[Federal Register Volume 78, Number 182 (Thursday, September 19, 2013)]
[Proposed Rules]
[Pages 57611-57616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22869]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 130626570-3570-01]
RIN 0648-XC742


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List Alabama Shad as Threatened or Endangered Under the Endangered 
Species Act

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

ACTION: Notice of 90-day petition finding, request for information.

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SUMMARY: We (NMFS) announce a 90-day finding on a petition to list 
Alabama shad (Alosa alabamae) as threatened or endangered under the 
Endangered Species Act (ESA) and to designate critical habitat 
concurrent with the listing. We find that the information in our files 
presents substantial scientific or commercial information indicating 
that the petitioned action may be warranted. We will conduct a status 
review of the species to determine if the petitioned action is 
warranted. To ensure that the status review is comprehensive, we are 
soliciting scientific and commercial information regarding this species 
(see below).

DATES: Information and comments on the subject action must be received 
by November 18, 2013.

ADDRESSES: You may submit information, identified by the code NOAA-
NMFS--2013-0142, addressed to: Kelly Shotts, Ecologist, by any of the 
following methods:
     Electronic Submissions: Submit all electronic information 
via the Federal eRulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0142, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Facsimile (fax): 727-824-5309.
     Mail: NMFS, Southeast Regional Office, 263 13th Avenue 
South, St. Petersburg, FL 33701.
     Hand delivery: You may hand deliver written information to 
our office during normal business hours at the street address given 
above.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are part of the 
public record and may be posted to http://www.regulations.gov without 
change. All personal identifying information (e.g., name, address), 
confidential business information, or otherwise sensitive information 
submitted voluntarily by the sender will be publicly accessible. We 
will accept anonymous comments (enter ``N/A'' in the required fields if 
you wish to remain anonymous). Attachments to electronic comments will 
be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Kelly Shotts, NMFS, Southeast Region, 
727-824-5312; or Marta Nammack, NMFS, Office of Protected Resources, 
301-427-8469.

SUPPLEMENTARY INFORMATION: 

Background

    In 1997, we added Alabama shad to our Candidate Species List (62 FR 
37562; July 14, 1997). At that time, a candidate species was defined as 
any species being considered by the Secretary of Commerce (Secretary) 
for listing as an endangered or a threatened species, but not yet the 
subject of a proposed rule (49 FR 38900; October 1, 1984). In 2004, we 
created the Species of Concern list (69 FR 19975; April 15, 2004) to 
encompass species for which we have some concerns regarding their 
status and threats, but for which insufficient information is available 
to indicate a need to list the species under the ESA. Twenty-five 
candidate species, including the Alabama shad, were transferred to the 
Species of Concern list at that time because they were not being 
considered for ESA listing and were better suited for Species of 
Concern status due to some concerns and uncertainty regarding their 
biological status and threats. The Species of Concern status does not 
carry any procedural or substantive protections under the ESA.
    On April 20, 2010, the Center for Biological Diversity (CBD), 
Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf 
Restoration Network, Tennessee Forests Council, and the West Virginia 
Highlands Conservancy (petitioners) submitted a petition to the 
Secretaries of Interior and Commerce, as well as to the Regional 
Director of the Southeast Region of the

[[Page 57612]]

U.S. Fish and Wildlife Service (USFWS), to list 404 aquatic, riparian, 
and wetland species from the southeastern United States as threatened 
or endangered under the ESA. The petitioners also requested that 
critical habitat be designated for all petitioned species. We notified 
the USFWS' Southeast Region by letter dated May 3, 2010, that the 
Alabama shad, one of the 404 petitioned species, would fall under NMFS' 
jurisdiction based on the August 1974 Memorandum of Understanding 
regarding jurisdictional responsibilities and listing procedures 
between the two agencies. We proposed to USFWS that NMFS evaluate the 
petition, for the Alabama shad only, for the purpose of the 90-day 
finding and any required subsequent listing action. On May 14, 2010, we 
sent the petitioners confirmation we would be evaluating the petition 
for Alabama shad. On February 17, 2011, we published a negative 90-day 
finding in the Federal Register (76 FR 9320) stating that the petition 
did not present substantial scientific or commercial information 
indicating that the requested listing of Alabama shad may be warranted.
    On April 28, 2011, in response to the negative 90-day finding, CBD 
filed a notice of intent to sue DOC and NMFS for alleged violations of 
the ESA in making its finding. CBD filed the lawsuit in the U.S. 
District Court for the District of Columbia on January 18, 2012. On 
June 21, 2013, CBD and DOC/NMFS settled the lawsuit, and we agreed to 
reevaluate the original listing petition and publish a new 90-day 
finding. Here we reevaluate the information provided in the 2010 
petition, as well as information in our files, including some 
additional information since the 90-day finding published on February 
17, 2011.

