Endangered and Threatened Wildlife and Plants; Proposed Rule To List the Shovelnose Sturgeon as Threatened Due to Similarity of Appearance, 48215-48220 [E9-22541]

Download as PDF erowe on DSK5CLS3C1PROD with PROPOSALS-1 Federal Register / Vol. 74, No. 182 / Tuesday, September 22, 2009 / Proposed Rules governments,’’ with two exceptions. First, it excludes ‘‘a condition of federal assistance.’’ Second, it excludes ‘‘a duty arising from participation in a voluntary Federal program,’’ unless the regulation ‘‘relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,’’ if the provision would ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide funding’’ and the State, local, or Tribal governments ‘‘lack authority’’ to adjust accordingly. ‘‘Federal private sector mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.’’ Critical habitat designation does not impose a legally binding duty on nonFederal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Designation of critical habitat may indirectly impact non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that nonFederal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments. (b) As discussed in the DEA of the proposed designation of critical habitat for the Oregon chub, we do not believe that this rule would significantly or uniquely affect small governments because it would not produce a Federal mandate of $100 million or greater in any year; that is, it is not a ‘‘significant regulatory action’’ under the Unfunded Mandates Reform Act. The DEA concludes that incremental impacts may occur due to project modifications that may need to be made for agricultural and development activities; however, these are not expected to affect small governments. Consequently, we do not believe that the critical habitat designation would significantly or uniquely affect small government VerDate Nov<24>2008 15:28 Sep 21, 2009 Jkt 217001 entities. As such, a Small Government Agency Plan is not required. Executive Order 12630—Takings In accordance with E.O. 12630 (‘‘Government Actions and Interference with Constitutionally Protected Private Property Rights’’), we have analyzed the potential takings implications of proposing critical habitat for the Oregon chub in a takings implications assessment. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits. The proposed critical habitat for the Oregon chub does not pose significant takings implications for the above reasons. References Cited A complete list of all references we cited in the proposed rule and in this document is available on the Internet at http://www.regulations.gov or by contacting the Oregon Fish and Wildlife Office (see the FOR FURTHER INFORMATION CONTACT section). Authors The primary authors of this rulemaking are the staff members of the Oregon Fish and Wildlife Office. Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). Dated: August 24, 2009 Will Shafroth Acting Assistant Secretary for Fish and Wildlife and Parks [FR Doc. E9–22801 Filed 9–21–09; 8:45 am] BILLING CODE 4310–55–S DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R6–ES–2009–0027; 92220–1113–0000; ABC Code: C3] RIN 1018–AW27 Endangered and Threatened Wildlife and Plants; Proposed Rule To List the Shovelnose Sturgeon as Threatened Due to Similarity of Appearance AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule. SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 48215 propose to treat the shovelnose sturgeon (Scaphirhynchus platorynchus) as threatened under the ‘‘Similarity of Appearance’’ provisions of the Endangered Species Act of 1973, as amended (Act). The shovelnose sturgeon (Scaphirhynchus platorynchus) and the endangered pallid sturgeon (Scaphirhynchus albus) are difficult to differentiate in the wild and inhabit overlapping portions of the Missouri and Mississippi River basins. Four States where the two species commonly coexist allow for commercial fishing of shovelnose sturgeon which is in demand for its roe (eggs sold as caviar). The close resemblance in appearance between the two species creates substantial difficulty for fishermen, State regulators, and law enforcement personnel in differentiating between shovelnose and pallid sturgeon, both whole specimens and parts (including flesh and roe). This similarity of appearance has resulted in the documented take of pallid sturgeon and is a threat to the species. The determination that the shovelnose sturgeon should be treated as threatened due to similarity of appearance will substantially facilitate law enforcement actions to protect and conserve pallid sturgeon. We also propose a special rule to define activities that would and would not constitute take of shovelnose sturgeon under section 9 of the Act. DATES: We will accept comments received or postmarked on or before November 23, 2009. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by November 6, 2009. ADDRESSES: You may submit comments by one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow instruction for submitting comments to Docket No. FWS–R6–ES–2009–0027. • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS–R6– ES–2009–0027; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. We will not accept e-mail or faxes. We will post all comments on http:// www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information). FOR FURTHER INFORMATION CONTACT: Pallid Sturgeon Recovery Coordinator, Billings Field Office, 2900 4th Avenue North, Room 301, Billings, Montana 59101 (telephone 406/247–7365; facsimile 406/247–7364). Persons who E:\FR\FM\22SEP1.SGM 22SEP1 48216 Federal Register / Vol. 74, No. 182 / Tuesday, September 22, 2009 / Proposed Rules 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: Public Comments You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not accept comments sent by e-mail or fax or to an address not listed in the ADDRESSES section. If you submit a comment via http://www.regulations.gov, your entire comment—including your personal identifying information—will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov. erowe on DSK5CLS3C1PROD with PROPOSALS-1 Peer Review In accordance with our joint policy published in the Federal Register on July 1, 1994 (59 FR 34270), and the Office of Management and Budget’s (OMB) Final Information Quality Bulletin for Peer Review, dated December 16, 2004, we will seek independent review of the science in this rule. The purpose of such review is to ensure that our final rule is based on scientifically sound data, assumptions, and analyses. We will send at least three peer reviewers copies of this proposed rule immediately following publication in the Federal Register. We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed rule. We will take into consideration all comments, including peer review comments, and any additional information received during the comment period on this proposed rule during the preparation of a final rulemaking. Accordingly, the final decision may differ from this proposal. Public Hearings Section 4(b)(5)(E) of the Act requires that we hold one public hearing on this proposal, if