Endangered and Threatened Wildlife and Plants; Threatened and Endangered Status for Distinct Population Segments of Atlantic Sturgeon in the Northeast Region, 5880-5912 [2012-1946]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 77, Number 24 (Monday, February 6, 2012)]
[Rules and Regulations]
[Pages 5880-5912]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1946]



[[Page 5879]]

Vol. 77

Monday,

No. 24

February 6, 2012

Part II





Department of Commerce





-----------------------------------------------------------------------





 National Oceanic and Atmospheric Administration





-----------------------------------------------------------------------





50 CFR Parts 223 and 224





Endangered and Threatened Wildlife and Plants; Threatened and 
Endangered Status for Distinct Population Segments of Atlantic Sturgeon 
in the Northeast Region; Final Rule

Federal Register / Vol. 77 , No. 24 / Monday, February 6, 2012 / 
Rules and Regulations

[[Page 5880]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

RIN 0648-XJ00
[Docket No. 100903414-1762-02]


Endangered and Threatened Wildlife and Plants; Threatened and 
Endangered Status for Distinct Population Segments of Atlantic Sturgeon 
in the Northeast Region

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, NMFS, are issuing a final determination to list the Gulf 
of Maine (GOM) Distinct Population Segment (DPS) of Atlantic sturgeon 
(Acipenser oxyrinchus oxyrinchus) as a threatened species under the 
Endangered Species Act (ESA), and the New York Bight (NYB) and 
Chesapeake Bay (CB) DPSs of Atlantic sturgeon as endangered species 
under the ESA. We have proposed protective regulations for the GOM DPS 
in accordance with ESA section 4(d) in a separate rulemaking published 
in the Federal Register on June 10, 2011. We are currently considering 
the available information in order to designate critical habitat. With 
this rule, we are also soliciting information that may be relevant to 
the designation of critical habitat for all three DPSs in the Northeast 
Region. Details of our analyses, their outcome, and a request for 
public comment on our proposed critical habitat designations will be 
published in subsequent Federal Register documents.

DATES: This final rule is effective on April 6, 2012.

ADDRESSES: Information concerning this final rule may be obtained by 
contacting NMFS, Protected Resources Division, 55 Great Republic Drive, 
Gloucester, MA 01930. The final rule, list of references and other 
materials relating to this determination can be found on our Web site 
at https://www.nero.noaa.gov./prot--res/atlsturgeon/.

FOR FURTHER INFORMATION CONTACT: Kimberly Damon-Randall, (978) 282-
8485; Lynn Lankshear, (978) 282-8473; or Lisa Manning, (301) 427-8466.

SUPPLEMENTARY INFORMATION:

Background

    We first identified Atlantic sturgeon as a candidate species under 
the ESA in 1991; at that time, the candidate species list served to 
notify the public that we had concerns regarding these species that may 
warrant listing in the future, and it facilitated voluntary 
conservation efforts. On June 2, 1997, the U.S. Fish and Wildlife 
Service (USFWS) and NMFS (collectively, the Services) received a 
petition from the Biodiversity Legal Foundation requesting that we list 
Atlantic sturgeon in the United States as threatened or endangered and 
designate critical habitat within a reasonable period of time following 
the listing. A notice was published in the Federal Register on October 
17, 1997, stating that the Services had determined substantial 
information existed indicating the petitioned action may be warranted 
(62 FR 54018). In 1998, after completing a comprehensive status review, 
the Services published a 12-month determination in the Federal 
Register, announcing that listing was not warranted at that time (63 FR 
50187; September 21, 1998). We retained Atlantic sturgeon on the 
candidate species list (subsequently changed to the Species of Concern 
List (69 FR 19975; April 15, 2004)). Concurrently, the Atlantic States 
Marine Fisheries Commission (ASMFC) completed Amendment 1 to the 1990 
Atlantic Sturgeon Fishery Management Plan (FMP), which imposed a 20-40 
year moratorium on all Atlantic sturgeon fisheries until the Atlantic 
Coast spawning stocks could be restored to a level where 20 subsequent 
year classes of adult females were protected (ASMFC, 1998). In 1999, 
pursuant to section 804(b) of the Atlantic Coastal Fisheries 
Cooperative Management Act (ACFCMA) (16 U.S.C. 5101 et seq.), we 
followed this action by closing the Exclusive Economic Zone (EEZ) to 
Atlantic sturgeon retention.
    In 2003, we sponsored a workshop with USFWS and the ASMFC titled 
``Status and Management of Atlantic Sturgeon,'' to discuss the status 
of Atlantic sturgeon along the Atlantic Coast and determine what 
obstacles, if any, were impeding their recovery (Kahnle et al., 2005). 
The results of the workshop indicated that some riverine populations 
seemed to be recovering while others were declining. Bycatch and 
habitat degradation were noted as possible causes for continued 
declines.
    Based on the information gathered from the 2003 workshop on 
Atlantic sturgeon, we decided that a second review of Atlantic sturgeon 
status was needed to determine if listing as endangered or threatened 
under the ESA was warranted. We therefore established an Atlantic 
sturgeon status review team (ASSRT) consisting of NMFS, USFWS, and U.S. 
Geological Survey (USGS) scientists with relevant expertise to assist 
us in assessing the viability of the species throughout all or a 
significant portion of its range. The ASSRT was asked to consider the 
best scientific and commercial information available, including the 
technical information and comments from state and regional experts. The 
draft status review report prepared by the ASSRT was peer reviewed by 
experts from academia, and their comments were incorporated. A Notice 
of Availability of this report was published in the Federal Register on 
April 3, 2007 (72 FR 15865).
    On October 6, 2009, we received a petition from the Natural 
Resources Defense Council to list Atlantic sturgeon throughout its 
range as endangered under the ESA. As an alternative, the petitioner 
requested that the species be listed as the five DPSs described in the 
2007 Atlantic sturgeon status review (ASSRT, 2007; i.e., GOM, NYB, CB, 
Carolina, and South Atlantic DPSs), with the GOM and South Atlantic 
DPSs listed as threatened, and the remaining three DPSs listed as 
endangered. The petitioner also requested that critical habitat be 
designated for Atlantic sturgeon under the ESA. We published a Notice 
of 90-Day Finding on January 6, 2010 (75 FR 838; January 6, 2010), 
stating that the petition presented substantial scientific or 
commercial information indicating that the petitioned actions may be 
warranted.
    We considered the information provided in the status review report, 
the petition, other new information available since completion of the 
status review report, and information submitted in response to the 
Federal Register announcement of the 90-day finding (75 FR 838; January 
6, 2010). Based on this information, we determined that there are five 
DPSs of Atlantic sturgeon that qualify as species under the ESA. We 
also determined that, for those DPSs that are located within the 
jurisdiction of NMFS' Northeast Region, the GOM DPS is likely to become 
endangered within the foreseeable future, and the NYB and CB DPSs are 
in danger of extinction. Therefore, on October 6, 2010, we published a 
proposed rule to list the GOM DPS of Atlantic sturgeon as threatened 
under the ESA, and the NYB and CB DPSs as endangered (75 FR 61872).
    After publication of the proposed rule, new tagging and tracking 
data as a result of on-going studies were provided to us indicating 
that Atlantic sturgeon tagged in the United States range in the marine 
environment from as far north as the St. Lawrence River, Canada (D. 
Fox, DSU, pers. comm.) to as far south as

