by the fishery agency of the state in 
which the work is carried out. Many projects funded under AFCA are 
critical elements of larger programs to manage, restore, or enhance 
anadromous resources.
    Comment 46: One commenter suggested that monitoring should be 
increased for Atlantic sturgeon, and that the following research areas 
be listed as priority concerns in the recovery plan: long term 
population monitoring, and identification of spawning, overwintering, 
and nursery habitat.
    Response: We agree that monitoring of the species is crucial to 
recovery efforts, and that the research areas identified are important 
for monitoring the status of the species and protecting the species 
from further decline. We also consider that additional research to 
further evaluate/understand genetic composition of sturgeon 
aggregations is also a very high priority. We have posted a list of 
research priorities for Atlantic sturgeon on the NMFS Northeast 
Regional Office's Web site (http://www.nero.noaa.gov/prot_res/research/).
    Comment 47: One commenter felt that we should have identified 
Essential Fish Habitat (EFH) for Atlantic sturgeon in order to support 
the proposed listing rule. The commenter also noted that EFH and 
Habitat Areas of Particular Concern (HAPCs) have not been designated 
for shortnose sturgeon either.
    Response: We work with the regional fishery management councils to 
identify EFH and HAPCs for fish stocks that are federally-managed under 
the MSA. Atlantic and shortnose sturgeon are not federally-managed 
under the MSA. Therefore, EFH or HAPCs have not been designated for 
either species.

Additional Comments

    Comment 48: Multiple commenters felt that not enough time was 
provided for public comment, given that the public hearings were held 
from November 8-11, 2010, and the initial deadline for public comments 
was January 4, 2011. Some commenters felt that the comment period 
should have been extended by 90 days, rather than 30 days. 
Additionally, one commenter felt that the NYB DPS hearing held in

[[Page 5900]]

Stony Brook, NY, on November 8, 2010, was poorly planned because it 
conflicted with the ASMFC annual meeting. Another commenter felt that 
the hearing in Virginia was poorly advertised and many people were not 
aware of the event.
    Response: The proposed listing rule published on October 6, 2010 
(75 FR 61872), and provided an initial public comment period of 90 
days, which is standard for most ESA rulemaking actions. This comment 
period was later extended by an additional 30 days to allow for 
additional comment (75 FR 82370; December 30, 2010). The opportunity to 
provide written public comment was available through February 3, 2011. 
During the public comment period, we also held four public hearings 
throughout the Northeast Region. We regret the unintentional conflict 
of the NYB DPS public hearing with the annual meeting of the ASMFC, and 
consider public participation as a critical component to the listing 
process. Those individuals unable to attend this hearing were still 
able to submit any written comments during the comment period.
    The notice and public comment period on the proposed listing for 
the GOM, NYB, and CB DPSs of Atlantic sturgeon exceeded the 
requirements established in section 4(b)(5) of the ESA. Section 
4(b)(5)(E) of the ESA only requires that one public hearing be held on 
a proposed listing if it is requested by the public within 45 days 
after the date of the publication of the proposed listing in the 
Federal Register. Though the NMFS Northeast Region did not receive any 
requests for a public hearing, we elected to hold four public hearings 
on the Atlantic sturgeon GOM, NYB and CB DPSs, at least one in each of 
the areas occupied by these DPSs. Hearings were held in Portland, 
Maine, on November 3, 2010; Newport News, Virginia, on November 4, 
2010; Stony Brook, New York, on November 8, 2010; and Wilmington, 
Delaware, on November 9, 2010, to accept public comments.
    A media advisory released on October 5, 2010, prior to publication 
of the proposed listing rule, stated that the agency intended to hold 
public hearings. On October 19, 2010, we released a media advisory on 
the four scheduled hearings, including the date, time, and location of 
each public hearing. A notice announcing these hearings was also 
published in the Federal Register (75 FR 64249; October 19, 2010). 
These announcements with links to the Federal Register notices on the 
proposed rule comment period and public hearings were placed on the 
Atlantic sturgeon and ``Hot News'' Web pages of the NMFS Northeast 
Regional Office's Web site. Therefore, we believe that appropriate 
notification and opportunity to comment was provided for the public.
    Comment 49: Some commenters were concerned that a lack of detailed 
information on abundance of Atlantic sturgeon riverine populations and 
specific information on the impacts of anthropogenic activities would 
not allow us to pursue a successful recovery strategy. Commenters felt 
that additional research was needed to obtain population estimates, 
determine relationships between anthropogenic activities and the 
biological response they elicit, and gather information to sufficiently 
define the important terms ``recovery'' and ``jeopardize'' in relation 
to implementing the ESA for listed Atlantic sturgeon.
    Response: We agree that population abundance information for 
Atlantic sturgeon is lacking. However, section 4(b)(1)(A) of the ESA 
stipulates that listing decisions be made using the best available 
scientific and commercial information after conducting a review of the 
status of the species and considering the conservation efforts of 
states and foreign nations. The status review report (ASSRT, 2007), and 
information on bycatch and water quality that became available after 
the status review report was completed (ASMFC, 2007, and USEPA, 2008), 
constitute the best available information. As previously described, we 
are required to complete listing determinations within a specified 
timeframe. However, we agree that more information is needed and will 
continue to support and pursue additional research and monitoring 
initiatives toward this effort (see response to Comment 46).
    Comment 50: One commenter quoted a portion of the ASMFC (2007) 
bycatch report, which claimed that fish greater than 200 cm are rarely 
observed, and that the Hudson River DPS has a total population 
abundance of approximately 870 adults. The commenter cited research 
conducted by researchers from Delaware State University, who captured 
25 fish greater than 200 cm over the course of two sampling seasons 
(2009-2010).
    Response: The ASMFC bycatch report was based on data recorded in 
the Northeast Fisheries Science Center (NEFSC) Observer Database, which 
mainly covers fisheries in New England and Middle Atlantic waters. 
Based on a review of that data for 2001-2006, the authors concluded 
that Atlantic sturgeon greater than 200 cm in length were rarely 
observed in coastal sink gillnet gear. This does not necessarily mean, 
however, that Atlantic sturgeon greater than 200 cm are rare; and we 
did not interpret this information to mean that Atlantic sturgeon 
greater than 200 cm are rare. The statement simply reflects the size 
range of Atlantic sturgeon observed in the coastal sink gillnet 
fisheries.
    Gillnet gear is known to be size selective (Moser et al., 2000). 
Therefore, the limited observations of Atlantic sturgeon greater than 
200 cm in coastal sink gillnet gear likely reflect the particular gear 
used, which was selected based on its efficiency for catching the 
targeted commercial fish species (not its efficiency for catching 
Atlantic sturgeon greater than 200 cm). The NEFSC Observer Program 
observes fisheries that use a variety of mesh sizes. However, the 
monkfish fishery typically uses the largest mesh of fisheries observed 
with a requirement to use a minimum 10-inch mesh.
    The research conducted by Delaware State University was fishery-
independent, meaning that the gillnet gear used was configured and set 
to capture Atlantic sturgeon in spawning condition or of spawning age. 
Therefore, a larger mesh size (12 to 13-inch mesh) was used for gillnet 
gear in the study than what was used in most fisheries observed by the 
NEFSC Observer Program as described in the ASMFC 2007 report on 
Atlantic sturgeon bycatch.
    Kahnle et al. (2007) reported that there were an estimated 870 
spawning adults per year for the Hudson River riverine population based 
on fishery-dependent data collected from 1985-1995. Since Atlantic 
sturgeon do not spawn every year, this was not considered to be a total 
estimate of the number of spawning adults for the Hudson River riverine 
population. Information was provided in the proposed rule that 
explained the caveats associated with the Kahnle et al. (2007) estimate 
for the Hudson River (see Comment 3).
    Comment 51: One commenter recommended textual edits to the proposed 
listing rule. This commenter felt that the term ``healthiest'' to 
describe the status of the Altamaha River, GA, and the Hudson River, 
NY, riverine populations of Atlantic sturgeon was improper, and 
suggested that we use a more appropriate term. The commenter also 
pointed out that ``Gulf of Mexico'' was used as a heading where ``Gulf 
of Maine'' was intended.
    Response: These comments are appreciated and are addressed in this 
final rule. We have removed the erroneous Gulf of Mexico heading, and

