[Federal Register Volume 80, Number 65 (Monday, April 6, 2015)]
[Proposed Rules]
[Pages 18347-18351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-07833]



[[Page 18347]]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 150209121-5121-01]
RIN 0648-XD760


Endangered and Threatened Wildlife; Initial Finding on a Petition 
to Identify and Delist a Saint John River Distinct Population Segment 
of Shortnose Sturgeon Under the Endangered Species Act

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

ACTION: Initial petition finding; request for information.

-----------------------------------------------------------------------

SUMMARY: We (NMFS) announce an initial finding on a petition to 
identify the Saint John River population of shortnose sturgeon 
(Acipenser brevirostrum) as a distinct population segment (DPS) and 
delist this DPS from the Endangered Species Act. We have reviewed the 
petition, the references provided by the petitioner, and information 
readily available in our files, and we find that the petition presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. Therefore, we will conduct a status 
review of the shortnose sturgeon to determine if the petitioned actions 
are warranted. To ensure that our review is comprehensive, we are 
soliciting scientific and commercial information pertaining to this 
petition from any interested party.

DATES: Information and comments on the subject action must be received 
by June 5, 2015.

ADDRESSES: You may submit comments, information, or data on this 
document, identified by the code NOAA-NMFS-2015-0040, by either of the 
following methods:
     Electronic Submissions: Submit all electronic comments via 
the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0040, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Submit written comments to Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
    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 a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. We accept anonymous comments 
(enter ``N/A'' in the required fields if you wish to remain anonymous), 
although submitting comments anonymously will prevent us from 
contacting you if we have difficulty retrieving your submission.
    A copy of the petition and related materials are available upon 
request from the Director, Office of Protected Resources, 1315 East 
West Highway, Silver Spring, MD 20910, or online at: www.nmfs.noaa.gov/pr/species/fish/shortnose-sturgeon.html.

FOR FURTHER INFORMATION CONTACT: Lisa Manning, Office of Protected 
Resources, 301-427-8466.

SUPPLEMENTARY INFORMATION: 

Background

    On September 24, 2014, we received a petition from Dr. Michael J. 
Dadswell, Dr. Matthew K. Litvak, and Mr. Jonathan Barry regarding the 
population of shortnose sturgeon (Acipenser brevirostrum) native to the 
Saint John River in New Brunswick, Canada. The petition requests that 
we identify the Saint John River population of shortnose sturgeon as a 
distinct population segment (DPS) and contemporaneously delist this DPS 
from the Endangered Species Act.
    Acipenser brevirostrum was originally listed as an endangered 
species throughout its range by the U.S. Fish and Wildlife Service 
(USFWS) on March 11, 1967, under the Endangered Species Preservation 
Act (ESPA, 32 FR 4001). Shortnose sturgeon remained on the endangered 
species list when the U.S. Congress replaced ESPA by enacting the 
Endangered Species Conservation Act of 1969, which was in turn replaced 
by the Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531 et seq.). 
NMFS subsequently assumed jurisdiction for shortnose sturgeon under a 
1974 government reorganization plan (39 FR 41370, November 27, 1974). 
In Canada, the shortnose sturgeon falls under the jurisdiction of the 
Department of Fisheries and Oceans (DFO) and was listed as a species of 
``special concern'' under the Species at Risk Act (SARA) in 1980. The 
status under SARA was maintained following a 2005 assessment (COSEWIC 
2005). Shortnose sturgeon is also listed under Appendix I of the 
Convention on International Trade in Endangered Species of Wild Fauna 
(CITES).

