30714 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 

PART 1180–RAILROAD ACQUISITION, 

CONTROL, MERGER, 

CONSOLIDATION PROJECT, 

TRACKAGE RIGHTS, AND LEASE 

PROCEDURES 

■ 8. The authority citation for part 1180 

continues to read as follows: 

Authority: 5 U.S.C. 553 and 559; 11 U.S.C. 

1172; 49 U.S.C. 721, 10502, 11323–11325. 

■ 9. Revise § 1180.4(g)(2)(i) and (g)(2)(ii) 

to read as follows: 

§ 1180.4 Procedures. 

* * * * * 

(g) * * * 

* * * * * 

(2)(i) To qualify for an exemption 

under § 1180.2(d)(7) (acquisition or 

renewal of trackage rights agreements), 

in addition to the notice, the railroad 

must file a caption summary suitable for 

publication in the Federal Register. The 

caption summary must be in the 

following form: 

Surface Transportation Board 

Notice of Exemption 

Finance Docket No. 

(1)—Trackage Rights—(2) 

(2) (3) to grant (4) trackage rights to (1) 

between (5). The trackage rights will be 

effective on (6). 

This notice is filed under § 1180.2(d)(7). 

Petitions to revoke the exemption under 49 

U.S.C. 10502(d) may be filed at any time. The 

filing of a petition to revoke will not stay the 

transaction. 

Dated: 

By the Board. 

[Insert name], 

Director, Office of Proceedings. 

The following key identifies the 

information symbolized in the summary. 

(1) Name of the tenant railroad. 

(2) Name of the landlord railroad. 

(3) If an agreement has been entered use 

‘‘has agreed’’, but if an agreement has been 

reached but not entered use ‘‘will agree.’’ 

(4) Indicate whether ‘‘overhead’’ or ‘‘local’’ 

trackage rights are involved. 

(5) Describe the trackage rights. 

(6) State the date the trackage rights 

agreement is proposed to be consummated. 

(ii) To qualify for an exemption under 

§ 1180.2(d)(8) (acquisition of temporary 

trackage rights), in addition to the 

notice, the railroad must file a caption 

summary suitable for publication in the 

Federal Register. The caption summary 

must be in the following form: 

Surface Transportation Board 

Notice of Exemption 

STB Finance Docket No. 

(1)—Temporary Trackage Rights—(2) 

(2) (3) to grant overhead temporary 

trackage rights to (1) between (4). The 

temporary trackage rights will be effective on 

(5). The authorization will expire on (6). 

This notice is filed under § 1180.2(d)(8). 

Petitions to revoke the exemption under 49 

U.S.C. 10502(d) may be filed at any time. The 

filing of a petition to revoke will not stay the 

transaction. 

Dated: 

By the Board. 

[Insert name] 

Director, Office of Proceedings. 

The following key identifies the 

information symbolized in the summary. 

(1) Name of the tenant railroad. 

(2) Name of the landlord railroad. 

(3) If an agreement has been entered use 

‘‘has agreed,’’ but if an agreement has been 

reached but not entered use ‘‘will agree.’’ 

(4) Describe the temporary trackage rights. 

(5) State the date the temporary trackage 

rights agreement is proposed to be 

consummated. 

(6) State the date the authorization will 

expire (not to exceed 1 year from the date the 

trackage rights will become effective). 

[FR Doc. 2010–13130 Filed 6–1–10; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 223 

[Docket No. 070910507–0037–02] 

RIN 0648–AV94 

Endangered and Threatened Wildlife 

and Plants: Final Rulemaking To 

Establish Take Prohibitions for the 

Threatened Southern Distinct 

Population Segment of North American 

Green Sturgeon 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule and notice of 

availability of a final environmental 

assessment. 

SUMMARY: This final ESA section 4(d) 

rule represents the regulations that we, 

the National Marine Fisheries Service 

(NMFS), believe necessary and 

advisable to conserve the threatened 

Southern Distinct Population Segment 

of North American green sturgeon 

(Acipenser medirostris; hereafter 

Southern DPS). We apply the 

prohibitions listed under ESA section 9 

for the Southern DPS, and we highlight 

specific categories of activities that are 

likely to result in take of Southern DPS 

fish. We do not find it necessary and 

advisable to apply the take prohibitions 

to certain categories of activities that 

contribute to conserving the Southern 

DPS. We also provide a variety of 

methods by which take of the Southern 

DPS may be authorized. This document 

also announces the availability of a final 

draft environmental assessment (EA) 

that analyzes the environmental impacts 

of promulgating the 4(d) regulations for 

the Southern DPS. 

DATES: The effective date of this final 

rule is July 2, 2010. 

ADDRESSES: Reference materials 

regarding this final rule can be obtained 

via the Internet at http:// 

www.swr.nmfs.noaa.gov or by 

submitting a request to the Assistant 

Regional Administrator, Protected 

Resources Division, Southwest Region, 

NMFS, 501 West Ocean Blvd., Suite 

4200, Long Beach, CA 90802–4213. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Neuman, NMFS, Southwest 

Region (562) 980–4115, or Lisa 

Manning, NMFS, Office of Protected 

Resources (301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

We determined that the Southern DPS 

is at risk of extinction in the foreseeable 

future throughout all or a significant 

portion of its range and listed the 

species as threatened under the ESA on 

April 7, 2006 (71 FR 17757). At that 

time we summarized the process for 

considering the application of ESA 

section 9 prohibitions to the threatened 

Southern DPS. In the case of threatened 

species, ESA section 4(d) states that the 

Secretary shall decide whether, and to 

what extent, to extend the ESA section 

9(a) prohibitions, including those 

regarding take of the species, and 

authorizes us to issue regulations we 

consider necessary and advisable for the 

conservation of the species. Such 

regulations may include any or all of the 

prohibitions that automatically apply to 

endangered species. Those prohibitions, 

in part, make it illegal for any person 

subject to the jurisdiction of the United 

States to take the listed species. The 

term ‘‘take’’ means 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 as 

any act which actually kills or injures 

fish or wildlife. Such an act may 

include significant habitat modification 

or degradation which actually kills or 

injures fish or wildlife by significantly 

impairing essential behavioral patterns, 

including breeding, spawning, rearing, 

migrating, feeding, or sheltering. (50 

CFR 222.102). 

Whether take prohibitions or other 

protective regulations are necessary or 

advisable is in large part dependent on 

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the biological status of the species and 

potential impacts of various activities 

on the species. Green sturgeon have 

persisted for millions of years through 

cycles of naturally occurring 

perturbations that have likely presented 

short- and long-term challenges to the 

species’ survival. We conclude that the 

threatened Southern DPS of North 

American green sturgeon is currently at 

risk of extinction primarily because of 

human-induced ‘‘takes’’ involving 

elimination of freshwater spawning 

habitat, degradation of freshwater and 

estuarine habitat quality, water 

diversions, fishing, and other causes. 

Therefore, we conclude that extending 

the take prohibitions to the Southern 

DPS is necessary and advisable. 

When the final rule to list the 

Southern DPS was published on April 7, 

2006, we solicited the public for 

information that would inform the ESA 

section 4(d) rulemaking. Specific 

information requested can be found in 

the final rule (71 FR 17757; April 7, 

2006). No substantive additional 

comments, beyond those that had been 

received during prior solicitations for 

information, were received. 

Public scoping workshops held on 

May 31 and June 1, 2006, helped 

advance our understanding of the 

threats that are likely to result in the 

take of Southern DPS fish. In cases 

where evidence of direct take due to a 

particular activity was lacking, activities 

that have caused take of species that use 

similar habitats (i.e., migratory, 

spawning, and rearing), consume 

similar prey types, have similar 

morphologies and/or physiologies, and/ 

or share other life history requirements 

(e.g., white sturgeon (Acipenser 

transmontanus) and Chinook salmon 

(Oncorhynchus tshawytscha)) were 

identified and considered for their 

effects on Southern DPS fish. More 

detailed justification regarding the use 

of take information for surrogate species 

(i.e., one that shares a similar life history 

or habitat requirements) to infer the take 

potential of an activity on the Southern 

DPS fish is provided in previous 

Federal Register notices (70 FR 17386, 

April 6, 2005; 71 FR 17757, April 7, 

2006). 

On May 21, 2009, we proposed 

protective regulations under section 4(d) 

of the ESA to extend the prohibitions 

listed under ESA sections 9(a)(1)(A) 

through 9(a)(1)(G) for the threatened 

Southern DPS, but included certain 

exceptions and exemptions from the 

take prohibitions for activities that we 

have determined to be adequately 

protective of the Southern DPS (74 FR 

23822). 

Summary of Comments and 

Information Received in Response to 

the Proposed Rule and Draft 

Environmental Assessment 

The public comment period for the 

proposed rule and draft Environmental 

Assessment (EA) was open from May 

21, 2009, through July 6, 2009. During 

the comment period, NMFS received 7 

written comments on the proposed rule 

and draft EA from various agencies, 

non-governmental organizations, and 

individuals. A summary of the 

comments and NMFS’ responses to 

those comments are presented here. 

Comments and Responses 

Comment 1: One commenter 

requested clarification in the draft EA 

regarding the exception for emergency 

fish rescue activities under Alternative 

B. Specifically, the commenter was 

unclear what 4(d) programs were 

referred to in the sentence stating that 

‘‘[p]roject-related activities * * * would 

not be considered an emergency fish 

rescue activity and would be subject to 

review under ESA section 7 or 10, or 

under another 4(d) program.’’ 

Response: We corrected the sentence 

in the final EA to read ‘‘Project-related 

activities * * * would not be 

considered an emergency fish rescue 

activity and would be subject to review 

under ESA section 7 or 10.’’ We 

removed the phrase ‘‘or under another 

4(d) program’’ because the ESA 4(d) 

Rule does not include a 4(d) program to 

cover such project-related activities. 

Comment 2: One commenter stated 

that the draft EA needs to describe the 

specific categories of activities to which 

the take prohibitions would be applied 

under Alternative C. 

Response: The final EA was revised to 

clarify that under Alternative C, the take 

prohibitions would apply to the same 

specific categories of activities and in 

the same areas as described under 

Alternative A. Those categories of 

activities are: Commercial, recreational, 

and tribal fisheries; collecting or 

handling Southern DPS fish for any 

purpose; habitat-altering activities 

affecting passage or spawning and 

rearing habitat in the Central Valley, 

California; operation of water diversion, 

dredging, and power plant activities 

resulting in entrainment or 

impingement of Southern DPS fish; 

application or discharge of pollutants 

adjacent to or within waterways 

occupied by Southern DPS fish; and 

introduction or release of non-native 

species adjacent to or within waterways 

occupied by Southern DPS fish. 

Comment 3: One commenter felt that 

the proposed rule listed dredging as a 

threat to only juvenile green sturgeon 

and wanted NMFS to acknowledge that 

adult Southern DPS fish have the 

potential to be found in dredging areas 

outside the Central Valley, San 

Francisco Bay, Suisun Bay and San 

Pablo Bay. 

Response: The final rule was revised 

to acknowledge that dredging is a 

potential threat to adult green sturgeon. 

Dredging occurs in the following areas 

where adults also occur: The Lower 

Sacramento River, Sacramento-San 

Joaquin Delta, Elkhorn Slough, Suisun 

Bay, San Pablo Bay, San Francisco Bay, 

Noyo Harbor, and Humboldt Bay in 

California; Coos Bay, Yaquina Bay, 

Tillamook Bay, and Nehalem Bay in 

Oregon; the Lower Columbia River 

Estuary, the Lower Columbia River, 

Willapa Bay, Grays Harbor, and Puget 

Sound in Washington; and coastal U.S. 

marine waters (74 FR 52300, October 9, 

2009). Although adults occur in areas 

where dredging takes place, we don’t 

have any direct evidence of the effect 

that dredging has on adult green 

sturgeon. 

Comment 4: One commenter asked 

why the draft EA specifically excludes 

the Channel Islands from the list of 

areas known to be occupied by Southern 

DPS green sturgeon, noting that this 

exclusion was not mentioned in the 

proposed critical habitat designation for 

the species (73 FR 52084, September 8, 

2008). 

Response: At this time we do not have 

any data showing that Southern DPS 

green sturgeon occur in waters around 

the California Channel Islands and we 

specifically noted this in the description 

of occupied areas in the draft EA. 

However, the protections under the ESA 

4(d) rule would apply to Southern DPS 

green sturgeon wherever they are found. 

Thus, if a Southern DPS green sturgeon 

occurred in the waters around the 

Channel Islands, the take prohibitions 

under the ESA 4(d) rule would apply to 

that fish. Because of similarity of 

appearance, any green sturgeon 

occurring in the marine environment 

(including estuaries in Washington, 

Oregon, and Humboldt Bay) would be 

considered the listed species as they 

cannot be identified as belonging to a 

particular DPS unless genetic samples 

are taken and analyzed. The final EA 

was revised to include a statement 

clarifying this. 

Comment 5: Two commenters felt that 

the five alternative approaches need to 

be described in greater detail and that 

the geographic limitations and 

distinctions of the proposed rule and 

alternatives are not clearly laid out. 

Further clarification was requested. 

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Response: The final EA was revised to 

more clearly describe the geographic 

limitations and distinctions between the 

various alternatives considered. 

Comment 6: One commenter 

recommended that NMFS consult with 

the Pacific Fishery Management Council 

(PFMC) as early in the process as 

possible concerning the effects of the 

ESA 4(d) Rule on fisheries managed 

under the PFMC. 

Response: NMFS is currently working 

with the PFMC regarding the potential 

effects of the West Coast groundfish 

bottom trawl fishery on the listed 

Southern DPS of green sturgeon and its 

designated critical habitat. 

Comment 7: One commenter stated 

that the San Francisco Bay is not used 

as habitat for green sturgeon and that 

regulating take and requiring 

consultation on activities that are not 

limiting the recovery of the Southern 

DPS diverts staff resources from other 

permitting actions that would have 

positive effects. 