ESA Statutory and Regulatory Provisions and Evaluation Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531 et 
seq.), requires, to the maximum extent practicable, that within 90 days 
of receipt of a petition to list a species as threatened or endangered, 
the Secretary make a finding on whether that petition presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted, and to promptly publish such 
finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find 
that substantial scientific or commercial information indicates that 
the petitioned action may be warranted (a ``positive 90-day finding''), 
we are required to promptly commence a review of the status of the 
species concerned during which we will conduct a comprehensive review 
of the best available scientific and commercial information. In such 
cases, we are to conclude the review with a finding as to whether, in 
fact, the petitioned action is warranted within 12 months of receipt of 
the petition. Because the finding at the 12-month stage is based on a 
more thorough review of the available information, as compared to the 
narrow scope of review at the 90-day stage, a ``may be warranted'' 
finding does not prejudge the outcome of the status review.
    Under the ESA, a listing determination may address a ``species,'' 
which is defined to also include subspecies and, for any vertebrate 
species, any distinct population segment (DPS) that interbreeds when 
mature (16 U.S.C. 1532(16)). A joint NOAA and USFWS policy clarifies 
the agencies' interpretation of the phrase ``distinct population 
segment'' for the purposes of listing, delisting, and reclassifying a 
species under the ESA (``DPS Policy''; 61 FR 4722; February 7, 1996). A 
species, subspecies, or DPS is ``endangered'' if it is in danger of 
extinction throughout all or a significant portion of its range, and 
``threatened'' if it is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its range 
(ESA sections 3(6) and 3(20), respectively; 16 U.S.C. 1532(6) and 
(20)). Pursuant to the ESA and our implementing regulations, we 
determine whether species are threatened or endangered because of any 
one or a combination of the five factors found in section 4(a)(1): (A) 
The present or threatened destruction, modification, or curtailment of 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) 
inadequacy of existing regulatory mechanisms; or, (E) any other natural 
or manmade factors affecting the species' existence (16 U.S.C. 
1533(a)(1), 50 CFR 424.11(c)).
    ESA-implementing regulations issued jointly by NMFS and USFWS (50 
CFR 424.14(b)) define ``substantial information'' in the context of 
reviewing a petition to list, delist, or reclassify a species as the 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted. In 
evaluating whether substantial information is contained in a petition, 
the Secretary must consider whether the petition: (1) Clearly indicates 
the administrative measure recommended and gives the scientific and any 
common name of the species involved; (2) contains detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species; (3) provides 
information regarding the status of the species over all or a 
significant portion of its range; and, (4) is accompanied by the 
appropriate supporting documentation in the form of bibliographic 
references, reprints of pertinent publications, copies of reports or 
letters from authorities, and maps (50 CFR 424.14(b)(2)).
    We evaluate the petitioner's request based upon the information in 
the petition including its references, and the information readily 
available in our files. We will accept the petitioner's sources and 
characterizations of the information presented if they appear to be 
based on accepted scientific principles, unless we have specific 
information in our files that indicates that the petition's information 
is incorrect, unreliable, obsolete, or otherwise irrelevant to the 
requested action. Information that is susceptible to more than one 
interpretation or that is contradicted by other available information 
will not be dismissed at the 90-day finding stage, so long as it is 
reliable and a reasonable person would conclude it supports the 
petitioner's assertions. In other words, conclusive information 
indicating the species may meet the ESA's requirements for listing is 
not required to make a positive 90-day finding. We will not conclude 
that a lack of specific information alone negates a positive 90-day 
finding, if a reasonable person would conclude that the unknown 
information itself suggests an extinction risk of concern for the 
species at issue.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition or information readily available in our 
files presents substantial scientific or commercial information 
indicating the subject species may be either threatened or endangered, 
as defined by the ESA. First, we evaluate whether the information 
presented in the petition, along with the information readily available 
in our files, indicates that the petitioned entity constitutes a 
``species'' eligible for listing under the ESA. Next, we evaluate 
whether the information indicates that the species at issue faces 
extinction risk that is cause for concern; this may be indicated in 
information expressly discussing the species' status and trends, or in 
information describing impacts and threats to the species. We evaluate 
any information on specific demographic factors pertinent to evaluating 
extinction risk for the species at issue (e.g., population abundance 
and

