[Federal Register Volume 89, Number 142 (Wednesday, July 24, 2024)]
[Proposed Rules]
[Pages 59881-59888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16253]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 240718-0199; RTID 0648-XR134]


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List the 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.

ACTION: 90-Day petition finding; request for information, and 
initiation of a status review.

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SUMMARY: We, NMFS, announce a 90-day finding on a petition to list the 
Alabama shad (Alosa alabamae) as threatened or endangered under the 
Endangered Species Act (ESA). The petitioners also request that we 
designate critical habitat. We find that the petition presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. Therefore, we are initiating a 
status review of the Alabama shad to determine whether listing under 
the ESA is warranted. To support a comprehensive status review, we are 
soliciting scientific and commercial information regarding this species 
from any interested party.

DATES: Scientific and commercial information pertinent to the 
petitioned action must be received by September 23, 2024.

ADDRESSES: You may submit scientific and commercial information 
relevant to our review of the status of Alabama shad, identified by 
``Alabama shad Petition'' or by the docket number, NOAA-NMFS-2024-0052 
by the following method:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2024-0052 in the Search box. 
Click on the ``Comment'' icon, complete the required fields, and enter 
or attach your comments.
    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 
https://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. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    Interested persons may obtain a copy of the petition online at the 
NMFS website: https://www.fisheries.noaa.gov/endangered-species-conservation/candidate-species-under-endangered-species-act.

FOR FURTHER INFORMATION CONTACT: Calusa Horn, NMFS Southeast Region, at 
[email protected], (727) 551-5782; or Heather Austin, NMFS Office of 
Protected Resources, at [email protected], (301) 427-8422.

SUPPLEMENTARY INFORMATION:

Background

    On January 9, 2024, we received a petition from the Center for 
Biological Diversity, the Miccosukee Tribe of Indians, Alabama Rivers 
Alliance, American Whitewater, Black Warrior Riverkeeper, Cahaba 
Riverkeeper, Chattahoochee Riverkeeper, Choctawhatchee Riverkeeper, 
Coosa Riverkeeper, Forest Keeper, Healthy Gulf, Healthy Oceans 
Coalition, Mobile Baykeeper, and Pearl Riverkeeper (Petitioners) to 
list the Alabama shad (Alosa alabamae) as an endangered or threatened 
species under the ESA, and to designate critical habitat concurrent 
with the listing. The petition asserts that

[[Page 59882]]

Alabama shad is threatened by all five of the ESA section 4(a)(1) 
factors: (1) the present or threatened destruction, modification, or 
curtailment of habitat or range; (2) overutilization for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) the inadequacy of existing regulatory mechanisms to 
address identified threats; and (5) other natural or manmade factors 
affecting its continued existence (16 U.S.C. 1533(a)(1), 50 CFR 
424.11(c)). The petition is available online (see ADDRESSES, above).
    This is the second petition we have received from the Center for 
Biological Diversity to list the Alabama shad under the ESA. The first 
petition was received on April 20, 2010. On February 17, 2011, we 
published a negative 90-day finding (76 FR 9320) stating that the 
petition did not present substantial scientific or commercial 
information indicating that the petitioned action to list Alabama shad 
may be warranted. On April 28, 2011, in response to the negative 90-day 
finding, the Center for Biological Diversity filed a notice of intent 
to sue the Department of Commerce and NMFS for alleged violations of 
the ESA in making its finding. The Center for Biological Diversity 
filed the lawsuit in the U.S. District Court for the District of 
Columbia on January 18, 2012. On June 21, 2013, Center for Biological 
Diversity and Department of Commerce settled the lawsuit. We agreed to 
reevaluate the original listing petition, as well as information in our 
files, and publish a new 90-day finding. On September 19, 2013, we 
published a 90-day finding with our determination that the petition 
presented substantial scientific and commercial information indicating 
that the petitioned action may be warranted (78 FR 57611). On January 
12, 2017, we determined that listing Alabama shad as threatened or 
endangered under the ESA was not warranted and published a 12-month 
finding in the Federal Register (82 FR 4022).