Response: The best available data for 

the San Francisco Bay indicate that 

green sturgeon are present in both 

Central and South San Francisco Bay, 

albeit in low numbers compared to 

other parts of the San Francisco Bay/ 

Delta Region. The survey methods and 

sampling gear used in studies within 

San Francisco Bay were not designed to 

target green sturgeon, and thus the data 

may not be truly representative of the 

relative levels of green sturgeon use 

among the bays and the Delta. For 

example, given that all green sturgeon 

must pass through Central San 

Francisco Bay in their migrations to and 

from the ocean, it is expected that larger 

numbers of green sturgeon are using this 

area at certain times of the year. In 

addition, the catch data do not provide 

information about the distribution of 

juvenile green sturgeon throughout the 

bays and the Delta. Based on the best 

available information, juvenile green 

sturgeon are believed to distribute 

widely throughout the bays and Delta 

for feeding and rearing and be present 

in all months of the year. Detailed 

fishery-dependent data for the San 

Francisco Bay is provided in the final 

critical habitat designation (74 FR 

52300, October 9, 2009). 

Comment 8: One commenter strongly 

supports the 4(d) rule and provided the 

information that green sturgeon are 

vulnerable to selenium toxicity from 

feeding on the overbite clam. The 

commenter stated that selenium toxicity 

can cause reproductive failure and the 

threat of reduced recruitment through 

selenium toxicity puts additional stress 

on the Southern DPS population. 

Response: NMFS appreciates the 

information provided regarding green 

sturgeon vulnerability to selenium 

toxicity. Recent studies have shown that 

green sturgeon are more sensitive to 

selenium than white sturgeon and 

continued monitoring of selenium levels 

in sediments and research on the 

sensitivity of green sturgeon to this and 

other contaminants would be supported 

(Kaufman et al., 2008). 

Comment 9: One commenter felt that 

including marine coastal waters as green 

sturgeon critical habitat is unjustified as 

there is no reliable data on the take of 

the Southern DPS in coastal waters. 

Response: Comments pertaining to 

critical habitat were addressed in the 

final critical habitat designation for 

green sturgeon (74 FR 52300, October 9, 

2009). Activities that occur in coastal 

marine waters that may cause take of 

green sturgeon include bottom trawling, 

disposal of dredged material, 

hydrokinetic projects and pollution 

from commercial shipping. 

Comment 10: One commenter stated 

that sand mining operations in San 

Francisco and Suisun Bays are highly 

regulated and there is very little 

evidence that sand mining in the San 

Francisco Bay-Delta Estuary negatively 

impacts green sturgeon or their habitat. 

The commenter requested that 

additional exceptions be included for 

activities such as sand mining that pose 

a low risk of take. 

Response: In 2006, NMFS completed 

formal consultation with the U.S. Corps 

of Engineers under section 7 of the ESA 

for sand mining activities in the San 

Francisco and Suisun Bay region. The 

resulting biological opinion concluded 

that sand mining activities were not 

likely to jeopardize threatened green 

sturgeon (NMFS, 2006). An Incidental 

Take Statement (that remains 

discretionary until a 4(d) rule has been 

promulgated) was included with the 

biological opinion that provides 

protection to the sand miners for the 

entrainment of one green sturgeon per 

year for each of the three sand mining 

companies operating in the region at the 

time the biological opinion was written. 

Comment 11: One commenter stated 

that we do not have data to differentiate 

between Northern DPS and Southern 

DPS green sturgeon in fisheries bycatch, 

but we require a Fisheries Management 

and Evaluation Plan (FMEP) to include 

measures specifically to protect 

Southern DPS green sturgeon. 

Response: Acknowledging the fact 

that we cannot tell the difference 

between NDPS and SDPS fish due to 

similarity of appearance, the FMEPs 

must address green sturgeon and do not 

require that the DPS be determined. 

Comment 12: One commenter stated 

that the green sturgeon fishery was 

mismanaged and that more care should 

have been taken to prevent the fishery 

from becoming overfished. 

Response: NMFS acknowledges that a 

lack of monitoring and directed 

management of the green sturgeon has 

likely contributed to its current 

threatened status. However, since the 

listing, academic institutions, the states, 

NMFS and the tribes have been 

conducting more comprehensive studies 

that focus on green sturgeon in an effort 

to better understand its biology, status 

and recovery needs. It is our hope that 

finalizing this 4(d) rule and enforcing 

the take prohibitions will further the 

conservation of the species and aid in 

its recovery. 

Comment 13: One commenter 

provided the information that there is a 

new surge in the green sturgeon 

population in Yaquina Bay, and feels 

that listing green sturgeon as threatened 

in this area is inaccurate and 

unfounded. 

Response: NMFS appreciates the 

information provided regarding 

observations of green sturgeon in 

Yaquina Bay and agrees that additional 

studies are needed to better understand 

the use of coastal estuaries (including 

Yaquina Bay) and coastal marine waters 

by both DPSs of green sturgeon. 

Southern DPS presence in Yaquina Bay 

was confirmed in 2006 by the detection 

of one tagged Southern DPS green 

sturgeon (pers. comm. with Dan 

Erickson, ODFW, September 3, 2008). 

The Southern DPS was listed based on 

several threats, including the 

concentration of spawning to one river. 

Each Southern DPS green sturgeon 

carries the listing with it wherever it 

goes as the listing is not limited by 

geographic area. We acknowledge the 

commenter’s observations suggesting 

that the number of green sturgeon using 

Yaquina Bay has increased. While this 

news is promising: (1) We recognize that 

green sturgeon may experience sporadic 

recruitment success depending on many 

factors that are not well understood; and 

(2) this uncertainty coupled with a lack 

of population abundance estimates and 

a limited understanding of population 

structure has led us to adopt regulations 

necessary and advisable for the 

conservation of the Southern DPS. We 

will conduct periodic status reviews of 

both DPSs and as more information 

becomes available we will revise our 

regulations if necessary. 

Comment 14: One commenter felt that 

the requirement that research or 

monitoring that involves action, 

permitting or funding by a Federal 

agency must still comply with the 

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Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 30717 

requirements of ESA section 7(a)(2) 

negates the exception from the take 

prohibitions for all researchers and 

stated that Federal employees who can 

fulfill all other requirements cannot use 

this exception. If non-Federal studies do 

not need to be analyzed in order to 

ensure that they would not jeopardize 

the species, then it seems 

counterintuitive that Federal studies 

with the same requirements would 

create jeopardy. The commenter also felt 

that the requirement that the activity 

must comply with required state 

reviews or permits negates the 

exception because as part of the 

application process, state permits 

require a copy of the authorization from 

NMFS when working with species listed 

under the ESA. 

Response: Under the 4(d) Rule, we 

can exempt a non-Federal entity from 

the take prohibitions, but cannot exempt 

Federal agencies from the jeopardy 

standard under section 7 of the ESA. 

Compliance with section 7(a)(2) of the 

ESA would be required, but the 

consultation would be limited to an 

analysis of whether the activity may 

jeopardize the continued existence of 

the species or destroy or adversely 

modify critical habitat, and would not 

involve an assessment of take. Section 7 

of the ESA does not apply to nonFederal entities. Although Federal 

employees are still subject to the section 

7 jeopardy standard, under the 

exception they would not be required to 

obtain an ESA section 10(a)(1)(A) permit 

for their research/monitoring activities 

if conducted according to the exception 

criteria. The Federal biologists carrying 

out research activities would need to 

obtain state permits regardless of 

whether Federal take prohibitions are in 

place or not. The exception simplifies 

the NMFS review and approval process 

for research activities and relies on the 

state review and permits to minimize 

impacts related to the research 

activities. In the state application, 

applicants will need to identify that 

their activities meet the exception 

criteria and will need to indicate that 

they have submitted the information to 

NMFS or indicate that NMFS has 

confirmed that their activities meet the 

exception criteria. 

Comment 15: One commenter felt that 

NMFS has not taken into account the 

extent of the existing regulatory 

programs and improvement to the 

health of the San Francisco Bay-Delta 

ecosystem that has taken place over the 

last 30 years and stated that certain 

activities are already regulated under 

other Federal, state and local programs 

that directly govern activities that 

NMFS stated could result in the take of 

green sturgeon. The commenter 

recommended that NMFS provide 

exceptions from the take prohibitions 

for navigation channel and harbor 

berths dredging, dredged material 

placement, mineral extraction and 

maintenance and installation of in-water 

and shoreline structures. The 

commenter also recommended that 

exceptions for the small business 

category of construction activities be 

considered. 

Response: NMFS acknowledges that 

many of the activities that may cause 

take of green sturgeon are already 

regulated by existing Federal, state and 

local laws and regulations, and 

appreciates any efforts that have been 

made to protect and improve habitats 

where green sturgeon reside. However, 

these laws, regulations, and programs 

may not specifically address green 

sturgeon and may not be as protective 

of green sturgeon as the 4(d) Rule. For 

example, there is a 50-year dredging 

program in the San Francisco Bay region 

that currently has not implemented 

measures that would specifically protect 

green sturgeon. Construction activities 

conducted by small businesses may also 

not include measures that would be 

adequately protective of green sturgeon. 

However, any protections already 

afforded to green sturgeon through 

existing programs would be considered 

in NMFS’ analyses under section 7 or 

section 10 of the ESA. 

Comment 16: One commenter 

requested that a public hearing be held 

in coastal Oregon prior to publishing the 

final rule. 

Response: A workshop to discuss the 

ESA 4(d) rule prohibitions and 

exceptions/exemptions with state 

fishery management agencies, NMFS, 

and representatives from the fishing 

industry was held in Newport, Oregon 

on March 15, 2010. 

Comment 17: One commenter 

requested clarification on the 

Protection/Conservation Measures or 

Benefits under Table 1, as emergency 

rescue and habitat restoration indicates 

that there are no benefits provided to 

green sturgeon in these activities. 

Response: The Note section under 

Table 1 was clarified to state that the 

‘‘Protective/conservation measures or 

benefits’’ column refers to whether the 

activity, as it is currently conducted, 

includes protections or benefits to green 

sturgeon. Emergency rescue activities 

and habitat restoration activities that are 

not conducted according to the criteria 

under the exceptions do not provide 

benefits to green sturgeon and are 

therefore not covered under the 

exceptions. If these activities may cause 

take of green sturgeon, that take must be 

covered under section 7 or 10 of the 

ESA, or come under compliance with 

the exceptions criteria. 

Comment 18: One commenter 

requested clarification in the draft EA 

regarding which states’ recreational 

fishing regulations, prior to 2006, did 

not differentiate between white sturgeon 

and green sturgeon. 

Response: The final EA was revised to 

clarify that, prior to 2006, state 

recreational fishing regulations in 

Washington, Oregon, and California did 

not differentiate between white sturgeon 

and green sturgeon. 

Comment 19: One commenter 

suggested updating the 2005 reference 

for the Environmental Water Account 

because the program expired in 2007 

and a revised program is currently in 

place with adjusted water amounts to 

augment instream flows. 

Response: The final EA was updated 

to remove the outdated reference for the 

Environmental Water Account. 

Spatial Context for ESA 4(d) Rule 

Application 

As described in a Federal Register 

notice (68 FR 4433) published on 

January 23, 2003, we determined that 

based on genetic and behavioral 

information, North American green 

sturgeon is comprised of at least two 

DPSs that qualify as species under the 

ESA: (1) A northern DPS consisting of 

populations originating from coastal 

watersheds northward of and including 

the Eel River (‘‘Northern DPS’’); and (2) 

a southern DPS consisting of 

populations originating from coastal 

watersheds south of the Eel River 

(‘‘Southern DPS’’) and the Central Valley 

of California. These geographic 

boundaries were largely defined by 

genetic evidence indicating that, among 

samples from rivers where green 

sturgeon are known to spawn (i.e., the 

Rogue, Klamath, and Sacramento 

rivers), the Rogue and Klamath River 

fish were more similar to one another 

than to the Sacramento River fish (Israel 

et al., 2004). Although the Southern DPS 

boundaries are defined by the species’ 

genetic structure and its likely strong 

homing capabilities and spawning site 

fidelity, the spatial extent of the ESA 

listing and take prohibitions for the 

Southern DPS is not confined to areas 

south of the Eel River. Detailed 

information on occurrences of the 

Southern DPS green sturgeon is 

provided in the proposed 4(d) rule (74 

FR 23822, May 21, 2009). 

Sections 10(a)(1)(A) and 10(a)(1)(B) 

provide exceptions to the section 9 take 

prohibitions. NMFS can authorize 

research and enhancement through 

section 10(a)(1)(A) permits and 

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30718 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 

incidental take through section 

10(a)(1)B) permits. While this rule 

applies the section 9 take prohibitions 

to any activity that takes the Southern 

DPS, we wanted to determine which 

activities would most likely impede 

efforts necessary to conserve and 

recover the Southern DPS. To do this, 

we considered the following questions: 

(1) For which activities do we have 

evidence of take of Southern DPS fish; 

(2) for those activities where evidence of 

Southern DPS take does not exist, is 

there evidence of take of surrogate 

species that share similar biological 

requirements with Southern DPS fish; 

(3) are protective/conservation measures 

underway to reduce or minimize take 

imposed by some activities; and (4) are 

there additional protective/conservation 

measures that, if taken, would reduce 

take to low enough levels such that 

particular activities could proceed 

without appreciably reducing the 

likelihood of survival and recovery of 

the Southern DPS? 

Commercial and Recreational Fisheries 

Activities 

Take of Southern DPS fish occurs 

during commercial and recreational 

fishing activities throughout the range of 

North American green sturgeon. 