Statutory, Regulatory and Policy Provisions

    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 of Commerce 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 
the finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we 
find that substantial scientific or commercial information in a 
petition indicates that the petitioned action may be warranted (a 
``positive initial finding'' or ``positive 90-day finding''), we are 
required to promptly commence a review of the status of the species 
concerned, which includes conducting a comprehensive review of the best 
available scientific and commercial information. Within 12 months of 
receiving the petition, we must conclude the review with a finding as 
to whether, in fact, the petitioned action is warranted (50 CFR 
424.14(b)(3)). Because the finding at the 12-month stage is based on a 
significantly more thorough review of the available information, a 
``may be warranted'' finding at this stage 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 that interbreeds when mature 
(16 U.S.C. 1532(16)). A joint policy issued by NMFS and the U.S. Fish 
and Wildlife Service (USFWS) clarifies the interpretation of the phrase 
``distinct population segment,'' or DPS for the purposes of listing, 
delisting, and reclassifying a species under the ESA (``DPS Policy,'' 
61 FR 4722, February 7, 1996). The DPS Policy identifies two criteria 
for determining whether a population is a DPS: (1) The population must 
be ``discrete'' in relation to the remainder of the taxon (species or 
subspecies) to which it belongs; and (2) the population must be 
``significant'' to the remainder of the taxon to which it belongs. 
Congress has instructed the Secretary to exercise authority to 
recognize DPS's `` * * * sparingly and only when the biological 
evidence indicates that such action is warranted.'' (Senate Report 151, 
96th Congress, 1st

[[Page 18348]]

Session). In a recent decision, the United States District Court for 
the District of Columbia held that the ESA does not permit 
identification of a DPS solely for purposes of delisting. See Humane 
Soc'y v. Jewell, No. 13-186 (BAH), - F.3d. -, 2014 WL7237702 (D.D.C. 
December 19, 2014) (Western Great Lakes gray wolves). Because this is a 
single district court decision and may be appealed, we conclude it does 
not compel us to deny the present petition; however, we note that it 
highlights potential complications associated with the petitioned 
action.
    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, the 
determination of whether a species is threatened or endangered shall be 
based on any one or a combination of the following five section 4(a)(1) 
factors: The present or threatened destruction, modification, or 
curtailment of habitat or range; overutilization for commercial, 
recreational, scientific, or educational purposes; disease or 
predation; inadequacy of existing regulatory mechanisms; and any other 
natural or manmade factors affecting the species' existence (16 U.S.C. 
1533(a)(1); 50 CFR 424.11(c)).
    Under section 4(a)(1) of the ESA and the implementing regulations 
at 50 CFR 424.11(d), a species shall be removed from the list if the 
Secretary of Commerce determines, based on the best scientific and 
commercial data available after conducting a review of the species' 
status, that the species is no longer threatened or endangered because 
of one or a combination of the section 4(a)(1) factors. The regulations 
provide that a species listed under the ESA may be delisted only if 
such data substantiate that it is neither endangered nor threatened for 
one or more of the following reasons:
    (1) Extinction. Unless all individuals of the listed species had 
been previously identified and located, and were later found to be 
extirpated from their previous range, a sufficient period of time must 
be allowed before delisting to indicate clearly that the species is 
extinct.
    (2) Recovery. The principal goal of the USFWS and NMFS is to return 
listed species to a point at which protection under the ESA is no 
longer required. A species may be delisted on the basis of recovery 
only if the best scientific and commercial data available indicate that 
it is no longer endangered or threatened.
    (3) Original data for classification in error. Subsequent 
investigations may show that the best scientific or commercial data 
available when the species was listed, or the interpretation of such 
data, were in error (50 CFR 424.11(d)).
    A determination whether to revise a species-level listing to 
recognize one or more DPSs in place of a species-level listing involves 
a judgment as to which approach for managing the species best furthers 
the purposes of the ESA. We will make that determination prior to 
making a final finding on the petition.
    At the initial finding stage on a petition to list, delist, or 
reclassify a species, the statute requires that we determine whether 
the petition has presented substantial scientific or commercial 
information indicating that the petitioned action may be warranted. See 
ESA section 4(b)(3)(A) (16 U.S.C. 1533(b)(3)(A)). ESA-implementing 
regulations issued jointly by NMFS and the USFWS (50 CFR 424.14(b)(1)) 
define ``substantial information'' as the amount of information that 
would lead a reasonable person to believe that the measure proposed in 
the petition may be warranted. When evaluating whether substantial 
information is contained in a petition, we 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)).
    At the initial finding stage, we evaluate the petitioner's request 
based upon the information in the petition, including references 
provided, and the information readily available in our files. We do not 
conduct additional research, and we do not solicit information from 
parties outside the agency to help us in evaluating the petition. 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 which 
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 initial finding stage, so long as it is reliable and a reasonable 
person would conclude that it supports the petitioner's assertions. In 
other words, conclusive information indicating that the species may 
meet the ESA's requirements for listing is not required to make a 
positive initial finding.
    Many petitions identify risk classifications made by other 
organizations, such as the International Union for Conservation of 
Nature (IUCN), the American Fisheries Society, 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 such classification alone may not provide the 
rationale for making an initial 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 of information that the 
classification is based upon in light of the standards of the ESA and 
our policies as described above.