[[Page 5881]]

Cape Canaveral, FL (T. Savoy, CTDEP, pers. comm.). The description of 
the northern and southern extent of the marine range for the GOM, NYB, 
and CB DPSs was extended to include these areas. Based on information 
provided in the proposed rule and this new information, the GOM, NYB, 
and CB DPSs are defined as follows. The GOM DPS includes all Atlantic 
sturgeons that are spawned in the watersheds from the Maine/Canadian 
border and extending southward to include all associated watersheds 
draining into the Gulf of Maine as far south as Chatham, MA. The NYB 
DPS includes all Atlantic sturgeons that are spawned in the watersheds 
that drain into coastal waters from Chatham, MA to the Delaware-
Maryland border on Fenwick Island. The CB DPS includes all Atlantic 
sturgeons that are spawned in the watersheds that drain into the 
Chesapeake Bay and into coastal waters from the Delaware-Maryland 
border on Fenwick Island to Cape Henry, VA. The marine range for the 
three DPSs is the same; all marine waters, including coastal bays and 
estuaries, from Labrador Inlet, Labrador, Canada to Cape Canaveral, FL. 
Each DPS also includes Atlantic sturgeon held in captivity (e.g., 
hatcheries, scientific institutions) that are identified as fish 
belonging to either the GOM, NYB, or CB DPS, respectively, based on 
genetic analyses, previously applied tags, previously applied marks, or 
documentation to verify that the fish originated from (was spawned in) 
a river within the range of that DPS, or is the progeny of any fish 
that originated from that DPS.

Listing Species Under the Endangered Species Act

    The ESA defines an endangered species as ``any species which is in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as one ``which is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.'' As provided in section 4(a) of the 
ESA, the statute requires us to determine whether any species is 
endangered or threatened because of any of the following five factors: 
(1) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (2) overutilization for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) the inadequacy of existing regulatory mechanisms; or (5) 
other natural or manmade factors affecting its continued existence 
(section 4(a)(1)(A)(E)).
    Recent case law (In Re Polar Bear Endangered Species Act Listing 
and Sec.  4(d) Rule Litigation, D.D.C WL 2601604 (June 30, 2011 Order); 
748 F.Supp.2d 19 (D.D.C. 2010)) regarding USFWS's listing of the polar 
bear as threatened provides a discussion of the ESA definitions of the 
terms threatened and endangered in the context of the Services' broad 
discretion and expertise to determine on a case by case basis whether a 
species is in danger of extinction. The Court found that Congress did 
not intend to make any single factor controlling when drawing the 
distinction between endangered and threatened species, nor did it seek 
to limit the applicability of the endangered category to only those 
species facing imminent extinction, and that Congress delegated 
responsibility to the Services to determine whether a species is `in 
danger of extinction' in light of the ESA section 4(a)(1) factors and 
the best available science for that species.
    To be considered for listing under the ESA, a group of organisms 
must constitute a ``species.'' A ``species'' is defined in section 3 of 
the ESA to include ``any subspecies of fish or wildlife or plants, and 
any distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature.'' On February 7, 1996, the 
Services adopted a policy to clarify our interpretation of the phrase 
``distinct population segment of any species of vertebrate fish or 
wildlife'' (61 FR 4722). The joint DPS policy identified two elements 
that must be considered when identifying a DPS: (1) The discreteness of 
the population segment in relation to the remainder of the species (or 
subspecies) to which it belongs; and (2) the significance of the 
population segment to the remainder of the species (or subspecies) to 
which it belongs. As stated in the joint DPS policy, Congress expressed 
its expectation that the Services would exercise authority with regard 
to DPSs sparingly and only when the biological evidence indicates such 
action is warranted.
    We evaluated whether Atlantic sturgeon population segments met the 
DPS Policy criteria and described the delineation of five Atlantic 
sturgeon DPSs in detail in the proposed rule. Comments regarding the 
delineation are addressed in the section below, ``Summary of Peer 
Review and Public Comments Received.''
    Section 4(b)(1)(A) of the ESA requires that listing determinations 
be based solely on the best scientific and commercial data available 
after taking into account efforts being made to protect the species. In 
judging the efficacy of protective efforts, we rely on the Service's 
joint ``Policy for Evaluation of Conservation Efforts When Making 
Listing Decisions'' (``PECE''; 68 FR 15100; March 28, 2003). The PECE 
provides direction for consideration of conservation efforts that have 
not yet been implemented, or have been implemented but not yet 
demonstrated their effectiveness.

Summary of Peer Review and Public Comments Received

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation. The OMB Bulletin, implemented under the Information 
Quality Act (Public Law 106-554), is intended to enhance the quality 
and credibility of the Federal government's scientific information, and 
applies to influential scientific information disseminated on or after 
June 16, 2005. Pursuant to our 1994 policy on peer review (59 FR 34270; 
July 1, 1994), we solicited peer review of the proposed listing 
determination from three independent sturgeon experts. One of the three 
reviewers submitted comments as part of his state agency's response to 
the proposed listing. Those comments and our responses are included in 
the response to public comments. The remaining two solicitations for 
review went unanswered. The independent expert review under the joint 
NMFS/USFWS peer review policy collectively satisfies the requirements 
of the OMB Peer Review Bulletin and the joint NMFS/USFWS peer review 
policy.
    We solicited comments on the proposed rule from all interested 
parties including the public, and other governmental agencies. Fifty-
five respondents provided comments during the 120-day comment period 
and four public hearings. We also received comments from 111 
respondents from a solicitation for information in the Notice of 90-Day 
Finding on the petition to list Atlantic sturgeon and designate 
critical habitat (75 FR 838; January 6, 2010). We have addressed all 
public comments received on the action, including comments received 
during the 120-day public comment period, comments received at the four 
public hearings, and comments and information received in response to 
the solicitation for information in the Notice of 90-Day Finding.
    Public comments supporting and opposing listing were submitted by 
interested individuals; state and Federal

[[Page 5882]]

agencies; fishing groups; environmental organizations; and industry 
groups. Some submissions provided information for our consideration, 
including additional information on Atlantic sturgeon distribution, 
information on tidal turbines in the East River, and management of 
Atlantic sturgeon in Canada. Many comments were complex and had 
multiple inferences, and thus individual statements are addressed in 
multiple comments and responses below. The comments addressed five 
general topics: (1) The 2007 Atlantic Sturgeon Status Review; (2) 
delineation of the GOM, NYB, and CB DPSs; (3) identification and 
consideration of specific threats; (4) conservation efforts for the 
GOM, NYB, and CB DPSs; and (5) additional comments.