However, quantifying fishery-related 

take reliably and assessing its effects is 

challenging because: (1) Northern and 

Southern DPS fish are morphologically 

indistinguishable from one another and 

when green sturgeon have been taken, 

they have rarely been identified to the 

DPS level; (2) until recently some 

fisheries did not report green sturgeon 

take; and (3) in cases where data on take 

of green sturgeon is available, methods 

for estimating the total annual take by 

a fishery are still being developed. The 

two DPSs co-inhabit some coastal areas 

and bays in Northern California, 

Oregon, and Washington, and the 

proportion of Southern DPS fish 

contributing to overall populations in 

these areas may be high (e.g., 80 percent 

in the Columbia River; J. Israel, UC 

Davis, 2008, unpublished data). Thus, 

while we know that fisheries-related 

take is occurring, we are uncertain how 

this take is apportioned between the two 

DPSs, different locales, and different 

types of fisheries. 

Green sturgeon are taken as bycatch in 

white sturgeon fisheries, salmon gillnet 

fisheries, coastal groundfish trawl 

fisheries, and coastal California halibut 

set net fisheries (Adams et al., 2006; R. 

Rasmussen, NMFS, 2006, unpublished 

data; J. Ferdinand et al., NMFS, 2006, 

unpublished data). These fisheries have 

taken large numbers of green sturgeon 

historically and have been cited as 

factors in the decline of the species (70 

FR 17386, April 6, 2005; 71 FR 17757, 

April 7, 2006). For example, from 1985 

to 1993, the harvest of green sturgeon in 

commercial fisheries in the Columbia 

River and in Washington ranged from 

3,000 to over 7,500 fish per year. Sport 

fishing harvest during the same period 

ranged from less than 100 to over 500 

fish, with the majority harvested from 

the Columbia River. Since 1993, 

commercial and sport harvest of green 

sturgeon has declined in the Columbia 

River and Washington fisheries to about 

150 fish harvested in 2003 (Adams et al. 

2006). 

State recreational and commercial 

fishing regulations have been revised in 

response to evidence of recent sturgeon 

declines and to the listing of the 

Southern DPS. In California, the 

California Fish and Game Commission 

approved revised regulations, effective 

March 1, 2007, to prohibit retention of 

green sturgeon, alter the slot (size) limit 

(142 cm) and bag limit (one individual 

daily; 3 individuals annually) for white 

sturgeon, and require implementation of 

a sturgeon report card system. Recently, 

the California Fish and Game 

Commission approved revised 

regulations, effective March 1, 2010, 

that prohibit all sturgeon fishing in the 

upper Sacramento River where southern 

DPS green sturgeon spawn. The 

Washington Fish and Wildlife 

Commission adopted a permanent rule 

to prohibit retention of green sturgeon 

in recreational fisheries statewide 

effective May 1, 2007. In addition, the 

Washington Department of Fish and 

Wildlife and Oregon Department of Fish 

and Wildlife voted to prohibit the 

retention of green sturgeon in Columbia 

River recreational fisheries from 

Bonneville Dam to the mouth of the 

river, effective January 1, 2007. For 

commercial fisheries, the retention of 

green sturgeon has been prohibited in 

the Columbia River by emergency rule 

since July 2006 and statewide in 

Washington by permanent rule since 

January 26, 2007. The Oregon Fish and 

Wildlife Commission voted to prohibit 

the retention of green sturgeon in 

commercial nearshore fisheries, 

effective January 1, 2010, and is 

prohibiting the retention of green 

sturgeon in recreational fisheries 

statewide, effective April 1, 2010. The 

State of California has prohibited 

commercial fishing for sturgeon since 

1917. While these emergency and 

permanent rules offer Southern DPS fish 

protection, it is unclear whether the 

state closures will remain in effect over 

the long-term and ultimately what 

overall effect the closures will have on 

the Southern DPS. 

Commercial groundfish trawl fisheries 

occurring in coastal waters along the 

West Coast of North America take green 

sturgeon. Fish are primarily caught as 

bycatch off the coast of California. Over 

a 6-year period, from 2001–2007, 450 

green sturgeon were reported as bycatch in trawls off the California coast. 

Almost all green sturgeon caught in this 

fishery are released alive (J. Majewski, 

NMFS, 2006, unpublished data), but the 

long-term fate of these individuals 

remains unknown. A program for 

monitoring green sturgeon take was 

established with the NMFS Observer 

Program in January 2007 to determine 

the amount of take, the DPS of the green 

sturgeon that are caught (through 

genetic analysis), and in the future to 

address the long-term fate of these 

individuals through tagging. Additional 

measures that may be implemented to 

protect green sturgeon and the Southern 

DPS include zero retention of green 

sturgeon in all fisheries, minimizing 

incidental catch, monitoring of 

incidental catch, increased enforcement, 

fisheries closures in areas important to 

the species, and outreach and education 

on proper catch and release methods 

and green sturgeon conservation issues. 

Tribal Fisheries 

Green sturgeon are taken as bycatch in 

tribal salmon and sturgeon fisheries 

conducted by the Quinault Tribe in 

coastal Washington waters. Tribal 

harvest of green sturgeon occurs in 

Grays Harbor and at the mouth of 

tributaries, primarily the Chehalis and 

Humptulips rivers. The number of green 

sturgeon taken annually from 1985 to 

2003 ranged from less than 10 to almost 

200 fish (Adams et al., 2006). In 2006, 

the Quinault Tribe implemented zero 

retention of green sturgeon for the Grays 

Harbor fishery (J. Schumacker, Quinault 

Indian Tribe, 2006, personal 

communication). A large proportion of 

green sturgeon caught in Grays Harbor 

may be Southern DPS fish, based on 

hydroacoustic tracking information 

(Lindley and Moser, 2006) and a genetic 

study indicating that approximately 50 

percent of green sturgeon sampled in 

Grays Harbor belong to the Southern 

DPS (J. Israel and B. May, UC Davis, 

2006, unpublished data). 

Green sturgeon are also taken, though 

rarely, in tribal commercial and 

subsistence salmon fisheries occurring 

in freshwater and coastal marine waters 

of Washington, including the Strait of 

Juan de Fuca, Georgia and Rosario 

straits, and Puget Sound (W. Beattie, 

NW Indian Fisheries Commission, 2008, 

personal communication). The Yurok 

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and Hoopa Tribes harvest green 

sturgeon in the Klamath River in 

California, but most of the fish are 

believed to be Northern DPS green 

sturgeon (J. Israel, UC Davis, 2006, 

unpublished data). Overall, the take of 

green sturgeon in tribal fisheries has 

been low compared to non-tribal 

fisheries. Measures that may be 

implemented to conserve the Southern 

DPS include a commitment by the 

Quinault Tribe, and perhaps other 

Tribes within the occupied range of the 

Southern DPS, to minimize take and 

monitor incidental catch of green 

sturgeon over the long-term. 

Poaching 

Poaching is a potential threat to the 

Southern DPS. In recent years, several 

arrests have been made for illegal 

harvest of white sturgeon for their meat 

and roe from the Sacramento River 

(CDFG, 2003 and 2006), the SacramentoSan Joaquin Delta (CDFG, 2004), and the 

lower Columbia River (Cohen, 1997). In 

the lower Columbia River, an estimated 

2,000 sturgeon were killed over a 5-year 

period by poachers to produce caviar 

(Cohen, 1997). Poaching may be less 

significant than incidental take 

associated with white sturgeon 

sportfishing (Williamson, 2003). 

However, the tendency for green 

sturgeon to form aggregations for long 

periods of time may make them easy 

targets for poachers (Erickson et al., 

2002). Increased public outreach and 

awareness, increased enforcement, and 

heavier sentences and fines for poachers 

may help to protect green sturgeon from 

the threats of poaching. 

Research and Monitoring Activities 

Scientific research and monitoring of 

the Southern DPS contributes valuable 

information for the management, 

conservation, and future status reviews 

of the species. However, collection or 

handling associated with scientific 

research and monitoring constitutes take 

and may result in stress, injuries, or 

mortality of Southern DPS fish. In 

recent years, much research and 

monitoring effort has been placed on: (1) 

Tracking the movements and habitat use 

of Southern DPS fish by using a variety 

of non-lethal tagging techniques; and (2) 

identifying the DPS of origin using nonlethal genetic sampling techniques. 

These two research and monitoring 

activities provide information crucial to 

the development of an effective recovery 

strategy for the species. The best 

available information indicates that 

these procedures, when done according 

to accepted protocols, result in minimal 

short-term stress to the fish and do not 

result in lethal take. Important scientific 

information (e.g., genetic, pathologic, 

taxonomic, meristic) is also gathered 

from already dead individuals, thereby 

providing valuable data without putting 

the species at further risk. 

Emergency Rescue and Salvage 

Activities 

Emergency fish rescue activities, 

including aiding sick, injured, or 

stranded fish, disposing of dead fish, or 

salvaging dead fish for use in scientific 

studies, are forms of take. Rescue 

activities would benefit the Southern 

DPS in the event of emergency 

situations that result from natural 

disasters, man-made habitat alterations, 

national defense activities, security 

emergencies, etc. Allowing take of the 

Southern DPS for emergency rescue and 

salvage activities is likely to enhance 

survival and recovery of the listed 

species. However, it is important that 

measures be taken to investigate 

emergency events during or after they 

have occurred in order to determine 

whether a non-ESA-compliant action(s) 

necessitated the rescue or salvage. 

Habitat-Altering Activities 

Dams and water diversion structures 

have caused the elimination, 

obstruction, or delay of passage for 

green sturgeon and other sturgeon 

species and may reduce body condition 

and reproductive success. For example, 

dams and water diversion structures 

have been observed to obstruct or 

disrupt the upstream spawning 

migrations of shortnose sturgeon in the 

lower Cape Fear River, NC (Moser and 

Ross, 1995). White sturgeon have also 

been found stranded behind the 

Fremont Weir in the Yolo Bypass, CA 

(Harrell and Sommer, 2006). 

Disruptions in migration may cause fish 

to stop their upstream migration or may 

delay access to spawning habitats 

(Moser and Ross, 1995). The inability to 

reach spawning habitats may cause fish 

to spawn in habitats of lower quality, 

resulting in decreased recruitment 

(Cooke and Leach, 2004). Several dams 

and water diversion structures exist 

along the spawning migration route of 

the Southern DPS and would be 

expected to have detrimental effects 

similar to those observed in surrogate 

species. Fish passage studies at the Red 

Bluff Diversion Dam (RBDD) in the 

Sacramento River show that the RBDD 

blocks the upstream migration of the 

Southern DPS when the gates are 

lowered between May 15 and September 

15 (Heublein et al., 2006; Brown, 2007). 

Mitigation measures have been 

implemented, including the raising of 

RBDD gates from September 15 to June 

15 each year to allow fish passage and 

the protection and restoration of 

spawning and rearing habitat along the 

Sacramento River, bays, and the 

Sacramento-San Joaquin Delta. 

However, when the gates are raised, 

green sturgeon may become disoriented 

or suffer injuries due to the high 

velocity of water passing under the gates 

(M. Tucker, NMFS, 2007, personal 

communication). Between May 18 and 

June 10, 2007, carcasses of 10 adult 

Southern DPS fish (168–226 cm total 

length) were found at (n=2) or 

downstream (n=8) of RBDD (E. 

Campbell, USFWS, 2007, unpublished 

data). Locations of the retrieved 

carcasses and necropsy results suggest 

that the fish suffered mortality due to 

injuries inflicted by the gates at RBDD. 

Installation of adequate fish passage 

facilities, modification of existing 

passage facilities, or other provisions to 

specifically aid sturgeon passage at 

dams and diversions, and application of 

other mitigation measures, such as 

salvage operations, would contribute to 

the protection of the Southern DPS. 

The elimination, obstruction, or delay 

of downstream passage is a concern for 

larval and juvenile stages of the 

Southern DPS, as are habitat-altering 

activities that destroy, modify, or curtail 

spawning or rearing habitats for egg, 

larval, or juvenile stages. Specific 

concerns include, but are not limited to: 

Increased sediment input or runoff into 

streams; filling in or isolation of stream 

channels, side channels, and 

intermittent waters; direct removal or 

alteration of physical structures; and 

obstruction of downstream migration. 

Increased input or runoff of fine 

sediments into streams may result from 

a number of activities including, but not 

limited to, mining, logging, farming, 

grazing, and bridge and road 

construction. Increased erosion and 

sediment input or runoff into streams 

caused by land use and other human 

activities have been found to reduce the 

survival and successful development of 

eggs and embryos of salmon and other 

fish species (Scrivener and Brownlee, 

1989; Owen et al., 2005). The effects on 

green sturgeon eggs and embryos are 

likely to be similar. Green sturgeon eggs 

are large and dense and likely sink into 

rock crevices or attach to hard surfaces 

(Deng et al., 2002; Kynard et al., 2005). 

Once hatched, green sturgeon embryos 

remain near the bottom and use rocks as 

cover (Kynard et al., 2005). Excess fine 

sediments can compromise successful 

development by burying alreadydeposited eggs, reducing interstitial 

dissolved oxygen available for eggs 

(Scrivener and Brownlee, 1989), or 

filling areas used by embryos for cover. 

Thus, Southern DPS eggs or embryos 

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may be taken due to habitat-altering 

activities that increase input of fine 

sediments or runoff into spawning or 

rearing habitat. The effect that increased 

input of fine sediments or runoff has at 

the individual, population and species 

levels will depend on the temporal and 

spatial extent of habitat change. The 

only way to determine this is to analyze 

particular activities on a case-by-case 

basis. 

The filling in or isolation of stream 

channels, side channels, and 

intermittent waters may destroy or block 

access to rearing habitats, or impede or 

delay downstream migration by 

trapping larvae and juveniles that have 

entered these areas. Activities that fill in 

or isolate waters include, but are not 

limited to, the installation of tide gates, 

culverts, and debris- or sedimenttrapping road crossing structures. These 

activities and their effects are a concern 

for listed salmon and steelhead and may 

also affect larval and juvenile Southern 

DPS fish. However, we currently lack 

the information needed to quantitatively 

assess these effects. Although relatively 

large numbers of juveniles have been 

collected in shallow areas of the Santa 

Clara shoal in the Sacramento-San 

Joaquin Delta (Radtke, 1966), the use of 

stream channels, side channels, and 

intermittent waters as rearing habitat by 

green sturgeon larvae and juveniles has 

not been documented. Information 

regarding the use of these habitats by 

early life stages of green sturgeon is 

needed. 