ESA Statutory, Regulatory, and Policy Provisions, and Evaluation 
Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (16 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 such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). 
When it is found that substantial scientific or commercial information 
in a petition indicates 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 conclude the review with a 
finding as to whether 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 must 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 NMFS-U.S. Fish and Wildlife 
Service (USFWS) (jointly, ``the Services'') policy clarifies the 
agencies' interpretation of the phrase ``distinct population segment'' 
for the purposes of listing, delisting, and reclassifying a species 
under the ESA (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 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 to address 
identified threats; or 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 the Services (50 CFR 
424.14(h)(1)(i)) define ``substantial scientific or commercial 
information'' in the context of reviewing a petition to list, delist, 
or reclassify a species as credible scientific or commercial 
information in support of the petitioner's claims such that a 
reasonable person conducting an impartial scientific review would 
conclude that the action proposed in the petition may be warranted. 
Conclusions drawn in the petition without the support of credible 
scientific or commercial information will not be considered 
``substantial information.'' In reaching the initial (90-day) finding 
on the petition, we will consider the information described in 50 CFR 
424.14(c), (d), and (g) (if applicable). Our determination as to 
whether the petition provides substantial scientific or commercial 
information indicating that the petitioned action may be warranted will 
depend in part on the degree to which the petition includes the 
following types of information: (1) information on current population 
status and trends and estimates of current population sizes and 
distributions, both in captivity and the wild, if available; (2) 
identification of the factors under section 4(a)(1) of the ESA that may 
affect the species and where these factors are acting upon the species; 
(3) whether and to what extent any or all of the factors alone or in 
combination identified in section 4(a)(1) of the ESA may cause the 
species to be an endangered species or threatened species (i.e., the 
species is currently in danger of extinction or is likely to become so 
within the foreseeable future), and, if so, how high in magnitude and 
how imminent the threats to the species and its habitat are; (4) 
information on adequacy of regulatory protections and effectiveness of 
conservation activities by States as well as other parties, that have 
been initiated or that are ongoing, that may protect the species or its 
habitat; and (5) a complete, balanced representation of the relevant 
facts, including information that may contradict claims in the 
petition. See 50 CFR 424.14(d).
    If the petitioners provide supplemental information before the 
initial finding is made and states that it is part of the petition, the 
new information, along with the previously submitted information, is 
treated as a new petition that supersedes the original petition, and 
the statutory timeframes will begin when such supplemental information 
is received. See 50 CFR 424.14(g).
    We may also consider information readily available at the time the 
determination is made (50 CFR 424.14(h)(1)(ii)). We are not required to 
consider any supporting materials cited by the petitioners if the 
petitioners do not provide electronic or hard copies, to the extent 
permitted by U.S. copyright law, or appropriate excerpts or quotations 
from those materials (e.g.,

[[Page 59883]]

publications, maps, reports, and letters from authorities). See 50 CFR 
424.14(c)(6).
    The ``substantial scientific or commercial information'' standard 
must be applied in light of any prior reviews or findings we have made 
on the listing status of the species that is the subject of the 
petition (50 CFR 424.14(h)(1)(iii)). Where we have already conducted a 
finding on, or review of, the listing status of that species (whether 
in response to a petition or on our own initiative), we will evaluate 
any petition received thereafter seeking to list, delist, or reclassify 
that species to determine whether a reasonable person conducting an 
impartial scientific review would conclude that the action proposed in 
the petition may be warranted despite the previous review or finding. 
Where the prior review resulted in a final agency action--such as a 
final listing determination, 90-day not-substantial finding, or 12-
month not-warranted finding--a petitioned action will generally not be 
considered to present substantial scientific and commercial information 
indicating that the action may be warranted unless the petition 
provides new information or analysis not previously considered.
    At the 90-day finding stage, 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 petitioners' 
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 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 conducting an impartial 
scientific review would conclude it supports the petitioners' 
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 necessitates a negative 90-day finding if a 
reasonable person conducting an impartial scientific review would 
conclude that the unknown information itself suggests the species may 
be at risk of extinction presently or within the foreseeable future.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition 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, in light of 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 faces an extinction risk such that listing, delisting, or 
reclassification may be warranted; 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 (e.g., population abundance and 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).
    Information presented 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 indicating 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 
nongovernmental 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 such organizations or made under other Federal or 
State statutes may be informative, but such classification alone will 
not provide sufficient basis 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 ESA, 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 (https://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories). Additionally, species classifications 
under IUCN and the ESA are not equivalent; data standards, criteria 
used to evaluate species, and treatment of uncertainty are also not 
necessarily the same. 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 on extinction risk and impacts or 
threats discussed above.

Alabama Shad Species Description

    Alabama shad belong to the family Clupeidae and are closely related 
to, as well as similar in appearance and life history, to skipjack 
herring (A. chrysochloris) which occur in the same areas as Alabama 
shad. The Alabama shad is an anadromous species, carrying out life 
stages in both marine and freshwater environments. Alabama shad are 
found in the Gulf of Mexico, although there is very little information 
about their marine habitat use. As part of their anadromous life cycle, 
adult Alabama shad leave the Gulf of Mexico, sometimes migrating 
several hundred kilometers, and move into freshwater rivers in the 
spring to spawn (Coker 1930; Lee et al. 1980; Buchanan et al. 1999; 
Kreiser and Schaeffer 2009). Alabama shad appear to be philopatric and 
return to the same rivers to spawn, resulting in slight genetic 
differences among river drainages (Meadows 2008; Mickle et al. 2010). 
Spawning typically occurs in moderate current near sandbars, limestone 
outcrops, or over sand substrate with water temperatures ranging from 
19 to 23 [deg]C (66 to 73 [deg]F) (Laurence and Yerger 1967; Mills 
1972; Mettee and O'Neil 2003). The Alabama shad is relatively short 
lived, up to 6 years (Mettee and O'Neil 2003). They are generalist 
insect feeders (Mickle et al. 2010). Age-2 and age-3 Alabama shad are 
the most prevalent age class of spawning adults (Laurence and Yerger 
1967; Mettee and O'Neil 2003; Ingram 2007). Individuals may spawn more 
than once in a lifetime (Laurence and Yerger 1967; Mettee and O'Neil 
2003; Ingram 2007; Mickle et al. 2010). Laurence and Yerger (1967) 
indicated that 35 percent of Alabama shad were likely repeat spawners 
and noted that 2-4 year old males from the Apalachicola-Chattahoochee-
Flint (ACF) River system had spawning marks on their scales.

