Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the American Eel as Threatened, 60431-60444 [2011-25084]
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Federal Register / Vol. 76, No. 189 / Thursday, September 29, 2011 / Proposed Rules
that are located in any gate area, ticketing
area, first-class or other passenger lounge
provided by a U.S. or foreign carrier, or any
common area of the terminal, excluding
shops and/or restaurants, to which any
passengers have access.
(2) With respect to any televisions or other
audio-visual displays located in any gate
area, ticketing area, first-class or other
passenger lounge provided by a U.S. or
foreign carrier, or any common area of the
terminal, excluding shops and/or restaurants,
to which any passengers have access, that
provide passengers with safety briefings,
information, or entertainment that do not
have high-contrast captioning capability, an
airport operator must replace these devices
with equipment that does have such
capability whenever such equipment is
replaced in the normal course of operations
and/or whenever areas of the terminal in
which such equipment is located undergo
substantial renovation or expansion.
(3) If an airport acquires new televisions or
other audio-visual displays for passenger
safety briefings, information, or
entertainment on or after [insert effective
date of the final rule], such equipment must
have high-contrast captioning capability.
4. Amend § 27.72 to read as follows:
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§ 27.72
Boarding assistance for aircraft.
(a) This section applies to airports
with 10,000 or more annual
enplanements.
(b) Airports shall, in cooperation with
carriers serving the airports, provide
boarding assistance to individuals with
disabilities using mechanical lifts,
ramps, or other devices that do not
require employees to lift or carry
passengers up stairs. This section
applies to all aircraft with a passenger
capacity of 19 or more passenger seats,
except as provided in paragraph (e) of
this section. Paragraph (c) of this section
applies to U.S. carriers and paragraph
(d) of this section applies to foreign
carriers.
(c) Each airport operator shall
negotiate in good faith with each U.S.
carrier serving the airport concerning
the acquisition and use of boarding
assistance devices to ensure the
provision of mechanical lifts, ramps, or
other devices for boarding and
deplaning where level-entry loading
bridges are not available. The airport
operator must have a written, signed
agreement with each U.S. carrier
allocating responsibility for meeting the
boarding and deplaning assistance
requirements of this subpart between or
among the parties. The agreement shall
be made available, on request, to
representatives of the Department of
Transportation.
(1) All airport operators and U.S.
carriers involved are jointly and
severally responsible for the timely and
complete implementation of the
agreement.
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(2) The agreement shall ensure that all
lifts and other accessibility equipment
are maintained in proper working
condition.
(d) Each airport operator shall
negotiate in good faith with each foreign
carrier serving the airport concerning
the acquisition and use of boarding
assistance devices to ensure the
provision of mechanical lifts, ramps, or
other devices for boarding and
deplaning where level-entry loading
bridges are not available. The airport
operator shall, by no later than
December 28, 2011, sign a written
agreement with the foreign carrier
allocating responsibility for meeting the
boarding and deplaning assistance
requirements of this subpart between or
among the parties. The agreement shall
be made available, on request, to
representatives of the Department of
Transportation.
(1) The agreement shall provide that
all actions necessary to ensure
accessible boarding and deplaning for
passengers with disabilities are
completed as soon as practicable, but no
later than [insert 120 days after date of
publication in Federal Register of the
final rule].
(2) All airport operators and foreign
carriers involved are jointly and
severally responsible for the timely and
complete implementation of the
agreement.
(3) The agreement shall ensure that all
lifts and other accessibility equipment
are maintained in proper working
condition.
(e) Boarding assistance agreements
required in paragraphs (c) and (d) are
not required to apply to the following
situations:
(1) Access to float planes;
(2) Access to the following 19-seat
capacity aircraft models: The Fairchild
Metro, the Jetstream 31 and 32, the
Beech 1900 (C and D models), and the
Embraer EMB–120;
(3) Access to any other aircraft model
determined by the Department of
Transportation to be unsuitable for
boarding and deplaning assistance by
lift, ramp, or other suitable device. The
Department will make such a
determination if it concludes that—
(i) No existing boarding and
deplaning assistance device on the
market will accommodate the aircraft
without significant risk of serious
damage to the aircraft or injury to
passengers or employees, or
(ii) Internal barriers are present in the
aircraft that would preclude passengers
who use a boarding or aisle chair from
reaching a non-exit row seat.
(f) When level-entry boarding and
deplaning assistance is not required to
be provided under paragraph (e) of this
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60431
section, or cannot be provided as
required by paragraphs (b), (c), and (d)
of this section (e.g., because of
mechanical problems with a lift),
boarding assistance shall be provided by
any available means to which the
passenger consents. However, handcarrying (i.e., directly picking up the
passenger’s body in the arms of one or
more carrier personnel to effect a level
change the passenger needs to enter or
leave the aircraft) must never be used,
even if the passenger consents, unless
this is the only way of evacuating the
individual in the event of an emergency.
(g) In the event that airport personnel
are involved in providing boarding
assistance, the airport shall ensure that
they are trained to proficiency in the use
of the boarding assistance equipment
used at the airport and appropriate
boarding assistance procedures that
safeguard the safety and dignity of
passengers.
5. In 49 CFR part 27 the word
‘‘nonhandicapped’’ is revised to read
‘‘nondisabled’’ wherever it occurs. The
term ‘‘handicapped person’’’ is revised
to read ‘‘individual with a disability’’’
wherever it occurs. The term
‘‘handicapped persons’’ is revised to
read ‘‘individuals with a disability’’
wherever it occurs. The term ‘‘qualified
handicapped person’’ is revised to read
‘‘qualified individual with a disability’’
wherever it occurs. The term ‘‘qualified
handicapped persons’’ is revised to read
‘‘qualified individuals with a
disability.’’ Wherever the word
‘‘handicapped’’ is used without being
followed by the words ‘‘person’’ or
‘‘persons,’’ it is revised to read
‘‘disabled’’ wherever it occurs.
[FR Doc. 2011–24849 Filed 9–28–11; 8:45 am]
BILLING CODE 4910–9X–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R5–ES–2011–0067;
92210–0–0008–B2]
Endangered and Threatened Wildlife
and Plants; 90-Day Finding on a
Petition To List the American Eel as
Threatened
Fish and Wildlife Service,
Interior.
ACTION: Notice of petition finding and
initiation of status review.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), announce a
90-day finding on a petition to list the
American eel (Anguilla rostrata) as
threatened under the Endangered
SUMMARY:
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Species Act of 1973, as amended (Act).
Based on our review, we find that the
petition presents substantial scientific
or commercial information indicating
that listing this species may be
warranted. Therefore, with the
publication of this notice, we are
initiating a review of the status of the
species to determine if listing the
American eel is warranted. To ensure
that this status review is
comprehensive, we are requesting
scientific and commercial data and
other information regarding this species.
Based on the status review, we will
issue a 12-month finding on the
petition, which will address whether
the petitioned action is warranted, as
provided in section 4(b)(3)(B) of the Act.
DATES: To allow us adequate time to
conduct this review, we request that we
receive information on or before
November 28, 2011. The deadline for
submitting an electronic comment using
the Federal eRulemaking Portal (see
ADDRESSES, below) is 11:59 p.m. Eastern
Time on this date. After November 28,
2011, you must submit information
directly to the Regional Office (see FOR
FURTHER INFORMATION CONTACT below).
Please note that we may not be able to
address or incorporate information that
we receive after the above requested
date.
ADDRESSES: You may submit
information by one of the following
methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Enter
Keyword or ID box, enter FWS–R5–ES–
2011–0067, which is the docket number
for this action. Then, in the Search
panel on the left side of the screen,
under the Document Type heading,
click on the Proposed Rules link to
locate this document. You may submit
a comment by clicking on ‘‘Submit a
Comment’’.
(2) By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–R5–ES–2011–
0067; Division of Policy and Directives
Management; U.S. Fish and Wildlife
Service; 4401 N. Fairfax Drive, MS
2042–PDM; Arlington, VA 22203.
We will not accept e-mail or faxes. We
will post all information we receive on
https://www.regulations.gov. This
generally means that we will post any
personal information you provide us
(see the Request for Information section
below for more details).
FOR FURTHER INFORMATION CONTACT:
Martin Miller, Chief, Division of
Endangered Species, U.S. Fish and
Wildlife Service, Northeast Regional
Office, 300 Westgate Center Drive,
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Hadley, MA 01035; by telephone at
(413–253–8615); or by facsimile (413–
253–8482). If you use a
telecommunications device for the deaf
(TDD), please call the Federal
Information Relay Service (FIRS) at
800–877–8339.
SUPPLEMENTARY INFORMATION:
Request for Information
When we make a finding that a
petition presents substantial
information indicating that listing a
species may be warranted, we are
required to promptly review the status
of the species (status review). For the
status review to be complete and based
on the best available scientific and
commercial information, we request
information on the American eel from
governmental agencies, Native
American Tribes, the scientific
community, industry, and any other
interested parties. We seek new
information not previously available or
not considered at the time of the 2007
status review on:
(1) The species’ biology, range, and
population trends, including:
(a) Habitat requirements for feeding,
breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range,
including distribution patterns;
(d) Historical and current population
levels, and current and projected trends;
and
(e) Past and ongoing conservation
measures for the species, its habitat, or
both.
(2) The factors that are the basis for
making a listing determination for a
species under section 4(a) of the Act (16
U.S.C. 1531 et seq.), which are:
(a) The present or threatened
destruction, modification, or
curtailment of its habitat or range;
(b) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(c) Disease or predation, specifically:
(i) Rangewide analysis of the
prevalence of the parasite, Anguillicola
crassus, in American eel;
(ii) Data collection and analysis
designed to differentiate between
American eel rangewide population
fluctuations responding to other natural
phenomena, such as ocean conditions,
and infections from Anguillicola
crassus;
(d) The inadequacy of existing
regulatory mechanisms; or
(e) Other natural or manmade factors
affecting its continued existence.
(3) Data that supports or refutes:
(a) Panmixia (having one, well-mixed
breeding population), including
evidence of genetic differentiation that
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results in selective growth, sex ratios,
increased vulnerability to threats, or
habitat preferences;
(b) Existence of population structure
to the degree that a threat could have
differentiating effects on portions of the
population and not on the whole
species;
(c) Statistically significant long-term
glass eel recruitment declines. If
landings data are used, the catch per
unit effort is integrated into the results,
preferably from more than one location
along the Atlantic Coast. Raw data will
be accepted; however, data that have not
been analyzed will likely have limited
value in our assessment.
(4) Information on the correlation
between climate change and glass eel
recruitment, such as Atlantic oceanic
conditions data, analyses, and
predictions including, but not limited
to:
(a) Climate change predictions over
the next 25, 50, 75, and/or 100 years as
they relate to ocean circulation, changes
in the Sargasso sea circulation, sea
surface temperature (SST), or larvae and
glass eel food availability, either directly
or indirectly through changes in SST
that affect primary productivity;
(b) Quantitative research on the food
of eel larvae and the relationship of food
availability to survival of eel larvae;
(c) Further investigations into the
indirect effects of a change in SST on
nutrient circulation due to enhanced
stratification of the water column and
its effects on phytoplankton
communities;
(d) The length of time eel larvae take
to migrate to the Atlantic coast from the
Sargasso Sea;
(e) The impact of food availability
along the entire migration route on eel
larvae survival;
(f) Threats to the Sargasso Sea of the
magnitude that would be predicted to
affect glass eel recruitment, and
information on increased larval
retention in the Sargasso Sea gyre
resulting from changes in winds due to
climate change.
If, after the status review, we
determine that listing the American eel
is warranted, we will propose critical
habitat (see definition in section 3(5)(A)
of the Act) under section 4 of the Act,
to the maximum extent prudent and
determinable at the time we propose to
list the species. Therefore, we also
request data and information on:
(1) What may constitute ‘‘physical or
biological features essential to the
conservation of the species,’’ within the
geographical range currently occupied
by the species;
(2) Where these features are currently
found;
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(3) Whether any of these features may
require special management
considerations or protection;
(4) Specific areas outside the
geographical area occupied by the
species that are ‘‘essential for the
conservation of the species;’’ and
(5) What, if any, critical habitat you
think we should propose for the
designation if the species is proposed
for listing, and why such habitat meets
the requirements of section 4 of the Act.
Please include sufficient information
with your submission (such as scientific
journal articles or other publications) to
allow us to verify any scientific or
commercial information you include.
Submissions merely stating support
for or opposition to the action under
consideration without providing
supporting information, although noted,
will not be considered in making a
determination. Section 4(b)(1)(A) of the
Act directs that determinations as to
whether any species is an endangered or
threatened species must be made
‘‘solely on the basis of the best scientific
and commercial data available.’’
You may submit your information
concerning this status review by one of
the methods listed in ADDRESSES. If you
submit information via http:
//www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the Web site. If your submission is
made via a hard copy that includes
personal identifying information, you
may request at the top of your document
that we withhold this personal
identifying information from public
review. However, we cannot guarantee
that we will be able to do so. We will
post all hard copy submissions on
https://www.regulations.gov.
Information and supporting
documentation that we received and
used in preparing this finding are
available for you to review at https://
www.regulations.gov, or you may make
an appointment during normal business
hours at the U.S. Fish and Wildlife
Service, Northeast Regional Office (see
FOR FURTHER INFORMATION CONTACT).
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 scientific or
commercial information indicating that
the petitioned action may be warranted.
We are to base this finding on
information provided in the petition,
supporting information submitted with
the petition, and information otherwise
available in our files. To the maximum
extent practicable, we are to make this
finding within 90 days of our receipt of
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the petition and publish our notice of
the finding promptly in the Federal
Register.
Our standard for substantial scientific
or commercial information within the
Code of Federal Regulations (CFR) with
regard to a 90-day 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)).
If we find that substantial scientific or
commercial information was presented,
we are required to promptly conduct a
species status review, which we
subsequently summarize in our 12month finding.
In a March 9, 2011, letter to the
petitioner, we requested copies of the
references that were cited as part of the
petition but were not furnished with the
petition or readily available in our files.
On April 1, 2011, we received a letter
dated March 31, 2011, from the
petitioner stating that the requested
citations were available via an internet
Google search or through the
Department of the Interior library or its
interlibrary loan program. On April 4,
2011, we received a second copy of the
March 31, 2011, letter with a compact
disc containing most, but not all, of the
requested references. This finding
addresses the petition.
Petition History
On April 30, 2010, we received a
petition dated April 30, 2010, from
Craig Manson, Executive Director of the
Council for Endangered Species Act
Reliability (CESAR or petitioner),
requesting that the American eel be
listed by the Service and National
Marine Fisheries Service (NMFS) as
threatened under the Act. The petition
clearly identified itself as such and
included the requisite identification
information for the petitioner, as
required by 50 CFR 424.14(a). In a May
13, 2010, letter to the petitioner, we
acknowledged receipt of the petition
and stated that the Service, not NMFS,
had jurisdiction over the American eel
and we would be responding to the
petition.
On September 7, 2010, we received a
Notice of Intent to Sue (NOI) from the
petitioner for failure to respond to the
petition. In a November 23, 2010, letter
to the petitioner, we stated that the
Service’s appropriation in fiscal year
(FY) 2010 was insufficient to address its
large backlog of listing actions, and
consequently we had not yet been able
to begin work on the petition. We also
stated that we anticipated funding
becoming available in FY 2011 to work
on the petition. On December 29, 2010,
we received a letter dated December 23,
2010, from the petitioner requesting
clarification on our November 23, 2010,
letter. The petitioner asked whether we
had made a ‘‘warranted but precluded’’
determination due to funding
limitations or were merely further
acknowledging their petition. In a
January 10, 2011, letter to the petitioner,
we clarified that the intent of our
November 23, 2010, letter was to both
acknowledge receipt of the NOI and to
explain that it was not practicable for
the Service to work on the petition until
we received funding to do so. We also
stated that we had, as of January 10,
2011, received funding to evaluate the
petition.
Previous Federal Action(s)
On May 27, 2004, the Atlantic States
Marine Fisheries Commission (ASMFC),
concerned about extreme declines in the
Saint Lawrence River/Lake Ontario
(SLR/LO) portion of the species’ range,
requested that the Service and NMFS
conduct a status review of the American
eel. The ASMFC also requested an
evaluation of the appropriateness of a
Distinct Population Segment (DPS)
listing under the Act for the SLR/LO
and Lake Champlain/Richelieu River
portion of the American eel population,
as well as an evaluation of the entire
Atlantic coast American eel population
(ASMFC 2004, p. 1). The Service
responded to this request on September
24, 2004; our response stated that we
had conducted a preliminary review
regarding the potential DPS as described
by the ASMFC, and determined that the
American eel was not likely to meet the
discreteness element of the policy
requirements due to lack of population
subdivision. Rather, the Service agreed
to conduct a rangewide status review of
the American eel in coordination with
NMFS and ASMFC (Service 2004, p. 1).
On November 18, 2004, the Service
and NMFS received a petition, dated
November 12, 2004, from Timothy A.