Direct removal or alteration of 

physical structures essential to the 

integrity and function of the Southern 

DPS’s spawning or rearing habitat, 

including rocks, soil, gravel, and 

vegetation, may adversely affect the 

growth and survival of larvae and 

juveniles. Green sturgeon likely use 

specific substrate types at different life 

stages, but observations of early life 

stages of green sturgeon in the field are 

lacking. Studies suggest that spawning 

most likely occurs over cobble 

substrates that provide crevices and 

cover for eggs (Kynard et al., 2005; 

Nguyen and Crocker, 2006). However, in 

a laboratory study of substrate use by 

post-hatch larval green sturgeon, growth 

and survival was greatest in flat slaterock substrates that provided cover and 

sufficient foraging opportunities 

(Nguyen and Crocker, 2006). Survival 

was low in cobble substrates, because 

larvae became trapped in crevices and 

died; whereas in sand substrates, the 

cause of lower survival and growth was 

attributed to the ingestion of sand 

particles similar in size to food particles 

(Nguyen and Crocker, 2006). Juveniles 

likely use deep pool habitats with rock 

structure during the winter (Kynard et 

al., 2005). Removal or alteration of these 

physical structures (i.e. cobble for 

spawning and egg development; flat 

rock for larval rearing; deep pool 

habitats with rock structure for juvenile 

rearing) may reduce spawning or rearing 

success rates. Additional studies 

regarding the use of spawning habitats 

by Southern DPS early life stages and 

the effects of removing or altering 

physical components of Southern DPS 

spawning habitat on recruitment 

success are encouraged. 

The construction and maintenance of 

dams and water diversion structures 

may impede or delay downstream 

migration and alter habitats important to 

larval and juvenile stages of the 

Southern DPS. Dams and water 

diversions may block downstream 

migration of larvae and juveniles, unless 

fish transport or bypass facilities exist. 

Passage across dams and water 

diversion structures may also disorient 

or injure larvae and juveniles and make 

them more vulnerable to predation, as 

has been observed for juvenile 

salmonids at RBDD (Bigelow and 

Johnson, 1996; Gaines and Martin, 

2002). The actual construction of dams 

and water diversion structures may 

cause increased erosion and 

sedimentation and disrupt or alter 

physical structures in spawning or 

rearing habitats, with effects as 

described in the previous paragraphs. 

While existing laws require mining, 

timber harvest, and other resource use 

plans to address erosion and other 

adverse impacts on stream habitats, 

these laws may not be adequate to 

protect the Southern DPS. Additional 

measures that would help reduce 

potential adverse impacts on Southern 

DPS fish are: (1) Protection of riparian 

habitat by limiting activities that cause 

erosion, sediment input or runoff into 

streams, or roadway and other linear 

development near or across streams; (2) 

construction of fish protection and 

passage facilities; and (3) limiting the 

temporal and/or spatial scopes of 

habitat alteration activities that occur in 

and near spawning and rearing 

locations. 

Habitat Restoration 

The primary purpose of habitat 

restoration is to restore natural aquatic 

or riparian habitat conditions or 

processes over the long-term. 

Specifically, we define habitat 

restoration as the process of 

reestablishing a self-sustaining habitat 

that closely resembles natural 

conditions in terms of structure and 

function for the Southern DPS. A variety 

of habitat-altering activities such as 

barrier removal or modification to 

restore natural water flows, river and 

estuarine bed restoration, natural bank 

protection, restoration of native 

vegetation, removal of non-native 

species, and removal of contaminated 

sediments has been used to reestablish 

natural river and estuarine functions 

over the long-term. Although take of 

green sturgeon could potentially occur 

during the course of completing 

restoration activities, we do not have 

evidence that these types of activities 

have taken the Southern DPS or a 

surrogate species. It is likely that these 

activities are important to the 

conservation and recovery of the 

Southern DPS. 

Entrainment and Impingement Risks 

The operation of water diversions, 

power generating projects, and dredging 

activities pose entrainment and 

impingement threats to all life stages of 

the Southern DPS. We define 

entrainment to mean the incidental 

trapping of any life stage of fish within 

waterways or structures that carry water 

being diverted for anthropogenic use. 

We define impingement to mean the 

entrapment of any life stage of fish on 

the outer part of any structure (e.g., 

intake structures, screening devices) 

that separates water traveling a natural 

course of passage from water that is 

being diverted for anthropogenic use. 

Unscreened water diversions number in 

the hundreds to thousands in the 

Sacramento River and the SacramentoSan Joaquin Delta (Herren and 

Kawasaki, 2001). Factors that determine 

the entrainment risk of fish at diversions 

include the location and size of fish. A 

study of fish entrainment at an 

unscreened diversion in the Sacramento 

River documented entrainment of fish 

ranging in size from 9 to 59 mm fork 

length (FL) in July 2000 and 2001 

(Nobriga et al., 2004). Green sturgeon 

were not among the species documented 

in the study, but Southern DPS larvae 

and small juveniles within the size 

range of 9–59 mm FL occur in the 

Sacramento River at that time of year 

and are believed to also be at risk of 

entrainment at unscreened diversions. 

Entrainment of juvenile green sturgeon 

has been documented at the state and 

Federal fish facilities in the south 

Sacramento-San Joaquin Delta, where 

fish are salvaged before they enter the 

pumps (Adams et al., 2006). Programs to 

install fish screens at water diversions 

are being implemented and many major 

diversions have already been screened. 

Installation of fish screens, construction 

of bypass and other fish protection 

facilities (Bigelow and Johnson, 1996; 

Gaines and Martin, 2002), adjustments 

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in the timing of operations, and 

continuation of fish salvage operations, 

where applicable, would help minimize 

and mitigate entrainment of Southern 

DPS fish at water diversions. 

Evidence exists for the impingement 

of green sturgeon in the operation of 

coastal power plants using cooling 

water intake systems, and there is a 

possibility that green sturgeon are also 

entrained at power plants. Two juvenile 

green sturgeon were impinged and died 

on cooling water intake screens at the 

now retired Contra Costa Plant Units 1– 

5 in 1978–1979 and at the Moss Landing 

Power Plant in 2006 (C. Raifsnider and 

J. Steinbeck, Tenera Environmental, 

2006, personal communication). Current 

conservation efforts include the 

installation of screens to reduce 

entrainment, studies of fish 

impingement and entrainment at power 

plants, and laws that require the 

minimization of fish impingement and 

entrainment. Other actions that can be 

taken to reduce impingement and 

entrainment include altering the time of 

day when water intake pumps are 

operated, altering the velocity of water 

intake, and the use of alternative cooling 

systems that do not require water intake. 

Dredging operations in freshwater 

rivers, bays, and estuaries where 

Southern DPS fish occur may pose 

entrainment risk. Although entrainment 

of green sturgeon in dredging operations 

has not been documented, the effects 

could be significant. Approximately 

2,000 juvenile white sturgeon were 

entrained during operation of a large 

suction dredge in the lower Columbia 

River (Buell, 1992). Juvenile green 

sturgeon would be expected to face 

similar entrainment risks from dredging 

operations because they are also bottomoriented and occur in habitats similar to 

white sturgeon. Dredging may also be a 

potential threat to adult green sturgeon 

because they occur in areas where 

dredging operations take place. 

Dredging stirs up the sediments causing 

the release of contaminants that would 

have adverse impacts on growth, 

reproductive development, and 

reproductive success of green sturgeon. 

Long-term management strategies for 

San Francisco Bay dredging operations 

have established regional environmental 

work windows, or periods of time when 

certain fish species are not likely to be 

present in a location. Currently, it is 

believed that Southern DPS juveniles 

reside in San Francisco, Suisun, and 

San Pablo bays year-round so 

environmental work windows will 

likely not be effective in reducing the 

risks of dredging operations to the 

Southern DPS in these locations 

(Ganssle, 1966; Miller, 1972; CDFG, 

2002; Jahn, 2006; BDAT, 2009). 

However, the use of specific types of 

dredging equipment with modified 

designs would reduce the entrainment 

risk to Southern DPS fish from dredging 

operations. 

Pesticides and Discharge of Pollutants 

The application of pesticides adjacent 

to or within waterways that contain any 

life stage of the Southern DPS may 

adversely affect their growth and 

reproductive success. Several pesticides 

have been detected in the Sacramento 

River Basin at levels that are likely to be 

harmful to aquatic life (Domagalski et 

al., 2000). The accumulation of 

industrial chemicals and pesticides 

such as polychlorinated biphenyls 

(PCBs), dichloro-diphenyltrichloroethanes (DDTs), and chlordanes 

in white sturgeon gonad, liver, and 

muscle tissues affects growth and 

reproductive development and results 

in lower reproductive success (Fairey et 

al., 1997; Foster et al., 2001a; Foster et 

al., 2001b; Kruse and Scarnecchia, 2002; 

Feist et al., 2005; Greenfield et al., 

2005). Green sturgeon are believed to 

experience similar risks from 

contaminants, although their exposure 

may be reduced because a greater 

proportion of their subadult and adult 

lives are spent in marine waters (70 FR 

17386, April 6, 2005). Pesticides may 

also indirectly affect green sturgeon 

through effects on their prey species. 

For example, green sturgeon are 

believed to enter Willapa Bay to feed on 

burrowing ghost shrimp (Neotrypaea 

californiensis), which have declined in 

abundance due to the deliberate 

application of carbaryl (Moser and 

Lindley, 2006). 

The discharge or dumping of toxic 

chemicals or other pollutants into 

waters and areas where Southern DPS 

fish occur would be expected to reduce 

their growth and reproductive success. 

Pollutants including mercury, selenium, 

and arsenic have been detected in white 

sturgeon gonad, liver, and muscle 

tissues and are believed to affect growth, 

reproductive development, and 

reproductive success (Fairey et al., 

1997; Davis et al., 2002; Kruse and 

Scarnecchia, 2002; Greenfield et al., 

2005; Webb et al., 2006). Again, the 

effects on green sturgeon are likely to be 

similar. 

Under the Federal Clean Water Act, 

acceptable levels for contaminants in 

waterways have been established by the 

States and the U.S. Environmental 

Protection Agency (EPA). Entities must 

also obtain National Pollutant Discharge 

Elimination System (NPDES) permits to 

discharge contaminants. However, 

NPDES permits are not required for 

irrigated agriculture and agricultural 

stormwater runoff. Furthermore, the 

national standards for use of pesticides 

and toxic substances may not be 

conservative enough to adequately 

protect the Southern DPS as was found 

for listed salmonids in recent draft and 

final jeopardy biological opinions 

issued by NMFS to the EPA (NMFS 

1998, NMFS 2000, NMFS 2008). Thus, 

programs to aid agricultural producers 

in meeting NMFS-imposed water 

quality standards may be required to 

minimize adverse impacts on the 

Southern DPS. 

Non-Native Species Introductions 

Non-native species are a continuing 

problem in freshwater rivers and coastal 

bays and estuaries and may affect the 

Southern DPS through trophic 

interactions. Introduced species, such as 

striped bass in the Sacramento River 

and the Sacramento-San Joaquin Delta, 

may prey on green sturgeon juveniles. 

Non-native species may also replace 

prey species of green sturgeon and 

result in greater bioaccumulation of 

contaminants. For example, 

Potamocorbula amurensis, a non-native 

bivalve, has become widespread in the 

San Francisco Bay and the SacramentoSan Joaquin Delta and has replaced 

other common prey items for white 

sturgeon. P. amurensis is an efficient 

bioaccumulator of selenium, a 

reproductive toxin that causes 

deformities in embryos and reduced 

hatchability of eggs, and has been linked 

with increased selenium levels in white 

sturgeon (Linville et al., 2002). P. 

amurensis has also been identified in 

the gut contents of at least one green 

sturgeon (CDFG, 2002). Non-native 

species may also alter the Southern 

DPS’ habitat or compete with the 

Southern DPS for space or food. 

Although existing laws prohibit the 

release of non-native species into the 

environment, accidental and intentional 

introduction of non-native species 

remains a problem. Eradication 

programs for non-native species, 

increased public education and 

outreach, and increased fines or 

penalties for the release of non-native 

species would help to alleviate this 

problem. 

4(d) Protective Regulations for the 

Southern DPS 

We apply the prohibitions listed 

under ESA sections 9(a)(1)(A) through 

9(a)(1)(G) for the Southern DPS, 

including all the ESA section 9(a)(1)(B) 

and 9(a)(1)(C) prohibitions (the ‘‘take 

prohibitions’’) except for specific 

activities described below (see 

Exceptions, Criteria for Exceptions, and 

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Reporting Requirements). ESA section 

9(a)(1)(A) states that it is unlawful to 

import or export endangered species 

into or from the United States; ESA 

section 9(a)(1)(B) states that it is illegal 

to take endangered species within the 

United States or the territorial sea of the 

United States; ESA section 9(a)(1)(C) 

states that it is illegal to take endangered 

species upon the high seas; ESA section 

9(a)(1)(D) states that it is illegal to 

possess, sell, deliver, carry, transport, or 

ship, by any means whatsoever, 

endangered species taken in violation of 

9(a)(1)(B) and 9(a)(1)(C); ESA section 

9(a)(1)(E) states that it is illegal to 

deliver, receive, carry, transport, or ship 

in interstate or foreign commerce by any 

means whatsoever and in the course of 

a commercial activity, endangered 

species; ESA section 9(a)(1)(F) states 

that it is illegal to sell or offer for sale 

in interstate or foreign commerce, 

endangered species; and ESA section 

9(a)(1)(G) states that it is illegal to 

violate any regulation pertaining to 

endangered species or to any threatened 

species of fish or wildlife listed 

pursuant to section 4 of the ESA and 

promulgated by the Secretary pursuant 

to authority provided by the ESA. 

