Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the American Eel as Threatened or Endangered, 38849-38861 [05-12971]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 128 (Wednesday, July 6, 2005)]
[Proposed Rules]
[Pages 38849-38861]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-12971]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the American Eel as Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding and initiation of status review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day administrative finding on a petition to list the American eel 
(Anguilla rostrata) under the Endangered Species Act of 1973, as 
amended (Act). We find the petition presents substantial information 
indicating that listing the American eel may be warranted. We are 
initiating a status review to determine if listing the species is 
warranted. To ensure that the review is comprehensive, we are 
soliciting information and data regarding this species.

DATES: The administrative finding announced in this document was made 
on July 6, 2005. To be considered in the 12-month finding for this 
petition, data, information, and comments should be submitted to us by 
September 6, 2005.

ADDRESSES: Data, comments, information, or questions concerning this 
petition should be sent to Martin Miller, Chief, Division of Endangered 
Species, Region 5, U.S. Fish and Wildlife Service, 300 Westgate Center 
Drive, Hadley, MA 01035-9589; by facsimile to 413-253-8428; or by 
electronic mail to AmericanEel@fws.gov. The petition finding, 
supporting information, and comments are available for public 
inspection, by appointment, during normal business hours at the above 
address.

[[Page 38850]]


FOR FURTHER INFORMATION CONTACT: Heather Bell, at the above address 
(telephone 413-253-8645; facsimile 413-253-8428). Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339, 24 hours a day, 7 
days a week.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial information to indicate that the petitioned action may be 
warranted. To the maximum extent practicable, this finding is to be 
made within 90 days of receipt of the petition, and the finding is to 
be published promptly in the Federal Register.
    This finding summarizes information included in the petition and 
information available to us at the time of the petition review. Our 
review of a 90-day finding under section 4(b)(3)(A) of the Act and 
section 424.14(b) of our regulations is limited to a determination of 
whether the information in the petition meets the ``substantial 
information'' threshold. Our standard for substantial information with 
regard to a 90-day listing petition finding is ``that amount of 
information that would lead a reasonable person to believe that the 
measure proposed in the petition may be warranted'' (50 CFR 424.14(b)).
    We have to satisfy the Act's requirement that we use the best 
available science to make our decisions. However, we do not conduct 
additional research at this point, nor do we subject the petition to 
rigorous critical review. Rather, at the 90-day finding stage, we 
accept the petitioner's sources and characterizations of the 
information, to the extent that they appear to be based on accepted 
scientific principles (such as citing published and peer reviewed 
articles, or studies done in accordance with valid methodologies), 
unless we have specific information to the contrary. Our finding 
considers whether the petition states a reasonable case for listing on 
its face. Thus, our 90-day finding expresses no view as to the ultimate 
issue of whether the species should be listed.
    On November 18, 2004, the Service and the National Oceanic and 
Atmospheric Administration (NOAA Fisheries) received a petition, dated 
November 12, 2004, from Timothy A. Watts and Douglas H. Watts, 
requesting that the Service and NOAA Fisheries list the American eel as 
an endangered species under the Act. The petition contained detailed 
information on the natural history of the American eel, its cultural 
use, population status, and existing threats to the species. Threats 
discussed in the petition included destruction and modification of 
habitat, overutilization, inadequacy of existing regulatory mechanisms, 
and other natural and manmade factors such as contaminants and 
hydroelectric turbines. The petition did not address potential threats 
caused by disease or predation. In response to the petitioners' request 
to list the American eel, the Service, as administrative lead for the 
species, sent a letter to the petitioners dated December 13, 2004, 
explaining that the Service, in coordination with NOAA Fisheries, would 
review the petition and determine whether or not the petition presents 
substantial information indicating that listing the American eel may be 
warranted. Jurisdiction for the American eel is jointly held by the 
Service and NOAA Fisheries, with the Service having administrative lead 
for processing this petition and working closely with NOAA Fisheries 
during the process.
    Accompanying the petition, and incorporated by reference into the 
petition, is the Atlantic States Marine Fisheries Commission's (ASMFC) 
Interstate Fishery Management Plan for American Eel (2000). The ASMFC 
is an Interstate Compact of the 15 Atlantic Coast States (Maine to 
Florida) charged with managing interstate fisheries resources of the 
Atlantic Coast. The Compact was approved by the Congress of the United 
States in 1942 in Public Law 77-539, and authority was further amended 
by Public Law 81-721 and the Atlantic Coastal Fisheries Cooperative 
Management Act (Pub. L. 103-206). The Interstate Fishery Management 
Plan for the American eel (Management Plan) was developed by ASMFC in 
response to declining stocks of American eel and had input from the 
public and commercial fishing industry, as well as considerable 
technical scrutiny from the scientific community. The Service and NOAA 
Fisheries were involved in producing the Management Plan for the 
American eel, as representatives to the ASMFC Eel Technical Committee 
charged with developing the Management Plan. State agencies and an 
academic institution were also involved in developing this document, 
and it was approved by the ASMFC board that consists of representatives 
from the 15 Atlantic Coast States.
    The Management Plan provides a detailed description of the life 
history, habitat requirements, the commercial fishery, population 
status, and threats to the American eel. The goals of the Management 
Plan are to protect and enhance the abundance of American eels in both 
inland and territorial waters within ASMFC's jurisdiction, and to 
provide for sustainable commercial, subsistence, and recreational 
fisheries by preventing overharvest of any eel life stage.
    For this finding, the Service utilized the petition and the 
Management Plan, which was incorporated into the petition by reference, 
and other petition appendices and references. Because of the rigor and 
integrity of the Management Plan, and the significance to the American 
eel of the geographic area covered by the Management Plan (the Gulf 
Stream transports the majority of larval American eel to the Atlantic 
Coast States), the Service relied on the petition and Management Plan 
in determining that the petitioned action may be warranted.
    The ASMFC announced in March of 2004 that it is developing an 
amendment to the Management Plan to address continued stock declines. 
As part of the amendment process it committed to conduct a benchmark 
stock assessment in 2005, and requested that the Service and NOAA 
Fisheries conduct a status review of the American eel. Per this 
request, the Service agreed in September 2004, prior to receiving the 
petition, to conduct a rangewide status review of the American eel in 
coordination with NOAA Fisheries and the ASMFC.

Species Information

    American eel are a migratory fish species with multiple life stages 
that migrate from freshwater to the ocean to spawn (a life history 
strategy known as ``catadromy''). American eels require various 
habitats over their long-lifespan, including open oceans, large coastal 
tributaries, small freshwater streams, and lakes and ponds. They are 
opportunistic feeders at every level of the food chain. The North 
Atlantic is home to two recognized species of catadromous eel: the 
American eel and the European eel (A. anguilla). The range of the 
American eel includes western Atlantic drainages from Greenland to 
northern portions of South America, including most Caribbean Islands, 
the eastern Gulf of Mexico, and inland areas of the Mississippi River 
and the Great Lakes drainages. The majority of the American eel 
population is along the Atlantic seaboard of the United States. There 
is U.S. and international commercial harvest, limited subsistence use 
by Native Americans, and limited recreational interest in the American 
eel fishery.