requested. Requests must be received within 45 days of the date of publication of the proposal in the Federal Register (see DATES). Such requests must be made in writing and be addressed to the Pallid Sturgeon Recovery Coordinator at the address in FOR FURTHER INFORMATION CONTACT. VerDate Nov<24>2008 15:28 Sep 21, 2009 Jkt 217001 Similarity of Appearance Listing Section 4(e) of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et seq.) and implementing regulations (50 CFR 17.50–17.52) authorize the treatment of a species as endangered or threatened if (a) The species so closely resembles in appearance a listed endangered or threatened species that law enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species; (b) the effect of this substantial difficulty is an additional threat to an endangered or threatened species; and (c) such treatment of an unlisted species will substantially facilitate the enforcement and further the purposes of the Act. With regard to shovelnose sturgeon, we believe each of these factors apply. In 1990, we listed the pallid sturgeon (Scaphirhynchus albus) as endangered under the Act (55 FR 36641, September 6, 1990). The pallid sturgeon has a flattened, shovel-shaped snout, possesses a long and slender and completely armored caudal peduncle, and lacks a spiracle and belly scutes (Forbes and Richardson 1905, pp. 38– 41). Pallid sturgeon are a bottomoriented species found only in portions of the Missouri and Mississippi River basins (Kallemeyn 1983, p. 4). The species can be long-lived (40 + years), with females reaching sexual maturity later than males (Keenlyne and Jenkins 1993, pp. 393, 395). Pallid sturgeon at the northern end of their range can obtain sizes much larger than pallid sturgeon at the southern end of their range (USFWS 1993, p. 3). Known threats to the pallid sturgeon include habitat modification, small population size, limited natural reproduction, hybridization, pollution and contaminants, and commercial harvest (55 FR 36641, September 6, 1990; USFWS 2007, pp. 38–59). The shovelnose sturgeon (Scaphirhynchus platorynchus) is similar in appearance to the pallid sturgeon and inhabits overlapping portions of the Missouri and Mississippi River basins. Traditionally, biologists used character indices to distinguish between pallid and shovelnose sturgeon. This approach uses up to 13 morphometric body measurements as well as meristic counts (i.e., the number of dorsal and anal fin rays) to differentiate between the two species. Since shovelnose sturgeon do not obtain maximum sizes as great as pallid sturgeon, it was assumed that adult shovelnose sturgeon could be distinguished from pallid sturgeon by PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 their smaller size. However, throughout their ranges, there is length overlap between the two species. Thus size alone is not a suitable diagnostic character between the two species. Age of the individual also can complicate use of morphometrics in differentiation based on size (Kuhajda et al. 2007, pp. 324, 344). Recent data show limited success applying character indices universally across the geographic range of the species (Kuhajda et al. 2007, pp. 344–346; Murphy et al. 2007, p. 322). We now believe a combination of character indices, based on morphometric measures and meristic counts, as well as genetic testing is necessary to reliably identify a whole specimen or its parts. While genetic tests can differentiate Scaphirhynchus eggs from those of other genera, at this time, roe cannot be reliably differentiated as having been derived from shovelnose sturgeon, harvest of which may be legal, or pallid sturgeon, harvest of which is illegal (Curtis 2008). This similarity poses a problem for Federal and State law enforcement agents trying to stem illegal trade in pallid sturgeon roe. While harvest of pallid sturgeon is prohibited by section 9 of the Act and by State regulations throughout its range, commercial harvest of shovelnose sturgeon has resulted in the documented take of pallid sturgeon (Sheehan et al. 1997, p. 3; Bettoli et al. 2009, p. 3; USFWS 2007, pp. 45–48). Four States allow commercial harvest of shovelnose sturgeon from waters commonly occupied by pallid sturgeon (USFWS 1993, pp. 3–5). These are Tennessee (Tennessee 2008, pp. 4–5), Missouri (except on the Missouri River upstream of the Kansas River to the Iowa border) (Missouri 2008, pp. 10– 11), Kentucky (Kentucky 2008, pp. 1–2), and Illinois (below Mel Price Locks and Dam) (Illinois 2007, pp. 3–5; Illinois 2008, p. 2). In order to protect pallid sturgeon, fishing seasons with maximum harvestable size limits for shovelnose sturgeon have been established (Bettoli et al. 2009, pp. 1–2). However, harvestable size limits for shovelnose sturgeon cannot protect pallid sturgeon that fall within the harvestable size limits if pallid sturgeon cannot be reliably differentiated from shovelnose sturgeon. A recent study documented that commercial fishers misidentified 29 percent of the encountered pallid sturgeon and that a minimum of 1.8 percent of total sturgeon harvest in Tennessee was endangered pallid sturgeon (Bettoli et al. 2009, p. 3). Applying this minimum harvest estimate to the 2005–07 commercial E:\FR\FM\22SEP1.SGM 22SEP1 48217 Federal Register / Vol. 74, No. 182 / Tuesday, September 22, 2009 / Proposed Rules shovelnose fishing season within the Tennessee portion of the Mississippi River results in a minimum harvest estimate of 169 adult pallid sturgeon (Bettoli et al. 2009, p. 1). If this minimum estimate of pallid sturgeon take was applied across the four States that commercially harvest shovelnose sturgeon where the species commonly coexist, the data suggest a substantial level of pallid sturgeon take (approximately 3,000 kilograms (6,600 pounds (lb)) of pallid sturgeon flesh and about 320 kilograms (700 lb) pallid sturgeon roe since 2000). Furthermore, demographic data indicate that total annual pallid sturgeon mortality rates are about three times higher where commercial harvest of shovelnose sturgeon occurs compared to areas without commercial harvest (30 percent versus 7 to 11 percent) (Killgore et al. 2007, pp. 454–455). The same study found that maximum identified ages of pallid sturgeon are substantially lower in commercially fished reaches of the Mississippi River (14 years) than in noncommercially fished reaches of the Mississippi River (21 years) (Killgore et al. 2007, p. 454). Harvested and protected populations should have considerably different mortality rates (and, therefore, corresponding different maximum ages); however, Colombo et al. (2007, p. 449) found similar mortality rates for the endangered pallid sturgeon and the harvested shovelnose sturgeon in the middle Mississippi River. This provides further evidence that illegal harvest of pallid sturgeon is occurring. Because female sturgeon do not begin egg development until ages 9 to 12, may not spawn until ages 15 to 20, and spawning may not occur annually (Keenlyne and Jenkins 1993, p. 395), mortality associated with commercial fishing activity is likely substantially lowering recruitment and negatively impacting population growth. Such take is a threat that needs to be addressed in order to conserve the pallid sturgeon. State commercial fishing data (Table 1) demonstrate a substantial level of commercial harvest of shovelnose sturgeon, including both flesh and roe, from areas where both shovelnose and pallid sturgeon coexist (Williamson 2003, pp. 118–120; Maher 2008; Scholten 2008a; Scholten 2008b; Travnichek 2008). TABLE 1—REPORTED COMMERCIAL HARVEST OF SHOVELNOSE STURGEON FLESH AND ROE IN POUNDS FROM 1995 TO 2007 FROM THE PORTIONS OF ILLINOIS, KENTUCKY, MISSOURI, AND TENNESSEE WHERE BOTH SHOVELNOSE STURGEON AND PALLID STURGEON COEXIST [Scholten 2008a; Scholten 2008b; Travnichek 2008; Williamson 2003] 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Flesh Illinois ............... Kentucky ........... Missouri ............ Tennessee ........ 405 * 6,201 * 3,475 * 10,142 * 6,115 * 8,231 * 2,855 * 9,089 * 3,798 25 19,655 * 1,576 9,938 23,394 4,178 3,074 13,059 77,498 2,178 1,541 8,324 43,211 3,519 600 1,413 23,956 5,759 2,931 5,167 28,818 4,005 2,599 16,324 10,002 17,297 * 14,130 6,526 12,926 * 10,043 5,220 7,812 Total .......... 6,606 13,617 14,346 11,944 23,478 39,086 95,809 56,595 31,728 40,921 46,222 33,582 23,075 Roe Illinois ............... Kentucky ........... Missouri ............ Tennessee ........ 0 * * * 28 * * * 65 * * * 87 * * * 0 * * * 16 527 * * 208 1,021 * * 402 731 * 660 134 258 4,490 1,001 585 554 3,504 665 8,395 1,844 2,356 2,290 * 1,648 1,907 2,027 * 1,738 1,420 1,366 Total .......... 0 28 65 87 0 543 1,229 1,793 5,883 5,308 14,885 5,582 4,524 erowe on DSK5CLS3C1PROD with PROPOSALS-1 Illinois shovelnose harvest includes Mississippi River catch downstream of Mel Price Locks and Dam; Missouri shovelnose harvest includes both Mississippi River (downstream of Mel Price Locks and Dam) and Missouri River (except on the Missouri River upstream of the Kansas River to the Iowa border) catches; and Tennessee and Kentucky shovelnose harvest includes Mississippi River catch. Tennessee’s flesh data was extrapolated using length–weight relationships from total fish harvested. An asterisk (*) indicates no data reported or data otherwise unavailable. Much of the domestic sturgeon fishing pressure has been driven by international sturgeon supply and increasing price trends. Global sturgeon catch declined from the record peak of 32,078 metric tons (70,719,884 lb) in 1978 to 2,658 metric tons (5,859,886 lb) in 2000 (FAO Fisheries Circular 2004, executive summary). This reduction in supply resulted in exponential growth of caviar prices since the 1978 peak (Bardi and Yaxley 2005, p. 2). Since 1998, international trade in all species of sturgeon has been regulated under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) owing to concerns over the impact of international trade on VerDate Nov<24>2008 15:28 Sep 21, 2009 Jkt 217001 sturgeon populations in the wild. Recent CITES sturgeon quotas have further limited supply and exacerbated price pressures (CITES 2005, pp. 1–5, 8– 9; CITES 2006, pp. 1, 5–6, 10–11; CITES 2007, pp. 1, 3–5, 8–9; CITES 2008, pp. 3, 7, 8, 11, 14). We expect commercial pressures on domestic sturgeon to remain constant or possibly increase due in part to the current restrictions on import of beluga sturgeon (Huso huso) caviar into the United States (70 FR 57316, September 30, 2005 and 70 FR 62135, October 28, 2005) due to its status as a threatened species and the general trend toward reduced caviar exports from the Caspian Sea and Black Sea sturgeon stocks. PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 Incidental and illegal harvest of pallid sturgeon is a significant impediment to the survival and recovery of this species in some portions of its range (USFWS 2007, p. 45). Our recent 5-year status review recommended that we identify and implement measures to eliminate or significantly reduce illegal and accidental harvest of pallid sturgeon (USFWS 2007, p. 59). Treating the shovelnose sturgeon as a threatened species, due to similarity of appearance, will result in a termination of commercial harvest of shovelnose sturgeon and shovelnose-pallid sturgeon hybrids where they commonly coexist with pallid sturgeon, which, in turn, will facilitate the enforcement of take E:\FR\FM\22SEP1.SGM 22SEP1 48218 Federal Register / Vol. 74, No. 182 / Tuesday, September 22, 2009 / Proposed Rules protections for pallid sturgeon and drastically reduce or eliminate take of pallid sturgeon associated with commercial fishing of shovelnose sturgeon and their roe. Reduction of take of pallid sturgeon will facilitate the species’ survival, reproduction, and, ultimately, its recovery. For these reasons, the Service is proposing to treat the shovelnose sturgeon as threatened due to similarity of appearance to the pallid sturgeon in those areas where the two species commonly coexist, in accordance with section 4(e) of the Act. erowe on DSK5CLS3C1PROD with PROPOSALS-1 Section 4(d) ‘‘Special Rule’’ Regulating Take Whenever a species is listed as a threatened species under the Act, the Secretary may specify regulations that he deems necessary to provide for the conservation of that species under a special rule authorized by section 4(d) of the Act. These rules, commonly referred to as ‘‘special rules,’’ are found in part 17 of title 50 of the Code of Federal Regulations (CFR) in sections 17.40–17.48. This proposed special rule for 17.44, which deals with fishes, would prohibit take of any shovelnose sturgeon, shovelnose-pallid sturgeon hybrids, or their roe when associated with or related to a commercial fishing activity in those portions of its range that commonly overlap with the range of endangered pallid sturgeon. In this context, commercial fishing purposes is defined as any activity where shovelnose sturgeon and shovelnosepallid sturgeon hybrid roe or flesh is, is attempted to be, or is intended to be traded, sold, or exchanged for goods or services. Capture of shovelnose sturgeon or shovelnose-pallid sturgeon hybrids in any commercial fishing gear is not prohibited if it is accidental or incidental to otherwise legal commercial fishing activities, such as commercial fishing targeting nonsturgeon species, provided the animal is released immediately upon discovery, with all roe intact, at the point of capture. All otherwise legal activities involving shovelnose sturgeon and shovelnose-pallid sturgeon hybrids that are conducted in accordance with applicable State, Federal, Tribal, and local laws and regulations are not considered to be take under this proposed regulation. Effects of these Proposed Rules Listing the shovelnose sturgeon as threatened under the ‘‘similarity of appearance’’ provisions of the Act will extend take prohibitions to shovelnose sturgeon, shovelnose-pallid sturgeon hybrids, or their roe when associated with a commercial fishing activity. VerDate Nov<24>2008 15:28 Sep 21, 2009 Jkt 217001 Capture of shovelnose sturgeon or shovelnose-pallid sturgeon hybrids in any commercial fishing gear is not prohibited