Species Description

    The shortnose sturgeon is a bony fish (Class Osteichthyes) that 
retains many primitive physical characteristics that reflect its 
ancient lineage. Distinctive features include a protective armor of 
bony plates called ``scutes'' that extend longitudinally from the base 
of the skull to the caudal peduncle; a subterminal, protractile tube-
like mouth; and chemosensory barbels. The general body shape is 
cylindrical, tapering at the head and caudal peduncle, and the upper 
lobe of the tail is longer than lower lobe. Shortnose sturgeon vary in 
color but are generally dark brown to olive or black on the dorsal 
surface, lighter along the row of lateral scutes, and nearly white on 
the ventral surface. Adults have no teeth but possess bony plates in 
the

[[Page 18349]]

esophagus that are used to crush hard prey items (Vladykov and Greeley 
1963; Gilbert 1989). The skeleton is almost entirely cartilaginous with 
the exception of some bones in the skull, jaw and pectoral girdle. 
Maximum reported length is 1.43 m (total length, TL) and maximum 
reported weight is 23 kg (Dadswell 1984). Growth rates and maximum size 
display clinal variation, with the fastest growth rates and smallest 
maximum sizes occurring in southern populations. Shortnose sturgeon are 
benthic feeders, and their diet typically consists of small insects, 
crustaceans, mollusks, polychaetes, and small benthic fishes (McCleave 
et al. 1977; Dadswell 1979; Marchette and Smiley 1982; Dadswell et al. 
1984; Moser and Ross 1995; Kynard et al. 2000; Collins et al. 2002).
    Shortnose sturgeon occur along the East Coast of North America in 
rivers, estuaries, and marine waters. The current species' range is 
thought to extend from the Saint John River in New Brunswick, Canada, 
south to the St. Johns River, Florida (NMFS 1998). Shortnose sturgeon 
are ``anadromous,'' meaning they are born in freshwater, migrate to the 
ocean, then migrate back into freshwater as adults to spawn. However, 
some shortnose sturgeon populations rarely leave their natal river or 
associated estuary.
    Shortnose sturgeon are relatively long-lived and slow to mature. 
Female sturgeon can live up to 67 years, but males seldom exceed 30 
years of age. Males and females mature at about the same length, around 
1.5-1.8 feet (45-55 cm), throughout their range. However, age at 
maturity varies across the range due the clinal variation in growth 
rates. Shortnose sturgeon also exhibit sexually dimorphic growth 
patterns across latitude: males mature at 2-3 years in Georgia and at 
10-11 years in the Saint John River; females mature at 4-5 years in 
Georgia and at 12-18 years in the Saint John River (NMFS 2010). In 
general, males are thought to spawn every other year, but may spawn 
annually in some rivers (Kieffer and Kynard 1996; NMFS 1998). Females 
appear to spawn less frequently--approximately every three years to 
five years (Dadswell 1979).