[[Page 5901]]

we have referred to the ``robustness'' of Atlantic sturgeon populations 
rather than referring to a population's ``health'' when discussing the 
status of any Atlantic sturgeon DPSs or riverine populations.
    Comment 52: Numerous comments were received opposing listing of the 
GOM, NYB, and CB DPSs because listing one or more of the DPSs would: 
(1) Result in economic hardship; (2) hinder scientific research for 
Atlantic sturgeon or other species that occur in areas and at times 
when Atlantic sturgeon are also present; (3) disrupt beach nourishment 
projects; and, (4) result in navigation restrictions.
    Response: Section 4 of the ESA makes clear that the Secretary must 
make listing decisions based on the best available scientific and 
commercial information after conducting a review of the status of the 
species and any existing conservation efforts. The listing is based on 
the status of the species and the five factors outlined in section 
4(a)(1) of the ESA. As noted in the proposed listing rule, the 
Conference Report on the 1982 amendments to the ESA clearly states that 
economic impacts cannot be considered when assessing the status of a 
species. We recognize that there are important research and restoration 
initiatives being conducted by the states that aid the conservation of 
the species and, in fact, have provided funding for many of these 
initiatives. Section 10(a)(1)(A) of the ESA gives the Secretary 
discretion to authorize research activities that enhance the survival 
of the species, while prescribing terms and conditions by which the 
permit recipient must comply.
    We do not intend for listing of the Atlantic sturgeon DPSs to 
hinder completion of on-going research or unnecessarily delay the onset 
of new research and have taken steps to avoid this to the extent 
possible. We distributed information to the sturgeon research community 
after publication of the proposed listing rule that advised researchers 
to complete a section 10(a)(1) application as soon as possible, in the 
event that one or more of the DPSs would be listed. We could not issue 
any section 10(a)(1) permits for Atlantic sturgeon, or deny a section 
10(a)(1) permit request for Atlantic sturgeon until the final listing 
determinations were made. However, the NMFS Office of Protected 
Resources, Permits Division has frontloaded the permit review process 
to the extent practicable, including conducting the steps necessary to 
comply with the National Environmental Policy Act, and with section 
7(a)(2) of the ESA. Twelve applications for research permits for 
Atlantic sturgeon have been received and are undergoing review.
    Research of other species will not be affected as a result of 
listing the Atlantic sturgeon DPSs unless that research results in the 
capture, harassment or other harm (i.e. ``take'') to any Atlantic 
sturgeon belonging to one of the DPSs. We acknowledge that listing 
Atlantic sturgeon may affect research studies of other species when the 
research is expected to result in take of Atlantic sturgeon. However, 
that is not a legal justification for not listing a species under the 
ESA. We have provided information on known distribution of Atlantic 
sturgeon and will continue to support new research to better define the 
spatial and temporal distribution of the Atlantic sturgeon DPSs. This 
information will help researchers to plan studies of other species to 
minimize the likelihood of incidental interactions with Atlantic 
sturgeon.
    Similarly, it is not our intention to hinder or otherwise limit 
other legal activities such as beach re-nourishment projects or 
commercial shipping. We will work with our stakeholders to evaluate the 
best options for minimizing impacts to Atlantic sturgeon without unduly 
hampering otherwise lawful activities. For example, beach nourishment 
projects requiring issuance of a Federal permit can be consulted on 
prior to the start of the action, providing us the opportunity to share 
the most current information on Atlantic sturgeon presence and or use 
of the action area, as well as steps that can be taken to minimize 
impacts of the action to Atlantic sturgeon.
    Comment 53: The Department of the Navy expressed concern that the 
designation of critical habitat for Atlantic sturgeon would impede the 
U.S. Navy's ability to support mission-essential activities. The Navy 
requests that we consult with them prior to designating critical 
habitat.
    Response: Critical habitat will be addressed in a separate 
rulemaking. However, for clarification, section 4(b)(2) of the ESA 
stipulates that critical habitat be designated for a species based on 
the best scientific data available, after considering the economic 
impacts, impacts to national security, and other relevant impacts that 
a listing might have. A specific area may be excluded from the critical 
habitat designation if the benefits of exclusion outweigh the benefits 
of including the specific area in the designation, as long as the 
exclusion will not result in the extinction of the species. In 
addition, the Secretary may not designate as critical habitat any lands 
or other geographical areas owned or controlled by the Department of 
Defense, or designated for its use, that are subject to an integrated 
natural resources management plan under section 101 of the Sikes Act 
(16 U.S.C. 670a), if the Secretary determines in writing that such a 
plan provides a benefit to the species for which critical habitat is 
proposed for designation (see section 318(a)(3) of the National Defense 
Authorization Act, Public Law 108-136).
    We appreciate the Navy's commitment to begin discussions over the 
designation of critical habitat, and fully expect to discuss the scope 
of the critical habitat designation with the Navy and the other 
Department of Defense branches as we conduct our critical habitat 
analyses, in order to determine where the designation overlaps with 
military lands and where military exclusions may be necessary due to 
the factors described above.

Summary of Changes From the Proposed Listing Rule

    Based on the comments received and our review of the proposed rule, 
we made the changes listed below.
    1. We slightly extended the marine range of the DPSs based on 
recent tagging and tracking data.
    2. We added information on why the listing determinations for the 
GOM, NYB, and CB DPSs deviated from the conclusions of the ASSRT, and 
why these determinations are different than the decision made by the 
agency in 1998 to not list Atlantic sturgeon under the ESA.
    3. We made minor revisions to the definitions for the GOM, NYB, and 
CB DPSs to clarify which sturgeons were included in each DPS.
    4. We added information on metapopulations and the importance of 
multiple viable riverine populations in response to Comment 1.
    5. We updated information regarding Atlantic sturgeon fisheries in 
Canada and the status of Atlantic sturgeon in Canada based on 
information from Fisheries and Oceans Canada.
    6. We revised our interpretation of the reported differences in 
catch-per-unit-effort for subadult and adult Atlantic sturgeon in the 
Kennebec River for 1977-1981 and 1998-2000, based on information from 
Maine, Department of Marine Resources.
    7. We added information on the ongoing national consultation 
between the USEPA and the Services over cyanide national water quality 
criteria.
    8. We updated information regarding the progress for removal of the 
Veazie Dam on the Penobscot River based on information received from 
the USFWS.

[[Page 5902]]

    9. We updated and revised information on the Verdant Power tidal 
turbine project occurring in the East River, NY.
    10. We made minor corrections and updates to information in the 
listing rule based on recommendations from peer reviewers, commenters, 
and our own review of the proposed listing rule.
    Our listing determination and summary of the data on which it is 
based, with the incorporated changes, are presented in the remainder of 
this document.

Identification of Distinct Population Segments

    As described above, the ESA's definition of ``species'' includes 
``any subspecies of fish or wildlife or plants, and any distinct 
population segment of any species of vertebrate fish or wildlife which 
interbreeds when mature.'' The high degree of reproductive isolation of 
Atlantic sturgeon (i.e., homing to their natal rivers for spawning; 
ASSRT, 2007; Wirgin et al., 2000; King et al., 2001; Waldman et al., 
2002), as well as the ecological uniqueness of those riverine spawning 
habitats, the genetic differentiation amongst riverine populations, and 
the differences in life history characteristics, provide evidence that 
discrete reproducing populations of Atlantic sturgeon exist, which led 
the Services to evaluate application of the DPS policy in its 2007 
status review report. To determine whether any populations qualify as 
DPSs, we evaluated populations pursuant to the joint DPS policy, and 
considered: (1) The discreteness of any Atlantic sturgeon population 
segment in relation to the remainder of the subspecies to which it 
belongs; and (2) the significance of any Atlantic sturgeon population 
segment to the remainder of the subspecies to which it belongs.

Discreteness

    The joint DPS policy states that a population of a vertebrate 
species may be considered discrete if it satisfies either one of the 
following conditions: (1) It is markedly separated from other 
populations of the same taxon as a consequence of physical, 
physiological, ecological, or behavioral factors (quantitative measures 
of genetic or morphological discontinuity may provide evidence of this 
separation) or (2) it is delimited by international governmental 
boundaries within which differences in control of exploitation, 
management of habitat, conservation status, or regulatory mechanisms 
exist that are significant in light of Section 4(a)(1)(D) of the ESA.
    Atlantic sturgeon throughout their range exhibit ecological 
separation during spawning that has resulted in multiple, genetically 
distinct, interbreeding population segments. Tagging studies and 
genetic analyses provide the evidence of this ecological separation 
(Wirgin et al., 2000; King et al., 2001; Waldman et al., 2002; ASSRT, 
2007; Grunwald et al., 2008). As previously discussed, though adult and 
subadult Atlantic sturgeon originating from different rivers mix in the 
marine environment (Stein et al., 2004a), the vast majority of Atlantic 
sturgeon return to their natal rivers to spawn, with some studies 
showing only one or two individuals per generation spawning outside 
their natal river system (Wirgin et al., 2000; King et al., 2001; 
Waldman et al., 2002). In addition, spawning in the various river 
systems occurs at different times, with spawning occurring earliest in 
southern systems and occurring as much as 5 months later in the 
northernmost river systems (Murawski and Pacheco, 1977; Smith, 1985; 
Rogers and Weber, 1995; Weber and Jennings, 1996; Bain, 1997; Smith and 
Clugston, 1997; Moser et al., 1998; Caron et al., 2002). Therefore, the 
ecological separation of the interbreeding units of Atlantic sturgeon 
results primarily from spatial separation (i.e., very few fish spawning 
outside their natal river systems), as well as temporal separation 
(spawning populations becoming active at different times along a 
continuum from north to south).
    Genetic analyses of mitochondrial DNA (mtDNA), which is maternally 
inherited, and nuclear DNA (nDNA), which reflects the genetics of both 
parents, provides evidence of the separation among Atlantic sturgeon 
populations in different rivers (Bowen and Avise, 1990; Ong et al., 
1996; Waldman et al., 1996a; Waldman et al., 1996b; Waldman and Wirgin, 
1998; Waldman et al., 2002; King et al., 2001; Wirgin et al., 2002; 
Wirgin et al., 2005; Wirgin and King, 2006; Grunwald et al., 2008). New 
analyses of both mtDNA and nDNA were conducted specifically for the 
status review. In comparison to previous studies, the genetic analyses 
for the status review employed greater sample sizes from multiple 
rivers, and limited the samples analyzed to those collected from YOY 
and mature adults (>130 cm TL) to ensure that the fish originated from 
the river in which it was sampled (Wirgin and King supplemental data, 
2006; ASSRT, 2007). The results for both the mtDNA haplotype and 
microsatellite (nDNA) allelic frequencies indicated that all of the 
Atlantic sturgeon riverine populations for which there are samples 
available are genetically differentiated (ASSRT, 2007; Tables 4 and 5) 
from each other. The results of the mtDNA analysis used for the status 
review report were also subsequently published by Grunwald et al. 
(2008). In comparison to the mtDNA analyses used for the status review 
report, Grunwald et al. (2008) used additional samples, some from fish 
in the size range (<130 cm TL); these samples were excluded by Wirgin 
and King (supplemental data, 2006) because they were smaller than those 
considered to be mature adults. Nevertheless, the results of Grunwald 
et al. (2008) similarly demonstrated that each of the 12 sampled 
Atlantic sturgeon riverine populations could be genetically 
differentiated from each other (Grunwald et al., 2008).
    Genetic distances and statistical analyses (bootstrap values and 
assignment test values) were used to investigate significant 
relationships among, and differences between, Atlantic sturgeon 
riverine populations (ASSRT, 2007; Table 6 and Figures 16-18). Overall, 
the genetic markers used in this analysis resulted in an average 
accuracy of 88 percent (range 60.0-94.8 percent) for determining a 
sturgeon's natal river origin, but an average accuracy of 94 percent 
(range 88.1-95.9 percent) for correctly classifying it to one of five 
groups of populations (Kennebec River, Hudson River, James River, 
Albemarle Sound, and Savannah/Ogeechee/Altamaha Rivers) when using 
microsatellite data collected only from YOY and adults (ASSRT, 2007; 
Table 6). A phylogenetic tree (a neighbor joining tree) was produced 
from only YOY and adult samples (to reduce the likelihood of including 
strays from other populations) using the microsatellite analysis 
(ASSRT, 2007; Figure 17). Bootstrap values (which measure how 
consistently the data support the tree structure) for this tree were 
high (the lowest was 87 percent, and all others were over 90 percent) 
(ASSRT, 2007). Regarding sturgeon from northeast rivers, this analysis 
resulted in a range of 81 to 89 percent accuracy in determining a 
sturgeon's natal river of origin and correctly classifying a sturgeon 
to a population group. To further assess the accuracy of the results, 
King (supplemental data, 2006) reanalyzed the nDNA using a greater 
number of loci. His results showed that increasing the number of loci 
from 7 to 12 improved the classification rates for natal origin and 
identification of population groupings (e.g., from 84 percent to 95 
percent for the James