These prohibitions are necessary and 

advisable for the conservation of the 

Southern DPS because human ‘‘take’’ via 

activities including, but not limited to, 

detrimental habitat alteration, 

modification, and curtailment; fisheries 

catch and bycatch; application of 

pesticides, toxic chemicals, or other 

pollutants adjacent to or within 

waterways; entrainment or impingement 

of eggs or fish during water diversion 

operations, dredging, or power 

generation; unnecessary collection or 

handling; and introduction of nonnative species that disrupt trophic 

pathways, has contributed to the decline 

of the Southern DPS and is likely to 

impede its conservation and recovery. 

Evaluation of activities that may occur 

throughout the area affected by the 

prohibitions for Southern DPS fish, eggs 

or larvae is shown in Table 1. 

Exceptions, Criteria for Exceptions, and 

Reporting Requirements 

We establish exceptions to the ESA 

section 9(a)(1)(B) and 9(a)(1)(C) 

prohibitions (the ‘‘take prohibitions’’) for 

specific activities. These exceptions 

encompass specific activities that may 

be excluded from the take prohibitions 

for the Southern DPS through the 

relatively informal coordination process 

described below. In determining that it 

is necessary and advisable to not impose 

take prohibitions on certain activities, 

we are mindful that new information 

may require a reevaluation of that 

conclusion at any time. For any of the 

exceptions to the take prohibitions 

described below, we would evaluate on 

a regular basis the effectiveness of the 

activities in conserving and protecting 

the Southern DPS. If the activities are 

not effective in conserving and 

protecting the Southern DPS, we would 

identify ways in which the activities 

need to be altered or strengthened. For 

habitat-related exceptions to the take 

prohibitions, changes may be required if 

the activities are not achieving desired 

habitat functionality or the habitat is not 

supporting population productivity 

levels needed to conserve the Southern 

DPS. If the agency or entity carrying out 

the activity does not make changes to 

respond adequately to the new 

information, we would publish 

notification in the Federal Register 

announcing the intention to impose take 

prohibitions on those activities. Such an 

announcement would provide for a 

comment period of not less than 30 

days, after which we would make a final 

determination whether to extend the 

ESA section 9(a)(1)(B) and (C) take 

prohibitions to the activities. If the 

activities do not meet the exception 

criteria any take must be covered under 

an ESA section 7 incidental take 

statement (i.e. for activities with a 

Federal nexus) or ESA section 

10(a)(1)(B) incidental take permit. The 

take of the Southern DPS will not be 

prohibited during the course of the 

following activities: 

(1) Federal, state, or private-sponsored 

research or monitoring activities if they 

adhere to all of the following: (a) The 

activity must comply with required state 

reviews or permits; (b) the research or 

monitoring activity must be directed at 

the Southern DPS and not be incidental 

to research or monitoring of another 

species; (c) take of live mature adults in 

the lower Feather River from the 

confluence with the Sacramento River 

to the Oroville Dam (rkm 116), the lower 

Yuba River from the confluence with 

the Feather River to the Daguerre Dam 

(rkm 19), or Suisun, San Pablo, and San 

Francisco Bays or the Sacramento-San 

Joaquin Delta from the Golden Gate 

Bridge up into the Sacramento River to 

Keswick Dam (rkm 483) may only occur 

from July 1 through March 1 so as to 

substantially increase the likelihood 

that uninterrupted upstream spawning 

migrations of adults will occur; (d) take 

must be non-lethal; (e) take involving 

the removal of any life stage of the 

Southern DPS from the wild must not 

exceed 60 minutes; (f) take must not 

involve artificial spawning or 

enhancement activities; (g) a description 

of the study objectives and justification, 

a summary of the study design and 

methodology, estimates of the total nonlethal take of Southern DPS fish 

anticipated, estimates of incidental take 

of other ESA listed species anticipated 

and proof that those takes have been 

authorized by NMFS or the USFWS, 

identification of funding sources, and a 

point of contact must be reported to the 

NMFS Southwest Regional Office (see 

ADDRESSES: above) at least 60 days prior 

to the start of the study, or, for ongoing 

studies, by August 31, 2010; (h) reports 

that include the total number of 

Southern DPS and any other ESA listed 

species taken, information that supports 

that take was non-lethal, and a summary 

of the project results must be submitted 

to NMFS on a schedule to be 

determined by NMFS staff; (i) research 

or monitoring that involves action, 

permitting, or funding by a Federal 

agency must still comply with the 

requirements of ESA section 7(a)(2) in 

order to ensure that the action will not 

jeopardize the continued existence of 

the threatened Southern DPS. NMFS 

will respond in a letter either 

confirming the activities meet the 

exception criteria or stating that the 

activities do not meet the exception 

criteria and are subject to the take 

prohibitions. The letter would 

acknowledge receipt of the project 

information and provide the schedule 

for submission of research/progress 

reports and technical assistance to 

clarify when the ESA section 9 

prohibitions apply. 

(2) Emergency fish rescue and salvage 

activities that include aiding sick, 

injured, or stranded fish, disposing of 

dead fish, or salvaging dead fish for use 

in scientific studies, if they adhere to all 

of the following: (a) The activity must 

comply with required state or other 

Federal reviews or permits; (b) activities 

may only be conducted by an employee 

or designee of NMFS or the U.S. Fish 

and Wildlife Service (USFWS), any 

Federal land management agency, or 

California Department of Fish and Game 

(CDFG), Oregon Department of Fish and 

Wildlife (ODFW), Washington 

Department of Fish and Wildlife 

(WDFW), or Alaska Department of Fish 

and Game (ADFG); (c) the emergency 

rescue must benefit the Southern DPS; 

(d) a report must be submitted to the 

NMFS Southwest Regional Office (see 

ADDRESSES: above) that includes, at a 

minimum, the number and status of fish 

handled, the location of rescue and/or 

salvage operations and the potential 

cause(s) of the emergency situation 

within 10 business days after carrying 

out the rescue. 

(3) Habitat restoration activities, 

including barrier removal or 

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modification to restore water flows, 

riverine or estuarine bed restoration, 

natural bank stabilization, restoration of 

native vegetation, removal of non-native 

species, or removal of contaminated 

sediments, that reestablish selfsustaining habitats for the Southern 

DPS, if they adhere to all of the 

following: (a) Compliance with required 

state and Federal reviews and permits; 

(b) a detailed description of the 

restoration activity sent to the NMFS 

Southwest Regional Office (see 

ADDRESSES: above) at least 60 days prior 

to the start of the restoration project, or, 

for ongoing studies, by August 31, 2010, 

which includes: the geographic area 

affected; when activities will occur; how 

they will be conducted; and the severity 

of direct, indirect, and cumulative 

impacts of activities on the Southern 

DPS; identification of funding sources; 

demonstration that all state and Federal 

regulatory requirements have been met; 

a description of methods used to ensure 

that the likelihood of survival or 

recovery of the listed species is not 

reduced; a plan for minimizing and 

mitigating any adverse impacts to 

Southern DPS spawning or rearing 

habitat; an estimate of the amount of 

incidental take of the listed species that 

may occur and a description of how that 

estimate was made; a plan for effective 

monitoring and adaptive management; a 

pledge to use best available science and 

technology when conducting restoration 

activities; and a point of contact; (c) 

progress reports that include the total 

number of Southern DPS fish taken, 

information regarding whether the take 

was lethal or non-lethal, a summary of 

the status of the project, and any 

changes in the methods being 

employed, must be submitted to NMFS 

on a schedule to be determined by 

NMFS staff; (d) activities that involve 

action, permitting, or funding by a 

Federal agency must still comply with 

the requirements of ESA section 7(a)(2) 

in order to ensure that the action will 

not jeopardize the continued existence 

of the threatened Southern DPS. NMFS 

will respond in a letter either 

confirming the activities meet the 

exception criteria and are not subject to 

the take prohibitions, or stating that the 

activities do not meet the exception 

criteria and are subject to the take 

prohibitions and any take must be 

covered under an ESA section 7 

incidental take statement or ESA section 

10 permit. The letter would also provide 

the schedule for submission of progress 

reports and would provide technical 

assistance to clarify when the ESA 

section 9 prohibitions apply. 

Exemptions Provided by NMFSapproved ESA 4(d) Programs 

We provide exemptions from the take 

prohibitions for certain activities 

included within a NMFS-approved 4(d) 

program. Activities included in a 4(d) 

program would be excused from the 

take prohibitions for the Southern DPS 

through a formal NMFS 4(d) program 

approval process described below. 

4(d) Program for Commercial and 

Recreational Fishery Management 

Take of green sturgeon in commercial 

and recreational fisheries activities 

would be allowed if fisheries activities 

were conducted under approved 

Fisheries Management and Evaluation 

Plans (FMEPs). We expect that, in many 

cases, fisheries will have acceptably 

small impacts on the threatened 

Southern DPS as long as state fishery 

management programs are specifically 

tailored to meet certain criteria. NMFSapproved FMEPs must address limiting 

take of green sturgeon in order to protect 

the listed entity, the Southern DPS. We 

consider this necessary because 

discrimination between the non-listed 

Northern DPS and listed Southern DPS, 

via gear specificity, visual indicators, 

spatial distribution, etc., is not currently 

possible. In order for NMFS to exempt 

commercial or recreational fishing 

activities from the take prohibitions, an 

FMEP must: (1) Prohibit retention of 

green sturgeon (i.e., zero bag limit); (2) 

set maximum incidental take levels; (3) 

include measures to minimize 

incidental take of green sturgeon (e.g., 

temporal/spatial restrictions, size, gear); 

(4) provide a biologically based 

rationale demonstrating that the 

incidental take management strategy 

will not significantly reduce the 

likelihood of survival or recovery of the 

Southern DPS; (5) include effective 

monitoring and evaluation plans; (6) 

provide for evaluating monitoring data 

and making revisions to the FMEP; (7) 

provide for effective enforcement and 

education; (8) provide a timeframe for 

FMEP implementation; and (9) report 

the amount of incidental take and 

summarize the effectiveness of the 

FMEP to NMFS on a biannual basis. If 

we find that an FMEP meets these 

criteria, we will issue a letter of 

concurrence to the entity that sets forth 

the terms of the FMEP’s implementation 

and the duties of the parties pursuant to 

the FMEP. 

Section 9(a)(1)(B) and (a)(1)(C) take 

prohibitions would not apply to ongoing 

commercial and recreational fisheries 

activities until September 30, 2010 if a 

letter of intent to develop an FMEP 

addressing green sturgeon has been 

received by the NMFS Southwest 

Regional Office (see ADDRESSES: above) 

by July 2, 2010. The exemption will be 

suspended if the letter of intent is 

rejected without further review of an 

FMEP. If the letter of intent is received 

July 2, 2010, a draft FMEP must be 

received by NMFS within 6 months 

from the date of receipt of the letter of 

intent. A final FMEP must be received 

by NMFS within 3 months from the date 

of receipt of NMFS’ comments on the 

draft FMEP. Ongoing commercial and 

recreational fisheries activities may 

continue until NMFS issues a letter of 

concurrence (or denial) for final FMEPs. 

Once a final FMEP has been 

submitted to NMFS for review, NMFS 

will: (1) Provide a public comment 

period (≥30 days) before approval of 

new or amended FMEPs; (2) provide a 

letter of concurrence for approved 

FMEPs that specifies the 

implementation and reporting 

requirements; (3) evaluate FMEPs every 

5 years and identify changes that would 

improve their effectiveness; and (4) 

provide a public comment period (≥30 

days) before withdrawing approval of an 

FMEP. 

4(d) Program for Tribal Fishery 

Management 

Fishery harvest or other activities 

conducted by a tribe, tribal member, 

tribal permittee, tribal employee, or 

tribal agent in Willapa Bay, WA, Grays 

Harbor, WA, Coos Bay, OR, Winchester 

Bay, OR, Humboldt Bay, CA, and any 

other area where tribal treaty fishing 

occurs are eligible to obtain take 

authorization via the same method 

outlined in the NMFS final rule for 

authorizing take of threatened salmon 

and steelhead for actions under tribal 

resource management plans (July 10, 

2000; 65 FR 42481). This method has 

been modified below for the Southern 

DPS. We consider current tribal fishing 

activities to have acceptably small 

impacts on the threatened Southern 

DPS, and if the tribes, either singly or 

jointly, develop tribal resource 

management plans for the Southern 

DPS, or incorporate the Southern DPS 

into existing tribal resource 

management plans, that current and 

future tribal activities are not likely to 

appreciably reduce the likelihood of 

survival and recovery of the species. 

A tribe intending to exercise a tribal 

right to fish or undertake other resource 

management actions that may impact 

the threatened Southern DPS could 

create a tribal resource management 

plan (Tribal Plan) that would assure that 

those actions would not appreciably 

reduce the likelihood of survival and 

recovery of the species. Tribal Plans 

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should be sent to the NMFS Southwest 

Regional Office (see ADDRESSES). NMFS 

would stand ready to the maximum 

extent practicable to provide technical 

assistance to any tribe that so requests 

in examining impacts on the listed 

Southern DPS and in the development 

of Tribal Plans that meet tribal 

management responsibilities and needs. 

In making a determination whether a 

Tribal Plan will appreciably reduce the 

likelihood of survival and recovery of 

the threatened Southern DPS, the 

Secretary, in consultation with the tribe, 

would use the best available scientific 

and commercial data (including careful 

consideration of any tribal data and 

analysis) to determine the Tribal Plan’s 

impact on the biological requirements of 

the species. The Secretary would also 

assess the effect of the Tribal Plan on 

survival and recovery in a manner 

consistent with tribal rights and trust 

responsibilities. Before making a final 

determination, the Secretary would seek 

comment from the public on his 

pending determination whether 

implementation of a Tribal Plan will 

appreciably reduce the likelihood of 

survival and recovery of the listed 

Southern DPS. The Secretary would 

publish notification in the Federal 

Register of any determination regarding 

a Tribal Plan and the basis for that 

determination. 

