Endangered and Threatened Species; Protective Regulations for the Gulf of Maine Distinct Population Segment of Atlantic Sturgeon, 69310-69315 [2013-27734]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 223 (Tuesday, November 19, 2013)]
[Rules and Regulations]
[Pages 69310-69315]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-27734]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

RIN 0648-AY96
[Docket No. 100813359-3908-02]


Endangered and Threatened Species; Protective Regulations for the 
Gulf of Maine Distinct Population Segment of Atlantic Sturgeon

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

ACTION: Interim final rule.

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SUMMARY: We, NMFS, are issuing an interim final regulation to conserve 
the Gulf of Maine Distinct Population Segment (DPS) of Atlantic 
sturgeon (Acipenser oxyrinchus oxyrinchus). On February 6, 2012, we 
listed the Gulf of Maine DPS of Atlantic sturgeon as threatened under 
the Endangered Species Act (ESA). When a species is listed as 
threatened under the ESA, we are required to issue protective 
regulations under section 4(d) of the ESA. Such protective regulations 
are ones deemed ``necessary and advisable for the conservation of the 
species'' and may include any act prohibited for endangered species 
under section 9(a)(1) of the ESA. This regulation extends the 
prohibitions listed in section 9 of the ESA to Gulf of Maine DPS 
Atlantic sturgeon. The prohibitions set forth in this rule are 
considered necessary and advisable for the conservation of this 
species. Given that the changes made to this rule are based on the new 
information that was not submitted as public comment on the proposed 
rule, we are publishing this rule as an interim final rule and are 
soliciting additional public comment. This document also announces the 
availability of a final Environmental Assessment that analyzes the 
environmental impacts of promulgating this interim final regulation.

DATES: This interim final rule is effective on December 19, 2013. 
Comments on this interim final rule must be received by December 19, 
2013.

ADDRESSES: You may submit comments, identified by RIN No. 0648-AY96, by 
any of the following methods:
     Federal eRulemaking Portal: http//www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: To the attention of Lynn Lankshear at (978) 281-9394.
     Mail or hand-delivery: Submit written comments to the 
Assistant Regional Administrator, Protected Resources Division, NMFS, 
Northeast Region, 55 Great Republic Drive, Gloucester, MA 01930.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.

[[Page 69311]]

    We will accept anonymous comments (enter ``n/a'' in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    The interim final rule and other reference materials regarding this 
determination are available electronically at https://www.nero.noaa.gov/prot_res/atlsturgeon/ under the section titled ``What's New'' or by 
submitting a request to the Assistant Regional Administrator, Protected 
Resources Division, NMFS, Northeast Region, 55 Great Republic Dive, 
Gloucester, MA 01930.

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

SUPPLEMENTARY INFORMATION:

Background

    As described in the two Federal Register notices published February 
6, 2012 (77 FR 5880 and 77 FR 5914), we determined that there are five 
Atlantic sturgeon DPSs within the United States. Along with the Gulf of 
Maine DPS, there are also the New York Bight, Chesapeake Bay, Carolina, 
and South Atlantic DPSs. We determined that listing the Gulf of Maine 
DPS as threatened and all of the other DPSs as endangered was warranted 
(77 FR 5880 and 77 FR 5914; February 6, 2012).
    Section 9(a)(1) of the ESA prohibits any person subject to the 
jurisdiction of the United States from: (A) Importing any endangered 
species into, or exporting any endangered species from the U.S.; (B) 
taking any endangered species within the United States or the U.S. 
territorial sea; (C) taking any endangered species upon the high seas; 
(D) possessing, selling, delivering, carrying, transporting, or 
shipping, by any means whatsoever, any endangered species that was 
illegally taken; (E) delivering, receiving, carrying, transporting, or 
shipping in interstate or foreign commerce, by any means whatsoever and 
in the course of commercial activity, any endangered species; (F) 
selling or offering for sale in interstate or foreign commerce any 
endangered species; or (G) violating any regulation pertaining to 
endangered species or to any threatened species of fish or wildlife. 
The ESA defines ``take'' as ``to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or attempt to engage in any 
such conduct'' (16 U.S.C. 1532(19)). The term ``harm'' is defined by 
regulation as any act which kills or injures fish or wildlife. Such an 
act may include significant habitat modification or degradation that 
results in death or injury of wildlife by significantly impairing 
essential behavioral patterns, including breeding, spawning, rearing, 
migrating, feeding, or sheltering (50 CFR 222.102). The term ``harm'' 
is used in this rule as defined in the regulations.
    The prohibitions listed under section 9(a)(1) of the ESA 
automatically apply when a species is listed as endangered but not when 
listed as threatened. When a species is listed as threatened, section 
4(d) of the ESA requires the Secretary of Commerce (Secretary) to issue 
regulations, as deemed necessary and advisable, to provide for the 
conservation of the species. The Secretary may, with respect to any 
threatened species, issue regulations that prohibit any act covered 
under section 9(a)(1). Whether section 9(a)(1) prohibitions are 
necessary and advisable for a threatened species is largely dependent 
on the biological status of the species and the potential impacts of 
various activities on the species.
    The Atlantic Sturgeon Status Review Report (ASSRT, 2007), the Final 
Listing Determinations for Three Distinct Population Segments of 
Atlantic Sturgeon in the Northeast Region (77 FR 5880; February 6, 
2012), and the Proposed Protective Regulations for the Gulf of Maine 
Distinct Population Segment of Atlantic Sturgeon (76 FR 34023; June 10, 
2011) contain a thorough account of the status of the Gulf of Maine DPS 
and impacts to Atlantic sturgeon belonging to the Gulf of Maine DPS. In 
addition, new information has become available since publication of the 
proposed protective regulations for the Gulf of Maine DPS, as detailed 
below.
    New tagging and tracking data, provided to us as a result of 
ongoing studies, indicates 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 
Cape Canaveral, FL (T. Savoy, CTDEP, pers. comm.). The description of 
the northern and southern extent of the marine range for the Gulf of 
Maine DPS was extended to include these areas, and it is described in 
detail in the final listing rule for the Northeast Region. Recent 
acoustic tracking data recovered from a receiver in the Back River, 
Maine, which is associated with the Kennebec River Estuary, also 
indicated the occurrence of Atlantic sturgeon in this river (G. 
Zydlewski, pers. comm.).

Summary of Comments Received on the Proposed Rule

    We solicited comments on the proposed rule from all interested 
parties including the public and other governmental agencies. Three 
comments were submitted on the action during the 60-day comment period 
from interested parties, including environmental and industry groups. 
In keeping with the intent of the Administration and Congress to 
provide continuing and meaningful dialogue on issues of mutual state 
and Federal interest, we contacted and invited comment from the 
relevant state agencies for Maine, New Hampshire, and Massachusetts as 
well as the from the Atlantic States Marine Fisheries Commission 
(ASMFC). All comments received on the proposed rule are summarized and 
addressed below.
    Comment 1: The ASMFC opposed the proposed ESA 4(d) rule on the 
grounds that extending the section 9 prohibitions to Gulf of Maine DPS 
Atlantic sturgeon is not warranted at this time and implementing such 
measures could diminish Gulf of Maine DPS restoration efforts currently 
being conducted by states and local jurisdictions.
    Response: Having determined that the Gulf of Maine DPS of Atlantic 
sturgeon warranted listing as a threatened species (77 FR 5880; 
February 6, 2012), we are required to issue such regulations as deemed 
necessary and advisable to provide for the conservation of the species. 
We disagree with the commenter that the implementation of ESA section 9 
measures for the Gulf of Maine DPS of Atlantic sturgeon will diminish 
conservation efforts currently underway. We have taken steps to reduce 
applicant waiting time for issuance of section 10 scientific research 
permits for ongoing or anticipated directed scientific research efforts 
for Atlantic sturgeon, thereby alleviating the primary rationale for 
this concern. A batch of 10(a)(1)(A) permits authorizing directed 
research on Atlantic sturgeon was issued on April 4, 2012.
    Comment 2: One commenter requested clarification of language on the 
salvage of dead fish and the rescue of stranded fish, which were 
exempted in certain portions of the riverine range of the Gulf of Maine 
DPS in the proposed rule. The commenter specifically requested that the 
word ``agent'' be expanded to include the staff biologists, consulting 
biologists, or other qualified personnel who work for the owners of the 
hydroelectric projects affected by the rule. The commenter felt that 
this would allow a more prompt response to rescue or salvage events,