[[Page 38851]]

Life History Characteristics

Reproduction and Growth

    American eel eggs hatch in the Sargasso Sea, in the western 
Atlantic Ocean (for further description of the Sargasso Sea, see 
Habitat section below). The required environmental conditions for 
reproduction and the incubation period for the American eel are unknown 
(ASMFC 2000). The resulting larvae (leptocephali) drift in the upper 
300 meters of the Gulf Stream for up to one year before reaching the 
North American continent (Kleckner and McCleave 1985, as in ASMFC 
2000). At sea, perhaps at the edge of the continental shelf (Hardy 
1978, as in ASMFC), the shape of the larvae dramatically changes as 
they metamorphose into miniature transparent glass eels (ASMFC 2000). 
American eel larvae may only be capable of undergoing metamorphosis 
during a specific window beginning after 6-8 months and remain capable 
for only 4-6 additional months (McCleave 1987, 1993, as in Castonguay 
et al. 1994b).
    Glass eels actively migrate toward freshwater and ascend rivers 
during the winter and spring by drifting on flooding tides, holding 
position near the bottom on ebb tides, and actively swimming along the 
shore in estuaries above tidal influence (Facey and Van Den Avyle 1987; 
Barbin and Krueger 1994, as in ASMFC 2000). Migration to freshwater 
occurs earlier in the southern portion of the range and later in the 
northern portion (Helfman et al. 1984, McCleave and Kleckner 1982, as 
in ASMFC 2000), possibly due to the increased distance of northern 
areas from the Sargasso Sea.
    Anadromous fish (e.g., salmon and shad) spawn in freshwater but 
spend most of their lives at sea. As they mature, these fish usually 
return to their river of origin to repeat the cycle. Return rates and 
abundance are driven by prior spawning success, at sea survival, and 
environmental conditions. American eels are also highly migratory, but 
in the opposite direction. Adult eels migrate from freshwater to the 
ocean to spawn (catadromy). Since they are not returning to a home 
river, dispersion of juvenile ``glass'' eels back into freshwater is 
more likely dependant on environmental conditions, such as ocean and 
nearshore currents, river discharge rates, and temperature, as well as 
timing of larval metamorphosis (R. StPierre pers. comm. 2005).
    Glass eels become elvers when they ascend into brackish or fresh 
water and become pigmented (McCleave and Kleckner 1982, as in ASMFC 
2000). Upstream migration may occur from May through October (Richkus 
and Whalen 1999, as in ASMFC 2000), peaking earlier in the southern and 
later in the northern portion of the range (Helfman et al. 1984, 
McCleave and Kleckner 1982, as in ASMFC 2000).
    Elvers become yellow eels approximately 2 years after hatching and 
resemble the adult form. Yellow eels are usually yellow or green, and 
reach sizes up to about 11 in (28.0 cm) for males and 18 in (46 cm) for 
females (Hardy 1978, as in ASMFC 2000). The timing and duration of 
upstream migration is watershed specific, and upstream migration may 
occur in most months of the year (ASMFC 2000). The growth rates of 
yellow eels are variable, depending on latitudinal location (eels grow 
more slowly in the north than in the south) and habitat productivity 
(eels grow more slowly in freshwater than in estuarine areas because of 
the lack of productivity or nutrients in freshwater as compared to 
estuaries) (Richkus and Whalen 1999, as in ASMFC 2000).
    The silver eel life stage, during which eels become sexually mature 
and begin their spawning migration, begins after 3, and up to 24 years 
as a yellow eel. Yellow eels, responding to some environmental or 
metabolic signal, begin to migrate downstream in the late summer or 
fall. As they proceed downstream, they transform into silver eels 
(Hardy 1978; Fahay 1978; Wenner 1973; Facey and Van Den Avyle 1987, as 
in ASMFC 2000). This transformation includes several physiological 
changes, including: (1) Silvering of the skin; (2) body fattening; (3) 
skin thickening; (4) eye enlargement and pigment change; (5) increased 
length of capillaries in the rete (a netlike structure) of the swim 
bladder; and (6) digestive tract degeneration (Facey and Van Den Avyle 
1987).
    Sex Ratio. There are several environmental variables that may 
influence age at sexual maturity, sexual determination, and the 
resulting ratios of females and males (juveniles are not sexually 
determined and at a certain stage may be hermaphroditic--being both 
sexes). In general, sexual differentiation does not occur until eels 
are about 8-10 in (20-25 cm) long (Dolan and Power 1977, as in Facey 
and Van Den Avyle 1987). Sexual maturity appears to occur at older ages 
and larger sizes in the northern portion of their range when compared 
with the southern portion, resulting in northern females being the most 
fecund and having a relatively long life span (Helfman et al. 1987, as 
in ASMFC 2000). Most sexually mature males are greater than 11 in (28 
cm), and older than 3 years of age in the northern populations. 
Information from the northern stocks indicates that most sexually 
mature females are greater than 18 in (46 cm), and older than 4 years 
of age (Hardy 1978, Fahay 1978, as in ASMFC 2000).
    It has been hypothesized that sex determination, and the resulting 
differences in ratios and distribution, may be due to a variety of 
factors, including: (1) Latitudinal differences (females more abundant 
in northern areas: McCleave 1996, as in ASMFC 2000), (2) differences in 
salinity (females more abundant in freshwater: Facey and LaBar 1981, as 
in ASMFC 2000), (3) density dependency (more females in areas of low 
density: Fahay 1978, as in Facey and Van Den Avyle 1987), (4) timing 
(males returning to spawn earlier than females, and therefore finding 
it beneficial to stay in southern latitudes), or (5) energy use (slower 
growth, such as that which would occur in typically less productive 
areas of northern or inland areas, leads to larger size, and for 
females a higher fecundity: Helfman et al. 1987, as in ASMFC 2000).
    Spawning. American eel fecundity can range between 0.5 to 21.9 
million eggs per female and can be predicted based on female size 
(Facey and Van Den Avyle 1987, McCleave and Oliveira 1998, as in ASMFC 
2000). High fecundity of the eel is consistent with an r-selected 
strategy that assumes high mortality of larval and subadult stages 
(Wenner and Musick 1974, Barbin and McCleave 1997, as in ASMFC 2000).
    Adult American eels from throughout their range are believed to 
synchronize their arrival at the spawning grounds; however, little is 
known about the oceanic portion of the spawning migration, or 
mechanisms for locating the spawning grounds (Miles 1968, as in ASMFC 
2000). The American eel may use the geoelectrical fields generated by 
ocean currents for orientation (Rommel and Stasko 1973, as in ASMFC 
2000). The depth at which American eels migrate in the ocean has been 
hypothesized to vary with light intensity and turbidity (Edel 1976, as 
in ASMFC 2000). Migration has been suggested to occur within the upper 
few hundred meters of the water column (Kleckner et al. 1983, McCleave 
and Kleckner 1985, as in ASMFC 2000). However, Robins et al. (1979, as 
in ASMFC 2000) photographed two Anguillid eels, possibly pre-spawning 
American eels, at depths of about 6,500 ft (2,000 m) on the floor of 
the Atlantic Ocean in the Bahamas.
    Some feature of the surface water mass of the Sargasso Sea, such as 
thermal fronts, may serve as a cue for