[[Page 5903]]

River), but did not change the conclusion that there are five discrete 
Atlantic sturgeon population segments in the United States.
    In summary, evidence to support the existence of discrete Atlantic 
sturgeon populations includes temporal and spatial separation during 
spawning and the results from genetic analyses. Genetic samples for YOY 
and spawning adults were not available for riverine populations 
originating from other rivers in the northeast region. However, nDNA 
from an expanded dataset that included juvenile Atlantic sturgeon was 
used to produce a neighbor-joining tree with bootstrap values (ASSRT, 
2007; Figure 18). This dataset included additional samples from the 
Delaware River and York River riverine populations in the Northeast. 
Atlantic sturgeon riverine populations also grouped into five 
population segments in this analysis (Delaware River riverine 
population with the Hudson River riverine population, and the York 
River riverine population with the James River riverine population).
    We have considered the information on Atlantic sturgeon population 
structuring provided in the status review report and Grunwald et al. 
(2008) and have concluded that five discrete Atlantic sturgeon 
population segments are present in the United States, with three 
located in the Northeast: (1)--The ``Gulf of Maine (GOM)'' population 
segment, which includes Atlantic sturgeon that originate from the 
Kennebec River, (2)--the ``New York Bight (NYB)'' population segment, 
which includes Atlantic sturgeon originating from the Hudson and 
Delaware Rivers, and (3)--the ``Chesapeake Bay (CB)'' population 
segment, which includes Atlantic sturgeon that originate from the James 
River. Each is markedly separate from the other four population 
segments as a consequence of physical factors.
    With respect to Atlantic sturgeon of Canadian origin, mtDNA 
analysis has shown that Atlantic sturgeon originating from rivers 
ranging from the Kennebec River, Maine, to the Saint Lawrence River, 
Canada, are predominately homogenous (one genotype) (Waldman et al., 
2002; Grunwald et al., 2008; ASSRT, 2007). However, nDNA microsatellite 
analysis has found these same rivers to be genetically diverse (King, 
supplemental data, 2006). The SRT concluded that the differences in 
nDNA were sufficient to determine that Atlantic sturgeon which 
originate in Canada are markedly separate from Atlantic sturgeon of 
U.S. origin.
    The genetic analyses support that at least one, and possibly more, 
discrete Atlantic sturgeon population groupings occur in Canada. The 
SRT did not further consider the status of Atlantic sturgeon 
originating in Canada once it was determined that they were discrete 
from the five U.S. Atlantic sturgeon population groupings. We did not 
consider a listing determination for these populations given the lack 
of information by which to determine whether the Canadian riverine 
populations represent one or more DPSs, and given the regulatory 
controls on import and export of Atlantic sturgeon and their parts per 
the Convention on International Trade in Endangered Species of Wild 
Flora and Fauna (CITES).

Significance

    When the discreteness criterion is met for a potential DPS, as it 
is for the GOM, NYB, and CB population segments in the Northeast 
identified above, the second element that must be considered under the 
DPS policy is significance of each DPS to the taxon as a whole. The DPS 
policy cites examples of potential considerations indicating 
significance, including: (1) Persistence of the discrete population 
segment in an ecological setting unusual or unique for the taxon; (2) 
evidence that loss of the discrete population segment would result in a 
significant gap in the range of the taxon; (3) evidence that the DPS 
represents the only surviving natural occurrence of a taxon that may be 
more abundant elsewhere as an introduced population outside its 
historical range; or, (4) evidence that the discrete population segment 
differs markedly from other populations of the species in its genetic 
characteristics.
    We believe that the GOM, NYB, and CB population segments persist in 
ecological settings unique for the taxon. This is evidenced by the fact 
that spawning habitat of each population grouping is found in separate 
and distinct ecoregions that were identified by The Nature Conservancy 
(TNC) based on the habitat, climate, geology, and physiographic 
differences for both terrestrial and marine ecosystems throughout the 
range of the Atlantic sturgeon along the Atlantic coast (Figure 2).
BILLING CODE 3510-22-P

[[Page 5904]]

[GRAPHIC] [TIFF OMITTED] TR06FE12.001


Figure 2: Map of TNC Marine and Terrestrial Ecoregions
 

BILLING CODE 3510-22-C
    TNC descriptions do not include detailed information on the 
chemical properties of the rivers within each ecoregion, but include an 
analysis of bedrock and surficial geology type because it relates to 
water chemistry, hydrologic regime, and substrate. It is well 
established that waters have different chemical properties (i.e., 
identities) depending on the geology of where the waters originate. For 
example, riverine spawning/nursery habitat of the Kennebec River 
riverine population occurs within the Northern Appalachian/Boreal 
Forest ecoregion whose characteristically large expanses of forest, 
variety of swamps, marshes, bogs, ice scoured riverbanks, salt marshes, 
and rocky coastal cliffs were influenced by a geological history that 
includes four glaciation events (TNC, 2008). In contrast, riverine 
spawning/nursery habitat of Atlantic sturgeon that originate from the 
Hudson and Delaware Rivers occurs within the Lower New England-Northern 
Piedmont and North Atlantic Coast ecoregions which are characterized by 
low mountains, abundant lakes, and limestone valleys inland and 
generally flat, sandy coastal plains dissected by major tidal river 
systems near the coast (Barbour, 2000; TNC, 2008). The Chesapeake Bay

[[Page 5905]]

Lowlands ecoregion, within which riverine spawning/nursery habitat for 
the James River riverine population grouping of Atlantic sturgeon 
occurs, presents yet a different landscape based on its geologic 
history. As glaciers that extended as far south as present day 
Pennsylvania began to melt, streams and rivers that flowed toward the 
coast were carved out of the landscape (Pyzik et al., 2004). These past 
events are seen today in the characteristic features of the Chesapeake 
Bay Lowlands ecoregion which includes a broad plain to the west of the 
Bay with generally low slopes and gentle drainage dissected by a series 
of major rivers--the Patuxent, Potomac, Rappahannock, York and James--
as well as a complex and dynamic patchwork of barrier islands, salt 
marshes, tidal flats and large coastal bays along the Delmarva 
Peninsula (TNC, 2002 in draft). Riverine spawning/nursery habitat for 
the two remaining Atlantic sturgeon groupings in the Southeast likewise 
occur in separate and distinct ecoregions. Therefore, the ecoregion 
delineations support that the physical and chemical properties of the 
Atlantic sturgeon spawning rivers are unique to each population 
grouping. The five discrete U.S. Atlantic sturgeon population segments 
are ``significant'' as defined in the DPS policy, given that the 
spawning rivers for each population segment occur in a unique 
ecological setting.
    Further, because each discrete population segment is genetically 
distinct and reproduces in a unique ecological setting, the loss of any 
one of the discrete population segments is likely to create a 
significant gap in the range of the taxon. Atlantic sturgeon that 
originate from other discrete population segments are not expected to 
re-colonize systems except perhaps over a long time frame (e.g., 
greater than 100 years), given that gene flow is low between the five 
discrete population segments (Wirgin et al., 2000; King et al., 2001; 
Waldman et al., 2002) and the geographic distances between spawning 
rivers of different population segments are relatively large (ASSRT, 
2007). Therefore, the loss of any of the discrete population segments 
would result in a significant gap in the range of Atlantic sturgeon and 
negatively impact the species as a whole.
    The information presented above describes: (1) Persistence of the 
GOM, NYB, and CB population segments in ecological settings that are 
unique for the Atlantic sturgeon as a whole; and (2) evidence that loss 
of any of these three population segments would result in a significant 
gap in the range of the taxon. Based on this information, we conclude 
that the GOM, NYB, and CB population segments meet the discreteness and 
significance criteria outlined in the DPS policy.

