Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List Five Species of Sturgeon as Threatened or Endangered Under the Endangered Species Act, 51767-51771 [2012-21061]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 77, Number 166 (Monday, August 27, 2012)]
[Notices]
[Pages 51767-51771]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21061]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 120705210-2210-01]
RIN 0648-XC101


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List Five Species of Sturgeon as Threatened or Endangered Under the 
Endangered Species Act

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

ACTION: Ninety-day petition finding, request for information, and 
initiation of status review.

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SUMMARY: We, NMFS, announce a 90-day finding on a petition to list five 
species of sturgeon (Acipenser sturio, A. naccarii, A. mikadoi, A. 
sinensis, and Huso dauricus), or any distinct population segments of 
these species that the Secretary of Commerce determines may exist, as 
threatened or endangered under the Endangered Species Act (ESA). We 
find that the petition and information in our files present substantial 
scientific or commercial information indicating that these petitioned 
actions may be warranted. We will conduct a status review of these 
species to determine if the petitioned actions are warranted. To ensure 
that the status review is comprehensive, we are soliciting scientific 
and commercial information regarding these species (see below).

[[Page 51768]]


DATES: Information and comments on the subject action must be received 
by October 26, 2012.

ADDRESSES: You may submit comments, identified by the code NOAA-NMFS-
2012-0142, addressed to: Dwayne Meadows, by any of the following 
methods:
     Electronic Submissions: Submit all electronic comments via 
the Federal eRulemaking Portal https://www.regulations.gov.
     Facsimile (fax): 301-713-4060.
     Mail: NMFS, 1315 East-West Highway, Room 13632, Silver 
Spring, MD 20910.
     Hand delivery: You may hand deliver written comments to 
our office during normal business hours at the street address given 
above.
    Instructions: All comments received are a part of the public record 
and may be posted to https://www.regulations.gov without change. All 
personally identifiable information (for example, name, address, etc.) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit confidential business information or otherwise sensitive or 
protected information. We will accept anonymous comments. Attachments 
to electronic comments will be accepted in Microsoft Word, Excel, or 
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, NMFS, Office of 
Protected Resources, (301) 427-8403.

SUPPLEMENTARY INFORMATION: 

Background

    On March 12, 2012, we received a petition from the WildEarth 
Guardians and Friends of Animals to list 15 species of sturgeon 
(Acipenser naccarii--Adriatic sturgeon; A. sturio--Baltic sturgeon/
common sturgeon; A. gueldenstaedtii--Russian sturgeon; A. nudiventris--
ship sturgeon/bastard sturgeon/fringebarbel sturgeon/spiny sturgeon/
thorn sturgeon; A. persicus--Persian sturgeon; A. stellatus--stellate 
sturgeon/star sturgeon; A. baerii--Siberian sturgeon; A. dabryanus--
Yangtze sturgeon/Dabry's sturgeon/river sturgeon; A. sinensis--Chinese 
sturgeon; A. mikadoi--Sakhalin sturgeon; A. schrenckii--Amur sturgeon; 
Huso dauricus--Kaluga sturgeon; Pseudoscaphirhynchus fedtschenkoi--Syr-
darya shovelnose sturgeon/Syr darya sturgeon; P. hermanni--dwarf 
sturgeon/Little Amu-darya shovelnose/little shovelnose sturgeon/Small 
Amu-dar shovelnose sturgeon; P. kaufmanni--false shovelnose sturgeon/
Amu darya shovelnose sturgeon/Amu darya sturgeon/big Amu darya 
shovelnose/large Amu-dar shovelnose sturgeon/shovelfish) as threatened 
or endangered under the Endangered Species Act (ESA). The petition 
states that all 15 petitioned sturgeon species are affected by similar 
threats: both legal and illegal exploitation for meat and/or caviar; 
habitat loss and degradation; dams or dam construction; water 
pollution; and increased competition due to habitat loss. Copies of 
this petition are available from us (see ADDRESSES, above) or at https://www.nmfs.noaa.gov/pr/pdfs/petitions/sturgeon15_petition2012.pdf.
    We acknowledged receipt of this petition in a letter dated April 
14, 2012, and informed the petitioners that we would determine, 
pursuant to section 4 of the ESA, whether the petition presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. As a result of subsequent 
discussions between us and the U.S. Fish and Wildlife Service (FWS), we 
have determined that 10 of the 15 petitioned sturgeon species are not 
marine or anadromous and thus not within our jurisdiction; therefore, 
those 10 species are the responsibility of the FWS. Accordingly, this 
90-day finding considers whether the petitioned actions may be 
warranted for only the five marine or anadromous sturgeon species 
included in the petition: Acipenser naccarii (Adriatic sturgeon) and A. 
sturio (Atlantic sturgeon/Baltic sturgeon/common sturgeon) in the 
Western Europe region, A. sinensis (Chinese sturgeon) in the Yangtze 
River region, and A. mikadoi (Sakhalin sturgeon) and Huso dauricus 
(Kaluga sturgeon) in the Amur River Basin/Sea of Japan/Sea of Okhotsk 
region.