Watts and Douglas H. Watts, requesting
that the Service and NMFS list the
American eel as an endangered species
under the Act. The petitioners cited
destruction and modification of habitat,
overutilization, inadequacy of existing
regulatory mechanisms, and other
natural and manmade factors (such as
contaminants and hydroelectric
turbines) as threats to the species. On
July 6, 2005, the Service issued a 90-day
finding (70 FR 38849), which found that
the petition presented substantial
information indicating that listing the
American eel may be warranted, and
initiated a status review.
On February 2, 2007, the Service
issued a 12-month finding that listing
the American eel as threatened or
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endangered was not warranted (72 FR
4967).
Species Information
This section is a summary of the
species information presented in the
Service’s 2007 12-month finding (72 FR
4967), supplemented where noted with
more recent citations; for a more
complete description of the species’
biology, habitat and range, see 72 FR
4967, pp. 4968–4977.
The life history of the American eel
begins in the Sargasso Sea, located in
the middle of the North Atlantic Ocean,
where eggs hatch into a larval stage
known as ‘‘leptocephali.’’ These
leptocephali are transported by ocean
currents from the Sargasso Sea to the
Atlantic coasts of North America and
northern portions of South America.
Leptocephali migrate in the surface
layer of the ocean where food particles
are most abundant. Tsukamoto et al.
(2009, p. 835) found that leptocephali
appear to have a unique mechanism of
buoyancy control (chloride cells all over
the body surface), that differs from other
planktonic animals. The American eel
undergoes several stages of
metamorphosis, from leptocephali to
juveniles arriving in coastal waters as
unpigmented ‘‘glass eels.’’ When
juvenile eels arrive in coastal waters,
they can arrive in great density and with
considerable yearly variation (ICES
2001, p. 2). Glass eels metamorphose
(change) to pigmented ‘‘elvers’’ and then
develop into ‘‘yellow eels,’’ occupying
marine, estuarine, and freshwater
habitats. American eels begin sexual
differentiation at a length of about 20 to
25 centimeters (cm) (7.9 to 9.8 inches
(in)) and, depending on eel density,
become male or female ‘‘silver eels.’’
Upon nearing sexual maturity, these
silver eels begin migration toward the
Sargasso Sea, completing sexual
maturation en route. Spawning occurs
in the Sargasso Sea. It is hypothesized
that there is an abrupt temperature
change (referred to as a temperature
front) or other as-yet-unidentified
feature that serves as a cue for migrating
adults to cease their long migration and
begin spawning (Friedland 2007, p. 1).
After spawning, the adults die; a species
with this life-history trait is known as a
semelparous species.
In our 2007 12-month finding, we
explained that the American eel is one
of 15 ancient species, evolving about 52
million years ago, of the worldwide
genus Anguilla. The American eel is a
highly resilient species with plastic lifehistory strategies allowing individuals
to adapt to varying conditions. For
example, to successfully complete the
migration from the continent to the
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Sargasso Sea (outmigration), great
endurance and an extensive fat reserve
are required. Larger, fatter eels have an
advantage over smaller eels in reaching
the Sargasso Sea and having sufficient
energy stores to reproduce. Fecundity (a
measure of fertility) of American eels
varies with body length and habitat
occupied, larger female eels occupying
upstream habitat produce more eggs
than do smaller, estuarine females. Eels
from northern areas, where migration
distances are great, show slower growth
and greater length, weight, and age at
migration, preparing them, it has been
hypothesized, for the longer migration.
American eels in United States southern
Atlantic coast waters, although smaller,
develop into silver eels about 5 years
sooner than northern eels, likely as a
result of warmer, more stable water
conditions. These southern eels would
travel significantly shorter distances
back to the Sargasso than would
northern eels. Variation in maturation
age benefits the population by allowing
different individuals of a given year
class to reproduce at different times
over a period of many years, which
increases the chances that some eels
will encounter environmental
conditions favorable for spawning
success and offspring survival. For
example, variability in the maturation
age of eels born in 2006 may result in
spawners throughout 2010 to 2030,
during which time favorable
environmental conditions are likely to
occur at least once.
American eels are currently thought
to be one, well-mixed, single breeding
(panmictic) population (PBS&J 2008, pp.
2–9; MacGregor et al. 2008, p. 2; Fenske
2009, p. 38; Mathers and Stewart 2009,
p. 359; Tremblay 2009, p. 85; Jessup
2010, p. 339; Velez-Espino and Koops
2010, pp. 175–181). This panmictic lifehistory strategy maximizes adaptability
to changing environments and is well
suited to species that have
unpredictable larval dispersal to many
habitats (e.g., marine, estuarine, and
freshwater). By not exhibiting
geographic or habitat-specific
adaptations, eels have the ability to
rapidly colonize new habitats and to
recolonize disturbed ones over wide
geographical ranges. The consequence
of panmixia to the species’ ability to
withstand human-caused activities is
captured in the following passage by
Aoyama (2009, p. 32): ‘‘with a panmictic
population structure, overharvesting
eels in one area likely will not affect
subsequent recruitment to that
particular area because new recruits will
arrive randomly from spawners that
originated from other areas.’’
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While one study (Cote et al. 2009, pp.
1943–1944) preliminarily suggests that
regional variations in growth may be
genetically related, and possibly call
into question our understanding of
panmixia in the American eel, the
authors state that the genetics have not
been rigorously tested, and the analysis
may just show the start of possible
adaptive population genetic
differentiation (Cote et al. 2009, pp.
1943–1944; DeLeo et al. 2009, pp. 2, 4).
If we find in the future that the Cote et
al. (2009) hypothesis of a genetic basis
for regional growth variations does have
merit for the American eel, that will
change our understanding that the eel is
fully panmictic, and the Service may
need to reexamine the species-level
effects of the various threats discussed
below. However, until such time as
information becomes available
concerning geographically distributed
genetic structure for the American eel,
we will continue to consider the
American eel panmictic, as that life
strategy is currently supported by the
best scientific information available
(PBS&J 2008, pp. 2–9; MacGregor et al.
2008, p. 2; Fenske 2009, p. 38; Mathers
and Stewart 2009, p. 359, Tremblay
2009, p. 85; Jessup 2010, p. 339; VelezEspino and Koops 2010, pp. 175–181).
The extensive range of the American
eel includes all accessible river systems
and coastal areas having access to the
western North Atlantic Ocean and to
which oceanic currents would provide
transport. As a result of oceanic
currents, the majority of American eels
occur along the Atlantic seaboard of the
United States and Canada. The
historical and current distribution of the
American eel within its extensive
continental range is well documented
along the United States and Canadian
Atlantic coast, and the SLR/LO. The
distribution is less well documented
and likely rarer, again due to currents,
in the Gulf of Mexico, Mississippi
watershed, and Caribbean Islands, and
least understood in Central and South
America.
The American eel is said to occupy
the broadest diversity of habitats of any
fish species (Helfman et al. 1987, p. 42).
During their spawning and oceanic
migrations, eels occupy salt water, and
in their continental phase, use all
salinity zones: fresh, brackish, and
marine (for detailed habitat use by life
stage, see Cairns et al. 2005), and some
eels move between fresh and brackish
water several times throughout their life
(Thibault et al. 2007, p. 1106; Jessup et
al. 2008, p. 210). Barring impassable
natural or humanmade barriers, eels
occupy all freshwater systems,
including large rivers and their
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tributaries, lakes, reservoirs, canals,
farm ponds, and even subterranean
springs. The eel’s anguillid (eel-shaped)
body form allows it to climb when at
young stages and under certain
conditions (e.g., rough surfaces),
enabling it to pass up and over some
barriers encountered during upstream
migrations in freshwater streams (Craig
2006, pp. 1–4). Eels are able to survive
out of water for an exceptionally long
time (eels can meet virtually all their
oxygen needs through their skin), as
long as they are protected from drying
(for which their ability to produce
mucus is of great adaptive significance).
Eels have been seen using overland
routes (while moist) when they
encounter a barrier, which explains
their entrance into landlocked waters
(Tesch 2003, pp. 184–185) and their
presence above numerous dams and
weirs (Service 2005b, pp. 16–18).
No rangewide estimate of abundance
exists for the American eel. Information
on demographic structure is lacking and
difficult to determine because the
American eel is panmictic (see above),
with individuals randomly spread over
an extremely large and diverse
geographic range, and with growth rates
and sex ratios determined by the
environmental conditions they
encounter. Because of this unique life
history, site-specific information on eels
must be evaluated in context of its
significance to the entire species.
Determining status trends is challenging
because the relevant available data are
limited to a few locations that may or
may not be representative of the species’
range. Little information exists about
key factors such as mortality and
recruitment that could be used to
develop an assessment model.
(Recruitment refers to juveniles
surviving and being added to the
population.) In the American eel,
recruitment is typically measured by
counting glass eels as they reach coastal
waters. Furthermore, the ability to make
inferences about the species’ viability
based on available trend information is
hampered without an overall estimate of
eel abundance (i.e., no abundance data
exist for the estuarine and saline
habitats). Despite these challenges, the
Service determined in its 2007 12month status review (72 FR 4967) that
the entire American eel population
appeared stable over the long-term.
The 2007 12-month finding
concluded:
‘‘we find that the American eel remains
widely distributed over their vast range
including most of their historic freshwater
habitat, eels are not solely dependent on
freshwater habitat to complete their lifecycle
utilizing marine and estuarine habitats as
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well, they remain in the millions, that
recruitment trends appear variable, but
stable, and that threats acting individually or
in combination do not threaten the species at
a population level. On the basis of the best
available scientific and commercial
information, we conclude that the American
eel is not likely to become an endangered
species within the foreseeable future
throughout all or a significant portion of its
range and is not in danger of extinction
throughout all or a significant portion of its
range. Therefore, listing of the American eel
as threatened or endangered under the Act is
not warranted (72 FR 4967, p. 4997).’’
The Service acknowledged uncertainties
while evaluating the best available data
during the status review (72 FR 4967,
pp. 4977–4978) and concluded that
‘‘mortality during outmigration due to
parasites and contaminants, and the
potential effects of contaminants on
early life stages, remain a concern,’’ but,
‘‘we have no information indicating that
these threats are currently causing or are
likely to cause population level effects
to the American eel’’ (72 FR 4967, p.
4996). The Service suggested that
‘‘future research should focus on: The
effects of contaminants on outmigration
and spawning success and egg viability;
the effects during outmigration,
contributors to prevalence of, and
prevention and/or treatment of, the
exotic nematode, Anguillicola crassus;
and improving the success and cost of
downstream passage. In addition, future
assessments and measuring the success
of conservation actions would be
improved by the collection of
information useful for population
dynamics and an increased
understanding of how oceanic
conditions affect larval distribution and
abundance’’ (Bell in litt. 2007, p. 1).
The Service’s 2007 status review,
documented in our 12-month finding
(72 FR 4967), is, to date, the most
comprehensive analysis of the American
eel’s rangewide status. The Service will
use the 2007 status review as baseline
information in the evaluation of the
CESAR petition as well as other
information that has become available
since the 2007 12-month finding and
prior to the receipt of the petition.
Evaluation of Information for This
Finding
Section 4 of the Act (16 U.S.C. 1533)
and its implementing regulations at 50
CFR part 424 set forth the procedures
for adding a species to, or removing a
species from, the Federal Lists of
Endangered and Threatened Wildlife
and Plants. 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:
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(A) The present or threatened
destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(C) Disease or predation;
(D) The inadequacy of existing
regulatory mechanisms; or
(E) Other natural or manmade factors
affecting its continued existence.
In considering what factors might
constitute threats, we must look beyond
the mere exposure of the species to the
factor to determine whether the species
responds to the factor in a way that
causes actual impacts to the species. If
there is exposure to a factor, but no
response, or only a positive response,
that factor is not a threat. If there is
exposure and the species responds
negatively, the factor may be a threat,
and we then attempt to determine how
significant a threat it is. If the threat is
significant, it may drive or contribute to
the risk of extinction of the species such
that the species may warrant listing as
threatened or endangered as those terms
are defined by the Act. This does not
necessarily require empirical proof of a
threat. The combination of exposure and
some corroborating evidence of how the
species is likely impacted could suffice.
The mere identification of factors that
could impact a species negatively may
not be sufficient to compel a finding
that listing may be warranted. The
information shall contain evidence
sufficient to suggest that these factors
may be operative threats that act on the
species to the point that the species may
meet the definition of threatened or
endangered under the Act.
In making this 90-day finding, we
evaluated whether the information
regarding threats to the American eel
found in the petition and in our files,
including our 2007 12-month finding, is
substantial, thereby indicating that the
petitioned action may be warranted. Our
evaluation of this information is
presented below.
A. The Present or Threatened
Destruction, Modification, or
Curtailment of Its Habitat or Range
Information Provided in the Petition
The petitioner asserts the American
eel is threatened by loss of habitat or
range and reductions in habitat (ASMFC
2009, NatureServe 2004), stating
‘‘significant anthropogenic [manmade]
changes within the range have reduced
the accessible habitat by percentages
perilously close to 100 percent in some
places’’ (Petition, p. 17). The petitioner
asserts that ‘‘these reductions in habitat
and their causes can have a cascading
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adverse effect on eel populations’’
(Petition, p. 17). The petitioner also
asserts that freshwater riverine systems
are the most important habitat for eels
and that ‘‘While it is possible that some
eels spend their entire life cycle in salt
water, oceanic research indicates such
behavior is rare and virtually
nonexistent; catch data from
commercial trawling confirms
empirically that this is rare. Certainly
the marine component is small and at
best an unknown and unquantified life
strategy which provides little
foundation for reliance on it as a basis
for sustaining the American eel
production’’ (Petition, p. 17). The
petitioner also provides summary
information regarding freshwater stream
habitat loss due to obstructions (i.e.,
dams) and some eel abundance and
density observations throughout the
coastal range of the species (Petition,
pp. 19–21).
Evaluation of Information Provided in
the Petition and Available in Service
Files
The petitioner restated much of the
information provided in the Service’s
2007 12-month finding (72 FR 4967),
along with information from a few
sources published after the 2007 12month finding. However, most of these
‘‘new’’ sources of information, while
published after the 2007 12-month
finding, summarize the same historical
information regarding habitat loss and
degradation available to, and considered
by, the Service for the 2007 12-month
finding (see Busch et al. 1998 cited in
ASMFC 2009, Maryland Department of
Natural Resources 1999, NatureServe
2004). The petitioner cited information
from a book ‘‘Eels at the Edge’’
(Casselman and Cairns 2009). This
entire book was unavailable to the
authors of this 90-day finding to analyze
since the petitioner did not provide the
requested copy and the entire book did
not become available from the Service’s
files until after the 90-day finding was
drafted; however, the book is actually a
compilation of papers, many of which
(e.g., Weeder and Uphoff (2009) and
Welsh and Hammond (2009)) were
available and analyzed by us for this 90day finding. The complete Casselman
and Cairns (2009) book will be
evaluated during the new 12-month
status review.
The Service’s Factor A analysis in the
2007 12-month finding (72 FR 4967, pp.
4978–4983) reviewed spawning and
ocean migration habitat; estuarine and
marine habitat; and freshwater habitat,
including lacustrine (lake) habitat,
specifically Lake Ontario, and the
impacts of barriers (including dams) on
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distribution. The Service found in the
2007 12-month finding that spawning
and ocean habitats were not impacted
by significant threats and that American
eels used estuarine, marine, and
freshwater habitats, including exclusive
use of marine and estuarine habitats by
some eels (72 FR 4967, p. 4983).
Although extensive loss of historical
freshwater habitat has occurred due to
human-induced barriers (i.e., dams
constructed for hydroelectric, water
supply, and recreational purposes), any
population-level impacts have likely
already been realized and there is no
indication of future barrier construction
that would further limit freshwater
habitat (72 FR 4967, p. 4983). The
‘‘American eel remains well-distributed
throughout roughly 75 percent of its
historical range, mainly in the lower
reaches of the watersheds,’’ and
although American eel abundance has
been more affected by barriers than has
distribution, ‘‘there is no evidence that
the reduction in densities has resulted
in a negative population-level effect
such as a reduction in glass eel
recruitment. Analyses of local and
regional declines in abundance do not
temporally correlate with the loss of
access to freshwater habitat’’ (72 FR
4967, p. 4983). The 2007 12-month
finding concluded that freshwater,
estuarine, and marine habitats were
sufficient to sustain American eel
populations, and the present or
threatened destruction, modification, or
curtailment of its habitat or range was
not a threat to the American eel (72 FR
4967, pp. 4983, 4996).
In addition to the baseline
information in the Service’s 2007 12month finding, new information in the
Service’s files at the time of the receipt
of the petition continues to demonstrate
that American eels persist in all three
habitat types, despite localized impacts.
In some instances, the new information
suggests that American eels do more
than just ‘‘persist’’ in estuarine and
coastal marine waters; in fact, those
habitat types may be even more
important to American eels than we
previously thought (Machut et al. 2007,
p. 1707; Jessup et al. 2008, p. 210;
Cairns 2009, p. 74; Fenske 2009, p. 75;
ICES 2009, p. 1; Jessup et al. 2009, pp.
