[Federal Register Volume 79, Number 105 (Monday, June 2, 2014)]
[Rules and Regulations]
[Pages 31222-31227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-12626]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 224
[Docket No. 120705210-4423-03]
RIN 0648-XC101
Endangered and Threatened Wildlife and Plants; Final Rule To List
Five Species of Sturgeons as Endangered Under the Endangered Species
Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, NMFS, issue a final determination to list five species of
foreign sturgeon as endangered under the Endangered Species Act (ESA).
We updated the status reviews of the species to include additional
information regarding the species and conservation efforts being made
to protect them. We considered governmental and public comments on the
proposed listing rule. We have made our determination that Acipenser
naccarii (Adriatic sturgeon), and A. sturio (European sturgeon) in
Western Europe, A. sinensis (Chinese sturgeon) in the Yangtze River
basin, and A. mikadoi (Sakhalin sturgeon) and Huso dauricus (Kaluga
sturgeon) in the Amur River Basin/Sea of Japan/Sea of Okhotsk region,
should be listed as endangered species. We will not designate critical
habitat because the geographical areas occupied by these species are
entirely outside U.S. jurisdiction, and we have not identified any
unoccupied areas in the U.S. that are currently essential to the
conservation of any of these species.
DATES: This final rule is effective July 2, 2014.
ADDRESSES: Chief, Endangered Species Division, NMFS Office of Protected
Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910,
USA.
FOR FURTHER INFORMATION CONTACT: Dr. Dwayne Meadows, NMFS, Office of
Protected Resources, (301) 427-8403.
SUPPLEMENTARY INFORMATION:
Background
On March 12, 2012, we received a petition from the WildEarth
Guardians and Friends of Animals to list 15 species of sturgeon
(Acipenser naccarii--Adriatic sturgeon; A. sturio--European sturgeon;
A. gueldenstaedtii--Russian sturgeon; A. nudiventris--ship sturgeon/
bastard sturgeon/fringebarbel sturgeon/spiny sturgeon/thorn sturgeon;
A. persicus--Persian sturgeon; A. stellatus--stellate sturgeon/star
sturgeon; A. baerii--Siberian sturgeon; A. dabryanus--Yangtze sturgeon/
Dabry's sturgeon/river sturgeon; A. sinensis--Chinese sturgeon; A.
mikadoi--Sakhalin sturgeon; A. schrenckii--Amur sturgeon; Huso
dauricus--Kaluga sturgeon; Pseudoscaphirhynchus fedtschenkoi--Syr-darya
shovelnose sturgeon/Syr darya sturgeon; P. hermanni--dwarf sturgeon/
Little Amu-darya shovelnose/little shovelnose sturgeon/Small Amu-dar
shovelnose sturgeon; P. kaufmanni--false shovelnose sturgeon/Amu darya
shovelnose sturgeon/Amu darya sturgeon/big Amu darya shovelnose/large
Amu-dar shovelnose sturgeon/shovelfish) as threatened or endangered
under the Endangered Species Act (ESA). As a result of subsequent
discussions between us and the U.S. Fish and Wildlife Service (FWS), we
determined that 10 of the 15 petitioned sturgeon species are not marine
or anadromous. Therefore FWS is conducting the required listing
analyses for those 10 species and NMFS is making the determinations for
the five anadromous species, Acipenser naccarii, A. sturio, A.
sinensis, A. mikadoi and Huso dauricus. On August 27, 2012, we
published a 90-day finding in the Federal Register (77 FR 51767) that
found that listing these five species under the ESA may be warranted,
and announced the initiation of status reviews for each species. Based
on information we gathered during the status review, we proposed
listing all five species as endangered on October 31, 2013 (78 FR
65249).
We are responsible for determining whether species are threatened
or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this
determination, we first consider whether a group of organisms
constitutes a ``species'' under the ESA, then whether the status of the
species qualifies it for listing as either threatened or endangered.
Section 3 of the ESA defines a ``species'' as ``any subspecies of fish
or wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when mature.''