4(d) Program for Scientific Research and 

Monitoring Activities 

State-coordinated research activities 

for scientific research or enhancement 

purposes that do not fall into the 

exception category described above (see 

Exceptions, Criteria for Exceptions, and 

Reporting Requirements) may receive an 

exemption from the take prohibitions 

for the Southern DPS for activities 

included in a state-sponsored, ESAcompliant, scientific research program 

between state fishery agencies (i.e., 

CDFG, ODFW, WDFW, or ADFG) and 

NMFS, hereafter referred to as a state 

4(d) research program. Activities 

conducted as part of a state 4(d) 

research program must meet existing 

state and Federal laws and regulations 

and would include research and 

monitoring projects conducted by state 

employees or by recipients of state 

fishery agency-issued permits 

(including Federal and non-Federal 

entities) that directly or incidentally 

take Southern DPS green sturgeon. We 

find that in carrying out their 

responsibilities to manage state 

fisheries, state agencies conduct or 

sponsor research vital for improving our 

understanding of the status and risks 

facing the Southern DPS and other 

listed species that occur in overlapping 

habitat, and provide critical information 

for assessing the effectiveness of current 

and future management practices. 

State 4(d) research programs have 

been developed and implemented in 

California, Oregon, and Washington for 

listed West coast salmon and steelhead 

and are consistent with ESA 

requirements for research-related take of 

these listed species. The Southern DPS 

would most likely be incorporated into 

the existing state 4(d) research programs 

established for listed salmon and 

steelhead, making use of the system 

already in place. Otherwise, the state 

would be required to prepare a program 

and submit it to the NMFS Southwest 

Regional Office (see ADDRESSES: above) 

for approval. NMFS may approve the 

program or return the program to the 

state agency for revision. 

In general, we conclude that as long 

as state biologists and cooperating 

agencies carefully consider the benefits 

and risks of activities included in a state 

4(d) research program, such programs 

would help streamline the take 

authorization process for researchers, 

state agencies, and NMFS by allowing 

state fishery agencies to maintain 

primary responsibility for coordination 

and oversight of research activities. 

Each year, researchers would be 

required to submit research applications 

to the state fishery agency preferably 

through the NMFS online application 

Web site Authorizations and Permits for 

Protected Species (APPS) at https:// 

apps.nmfs.noaa.gov. Research 

applications must include, at a 

minimum, the following information: (1) 

An estimate of the total direct or 

incidental take of Southern DPS fish 

that is anticipated; (2) a description of 

the study design and methodology; (3) 

a justification for take of Southern DPS 

fish and the techniques to be used; and 

(4) a point of contact. The state agency 

would have access, via NMFS, to the 

submitted applications, evaluate and 

determine which projects are eligible for 

inclusion under the program, and 

approve or deny individual project 

applications. Once the state agency 

review is complete, the state agency 

would be required to provide for NMFS’ 

review and approval a list of project 

applications approved for possible 

inclusion in a 4(d) research program for 

the coming year. After our review of the 

applications and follow-ups with the 

researchers to address concerns if 

necessary, we would analyze effects of 

the activities on the Southern DPS. 

Finally, we would complete the ESA 

section 7 consultation and NEPA 

documentation and issue an approval 

letter to the state fishery agency 

confirming that the research activities 

covered within the 4(d) research 

program are exempt from the ESA take 

prohibitions. A section 10(a)(1)(A) 

research or enhancement permit is not 

issued. Researchers have to comply with 

the conditions of the 4(d) research 

program and must submit an annual 

report, preferably through the NMFS 

online application Web site 

Authorizations and Permits for 

Protected Species (APPS) at https:// 

apps.nmfs.noaa.gov. The annual report 

must include, for each project: (1) a 

summary of the number of green 

sturgeon taken directly or incidentally; 

and (2) a summary of the results of the 

project, in order for NMFS to evaluate 

the effects of the research project on the 

Southern DPS. We would continue to 

work with the state fishery agencies to 

ensure authorized research involving 

listed Southern DPS fish is both 

coordinated and conducted in a manner 

that does not jeopardize the 

conservation and recovery of the 

Southern DPS. 

Section 9(a)(1)(B) and 9(a)(1)(C) take 

prohibitions would not apply to ongoing 

state-supported scientific research and 

enhancement activities seeking take 

authorization of the Southern DPS fish 

through a state 4(d) program, if the 

above information is provided to NMFS, 

preferably through the NMFS online 

application Web site Authorizations and 

Permits for Protected Species (APPS) at 

https://apps.nmfs.noaa.gov, during the 

mid-September through mid-October 

2010 application period. The take 

prohibitions would take effect if the 

state 4(d) program package is rejected as 

insufficient or is denied. If the state 4(d) 

research program package is received 

during the mid-September to midOctober application period, ongoing 

state-supported scientific research 

activities may continue until NMFS 

issues a written decision of approval or 

denial. If approved, the state 4(d) 

program authorization will cover one 

calendar year and state supported 

researchers would have to renew 

authorizations annually during 

subsequent application periods. 

Take Exemptions Provided By ESA 

Sections 7 or 10 

Federally funded, authorized, or 

implemented activities that may require 

take coverage (see Proposed 4(d) 

Protective Regulations for the Southern 

DPS), and are not covered under 

Exceptions, Criteria for Exceptions, and 

Reporting Requirements or Exemptions 

Provided by NMFS-approved 4(d) 

Programs above, will be examined on a 

case-by-case basis through interagency 

consultation as prescribed by ESA 

section 7. All other activities (i.e., those 

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not federally funded, authorized, or 

implemented) that may require take 

coverage, and are not covered under 

Exceptions, Criteria for Exceptions, and 

Reporting Requirements or Exemptions 

Provided by NMFS-approved 4(d) 

Programs above, will be examined on a 

case-by-case basis as prescribed by ESA 

section 10. 

Federal, state, and private-sponsored 

research activities for scientific research 

or enhancement purposes that are not 

covered under Exceptions, Criteria for 

Exceptions, and Reporting 

Requirements or Exemptions Provided 

by NMFS-approved 4(d) Programs 

above, may take Southern DPS fish 

pursuant to the specifications of an ESA 

section 10 permit. Section 9(a)(1)(B) and 

(a)(1)(C) take prohibitions would not 

apply to ongoing research activities if an 

application for an ESA section 10 

(a)(1)(A) permit is received by NMFS, 

preferably through the NMFS online 

application Web site https:// 

apps.nmfs.noaa.gov, no later than 

November 29, 2010. The take 

prohibitions would take effect if the 

permit application is rejected as 

insufficient or a permit is denied. If the 

permit application is received by 

November 29, 2010, ongoing research 

activities may continue without take 

prohibitions until NMFS issues or 

denies a permit. 

Evaluation of activities that may occur 

throughout the area affected by the 

prohibitions for Southern DPS fish, 

eggs, or larvae is shown in Table 1. 

Evidence of take of the Southern DPS 

during the course of an activity is 

indicated; if there is no such evidence, 

then evidence of take of a surrogate 

species is indicated. Existence of 

protective/conservation measures to 

minimize take of or benefit the Southern 

DPS fish during the course of the 

activity as it is currently conducted is 

indicated. Based on best available 

information, whether an activity 

requires take authorization or is illegal 

according to other laws and therefore 

cannot be authorized is indicated, and 

whether methods for allowing take 

resulting from a particular activity exist 

through ESA sections 7 or 10 or through 

an ESA section 4(d) Program is 

specified. This is not an exhaustive list 

of all activities that occur throughout 

the area affected by the take 

prohibitions. Please see 4(d) Protective 

Regulations for the Southern DPS for the 

full range of activities for which NMFS 

is prohibiting take. 

Table 1. This table indicates whether 

evidence of take of the Southern DPS or 

take of a surrogate species exist (yes or 

no; Y or N) and whether protective/ 

conservation measures to minimize take 

are currently in place (Y or N). The table 

also indicates whether under this rule 

an activity requires take authorization 

(Y or N), or cannot be authorized (N/A), 

and whether methods that allow take 

exist through ESA sections 7 or 10 (Y or 

N) or through an ESA section 4(d) 

program (Y or N) 

Activity Take 

Take of 

surrogate species 

Protective/ 

Conservation 

measures or 

benefits 

Take 

authorization 

necessary 

Methods of take authorization 

ESA section 7 

or 10 4(d) Program 

Fishing 

Commercial ....................................... Y Y Y Y Y 

Recreational ...................................... Y Y Y Y Y 

Tribal ................................................. Y Y Y Y Y 

Poaching .................................................. N Y N N/A N N 

Collection or Handling 

Research/monitoring 

Federal, State or Private-sponsored (compliant with Exceptions) ...................................... Y Y N 

State-sponsored (outside scope 

of Exceptions) ........................ Y Y Y Y Y 

Federal or Private-sponsored 

(outside scope of Exceptions) Y Y Y Y N 

Emergency Rescue (compliant with 

Exceptions) .................................... N Y Y N 

Emergency Rescue (outside scope 

of Exceptions) ............................... N Y N Y Y N 

Detrimental Habitat-Altering Activities 

Activities that Eliminate, Obstruct, or 

Delay Passage 

Dam installation, repair, modification, operation ................... Y Y Y Y N 

Diversion installation, repair, 

modification, operation ........... Y Y Y Y N 

Activities that Destroy, Modify, or 

Curtail Spawning or Rearing Habitat 

Input of fine sediments/runoff .... N Y Y Y Y N 

Dam installation, repair, modification, operation ................... Y Y Y Y N 

Diversion installation, repair, 

modification, operation ........... Y Y Y Y N 

Filling/isolation of channels/ 

intermittent waters .................. N N Y Y Y N 

Removal/alteration of physical 

structure that provides spawning/rearing habitat .................. N N Y Y Y N 

Habitat Restoration (compliant with Exceptions) 

Barrier removal/modification to restore flows ..................................... N N Y N 

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Activity Take 

Take of 

surrogate species 

Protective/ 

Conservation 

measures or 

benefits 

Take 

authorization 

necessary 

Methods of take authorization 

ESA section 7 

or 10 4(d) Program 

Riverine or estuarine bed restoration N N Y N 

Natural bank protection .................... N N Y N 

Restoration of native vegetation ....... N N Y N 

Removal of non-native species ........ N N Y N 

Removal of contaminated sediments N N Y N 

Habitat Restoration (outside scope of Exceptions) ............................................... N N N Y Y N 

Entrainment/Impingement 

Water diversions ............................... Y Y Y Y N 

Power generating projects ................ Y Y Y Y N 

Dredging ........................................... N Y Y Y Y N 

Pesticide/Pollutant Discharge .................. N Y Y Y Y N 

Non-native Species Introductions ............ N Y Y N/A N N 

Under section 9(b)(1) of the ESA, 

people holding Southern DPS fish in 

captivity or in a controlled environment 

prior to the ESA listing are exempt from 

the prohibitions of section 9(a)(1)(A) 

and (a)(1)(G) of the ESA and would 

therefore also be exempt from the 

prohibitions of this regulation, provided 

that holding and any subsequent 

holding or use of the fish is not for 

commercial activity. The burden of 

proof that Southern DPS fish were taken 

prior to listing lies with the individual 

holding the animals. The prohibitions of 

this regulation would, however, apply 

to any progeny of Southern DPS fish 

taken prior to listing. Any activity 

involving Southern DPS fish taken prelisting that is authorized, funded, or 

carried out by a Federal agency would 

also be subject to the consultation 

requirements of section 7 of the ESA. 

We apply the section 9 take 

prohibitions to the Southern DPS, while 

providing exceptions for some activities 

(i.e., some types of research/monitoring, 

enforcement, emergency rescue/salvage, 

and habitat restoration; see Exceptions, 

Criteria for Exceptions, and Reporting 

Requirements) that NMFS finds will not 

impede, and in most cases will promote, 

the conservation of the species. 

However, if the activity is federally 

funded, authorized, or implemented, it 

will still be subject to NMFS’ review 

under the ESA jeopardy standard (i.e., 

ESA section 7(a)(2)). Apart from the 

subset of activities defined in 

‘‘Exceptions, Criteria for Exceptions, and 

Reporting Requirements’’ above, if the 

Southern DPS is anticipated to be taken 

during the course of an activity, several 

methods may be pursued to obtain take 

authorization depending on the specific 

circumstances of the activity. For 

federally funded, authorized, or 

implemented activities, the traditional 

method of seeking take coverage is 

through ESA section 7. For activities 

that are not federally funded, 

authorized, or implemented, take 

authorization may be obtained through 

ESA section 10, by establishing a 

NMFS-approved 4(d) program (i.e., for 

commercial or recreational fishing 

activities or state-sponsored research 

outside the scope of those activities 

defined in Exceptions, Criteria for 

Exceptions, and Reporting 

Requirements) that adequately protects 

the Southern DPS, or by developing a 

tribal resource management plan that 

will not appreciably reduce the 

likelihood of survival and recovery of 

the Southern DPS (see Exemptions 

Provided by NMFS-approved ESA 4(d) 

Programs). Take of the Southern DPS 

due to poaching and non-native species 

introductions is illegal according to 

existing state and/or Federal laws, thus 

no method of take authorization is being 

provided for these activities. 

Peer Review 

In December 2004, the Office of 

Management and Budget (OMB) issued 

a Final Information Quality Bulletin for 

Peer Review (Peer Review Bulletin) 

establishing minimum peer review 

standards, a transparent process for 

public disclosure, and opportunities for 

public input. The Peer Review Bulletin, 

implemented under the Information 

Quality Act (Pub. L. 106 554), is 

intended to provide public oversight on 

the quality of agency information, 

analyses, and regulatory activities. The 

text of the Peer Review Bulletin was 

published in the Federal Register on 

January 14, 2005 (70 FR 2664). The Peer 

Review Bulletin requires Federal 

agencies to subject ‘‘influential’’ 

scientific information to peer review 

prior to public dissemination. 