867–868; Jessup 2010, p. 328). Examples
of localized impacts to freshwater
habitat include a paper by Machut et al.
(2007, p. 1700) that suggests
urbanization in Hudson River tributaries
impacts the invertebrate communities
used as food for the American eel and
may be contributing to the reported
decline of American eels from certain
portions of their historic range, and a
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letter from the Service to the City of
Raleigh indicating impacts to the Little
River in North Carolina if projected
water supply and disposal projects
proceed (USFWS in litt. 2009b).
However, we have no information to
suggest that these two localized
examples are indicative of rangewide
impacts to freshwater habitat.
Throughout the freshwater range of
the American eel, new eel passage
projects (since 2007) have been
completed or are planned. While
upstream passage facilities are not
present everywhere within the
American eel’s range (Minkkinen and
Park 2007, p. 1) and existing upstream
passage facilities do cause some
mortality, more American eels are
passed into the upper reaches of
watersheds now than prior to 2007. For
example, an eel passage project was
completed at the Roanoke Rapids Dam
in North Carolina (American Eel
Working Group (AEWG) 2010, p. 1;
Roanoke Rapids and Gaston 2010, p. 2).
Eel passage projects are in variable
stages of planning and construction in
other watersheds, including in the
Potomac River watershed (Chesapeake
Bay Field Office (CBFO) 2009, p. 1); at
the Stevenson Dam on the Housatonic
River and the Taftville Dam on the
Shetucket River in Connecticut
(Connecticut Department of
Environmental Protection (CTDEP 2009,
p. 4)); at the Millville, Warren, and
Luray Dams on the Shenandoah River in
West Virginia (Eyler et al. 2008, slide 4;
Welsh 2008, slide 22); in the Piedmont
region of South Carolina (Rohde et al.
2008, p. 82); in the Santee River Basin
in South Carolina (Santee River Basin
Accord 2008, pp. 6–7); and in Quebec
and Ontario Provinces, Canada
(Verreault et al. 2009b, p. 21). Although
the success of ladder placement to
minimize entrainment (the process by
which aquatic organisms, suspended in
water, are pulled through a pump or
other device (Webster’s On-line
Dictionary, 2011)) is specific to each
dam (McGrath et al. 2009, p. 1),
American eels can show a positive,
quick response to the placement of
ladders and use them to swim past/over
barriers (Cairns et al. 2008, p. 2;
Schmidt et al. 2009, p. 718).
Since 2007, more studies on the
American eel’s use of freshwater,
estuarine, and coastal marine waters
have been completed. These studies
confirm that eels use all three habitat
types (Dutil et al., 2009, pp. 1979, 1981;
ICES 2009, p. 1) and that brackish (i.e.,
estuarine waters) and salt water are
important for American eel growth, in
terms both of faster growth rates and
larger size of individuals, and
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productivity (Machut et al. 2007, p.
1707; Jessup et al. 2008, p. 210; Cairns
2009, p. 74; Fenske 2009, p. 75; ICES
2009, p. 1; Jessup et al. 2009, pp. 867–
868; Jessup 2010, p. 328). For example,
Jessop et al. (2009, p. 866) found growth
rates of 3.2 times greater in American
eels that had resided primarily in
estuarine waters than those that had
resided only in freshwater. Lamson et
al. (2009, pp. 310, 312) found that on
average, eels grew in length 2.2 times
faster and gained weight 5.3 times faster
in full-strength seawater than did
freshwater residents (freshwater
residents took 2.4 times longer to reach
the silver eel stage). This rapid growth
enhances many fitness-related aspects of
fish demographics, including quicker
progression to reproductive capability
and decreased vulnerability to
predators, hastening the single
reproductive opportunity of these fishes
(Cairns et al. 2009, p. 2095). The
mechanism behind, and the
evolutionary advantage of, this rapid
growth in saline environments (Cairns
et al. 2009, p. 2095) and the latitudinal
variability in length and age at maturity
of both males and females (Jessop 2010,
p. 328) continues to intrigue
researchers. While there is no indication
that the importance of freshwater
habitat for American eel has
diminished, recent information shows
that estuarine (brackish) areas also
provide valuable American eel
productivity partially due to the
increased food availability and
decreased exposure to natural and
anthropogenic mortality (Lamson et al.
2009, p. 311). Some eels move between
salt water and brackish water and
between brackish water and freshwater
several times within their lifetime prior
to outmigration to the Sargasso Sea
spawning grounds (Jessup et al. 2008, p.
210; Thibault et al. 2007, p. 1106).
In summary, we find that the
information provided in the petition, as
well as baseline and other new
information in our files, does not
present substantial scientific or
commercial information indicating that
the petitioned action may be warranted
due to the present or threatened
destruction, modification, or
curtailment of the American eel’s
habitat or range. There is no evidence
that additional freshwater habitat is
being lost or modified rangewide
beyond the already documented
historical loss that was previously
determined not to be a threat to the
American eel. The new information
indicates more freshwater habitat is
becoming available to the American eel
with the installation of upstream
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passage projects. In addition,
information suggests that estuarine and
coastal marine habitats are readily used
by, and may be more important to, the
American eel than previously thought.
In our new 12-month status review, we
will, however, further investigate any
new information on habitat destruction,
modification, or curtailment of the
species’ habitat or range in relation to
current or projected population
declines.
B. Overutilization for Commercial,
Recreational, Scientific, or Educational
Purposes.
Information Provided in the Petition
The petitioner asserts that American
eels are commercially harvested at all
juvenile and adult life stages and ‘‘it is
undisputed that overutilization of
American eel is now occurring across
the species’ range in the United States
of America’’ (Petition, p. 22). The
petitioner cites information from
ASMFC (2000) and Geer (2004) that
discuss reduction in commercial
landings from the historical levels of the
mid 1970s and 1950, respectively. The
petitioner also cites information from
the ASMFC Addendum II (2008) report
and 2007 harvest data from State
Compliance Reports (2008) that
document eel fisheries in almost all
States and overall landings of eels
decreasing over time. The petitioner
asserts that the ASMFC’s own records
show a failure to implement protective
measures for American eels, including
restriction or reduction of harvest levels,
despite the ‘‘declines in abundance’’
(Petition, p. 23). The petitioner also
asserts that there is a level of
recreational harvest that also contributes
to the decline of American eels
(Petition, p. 23).
Evaluation of Information Provided in
the Petition and Available in Service
Files
The information cited in the petition
is a compilation of historical
information available to, and considered
by, the Service in our 2007 12-month
finding, as well as more recent raw
landing data from years after the 2007
12-month finding. For example, the
following references available in the
Service’s files or provided by the
petitioner were published since 2007
but summarized historical data sets, the
results of which were already
considered in the 2007 12-month
finding: Susquehanna River
Anadromous Fish Restoration
Cooperative (SRAFRC) 2010, Clark
2009, DeLafontaine et al. 2009, Mathers
and Stewart 2009, Overton and Rulifson
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2009, Weeder and Hammond 2009,
Weeder and Uphoff 2009, MacGregor et
al. 2008, and Casselman and
Marcogliese 2007. The ASMFC 2007
(petitioner’s ASMFC 2008 citation) and
ASMFC–AEPRT 2008 reports included
raw landing data from 2007.
As explained in the Service’s 2007 12month finding, correlating landings data
with long-term increases or decreases in
American eel population trends is
speculative at best, given the
multifaceted analysis required. This
analysis has not yet been conducted (72
FR 4967, p. 4986). To determine the
impacts of commercial and recreational
harvest at a population level, given the
assumption that the American eel is
panmictic, the following factors must be
taken into account: ‘‘(1) The level of
individuals [that] are not subjected to
fishing pressure; (2) the theory that
fishing of glass eels and elvers does not
necessarily represent a substantial loss
to reproductive capacity of the species;
(3) the vast areas that remain unfished;
and (4) the lack of evidence that there
is a reduction in glass and elver
recruitment rangewide’’ (72 FR 4967, p.
4986).
The petitioner states that the ASMFC
Addendum II (petitioner’s ASMFC 2008
citation, our ASMFC 2007 reference)
indicates that recreational fishing of
American eels stems from incidental
bycatch by anglers, commercial bait for
sport fish such as striped bass, and some
amount of bait use by recreational
fisherman (Petition p. 23). The ASMFC
(2007, pp. 6–7) report does state that the
NMFS Marine Recreational Fisheries
Statistics Survey (MRFSS) for 2007
indicated that the recreational total
catch was 139,731 American eel, which
represented a large increase from the
2006 total of 85,969 American eel.
However, the report goes on to state in
a footnote to the catch data that the
‘‘MRFSS Data for American Eel are
unreliable. 2005 Proportional Standard
Error (PSE) values for recreational
harvest in Rhode Island, New Jersey,
Delaware, Maryland, Virginia, and
South Carolina are 98.1, 100, 96.6, 70.1,
100.5, 100, and 79.1, respectively’’
(ASMFC 2007, p. 7). This means that the
American eel recreational harvest data
could be drastically under or over
counted depending upon the potential
for error.
We analyzed MRFSS information,
available from 1981, as part of our 2007
12-month finding. Part of the data
analysis included evaluating the
reliability of the MRFSS data, especially
given the margin for error noted in the
ASFMC 2007 (p. 7) report. Our 2007 12month finding stated that ‘‘recreational
harvest is either limited or nonexistent
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throughout most of the range of the
American eel,’’ and described the source
of the recreational harvest similarly to
the petitioner’s categories (72 FR 4967,
p. 4986). The 2007 12-month finding
went on to describe the low levels of
recreational harvest throughout the
American eel’s range, the gear and catch
restrictions put in place by the ASFMC
member states to prevent unregulated
recreational harvest, and the limited
information about subsistence harvest
and bycatch (72 FR 4967, p. 4987).
Through our analysis, we concluded in
the 2007 12-month finding that ‘‘there
are no data to suggest that subsistence
harvest, bycatch, and recreational
harvest are having a significant impact
on American eel regionally or
rangewide’’ (72 FR 4967, p. 4987).
In addition to the ASMFC 2007
report, the outline of a Verreault et al.
(2009b) report indicates that some
recreational harvest information for
American eels in Canada may be
available. However, the recreational
harvest sections of the report for glass
eel, yellow eel, and silver eel all state
that there are ‘‘no data available’’
(Verreault et al. 2009b, pp. 5, 11).
In summary, at the time the petition
was received, we had only the ASMFC
2007 report, which indicates that the
little recreational harvest data that are
available may be unreliable, and the
Verreault et al. 2009b report, which
indicates that there are no recreational
harvest data available in Canada.
Therefore, because there is no new
information about the potential impact
of ongoing commercial harvest, and
monitoring and reporting of recreational
harvest continues to be limited or
nonexistent throughout the range of the
American eel, the conclusion from the
2007 12-month finding that commercial
and recreational harvest does not impact
the American eel at the panmictic
population level is reasonable. We will,
however, further investigate commercial
and recreational harvest impacts to the
American eel in our new 12-month
status review.
New models for estimating abundance
of fish species are being developed, but
due to the global and complex lifehistory traits of the American eel and
the difficulties inherent in simulating
those traits, as well as the models’
assumption limitations, no reliable
model for the American eel currently
exists, especially one that relies on
harvest (i.e., landings) data (ASMFC–
AEPRT 2008, p. 2; ASMFC–AESAS
2008a, pp. 9–11; Cairns et al. 2008, p.
3; MacGregor et al. 2008, p. 4; ASFMS–
AETC&SAS 2009c, p. 8). The ASMFC
(2008c, pp. 1–2) listed the need for a
fishery-independent sampling program
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for yellow and silver eels as a high
priority, as this information would give
a more reliable indicator of population
trends.
The petitioner’s assertion that the
ASMFC failed to implement protective
measures for American eels, including
restriction or reduction of harvest levels,
despite the ‘‘declines in abundance’’
(Petition, p. 23), will be addressed
under Factor D below.
In summary, we find that the
information provided in the petition, as
well as baseline and other new
information in our files, does not
present substantial scientific or
commercial information indicating that
the petitioned action may be warranted
due to overutilization of the American
eel for commercial, recreational,
scientific, or educational purposes.
There is no evidence indicating that
harvest of American eels may be a threat
at the population level. While new
population models are becoming
available, the continued reliance on
landings data remains problematic in
determining accurate population trends.
We will, however, further investigate
new information regarding
overutilization of the American eel for
commercial, recreational, scientific or
educational purposes in our new 12month status review.
C. Disease or Predation.
Information Provided in the Petition
The petitioner asserts that the
American eel is threatened by
Anguillicola crassus, a parasite infesting
the eel’s swim bladder (an internal gasfilled organ that regulates a fish’s
buoyancy) (Petition, pp. 23–28). The
swim bladder is used by the eel for
vertical migration (defined as moving at
different depths in the water column)
during its spawning migration (Petition,
p. 25). This parasite spread from its
native host, Japanese eels (Anguilla
japonica), to both the European
(Anguilla anguilla) and American eel
through the expanding eel trade
between countries and the eel
aquaculture industry (Petition, p. 23).
The parasite infects an eel’s swim
bladder and causes damage to the swim
bladder, potentially affecting the eel’s
ability to reach the spawning ground in
the Sargasso Sea (Petition, p. 25). The
petitioner cites studies by Aieta and
Oliveria (2009) and Sokolowski and
Dove (2006) documenting the spread of
A. crassus throughout the American
eel’s range (Petition, pp. 24–25). The
petitioner concludes that the effects of
A. crassus, in combination with the
impacts of hydroelectric turbine
mortality, contaminant accumulation,
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low fat stores, and commercial and
recreational harvest, are causing fewer
eels to reach their Sargasso Sea
spawning grounds (Petition, p. 26). The
petitioner also asserts that the results of
experiments (Gollock et al. 2005)
conducted on European eels showing
evidence of decreased survival rate of
European eels infected with A. crassus
and exposed to hypoxic (reduced
oxygen) conditions (associated with
warmer than normal water
temperatures) can be extrapolated to
American eels (Petition, p. 26). The
petitioner also asserts that eels infected
with A. crassus that do survive the
migration to the Sargasso Sea will not
have the necessary fat stores to
successfully reproduce because the eels
may have used too much stored fat
energy swimming with impaired swim
bladders (Petition, p. 27). The petitioner
also asserts the reduction in the number
of eels reaching the spawning grounds
will cause a long-term ‘‘allee effect’’ (an
effect of population density on
population growth, by which there is a
decrease in reproductive rate at a very
low population density and a positive
relationship between population density
and the reproduction and survival of
individuals (Science-Dictionary.com
2011)) because eels will be unable to
find mates (Petition, p. 28).
The petitioner did not assert that
predation was a threat to the American
eel.
Evaluation of Information Provided in
the Petition and Available in Service
Files
The Service’s 2007 12-month finding
discussed the latest laboratory research
on the negative effects Anguillicola
crassus infection on European eel swim
capacity. Although A. crassus infection
causes physiological damage to the
swim bladder, this damage is only a
concern for silver eels during
outmigration when buoyancy and depth
control are needed for the presumed
deepwater migration to the Sargasso Sea
(72 FR 4967, p. 4988). The 2007 12month finding also discussed the
implications of this reduced swim
capacity to outmigration and spawning
of American eel, and concluded that
there may be less of a potential impact
from A. crassus to American eel than to
European eel (72 FR 4967, p. 4988). The
2007 12-month finding concluded that
there was no apparent causal link
between the A. crassus parasite in
individual American eel and
population-level effects, such as
reduced recruitment of glass eels.
However, the Service acknowledged
that, because the effects of the parasite
are difficult to study under natural
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conditions, a level of uncertainty was
inherent in our conclusion.
New information readily available to
the Service since the 2007 12-month
finding and prior to receipt of the
petition provides, as the 12-month
finding anticipated, evidence of a
northerly extension of Anguillicola
crassus distribution through New
England to eastern Canada (Rockwell et
al. 2009, p. 483). Competing hypotheses
continue as to whether colder
temperatures will limit the spread of
this parasite (Aieta and Oliveira 2009, p.
234; Sjoberg et al. 2009, p. 2167) and
what effect A. crassus infection has on
the fat reserves required for successful
migration (Petition, p. 26; Sjoberg et al.
2009, p. 2166). However, although new
literature has been published since the
2007 12-month finding, some of these
publications were based on research
results that were considered in the 2007
12-month finding. Other new
publications confirmed the presence of
A. crassus in a previously unexamined
area of the Upper Potomac River
drainage of the mid-Atlantic
(Zimmerman and Welsh 2008, p. 34).
The Service anticipated the spread of A.
crassus in the 2007 12-month finding.
The current and anticipated impacts of
A. crassus, thus, were previously
addressed (e.g., Palstra 2007a).
Therefore, the new validation of the
northerly invasion is not substantial
information because the current and
anticipated impacts of the parasite on
American eel were already analyzed at
the species level.
The petitioner also asserts that new
research states that the eel’s vertical
migrations are limited by Anguillicola
crassus, and this may affect
outmigration (Sjoberg et al. 2009, p.
2166). Reports such as Sjoberg et al.