The 2007 Atlantic Sturgeon Status Review

    Comment 1: Several commenters expressed concern over the divergence 
of the proposed listing rule from the status review team's (ASSRT, 
2007) listing classification recommendations that the CB DPS and the 
NYB DPS should be listed as threatened, and that there was not enough 
information for the GOM DPS to make a listing recommendation. 
Additionally, some commenters felt that there was insufficient 
information available to support a divergence from the 1998 negative 
listing determination for Atlantic sturgeon (63 FR 50187; September 21, 
1998), and that the eight reasons given for the negative finding are 
still applicable today. One commenter stated that the only differences 
between the 1998 determination and today are increased prevalence of 
sturgeon and decreased levels of bycatch as compared with 1989-2000 
(based on ASMFC, 2007 and Daniel, 2010).
    Response: NMFS must rely on the definition of ``endangered'' and 
``threatened'' species provided in section 3 of the ESA, the 
implementing regulations, and case law in applying the definitions to 
marine and anadromous species. Section 3 of the ESA defines an 
endangered species as one that is in danger of extinction throughout 
all or a significant portion of its range, and a threatened species as 
one that is likely to become endangered within the foreseeable future. 
Recent case law (In Re Polar Bear Endangered Species Act Listing and 
Sec.  4(d) Rule Litigation, D.D.C WL 2601604 (June 30, 2011 Order); 748 
F.Supp.2d 19 (D.D.C. 2010)) regarding USFWS's listing of the polar bear 
as threatened provides a discussion of the ESA's definitions of the 
terms threatened and endangered in the context of the Services' broad 
discretion and expertise to determine on a case by case basis whether a 
species is in danger of extinction. Upon listing the polar bear as 
threatened, USFWS's rule was challenged by a number of parties who 
claimed that the polar bear was in danger of extinction and should have 
been listed as endangered, and by others who conversely argued that the 
bear did not warrant listing even as threatened. The Court determined 
that neither the ESA nor its legislative history compels the 
interpretation of ``endangered'' as a species being in ``imminent'' 
risk of extinction, finding instead that the phrase ``in danger of 
extinction'' is ambiguous. The Court held that there is a temporal 
distinction between endangered and threatened species in terms of the 
proximity of the ``danger'' of extinction, noting that the definition 
of ``endangered species'' is phrased in the present tense, whereas a 
threatened species is ``likely to become'' so in the future. Thus, in 
the context of the ESA, the Services interpret an ``endangered 
species'' to be one that is presently at risk of extinction. A 
``threatened species,'' on the other hand, is not currently at risk of 
extinction, but is likely to become so. In other words, a key statutory 
difference between a threatened and endangered species is the timing of 
when a species may be in danger of extinction, either now (endangered) 
or in the foreseeable future (threatened). The Court concluded, 
however, that the distinction is not based ``solely and unambiguously'' 
on the imminence of the species' anticipated extinction,'' and that 
Congress delegated responsibility to the Services to determine whether 
a species is presently `in danger of extinction' in light of the five 
statutory listing factors and the best available science for that 
species. The Court ruled that although imminence of harm is clearly one 
factor that the Services weigh in their decision-making process, it is 
not necessarily a limiting factor. In many cases, the Services might 
appropriately find that the imminence of a particular threat is the 
dispositive factor that warrants listing a species as `threatened' 
rather than `endangered,' or vice versa. The Services have broad 
discretion to decide that other factors outweigh the imminence of the 
threat. In conclusion, the Court confirmed that the Services have 
flexibility to determine ``endangerment'' on a case-by-case basis. 
Congress did not intend to make any single factor controlling when 
drawing the distinction between endangered and threatened species, nor 
did it seek to limit the applicability of the endangered category to 
only those species facing imminent extinction.
    Thus, there is no per se requirement that a species be experiencing 
current or imminent significant downward trends, or that there are no 
single historical spawning riverine populations within the DPSs that 
are relatively abundant and simultaneously regularly-reproducing, in 
order to be listed as endangered. Our determination that the NYB and CB 
DPSs are endangered species and the GOM DPS is a threatened species is 
based on the exercise of our expert professional judgment on the basis 
of the best available information for each DPS, as was held appropriate 
in the polar bear listing litigation discussed above. In addition, we 
agree with the USFWS' judgment, discussed in its supplemental 
explanation filed in the polar bear litigation, that to be listed as 
endangered does not require that extinction be certain, and that it is 
possible for a species validly listed as ``endangered'' to actually 
persist indefinitely.
    We determined that the NYB and CB DPSs of Atlantic sturgeon are 
currently in danger of extinction throughout their range, and the GOM 
DPS of Atlantic sturgeon is likely to become endangered within the 
foreseeable future throughout its range, on the basis of low population 
size and the level of impacts and number of threats such as continued 
degraded water quality, habitat impacts from dredging, continued 
bycatch in state and federally-managed fisheries, and vessel strikes to 
each DPS. Historically, each of the DPSs likely supported more than 
10,000 spawning adults (Kennebec River Resource Management Plan 1993; 
Secor 2002; ASSRT, 2007). The best available data support that current 
numbers of spawning adults for each DPS are one to two orders of 
magnitude smaller than historical levels (e.g., hundreds to low 
thousands (ASSRT, 2007; Kahnle et al., 2007)). A long life-span allows 
multiple opportunities for Atlantic sturgeon to contribute to future 
generations, but it increases the timeframe over which exposure to the 
multitude of threats facing the DPSs can occur. Atlantic sturgeons also 
demonstrate clinal variation in growth associated with water 
temperature. For example, Atlantic sturgeons mature in South Carolina 
river systems at 5 to 19 years (Smith et al., 1982), in the Hudson 
River at 11 to 21 years (Young et al., 1998), and in the Saint Lawrence 
River at 22 to 34 years (Scott and Crossman, 1973). Thus, their late 
age at maturity also provides more opportunities for individual 
Atlantic sturgeon to be

[[Page 5883]]