Summary of Factors Affecting the Three Northeast Region DPSs of 
Atlantic Sturgeon

    The proposed rule (75 FR 61872; October 6, 2010) and the status 
review report (ASSRT, 2007) provide detailed discussion of status and 
threats to each DPS. As described in the proposed rule, the primary 
factors responsible for the decline of the three DPSs are the 
destruction, modification or curtailment of habitat due to poor water 
quality, dredging, and the presence of dams; overutilization due to 
unintended catch of Atlantic sturgeon in fisheries; lack of regulatory 
mechanisms for protecting the fish; and other natural or manmade 
factors including loss of fish through vessel strikes.
    We conducted a comprehensive assessment of the combined impact of 
the five ESA section 4(a)(1) factors throughout the range of each DPS 
to determine extinction risk of each DPS. We focused on evaluating 
whether the DPSs are presently in danger of extinction, or whether the 
danger of extinction is likely to develop in the future. In our 
proposed rule and this final rule to list the GOM, NYB, and CB DPSs of 
Atlantic sturgeon, we determined that each DPS was at greater risk of 
extinction relative to their statuses as determined during the status 
review completed in 2007. Our listing determinations for the GOM, NYB, 
and CB DPSs and summary of the data on which they are based, including 
new information received since publication of the proposed rule, are 
presented below.

The Present or Threatened Destruction, Modification, or Curtailment of 
the Species' Habitat or Range

    Barriers (e.g., dams, tidal turbines), dredging, and water quality 
(e.g., dissolved oxygen levels, water temperature, and contaminants) 
are threats that affect Atlantic sturgeon habitat or range. In the GOM 
DPS, access to Atlantic sturgeon spawning habitat is impeded most 
severely on the Merrimack River, where Atlantic sturgeon are limited to 
42 percent of historical spawning habitat (Oakley, 2003; ASSRT, 2007). 
Dams on the Saco and Piscataqua Rivers have an unknown impact upon 
Atlantic sturgeon using those rivers. Seventy-nine percent of Atlantic 
sturgeon habitat is accessible on the Penobscot River, due to the 
presence of the Veazie Dam at rkm 56; (ASSRT, 2007).
    We received additional information from the USFWS during the 
comment period on the progress for removal of the Veazie Dam on the 
Penobscot River. Removal of the Veazie Dam is part of a larger project 
described in the Penobscot River Restoration Plan (PRRP) to enhance 
fish passage on the Penobscot. The Penobscot River Restoration Trust 
(Trust) now owns and holds title to the Veazie, Great Works, and 
Howland Hydroelectric Projects. This completes phase I of the PRRP. 
Phase II involves decommissioning and removal of the Veazie Dam as well 
as the Great Works Hydroelectric Projects, including associated dams, 
and decommissioning and by-passing the Howland Hydroelectric Project. 
The Trust has secured all necessary State and Federal permits to 
purchase, remove or by-pass the dams. The Trust also holds substantial 
financial commitments for accomplishing the removal of Veazie as well 
as Great Works Dams. Removal of the Veazie is expected to restore 
access to all historical Atlantic sturgeon habitats in the Penobscot 
River.
    Dredging projects on the Kennebec River in the GOM DPS are known to 
have captured Atlantic sturgeon. Dredging has also been proposed for 
the Penobscot Harbor of the Penobscot River (ASSRT, 2007).
    Despite the persistence of contaminants in rivers and increasing 
land development, many rivers and watersheds within the range of the 
GOM DPS have demonstrated improvement in water quality (USEPA, 2008). 
In general, the most recent (third edition) USEPA Coastal Condition 
Report identified that water quality was good to fair for waters north 
of Cape Cod (USEPA, 2008).
    Within the NYB DPS, there is evidence of Atlantic sturgeon spawning 
in the Hudson and Delaware Rivers (ASSRT, 2007). Access to historical 
spawning grounds is unimpeded by dams in these rivers; whereas, dams 
may impede access to some habitat in the Taunton and Connecticut 
Rivers. Hadley Falls, at the site of the Holyoke Dam, Connecticut 
River, MA, is considered the upstream limit of sturgeon in this system; 
however, there is record of an Atlantic sturgeon taken in the fish lift 
at the Holyoke Dam in 2006 (R. Murray, HG&E, pers. comm., 2006) (ASSRT, 
2007).
    Within the NYB DPS, maintenance dredging occurs in the Hudson and 
Delaware Rivers (excluding the Hudson River section between Haverstraw 
Bay and Catskill which is naturally deep; D. Mann-Klager, USFWS, pers. 
comm., 1998). Seasonal restrictions for diadromous species on when this 
work can occur have been imposed by the

[[Page 5906]]

Delaware River Fish and Wildlife Management Cooperative (ASSRT, 2007), 
but dredge gear used in the Delaware is known to injure or kill 
Atlantic sturgeon (ASSRT, 2007). Additional proposed dredge activities 
(for a liquefied natural gas (LNG) terminal and a large scale deepening 
project) in the Delaware River create potential for Atlantic sturgeon 
takes.
    Rivers and watersheds in the NYB DPS have been affected by 
industrialization, agriculture, and urbanization since European 
colonization. Continuing known or potential impacts from water quality 
in the NY Bight DPS include: Low dissolved oxygen concentrations in the 
summer and high ammonia-nitrogen levels in the Taunton River (Taunton 
River Journal, 2006; ASSRT, 2007); impacts from coal tar leachate in 
the Connecticut River (Kocan et al., 1993; 1996); the legacy of PCB 
pollution in the Hudson River (Sloan et al., 2005); and contamination 
resulting from the Roebling Steel plant operations in the Delaware 
River, which resulted in the designation of the Roebling-Trenton 
stretch of the river as a USEPA Superfund site. However, improvements 
in the biological status of shortnose sturgeon in several rivers of the 
NYB DPS (e.g., the Connecticut, Hudson, and Delaware Rivers), suggests 
that water quality is sufficient for supporting Atlantic sturgeon 
riverine populations. The most recent (third edition) USEPA Coastal 
Condition Report identified that water quality was fair overall for 
waters south of Cape Cod through Delaware (USEPA, 2008).
    For the CB DPS, there is evidence that Atlantic sturgeon currently 
spawn in the James River (ASSRT, 2007), and spawning may be occurring 
in the York River as well (Musick et al., 1994; K. Place, Commercial 
Fisherman, pers. comm., 2006; ASSRT, 2007). Access to habitat in these 
and other CB DPS rivers is not thought to be impeded by dams.
    Past removal of granite outcroppings and dredging of the James 
River likely represented the most significant impacts to spawning 
habitat in the CB DPS (Holton and Walsh, 1995; Bushnoe et al., 2005). 
Maintenance dredging and current dredging projects underway to deepen 
and widen the shipping terminal near Richmond on the James River (C. 
Hager, VIMS, pers. comm., 2005; S. Powell, USACE, pers. comm., 2009) 
have the potential to take Atlantic sturgeon in the river. The 
Commonwealth of Virginia does impose a dredging moratorium during the 
anadromous spawning season (C. Hager, VIMS, pers. comm., 2005).
    The placement of turbine structures to generate power in rivers 
used by Atlantic sturgeon could directly take fish by blade strike or 
could, potentially, damage or destroy bottom habitat. Seventeen 
hydrokinetic projects proposed for both the GOM (9) and NYB (8) DPSs 
have received preliminary permits from FERC, and two tidal power 
projects are currently in operation along the range of Atlantic 
sturgeon. The Annapolis River (Nova Scotia, Canada) tidal power plant 
impacts Atlantic sturgeon, with a probability of lethal strike from the 
turbine ranging between 40 and 80 percent (M. Dadswell, Arcadia 
University, pers. comm., 2006; ASSRT, 2007). One marine turbine project 
is underway within the United States in the East River, New York 
(Angelo, 2005; Verdant Power Web page, 2009). However, the slowly 
rotating blades in the East River project are different than the ducted 
intake design used in the Annapolis River project in Nova Scotia. 
Modeling done as part of the project pilot license indicated that blade 
strike probability for Atlantic sturgeon at one turbine was 0.009 
percent at this particular project site. Verdant Power recently 
completed Phase 2 of the project, which involved installation and 
operation of six full-scale turbines in an array at the project site in 
the East River (Verdant Power Web page, 2009). Phase 3 of the project 
will entail placement of 30 turbines in the East Channel of the East 
River, as well as environmental monitoring that includes making 
attempts to detect tagged ESA-listed species in the project area 
(Verdant Power, pers. comm., 2011).
    With respect to the CB DPS, the period of Atlantic sturgeon 
population decline and low abundance in the Chesapeake Bay corresponds 
to a period of poor water quality caused by increased nutrient loading 
and increased frequency of hypoxia (Officer et al., 1984; Mackiernan, 
1987; Kemp et al., 1992; Cooper and Brush, 1993). USEPA's Third Coastal 
Condition Report identified the water quality for the Chesapeake Bay 
and immediate vicinity (to the Virginia--North Carolina border) as fair 
to poor (USEPA, 2008). Water quality concerns (especially low dissolved 
oxygen resulting from nutrient loading) and the availability of clean, 
hard substrate for attachment of demersal, adhesive eggs (Bushnoe et 
al., 2005; C. Hager, VIMS, pers. comm., 2005) appear to be limiting 
habitat requirements in the CB DPS.
    Potential changes in water quality as a result of global climate 
change (temperature, salinity, dissolved oxygen, contaminants, etc.) in 
rivers and coastal waters inhabited by Atlantic sturgeon will likely 
affect those riverine populations. Effects are expected to be more 
severe for those riverine populations that occur at the southern 
extreme of the sturgeon's range, and in areas that are already subject 
to poor water quality as a result of eutrophication.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Overutilization of Atlantic sturgeon for commercial purposes is 
considered the primary factor for the historical decline of the GOM, 
NYB, and CB DPSs. A moratorium on the possession and retention of 
Atlantic sturgeon for the past 12 years has effectively terminated any 
directed harvest of Atlantic sturgeon. However, bycatch in Federal and 
state regulated fisheries continues to occur, and is one of the primary 
threats to the species (ASSRT, 2007). Fisheries known to incidentally 
catch Atlantic sturgeon occur throughout the marine range of the 
species and in some riverine waters as well. Therefore, adult and 
subadult age classes of each DPS are at risk of injury or death 
resulting from entanglement and/or capture in fishing gear wherever 
they occur.
    Canadian fisheries for Atlantic sturgeon occur in the Saint 
Lawrence and Saint John Rivers. Information received from the 
Department of Fisheries and Oceans, Canada during the public comment 
period suggests that Atlantic sturgeon of U.S. origin may be captured 
in the Saint John fishery since the fishery occurs primarily in the 
estuary where non-natal sturgeon may be present. Retention of 
incidentally caught sturgeon in other fisheries is prohibited and 
sturgeon bycatch is required to be released alive (DFO, pers. comm., 
2011). DFO has received an application for the export of wild caught 
Atlantic sturgeon specimens and product (i.e. eggs, meat) captured in 
the Saint John fishery (DFO, pers. comm., 2011), and is working with 
U.S. representatives to ensure that the requirements of the Convention 
on International Trade in Endangered Species are met. Atlantic sturgeon 
are an Appendix II species under CITES. In Canada, the Species at Risk 
Act (SARA) is the statute used for the conservation, recovery, and 
protection of species at risk (DFO, pers. comm., 2011). Atlantic 
sturgeon was reviewed by the Committee on the Status of Endangered 
Wildlife in Canada (COSEWIC) in May 2011, and determined to be at risk 
of extinction. Given the determination, Atlantic sturgeon will be 
considered for listing under SARA.