if it is accidental or incidental to otherwise legal commercial fishing activities, such as commercial fishing targeting nonsturgeon species, provided the animal is released immediately upon discovery, with all roe intact, at the point of capture. All otherwise legal activities within the identified areas that may involve shovelnose sturgeon and shovelnose-pallid sturgeon hybrids and which are conducted in accordance with applicable State, Federal, Tribal, and local laws and regulations will not be considered take under this proposed regulation. Under the special 4(d) rule, take would only be prohibited where shovelnose and pallid sturgeons’ range commonly overlap (USFWS 1993, pp. 3–5, 16–17). Specifically, this includes the portion of the Missouri River in Iowa, Kansas, Missouri, Montana, Nebraska, North Dakota, and South Dakota; the portion of the Mississippi River in Arkansas, Kentucky, Illinois (downstream from Melvin Price Locks and Dam), Louisiana, Mississippi, Missouri (downstream from Melvin Price Locks and Dam), and Tennessee; the Platte River in Nebraska downstream of Elkhorn River confluence; the portion of the Kansas River downstream from Bowersock Dam in Kansas; the Yellowstone River in North Dakota and Montana downstream of the Bighorn River confluence; and the Atchafalaya River in Louisiana. See the map in the rule portion of this document. This proposed designation of similarity of appearance under section 4(e) of the Act would not extend any other protections of the Act, such as the requirements to designate critical habitat, the recovery planning provisions under section 4(f), or consultation requirements for Federal agencies under section 7, to shovelnose sturgeon. Therefore, should this proposal become final, Federal agencies will not be required to consult with us on activities they authorize, fund, or carry out that may affect shovelnose sturgeon. Clarity of This Proposed Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (a) Be logically organized; (b) Use the active voice to address readers directly; PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 (c) Use clear language rather than jargon; (d) Be divided into short sections and sentences; and (e) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. Paperwork Reduction Act Office of Management and Budget (OMB) regulations at 5 CFR part 1320 implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The OMB regulations at 5 CFR 1320.3(c) define a ‘‘collection of information’’ as the obtaining of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, 10 or more persons. Furthermore, 5 CFR 1320.3(c)(4) specifies that ‘‘10 or more persons’’ refers to the persons to whom a collection of information is addressed by the agency within any 12-month period. For purposes of this definition, employees of the Federal Government are not included. A Federal agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. This rule does not contain collections of information other than those permit application forms already approved under the Paperwork Reduction Act and assigned OMB control number 1018– 0094. National Environmental Policy Act We have determined that an Environmental Assessment or Environmental Impact Statement, as defined under the authority of the National Environmental Policy Act of 1969 (NEPA), need not be prepared in connection with listing regulations adopted pursuant to section 4 of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). The Service believes that this rationale also applies to section 4(d) rules. References Cited A complete list of references cited in this rule is available upon request from the Pallid Sturgeon Recovery E:\FR\FM\22SEP1.SGM 22SEP1 48219 Federal Register / Vol. 74, No. 182 / Tuesday, September 22, 2009 / Proposed Rules Coordinator (see FOR FURTHER INFORMATION CONTACT section above). I, title 50 of the Code of Federal Regulations, as follows: List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Proposed Regulation Promulgation Accordingly, we hereby propose to amend part 17, subchapter B of chapter Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Public Law 99–625, 100 Stat. 3500; unless otherwise noted. Species Vertebrate population where endangered or threatened Historic range Common name Scientific name * 2. Amend § 17.11(h) by adding an entry for ‘‘Sturgeon, shovelnose’’, in alphabetical order under ‘‘FISHES,’’ to the List of Endangered and Threatened Wildlife to read as follows: * * * § 17.11 Endangered and threatened wildlife. * Status * * (h) * * * * When listed * * Critical habitat Special rules * * * .................... * N/A * * FISHES * Sturgeon, shovelnose. * Scaphirhynchus platorynchus. * * U.S.A. (AL, AR, IA, IL, IN, KS, KY, LA, MN, MO, MS, MT, ND, NE, NM, OH, OK, PA, SD, TN, TX, WI, WV, WY). * * 3. Amend § 17.44 by adding a new paragraph (aa) to read as follows: § 17.44 Special rules—fishes. * * * * (aa) Shovelnose sturgeon (Scaphirhynchus platorynchus). (1) Within the geographic areas set forth in paragraph (aa)(2) of this section, except as expressly noted in this paragraph, take of any shovelnose sturgeon, shovelnose-pallid sturgeon hybrids, or their roe associated with or related to a commercial fishing activity is prohibited. Capture of shovelnose sturgeon or shovelnose-pallid sturgeon hybrids in any commercial fishing gear erowe on DSK5CLS3C1PROD with PROPOSALS-1 * VerDate Nov<24>2008 15:28 Sep 21, 2009 Jkt 217001 * * Entire ...................... T (S/A) * * is not prohibited if it is accidental or incidental to otherwise legal commercial fishing activities, such as commercial fishing targeting nonsturgeon species, provided the animal is released immediately upon discovery, with all roe intact, at the point of capture. (2) The shovelnose and shovelnosepallid sturgeon hybrid populations covered by this special rule occur in portions of AR, IA, IL, KS, KY, LA, MO, MS, MT, ND, NE, SD, and TN. The specific areas are: (1) The portion of the Missouri River in IA, KS, MO, MT, ND, NE, and SD; (2) the portion of the PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 17.44(aa) Mississippi River downstream from the Melvin Price Locks and Dam in AR, IL, KY, LA, MO, MS, and TN; (3) the Platte River downstream of the Elkhorn River confluence in NE; (4) the portion of the Kansas River downstream from the Bowersock Dam in KS; (5) the Yellowstone River downstream of the Bighorn River confluence in ND and MT; and (6) the Atchafalaya River in LA. (3) A map showing the area covered by this special rule (the area of shared habitat between shovelnose and pallid sturgeon) follows: BILLING CODE 4310–55–P E:\FR\FM\22SEP1.SGM 22SEP1 Federal Register / Vol. 74, No. 182 / Tuesday, September 22, 2009 / Proposed Rules Dated: September 1, 2009. Thomas L. Strickland, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. E9–22541 Filed 9–21–09; 8:45 am] BILLING CODE 4310–55–C VerDate Nov<24>2008 15:28 Sep 21, 2009 Jkt 217001 PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 E:\FR\FM\22SEP1.SGM 22SEP1 EP22SE09.005</GPH> erowe on DSK5CLS3C1PROD with PROPOSALS-1 48220

