53598 Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Rules and Regulations 

subchapter may not be marked with a 

RIN. 

* * * * * 

Issued in Washington, DC, on August 26, 

2010 under authority delegated in 49 CFR 

part 1. 

Cynthia L. Quarterman, 

Administrator, Pipeline and Hazardous 

Materials Safety Administration. 

[FR Doc. 2010–21759 Filed 8–31–10; 8:45 am] 

BILLING CODE 4910–60–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R6–ES–2009–0027; 

92220–1113–0000; ABC Code: C3] 

RIN 1018–AW27 

Endangered and Threatened Wildlife 

and Plants; Threatened Status for 

Shovelnose Sturgeon Under the 

Similarity of Appearance Provisions of 

the Endangered Species Act 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, determine it necessary 

to treat shovelnose sturgeon 

(Scaphirhynchus platorynchus) as 

threatened due to similarity of 

appearance to the endangered pallid 

sturgeon (Scaphirhynchus albus) under 

the similarity of appearance provisions 

of the Endangered Species Act of 1973, 

as amended. The shovelnose sturgeon 

and the endangered pallid sturgeon are 

difficult to differentiate in the wild and 

inhabit overlapping portions of the 

Missouri and Mississippi River basins. 

Commercial harvest of shovelnose 

sturgeon has resulted in the 

documented take of pallid sturgeon 

where the two species coexist and is a 

threat to the pallid sturgeon. This 

determination to treat shovelnose 

sturgeon due to similarity of appearance 

will substantially facilitate law 

enforcement actions to protect and 

conserve pallid sturgeon. This rule 

extends take prohibitions to shovelnose 

sturgeon, shovelnose-pallid sturgeon 

hybrids, and their roe when associated 

with a commercial fishing activity in 

areas where pallid sturgeon and 

shovelnose sturgeon commonly coexist. 

Accidental or incidental capture of 

pallid or shovelnose sturgeon, or 

shovelnose-pallid sturgeon hybrids, in 

commercial fishing gear will not be 

considered take provided the sturgeon 

are immediately released to the wild at 

the point where taken with roe intact. 

DATES: This rule becomes effective on 

October 1, 2010. 

FOR FURTHER INFORMATION CONTACT: 

George Jordan, Pallid Sturgeon Recovery 

Coordinator, 2900 4th Avenue North, 

Room 301, Billings, Montana 59101 

(telephone (406) 247–7365; facsimile 

(406) 247–7364). Public comments and 

literature referenced in association with 

this rule are available at http:// 

www.regulations.gov at Docket No. 

FWS–R6–ES–2009–0027 and at the 

above office, by appointment, during 

normal business hours. Persons who use 

a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 800/ 

877–8339, 24 hours a day, 7 days a 

week. 

SUPPLEMENTARY INFORMATION: 

Background 

In 1990, the U.S. Fish and Wildlife 

Service (Service) listed the pallid 

sturgeon (Scaphirhynchus albus) as 

endangered under the Endangered 

Species Act of 1973, as amended (Act) 

(16 U.S.C. 1531 et seq.) (55 FR 36641, 

September 6, 1990). The pallid sturgeon 

has a flattened, shovel-shaped snout, 

possesses a long and slender and 

completely armored caudal peduncle, 

and lacks a spiracle and belly scutes 

(Forbes and Richardson 1905, pp. 38– 

41). The pallid sturgeon is a bottomoriented species found only in portions 

of the Missouri and Mississippi River 

basins (Kallemeyn 1983, p. 4). The 

species can be long-lived (40 plus 

years), with females reaching sexual 

maturity later than males (Keenlyne and 

Jenkins 1993, pp. 393, 395). Pallid 

sturgeon at the northern end of their 

range can attain sizes (both length and 

weight) much larger than pallid 

sturgeon at the southern end of their 

range (Service 1993, p. 3). Current 

known threats to the pallid sturgeon 

include habitat modification, small 

population size, limited natural 

reproduction, hybridization, pollution 

and contamination, entrainment, and 

commercial harvest (Service 2007, pp. 

38–59). 

The pallid sturgeon and the 

shovelnose sturgeon are both members 

of the genus Scaphirhynchus. These 

sturgeon can be difficult to differentiate 

in the wild and inhabit overlapping 

portions of the Missouri and Mississippi 

River basins. Within these areas of 

overlap, four States continue to allow 

commercial harvest of shovelnose 

sturgeon. Take of the endangered pallid 

sturgeon has been documented to occur 

where this commercial fishery is 

allowed (Sheehan et al. 1997, p. 3; 

Service 2007, pp. 45–48; Bettoli et al. 

2009, p. 3). Incidental and illegal 

harvest of pallid sturgeon is a significant 

impediment to the survival and 

recovery of this species in some parts of 

its range (Service 2007, p. 45). Our 

recent 5-year status review 

recommended that we identify and 

implement measures to eliminate or 

significantly reduce illegal and 

accidental harvest of pallid sturgeon 

(Service 2007, p. 59). 

Previous Federal Actions 

On September 6, 1990, the pallid 

sturgeon was listed as endangered under 

the Act (55 FR 36641). At the time of 

listing, the primary threats and 

vulnerabilities for pallid sturgeon were 

curtailment of range, habitat destruction 

and modification, low population size, 

lack of recruitment, commercial harvest, 

pollution and contaminants, and 

hybridization (55 FR 36641, September 

6, 1990; Service 1993, pp. 10–15). Since 

listing, we worked cooperatively with 

State partners to address the threat 

posed by commercial harvest. A recent 

status review found that restrictions 

imposed through State fishing 

regulations had helped, but that 

incidental and illegal take during 

commercial harvest of shovelnose 

sturgeon was still having a substantial 

and detrimental effect on the pallid 

sturgeon (Service 2007, pp. 45–48). To 

address this issue, on September 22, 

2009, we published in the Federal 

Register a proposed rule to treat the 

shovelnose sturgeon as a threatened 

species due to its similarity of 

appearance to the endangered pallid 

sturgeon (74 FR 48215). 

Public Comments Solicited 

As part of the September 22, 2009, 

proposed rule (74 FR 48215), we 

requested interested parties to provide 

comments and materials concerning the 

proposed rule during a 60-day public 

comment period. We contacted all 

appropriate State and Federal agencies, 

county governments, elected officials, 

scientific organizations, and other 

interested parties and invited them to 

comment. During the public comment 

period, we received several requests for 

a public hearing. On January 14, 2010, 

we published a Federal Register notice 

announcing a 21-day reopening of the 

comment period and an informational 

meeting and public hearing on January 

28, 2010, in Cape Girardeau, Missouri 

(75 FR 2102). 