[[Page 69312]]

which would aid the recovery of the species. The commenter added that 
some of these personnel already have the ability to work with federally 
endangered species such as shortnose sturgeon and Atlantic salmon.
    Response: Salvage of dead endangered shortnose sturgeon is 
permitted pursuant to section 10(a)(1)(A) of the ESA under permit 
number 1614. We have modified the permit to include Atlantic sturgeon. 
Individuals who are interested in participating in Atlantic sturgeon 
salvage activities and who are not already identified in the shortnose 
sturgeon permit should contact the Northeast Region, Protected 
Resources Division (see ADDRESSES) for further information about 
Atlantic sturgeon salvage activities conducted under permit number 
1614.
    Comment 3: Two comments were received regarding sightings of 
Atlantic sturgeon in areas not previously described. One commenter felt 
that NMFS should investigate the Atlantic and shortnose sturgeon within 
the Scarborough Marsh complex and consider listing them as DPSs, 
because both species are commonly seen in the Libby River, the Nonesuch 
River, and the Scarborough River by waterfront residents and resource 
users (including the commenter). The commenter felt that efforts should 
be made to understand the sturgeon population in this area. Similarly, 
information for an Atlantic sturgeon occurrence in the Presumpscot 
River, immediately below Presumpscot Falls, was provided by another 
commenter. The commenter felt that additional investigation into the 
occurrence and status of Atlantic sturgeon using the Presumpscot River 
may be warranted and provided a reference for the information on the 
documented catch of the sturgeon (Yoder et al., 2009).
    Response: We appreciate the information indicating that both 
shortnose and Atlantic sturgeon are present in these coastal rivers. 
Shortnose sturgeons are currently listed as a single species and are 
not part of the recent listing determinations for Atlantic sturgeon. 
The recent listing determinations provide information on the status and 
listing of Atlantic sturgeon as five DPSs (77 FR 5880 and 77 FR 5914; 
February 6, 2012). Our current understanding of Atlantic sturgeon in 
the Gulf of Maine DPS is that spawning for the DPS occurs in the 
Kennebec Complex (77 FR 5880; February 6, 2012). Information on 
Atlantic sturgeon in the Scarborough Marsh complex and in the 
Presumpscot River contributes to our knowledge of Atlantic sturgeon 
distribution and habitat use. We will consider this information when 
making future decisions about Atlantic sturgeon research priorities and 
when designating critical habitat.
    Atlantic sturgeon are known to make extensive marine migrations and 
to make use of rivers other than their natal river (i.e., river of 
origin) (ASSRT, 2007). Atlantic sturgeon using the Presumpscot River 
and the Scarborough Marsh Complex are likely to be either migrants from 
the Kennebec Complex, sturgeon from one of the four endangered DPSs, 
sturgeons that originate from Canadian rivers (e.g., the St. John or 
St. Lawrence rivers), or a combination of all of these. We will 
consider this information provided by these comments when monitoring 
the status of Atlantic sturgeon in Maine and when completing 5-year 
status reviews of the listed DPSs. At this time, however, we do not 
have sufficient information to revise the current listing of particular 
DPSs.