Agencies

[Federal Register Volume 74, Number 182 (Tuesday, September 22, 2009)]
[Proposed Rules]
[Pages 48215-48220]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-22541]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2009-0027; 92220-1113-0000; ABC Code: C3]
RIN 1018-AW27


Endangered and Threatened Wildlife and Plants; Proposed Rule To 
List the Shovelnose Sturgeon as Threatened Due to Similarity of 
Appearance

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), 
propose to treat the shovelnose sturgeon (Scaphirhynchus platorynchus) 
as threatened under the ``Similarity of Appearance'' provisions of the 
Endangered Species Act of 1973, as amended (Act). The shovelnose 
sturgeon (Scaphirhynchus platorynchus) and the endangered pallid 
sturgeon (Scaphirhynchus albus) are difficult to differentiate in the 
wild and inhabit overlapping portions of the Missouri and Mississippi 
River basins. Four States where the two species commonly coexist allow 
for commercial fishing of shovelnose sturgeon which is in demand for 
its roe (eggs sold as caviar). The close resemblance in appearance 
between the two species creates substantial difficulty for fishermen, 
State regulators, and law enforcement personnel in differentiating 
between shovelnose and pallid sturgeon, both whole specimens and parts 
(including flesh and roe). This similarity of appearance has resulted 
in the documented take of pallid sturgeon and is a threat to the 
species. The determination that the shovelnose sturgeon should be 
treated as threatened due to similarity of appearance will 
substantially facilitate law enforcement actions to protect and 
conserve pallid sturgeon. We also propose a special rule to define 
activities that would and would not constitute take of shovelnose 
sturgeon under section 9 of the Act.

DATES: We will accept comments received or postmarked on or before 
November 23, 2009. We must receive requests for public hearings, in 
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by 
November 6, 2009.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow instruction for submitting comments to Docket No. FWS-R6-ES-
2009-0027.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R6-ES-2009-0027; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Pallid Sturgeon Recovery Coordinator, 
Billings Field Office, 2900 4th Avenue North, Room 301, Billings, 
Montana 59101 (telephone 406/247-7365; facsimile 406/247-7364). Persons 
who

[[Page 48216]]

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: 

Public Comments

    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section. If you submit a comment via http://www.regulations.gov, your entire comment--including your personal 
identifying information--will be posted on the Web site. If you submit 
a hardcopy comment that includes personal identifying information, you 
may request at the top of your document that we withhold this 
information from public review. However, we cannot guarantee that we 
will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), and the Office of Management 
and Budget's (OMB) Final Information Quality Bulletin for Peer Review, 
dated December 16, 2004, we will seek independent review of the science 
in this rule. The purpose of such review is to ensure that our final 
rule is based on scientifically sound data, assumptions, and analyses. 
We will send at least three peer reviewers copies of this proposed rule 
immediately following publication in the Federal Register. We will 
invite these peer reviewers to comment, during the public comment 
period, on the specific assumptions and conclusions regarding the 
proposed rule.
    We will take into consideration all comments, including peer review 
comments, and any additional information received during the comment 
period on this proposed rule during the preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    Section 4(b)(5)(E) of the Act requires that we hold one public 
hearing on this proposal, if requested. Requests must be received 
within 45 days of the date of publication of the proposal in the 
Federal Register (see DATES). Such requests must be made in writing and 
be addressed to the Pallid Sturgeon Recovery Coordinator at the address 
in FOR FURTHER INFORMATION CONTACT.