[[Page 38852]]

adult American eels to cease migration and begin spawning. Eels are 
thought to spawn in the winter and early spring in the upper few 
hundred meters of the water column of the Sargasso Sea (Kleckner et al. 
1983, McCleave and Kleckner 1985, as in ASMFC 2000). After spawning, 
the spent eel is assumed to die (Facey and Van Den Avyle 1987).
    The American eel and the European eel, considered separate species, 
both spawn in the Sargasso Sea, but a mechanism for separation, 
possibly location, depth, or timing of spawning, is unknown, and an 
area of overlap in spawning habitat is likely. Leptocephali of both 
species have been captured in the same trawl (McCleave et al. 1986b, as 
in Facey and Van Den Avyle 1987). Morphologically, the adult American 
and European eel differ in the number of vertebrae or myomeres. Larvae 
with the ``American'' and ``European'' myomere counts have partially 
separate but overlapping spatial and temporal distributions in the 
Sargasso Sea (Schmidt 1922, Schoth 1982, Schoth and Tesch 1982, 
Bo[euml]atius and Harding 1985a, b, Mcleave et al. 1987, Kleckner and 
McCleave 1988, as in Avise 2003), indicating that spawning areas 
overlap to some degree. Both mitochondrial and nuclear gene evidence 
show that American and European eels belong to two largely separate 
gene pools (Avise 2003). Genetic data in conjunction with vertebral 
counts indicate that about 2 to 4 percent of the Icelandic eel are of 
American eel ancestry but do not appear to be strays, indicating a zone 
of hybridization between the two species (Avise 2003).
    Genetic studies indicate that American eels are a single panmictic 
breeding population (Williams and Koehn 1984, as in ASMFC 2000), 
meaning that it is a single breeding population exhibiting random 
mating, and that offspring from any parents are capable of inhabiting 
any suitable habitat in any portion of the range. Recent analyses, 
however, may indicate genetic variation with latitude, suggesting that 
mating within the species is not panmictic in the strict sense and that 
dispersal of larvae is not entirely random with respect to where their 
parents resided in continental waters (Avise 2003).

Feeding Habits

    American eels are carnivorous, and at various life stages and 
locations they feed on multiple trophic levels, such as zooplankton and 
phytoplankton as leptocephali, aquatic invertebrates as juveniles, and 
fish and crustaceans as adults (McCord 1977, Ogden 1970, Wenner and 
Musick 1975, as in ASMFC 2000).

Range, Distribution, and Habitat

    The American eel occupies fresh, brackish, and coastal waters along 
the Atlantic Ocean from the southern tip of Greenland to northeastern 
South America, the inland waters near the Caribbean, the eastern Gulf 
of Mexico, and inland to the Mississippi River and Great Lakes 
drainages. Important aspects of American eel life history, including 
spawning, larval development, and migration, occur in the open ocean. 
Successful migration of leptocephali (and thus recruitment) depends on 
oceanic conditions being suitable to transport the larvae to 
continental areas during the window of metamorphosis from larvae into 
glass eel on the Continental Shelf (see the Reproduction and Growth 
section of this document). The mean circulation in the vicinity of the 
spawning area tends to transport larvae westward, and eventually into 
the Gulf Stream system, which carries them north and east along the 
coast of North America (i.e. Florida to Canada) (McCleave 1993, as in 
Castonguay et al. 1994). Other currents may transport larvae in smaller 
numbers to the more southerly areas of the range, but the conditions 
under which this happens are unclear.
    Elver habitat likely includes soft, undisturbed bottom sediments 
(Facey and Van Den Avyle 1987) and river currents appropriate for 
upstream migration (Tesch 1977; Sorensen 1986; Sorensen and Bianchini 
1986, as in ASMFC 2000). Feeding and growth of yellow eels occur in 
estuaries and fresh waters over a period of many years (including 
offshore, midwater, and bottom areas of lakes, estuaries, and large 
streams) (Adams and Hankinson 1928, Facey and LaBar 1981, GLFC 1996, 
Helfman et al. 1983, NYSDEC 1997a & b, as in ASMFC 2000; Facey and Van 
Den Avyle 1987).
    When American eels metamorphose into silver eels and migrate 
seaward to their spawning ground, they travel downstream mostly at 
night (Bigelow and Schroeder 1953, as in ASMFC 2000) and may inhabit a 
broad range of depths throughout the water column.
    As mentioned earlier, spawning occurs in the Sargasso Sea, an oval 
area in the middle of the Atlantic Ocean, between the West Indies and 
the Azores (between 20[deg] to 35[deg] North Latitude and 30[deg] to 
70[deg] West Longitude), composed of a nearly 5.2 million km 
2 area. Although the boundaries are not easily delineated, 
the Sea is identified as the ``eye'' of a large, slow, clockwise moving 
gyre of clear, deep blue colored, warm surface waters, with elevated 
salinity and low plankton production. The Gulf Stream provides the 
western boundary, which along with other ocean gyres (large circular 
currents in all the ocean basins), such as the North Equatorial 
Current, encircles the Sargasso Sea.
    Knowledge of the specific spawning area for the American eel within 
the Sargasso Sea is based on the distribution of the smallest 
leptocephali, as adults have never been observed in the area. Miller 
(1995, as in ASMFC 2000) reported two major distribution patterns for 
leptocephali with the highest abundance in areas located near fronts in 
the west of the Subtropical Convergence Zone (STCZ) in the southwestern 
Atlantic. The smallest leptocephali were reported to have been 
collected near the Bahama Banks (the Bahamas) in the Florida Current 
and at stations close to the southerly fronts in the western STCZ.

Population Status

    Historically, American eels were abundant in East Coast streams and 
estuaries, and thought to comprise more than 25 percent of the total 
fish biomass (Smith and Saunders 1955, Ogden 1970, as in ASMFC 2000). 
Although this species declined from the historic levels, the population 
remained relatively stable, some thought, until the 1970s (ASMFC 2000). 
Others, including the Southeastern Fishes Council Technical Advisory 
Committee, concluded, based on a review of 51 major drainages of the 
southern United States, that the regional stock of the American eel was 
stable (Warren et al. 2000) through the 1990s, and NatureServe, which 
utilizes occurrence data, listed many eel stocks in Atlantic States as 
stable in 2001 (NatureServe 2004).
    According to the ASMFC (2000), the eel has lost much of its habitat 
along the eastern United States. As stated in the petition, the ASMFC 
states: ``By region, the potential habitat loss [for American eel] is 
greatest (91 percent) in North Atlantic region (Maine to Connecticut) 
where stream access is estimated to have been reduced from 111,482 
kilometers to 10,349 kilometers of stream length. Stream habitat in the 
Mid Atlantic region (New York through Virginia) is estimated to have 
been reduced from 199,312 km to 24,534 km of unobstructed stream length 
(88 percent loss). The stream habitat in the South Atlantic region 
(North Carolina to Florida) is estimated to have decreased from 246,007 
km to 55,872 km of unobstructed stream access, a 77 percent loss.''