ESA Statutory and Regulatory Provisions and Evaluation Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531 et 
seq.), requires, to the maximum extent practicable, that within 90 days 
of receipt of a petition to list a species as threatened or endangered, 
the Secretary of Commerce make a finding on whether that petition 
presents substantial scientific or commercial information indicating 
that the petitioned action may be warranted, and to promptly publish 
such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we 
find that substantial scientific or commercial information in a 
petition indicates that the petitioned action may be warranted (a 
``positive 90-day finding''), we are required to promptly commence a 
review of the status of the species concerned, during which we will 
conduct a comprehensive review of the best available scientific and 
commercial information. In such cases, we shall conclude the review 
with a finding as to whether, in fact, the petitioned action is 
warranted within 12 months of receipt of the petition. Because the 
finding at the 12-month stage is based on a more thorough review of the 
available information, as compared to the narrow scope of review at the 
90-day stage, a ``may be warranted'' finding does not prejudge the 
outcome of the status review.
    Under the ESA, a listing determination may address a ``species,'' 
which is defined to also include subspecies and, for any vertebrate 
species, any distinct population segment (DPS) that interbreeds when 
mature (16 U.S.C. 1532(16)). A joint NOAA-FWS policy clarifies the 
agencies' interpretation of the phrase ``distinct population segment'' 
for the purposes of listing, delisting, and reclassifying a species 
under the ESA (``DPS Policy''; 61 FR 4722; February 7, 1996). A 
species, subspecies, or DPS is ``endangered'' if it is in danger of 
extinction throughout all or a significant portion of its range, and 
``threatened'' if it is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its range 
(ESA sections 3(6) and 3(20), respectively; 16 U.S.C. 1532(6) and 
(20)). Pursuant to the ESA and our implementing regulations, we 
determine whether species are threatened or endangered because of any 
one or a combination of the following five section 4(a)(1) factors: The 
present or threatened destruction, modification, or curtailment of 
habitat or range; overutilization for commercial, recreational, 
scientific, or educational purposes; disease or predation; inadequacy 
of existing regulatory mechanisms; and any other natural or manmade 
factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 
424.11(c)).
    ESA-implementing regulations issued jointly by NMFS and FWS (50 CFR 
424.14(b)) define ``substantial information'' in the context of 
reviewing a petition to list, delist, or reclassify a species as the 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted. In 
evaluating whether substantial information is contained in a petition, 
the Secretary must consider whether the petition: (1) Clearly indicates 
the administrative measure recommended and gives both the scientific 
and any common name of the species involved; (2) contains detailed 
narrative justification for the recommended measure, describing, based 
on available information, past and