removed from the population before reproducing.
    We have determined that for the long-term persistence of Atlantic 
sturgeon, it is important to have multiple stable riverine spawning 
populations within each DPS and suitable habitat to support the various 
life functions (spawning, feeding, growth) of Atlantic sturgeon. This 
is best supported by looking at the concept of metapopulations. 
Generally, each Atlantic sturgeon DPS should be comprised of multiple 
riverine populations, which is analogous to a metapopulation (i.e., a 
``population of populations'') (Levins, 1969). A metapopulation is a 
group of spatially separated populations of the same species which 
interact at some level. Separation into metapopulations is expected by 
sturgeon and other anadromous fishes, given their likely stepping-stone 
sequential model of recolonization of northern rivers following post-
Pleistocene deglaciation (Waldman et al. 2002).
    Metapopulation persistence depends on the balance of extinction and 
colonization in a static environment (Hanski, 1996). If habitat remains 
suitable following local extirpation, recolonization via immigrants 
into now-empty habitat may replace at least some of those losses 
(Thomas, 1994). However, if the cause of extinction is a deterministic 
population response to unsuitable conditions (e.g., lack of suitable 
spawning habitat, poor water quality, or disturbance of substrates 
through repeated dredging), the local habitat is likely to remain 
unsuitable after extinction and be unavailable for effective 
recolonization (Thomas, 1994). Therefore, recolonization is dependent 
upon both immigration from adjacent, healthy populations and habitat 
suitability. Because these DPSs are groups of populations, the 
stability, viability, and persistence of individual populations affects 
the persistence and viability of the larger DPS. The loss of any 
population within a DPS will result in: (1) A long-term gap in the 
range of the DPS that is unlikely to be recolonized, or recolonized 
only very slowly; (2) loss of reproducing individuals; (3) loss of 
genetic biodiversity; (4) potential loss of unique haplotypes; (5) 
potential loss of adaptive traits; and (6) reduction in total number.
    In the NYB DPS, there are two known spawning populations--the 
Hudson and Delaware Rivers. While the Hudson is presumably the largest 
extant reproducing Atlantic sturgeon population, the Delaware is 
presumably very small and extremely vulnerable to any sources of 
anthropogenic mortality. There are no indications of increasing 
abundance for the NYB DPS (ASSRT, 2009; 2010). There are anecdotal 
reports of increased sightings and captures of Atlantic sturgeon in the 
James River, which comprises the only known spawning river for the CB 
DPS. However, this information has not been comprehensive enough to 
develop a population estimate for the James River or to provide 
sufficient evidence to confirm increased abundance. Some of the impact 
from the threats that facilitated the decline of these two DPSs have 
been removed (e.g., directed fishing) or reduced as a result of 
improvements in water quality since passage of the Clean Water Act 
(CWA). In addition, there have been reductions in fishing effort in 
state and Federal waters, which most likely would result in a reduction 
in bycatch mortality of Atlantic sturgeon. Nevertheless, areas with 
persistent, degraded water quality, habitat impacts from dredging, 
continued bycatch in state and federally-managed fisheries, and vessel 
strikes remain significant threats to both the NYB and CB DPSs.
    Mixed stock analysis of Atlantic sturgeon collected along the U.S. 
coast indicates that Atlantic sturgeon occur most prominently in the 
vicinity of their natal river(s). This means that Atlantic sturgeon of 
the NYB and CB DPSs will occur most frequently in the coastal 
environment of the Mid-Atlantic. Bycatch mortality for Atlantic 
sturgeon is known to occur predominantly in sink gillnet gear (Stein et 
al., 2004; ASMFC, 2007), and this gear type is used in the monkfish and 
spiny dogfish fisheries that occur in the Mid-Atlantic. Based on the 
mixed stock analysis results, a significant number of bycatch 
interactions occur in the Mid Atlantic Bight region (see Figure 1), and 
over 40 percent of these interactions were with fish from the NYB DPS 
and 20 percent were with fish from the CB DPS. Given that fish from 
these two DPSs are most likely to occur in the Mid Atlantic Bight 
region (e.g., in close proximity to their rivers of origin), they are 
highly susceptible to take as bycatch in fisheries. In accordance with 
the Magnuson Stevens Fishery Conservation and Management Act (MSA), 
effort control measures were implemented to address rebuilding of 
monkfish and spiny dogfish stocks via fishery management plans 
developed in the late 1990's. Fish from the NYB and CB DPSs likely 
benefited from these effort control measures, because the amount of 
sink gillnets in Mid-Atlantic waters was reduced. However, monkfish is 
no longer overfished, and quota allocations for spiny dogfish have been 
increased. Therefore, as fish stocks are rebuilt, we anticipate that 
sink gillnet fishing effort will increase in the Mid-Atlantic. In 
addition, individual-based assignment and mixed stock analysis of 
samples collected from sturgeon captured in Canadian fisheries in the 
Bay of Fundy indicated that approximately 1-2% were from the NYB DPS, 
and perhaps 1% from the Chesapeake DPS (Wirgin et al., in draft). There 
are no current regulatory measures to address the bycatch threat to the 
NYB and CB DPSs of Atlantic sturgeon posed by U.S. Federal fisheries or 
fisheries that occur in Canadian waters.
    Studies have shown that Atlantic sturgeon can only sustain low 
levels of bycatch mortality (Boreman, 1997; ASMFC, 2007; Kahnle et al., 
2007). A recent study also indicated that the loss of only a few adult 
female Atlantic sturgeon from the Delaware River riverine population as 
a result of vessel strikes would hinder recovery of that riverine 
population (Brown and Murphy, 2010). We have concluded that the NYB and 
CB DPSs are currently at risk of extinction (i.e., are endangered) 
given the following: (1) Both the NYB and CB DPSs are at low levels of 
abundance with a limited number of spawning populations within each 
DPS; (2) both continue to be significantly affected by threats to 
habitat from continued degraded water quality and dredging in some 
areas as well as threats from bycatch and vessel strikes; (3) these 
threats are considered to be unsustainable at present and the threat 
posed by bycatch is likely to increase in magnitude in the future; and, 
(4) the lack of existing regulatory mechanisms to adequately address 
these threats.
    While there is only one known spawning population within the GOM 
DPS (i.e., the Kennebec River), there is possible spawning in the 
Penobscot River. Additionally, there are indications of increasing 
abundance of Atlantic sturgeon belonging to the GOM DPS. Atlantic 
sturgeon continue to be present in the Kennebec River; in addition, 
they are captured in directed research projects in the Penobscot River, 
and are observed in rivers where they were unknown to occur or had not 
been observed to occur for many years (e.g., the Saco River and the 
Presumpscot River). These observations suggest that abundance of the 
GOM DPS of Atlantic sturgeon is sufficient such that recolonization to 
rivers historically suitable for spawning may be occurring.
    As is the case for other DPSs, the GOM DPS was significantly 
affected by a directed fishery in the 1800's (Bigelow and Schroeder, 
1953; Kennebec River Resource Management Plan 1993).

[[Page 5884]]

