2010 Federal Register, 75 FR 53598; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: September 1, 2010 (Volume 75, Number 169)]
[Rules and Regulations]
[Page 53598-53606]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01se10-9]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2009-0027; 92220-1113-0000; ABC Code: C3]
RIN 1018-AW27

Endangered and Threatened Wildlife and Plants; Threatened Status
for Shovelnose Sturgeon Under the Similarity of Appearance Provisions
of the Endangered Species Act

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, determine it necessary
to treat shovelnose sturgeon (Scaphirhynchus platorynchus) as
threatened due to similarity of appearance to the endangered pallid
sturgeon (Scaphirhynchus albus) under the similarity of appearance
provisions of the Endangered Species Act of 1973, as amended. The
shovelnose sturgeon and the endangered pallid sturgeon are difficult to
differentiate in the wild and inhabit overlapping portions of the
Missouri and Mississippi River basins. Commercial harvest of shovelnose
sturgeon has resulted in the documented take of pallid sturgeon where
the two species coexist and is a threat to the pallid sturgeon. This
determination to treat shovelnose sturgeon due to similarity of
appearance will substantially facilitate law enforcement actions to
protect and conserve pallid sturgeon. This rule extends take
prohibitions to shovelnose sturgeon, shovelnose[dash]pallid sturgeon
hybrids, and their roe when associated with a commercial fishing
activity in areas where pallid sturgeon and shovelnose sturgeon
commonly coexist. Accidental or incidental capture of pallid or
shovelnose sturgeon, or shovelnose[dash]pallid sturgeon hybrids, in
commercial fishing gear will not be considered take provided the
sturgeon are immediately released to the wild at the point where taken
with roe intact.

DATES: This rule becomes effective on October 1, 2010.

FOR FURTHER INFORMATION CONTACT: George Jordan, Pallid Sturgeon
Recovery Coordinator, 2900 4th Avenue North, Room 301, Billings,
Montana 59101 (telephone (406) 247-7365; facsimile (406) 247-7364).
Public comments and literature referenced in association with this rule
are available at http://www.regulations.gov at Docket No. FWS-R6-ES-
2009-0027 and at the above office, by appointment, during normal
business hours. Persons who use a telecommunications device for the
deaf (TDD) may call the Federal Information Relay Service (FIRS) at
800/877-8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

Background

In 1990, the U.S. Fish and Wildlife Service (Service) listed the
pallid sturgeon (Scaphirhynchus albus) as endangered under the
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et
seq.) (55 FR 36641, September 6, 1990). The pallid sturgeon has a
flattened, shovel-shaped snout, possesses a long and slender and
completely armored caudal peduncle, and lacks a spiracle and belly
scutes (Forbes and Richardson 1905, pp. 38-41). The pallid sturgeon is
a bottom-oriented species found only in portions of the Missouri and
Mississippi River basins (Kallemeyn 1983, p. 4). The species can be
long-lived (40 plus years), with females reaching sexual maturity later
than males (Keenlyne and Jenkins 1993, pp. 393, 395). Pallid sturgeon
at the northern end of their range can attain sizes (both length and
weight) much larger than pallid sturgeon at the southern end of their
range (Service 1993, p. 3). Current known threats to the pallid
sturgeon include habitat modification, small population size, limited
natural reproduction, hybridization, pollution and contamination,
entrainment, and commercial harvest (Service 2007, pp. 38-59).
The pallid sturgeon and the shovelnose sturgeon are both members of
the genus Scaphirhynchus. These sturgeon can be difficult to
differentiate in the wild and inhabit overlapping portions of the
Missouri and Mississippi River basins. Within these areas of overlap,
four States continue to allow commercial harvest of shovelnose
sturgeon. Take of the endangered pallid sturgeon has been documented to
occur where this commercial fishery is allowed (Sheehan et al. 1997, p.
3; Service 2007, pp. 45-48; Bettoli et al. 2009, p. 3). Incidental and
illegal harvest of pallid sturgeon is a significant impediment to the
survival and recovery of this species in some parts of its range
(Service 2007, p. 45). Our recent 5-year status review recommended that
we identify and implement measures to eliminate or significantly reduce
illegal and accidental harvest of pallid sturgeon (Service 2007, p.
59).

Previous Federal Actions

On September 6, 1990, the pallid sturgeon was listed as endangered
under the Act (55 FR 36641). At the time of listing, the primary
threats and vulnerabilities for pallid sturgeon were curtailment of
range, habitat destruction and modification, low population size, lack
of recruitment, commercial harvest, pollution and contaminants, and
hybridization (55 FR 36641, September 6, 1990; Service 1993, pp. 10-
15). Since listing, we worked cooperatively with State partners to
address the threat posed by commercial harvest. A recent status review
found that restrictions imposed through State fishing regulations had
helped, but that incidental and illegal take during commercial harvest
of shovelnose sturgeon was still having a substantial and detrimental
effect on the pallid sturgeon (Service 2007, pp. 45-48). To address
this issue, on September 22, 2009, we published in the Federal Register
a proposed rule to treat the shovelnose sturgeon as a threatened
species due to its similarity of appearance to the endangered pallid
sturgeon (74 FR 48215).

Public Comments Solicited

As part of the September 22, 2009, proposed rule (74 FR 48215), we
requested interested parties to provide comments and materials
concerning the proposed rule during a 60-day public comment period. We
contacted all appropriate State and Federal agencies, county
governments, elected officials, scientific organizations, and other
interested parties and invited them to comment. During the public
comment period, we received several requests for a public hearing. On
January 14, 2010, we published a Federal Register notice announcing a
21-day reopening of the comment period and an informational meeting and
public hearing on January 28, 2010, in Cape Girardeau, Missouri (75 FR
2102).