[[Page 57613]]

trends, productivity, spatial structure, age structure, sex ratio, 
diversity, current and historical range, habitat integrity or 
fragmentation), and the potential contribution of identified 
demographic risks to extinction risk for the species. We then evaluate 
the potential links between these demographic risks and the causative 
impacts and threats identified in section 4(a)(1). We do not conduct 
additional research, and we do not solicit information from parties 
outside the agency to help us in evaluating the petition.
    Court decisions clarify the appropriate scope and limitations of 
the Services' review of petitions at the 90-day finding stage, in 
making a determination whether a petitioned action ``may be'' 
warranted. As a general matter, these decisions hold that a petition 
need not establish a ``strong likelihood'' or a ``high probability'' 
that a species is either threatened or endangered to support a positive 
90-day finding.
    Information available on impacts or threats should be specific to 
the species and should reasonably suggest that one or more of these 
factors may be operative threats that act or have acted on the species 
to the point that it may warrant protection under the ESA. Broad 
statements about generalized threats to the species, or identification 
of factors that could negatively impact a species, do not constitute 
substantial information that listing may be warranted. We look for 
information indicating that not only is the particular species exposed 
to a factor, but that the species may be responding in a negative 
fashion; then we assess the potential significance of that negative 
response.
    Many petitions identify risk classifications made by other 
organizations or agencies, such as the International Union on the 
Conservation of Nature (IUCN), the American Fisheries Society (AFS), or 
NatureServe, as evidence of extinction risk for a species. Risk 
classifications by other organizations or made under other Federal or 
state statutes may be informative, but the classification alone may not 
provide the rationale for a positive 90-day finding under the ESA. For 
example, as explained by NatureServe, their assessments of a species' 
conservation status do ``not constitute a recommendation by NatureServe 
for listing under the U.S. Endangered Species Act'' because NatureServe 
assessments ``have different criteria, evidence requirements, purposes, 
and taxonomic coverage than government lists of endangered and 
threatened species, and therefore these two types of lists should not 
be expected to coincide'' (http://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a petition cites such 
classifications, we will evaluate the source information that the 
classification is based upon, in light of the standards on extinction 
risk and impacts or threats discussed above.