Analysis of the Petition

    The petition requests that we identify the Saint John River 
shortnose sturgeon (SJRSS) as a DPS and make a finding that this DPS 
does not meet the definition of threatened or endangered under the ESA. 
In effect, the petition requests the delisting of the SJRSS, which is 
currently part of the range-wide listing of shortnose sturgeon at the 
taxonomic level of species. The administrative actions requested in the 
petition are clear, and the petition is supported by a detailed 
narrative justification and appropriate references. The petition 
provides information regarding the status of, and threats to, the 
SJRSS. The petition does not request any DPS delineations or change in 
ESA status for the remainder of the species, and does not provide a 
discussion of the abundance, distribution, status or threats to 
shortnose sturgeon within the U.S. portion of the species' range. The 
Petitioners state that while they understand their petition may 
``trigger a range-wide status review of shortnose sturgeon,'' they 
``respectfully request that the designation of the SJRSS population be 
treated independently and published on its own merits and schedule.''
    As stated previously, to be considered a DPS, a population must be 
both discrete from other populations of the species and significant to 
the species as a whole (61 FR 4722, February 7, 1996). Under the DPS 
Policy, a population 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.
    (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.
    The petition states that the SJRSS is markedly separated from other 
populations as a result of ``geography, range, and physical 
constraints.'' The petition does not specify, nor are we aware of, any 
``physical constraints'' that preclude mixing of the Saint John River 
(SJR) population with other populations. However, the petition and 
references in our files suggest that there is no, or only limited, 
spatial overlap in the range of shortnose sturgeon from the SJR and 
rivers just to the south in Maine (e.g., Kennnebec, Androscoggin and 
Penobscot rivers). Separation of the SJR population from other 
shortnose populations is also supported by genetic data, which indicate 
limited interbreeding among some river populations. For example, Wirgin 
et al. (2009) assessed genetic differentiation among shortnose sturgeon 
from 14 river systems by comparing frequencies of mitochondrial DNA 
(mtDNA) control region haplotypes. The results of this analysis 
indicate that although 6 of 8 haplotypes in the SJR sample (N= 42 fish) 
are shared with other Gulf of Maine river samples, the SJR sample has 
significantly different haplotype frequencies than the other Gulf of 
Maine rivers (Wirgin et al. 2009). Female-mediated gene flow between 
the Penobscot River and the Saint John River was also estimated to 
occur at a low rate--only about 2 migrants per generation (Wirgin et 
al. 2009). A more recent study by King et al. (2014) using nuclear DNA 
provides additional indication that the SJRSS may be discrete from 
other river populations. King et al. (2014) used multiple approaches 
(principle component analysis and Bayesian clustering) to analyze data 
for 11 microsatellite loci for shortnose sturgeon from 17 sample 
populations (N= 561 total fish), including 25 fish from the SJR. The 
results suggest the existence of three metapopulations (Northeast, Mid-
Atlantic, and South Atlantic), each with a different degree of genetic 
sub-structuring. The Northeast metapopulation, which encompasses the 
Merrimack, Androscoggin, Kennebec, Penobscot and Saint John rivers, was 
shown to have a moderate degree of differentiation into three groups: 
Merrimack, Androscoggin/Kennebec/Penobscot, and Saint John River. 
Estimates of the effective number of migrants per generation were very 
low among the three metapopulations (average ranged between 0.89-1.89), 
but were much higher within each metapopulation. For the Saint John 
River in particular, the estimated effective number of migrants per 
generation with the other rivers within the Northeast metapopulation 
ranged from 2.25-3.43 (King et al. 2014). Overall, we find that the 
SJRSS may be discrete from other populations based on the existing 
genetic data.
    The petition also asserts that the SJRSS can be considered 
``discrete,'' because it is delimited by the U.S.-Canada border, on 
either side of which the species experiences significant differences in 
the control of exploitation, management of habitat, conservation 
status, and regulatory mechanisms. In support of this assertion, the 
petition points to the differing conservation status that shortnose 
sturgeon has under the ESA in the United States and the SARA in Canada. 
The shortnose sturgeon is listed as ``endangered'' under the ESA, and 
the SJRSS is listed as ``special concern'' under the SARA. Resulting 
differences include that under the ESA, all ``take'' of endangered 
species such as the