[[Page 38853]]

    Decreases have been noted in the commercial and recreational 
fisheries. Since the fisheries' peak in the mid 1970s at 3.5 million 
pounds, commercial landings have declined significantly to a near 
record low of 868,215 pounds in 2001. Recreational data concerning eel 
harvest also appears to indicate a decline in abundance. According to 
the National Marine Fisheries Service (now NOAA Fisheries) Marine 
Recreational Fisheries Statistics Survey, recreational harvest in 2001 
was 10,805 eels, a significant decrease from the peak of 106,968 eels 
in 1982 (ASMFC 2000). Harvest data are often all that is available; 
however, taken alone without a measure of fishing effort, this type of 
data are not good indicators of eel abundance because harvest is 
dependent on demand, which can fluctuate dramatically (the number of 
commercial harvest permits issued per state can provide a surrogate for 
fishing effort, and understanding and adjusting for market fluctuations 
can provide a clearer picture of trends). Additionally, changes in 
year-class strength are not readily recognizable because most samples 
of eels include individuals of similar sizes, but from unknown year 
classes, and harvest of young yellow-phase eels for use as crab bait 
and as live bait for recreational fisheries frequently go unreported 
(Haro et al. 2000).
    Richkus and Whalen (1999, as in ASMFC 2000) concluded that there is 
broad-based evidence for a decline of American eels from 1984 to 1995 
based on a Mann-Kendall trend analysis of eel abundance time series on 
eel migration data, including data from the Moses-Saunders eel ladder. 
Their results indicate significant negative trends for yellow and/or 
silver eel abundance in Ontario, Quebec, New York, and Virginia. The 
authors found no trends for glass eel or elvers, but those data sets 
were generally not complete and may not have covered the years where 
the largest declines were observed in other data sets.
    In Canada, different areas report seemingly opposing harvest data. 
Commercial landings in the Nova Scotia region of the Gulf of St. 
Lawrence and from Newfoundland show variability in yellow and silver 
eel landings, but no clear trend. By contrast, an upward trend is 
apparent in catches south of the Gulf of St. Lawrence, in the Canadian 
Atlantic/Bay of Fundy regions (threefold increase since the mid or late 
1980s) (ICES 2000). According to Ontario's Ministry of Natural 
Resources, Lake Ontario, which had as many as 10 million eels two 
decades ago, now holds only tens of thousands. Ontario's commercial eel 
harvest peaked at more than 500,000 lbs (250 tn) in 1978. The 30,000 
lbs (15 tn) harvest in 2003 was a fraction of the 1978 harvest (Dohne 
2004, as in petition).
    The St. Lawrence River in Canada, one of the largest rivers in 
North America, has seen little or no recruitment for the last 10 years, 
with an estimate of only 1 percent of the stocks remaining in this 
area. This observation is partially based on the age of eels (which 
appear to be getting older, indicating a failure in recruitment) and 
the monitoring of abundance at the eel ladder at the Moses-Saunders 
Dam. Annual numbers of juvenile eels climbing the Moses-Saunders Dam 
eel ladder decreased from a peak of 1,293,570 in 1983, to 935,170 in 
1985, and went as low as 11,533 eels in 1992 (a 99 percent decline in 
recruitment to Lake Ontario). Electrofishing surveys and waterfall 
surveys of tributaries to the Gulf of St. Lawrence also point to an eel 
recruitment decline between 1981 and 1985 of approximately 80-90 
percent (Castonguay et al. 1994a). Lake Ontario scientific trawl 
surveys from 1972-1999 (except 1989) indicated a downward trend with 
catches in the last five years an order of magnitude lower than in the 
first five years of the survey (ICES 2000). These observed declines may 
have significant impacts on the eel rangewide, as the stock in the St. 
Lawrence River is made up primarily of large spawning females. There is 
concern that if their numbers are down, it may affect recruitment to 
the entire Atlantic Coast. John Casselman, researcher for the Ontario 
Ministry of Natural Resources, Canada, and others, hypothesize that a 
substantial proportion of large female spawners for this panmictic 
species are from the St. Lawrence system (ASMFC 2004). As a consequence 
of the observed decline, the Ontario Ministry of Natural Resources 
issued a moratorium in 2004 on commercial eel harvest for Ontario 
waters, and a moratorium on recreational eel harvest is forthcoming 
(Casselman pers. comm. 2005).
    Recent information indicates that a decline in U.S. harvest 
continues. Based on 2002 harvest reports collected by the ASMFC, the 
long-term average (52 year period) for landings is down 64 percent, the 
more recent average (past 20 years) for landings is down 44 percent, 
and the most recent average (past 5 years) for landings is down about 
30 percent (Geer 2004).
    The information provided by the petitioners indicates that American 
eel populations have generally declined and the species has lost much 
of its habitat. Declines in eel populations appear to be most dramatic 
in the Saint Lawrence, Lake Ontario, and northeastern states. In other 
areas, such as the southeast, declines may not be as severe and 
populations may be stable. Additionally, the American eel appears to 
have lost the majority of its stream habitat, ranging from 91 to 77 
percent habitat loss in states bordering the Atlantic Ocean. Although 
much of the population trend information is based on harvest data 
without any measure of effort, we believe that the petitioner has 
provided substantial information indicating that the eel's population 
has declined on a regional basis, in addition to experiencing severe 
habitat loss.
    Factors that may contribute to a possible population decline are 
habitat loss and degradation, overharvest, disease, structures impeding 
upstream and downstream passage, contaminants, and variable oceanic 
conditions (further discussed in Discussion of Listing Factors). 
Similar declines in the population of European and Japanese eels have 
been observed (Moriarty and Dekker 1997, Tatsukawa and Matsumiya 1999, 
as in Haro et al. 2000).

Discussion

    In the following discussion, we respond to each of the major 
assertions made in the petition, organized by the Act's listing 
factors. Section 4 of the Act and its implementing regulations (50 CFR 
424) set forth the procedures for adding species to the Federal list of 
endangered and threatened species. A species may be determined to be an 
endangered or threatened species due to one or more of the five factors 
described in section 4(a)(1) of the Act. The five listing factors are: 
(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; and 
(5) other natural or manmade factors affecting its continued existence.
    The petition provided specific information on the life history of 
the American eel, use of American eels by humans, population status, 
obstacles to river passage, mortality by hydroelectric turbines, and 
the impacts of contaminants, habitat loss, and harvest, as well as a 
discussion of inadequacy of existing regulatory mechanisms. 
Incorporated into the petition by reference was the ASMFC Interstate 
Fishery Management Plan for American Eel (Management Plan) (ASMFC 
2000), which summarizes peer reviewed papers on the status of the 
species and recent and historical trends and