Similarity of Appearance Listing

    Section 4(e) of the Endangered Species Act (Act) of 1973, as 
amended (16 U.S.C. 1531 et seq.) and implementing regulations (50 CFR 
17.50-17.52) authorize the treatment of a species as endangered or 
threatened if (a) The species so closely resembles in appearance a 
listed endangered or threatened species that law enforcement personnel 
would have substantial difficulty in attempting to differentiate 
between the listed and unlisted species; (b) the effect of this 
substantial difficulty is an additional threat to an endangered or 
threatened species; and (c) such treatment of an unlisted species will 
substantially facilitate the enforcement and further the purposes of 
the Act. With regard to shovelnose sturgeon, we believe each of these 
factors apply.
    In 1990, we listed the pallid sturgeon (Scaphirhynchus albus) as 
endangered under the Act (55 FR 36641, September 6, 1990). The pallid 
sturgeon has a flattened, shovel-shaped snout, possesses a long and 
slender and completely armored caudal peduncle, and lacks a spiracle 
and belly scutes (Forbes and Richardson 1905, pp. 38-41). Pallid 
sturgeon are a bottom-oriented species found only in portions of the 
Missouri and Mississippi River basins (Kallemeyn 1983, p. 4). The 
species can be long-lived (40 + years), with females reaching sexual 
maturity later than males (Keenlyne and Jenkins 1993, pp. 393, 395). 
Pallid sturgeon at the northern end of their range can obtain sizes 
much larger than pallid sturgeon at the southern end of their range 
(USFWS 1993, p. 3). Known threats to the pallid sturgeon include 
habitat modification, small population size, limited natural 
reproduction, hybridization, pollution and contaminants, and commercial 
harvest (55 FR 36641, September 6, 1990; USFWS 2007, pp. 38-59).
    The shovelnose sturgeon (Scaphirhynchus platorynchus) is similar in 
appearance to the pallid sturgeon and inhabits overlapping portions of 
the Missouri and Mississippi River basins. Traditionally, biologists 
used character indices to distinguish between pallid and shovelnose 
sturgeon. This approach uses up to 13 morphometric body measurements as 
well as meristic counts (i.e., the number of dorsal and anal fin rays) 
to differentiate between the two species. Since shovelnose sturgeon do 
not obtain maximum sizes as great as pallid sturgeon, it was assumed 
that adult shovelnose sturgeon could be distinguished from pallid 
sturgeon by their smaller size. However, throughout their ranges, there 
is length overlap between the two species. Thus size alone is not a 
suitable diagnostic character between the two species. Age of the 
individual also can complicate use of morphometrics in differentiation 
based on size (Kuhajda et al. 2007, pp. 324, 344). Recent data show 
limited success applying character indices universally across the 
geographic range of the species (Kuhajda et al. 2007, pp. 344-346; 
Murphy et al. 2007, p. 322). We now believe a combination of character 
indices, based on morphometric measures and meristic counts, as well as 
genetic testing is necessary to reliably identify a whole specimen or 
its parts. While genetic tests can differentiate Scaphirhynchus eggs 
from those of other genera, at this time, roe cannot be reliably 
differentiated as having been derived from shovelnose sturgeon, harvest 
of which may be legal, or pallid sturgeon, harvest of which is illegal 
(Curtis 2008). This similarity poses a problem for Federal and State 
law enforcement agents trying to stem illegal trade in pallid sturgeon 
roe.
    While harvest of pallid sturgeon is prohibited by section 9 of the 
Act and by State regulations throughout its range, commercial harvest 
of shovelnose sturgeon has resulted in the documented take of pallid 
sturgeon (Sheehan et al. 1997, p. 3; Bettoli et al. 2009, p. 3; USFWS 
2007, pp. 45-48). Four States allow commercial harvest of shovelnose 
sturgeon from waters commonly occupied by pallid sturgeon (USFWS 1993, 
pp. 3-5). These are Tennessee (Tennessee 2008, pp. 4-5), Missouri 
(except on the Missouri River upstream of the Kansas River to the Iowa 
border) (Missouri 2008, pp. 10-11), Kentucky (Kentucky 2008, pp. 1-2), 
and Illinois (below Mel Price Locks and Dam) (Illinois 2007, pp. 3-5; 
Illinois 2008, p. 2). In order to protect pallid sturgeon, fishing 
seasons with maximum harvestable size limits for shovelnose sturgeon 
have been established (Bettoli et al. 2009, pp. 1-2). However, 
harvestable size limits for shovelnose sturgeon cannot protect pallid 
sturgeon that fall within the harvestable size limits if pallid 
sturgeon cannot be reliably differentiated from shovelnose sturgeon.
    A recent study documented that commercial fishers misidentified 29 
percent of the encountered pallid sturgeon and that a minimum of 1.8 
percent of total sturgeon harvest in Tennessee was endangered pallid 
sturgeon (Bettoli et al. 2009, p. 3). Applying this minimum harvest 
estimate to the 2005-07 commercial

[[Page 48217]]

shovelnose fishing season within the Tennessee portion of the 
Mississippi River results in a minimum harvest estimate of 169 adult 
pallid sturgeon (Bettoli et al. 2009, p. 1). If this minimum estimate 
of pallid sturgeon take was applied across the four States that 
commercially harvest shovelnose sturgeon where the species commonly 
coexist, the data suggest a substantial level of pallid sturgeon take 
(approximately 3,000 kilograms (6,600 pounds (lb)) of pallid sturgeon 
flesh and about 320 kilograms (700 lb) pallid sturgeon roe since 2000).
    Furthermore, demographic data indicate that total annual pallid 
sturgeon mortality rates are about three times higher where commercial 
harvest of shovelnose sturgeon occurs compared to areas without 
commercial harvest (30 percent versus 7 to 11 percent) (Killgore et al. 
2007, pp. 454-455). The same study found that maximum identified ages 
of pallid sturgeon are substantially lower in commercially fished 
reaches of the Mississippi River (14 years) than in noncommercially 
fished reaches of the Mississippi River (21 years) (Killgore et al. 
2007, p. 454). Harvested and protected populations should have 
considerably different mortality rates (and, therefore, corresponding 
different maximum ages); however, Colombo et al. (2007, p. 449) found 
similar mortality rates for the endangered pallid sturgeon and the 
harvested shovelnose sturgeon in the middle Mississippi River. This 
provides further evidence that illegal harvest of pallid sturgeon is 
occurring. Because female sturgeon do not begin egg development until 
ages 9 to 12, may not spawn until ages 15 to 20, and spawning may not 
occur annually (Keenlyne and Jenkins 1993, p. 395), mortality 
associated with commercial fishing activity is likely substantially 
lowering recruitment and negatively impacting population growth. Such 
take is a threat that needs to be addressed in order to conserve the 
pallid sturgeon.
    State commercial fishing data (Table 1) demonstrate a substantial 
level of commercial harvest of shovelnose sturgeon, including both 
flesh and roe, from areas where both shovelnose and pallid sturgeon 
coexist (Williamson 2003, pp. 118-120; Maher 2008; Scholten 2008a; 
Scholten 2008b; Travnichek 2008).