Section 3 of the ESA further defines an endangered species as ``any
species which is in danger of extinction throughout all or a
significant portion of its range'' and a threatened species as one
``which is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' We interpret an ``endangered species'' to be one that is
presently in danger of extinction. A ``threatened species,'' on the
other hand, is not presently in danger of extinction, but is likely to
become so in the foreseeable future (that is, at a later time). In
other words, the primary statutory difference between a threatened and
endangered species is the timing of when a species may be in danger of
extinction, either presently (endangered) or in the foreseeable future
(threatened). Section 4(a)(1) of the ESA requires us to determine
whether any species is endangered or threatened due to any one or a
combination of the following five threat factors: (1) The present or
threatened destruction, modification, or curtailment of its habitat or
range; (2) overutilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) the inadequacy of
existing regulatory mechanisms; or (5) other natural or manmade factors
affecting its continued existence. We are required to make listing
determinations based solely on the best scientific and commercial data
available after conducting a review of the species' status and after
taking into account efforts being made by any state or foreign nation
to protect the species.
In making listing determinations for these five species, we first
determined whether each petitioned species meets the ESA definition of
a ``species.'' Next, using the best available information gathered
during the status reviews, we completed an extinction risk assessment.
We then assessed the threats affecting the status of each species using
the five listing factors identified in section 4(a)(1) of the ESA.
Once we determined the threats, we assessed efforts being made to
protect the species to determine if these conservation efforts are
adequate to mitigate the existing threats. We evaluate conservation
efforts using the
[[Page 31223]]
criteria outlined in the joint NMFS/FWS Policy for Evaluating
Conservation Efforts (PECE) (68 FR 15100; March 28, 2003) to determine
their certainty of implementation and effectiveness for future or not
yet fully implemented conservation efforts. Finally, we re-assessed the
extinction risk of each species in light of the existing conservation
efforts.
Public Comment
We note that at least one commenter provided information about the
status review as well as proposed listing. Where that information was
relevant to the proposed listing, we considered it and discussed it in
this final rule. If it was relevant to the status review alone, we
addressed that by preparing an updated status review.
In the solicitation for information from the public on the proposed
rule we received information and/or comments from five parties. We also
received comments from seven foreign countries as part of our foreign
consultation solicitation; none took a position on whether the species
should be listed. A scientific reviewer provided a citation to recent
work on genetic diversity of paleontological specimens of European
sturgeon and unpublished recent sightings of juvenile European sturgeon
in nearshore waters near the mouth of the Gironde River in France. We
incorporated that information in the updated status review and
considered it in our final listing determination.
Stocking
Two commenters provided views on the role of stocking and releasing
animals cultured in captivity to assist in conservation efforts. The
World Sturgeon Conservation Society (WSCS) argued that listing may
adversely impact stocking, which they argue provides conservation
benefits by increasing population size of endangered species. The
petitioner argued and provided literature references that stocking
programs may create unsustainable demand for founder stocks from the
wild that ultimately hurt conservation efforts. None of the literature
provided addressed sturgeon stocking programs. While we agree that
stocking fish into the wild can be an effective conservation strategy
when risks such as genetic integrity and diversity, disease, and
effects on source populations are considered, we received no additional
specific information on the threats or benefits of stocking to any of
the proposed species that would alter our status assessments, and make
no changes in the listing determination.
International Trade
Two commenters provided information on the effect of commercial
trade in the proposed species on their conservation. The WSCS suggested
commercial use of these species could help fund conservation efforts to
improve the status of these species. WSCS argued that an endangered
listing would harm caviar trade. They asserted that caviar trade from
aquacultured sources reduces pressure on wild sources and reduces
prices for wild-sourced product. In contrast, the petitioner provided
comments and references arguing that legal commercial trade would hurt
the conservation status of these species by providing cover for illegal
trade, by confusing consumers ``by sending a signal that these species
are no longer endangered, or it may reduce the stigma'' associated with
these species, and/or by increasing demand for wild animals. We believe
the effect of trade on conservation of endangered species is a complex
issue, as the few studies on other species provide conflicting results.
We are not aware of any studies documenting whether trade in sturgeon
furthers conservation efforts. Neither commenter, nor any other
commenter, provided any new data on trade in any of the proposed
species that we had not already considered. In addition, the commenter
provided no information regarding conservation efforts that we could
evaluate under PECE. We note that we are required to make ESA listing
decisions based on the best available scientific and commercial data.
While under PECE we consider whether other types of conservation
approaches or actions render ESA listing unnecessary, once we have
determined to list a species based on consideration of the statutory
criteria we consider other conservation actions in later actions, such
as during the recovery planning process. We make no change in the
listing determination as a result of these comments.