Peer Review 

In accordance with our policy for peer 

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

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Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Rules and Regulations 53599 

the Office of Management and Budget’s 

(OMB) Final Information Quality 

Bulletin for Peer Review, dated 

December 16, 2004, we solicited review 

of the science in this rule from five 

independent specialists. That review 

process was conducted to ensure the use 

of the best scientific and commercial 

information available and to ensure and 

maximize the quality, objectivity, 

utility, and integrity of the information 

upon which this action is based. We 

received written responses from three of 

the peer reviewers. All three reviewers 

indicated: (1) The data presented were 

relevant and accurate; (2) the 

conclusions in the proposed rule were 

logically supported by the data 

presented; (3) necessary and pertinent 

information was included; and (4) the 

action will help conserve pallid 

sturgeon. Specific issues raised are 

discussed below. 

Summary of Public Comments 

During the comment periods, we 

received approximately 40 comments 

(written and oral) representing 8 State 

agencies, 1 Federal agency, and 20 

individuals representing themselves or 

their businesses and/or organizations, as 

well as responses from three peer 

reviewers. All comments are now 

available for inspection at http:// 

www.regulations.gov in Docket No. 

FWS–R6–ES–2009–0027. 

We reviewed and considered all 

comments in this final decision. Written 

comments and oral statements 

presented at the public hearing and 

received during the comment periods 

are addressed in the following summary 

or incorporated directly into this final 

rule. Comments of a similar nature are 

grouped together under subject headings 

in a series of ‘‘Issues’’ and ‘‘Responses.’’ 

Issue 1: Several commenters indicated 

that treating shovelnose sturgeon as 

threatened due to similarity of 

appearance to pallid sturgeon will close 

commercial sturgeon fishing resulting in 

a negative economic impact on those 

engaged in this activity. 

Response: We recognize that treating 

shovelnose sturgeon as threatened due 

to similarity of appearance with pallid 

sturgeon will close commercial harvest 

of shovelnose sturgeon from waters 

commonly occupied by pallid sturgeon. 

Under section 4(e), the Act allows us to 

regulate commerce and take to the 

extent advisable when it is considered 

necessary to protect a listed species. In 

order to comply with the Act and 

reduce potential negative economic 

impacts, this rule covers the minimal 

geographic extent necessary to 

effectively conserve pallid sturgeon. 

This rule will not affect commercial 

shovelnose sturgeon harvest, where 

permitted by the States or tribes, in 

waters where pallid sturgeon do not 

commonly occur (i.e., those areas not 

identified under § 17.44, Special rules— 

fishes, in this rule). 

Issue 2: A few commenters felt the 

methods used to estimate mortality of 

both pallid and shovelnose sturgeon in 

the proposed rule (74 FR 48215, 

September 22, 2009) were flawed 

because the methods of both Killgore et 

al. (2007) and Colombo et al. (2007) 

used a catch curve to estimate mortality. 

Specifically, the commenters asserted 

that the assumption that there is 

consistent reproduction and recruitment 

among years is not consistent with the 

life-history characteristics of shovelnose 

and pallid sturgeon. 

Response: In both the Killgore et al. 

(2007) and Colombo et al. (2007) peerreviewed publications, the authors 

describe their methods to account for 

inconsistent reproduction and 

recruitment. Killgore et al. (2007, 

p. 453) pooled their data among years 

and examined their data for variability 

among year-classes. Colombo et al. 

(2007, p. 445) also pooled their data by 

age class among years. Pooling annual 

data from successive sample years is an 

acceptable method to account for 

moderate and random fluctuations in 

recruitment when employing catch 

curves to estimate survival (Ricker 1975, 

p. 36). We believe these studies present 

the best available data and use accepted 

methodologies. 

Issue 3: One commenter believed that 

existing harvest length regulations are 

protective of gravid female pallid 

sturgeon. These regulations set a 

maximum harvest limit for shovelnose 

sturgeon on the Mississippi River in 

Missouri and Illinois at 81.3 centimeters 

(cm) (32.0 inches (in.)) fork length. The 

commenter had never observed a gravid 

pallid sturgeon smaller than this limit 

and thought gravid female pallid 

sturgeon should be readily identifiable 

based on length. 

Response: Since 1992, 11 wild-caught 

female pallid sturgeon were spawned in 

captivity at Missouri’s Blind Pony State 

Fish Hatchery (Drecktrah 2009). Of 

these, five were less than 81.3 cm (32.0 

in.) fork length, one measured 81.5 cm 

(32.1 in.) fork length, and five were 

longer than 98.8 cm (38.9 in.) (Drecktrah 

2009). The two smallest gravid female 

pallid sturgeon spawned were 77.5 cm 

(30.5 in.) fork length. In 2009, at Neosho 

National Fish Hatchery, one gravid 

female pallid sturgeon was spawned 

that was 75.7 cm (29.8 in.) (Herzog 

2010). These data illustrate the fact that 

that size alone cannot be used to 

identify species and current maximum 

harvest size limits for shovelnose 

sturgeon on the Mississippi River (81.3 

cm (32 in.)) and the Missouri River (76.2 

cm (30 in.)) are inadequate to protect all 

gravid female pallid sturgeon. 

Issue 4: Several commenters indicated 

that protection for shovelnose-pallid 

sturgeon hybrids was unwarranted and 

that allowing harvest of hybrid sturgeon 

would be a benefit to pallid sturgeon. 

Response: The evolutionary 

relationship between pallid and 

shovelnose sturgeon is poorly 

understood and additional data and 

analyses are necessary to fully 

understand the relationship between 

putative hybrids and pallid and 

shovelnose sturgeon (Service 2007, pp. 

25–26). In one study, morphometriconly indices assigned study specimens 

to the pallid sturgeon, shovelnose 

sturgeon, and putative hybrid groups 

(Murphy et al. 2007, p. 319). However, 

sheared principal component analysis of 

the same study specimens resulted in 

some putative hybrid specimens 

clustering with the pallid sturgeon 

group and other hybrid specimens 

clustering with the shovelnose sturgeon 

group (Murphy et al. 2007, p. 319). In 

another study, genetic identification 

revealed that pallid sturgeon identified 

using the character index (CI) and 

morphometric character index (mCI) 

were miscategorized (Schrey 2007, pp. 

74–75, 120). Thus, some sturgeon that 

appear intermediate in character based 

on the CI or the mCI (presumed hybrids) 

may actually be pallid sturgeon. Given 

these uncertainties, law enforcement 

personnel would have substantial 

difficulty enforcing regulations allowing 

harvest of shovelnose-pallid sturgeon 

hybrids. Thus, extending protections to 

shovelnose sturgeon and to shovelnosepallid sturgeon hybrids is the only way 

to ensure that pallid sturgeon are not 

inadvertently harvested from areas 

where these two species co-occur. 