Peer Review

In accordance with our policy for peer review (59 FR 34270, July 1,
1994), and

[[Page 53599]]

the Office of Management and Budget's (OMB) Final Information Quality
Bulletin for Peer Review, dated December 16, 2004, we solicited review
of the science in this rule from five independent specialists. That
review process was conducted to ensure the use of the best scientific
and commercial information available and to ensure and maximize the
quality, objectivity, utility, and integrity of the information upon
which this action is based. We received written responses from three of
the peer reviewers. All three reviewers indicated: (1) The data
presented were relevant and accurate; (2) the conclusions in the
proposed rule were logically supported by the data presented; (3)
necessary and pertinent information was included; and (4) the action
will help conserve pallid sturgeon. Specific issues raised are
discussed below.

Summary of Public Comments

During the comment periods, we received approximately 40 comments
(written and oral) representing 8 State agencies, 1 Federal agency, and
20 individuals representing themselves or their businesses and/or
organizations, as well as responses from three peer reviewers. All
comments are now available for inspection at http://www.regulations.gov
in Docket No. FWS-R6-ES-2009-0027.
We reviewed and considered all comments in this final decision.
Written comments and oral statements presented at the public hearing
and received during the comment periods are addressed in the following
summary or incorporated directly into this final rule. Comments of a
similar nature are grouped together under subject headings in a series
of ``Issues'' and ``Responses.''
Issue 1: Several commenters indicated that treating shovelnose
sturgeon as threatened due to similarity of appearance to pallid
sturgeon will close commercial sturgeon fishing resulting in a negative
economic impact on those engaged in this activity.
Response: We recognize that treating shovelnose sturgeon as
threatened due to similarity of appearance with pallid sturgeon will
close commercial harvest of shovelnose sturgeon from waters commonly
occupied by pallid sturgeon. Under section 4(e), the Act allows us to
regulate commerce and take to the extent advisable when it is
considered necessary to protect a listed species. In order to comply
with the Act and reduce potential negative economic impacts, this rule
covers the minimal geographic extent necessary to effectively conserve
pallid sturgeon. This rule will not affect commercial shovelnose
sturgeon harvest, where permitted by the States or tribes, in waters
where pallid sturgeon do not commonly occur (i.e., those areas not
identified under Sec. 17.44, Special rules--fishes, in this rule).
Issue 2: A few commenters felt the methods used to estimate
mortality of both pallid and shovelnose sturgeon in the proposed rule
(74 FR 48215, September 22, 2009) were flawed because the methods of
both Killgore et al. (2007) and Colombo et al. (2007) used a catch
curve to estimate mortality. Specifically, the commenters asserted that
the assumption that there is consistent reproduction and recruitment
among years is not consistent with the life-history characteristics of
shovelnose and pallid sturgeon.
Response: In both the Killgore et al. (2007) and Colombo et al.
(2007) peer-reviewed publications, the authors describe their methods
to account for inconsistent reproduction and recruitment. Killgore et
al. (2007, p. 453) pooled their data among years and examined their
data for variability among year-classes. Colombo et al. (2007, p. 445)
also pooled their data by age class among years. Pooling annual data
from successive sample years is an acceptable method to account for
moderate and random fluctuations in recruitment when employing catch
curves to estimate survival (Ricker 1975, p. 36). We believe these
studies present the best available data and use accepted methodologies.
Issue 3: One commenter believed that existing harvest length
regulations are protective of gravid female pallid sturgeon. These
regulations set a maximum harvest limit for shovelnose sturgeon on the
Mississippi River in Missouri and Illinois at 81.3 centimeters (cm)
(32.0 inches (in.)) fork length. The commenter had never observed a
gravid pallid sturgeon smaller than this limit and thought gravid
female pallid sturgeon should be readily identifiable based on length.
Response: Since 1992, 11 wild-caught female pallid sturgeon were
spawned in captivity at Missouri's Blind Pony State Fish Hatchery
(Drecktrah 2009). Of these, five were less than 81.3 cm (32.0 in.) fork
length, one measured 81.5 cm (32.1 in.) fork length, and five were
longer than 98.8 cm (38.9 in.) (Drecktrah 2009). The two smallest
gravid female pallid sturgeon spawned were 77.5 cm (30.5 in.) fork
length. In 2009, at Neosho National Fish Hatchery, one gravid female
pallid sturgeon was spawned that was 75.7 cm (29.8 in.) (Herzog 2010).
These data illustrate the fact that that size alone cannot be used to
identify species and current maximum harvest size limits for shovelnose
sturgeon on the Mississippi River (81.3 cm (32 in.)) and the Missouri
River (76.2 cm (30 in.)) are inadequate to protect all gravid female
pallid sturgeon.
Issue 4: Several commenters indicated that protection for
shovelnose-pallid sturgeon hybrids was unwarranted and that allowing
harvest of hybrid sturgeon would be a benefit to pallid sturgeon.
Response: The evolutionary relationship between pallid and
shovelnose sturgeon is poorly understood and additional data and
analyses are necessary to fully understand the relationship between
putative hybrids and pallid and shovelnose sturgeon (Service 2007, pp.
25-26). In one study, morphometric-only indices assigned study
specimens to the pallid sturgeon, shovelnose sturgeon, and putative
hybrid groups (Murphy et al. 2007, p. 319). However, sheared principal
component analysis of the same study specimens resulted in some
putative hybrid specimens clustering with the pallid sturgeon group and
other hybrid specimens clustering with the shovelnose sturgeon group
(Murphy et al. 2007, p. 319). In another study, genetic identification
revealed that pallid sturgeon identified using the character index (CI)
and morphometric character index (mCI) were miscategorized (Schrey
2007, pp. 74-75, 120). Thus, some sturgeon that appear intermediate in
character based on the CI or the mCI (presumed hybrids) may actually be
pallid sturgeon. Given these uncertainties, law enforcement personnel
would have substantial difficulty enforcing regulations allowing
harvest of shovelnose-pallid sturgeon hybrids. Thus, extending
protections to shovelnose sturgeon and to shovelnose-pallid sturgeon
hybrids is the only way to ensure that pallid sturgeon are not
inadvertently harvested from areas where these two species co-occur.
Issue 5: Several commenters indicated that treating shovelnose
sturgeon as threatened due to similarity of appearance to pallid
sturgeon is not warranted. These commenters referenced recent
regulation changes implemented by the Illinois Department of Natural
Resources and a study of the new regulation's effectiveness sanctioned
by the Mississippi Interstate Cooperative Resources Association (Maher
et al. 2009). These commenters state that in this study 946 sturgeon
carcasses were collected from commercial fishermen, and none were
determined by genetic analysis to be pallid sturgeon. Based on those
data, commenters contend that differentiation between pallid and
shovelnose sturgeon could occur with a 100 percent level of

