[Federal Register Volume 79, Number 105 (Monday, June 2, 2014)]
[Rules and Regulations]
[Pages 31222-31227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-12626]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 120705210-4423-03]
RIN 0648-XC101


Endangered and Threatened Wildlife and Plants; Final Rule To List 
Five Species of Sturgeons as Endangered Under the Endangered Species 
Act

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

ACTION: Final rule.

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SUMMARY: We, NMFS, issue a final determination to list five species of 
foreign sturgeon as endangered under the Endangered Species Act (ESA). 
We updated the status reviews of the species to include additional 
information regarding the species and conservation efforts being made 
to protect them. We considered governmental and public comments on the 
proposed listing rule. We have made our determination that Acipenser 
naccarii (Adriatic sturgeon), and A. sturio (European sturgeon) in 
Western Europe, A. sinensis (Chinese sturgeon) in the Yangtze River 
basin, and A. mikadoi (Sakhalin sturgeon) and Huso dauricus (Kaluga 
sturgeon) in the Amur River Basin/Sea of Japan/Sea of Okhotsk region, 
should be listed as endangered species. We will not designate critical 
habitat because the geographical areas occupied by these species are 
entirely outside U.S. jurisdiction, and we have not identified any 
unoccupied areas in the U.S. that are currently essential to the 
conservation of any of these species.

DATES: This final rule is effective July 2, 2014.

ADDRESSES: Chief, Endangered Species Division, NMFS Office of Protected 
Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910, 
USA.

FOR FURTHER INFORMATION CONTACT: Dr. Dwayne Meadows, NMFS, Office of 
Protected Resources, (301) 427-8403.

SUPPLEMENTARY INFORMATION: 

Background

    On March 12, 2012, we received a petition from the WildEarth 
Guardians and Friends of Animals to list 15 species of sturgeon 
(Acipenser naccarii--Adriatic sturgeon; A. sturio--European sturgeon; 
A. gueldenstaedtii--Russian sturgeon; A. nudiventris--ship sturgeon/
bastard sturgeon/fringebarbel sturgeon/spiny sturgeon/thorn sturgeon; 
A. persicus--Persian sturgeon; A. stellatus--stellate sturgeon/star 
sturgeon; A. baerii--Siberian sturgeon; A. dabryanus--Yangtze sturgeon/
Dabry's sturgeon/river sturgeon; A. sinensis--Chinese sturgeon; A. 
mikadoi--Sakhalin sturgeon; A. schrenckii--Amur sturgeon; Huso 
dauricus--Kaluga sturgeon; Pseudoscaphirhynchus fedtschenkoi--Syr-darya 
shovelnose sturgeon/Syr darya sturgeon; P. hermanni--dwarf sturgeon/
Little Amu-darya shovelnose/little shovelnose sturgeon/Small Amu-dar 
shovelnose sturgeon; P. kaufmanni--false shovelnose sturgeon/Amu darya 
shovelnose sturgeon/Amu darya sturgeon/big Amu darya shovelnose/large 
Amu-dar shovelnose sturgeon/shovelfish) as threatened or endangered 
under the Endangered Species Act (ESA). As a result of subsequent 
discussions between us and the U.S. Fish and Wildlife Service (FWS), we 
determined that 10 of the 15 petitioned sturgeon species are not marine 
or anadromous. Therefore FWS is conducting the required listing 
analyses for those 10 species and NMFS is making the determinations for 
the five anadromous species, Acipenser naccarii, A. sturio, A. 
sinensis, A. mikadoi and Huso dauricus. On August 27, 2012, we 
published a 90-day finding in the Federal Register (77 FR 51767) that 
found that listing these five species under the ESA may be warranted, 
and announced the initiation of status reviews for each species. Based 
on information we gathered during the status review, we proposed 
listing all five species as endangered on October 31, 2013 (78 FR 
65249).
    We are responsible for determining whether species are threatened 
or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this 
determination, we first consider whether a group of organisms 
constitutes a ``species'' under the ESA, then whether the status of the 
species qualifies it for listing as either threatened or endangered. 
Section 3 of the ESA defines a ``species'' as ``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.'' 
Section 3 of the ESA further 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.'' We interpret an ``endangered species'' to be one that is 
presently in danger of extinction. A ``threatened species,'' on the 
other hand, is not presently in danger of extinction, but is likely to 
become so in the foreseeable future (that is, at a later time). In 
other words, the primary statutory difference between a threatened and 
endangered species is the timing of when a species may be in danger of 
extinction, either presently (endangered) or in the foreseeable future 
(threatened). Section 4(a)(1) of the ESA requires us to determine 
whether any species is endangered or threatened due to any one or a 
combination of the following five threat 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. We are required to make listing 
determinations based solely on the best scientific and commercial data 
available after conducting a review of the species' status and after 
taking into account efforts being made by any state or foreign nation 
to protect the species.
    In making listing determinations for these five species, we first 
determined whether each petitioned species meets the ESA definition of 
a ``species.'' Next, using the best available information gathered 
during the status reviews, we completed an extinction risk assessment. 
We then assessed the threats affecting the status of each species using 
the five listing factors identified in section 4(a)(1) of the ESA.
    Once we determined the threats, we assessed efforts being made to 
protect the species to determine if these conservation efforts are 
adequate to mitigate the existing threats. We evaluate conservation 
efforts using the