Issue 5: Several commenters indicated 

that treating shovelnose sturgeon as 

threatened due to similarity of 

appearance to pallid sturgeon is not 

warranted. These commenters 

referenced recent regulation changes 

implemented by the Illinois Department 

of Natural Resources and a study of the 

new regulation’s effectiveness 

sanctioned by the Mississippi Interstate 

Cooperative Resources Association 

(Maher et al. 2009). These commenters 

state that in this study 946 sturgeon 

carcasses were collected from 

commercial fishermen, and none were 

determined by genetic analysis to be 

pallid sturgeon. Based on those data, 

commenters contend that differentiation 

between pallid and shovelnose sturgeon 

could occur with a 100 percent level of 

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53600 Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Rules and Regulations 

accuracy with proper training and 

implementation. 

Response: In 2007, the Illinois 

Department of Natural Resources 

instituted additional protective State 

regulations intended to eliminate pallid 

sturgeon harvest. These regulations 

prohibited take of or harm to pallid 

sturgeon and mandated their immediate 

release upon capture. These regulations 

also prohibited commercial harvest of 

shovelnose-pallid sturgeon hybrids 

downstream from Lock and Dam 26 on 

the Mississippi River. Specifically, these 

regulations prohibited take and 

mandated immediate release of any 

Scaphirhynchus that had any of the 

following: (1) Belly completely lacking 

in scales; (2) bases of outer barbels 

located slightly behind bases of inner 

barbels; or (3) length of inner barbels at 

least 6.3 times the length of head. 

The new Illinois regulations as well as 

the existing Missouri and Kentucky 

regulations were evaluated to determine 

if they were effective in preventing 

bycatch of pallid sturgeon in the harvest 

of shovelnose sturgeon (Maher et al. 

2009, p. 2). This study examined 946 

carcasses from commercial fisherman 

including 513 collected in Illinois under 

their new regulations (Maher et al. 2009, 

pp. 3–4). Specimens were evaluated 

based on CI, mCI, barbel alignment, the 

presence or absence of belly scales, and 

the ratio of head length to barbel length 

(Maher et al. 2009, p. 3). Based on 

professional judgment, the authors did 

not believe any of the carcasses were 

pallid sturgeon (Maher et al. 2009, p. 4). 

However, the data were less clear. 

The CI and mCI scores yielded 

different results when applied to the 

same carcasses. The CI scores indicated 

4 of the carcasses were pallid sturgeon 

including 2 harvested by Illinois 

fishermen; 31 specimens were likely 

shovelnose-pallid sturgeon hybrids 

including 24 harvested by Illinois 

fishermen (Maher et al. 2009, pp. 4, 

8–11). None of these 946 carcasses were 

deemed to be pallid sturgeon based on 

mCI scores, but 30 specimens were 

likely shovelnose-pallid sturgeon 

hybrids including 9 harvested by 

Illinois fishermen (Maher et al. 2009, 

pp. 4, 14–17). Genetic testing on 84 

sturgeon (44 from Illinois, 20 from 

Kentucky, and 20 from Missouri) with 

the lowest CI values (most pallid 

sturgeon like) indicated that several of 

the carcasses were likely shovelnosepallid sturgeon hybrids (Heist and Boley 

2009, p. 3). Eighty-five of the specimens 

had barbel alignment consistent with 

pallid sturgeon including 78 in Illinois 

(Maher et al. 2009, pp. 4–5). None of the 

specimens had bellies that were absent 

scales consistent with pallid sturgeon, 

but 37 carcasses had partial or small 

scales on their bellies indicative of 

shovelnose-pallid sturgeon hybrids 

(Maher et al. 2009, pp. 4–5). Finally, 

none of the specimens’ ratio of head 

length to barbel length were indicative 

of pallid sturgeon (Maher et al. 2009, 

pp. 4–5). 

As these data demonstrate, field-level 

identification based solely on character 

indices is subjective and not without 

some uncertainty. This subjectivity and 

uncertainty is reflected in the 2007 

Illinois regulations. These regulations 

indicate that it is illegal to harvest any 

sturgeon that has ‘‘bases of outer barbels 

located slightly farther behind bases of 

inner barbels.’’ The word ‘‘slightly’’ is 

subjective and difficult to apply 

consistently among observers (Maher et 

al. 2009, p. 4). For instance, 28 of the 

78 sturgeon caught in Illinois had barbel 

alignment consistent with pallid 

sturgeon; however, because the outer 

barbels inserted only ‘‘slightly’’ behind 

the inner barbels, the data were 

analyzed with and without the 28 

specimens (Maher et al. 2009, p. 4). In 

this case, the word ‘‘slightly’’ introduced 

ambiguity into identification efforts. 

In total, more than 10 percent of the 

specimens harvested in Illinois were 

harvested in violation of Illinois 

regulations as they showed 

characteristics intermediate between 

pallid and shovelnose sturgeon (Maher 

et al. 2009, pp. 5–6). Because some 

sturgeon that appear intermediate (i.e., 

presumed hybrids) may actually be 

pallid sturgeon (Wills et al. 2002, pp. 

255–256; Schrey 2007, pp. 74, 120), we 

remain concerned that even in a highly 

regulated arena, harvest of shovelnose 

sturgeon and their roe results in the take 

of pallid sturgeon where the two species 

are sympatric. 

One of the requirements of treating 

any species as endangered or threatened 

under Section 4(e) of the Act is related 

to law enforcement difficulties with 

differentiating between a listed and 

unlisted species. The available data 

demonstrate that both fishermen and 

enforcement personnel are having and 

will continue to have substantial 

difficulty in differentiating between 

these species where they coexist. 

Issue 6: A few commenters 

highlighted an error in Table 1 of the 

proposed rule (74 FR 48215, September 

22, 2009). Specifically, we reported 

3,808 kilograms (8,395 pounds) of roe 

being harvested in Illinois’ Mississippi 

River below Melvin Price Lock and Dam 

(Lock and Dam 26) in 2005, when the 

actual number was 166 kilograms (365 

pounds). 

Response: This error has been 

corrected in Table 1 of this rule. 

Consideration of this error does not 

change our determination. The available 

data demonstrate a substantial level of 

commercial harvest of shovelnose, 

including both flesh and roe, is 

occurring in areas where both pallid and 

shovelnose sturgeon coexist. This 

harvest is resulting in incidental and 

illegal harvest of pallid sturgeon 

(Sheehan et al. 1997, p. 3; Bettoli et al. 

2009, p. 3), which is a significant 

impediment to the survival and 

recovery of the pallid sturgeon. 

Issue 7: One commenter was unable to 

find any evidence that we conducted an 

environmental impact study to 

determine the economic impact to 

fishermen and associated communities 

as a result of this decision. 

Response: An Environmental 

Assessment or Environmental Impact 

Statement, as defined under the 

authority of the National Environmental 

Policy Act of 1969 (NEPA) (42 U.S.C. 