Alabama Shad Species Description

    The Alabama shad (Alosa alabamae) is a euryhaline (adapted to a 
wide range of salinities), anadromous species that spawns in medium to 
large flowing rivers from the Mississippi River drainage to the 
Suwannee River, Florida. Alabama shad belong to the family Clupeidae 
and are closely related to, as well as similar in appearance and life 
history to, the American shad (A. sapidissima). They also resemble the 
skipjack herring (A. chrysochloris), which occurs in the same areas as 
Alabama shad. Defining characteristics of the Alabama shad are an upper 
jaw with a distinct median notch, and the number of gill rakers (41 to 
48) on the lower limb of the anterior gill arch. Alabama shad differ 
morphologically from other Alosa species that occur in the same area by 
a lower jaw that does not protrude beyond the upper jaw, black spots 
along the length of the lower jaw, and a dorsal fin that lacks an 
elongated filament.
    Alabama shad are a schooling fish; many individuals swim at the 
same speed and in the same direction. Research in the Pascagoula River 
system indicates that Alabama shad move between different riverine 
habitats seasonally during their first year of life (age 0). In early 
summer (June to mid-July) small juveniles were found to use sandbar 
habitats, then move to open channel and steep bank habitats containing 
large woody debris in late summer and fall (Mickle, 2006). Within these 
habitat types, Alabama shad tend to select cooler water temperatures 
(Mickle, 2006). While little is known of the Alabama shad's thermal 
tolerance, alosines in general are known to be highly sensitive to 
thermal stress (McCauley and Binkowski, 1982; Beitinger et al., 2000). 
Juvenile growth rate is about 1.2 inches (30 millimeters [mm]) per 
month from July to September and then 0.4 inches (10 mm) per month 
until December. Juveniles remain in fresh water for the first 6 to 8 
months of their lives, feeding on small fishes and invertebrates (Ross, 
2001) and move into the marine environment between September and 
December (Mickle et al., 2010) when they are about 2 to 5 inches total 
length (TL; 50 to 130 mm). There are almost no data describing the 
marine life stage of Alabama shad (Mettee and O'Neil, 2003; Mickle et 
al., 2010).
    Alabama shad move back into freshwater to spawn. Males appear to 
enter the river at earlier dates and lower water temperatures than 
females (Laurence and Yerger, 1966). Arrival at upstream spawning sites 
also varies by age (Mettee and O'Neil, 2003). Adults broadcast spawn in 
the spring or early summer over coarse sand and gravel sediments with 
moderate currents when river temperatures are between 66-72[deg]F (19-
22[deg]C; Mettee and O'Neil, 2003). Adults are thought to feed on small 
fish, though they likely do not feed during the spawning run (Laurence 
and Yerger, 1967). Females become larger than males, reaching a little 
over 18 inches TL (467 mm), while males reach 16.5 inches TL (418 mm; 
Mettee and O'Neil, 2003). Age-2 and -3 adults are the most prevalent 
age class of spawning adults (Laurence and Yerger, 1967; Mettee and 
O'Neil, 2003; Ingram, 2007). Repeat spawning is common, but the 
percentage of returning spawners is highly variable among years. Annual 
fecundity ranges from approximately 16,000 to 360,000 eggs per female 
(Mettee and O'Neil, 2003; Ingram, 2007). Some natal homing tendency is 
evidenced by genetic differences among drainage basins (Bowen, 2005). 
The Alabama shad is relatively short lived, up to 6 years (Mettee and 
O'Neil, 2003).

Analysis of the Petition

    First, we evaluated whether the petition presented the information 
indicated in 50 CFR 424.14(b)(2). The petition clearly indicates the 
administrative measure recommended and gives the scientific and common 
names of the taxonomically valid species involved. It contains a 
narrative justification for the recommended measure, describing the 
distribution of the species, as well as the threats faced by the 
species, and it is accompanied by supporting documentation in the form 
of bibliographic references. The petition presented very limited 
information to support the petitioned action. However, we have 
additional information in our files that was not provided in the 
petition to list the Alabama shad, including the abundance, age 
structure, and genetic make-up of the Alabama shad in the Apalachicola 
River, which we discuss in more detail below. We also have additional 
information clarifying the current range of the species. As stated in 
our prior 90-day finding (February 17, 2011), we periodically review 
our Species of Concern list to evaluate whether species should be 
retained or removed from the

[[Page 57614]]

list or proposed for listing under the ESA, and we announced our intent 
to release a biological review of the species. We considered 
information in the biological review, publicly released in 2011 (Smith 
et al., 2011), to make this 90-day finding in response to the petition. 
Based on the information acquired in our files since publication of the 
prior finding, primarily the biological review by Smith et al. (2011), 
we find that substantial scientific or commercial information exists 
indicating that the petitioned action may be warranted.
    The petition states that Alabama shad have likely experienced both 
dramatic long-term population declines and short-term population 
declines of as much as 30 percent, and attributes these trends to 
habitat loss and degradation caused by impoundments, pollution, 
dredging, and other factors. The petition also states that commercial 
fishing in the Ohio River was a threat historically. While commercial 
fishing is no longer a threat, over-exploitation for recreational, 
scientific, or educational purposes, including intentional eradication 
or indirect impacts of fishing, were cited by the petition as possible 
threats to the species. The petition states that it is unknown whether 
Alabama shad are ``appropriately protected,'' noting the lack of fish 
passage at locks and dams as a primary management concern, and cites 
lack of regulatory protections associated with classifications assigned 
to Alabama shad by IUCN, NatureServe, AFS, the NMFS Species of Concern 
Program, and the states of Mississippi, Alabama, and Georgia. Other 
factors, such as pollution, sedimentation, and drought, are cited in 
the petition as contributing to declines in shad populations. Thus, the 
petition states that four of the five causal factors in section 4(a)(1) 
of the ESA are adversely affecting the continued existence of Alabama 
shad: habitat modification and degradation due to dams, dredging, and 
pollution; overutilization in historical commercial fisheries and 
continued indirect effects from fishing and eradication programs; 
inadequacy of existing regulatory mechanisms associated with current 
status classifications; and other natural or manmade factors, such as 
pollution, sedimentation, and drought.