(2009) and Chow et al. (2009), while
published since the 2007 finding,
merely confirm information from
laboratory studies analyzed in the 12month finding about the impacts of A.
crassus on silver eels’ buoyancy and
depth control during outmigration (72
FR 4967, p. 4988). Sjoberg et al. (2009,
pp. 2165–2166) reports it appears that
more heavily infected European eels
were relatively more vulnerable to
recapture in pound nets; therefore, it is
hypothesized by the authors that
parasite-induced damage to the swim
bladder inhibited vertical migrations,
and infected European eels tended to
migrate in shallower coastal waters,
relatively close to the shore. Chow et al.
(2009, pp. 257–258) captured two
Japanese eels at depths of greater than
230 meters (m) (755 feet (ft)), confirming
at least for Japanese eel what has been
hypothesized for all Anguillicola, that
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migrations may occur at significant
depths. The concern put forward by the
petitioner is that, without a functioning
swim bladder, such as those damaged
by A. crassus, eels cannot make vertical
migrations into or out of such depths.
Because our 2007 12-month finding
discussed the implications of A. crassus
on the American eel, the new validation
of A. crassus impacts is not substantial
information because the current and
anticipated impacts of the parasite on
American eel were already analyzed at
the species level.
Other new information presented by
the petitioner and in the Service’s files
suggests that physical barriers such as
dams and natural waterfalls
significantly reduce Anguillicola
crassus infection rates upstream
(Machut and Limberg 2008, p. 13). In
addition, recent genetic research into
the population structure of A. crassus
indicates that the parasitic infestation
likely arose from long-range transfers of
infected eels during eel stocking
(Wielgoss et al. 2008, p. 3491), which
raises doubts about the petitioner’s
assertion of A. crassus introduction via
ballast water.
The petitioner cited research by
Gollock et al. (2005) asserting a
generalized decreased survival rate due
to heightened mortality of Anguillicola
crassus infected eels under hypoxic
conditions. However, these findings
applied to eels living in Lake Balaton
where dissolved oxygen may decrease
rapidly overnight because of the
cessation of photosynthesis by
phytoplankton. Given the localized
nature of this research, any
extrapolation of these findings to
population-level effects on American eel
is speculative at best.
The petitioner, citing a paper
discussing extinction risk of the polar
bear, suggested that the infections by
Anguillicola crassus, together with other
threats, may limit the probability of
American eels finding a mate in the vast
Sargasso Sea and that this ‘‘allee effect’’
will edge the species closer to extinction
(Petition, p. 28). The allee effect is a
concept that has been discussed in
relation to the European eel, which has
experienced significant recruitment
failure, but because there is no evidence
that significant recruitment failure may
be occurring with American eel, this
new assertion is speculative. Attributing
effects seen in European eel to
American eel (e.g., effects to spawning
from A. crassus infection) was
discussed in the 2007 12-month finding.
There is no new available information
either provided by the petitioner or
found in the Service’s files that alters
the cautions in that finding against
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60439
untempered transfer of information
specific to the European eel, to the
American eel.
There was no information provided
by the petitioner or new information in
our files concerning the effects of
predation on the American eel
population. The 2007 12-month finding
stated that individual American eels are
sometimes predated by birds of prey
and piscivorous (fish-eating) fish, but
this level of predation does not impact
the species rangewide (72 FR 4967, p.
4987).
In summary, we find that the
information provided in the petition, as
well as other information in our files,
does not present substantial scientific or
commercial information indicating that
the petitioned action may be warranted
due to disease or predation. We will,
however, further investigate new
information regarding the populationlevel impacts of A. crassus and
predation on the American eel in our
new 12-month status review.
D. The Inadequacy of Existing
Regulatory Mechanisms
Information Provided in the Petition
In general, the petitioner asserts that
the Service, NMFS, Federal Energy
Regulatory Commission (FERC), U.S.
Environmental Protection Agency
(EPA), ASMFC, and Canada lack
adequate regulatory mechanisms under
existing authorities to protect the
American eel (Petition, pp. 28–35). The
petitioner cites a lack of follow-through
on ASMFC’s stated need for a stock
assessment, the Service’s and NMFS’
lack of specificity in their FY 2007–2011
strategic plan and ‘‘Our Living Oceans’’
documents, respectively (Petition, p.
28). The petitioner asserts an underreporting of the number of structures
serving as barriers to American eels and
lack of ‘‘systematic effort to alleviate the
threat of dams’’ (Petition, p. 29), as well
as a failure of existing regulatory
mechanisms to address the decline of
American eels (Petition, p. 32).
Specifically, the petitioner asserts
there is inadequate regulation of
hydroelectric power dams via
implementation of legal authorities
under the Federal Power Act on the part
of the Service, NMFS, and FERC, and
via implementation of the Clean Water
Act on the part of the EPA (Petition, p.
32). The petitioner asserts these Federal
agencies have failed to provide ‘‘safe
and efficient upstream and downstream
passage for American eels at
hydroelectric dams in the historic range
of the American eel in the United
States.’’
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The petitioner also asserts the EPA
has failed to adequately regulate the
disposition of ballast water under the
Clean Water Act, which has led to the
spread of Anguillicola crassus. The
petitioner cites several information
sources suggesting that the discharge of
ballast water is a likely mechanism for
the spread of A. crassus through
intermediary hosts, as well as numerous
other invasive species (Petition, p. 34).
The petitioner asserts that the Service
did not address ballast water disposition
in the 2007 12-month finding.
The petitioner also asserts that the
ASMFC has failed to limit or prohibit
the harvest of American eel on the
Atlantic seaboard through their legal
authorities under the Magnuson-Stevens
Fisheries Conservation Act despite
ASMFC’s statement in 2004
recommending the Service and NMFS
consider protection of the American eel
under the Endangered Species Act
(Petition, p. 34).
Evaluation of Information Provided in
the Petition and Available in Service
Files
The petitioner states that the Service’s
Region 5 Fiscal Years (FYs) 2007–2011
Strategic Plan and NMFS’ Our Living
Oceans documents do little to
demonstrate the agencies’ ‘‘systematic
effort to alleviate the threat of dams to
eels,’’ and quotes information from
those two documents as it pertains to
the importance of habitat restoration.
Because strategic plans for FYs 2007 to
2011 do not exist, we assume that the
petitioner meant to cite the Northeast
Region (i.e., Region 5) Fisheries Program
Strategic Plan for FYs 2004–2008
(Service 2004b) or FYs 2009–2011
(Service 2009). That said, strategic plans
are broad-vision documents meant to
provide the general framework and
goals for separate stepped-down
operational plans, which have the
specificity that the petitioner notes the
strategic plan lacks. For example, a
strategic plan may recommend the need
for research and modeling to determine
the optimal path to achieve a specific
goal. One such model is the habitat
suitability index (HSI) discussed by
Kocovsky et al. (2008), which prioritizes
the temporal sequence of dam removal
in the Susquehanna River based on
suitable habitat conditions for target fish
species, including the American eel.
Because they do not prescribe any
specific actions, the strategic plans do
not constitute regulatory mechanisms,
and are not analyzed as such. The
Factor A section of the 2007 12-month
finding (72 FR 4967, p. 4983) concluded
the present or threatened destruction,
modification, or curtailment of the
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American eels’ habitat or range is not a
significant threat to the American eel
rangewide and the Factor A section of
this 90-day finding above concludes
there is no substantial information
indicating this may be a significant
threat now.
The petitioner asserts that the EPA
has failed to adequately regulate the
disposition of ballast water under the
Clean Water Act, which has lead to the
spread of Anguillicola crassus. The
petitioner states, ‘‘Numerous authors, as
well as panelists in the 2004 FWS
sponsored workshop, pointed out that
ballast water of ships is the most likely
mechanism for the rapid spread of the
parasite from one location to another,
through the dispersal of its intermediate
hosts’’ (Petition, p. 34). As explained
above under Factor C, recent genetic
research into the population structure of
A. crassus indicates that the parasitic
infestation likely arose from long-range
transfers of infected eels during eel
stocking (Wielgoss et al. 2008, p. 3491).
This genetic research was completed
after the 2007 12-month status review,
but took into account information from
the 2004 Service workshop referenced
by the petitioner. In addition, Factor C
in the 2007 12-month finding concluded
that disease is not a significant threat to
the American eel rangewide and the
Factor C section of this 90-day finding
above concludes there is no substantial
information indicating this may be a
significant threat now. Therefore, there
is no substantial information on the
inadequacy of existing regulatory
mechanisms associated with disease.
The petitioner asserts that ASMFC
failed to limit or prohibit the harvest of
American eel on the Atlantic seaboard
through their legal authorities under the
Magnuson-Stevens Fisheries
Conservation Act: ‘‘The ASMFC has
done little over the past decade
effectively to reverse the declines in eel
recruitment, halt commercial [fishing]
and commercial take of American eels
for recreational use as bait, or
implement consistent methods to
accurately assess their population size
(ASMFC 2008; Taylor et al. 2008).’’ The
petitioner’s Taylor et al. 2008, citation is
the same document discussed below
with the ASMFC–AERPT 2008 citation;
however, we disagree with the
conclusion the petitioner draws from
this document. The ASMFC–AERPT
(2008, pp. 2–5) document reaffirms the
2007 12-month finding’s conclusion that
using harvest data to determine
abundance is problematic (p. 1); reports
that all States that harvest American eel
have gear or size limit restrictions in
place to regulate the harvest (pp. 4–5);
identifies high-priority research needs
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(p. 6); discusses the ASMFC Appendix
II (petitioner’s ASMFC 2008 citation,
our ASFMC 2007 reference), which
emphasizes improving upstream and
downstream passage, and the decision
to delay in implementing further gear
and size restrictions pending the
outcome of the (delayed) 2010 stock
assessment (p. 7); discusses the planned
Memorandum of Understanding
between ASMFC and the Great Lakes
Fisheries Commission to improve joint
management of the American eel (p. 7);
and reports that all States are in
compliance with implementing the
requirements of the American Eel
Fisheries Management Plan (p. 8). This
summary list illustrates that ASMFC is
working with the States to implement
conservation actions to limit eel
harvests, identify current and future
research priorities, and manage the eel
fishery by using the available
information appropriately (i.e., not
using harvest data to determine
abundance). Therefore, we find the
petitioner’s assertion to be without
merit. In addition, the Factor B section
of the 2007 12-month finding (72 FR
4967, p. 4987) concluded that
overutilization for commercial,
recreational, scientific, or educational
purposes is not a significant threat to
the American eel rangewide, and the
Factor B section of this 90-day finding
above concludes there is no substantial
information indicating this may be a
significant threat now.
Factor D of the Service’s 2007 12month finding (72 FR 4967, pp. 4990–
4991) extensively analyzed the existing
regulatory mechanisms that address fish
passage. The discussions of hydropower
turbines in Factor E of the Service’s
2007 12-month finding (72 FR 4967, p.
4991) and below in this 90-day finding
acknowledge that American eels
experience some mortality at
hydroelectric power plant turbines.
However, the 2007 12-month finding
concluded that mortality of individuals,
even thousands of individuals each
year, while unfortunate, is not at a level
that is a threat to the American eel
population rangewide. The Factor E
section of this 90-day finding below
finds that there is not substantial
information to indicate that this may be
a significant threat now. The petitioner
asserts that the Service, NMFS, and
FERC have declined to exercise their
regulatory authorities under the Federal
Power Act. The petitioner did not,
however, provide any information
under Factor D on how these agencies
have failed to exercise their regulatory
authorities. As explained further in
Factor E below, several studies have
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recommended modifications to
hydropower facilities for safer
downstream eel migration (Carr and
Whoriskey 2008, p. 399; Durif and Elie
2008, pp. 135–136), and some facilities
already implement these modifications
(Service 2007a, pp. 3–4; Eyler 2009, p.
2; Service 2009, pp 6–10; Verreault et al.
2009a, p. 21) with variable levels of
success. Factor D of the Service’s 2007
12-month finding (72 FR 4967, p. 4991)
concluded that ‘‘turbines can cause
regional impacts to abundance of
American eels within the watershed, but
there is no evidence that turbines are
affecting the species at a population
level (for full discussion of turbine
impacts see Factor E). Therefore we find
that the regulations governing fish
passage are adequate for the protection
of American eel.’’
We have no information in our files
or provided by the petitioner on any
regulatory mechanisms to address the
threat of changes in oceanic conditions
due to climate change discussed in
Factor E below. We will, however,
further investigate this in our new 12month status review.
As discussed in Factor E below, we
have no information indicating that
electro-magnetic fields, acoustic
disturbance, and the harvest of seaweed
for biofuel are significant threats to the
American eel. We will, however, further
investigate these activities and
regulatory mechanisms in our new 12month status review.
In summary, we find that the
information provided in the petition, as
well as other information in our files,
does not present substantial scientific or
commercial information indicating that
the petitioned action may be warranted
due to the inadequacy of existing
regulatory mechanisms. We will,
however, further investigate new
information regarding existing
regulatory mechanisms for the
American eel in our new 12-month
status review.
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E. Other Natural or Manmade Factors
Affecting Its Continued Existence
Information Provided in the Petition
The petitioner asserts that Atlantic
seaboard river systems are the ‘‘sole
migratory pathways for female
American eels to gain access to their
required freshwater habitat’’ (Petition, p.
35). The petitioner states both upstream
(discussed under Factor A) and
downstream river habitat used by
American eels are fully or partially
blocked by numerous hydroelectric
power dams and the impact of those
dams (i.e., turbine mortality) has a
disproportionate impact on female
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American eels and recruitment of the
species (Petition pp. 35–36, 38). The
petitioner cites the Busch et al. (1998)
paper, which states that of the 15,570
dams blocking America eel habitat in
the United States, 1,100 of these dams
are used for hydroelectric power. The
petitioner further asserts that few of
these 1,100 dams provide safe passage
for migrating female American eels,
which results in the death of virtually
all female eels attempting to migrate.
The petitioner also cites other papers
that include information about damspecific mortality rates (Petition, pp.
37–38). All of these cited papers were
published prior to, and considered in,
the Service’s 2007 12-month finding.
The petitioner also asserts that
changes in oceanic conditions resulting
from global warming (i.e., climate
change) are contributing to the
worldwide decline of eel species,
including the American eel (Petition, p.
38). The petitioner asserts that changes
in sea surface temperature (SST) and
shifts in latitudinal isotherms (a line
that connects points on a map that have
the same temperature) are impacting the
productivity of the eel’s spawning area,
changing the northern extent of the
Sargasso Sea spawning area, and
affecting the transportation and survival
rates of leptocephali (Petition, p. 38).
The petitioner, citing new research
related to the European eel, asserts that
this new information could also apply
to the American eel. For example, citing
Friedland et al.’s (2009) conclusion that
changes in SST are impacting
transportation and larval retention
(amount of time the larvae stay in the
current) of European eels, the petitioner
asserts that, given the close proximity of
the two spawning areas in the Sargasso
Sea, this change in SST could also affect
American eels (Petition, pp. 38–39).
Citing Bonhommeau et al. (2008), the
petitioner asserts that the authors linked
global warming to eel declines via
decreased productivity and recruitment.
The petitioner asserts the ‘‘worldwide
recruitment decline in freshwater
anguillid populations began almost
simultaneously in the 1980s. While
there are many factors that have
contributed to this decline, recent
analyses point to oceanic changes as
being the more likely factor driving this
trend (Bonhommeau et al. 2008,
Friedland et al. 2007’’ (Petition, p. 39).
The petitioner also asserts that although
the American eel may have been
resilient to environmental changes
throughout its evolutionary history, the
rapid changes in the ocean environment
combined with the ongoing impacts of
habitat loss, hydroelectric dams,
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60441
harvest, contaminants, and Anguillicola
crassus infection, are beyond American
eel’s adaptability (Petition, p. 39).
The petitioner also asserts unspecified
threats to the American eel from
exposure to mercury, PCBs
(polychlorinated biphenyls), and DDT
(dichlorodiphenyltrichloroethane). The
petitioner cites reports from the ASMFC
(2000) and the Vermont Fish and
Wildlife Department (2008)
documenting the presence of these
contaminants in eel samples. The
petitioner also mentions elevated levels
of mercury in streams from coal-burning
electric power generators and acid rain
causing stream acidification and fish
kills (Petition, p. 40); however, the
petitioner neither provides citations for
this information nor explains how it
demonstrates a threat to American eel.
Lastly, the petitioner asserts that
electro-magnetic fields from submarine
cables, acoustic disturbance from
offshore wind development, and biofuel
production from floating biomass
(including sargassum) harvested from
gyres in the open ocean are emerging
threats to the American eel. Although
the petitioner provided citations for the
acoustic disturbance from off-shore
wind development (Oham et al. 2007)
and biomass harvesting (Markels 2009),
the petitioner did not explain how any
of these factors poses a threat to the
American eel (Petition, p. 40).