Industrialization and population expansion during the same time period 
contributed to the decline in water quality and habitat availability 
(e.g., construction of dams, contamination of river systems) that 
likely impacted the GOM DPS as well. Despite these past impacts, the 
DPS has persisted and is now showing signs of potential recovery (e.g., 
increased abundance and/or expansion into its historical range). The 
level of impact from the threats which facilitated its decline have 
been removed (e.g., directed fishing) or reduced as a result of 
improvements in water quality since passage of the CWA; removal of dams 
(e.g., the Edwards Dam on the Kennebec River in 1999); reductions in 
fishing effort in state and Federal waters, which may have resulted in 
a reduction in overall bycatch mortality; and the implementation of 
strict regulations on the use of fishing gear in Maine state waters 
that incidentally catch sturgeon. Additionally, when completed, the 
Penobscot River Restoration Project will provide Atlantic sturgeon with 
access to all of historical spawning habitat in the Penobscot River.
    As indicated by the mixed stock analysis results, fish from the 
Gulf of Maine DPS are not commonly taken as bycatch in areas south of 
Chatham, MA (see Figure 1), with only 8 percent (e.g., 7 of the 84 
fish) of interactions observed in the Mid Atlantic/Carolina region 
being assigned to the GOM DPS. Tagging results also indicate that GOM 
DPS fish tend to remain within the waters of the Gulf of Maine and only 
occasionally venture to points south.
    While still present and still affecting the long term persistence 
of the fish from the GOM DPS, threats from bycatch and habitat impacts 
from areas of continued degraded water quality and dredging are not as 
significant in the Gulf of Maine as in other areas occupied by Atlantic 
sturgeon. Water quality within the Gulf of Maine has improved 
significantly over time and unlike in areas farther south, it is very 
rare to have issues with low dissolved oxygen concentrations (that 
negatively affect Atlantic sturgeon) in the Gulf of Maine. A 
significant amount of fishing in the Gulf of Maine is conducted using 
trawl gear, which is known to have a much lower mortality rate for 
Atlantic sturgeon. Given the reduced level of threat to the GOM DPS, 
the anticipated distribution of GOM DPS fish predominantly in the Gulf 
of Maine, and the positive signs regarding distribution and abundance 
within the DPS, we concluded that the GOM DPS is not currently 
endangered. Effort control measures were implemented to achieve 
rebuilding of groundfish, monkfish, and spiny dogfish and may have 
provided some indirect benefit to Atlantic sturgeon from the GOM DPS. 
However, as fish stocks are rebuilt, we anticipate that sink gillnet 
fishing effort will increase in the Gulf of Maine. In addition, 
individual-based assignment and mixed stock analysis of samples 
collected from sturgeon captured in Canadian fisheries in the Bay of 
Fundy indicated that approximately 35 percent were from the GOM DPS 
(Wirgin et al., in draft). There are no current regulatory measures to 
address the bycatch threat to GOM DPS Atlantic sturgeon posed by U.S. 
Federal fisheries or fisheries that occur in Canadian waters. As noted 
previously, studies have shown that Atlantic sturgeon can only sustain 
low levels of bycatch and other anthropogenic mortality (e.g., vessel 
strikes) (Boreman, 1997; ASMFC, 2007; Kahnle et al., 2007; Brown and 
Murphy, 2010). Therefore, despite some management efforts and 
improvements, we concluded that the GOM DPS is at risk of becoming 
endangered in the foreseeable future throughout all of its range (i.e., 
is a threatened species) based on the following: (1) The persistence of 
some degree of threat from bycatch and habitat impacts from continued 
degraded water quality and dredging in some areas; (2) the likelihood 
of increased impact from existing threats; and, (3) the lack of 
measures to address these threats.
BILLING CODE 3510-22-P

[[Page 5885]]

[GRAPHIC] [TIFF OMITTED] TR06FE12.000


Figure 1: Map of Atlantic Sturgeon, by DPS, Genetically Sampled Through
 the NEFOP
 

BILLING CODE 3510-22-C
    In response to comments about divergence from the status review's 
listing recommendations for the NYB, CB, and GOM DPSs, NMFS' Protected 
Resources Divisions have the responsibility to make listing 
recommendations to the Assistant Administrator. Status review reports 
are an important part of the information base for such recommendations, 
but NMFS must independently review the information in status review 
reports and apply the ESA's listing determination requirements in 
accordance with regulations, case law, and agency guidance. The 
Atlantic Sturgeon Status Review Report states that ``risks of 
extinction assessments are performed to help summarize the status of 
the species, and do not represent a decision by the Status Review Team 
on whether the species should be proposed for listing as endangered or 
threatened under the ESA'' (page 106; ASSRT, 2007). Subsequent to the 
status review report, we conducted a comprehensive assessment of the 
combined impact of

[[Page 5886]]

the five ESA section 4(a)(1) factors across each entire DPS in 
classifying extinction risk. We focused on evaluating whether the DPSs 
are presently in danger of extinction, or whether the danger of 
extinction is likely to develop in the future. In our proposed rules to 
list 5 DPSs of Atlantic sturgeon, we determined that each DPS was at 
greater risk of extinction than concluded in the 2007 status review 
report. In addition, because of the lapse in time between the 
development of the status review report (ASSRT, 2007) and the 
publication of the proposed listing rule (75 FR 61904, October 6, 
2010), new information on bycatch (ASMFC, 2007) and water quality 
(USEPA, 2008) became available to us, and we incorporated this 
information into our listing determinations.
    Since publication of the proposed rules, a Federal District Court 
has considered the definitions of threatened and endangered species in 
the ESA and issued an opinion regarding their interpretation, as 
discussed above (In re. Polar Bear Endangered Species Act Litigation). 
Prompted by this decision and the comments received requesting further 
explanation of the divergence of our proposed listing statuses and the 
conclusions of the ASSRT, we have reviewed our determinations and 
concluded that all of the proposed listings of specific DPS's as 
``threatened species'' or ``endangered species'', respectively, satisfy 
the requirements of the relevant ESA definitions. Thus, we have not 
changed these classifications in the final rules. We found that four 
DPSs of Atlantic sturgeon meet the definition of an endangered species 
because they are presently in danger of extinction, and thus, listing 
them as endangered is warranted. These DPSs are the NYB, CB, Carolina, 
and South Atlantic DPSs. We further determined that the GOM DPS meets 
the ESA's definition of a threatened species, because while it is not 
currently in danger of extinction, it is likely to become so in the 
foreseeable future.
    In 1998, the Services determined that an ESA listing of Atlantic 
sturgeon was not warranted (63 FR 50187; September 21, 1998). The 
Services cited eight reasons for the negative determination at that 
time: (1) Evidence that the historical range of the species has not 
been substantially reduced and that its current range is not likely to 
be significantly reduced in the foreseeable future; (2) persistence of 
at least 14 spawning populations; (3) existing prohibitions on harvest 
and possession in all 15 states comprising the species' U.S. range; (4) 
detailed evaluation of current habitat conditions and threats to 
habitat showing that conditions are adequate to sustain the species and 
are likely to remain so in the foreseeable future; (5) lack of 
substantial information indicating that overutilization for commercial, 
recreational, scientific or educational purposes is currently 
significantly affecting the species; (6) lack of information indicating 
that disease or predation are causing significant mortality; (7) 
existing regulatory mechanisms that provide adequate protection and 
further the conservation of the species; and (8) lack of information 
indicating that artificial propagation is currently posing a threat to 
the species.
    The proposed listing rule (75 FR 61872; October 6, 2010) discussed 
that bycatch, which was identified as the primary risk to the 
persistence of Atlantic sturgeon in the Northeast Region, is not 
adequately regulated and is contributing to the lack of recovery of 
Atlantic sturgeon populations. Furthermore, at the time of the 1998 
determination, the ASMFC moratorium on retention of Atlantic sturgeon 
had recently gone into effect. Because this eliminated directed fishing 
for Atlantic sturgeon, which was the primary known threat to the 
existence of the species at that time, the Services weighed this 
heavily in the decision not to list the species in 1998. NMFS followed 
this with the 1999 closure of the EEZ to fishing for Atlantic sturgeon. 
However, since implementation of the moratorium, additional bycatch 
information (Stein et al., 2004; ASMFC, 2007) became available 
indicating that Atlantic sturgeon are vulnerable to bycatch in 
commercial fisheries, and that the current rate of bycatch is 
unsustainable in the long term (ASMFC, 2007).
    Comment 2: Comments from the New Jersey Department of Environmental 
Protection, Division of Fish and Wildlife stated that in 2006, the 
Division's biologists employed an expert opinion-based technique (the 
Delphi technique) to determine the status of Atlantic sturgeon in New 
Jersey state waters (Jenkins and Bowers-Altman, 2007). Expert opinion 
and data were shared to try to reach consensus (defined as 85 percent 
or greater) on the species status of either endangered, threatened, 
special concern, stable/secure, undetermined, no opinion or not 
applicable. For this process, ``endangered'' was defined as applying to 
species whose prospects for survival within the state are in immediate 
danger due to one or several factors, such as loss or degradation of 
habitat, overexploitation, predation, competition, disease or 
environmental pollution, etc. (i.e., an endangered species likely 
requires immediate action to avoid extinction within New Jersey). A 
``threatened'' species was defined as a species that may become 
endangered if conditions surrounding it begin to or continue to 
deteriorate (i.e., a threatened species is one that is already 
vulnerable as a result of small population size, restricted range, 
narrow habitat affinities, significant population decline, etc.). 
Although consensus was not achieved for assigning Atlantic sturgeon 
species status using the Delphi technique, final votes were divided 
between endangered and threatened, with three more reviewers voting for 
the threatened status.
    Response: We appreciate the information provided. However, a 
listing of ``endangered'' or ``threatened'' under state law for a 
species within state jurisdiction does not equate to a listing of 
``endangered'' or ``threatened'' under the ESA. As described in 
response to Comment 1, above, recent case law (Ctr. for Biological 
Diversity, et al. v. Salazar, et al., No. 08-2113; State of Alaska v. 
Salazar, et al., No. 08-1352; Safari Club Int'l, et al. v. Salazar, et 
al., No. 08-1550; California Cattlemen's Ass'n, et al. v. Salazar, et 
al., No. 08-1689; Conservation Force, et al. v. Salazar, et al., No. 
09-245) supports that Congress did not intend to make any single factor 
controlling when drawing the distinction between endangered and 
threatened species, nor did it seek to limit the applicability of the 
endangered category to only those species facing imminent extinction.
    The Atlantic sturgeon status review team did use an approach 
comparable to the Delphi technique (see ASSRT, 2007, and Patrick and 
Damon-Randall, 2008 for a detailed description), and after completing 
their assessment, found that the NYB, CB, and Carolina DPSs of Atlantic 
sturgeon were at risk of becoming endangered within the foreseeable 
future (i.e., a ``threatened'' species as defined under the ESA). 
However, as described in response to Comment 1, while we considered and 
relied heavily on the biological information in the 2007 status review 
report, we independently reviewed the information in the status review 
report as well as new information on bycatch (ASMFC, 2007) and water 
quality (USEPA, 2008), and applied the ESA's listing determination 
requirements in accordance with regulations, case law and agency 
guidance. We thus concluded that the NYB and CB DPSs warranted listing 
as endangered, and the GOM DPS warranted listing as threatened.