Evaluation of Information on Species Status

    The petition states that Alabama shad has undergone a major 
geographic contraction of its historical range that originally spanned 
the Gulf Coast from the Suwannee River, Florida, to the Mississippi 
River, and westward in the Ouachita River system (Arkansas/Louisiana) 
to eastern Oklahoma. The petition states that the species' current 
range includes the Apalachicola River system below Jim Woodruff Lock 
and Dam (JWLD); the Pascagoula River drainage in Mississippi; the 
Conecuh, Choctawhatchee, and Mobile Rivers in Alabama; the Ouachita 
River, Arkansas; and, the Missouri, Gasconade, Osage, and Meramec 
Rivers, Missouri. Information in our files indicates that the current 
range of Alabama shad is larger than that described in the petition. In 
addition to the rivers listed in the petition, the current range of 
Alabama shad includes the Apalachicola, Chattahoochee, Flint (ACF) 
River system above JWLD in Florida/Georgia/Alabama, the Pea River in 
Alabama, the Pearl River in Louisiana/Mississippi, and the Little 
Missouri River in Arkansas (Smith et al., 2011).
    The petition describes Alabama shad populations as ``small'' and 
states that the species is considered ``very rare'' in large portions 
of its historical range. The petition cites a NatureServe (2008) 
estimate that 6 to 20 populations of Alabama shad remain, but neither 
the petition nor NatureServe (2008) specify the location of those 
populations, the size of the populations, or the number, locations, and 
size of historical Alabama shad populations for comparison. The 
petition includes an observation by Mettee et al. (1996) that ``there 
are only two known remaining runs of Alabama shad in the Mississippi 
River System and other spawning runs occur in the Florida Panhandle and 
southern Alabama.'' The petition also presents conclusions by Mettee 
and O'Neil (2003) that spawning populations of shad are ``relatively 
small.''
    After submission of the petition and publication of the prior 
finding, Smith et al. (2011) conducted an extensive search of 
publications, technical reports, and theses, and surveyed universities, 
state and Federal facilities, and non-profit organizations throughout 
the Alabama shad's historical range for any recent (since 2000) 
recorded captures. In some systems (e.g., Choctawhatchee River, 
Alabama; Apalachicola/Flint River System, Florida/Georgia; and 
Pascagoula/Leaf River system, Mississippi), hundreds to thousands of 
Alabama shad have been documented since 2000. Records for some systems 
(e.g., Conecuh River and Mobile Bay, Alabama; Suwannee and 
Withlacoochee Rivers, Florida; Thibodaux Weir, Louisiana; Chickasawhay 
River, Mississippi; and, Gasconade River, Missouri) documented less 
than 25 Alabama shad since 2000. In many systems (e.g., Pea River, 
Alabama/Florida; Chattahoochee River, Georgia; and, Lake Pontchartrain, 
Louisiana), Alabama shad have been recorded in those systems since 
2000, but the number of Alabama shad observed or captured was not 
provided in the records. No records of Alabama shad captures or 
observations since 2000 were found for many systems historically 
occupied by Alabama shad. It is not clear from the available 
information whether targeted studies were performed and shad were not 
present, or if the lack of Alabama shad data is due to the absence of 
studies or record-keeping in regards to the species. The NatureServe 
(2008) classification and literature cited by the petition, as well as 
the information in our files, do not present estimates for historical 
or current abundance of Alabama shad for comparison and evaluation. 
However, the low numbers of Alabama shad (less than 25) documented in 
some rivers and the lack of records of the species in some historically 
occupied rivers since 2000 (Smith et al. 2011) indicate that there may 
be cause for concern over declines in some systems currently and 
historically occupied by Alabama shad.
    The petition cites various status classifications made by the IUCN, 
NatureServe, AFS, and our Species of Concern program to support its 
assertion that Alabama shad should be listed as threatened or 
endangered under the ESA. We do not give any particular weight to 
classifications established by other scientific and conservation 
organizations, which may or may not be based on criteria that directly 
correspond to the listing standards of the ESA. However, we have 
reviewed and evaluated the underlying information used to develop the 
various classifications given to Alabama shad by entities listed in the 
petition.
    The petition cites the IUCN's 2010 classification of Alabama shad 
as ``endangered.'' We found the IUCN updated its classification of 
Alabama shad in 2012, relying on a more current assessment of the 
species (citing NatureServe as the ``assessor''), and reclassified the 
status from ``endangered'' to ``data deficient.'' The IUCN provided 
justification for their data deficient classification, stating there 
have been declines in the populations and geographic range of the 
species but ``there has been no quantification of the rate of range or 
population decline'' of the Alabama shad. NatureServe (2008) assigned 
Alabama shad a rank of ``G3'' or ``vulnerable'' given the species' 
limited distribution in Gulf of Mexico tributaries, reduction in 
population due