[[Page 59884]]

Mills (1972) also observed 35-38 percent repeat spawners (mostly age-3) 
as well as discernable spawning marks on scales from the ACF 
population. In addition, Mettee and O'Neil (2003) noted that many 
Alabama shad collected from the Choctawhatchee River were repeat 
spawners, with age-3 and age-4 females comprising the majority of 
repeat spawners in 1994-1995, and age-2 and age-3 females the majority 
in 1999-2000. In contrast, Ingram (2007) has not observed spawning 
marks on the scales of ACF population and most fish in that system may 
die after spawning (Smith et al. 2011). Annual fecundity ranges from 
approximately 16,000 to 360,000 eggs per female (Mettee and O'Neil 
2003; Ingram 2007). First-year (age-0) juvenile Alabama shad typically 
inhabit upriver freshwater environments until late summer or fall, 
after which they migrate downstream toward the Gulf of Mexico (Mettee 
and O'Neil, 2003; Mickle et al. 2010).

Analysis of the Petition

    We first evaluated whether the petition presented the information 
indicated in 50 CFR 424.14(c) and (d). We find that the petitioners 
presented the required information in 50 CFR 424.14(c) and sufficient 
information requested in Sec.  424.14(d) to allow us to review the 
petition. The petition contains information on the Alabama shad, 
including the biological information, current and historical 
distribution, population status, and threats contributing to the 
species' status. The petitioners include new literature but also rely 
heavily on expert opinion and personal communications with State 
biologists and researchers. The petitioners provide an assessment of 
new information that has become available since our previous finding 
(82 FR 4022). The petitioners assert that the new information provides 
substantial scientific and commercial information indicating that 
Alabama shad have been extirpated from 90 percent of its historical 
riverine habitats and is threatened by modification of habitat and 
curtailment of its range, overexploitation, disease, pollution, climate 
change, and inadequacy of existing regulatory measures. As previously 
stated, the substantial scientific or commercial information standard 
must be applied in light of any prior reviews or findings the Services 
have made on the listing status of the species. Therefore, we will 
consider the new information provided in the petition and any new 
information readily available in our files to determine whether a 
reasonable person conducting an impartial review would conclude it 
presents substantial scientific or commercial information indicating 
that the petitioned action may be warranted.