[[Page 18350]]

shortnose sturgeon is prohibited, with take being defined as ``to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or to attempt to engage in any such conduct'' (16 U.S.C. 
1532(19)); whereas, in Canada, under the Fisheries Act, all means of 
killing SJRSS are prohibited except for fishing (R.S.C.1985,c. F-14), 
which apparently results in virtually zero mortality due to 
conservative size restrictions on retention of shortnose sturgeon 
(COSEWIC 2005). Certain provisions of the ESA apply throughout the 
range of shortnose sturgeon to prohibit activities undertaken by 
persons subject to U.S. jurisdiction. See 16 U.S.C. 1538(a)(1)(A), (D)-
(F). The petition does not provide additional information to clarify 
how the differences in the control of exploitation or regulation of the 
species within the two countries translate into meaningful differences 
for shortnose sturgeon or its habitat, nor does it explain how the 
management differences are significant with respect to section 
4(a)(1)(D) of the ESA. We find that, while there is insufficient 
support to use the international boundary as a potential basis for 
considering the SJRSS ``discrete,'' the petition does provide 
sufficient information to indicate that the SJRSS may be discrete based 
on biological data; and therefore, we proceeded to evaluate information 
presented in the petition and the cited references with respect to the 
second criterion of the DPS Policy.
    Under the DPS Policy, if a population segment is found to be 
discrete, then its biological and ecological significance to the taxon 
to which it belongs is evaluated. This consideration may include, but 
is not limited to: (1) Persistence of the discrete population segment 
in an ecological setting unusual or unique for the taxon; (2) evidence 
that the loss of the discrete population segment would result in a 
significant gap in the range of a taxon; (3) evidence that the discrete 
population segment represents the only surviving natural occurrence of 
a taxon that may be more abundant elsewhere as an introduced population 
outside its historical range; and (4) evidence that the discrete 
population segment differs markedly from other populations of the 
species in its genetic characteristics (61 FR 4722, February 7, 1996).
    The petition states that the SJRSS meets the ``significance'' 
criterion of the DPS Policy on the basis of all four of the 
considerations listed in the policy. First, the petition asserts that 
the SJRSS persists in a unique ecological setting, because it occurs at 
the northern extreme of the species' range. Second, the petition states 
that loss of this population would result in a significant gap in the 
range of the species, and, third, that the SJRSS is the ``only known 
surviving natural occurrence of this DPS taxon in its historic range.'' 
Lastly, the petition states that the SJRSS differs markedly from other 
populations of shortnose sturgeon in its genetic characteristics.
    We agree that the SJRSS may have markedly different genetic 
characteristics from other shortnose sturgeon populations, because it 
has some morphological, behavioral, and genetic differences from other 
populations. We do not, however, find sufficient information in the 
petition or cited references to suggest that the riverine, estuarine, 
or marine habitats of the SJRSS represent a unique ecological setting 
for the taxon. Supporting information provided in the petition 
pertained to the life history and habitat use patterns of Atlantic 
salmon and the Gulf of Maine region; this information is not 
particularly relevant or explanatory with respect to the uniqueness of 
SJRSS habitat or shortnose sturgeon. We also find relatively limited 
support in the petition and references provided to suggest that the 
loss of this particular population, which occurs at the northernmost 