[[Page 57615]]

to the effects of dams in blocking spawning migration, and degradation 
of habitat by siltation and pollutants. NatureServe (2008) described 
the Alabama shad's short-term trend as ``relatively stable to decline 
of 30 percent'' and the long-term trend as ``relatively stable to 
decline of 70 percent''. The petition also included the 2008 AFS 
determination that Alabama shad were ``threatened'' (in imminent danger 
of becoming endangered throughout all or a significant portion of its 
range) based on (1) present or threatened destruction, modification, or 
reduction of habitat or range, and (2) over-exploitation for 
commercial, recreational, scientific, or educational purposes. The AFS 
designation did not provide any information on historical or current 
numbers, populations, or rates of decline, and also relies on 
NatureServe's (2008) ranking of ``G3/vulnerable'' (discussed in the 
previous section of this finding).
    The petitioner also cited our classification of the Alabama shad as 
a NMFS species of concern as reason to support an ESA listing. As 
previously noted, Alabama shad became a NMFS Species of Concern in 2004 
when it was reclassified from a Candidate Species. We considered the 
entirety of the scientific and commercial information available to us 
on the apparent population decline of Alabama shad and the threats that 
contributed to the apparent decline when we classified Alabama shad as 
a Species of Concern in 2004. By definition, a Species of Concern is 
one for which we have some concerns regarding status and threats, but 
for which insufficient information was available at the time of 
classification to indicate a need to list the species under the ESA. 
Our own Species of Concern designation does not include a specific 
analysis of extinction risk for Alabama shad, or an analysis of 
population size or trends, or other information directly addressing 
whether the species faces extinction risk that is cause for concern and 
may warrant listing.
    In addition to these classifications by national and international 
organizations, the petition provided information that Alabama shad is 
considered by the states of Mississippi, Alabama, and Georgia to be of 
high conservation concern. Mississippi, Alabama, and Georgia did not 
provide population abundance estimates, population trends, or 
additional information supporting their classifications.
    Information currently available in our files provides information 
on the abundance and increase of the species in one river system, as 
well as insight into the species' resilience. Abundance of Alabama shad 
varied greatly between 2005-2007 (~2,000-26,000) as described by Ely et 
al. (2008) and was lower than expected based on a comparison with 
American shad in the Savannah and Altamaha Rivers (100,000-200,000). 
Ingram (2007) compared growth and age class structure of Alabama shad 
in the Apalachicola River in 2005-2006 with results from studies 
conducted in 1967 and 1972 and indicated that the current population 
structure, with fewer age classes and an earlier age at maturity, was 
indicative of a declining population. Ingram (2007) also noted that 
when a population includes only a few year classes, abundance can 
rebound quickly when environmental conditions change (Rutherford et 
al., 1992). Fluctuations in abundance of American shad were noted by 
Ely et al. (2008) and are well documented by others (Hattala et al., 
1996; Atlantic States Marine Fisheries Commission, 1998; Moring, 2005). 
Ely et al. (2008) concluded that commonly observed variations in year-
class strength suggest Alabama shad are resilient and capable of 
quickly increasing in number under favorable conditions.

