[Federal Register: January 14, 2010 (Volume 75, Number 9)]
[Proposed Rules]               
[Page 2102-2104]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



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; Proposed Rule To 
List the Shovelnose Sturgeon as Threatened Due to Similarity of 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period and notice of public 


SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), 
announce the reopening of the comment period for our September 22, 
2009, proposed rule to treat the shovelnose sturgeon (Scaphirhynchus 
platorynchus) as threatened under the ``Similarity of Appearance'' 
provisions of the Endangered Species Act of 1973, as amended (Act). We 
also announce the location and time of a public hearing to receive 
public comments on the proposal. If you have previously submitted 
comments, please do not resubmit them because we have already

[[Page 2103]]

incorporated them in the public record and will fully consider them in 
our final decision.

DATES: During this reopened comment period, we will consider comments 
received or postmarked on or before February 4, 2010. We may not 
consider any comments we receive after the closing date. We will hold a 
public hearing on the proposed rule on January 28, 2010. For more 
information, see the ``Public Hearing'' section below.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R6-
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R6-ES-2009-0027; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
     At the public hearing. For more information, see the 
``Public Hearing'' section below.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Pallid Sturgeon Recovery Coordinator, 
Billings Field Office, 2900 4th Avenue North, Room 301, Billings, MT 
59101 (telephone 406/247-7365; facsimile 406/247-7364). 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.



    On September 22, 2009, we published a proposed rule (74 FR 48215) 
to treat the shovelnose sturgeon (Scaphirhynchus platorynchus) as 
threatened under the ``Similarity of Appearance'' provisions of the 
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 
seq.). The shovelnose sturgeon (Scaphirhynchus platorynchus) and the 
endangered pallid sturgeon (Scaphirhynchus albus) are difficult to 
differentiate in the wild and inhabit overlapping portions of the 
Missouri and Mississippi River basins. Four States where the two 
species commonly coexist allow for commercial fishing of shovelnose 
sturgeon, which is in demand for its roe (eggs sold as caviar). The 
close resemblance in appearance between the two species creates 
substantial difficulty for fishermen, State regulators, and law 
enforcement personnel in differentiating between shovelnose and pallid 
sturgeon, both whole specimens and parts (including flesh and roe). 
This similarity of appearance has resulted in the documented take of 
pallid sturgeon and is a threat to the species. The determination that 
the shovelnose sturgeon should be treated as threatened due to 
similarity of appearance will substantially facilitate law enforcement 
actions to protect and conserve pallid sturgeon.
    Listing the shovelnose sturgeon as threatened under the 
``similarity of appearance'' provisions of the Act will extend take 
prohibitions to shovelnose sturgeon, shovelnose-pallid sturgeon 
hybrids, or their roe when associated with a commercial fishing 
activity. All otherwise legal activities within the identified areas 
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 proposed regulation.
    Under the special 4(d) rule, take would only be prohibited where 
shovelnose and pallid sturgeons' range commonly overlap. Specifically, 
this includes the portion of the Missouri River in Iowa, Kansas, 
Missouri, Montana, Nebraska, North Dakota, and South Dakota; the 
portion of the Mississippi River in Arkansas, Illinois (downstream from 
Melvin Price Locks and Dam), Kentucky, Louisiana, Mississippi, Missouri 
(downstream from Melvin Price Locks and Dam), and Tennessee; the Platte 
River downstream of Elkhorn River confluence in Nebraska; the portion 
of the Kansas River downstream from Bowersock Dam in Kansas; the 
Yellowstone River downstream of the Bighorn River confluence in North 
Dakota and Montana; and the Atchafalaya River in Louisiana.
    The proposed 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, should the proposal become final, Federal agencies would not 
be required to consult with us on activities they authorize, fund, or 
carry out that may affect shovelnose sturgeon.
    Additional information on the pallid sturgeon and the proposal, 
including a copy of the Federal Register notice, can be found at: 

Public Comments

    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section. If you submit a comment via http://
www.regulations.gov, your entire comment--including your personal 
identifying information--will be posted on the Web site. If you submit 
a hardcopy comment that includes personal identifying information, you 
may request at the top of your document that we withhold this 
information from public review. However, we cannot guarantee that we 
will be able to do so. We will post all hardcopy comments on http://
    We will take into consideration all comments and any additional 
information we received during this reopened comment period on the 
proposed rule during the preparation of a final rulemaking. 
Accordingly, the final decision may differ from the proposal.

Public Hearing

    Section 4(b)(5)(E) of the Act requires that we hold one public 
hearing on the proposal, if requested. Our September 22, 2009 proposal 
required written requests for a public hearing to be submitted by 
November 6, 2009 (74 FR 48215). Prior to this deadline, we received 
several requests to hold or inform the public about informational 
meetings or public hearings.
    Accordingly, we have scheduled an informational meeting (a brief 
presentation about the proposed rule with a question-and-answer period) 
from 4:30 p.m. to 6 p.m., and a public hearing from 6:30 p.m. to 8:30 
p.m., on January 28, 2010, on the 3rd floor of the University Center, 
Southeast Missouri State University, One University Plaza, Cape 
Girardeau, MO 65307 (573-651-2282).
    Anyone wishing to make an oral statement at the public hearing for 
the record is encouraged to provide a written copy of their statement 
to us at the hearing. In the event there is a large attendance, the 
time allotted for oral statements may be limited. Speakers can sign up 
only at the informational meeting and hearing. Oral and written 
statements receive equal consideration. There are no limits on the 
length of written comments submitted to us. If you have any questions 
concerning the

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public hearing or need reasonable accommodations to attend and 
participate in the public hearing, please contact Jane Ledwin at (573) 
234-2132, extension 109, as soon as possible, but no later than 1 week 
before the hearing date, to allow sufficient time to process requests. 
Information regarding the proposal is available in alternative formats 
upon request.

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

    Dated: December 29, 2009.
Jane Lyder,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-565 Filed 1-13-10; 8:45 am]