[[Page 5887]]

    Comment 3: Numerous comments were submitted with respect to the 
lack of abundance data for Atlantic sturgeon as well as our reliance on 
the Kahnle et al. (2007) estimate for the Hudson River, which is based 
on data collected from 1985-1995 when there was still a directed 
fishery for Atlantic sturgeon in the Hudson River estuary. The 
commenters oppose listing until abundance data are available and 
encourage new or continued research to acquire this information in lieu 
of a listing determination at this time.
    Response: As was noted in the status review report (ASSRT, 2007) 
and the proposed listing rule, only two abundance estimates are 
available for Atlantic sturgeon riverine populations--one, for the 
Hudson River and one for the Altamaha River. The Hudson River riverine 
population was estimated to have 870 spawning adult Atlantic sturgeon 
per year based on data collected from 1985-1995 when a directed 
Atlantic sturgeon fishery was on-going (Kahnle et al., 2007). The 
Altamaha River riverine population was estimated to have 343 spawning 
adult Atlantic sturgeon per year based on more recent scientific 
research studies (Schueller and Peterson, 2006).
    Information was provided in the proposed rule that explained the 
caveats associated with the Kahnle et al. (2007) estimate for the 
Hudson River. Specifically, the accuracy of the estimate may be 
affected by bias in the reported harvest or estimated exploitation rate 
for that time period (Kahnle et al., 2007). Underreporting of harvest 
would have led to underestimates of stock size, while underestimates of 
exploitation rates would have resulted in overestimates of stock size 
(Kahnle et al., 2007). Therefore, the estimate may be either higher or 
lower than the actual number of spawning adults per year in the Hudson 
River during the 1985-1995 timespan. As stated in the proposed rule, we 
do not consider the Kahnle et al. (2007) estimate to be an estimate for 
the entire riverine population given that: (1) The estimate is for 
spawning adults only; (2) mature Atlantic sturgeon may not spawn every 
year (Vladykov and Greeley, 1963; Smith, 1985; Van Eenennaam et al., 
1996; Stevenson and Secor, 1999; Collins et al. 2000; Caron et al., 
2002); and, (3) it is unclear to what extent mature fish in a non-
spawning condition occur on the spawning grounds (Vladykov and Greeley, 
1963).
    Having received a petition and subsequently finding that there was 
substantial scientific and commercial information indicating that 
listing Atlantic sturgeon may be warranted (75 FR 838; January 6, 
2010), we are required to use the best scientific and commercial data 
available to determine whether Atlantic sturgeon should be listed under 
the ESA because of any of the following five factors: (1) The present 
or threatened destruction, modification, or curtailment of its habitat 
or range; (2) overutilization for commercial, recreational, scientific, 
or educational purposes; (3) disease or predation; (4) the inadequacy 
of existing regulatory mechanisms; or (5) other natural or manmade 
factors affecting its continued existence (section 4(a)(1)(A)(E)), and 
after taking into account efforts being made to protect the species. We 
are required to make a determination within 1 year of receipt of a 
petition. The best available information indicates that all riverine 
populations of Atlantic sturgeon in the Northeast Region are at reduced 
levels from those reported historically, and are being exposed to 
significant threats that are ongoing and not being adequately 
addressed.
    Under section 4(c)(2) of the ESA, we are required to evaluate the 
listing classification of a species every 5 years. New, relevant 
scientific and commercial information should be considered during the 
5-year evaluation process. Should new abundance data become available 
to indicate that the listing classification warrants changing, we would 
complete a thorough review of the best available data and proceed with 
any rulemaking as appropriate.
    Comment 4: The State of Maine, Department of Marine Resources 
cautioned that differences in catch-per-unit-effort for subadult and 
adult Atlantic sturgeon in the Kennebec River over two time periods may 
not be directly comparable since the areas sampled during the two time 
periods were not similar. The selection of the sampling location during 
the first time period likely resulted in an underestimate of catch-per-
unit-effort since fall sampling included areas where Atlantic sturgeon 
do not congregate at that time of year.
    Response: In this final rule we have revised the description of 
available abundance information for the GOM DPS to reflect the 
information submitted.
    Comment 5: One commenter felt that NMFS did not provide evidence of 
decreasing population abundance in the Chesapeake Bay DPS, and that 
abundance in other DPSs appears to be stable or increasing. We received 
several comments that the James River Atlantic sturgeon riverine 
population is increasing based on increased catches of sturgeon in the 
river by researchers and an increase in the number of Atlantic sturgeon 
unintentionally caught in commercial fishing gear. Several comments 
pointed to NMFS statements in the proposed rule and newspaper accounts 
that sturgeon are expanding in areas where they have historically never 
been.
    Response: We noted in the proposed rule that increasing numbers of 
Atlantic sturgeon are being observed in the James River (Garman and 
Balazik, unpub. data in Richardson et al., 2009). Similarly, we noted 
that Atlantic sturgeons are being observed in increasing numbers in the 
Kennebec River, Saco River, and the Merrimack River estuary. However, 
given the extensive mixing of Atlantic sturgeon from the five DPSs and 
Canada, genetic analysis is needed to identify whether and to what 
extent any reported increase in abundance within `mixing areas' is the 
result of increased abundance of the nearest spawning population or the 
result of increased abundance or movement of one or more of the other 
DPSs.
    Based on the best available information, we cannot determine 
whether the observations reflect actual increases in abundance. 
Directed sampling for Atlantic sturgeon has been limited in duration, 
intensity, and continuity. While the reports of increased sightings are 
encouraging, given the limited information, we cannot determine whether 
the increased sightings and/or captures are indicative of: (1) An 
increase in abundance of any one particular riverine population; (2) an 
increase in abundance of all Atlantic sturgeon riverine populations; or 
(3) an artifact of increased or improved sampling? Even relatively 
slight changes in sampling methodology can account for substantial 
differences in capture success of Atlantic sturgeon. For example, the 
Maine Department of Marine Resources has provided information on 
differences in sampling times and areas that likely account for 
perceived but not actual changes in abundance during two sampling time 
periods (see Comment 4).
    While it may be possible that some Atlantic sturgeon riverine 
populations are experiencing some increase in abundance, they remain at 
significantly reduced abundance levels compared to historical levels; 
and, factors such as bycatch mortality, vessel strikes, water quality 
and habitat destruction are keeping them at reduced levels despite the 
fishing moratorium and other protective efforts. Long-term, continuous, 
standardized studies of Atlantic sturgeon abundance (including genetic 
analysis to differentiate between

