Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the American Eel as Threatened, 60431-60444 [2011-25084]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[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]


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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.

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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

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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 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

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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 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