Federal Register / Vol. 74, No. 182 / Tuesday, September 22, 2009 / Proposed Rules 48215 

governments,’’ with two exceptions. 

First, it excludes ‘‘a condition of federal 

assistance.’’ Second, it excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance; or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

Critical habitat designation does not 

impose a legally binding duty on nonFederal government entities or private 

parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. Designation of 

critical habitat may indirectly impact 

non-Federal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action. However, the legally binding 

duty to avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply, nor would 

critical habitat shift the costs of the large 

entitlement programs listed above on to 

State governments. 

(b) As discussed in the DEA of the 

proposed designation of critical habitat 

for the Oregon chub, we do not believe 

that this rule would significantly or 

uniquely affect small governments 

because it would not produce a Federal 

mandate of $100 million or greater in 

any year; that is, it is not a ‘‘significant 

regulatory action’’ under the Unfunded 

Mandates Reform Act. The DEA 

concludes that incremental impacts may 

occur due to project modifications that 

may need to be made for agricultural 

and development activities; however, 

these are not expected to affect small 

governments. Consequently, we do not 

believe that the critical habitat 

designation would significantly or 

uniquely affect small government 

entities. As such, a Small Government 

Agency Plan is not required. 

Executive Order 12630—Takings 

In accordance with E.O. 12630 

(‘‘Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights’’), we have analyzed the 

potential takings implications of 

proposing critical habitat for the Oregon 

chub in a takings implications 

assessment. Critical habitat designation 

does not affect landowner actions that 

do not require Federal funding or 

permits, nor does it preclude 

development of habitat conservation 

programs or issuance of incidental take 

permits to permit actions that do require 

Federal funding or permits. The 

proposed critical habitat for the Oregon 

chub does not pose significant takings 

implications for the above reasons. 

References Cited 

A complete list of all references we 

cited in the proposed rule and in this 

document is available on the Internet at 

http://www.regulations.gov or by 

contacting the Oregon Fish and Wildlife 

Office (see the FOR FURTHER INFORMATION

CONTACT section). 

Authors 

The primary authors of this 

rulemaking are the staff members of the 

Oregon Fish and Wildlife Office. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: August 24, 2009 

Will Shafroth 

Acting Assistant Secretary for Fish and 

Wildlife and Parks 

[FR Doc. E9–22801 Filed 9–21–09; 8:45 am] 

BILLING CODE 4310–55–S 

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; Proposed Rule To List the 

Shovelnose Sturgeon as Threatened 

Due to Similarity of Appearance 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service or USFWS), 

propose 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). 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. We also propose a special rule 

to define activities that would and 

would not constitute take of shovelnose 

sturgeon under section 9 of the Act. 

DATES: We will accept comments 

received or postmarked on or before 

November 23, 2009. We must receive 

requests for public hearings, in writing, 

at the address shown in FOR FURTHER

INFORMATION CONTACT by November 6, 

2009. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow instruction 

for submitting comments to Docket No. 

FWS–R6–ES–2009–0027. 

• 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. 

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, Montana 

59101 (telephone 406/247–7365; 

facsimile 406/247–7364). Persons who 


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48216 Federal Register / Vol. 74, No. 182 / Tuesday, September 22, 2009 / Proposed Rules 

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: 

Public Comments 

You may submit your comments and 

materials concerning this 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://www.regulations.gov. 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), and the 

Office of Management and Budget’s 

(OMB) Final Information Quality 

Bulletin for Peer Review, dated 

December 16, 2004, we will seek 

independent review of the science in 

this rule. The purpose of such review is 

to ensure that our final rule is based on 

scientifically sound data, assumptions, 

and analyses. We will send at least three 

peer reviewers copies of this proposed 

rule immediately following publication 

in the Federal Register. We will invite 

these peer reviewers to comment, 

during the public comment period, on 

the specific assumptions and 

conclusions regarding the proposed 

rule. 

We will take into consideration all 

comments, including peer review 

comments, and any additional 

information received during the 

comment period on this proposed rule 

during the preparation of a final 

rulemaking. Accordingly, the final 

decision may differ from this proposal. 

Public Hearings 

Section 4(b)(5)(E) of the Act requires 

that we hold one public hearing on this 

proposal, if requested. Requests must be 

received within 45 days of the date of 

publication of the proposal in the 

Federal Register (see DATES). Such 

requests must be made in writing and be 

addressed to the Pallid Sturgeon 

Recovery Coordinator at the address in 

FOR FURTHER INFORMATION CONTACT. 

Similarity of Appearance Listing 

Section 4(e) of the Endangered 

Species Act (Act) of 1973, as amended 

(16 U.S.C. 1531 et seq.) and 

implementing regulations (50 CFR 

17.50–17.52) authorize the treatment of 

a species as endangered or threatened 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 each of these 

factors apply. 