[[Page 5888]]

sturgeon) are needed. We are funding several studies of Atlantic 
sturgeon within the riverine range of the CB, NYB, and GOM DPS to 
better assess abundances of Atlantic sturgeon riverine populations.
    Comment 6: One commenter questioned NMFS' proposed listing of the 
NYB DPS as endangered and noted NMFS' statement from the proposed 
listing rule in regard to the Hudson River abundance estimate that 
``The current number of spawning adults may be higher given that the 
estimate is based on the time period prior to the moratorium on fishing 
for and retention of Atlantic sturgeon'' (page 61881, 75 FR 61872; 
October 6, 2010).
    Response: In the proposed rule we relied on the best available 
data, which included the existing population estimate for the Hudson of 
870 spawning adults per year (Kahnle et al., 2007). We provided context 
for this estimate and indicated that it does not represent an estimate 
of the total number of adults in the riverine population, since mature 
Atlantic sturgeon may not spawn every year (Vladykov and Greeley, 1963; 
Smith, 1985; Van Eenennaam et al., 1996; Stevenson and Secor, 1999; 
Collins et al., 2000; Caron et al., 2002), and it is unclear to what 
extent mature fish in a non-spawning condition occur on the spawning 
grounds. The accuracy of the estimate may also be affected by bias in 
the reported harvest or estimated exploitation rate for that time 
period (Kahnle et al., 2007). Underreporting of harvest would have led 
to underestimates of stock size, while underestimates of exploitation 
rates would have resulted in overestimates of stock size (Kahnle et 
al., 2007). In addition to these caveats, as the commenter indicates, 
we noted in the proposed rule that the current number of spawning 
adults may be higher given that the estimate is based on commercial 
fisheries data collected 16-26 years ago and prior to the moratorium on 
fishing for and retention of Atlantic sturgeon. This information was 
provided to further clarify why the estimate of 870 spawning adults per 
year (Kahnle et al., 2007) could not be used to generate a total 
abundance estimate for the current Hudson River riverine population of 
Atlantic sturgeon.
    The Kahnle et al. estimate does, however, provide a benchmark of 
the number of spawning adults per year for the Hudson River prior to 
the moratorium on fishing for Atlantic sturgeon. Kahnle et al. (2007) 
also showed that the level of fishing mortality from the Hudson River 
Atlantic sturgeon fishery during the period of 1985-1995 exceeded the 
estimated sustainable level of fishing mortality for the riverine 
population. Information on catch-per-unit-effort of juvenile Atlantic 
sturgeon in the Hudson River estuary from 1985-2010 suggest that 
recruitment has declined since the mid-1980's and remains depressed 
relative to catches of juvenile Atlantic sturgeon in the estuary during 
the mid-late 1980's (Sweka et al., 2007; ASMFC, 2010).
    Comment 7: Some commenters noted that while NMFS recognized that 
the abundance data cited for the Hudson River (Kahnle et al., 2007) may 
underestimate current conditions, no mention was made of an updated 
report, Kahnle et al., (in press), titled ``Status of Atlantic sturgeon 
of the Hudson River estuary'', published by the American Fisheries 
Society.
    Response: The report, ``Kahnle et al. (in press),'' was referenced 
in the Atlantic sturgeon status review report, and is the same as 
Kahnle et al. (2007) since publication of the report occurred after the 
status review report was made available. The full citation for the 
report is as follows: Kahnle, A.W., K.A Hattala, and K.A. McKown. 2007. 
Status of Atlantic sturgeon of the Hudson River estuary, New York, USA. 
American Fisheries Society Symposium 56:347-363.
    Comment 8: Some commenters recommended that Atlantic sturgeon be 
listed only in areas where they are rare, and that the listing not 
apply to areas where many sturgeons are known to be found.
    Response: To be considered for listing under the ESA, a group of 
organisms must constitute a ``species.'' A ``species'' is defined in 
section 3 of the ESA to include ``any subspecies of fish or wildlife or 
plants, and any distinct population segment of any species of 
vertebrate fish or wildlife which interbreeds when mature.'' Given the 
ESA's definition of ``species'', if Atlantic sturgeons are found to 
comprise multiple DPSs, it is possible to list some but not all DPSs if 
such a listing is warranted. Such was the case for green sturgeon on 
the U.S. West Coast where the southern DPS of green sturgeon is listed 
as threatened, and the northern DPS of green sturgeon is not listed 
under the ESA (71 FR 17757, April 7, 2006). Once listed, the species 
retains that listing status wherever it is found, and all persons 
within U.S. jurisdiction must comply with the protective regulations of 
the ESA for that listed species. Based on our review of the best 
available data, we determined that all U.S. DPSs of Atlantic sturgeon 
warrant listing under the ESA.
    Comment 9: A commenter stated that the lack of recent abundance 
estimates does not allow NMFS to evaluate the efficacy of the coastwide 
moratorium and expressed concern that NMFS has not allowed enough time 
to pass, nor collected enough data since 1998 to adequately conclude 
whether the moratorium alone has served to prevent the species from 
further decline.
    Response: We would like to have had recent and complete abundance 
information for each DPS prior to making a final determination. 
However, we must comply with the statutory and regulatory requirements 
that we make a finding within a specified timeframe and use the best 
scientific and commercial data currently available in making this 
finding.
    The objective of the coastwide moratorium is to restore Atlantic 
sturgeon abundance to a level at which each riverine population 
contains 20 consecutive year classes of females. The exact time that 
this will take is unknown but is expected to range from 20-40 years 
given Atlantic sturgeon's generation time. At a workshop in 2003, 
``Status and Management of Atlantic Sturgeon'', Atlantic sturgeon 
experts met to discuss the status of the species and identify any 
threats that might be impeding recovery. Because participants of the 
workshop were concerned that some populations were continuing to 
decline, a status review was initiated. As described in the status 
review report (ASSRT, 2007) the abundance of Atlantic sturgeon spawning 
populations is far below historical levels, some spawning populations 
have likely been extirpated (i.e., no longer exist), and most DPSs have 
only one or two spawning populations. There are threats to each DPS 
that are not being adequately addressed, and at least some could have a 
greater effect on Atlantic sturgeon in the foreseeable future (e.g., 
changes in fishing practices resulting in higher Atlantic sturgeon 
bycatch, changes to major ports resulting in more and/or larger ships 
where vessel strikes are known to occur). Based on the review of the 
information, the status review team concluded that at least three 
Atlantic sturgeon DPSs warranted listing under the ESA. As described in 
the proposed rule, additional information on threats was received after 
completion of the status review report. Our evaluation of this 
information indicates that the moratorium on directed fisheries has not 
and will not be sufficient to address the impacts that are preventing 
sturgeon populations from recovering (including bycatch, habitat 
degradation, and vessel strikes).