Evaluation of Information Provided in
the Petition and Available in Service
Files
Hydropower
The petitioner discussed the results
from a selection of citations on the
effects of hydropower turbines, most of
which were assessed for, but may not
have been specifically cited in, the
Service’s 2007 12-month finding. While
some of these citations may have been
published after the 2007 12-month
finding, the data the citations examine
are either from prior to the 2007 12month finding or merely describe an
additional year of data in an ongoing
study. Therefore, we conclude that this
type of information in the petitioner’s
referenced citations offers no
significant, additional value for this 90day finding. In the Service’s 2007 12month finding, the range and rates of
impacts from various turbine types to
various sizes of eels (see synopsis of the
Electric Power Research Institute report
at 72 FR 4967, pp. 4991–4992) were
thoroughly analyzed and discussed.
Contrary to the assertions of the
petitioner that virtually all female eels
attempting to migrate are killed, the
2007 12-month finding found rates of
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mortality ranging from 25 to 50 percent
when one turbine is encountered during
outmigration, and 40 to 60 percent
when one or more turbines are
encountered (72 FR 4967, p. 4992). This
level of mortality, the 2007 12-month
finding explains, leaves escapement
values (the percent of individuals that
survive to continue outmigration) of a
minimum of 40 percent and a maximum
of 75 percent. The 2007 12-month
finding states that only 4.5 percent of
the 33,663 dams on the Atlantic coast
have hydropower, leaving significant
areas of freshwater habitat turbine-free,
and that the portion of the population
that inhabits estuarine and marine
waters is largely unaffected. The 2007
12-month finding concluded that,
although mortality from turbines is
evident and can be substantial in some
cases, there is no evidence that this
mortality is a significant threat to the
American eel at a rangewide population
level (72 FR 4967, p. 4992).
New information in the Service’s files
continues to support the escapement
figures presented in the 2007 12-month
finding. Research conducted in 2007
and 2008 on the Shenandoah River in
the mid-Atlantic region showed a 47
percent survivorship of eels that migrate
out of the Shenandoah River from above
the Shenandoah Dam. The study also
identified decreased mortality during
the seasonal shutdown of the
hydropower facility that was designed
to protect downstream migrating eels.
However, 64 percent of migrants moved
downstream outside the recommended
seasonal shutdown period, suggesting
that additional revisions to dam
operations could improve these
mitigation efforts (Welsh et al. 2009, p.
20). Ongoing research continues to
improve such mitigation efforts through
improving escapement rates. Research
also continues on the influence of
environmental variables (such as stream
flow, water temperature, and lunar
phase) on downstream migration
(Jansen et al. 2007, pp. 1442–1443;
Hammond and Welsh 2009, pp. 319–
320; Welsh et al. 2009, pp. 20–22). This
work will inform turbine operations and
the assessment of success rates of other
mitigation measures, such as controlled
spillage, diversions, and trap and
transport of silver eels downstream of
hazards such as turbines (McCarthy et
al. 2008, p. 122). While the results of
this research may further improve
downstream passage for American eels,
there is no information in our files
indicating that the level of existing
downstream passage may be a threat to
the overall population of the American
eel rangewide.
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In addition to turbine mortality,
several papers have documented
individual eels exhibiting altered search
pattern behavior when physically
encountering power plant facilities (i.e.,
bar racks, bypass structures, etc.)
(Jansen et al. 2007, pp. 1440–1442; Carr
and Whoriskey 2008, p. 397; Durif and
Elie 2008, p. 208; Eltz et al. 2008, p. 29;
Brown et al. 2009, p. 285; Calles et al.
2010, pp. 2175–2178). This search
pattern behavior has delayed (hours to
weeks) some eels’ outmigration. As
described above in the hydropower
turbine section, a significant number of
eels successfully migrate, and migration
occurs in a normal temporal sequence.
While delayed migration occurs in some
individuals, there is no information in
our files indicating that this may be a
threat to the overall population of
American eel rangewide.
Changes in Oceanic Conditions Due to
Climate Change
The Service’s 2007 12-month finding
explored the relationship between
oceanic conditions and the successful
maturation and transportation of
leptocephali within ocean currents from
the Sargasso Sea and, therefore,
recruitment of glass eels at coastal and
riverine habitats. We stated that oceanic
conditions, which are highly variable
and cyclical, likely play a significant
role in the population dynamics of the
American eel (72 FR 4967, p. 4995), but
at the time of the 2007 status review, the
relationships between specific oceanic
conditions and eel recruitment
remained almost entirely hypothetical.
We acknowledged that our information
was scant and, therefore, turned to
oceanic and eel experts to better
understand the complex relationships
between various oceanic conditions and
eel recruitment.
The types of oceanic conditions that
had the potential to affect eels in the
North Atlantic, we stated, include: ‘‘(1)
changes to sea surface temperatures
(SSTs); (2) changes to mixed layer depth
(MLD) (the depth to which mixing is
complete, relative to the layer of ocean
water beneath it); (3) deflections of the
Gulf Stream at the Charleston Bump, off
Cape Hatteras; and (4) other changes (72
FR 4967, p. 4994).’’ Changes in SSTs
include inhibition of spring mixing, and
nutrient recirculation and productivity,
which may influence leptocephali (i.e.,
larval) food abundance (72 FR 4967, pp.
4994–4995). We concluded that there
was no indication that the American eel
was suffering rangewide abundance or
distributional collapse and the species
was evolutionarily adapted to oceanic
variations (at the time, thought to be
within normal variations). Therefore,
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there was ‘‘no indication that the
American eel was at a reduced level
where this natural oceanic variation
would significantly affect the species’’
and ‘‘natural oceanic conditions were
not currently, or anticipated to be in the
future, a significant threat to the
American eel at a population level’’ (72
FR 4967, p. 4995).
Since the 2007 12-month finding, and
prior to receipt of the petition,
additional research has been conducted
on the effects of climate change on
oceanic conditions and the correlation
of those changes to European and
American eel recruitment. The impacts
of climate change may be affecting
European and American eel recruitment
in three ways: (1) Shifts in spawning
locations within the Sargasso Sea, (2)
reduced food availability for
leptocephali, and (3) shifts in where the
leptocephali enter and exit the ocean
currents to their continental habitats.
With regard to spawning locations, in
March 2007, after the publication of the
2007 12-month finding, Friedland et al.
(2007, pp. 1, 6) published correlative
data indicating that climatic changes in
the Sargasso Sea may be influencing
oceanic reproduction and larval (i.e.,
leptocephali) survival in European eels.
The authors found evidence of a
northern shift in the temperature front
that defines the northern boundary of
the European eel spawning ground
within the Sargasso Sea, which ‘‘may
affect the location of spawning areas by
silver eels and the survival of
leptocephali during the key period
when they are transported towards the
Gulf Stream.’’ Friedland et al. (2007, p.
6) stated: ‘‘Our finding provides
evidence of linkages between declines
in recruitment of the European eel and
specific environmental changes
[thermal, wind, and mixing parameters]
within the spawning and early larval
development areas of eels in the
Sargasso Sea.’’ Their analysis went on to
suggest that a number of oceanic
condition parameters have changed in
the Sargasso Sea and, because of the
proximity of spawning areas of
European and American eel, they
hypothesized that American glass eel
recruitment could also be affected
(Friedland et al. 2007, pp. 7–10).
With regard to larval food availability,
in 2008, Bonhommeau et al. (2008a,
2008b) published two papers that
causally linked fluctuations in
European, American, and Japanese glass
eel recruitment, as measured on arrival
to continental waters, to larval food
availability. Larval food availability
impacts the survival of larvae during
their ocean migration from the Sargasso
Sea to continental waters. The authors
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examined the relationships between
glass eel recruitment (measured at the
Loire River in France for European eels
and Little Egg inlet in New Jersey and
Beaufort inlet in North Carolina for
American eels) and marine primary
production (PP) (the production of
organic compounds from atmospheric or
aquatic carbon dioxide) in the Sargasso
Sea spawning areas. In this study, PP
was used as a proxy for leptocephali
food availability. Bonhommeau et al.
(2008b) found that SST influences PP
and that, specifically in the Sargasso
Sea, increasing SSTs led to a decrease
in PP (i.e., a decrease in eel food
availability). Therefore, Bonhommeau et
al. (2008b) theorized, the warmer the
Sargasso Sea, the lower the European
and American eels’ recruitment.
Bonhommeau et al. (2008b, p. 75) stated
that fluctuations in the Sargasso Sea
SSTs followed the same trends as
anomalies of temperature across the
Northern Hemisphere, which suggested
a direct link between global warming
and the increase in SST. They
concluded by suggesting that a subtle
increase in temperature may have
dramatic effects on leptocephali, given
the length of their oceanic migration.
Also with regard to larval food
availability, Miller et al. (2009, pp. 235–
238) state that although Anguillid eel
populations can likely survive wideranging changes in oceanic and
continental climates (given that Atlantic
eels (European and American eels) have
survived ice ages), the current lower
recruitment levels (which may be
explained in part by oceanic conditions)
put the European eel at risk. The
authors conclude with ‘‘If increases in
temperature reduce productivity enough
to affect the feeding success of
leptocephali, then a continued global
warming trend is an additional
concern’’ (p. 245).
With regard to shifts in leptocephali
transport by currents, recent research
results for the Japanese eel indicate that
the latitudinal (north to south) location
of spawning events can shift depending
on oceanic conditions, and
subsequently have the potential to
negatively affect coastal glass eel
recruitment (Tsukamoto 2009, p.1846).
Citing Kettle and Haines (2006) and
Friedland et al. (2007), Tsukamoto
states that the exact spawning location
of the European eel and consequently
the American eel since the two species
share the same spawning ground, also
appears to have the potential to affect
where larvae may eventually recruit as
glass eels in their respective continental
waters. In the Sargasso Sea, the
temperature front at the northern edge
of the spawning area for the American
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eel and the European eel appears to
have been moving to the north in recent
years and this may cause the silver eels
to spawn slightly farther north. Shifting
spawning grounds may affect where
leptocephali enter and subsequently
leave the ocean currents used for
dispersal and may, therefore, negatively
affect coastal recruitment of American
eels (Tsukamoto 2009, p. 1846).
The Intergovernmental Panel on
Climate Change (IPCC) 2007 synthesis
report provides an ‘‘integrated view of
climate change as the final part of the
IPCC’s Fourth Assessment Report’’
(IPCC 2007, p. 26). The synthesis report
covers several topics including the
observed changes in climate and effects
on natural and human systems, causes
(e.g., anthropogenic vs. natural) of the
observed changes, and projections of
future climate change and related
impacts under different scenarios. The
IPCC defines climate change as ‘‘a
change in the state of the climate that
can be identified (e.g., using statistical
tests) by changes in the mean and/or the
variability of its properties, and that
persists for an extended period,
typically decades or longer. It refers to
any change in climate over time,
whether due to natural variability or as
a result of human activity’’ (IPCC 2007,
p. 30).
The IPCC 2007 report unequivocally
states that there is a warming of the
climate system as evidenced by
observed increases in global average air
and ocean temperatures (p. 30), that the
increase in anthropogenic greenhouse
gas (GHG) concentrations are very likely
the cause of increased global average
temperatures since the mid-20th century
(p. 39), and that ‘‘for the next two
decades a warming of about 0.2 °C per
decade is projected for a range of SERS
[Special Report on Emission Scenarios]
emission scenarios. Even if the
concentrations of GHG and aerosols had
been kept constant at year 2000 levels,
a further warming of about 0.1 °C per
decade would be expected. Afterwards,
temperature projections increasingly
depend on specific emission scenarios’’
(p. 45). While there is uncertainty when
applying the global IPCC findings at
some regional scales, the general
conclusions stated above are fairly
robust (IPCC 2007, pp. 72–73). This
climate change information, coupled
with the suggested impacts on sea
conditions and coastal eel recruitment,
is substantial enough to find that it may
pose a significant threat to the American
eel. We will fully investigate all climate
change information, including any
regional scale data, in our 12-month
status review.
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60443
The findings stated by Bonhommeau
et al. (2008a, 2008b), Friedland et al.
(2007), Miller et al. (2009) and
Tsukamoto (2009), coupled with the
climate change projections indicating
continued, accelerated rates of humaninduced temperature increases into the
future (IPCC 2007), may change our
2007 12-month finding’s (72 FR 4967, p.
4995) conclusion. Specifically, these
findings may change our previous
conclusion that current and projected
oceanic conditions are within normal
variations to which the American eel is
evolutionarily adapted (i.e., one of the
conclusions discussed in the second
paragraph of this section ‘‘Changes in
Oceanic Conditions Due to Climate
Change’’). Therefore, we find that
information provided by the petitioner
and information in our files present
substantial information with regard to
the potential for global warming to
affect the status of the American eel in
the future.
Contaminants
We found the petitioner did not
provide any substantive new
information regarding contaminants
affecting the American eel population.
The Service’s 2007 12-month finding
discussed and analyzed the impacts of
existing contaminants, new and
emergent contaminants, other persistent
and nonpersistent contaminants,
complex mixtures of contaminants,
vitamin deficiency, and combined
threats such as disease, parasite
infection, and contaminants on the
American eel population (72 FR 4967,
pp. 4992–4994). In summary,
contaminants may impact individual or
local populations of American eel.
However, we cautioned against
extrapolating preliminary laboratory
studies to rangewide implications, given
the lack of evidence of correlations
between known contamination of
specific river systems and
corresponding localized declines (72 FR
4967, p. 4994). Dittman et al. (2009, p.
48) documented PBDE (polybrominated
diphenyl ether) contaminants in some
American eels, but the authors noted
that these contaminants were in lower
concentrations than previously
discussed PCBs and had unknown
effects. In addition, the Deepwater
Horizon (Mississippi Canyon 252) oil
well blowout and uncontrolled oil
release began 10 days prior to the
receipt of CESAR’s petition. We have no
information about the possible impacts
of the oil release on American eels at a
population level; however, we will
evaluate any new information regarding
potential impacts to the species during
our status review. In summary, while
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we did have information on
contaminants occurring in individual
eels, this is not substantive information
on the effects of contaminants on the
overall American eel population.
Although the petitioner asserted
effects to the American eel from electromagnetic fields, acoustic disturbance,
and the harvest of seaweed for biofuel,
the petitioner did not provide any data
and we have no information in our files
to support the claims. Therefore, we
find the assertions to be speculative and
not a sufficient basis to conclude that
any of these may pose a significant
threat to the American eel.
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Summary of Factor E
We find that the information provided
in the petition, as well as other new
information in our files, presents
substantial scientific or commercial
information indicating that the
petitioned action may be warranted by
a causal link between oceanic changes
(increasing sea surface temperature with
a corresponding shift in spawning
location, decrease in food availability,
or shift in leptocephali transport by
currents, tied to global warming) and
decreasing glass eel recruitment. We
will further explore any current or
future population level impacts that
may result from climate change in our
new 12-month status review. However,
we find that the information provided in
the petition, as well as baseline and
other new information in our files, does
not present substantial scientific or
commercial information indicating that
the petitioned action may be warranted
due to hydropower impacts,
contaminants, electro-magnetic fields,
acoustic disturbance, or the harvest of
seaweed for biofuel. Information in our
files and in the petition does not present
new information to change the Service’s
previous conclusion in the 2007 12month finding that hydropower and
contaminants are not significant threats
to the American eel population. We
will, however, investigate any new
information regarding Factor E threats
that arises during the course of our new
12-month status review.
Finding
On the basis of our determination
under section 4(b)(3)(A) of the Act, we
determine that the petition presents
substantial scientific or commercial
information indicating that listing the
American eel throughout its entire range
may be warranted. This finding is based
on information provided under factor E
(changes in oceanic conditions due to
climate change). We determine that the
information provided under factors A
(habitat loss, degradation or curtailment
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of habitat or range), B (overutilization
for scientific, commercial, or
educational purposes), C (disease or
predation), D (inadequacy of existing
regulatory mechanisms), and E
(hydropower turbines, contaminants,
electro-magnetic fields, acoustic
disturbance, or seaweed harvesting) is
not substantial.
Because we have found that the
petition presents substantial
information indicating that listing the
American eel may be warranted, we are
initiating a status review to determine
whether listing the American eel under
the Act is warranted.
The ‘‘substantial information’’
standard for a 90-day finding differs
from the Act’s ‘‘best scientific and
commercial data’’ standard that applies
to a status review to determine whether
a petitioned action is warranted. A 90day finding does not constitute a status
review under the Act. In a 12-month
finding, we determine whether a
petitioned action is warranted after we
have completed a thorough status
review of the species, which is
conducted following a ‘‘substantial’’ 90day finding. Because the status review
may provide additional information,
and because the Act’s standards for 90day and 12-month findings are different,
as described above, a ‘‘substantial’’ 90day finding does not mean that the
status review will result in a
‘‘warranted’’ finding.
References Cited
A complete list of references cited is
available on the Internet at https://
www.regulations.gov and upon request
from the Northeast Regional Office (see
FOR FURTHER INFORMATION CONTACT).
Author
The primary authors of this notice are
the staff members of the Northeast
Regional Office.
Authority: The authority for this action is
the Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: September 21, 2011.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011–25084 Filed 9–28–11; 8:45 am]
BILLING CODE 4310–55–P
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
RIN 0648–BB33
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; Coastal
Migratory Pelagic Resources in the
Gulf of Mexico and Atlantic Region;
Amendment 18
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of availability; request
for comments.