Other Comments
The WSCS expressed concern that a regulatory ESA listing would be
ineffective as the United States has little jurisdiction or ability to
effect conservation in the range states of the proposed species and
would be better able to assist conservation efforts voluntarily and
that listing was inappropriate. We agree that the United States has
limited jurisdiction in the range states of the proposed species, but
note that the ability of the United States to take action subsequent to
listing is not one of the statutory criteria for listing. As noted
above, the ESA only allows us to consider the best available scientific
and commercial information in making listing decisions. Nevertheless,
we intend to engage in voluntary efforts to assist range states in the
conservation of these species.
The Florida Sturgeon Production Working Group, an aquaculture
advisory body to the state of Florida, noted that Florida sturgeon
farmers are currently growing Atlantic sturgeon (Acipenser oxyrhynchus
oxyrhynchus), which are closely related to the proposed European
sturgeon (A. sturio). They are concerned that there might be future
taxonomic changes affecting the definition and taxonomy of these two
species. They requested we provide ``a means to distinguish'' the two
species in the final rule. We appreciate the concerns of the working
group. However, it is not possible for us to anticipate potential
taxonomic changes at this time. We note that U.S. DPSs of Atlantic
sturgeon are currently listed under the ESA as either endangered or
threatened. Should new scientific agreement changing the taxonomy of
either of these species occur, we would likely need to clarify or
modify our sturgeon listings based on the best available scientific
information at that time. In order to do so, we would need to comply
with applicable procedural requirements of the Endangered Species Act.
The petitioner also provided comments relative to the legal status
and trade of animals in captivity prior to listing. We agree there was
some confusing language in the proposed rule regarding actions that
would not be considered prohibited take under section 9 with regard to
commercial trade where we also discussed other ESA authorities. Section
9(b)(1) of the ESA says that captive specimens of listed species that
were in captivity at the time of listing are not subject to the
requirements of Section 9(a)(1)(A) or 9(a)(1)(G) of the Act (that
prohibit import/export and require adherence to any additional
protective regulations promulgated for the species) provided that such
holding and any subsequent holding or use of the captive fish is not in
the course of commercial activity. So that this is clear, in this final
rule we did not include the sentence, ``Any interstate and foreign
commerce trade of sturgeon already in captivity.'' in the section
identifying activities that are not likely to result in a violation of
section 9.
Status Reviews
In order prepare the status reviews, we compiled information on the
species
[[Page 31224]]
biology, ecology, life history, threats, and conservation status from
information contained in the petition, our files, a comprehensive
literature search, and consultation with known experts. We updated the
status reviews based on information submitted by peer reviewers,
foreign governments, and the public. This information is available in
the updated status review report (Meadows and Coll, 2014) available on
our Web site (http://www.nmfs.noaa.gov/pr).
Sturgeon General Species Description
Sturgeons are bony fishes most closely related to paddlefishes and
bichirs. They all have cartilaginous skeletons, heterocercal caudal
fins (upper lobe is larger than the lower lobe), one spiracle
respiratory opening (like sharks), and unique ganoid scales. In
sturgeons, these ganoid scales remain only as the five rows of bony
``scutes'' on the sides of the body. They all have a bottom-oriented
mouth with four barbels (sensory ``whiskers''), a flat snout and strong
rounded body. Sturgeons have an electrosensory system similar to that
in sharks, which they use for feeding. All of these species seasonally
migrate into rivers to spawn. They are mostly bottom-oriented feeders
that are normally generalist predators on benthic prey, including
various invertebrates and fishes, except H. dauricus, which is more
piscivorous. The proposed rule (78 FR 65249, October 31, 2013)
summarizes general background information on the five species' natural
history, range, reproduction, population structure, distribution and
abundance; none of which has changed since the proposed rule. All of
that information is incorporated herein by reference.
Species Determinations
Based on the best available scientific and commercial information
described above and in the updated status review report (Meadows and
Coll, 2014), we have determined that Acipenser naccarii, A. sturio, A.
sinensis, A. mikadoi and Huso dauricus are taxonomically-distinct
species and therefore meet the definition of ``species'' pursuant to
section 3 of the ESA and are eligible for listing under the ESA.