[[Page 5907]]

    Since the publication of the 2007 status review report, additional 
information on Atlantic sturgeon bycatch in U.S. sink gillnet and otter 
trawl fisheries has become available (ASMFC, 2007). For sink gillnet 
gear, Atlantic sturgeon bycatch rates were similar for otter trawl gear 
and sink gillnet gear. However, bycatch mortality was markedly 
different between the two gear types, with a mean estimated annual 
Atlantic sturgeon mortality from gillnets of 649 sturgeon per year, or 
13.8 percent of the annual Atlantic sturgeon bycatch in sink gillnet 
gear (ASMFC, 2007). The total number of Atlantic sturgeon killed in 
otter trawl gear could not be estimated because of the low number of 
observed mortalities, indicating a low mortality rate (ASMFC, 2007).
    Approximately 15 to 19 percent of observed Atlantic sturgeon 
bycatch in sink gillnet and otter trawl gear in 2001 to 2006 occurred 
in coastal marine waters north of Chatham, MA (ASMFC, 2007). Other 
fisheries occur in the estuaries of the GOM DPS, but Atlantic sturgeon 
bycatch has not been reported in those fisheries.
    Approximately 39 to 55 percent of observed Atlantic sturgeon 
bycatch in sink gillnet and otter trawl gear for 2001 to 2006 occurred 
in coastal marine waters south of Chatham, MA and north of the 
Delaware-Maryland border (ASMFC, 2007). Bycatch is also known to occur 
in the commercial shad fishery that operates in the lower Connecticut 
River from April to June in large mesh (14 cm minimum stretched mesh) 
gill nets (ASSRT, 2007). Several fisheries using gillnet gear occur in 
the Delaware Bay, including the striped bass, shad, white perch, 
Atlantic menhaden, and weakfish fisheries (ASSRT, 2007), but bycatch 
mortality of Atlantic sturgeon is typically low due to the timing of 
these fisheries (C. Shirey, DNREC, pers. comm., 2005).
    With respect to the CB DPS, the NEFSC analysis indicated that 
coastal waters south of the Chesapeake Bay to Cape Hatteras, NC, had 
the second highest number of observed Atlantic sturgeon captures in 
sink gillnet gear for 2001-2006 (ASMFC, 2007). A gillnet fishery for 
dogfish was known to incidentally catch sturgeon off Chincoteague 
Island, VA, where more than 30 dead Atlantic sturgeon were found 
(Virginia Marine Police and Virginia Marine Resources Commission, pers. 
comm.). Access to the spiny dogfish fishery is not limited, and 
directed effort in the fishery is expected to increase as stock 
rebuilding objectives are met (ASMFC, 2009). An increase in effort 
could result in increased levels of Atlantic sturgeon bycatch.
    In addition to fisheries occurring in marine waters, numerous 
fisheries operate throughout the Chesapeake Bay (ASSRT, 2007). Juvenile 
and subadult Atlantic sturgeon are routinely taken as bycatch 
throughout the Chesapeake Bay in a variety of fishing gears (ASSRT, 
2007), and the mortality of Atlantic sturgeon bycatch in most of these 
fisheries is unknown, although low rates of bycatch mortality were 
reported for the striped bass gill net fishery and the shad fishery 
within the Bay (Hager, 2006). The available information supports that 
overutilization of the GOM, NYB, and CB DPSs is not occurring as a 
result of educational or scientific purposes.

Disease or Predation

    Very little is known about natural predators of Atlantic sturgeon. 
The presence of bony scutes is likely an effective adaptation for 
minimizing predation of sturgeon greater than 25 mm TL (Gadomski and 
Parsley, 2005; ASSRT, 2007). Seal predation on shortnose sturgeon in 
the Penobscot River has been documented (Fernandes, 2008; A. 
Lictenwalner, UME, pers. comm., 2009) and Atlantic sturgeon that are of 
comparable size to shortnose (e.g., subadult Atlantic sturgeon) may 
also be susceptible to seal predation.
    The presence of introduced flathead catfish has been confirmed in 
the Delaware and Susquehanna River systems of the NYB and CB DPSs, 
respectively (Horwitz et al., 2004; Brown et al., 2005). However, there 
are no indications that the presence of flathead catfish in the Cape 
Fear River, NC, and Altamaha River, GA (where flatheads have been 
present for many years) is negatively impacting Atlantic sturgeon in 
those rivers (ASSRT, 2007).
    A die-off of sturgeon, 13 shortnose and two Atlantic sturgeon, was 
reported for Sagadahoc Bay, ME, in July 2009, at the same time as a red 
tide event for the region. The dinoflagellate associated with the red 
tide event, Alexandrium fundyense, is known to produce saxitoxin, which 
can cause paralytic shellfish poisoning when consumed in sufficient 
quantity.
    There is concern that non-indigenous sturgeon pathogens could be 
introduced to wild Atlantic sturgeon, most likely through aquaculture 
operations. The aquarium industry is another possible source for 
transfer of non-indigenous pathogens or non-indigenous species from one 
geographic area to another, primarily through release of aquaria fish 
into public waters. Neither disease nor predation are considered 
primary factors affecting the continued persistence of any of the three 
Atlantic sturgeon DPSs in the Northeast.