4331 et seq.), need not be prepared in 

connection with listing regulations 

adopted pursuant to section 4 of the 

Act. We published a notice outlining 

our reasons for this determination in the 

Federal Register on October 25, 1983 

(48 FR 49244). We determined that this 

rationale also applies to the associated 

section 4(d) rule. 

Issue 8: Several States and one notfor-profit organization observed that 

closing commercial shovelnose sturgeon 

fishing in waters where they commonly 

coexist with pallid sturgeon could result 

in increased shovelnose sturgeon 

harvest pressures in waters that remain 

open. The concern raised is that this 

shift in pressure could result in 

overharvest of shovelnose sturgeon 

populations in areas outside the range of 

pallid sturgeon. 

Response: Twenty-four States 

comprise the historical range of 

shovelnose sturgeon. Of these, eight 

allow for commercial harvest of 

shovelnose sturgeon; this action will 

halt commercial harvest of shovelnose 

sturgeon in four of these eight where 

shovelnose and pallid sturgeon coexist. 

Shovelnose sturgeon that occupy waters 

outside the areas regulated by this rule 

are subject to State commercial fishing 

regulations. Those States that 

acknowledged that a probable shift in 

harvest pressures is likely as a result of 

this rule indicated that their existing 

regulations are adequate to conserve 

shovelnose sturgeon. We believe that a 

combination of existing State 

regulations and the additional 

protections provided under this rule 

will facilitate conservation of both 

shovelnose and pallid sturgeon. 

However, we acknowledge this rule 

does not afford additional protections to 

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Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Rules and Regulations 53601 

shovelnose sturgeon outside of its 

sympatric range of the pallid sturgeon. 

Thus, we will continue to work and 

cooperate with State resource agencies, 

the Mississippi Interstate Cooperative 

Resources Association and the Upper 

Mississippi River Conservation 

Committee, and other interested parties 

to help manage and monitor shovelnose 

sturgeon harvest where it occurs. 

Issue 9: Several commenters 

highlighted other threats to pallid 

sturgeon, including non-native invasive 

species and habitat alteration. These 

comments imply we should focus on 

these other threat factors rather than the 

take issue being addressed by this rule. 

Response: This rule is being 

undertaken to address documented take 

of an endangered species, the pallid 

sturgeon, due to similarity of 

appearance to shovelnose sturgeon. The 

take is occurring through commercial 

harvest of shovelnose sturgeon where 

allowed. Through the provisions of 

section 4(e) of the Act, we are 

employing a mechanism to help address 

this take, which is an identified threat 

to the pallid sturgeon (55 FR 36641; 

Service 2007, pp. 45–48, 57). We are not 

assessing the pallid sturgeon in this rule 

in accordance with section 4(a) of the 

Act. However, we concur with the 

commenter that habitat destruction or 

alteration is a threat to this species as 

we described in our 2007 5-year review 

(Service 2007, pp. 38–45, 56). We are 

actively working with State and Federal 

partners to implement restoration 

activities to address habitat issues 

throughout the range of the pallid 

sturgeon. Examples include the efforts 

of the Upper and Lower Mississippi 

River Conservation Committees and 

U.S. Army Corps of Engineers Missouri 

River Recovery Program. These 

partnerships and programs have 

restored side channel connectivity and 

modified existing in-channel structures 

(i.e., dike notching) to increase habitat 

complexity. We are currently reviewing 

available data to better evaluate effects 

from invasive species. While these are 

important efforts, we also determined 

that the mortality of reproductivecondition female pallid sturgeon 

associated with commercial fishing 

must be addressed in order to conserve 

the species and achieve recovery. 

Issue 10: The State of Wyoming 

identified potential confusion 

associated with the word ‘‘entire’’ found 

under the column heading ‘‘Vertebrate 

population where endangered or 

threatened’’ in § 17.11 Endangered and 

Threatened Wildlife. The confusion is 

associated with the rule treating 

shovelnose sturgeon as threatened due 

to similarity of appearance to pallid 

sturgeon in waters where both species 

commonly coexist. There are several 

States identified in this table that are 

not within the documented historical 

range of pallid sturgeon. 

Response: The table in Part 17 

delineates the historic range of the 

shovelnose sturgeon and identifies the 

population where treated as endangered 

or threatened is over the entire range of 

the species. However, section 4(e) 

allows for regulation of commerce and 

take as deemed advisable. The special 

rule described under § 17.44(aa) 

articulates the portions of the range in 

which take will be regulated under this 

rule. In this case, the shovelnose 

sturgeon’s historic range occurs in 24 

States; however, shovelnose and 

shovelnose–pallid sturgeon hybrid 

populations covered by this special rule 

occur in portions of 13 States. 

Therefore, Wyoming and several other 

States that historically or currently 

support shovelnose sturgeon 

populations but not pallid sturgeon are 

not identified in this rule and will not 

be regulated and subject to shovelnose 

sturgeon take prohibitions as a result of 

this rule. 

Issue 11: One commenter encouraged 

us to conduct a review of shovelnose 

sturgeon to determine if threatened 

status is warranted for this species 

range-wide. This commenter provided 

references to several publications that 

suggest shovelnose sturgeon are being 

over-harvested in the middle and upper 

Mississippi Rivers (Colombo et al. 2007; 

Koch et al. 2007; Tripp et al. 2009). The 

commenter also recommended that if 

additional protections were not 

warranted, we should work with State 

agencies to implement strict size limits 

on commercial harvest to better protect 

shovelnose sturgeon where they are 

commercially harvested. 

Response: This action was initiated to 

address documented take occurring of 

an existing listed species and provide 

for the conservation of that listed 

species—the endangered pallid 

sturgeon. We are not assessing the status 

of the shovelnose sturgeon in this rule. 

We have a separate petition process and 

our own internal candidate assessment 

process to elevate species for listing 

consideration. In the context of this 

regulation, we have considered this 

comment and believe that the 

combination of existing State 

regulations and the protections 

provided in this rule address many of 

the concerns highlighted in the cited 

literature (Colombo et al. 2007; Koch et 

al. 2007; Tripp et al. 2009). We also 

intend to continue working with the 

States and various committees to ensure 

adequate regulations exist where 

commercial shovelnose sturgeon harvest 

is permitted. Should future data 

indicate the shovelnose sturgeon meets 

the Act’s definition of threatened or 

endangered, we would initiate a status 

review and propose listing the species if 

warranted. 

Similarity of Appearance 

Determination 

Section 4(e) of the Act and 

implementing regulations (50 CFR 

17.50–17.52) authorize the Secretary of 

the Interior to treat a species as an 

endangered or threatened species even 

though it is not itself listed if: (a) The 

species so closely resembles in 

appearance a listed endangered or 

threatened species that law enforcement 

personnel would have substantial 

difficulty in attempting to differentiate 

between the listed and unlisted species; 

(b) the effect of this substantial 

difficulty is an additional threat to an 

endangered or threatened species; and 

(c) such treatment of an unlisted species 

will substantially facilitate the 

enforcement and further the purposes of 

the Act. With regard to shovelnose 

sturgeon, we believe all of these factors 

apply. 