[[Page 51769]]

present numbers and distribution of the species involved and any 
threats faced by the species; (3) provides information regarding the 
status of the species over all or a significant portion of its range; 
and (4) is accompanied by the appropriate supporting documentation in 
the form of bibliographic references, reprints of pertinent 
publications, copies of reports or letters from authorities, and maps 
(50 CFR 424.14(b)(2)).
    Court decisions clarify the appropriate scope and limitations of 
the Services' review of petitions at the 90-day finding stage, in 
making a determination whether a petitioned action ``may be'' 
warranted. As a general matter, these decisions hold that a petition 
need not establish a ``strong likelihood'' or a ``high probability'' 
that a species is either threatened or endangered to support a positive 
90-day finding.
    We evaluate the petitioner's request based upon the information in 
the petition including its references, as well as the information 
readily available in our files. We do not conduct additional research, 
and we do not solicit information from parties outside the agency to 
help us in evaluating the petition. We will accept the petitioner's 
sources and characterizations of the information presented, if they 
appear to be based on accepted scientific principles, unless we have 
specific information in our files that indicates the petition's 
information is incorrect, unreliable, obsolete, or otherwise irrelevant 
to the requested action. Information that is susceptible to more than 
one interpretation or that is contradicted by other available 
information will not be dismissed at the 90-day finding stage, so long 
as it is reliable and a reasonable person would conclude it supports 
the petitioner's assertions. In other words, conclusive information 
indicating the species may meet the ESA's requirements for listing is 
not required to make a positive 90-day finding. We will not conclude 
that a lack of specific information alone negates a positive 90-day 
finding, if a reasonable person would conclude that the unknown 
information itself suggests an extinction risk of concern for the 
species at issue.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition presents substantial scientific or 
commercial information indicating that the subject species may be 
either threatened or endangered, as defined by the ESA. First, we 
evaluate whether the information presented in the petition, along with 
the information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Next, we evaluate whether the information indicates that the 
species at issue faces extinction risk that is cause for concern; this 
may be indicated in information expressly discussing the species' 
status and trends, or in information describing impacts and threats to 
the species. We evaluate any information on specific demographic 
factors pertinent to evaluating extinction risk for the species at 
issue (e.g., population abundance and trends, productivity, spatial 
structure, age structure, sex ratio, diversity, current and historical 
range, habitat integrity or fragmentation), and the potential 
contribution of identified demographic risks to extinction risk for the 
species. We then evaluate the potential links between these demographic 
risks and the causative impacts and threats identified in section 
4(a)(1).
    Information presented on impacts or threats should be specific to 
the species and should reasonably suggest that one or more of these 
factors may be operative threats that act or have acted on the species 
to the point that it may warrant protection under the ESA. Broad 
statements about generalized threats to the species, or identification 
of factors that could negatively impact a species, do not constitute 
substantial information that listing may be warranted. We look for 
information indicating that not only is the particular species exposed 
to a factor, but that the species may be responding in a negative 
fashion; then we assess the potential significance of that negative 
response.
    Many petitions identify risk classifications made by other 
organizations or agencies, such as the International Union on the 
Conservation of Nature (IUCN), the American Fisheries Society, or 
NatureServe, as evidence of extinction risk for a species. Risk 
classifications by other organizations or made under other Federal or 
state statutes may be informative, but the classification alone may not 
provide the rationale for a positive 90-day finding under the ESA.
    For example, as explained by NatureServe, their assessments of a 
species' conservation status do ``not constitute a recommendation by 
NatureServe for listing under the U.S. Endangered Species Act'' because 
NatureServe assessments ``have different criteria, evidence 
requirements, purposes and taxonomic coverage than government lists of 
endangered and threatened species, and therefore these two types of 
lists should not be expected to coincide.'' (https://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a 
petition cites such classifications, we will evaluate the source 
information that the classification is based upon in light of the 
standards on extinction risk and impacts or threats discussed above.