AGENCY:
NMFS announces that the
Gulf of Mexico (Gulf) and South
Atlantic Fishery Management Councils
(Councils) have submitted Amendment
18 to the Fishery Management Plan for
the Coastal Migratory Pelagic Resources
in the Gulf of Mexico and Atlantic
Region (FMP) for review, approval, and
implementation by NMFS. The
amendment proposes actions to remove
species from the FMP; modify the
framework procedures; establish two
migratory groups for cobia; and
establish annual catch limits (ACLs),
annual catch targets (ACTs), and
accountability measures (AMs) for king
mackerel, Spanish mackerel, and cobia.
In addition, Amendment 18 proposes to
set allocations and establish control
rules for Atlantic group cobia and revise
definitions for management thresholds
for Atlantic migratory groups.
DATES: Written comments must be
received on or before November 28,
2011.
ADDRESSES: You may submit comments
on the amendment identified by
‘‘NOAA–NMFS–2011–0223’’ by any of
the following methods:
• Electronic submissions: Submit
electronic comments via the Federal
e-Rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Susan Gerhart, Southeast
Regional Office, NMFS, 263 13th
Avenue South, St. Petersburg, FL 33701.
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
www.regulations.gov without change.
All Personal Identifying Information (for
example, name, address, etc.)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit Confidential Business
Information or otherwise sensitive or
protected information.
SUMMARY:
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[Federal Register Volume 76, Number 189 (Thursday, September 29, 2011)]
[Proposed Rules]
[Pages 60431-60444]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25084]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R5-ES-2011-0067; 92210-0-0008-B2]
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition To List the American Eel as Threatened
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of petition finding and initiation of status review.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to list the American eel (Anguilla
rostrata) as threatened under the Endangered
[[Page 60432]]
Species Act of 1973, as amended (Act). Based on our review, we find
that the petition presents substantial scientific or commercial
information indicating that listing this species may be warranted.
Therefore, with the publication of this notice, we are initiating a
review of the status of the species to determine if listing the
American eel is warranted. To ensure that this status review is
comprehensive, we are requesting scientific and commercial data and
other information regarding this species. Based on the status review,
we will issue a 12-month finding on the petition, which will address
whether the petitioned action is warranted, as provided in section
4(b)(3)(B) of the Act.
DATES: To allow us adequate time to conduct this review, we request
that we receive information on or before November 28, 2011. The
deadline for submitting an electronic comment using the Federal
eRulemaking Portal (see ADDRESSES, below) is 11:59 p.m. Eastern Time on
this date. After November 28, 2011, you must submit information
directly to the Regional Office (see FOR FURTHER INFORMATION CONTACT
below). Please note that we may not be able to address or incorporate
information that we receive after the above requested date.
ADDRESSES: You may submit information by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Enter Keyword or ID box, enter FWS-R5-ES-
2011-0067, which is the docket number for this action. Then, in the
Search panel on the left side of the screen, under the Document Type
heading, click on the Proposed Rules link to locate this document. You
may submit a comment by clicking on ``Submit a Comment''.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R5-ES-2011-0067; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all information we
receive on https://www.regulations.gov. This generally means that we
will post any personal information you provide us (see the Request for
Information section below for more details).
FOR FURTHER INFORMATION CONTACT: Martin Miller, Chief, Division of
Endangered Species, U.S. Fish and Wildlife Service, Northeast Regional
Office, 300 Westgate Center Drive, Hadley, MA 01035; by telephone at
(413-253-8615); or by facsimile (413-253-8482). If you use a
telecommunications device for the deaf (TDD), please call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Request for Information
When we make a finding that a petition presents substantial
information indicating that listing a species may be warranted, we are
required to promptly review the status of the species (status review).
For the status review to be complete and based on the best available
scientific and commercial information, we request information on the
American eel from governmental agencies, Native American Tribes, the
scientific community, industry, and any other interested parties. We
seek new information not previously available or not considered at the
time of the 2007 status review on:
(1) The species' biology, range, and population trends, including:
(a) Habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) The factors that are the basis for making a listing
determination for a species under section 4(a) of the Act (16 U.S.C.
1531 et seq.), which are:
(a) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation, specifically:
(i) Rangewide analysis of the prevalence of the parasite,
Anguillicola crassus, in American eel;
(ii) Data collection and analysis designed to differentiate between
American eel rangewide population fluctuations responding to other
natural phenomena, such as ocean conditions, and infections from
Anguillicola crassus;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued
existence.
(3) Data that supports or refutes:
(a) Panmixia (having one, well-mixed breeding population),
including evidence of genetic differentiation that results in selective
growth, sex ratios, increased vulnerability to threats, or habitat
preferences;
(b) Existence of population structure to the degree that a threat
could have differentiating effects on portions of the population and
not on the whole species;
(c) Statistically significant long-term glass eel recruitment
declines. If landings data are used, the catch per unit effort is
integrated into the results, preferably from more than one location
along the Atlantic Coast. Raw data will be accepted; however, data that
have not been analyzed will likely have limited value in our
assessment.
(4) Information on the correlation between climate change and glass
eel recruitment, such as Atlantic oceanic conditions data, analyses,
and predictions including, but not limited to:
(a) Climate change predictions over the next 25, 50, 75, and/or 100
years as they relate to ocean circulation, changes in the Sargasso sea
circulation, sea surface temperature (SST), or larvae and glass eel
food availability, either directly or indirectly through changes in SST
that affect primary productivity;
(b) Quantitative research on the food of eel larvae and the
relationship of food availability to survival of eel larvae;
(c) Further investigations into the indirect effects of a change in
SST on nutrient circulation due to enhanced stratification of the water
column and its effects on phytoplankton communities;
(d) The length of time eel larvae take to migrate to the Atlantic
coast from the Sargasso Sea;
(e) The impact of food availability along the entire migration
route on eel larvae survival;
(f) Threats to the Sargasso Sea of the magnitude that would be
predicted to affect glass eel recruitment, and information on increased
larval retention in the Sargasso Sea gyre resulting from changes in
winds due to climate change.
If, after the status review, we determine that listing the American
eel is warranted, we will propose critical habitat (see definition in
section 3(5)(A) of the Act) under section 4 of the Act, to the maximum
extent prudent and determinable at the time we propose to list the
species. Therefore, we also request data and information on:
(1) What may constitute ``physical or biological features essential
to the conservation of the species,'' within the geographical range
currently occupied by the species;
(2) Where these features are currently found;
[[Page 60433]]
(3) Whether any of these features may require special management
considerations or protection;
(4) Specific areas outside the geographical area occupied by the
species that are ``essential for the conservation of the species;'' and
(5) What, if any, critical habitat you think we should propose for
the designation if the species is proposed for listing, and why such
habitat meets the requirements of section 4 of the Act.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Submissions merely stating support for or opposition to the action
under consideration without providing supporting information, although
noted, will not be considered in making a determination. Section
4(b)(1)(A) of the Act directs that determinations as to whether any
species is an endangered or threatened species must be made ``solely on
the basis of the best scientific and commercial data available.''
You may submit your information concerning this status review by
one of the methods listed in ADDRESSES. If you submit information via
https://www.regulations.gov, your entire submission--including any
personal identifying information--will be posted on the Web site. If
your submission is made via a hard copy that includes personal
identifying information, you may request at the top of your document
that we withhold this personal identifying information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hard copy submissions on https://www.regulations.gov.
Information and supporting documentation that we received and used
in preparing this finding are available for you to review at https://www.regulations.gov, or you may make an appointment during normal
business hours at the U.S. Fish and Wildlife Service, Northeast
Regional Office (see FOR FURTHER INFORMATION CONTACT).
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 scientific or commercial information indicating that the
petitioned action may be warranted. We are to base this finding on
information provided in the petition, supporting information submitted
with the petition, and information otherwise available in our files. To
the maximum extent practicable, we are to make this finding within 90
days of our receipt of the petition and publish our notice of the
finding promptly in the Federal Register.
Our standard for substantial scientific or commercial information
within the Code of Federal Regulations (CFR) with regard to a 90-day
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)). If we find that substantial
scientific or commercial information was presented, we are required to
promptly conduct a species status review, which we subsequently
summarize in our 12-month finding.
Petition History
On April 30, 2010, we received a petition dated April 30, 2010,
from Craig Manson, Executive Director of the Council for Endangered
Species Act Reliability (CESAR or petitioner), requesting that the
American eel be listed by the Service and National Marine Fisheries
Service (NMFS) as threatened under the Act. The petition clearly
identified itself as such and included the requisite identification
information for the petitioner, as required by 50 CFR 424.14(a). In a
May 13, 2010, letter to the petitioner, we acknowledged receipt of the
petition and stated that the Service, not NMFS, had jurisdiction over
the American eel and we would be responding to the petition.
On September 7, 2010, we received a Notice of Intent to Sue (NOI)
from the petitioner for failure to respond to the petition. In a
November 23, 2010, letter to the petitioner, we stated that the
Service's appropriation in fiscal year (FY) 2010 was insufficient to
address its large backlog of listing actions, and consequently we had
not yet been able to begin work on the petition. We also stated that we
anticipated funding becoming available in FY 2011 to work on the
petition. On December 29, 2010, we received a letter dated December 23,
2010, from the petitioner requesting clarification on our November 23,
2010, letter. The petitioner asked whether we had made a ``warranted
but precluded'' determination due to funding limitations or were merely
further acknowledging their petition. In a January 10, 2011, letter to
the petitioner, we clarified that the intent of our November 23, 2010,
letter was to both acknowledge receipt of the NOI and to explain that
it was not practicable for the Service to work on the petition until we
received funding to do so. We also stated that we had, as of January
10, 2011, received funding to evaluate the petition.
In a March 9, 2011, letter to the petitioner, we requested copies
of the references that were cited as part of the petition but were not
furnished with the petition or readily available in our files. On April
1, 2011, we received a letter dated March 31, 2011, from the petitioner
stating that the requested citations were available via an internet
Google search or through the Department of the Interior library or its
interlibrary loan program. On April 4, 2011, we received a second copy
of the March 31, 2011, letter with a compact disc containing most, but
not all, of the requested references. This finding addresses the
petition.
Previous Federal Action(s)
On May 27, 2004, the Atlantic States Marine Fisheries Commission
(ASMFC), concerned about extreme declines in the Saint Lawrence River/
Lake Ontario (SLR/LO) portion of the species' range, requested that the
Service and NMFS conduct a status review of the American eel. The ASMFC
also requested an evaluation of the appropriateness of a Distinct
Population Segment (DPS) listing under the Act for the SLR/LO and Lake
Champlain/Richelieu River portion of the American eel population, as
well as an evaluation of the entire Atlantic coast American eel
population (ASMFC 2004, p. 1). The Service responded to this request on
September 24, 2004; our response stated that we had conducted a
preliminary review regarding the potential DPS as described by the
ASMFC, and determined that the American eel was not likely to meet the
discreteness element of the policy requirements due to lack of
population subdivision. Rather, the Service agreed to conduct a
rangewide status review of the American eel in coordination with NMFS
and ASMFC (Service 2004, p. 1).
On November 18, 2004, the Service and NMFS received a petition,
dated November 12, 2004, from Timothy A. Watts and Douglas H. Watts,
requesting that the Service and NMFS list the American eel as an
endangered species under the Act. The petitioners cited destruction and
modification of habitat, overutilization, inadequacy of existing
regulatory mechanisms, and other natural and manmade factors (such as
contaminants and hydroelectric turbines) as threats to the species. On
July 6, 2005, the Service issued a 90-day finding (70 FR 38849), which
found that the petition presented substantial information indicating
that listing the American eel may be warranted, and initiated a status
review.
On February 2, 2007, the Service issued a 12-month finding that
listing the American eel as threatened or
[[Page 60434]]
endangered was not warranted (72 FR 4967).
Species Information
This section is a summary of the species information presented in
the Service's 2007 12-month finding (72 FR 4967), supplemented where
noted with more recent citations; for a more complete description of
the species' biology, habitat and range, see 72 FR 4967, pp. 4968-4977.
The life history of the American eel begins in the Sargasso Sea,
located in the middle of the North Atlantic Ocean, where eggs hatch
into a larval stage known as ``leptocephali.'' These leptocephali are
transported by ocean currents from the Sargasso Sea to the Atlantic
coasts of North America and northern portions of South America.
Leptocephali migrate in the surface layer of the ocean where food
particles are most abundant. Tsukamoto et al. (2009, p. 835) found that
leptocephali appear to have a unique mechanism of buoyancy control
(chloride cells all over the body surface), that differs from other
planktonic animals. The American eel undergoes several stages of
metamorphosis, from leptocephali to juveniles arriving in coastal
waters as unpigmented ``glass eels.'' When juvenile eels arrive in
coastal waters, they can arrive in great density and with considerable
yearly variation (ICES 2001, p. 2). Glass eels metamorphose (change) to
pigmented ``elvers'' and then develop into ``yellow eels,'' occupying
marine, estuarine, and freshwater habitats. American eels begin sexual
differentiation at a length of about 20 to 25 centimeters (cm) (7.9 to
9.8 inches (in)) and, depending on eel density, become male or female
``silver eels.'' Upon nearing sexual maturity, these silver eels begin
migration toward the Sargasso Sea, completing sexual maturation en
route. Spawning occurs in the Sargasso Sea. It is hypothesized that
there is an abrupt temperature change (referred to as a temperature
front) or other as-yet-unidentified feature that serves as a cue for
migrating adults to cease their long migration and begin spawning
(Friedland 2007, p. 1). After spawning, the adults die; a species with
this life-history trait is known as a semelparous species.
In our 2007 12-month finding, we explained that the American eel is
one of 15 ancient species, evolving about 52 million years ago, of the
worldwide genus Anguilla. The American eel is a highly resilient
species with plastic life-history strategies allowing individuals to
adapt to varying conditions. For example, to successfully complete the
migration from the continent to the Sargasso Sea (outmigration), great
endurance and an extensive fat reserve are required. Larger, fatter
eels have an advantage over smaller eels in reaching the Sargasso Sea
and having sufficient energy stores to reproduce. Fecundity (a measure
of fertility) of American eels varies with body length and habitat
occupied, larger female eels occupying upstream habitat produce more
eggs than do smaller, estuarine females. Eels from northern areas,
where migration distances are great, show slower growth and greater
length, weight, and age at migration, preparing them, it has been
hypothesized, for the longer migration. American eels in United States
southern Atlantic coast waters, although smaller, develop into silver
eels about 5 years sooner than northern eels, likely as a result of
warmer, more stable water conditions. These southern eels would travel
significantly shorter distances back to the Sargasso than would
northern eels. Variation in maturation age benefits the population by
allowing different individuals of a given year class to reproduce at
different times over a period of many years, which increases the
chances that some eels will encounter environmental conditions
favorable for spawning success and offspring survival. For example,
variability in the maturation age of eels born in 2006 may result in
spawners throughout 2010 to 2030, during which time favorable
environmental conditions are likely to occur at least once.
American eels are currently thought to be one, well-mixed, single
breeding (panmictic) population (PBS&J 2008, pp. 2-9; MacGregor et al.
2008, p. 2; Fenske 2009, p. 38; Mathers and Stewart 2009, p. 359;
Tremblay 2009, p. 85; Jessup 2010, p. 339; Velez-Espino and Koops 2010,
pp. 175-181). This panmictic life-history strategy maximizes
adaptability to changing environments and is well suited to species
that have unpredictable larval dispersal to many habitats (e.g.,
marine, estuarine, and freshwater). By not exhibiting geographic or
habitat-specific adaptations, eels have the ability to rapidly colonize
new habitats and to recolonize disturbed ones over wide geographical
ranges. The consequence of panmixia to the species' ability to
withstand human-caused activities is captured in the following passage
by Aoyama (2009, p. 32): ``with a panmictic population structure,
overharvesting eels in one area likely will not affect subsequent
recruitment to that particular area because new recruits will arrive
randomly from spawners that originated from other areas.''
While one study (Cote et al. 2009, pp. 1943-1944) preliminarily
suggests that regional variations in growth may be genetically related,
and possibly call into question our understanding of panmixia in the
American eel, the authors state that the genetics have not been
rigorously tested, and the analysis may just show the start of possible
adaptive population genetic differentiation (Cote et al. 2009, pp.
1943-1944; DeLeo et al. 2009, pp. 2, 4). If we find in the future that
the Cote et al. (2009) hypothesis of a genetic basis for regional
growth variations does have merit for the American eel, that will
change our understanding that the eel is fully panmictic, and the
Service may need to reexamine the species-level effects of the various
threats discussed below. However, until such time as information
becomes available concerning geographically distributed genetic
structure for the American eel, we will continue to consider the
American eel panmictic, as that life strategy is currently supported by
the best scientific information available (PBS&J 2008, pp. 2-9;
MacGregor et al. 2008, p. 2; Fenske 2009, p. 38; Mathers and Stewart
2009, p. 359, Tremblay 2009, p. 85; Jessup 2010, p. 339; Velez-Espino
and Koops 2010, pp. 175-181).
The extensive range of the American eel includes all accessible
river systems and coastal areas having access to the western North
Atlantic Ocean and to which oceanic currents would provide transport.