In 1990, we listed the pallid sturgeon 

(Scaphirhynchus albus) as endangered 

under the Act (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). Pallid sturgeon are a bottomoriented species found only in portions 

of the Missouri and Mississippi River 

basins (Kallemeyn 1983, p. 4). The 

species can be long-lived (40 + 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 

obtain sizes much larger than pallid 

sturgeon at the southern end of their 

range (USFWS 1993, p. 3). Known 

threats to the pallid sturgeon include 

habitat modification, small population 

size, limited natural reproduction, 

hybridization, pollution and 

contaminants, and commercial harvest 

(55 FR 36641, September 6, 1990; 

USFWS 2007, pp. 38–59). 

The shovelnose sturgeon 

(Scaphirhynchus platorynchus) is 

similar in appearance to the pallid 

sturgeon and inhabits overlapping 

portions of the Missouri and Mississippi 

River basins. Traditionally, biologists 

used character indices to distinguish 

between pallid and shovelnose 

sturgeon. This approach uses up to 13 

morphometric body measurements as 

well as meristic counts (i.e., the number 

of dorsal and anal fin rays) to 

differentiate between the two species. 

Since shovelnose sturgeon do not obtain 

maximum sizes as great as pallid 

sturgeon, it was assumed that adult 

shovelnose sturgeon could be 

distinguished from pallid sturgeon by 

their smaller size. However, throughout 

their ranges, there is length overlap 

between the two species. Thus size 

alone is not a suitable diagnostic 

character between the two species. Age 

of the individual also can complicate 

use of morphometrics in differentiation 

based on size (Kuhajda et al. 2007, pp. 

324, 344). Recent data show 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). 

We now believe a combination of 

character indices, based on 

morphometric measures and meristic 

counts, as well as genetic testing is 

necessary to reliably identify a whole 

specimen or its parts. While genetic 

tests can differentiate Scaphirhynchus 

eggs from those of other genera, at this 

time, roe cannot be reliably 

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 stem 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; USFWS 2007, pp. 45–48). 

Four States allow commercial harvest of 

shovelnose sturgeon from waters 

commonly occupied by pallid sturgeon 

(USFWS 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). In order 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. 

A recent study documented that 

commercial fishers misidentified 29 

percent of the encountered pallid 

sturgeon and that a minimum of 1.8 

percent of total sturgeon harvest in 

Tennessee was endangered pallid 

sturgeon (Bettoli et al. 2009, p. 3). 

Applying this minimum harvest 

estimate to the 2005–07 commercial 


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shovelnose fishing season within the 

Tennessee portion of the Mississippi 

River results in a minimum harvest 

estimate of 169 adult pallid sturgeon 

(Bettoli et al. 2009, p. 1). If this 

minimum estimate of pallid sturgeon 

take was applied across the four States 

that commercially harvest shovelnose 

sturgeon where the species commonly 

coexist, the data suggest a substantial 

level of pallid sturgeon take 

(approximately 3,000 kilograms (6,600 

pounds (lb)) of pallid sturgeon flesh and 

about 320 kilograms (700 lb) pallid 

sturgeon roe since 2000). 

Furthermore, demographic data 

indicate that total annual pallid 

sturgeon mortality rates are about three 

times higher where commercial harvest 

of shovelnose sturgeon occurs compared 

to areas without commercial harvest (30 

percent versus 7 to 11 percent) (Killgore 

et al. 2007, pp. 454–455). The same 

study found that 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, Colombo et 

al. (2007, p. 449) found similar 

mortality rates for the endangered pallid 

sturgeon and the harvested shovelnose 

sturgeon in the middle Mississippi 

River. This provides further evidence 

that illegal harvest of pallid sturgeon is 

occurring. Because female sturgeon do 

not begin egg development until ages 9 

to 12, may not spawn until ages 15 to 

20, and spawning may not occur 

annually (Keenlyne and Jenkins 1993, p. 

395), mortality associated with 

commercial fishing activity is likely 

substantially lowering recruitment and 

negatively impacting population 

growth. Such take is a threat that needs 

to be addressed in order to conserve the 

pallid sturgeon. 

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). 

TABLE 1—REPORTED COMMERCIAL HARVEST OF SHOVELNOSE STURGEON FLESH AND ROE IN POUNDS FROM 1995 TO

2007 FROM THE PORTIONS OF ILLINOIS, KENTUCKY, MISSOURI, AND TENNESSEE WHERE BOTH SHOVELNOSE STURGEON AND PALLID STURGEON COEXIST

[Scholten 2008a; Scholten 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 16 208 402 134 585 8,395 * * 

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 14,885 5,582 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 was extrapolated using length–weight relationships from total fish harvested. 

An asterisk (*) indicates no data reported or data otherwise unavailable. 

Much of the domestic sturgeon fishing 

pressure has been driven by 

international sturgeon supply and 

increasing price trends. Global sturgeon 

catch declined from the record peak of 

32,078 metric tons (70,719,884 lb) in 

1978 to 2,658 metric tons (5,859,886 lb) 

in 2000 (FAO Fisheries Circular 2004, 

executive summary). This reduction in 

supply resulted in exponential growth 

of caviar prices since 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 the current restrictions on 

import of beluga sturgeon (Huso huso) 

caviar into the United States (70 FR 

57316, September 30, 2005 and 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. 