[[Page 38854]]

provides extensive information on the life history and the threats and 
impacts affecting various life stages of the species, in the eastern 
United States. Participating in the development of the Management Plan 
were the Service; Maine Department of Marine Resources; New Jersey 
Division of Fish; Game and Wildlife; Delaware Division of Fish and 
Wildlife; South Carolina Department of Natural Resources; Maryland 
Department of Natural Resources; and East Carolina University. This 
document was also approved by the ASMFC board, which consists of 
representatives from 15 Atlantic Coast States.
    This 90-day finding is not a status assessment and does not 
constitute a status review under the Act.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    The petition, its appendices, and referenced documents discuss the 
following threats which we have grouped under Factor A: (1) Seaweed 
harvest; (2) benthic habitat degradation; (3) alterations in stream 
flow; (4) loss of wetland habitat; and (5) loss of upper tributary 
habitat.
Seaweed Harvest
    Information provided in the petition. The petitioner did not 
provide specific information on the effects of seaweed harvest on 
American eels. However, the Management Plan incorporated by reference 
discussed seaweed harvest as a possible emerging threat to the ocean 
spawning habitat.
    Reproduction of all American eels occurs in the Sargasso Sea. One 
species of Sargassum, a brown algae that is commonly found floating in 
the Sargasso Sea and drifting along the Atlantic Coast from Florida to 
Cape Cod, was harvested in U.S. waters primarily by one company. The 
harvesting of Sargassum began in 1976, but has only occurred in the 
Sargasso Sea since 1987 (ASMFC 2000).
    Analysis of the information provided in the petition and 
information in our files. The Management Plan proposes that the harvest 
of Sargassum may affect American eels (ASMFC 2000). From 1976 through 
1998, approximately 44,800 lbs (dry) of Sargassum have been harvested, 
33,500 lbs of which were from the Sargasso Sea (ASMFC 1998). The ASMFC 
stated that the harvesting of Sargassum was to be eliminated in the 
South Atlantic Exclusive Economic Zone (EEZ) by January 2001; however, 
a Management Unit for Sargassum was established in 2002 throughout the 
South Atlantic EEZ and State Waters that did not eliminate harvest, but 
instituted timing restrictions and established specific areas where 
harvest is closed (ASMFC 2002). The remainder of the Sargasso Sea is 
outside of the EEZ and currently not subject to restriction.
    It is conceivable that harvesting Sargassum would affect eggs and 
leptocephali, if harvest occurs where eggs and leptocephali are 
present. There is also the potential that migrating or spawning adults 
may be affected either directly or indirectly by the harvest of 
Sargassum. We agree that seaweed harvest may impact American eels. 
However, we are not aware of any analysis on the extent and impact of 
this activity on the American eel; therefore, we are unable to speak to 
whether seaweed harvest has caused or contributed to a decline in 
American eel.
Benthic Habitat Degradation
    Information provided in the petition. The petitioner did not 
provide specific information on the effects of benthic habitat 
destruction on American eels. However, the Management Plan incorporated 
by reference discussed benthic habitat destruction as a possible threat 
within the Continental shelf habitat.
    The Management Plan also explained that larval migration, feeding, 
and growth, and juvenile metamorphosis, migration, feeding, and growth 
all occur on the Continental Shelf. Glass eel growth, distribution, and 
abundance, according to the ASMFC, is probably impacted by a variety 
direct effects (e.g., channel dredging and overboard spoil disposal) 
and indirect effects (e.g., changes in salinity due to dredging) (ASMFC 
2000).
    Analysis of the information provided in the petition and 
information in our files. Glass eels and elvers burrow or rest in deep 
water during the day (Deelder 1958, as in ASMFC), and therefore may be 
susceptible to activities, such as dredging, that disturb those 
habitats. Channel dredging and overboard spoil disposal are common 
throughout the Atlantic coast. Changes in salinity as a result of 
dredging projects could alter the distribution of American eels. 
Additionally, dredging associated with whelk and other fisheries may 
damage benthic habitat for this species (ASMFC 2000). However, we are 
not aware of any analysis on the extent and impact of these activities 
on the American eel, and therefore, we are unable to speak to whether 
benthic habitat degradation has caused or contributed to a decline in 
the American eel.

Alterations of Stream Flow

    Information provided by the petitioner. The petitioner did not 
provide specific information on the effects that alterations of stream 
flow have on American eels. However, the Management Plan incorporated 
by reference discussed alterations of stream flow as being a possible 
threat to their access to tributaries, which would limit upstream 
recruitment.
    Elvers are small (4 in/10 cm or less in length) and are poor 
swimmers, initially utilizing tides when initiating upstream migration. 
Elvers orient to river currents for their upstream migration (Tesch 
1977, as in ASMFC 2000). Their upstream migration is a slow process 
(Haro and Krueger 1988, as in Richkus and Whalen 1999, as in ASMFC, 
estimated upstream migration rates of 6 m/day), and if the current 
becomes too weak or too strong (changes in stream velocity), the eels 
may move into backwater areas, severely delaying upstream progress 
(Tesch 1977, as in ASMFC 2000). The onset of this active upstream 
migration appears to be influenced by several environmental variables 
(changes in water chemistry caused by intrusion of estuarine water, or 
changes in pH or salinity), or other environmental variables such as 
river current velocities, the odor of decomposing leaf detritus, or a 
temperature threshold (Facey and Van Den Avyle 1987, Sorensen and 
Bianchini 1986, as in ASMFC 2000).
    Analysis of the information provided in the petition and 
information in our files. Altering stream flows, such as rapid changes 
in stream flow associated with hydroelectric project peaking operations 
and water storage facilities, may limit upstream recruitment according 
to ASMFC by affecting upstream migration (2000). However, we are not 
aware of any analysis on the extent and impact of alterations of stream 
flow on American eels, and therefore, we are unable to speak to whether 
alterations of stream flow have caused or contributed to a decline in 
the American eel.
Loss of Wetland Habitat
    Information provided by the petitioner. The petitioner did not 
provide specific information on the effects of wetland habitat loss on 
American eels. However, the Management Plan incorporated by reference 
discussed loss of wetland habitat under decreased availability of 
important habitats.
    Lost wetlands or access to wetlands have significantly decreased 
the availability of important habitats for