Influential scientific information is 

defined as ‘‘information the agency 

reasonably can determine will have or 

does have a clear and substantial impact 

on important public policies or private 

sector decisions,’’ and the Peer Review 

Bulletin provides agencies broad 

discretion in determining the 

appropriate process and level of peer 

review. The Peer Review Bulletin 

establishes stricter standards for the 

peer review of ‘‘highly influential’’ 

scientific assessments, defined as 

information whose ‘‘dissemination 

could have a potential impact of more 

than $500 million in any one year on 

either the public or private sector or that 

the dissemination is novel, 

controversial, or precedent-setting, or 

has significant interagency interest.’’ We 

do not consider the scientific 

information underlying the protective 

regulations to constitute influential 

scientific information as defined in the 

Peer Review Bulletin. The information 

is not novel; similar information for 

listed salmonids whose range 

substantially overlaps with that of the 

Southern DPS has been used in support 

of protective regulations that have been 

in existence for a number of years. 

Therefore the agency expects the 

information to be non-controversial and 

have minimal impacts on important 

public policies or private sector 

decisions. 

References 

A complete list of the references used 

in this final rule is available upon 

request (see ADDRESSES) or via the 

Internet at http://www.swr.noaa.gov. 

Classification 

Regulatory Flexibility Act 

This final ESA 4(d) rule has specific 

requirements for regulatory compliance 

and sets an enforceable performance 

standard (do not take listed fish) when 

conducting specific activities unless 

those activities are within a carefully 

circumscribed set of activities on which 

NMFS will not impose the take 

prohibitions. Hence, the universe of 

entities reasonably expected to be 

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directly or indirectly impacted by the 

prohibition is broad. 

Based on the language of the 4(d) rule, 

as well as a review of existing section 

7 consultations for the Southern DPS of 

green sturgeon and co-existing salmon 

and steelhead species, the FRFA 

identified the following activities that 

may be affected by this final rule: 

commercial, recreational and tribal 

fisheries; dams and water diversions; 

power production (electric services and 

gas distribution); crop agriculture and 

point source polluters (NPDESpermitted activities); habitat-altering 

activities; and in-water construction and 

dredging activities. A great deal of 

uncertainty exists with regard to how 

potentially regulated entities will 

attempt to avoid take of the Southern 

DPS. This is caused by two factors: 

relatively little data exist on green 

sturgeon abundance and behavior, and 

NMFS has a short history of managing 

the Southern DPS. In addition, the 

spatial distribution of the Southern DPS 

overlaps nearly entirely with habitat for 

salmon and steelhead species. Several 

key variables, such as whether current 

fish passage facilities and fish screens 

designed to protect salmon species will 

be considered adequate to provide 

passage for the Southern DPS over the 

long term, remain undetermined at this 

time. Thus, while baseline protections 

are expected to be afforded to the 

Southern DPS on behalf of salmon and 

steelhead species, the degree to which 

incremental measures would be 

required for the Southern DPS has not 

been determined. As such, the FRFA 

does not provide estimates of total costs 

of conservation measures likely to be 

undertaken for the Southern DPS. 

Instead, the analysis characterizes 

potential impacts on affected industries. 

In formulating this rule, we 

considered five alternative approaches, 

described in more detail in the FRFA. 

These are: (1) A No Action Alternative 

where no ESA section 9(a)(1) 

prohibitions or any other protective 

regulations are applied to the Southern 

DPS; (2) a Full Action Alternative where 

all ESA section 9(a)(1) prohibitions are 

applied to the Southern DPS; (3) 

Alternative A where the prohibitions 

listed under ESA section 9(a)(1)(A) and 

9(a)(1)(D) through 9(a)(1)(G) are applied 

to the Southern DPS and the take 

prohibitions (ESA section 9(a)(1)(B) and 

9(a)(1)(C)) are applied to specific 

categories of activities that either cause 

take of Southern DPS fish; (4) 

Alternative B (Proposed Action) where 

ESA section 9(a)(1) prohibitions are 

applied to the Southern DPS as in the 

Full Action Alternative, but with 

exceptions and exemptions for activities 

that NMFS has determined to be 

adequately protective of the Southern 

DPS; and (5) Alternative C where the 

ESA section 9(a)(1) prohibitions are 

applied as described in Alternative A, 

but with exceptions from the take 

prohibitions (ESA section 9(a)(1)(B) and 

9(a)(1)(C)) for activities that NMFS has 

determined to be adequately protective 

of the Southern DPS. 

The comparative analysis of the 

alternatives is described in more detail 

in the FRFA. In summary, the Full 

Action Alternative and Alternative B 

(Proposed Action) are anticipated to 

affect the largest number of industries, 

but the impacts Alternative B will have 

on those industries is expected to be 

less severe because certain activities 

may be allowed to continue (e.g., some 

habitat restoration, emergency rescue, 

and research/monitoring activities) 

under this alternative. Alternatives A 

and C are anticipated to affect a smaller 

number of industries than the Full 

Action Alternative and Alternative B. 

For reasons similar to those explained 

above, Alternative C is expected to have 

a less severe impact on the affected 

industries than Alternative A.—The No 

Action Alternative will have no effect 

on industries. 

Executive Order (E.O.) 12866— 

Regulatory Planning and Review 

This rule has been determined to be 

not significant for the purposes of E.O. 

12866. 

E.O. 12988—Civil Justice Reform 

We have determined that this final 

rule does not unduly burden the judicial 

system and meets the requirements of 

sections 3(a) and 3(b)(2) of E.O. 12988. 

We are providing protective regulations 

pursuant to provisions in the ESA using 

an existing approach that improves the 

clarity of the regulations and minimizes 

the regulatory burden of managing ESA 

listings while retaining the necessary 

and advisable protections to provide for 

the conservation of threatened species. 

E.O. 13175—Consultation and 

Coordination with Indian Tribal 

Governments 

E.O. 13175 requires that, if NMFS 

issues a regulation that significantly or 

uniquely affects the communities of 

Indian tribal governments and imposes 

substantial direct compliance costs on 

those communities, NMFS must consult 

with those governments, or the Federal 

Government must provide the funds 

necessary to pay the direct compliance 

costs incurred by the tribal 

governments. This rule may impose 

substantial direct compliance costs on 

the communities of Indian tribal 

governments within the range of this 

DPS. Accordingly, the requirements of 

section 5(b) and (c) of E.O. 13175 may 

apply to this rule. During the 

development of the proposed and final 

rules, we provided drafts of relevant 

sections of the 4(d) Rule to potentially 

affected tribes and held conference calls 

with potentially affected tribes to 

discuss the 4(d) Rule and obtain the 

tribes’ input. 

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). Neither of those circumstances 

is applicable to this rule. In fact, this 

notice provides mechanisms by which 

NMFS, in the form of 4(d) exceptions to 

take prohibitions, may defer to state and 

local governments where they provide 

necessary protections for the Southern 

DPS. Even though this rule does not 

have federalism implications, we 

requested information from appropriate 

State resource agencies in California, 

Oregon, and Washington regarding the 

proposed action. As subsequent issues 

with ESA compliance and rulemaking 

arise (e.g., issuance of permits, critical 

habitat designation, recovery planning), 

we will continue to communicate with 

the States, and other affected local or 

regional entities, giving careful 

consideration to all concerns and 

comments received. 

Paperwork Reduction Act (PRA) 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid Office of Management 

and Budget (OMB) Control Number. 

This final rule contains collection-ofinformation requirements subject to the 

PRA, which have been submitted to 

OMB for review and approval. Public 

reporting burden per response for this 

collection of information is estimated to 

average: (1) 40 hours for development of 

a Fisheries Management and Evaluation 

Plan; (2) 20 hours for development of a 

Tribal Fishery Management Plan; (3) 40 

hours for development of a Statesponsored scientific research program; 

(4) 5 hours to prepare reports on 

emergency rescue, salvage, or disposal 

of Southern DPS fish; (5) 40 hours to 

prepare reports on restoration activities; 

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30728 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 

and (6) 40 hours to prepare reports on 

Federal and private-sponsored research 

and monitoring. These estimates 

include the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

We invite comments regarding these 

burden estimates, or any other aspect of 

this data collection, including 

suggestions for reducing the burden, to 

NMFS (see ADDRESSES) and to OMB at 

the Office of Information and Regulatory 

Affairs, Office of Management and 

Budget, Washington, DC 20503 

(Attention: NOAA Desk Officer). 

National Environmental Policy Act 

(NEPA) 

Whenever a species is listed as 

threatened, the ESA requires that we 

shall issue such 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 (see ADDRESSES), 

via our Web site at http:// 

swr.nmfs.noaa.gov, or via the Federal 

eRulemaking Web site at http:// 

www.regulations.gov. 

E.O. 13211—Energy Supply, 

Distribution, or Use 

E.O. 13211 requires agencies to 

prepare Statements of Energy Effects 

when undertaking certain actions. 

According to E.O. 13211, ‘‘significant 

energy action’’ means any action by an 

agency that is expected to lead to the 

promulgation of a final rule or 

regulation that is a significant regulatory 

action under E.O. 12866 and is likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

NMFS has determined that this rule is 

not a significant energy action. First, 

this rule is not significant under E.O. 

12866. Second, this rule would not be 

likely to result in significant adverse 

effects on the supply, distribution, or 

use of energy, because the spatial scope 

of this rule overlaps with areas where 

protections for ESA-listed salmonids are 

in effect and it is likely that the 

modifications required for ESA-listed 

salmonids are similar to those that 

would be required for the Southern 

DPS. Thus, no Statement of Energy 

Effects is required for this rule. 

List of Subjects in 50 CFR Part 223 

Endangered and threatened species, 

Exports, Imports, Transportation. 

Dated: May 25, 2010. 

Eric C. Schwaab, 

Assistant Administrator for Fisheries, 

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 

■ 1. The authority citation for part 223 

continues to read as follows: 

Authority: 16 U.S.C. 1531 1543; subpart B, 

§ 223.201–202 also issued under 16 U.S.C. 

1361 et seq.; 16 U.S.C. 5503(d) for 

§ 223.206(d)(9). 

■ 2. In subpart B of part 223, add 

§ 223.210 to read as follows: 

§ 223.210 North American green sturgeon. 

(a) Prohibitions. The prohibitions of 

section 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 Southern Distinct Population 

Segment (DPS) of North American green 

sturgeon listed in § 223.102(c)(1). 

(b) Exceptions. Exceptions to the take 

prohibitions described in section 

9(a)(1)(B) and (C) of the ESA (16 U.S.C. 

1538(a)(1)(B) and (C)) applied in 

paragraph (a) of this section to the 

threatened Southern DPS listed in 

section 223.102(c) are described in the 

following paragraphs (b)(1) through 

(b)(3). 

(1) Scientific Research and 

Monitoring Exceptions. The 

prohibitions of paragraph (a) of this 

section relating to the threatened 

Southern DPS listed in § 223.102(c)(1) 

do not apply to ongoing or future 

Federal, state, or private-sponsored 

scientific research or monitoring 

activities if: 

(i) The scientific research or 

monitoring activity complies with 

required state reviews or permits; 

(ii) The research or monitoring 

activity is directed at the Southern DPS 

and is not incidental to research or 

monitoring of another species; 

(iii) Take of live mature adults in the 

lower Feather River from the confluence 

with the Sacramento River to the 

Oroville Dam (rkm 116), the lower Yuba 

River from the confluence with the 

Feather River to the Daguerre Dam (rkm 

19), or Suisun, San Pablo, and San 

Francisco Bays or the Sacramento-San 

Joaquin Delta from the Golden Gate 

Bridge up into the Sacramento River to 

Keswick Dam (rkm 483) occurs from 

July 1 through March 1 so as to 

substantially increase the likelihood 

that uninterrupted upstream spawning 

migrations of adults will occur; 

(iv) Take is non-lethal; 

(v) Take involving the removal of any 

life stage of the Southern DPS from the 

wild does not exceed 60 minutes; 

(vi) Take does not involve artificial 

spawning or enhancement activities; 

(vii) A description of the study 

objectives and justification, a summary 

of the study design and methodology, 

estimates of the total non-lethal take of 

Southern DPS fish anticipated, 

estimates of incidental take of other ESA 

listed species anticipated and proof that 

those takes have been authorized by 

NMFS or the USFWS, identification of 

funding sources, and a point of contact 

is reported to the NMFS Southwest 

Regional Office in Long Beach at least 

60 days prior to the start of the study, 

or by August 31, 2010 for ongoing 

studies; 

(viii) Reports that include the total 

number of Southern DPS and any other 

ESA listed species taken, information 

that supports that take was non-lethal, 

and a summary of the project results is 

submitted to the NMFS Southwest 

Regional Office in Long Beach on a 

schedule to be determined by NMFS; 

and 

(ix) Research or monitoring that 

involves action, permitting, or funding 

by a Federal agency still complies with 

the requirements of ESA section 7(a)(2) 

in order to ensure that the action will 

not jeopardize the continued existence 

of the threatened Southern DPS. 

(2) Enforcement Exception. The 

prohibitions of paragraph (a) of this 

section relating to the threatened 

Southern DPS listed in § 223.102(c)(1) 

do not apply to any employee of NMFS, 

when the employee, acting in the course 

of his or her official duties, takes the 

Southern DPS listed in § 223.102(c)(1) 

without a permit, if such action is 

necessary for purposes of enforcing the 

ESA or its implementing regulations. 