Sturgeon Species Descriptions

    All five of the petitioned species for which we have jurisdiction 
are migratory and spawn in freshwater habitats while spending part of 
their life cycle in marine or estuarine waters (i.e., they are 
anadromous). They are benthic oriented feeders, eating mostly 
invertebrates and small fishes. All five of the species are protected 
under the Convention on International Trade in Endangered Species of 
Wild Fauna and Flora (CITES). Acipenser sturio has been protected under 
CITES Appendix I since 1983, and the other four species were protected 
under Appendix II of CITES in 1998. The IUCN Red list lists all five 
species as critically endangered from their most recent analysis in 
2010.

A. sturio and A. naccarii in the Western Europe Region

    Acipenser sturio is a large species that can grow to 5 m in length 
and weigh up to 400 kg. Lifespan may reach 100 years. It occurred 
historically in the North and Baltic seas, the English Channel, and 
most European coasts of the Atlantic Ocean, the Mediterranean Sea and 
the Black Sea. The species is tolerant of a wide range of salinities, 
spending most of its life in salt water (close to the coast) and 
migrating up to 1000 km to spawn in freshwaters. There is only one 
extant reproductive population that breeds in the Garonne River in 
France, where the last known natural spawning occurred in 1994. It is 
now extirpated in Belgium, Denmark, Germany, Italy, the Netherlands, 
Norway, Portugal, Spain, Tunisia and the United Kingdom. According to 
the petitioner and IUCN, its overall population is decreasing, with 
more than a 90 percent population decline in the past 75 years based 
mainly on loss of habitat, along with pollution and exploitation. No 
natural reproduction has been recorded since 1994, and the current 
wild, native population consist of about 20-750 adults.
    Acipenser naccarii is an anadromous species that spawns in 
freshwater after an estuarine period of growth during which it remains 
near the shore (at the mouths of the rivers) at a depth of 10 to 40 m. 
It does not enter pure marine waters. Historically they were found in 
the southern part of Europe, mostly in the Adriatic Sea area. They grow 
to 150 to 200 cm in length. The IUCN analysis

[[Page 51770]]

estimates that this species has declined more than 80 percent in the 
past three generations, or 60 years, and it may be extinct in the wild. 
The only remaining spawning sites may be at the confluence of the Po 
River and its tributaries in Italy, an area of occupancy reduced to 
less than 10 km\2\. According to the IUCN, there may be fewer than 250 
wild individuals remaining.

A. sinensis in the Yangtze River Region

    Acipenser sinensis is divided into separate populations based on 
the river of occurrence: the Pearl River Chinese sturgeon and the 
Yangtze River Chinese sturgeon. This species was historically recorded 
in southwestern Korea and in western Kyushu, Japan and in the Yellow, 
Yangtze, Pear, Mingjiang, and Qingtang rivers in China, but has been 
extirpated from all of these areas except for the two rivers noted 
above. It reaches over 3 m in length and weighs up to 600 kg. According 
to the IUCN, the Pearl River Chinese sturgeon spawns in spring and the 
Yangtze River Chinese sturgeon spawns in the fall and is only present 
below the Gezhouba Dam. Adults can be found in some fishing grounds of 
the East China Sea and Yellow Sea (IUCN, 2010). The IUCN assessment 
documented an estimated 97.5 percent decline in the spawning population 
over a 37-year period. Recent surveys between 2005 and 2007 show the 
total spawning population to be 203-257 individuals (IUCN, 2010).