[[Page 5889]]

    In January 2010, we determined that a petition to list Atlantic 
sturgeon presented substantial information indicating that the 
requested listing actions may be warranted (75 FR 838). Once such a 
finding is made, we are required by regulation to comply with specific 
timeframes. Specifically, we were required (50 CFR 424.14(B)(3)) to 
determine within 12 months of receipt of the petition whether listing 
is warranted and publish in the Federal Register either a proposed rule 
to list or a notice that listing is not warranted. Since we determined 
that listing the five Atlantic sturgeon DPSs was warranted and 
published proposed rules to that effect (75 FR 61872 and 75 FR 61904; 
October 6, 2010), we are required to make a final determination on the 
proposed listing within 1 year of publication of the proposed rule. 
Therefore, we are required to make a final listing determination for 
the GOM, NYB, and CB DPSs no later than October 6, 2011, unless there 
is substantial disagreement among scientists knowledgeable about the 
species concerned regarding the sufficiency or accuracy of the 
available data relevant to the determination, in which case we could 
have extended the timeframe for making the final listing determination 
by up to 6 months (50 CFR 424.17(a)(1)(iv)). Information provided 
during the public comment period on the proposed rule did not indicate 
that such substantial disagreement exists. Thus, we were required to 
comply with the statutory requirement to publish a final determination 
by October 6, 2011. However, additional time was necessary given the 
complexity of ensuring consistency between the two rules that address 
listing of the five DPSs of Atlantic sturgeon.

Delineation of the GOM, NYB, and CB DPSs

    Comment 10: One commenter felt that instead of having five 
individual DPSs, we should list the whole population as one entity. The 
commenter added that it would be simpler for NMFS and the Federal 
agencies engaging in ESA section 7 consultations.
    Response: If the species were listed as one entity, the section 7 
consultation process would likely be simpler to conduct given that 
there is substantial mixing throughout the marine range of Atlantic 
sturgeon. However, we found that discrete and significant population 
segments of Atlantic sturgeon exist, as defined in Services' joint DPS 
Policy (61 FR 4722; February 7, 1996), and have decided to list the 
species as DPSs. Regardless of how the entities are listed, 
consultations under section 7 will follow the same process and will 
apply the same standards.
    For purposes of section 7, Federal agencies proposing to take an 
action will need to describe the effects of the proposed action on each 
of the Atlantic sturgeon DPSs that are likely to occur within the 
action area. We, as the consulting agency, will need to consider 
whether the proposed action is likely to jeopardize the continued 
existence of any of the Atlantic sturgeon DPSs that occur within the 
action area, provide an incidental take statement, and monitor the take 
of Atlantic sturgeon by DPS as a result of the proposed action. We 
acknowledge that this will be difficult given the complexity of 
Atlantic sturgeon life history and available information. However, 
while this issue may add complexity, at least temporarily, to 
consultations, we have determined that the identified DPSs warrant 
listing under the ESA. Furthermore, information is available to help us 
and other Federal agencies to address the section 7 requirements. Such 
information includes genetic information from a mixed stock analysis of 
Atlantic sturgeon captured in marine waters from Canada to North 
Carolina. Genetic analyses of additional Atlantic sturgeon tissue 
samples are in progress to improve our understanding of the extent of 
DPS mixing in the marine environment. The results of the additional 
analyses will be available by spring 2012.
    Comment 11: A commenter representing a group of fishermen stated 
that the data used in formulating the proposed listing of the NYB DPS 
as endangered are flawed and incomplete. Specifically, the commenter 
asserts that no mention is made of Wirgin et al., 2007, which provides 
information indicating that the genetic structure of sturgeon 
populations in the Hudson River and Delaware River are distinct. Nor 
did we note the statements made in Grunwald et al., 2008, with respect 
to statements made in Sweka et al. 2007, that there was evidence of 
increasing Atlantic sturgeon recruitment in the Hudson River since the 
fishery closure in 1996. The conclusions reached by these scientists 
support that the Hudson River riverine population and the Delaware 
River riverine population must be viewed as distinct and given separate 
risk analyses.
    Response: We disagree with the commenter. The word ``distinct'' as 
commonly used is not synonymous with the phrase ``distinct population 
segment''. A vertebrate population that is, in layman's terms, distinct 
from another is not necessarily a ``distinct population segment''. The 
DPS Policy (61 FR 4722; February 7, 1996) describes how we will 
interpret the term ``distinct population segment'' for the purposes of 
listing, delisting, and reclassifying vertebrates under the ESA. While 
genetic differences between Atlantic sturgeon originating in the 
Delaware and Hudson Rivers have been detected, and while there are 
likely differences in abundance, the Hudson and Delaware River riverine 
populations of Atlantic sturgeon meet the criteria for listing as a 
single DPS.
    As described in the proposed listing rule (75 FR 61872), genetic 
analyses for Atlantic sturgeon using mitochondrial DNA (mtDNA), which 
is maternally inherited, and nuclear DNA (nDNA), w