Extinction Risk
None of the information we received from peer reviewers and public
comment affected the status of any of the five sturgeons, so our
extinction risk evaluation remains the same as in the original status
review report (Meadows and Coll, 2013) and proposed rule (78 FR 65249,
October 31, 2013). The extinction risk analysis team found all five
species to be at high risk of extinction in the present, with median
votes for each team member at or above 80 percent probability of being
currently in danger of extinction for each species. After reviewing the
best available scientific data and the extinction risk evaluation on
the five species of sturgeon, we continue to concur with the findings
of the extinction risk analysis team and conclude that the risk of
extinction for all five species of sturgeon is currently high.
Summary of Factors Affecting the Five Species of Sturgeon
Next we consider whether any one or a combination of the five
threat factors specified in section 4(a)(1) of the ESA are contributing
to the extinction risk of these five sturgeons. Since the proposed rule
was published, we have received no new information relevant to four of
the section 4(a)(1) factors: Of destruction or modification of habitat,
overutilization, disease or other factor through the public comment
process or our own research for any of the five species. We incorporate
the discussion of these four factors from the proposed rule (78 FR
65249, October 31, 2013) by reference herein.
We did receive additional information regarding foreign regulatory
measures related to A. naccarii and A. sturio from Bosnia and
Herzegovina, Greece, and the United Kingdom. Acipenser naccarii is
listed in Bosnia and Herzegovina as endangered under the Law on Nature
protection which is a ``red list'' of species. In Greece it is
protected under Presidential Decree 67/1981 and Joint Ministerial
Decision No. 33318/3028/11-12-1998 (B' 1289). The current range of this
species does not include these countries and the protections have not
prevented its decline, so this additional information does not affect
our conclusion in the proposed rule regarding the adequacy of
regulatory measures for this species.
The same protective laws in Bosnia and Herzegovina and Greece also
apply to A. sturio. In addition, the United Kingdom provided
information on its regulatory measures. They have implemented the
European Council Directive on the Conservation of Natural Habitats and
of Wild Fauna and Flora into national law under the Conservation of
Habitats and Species Regulation (2010). The species is also protected
in the United Kingdom under Schedule 5 of the Wildlife and Countryside
Act 1981 (as amended) as well as being listed separately under two
pieces of legislation at a country level. In England it is listed under
the Natural Environment and Rural Communities Act (2006) (section 41)
as a species ``of principal importance for the purpose of conserving
biodiversity'', whilst in Scotland it is listed under the Scottish
Biodiversity List (2005), which is a list of flora, fauna and habitats
considered to be of principal importance for biodiversity conservation.
The current range of this species does not include Bosnia and
Herzegovina and Greece, and the species is only irregularly and
anecdotally seen in the United Kingdom (Sheena Hynd, personal
communication) and the protections have not prevented its decline, so
this additional information does not affect our conclusion in the
proposed rule regarding the adequacy of regulatory measures for this
species.
Overall Risk Summary
After considering the status, threats and extinction risks for each
of the five species of sturgeon, we have determined that Acipenser
naccarii, A. sturio, A. sinensis, A. mikadoi and Huso dauricus are in
danger of extinction throughout all of their ranges, largely due to (1)
present or threatened destruction, modification or curtailment of
habitat, (2) overutilization for commercial, recreational, scientific,
or educational purposes, and (3) inadequacy of existing regulatory
mechanisms.
Protective Efforts
Section 4(b)(1)(A) of the ESA requires the Secretary, when making a
listing determination for a species, to take into consideration those
efforts, if any, being made by any State or foreign nation to protect
the species. In judging the efficacy of not yet implemented efforts, or
those existing protective efforts that are not yet fully effective, we
rely on the Services' joint ``Policy for Evaluation of Conservation
Efforts When Making Listing Decisions'' (``PECE''; 68 FR 15100; March
28, 2003). The PECE policy is designed to ensure consistent and
adequate evaluation of whether any conservation efforts that have been
recently adopted or implemented, but not yet proven to be successful,
will result in recovering the species to the point at which listing is
not warranted or contribute to forming the basis for listing a species
as threatened rather than endangered. The PECE policy is expected to
facilitate the development of conservation efforts that sufficiently
improve a species' status so as to make listing the species as
threatened or endangered unnecessary.