[[Page 53600]]

accuracy with proper training and implementation.
Response: In 2007, the Illinois Department of Natural Resources
instituted additional protective State regulations intended to
eliminate pallid sturgeon harvest. These regulations prohibited take of
or harm to pallid sturgeon and mandated their immediate release upon
capture. These regulations also prohibited commercial harvest of
shovelnose-pallid sturgeon hybrids downstream from Lock and Dam 26 on
the Mississippi River. Specifically, these regulations prohibited take
and mandated immediate release of any Scaphirhynchus that had any of
the following: (1) Belly completely lacking in scales; (2) bases of
outer barbels located slightly behind bases of inner barbels; or (3)
length of inner barbels at least 6.3 times the length of head.
The new Illinois regulations as well as the existing Missouri and
Kentucky regulations were evaluated to determine if they were effective
in preventing bycatch of pallid sturgeon in the harvest of shovelnose
sturgeon (Maher et al. 2009, p. 2). This study examined 946 carcasses
from commercial fisherman including 513 collected in Illinois under
their new regulations (Maher et al. 2009, pp. 3-4). Specimens were
evaluated based on CI, mCI, barbel alignment, the presence or absence
of belly scales, and the ratio of head length to barbel length (Maher
et al. 2009, p. 3). Based on professional judgment, the authors did not
believe any of the carcasses were pallid sturgeon (Maher et al. 2009,
p. 4). However, the data were less clear.
The CI and mCI scores yielded different results when applied to the
same carcasses. The CI scores indicated 4 of the carcasses were pallid
sturgeon including 2 harvested by Illinois fishermen; 31 specimens were
likely shovelnose-pallid sturgeon hybrids including 24 harvested by
Illinois fishermen (Maher et al. 2009, pp. 4, 8-11). None of these 946
carcasses were deemed to be pallid sturgeon based on mCI scores, but 30
specimens were likely shovelnose-pallid sturgeon hybrids including 9
harvested by Illinois fishermen (Maher et al. 2009, pp. 4, 14-17).
Genetic testing on 84 sturgeon (44 from Illinois, 20 from Kentucky, and
20 from Missouri) with the lowest CI values (most pallid sturgeon like)
indicated that several of the carcasses were likely shovelnose-pallid
sturgeon hybrids (Heist and Boley 2009, p. 3). Eighty-five of the
specimens had barbel alignment consistent with pallid sturgeon
including 78 in Illinois (Maher et al. 2009, pp. 4-5). None of the
specimens had bellies that were absent scales consistent with pallid
sturgeon, but 37 carcasses had partial or small scales on their bellies
indicative of shovelnose-pallid sturgeon hybrids (Maher et al. 2009,
pp. 4-5). Finally, none of the specimens' ratio of head length to
barbel length were indicative of pallid sturgeon (Maher et al. 2009,
pp. 4-5).
As these data demonstrate, field-level identification based solely
on character indices is subjective and not without some uncertainty.
This subjectivity and uncertainty is reflected in the 2007 Illinois
regulations. These regulations indicate that it is illegal to harvest
any sturgeon that has ``bases of outer barbels located slightly farther
behind bases of inner barbels.'' The word ``slightly'' is subjective
and difficult to apply consistently among observers (Maher et al. 2009,
p. 4). For instance, 28 of the 78 sturgeon caught in Illinois had
barbel alignment consistent with pallid sturgeon; however, because the
outer barbels inserted only ``slightly'' behind the inner barbels, the
data were analyzed with and without the 28 specimens (Maher et al.
2009, p. 4). In this case, the word ``slightly'' introduced ambiguity
into identification efforts.
In total, more than 10 percent of the specimens harvested in
Illinois were harvested in violation of Illinois regulations as they
showed characteristics intermediate between pallid and shovelnose
sturgeon (Maher et al. 2009, pp. 5-6). Because some sturgeon that
appear intermediate (i.e., presumed hybrids) may actually be pallid
sturgeon (Wills et al. 2002, pp. 255-256; Schrey 2007, pp. 74, 120), we
remain concerned that even in a highly regulated arena, harvest of
shovelnose sturgeon and their roe results in the take of pallid
sturgeon where the two species are sympatric.
One of the requirements of treating any species as endangered or
threatened under Section 4(e) of the Act is related to law enforcement
difficulties with differentiating between a listed and unlisted
species. The available data demonstrate that both fishermen and
enforcement personnel are having and will continue to have substantial
difficulty in differentiating between these species where they coexist.
Issue 6: A few commenters highlighted an error in Table 1 of the
proposed rule (74 FR 48215, September 22, 2009). Specifically, we
reported 3,808 kilograms (8,395 pounds) of roe being harvested in
Illinois' Mississippi River below Melvin Price Lock and Dam (Lock and
Dam 26) in 2005, when the actual number was 166 kilograms (365 pounds).
Response: This error has been corrected in Table 1 of this rule.
Consideration of this error does not change our determination. The
available data demonstrate a substantial level of commercial harvest of
shovelnose, including both flesh and roe, is occurring in areas where
both pallid and shovelnose sturgeon coexist. This harvest is resulting
in incidental and illegal harvest of pallid sturgeon (Sheehan et al.
1997, p. 3; Bettoli et al. 2009, p. 3), which is a significant
impediment to the survival and recovery of the pallid sturgeon.
Issue 7: One commenter was unable to find any evidence that we
conducted an environmental impact study to determine the economic
impact to fishermen and associated communities as a result of this
decision.
Response: An Environmental Assessment or Environmental Impact
Statement, as defined under the authority of the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4331 et seq.), need not be
prepared in connection with listing regulations adopted pursuant to
section 4 of the Act. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244). We determined that this rationale also applies to the
associated section 4(d) rule.
Issue 8: Several States and one not-for-profit organization
observed that closing commercial shovelnose sturgeon fishing in waters
where they commonly coexist with pallid sturgeon could result in
increased shovelnose sturgeon harvest pressures in waters that remain
open. The concern raised is that this shift in pressure could result in
overharvest of shovelnose sturgeon populations in areas outside the
range of pallid sturgeon.
Response: Twenty-four States comprise the historical range of
shovelnose sturgeon. Of these, eight allow for commercial harvest of
shovelnose sturgeon; this action will halt commercial harvest of
shovelnose sturgeon in four of these eight where shovelnose and pallid
sturgeon coexist. Shovelnose sturgeon that occupy waters outside the
areas regulated by this rule are subject to State commercial fishing
regulations. Those States that acknowledged that a probable shift in
harvest pressures is likely as a result of this rule indicated that
their existing regulations are adequate to conserve shovelnose
sturgeon. We believe that a combination of existing State regulations
and the additional protections provided under this rule will facilitate
conservation of both shovelnose and pallid sturgeon. However, we
acknowledge this rule does not afford additional protections to