A. mikadoi and Huso dauricus in the Amur River Basin/Sea of Japan/Sea 
of Okhotsk Region

    Acipenser mikadoi is historically native to the northwest Pacific 
Ocean in Japan and Russia, with an uncertain presence in China, South 
Korea, and North Korea. The species had been considered conspecific 
with North American green sturgeon (A. medirostris) until chromosome 
and morphometric differences were found; we accepted the status of A. 
mikadoi as a separate valid species in our 2002 status review of green 
sturgeon. Maximum length is about 1.5 m and the species reaches 
maturity between 8 to 10 years of age. It spawns in June through July 
in the Tumnin River and in April and May in the rivers of Hokkaido, 
Japan. It is found at sea throughout the Sea of Okhotsk, in the Sea of 
Japan as far east as the eastern shore of Hokkaido, along the Asian 
coast as far south as Wonsan, North Korea, and to the Bering Strait on 
the coast of the Kamchatka Peninsula. According to the IUCN, the 
species historically ascended Russian coastal rivers (the Suchan, 
Adzemi, Koppi, Tumnin, Viakhtu, and Tym rivers) and the Ishikari and 
Teshio rivers of Japan. It also inhabited the mouths of small rivers of 
the Asian Far East and Korean Peninsula, as well as the Amur River, and 
rivers of the Sakhalin Island. Now, it spawns persistently only in the 
Tumnin River. The IUCN analysis documents that the species has been 
declining over the past century. Over the past 45 years there has been 
an estimated 80 percent decline in wild, mature individuals. Current 
population estimates range from 10-30 adults entering the Tumnin River 
for spawning annually.
    Huso dauricus is a very large species, reaching 5.6 m in length and 
1000 kg in weight. Maximum age is reported to be 80 years. This species 
historically inhabited the entire Amur River from its estuary to its 
uppermost sections and its tributaries, including the Shilka, Onon, 
Argun, Nerch, Sungari, Nonni, Ussuri, and Neijian rivers. It is a semi-
anadromous species that inhabits all types of benthic habitats in the 
large rivers and lakes of the Amur River basin. It is semi-anadromous 
because some populations do not migrate to the sea as adults. According 
to the petitioners, multiple populations have been documented. Spawning 
peaks from the end of May to July and young enter the Sea of Okhotsk 
during the summer. Generation length is 20 or more years and it has 
spawning intervals of 4 to 5 years for females and 3 to 4 years for 
males (IUCN, 2010). This species has been in sharp decline in both 
stock and recruitment since the 19th century, with the IUCN analysis 
estimating a decline of 80 percent.

Analysis of the Petition

    We have determined, based on the information provided in the 
petition and readily available in our files, that the petition presents 
substantial scientific or commercial information indicating that the 
petitioned actions may be warranted for the five species under our 
jurisdiction. The petition contains a detailed narrative justification 
for the recommended measure, species taxonomic description, geographic 
distribution, preferred habitat characteristics, population status and 
trends, threats contributing to the species' decline, and is 
accompanied by appropriate supporting documentation. We agree that each 
of the five petitioned species is a valid taxonomic species. We have no 
specific information in our files that indicates the petition's status 
information is incorrect, unreliable, or obsolete. Below is a synopsis 
of our analysis of the status information provided in the petition and 
readily available in our files for each species.

A. sturio and A. naccarii in the Western Europe Region

    The IUCN first rated A. sturio as ``critically endangered'' in 1996 
and reconfirmed that ranking in 2010 by documenting a greater than 90% 
decline in the past 75 years. The petitioners argue that A. sturio is 
highly vulnerable to exploitation because of its life history and the 
age it must reach before it can reproduce. The species is prized for 
its flesh and its caviar and was an important commercial species until 
the beginning of the 20th century. The petitioners and IUCN also argue 
that bycatch is the major current threat. The species was added to 
CITES Appendix II in 1975 and transferred to Appendix I in 1983. 
According to the petitioners, the development of river systems, 
particularly for hydroelectric dams, has also negatively impacted the 
population because adults are unable to return to their natal rivers to 
breed. It remains in just one location, where 27 spawning grounds (of 
less than 10 km\2\ total area) remain potentially accessible. The 
extraction of gravel in the Garonne River is a potential threat to the 
spawning habitat there. Dam construction, pollution and river 
regulation may have also led to loss and degradation of spawning sites. 
The petition also cites the 16th Meeting of the CITES Animals Committee 
in December 2000, quoting a press release (Cemagref, in litt., 26 
January 2000) that reported an escape of several thousand juvenile and 
several hundred gravid females of A. baerii into the Gironde River 
(Bordeaux region) during two storms. While the survival of these 
escaped fish and their effect on the wild population of A. sturio are 
not known, the introduction of new pathological germs, food 
competition, and hybridization with A. sturio needs to be considered. 
The IUCN assessment estimates the current adult population may be as 
low as 20 to 750 individuals.
    The IUCN first assessed A. naccarii as ``vulnerable'' in 1996 and 
elevated its ranking to ``critically endangered'' in 2009, reporting 
that exploitation for food, either legal or illegal, is a major threat 
to the continued survival of the species, especially exploitation of 
pre-reproductive fish. The species is fished for its meat and the roe 
is not currently consumed as caviar. Dams, particularly hydropower dams 
on the Po River, water pollution, and competition for habitat with an 
introduced catfish (Silurus glanis) also contribute to this species' 
decline. According to the IUCN, ``without continuous re-stocking the 
survival of this species is doubtful as