Inadequacy of Existing Regulatory Mechanisms

    As a wide-ranging anadromous species, Atlantic sturgeon are subject 
to numerous Federal (U.S. and Canadian), state and provincial, and 
inter-jurisdictional laws, regulations, and agency activities. These 
regulatory mechanisms are described in detail in the status review 
report (see section 3.4), and those that impact Atlantic sturgeon the 
most are highlighted here. As previously described, the ASMFC manages 
Atlantic sturgeon through an interstate fisheries management plan that 
was developed in 1990 (Taub, 1990). The moratorium prohibiting directed 
catch of Atlantic sturgeon was developed as Amendment 1 to the FMP. 
Under the authority of the Atlantic Coastal Fisheries Cooperative 
Management Act (ACFCMA), in 1999, NMFS implemented regulations that 
prohibit the retention and landing of Atlantic sturgeon bycatch from 
federally regulated fisheries. While there are currently no fishery 
specific regulations in place that address Atlantic sturgeon bycatch, 
NMFS has the authority and discretion to implement such measures, and 
has previously used its authority to implement measures to reduce 
bycatch of protected species in federally-regulated fisheries.
    Some fisheries that occur within state waters are also known or 
suspected of taking Atlantic sturgeon as bycatch. Maine's regulations 
prohibit the use of purse, drag, and stop seines, and gill nets with 
greater than 87.5 mm stretched mesh (ASSRT, 2007). Fixed or anchored 
nets have to be tended continuously and hauled in and emptied every 2 
hours (ASSRT, 2007). As described above, there has been no reported or 
observed bycatch of Atlantic sturgeon in the limited gill net fisheries 
for menhaden, alewives, blueback herring, sea herring, and mackerel in 
the estuarial complex of the Kennebec and Androscoggin Rivers (ASSRT, 
2007). However, the level of observer coverage or reporting effort is 
unknown. Current Connecticut regulations appear to be inadequate for 
addressing bycatch in the Connecticut River. As mentioned above, the NY 
DEC closed all shad fisheries in the Hudson River effective March 17, 
2010 (NY DEC press release, March 17, 2010).
    Gillnet fisheries for numerous fish species occur in the Chesapeake 
Bay. Low rates of sturgeon bycatch mortality were reported for the 
striped bass gill net fishery and the shad staked gill net

[[Page 5908]]

fishery (Hager, 2006; ASSRT, 2007), although estimates of bycatch in 
these fisheries as well as other fisheries in the Bay are not 
available. Since completion of the status review report, Virginia has 
closed the directed fishery for American shad to allow rebuilding of 
the stock. Virginia also has various time and gear restrictions for the 
use of gillnet gear in its tidal waters, including prohibitions on the 
use of staked or anchored gillnet gear in portions of the James and 
Rappahannock Rivers from April 1 through May 31 (VA MRC Summary of 
Regulations, 2009), that are likely to benefit Atlantic sturgeon by 
reducing the likelihood of sturgeon bycatch. Similarly, regulations 
implemented by NMFS (69 FR 24997, May 5, 2004; 71 FR 36024, June 23, 
2006) to reduce sea turtle interactions with pound net gear in the Bay 
and portions of the surrounding rivers (e.g., James, York, and 
Rappahannock Rivers) likely reduce the chance that Atlantic sturgeon 
will be caught in the gear.
    Due to existing state and Federal laws, water quality and other 
habitat conditions have improved in many rivers (USEPA, 2008). As 
described above, dredging is a threat for the GOM, NYB, and CB DPSs of 
Atlantic sturgeon. Currently, there are no specific regulations 
requiring action(s) to reduce effects of dredging on Atlantic sturgeon. 
However, we have some authority and discretion to implement such 
measures or require modification of dredging activities when Atlantic 
sturgeon are listed under the ESA.

Other Natural or Manmade Factors Affecting the Species Continued 
Existence

    The ASSRT considered several manmade factors that may affect 
Atlantic sturgeon, including impingement and entrainment, vessel 
strikes, and artificial propagation. Within the range of Atlantic 
sturgeon, most, if not all, riverine populations are at risk of 
possible entrainment or impingement in water withdrawal intakes for 
commercial uses, municipal water supply facilities, and agricultural 
irrigation intakes. Based on surveys conducted in the Hudson and 
Delaware Rivers, entrainment and impingement does not appear to be a 
primary threat to Atlantic sturgeon. Vessel strikes of Atlantic 
sturgeon have been documented in particular areas. Atlantic sturgeon 
that occur in locations that support large ports and have relatively 
narrow waterways seem to be more prone to vessel strikes (e.g., 
Delaware and James Rivers). Twenty-nine mortalities believed to be the 
result of vessel strikes were documented in the Delaware River from 
2004 to 2008 (Kahnle et al., 2005; Murphy, 2006; Brown and Murphy, 
2010), most likely from larger vessels, although at least one boater 
reported hitting a large sturgeon with his small craft (C. Shirey, 
DNREC, pers. comm., 2005). Recreational vessels are known to have 
struck and killed shortnose sturgeon in the Kennebec River (G. 
Wipplehauser, ME DMR, pers. comm., 2009). Therefore, it is likely that 
Atlantic sturgeon can also suffer mortal injuries when struck by 
recreational vessels. In the James River, 11 Atlantic sturgeon were 
reported to have been struck by vessels from 2005 through 2007 (A. 
Spells, USFWS, pers. comm., 2007). The propeller marks present on the 
six fish examined indicated that the wounds were inflicted by both 
large and small vessels (A. Spells, USFWS, pers. comm., 2007). Other 
sources suggest an even higher rate of interaction with at least 16 
Atlantic sturgeon mortalities reported for a short reach of the James 
River during 2007-2008 (Balazik, unpublished, in Richardson et al., 
2009).
    Artificial propagation of Atlantic sturgeon for use in restoration 
of extirpated riverine populations or recovery of severely depleted 
wild riverine populations has the potential to be both a threat to the 
species and a tool for recovery. In 1991, the USFWS Northeast Fisheries 
Center (NEFC) in Lamar, Pennsylvania began a program to capture, 
transport, spawn, and culture Atlantic sturgeon. The work at Lamar 
resulted in the publication of the Culture Manual for the Atlantic 
sturgeon (Mohler, 2004). Since NEFC's first successful spawning in 
1993, many requests have been made for excess progeny both inside and 
outside of the Department of the Interior. These requests were filled 
only under the condition that a study plan, including provisions that 
escapement of cultured sturgeon into the wild be prevented except where 
experimental stockings were conducted under Federal and state 
regulations, be submitted to NEFC for review by the Center Director and 
biologists.

Summary of Protective Efforts

    The PECE (68 FR 15100, March 28, 2003) provides direction for the 
consideration of protective efforts identified in conservation 
agreements, conservation plans, management plans, or similar documents 
(developed by Federal agencies, state and local governments, Tribal 
governments, businesses, organizations, and individuals) that have not 
yet been implemented, or have been implemented but have not yet 
demonstrated effectiveness. The evaluation of the certainty of an 
effort's effectiveness is made on the basis of whether the effort or 
plan: Establishes specific conservation objectives; identifies the 
necessary steps to reduce threats or factors for decline; includes 
quantifiable performance measures for the monitoring of compliance and 
effectiveness; incorporates the principles of adaptive management; and 
is likely to improve the species' viability at the time of the listing 
determination. Conservation measures that may apply to listed species 
include those implemented by tribes, states, foreign nations, local 
governments, and private organizations. Also, Federal, tribal, state, 
and foreign nations' recovery actions (16 U.S.C. 1533(f)), Federal 
consultation requirements (16 U.S.C. 1536), and prohibitions on taking 
(16 U.S.C. 1538) constitute conservation measures. In addition, 
recognition through Federal government or state listing promotes public 
awareness and conservation actions by Federal, state, tribal 
governments, foreign nations, private organizations, and individuals.
    As described in detail in the proposed rule, various agencies, 
groups, and individuals are carrying out a number of efforts aimed at 
protecting and conserving Atlantic sturgeon belonging to the GOM, NYB, 
and CB DPSs. These actions are directed at reducing threats faced by 
Atlantic sturgeon and/or gaining additional knowledge of specific 
Atlantic sturgeon riverine populations. Such actions could contribute 
to the recovery of the GOM, NYB, and CB DPSs of Atlantic sturgeon in 
the future. However, there is still considerable uncertainty regarding 
the implementation and effectiveness of these efforts, and the extent 
to which any would reduce the threats to the GOM, NYB, or CB DPSs that 
are the cause of their listing. Therefore, we have determined that none 
of these protective efforts currently contribute to making it 
unnecessary to list of the GOM, NYB, or CB DPSs of Atlantic sturgeon.
    We received additional information during the public comment period 
specifically referring to the Penobscot River Restoration Project 
(PRRP), indicating that PECE criterion 4 has been satisfied. The PRRP 
has successfully purchased the Veazie, Great Works, and Howland 
Hydroelectric Projects, has obtained the necessary state and Federal 
permits required for removing or bypassing the dams, and has gathered a 
large amount of funding which can be used for removal of the dams that 
could impact Atlantic sturgeon.