Evaluation of Information on Threats to the Species

    The bulk of the information in the petition is an overview of many 
of the past and ongoing categories of threats that are believed to have 
contributed collectively to the decline of 404 aquatic, riparian, and 
wetland species in the Southeast. The majority of the information on 
threats in the petition is either general for all 404 species with no 
clear linkage to Alabama shad or is specifically linked to other 
species or to habitats not occupied by Alabama shad. The petition 
states that four of the five causal factors in section 4(a)(1) of the 
ESA are adversely affecting the continued existence of Alabama shad: 
(A) Present or threatened destruction, modification, or curtailment of 
its habitat or range; (B) overutilization for the commercial, 
recreational, scientific, or educational purposes; (C) inadequacy of 
regulatory mechanisms; and, (D) other natural or manmade factors.
    The petition states that Alabama shad have been cut off from many 
historical spawning areas by dams and locks, citing Robison and 
Buchanan (1988), Etnier (1997), and Mirarchi et al. (2004). Dams can 
block access to upriver spawning sites for anadromous species, as well 
as alter downstream flow regimes. Dams are present on some rivers that 
are occupied by Alabama shad. The petition did not provide substantial 
information quantifying the extent to which shad populations have been 
reduced by the presence of dams, and we have no such information in our 
files. However, there is some information in our files suggesting that 
dams may be resulting in reduced populations in some rivers.
    Beginning in 2005, a cooperative study supported by multiple local, 
academic, state, and Federal conservation partners, including NMFS, 
started tracking movements of Alabama shad and other fish species in 
the Apalachicola River (USFWS, 2008; Ely et al., 2008; TNC, 2010). The 
study also evaluated the feasibility of moving fish upriver of JWLD, 
located at the confluence of the Chattahoochee and Flint Rivers, which 
presents the first major obstacle on the Apalachicola River to the 
upstream migration of Alabama shad to their historical spawning 
grounds. The results of this collaborative study showed that the 
existing lock at JWLD could be operated to allow fish to move upriver 
through the lock where they could access spawning habitat.
    Based on these results, the U.S. Army Corps of Engineers (USACE) 
began ``conservation locking'' (operating the lock at JWLD to provide 
Alabama shad access to upstream habitat) in 2008. The locks are 
operated twice a day to correspond with the natural movement patterns 
of migrating fish during spawning seasons (February through May) each 
year. Since conservation locking began, Alabama shad have been found to 
pass upstream of the lock with 45 percent efficiency (Young, 2010) and, 
as a result, can access over 150 miles (241.4 km) of historical habitat 
and spawning areas in the ACF River System for the first time in more 
than 50 years (TNC, 2010). Young (2010) estimated the number of Alabama 
shad in the ACF River System at 98,469 in 2010, almost four times 
larger than the previous high estimate of 25,935 in 2005 (Ely et al., 
2008). The number of Alabama shad in the Apalachicola River in 2011 was 
estimated at 26,193 and was lower than the 2010 value but slightly 
higher than the maximum abundance in the 2005-2009 period (Young, 
2011). The major difference between the 2010 and 2011 Alabama shad 
spawning runs was a lack of age-1 males in 2011 (Young, 2011). Notably, 
the 2011 run was dominated by older, larger adult females in excellent 
condition, a potential indicator of strong year classes in the future 
(Young, 2011). Sammons and Young (2012) provided the most recent report 
from the Apalachicola River, estimating the number of Alabama shad at 
122,578 in 2012 (the largest since 2005). This

[[Page 57616]]