The PECE policy establishes two basic criteria to use in evaluating
efforts
[[Page 31225]]
identified in conservations plans, conservation agreements, management
plans or similar documents: (1) The certainty that the conservation
efforts will be implemented; and (2) the certainty that the efforts
will be effective. We evaluated conservation efforts we are aware of to
protect and recover the five sturgeon species that are either underway
but not yet fully implemented, or are only planned. We sought
additional information on other conservation efforts in our public
comment process at the proposed rule stage, but received no information
on additional projects. See the proposed rule (78 FR 65249, October 31,
2013) to review the conservation efforts we are aware of and considered
in this listing determination. We note here our response above to the
contrasting public comments either supporting or highlighting the risks
of stocking efforts. We have no evidence that specific stocking efforts
are harming the five sturgeon species, or conversely, that they met the
PECE policy criteria of certainty of implementation or effectiveness to
be considered a factor to mitigate extinction risk. Therefore, we
conclude that the identified conservation efforts do not alter the
extinction risk assessments for any of the five sturgeon species.
Final Determination
Section 4(b)(1) of the ESA requires that we make listing
determinations based solely on the best scientific and commercial data
available after conducting a review of the status of the species and
taking into account those efforts, if any, being made by any state or
foreign nation, or political subdivisions thereof, to protect and
conserve the species. We have reviewed the best available scientific
and commercial information, including the petition, the information in
the report of the review of the status of the five species of sturgeon,
public comment, and the comments of peer reviewers. We are responsible
for determining whether Acipenser naccarii (Adriatic sturgeon), A.
sturio (European sturgeon), A. sinensis (Chinese sturgeon), A. mikadoi
(Sakhalin sturgeon) and Huso dauricus (Kaluga sturgeon) are threatened
or endangered under the ESA (16 U.S.C. 1531 et seq.). Accordingly, we
have followed a stepwise approach as outlined above in making this
listing determination for these five species of sturgeon. We have
determined that Acipenser naccarii (Adriatic sturgeon), A. sturio
(European sturgeon), A. sinensis (Chinese sturgeon), A. mikadoi
(Sakhalin sturgeon) and Huso dauricus (Kaluga sturgeon) constitute
species as defined by the ESA.
Based on the information presented, we find that all five species
of sturgeon are in danger of extinction throughout all of their ranges.
We assessed the ESA section 4(a)(1) factors and conclude the Adriatic,
European, Chinese, Sakhalin and Kaluga sturgeon all face ongoing
threats from habitat alteration, overutilization for commercial and
recreational purposes, and the inadequacy of existing regulatory
mechanisms throughout their ranges. Acipenser sturio also face high
risks from its life history and published predictions of the effects of
climate change (Lassalle et al., 2011). All of the threats attributed
to the species' decline are ongoing except the largely historical
threat from directed fisheries. After considering efforts being made to
protect these sturgeon, we could not conclude that the proposed
conservation efforts would alter the extinction risk for any of these
five species. Therefore, we are listing each of these five species as
endangered.
Effects of Listing
Conservation measures provided for species listed as endangered
under the ESA include recovery actions (16 U.S.C. 1533(f)), concurrent
designation of critical habitat if prudent and determinable (16 U.S.C.
1533(a)(3)(A)); Federal agency requirements to consult with NMFS under
Section 7 of the ESA to ensure their actions do not jeopardize the
species or result in adverse modification or destruction of critical
habitat should it be designated (16 U.S.C. 1536); and prohibitions on
taking (16 U.S.C. 1538). Recognition of the species' plight through
listing promotes conservation actions by Federal and state agencies,
foreign entities, private groups, and individuals. The main effects of
this proposed listing are prohibitions on take, including export and
import.
Identifying Section 7 Consultation Requirements
Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS
regulations require Federal agencies to consult with us to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of listed species or destroy or
adversely modify critical habitat. It is possible that the listing of
the five species of sturgeon under the ESA may create a minor increase
in the number of section 7 consultations, though consultations are
likely to be rare given that these species mostly occur in foreign
territorial waters.
Critical Habitat
Critical habitat is defined in section 3 of the ESA (16 U.S.C.
1532(5)) as: (1) The specific areas within the geographical area
occupied by a species, at the time it is listed in accordance with the
ESA, on which are found those physical or biological features (a)
essential to the conservation of the species and (b) that may require
special management considerations or protection; and (2) specific areas
outside the geographical area occupied by a species at the time it is
listed upon a determination that such areas are essential for the
conservation of the species. ``Conservation'' means the use of all
methods and procedures needed to bring the species to the point at
which listing under the ESA is no longer necessary. Section 4(a)(3)(A)
of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent
prudent and determinable, critical habitat be designated concurrently
with the listing of a species. However, critical habitat shall not be
designated in foreign countries or other areas outside U.S.
jurisdiction (50 CFR 424.12(h)).