[[Page 38855]]

feeding and growth of American eel juveniles and subadults (ASMFC 
2000). Ackerknecht et al. (1984, as in ASMFC 2000) reported in 1984 
that over half (54 percent) of the coastal wetlands in the lower 48 
states have been destroyed.
    Analysis of the information provided in the petition and 
information in our files. Wetlands loss can be caused by filling and 
dredging, and coastal subsidence. Degradation of wetland habitat has 
occurred due to contaminants and the invasion of nonnative species. 
Although prior losses have been significant, regulations implemented in 
the 1970s have curbed declines by 42 percent. For example, all coastal 
States in the lower 48, except Texas, have enacted special laws to 
protect estuarine wetlands (Ackerknecht et al. 1984; Tiner 1991). The 
ASMFC (2000) reported that the historic loss of wetland habitat, along 
with loss of upper tributary habitat (discussed below), significantly 
decreased the availability of important habitats for the feeding and 
growth of American eels. However, the most significant loss of 
estuarine wetlands occurred before the decline in the American eel was 
reported. We agree that the loss of wetland habitat has likely impacted 
and may continue to impact American eels. However, because of the 
temporal discrepancy between the greatest wetland loss and the onset of 
a decline, we believe that the loss of wetland habitat is unlikely the 
single cause of the decline, but may have contributed to the decline in 
combination with other factors.
Loss of Upper Tributary Habitat
    Information provided by the petitioner. The petitioners presented 
information on the decline of freshwater habitat available to American 
eels, stating that it has declined, having been destroyed, modified, or 
curtailed by at least 84 percent in the United States. This significant 
loss of habitat is due to blockage or restriction caused by dams.
    In a Busch et al. (1998, as in ASMFC 2000) assessment, they 
determined that Atlantic coastal streams from Maine to Florida have 
15,115 dams that can hinder or prevent upstream and downstream movement 
of eels, resulting in a restriction or loss of access to 84 percent of 
the stream habitat within the Atlantic Coastal historic range. This is 
a potential reduction from 345,359 miles (556,801 kilometers) to 56,393 
miles (90,755 kilometers) of stream habitat available for species such 
as American eel. The greatest losses reported in Busch et al.'s study 
were in the North Atlantic region from Maine to Connecticut where 
potential habitat loss is estimated at 91 percent. The South Atlantic 
region of North Carolina to Florida is estimated to have experienced a 
77 percent loss of habitat (Busch et al. 1998, as in ASMFC 2000). 
Although elvers will attempt to scale wetted substrates, such as small 
dam faces, for many of the migrants, dams probably limit their ability 
to pass these structures (Tesch 1977, as in ASMFC 2000).
    In Canada, the construction of the Moses-Saunders Dam in 1954-58 
impeded upstream (and downstream) migration on the St. Lawrence River, 
restricting access by migratory fish from the Atlantic Ocean to Lake 
Ontario and the Finger Lakes system in New York for 20 years. An eel 
ladder, constructed at the dam in 1974, improved upstream passage 
(ASMFC 2000).
    Analysis of the information provided in the petition and 
information in our files. Castonguay et al. (1994a) reviewed major 
habitat modifications as a potential cause for the drastic decline of 
American eels in the Lake Ontario and Gulf of St. Lawrence ecosystems. 
Anthropogenic (human-caused) habitat modifications in the Lake Ontario/
St. Lawrence River ecosystem (such as the Moses-Saunders Dam) occurred 
mostly before the 1960s, whereas the eel recruitment decline started 
only in the early to mid 1980s. The lack of temporal correspondence 
between permanent habitat modifications argues, according to Castonguay 
et al. (1994a), against their role in the decline. However, they 
provide caution to accepting this explanation, because of the American 
eel's strikingly different life histories (panmictic, longer lived, and 
ocean spawning as compared to anadromous fishes); catadromous fishes 
(such as eel) are likely to respond more slowly to these anthropogenic 
impacts compared with anadromous fish populations.
    Although along the U.S. Atlantic Coast there remains some available 
upstream habitat, unlike anadromous species such as herring or shad, 
American eels have no particular homing instinct. The implication here 
is that although rivers remain that allow for upstream migration, even 
if an adult female successfully migrates down her resident stream and 
spawns, the resulting young eels will not necessarily return to that 
stream and could, due to currents, be delivered to an area with 
upstream blockage. Returning to a stream with blockage does not 
necessarily eliminate survival (as the young can remain in the lower 
reaches and likely become male), but it may present increased risks of 
predation (predation may be significant at the blockage where predatory 
fish may congregate).
    Based on the information provided by the petitioner and an analysis 
of the information in our files, we agree with the petitioners' 
assertion that the decline in American eel may be in some part 
attributable to the loss of upper tributary habitat for female eel, and 
if not responsible for the decline initially, may well be a limiting 
factor as population numbers decrease.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Information provided by the petitioner. According to the 
petitioners, it is undisputed that overutilization through harvest of 
the American eel is occurring across the species' range in the United 
States and that along with habitat loss, harvest pressure is a primary 
cause of any possible historic and recent decline in abundance of the 
American eel (Castonguay et al. 1994a and 1994b, as in ASMFC 2000).
    The U.S. commercial fishery has traditionally supplied American 
eels for the U.S. and European food markets, domestic trotline bait, 
bait for domestic sport fisheries, and (at times) the Asian food 
market. American eel fisheries exist in the United States, Canada, and 
to a lesser extent the Caribbean and Central America. American eel 
fisheries have fluctuated widely. For example, throughout the first 
half of the 20th century, the eel fishery was small; however, as 
European and Asian eel fisheries declined by the late 1960s, a strong 
market developed in the early 1970's for live American glass eel and 
elvers which range from 2-4 inches (Crawford 1996, as in ASMFC 2000). 
Eastern Asia has an intensive aquaculture industry (165,347 tn/150,000 
t metric production) which is dependent upon and supported by wild-
caught glass eel and elvers because artificial propagation of the 
species from fertilized egg to commercial size has not been successful 
(Moriarty and Dekker 1997, as in ASMFC 2000). Both glass and elver 
commercial eel fisheries are scattered throughout the American eel's 
range, with the present fishery concentrated in Maine (16,599 lbs 
landed in 1995; ASMFC 2000).
    Yellow eel spend from 2 to 30 years in fresh and estuarine habitats 
before reaching sexual maturity and are harvested throughout that 
period. According to ASMFC (2000) they are thus susceptible to 
overharvest. Silver eels are sexually mature individuals and are 
harvested in freshwater and marine environments throughout their range.

[[Page 38856]]