Other Information Received During the Public Comment Period

    Although not submitted as official comments to the proposed rule, 
NMFS became aware of new information on the Atlantic sturgeon's use of 
non-natal rivers during the public comment period. Researchers from 
Delaware State University (DSU) provided NMFS with new information on 
the occurrence of 105 acoustically tracked Atlantic sturgeon within 
tidal freshwaters of the Delaware and Hudson rivers (D. Fox, DSU, pers. 
comm.). These sturgeon were captured in marine waters near the mouth of 
the Delaware Bay where Atlantic sturgeon from different DPSs are known 
to mix. Genetic analysis of a tissue sample from each sturgeon 
identified the origin (by DPS) of the 105 sturgeon as: 58 New York 
Bight DPS sturgeon, 19 Chesapeake Bay DPS sturgeon, 16 South Atlantic 
DPS sturgeon, 11 Gulf of Maine DPS sturgeon, and 1 Carolina DPS 
sturgeon. In addition to genetic analyses, each fish was fitted with a 
tracking tag. Receivers placed in areas of the Delaware and Hudson 
rivers, including low-salinity waters (salinity values as low as 0.5 
ppt), recorded the presence of the tagged fish within a certain 
distance of the receiver. Based on the data collected by the receivers 
for three field seasons (2009-2011), 35 of the 105 Atlantic sturgeon 
appeared one or more times within low-salinity waters (less than 0.5 
ppt) of the Delaware or Hudson rivers. Comparing the tracking results 
and genetic results, 29 of the 35 Atlantic sturgeon belonged to the New 
York Bight DPS. The remaining six fish represented three other DPSs: 2 
sturgeon from each of the Chesapeake Bay, South Atlantic, and Gulf of 
Maine DPSs. Of the 70 sampled and tagged Atlantic sturgeon that were 
not detected in tidal freshwater areas of the Delaware or Hudson 
rivers, 29 were New York Bight DPS sturgeon, 17 were Chesapeake Bay DPS 
sturgeon, 14 were South Atlantic DPS sturgeon, 9 were Gulf of Maine DPS 
sturgeon, and 1 was a Carolina DPS sturgeon. Thus, 50 percent of the 
New York Bight DPS sturgeon (29 of 58 captured) occurred in low-
salinity waters of either the Delaware or Hudson rivers. In comparison, 
less than 20 percent of the non-New York Bight DPS sturgeon (2 of 19 
Chesapeake Bay DPS, 2 of 16 South Atlantic DPS, and 2 of 11 Gulf of 
Maine DPS) occurred in low-salinity waters of the Delaware or Hudson 
rivers.
    Individual-based assignment and mixed stock analyses of Atlantic 
sturgeon tissue samples have shown that Atlantic sturgeon tend to 
aggregate within the geographic region closest to their spawning river 
(Wirgin et al., in review). For example, individual-based assignment 
and mixed stock analysis of samples collected from sturgeon 
incidentally captured in Canadian fisheries in the Bay of Fundy 
indicated that 35% were from the Gulf of Maine DPS while only about 1 
to 2 percent were from the New York Bight DPS. The same tests conducted 
on samples from Atlantic sturgeon captured in the U.S. Mid-Atlantic 
Bight Region revealed that greater than 40 percent of the sturgeon were 
from the New York Bight DPS, approximately 20 percent were from the 
Chesapeake Bay DPS, and only 8 percent were Gulf of Maine DPS sturgeon 
(Wirgin and King, 2011).
    We considered all of the information received during the public 
comment period, including the new information that became available but 
was not submitted as a public comment. We recognize that the 
information submitted for the 105 acoustically tracked Atlantic 
sturgeon (D. Fox, DSU, pers. comm.) has not been peer reviewed or 
published. We also considered that the information for individual-based 
assignment and mixed stock analyses of Atlantic sturgeon tissue samples 
(Wirgin et al., in review) have not yet been published. We concluded, 
however, that the methods to collect the biological samples from the 
105 Atlantic sturgeon for analysis, and the methods for analyzing the 
biological samples for genetics (mitochondrial DNA and microsatellite 
DNA) and for determining the river and DPS of origin for sampled 
sturgeon of each study have been used previously

[[Page 69313]]