[[Page 5909]]

Final Listing Determination

    We determined that the NYB and CB DPSs of Atlantic sturgeon are 
currently in danger of extinction throughout their range, and the GOM 
DPS of Atlantic sturgeon is likely to become endangered within the 
foreseeable future throughout its range, on the basis of low population 
size and the level of impacts and number of threats such as continued 
degraded water quality, habitat impacts from dredging, continued 
bycatch in state and federally-managed fisheries, and vessel strikes to 
each DPS. Historically, each of the DPSs likely supported more than 
10,000 spawning adults (Kennebec River Resource Management Plan 1993; 
Secor 2002; ASSRT, 2007). The best available data support that current 
numbers of spawning adults for each DPS are one to two orders of 
magnitude smaller than historical levels (e.g., hundreds to low 
thousands (ASSRT, 2007; Kahnle et al., 2007)). A long life-span allows 
multiple opportunities for Atlantic sturgeon to contribute to future 
generations, but it increases the timeframe over which exposure to the 
multitude of threats facing the DPSs can occur. Their late age at 
maturity also provides more opportunities for individual Atlantic 
sturgeon to be removed from the population before reproducing.
    While there is only one known spawning population within the GOM 
DPS (i.e., the Kennebec River), there is possible spawning in the 
Penobscot River. Atlantic sturgeon continue to be present in the 
Kennebec River; in addition, they are captured in directed research 
projects in the Penobscot River, and are observed in rivers where they 
were unknown to occur or had not been observed to occur for many years 
(e.g., the Saco River and the Presumpscot River). These observations 
suggest that abundance of the GOM DPS of Atlantic sturgeon is 
sufficient such that recolonization to rivers historically suitable for 
spawning may be occurring.
    Despite the past impacts of exploitation, industrialization and 
population expansion, the DPS has persisted and is now showing signs of 
potential recovery (e.g., increased abundance and/or expansion into its 
historical range). The level of impact from the threats which 
facilitated its decline have been removed (e.g., directed fishing) or 
reduced as a result of improvements in water quality since passage of 
the CWA; removal of dams (e.g., the Edwards Dam on the Kennebec River 
in 1999); reductions in fishing effort in state and Federal waters, 
which may have resulted in a reduction in overall bycatch mortality; 
and the implementation of strict regulations on the use of fishing gear 
in Maine state waters that incidentally catch sturgeon. As indicated by 
the mixed stock analysis results, fish from the Gulf of Maine DPS are 
not commonly taken as bycatch in areas south of Chatham, MA (Wirgin and 
King, 2011). Of the 84 observed Atlantic sturgeon interactions with 
fishing gear in the Mid Atlantic/Carolina region, only 8 percent (e.g., 
7 of the 84 fish) were assigned to the GOM DPS (Wirgin and King, 2011). 
Tagging results also indicate that GOM DPS fish tend to remain within 
the waters of the Gulf of Maine and only occasionally venture to points 
south (Eyler, 2006; Eyler, 2011).
    Water quality within the Gulf of Maine has improved significantly 
over time and unlike in areas farther south, it is very rare to have 
issues with low dissolved oxygen concentrations (that negatively affect 
Atlantic sturgeon) in the Gulf of Maine. A significant amount of 
fishing in the Gulf of Maine is conducted using trawl gear, which is 
known to have a much lower mortality rate for Atlantic sturgeon. Given 
the reduced level of threat to the GOM DPS, the anticipated 
distribution of GOM DPS fish predominantly in the Gulf of Maine, and 
the positive signs regarding distribution and abundance within the DPS, 
we concluded that the GOM DPS is not currently endangered. However, as 
noted previously, studies have shown that Atlantic sturgeon can sustain 
only low levels of bycatch and other anthropogenic mortality (e.g., 
vessel strikes) (Boreman, 1997; ASMFC, 2007; Kahnle et al., 2007; Brown 
and Murphy, 2010). We anticipate that sink gillnet fishing effort will 
increase in the Gulf of Maine as fish stocks are rebuilt. In addition, 
individual-based assignment and mixed stock analysis of samples 
collected from sturgeon captured in Canadian fisheries in the Bay of 
Fundy indicated that approximately 35 percent were from the GOM DPS 
(Wirgin et al., in draft). There are no current regulatory measures to 
address the bycatch threat to GOM DPS Atlantic sturgeon posed by U.S. 
Federal fisheries or fisheries that occur in Canadian waters. Potential 
changes in water quality as a result of global climate change 
(temperature, salinity, dissolved oxygen, contaminants, etc.) in rivers 
and coastal waters inhabited by Atlantic sturgeon will likely affect 
riverine populations. Therefore, despite some management efforts and 
improvements, we concluded that the GOM DPS is at risk of becoming 
endangered in the foreseeable future throughout all of its range (i.e., 
is a threatened species) given the persistence of threats from bycatch 
and habitat impacts from continued degraded water quality and dredging 
in some areas, and the lack of measures to address these threats.
    In the NYB DPS, there are two known spawning populations--the 
Hudson and Delaware River riverine populations. While the Hudson is 
presumably the largest extant reproducing Atlantic sturgeon population, 
the Delaware is presumably very small and extremely vulnerable to any 
sources of anthropogenic mortality. There are no indications of 
increasing abundance for the NYB DPS (ASSRT, 2009; 2010). There are 
anecdotal reports of increased sightings and captures of Atlantic 
sturgeon in the James River, which comprises the only known spawning 
river for the CB DPS. However, this information has not been 
comprehensive enough to develop a population estimate for the James 
River or to provide sufficient evidence to confirm increased abundance.
    Some of the impact from the threats that facilitated the decline of 
these two DPSs have been removed (e.g., directed fishing) or reduced as 
a result of improvements in water quality since passage of the Clean 
Water Act (CWA). In addition, there have been reductions in fishing 
effort in state and Federal waters, which most likely would result in a 
reduction in bycatch mortality of Atlantic sturgeon. Nevertheless, 
areas with persistent, degraded water quality, habitat impacts from 
dredging, continued bycatch in state and federally-managed fisheries, 
and vessel strikes remain significant threats to both the NYB and CB 
DPSs.
    Based on the mixed stock analysis results, over 40 percent of the 
Atlantic sturgeon bycatch interactions in the Mid-Atlantic Bight region 
were with fish from the NYB DPS and 20 percent were with fish from the 
CB DPS (Wirgin and King, 2011). Atlantic sturgeon belonging to the NYB 
DPS or CB DPS likely benefited from the effort control measures 
implemented for rebuilding of fish stocks (e.g., monkfish and spiny 
dogfish), because the amount of sink gillnets in Mid-Atlantic waters 
was reduced. However, as fish stocks are rebuilt, we anticipate that 
sink gillnet fishing effort will increase in the Mid-Atlantic. In 
addition, individual-based assignment and mixed stock analysis of 
samples collected from sturgeon captured in Canadian fisheries in the 
Bay of Fundy indicated that approximately 1-2 percent were from the NYB 
DPS, and perhaps 1 percent from the CB DPS (Wirgin et al., in draft). A 
recent study also indicated that the loss of only a few adult female 
Atlantic

[[Page 5910]]

sturgeons from the Delaware River riverine population as a result of 
vessel strikes would hinder recovery of that riverine population (Brown 
and Murphy, 2010). There are no current regulatory measures to address 
the bycatch threat to the NYB and CB DPSs of Atlantic sturgeon posed by 
U.S. Federal fisheries or fisheries that occur in Canadian waters, or 
measures to address the threat of vessel strikes. Potential changes in 
water quality as a result of global climate change (temperature, 
salinity, dissolved oxygen, contaminants, etc.) in rivers and coastal 
waters inhabited by Atlantic sturgeon will likely affect riverine 
populations. We have, therefore, concluded that the NYB and CB DPSs are 
currently at risk of extinction (i.e., are endangered) given the 
following: (1) Both the NYB and CB DPSs are at low levels of abundance 
with a limited number of spawning populations within each DPS; (2) both 
continue to be significantly affected by threats to habitat from 
continued degraded water quality and dredging in some areas as well as 
threats from bycatch and vessel strikes; (3) these threats are 
considered to be unsustainable at present and the threat posed by 
bycatch is likely to increase in magnitude in the future; and, (4) 
there is a lack of existing regulatory mechanisms to adequately address 
these threats.

Take Prohibitions and Protective Regulations

    Section 9 of the ESA prohibits the take of endangered species. The 
term ``take'' means to harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or attempt to engage in any such conduct (16 
U.S.C. 1532(19)). In the case of threatened species, ESA section 4(d) 
authorizes NMFS to issue regulations it considers necessary and 
advisable for the conservation of the species. The 4(d) protective 
regulations may prohibit, with respect to threatened species, some or 
all of the acts that section 9(a)(1) of the ESA prohibits with respect 
to endangered species. These 9(a)(1) prohibitions and 4(d) regulations 
apply to all individuals, organizations, and agencies subject to U.S. 
jurisdiction. We have proposed 4(d) regulations for the threatened GOM 
DPS in a separate rulemaking (76 FR 34023; June 10, 2011).

Other Protective Measures

    Section 7(a)(2) of the ESA requires Federal agencies to confer with 
us on actions likely to jeopardize the continued existence of listed 
species or result in the destruction or adverse modification of 
critical habitat. If a Federal action is likely to adversely affect a 
listed species or destroy or adversely modify its critical habitat, the 
responsible Federal agency must initiate formal consultation. Examples 
of Federal actions that may affect the three Northeast DPS include: 
Fishery management practices; dredging operations; point and nonpoint 
source discharge of persistent contaminants; contaminated waste 
disposal; water quality standards.
    Sections 10(a)(1)(A) and (B) of the ESA provide us with the 
authority to grant exceptions to the ESA's section 9 ``take'' 
prohibitions. Section 10(a)(1)(A) scientific research and enhancement 
permits may be issued to entities (Federal and non-Federal) for 
scientific purposes or to enhance the propagation or survival of a 
listed species. The type of activities potentially requiring a section 
10(a)(1)(A) research/enhancement permit include scientific research 
that targets Atlantic sturgeon.
    Section 10(a)(1)(B) incidental take permits may be issued to non-
Federal entities performing activities that may incidentally take 
listed species, as long as the taking is incidental to, and not the 
purpose of, the carrying out of an otherwise lawful activity.