[[Page 53601]]

shovelnose sturgeon outside of its sympatric range of the pallid
sturgeon. Thus, we will continue to work and cooperate with State
resource agencies, the Mississippi Interstate Cooperative Resources
Association and the Upper Mississippi River Conservation Committee, and
other interested parties to help manage and monitor shovelnose sturgeon
harvest where it occurs.
Issue 9: Several commenters highlighted other threats to pallid
sturgeon, including non-native invasive species and habitat alteration.
These comments imply we should focus on these other threat factors
rather than the take issue being addressed by this rule.
Response: This rule is being undertaken to address documented take
of an endangered species, the pallid sturgeon, due to similarity of
appearance to shovelnose sturgeon. The take is occurring through
commercial harvest of shovelnose sturgeon where allowed. Through the
provisions of section 4(e) of the Act, we are employing a mechanism to
help address this take, which is an identified threat to the pallid
sturgeon (55 FR 36641; Service 2007, pp. 45-48, 57). We are not
assessing the pallid sturgeon in this rule in accordance with section
4(a) of the Act. However, we concur with the commenter that habitat
destruction or alteration is a threat to this species as we described
in our 2007 5-year review (Service 2007, pp. 38-45, 56). We are
actively working with State and Federal partners to implement
restoration activities to address habitat issues throughout the range
of the pallid sturgeon. Examples include the efforts of the Upper and
Lower Mississippi River Conservation Committees and U.S. Army Corps of
Engineers Missouri River Recovery Program. These partnerships and
programs have restored side channel connectivity and modified existing
in-channel structures (i.e., dike notching) to increase habitat
complexity. We are currently reviewing available data to better
evaluate effects from invasive species. While these are important
efforts, we also determined that the mortality of reproductive-
condition female pallid sturgeon associated with commercial fishing
must be addressed in order to conserve the species and achieve
recovery.
Issue 10: The State of Wyoming identified potential confusion
associated with the word ``entire'' found under the column heading
``Vertebrate population where endangered or threatened'' in Sec. 17.11
Endangered and Threatened Wildlife. The confusion is associated with
the rule treating shovelnose sturgeon as threatened due to similarity
of appearance to pallid sturgeon in waters where both species commonly
coexist. There are several States identified in this table that are not
within the documented historical range of pallid sturgeon.
Response: The table in Part 17 delineates the historic range of the
shovelnose sturgeon and identifies the population where treated as
endangered or threatened is over the entire range of the species.
However, section 4(e) allows for regulation of commerce and take as
deemed advisable. The special rule described under Sec. 17.44(aa)
articulates the portions of the range in which take will be regulated
under this rule. In this case, the shovelnose sturgeon's historic range
occurs in 24 States; however, shovelnose and shovelnose-pallid sturgeon
hybrid populations covered by this special rule occur in portions of 13
States. Therefore, Wyoming and several other States that historically
or currently support shovelnose sturgeon populations but not pallid
sturgeon are not identified in this rule and will not be regulated and
subject to shovelnose sturgeon take prohibitions as a result of this
rule.
Issue 11: One commenter encouraged us to conduct a review of
shovelnose sturgeon to determine if threatened status is warranted for
this species range-wide. This commenter provided references to several
publications that suggest shovelnose sturgeon are being over-harvested
in the middle and upper Mississippi Rivers (Colombo et al. 2007; Koch
et al. 2007; Tripp et al. 2009). The commenter also recommended that if
additional protections were not warranted, we should work with State
agencies to implement strict size limits on commercial harvest to
better protect shovelnose sturgeon where they are commercially
harvested.
Response: This action was initiated to address documented take
occurring of an existing listed species and provide for the
conservation of that listed species--the endangered pallid sturgeon. We
are not assessing the status of the shovelnose sturgeon in this rule.
We have a separate petition process and our own internal candidate
assessment process to elevate species for listing consideration. In the
context of this regulation, we have considered this comment and believe
that the combination of existing State regulations and the protections
provided in this rule address many of the concerns highlighted in the
cited literature (Colombo et al. 2007; Koch et al. 2007; Tripp et al.
2009). We also intend to continue working with the States and various
committees to ensure adequate regulations exist where commercial
shovelnose sturgeon harvest is permitted. Should future data indicate
the shovelnose sturgeon meets the Act's definition of threatened or
endangered, we would initiate a status review and propose listing the
species if warranted.