New Information on Abundance and Population Trends

    The petitioners assert that NMFS was incorrect in determining that 
low population numbers were due to challenges in Alabama shad 
detectability and general lack of targeted survey and sampling efforts. 
The petitioners also assert that detection probability and the timing 
and sampling methods cannot be the sole cause of estimated low 
abundances. To support this claim, the petitioners reference biologists 
and researchers who also suggest that the low numbers of Alabama shad 
are suggestive of long-term declining trends in abundance, rather than 
an artifact of high natural variability or challenges with species 
detectability (Rider et al. 2021; Schaefer, pers. comm. October 13, 
2023; Quinn, pers. comm. October 17, 2023). The petitioners reference 
new targeted survey efforts that suggest Alabama shad have been 
extirpated from many river systems. In river systems where they still 
occur, they occur in very low numbers (Rider et al. 2021; Rider, pers. 
comm. November 3, 2023; Ingram. pers. comm. December 10, 2023; NOAA 
Fisheries and U.S. Fish and Wildlife Records: Georgia, Florida, 
Alabama, Mississippi, Louisiana, Oklahoma, Arkansas, 2023). The 
petitioners claim the new survey information, together with the 
historical data, indicate that the species has declined significantly 
over the last decade and has been extirpated throughout much of its 
historical range (Etnier and Starnes 1993; Gunning and Suttkus 1990; 
Musik et al. 2000; Ross 2001; Mettee and O'Neil 2003; Boschung and 
Mayden 2004; Sammons et al. 202; Rider et al. 2021). In the following 
section, we summarize the new information relative to the species 
abundance and status for Alabama, Florida, Georgia, Mississippi, 
Missouri, and Arkansas.
    For Alabama, our previous determination concluded that it is 
unknown whether the lack of or low numbers of Alabama shad reported for 
many river systems (including the Mobile Basin, Conecuh River, and 
Choctawhatchee River) accurately reflects the abundance in those 
systems, or whether the lack of or low numbers of Alabama shad is 
indicative of the lack of targeted studies (82 FR 4022). At that time, 
directed studies and contemporary abundance data for Alabama shad were 
lacking for riverine systems in Alabama. Therefore, we concluded the 
status of Alabama shad within most riverine systems in Alabama was 
unknown and that low capture rates were likely due in part to sampling 
bias (82 FR 4022).
    The petitioners provide new information that indicates that Alabama 
shad are largely extirpated from Alabama. Alabama shad historically 
occurred in the Mobile Basin (i.e., Tombigbee, Black Warrior, Cahaba, 
Coosa, and Alabama rivers) and the Conecuh-Escambia, Yellow, and 
Choctawhatchee Rivers. Notably, the second largest Alabama shad 
population occurs in the Choctawhatchee River (Mettee and O'Neil 2003; 
Ely et al. 2008; Young et al. 2012). The petitioners present a new 
study (Rider et al. 2021) that provides status information for the 
species in the State and importantly also directly addresses the 
sampling and survey bias concerns identified in our previous 
determination (82 FR 4022). Rider et al. (2021) initiated a multiyear 
study to assess the population status of Alabama shad with targeted 
sampling efforts in the major river systems of its historical 
occurrence in Alabama. To account for potential bias, Rider et al. 
(2021) sampled during months when Alabama shad were most likely to be 
present (i.e., spring spawning migration) and used electrofishing, 
which is considered to be the most effective method to collect Alabama 
shad. These directed survey efforts found no Alabama shad in the Mobile 
River Basin (i.e., Alabama and Tombigbee Rivers) and only one 
individual was collected from the Conecuh River (Rider et al. 2021). 
Rider et al. (2021) indicates that Alabama shad have largely been 
extirpated from the Mobile River Basin, with the only remaining Conecuh 
River population being ``severely depressed.'' Additionally, the 
authors determined that the Choctawhatchee River population is on the 
verge of extirpation, which is cause for concern as this population was 
once considered to have the second largest Alabama shad population 
behind the ACF population. Rider et al. (2021) determined that Alabama 
shad in the Choctawhatchee River have experienced a precipitous decline 
by 71 percent and 98 percent from 1999/2000 to 2011 and 2018, 
respectively. In summary, the petitioners provide new information that 
indicates that the species has largely become extirpated from the State 
of Alabama, with two remaining populations on the cusp of collapse.
    For Florida and Georgia, our previous determination recognized the 
importance of the ACF population to the viability of the species, 
stating that, because the spawning population in the

[[Page 59885]]