[[Page 31223]]

criteria outlined in the joint NMFS/FWS Policy for Evaluating 
Conservation Efforts (PECE) (68 FR 15100; March 28, 2003) to determine 
their certainty of implementation and effectiveness for future or not 
yet fully implemented conservation efforts. Finally, we re-assessed the 
extinction risk of each species in light of the existing conservation 
efforts.

Public Comment

    We note that at least one commenter provided information about the 
status review as well as proposed listing. Where that information was 
relevant to the proposed listing, we considered it and discussed it in 
this final rule. If it was relevant to the status review alone, we 
addressed that by preparing an updated status review.
    In the solicitation for information from the public on the proposed 
rule we received information and/or comments from five parties. We also 
received comments from seven foreign countries as part of our foreign 
consultation solicitation; none took a position on whether the species 
should be listed. A scientific reviewer provided a citation to recent 
work on genetic diversity of paleontological specimens of European 
sturgeon and unpublished recent sightings of juvenile European sturgeon 
in nearshore waters near the mouth of the Gironde River in France. We 
incorporated that information in the updated status review and 
considered it in our final listing determination.

Stocking

    Two commenters provided views on the role of stocking and releasing 
animals cultured in captivity to assist in conservation efforts. The 
World Sturgeon Conservation Society (WSCS) argued that listing may 
adversely impact stocking, which they argue provides conservation 
benefits by increasing population size of endangered species. The 
petitioner argued and provided literature references that stocking 
programs may create unsustainable demand for founder stocks from the 
wild that ultimately hurt conservation efforts. None of the literature 
provided addressed sturgeon stocking programs. While we agree that 
stocking fish into the wild can be an effective conservation strategy 
when risks such as genetic integrity and diversity, disease, and 
effects on source populations are considered, we received no additional 
specific information on the threats or benefits of stocking to any of 
the proposed species that would alter our status assessments, and make 
no changes in the listing determination.

International Trade

    Two commenters provided information on the effect of commercial 
trade in the proposed species on their conservation. The WSCS suggested 
commercial use of these species could help fund conservation efforts to 
improve the status of these species. WSCS argued that an endangered 
listing would harm caviar trade. They asserted that caviar trade from 
aquacultured sources reduces pressure on wild sources and reduces 
prices for wild-sourced product. In contrast, the petitioner provided 
comments and references arguing that legal commercial trade would hurt 
the conservation status of these species by providing cover for illegal 
trade, by confusing consumers ``by sending a signal that these species 
are no longer endangered, or it may reduce the stigma'' associated with 
these species, and/or by increasing demand for wild animals. We believe 
the effect of trade on conservation of endangered species is a complex 
issue, as the few studies on other species provide conflicting results. 
We are not aware of any studies documenting whether trade in sturgeon 
furthers conservation efforts. Neither commenter, nor any other 
commenter, provided any new data on trade in any of the proposed 
species that we had not already considered. In addition, the commenter 
provided no information regarding conservation efforts that we could 
evaluate under PECE. We note that we are required to make ESA listing 
decisions based on the best available scientific and commercial data. 
While under PECE we consider whether other types of conservation 
approaches or actions render ESA listing unnecessary, once we have 
determined to list a species based on consideration of the statutory 
criteria we consider other conservation actions in later actions, such 
as during the recovery planning process. We make no change in the 
listing determination as a result of these comments.