Incidental and illegal harvest of pallid 

sturgeon is a significant impediment to 

the survival and recovery of this species 

in some portions of its range (USFWS 

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 

(USFWS 2007, p. 59). 

Treating the shovelnose sturgeon as a 

threatened species, due to similarity of 

appearance, will result in a termination 

of commercial harvest of shovelnose 

sturgeon and shovelnose-pallid sturgeon 

hybrids where they commonly coexist 

with pallid sturgeon, which, in turn, 

will facilitate the enforcement of take 


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protections for pallid sturgeon and 

drastically reduce or eliminate take of 

pallid sturgeon associated with 

commercial fishing 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, the Service is proposing to 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 

Whenever a species is listed as a 

threatened species under the Act, the 

Secretary may specify regulations that 

he deems necessary to provide for the 

conservation of that species under a 

special 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 proposed special rule 

for 17.44, which deals with fishes, 

would prohibit 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 endangered pallid sturgeon. In this 

context, commercial fishing purposes is 

defined as any activity where 

shovelnose sturgeon and shovelnosepallid sturgeon hybrid roe or flesh is, is 

attempted to be, or is intended to be 

traded, sold, or exchanged for goods or 

services. Capture of shovelnose sturgeon 

or shovelnose-pallid sturgeon hybrids in 

any 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 

proposed regulation. 

Effects of these Proposed Rules 

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. 

Capture of shovelnose sturgeon or 

shovelnose-pallid sturgeon hybrids in 

any 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 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 (USFWS 1993, pp. 

3–5, 16–17). 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, Kentucky, Illinois 

(downstream from Melvin Price Locks 

and Dam), Louisiana, Mississippi, 

Missouri (downstream from Melvin 

Price Locks and Dam), and Tennessee; 

the Platte River in Nebraska 

downstream of Elkhorn River 

confluence; the portion of the Kansas 

River downstream from Bowersock Dam 

in Kansas; the Yellowstone River in 

North Dakota and Montana downstream 

of the Bighorn River confluence; and the 

Atchafalaya River in Louisiana. See the 

map in the rule portion of this 

document. 

This 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 this 

proposal become final, Federal agencies 

will not be required to consult with us 

on activities they authorize, fund, or 

carry out that may affect shovelnose 

sturgeon. 

Clarity of This Proposed Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use clear language rather than 

jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

Paperwork Reduction Act 

Office of Management and Budget 

(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 

National Environmental Policy Act of 

1969 (NEPA), 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). The Service believes that 

this rationale also applies to section 4(d) 

rules. 

References Cited 

A complete list of references cited in 

this rule is available upon request from 

the Pallid Sturgeon Recovery 


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Federal Register / Vol. 74, No. 182 / Tuesday, September 22, 2009 / Proposed Rules 48219 

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. 

Proposed Regulation Promulgation 

Accordingly, we hereby propose to 

amend part 17, subchapter B of chapter 

I, title 50 of the Code of Federal 

Regulations, as follows: 

PART 17—[AMENDED] 

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. 

2. Amend § 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: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate population where endangered or threatened 

Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

FISHES

* * * * * * * 

Sturgeon, 

shovelnose.

Scaphirhynchus 

platorynchus.

U.S.A. (AL, AR, IA, 

IL, IN, KS, KY, 

LA, MN, MO, MS, 

MT, ND, NE, NM, 

OH, OK, PA, SD, 

TN, TX, WI, WV, 

WY).

Entire ...................... T (S/A) .................... N/A 17.44(aa) 

* * * * * * * 

3. Amend § 17.44 by adding a new 

paragraph (aa) to read as follows: 

§ 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 any 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 shovelnosepallid sturgeon hybrid populations 

covered by this special rule occur in 

portions of AR, IA, IL, KS, KY, LA, MO, 

MS, MT, ND, NE, SD, and TN. The 

specific areas are: (1) The portion of the 

Missouri River in IA, KS, MO, MT, ND, 

NE, and SD; (2) the portion of the 

Mississippi River downstream from the 

Melvin Price Locks and Dam in AR, IL, 

KY, LA, MO, MS, and TN; (3) the Platte 

River downstream of the Elkhorn River 

confluence in NE; (4) the portion of the 

Kansas River downstream from the 

Bowersock Dam in KS; (5) the 

Yellowstone River downstream of the 

Bighorn River confluence in ND and 

MT; and (6) the Atchafalaya River in 

LA. 

(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–P 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
48220 Federal Register / Vol. 74, No. 182 / Tuesday, September 22, 2009 / Proposed Rules 

Dated: September 1, 2009. 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. E9–22541 Filed 9–21–09; 8:45 am] 

BILLING CODE 4310–55–C 


erowe on DSK5CLS3C1PROD with PROPOSALS-1EP22SE09.005</GPH>