[[Page 51771]]

continued successful reproduction in the wild can no longer be 
confirmed''. Also, A. baerii was introduced in captive breeding 
facilities and hybridized with A. naccarii in Italy in the 1990s. 
Subsequently, A. baerii has also been found in the wild occasionally in 
Italy, with fish sporadically escaping from rearing plants or angling 
ponds, or being released when they become too large for private 
aquaria. These events may also have contributed to A. naccarii's 
decline.

 A. sinensis in the Yangtze River Region

    The IUCN first assessed A. sinensis as ``endangered'' in 1996 and 
elevated its ranking to ``critically endangered'' in 2010, owing to 
declines in the species from overharvest, habitat destruction, and 
potentially from water pollution. Construction of the Gezhouba dam in 
1981 blocked the migration routes of this species to all but one of its 
spawning grounds in the Yangtze River. The species has been extirpated 
in most of the rest of its range.

A. mikadoi and Huso dauricus in the Amur River Basin/Sea of Japan/Sea 
of Okhotsk Region

    The IUCN first assessed A. mikadoi as ``endangered'' in 1996 and 
elevated its ranking to ``critically endangered'' in 2010, owing to 
overharvest, poaching, habitat degradation and pollution. Only one 
spawning site remains.
    The IUCN first assessed H. dauricus as ``rare'' in 1986, elevated 
its ranking to ``endangered'' in 1996, and elevated it again to 
``critically endangered'' in 2010, owing to overharvest, poaching, and 
recent pollution. The species is poached for caviar roe. One study 
documented parasite effects on fecundity (CITES, 2000). According to 
the IUCN assessment, at the end of the 19th century annual commercial 
catch was 500 tonnes. The species was added to CITES Appendix II in 
1998.

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, we conclude the petition 
presents substantial scientific information indicating the petitioned 
actions of listing five species of sturgeon, or DPSs of these species, 
under our jurisdiction as threatened or endangered may be warranted. 
Therefore, in accordance with section 4(b)(3)(B) of the ESA and NMFS' 
implementing regulations (50 CFR 424.14(b)(2)), we will commence a 
review of the status of these species and make determinations within 12 
months of receiving the petition as to whether the petitioned actions 
are warranted.

Information Solicited

    To ensure that the status review is based on the best available 
scientific and commercial data, we are soliciting information on 
whether these five sturgeon species are endangered or threatened. 
Specifically, we are soliciting information in the following areas 
throughout the range of these species: (1) Historical and current 
distribution and abundance; (2) historical and current population 
trends; (3) biological information (life history, genetics, population 
connectivity, DPS structure, etc.); (4) landings and trade data; (5) 
management, regulatory, and enforcement information; (6) any current or 
planned activities that may adversely impact the species; and (7) 
ongoing or planned efforts to protect and restore the species and their 
habitats. We request that all information be accompanied by: (1) 
Supporting documentation such as maps, bibliographic references, or 
reprints of pertinent publications; and (2) the submitter's name, 
address, and any association, institution, or business that the person 
represents.

References Cited

    A complete list of references is available upon request from NMFS 
Protected Resources Headquarters Office (see ADDRESSES).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: August 21, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2012-21061 Filed 8-24-12; 8:45 am]
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