Other Comments

    The WSCS expressed concern that a regulatory ESA listing would be 
ineffective as the United States has little jurisdiction or ability to 
effect conservation in the range states of the proposed species and 
would be better able to assist conservation efforts voluntarily and 
that listing was inappropriate. We agree that the United States has 
limited jurisdiction in the range states of the proposed species, but 
note that the ability of the United States to take action subsequent to 
listing is not one of the statutory criteria for listing. As noted 
above, the ESA only allows us to consider the best available scientific 
and commercial information in making listing decisions. Nevertheless, 
we intend to engage in voluntary efforts to assist range states in the 
conservation of these species.
    The Florida Sturgeon Production Working Group, an aquaculture 
advisory body to the state of Florida, noted that Florida sturgeon 
farmers are currently growing Atlantic sturgeon (Acipenser oxyrhynchus 
oxyrhynchus), which are closely related to the proposed European 
sturgeon (A. sturio). They are concerned that there might be future 
taxonomic changes affecting the definition and taxonomy of these two 
species. They requested we provide ``a means to distinguish'' the two 
species in the final rule. We appreciate the concerns of the working 
group. However, it is not possible for us to anticipate potential 
taxonomic changes at this time. We note that U.S. DPSs of Atlantic 
sturgeon are currently listed under the ESA as either endangered or 
threatened. Should new scientific agreement changing the taxonomy of 
either of these species occur, we would likely need to clarify or 
modify our sturgeon listings based on the best available scientific 
information at that time. In order to do so, we would need to comply 
with applicable procedural requirements of the Endangered Species Act.
    The petitioner also provided comments relative to the legal status 
and trade of animals in captivity prior to listing. We agree there was 
some confusing language in the proposed rule regarding actions that 
would not be considered prohibited take under section 9 with regard to 
commercial trade where we also discussed other ESA authorities. Section 
9(b)(1) of the ESA says that captive specimens of listed species that 
were in captivity at the time of listing are not subject to the 
requirements of Section 9(a)(1)(A) or 9(a)(1)(G) of the Act (that 
prohibit import/export and require adherence to any additional 
protective regulations promulgated for the species) provided that such 
holding and any subsequent holding or use of the captive fish is not in 
the course of commercial activity. So that this is clear, in this final 
rule we did not include the sentence, ``Any interstate and foreign 
commerce trade of sturgeon already in captivity.'' in the section 
identifying activities that are not likely to result in a violation of 
section 9.

Status Reviews

    In order prepare the status reviews, we compiled information on the 
species

[[Page 31224]]

biology, ecology, life history, threats, and conservation status from 
information contained in the petition, our files, a comprehensive 
literature search, and consultation with known experts. We updated the 
status reviews based on information submitted by peer reviewers, 
foreign governments, and the public. This information is available in 
the updated status review report (Meadows and Coll, 2014) available on 
our Web site (http://www.nmfs.noaa.gov/pr).

Sturgeon General Species Description

    Sturgeons are bony fishes most closely related to paddlefishes and 
bichirs. They all have cartilaginous skeletons, heterocercal caudal 
fins (upper lobe is larger than the lower lobe), one spiracle 
respiratory opening (like sharks), and unique ganoid scales. In 
sturgeons, these ganoid scales remain only as the five rows of bony 
``scutes'' on the sides of the body. They all have a bottom-oriented 
mouth with four barbels (sensory ``whiskers''), a flat snout and strong 
rounded body. Sturgeons have an electrosensory system similar to that 
in sharks, which they use for feeding. All of these species seasonally 
migrate into rivers to spawn. They are mostly bottom-oriented feeders 
that are normally generalist predators on benthic prey, including 
various invertebrates and fishes, except H. dauricus, which is more 
piscivorous. The proposed rule (78 FR 65249, October 31, 2013) 
summarizes general background information on the five species' natural 
history, range, reproduction, population structure, distribution and 
abundance; none of which has changed since the proposed rule. All of 
that information is incorporated herein by reference.

Species Determinations

    Based on the best available scientific and commercial information 
described above and in the updated status review report (Meadows and 
Coll, 2014), we have determined that Acipenser naccarii, A. sturio, A. 
sinensis, A. mikadoi and Huso dauricus are taxonomically-distinct 
species and therefore meet the definition of ``species'' pursuant to 
section 3 of the ESA and are eligible for listing under the ESA.