The shovelnose sturgeon 

(Scaphirhynchus platorynchus) is 

similar in appearance to the pallid 

sturgeon and inhabits overlapping 

portions of the Missouri and Mississippi 

River basins (Bailey and Cross 1954, pp. 

175–190). Morphological characteristics 

(i.e., body measurements) and meristic 

counts (i.e., number of fin rays) have 

been used to distinguish between the 

two Scaphirhynchus species. However, 

those characters were based on a limited 

number of pallid sturgeon (15) and of 

shovelnose sturgeon (16) specimens 

(Bailey and Cross 1954, pp. 177–179). 

Two indices, CI and mCI, were 

developed to help differentiate between 

the species and account for putative 

hybrid individuals (Wills et al. 2002, 

pp. 249–258). The CI uses both 

morphometric ratios and meristic 

counts (number of fin rays in both the 

dorsal and anal fins); mCI is based only 

on the five morphometric ratios and was 

developed because the meristic counts 

can be difficult to accurately obtain 

from live specimens (Wills et al. 2002, 

p. 250). Both indices utilized five ratios 

of morphometric measurements based 

on careful length measurements of both 

the inner and outer barbels, the head 

length, the interrostrum length, and the 

mouth-to-inner-barbel distance. While 

both indices did a good job of properly 

classifying pallid sturgeon (Wills et al. 

2002, p. 253), errors occurred when 

putative hybrids overlapped the 

parental forms (Wills et al. 2002, pp. 

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53602 Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Rules and Regulations 

253–254). Both indices had an error rate 

of approximately 10 percent (Wills et 

al., pp. 255–256). Thus, Wills et al. 

(2002, p. 257) recommended 

incorporating molecular genetic 

techniques to verify species 

delineations. 

Genetic analysis of Scaphirhynchus 

specimens to test the performance of 

several character indices, including CI 

and mCI suggest that at least 1.9 percent 

of sampled individuals were 

misidentified (Schrey 2007, p. 75). 

Specifically, CI appeared to perform 

better than the other indices by not 

classifying genetic pallid sturgeon as 

shovelnose or shovelnose-pallid 

sturgeon hybrids, but did classify 

genetic shovelnose sturgeon as pallid 

sturgeon (Schrey 2007, pp. 75–76). 

Similarly, mCI did not classify genetic 

pallid sturgeon as shovelnose sturgeon, 

but did classify genetic shovelnose as 

pallid sturgeon (Schrey 2007, p. 75). 

However, mCI misclassified genetic 

pallid sturgeon as shovelnose-pallid 

sturgeon hybrids (Schrey 2007, p. 75). 

The CI performs better than the other 

indices because it relies on dorsal and 

anal fin ray counts. However, dorsal and 

anal fin ray counts can be difficult to 

obtain from live specimens (Wills et al. 

2002, p. 250; Schrey 2007, p. 76); mCI 

was developed in recognition of this 

difficulty. In order to provide the 

greatest confidence in species 

identification, both genetic and 

morphological analyses are required 

(Schrey 2007, p. 80). 

Other recent analyses confirm limited 

success applying character indices 

universally across the geographic range 

of the species (Kuhajda et al. 2007, pp. 

344–346; Murphy et al. 2007, p. 322). 

Furthermore, available data indicate 

character indices do not work well on 

smaller sized specimens (Kuhajda et al. 

2007, pp. 324, 344). 

Currently, biologists use an approach 

requiring up to 13 morphometric body 

measurements, multivariate analysis, 

meristic counts (i.e., the number of 

dorsal and anal fin rays), and genetic 

data to reliably differentiate between the 

2 species. Many of these methods 

require data collection and analysis that 

are not easily implemented in field-level 

applications and are not immediately 

available to commercial fishermen at the 

time of harvest or to law enforcement 

personnel at the time of determining 

whether a violation has occurred. 

Finally, while genetic tests can 

differentiate Scaphirhynchus eggs from 

those of other genera, at this time, 

processed roe cannot be differentiated 

as having been derived from shovelnose 

sturgeon, harvest of which may be legal, 

or pallid sturgeon, harvest of which is 

illegal (Curtis 2008). This similarity 

poses a problem for Federal and State 

law enforcement agents trying to 

address illegal trade in pallid sturgeon 

roe. 

While harvest of pallid sturgeon is 

prohibited by section 9 of the Act and 

by State regulations throughout its 

range, commercial harvest of shovelnose 

sturgeon has resulted in the 

documented take of pallid sturgeon 

(Sheehan et al. 1997, p. 3; Bettoli et al. 

2009, p. 3; Service 2007, pp. 45–48). 

Four States allow commercial harvest of 

shovelnose sturgeon from waters 

commonly occupied by pallid sturgeon 

(Service 1993, pp. 3–5). These are 

Tennessee (Tennessee 2008, pp. 4–5), 

Missouri (except on the Missouri River 

upstream of the Kansas River to the 

Iowa border) (Missouri 2008, pp. 10– 

11), Kentucky (Kentucky 2008, pp. 1–2), 

and Illinois (below Mel Price Locks and 

Dam) (Illinois 2007, pp. 3–5; Illinois 

2008, p. 2). To protect pallid sturgeon, 

fishing seasons with maximum 

harvestable size limits for shovelnose 

sturgeon have been established (Bettoli 

et al. 2009, pp. 1–2). However, 

harvestable size limits for shovelnose 

sturgeon cannot protect pallid sturgeon 

that fall within the harvestable size 

limits if pallid sturgeon cannot be 

reliably differentiated from shovelnose 

sturgeon. 

Along the Tennessee portion of the 

Mississippi River, commercial fishers 

misidentified 29 percent of the 

encountered pallid sturgeon (Bettoli et 

al. 2009, p. 3) and a minimum of 1.8 

percent of total sturgeon harvest was 

endangered pallid sturgeon (Bettoli et 

al. 2009, p. 3). Applying this minimum 

harvest estimate to the 2005–2007 

commercial shovelnose fishing seasons 

within Tennessee results in a minimum 

harvest estimate of 169 adult pallid 

sturgeon (Bettoli et al. 2009, p. 1). 

Extrapolating this minimum estimate of 

pallid sturgeon take across the four 

States that allow for commercial harvest 

of shovelnose sturgeon where the two 

species commonly coexist implies 

annual incidental take is a substantial 

source of pallid sturgeon mortality and 

a threat to the species’ survival and 

recovery. 