    During strong market periods, for instance in the 1970s and 1990's, 
legal shipment increases of over 153 and 230 percent, respectively, 
were recorded (ASMFC 2000). Annual harvest reported in the mid 1970's 
was in excess of 1,700 tons, and in the 1990's just under 14 tons. 
These harvests are likely less than the actual amount exported as 
underreporting has been an issue (underreporting has ranged from 3.6 to 
261 percent) (ASMFC 2000). More recent information provided by the 
petitioner indicates that U.S. landings on the Atlantic Coast are down 
about 64 percent of the long-term average, possibly (Geer 2004).
    Analysis of information provided in the petition and information in 
our files. Information in our files provides additional detail on the 
extent of the commercial and recreational American eel fishery. Few 
recreational anglers directly target eel, but eel are often purchased 
by recreational fishermen for use as bait for larger gamefish such as 
striped bass. From the Atlantic coast area surveyed, the estimated 
total annual catch of eel ranged from 212,690 eel in 1982 to 36,741 eel 
in 1997 (ASMFC 2000). Some recreational fishermen may catch eels for 
bait purposes directly, but not report such landings (ASMFC 2004).
    Commercial exports of glass eels to Europe and Asia have led to 
enforcement problems due to high prices, low cost of entry to the 
fishery, and large numbers of participants. State agencies have focused 
enforcement efforts on take while federal efforts have been focused on 
foreign trade aspects of the fishery. A U.S. Fish and Wildlife Service, 
Division of Law Enforcement (USFWS-DLE) review of foreign trade of 
American eels from 1992 to 1996 revealed problems with reporting of 
catches and exports, with records for 1993 showing more than twice as 
many live American eels being exported as were reported caught in the 
U.S. Commercial eel harvest is reportedly one of the largest commercial 
fishing activities on the east coast due to the high economic 
incentives associated with glass eels. The commercial ``on-the-street'' 
price for glass eels from the Atlantic seaboard ranges from 
approximately $600 per pound in the early fishery to $100 per pound in 
the late fishery (USFWS-DLE pers. comm.).
    Illegal take of glass eels and possibly other life stages were not 
recognized as a major problem until summer 1997. Numerous prosecutions 
for illegal fishing activity involving glass eels have taken place in 
state and federal courts since 1997. During the period March 1996 
through March 1998, the Office of Law Enforcement expended a great deal 
of man hours and effort focused on the protection of American eels. 
This period saw a marked increase in illegal activity involving 
American eels that was directly attributable to the black market value 
of elvers. Service investigations revealed that during this period 
poachers could easily expect to command in the neighborhood of $350 per 
pound for eels, harvested at only about 2 to 4 inches long, that were 
then exported live to Asia and Europe (USFWS-DLE pers. comm.).
    In 1999 the Office of Law Enforcement observed a nearly complete 
cessation of illegal activity involving American eels. This appears to 
be the result of a bottoming out of the black market value for elvers 
and not a reaction to previous enforcement activity. In 1999 commercial 
fisherman, who could legally harvest elvers in Maine, reported they 
were lucky to get $20-$22 a pound as compared to the $350 per pound 
seen the year before. This drop in value apparently was the result of 
the preference of Asian consumers for the taste of juvenile Asian eels 
over American eels and the availability of farmed raised Asian eels. 
During this three year period, the Office of Law Enforcement conducted 
three separate but related investigations intended to detect and 
prosecute subjects involved in illegal commercialization of elvers. 
Current regulatory requirements make it difficult to document the 
number of glass eels in the commercial trade. The Atlantic States 
Marine Fisheries Commission has recommended that the Fish and Wildlife 
Service proceed with listing the American eel in Appendix III of CITES 
to allow for better monitoring of glass eel harvest and 
commercialization. Recently the price for elvers has risen to $200 per 
pound (USFWS-DLE pers. comm.).
    Shifts in population makeup are evident in the upper Chesapeake Bay 
in Maryland where harvest pressure is on larger eels. Weeder and Uphoff 
(2003) noted a shift in population makeup between the 1980s and 1990s 
toward younger, smaller eels being harvested. This is consistent with 
responses to increased size selective fishing pressure (i.e. large eels 
being exploited). Many exploited fish stocks decrease in size at 
maturity as a compensatory response (Trippel 1995, as cited in Weeder 
and Uphoff 2003). Harvest of large individuals unequally affects 
females. Eels below 40 cm in length are either male or female, but 
almost all eels greater than 40 cm are female. Additionally, suggests 
Weeder and Uphoff, smaller eels may be less reproductively successful. 
If there were sufficient reduction in the reproductive contribution 
from particular areas, overall egg production would likely be impacted. 
Because larval dispersal is random, a decline in larval production 
would impact the entire species range, including those areas from which 
the reproductive contribution of spawners was high. Weeder's more 
recent work in association with Hammond (in review), stated that strong 
fishing pressure, which removes thousands of pound of eels per day from 
the small tidal estuaries they studied, is likely to cause reduced 
densities consistent with the demographics they observed. Median catch-
per-unit effort (CPUE) of eels sampled in a fishery-independent survey 
of Chesapeake Bay's Sassafras River, a heavily fished system, dropped 
from 9 to 0 eels per eel pot (between 1981 and 1998) and median total 
weight dropped from 2.5k kg/pot to 0 kg/pot. Conversely, an increase in 
eel size was observed after fishing ceased in the Wye River. They 
concluded that the lower fecundity and number of spawning adults may 
reduce the amount of spawner biomass to unsafe levels.
    Along with the commercial fishery in the U.S., an active commercial 
fishery exists in Canada. Yellow and silver eel catches are reported 
from the Lake Ontario/St. Lawrence River ecosystem as well as from the 
Gulf of St. Lawrence and from Atlantic Nova Scotia and the Bay of Fundy 
(ICES 2000). The mean annual catches of St. Lawrence River were 788 tn 
(715 t) in 1984 and 592 tn (537 t) in 1991. The periodic reporting of 
``river eel'' catches in the Caribbean and Central American countries 
are believed to be glass eels/elvers caught for export. Information has 
only been collected since 1975 and may very well be underreported. The 
catches have ranged from 1.1 tn (1 t) (1975 in Mexico, 1988 and 1989 in 
Dominican Republic, and 1989 in Cuba) to 54 tn (49 t) (Dominican 
Republic in 1994) (ICES 2000).
    In analyzing the effect of harvest on American eel abundance, there 
are various reasons the magnitude of the threat is difficult to 
determine. Most of the data on eel numbers come from commercial harvest 
data (or landings) where fishing effort is not always available and may 
consist of different year-classes which are not differentiable simply 
based on eel size (ASMFC 2000). Harvest is market driven and therefore 
high harvest years may reflect high market demand rather than increased 
abundance (likewise, low harvest numbers may indicate a low market 
demand rather than a decrease in abundance). Harvest of highly valued

[[Page 38857]]

glass eels or elvers to meet foreign aquaculture demands are likely 
underreported, and there is evidence of substantial illegal harvest and 
sale of glass eels and elvers having occurred through the 1990s on the 
Atlantic Coast (R. St. Pierre, pers. comm. 2005).
    The absence of fishing effort information was identified by 
Castonguay et al. (1994a) as a major weakness in their assessment of 
commercial fishing and declines in the American eel. They analyzed 
trends in commercial eel landings in Canada and the United States and 
compared them to the timing of the decline. They concluded that there 
was little evidence that commercial fishing caused the decline.
    Ongoing research by Chesapeake Bay area scientists, however, 
suggests that eels appear to be overfished. Fishing mortality has been 
estimated at two to four times natural mortality (Weeder, J. and J. 
Uphoff. In in review). Although this does not point to the reason for 
the decline, it may indicate, at least in the Chesapeake Bay, an 
important area for American eels, current fishing pressure may be 
affecting future abundance.
    There are several factors occurring on, and affecting the abundance 
of, multiple life stages (glass, elver, yellow, and silver) of American 
eel. These factors increase the risk that significant harvest pressure 
poses for the American eel population due to their life history. 
According to the ASMFC (2000), the following factors should be 
considered in any analysis of harvest effects: (1) American eels mature 
slowly, requiring 7 to 30+ years to attain sexual maturity (K. 
Oliveira, Univ. of Maine pers. comm., as in ASMFC 2000); (2) glass eels 
aggregate seasonally to migrate, making them more vulnerable to capture 
in large numbers (Haro and Krueger 1988, as in ASMFC 2000); (3) one 
year class of yellow eels are harvested over many years, resulting in 
high cumulative fishing mortality (Richkus and Whalen 1999, as in ASMFC 
2000); (4) all harvest is pre-spawning (McCleave 1996, as in ASMFC 
2000); and (5) changes in year class abundance are not readily 
recognizable, because harvest abundance data include eels of similar 
sizes but from a number of year classes (Ritter et al. 1997, as in 
ASMFC 2000), potentially masking declines.
    In responding to the petitioners' assertion that commercial harvest 
is a threat to the American eel we were presented with differing 
analyses on whether and to what degree legal and illegal harvest is 
implicated in the decline, and complicating factors in determining 
harvest impacts. As part of our 12-month status review of the American 
eel, we will determine the implications of these factors on the role of 
harvest on the eel's decline. Information from the Chesapeake studies 
suggests that not only numbers, but eel size may well be important in 
determining the impacts of harvest, as have already been noted in the 
Chesapeake Bay. Because the petitioner and the ASMFC indicated that 
commercial harvest is a possible reason for the decline of the American 
eel and that at the 90-day finding stage we accept the petitioner's 
sources and characterizations of the information, to the extent that 
they appear to be based on accepted scientific principles, we conclude 
that commercial harvest likely effects American eel abundance, although 
it may not be solely responsible for its decline, and we conclude that 
commercial harvest is likely to impact the American eel in the future.