The best available scientific and commercial data as discussed
above identify the geographical areas occupied by Acipenser naccarii,
A. sturio, A. sinensis, A. mikadoi and Huso dauricus as being entirely
outside U.S. jurisdiction, so we cannot designate critical habitat for
these species. We can designate critical habitat in unoccupied areas in
the United States if the area(s) are determined by the Secretary to be
essential for the conservation of the species. Regulations at 50 CFR
424.12(e) specify that we shall designate as critical habitat areas
outside the geographical range presently occupied by the species only
when the designation limited to its present range would be inadequate
to ensure the conservation of the species.
The best available scientific and commercial information on these
species does not indicate that U.S. waters provide any specific
essential biological function for any of them. Based on the best
available information, we have not identified unoccupied area(s) that
are currently essential to the conservation of any of the sturgeons
proposed for listing. Therefore, based on the available information, we
do not intend to designate critical habitat for Acipenser naccarii, A.
sturio, A. sinensis, A. mikadoi or Huso dauricus.
[[Page 31226]]
Identification of Those Activities That Would Constitute a Violation of
Section 9 of the ESA
On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that
requires us to identify, to the maximum extent practicable at the time
a species is listed, those activities that would or would not
constitute a violation of section 9 of the ESA. Because we are listing
all five sturgeons as endangered, all of the prohibitions of Section
9(a)(1) of the ESA will apply to all five species. These include
prohibitions against the import, export, use in foreign commerce, or
``take'' of the species. Take is defined as ``to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.'' These prohibitions apply to all persons
subject to the jurisdiction of the United States, including in the
United States, its territorial sea, or on the high seas. The intent of
this policy is to increase public awareness of the effects of this
listing on proposed and ongoing activities within the species' range.
Activities that we believe could result in a violation of section 9
prohibitions of these five sturgeons include, but are not limited to,
the following:
(1) Take within the United States or its territorial sea, or upon
the high seas;
(2) Possessing, delivering, transporting, or shipping any sturgeon
part;
(3) Delivering, receiving, carrying, transporting, or shipping in
interstate or foreign commerce any sturgeon or sturgeon part, in the
course of a commercial activity;
(4) Selling or offering for sale in interstate commerce any part,
except antique articles at least 100 years old;
(5) Importing or exporting sturgeon or any sturgeon part to or from
any country;
(6) Releasing captive sturgeon into the wild. Although sturgeon
held non-commercially in captivity at the time of listing are exempt
from certain prohibitions, the individual animals are considered listed
and afforded most of the protections of the ESA, including most
importantly, the prohibition against injuring or killing. Release of a
captive animal has the potential to injure or kill the animal. Of an
even greater conservation concern, the release of a captive animal has
the potential to affect wild populations of native sturgeon through
introduction of diseases or inappropriate genetic mixing;
(7) Harming captive sturgeon by, among other things, injuring or
killing a captive sturgeon, through experimental or potentially
injurious veterinary care or conducting research or breeding activities
on captive sturgeon, outside the bounds of normal animal husbandry
practices. Captive breeding of sturgeon is considered experimental and
potentially injurious. Furthermore, the production of sturgeon progeny
has conservation implications (both positive and negative) for wild
populations. Experimental or potentially injurious veterinary
procedures and research or breeding activities of sturgeon may,
depending on the circumstances, be authorized under an ESA 10(a)(1)(A)
permit for scientific research or the enhancement of the propagation or
survival of the species.