ACF River system is large relative to other systems, migrants from the 
ACF River system may make greater contributions as compared to shad 
from smaller populations. The loss of the largest spawning population 
of Alabama shad would leave only smaller populations of Alabama shad 
and could make the species as a whole less resilient to environmental 
perturbations, including catastrophic events (82 FR 4022). The 
petitioners assert that Alabama shad have declined by greater than 90 
percent in the ACF River system, which connects Florida and Georgia to 
the Gulf of Mexico. The petitioners attribute population decline due to 
the cessation of conservation locking at Jim Woodruff Lock and Dam 
(JWLD). Located 300 meters (984 feet) downstream of the confluence of 
the Flint and Chattahoochee Rivers, JWLD serves as the first upstream 
barrier to the ACF population, blocking access to all potential 
spawning habitat in both tributary rivers, which is approximately 78 
percent of historical riverine habitat in the ACF River system (Marbury 
et al. 2021). Historically, the ACF population has been the largest 
(Mettee and O'Neil 2003; Ely et al. 2008; Young et al. 2012; 82 FR 
4022) and most intensively studied population of Alabama shad (Laurence 
and Yerger 1967; Ely et al. 2008; Ingram et al. 2009; Young et al 2012; 
Kerns 2016). The petitioners provide some new catch per unit effort 
data (CPUE) from 2016-2023 as well as information we previously 
considered. The petitioners assert that the ACF population crashed from 
an estimated population size of 122,578 in 2012 to an estimated 
population size of 324 in 2015. While no new population estimates were 
provided, the petition cites new survey information presented as CPUE 
to consider: in 2016 the CPUE was 0 (no fish were collected), in 2017 
the CPUE was 4.2, in 2021 the CPUE was 2.9, and in 2022 the CPUE was 
18.5 (Georgia Department of Natural Resources, Alabama shad survey and 
CPUE data 2007-2023). No information was provided for 2018, 2019, and 
2021. The most recent CPUE in 2022 is higher than previous years. For 
comparison, the CPUE for the year with the highest estimated population 
(2012; 122,578 individuals) was 100.6 and the CPUE for the year with 
the lowest estimated population (2015; 324 individuals) was 6.8 
(Georgia Department of Natural Resources. Alabama shad survey and CPUE 
data 2007-2023). The more recent CPUE data seem to suggest that CPUE 
ranged from 0 fish to 18.5 in 2016 and 2022; however, the data are 
incomplete and do not allow us to estimate population size or trends. 
While CPUE can be used as an indirect measure of abundance, the 
information provided is lacking and does not allow us to estimate 
population size or the extent of the purported declining trends. 
However, it does suggest some cause for concern, and warrants further 
consideration in a status review.
    In summary, the petitioners provide several lines of evidence that 
suggest that the ACF population may be declining based on new but 
incomplete survey data and the cessation of conservation locking at the 
JWLD (See The Present or Threatened Destruction, Modification, or 
Curtailment of the Alabama Shad Habitat or Range), which is blocking 
migration and preventing access to important spawning habitats.
    For Mississippi, the petitioners assert that the Alabama shad have 
experienced a 50 percent decline in distribution. In our previous 
determination (82 FR 4022), we found that Pascagoula River, which is a 
relatively free-flowing river system, had one of the remaining spawning 
populations of Alabama shad. The petitioners claim that the species is 
now extirpated from the Tombigbee River (a major tributary of the 
Mobile River) and the Pearl River, with the remaining population 
located in the Pascagoula River in decline. Rider et al. (2021) 
conducted directed sampling for Alabama shad on the Tombigbee River in 
2012 but collected no Alabama shad. Additionally, other recent sampling 
efforts in the Tombigbee River have been unable to collect or observe 
any Alabama shad (Dattilo 2017; S. Rider, Alabama Dept. Wildlife and 
Fisheries, Unpublished data, as cited in Rider et al. 2021). The 
petitioners also cite a personal communication with a biologist that 
indicates that the Alabama shad population in the Pearl River has 
collapsed with targeted sampling from 2006-2011 and recent ``general 
surveys'' having recorded few individuals over the last decade 
(Schaefer, pers. comm. October 13, 2023). Lastly the petitioners note 
that while Alabama shad still persist in the Pascagoula River, factors 
other than damming are likely driving declines in that system 
(Ellwanger, pers. comm. October 24, 2023).
    In summary, the new information suggests that the Tombigbee River 
population may be extirpated, which is cause for concern. While the 
petitioners assert that the Pearl River population has also collapsed, 
they did not provide the supporting information. The petition does not 
include any new survey or status information that was not previously 
considered by us for Pascagoula River.
    For Missouri, our previous determination (82 FR 4022), concluded 
that Alabama shad likely still spawned in the Missouri River, including 
several tributaries (i.e., Gasconade, Osage, and Meramec Rivers). We 
acknowledged that the Missouri River and its tributaries probably 
supported the greatest number of Alabama shad in the State, but noted 
the general lack of information and potential for sampling bias. The 
petitioners summarize Alabama shad records from the lower Mississippi, 
Missouri, Meramec, Gasconade, and Osage Rivers. The petitioners state 
that Alabama shad can now only be found in the Meramec and Gasconade 
Rivers. The petitioner's reference several new studies (Dunn et al. 
2018; Dunn et al. 2021; Pherigo 2019) that they claim show the species 
can no longer be found in the majority of Missouri's major tributaries. 
For example, Dunn et al. (2018) conducted 38 fish surveys across 11 
large tributaries (i.e., Black River, Blackwater River, Lamine River, 
Lower Gasconade River, Upper Gasconade River, Lower Grand River, Upper 
Grand River, Lower Meramec River, Upper Meramec River, Osage River, and 
Salt River) and only found Alabama shad in the Gasconade and Meramec 
Rivers. Alabama shad were not recorded on any other river sampled. Dunn 
et al. (2018) concluded that the Gasconade and Meramec Rivers are now 
the northernmost systems providing spawning and rearing habitat for 
this species. In addition, Dunn et al. (2021) evaluated tributary use 
patterns of riverine fishes in the Grand and Meramec Rivers, which are 
two large tributaries of the Missouri and Upper Mississippi Rivers, and 
yielded only 21 age-0 Alabama shad from the Meramec River, suggesting 
spawning habitat. Lastly, Pherigo (2019) sampled fish assemblages in 
the Osage River and Gasconade River and collected only four juveniles 
in the Gasconade River. None were recorded in the Osage River.
    In summary, these findings indicate that the Gasconade and Meramec 
Rivers likely now represent the only two northernmost systems that 
provide spawning and habitat for Alabama shad, which is cause for 
concern. While these studies were not limited to Alabama shad, the 
studies did occur in the spring, summer, and fall when both juvenile 
and adult Alabama shad would have been present, and the studies used 
sampling techniques (i.e., electrofishing, trawls, and seines) that are 
appropriate for sampling Alabama shad.
    For Arkansas, the petitioners state that Alabama shad have not been 
recorded in the Arkansas reach of the Mississippi River or the Arkansas 
River

[[Page 59886]]