Service Policies on Endangered and Threatened Fish and Wildlife

Critical Habitat

    Critical habitat is defined in section 3 of the ESA as: (i) The 
specific areas within the geographical area occupied by the species, at 
the time it is listed in accordance with the ESA, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed upon 
a determination that such areas are essential for the conservation of 
the species (16 U.S.C. 1532(5)(A). Section 4(b) of the ESA states that 
designation of critical habitat should occur at the same time as the 
final ruling, unless the Secretary deems that critical habitat is not 
then determinable, in which case the time to critical habitat 
designation may be extended by 1 year. We are seeking public input and 
information to assist in gathering and analyzing the best available 
scientific data to support a critical habitat designation. The 
Secretary has determined that critical habitat designation for the 
three DPSs in the Northeast is not yet determinable. We will continue 
to meet with co-managers and other stakeholders to review information 
that will be used in the overall designation process. We will then 
initiate rulemaking with publication in the Federal Register of a 
proposed designation of critical habitat, followed by a period for 
public comment and the opportunity for public hearings. In the coming 
months, we will continue to evaluate the physical and biological 
features of specific areas (e.g., spawning or feeding site quality or 
quantity, water quality or quantity, geological formation, vegetation 
type) that are essential to the conservation of the three DPSs in the 
Northeast. Features that may be considered essential could include, but 
are not limited to: (1) Space for individual and population growth, and 
for normal behavior; (2) food, water, air, light, minerals, or other 
nutritional or physiological requirements; (3) cover or shelter; (4) 
sites for breeding, reproduction, rearing of offspring, germination, or 
seed dispersal; and generally, (5) habitats that are protected from 
disturbance or are representative of the historical geographical and 
ecological distributions of a species.

Information Solicited

    To ensure that subsequent rulemaking resulting from this Final Rule 
will be as accurate and effective as possible, we are soliciting 
information from the public, other governmental agencies, the 
Government of Canada, the scientific community, industry, and any other 
interested parties. Specifically, we are interested in information that 
will inform the designation of critical habitat for three DPSs in the 
Northeast, including: (1) Atlantic sturgeon spawning habitat within the 
range of each of the three DPSs in the Northeast that was present in 
the past, but may have been lost over time; (2) quantitative 
evaluations describing the quality and extent of freshwater and marine 
habitats (occupied currently or occupied in the past, but no longer 
occupied) for all life stages of Atlantic sturgeon as well as 
information on areas that may qualify as critical habitat throughout 
the full range of the taxon; (3) activities that could be affected by a 
critical habitat designation; and (4) the economic costs and benefits 
of additional requirements of designation of critical habitat (see 
DATES and ADDRESSES).

References Cited

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

[[Page 5911]]

Classification

National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 
1981), NMFS has concluded that ESA listing actions are not subject to 
the environmental assessment requirements of the National Environmental 
Policy Act (NEPA). (See NOAA Administrative Order 216-6.)

Executive Order 12866, Regulatory Flexibility Act and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process.
    In addition, this rule is exempt from review under Executive Order 
12866. This rule does not contain a collection-of-information 
requirement for the purposes of the Paperwork Reduction Act.

Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
consultation directives for situations where a regulation will preempt 
state law, or impose substantial direct compliance costs on state and 
local governments (unless required by statute). Pursuant to the 
Executive Order on Federalism, E.O. 13132, we provided notice of the 
proposed action, requested comments from, and addressed the comments 
received from the appropriate state resource agencies of the states in 
which the GOM, NYB, and CB DPSs occur.

Environmental Justice

    Executive Order 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 listing 
determination is 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, NYB, and CB DPSs. A list of the specific state contacts and 
a copy of the letters are available upon request.

List of Subjects

50 CFR Part 223

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

50 CFR Part 224

    Endangered and threatened species, Exports, Imports.

    Dated: January 24, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 223 and 224 
are amended as follows:

0
1. The authority citation for parts 223 and 224 continues to read as 
follows:

    Authority:  16 U.S.C. 1531-1543.

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
2. In Sec.  223.102, paragraph (c)(29) is added to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (c) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species \1\
------------------------------------------------------------              Where listed              Citation(s) for listing    Citation(s) for critical
            Common name                  Scientific name                                                determination(s)        habitat designation(s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
(29) Atlantic Sturgeon--Gulf of      Acipenser oxyrinchus    Gulf of Maine Distinct Population      [Insert FR page number   NA.
 Maine DPS.                           oxyrinchus.             Segment. The GOM DPS includes the      where the document
                                                              following: All anadromous Atlantic     begins]; 2/6/12.
                                                              sturgeon that are spawned in the
                                                              watersheds from the Maine/Canadian
                                                              border and extending southward to
                                                              include all associated watersheds
                                                              draining into the Gulf of Maine as
                                                              far south as Chatham, MA, as well as
                                                              wherever these fish occur in coastal
                                                              bays and estuaries and the marine
                                                              environment. Within this range,
                                                              Atlantic sturgeon have been
                                                              documented from the following
                                                              rivers: Penobscot, Kennebec,
                                                              Androscoggin, Sheepscot, Saco,
                                                              Piscataqua, Presumpscott, and
                                                              Merrimack. The marine range of
                                                              Atlantic sturgeon from the GOM DPS
                                                              extends from Hamilton Inlet,
                                                              Labrador, Canada to Cape Canaveral,
                                                              FL. The GOM DPS also includes
                                                              Atlantic sturgeon held in captivity
                                                              (e.g., hatcheries, scientific
                                                              institutions) and which are
                                                              identified as fish belonging to the
                                                              GOM DPS based on genetics analyses,
                                                              previously applied tags, previously
                                                              applied marks, or documentation to
                                                              verify that the fish originated from
                                                              (hatched in) a river within the
                                                              range of the GOM DPS, or is the
                                                              progeny of any fish that originated
                                                              from a river within the range of the
                                                              GOM DPS.
 

[[Page 5912]]

 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

* * * * *

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
3. In Sec.  224.101 the table in paragraph (a) is amended by adding 
entries at the end for Atlantic Sturgeon-New York Bight DPS, and for 
Atlantic Sturgeon-Chesapeake Bay DPS, to read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species

* * * * *
    (a) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species \1\
------------------------------------------------------------              Where listed              Citation(s) for listing    Citation(s) for critical
            Common name                  Scientific name                                                determination(s)        habitat designation(s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Atlantic Sturgeon--New York Bight    Acipenser oxyrinchus    New York Bight Distinct Population     [Insert FR page number   NA.
 DPS.                                 oxyrinchus.             Segment. The NYB DPS includes the      where the document
                                                              following: all anadromous Atlantic     begins]; 2/6/12.
                                                              sturgeon that are spawned in the
                                                              watersheds that drain into coastal
                                                              waters, including Long Island Sound,
                                                              the New York Bight, and Delaware
                                                              Bay, from Chatham, MA to the
                                                              Delaware-Maryland border on Fenwick
                                                              Island. Within this range, Atlantic
                                                              sturgeon have been documented from
                                                              the Hudson and Delaware rivers as
                                                              well as at the mouth of the
                                                              Connecticut and Taunton rivers, and
                                                              throughout Long Island Sound. The
                                                              marine range of Atlantic sturgeon
                                                              from the NYB DPS extends from
                                                              Hamilton Inlet, Labrador, Canada to
                                                              Cape Canaveral, FL. The NYB DPS also
                                                              includes Atlantic sturgeon held in
                                                              captivity (e.g., hatcheries,
                                                              scientific institutions) and which
                                                              are identified as fish belonging to
                                                              the NYB DPS based on genetics
                                                              analyses, previously applied tags,
                                                              previously applied marks, or
                                                              documentation to verify that the
                                                              fish originated from (hatched in) a
                                                              river within the range of the NYB
                                                              DPS, or is the progeny of any fish
                                                              that originated from a river within
                                                              the range of the NYB DPS.
Atlantic Sturgeon--Chesapeake Bay    Acipenser oxyrinchus    Chesapeake Bay Distinct Population     [Insert FR page number   NA.
 DPS.                                 oxyrinchus.             Segment. The CB DPS includes the       where the document
                                                              following: all anadromous Atlantic     begins]; 2/6/12.
                                                              sturgeon that are spawned in the
                                                              watersheds that drain into the
                                                              Chesapeake Bay and into coastal
                                                              waters from the Delaware-Maryland
                                                              border on Fenwick Island to Cape
                                                              Henry, VA, as well as wherever these
                                                              fish occur in coastal bays and
                                                              estuaries and the marine
                                                              environment. Within this range,
                                                              Atlantic sturgeon have been
                                                              documented from the James, York,
                                                              Potomac, Rappahannock, Pocomoke,
                                                              Choptank, Little Choptank, Patapsco,
                                                              Nanticoke, Honga, and South rivers
                                                              as well as the Susquehanna Flats.
                                                              The marine range of Atlantic
                                                              sturgeon from the CB DPS extends
                                                              from Labrador Inlet, Labrador,
                                                              Canada to Cape Canaveral, FL. The CB
                                                              DPS also includes Atlantic sturgeon
                                                              held in captivity (e.g., hatcheries,
                                                              scientific institutions) and which
                                                              are identified as fish belonging to
                                                              the CB DPS based on genetics
                                                              analyses, previously applied tags,
                                                              previously applied marks, or
                                                              documentation to verify that the
                                                              fish originated from (hatched in) a
                                                              river within the range of the CB
                                                              DPS, or is the progeny of any fish
                                                              that originated from a river within
                                                              the range of the CB DPS.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

* * * * *
[FR Doc. 2012-1946 Filed 2-3-12; 8:45 am]
BILLING CODE 3510-22-P