Similarity of Appearance Determination

Section 4(e) of the Act and implementing regulations (50 CFR 17.50-
17.52) authorize the Secretary of the Interior to treat a species as an
endangered or threatened species even though it is not itself listed
if: (a) The species so closely resembles in appearance a listed
endangered or threatened species that law enforcement personnel would
have substantial difficulty in attempting to differentiate between the
listed and unlisted species; (b) the effect of this substantial
difficulty is an additional threat to an endangered or threatened
species; and (c) such treatment of an unlisted species will
substantially facilitate the enforcement and further the purposes of
the Act. With regard to shovelnose sturgeon, we believe all of these
factors apply.
The shovelnose sturgeon (Scaphirhynchus platorynchus) is similar in
appearance to the pallid sturgeon and inhabits overlapping portions of
the Missouri and Mississippi River basins (Bailey and Cross 1954, pp.
175-190). Morphological characteristics (i.e., body measurements) and
meristic counts (i.e., number of fin rays) have been used to
distinguish between the two Scaphirhynchus species. However, those
characters were based on a limited number of pallid sturgeon (15) and
of shovelnose sturgeon (16) specimens (Bailey and Cross 1954, pp. 177-
179).
Two indices, CI and mCI, were developed to help differentiate
between the species and account for putative hybrid individuals (Wills
et al. 2002, pp. 249-258). The CI uses both morphometric ratios and
meristic counts (number of fin rays in both the dorsal and anal fins);
mCI is based only on the five morphometric ratios and was developed
because the meristic counts can be difficult to accurately obtain from
live specimens (Wills et al. 2002, p. 250). Both indices utilized five
ratios of morphometric measurements based on careful length
measurements of both the inner and outer barbels, the head length, the
interrostrum length, and the mouth-to-inner-barbel distance. While both
indices did a good job of properly classifying pallid sturgeon (Wills
et al. 2002, p. 253), errors occurred when putative hybrids overlapped
the parental forms (Wills et al. 2002, pp.

[[Page 53602]]