C. Disease or Predation

    Information provided in the petition: The petition did not 
specifically provide information on disease and predation: however, the 
Management Plan incorporated by reference provided the information 
below.
Disease
    American eels are afflicted by disease like any other species; 
however, one disease was specifically discussed by ASMFC as a potential 
threat to the overall health of the American eel. The non-indigenous 
eel swimbladder nematode (Anguillicola crassus) is a parasite native to 
marine and freshwater areas of eastern Asia, from Japan and China to 
Vietnam. Its native host is the Japanese eel (Anguilla japonica). The 
nematode has been documented to have significant negative impacts on 
European eels, and on American eels in Texas and South Carolina.
    Analysis of information provided in the petition and information in 
our files. The swimbladder nematode was found in American eels (Barse 
and Secor 1999, as in ICES 2000) in 1997, but may have been present 
earlier. The nematode has been implicated with acute mortality in eels, 
as well as internal injury and growth impairment. Part of its life 
cycle occurs in the eel's swim bladder, and its departure through the 
swim bladder wall can cause injury and scarring. These effects on the 
swim bladder could impact a silver eel's ability to travel to the 
Sargasso Sea spawning grounds and thus its reproductive success (ICES 
2000).
    Although there is evidence that the parasite Anguillicola crassus 
causes negative impacts to Anguilla spp, according to the International 
Council for the Exploration of the Sea (ICES) (2000), it is unlikely 
that there are substantial effects from the parasite on American eel 
abundance (because of the lack of temporal correspondence between the 
appearance of the parasite and American eel declines).
Predation
    American eel juveniles and adults are a seasonal food item of 
various finfish, and data are available that indicate eels are preyed 
on by fish-eating birds and mammals such as mink (Sinha and Jones 1967, 
Seymour 1974, as in ASMFC 2000). Younger life stages may also provide a 
food source.
    Analysis of information provided in the petition and information in 
our files. Under conditions of abundance, impacts from predation would 
not be of concern; however, when populations are declining, or 
particular life stages are experiencing heavy predation, the impact of 
what were typical stresses may be magnified. The information provided 
and available in our files is, however, insufficient to determine the 
role of predation in the decline of the American eel.

D. The Inadequacy of Existing Regulatory Mechanisms

    The petition stated that State and Federal agencies have not 
adequately regulated (1) fish passage, or (2) harvest and trade, 
leading to a decline in population numbers and range of the American 
eel.
Fish Passage
    Information provided by the petitioner. The petitioners stated that 
under the authority of the Federal Power Act, the Federal Energy 
Regulatory Commission (FERC) can immediately stop the killing of adult 
female American eels in hydroelectric turbines in the United States, 
but have failed to do so. They also state that the Service and NOAA 
Fisheries, pursuant to Section 18 of the Federal Power Act, have the 
legal authority to require the licensees of private hydroelectric dams 
to provide safe and efficient upstream and downstream passage for 
American eels. The petitioners allege that, to date, neither agency has 
exercised this legal authority. Additionally, the petitioners state 
that pursuant to the Federal Clean Water Act, the Environmental 
Protection Agency (EPA) has the legal authority to require the 
licensees of private hydroelectric dams to provide safe and efficient 
upstream and downstream passage for American eels. Allegedly, to date, 
the EPA has declined to exercise this legal authority. Finally,

[[Page 38858]]

the petitioners were not aware of any instance in Maine or 
Massachusetts where these States have required by law the safe and 
efficient passage of American eels at non-hydroelectric dams, despite 
fish passage statutes which allow the States to make such requirements. 
Also, the petitioners questioned whether other States had statutes 
requiring safe and efficient passage of juvenile American eels at non-
hydroelectric dams and whether such statutes were being enforced.
    Analysis of information provided in the petition and information in 
our files. Safe upstream and downstream passage, which the petitioner 
alleges lacks adequate regulatory mechanisms, is standard when special 
licenses are required. For example, dams for hydropower production and 
navigation provide opportunities for fish passage when required by the 
resource management agencies, such as the Service. The Service takes 
every opportunity available to insure that safe upstream and downstream 
passage is prescribed for American eels under the Federal Power Act 
during relicensing of hydroelectric power facilities that are under the 
purview of FERC. NOAA Fisheries has exercised its legal authority under 
the Federal Power Act to prescribe fishways for eels at select 
projects. However, not all hydroelectric power facilities are currently 
equipped with structures that ensure safe upstream and downstream 
passage. Of the 15,570 dams on the Atlantic Coast only 1,100 dams were 
identified for hydropower production and 50 for navigation. Therefore, 
over 90 percent of the dams in the range of the American eel, including 
those for water-level control, water supply, and recreation, do not 
necessarily have Federal licensing requirements (ASMFC 2000), but not 
all these structures would be considered barriers.
    To the extent that we find safe upstream passage (Factor A. Access 
to upper tributary habitat) and downstream passage (Factor E. 
Hydropower turbines) may be responsible in part for the decline of the 
American eel, we concur with the petitioners that the existing 
regulations for facilities preventing safe up and downstream passage 
may be inadequate or not exist because the vast majority of these dams 
do not have Federal licensing requirement, and therefore, may be partly 
responsible for the decline of the American eel.
Harvest and Trade
    Information provided by the petitioner. The petitioners stated that 
under the authority of the Magnuson-Stevens Fisheries Conservation and 
Management Act, the ASMFC can immediately prohibit the harvest of 
American eels in the waters of the United States from Maine to Florida, 
and asserted that they have not exercised this authority.
    Analysis of information provided in the petition and information in 
our files. The Magnuson Stevens Fisheries Conservation and Management 
Act does not apply as indicated by the petitioner. The Atlantic Coastal 
Fisheries Cooperative Management Act does all