spawning run was composed of many males presumed to be from the 2010 
year class, as well as numerous older, larger adults of both sexes 
(presumably recruits from 2009). Sammons and Young (2012) noted that a 
year of higher than average flows in 2009 may have contributed to 
spawning and recruitment successes in 2010 and 2012. Sammons and Young 
(2012) also noted that alosine population sizes commonly fluctuate 
widely.
    Smith et al. (2011) conducted a population viability analysis (PVA) 
of Alabama shad in the ACF River System. A PVA is a modeling tool that 
estimates the future size and risk of extinction for populations of 
organisms. Smith et al. (2011) estimated returning female abundance in 
20 years relative to current numbers and predicted that the ACF 
population is increasing and under present conditions could reach 
carrying capacity in about 40 years. The PVA indicated significant 
declines in abundance only in modeled scenarios with the highest levels 
and frequencies of mortality (Smith et al., 2011).
    We provided funds to USFWS to complete a genetic study on Alabama 
shad in the Apalachicola River, Florida (Moyer, 2012). The study 
assessed genetic parameters that may influence its extinction risk. 
Moyer (2012) determined that there is no observable genetic structure 
in Alabama shad in the Apalachicola River and that the species exhibits 
low amounts of genetic diversity.
    The conservation locking program in the ACF River System and PVA on 
the ACF River Alabama shad demonstrated that the species is resilient 
and is responding positively to increased spawning habitat access. 
However, this may not be the case in other river systems historically 
occupied by Alabama shad. The petition relates the construction of dams 
built on the lower Tombigbee and Alabama Rivers in the 1960s to ``steep 
declines in shad populations'' in the Mobile River Basin (Barkuloo et 
al., 1993; Mettee and O'Neil, 2003; NatureServe, 2008). While there is 
no information in the petition or our files quantifying declines in 
Alabama shad populations due to dams, Smith et al. (2011) found no 
records of Alabama shad in the Tombigbee and Alabama Rivers (the 
examples presented in the petition) since 2000. Therefore, the 
information presented in the petition and in our files indicates that 
Alabama shad populations in some rivers may have declined and causes us 
to be concerned that habitat modification may pose a significant risk 
to Alabama shad.
    In addition to the information on the present and threatened 
destruction, modification, or curtailment of habitat or range, the 
petitioner provided information regarding the inadequacy of regulatory 
mechanisms and other natural or manmade factors that may cause a 
significant threat to the Alabama shad. However, because we have 
determined that the information available on the present and threatened 
destruction, modification, or curtailment of habitat or range may be a 
cause for concern for Alabama shad, we do not find a need to conduct a 
detailed analysis of the other submitted information here.

Petition Finding

    We have determined after reviewing information readily available in 
our files that there is substantial information indicating that the 
petitioned action may be warranted. Under section 4(b)(3)(A) of the 
ESA, an affirmative 90-day finding requires that we promptly commence a 
status review of the petitioned species (16 U.S.C. 1533 (b)(3)(A)).

Information Solicited

    To ensure that the status review is based on the best available 
scientific and commercial data, we are soliciting information on the 
status of the Alabama shad throughout its range including: (1) 
Historical and current distribution and abundance, including data 
addressing presence or absence at a riverine scale; (2) historical and 
current population sizes and trends; (3) biological information (life 
history, genetics, population connectivity, etc.); (4) landings and 
trade data; (5) management, regulatory, and enforcement information; 
(6) any current or planned activities that may adversely impact the 
species; and (7) ongoing or planned efforts to protect and restore the 
species and their habitats. We request that all information be 
accompanied by: (1) Supporting documentation such as maps, 
bibliographic references, or reprints of pertinent publications; and 
(2) the submitter's name, address, and any association, institution, or 
business that the person represents. Section 4(b)(1)(A) of the ESA and 
NMFS' implementing regulations (50 CFR 424.11(b)) require that a 
listing determination be based solely on the best scientific and 
commercial data, without consideration of possible economic or other 
impacts of the determination. During the 60-day public comment period 
we are seeking information related only to the status of the Alabama 
shad throughout its range.

Peer Review

    On July 1, 1994, NMFS and the U.S. Fish and Wildlife Service 
published a series of policies regarding listings under the ESA, 
including a policy for peer review of scientific data (59 FR 34270). 
The intent of the peer review policy is to ensure listings are based on 
the best scientific and commercial data available. The Office of 
Management and Budget issued its Final Information Quality Bulletin for 
Peer Review on December 16, 2004. The Bulletin went into effect June 
16, 2005, and generally requires that all ``influential scientific 
information'' and ``highly influential scientific information'' 
disseminated on or after that date be peer reviewed. Because the 
information used to evaluate this petition may be considered 
``influential scientific information,'' we solicit the names of 
recognized experts in the field that could take part in the peer review 
process for this status review (see ADDRESSES). Independent peer 
reviewers will be selected from the academic and scientific community, 
tribal and other Native American groups, Federal and state agencies, 
the private sector, and public interest groups.

References Cited

    A complete list of all references is available upon request from 
the Protected Resources Division of the NMFS Southeast Regional Office 
(see ADDRESSES).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: September 13, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2013-22869 Filed 9-18-13; 8:45 am]
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