Although not binding, we consider the following actions, depending
on the circumstances, as not being prohibited by ESA Section 9:
(1) Take of a sturgeon authorized by an ESA section 10(a)(1)(A)
permit authorized by, and carried out in accordance with the terms and
conditions of an ESA section 10(a)(1)(A) permit issued by NMFS for
purposes of scientific research or the enhancement of the propagation
or survival of the species;
(2) Continued possession of sturgeon parts that were in possession
at the time of listing. Such parts may be non-commercially exported or
imported; however the importer or exporter must be able to provide
evidence to show that the parts meet the criteria of ESA section
9(b)(1) (i.e., held in a controlled environment at the time of listing,
in a non-commercial activity);
(3) Continued possession of live sturgeon that were in captivity or
in a controlled environment (e.g., in aquaria) at the time of this
listing, so long as the prohibitions under ESA section 9(a)(1) are not
violated. Facilities must provide evidence that the sturgeon were in
captivity or in a controlled environment prior to listing. We suggest
such facilities submit information to us on the sturgeon in their
possession (e.g., size, age, description of animals, and the source and
date of acquisition) to establish their claim of possession (see For
Further Information Contact); and
(4) Provision of care for live sturgeon that were in captivity at
the time of listing. These individuals are still protected under the
ESA and may not be killed or injured, or otherwise harmed, and,
therefore, must receive proper care. Normal care of captive animals
necessarily entails handling or other manipulation of the animals, and
we do not consider such activities to constitute take or harassment of
the animals so long as adequate care, including veterinary care, such
as confining, tranquilizing, or anesthetizing sturgeon when such
practices, procedures, or provisions are not likely to result in
injury, is provided.
Role of Peer Review
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review establishing a
minimum peer review standard. Similarly, a joint NMFS/FWS policy (59 FR
34270; July 1, 1994) requires us to solicit independent expert review
from qualified specialists, concurrent with the public comment period.
The intent of the peer review policy is to ensure that listings are
based on the best scientific and commercial data available. We
solicited peer review comments on the status review report and the
scientific or commercial data or assumptions related to the information
considered for listing from 12 outside scientists and two NMFS
scientists familiar with sturgeons. After publication of the proposed
rule and status report, we received additional comments from one
scientist. We incorporated these additional comments into the updated
status review report and this final rule. We conclude that these
experts' reviews satisfy the requirements for ``adequate [prior] peer
review'' contained in the Bulletin (sec. II.2.) as well as the joint
policy.
References
A complete list of the references used in this final rule is
available upon request (see ADDRESSES).
Classification
National Environmental Policy Act
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the
information that may be considered when assessing species for listing.
Based on this limitation of criteria for a listing decision and the
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir.
1981), NMFS has concluded that ESA listing actions are not subject to
the environmental assessment requirements of the National Environmental
Policy Act (NEPA) (See NOAA Administrative Order 216-6).
Executive Order 12866, Regulatory Flexibility Act, and Paperwork
Reduction Act
As noted in the Conference Report on the 1982 amendments to the
ESA, economic impacts cannot be considered when assessing the status of
a species. Therefore, the economic analysis requirements of the
Regulatory Flexibility Act are not applicable to the listing process.
In addition, this final rule is exempt from review under
[[Page 31227]]
Executive Order 12866. This final rule does not contain a collection-
of-information requirement for the purposes of the Paperwork Reduction
Act.
Executive Order 13132, Federalism
In accordance with E.O. 13132, we determined that this final rule
does not have significant Federalism effects and that a Federalism
assessment is not required.
List of Subjects in 50 CFR Part 224
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and record keeping requirements,
Transportation.
Dated: May 23, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 224 is amended
as follows:
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 224 continues to read as follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C 1361 et seq.
0
2. In Sec. 224.101, paragraph (h), add new entries for five species
under the ``Fishes'' section in alphabetical order as follows:
Sec. 224.101 Enumeration of endangered marine and anadromous species.
* * * * *
(h) The endangered species under the jurisdiction of the Secretary
of Commerce are:
----------------------------------------------------------------------------------------------------------------
Species \1\
-------------------------------------------------------------------- Citation(s) for Critical
Description of listing habitat ESA Rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Sturgeon, Adriatic............ Acipenser Entire species.. [Insert Federal NA NA
naccarii. Register page
number where the
document
begins], June 2,
2014.
* * * * * * *
Sturgeon, Chinese............. Acipenser Entire species.. [Insert Federal NA NA
sinensis. Register page
number where the
document
begins], June 2,
2014.
Sturgeon, European............ Acipenser sturio. Entire species.. [Insert Federal NA NA
Register page
number where the
document
begins], June 2,
2014.
Sturgeon, Kaluga.............. Huso dauricus.... Entire species.. [Insert Federal NA NA
Register page
number where the
document
begins], June 2,
2014.
Sturgeon, Sakhalin............ Acipenser mikadoi Entire species.. [Insert Federal NA NA
Register page
number where the
document
begins], June 2,
2014.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
FR 58612, November 20, 1991).
* * * * *
[FR Doc. 2014-12626 Filed 5-30-14; 8:45 am]
BILLING CODE 3510-22-P