Basin in more than a century. In our previous determination (82 FR 
4022), we concluded that the status of Alabama shad in Arkansas was 
unknown due to the lack of information and lack of targeted surveys 
needed to inform whether low numbers reflected low abundance or 
sampling bias. However, we noted that Alabama shad likely continued to 
spawn in Arkansas because spawning adults and hundreds of juvenile fish 
were documented in 1997 and 1998 in both the Ouachita and Little 
Missouri Rivers (Buchanan 1999; Buchanan et al. 1999). The petitioners 
assert that despite claims of annual spawning migrations in several 
rivers within Arkansas, the majority of records for the State are now 
limited to the Ouachita River. The petitioners provide new information 
from a five-year study (2017-2021) to assess the status and 
distribution of Alabama shad in Arkansas Rivers (Quinn et al. 2023). 
The study focused on survey efforts on the Ouachita River and the 
Little Missouri River, where Alabama shad have historically been 
collected (i.e., Buchanan et al. (1999) reported collecting more than 
300 juveniles from six localities in the Ouachita and Little Missouri 
rivers). Despite these directed sampling efforts, Quinn et al. (2023) 
collected one adult Alabama shad and no juveniles in the Ouachita 
River. Yet, an unrelated study targeting American eel recorded 16 
juvenile Alabama shad on the Ouachita River in 2021/2022, suggesting 
some successful spawning occurred (Quinn et al. 2023). The new 
information suggests that, while some spawning is occurring in the 
Ouachita River, overall very few Alabama shad were recorded, even with 
five years of targeted sampling in the Ouachita and Little Missouri 
Rivers, which is cause for concern.
    In summary, the new information presented in the petition indicates 
potentially significant population declines in the ACF River system in 
Florida and Georgia and the Choctawhatchee River in Alabama. These two 
major river systems have long been observed to have the highest 
abundance of Alabama shad within the species range (Burkaloo et al. 
1993; Ely et al., 2008; Mettee and O'Neil 2003; Young 2010). The new 
information on purported declines of these two important populations, 
especially as it relates to the viability of the species, is 
particularly concerning, and thus further investigation is warranted. 
The new information also suggests population declines in Ouachita, 
Little Missouri, and Conecuh-Escambia, and possible extirpation in the 
Mobile Basin in Alabama, both of which are also concerning, considering 
the declines noted in the ACF and Choctawhatchee Rivers. Overall, the 
petitioners provide several lines of credible new information 
suggesting that the species' current status and trends indicate that 
listing may be warranted.

Analysis of ESA Section 4(a)(1) Factors

    The petitioners assert that Alabama shad is threatened by all five 
of the ESA section 4(a)(1) factors: present or threatened destruction, 
modification, or curtailment of its habitat or range; overutilization 
for commercial and recreational purposes; disease or predation; 
inadequacy of existing regulatory mechanisms; and other natural or 
manmade factors. Information in the petition and readily available in 
our files indicates that the primary threat facing the species is 
modification of its habitat, and we find that listing the Alabama shad 
as a threatened or endangered species under the ESA may be warranted 
based on this threat alone. Therefore, we focus our discussion below on 
the evidence of this particular threat. However, we note that, in the 
status review for this species, we will evaluate all ESA section 
4(a)(1) factors to determine whether any one factor or a combination of 
these factors are causing declines in the species or are likely to 
substantially negatively affect the species within the foreseeable 
future to such a point that the Alabama shad is at risk of extinction 
or likely to become so in the foreseeable future.

The Present or Threatened Destruction, Modification, or Curtailment of 
the Alabama Shad's Habitat or Range

    According to information cited in the petition and readily 
available in our files, the greatest threats to the Alabama shad are 
the dams that occur on almost all the major river systems throughout 
its range. The petitioners assert that over the last century at least 
85 dams have been built on rivers within the Alabama shad's historical 
range. The petitioners provide historical information, new personal 
communications, relevant literature, and maps that illustrate the 
prevalence of the dams on rivers throughout the species range. The 
petitioners further summarize threats within individual rivers, which 
include changes in temperature, low spring and summer stream flows, 
passage blockages, droughts, increased sediment, degraded water 
quality, and poor riparian conditions. For example, the petitioners 
claim that changes in the flow-regime in the ACF River system have 
disrupted mainstream and floodplain habitats, modifying features 
essential for spawning and early life stages (Mickle et al. 2010; 
Alabama Shad Restoration and Management Plan for the Apalachicola-
Chattahoochee-Flint River Basin 2008). The petitioners did not provide 
any new information that was not previously considered by us regarding 
the threats to Alabama shad resulting from habitat modification or 
degradation caused by dams and hydropower projects.
    The petitioners provide new information indicating riverine habitat 
connectivity has been severed by several dams that had previously 
provided Alabama shad passage through conservation locking regimes that 
are no longer in place (Williams, pers. comm. December 7, 2023; Rider, 
pers. comm. December 7, 2023). Most notable is the cessation of 
conservation locking at the JWLD, which the petitioners implicate in 
population collapses in that system. In our previous determination, we 
concluded that conservation locking is making a tremendous contribution 
to Alabama shad in the ACF River system, the bulk of the Alabama shad 
population in the ACF River system is spawning in the Flint River, and 
juvenile Alabama shad are able to successfully move downstream to 
contribute to the adult stock. We also concluded that the conservation 
locking was providing upstream migration to higher quality spawning and 
juvenile rearing habitat, which has potentially improved recruitment 
and led to population increases. At that time when conservation locking 
occurred, the locks were operated twice a day to correspond with the 
natural movement patterns of migrating fish during spawning seasons 
(February through May). In addition, we also noted that the low 
population estimates recorded from 2013-2015 were in part due to that 
fact that conservation locking did not occur in 2013 and 2014, and thus 
Alabama shad did not pass upstream during this period (unless they were 
transported by researchers), resulting in the subsequent population 
declines, thus indicating further that conservation locking is needed 
to maintain the viability of this population.
    The petitioner's state that NMFS relied too heavily on the positive 
effects of conservation locking at the JWLD for the Alabama shad 
population and that we incorrectly assumed that conservation locking 
would continue into the foreseeable future. They present new 
information indicating that conservation locking at the JWLD has 
largely ceased and therefore Alabama shad are no longer able to access 
upstream spawning habitat and return to their marine habitats post 
spawning