portion of the species' range, would result in a significant gap in the 
species' range. The species is broadly distributed along the East Coast 
of North America and highly mobile; furthermore, estimated rates of 
migration are higher among rivers within the northeast region versus 
the mid-Atlantic region (King et al. 2014). Lastly, we find no support 
for the assertion that the SJRSS is the only surviving natural 
occurrence of shortnose sturgeon within its historical range. Shortnose 
sturgeon are present in at least 42 coastal rivers within the species' 
historical range (NMFS 2010). We also note that the terms ``taxon'' and 
``historical range'' in the relevant context of the DPS Policy refer to 
the larger taxonomic entity, not the DPS under evaluation, as may have 
been assumed by the Petitioners.
    Overall, we conclude that the information presented in the petition 
and supporting references suggests that the SJRSS may meet the 
``discreteness'' and the ``significance'' criteria of the DPS Policy 
and thus may qualify as a DPS. Therefore, we proceeded to review the 
petition and information readily available in our files to evaluate 
whether this potential DPS should continue to be protected under the 
ESA.
    The status of the SJRSS was most recently reviewed in 2005 by the 
Committee on the Status of Endangered Wildlife in Canada (COSEWIC), 
which is the official scientific body established under SARA 
responsible for assessing extinction risk of wildlife species in 
Canada. This most recent assessment concluded that the status of the 
SJRSS had not changed, and that the population still warranted a status 
of ``special concern (SC),'' which is defined under SARA as ``a 
wildlife species that may become a threatened or endangered species 
because of a combination of biological characteristics and identified 
threats'' (S.C. 2002, c. 29). The 2005 COSEWIC assessment also 
indicated that the SJRSS met the criterion for ``threatened'' under 
SARA based on criterion D2 (i.e., Canadian population with a very 
restricted index of area of occupancy or number of locations, based on 
presence in only one river) but was classified as SC because there were 
``no immediate threats'' (COSEWIC 2005). The petition asserts that the 
SC classification under SARA indicates the SJRSS does not meet the 
definition of threatened or endangered under the ESA, and that the SC 
status under SARA is ``substantially similar'' to the non-regulatory 
``species of concern'' designation that NMFS has extended to some 
species. NMFS ``species of concern'' are defined as those species about 
which we have some concerns regarding status and threats, but for which 
insufficient information is available to indicate a need to list the 
species under the ESA (69 FR 19975, April 15, 2004). Under SARA, a 
threatened species is defined as ``a wildlife species that is likely to 
become an endangered species if nothing is done to reverse the factors 
leading to its extirpation or extinction'' (S.C. 2002, c. 29). A 
threatened species is defined in section 3 of the ESA as ``. . . any 
species which is likely to become an endangered species within the 
foreseeable future throughout all or a portion of its range'' (16 
U.S.C. 1532(3)). While similar, these definitions are not equivalent 
and require interpretations of different terms. Furthermore, the 
processes and standards by which species are evaluated under each 
statute are not the same. Thus, while the ``special concern'' status 
under SARA is an indication that the SJRSS is not at immediate risk of 
extirpation, it remains unclear what status may be warranted for an 
SJRSS DPS under the ESA.
    The 2005 COSEWIC assessment states that incidental bycatch in 
fisheries, poaching, and habitat loss and degradation are threats to 
the SJRSS. The petition provides no data or references with which to 
evaluate the level or trends in bycatch or poaching.