Furthermore, total annual pallid 

sturgeon mortality rates are higher 

where commercial harvest of shovelnose 

sturgeon occurs compared to areas 

without commercial harvest (30 percent 

versus 7–11 percent) (Killgore et al. 

2007, pp. 454–455). Maximum 

identified ages of pallid sturgeon are 

substantially lower in commercially 

fished reaches of the Mississippi River 

(14 years) than in noncommercially 

fished reaches of the Mississippi River 

(21 years) (Killgore et al. 2007, p. 454). 

Harvested and protected populations 

should have considerably different 

mortality rates (and, therefore, 

corresponding different maximum ages); 

however, the endangered pallid 

sturgeon have similar mortality rates as 

the harvested shovelnose sturgeon in 

the middle Mississippi River (Colombo 

et al. 2007, p. 449). This information 

provides further evidence that illegal 

harvest of pallid sturgeon is occurring. 

Because female sturgeon do not begin 

egg development until ages 9–12 years, 

may not spawn until ages 15–20 years, 

and may not spawn every year 

(Keenlyne and Jenkins 1993, p. 395), 

mortality associated with commercial 

fishing activity is likely substantially 

lowering recruitment, negatively 

impacting population growth, and 

ultimately affecting recovery. 

Much of the domestic sturgeon fishing 

pressure has been driven by 

international sturgeon supply and 

increasing price trends. International 

sturgeon catch declined from the record 

peak of 32,078 metric tons (70,719,884 

pounds) in 1978 to 2,658 metric tons 

(5,859,886 pounds) in 2000 (FAO 

Fisheries Circular 2004, executive 

summary). This reduction in supply 

resulted in exponential increase in 

caviar prices subsequent to the 1978 

peak (Bardi and Yaxley 2005, p. 2). 

Since 1998, international trade in all 

species of sturgeon has been regulated 

under the Convention on International 

Trade in Endangered Species of Wild 

Fauna and Flora (CITES) owing to 

concerns over the impact of 

international trade on sturgeon 

populations in the wild. Recent CITES 

sturgeon quotas have further limited 

supply and exacerbated price pressures 

(CITES 2005, pp. 1–5, 8–9; CITES 2006, 

pp. 1, 5–6, 10–11; CITES 2007, pp. 1, 3– 

5, 8–9; CITES 2008, pp. 3, 7, 8, 11, 14). 

We expect commercial pressures on 

domestic sturgeon to remain constant or 

possibly increase due, in part, to current 

restrictions on importation of beluga 

sturgeon (Huso huso) caviar into the 

United States (70 FR 57316, September 

30, 2005; 70 FR 62135, October 28, 

2005) due to its status as a threatened 

species and the general trend toward 

reduced caviar exports from the Caspian 

Sea and Black Sea sturgeon stocks. 

State commercial fishing data (Table 

1) demonstrate a substantial level of 

commercial harvest of shovelnose 

sturgeon, including both flesh and roe, 

from areas where both shovelnose and 

pallid sturgeon coexist (Williamson 

2003, pp. 118–120; Maher 2008; 

Scholten 2008a; Scholten 2008b; 

Travnichek 2008; Illinois DNR 2009). 

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Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Rules and Regulations 53603 

TABLE 1—REPORTED COMMERCIAL HARVEST OF SHOVELNOSE STURGEON FLESH AND ROE IN POUNDS FROM 1995–2007 

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

AND PALLID STURGEON COEXIST

[Illinois DNR 2009; Scholten 2008a, 2008b; Travnichek 2008; Williamson 2003] 

1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 

Flesh 

Illinois ............... 405 3,475 6,115 2,855 3,798 1,576 3,074 1,541 600 2,931 2,599 * * 

Kentucky ........... * * * * 25 9,938 13,059 8,324 1,413 5,167 16,324 14,130 10,043 

Missouri ............ 6,201 10,142 8,231 9,089 19,655 23,394 77,498 43,211 23,956 28,818 10,002 6,526 5,220 

Tennessee ........ * * * * * 4,178 2,178 3,519 5,759 4,005 17,297 12,926 7,812 

Total .......... 6,606 13,617 14,346 11,944 23,478 39,086 95,809 56,595 31,728 40,921 46,222 33,582 23,075 

Roe 

Illinois ............... 0 28 65 87 0 16 208 402 136 585 365 554 * 

Kentucky ........... * * * * * 527 1,021 731 258 554 1,844 1,648 1,738 

Missouri ............ * * * * * * * * 4,490 3,504 2,356 1,907 1,420 

Tennessee ........ * * * * * * * 660 1,001 665 2,290 2,027 1,366 

Total .......... 0 28 65 87 0 543 1,229 1,793 5,883 5,308 6,855 6,136 4,524 

Illinois shovelnose harvest includes Mississippi River catch downstream of Mel Price Locks and Dam; Missouri shovelnose harvest includes 

both Mississippi River (downstream of Mel Price Locks and Dam) and Missouri River (except on the Missouri River upstream of the Kansas River 

to the Iowa border) catches; and Tennessee and Kentucky shovelnose harvest includes Mississippi River catch. Tennessee’s flesh data were extrapolated using length-weight relationships from total fish harvested. 

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

Incidental, illegal harvest of pallid 

sturgeon is a significant impediment to 

the survival and recovery of this species 

in some portions of its range (Service 

2007, p. 45). We recommended in our 

2007 5-year status review that we 

should identify and implement 

measures to eliminate or significantly 

reduce illegal and accidental harvest of 

pallid sturgeon (Service 2007, p. 59). 

Treating the shovelnose sturgeon as a 

threatened species, under section 4(e) of 

the Act, will result in termination of 

commercial harvest of shovelnose 

sturgeon and shovelnose-pallid sturgeon 

hybrids where they commonly coexist 

with pallid sturgeon. This action will 

facilitate the enforcement of take 

protections for pallid sturgeon and 

substantially reduce or eliminate take of 

pallid sturgeon associated with 

commercial harvest of shovelnose 

sturgeon and their roe. Reduction of 

take of pallid sturgeon will facilitate the 

species’ survival, reproduction, and, 

ultimately, its recovery. For these 

reasons, we will treat the shovelnose 

sturgeon as threatened due to similarity 

of appearance to the pallid sturgeon in 

those areas where the two species 

commonly coexist, in accordance with 

section 4(e) of the Act. 

Section 4(d) ‘‘Special Rule’’ Regulating 

Take 

When a species is considered 

threatened under the Act, the Secretary 

may specify regulations that he deems 

necessary to provide for the 

conservation of that species under a rule 

authorized by section 4(d) of the Act. 