Table 1--Reported Commercial Harvest of Shovelnose Sturgeon Flesh and Roe in Pounds From 1995 to 2007 From the Portions of Illinois, Kentucky, Missouri,
                                        and Tennessee Where Both Shovelnose Sturgeon and Pallid Sturgeon Coexist
                                           [Scholten 2008a; Scholten 2008b; Travnichek 2008; Williamson 2003]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       1995     1996     1997     1998     1999     2000     2001     2002     2003     2004     2005     2006     2007
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Flesh
--------------------------------------------------------------------------------------------------------------------------------------------------------
Illinois...........................      405    3,475    6,115    2,855    3,798    1,576    3,074    1,541      600    2,931    2,599        *        *
Kentucky...........................        *        *        *        *       25    9,938   13,059    8,324    1,413    5,167   16,324   14,130   10,043
Missouri...........................    6,201   10,142    8,231    9,089   19,655   23,394   77,498   43,211   23,956   28,818   10,002    6,526    5,220
Tennessee..........................        *        *        *        *        *    4,178    2,178    3,519    5,759    4,005   17,297   12,926    7,812
                                    --------------------------------------------------------------------------------------------------------------------
    Total..........................    6,606   13,617   14,346   11,944   23,478   39,086   95,809   56,595   31,728   40,921   46,222   33,582   23,075
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Roe
--------------------------------------------------------------------------------------------------------------------------------------------------------
Illinois...........................        0       28       65       87        0       16      208      402      134      585    8,395        *        *
Kentucky...........................        *        *        *        *        *      527    1,021      731      258      554    1,844    1,648    1,738
Missouri...........................        *        *        *        *        *        *        *        *    4,490    3,504    2,356    1,907    1,420
Tennessee..........................        *        *        *        *        *        *        *      660    1,001      665    2,290    2,027    1,366
                                    --------------------------------------------------------------------------------------------------------------------
    Total..........................        0       28       65       87        0      543    1,229    1,793    5,883    5,308   14,885    5,582    4,524
--------------------------------------------------------------------------------------------------------------------------------------------------------
Illinois shovelnose harvest includes Mississippi River catch downstream of Mel Price Locks and Dam; Missouri shovelnose harvest includes both
  Mississippi River (downstream of Mel Price Locks and Dam) and Missouri River (except on the Missouri River upstream of the Kansas River to the Iowa
  border) catches; and Tennessee and Kentucky shovelnose harvest includes Mississippi River catch. Tennessee's flesh data was extrapolated using length-
  weight relationships from total fish harvested.
An asterisk (*) indicates no data reported or data otherwise unavailable.

    Much of the domestic sturgeon fishing pressure has been driven by 
international sturgeon supply and increasing price trends. Global 
sturgeon catch declined from the record peak of 32,078 metric tons 
(70,719,884 lb) in 1978 to 2,658 metric tons (5,859,886 lb) in 2000 
(FAO Fisheries Circular 2004, executive summary). This reduction in 
supply resulted in exponential growth of caviar prices since the 1978 
peak (Bardi and Yaxley 2005, p. 2). Since 1998, international trade in 
all species of sturgeon has been regulated under the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES) owing to concerns over the impact of international trade on 
sturgeon populations in the wild. Recent CITES sturgeon quotas have 
further limited supply and exacerbated price pressures (CITES 2005, pp. 
1-5, 8-9; CITES 2006, pp. 1, 5-6, 10-11; CITES 2007, pp. 1, 3-5, 8-9; 
CITES 2008, pp. 3, 7, 8, 11, 14). We expect commercial pressures on 
domestic sturgeon to remain constant or possibly increase due in part 
to the current restrictions on import of beluga sturgeon (Huso huso) 
caviar into the United States (70 FR 57316, September 30, 2005 and 70 
FR 62135, October 28, 2005) due to its status as a threatened species 
and the general trend toward reduced caviar exports from the Caspian 
Sea and Black Sea sturgeon stocks.
    Incidental and illegal harvest of pallid sturgeon is a significant 
impediment to the survival and recovery of this species in some 
portions of its range (USFWS 2007, p. 45). Our recent 5-year status 
review recommended that we identify and implement measures to eliminate 
or significantly reduce illegal and accidental harvest of pallid 
sturgeon (USFWS 2007, p. 59).
    Treating the shovelnose sturgeon as a threatened species, due to 
similarity of appearance, will result in a termination of commercial 
harvest of shovelnose sturgeon and shovelnose-pallid sturgeon hybrids 
where they commonly coexist with pallid sturgeon, which, in turn, will 
facilitate the enforcement of take

[[Page 48218]]

protections for pallid sturgeon and drastically reduce or eliminate 
take of pallid sturgeon associated with commercial fishing of 
shovelnose sturgeon and their roe. Reduction of take of pallid sturgeon 
will facilitate the species' survival, reproduction, and, ultimately, 
its recovery. For these reasons, the Service is proposing to treat the 
shovelnose sturgeon as threatened due to similarity of appearance to 
the pallid sturgeon in those areas where the two species commonly 
coexist, in accordance with section 4(e) of the Act.

Section 4(d) ``Special Rule'' Regulating Take

    Whenever a species is listed as a threatened species under the Act, 
the Secretary may specify regulations that he deems necessary to 
provide for the conservation of that species under a special rule 
authorized by section 4(d) of the Act. These rules, commonly referred 
to as ``special rules,'' are found in part 17 of title 50 of the Code 
of Federal Regulations (CFR) in sections 17.40-17.48. This proposed 
special rule for 17.44, which deals with fishes, would prohibit take of 
any shovelnose sturgeon, shovelnose-pallid sturgeon hybrids, or their 
roe when associated with or related to a commercial fishing activity in 
those portions of its range that commonly overlap with the range of 
endangered pallid sturgeon. In this context, commercial fishing 
purposes is defined as any activity where shovelnose sturgeon and 
shovelnose-pallid sturgeon hybrid roe or flesh is, is attempted to be, 
or is intended to be traded, sold, or exchanged for goods or services. 
Capture of shovelnose sturgeon or shovelnose-pallid sturgeon hybrids in 
any commercial fishing gear is not prohibited if it is accidental or 
incidental to otherwise legal commercial fishing activities, such as 
commercial fishing targeting nonsturgeon species, provided the animal 
is released immediately upon discovery, with all roe intact, at the 
point of capture. All otherwise legal activities involving shovelnose 
sturgeon and shovelnose-pallid sturgeon hybrids that are conducted in 
accordance with applicable State, Federal, Tribal, and local laws and 
regulations are not considered to be take under this proposed 
regulation.