and reported in published and peer-reviewed publications (Atlantic 
Sturgeon Status Review 2007; Damon-Randall et al., 2010; King et al., 
2001; Wirgin et al., 2002). The same methods were also used for the 
sturgeon genetics data that support the delineations of Atlantic 
sturgeon into five DPSs, and the determination to list each DPS under 
the ESA (77 FR 5880 and 77 FR 5904; February 6, 2012). Therefore, we 
concluded that the information provided by D. Fox (pers.comm.) and 
Wirgin et al. (in review) do provide the best available information.
    We had proposed to apply all of the section 9 prohibitions to the 
Gulf of Maine DPS with two exemptions: (1) Scientific research 
conducted on Gulf of Maine DPS Atlantic sturgeon within the riverine 
portion of its range and in accordance with accepted NMFS protocol(s); 
and, (2) salvage of dead and recovery of live stranded or injured Gulf 
of Maine DPS Atlantic sturgeon found within the riverine range of the 
Gulf of Maine DPS (76 FR 34023; June 10, 2011). All Atlantic sturgeon 
have the same marine range and appearance regardless of the DPS of 
origin (Stein et al., 2004; USFWS, 2004). Therefore, to ensure that 
only Atlantic sturgeon listed as threatened (i.e., Gulf of Maine DPS 
Atlantic sturgeon) would be taken in the course of the exempted 
activities, we considered in what areas would we expect to find only 
Atlantic sturgeon from the Gulf of Maine DPS. Based on Atlantic 
sturgeon life history information available at the time of the proposed 
rule, we concluded that using a threshold salinity of less than 20 ppt 
for rivers draining into the Gulf of Maine would ensure that only Gulf 
of Maine DPS Atlantic sturgeon would occur in those riverine waters 
and, thus, only threatened Gulf of Maine DPS Atlantic sturgeon would be 
taken as a result of the exempted activities. However, the new 
information from tracked Atlantic sturgeon in the Delaware and Hudson 
rivers, conflicts with our previous conclusion.
    The available information suggests that Atlantic sturgeon in Gulf 
of Maine marine waters are predominantly Gulf of Maine DPS Atlantic 
sturgeon, and that the Atlantic sturgeon found in low-salinity waters 
of the Gulf of Maine DPS are more likely to be Gulf of Maine DPS 
Atlantic sturgeon than Atlantic sturgeon from another DPS. 
Nevertheless, the data collected for sturgeon in low-salinity waters of 
the Delaware and Hudson rivers indicates that Atlantic sturgeon will 
enter low-salinity waters of rivers that are not part of their DPS and 
the individual-based assignment and mixed stock analysis do not 
preclude the likelihood that Atlantic sturgeon will occur in the 
vicinity of non-natal rivers. Therefore, we concluded that sturgeon 
belonging to the New York Bight, Chesapeake Bay, Carolina or South 
Atlantic DPSs may occur in waters of less than 20 ppt within rivers of 
the Gulf of Maine DPS. Since there is no way of visually identifying a 
sturgeon to its DPS, the proposed exemptions could result in the 
illegal take of Atlantic sturgeon listed as endangered. Consequently, 
this interim final rule applies all of the section 9 prohibitions to 
the Gulf of Maine DPS with no exceptions.
    Removing the exemptions for certain scientific research and rescue/
salvage activities will not change as a practical matter the ability to 
conduct these activities, nor will it change the conservation benefit 
of these regulations for the Gulf of Maine DPS of Atlantic sturgeon. 
All researchers currently conducting scientific research for Atlantic 
sturgeon within Maine rivers and in the Merrimack River, MA have 
received authorization under section 10(a)(1)(A) of the ESA to continue 
their work. Therefore, removing the exemption for scientific research 
will not deter or prevent these ongoing scientific studies. Similarly, 
the authority to conduct salvage for Atlantic sturgeon from all five of 
the DPSs is currently authorized under a permit. Personnel that were 
already included on the permit when it pertained only to shortnose 
sturgeon (e.g., State of Maine personnel) were automatically authorized 
to also conduct salvage activities for Atlantic sturgeon when the 
permit was modified. Other qualifying individuals (e.g., hydropower 
personnel) can also be added to the salvage permit as authorized co-
investigators. The salvage permit provides for broader participation in 
Atlantic sturgeon salvage activities than what would have been provided 
through the salvage exemption in the 4(d) rule. Lastly, the biological 
opinions to be completed under section 7 of the ESA for federally-
managed fisheries and other activities subject to section 7 will 
include a provision for resuscitating sturgeon. Therefore, while the 
final 4(d) rule omits the exemption for resuscitation, the authority to 
conduct the activity will be provided elsewhere.

Summary of Changes From the Proposed Rule

    Based on the new information collected from sturgeon tracked in 
low-salinity waters of the Delaware and Hudson rivers and the 
individual-based assignment and mixed stock analysis, we removed the 
exemptions for scientific research and the salvage of dead, and the 
aiding of live, injured Gulf of Maine DPS Atlantic sturgeon. We are 
publishing this decision as an interim final rule and are allowing 30 
days of public comment given that the changes made are based on the new 
information that was not submitted or posted as public comment on the 
proposed rule.