(3) Emergency Fish Rescue and 

Salvage Exceptions. The prohibitions of 

paragraph (a) of this section relating to 

the threatened Southern DPS listed in 

§ 223.102(c)(1) do not apply to 

emergency fish rescue and salvage 

activities that include aiding sick, 

injured, or stranded fish, disposing of 

dead fish, or salvaging dead fish for use 

in scientific studies, if: 

(i) The activity complies with 

required state or other Federal reviews 

or permits; 

(ii) The activity is conducted by an 

employee or designee of NMFS or the 

U.S. Fish and Wildlife Service 

(USFWS), any Federal land management 

agency, or California Department of Fish 

and Game, Oregon Department of Fish 

and Wildlife, Washington Department of 

Fish and Wildlife, or Alaska Department 

of Fish and Game; 

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(iii) The activity benefits the Southern 

DPS; and 

(iv) Those carrying out the activity 

submit a report to the NMFS Southwest 

Regional Office in Long Beach that 

includes, at a minimum, the number 

and status of fish handled, the location 

of rescue and/or salvage operations, and 

the potential causes(s) of the emergency 

situation within 10 days after 

conducting the emergency rescue. 

(4) Habitat Restoration Exceptions. 

The prohibitions of paragraph (a) of this 

section relating to the threatened 

Southern DPS listed in § 223.102(c)(1) 

do not apply to habitat restoration 

activities including barrier removal or 

modification to restore water flows, 

riverine or estuarine bed restoration, 

natural bank stabilization, restoration of 

native vegetation, removal of non-native 

species, or removal of contaminated 

sediments, that reestablish selfsustaining habitats for the Southern 

DPS, if: 

(i) The activity complies with 

required state and Federal reviews and 

permits; 

(ii) Those carrying out the activity 

submit a detailed description of the 

restoration activity to the NMFS 

Southwest Regional Office in Long 

Beach at least 60 days prior to the start 

of the restoration project, or, for ongoing 

studies, by August 31, 2010, which 

includes: the geographic area affected; 

when activities will occur; how they 

will be conducted; and the severity of 

direct, indirect, and cumulative impacts 

of activities on the Southern DPS; 

identification of funding sources; 

demonstration that all state and Federal 

regulatory requirements have been met; 

a description of methods used to ensure 

that the likelihood of survival or 

recovery of the listed species is not 

reduced; a plan for minimizing and 

mitigating any adverse impacts to 

Southern DPS spawning or rearing 

habitat; an estimate of the amount of 

incidental take of the listed species that 

may occur and a description of how that 

estimate was made; a plan for effective 

monitoring and adaptive management; a 

pledge to use best available science and 

technology when conducting restoration 

activities; and a point of contact; 

(iii) Those carrying out the activity 

submit progress reports that include the 

total number of Southern DPS fish 

taken, information regarding whether 

the take was lethal or non-lethal, a 

summary of the status of the project, 

and any changes in the methods being 

used, to the NMFS Southwest Regional 

Office in Long Beach on a schedule to 

be determined by NMFS; and 

(iv) An activity that involves action, 

permitting, or funding by a Federal 

agency complies with the requirements 

of ESA section 7(a)(2) in order to ensure 

that the action will not jeopardize the 

continued existence of the threatened 

Southern DPS. 

(c) Exemptions via ESA 4(d) Program 

Approval. Exemptions from the take 

prohibitions described in section 

9(a)(1)(B) and (C) of the ESA (16 U.S.C. 

1538(a)(1)(B) and (C)) applied in 

paragraph (a) of this section to the 

threatened Southern DPS listed in 

§ 223.102(c) are described in paragraphs 

(c)(1) through (c)(3) of this section. 

(1) Scientific Research and 

Monitoring Exemptions. The 

prohibitions of paragraph (a) of this 

section relating to the threatened 

Southern DPS listed in § 223.102(c)(1) 

do not apply to ongoing or future statesponsored scientific research or 

monitoring activities that are part of a 

NMFS-approved, ESA-compliant state 

4(d) research program conducted by, or 

in coordination with, state fishery 

management agencies (California 

Department of Fish and Game, Oregon 

Department of Fish and Wildlife, 

Washington Department of Fish and 

Wildlife, or Alaska Department of Fish 

and Game), or as part of a monitoring 

and research program overseen by, or 

coordinated by, one of these agencies. 

State 4(d) research programs must meet 

the following criteria: 

(i) Descriptions of the ongoing and 

future 4(d) research or monitoring 

activity, as described in paragraph 

(c)(1)(ii) of this section, must be 

received by the NMFS Southwest 

Regional Office in Long Beach during 

the mid-September through midOctober 2010 application period. This 

exception to the section 9 take 

prohibitions expires if the proposal is 

rejected as insufficient or is denied. If 

the state 4(d) research program package 

is received during the mid-September to 

mid-October application period, 

ongoing state-supported scientific 

research activities may continue until 

NMFS issues a written decision of 

approval or denial. If approved, the state 

4(d) program authorization will cover 

one calendar year and state-supported 

researchers would have to renew 

authorizations annually during 

subsequent application periods. 

(ii) Descriptions of ongoing and future 

state-supported research activities must 

include the following information and 

should be submitted to NMFS by the 

State: an estimate of total direct or 

incidental take; a description of the 

study design and methodology; a 

justification for take and the techniques 

employed; and a point of contact. 

(iii) NMFS will provide written 

approval of a state 4(d) research 

program. 

(iv) The State agency will provide an 

annual report to NMFS that, at a 

minimum, summarizes the number of 

Southern DPS green sturgeon taken 

directly or incidentally, and summarizes 

the results of the project. 

(2) Fisheries Exemptions. The 

prohibitions of paragraph (a) of this 

section relating to the threatened 

Southern DPS listed in § 223.102(c)(1) 

do not apply to fisheries activities that 

are conducted in accordance with a 

NMFS-approved Fishery Management 

and Evaluation Plan (FMEP). If NMFS 

finds that an FMEP meets the criteria 

listed below, a letter of concurrence 

which sets forth the terms of the FMEP’s 

implementation and the duties of the 

parties pursuant to the FMEP, will be 

issued to the applicant. 

(i) An FMEP must prohibit retention 

of green sturgeon (i.e., zero bag limit); 

set maximum incidental take levels, 

include restrictions to minimize 

incidental take of the green sturgeon 

(e.g., temporal/spatial restrictions, size 

of fish, gear used); provide a biologically 

based rationale demonstrating that the 

incidental take management strategy 

will not significantly reduce the 

likelihood of survival or recovery of the 

Southern DPS; include effective 

monitoring and evaluation plans; 

provide for evaluating monitoring data 

and making revisions to the FMEP; 

provide for effective enforcement and 

education; provide a timeframe for 

FMEP implementation; and report the 

amount of incidental take and 

summarize the effectiveness of the 

FMEP to NMFS on a biannual basis. 

(ii) The ESA section 9(a)(1)(B) and 

(a)(1)(C) take prohibitions will not apply 

to ongoing commercial and recreational 

fisheries activities until September 30, 

2010 if a letter of intent to develop an 

FMEP that is protective of green 

sturgeon has been received by NMFS by 

July 2, 2010. The exemption will expire 

if the letter of intent is rejected without 

further review of a FMEP. If the letter of 

intent is received by August 31, 2010, a 

draft FMEP must be received by NMFS 

within 6 months from the date of receipt 

of the letter of intent. A final FMEP 

must be received by NMFS within 3 

months from the date of receipt of 

NMFS’ comments on the draft FMEP. 

Ongoing commercial and recreational 

fisheries activities may continue until 

NMFS issues a letter of concurrence or 

denial for final FMEPs. 

(iii) NMFS will provide a public 

comment period (≥30 days) before 

approval of new or amended FMEPs; 

provide a letter of concurrence for 

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approved FMEPs that specifies the 

implementation and reporting 

requirements; evaluate FMEPs every 5 

years and identify changes that would 

improve their effectiveness; and provide 

a public comment period (≥30 days) 

before withdrawing approval of an 

FMEP. 

(3) Tribal Exemptions. The 

prohibitions of paragraph (a) of this 

section relating to the threatened 

Southern DPS listed in § 223.102(c)(1) 

do not apply to fishery harvest or other 

activities undertaken by a tribe, tribal 

member, tribal permittee, tribal 

employee, or tribal agent in Willapa 

Bay, WA, Grays Harbor, WA, Coos Bay, 

OR, Winchester Bay, OR, Humboldt 

Bay, CA, and any other area where tribal 

treaty fishing occurs, if those activities 

are compliant with a tribal resource 

management plan (Tribal Plan), 

provided that the Secretary determines 

that implementation of such Tribal Plan 

will not appreciably reduce the 

likelihood of survival and recovery of 

the Southern DPS. In making that 

determination the Secretary shall use 

the best available biological data 

(including any tribal data and analysis) 

to determine the Tribal Plan’s impact on 

the biological requirements of the 

species, and will assess the effect of the 

Tribal Plan on survival and recovery, 

consistent with legally enforceable tribal 

rights and with the Secretary’s trust 

responsibilities to tribes. 

(i) A Tribal Plan may include, but is 

not limited to, plans that address fishery 

harvest, artificial production, research, 

or water or land management, and may 

be developed by one tribe or jointly 

with other tribes. The Secretary will 

consult on a government-to-government 

basis with any tribe that so requests and 

will provide, to the maximum extent 

practicable, technical assistance in 

examining impacts on the Southern DPS 

as tribes develop Tribal Plans. A Tribal 

Plan must specify the procedures by 

which the tribe will enforce its 

provisions. 

(ii) Where there exists a Federal court 

proceeding with continuing jurisdiction 

over the subject matter of a Tribal Plan, 

the plan may be developed and 

implemented within the ongoing 

Federal Court proceeding. In such 

circumstances, compliance with the 

Tribal Plan’s terms shall be determined 

within that Federal Court proceeding. 

(iii) The Secretary shall seek comment 

from the public on the Secretary’s 

pending determination whether 

implementation of a Tribal Plan will 

appreciably reduce the likelihood of 

survival and recovery of the listed 

Southern DPS. 

(iv) The Secretary shall publish 

notification in the Federal Register of 

any determination regarding a Tribal 

Plan and the basis for that 

determination. 

(d) The exceptions of section 10 of the 

ESA (16 U.S.C. 1539) and other 

exceptions under the ESA relating to 

endangered species, including 

regulations in part 222 of this chapter II 

implementing such exceptions, also 

apply to the threatened Southern DPS of 

North American green sturgeon listed in 

§ 223.102(c)(1). Federal, state, and 

private-sponsored research activities for 

scientific research or enhancement 

purposes that are not covered under 

Scientific Research and Monitoring 

Exceptions as described in paragraph 

(b)(1) of this section or Scientific 

Research and Monitoring Exemptions as 

described in paragraph (c)(1) of this 

section, may take Southern DPS fish 

pursuant to the specifications of an ESA 

section 10 permit. Section 9(a)(1)(B) and 

(a)(1)(C) take prohibitions would not 

apply to ongoing research activities if an 

application for an ESA section 

10(a)(1)(A) permit is received by NMFS, 

preferably through the NMFS online 

application Web site https:// 

apps.nmfs.noaa.gov, no later than 

November 29, 2010. The take 

prohibitions would take effect if the 

permit application is rejected as 

insufficient or a permit is denied. If the 

permit application is received by 

November 29, 2010, ongoing research 

activities may continue without take 

prohibitions until NMFS issues or 

denies a permit. 

(e) Affirmative Defense. In connection 

with any action alleging a violation of 

the prohibitions of paragraph (a) of this 

section with respect to the threatened 

Southern DPS of North American green 

sturgeon listed in § 223.102(c)(1), any 

person claiming that his or her take is 

authorized via methods listed in 

paragraph (b) of this section shall have 

a defense where the person can 

demonstrate that the take authorization 

is applicable and was in force, and that 

the person fully complied with the take 

authorization requirements at the time 

of the alleged violation. This defense is 

an affirmative defense that must be 

raised, pleaded, and proven by the 

proponent. If proven, this defense will 

be an absolute defense to liability under 

section 9(a)(1)(G) of the ESA with 

respect to the alleged violation. 

[FR Doc. 2010–13233 Filed 6–1–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

RIN 0648–XW54 

Atlantic Highly Migratory Species; 

Atlantic Bluefin Tuna Fisheries 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; inseason 

General category retention limit 

adjustment. 

SUMMARY: NMFS has determined that 

the Atlantic tunas General category 

daily Atlantic bluefin tuna (BFT) 

retention limit should be adjusted for 

the June through August 2010 time 

period, based on consideration of the 

regulatory determination criteria 

regarding inseason adjustments. This 

action applies to Atlantic tunas General 

category permitted vessels and Highly 

Migratory Species Charter/Headboat 

category permitted vessels (when 

fishing commercially for BFT). 

DATES: Effective June 1, 2010, through 

August 31, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Sarah McLaughlin or Brad McHale, 

978–281–9260. 

SUPPLEMENTARY INFORMATION: 

Regulations implemented under the 

authority of the Atlantic Tunas 

Convention Act (16 U.S.C. 971 et seq.) 

and the Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act; 16 U.S.C. 1801 

et seq.) governing the harvest of BFT by 

persons and vessels subject to U.S. 

jurisdiction are found at 50 CFR part 

635. Section 635.27 subdivides the U.S. 

BFT quota recommended by the 

International Commission for the 

Conservation of Atlantic Tunas (ICCAT) 

among the various domestic fishing 

categories, per the allocations 

established in the 2006 Consolidated 

Highly Migratory Species Fishery 

Management Plan (2006 Consolidated 

HMS FMP) (71 FR 58058, October 2, 

2006). 

The 2010 BFT fishing year, which is 

managed on a calendar-year basis and 

subject to an annual calendar year 

quota, began January 1, 2010. The 

General category season, which was 

open for the month of January 2010, 

resumes on June 1, 2010, and continues 

through December 31, 2010. Starting on 

June 1, the General category daily 

retention limit (§ 635.23(a)(2)), is 

WReier-Aviles on DSKGBLS3C1PROD with RULES