Effects of these Proposed Rules

    Listing the shovelnose sturgeon as threatened under the 
``similarity of appearance'' provisions of the Act will extend take 
prohibitions to shovelnose sturgeon, shovelnose-pallid sturgeon 
hybrids, or their roe when associated with a commercial fishing 
activity. Capture of shovelnose sturgeon or shovelnose-pallid sturgeon 
hybrids in any commercial fishing gear is not prohibited if it is 
accidental or incidental to otherwise legal commercial fishing 
activities, such as commercial fishing targeting nonsturgeon species, 
provided the animal is released immediately upon discovery, with all 
roe intact, at the point of capture. All otherwise legal activities 
within the identified areas that may involve shovelnose sturgeon and 
shovelnose-pallid sturgeon hybrids and which are conducted in 
accordance with applicable State, Federal, Tribal, and local laws and 
regulations will not be considered take under this proposed regulation.
    Under the special 4(d) rule, take would only be prohibited where 
shovelnose and pallid sturgeons' range commonly overlap (USFWS 1993, 
pp. 3-5, 16-17). Specifically, this includes the portion of the 
Missouri River in Iowa, Kansas, Missouri, Montana, Nebraska, North 
Dakota, and South Dakota; the portion of the Mississippi River in 
Arkansas, Kentucky, Illinois (downstream from Melvin Price Locks and 
Dam), Louisiana, Mississippi, Missouri (downstream from Melvin Price 
Locks and Dam), and Tennessee; the Platte River in Nebraska downstream 
of Elkhorn River confluence; the portion of the Kansas River downstream 
from Bowersock Dam in Kansas; the Yellowstone River in North Dakota and 
Montana downstream of the Bighorn River confluence; and the Atchafalaya 
River in Louisiana. See the map in the rule portion of this document.
    This proposed designation of similarity of appearance under section 
4(e) of the Act would not extend any other protections of the Act, such 
as the requirements to designate critical habitat, the recovery 
planning provisions under section 4(f), or consultation requirements 
for Federal agencies under section 7, to shovelnose sturgeon. 
Therefore, should this proposal become final, Federal agencies will not 
be required to consult with us on activities they authorize, fund, or 
carry out that may affect shovelnose sturgeon.

Clarity of This Proposed Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR part 
1320 implement provisions of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.). The OMB regulations at 5 CFR 1320.3(c) define a 
``collection of information'' as the obtaining of information by or for 
an agency by means of identical questions posed to, or identical 
reporting, recordkeeping, or disclosure requirements imposed on, 10 or 
more persons. Furthermore, 5 CFR 1320.3(c)(4) specifies that ``10 or 
more persons'' refers to the persons to whom a collection of 
information is addressed by the agency within any 12-month period. For 
purposes of this definition, employees of the Federal Government are 
not included. A Federal agency may not conduct or sponsor and a person 
is not required to respond to a collection of information unless it 
displays a currently valid OMB control number. This rule does not 
contain collections of information other than those permit application 
forms already approved under the Paperwork Reduction Act and assigned 
OMB control number 1018-0094.

National Environmental Policy Act

    We have determined that an Environmental Assessment or 
Environmental Impact Statement, as defined under the authority of the 
National Environmental Policy Act of 1969 (NEPA), need not be prepared 
in connection with listing regulations adopted pursuant to section 4 of 
the Act. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). The Service believes that this rationale also applies to 
section 4(d) rules.

References Cited

    A complete list of references cited in this rule is available upon 
request from the Pallid Sturgeon Recovery

[[Page 48219]]

Coordinator (see FOR FURTHER INFORMATION CONTACT section above).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we hereby propose to amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Public Law 99-625, 100 Stat. 3500; unless otherwise 
noted.

    2. Amend Sec.  17.11(h) by adding an entry for ``Sturgeon, 
shovelnose'', in alphabetical order under ``FISHES,'' to the List of 
Endangered and Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Sturgeon, shovelnose.............  Scaphirhynchus        U.S.A. (AL, AR, IA,  Entire.............  T (S/A)         ...........          N/A    17.44(aa)
                                    platorynchus.         IL, IN, KS, KY,
                                                          LA, MN, MO, MS,
                                                          MT, ND, NE, NM,
                                                          OH, OK, PA, SD,
                                                          TN, TX, WI, WV,
                                                          WY).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec.  17.44 by adding a new paragraph (aa) to read as 
follows:


Sec.  17.44  Special rules--fishes.

* * * * *
    (aa) Shovelnose sturgeon (Scaphirhynchus platorynchus).
    (1) Within the geographic areas set forth in paragraph (aa)(2) of 
this section, except as expressly noted in this paragraph, take of any 
shovelnose sturgeon, shovelnose-pallid sturgeon hybrids, or their roe 
associated with or related to a commercial fishing activity is 
prohibited. Capture of shovelnose sturgeon or shovelnose-pallid 
sturgeon hybrids in any commercial fishing gear is not prohibited if it 
is accidental or incidental to otherwise legal commercial fishing 
activities, such as commercial fishing targeting nonsturgeon species, 
provided the animal is released immediately upon discovery, with all 
roe intact, at the point of capture.
    (2) The shovelnose and shovelnose-pallid sturgeon hybrid 
populations covered by this special rule occur in portions of AR, IA, 
IL, KS, KY, LA, MO, MS, MT, ND, NE, SD, and TN. The specific areas are: 
(1) The portion of the Missouri River in IA, KS, MO, MT, ND, NE, and 
SD; (2) the portion of the Mississippi River downstream from the Melvin 
Price Locks and Dam in AR, IL, KY, LA, MO, MS, and TN; (3) the Platte 
River downstream of the Elkhorn River confluence in NE; (4) the portion 
of the Kansas River downstream from the Bowersock Dam in KS; (5) the 
Yellowstone River downstream of the Bighorn River confluence in ND and 
MT; and (6) the Atchafalaya River in LA.
    (3) A map showing the area covered by this special rule (the area 
of shared habitat between shovelnose and pallid sturgeon) follows:
BILLING CODE 4310-55-P

[[Page 48220]]

[GRAPHIC] [TIFF OMITTED] TP22SE09.005


    Dated: September 1, 2009.
 Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-22541 Filed 9-21-09; 8:45 am]
BILLING CODE 4310-55-C