These rules, commonly referred to as 

‘‘special rules,’’ are found in part 17 of 

title 50 of the Code of Federal 

Regulations (CFR) in sections 17.40– 

17.48. This special rule for § 17.44, 

which deals with fishes, prohibits take 

of any shovelnose sturgeon, shovelnosepallid sturgeon hybrids, or their roe 

when associated with or related to a 

commercial fishing activity in those 

portions of its range that commonly 

overlap with the range of the 

endangered pallid sturgeon. In this 

context, commercial fishing purposes is 

considered as any activity where 

shovelnose sturgeon and shovelnosepallid sturgeon hybrid roe or flesh is 

attempted to be, or is intended to be, 

traded, sold, or exchanged for financial 

compensation, goods, or services. 

Capture of shovelnose sturgeon or 

shovelnose-pallid sturgeon hybrids in 

commercial fishing gear is not 

prohibited if it is accidental or 

incidental to otherwise legal 

commercial fishing activities, such as 

commercial fishing targeting 

nonsturgeon species, provided the 

animal is released immediately upon 

discovery, with all roe intact, at the 

point of capture. All otherwise legal 

activities involving shovelnose sturgeon 

and shovelnose-pallid sturgeon hybrids 

that are conducted in accordance with 

applicable State, Federal, tribal, and 

local laws and regulations are not 

considered to be take under this 

regulation. 

Effects of These Rules 

Treating the shovelnose sturgeon as 

threatened under the ‘‘similarity of 

appearance’’ provisions of the Act 

extends take prohibitions to shovelnose 

sturgeon, shovelnose-pallid sturgeon 

hybrids, and their roe when associated 

with a commercial fishing activity. 

Capture of shovelnose sturgeon or 

shovelnose-pallid sturgeon hybrids in 

commercial fishing gear is not 

prohibited if it is accidental or 

incidental to otherwise legal 

commercial fishing activities, such as 

commercial fishing targeting 

nonsturgeon species, provided the 

animal is released immediately upon 

discovery, with all roe intact, at the 

point of capture. All otherwise legal 

activities within the areas identified that 

may involve shovelnose sturgeon and 

shovelnose-pallid sturgeon hybrids and 

which are conducted in accordance 

with applicable State, Federal, tribal, 

and local laws and regulations will not 

be considered take under this 

regulation. 

Under this special 4(d) rule, take is 

prohibited where shovelnose and pallid 

sturgeons’ range commonly overlap 

(Service 1993, pp. 3–5, 16–17). 

Specifically, this includes: (1) The 

portion of the Missouri River in Iowa, 

Kansas, Missouri, Montana, North 

Dakota, Nebraska, and South Dakota; (2) 

the portion of the Mississippi River 

downstream from the Melvin Price 

Locks and Dam (Lock and Dam 26) in 

Arkansas, Illinois, Kentucky, Louisiana, 

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53604 Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Rules and Regulations 

Missouri, Mississippi, and Tennessee; 

(3) the Platte River downstream of the 

Elkhorn River confluence in Nebraska; 

(4) the portion of the Kansas River 

downstream from the Bowersock Dam 

in Kansas; (5) the Yellowstone River 

downstream of the Bighorn River 

confluence in North Dakota and 

Montana; and (6) the Atchafalaya River 

in Louisiana. See the map in the rule 

portion of this document. 

This designation of similarity of 

appearance under section 4(e) of the Act 

would not extend any other protections 

of the Act, such as the requirements to 

designate critical habitat, the recovery 

planning provisions under section 4(f), 

or consultation requirements for Federal 

agencies under section 7, to shovelnose 

sturgeon. Therefore, Federal agencies 

are not required to consult with us on 

activities they authorize, fund, or carry 

out that may affect shovelnose sturgeon. 

Paperwork Reduction Act 

The OMB regulations at 5 CFR part 

1320 implement provisions of the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). The OMB regulations at 5 

CFR 1320.3(c) define a ‘‘collection of 

information’’ as the obtaining of 

information by or for an agency by 

means of identical questions posed to, 

or identical reporting, recordkeeping, or 

disclosure requirements imposed on, 10 

or more persons. Furthermore, 5 CFR 

1320.3(c)(4) specifies that ‘‘10 or more 

persons’’ refers to the persons to whom 

a collection of information is addressed 

by the agency within any 12-month 

period. For purposes of this definition, 

employees of the Federal Government 

are not included. A Federal agency may 

not conduct or sponsor and a person is 

not required to respond to a collection 

of information unless it displays a 

currently valid OMB control number. 

This rule does not contain collections of 

information other than those permit 

application forms already approved 

under the Paperwork Reduction Act and 

assigned OMB control number 1018– 

0094. 

National Environmental Policy Act 

We have determined that an 

Environmental Assessment or 

Environmental Impact Statement, as 

defined under the authority of the 

NEPA, need not be prepared in 

connection with listing regulations 

adopted pursuant to section 4, including 

section 4(a), of the Act. We published a 

notice outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). 

References Cited 

A complete list of references cited in 

this rule is available upon request from 

the Pallid Sturgeon Recovery 

Coordinator (see FOR FURTHER

INFORMATION CONTACT section above). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we hereby amend part 

17, subchapter B of chapter I, title 50 of 

the Code of Federal Regulations, as 

follows: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Public Law 

99–625, 100 Stat. 3500; unless otherwise 

noted. 

■ 2. Amend § 17.11(h) by adding an 

entry for ‘‘Sturgeon, shovelnose’’, in 

alphabetical order under ‘‘FISHES,’’ to 

the List of Endangered and Threatened 

Wildlife to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate population where endangered or threatened 

Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

*******

FISHES

* * * * * * * 

Sturgeon, 

shovelnose.

Scaphirhynchus 

platorynchus.

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

IL, IN, KS, KY, 

LA, MN, MO, MS, 

MT, ND, NE, NM, 

OH, OK, PA, SD, 

TN, TX, WI, WV, 

WY).

Entire ...................... T (S/A) 778 N/A 17.44(aa) 

* * * * * * * 

■ 3. Amend § 17.44 by adding a new 

paragraph (aa) to read as follows: 

§ 17.44 Special rules—fishes. 

* * * * * 

(aa) Shovelnose sturgeon 

(Scaphirhynchus platorynchus). 

(1) Within the geographic areas set 

forth in paragraph (aa)(2) of this section, 

except as expressly noted in this 

paragraph, take of any shovelnose 

sturgeon, shovelnose-pallid sturgeon 

hybrids, or their roe associated with or 

related to a commercial fishing activity 

is prohibited. Capture of shovelnose 

sturgeon or shovelnose-pallid sturgeon 

hybrids in commercial fishing gear is 

not prohibited if it is accidental or 

incidental to otherwise legal 

commercial fishing activities, such as 

commercial fishing targeting 

nonsturgeon species, provided the 

animal is released immediately upon 

discovery, with all roe intact, at the 

point of capture. 