Summary of Status and Threats to the Gulf of Maine DPS

    Genetic data and tagging information support the conclusion that 
the Gulf of Maine DPS includes all Atlantic sturgeon spawned in the 
watersheds extending from the Maine/Canadian border southward to 
include all watersheds draining into the Gulf of Maine as far south as 
Chatham, MA. The marine range, including coastal bays and estuaries, of 
Atlantic sturgeon belonging to the Gulf of Maine DPS extends from 
Hamilton Inlet, Labrador, Canada to Cape Canaveral, FL and overlaps 
with the marine range of Atlantic sturgeon that originate from the 
other four Atlantic sturgeon DPSs.
    Because Atlantic sturgeon use both riverine waters and the marine 
environment, they are affected by a multitude of activities. Coast-wide 
commercial over-harvesting throughout the 19th century and most of the 
20th century caused a precipitous decline in Atlantic sturgeon 
abundance for all of the U.S. Atlantic sturgeon DPSs. A coast-wide 
moratorium on harvesting Atlantic sturgeon was implemented in 1998 
pursuant to Amendment 1 of the ASMFC Interstate Fishery Management Plan 
for Atlantic sturgeon (ASMFC, 1998). Retention of Atlantic sturgeon 
from the U.S. Exclusive Economic Zone (EEZ) was prohibited by NMFS in 
1999 (64 FR 9449; February 26, 1999). However, despite these 
prohibitions on directed fishing for and retention of incidentally 
caught Atlantic sturgeon, other anthropogenic activities continue to 
take Atlantic sturgeon. These include incidental bycatch in commercial 
fisheries, vessel strikes, activities affecting water quality, and 
habitat disturbances such as dredging.
    Spawning has been confirmed only in the Kennebec Complex (i.e., the 
Kennebec and Androscoggin rivers). Spawning may be occurring in the 
Penobscot River, but this has not been confirmed. Atlantic sturgeon are 
captured in directed research projects in the Penobscot River and are 
observed in many other Maine rivers (e.g., the Saco River, including 
the Scarborough Marsh complex, the Presumpscot River, the Back River). 
These observations suggest that abundance of the Gulf of Maine

[[Page 69314]]

DPS of Atlantic sturgeon is sufficient such that recolonization to 
rivers historically suitable for spawning may be occurring. Additional 
genetic analyses of collected tissue samples are needed to confirm the 
origin of Atlantic sturgeon observed in Maine rivers historically used 
by the Gulf of Maine DPS.
    Despite the past impacts of exploitation, industrialization and 
population expansion, the DPS has persisted and is now showing signs of 
potential recovery (e.g., increased abundance and/or expansion into its 
historical range). In addition, some of the 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 Clean Water Act (CWA); removal of dams (e.g., the 
Edwards Dam on the Kennebec River in 1999); reductions in fishing 
effort in state and federal water, 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. 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 (Wirgin and King, 2011). 
Of the 84 observed Atlantic sturgeon interactions with fishing gear in 
the Mid Atlantic/Carolina region, only 8 percent (e.g., 7 of the 84 
fish) were assigned to the Gulf of Maine DPS (Wirgin and King, 2011). 
Tagging results also indicate that Gulf of Maine DPS fish tend to 
remain within the waters of the Gulf of Maine and only occasionally 
venture to points south (Eyler, 2006; Eyler, 2011).
    Water quality within the Gulf of Maine has improved significantly 
since the mid-1970's in part due to mandates following implementation 
of the Clean Water Act and bans on certain pesticide use in the early 
1970's (Davies and Tsomides, 1999; EPA, 2004; Lichter et al., 2006; 
EPA, 2008; Courtemanch et al., 2009) and unlike in areas farther south 
(e.g., portions of the Taunton River and Chesapeake Bay; Taunton River 
Journal, 2006; ASSRT, 2007; EPA, 2008), 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 has been documented to have a lower mortality 
rate for Atlantic sturgeon than sink gillnet gear. Given the reduced 
level of threat to the Gulf of Maine DPS, the anticipated distribution 
of Gulf of Maine DPS fish predominantly in the Gulf of Maine, and the 
positive signs regarding distribution and abundance within the DPS, we 
concluded that the Gulf of Maine DPS is not currently endangered. 
However, 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). We anticipate that sink gillnet fishing effort will 
increase in the Gulf of Maine as fish stocks are rebuilt. 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% of the Atlantic sturgeon were 
from the Gulf of Maine DPS (Wirgin et al., in review). There are no 
current regulatory measures to address the bycatch threat to Gulf of 
Maine DPS Atlantic sturgeon posed by U.S. Federal fisheries or 
fisheries that occur in Canadian waters. Potential changes in water 
quality as a result of global climate change (temperature, salinity, 
dissolved oxygen, contaminants, etc.) in rivers and coastal waters 
inhabited by Atlantic sturgeon will likely affect riverine populations. 
Therefore, despite some management efforts and improvements, we 
concluded that the Gulf of Maine DPS is at risk of becoming endangered 
in the foreseeable future throughout all of its range (i.e., is a 
threatened species) as a result of the persistent threats from bycatch, 
habitat impacts from continued degraded water quality and dredging in 
some areas, and the lack of measures to address these threats.