253-254). Both indices had an error rate of approximately 10 percent
(Wills et al., pp. 255-256). Thus, Wills et al. (2002, p. 257)
recommended incorporating molecular genetic techniques to verify
species delineations.
Genetic analysis of Scaphirhynchus specimens to test the
performance of several character indices, including CI and mCI suggest
that at least 1.9 percent of sampled individuals were misidentified
(Schrey 2007, p. 75). Specifically, CI appeared to perform better than
the other indices by not classifying genetic pallid sturgeon as
shovelnose or shovelnose-pallid sturgeon hybrids, but did classify
genetic shovelnose sturgeon as pallid sturgeon (Schrey 2007, pp. 75-
76). Similarly, mCI did not classify genetic pallid sturgeon as
shovelnose sturgeon, but did classify genetic shovelnose as pallid
sturgeon (Schrey 2007, p. 75). However, mCI misclassified genetic
pallid sturgeon as shovelnose-pallid sturgeon hybrids (Schrey 2007, p.
75). The CI performs better than the other indices because it relies on
dorsal and anal fin ray counts. However, dorsal and anal fin ray counts
can be difficult to obtain from live specimens (Wills et al. 2002, p.
250; Schrey 2007, p. 76); mCI was developed in recognition of this
difficulty. In order to provide the greatest confidence in species
identification, both genetic and morphological analyses are required
(Schrey 2007, p. 80).
Other recent analyses confirm limited success applying character
indices universally across the geographic range of the species (Kuhajda
et al. 2007, pp. 344-346; Murphy et al. 2007, p. 322). Furthermore,
available data indicate character indices do not work well on smaller
sized specimens (Kuhajda et al. 2007, pp. 324, 344).
Currently, biologists use an approach requiring up to 13
morphometric body measurements, multivariate analysis, meristic counts
(i.e., the number of dorsal and anal fin rays), and genetic data to
reliably differentiate between the 2 species. Many of these methods
require data collection and analysis that are not easily implemented in
field-level applications and are not immediately available to
commercial fishermen at the time of harvest or to law enforcement
personnel at the time of determining whether a violation has occurred.
Finally, while genetic tests can differentiate Scaphirhynchus eggs
from those of other genera, at this time, processed roe cannot be
differentiated as having been derived from shovelnose sturgeon, harvest
of which may be legal, or pallid sturgeon, harvest of which is illegal
(Curtis 2008). This similarity poses a problem for Federal and State
law enforcement agents trying to address illegal trade in pallid
sturgeon roe.
While harvest of pallid sturgeon is prohibited by section 9 of the
Act and by State regulations throughout its range, commercial harvest
of shovelnose sturgeon has resulted in the documented take of pallid
sturgeon (Sheehan et al. 1997, p. 3; Bettoli et al. 2009, p. 3; Service
2007, pp. 45-48). Four States allow commercial harvest of shovelnose
sturgeon from waters commonly occupied by pallid sturgeon (Service
1993, pp. 3-5). These are Tennessee (Tennessee 2008, pp. 4-5), Missouri
(except on the Missouri River upstream of the Kansas River to the Iowa
border) (Missouri 2008, pp. 10-11), Kentucky (Kentucky 2008, pp. 1-2),
and Illinois (below Mel Price Locks and Dam) (Illinois 2007, pp. 3-5;
Illinois 2008, p. 2). To protect pallid sturgeon, fishing seasons with
maximum harvestable size limits for shovelnose sturgeon have been
established (Bettoli et al. 2009, pp. 1-2). However, harvestable size
limits for shovelnose sturgeon cannot protect pallid sturgeon that fall
within the harvestable size limits if pallid sturgeon cannot be
reliably differentiated from shovelnose sturgeon.
Along the Tennessee portion of the Mississippi River, commercial
fishers misidentified 29 percent of the encountered pallid sturgeon
(Bettoli et al. 2009, p. 3) and a minimum of 1.8 percent of total
sturgeon harvest was endangered pallid sturgeon (Bettoli et al. 2009,
p. 3). Applying this minimum harvest estimate to the 2005-2007
commercial shovelnose fishing seasons within Tennessee results in a
minimum harvest estimate of 169 adult pallid sturgeon (Bettoli et al.
2009, p. 1). Extrapolating this minimum estimate of pallid sturgeon
take across the four States that allow for commercial harvest of
shovelnose sturgeon where the two species commonly coexist implies
annual incidental take is a substantial source of pallid sturgeon
mortality and a threat to the species' survival and recovery.
Furthermore, total annual pallid sturgeon mortality rates are
higher where commercial harvest of shovelnose sturgeon occurs compared
to areas without commercial harvest (30 percent versus 7-11 percent)
(Killgore et al. 2007, pp. 454-455). Maximum identified ages of pallid
sturgeon are substantially lower in commercially fished reaches of the
Mississippi River (14 years) than in noncommercially fished reaches of
the Mississippi River (21 years) (Killgore et al. 2007, p. 454).
Harvested and protected populations should have considerably different
mortality rates (and, therefore, corresponding different maximum ages);
however, the endangered pallid sturgeon have similar mortality rates as
the harvested shovelnose sturgeon in the middle Mississippi River
(Colombo et al. 2007, p. 449). This information provides further
evidence that illegal harvest of pallid sturgeon is occurring. Because
female sturgeon do not begin egg development until ages 9-12 years, may
not spawn until ages 15-20 years, and may not spawn every year
(Keenlyne and Jenkins 1993, p. 395), mortality associated with
commercial fishing activity is likely substantially lowering
recruitment, negatively impacting population growth, and ultimately
affecting recovery.
Much of the domestic sturgeon fishing pressure has been driven by
international sturgeon supply and increasing price trends.
International sturgeon catch declined from the record peak of 32,078
metric tons (70,719,884 pounds) in 1978 to 2,658 metric tons (5,859,886
pounds) in 2000 (FAO Fisheries Circular 2004, executive summary). This
reduction in supply resulted in exponential increase in caviar prices
subsequent to the 1978 peak (Bardi and Yaxley 2005, p. 2). Since 1998,
international trade in all species of sturgeon has been regulated under
the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) owing to concerns over the impact of
international trade on sturgeon populations in the wild. Recent CITES
sturgeon quotas have further limited supply and exacerbated price
pressures (CITES 2005, pp. 1-5, 8-9; CITES 2006, pp. 1, 5-6, 10-11;
CITES 2007, pp. 1, 3-5, 8-9; CITES 2008, pp. 3, 7, 8, 11, 14). We
expect commercial pressures on domestic sturgeon to remain constant or
possibly increase due, in part, to current restrictions on importation
of beluga sturgeon (Huso huso) caviar into the United States (70 FR
57316, September 30, 2005; 70 FR 62135, October 28, 2005) due to its
status as a threatened species and the general trend toward reduced
caviar exports from the Caspian Sea and Black Sea sturgeon stocks.
State commercial fishing data (Table 1) demonstrate a substantial
level of commercial harvest of shovelnose sturgeon, including both
flesh and roe, from areas where both shovelnose and pallid sturgeon
coexist (Williamson 2003, pp. 118-120; Maher 2008; Scholten 2008a;
Scholten 2008b; Travnichek 2008; Illinois DNR 2009).