Extinction Risk

    None of the information we received from peer reviewers and public 
comment affected the status of any of the five sturgeons, so our 
extinction risk evaluation remains the same as in the original status 
review report (Meadows and Coll, 2013) and proposed rule (78 FR 65249, 
October 31, 2013). The extinction risk analysis team found all five 
species to be at high risk of extinction in the present, with median 
votes for each team member at or above 80 percent probability of being 
currently in danger of extinction for each species. After reviewing the 
best available scientific data and the extinction risk evaluation on 
the five species of sturgeon, we continue to concur with the findings 
of the extinction risk analysis team and conclude that the risk of 
extinction for all five species of sturgeon is currently high.

Summary of Factors Affecting the Five Species of Sturgeon

    Next we consider whether any one or a combination of the five 
threat factors specified in section 4(a)(1) of the ESA are contributing 
to the extinction risk of these five sturgeons. Since the proposed rule 
was published, we have received no new information relevant to four of 
the section 4(a)(1) factors: Of destruction or modification of habitat, 
overutilization, disease or other factor through the public comment 
process or our own research for any of the five species. We incorporate 
the discussion of these four factors from the proposed rule (78 FR 
65249, October 31, 2013) by reference herein.
    We did receive additional information regarding foreign regulatory 
measures related to A. naccarii and A. sturio from Bosnia and 
Herzegovina, Greece, and the United Kingdom. Acipenser naccarii is 
listed in Bosnia and Herzegovina as endangered under the Law on Nature 
protection which is a ``red list'' of species. In Greece it is 
protected under Presidential Decree 67/1981 and Joint Ministerial 
Decision No. 33318/3028/11-12-1998 (B' 1289). The current range of this 
species does not include these countries and the protections have not 
prevented its decline, so this additional information does not affect 
our conclusion in the proposed rule regarding the adequacy of 
regulatory measures for this species.
    The same protective laws in Bosnia and Herzegovina and Greece also 
apply to A. sturio. In addition, the United Kingdom provided 
information on its regulatory measures. They have implemented the 
European Council Directive on the Conservation of Natural Habitats and 
of Wild Fauna and Flora into national law under the Conservation of 
Habitats and Species Regulation (2010). The species is also protected 
in the United Kingdom under Schedule 5 of the Wildlife and Countryside 
Act 1981 (as amended) as well as being listed separately under two 
pieces of legislation at a country level. In England it is listed under 
the Natural Environment and Rural Communities Act (2006) (section 41) 
as a species ``of principal importance for the purpose of conserving 
biodiversity'', whilst in Scotland it is listed under the Scottish 
Biodiversity List (2005), which is a list of flora, fauna and habitats 
considered to be of principal importance for biodiversity conservation. 
The current range of this species does not include Bosnia and 
Herzegovina and Greece, and the species is only irregularly and 
anecdotally seen in the United Kingdom (Sheena Hynd, personal 
communication) and the protections have not prevented its decline, so 
this additional information does not affect our conclusion in the 
proposed rule regarding the adequacy of regulatory measures for this 
species.

Overall Risk Summary

    After considering the status, threats and extinction risks for each 
of the five species of sturgeon, we have determined that Acipenser 
naccarii, A. sturio, A. sinensis, A. mikadoi and Huso dauricus are in 
danger of extinction throughout all of their ranges, largely due to (1) 
present or threatened destruction, modification or curtailment of 
habitat, (2) overutilization for commercial, recreational, scientific, 
or educational purposes, and (3) inadequacy of existing regulatory 
mechanisms.

Protective Efforts

    Section 4(b)(1)(A) of the ESA requires the Secretary, when making a 
listing determination for a species, to take into consideration those 
efforts, if any, being made by any State or foreign nation to protect 
the species. In judging the efficacy of not yet implemented efforts, or 
those existing protective efforts that are not yet fully effective, we 
rely on the Services' joint ``Policy for Evaluation of Conservation 
Efforts When Making Listing Decisions'' (``PECE''; 68 FR 15100; March 
28, 2003). The PECE policy is designed to ensure consistent and 
adequate evaluation of whether any conservation efforts that have been 
recently adopted or implemented, but not yet proven to be successful, 
will result in recovering the species to the point at which listing is 
not warranted or contribute to forming the basis for listing a species 
as threatened rather than endangered. The PECE policy is expected to 
facilitate the development of conservation efforts that sufficiently 
improve a species' status so as to make listing the species as 
threatened or endangered unnecessary.
    The PECE policy establishes two basic criteria to use in evaluating 
efforts