As a result of oceanic currents, the majority of American eels occur
along the Atlantic seaboard of the United States and Canada. The
historical and current distribution of the American eel within its
extensive continental range is well documented along the United States
and Canadian Atlantic coast, and the SLR/LO. The distribution is less
well documented and likely rarer, again due to currents, in the Gulf of
Mexico, Mississippi watershed, and Caribbean Islands, and least
understood in Central and South America.
The American eel is said to occupy the broadest diversity of
habitats of any fish species (Helfman et al. 1987, p. 42). During their
spawning and oceanic migrations, eels occupy salt water, and in their
continental phase, use all salinity zones: fresh, brackish, and marine
(for detailed habitat use by life stage, see Cairns et al. 2005), and
some eels move between fresh and brackish water several times
throughout their life (Thibault et al. 2007, p. 1106; Jessup et al.
2008, p. 210). Barring impassable natural or humanmade barriers, eels
occupy all freshwater systems, including large rivers and their
[[Page 60435]]
tributaries, lakes, reservoirs, canals, farm ponds, and even
subterranean springs. The eel's anguillid (eel-shaped) body form allows
it to climb when at young stages and under certain conditions (e.g.,
rough surfaces), enabling it to pass up and over some barriers
encountered during upstream migrations in freshwater streams (Craig
2006, pp. 1-4). Eels are able to survive out of water for an
exceptionally long time (eels can meet virtually all their oxygen needs
through their skin), as long as they are protected from drying (for
which their ability to produce mucus is of great adaptive
significance). Eels have been seen using overland routes (while moist)
when they encounter a barrier, which explains their entrance into
landlocked waters (Tesch 2003, pp. 184-185) and their presence above
numerous dams and weirs (Service 2005b, pp. 16-18).
No rangewide estimate of abundance exists for the American eel.
Information on demographic structure is lacking and difficult to
determine because the American eel is panmictic (see above), with
individuals randomly spread over an extremely large and diverse
geographic range, and with growth rates and sex ratios determined by
the environmental conditions they encounter. Because of this unique
life history, site-specific information on eels must be evaluated in
context of its significance to the entire species. Determining status
trends is challenging because the relevant available data are limited
to a few locations that may or may not be representative of the
species' range. Little information exists about key factors such as
mortality and recruitment that could be used to develop an assessment
model. (Recruitment refers to juveniles surviving and being added to
the population.) In the American eel, recruitment is typically measured
by counting glass eels as they reach coastal waters. Furthermore, the
ability to make inferences about the species' viability based on
available trend information is hampered without an overall estimate of
eel abundance (i.e., no abundance data exist for the estuarine and
saline habitats). Despite these challenges, the Service determined in
its 2007 12-month status review (72 FR 4967) that the entire American
eel population appeared stable over the long-term.
The 2007 12-month finding concluded:
``we find that the American eel remains widely distributed over
their vast range including most of their historic freshwater
habitat, eels are not solely dependent on freshwater habitat to
complete their lifecycle utilizing marine and estuarine habitats as
well, they remain in the millions, that recruitment trends appear
variable, but stable, and that threats acting individually or in
combination do not threaten the species at a population level. On
the basis of the best available scientific and commercial
information, we conclude that the American eel is not likely to
become an endangered species within the foreseeable future
throughout all or a significant portion of its range and is not in
danger of extinction throughout all or a significant portion of its
range. Therefore, listing of the American eel as threatened or
endangered under the Act is not warranted (72 FR 4967, p. 4997).''
The Service acknowledged uncertainties while evaluating the best
available data during the status review (72 FR 4967, pp. 4977-4978) and
concluded that ``mortality during outmigration due to parasites and
contaminants, and the potential effects of contaminants on early life
stages, remain a concern,'' but, ``we have no information indicating
that these threats are currently causing or are likely to cause
population level effects to the American eel'' (72 FR 4967, p. 4996).
The Service suggested that ``future research should focus on: The
effects of contaminants on outmigration and spawning success and egg
viability; the effects during outmigration, contributors to prevalence
of, and prevention and/or treatment of, the exotic nematode,
Anguillicola crassus; and improving the success and cost of downstream
passage. In addition, future assessments and measuring the success of
conservation actions would be improved by the collection of information
useful for population dynamics and an increased understanding of how
oceanic conditions affect larval distribution and abundance'' (Bell in
litt. 2007, p. 1).
The Service's 2007 status review, documented in our 12-month
finding (72 FR 4967), is, to date, the most comprehensive analysis of
the American eel's rangewide status. The Service will use the 2007
status review as baseline information in the evaluation of the CESAR
petition as well as other information that has become available since
the 2007 12-month finding and prior to the receipt of the petition.
Evaluation of Information for This Finding
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations at 50 CFR part 424 set forth the procedures for adding a
species to, or removing a species from, the Federal Lists of Endangered
and Threatened Wildlife and Plants. 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:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
In considering what factors might constitute threats, we must look
beyond the mere exposure of the species to the factor to determine
whether the species responds to the factor in a way that causes actual
impacts to the species. If there is exposure to a factor, but no
response, or only a positive response, that factor is not a threat. If
there is exposure and the species responds negatively, the factor may
be a threat, and we then attempt to determine how significant a threat
it is. If the threat is significant, it may drive or contribute to the
risk of extinction of the species such that the species may warrant
listing as threatened or endangered as those terms are defined by the
Act. This does not necessarily require empirical proof of a threat. The
combination of exposure and some corroborating evidence of how the
species is likely impacted could suffice. The mere identification of
factors that could impact a species negatively may not be sufficient to
compel a finding that listing may be warranted. The information shall
contain evidence sufficient to suggest that these factors may be
operative threats that act on the species to the point that the species
may meet the definition of threatened or endangered under the Act.
In making this 90-day finding, we evaluated whether the information
regarding threats to the American eel found in the petition and in our
files, including our 2007 12-month finding, is substantial, thereby
indicating that the petitioned action may be warranted. Our evaluation
of this information is presented below.
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
Information Provided in the Petition
The petitioner asserts the American eel is threatened by loss of
habitat or range and reductions in habitat (ASMFC 2009, NatureServe
2004), stating ``significant anthropogenic [manmade] changes within the
range have reduced the accessible habitat by percentages perilously
close to 100 percent in some places'' (Petition, p. 17). The petitioner
asserts that ``these reductions in habitat and their causes can have a
cascading
[[Page 60436]]
adverse effect on eel populations'' (Petition, p. 17). The petitioner
also asserts that freshwater riverine systems are the most important
habitat for eels and that ``While it is possible that some eels spend
their entire life cycle in salt water, oceanic research indicates such
behavior is rare and virtually nonexistent; catch data from commercial
trawling confirms empirically that this is rare. Certainly the marine
component is small and at best an unknown and unquantified life
strategy which provides little foundation for reliance on it as a basis
for sustaining the American eel production'' (Petition, p. 17). The
petitioner also provides summary information regarding freshwater
stream habitat loss due to obstructions (i.e., dams) and some eel
abundance and density observations throughout the coastal range of the
species (Petition, pp. 19-21).
Evaluation of Information Provided in the Petition and Available in
Service Files
The petitioner restated much of the information provided in the
Service's 2007 12-month finding (72 FR 4967), along with information
from a few sources published after the 2007 12-month finding. However,
most of these ``new'' sources of information, while published after the
2007 12-month finding, summarize the same historical information
regarding habitat loss and degradation available to, and considered by,
the Service for the 2007 12-month finding (see Busch et al. 1998 cited
in ASMFC 2009, Maryland Department of Natural Resources 1999,
NatureServe 2004). The petitioner cited information from a book ``Eels
at the Edge'' (Casselman and Cairns 2009). This entire book was
unavailable to the authors of this 90-day finding to analyze since the
petitioner did not provide the requested copy and the entire book did
not become available from the Service's files until after the 90-day
finding was drafted; however, the book is actually a compilation of
papers, many of which (e.g., Weeder and Uphoff (2009) and Welsh and
Hammond (2009)) were available and analyzed by us for this 90-day
finding. The complete Casselman and Cairns (2009) book will be
evaluated during the new 12-month status review.
The Service's Factor A analysis in the 2007 12-month finding (72 FR
4967, pp. 4978-4983) reviewed spawning and ocean migration habitat;
estuarine and marine habitat; and freshwater habitat, including
lacustrine (lake) habitat, specifically Lake Ontario, and the impacts
of barriers (including dams) on distribution. The Service found in the
2007 12-month finding that spawning and ocean habitats were not
impacted by significant threats and that American eels used estuarine,
marine, and freshwater habitats, including exclusive use of marine and
estuarine habitats by some eels (72 FR 4967, p. 4983). Although
extensive loss of historical freshwater habitat has occurred due to
human-induced barriers (i.e., dams constructed for hydroelectric, water
supply, and recreational purposes), any population-level impacts have
likely already been realized and there is no indication of future
barrier construction that would further limit freshwater habitat (72 FR
4967, p. 4983). The ``American eel remains well-distributed throughout
roughly 75 percent of its historical range, mainly in the lower reaches
of the watersheds,'' and although American eel abundance has been more
affected by barriers than has distribution, ``there is no evidence that
the reduction in densities has resulted in a negative population-level
effect such as a reduction in glass eel recruitment. Analyses of local
and regional declines in abundance do not temporally correlate with the
loss of access to freshwater habitat'' (72 FR 4967, p. 4983). The 2007
12-month finding concluded that freshwater, estuarine, and marine
habitats were sufficient to sustain American eel populations, and the
present or threatened destruction, modification, or curtailment of its
habitat or range was not a threat to the American eel (72 FR 4967, pp.
4983, 4996).
In addition to the baseline information in the Service's 2007 12-
month finding, new information in the Service's files at the time of
the receipt of the petition continues to demonstrate that American eels
persist in all three habitat types, despite localized impacts. In some
instances, the new information suggests that American eels do more than
just ``persist'' in estuarine and coastal marine waters; in fact, those
habitat types may be even more important to American eels than we
previously thought (Machut et al. 2007, p. 1707; Jessup et al. 2008, p.
210; Cairns 2009, p. 74; Fenske 2009, p. 75; ICES 2009, p. 1; Jessup et
al. 2009, pp. 867-868; Jessup 2010, p. 328). Examples of localized
impacts to freshwater habitat include a paper by Machut et al. (2007,
p. 1700) that suggests urbanization in Hudson River tributaries impacts
the invertebrate communities used as food for the American eel and may
be contributing to the reported decline of American eels from certain
portions of their historic range, and a letter from the Service to the
City of Raleigh indicating impacts to the Little River in North
Carolina if projected water supply and disposal projects proceed (USFWS
in litt. 2009b). However, we have no information to suggest that these
two localized examples are indicative of rangewide impacts to
freshwater habitat.
Throughout the freshwater range of the American eel, new eel
passage projects (since 2007) have been completed or are planned. While
upstream passage facilities are not present everywhere within the
American eel's range (Minkkinen and Park 2007, p. 1) and existing
upstream passage facilities do cause some mortality, more American eels
are passed into the upper reaches of watersheds now than prior to 2007.
For example, an eel passage project was completed at the Roanoke Rapids
Dam in North Carolina (American Eel Working Group (AEWG) 2010, p. 1;
Roanoke Rapids and Gaston 2010, p. 2). Eel passage projects are in
variable stages of planning and construction in other watersheds,
including in the Potomac River watershed (Chesapeake Bay Field Office
(CBFO) 2009, p. 1); at the Stevenson Dam on the Housatonic River and
the Taftville Dam on the Shetucket River in Connecticut (Connecticut
Department of Environmental Protection (CTDEP 2009, p. 4)); at the
Millville, Warren, and Luray Dams on the Shenandoah River in West
Virginia (Eyler et al. 2008, slide 4; Welsh 2008, slide 22); in the
Piedmont region of South Carolina (Rohde et al. 2008, p. 82); in the
Santee River Basin in South Carolina (Santee River Basin Accord 2008,
pp. 6-7); and in Quebec and Ontario Provinces, Canada (Verreault et al.
2009b, p. 21). Although the success of ladder placement to minimize
entrainment (the process by which aquatic organisms, suspended in
water, are pulled through a pump or other device (Webster's On-line
Dictionary, 2011)) is specific to each dam (McGrath et al. 2009, p. 1),
American eels can show a positive, quick response to the placement of
ladders and use them to swim past/over barriers (Cairns et al. 2008, p.
2; Schmidt et al. 2009, p. 718).
Since 2007, more studies on the American eel's use of freshwater,
estuarine, and coastal marine waters have been completed. These studies
confirm that eels use all three habitat types (Dutil et al., 2009, pp.
1979, 1981; ICES 2009, p. 1) and that brackish (i.e., estuarine waters)
and salt water are important for American eel growth, in terms both of
faster growth rates and larger size of individuals, and
[[Page 60437]]
productivity (Machut et al. 2007, p. 1707; Jessup et al. 2008, p. 210;
Cairns 2009, p. 74; Fenske 2009, p. 75; ICES 2009, p. 1; Jessup et al.
2009, pp. 867-868; Jessup 2010, p. 328). For example, Jessop et al.
(2009, p. 866) found growth rates of 3.2 times greater in American eels
that had resided primarily in estuarine waters than those that had
resided only in freshwater. Lamson et al. (2009, pp. 310, 312) found
that on average, eels grew in length 2.2 times faster and gained weight
5.3 times faster in full-strength seawater than did freshwater
residents (freshwater residents took 2.4 times longer to reach the
silver eel stage). This rapid growth enhances many fitness-related
aspects of fish demographics, including quicker progression to
reproductive capability and decreased vulnerability to predators,
hastening the single reproductive opportunity of these fishes (Cairns
et al. 2009, p. 2095). The mechanism behind, and the evolutionary
advantage of, this rapid growth in saline environments (Cairns et al.
2009, p. 2095) and the latitudinal variability in length and age at
maturity of both males and females (Jessop 2010, p. 328) continues to
intrigue researchers. While there is no indication that the importance
of freshwater habitat for American eel has diminished, recent
information shows that estuarine (brackish) areas also provide valuable
American eel productivity partially due to the increased food
availability and decreased exposure to natural and anthropogenic
mortality (Lamson et al. 2009, p. 311). Some eels move between salt
water and brackish water and between brackish water and freshwater
several times within their lifetime prior to outmigration to the
Sargasso Sea spawning grounds (Jessup et al. 2008, p. 210; Thibault et
al. 2007, p. 1106).
In summary, we find that the information provided in the petition,
as well as baseline and other new information in our files, does not
present substantial scientific or commercial information indicating
that the petitioned action may be warranted due to the present or
threatened destruction, modification, or curtailment of the American
eel's habitat or range. There is no evidence that additional freshwater
habitat is being lost or modified rangewide beyond the already
documented historical loss that was previously determined not to be a
threat to the American eel. The new information indicates more
freshwater habitat is becoming available to the American eel with the
installation of upstream passage projects. In addition, information
suggests that estuarine and coastal marine habitats are readily used
by, and may be more important to, the American eel than previously
thought. In our new 12-month status review, we will, however, further
investigate any new information on habitat destruction, modification,
or curtailment of the species' habitat or range in relation to current
or projected population declines.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes.
Information Provided in the Petition
The petitioner asserts that American eels are commercially
harvested at all juvenile and adult life stages and ``it is undisputed
that overutilization of American eel is now occurring across the
species' range in the United States of America'' (Petition, p. 22). The
petitioner cites information from ASMFC (2000) and Geer (2004) that
discuss reduction in commercial landings from the historical levels of
the mid 1970s and 1950, respectively. The petitioner also cites
information from the ASMFC Addendum II (2008) report and 2007 harvest
data from State Compliance Reports (2008) that document eel fisheries
in almost all States and overall landings of eels decreasing over time.
The petitioner asserts that the ASMFC's own records show a failure to
implement protective measures for American eels, including restriction
or reduction of harvest levels, despite the ``declines in abundance''
(Petition, p. 23). The petitioner also asserts that there is a level of
recreational harvest that also contributes to the decline of American
eels (Petition, p. 23).
Evaluation of Information Provided in the Petition and Available in
Service Files
The information cited in the petition is a compilation of
historical information available to, and considered by, the Service in
our 2007 12-month finding, as well as more recent raw landing data from
years after the 2007 12-month finding. For example, the following
references available in the Service's files or provided by the
petitioner were published since 2007 but summarized historical data
sets, the results of which were already considered in the 2007 12-month
finding: Susquehanna River Anadromous Fish Restoration Cooperative
(SRAFRC) 2010, Clark 2009, DeLafontaine et al. 2009, Mathers and
Stewart 2009, Overton and Rulifson 2009, Weeder and Hammond 2009,
Weeder and Uphoff 2009, MacGregor et al. 2008, and Casselman and
Marcogliese 2007. The ASMFC 2007 (petitioner's ASMFC 2008 citation) and
ASMFC-AEPRT 2008 reports included raw landing data from 2007.