[[Page 53603]]

Table 1--Reported Commercial Harvest of Shovelnose Sturgeon Flesh and Roe in Pounds From 1995-2007 From the Portions of Illinois, Kentucky, Missouri,
and Tennessee Where Both Shovelnose Sturgeon and Pallid Sturgeon Coexist
[Illinois DNR 2009; Scholten 2008a, 2008b; Travnichek 2008; Williamson 2003]
--------------------------------------------------------------------------------------------------------------------------------------------------------
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flesh
--------------------------------------------------------------------------------------------------------------------------------------------------------
Illinois........................... 405 3,475 6,115 2,855 3,798 1,576 3,074 1,541 600 2,931 2,599 * *
Kentucky........................... * * * * 25 9,938 13,059 8,324 1,413 5,167 16,324 14,130 10,043
Missouri........................... 6,201 10,142 8,231 9,089 19,655 23,394 77,498 43,211 23,956 28,818 10,002 6,526 5,220
Tennessee.......................... * * * * * 4,178 2,178 3,519 5,759 4,005 17,297 12,926 7,812
--------------------------------------------------------------------------------------------------------------------
Total.......................... 6,606 13,617 14,346 11,944 23,478 39,086 95,809 56,595 31,728 40,921 46,222 33,582 23,075
--------------------------------------------------------------------------------------------------------------------------------------------------------
Roe
--------------------------------------------------------------------------------------------------------------------------------------------------------
Illinois........................... 0 28 65 87 0 16 208 402 136 585 365 554 *
Kentucky........................... * * * * * 527 1,021 731 258 554 1,844 1,648 1,738
Missouri........................... * * * * * * * * 4,490 3,504 2,356 1,907 1,420
Tennessee.......................... * * * * * * * 660 1,001 665 2,290 2,027 1,366
--------------------------------------------------------------------------------------------------------------------
Total.......................... 0 28 65 87 0 543 1,229 1,793 5,883 5,308 6,855 6,136 4,524
--------------------------------------------------------------------------------------------------------------------------------------------------------
Illinois shovelnose harvest includes Mississippi River catch downstream of Mel Price Locks and Dam; Missouri shovelnose harvest includes both
Mississippi River (downstream of Mel Price Locks and Dam) and Missouri River (except on the Missouri River upstream of the Kansas River to the Iowa
border) catches; and Tennessee and Kentucky shovelnose harvest includes Mississippi River catch. Tennessee's flesh data were extrapolated using length-
weight relationships from total fish harvested.
An asterisk (*) indicates no data reported or data otherwise unavailable.

Incidental, illegal harvest of pallid sturgeon is a significant
impediment to the survival and recovery of this species in some
portions of its range (Service 2007, p. 45). We recommended in our 2007
5-year status review that we should identify and implement measures to
eliminate or significantly reduce illegal and accidental harvest of
pallid sturgeon (Service 2007, p. 59).
Treating the shovelnose sturgeon as a threatened species, under
section 4(e) of the Act, will result in termination of commercial
harvest of shovelnose sturgeon and shovelnose-pallid sturgeon hybrids
where they commonly coexist with pallid sturgeon. This action will
facilitate the enforcement of take protections for pallid sturgeon and
substantially reduce or eliminate take of pallid sturgeon associated
with commercial harvest of shovelnose sturgeon and their roe. Reduction
of take of pallid sturgeon will facilitate the species' survival,
reproduction, and, ultimately, its recovery. For these reasons, we will
treat the shovelnose sturgeon as threatened due to similarity of
appearance to the pallid sturgeon in those areas where the two species
commonly coexist, in accordance with section 4(e) of the Act.

Section 4(d) ``Special Rule'' Regulating Take

When a species is considered threatened under the Act, the
Secretary may specify regulations that he deems necessary to provide
for the conservation of that species under a rule authorized by section
4(d) of the Act. These rules, commonly referred to as ``special
rules,'' are found in part 17 of title 50 of the Code of Federal
Regulations (CFR) in sections 17.40-17.48. This special rule for Sec.
17.44, which deals with fishes, prohibits take of any shovelnose
sturgeon, shovelnose-pallid sturgeon hybrids, or their roe when
associated with or related to a commercial fishing activity in those
portions of its range that commonly overlap with the range of the
endangered pallid sturgeon. In this context, commercial fishing
purposes is considered as any activity where shovelnose sturgeon and
shovelnose-pallid sturgeon hybrid roe or flesh is attempted to be, or
is intended to be, traded, sold, or exchanged for financial
compensation, goods, or services. Capture of shovelnose sturgeon or
shovelnose-pallid sturgeon hybrids in commercial fishing gear is not
prohibited if it is accidental or incidental to otherwise legal
commercial fishing activities, such as commercial fishing targeting
nonsturgeon species, provided the animal is released immediately upon
discovery, with all roe intact, at the point of capture. All otherwise
legal activities involving shovelnose sturgeon and shovelnose-pallid
sturgeon hybrids that are conducted in accordance with applicable
State, Federal, tribal, and local laws and regulations are not
considered to be take under this regulation.