[[Page 18351]]

Habitat loss and degradation occur in the form of dams, impoundments, 
and water quality impacts stemming from urban, agricultural and 
industrial activities (COSEWIC 2005). The petition states that the 
largest threat to the SJRSS may be the Mactaquac Dam, which was 
completed in 1967 and is impassable by sturgeon. No studies have been 
conducted to evaluate the effect of the dam on spawning as a 
consequence of changes in water flow or temperature (COSEWIC 2005). 
Aboriginal knowledge also suggests that there has been a decline in the 
SJRSS since the Mactaquac Dam was constructed (COSEWIC 2005). There 
have also been no evaluations of the impact of contaminants on 
shortnose sturgeon in the SJR (COSEWIC 2005). However, water quality in 
the SJR, while still a significant concern in some areas, has improved 
since 2000, and many fish communities are healthy and stable (CRI 
2011). The majority of the watershed is forested, and all 
municipalities, which are mostly small, now have sewage treatment 
capabilities (COSEWIC 2005). Overall, the information provided 
regarding threats to the SJRSS within its riverine and marine habitats 
is limited and difficult to fully assess.
    The only comprehensive population estimate available for 
consideration in connection with this finding for the SJRSS population 
comes from Dadswell's (1979) mark-recapture study in 1973-1977. 
Dadswell (1979) calculated a Jolly-Seber population estimate of 18,000 
( 30%) adults. Thus, the overall population trend is 
``unknown'' (COSEWIC 2005). However, some evidence suggests the 
population has remained fairly stable since the 1970's. Size 
distributions and growth rates for sturgeon sampled in the SJR during 
1998-2000 are similar to those measured and estimated for sturgeon 
sampled in 1973-1977 (COSEWIC 2005). Both time periods indicate a broad 
range of size and age-classes. A possible indicator of the stability of 
the SJRSS mentioned in the petition is the stable catch of adult 
shortnose sturgeon in a 26-year old annual fishing derby on the 
Kennebecasis River, a tributary of the Saint John. Catch records or 
some assessment of the catch records from this tournament were not 
provided in the petition or supporting references, so this statement is 
difficult to verify at this time. More recent studies conducted in 
overwintering areas have produced partial adult population estimates of 
4,836  69 in 2005 and 3,852-5,222 in 2009 and 2011, 
indicating persistence at the overwintering sites over this time period 
and suggesting stable abundance (Li et al. 2007; Usivyatsov et al. 
2012). Interestingly, the range of the SJRSS has also recently been 
scientifically recognized as extending to include the waters off of 
Nova Scotia: Dadswell et al. (2013) recently confirmed the presence of 
an adult shortnose sturgeon in the Minas Basin, which is about 165 km 
from the mouth of the SJR. Fishers also report that they have been 
catching 1-2 shortnose sturgeon in their weirs during the past decade 
(Dadswell et al. 2013). Lastly, Stokesbury et al. (2014) used an index 
called the ``Species Ability to Forestall Extinction Index,'' or SAFE 
index, to characterize the SJRSS risk of extinction and concluded that 
this population was above the authors' particular threshold for 
``threatened,'' which was based on an assumed minimum viable population 
of 5,000 adults. Because there have been no comprehensive surveys of 
the SJRSS since the 1970s, Stokesbury et al. (2014) also assumed an 
adult population size of 18,000 based on the 1973-1977 study by 
Dadswell (1979) in order to calculate the index for the SJRSS. Overall, 
while data are lacking with respect to current population abundance and 
trends, the available evidence suggests that the population has 
remained stable since the 1970s and is not at high risk of extirpation.
    In summary, we find that the shortnose sturgeon within the Saint 
John River in New Brunswick, Canada, may meet the ``discreteness'' and 
``significance'' criteria of the DPS Policy (61 FR 4722, February 7, 
1996) and thus may qualify as a DPS. We also find that, given the 
available information regarding the seemingly stable and thus 
potentially sufficiently high abundance of the shortnose sturgeon in 
the SJR, the SJRSS, if considered on its own, may not meet the criteria 
for listing under the ESA. Revisions to the current species-level 
listing for shortnose sturgeon therefore may be warranted, if we 
determine it would best further the purposes of the ESA. While there is 
substantial uncertainty regarding the current population size, trends, 
and threats, we conclude that the petition and references provide 
sufficient indication that the petitioned action may be warranted.

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, we conclude that the 
petition presents substantial scientific or commercial information 
indicating the petitioned actions may be warranted for the SJRSS. We 
hereby announce the initiation of a status review to determine whether 
the petitioned population meets the DPS criteria and whether the 
current species-level listing should be revised.

Information Solicited

    To ensure that the status review is based on the best available 
scientific and commercial data, we are soliciting information relevant 
to the petitioned actions. Specifically, we are soliciting data and 
information, including unpublished data and information, in the 
following areas: (1) Recent genetic analyses of populations of 
shortnose sturgeon; (2) current distribution and abundance of shortnose 
sturgeon range-wide; (3) movements, migratory patterns and habitat use 
of shortnose sturgeon along the northeast coast of the United States 
and in Canadian waters; (4) historical and current population trends 
for shortnose sturgeon within the Saint John River; (6) past, current 
and future threats, including bycatch rates and any current or planned 
activities that may adversely impact the SJRSS; (7) ongoing or planned 
efforts to protect and restore the SJRSS and their habitat; and (8) 
management, regulatory, and enforcement information. 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.

References Cited

    A complete list of references is available upon request to the 
Office of Protected Resources (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: March 31, 2015.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2015-07833 Filed 4-3-15; 8:45 am]
BILLING CODE 3510-22-P