[[Page 59887]]

(i.e., JWLD Lockage Logs 2017-2022). According to the petitioners, from 
2017-2020, there were a total of 167 lock openings on the JWLD, none of 
which were for fish passage or conservation locking (JWLD Lockage Log 
2017-2020). From 2021-2022, records indicate that 14 lock openings took 
place, none of which were intended for conservation locking or fish 
passage (JWLD Lockage Log 2021-2022). We also found information in our 
files that indicates that the locks at JWLD have not been opened for 
conservation locking from 2017 to 2022, which is cause for concern. 
While the locks are occasionally opened for vessel passage, those 
openings are increasingly rare, as the locks are in disrepair. In 
addition, the lockage logs (JWLD Lockage Log 2017-2022) show that the 
locks have been opened during this time period to allow for vessel 
passage; however, these events were sporadic (e.g., very few or none 
occurred during spawning seasons) and limited in duration (e.g., almost 
all were less than 45 minutes from open to close) suggesting that any 
passive fish passage during migration has likely been severely 
restricted.
    The petitioners also assert that conservation locking regime and 
spillways at the Claiborne and Millers Ferry Locks and Dam are not an 
effective conservation strategy for Alabama shad (Cromwell 2022). The 
Claiborne and Millers Ferry Locks and Dam is part of the Alabama-Coosa-
Tallapoosa River system and separates the Cahaba River from the Lower 
Alabama River, Mobile Delta, and the Gulf of Mexico. In our previous 
determination, we determined that conservation locking at Claiborne and 
Millers Ferry Locks and Dam would likely provide access to spawning 
habitat enhancing Alabama shad populations in the river system. The 
petitioners reference a study that examined fish passage the Claiborne 
and Millers Ferry Locks and Dams for the smallmouth buffalo, 
paddlefish, and other migratory fish species (Mckee 2019). The author 
found that migrating fish in general did not use the locks due to low 
water levels and lack of attraction flow to encourage fish to move into 
and exit lock chambers. In addition, they found that the crested 
spillway is only submerged during flooding events and passage is 
restricted to fish species that are considered strong swimmers (Mckee 
2019; Cromwell 2022; Williams, pers. comm. November 14, 2023). The 
petitioners and a referenced biologist claim passage at the spillway is 
highly unlikely for Alabama shad because they are not strong swimmers 
and are generally unable to use the spillways as passage (Aunins et al. 
2013; Quinn, pers. comm. October 17, 2023).
    The petitioners assert that oil spills, leaking wells, and oil 
infrastructure pose a threat to the Alabama shad in the Gulf of Mexico. 
The petitioner's include information on two of the largest spills known 
to have occurred in the Gulf of Mexico, Deepwater Horizon (DWH) spill 
that occurred in 2010 and Main Pass oil spill that occurred in 2023.
    The petitioners included new information on the Main Pass oil spill 
that released at least 1.1 million gallons into the Gulf of Mexico, the 
second-largest oil spill after the DWH spill that released 134 million 
gallons (Budryk 2023; NOAA 2023). The Main Pass oil spill occurred 
offshore near the Mississippi Delta in the Gulf of Mexico in November 
2023. Alabama shad occur in the Mississippi Delta, which serves as 
their overwintering habitat before they make spring spawning runs 
(Mickle et al. 2010; Smith et al. 2010). The petitioners and several 
biologists indicate that Alabama shad were likely impacted by the Main 
Pass oil spill as the species uses the Mississippi Delta as 
overwintering habitat and the spill occurred while the species would 
have been present (Quinn et al. 2023; Ingram. pers. comm. December 9, 
2023; Sammons, pers. comm. December 13, 2023). The petitioners 
summarize information related to the chronic adverse effects that oil 
exposure can have on fish survival, growth, reproduction, as well as 
disruptions or changes to migratory behavior (Fodrie and Heck 2011; 
Snyder et al. 2015; NOAA 2014) inferring that Alabama shad would 
experience similar impacts as a result of the Main Pass oil spill. In 
addition, while the petitioners recognize that no studies have been 
conducted on the direct effects to Alabama shad resulting from the DWH 
oil spill, they claim that Alabama shad were likely impacted and have 
not recovered since (Ingram. pers. comm. December 9, 2023). The 
petitioners note that while Alabama shad were upriver when the spill 
occurred, they were likely exposed upon their return to the marine 
environment because their range overlaps with the area impacted by the 
spill. To support their claim, the petitioner's reference personal 
communications from biologists noting that Alabama shad collected in 
the ACF River system after the DWH oil spill had lesions, and that 
their progeny did not return from the Gulf of Mexico in subsequent 
years (Ingram. pers. comm. December 9, 2023; Quinn et al. 2023). Our 
previous finding determined that the cause of lesions were unexplained, 
and while the lesions were observed in 2010, 2011, and 2013, no lesions 
were observed on fish captured after 2013 (T. Ingram, Georgia DNR, 
pers. comm. to K. Shotts, NMFS, June 6, 2016). Lastly, the petitioners 
include descriptions of general threats (e.g., climate change, 
dissolved oxygen, hurricanes, dredging, pollution, and conductivity) to 
riverine and marine habitats and how they may affect Alabama shad 
(Mettee et al. 1996; Robinson and Buchanan 2020; Rider et al. 2021).
    In summary, the information provided in the petition and in our 
files, indicates that conservation locking at the JWLD is no longer 
occurring, which is likely prohibiting spawning migration of AFC 
population of Alabama shad that we had previously indicated likely 
contribute to the viability of the species as a whole because of its 
large relative size and potential role in enhancing other river 
populations through outmigration (82 FR 4022). Thus, the cessation of 
conservation locking at the JWLD is especially concerning as the ACF 
population is potentially important to the species overall viability. 
Similarly, it also appears that the conservation locking system at the 
Claiborne and Millers Ferry Locks and Dams is ineffective at passing 
Alabama shad due to low water levels and lack of attraction flow. In 
addition, while the crested spillway may be successful at passing other 
fish species during flooding events, they do not appear to be effective 
at passing Alabama shad. The petitioners also provide new information 
suggesting that species may have been impacted by the Main Pass oil 
spill while overwintering in the Mississippi Delta. While this 
information is incomplete, it is cause for concern and warrants further 
consideration in the status review report. Overall, the information 
provided by the petitioners and briefly summarized here regarding 
threats to the Alabama shad from habitat loss, degradation, and 
modification leads us to conclude that listing the species as 
threatened or endangered may be warranted.