Protective Regulations for the Gulf of Maine DPS of Atlantic Sturgeon

    Protecting the Gulf of Maine DPS of Atlantic sturgeon from direct 
forms of take, such as physical injury or killing, whether incidental 
or intentional, will help preserve and recover the DPS. Likewise, 
protecting Gulf of Maine DPS Atlantic sturgeon from indirect forms of 
take, such as harm that results from habitat degradation, will help to 
reduce synergistic, negative effects from other stressors impeding 
recovery of the DPS. Therefore, we are extending the ESA section 
9(a)(1)(A) through 9(a)(1)(G) prohibitions to all activities impacting 
the Gulf of Maine DPS throughout its range.

Identification of Activities That Would Constitute a Violation of 
Section 9 of the ESA

    On July 1, 1994 (59 FR 34272), NMFS and the FWS (collectively, the 
``Services'') published a policy committing us to identify, to the 
maximum extent practicable at the time a species is listed, those 
activities that would or would not constitute a violation of section 9 
of the ESA. The intent of this policy is to increase public awareness 
of the effect of a listing on proposed and ongoing activities within 
the species range.
    Based upon available information, we believe that the activities 
that may take Gulf of Maine DPS Atlantic sturgeon include, but are not 
limited to: (1) Commercial and recreational fisheries; (2) scientific 
research and monitoring of Atlantic sturgeon, (3) emergency rescue/
salvage of Atlantic sturgeon; (4) scientific research and monitoring 
directed at other species; (5) habitat altering activities affecting 
passage of adult sturgeon to and from spawning areas and availability 
of habitat for egg, larval or juvenile stages (6) entrainment and 
impingement of all life stages of Gulf of Maine DPS sturgeon during the 
operation of water diversions, dredging projects, and power plants; (7) 
activities impacting water quality for all life stages of Gulf of Maine 
DPS sturgeons such as discharge, dumping, or applications of toxic 
chemicals, pollutants, or pesticides into waters or areas that contain 
Gulf of Maine DPS sturgeons; (8) vessel strikes; and, (9) introduction 
or release of non-native species that are likely to alter the habitats 
of, or to compete for space or food, with Gulf of Maine DPS Atlantic 
sturgeons.
    This list is not exhaustive. It is intended to provide examples of 
the types of activities that are most likely to result in take of Gulf 
of Maine DPS Atlantic sturgeons and a violation of this rule. Whether a 
take results from a particular activity is dependent upon the facts and 
circumstances of each incident. The fact that an activity may fall 
within one of these categories does not mean that the specific activity 
will cause a take. Due to such factors as location, timing, and scope, 
specific actions may not result in direct or indirect adverse effects 
on the species. Further, an activity not listed here may in fact result 
in a take. Questions regarding whether specific activities would 
constitute a take prohibited by this rule, and general inquiries 
regarding prohibitions and permits, should be directed to the NMFS 
Northeast Regional Office (see ADDRESSES).