[[Page 31225]]

identified in conservations plans, conservation agreements, management 
plans or similar documents: (1) The certainty that the conservation 
efforts will be implemented; and (2) the certainty that the efforts 
will be effective. We evaluated conservation efforts we are aware of to 
protect and recover the five sturgeon species that are either underway 
but not yet fully implemented, or are only planned. We sought 
additional information on other conservation efforts in our public 
comment process at the proposed rule stage, but received no information 
on additional projects. See the proposed rule (78 FR 65249, October 31, 
2013) to review the conservation efforts we are aware of and considered 
in this listing determination. We note here our response above to the 
contrasting public comments either supporting or highlighting the risks 
of stocking efforts. We have no evidence that specific stocking efforts 
are harming the five sturgeon species, or conversely, that they met the 
PECE policy criteria of certainty of implementation or effectiveness to 
be considered a factor to mitigate extinction risk. Therefore, we 
conclude that the identified conservation efforts do not alter the 
extinction risk assessments for any of the five sturgeon species.

Final Determination

    Section 4(b)(1) of the ESA requires that we make listing 
determinations based solely on the best scientific and commercial data 
available after conducting a review of the status of the species and 
taking into account those efforts, if any, being made by any state or 
foreign nation, or political subdivisions thereof, to protect and 
conserve the species. We have reviewed the best available scientific 
and commercial information, including the petition, the information in 
the report of the review of the status of the five species of sturgeon, 
public comment, and the comments of peer reviewers. We are responsible 
for determining whether Acipenser naccarii (Adriatic sturgeon), A. 
sturio (European sturgeon), A. sinensis (Chinese sturgeon), A. mikadoi 
(Sakhalin sturgeon) and Huso dauricus (Kaluga sturgeon) are threatened 
or endangered under the ESA (16 U.S.C. 1531 et seq.). Accordingly, we 
have followed a stepwise approach as outlined above in making this 
listing determination for these five species of sturgeon. We have 
determined that Acipenser naccarii (Adriatic sturgeon), A. sturio 
(European sturgeon), A. sinensis (Chinese sturgeon), A. mikadoi 
(Sakhalin sturgeon) and Huso dauricus (Kaluga sturgeon) constitute 
species as defined by the ESA.
    Based on the information presented, we find that all five species 
of sturgeon are in danger of extinction throughout all of their ranges. 
We assessed the ESA section 4(a)(1) factors and conclude the Adriatic, 
European, Chinese, Sakhalin and Kaluga sturgeon all face ongoing 
threats from habitat alteration, overutilization for commercial and 
recreational purposes, and the inadequacy of existing regulatory 
mechanisms throughout their ranges. Acipenser sturio also face high 
risks from its life history and published predictions of the effects of 
climate change (Lassalle et al., 2011). All of the threats attributed 
to the species' decline are ongoing except the largely historical 
threat from directed fisheries. After considering efforts being made to 
protect these sturgeon, we could not conclude that the proposed 
conservation efforts would alter the extinction risk for any of these 
five species. Therefore, we are listing each of these five species as 
endangered.

Effects of Listing

    Conservation measures provided for species listed as endangered 
under the ESA include recovery actions (16 U.S.C. 1533(f)), concurrent 
designation of critical habitat if prudent and determinable (16 U.S.C. 
1533(a)(3)(A)); Federal agency requirements to consult with NMFS under 
Section 7 of the ESA to ensure their actions do not jeopardize the 
species or result in adverse modification or destruction of critical 
habitat should it be designated (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, 
foreign entities, private groups, and individuals. The main effects of 
this proposed listing are prohibitions on take, including export and 
import.

Identifying Section 7 Consultation Requirements

    Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS 
regulations require Federal agencies to consult with us to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of listed species or destroy or 
adversely modify critical habitat. It is possible that the listing of 
the five species of sturgeon under the ESA may create a minor increase 
in the number of section 7 consultations, though consultations are 
likely to be rare given that these species mostly occur in foreign 
territorial waters.