Effects of These Rules

Treating the shovelnose sturgeon as threatened under the
``similarity of appearance'' provisions of the Act extends take
prohibitions to shovelnose sturgeon, shovelnose-pallid sturgeon
hybrids, and their roe when associated with a commercial fishing
activity. Capture of shovelnose sturgeon or shovelnose-pallid sturgeon
hybrids in commercial fishing gear is not prohibited if it is
accidental or incidental to otherwise legal commercial fishing
activities, such as commercial fishing targeting nonsturgeon species,
provided the animal is released immediately upon discovery, with all
roe intact, at the point of capture. All otherwise legal activities
within the areas identified that may involve shovelnose sturgeon and
shovelnose-pallid sturgeon hybrids and which are conducted in
accordance with applicable State, Federal, tribal, and local laws and
regulations will not be considered take under this regulation.
Under this special 4(d) rule, take is prohibited where shovelnose
and pallid sturgeons' range commonly overlap (Service 1993, pp. 3-5,
16-17). Specifically, this includes: (1) The portion of the Missouri
River in Iowa, Kansas, Missouri, Montana, North Dakota, Nebraska, and
South Dakota; (2) the portion of the Mississippi River downstream from
the Melvin Price Locks and Dam (Lock and Dam 26) in Arkansas, Illinois,
Kentucky, Louisiana,

[[Page 53604]]

Missouri, Mississippi, and Tennessee; (3) the Platte River downstream
of the Elkhorn River confluence in Nebraska; (4) the portion of the
Kansas River downstream from the Bowersock Dam in Kansas; (5) the
Yellowstone River downstream of the Bighorn River confluence in North
Dakota and Montana; and (6) the Atchafalaya River in Louisiana. See the
map in the rule portion of this document.
This designation of similarity of appearance under section 4(e) of
the Act would not extend any other protections of the Act, such as the
requirements to designate critical habitat, the recovery planning
provisions under section 4(f), or consultation requirements for Federal
agencies under section 7, to shovelnose sturgeon. Therefore, Federal
agencies are not required to consult with us on activities they
authorize, fund, or carry out that may affect shovelnose sturgeon.

Paperwork Reduction Act

The OMB regulations at 5 CFR part 1320 implement provisions of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The OMB regulations
at 5 CFR 1320.3(c) define a ``collection of information'' as the
obtaining of information by or for an agency by means of identical
questions posed to, or identical reporting, recordkeeping, or
disclosure requirements imposed on, 10 or more persons. Furthermore, 5
CFR 1320.3(c)(4) specifies that ``10 or more persons'' refers to the
persons to whom a collection of information is addressed by the agency
within any 12-month period. For purposes of this definition, employees
of the Federal Government are not included. A Federal agency may not
conduct or sponsor and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number. This rule does not contain collections of information
other than those permit application forms already approved under the
Paperwork Reduction Act and assigned OMB control number 1018-0094.

National Environmental Policy Act

We have determined that an Environmental Assessment or
Environmental Impact Statement, as defined under the authority of the
NEPA, need not be prepared in connection with listing regulations
adopted pursuant to section 4, including section 4(a), of the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244).

References Cited

A complete list of references cited in this rule is available upon
request from the Pallid Sturgeon Recovery Coordinator (see FOR FURTHER
INFORMATION CONTACT section above).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

0
Accordingly, we hereby amend part 17, subchapter B of chapter I, title
50 of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Public Law 99-625, 100 Stat. 3500; unless otherwise
noted.

0
2. Amend Sec. 17.11(h) by adding an entry for ``Sturgeon,
shovelnose'', in alphabetical order under ``FISHES,'' to the List of
Endangered and Threatened Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Fishes

* * * * * * *
Sturgeon, shovelnose............. Scaphirhynchus U.S.A. (AL, AR, IA, Entire............. T (S/A) 778 N/A 17.44(aa)
platorynchus. IL, IN, KS, KY,
LA, MN, MO, MS,
MT, ND, NE, NM,
OH, OK, PA, SD,
TN, TX, WI, WV,
WY).

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. Amend Sec. 17.44 by adding a new paragraph (aa) to read as follows:

Sec. 17.44 Special rules--fishes.

* * * * *
(aa) Shovelnose sturgeon (Scaphirhynchus platorynchus).
(1) Within the geographic areas set forth in paragraph (aa)(2) of
this section, except as expressly noted in this paragraph, take of any
shovelnose sturgeon, shovelnose-pallid sturgeon hybrids, or their roe
associated with or related to a commercial fishing activity is
prohibited. Capture of shovelnose sturgeon or shovelnose-pallid
sturgeon hybrids in commercial fishing gear is not prohibited if it is
accidental or incidental to otherwise legal commercial fishing
activities, such as commercial fishing targeting nonsturgeon species,
provided the animal is released immediately upon discovery, with all
roe intact, at the point of capture.
(2) The shovelnose and shovelnose-pallid sturgeon hybrid
populations covered by this special rule occur in portions of Arkansas,
Iowa, Illinois, Kansas, Kentucky, Louisiana, Missouri, Mississippi,
Montana, North Dakota, Nebraska, South Dakota, and Tennessee. The
specific areas are:
(i) The portion of the Missouri River in Iowa, Kansas, Missouri,
Montana, North Dakota, Nebraska, and South Dakota;
(ii) The portion of the Mississippi River downstream from the
Melvin Price Locks and Dam (Lock and Dam 26) in Arkansas, Illinois,
Kentucky,

[[Page 53605]]

Louisiana, Missouri, Mississippi, and Tennessee;
(iii) The Platte River downstream of the Elkhorn River confluence
in Nebraska;
(iv) The portion of the Kansas River downstream from the Bowersock
Dam in Kansas;
(v) The Yellowstone River downstream of the Bighorn River
confluence in North Dakota and Montana; and
(vi) The Atchafalaya River in Louisiana.
(3) A map showing the area covered by this special rule (the area
of shared habitat between shovelnose and pallid sturgeon) follows:
BILLING CODE 4310-55-C
[GRAPHIC] [TIFF OMITTED] TR01SE10.000

[[Page 53606]]

Dated: August 25, 2010.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-21861 Filed 8-31-10; 8:45 am]
BILLING CODE 4310-55-P