Activities Affecting the Gulf of Maine DPS That Do Not Violate ESA 
Section 9

    Section 9(a)(1)(A), 10(a)(1)(A), and 10(a)(1)(B) of the ESA provide 
the

[[Page 69315]]

authority to grant exemptions to the section 9 prohibitions. Section 
10(a)(1)(A) scientific research and enhancement permits may authorize 
exemptions to any of the section 9 prohibitions and may be issued to 
Federal and non-Federal entities conducting research or conservation 
activities that involve directed (i.e., intentional) take of listed 
species. Section 10(a)(1)(B) take permits may be issued to non-Federal 
entities performing activities that may incidentally take listed 
species in the course of an otherwise legal activity. Impacts on the 
Gulf of Maine DPS from actions in compliance with such permits would 
not constitute violations of this rule. Likewise, federally funded or 
approved activities that incidentally take Gulf of Maine DPS Atlantic 
sturgeon would not constitute violations of this rule when the 
activities are conducted in accordance with an incidental take 
statement issued through a biological opinion provided by NMFS pursuant 
to section 7 of the ESA.

References Cited

    A complete list of the references used in this final rule is 
available upon request or on our Web site (see ADDRESSES).

Classification

National Environmental Policy Act (NEPA)

    Whenever a species is listed as threatened, the ESA requires that 
we issue regulations as we deem necessary and advisable to provide for 
its conservation. Accordingly, the promulgation of ESA section 4(d) 
protective regulations is subject to the requirements of NEPA, and we 
have prepared a final Environmental Assessment (EA) analyzing the 4(d) 
regulations and alternatives. The EA is available upon request, via our 
Web site (see ADDRESSES) or via the Federal eRulemaking Web site at 
https://www.regulations.gov.

Executive Order (E.O.) 12866

    This interim final rule has been determined to be not significant 
for the purposes of E.O. 12866.

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that the proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
None of the public comments submitted to NMFS addressed this 
certification, and no new information has become available that would 
change this determination. As a result, no final regulatory flexibility 
analysis is required and none has been prepared.

Paperwork Reduction Act (PRA)

    This interim final rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction 
Act.

E.O. 13132--Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
consultation directives for situations where a regulation will preempt 
state law, or impose substantial direct compliance costs on state and 
local governments (unless required by statute). Pursuant to the 
Executive Order on Federalism, E.O. 13132, we provided notice of the 
proposed action and requested comments from appropriate state resource 
agencies of the states in which riverine range for the Gulf of Maine 
DPS occurs. No comments were received from the state agencies.

E.O. 12898--Environmental Justice

    E.O. 12898 requires that Federal actions address environmental 
justice in decision-making process. In particular, the environmental 
effects of the actions should not have a disproportionate effect on 
minority and low-income communities. We have determined that this 
interim final rule will not have a disproportionately high effect on 
minority populations or low-income populations.

Coastal Zone Management Act (16 U.S.C. 1451 et seq.)

    Section 307(c)(1) of the Federal Coastal Zone Management Act of 
1972 requires that all Federal activities that affect any land or water 
use or natural resource of the coastal zone be consistent with approved 
state coastal zone management programs to the maximum extent 
practicable. NMFS has determined that this action is consistent to the 
maximum extent practicable with the enforceable policies of approved 
Coastal Zone Management Programs of each of the states within the 
riverine range of the Gulf of Maine DPS. Letters documenting NMFS's 
determination, along with the proposed rule, were sent to the coastal 
zone management program offices in each affected state. A list of the 
specific state contacts and a copy of the letters are available upon 
request.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: November 13, 2013.
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.

    For the reasons set out in the preamble, 50 CFR part 223 is amended 
as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).

0
2. In subpart B of part 223, add Sec.  223.211 to read as follows:


Sec.  223.211  Atlantic sturgeon.

    (a) Prohibitions. The prohibitions of sections 9(a)(1)(A) through 
9(a)(1)(G) of the ESA (16 U.S.C. 1538) relating to endangered species 
apply to the threatened Gulf of Maine Distinct Population Segment (Gulf 
of Maine DPS) of Atlantic sturgeon listed in Sec.  223.102(c)(29).
    (b) [Reserved]
[FR Doc. 2013-27734 Filed 11-18-13; 8:45 am]
BILLING CODE 3510-22-P