Critical Habitat

    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 
1532(5)) as: (1) The specific areas within the geographical area 
occupied by a species, at the time it is listed in accordance with the 
ESA, on which are found those physical or biological features (a) 
essential to the conservation of the species and (b) that may require 
special management considerations or protection; and (2) specific areas 
outside the geographical area occupied by a species at the time it is 
listed upon a determination that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures needed to bring the species to the point at 
which listing under the ESA is no longer necessary. Section 4(a)(3)(A) 
of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent 
prudent and determinable, critical habitat be designated concurrently 
with the listing of a species. However, critical habitat shall not be 
designated in foreign countries or other areas outside U.S. 
jurisdiction (50 CFR 424.12(h)).
    The best available scientific and commercial data as discussed 
above identify the geographical areas occupied by Acipenser naccarii, 
A. sturio, A. sinensis, A. mikadoi and Huso dauricus as being entirely 
outside U.S. jurisdiction, so we cannot designate critical habitat for 
these species. We can designate critical habitat in unoccupied areas in 
the United States if the area(s) are determined by the Secretary to be 
essential for the conservation of the species. Regulations at 50 CFR 
424.12(e) specify that we shall designate as critical habitat areas 
outside the geographical range presently occupied by the species only 
when the designation limited to its present range would be inadequate 
to ensure the conservation of the species.
    The best available scientific and commercial information on these 
species does not indicate that U.S. waters provide any specific 
essential biological function for any of them. Based on the best 
available information, we have not identified unoccupied area(s) that 
are currently essential to the conservation of any of the sturgeons 
proposed for listing. Therefore, based on the available information, we 
do not intend to designate critical habitat for Acipenser naccarii, A. 
sturio, A. sinensis, A. mikadoi or Huso dauricus.

[[Page 31226]]

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

    On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that 
requires us to identify, to the maximum extent practicable at the time 
a species is listed, those activities that would or would not 
constitute a violation of section 9 of the ESA. Because we are listing 
all five sturgeons as endangered, all of the prohibitions of Section 
9(a)(1) of the ESA will apply to all five species. These include 
prohibitions against the import, export, use in foreign commerce, or 
``take'' of the species. Take is defined as ``to harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to 
engage in any such conduct.'' These prohibitions apply to all persons 
subject to the jurisdiction of the United States, including in the 
United States, its territorial sea, or on the high seas. The intent of 
this policy is to increase public awareness of the effects of this 
listing on proposed and ongoing activities within the species' range. 
Activities that we believe could result in a violation of section 9 
prohibitions of these five sturgeons include, but are not limited to, 
the following:
    (1) Take within the United States or its territorial sea, or upon 
the high seas;
    (2) Possessing, delivering, transporting, or shipping any sturgeon 
part;
    (3) Delivering, receiving, carrying, transporting, or shipping in 
interstate or foreign commerce any sturgeon or sturgeon part, in the 
course of a commercial activity;
    (4) Selling or offering for sale in interstate commerce any part, 
except antique articles at least 100 years old;
    (5) Importing or exporting sturgeon or any sturgeon part to or from 
any country;
    (6) Releasing captive sturgeon into the wild. Although sturgeon 
held non-commercially in captivity at the time of listing are exempt 
from certain prohibitions, the individual animals are considered listed 
and afforded most of the protections of the ESA, including most 
importantly, the prohibition against injuring or killing. Release of a 
captive animal has the potential to injure or kill the animal. Of an 
even greater conservation concern, the release of a captive animal has 
the potential to affect wild populations of native sturgeon through 
introduction of diseases or inappropriate genetic mixing;
    (7) Harming captive sturgeon by, among other things, injuring or 
killing a captive sturgeon, through experimental or potentially 
injurious veterinary care or conducting research or breeding activities 
on captive sturgeon, outside the bounds of normal animal husbandry 
practices. Captive breeding of sturgeon is considered experimental and 
potentially injurious. Furthermore, the production of sturgeon progeny 
has conservation implications (both positive and negative) for wild 
populations. Experimental or potentially injurious veterinary 
procedures and research or breeding activities of sturgeon may, 
depending on the circumstances, be authorized under an ESA 10(a)(1)(A) 
permit for scientific research or the enhancement of the propagation or 
survival of the species.
    Although not binding, we consider the following actions, depending 
on the circumstances, as not being prohibited by ESA Section 9:
    (1) Take of a sturgeon authorized by an ESA section 10(a)(1)(A) 
permit authorized by, and carried out in accordance with the terms and 
conditions of an ESA section 10(a)(1)(A) permit issued by NMFS for 
purposes of scientific research or the enhancement of the propagation 
or survival of the species;
    (2) Continued possession of sturgeon parts that were in possession 
at the time of listing. Such parts may be non-commercially exported or 
imported; however the importer or exporter must be able to provide 
evidence to show that the parts meet the criteria of ESA section 
9(b)(1) (i.e., held in a controlled environment at the time of listing, 
in a non-commercial activity);
    (3) Continued possession of live sturgeon that were in captivity or 
in a controlled environment (e.g., in aquaria) at the time of this 
listing, so long as the prohibitions under ESA section 9(a)(1) are not 
violated. Facilities must provide evidence that the sturgeon were in 
captivity or in a controlled environment prior to listing. We suggest 
such facilities submit information to us on the sturgeon in their 
possession (e.g., size, age, description of animals, and the source and 
date of acquisition) to establish their claim of possession (see For 
Further Information Contact); and
    (4) Provision of care for live sturgeon that were in captivity at 
the time of listing. These individuals are still protected under the 
ESA and may not be killed or injured, or otherwise harmed, and, 
therefore, must receive proper care. Normal care of captive animals 
necessarily entails handling or other manipulation of the animals, and 
we do not consider such activities to constitute take or harassment of 
the animals so long as adequate care, including veterinary care, such 
as confining, tranquilizing, or anesthetizing sturgeon when such 
practices, procedures, or provisions are not likely to result in 
injury, is provided.