(2) The shovelnose and shovelnosepallid sturgeon hybrid populations 

covered by this special rule occur in 

portions of Arkansas, Iowa, Illinois, 

Kansas, Kentucky, Louisiana, Missouri, 

Mississippi, Montana, North Dakota, 

Nebraska, South Dakota, and Tennessee. 

The specific areas are: 

(i) The portion of the Missouri River 

in Iowa, Kansas, Missouri, Montana, 

North Dakota, Nebraska, and South 

Dakota; 

(ii) The portion of the Mississippi 

River downstream from the Melvin 

Price Locks and Dam (Lock and Dam 26) 

in Arkansas, Illinois, Kentucky, 

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Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Rules and Regulations 53605 

Louisiana, Missouri, Mississippi, and 

Tennessee; 

(iii) The Platte River downstream of 

the Elkhorn River confluence in 

Nebraska; 

(iv) The portion of the Kansas River 

downstream from the Bowersock Dam 

in Kansas; 

(v) The Yellowstone River 

downstream of the Bighorn River 

confluence in North Dakota and 

Montana; and 

(vi) The Atchafalaya River in 

Louisiana. 

(3) A map showing the area covered 

by this special rule (the area of shared 

habitat between shovelnose and pallid 

sturgeon) follows: 

BILLING CODE 4310–55–C 


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53606 Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Rules and Regulations 

Dated: August 25, 2010. 

Will Shafroth, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2010–21861 Filed 8–31–10; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 665 

[Docket No. 100630283–0388–02] 

RIN 0648–XX15 

Fisheries in the Western Pacific; 

Bottomfish and Seamount Groundfish 

Fisheries; 2010–11 Main Hawaiian 

Islands Bottomfish Total Allowable 

Catch 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final specification. 

SUMMARY: In this rule, NMFS specifies a 

total allowable catch (TAC) of 254,050 

lb (115,235 kg) of Deep 7 bottomfish in 

the main Hawaiian Islands (MHI) for the 

2010–11 fishing year. The expected 

impact of the TAC is long-term 

sustainability of Hawaii bottomfish. 

DATES: This final specification is 

effective October 1, 2010. 

ADDRESSES: Copies of the Fishery 

Ecosystem Plan for the Hawaiian 

Archipelago and associated 

Environmental Impact Statement are 

available from the Western Pacific 

Fishery Management Council (Council), 

1164 Bishop St., Suite 1400, Honolulu, 

HI 96813, tel 808–522–8220, fax 808– 

522–8226, or www.wpcouncil.org. 

A supplemental environmental 

assessment (EA), was prepared that 

describes the impact of this final 

specification on the human 

environment. Based on the 

environmental impact analysis 

presented in the EA, NMFS prepared a 

finding of no significant impact 

(FONSI). Copies of the EA and FONSI 

are available from www.regulations.gov, 

or Michael D. Tosatto, Acting Regional 

Administrator, NMFS Pacific Islands 

Region (PIR), 1601 Kapiolani Blvd. 

1110, Honolulu, HI 96814. 

FOR FURTHER INFORMATION CONTACT: 

Jarad Makaiau, Sustainable Fisheries 

Division, NMFS PIR, 808–944–2108. 

SUPPLEMENTARY INFORMATION: NMFS 

hereby specifies a TAC of Deep 7 

bottomfish in the MHI for the 2010–11 

fishing year of 254,050 lb (115,235 kg), 

as recommended by the Council, based 

on the best available scientific, 

commercial, and other information, 

taking into account the associated risk 

of overfishing. The MHI Management 

Subarea is the portion of U.S. Exclusive 

Economic Zone around the Hawaiian 

Archipelago lying to the east of 161° 20’ 

W. longitude. The Deep 7 bottomfish are 

onaga (Etelis coruscans), ehu (E. 

carbunculus), gindai (Pristipomoides 

zonatus), kalekale (P. sieboldii), 

opakapaka (P. filamentosus), lehi 

(Aphareus rutilans), and hapuupuu 

(Epinephelus quernus). 

When the TAC is projected to be 

reached, NMFS will close the noncommercial and commercial Deep 7 

bottomfish fisheries until the end of the 

fishing year (August 31, 2010). During a 

fishery closure for Deep 7 bottomfish, 

no person may fish for, possess, or sell 

any of these fish in the MHI, except as 

otherwise authorized by law. 

Specifically, fishing for, and the 

resultant possession or sale of, Deep 7 

bottomfish by vessels legally registered 

to Pacific Remote Island Areas 

bottomfish fishing permits, and 

conducted in compliance with all laws 

and regulations, are not affected by the 

closure. There is no prohibition on 

fishing for or selling other non-Deep 7 

bottomfish species throughout the year. 

All other management measures 

continue to apply in the MHI bottomfish 

fishery. The MHI bottomfish fishery 

reopens on September 1, 2010, and will 

continue until August 31, 2010, unless 

the fishery is closed prior to August 31 

as a result of the TAC being reached. 

Additional background information 

on this final specification may be found 

in the preamble to the proposed 

specification published on August 2, 

2010 (75 FR 45085), and is not repeated 

here. 

Comments and Responses 

On August 2, 2010, NMFS published 

a proposed specification and request for 

public comments on the MHI Deep 7 

bottomfish TAC (75 FR 45085). The 

comment period ended on August 17, 

2010. NMFS did not receive any public 

comments. 

Changes from the Proposed 

Specification 

There are no changes in the final 

specification. 

Classification 

The Regional Administrator, NMFS 

PIR, determined that this final 

specification is necessary for the 

conservation and management of MHI 

bottomfish, and that it is consistent with 

the Magnuson-Stevens Fishery 

Conservation and Management Act and 

other applicable laws. 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration during 

the proposed rule stage that this action 

would not have a significant economic 

impact on a substantial number of small 

entities. The factual basis for the 

certification was published in the 

proposed rule and is not repeated here. 

No comments were received regarding 

this certification. As a result, a 

regulatory flexibility analysis was not 

required, and none was prepared. 

This action is exempt from review 

under Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: August 27, 2010. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2010–21829 Filed 8–31–10; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 0910131363–0087–02] 

RIN 0648–XY62 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Atka Mackerel in the 

Bering Sea and Aleutian Islands 

Management Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closures and 

openings. 

SUMMARY: NMFS is prohibiting directed 

fishing for Atka mackerel in the Eastern 

Aleutian District and the Bering Sea 

subarea of the Bering Sea and Aleutian 

Islands management area (BSAI) by 

vessels participating in the BSAI trawl 

limited access fishery. This action is 

necessary to prevent exceeding the 2010 

total allowable catch (TAC) of Atka 

mackerel in these areas by vessels 

participating in the BSAI trawl limited 

access fishery. NMFS is also 

announcing the opening and closing 

dates of the first and second directed 

fisheries within the harvest limit area 

(HLA) in areas 542 and 543. These 

actions are necessary to conduct 

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