Petition Finding

    After reviewing the petition, the literature cited in the petition, 
and other information readily available in our files, we find that 
listing Alabama shad (A. alabamae) as a threatened or endangered 
species may be warranted. Therefore, in accordance with section 
4(b)(3)(A) of the ESA and NMFS' implementing regulations (50 CFR 
424.14(h)(2)), we will commence a status review of this species. During 
the status review, we will determine

[[Page 59888]]

whether Alabama shad is in danger of extinction (endangered) or likely 
to become so in the foreseeable future (threatened) throughout all or a 
significant portion of its range. As required by section 4(b)(3)(B) of 
the ESA, within 12 months of the receipt of the petition (January 9, 
2024), we will make a finding as to whether listing the Alabama shad as 
an endangered or threatened species is warranted. If listing is 
warranted, we will publish a proposed rule and solicit public comments 
before developing and publishing a final rule.

Information Solicited

    To ensure that the status review is based on the best available 
scientific and commercial data, we are soliciting comments and 
information from interested parties on the status of the Alabama shad. 
Specifically, we are soliciting information in the following areas:
    (1) Species abundance;
    (2) species productivity;
    (3) species distribution or population spatial structure;
    (4) genetic connectivity of historical and contemporary 
populations;
    (5) habitat conditions and associated limiting factors and threats 
for both the marine and freshwater environments;
    (6) data concerning the status and trends of identified limiting 
factors or threats;
    (7) information concerning the impacts of environmental variability 
and climate change on survival, recruitment, distribution, and/or 
extinction risk;
    (8) the adequacy of existing regulatory mechanisms and whether 
protections are being implemented and are proving effective in 
conserving the species;
    (9) ongoing or planned efforts to protect and restore the species 
and its habitat; and
    (10) other new information, data, or corrections including, but not 
limited to, identification of erroneous information in the previous 
listing determination.
    We request that all data and information be accompanied by 
supporting documentation such as maps, bibliographic references, or 
reprints of pertinent publications. Please send any comments in 
accordance with the instructions provided in the ADDRESSES section 
above. We will base our findings on a review of the best available 
scientific and commercial data, including relevant information received 
during the public comment period.

References Cited

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

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

    Dated: July 19, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2024-16253 Filed 7-23-24; 8:45 am]
BILLING CODE 3510-22-P