Role of Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing a 
minimum peer review standard. Similarly, a joint NMFS/FWS policy (59 FR 
34270; July 1, 1994) requires us to solicit independent expert review 
from qualified specialists, concurrent with the public comment period. 
The intent of the peer review policy is to ensure that listings are 
based on the best scientific and commercial data available. We 
solicited peer review comments on the status review report and the 
scientific or commercial data or assumptions related to the information 
considered for listing from 12 outside scientists and two NMFS 
scientists familiar with sturgeons. After publication of the proposed 
rule and status report, we received additional comments from one 
scientist. We incorporated these additional comments into the updated 
status review report and this final rule. We conclude that these 
experts' reviews satisfy the requirements for ``adequate [prior] peer 
review'' contained in the Bulletin (sec. II.2.) as well as the joint 
policy.

References

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

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 final rule is exempt from review under

[[Page 31227]]

Executive Order 12866. This final rule does not contain a collection-
of-information requirement for the purposes of the Paperwork Reduction 
Act.

Executive Order 13132, Federalism

    In accordance with E.O. 13132, we determined that this final rule 
does not have significant Federalism effects and that a Federalism 
assessment is not required.

List of Subjects in 50 CFR Part 224

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

    Dated: May 23, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 224 is amended 
as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 224 continues to read as follows:

    Authority:  16 U.S.C. 1531-1543 and 16 U.S.C 1361 et seq.



0
2. In Sec.  224.101, paragraph (h), add new entries for five species 
under the ``Fishes'' section in alphabetical order as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (h) The endangered species under the jurisdiction of the Secretary 
of Commerce are:

----------------------------------------------------------------------------------------------------------------
                            Species \1\
--------------------------------------------------------------------  Citation(s) for     Critical
                                                    Description of        listing         habitat     ESA Rules
          Common name            Scientific name     listed entity    determination(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
            Fishes
 
                                                  * * * * * * *
Sturgeon, Adriatic............  Acipenser          Entire species..  [Insert Federal             NA           NA
                                 naccarii.                            Register page
                                                                      number where the
                                                                      document
                                                                      begins], June 2,
                                                                      2014.
 
                                                  * * * * * * *
Sturgeon, Chinese.............  Acipenser          Entire species..  [Insert Federal             NA           NA
                                 sinensis.                            Register page
                                                                      number where the
                                                                      document
                                                                      begins], June 2,
                                                                      2014.
Sturgeon, European............  Acipenser sturio.  Entire species..  [Insert Federal             NA           NA
                                                                      Register page
                                                                      number where the
                                                                      document
                                                                      begins], June 2,
                                                                      2014.
Sturgeon, Kaluga..............  Huso dauricus....  Entire species..  [Insert Federal             NA           NA
                                                                      Register page
                                                                      number where the
                                                                      document
                                                                      begins], June 2,
                                                                      2014.
Sturgeon, Sakhalin............  Acipenser mikadoi  Entire species..  [Insert Federal             NA           NA
                                                                      Register page
                                                                      number where the
                                                                      document
                                                                      begins], June 2,
                                                                      2014.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\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. 2014-12626 Filed 5-30-14; 8:45 am]
BILLING CODE 3510-22-P