As explained in the Service's 2007 12-month finding, correlating
landings data with long-term increases or decreases in American eel
population trends is speculative at best, given the multifaceted
analysis required. This analysis has not yet been conducted (72 FR
4967, p. 4986). To determine the impacts of commercial and recreational
harvest at a population level, given the assumption that the American
eel is panmictic, the following factors must be taken into account:
``(1) The level of individuals [that] are not subjected to fishing
pressure; (2) the theory that fishing of glass eels and elvers does not
necessarily represent a substantial loss to reproductive capacity of
the species; (3) the vast areas that remain unfished; and (4) the lack
of evidence that there is a reduction in glass and elver recruitment
rangewide'' (72 FR 4967, p. 4986).
The petitioner states that the ASMFC Addendum II (petitioner's
ASMFC 2008 citation, our ASMFC 2007 reference) indicates that
recreational fishing of American eels stems from incidental bycatch by
anglers, commercial bait for sport fish such as striped bass, and some
amount of bait use by recreational fisherman (Petition p. 23). The
ASMFC (2007, pp. 6-7) report does state that the NMFS Marine
Recreational Fisheries Statistics Survey (MRFSS) for 2007 indicated
that the recreational total catch was 139,731 American eel, which
represented a large increase from the 2006 total of 85,969 American
eel. However, the report goes on to state in a footnote to the catch
data that the ``MRFSS Data for American Eel are unreliable. 2005
Proportional Standard Error (PSE) values for recreational harvest in
Rhode Island, New Jersey, Delaware, Maryland, Virginia, and South
Carolina are 98.1, 100, 96.6, 70.1, 100.5, 100, and 79.1,
respectively'' (ASMFC 2007, p. 7). This means that the American eel
recreational harvest data could be drastically under or over counted
depending upon the potential for error.
We analyzed MRFSS information, available from 1981, as part of our
2007 12-month finding. Part of the data analysis included evaluating
the reliability of the MRFSS data, especially given the margin for
error noted in the ASFMC 2007 (p. 7) report. Our 2007 12-month finding
stated that ``recreational harvest is either limited or nonexistent
[[Page 60438]]
throughout most of the range of the American eel,'' and described the
source of the recreational harvest similarly to the petitioner's
categories (72 FR 4967, p. 4986). The 2007 12-month finding went on to
describe the low levels of recreational harvest throughout the American
eel's range, the gear and catch restrictions put in place by the ASFMC
member states to prevent unregulated recreational harvest, and the
limited information about subsistence harvest and bycatch (72 FR 4967,
p. 4987). Through our analysis, we concluded in the 2007 12-month
finding that ``there are no data to suggest that subsistence harvest,
bycatch, and recreational harvest are having a significant impact on
American eel regionally or rangewide'' (72 FR 4967, p. 4987).
In addition to the ASMFC 2007 report, the outline of a Verreault et
al. (2009b) report indicates that some recreational harvest information
for American eels in Canada may be available. However, the recreational
harvest sections of the report for glass eel, yellow eel, and silver
eel all state that there are ``no data available'' (Verreault et al.
2009b, pp. 5, 11).
In summary, at the time the petition was received, we had only the
ASMFC 2007 report, which indicates that the little recreational harvest
data that are available may be unreliable, and the Verreault et al.
2009b report, which indicates that there are no recreational harvest
data available in Canada. Therefore, because there is no new
information about the potential impact of ongoing commercial harvest,
and monitoring and reporting of recreational harvest continues to be
limited or nonexistent throughout the range of the American eel, the
conclusion from the 2007 12-month finding that commercial and
recreational harvest does not impact the American eel at the panmictic
population level is reasonable. We will, however, further investigate
commercial and recreational harvest impacts to the American eel in our
new 12-month status review.
New models for estimating abundance of fish species are being
developed, but due to the global and complex life-history traits of the
American eel and the difficulties inherent in simulating those traits,
as well as the models' assumption limitations, no reliable model for
the American eel currently exists, especially one that relies on
harvest (i.e., landings) data (ASMFC-AEPRT 2008, p. 2; ASMFC-AESAS
2008a, pp. 9-11; Cairns et al. 2008, p. 3; MacGregor et al. 2008, p. 4;
ASFMS-AETC&SAS 2009c, p. 8). The ASMFC (2008c, pp. 1-2) listed the need
for a fishery-independent sampling program for yellow and silver eels
as a high priority, as this information would give a more reliable
indicator of population trends.
The petitioner's assertion that the ASMFC failed to implement
protective measures for American eels, including restriction or
reduction of harvest levels, despite the ``declines in abundance''
(Petition, p. 23), will be addressed under Factor D below.
In summary, we find that the information provided in the petition,
as well as baseline and other new information in our files, does not
present substantial scientific or commercial information indicating
that the petitioned action may be warranted due to overutilization of
the American eel for commercial, recreational, scientific, or
educational purposes. There is no evidence indicating that harvest of
American eels may be a threat at the population level. While new
population models are becoming available, the continued reliance on
landings data remains problematic in determining accurate population
trends. We will, however, further investigate new information regarding
overutilization of the American eel for commercial, recreational,
scientific or educational purposes in our new 12-month status review.
C. Disease or Predation.
Information Provided in the Petition
The petitioner asserts that the American eel is threatened by
Anguillicola crassus, a parasite infesting the eel's swim bladder (an
internal gas-filled organ that regulates a fish's buoyancy) (Petition,
pp. 23-28). The swim bladder is used by the eel for vertical migration
(defined as moving at different depths in the water column) during its
spawning migration (Petition, p. 25). This parasite spread from its
native host, Japanese eels (Anguilla japonica), to both the European
(Anguilla anguilla) and American eel through the expanding eel trade
between countries and the eel aquaculture industry (Petition, p. 23).
The parasite infects an eel's swim bladder and causes damage to the
swim bladder, potentially affecting the eel's ability to reach the
spawning ground in the Sargasso Sea (Petition, p. 25). The petitioner
cites studies by Aieta and Oliveria (2009) and Sokolowski and Dove
(2006) documenting the spread of A. crassus throughout the American
eel's range (Petition, pp. 24-25). The petitioner concludes that the
effects of A. crassus, in combination with the impacts of hydroelectric
turbine mortality, contaminant accumulation, low fat stores, and
commercial and recreational harvest, are causing fewer eels to reach
their Sargasso Sea spawning grounds (Petition, p. 26). The petitioner
also asserts that the results of experiments (Gollock et al. 2005)
conducted on European eels showing evidence of decreased survival rate
of European eels infected with A. crassus and exposed to hypoxic
(reduced oxygen) conditions (associated with warmer than normal water
temperatures) can be extrapolated to American eels (Petition, p. 26).
The petitioner also asserts that eels infected with A. crassus that do
survive the migration to the Sargasso Sea will not have the necessary
fat stores to successfully reproduce because the eels may have used too
much stored fat energy swimming with impaired swim bladders (Petition,
p. 27). The petitioner also asserts the reduction in the number of eels
reaching the spawning grounds will cause a long-term ``allee effect''
(an effect of population density on population growth, by which there
is a decrease in reproductive rate at a very low population density and
a positive relationship between population density and the reproduction
and survival of individuals (Science-Dictionary.com 2011)) because eels
will be unable to find mates (Petition, p. 28).
The petitioner did not assert that predation was a threat to the
American eel.
Evaluation of Information Provided in the Petition and Available in
Service Files
The Service's 2007 12-month finding discussed the latest laboratory
research on the negative effects Anguillicola crassus infection on
European eel swim capacity. Although A. crassus infection causes
physiological damage to the swim bladder, this damage is only a concern
for silver eels during outmigration when buoyancy and depth control are
needed for the presumed deepwater migration to the Sargasso Sea (72 FR
4967, p. 4988). The 2007 12-month finding also discussed the
implications of this reduced swim capacity to outmigration and spawning
of American eel, and concluded that there may be less of a potential
impact from A. crassus to American eel than to European eel (72 FR
4967, p. 4988). The 2007 12-month finding concluded that there was no
apparent causal link between the A. crassus parasite in individual
American eel and population-level effects, such as reduced recruitment
of glass eels. However, the Service acknowledged that, because the
effects of the parasite are difficult to study under natural
[[Page 60439]]
conditions, a level of uncertainty was inherent in our conclusion.
New information readily available to the Service since the 2007 12-
month finding and prior to receipt of the petition provides, as the 12-
month finding anticipated, evidence of a northerly extension of
Anguillicola crassus distribution through New England to eastern Canada
(Rockwell et al. 2009, p. 483). Competing hypotheses continue as to
whether colder temperatures will limit the spread of this parasite
(Aieta and Oliveira 2009, p. 234; Sjoberg et al. 2009, p. 2167) and
what effect A. crassus infection has on the fat reserves required for
successful migration (Petition, p. 26; Sjoberg et al. 2009, p. 2166).
However, although new literature has been published since the 2007 12-
month finding, some of these publications were based on research
results that were considered in the 2007 12-month finding. Other new
publications confirmed the presence of A. crassus in a previously
unexamined area of the Upper Potomac River drainage of the mid-Atlantic
(Zimmerman and Welsh 2008, p. 34). The Service anticipated the spread
of A. crassus in the 2007 12-month finding. The current and anticipated
impacts of A. crassus, thus, were previously addressed (e.g., Palstra
2007a). Therefore, the new validation of the northerly invasion is not
substantial information because the current and anticipated impacts of
the parasite on American eel were already analyzed at the species
level.
The petitioner also asserts that new research states that the eel's
vertical migrations are limited by Anguillicola crassus, and this may
affect outmigration (Sjoberg et al. 2009, p. 2166). Reports such as
Sjoberg et al. (2009) and Chow et al. (2009), while published since the
2007 finding, merely confirm information from laboratory studies
analyzed in the 12-month finding about the impacts of A. crassus on
silver eels' buoyancy and depth control during outmigration (72 FR
4967, p. 4988). Sjoberg et al. (2009, pp. 2165-2166) reports it appears
that more heavily infected European eels were relatively more
vulnerable to recapture in pound nets; therefore, it is hypothesized by
the authors that parasite-induced damage to the swim bladder inhibited
vertical migrations, and infected European eels tended to migrate in
shallower coastal waters, relatively close to the shore. Chow et al.
(2009, pp. 257-258) captured two Japanese eels at depths of greater
than 230 meters (m) (755 feet (ft)), confirming at least for Japanese
eel what has been hypothesized for all Anguillicola, that migrations
may occur at significant depths. The concern put forward by the
petitioner is that, without a functioning swim bladder, such as those
damaged by A. crassus, eels cannot make vertical migrations into or out
of such depths. Because our 2007 12-month finding discussed the
implications of A. crassus on the American eel, the new validation of
A. crassus impacts is not substantial information because the current
and anticipated impacts of the parasite on American eel were already
analyzed at the species level.
Other new information presented by the petitioner and in the
Service's files suggests that physical barriers such as dams and
natural waterfalls significantly reduce Anguillicola crassus infection
rates upstream (Machut and Limberg 2008, p. 13). In addition, recent
genetic research into the population structure of A. crassus indicates
that the parasitic infestation likely arose from long-range transfers
of infected eels during eel stocking (Wielgoss et al. 2008, p. 3491),
which raises doubts about the petitioner's assertion of A. crassus
introduction via ballast water.
The petitioner cited research by Gollock et al. (2005) asserting a
generalized decreased survival rate due to heightened mortality of
Anguillicola crassus infected eels under hypoxic conditions. However,
these findings applied to eels living in Lake Balaton where dissolved
oxygen may decrease rapidly overnight because of the cessation of
photosynthesis by phytoplankton. Given the localized nature of this
research, any extrapolation of these findings to population-level
effects on American eel is speculative at best.
The petitioner, citing a paper discussing extinction risk of the
polar bear, suggested that the infections by Anguillicola crassus,
together with other threats, may limit the probability of American eels
finding a mate in the vast Sargasso Sea and that this ``allee effect''
will edge the species closer to extinction (Petition, p. 28). The allee
effect is a concept that has been discussed in relation to the European
eel, which has experienced significant recruitment failure, but because
there is no evidence that significant recruitment failure may be
occurring with American eel, this new assertion is speculative.
Attributing effects seen in European eel to American eel (e.g., effects
to spawning from A. crassus infection) was discussed in the 2007 12-
month finding. There is no new available information either provided by
the petitioner or found in the Service's files that alters the cautions
in that finding against untempered transfer of information specific to
the European eel, to the American eel.
There was no information provided by the petitioner or new
information in our files concerning the effects of predation on the
American eel population. The 2007 12-month finding stated that
individual American eels are sometimes predated by birds of prey and
piscivorous (fish-eating) fish, but this level of predation does not
impact the species rangewide (72 FR 4967, p. 4987).
In summary, we find that the information provided in the petition,
as well as other information in our files, does not present substantial
scientific or commercial information indicating that the petitioned
action may be warranted due to disease or predation. We will, however,
further investigate new information regarding the population-level
impacts of A. crassus and predation on the American eel in our new 12-
month status review.
D. The Inadequacy of Existing Regulatory Mechanisms
Information Provided in the Petition
In general, the petitioner asserts that the Service, NMFS, Federal
Energy Regulatory Commission (FERC), U.S. Environmental Protection
Agency (EPA), ASMFC, and Canada lack adequate regulatory mechanisms
under existing authorities to protect the American eel (Petition, pp.
28-35). The petitioner cites a lack of follow-through on ASMFC's stated
need for a stock assessment, the Service's and NMFS' lack of
specificity in their FY 2007-2011 strategic plan and ``Our Living
Oceans'' documents, respectively (Petition, p. 28). The petitioner
asserts an under-reporting of the number of structures serving as
barriers to American eels and lack of ``systematic effort to alleviate
the threat of dams'' (Petition, p. 29), as well as a failure of
existing regulatory mechanisms to address the decline of American eels
(Petition, p. 32).
Specifically, the petitioner asserts there is inadequate regulation
of hydroelectric power dams via implementation of legal authorities
under the Federal Power Act on the part of the Service, NMFS, and FERC,
and via implementation of the Clean Water Act on the part of the EPA
(Petition, p. 32). The petitioner asserts these Federal agencies have
failed to provide ``safe and efficient upstream and downstream passage
for American eels at hydroelectric dams in the historic range of the
American eel in the United States.''
[[Page 60440]]
The petitioner also asserts the EPA has failed to adequately
regulate the disposition of ballast water under the Clean Water Act,
which has led to the spread of Anguillicola crassus. The petitioner
cites several information sources suggesting that the discharge of
ballast water is a likely mechanism for the spread of A. crassus
through intermediary hosts, as well as numerous other invasive species
(Petition, p. 34). The petitioner asserts that the Service did not
address ballast water disposition in the 2007 12-month finding.
The petitioner also asserts that the ASMFC has failed to limit or
prohibit the harvest of American eel on the Atlantic seaboard through
their legal authorities under the Magnuson-Stevens Fisheries
Conservation Act despite ASMFC's statement in 2004 recommending the
Service and NMFS consider protection of the American eel under the
Endangered Species Act (Petition, p. 34).
Evaluation of Information Provided in the Petition and Available in
Service Files
The petitioner states that the Service's Region 5 Fiscal Years
(FYs) 2007-2011 Strategic Plan and NMFS' Our Living Oceans documents do
little to demonstrate the agencies' ``systematic effort to alleviate
the threat of dams to eels,'' and quotes information from those two
documents as it pertains to the importance of habitat restoration.
Because strategic plans for FYs 2007 to 2011 do not exist, we assume
that the petitioner meant to cite the Northeast Region (i.e., Region 5)
Fisheries Program Strategic Plan for FYs 2004-2008 (Service 2004b) or
FYs 2009-2011 (Service 2009). That said, strategic plans are broad-
vision documents meant to provide the general framework and goals for
separate stepped-down operational plans, which have the specificity
that the petitioner notes the strategic plan lacks. For example, a
strategic plan may recommend the need for research and modeling to
determine the optimal path to achieve a specific goal. One such model
is the habitat suitability index (HSI) discussed by Kocovsky et al.
(2008), which prioritizes the temporal sequence of dam removal in the
Susquehanna River based on suitable habitat conditions for target fish
species, including the American eel. Because they do not prescribe any
specific actions, the strategic plans do not constitute regulatory
mechanisms, and are not analyzed as such. The Factor A section of the
2007 12-month finding (72 FR 4967, p. 4983) concluded the present or
threatened destruction, modification, or curtailment of the American
eels' habitat or range is not a significant threat to the American eel
rangewide and the Factor A section of this 90-day finding above
concludes there is no substantial information indicating this may be a
significant threat now.
The petitioner asserts that the EPA has failed to adequately
regulate the disposition of ballast water under the Clean Water Act,
which has lead to the spread of Anguillicola crassus. The petitioner
states, ``Numerous authors, as well as panelists in the 2004 FWS
sponsored workshop, pointed out that ballast water of ships is the most
likely mechanism for the rapid spread of the parasite from one location
to another, through the dispersal of its intermediate hosts''
(Petition, p. 34). As explained above under Factor C, recent genetic
research into the population structure of A. crassus indicates that the
parasitic infestation likely arose from long-range transfers of
infected eels during eel stocking (Wielgoss et al. 2008, p. 3491). This
genetic research was complete