2010-565. Endangered and Threatened Wildlife and Plants; Proposed Rule To List the Shovelnose Sturgeon as Threatened Due to Similarity of Appearance

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule; reopening of comment period and notice of public hearing.

SUMMARY:

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

DATES:

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

ADDRESSES:

You may submit comments by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments to Docket No. FWS-R6-ES-2009-0027.
• U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R6-ES-2009-0027; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.
• At the public hearing. For more information, see the “Public Hearing” section below.

We will not accept e-mail or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT:

Pallid Sturgeon Recovery Coordinator, Billings Field Office, 2900 4th Avenue North, Room 301, Billings, MT 59101 (telephone [phone]; facsimile 406/247-7364). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800/877-8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

Background

On September 22, 2009, we published a proposed rule (74 FR 48215) to treat the shovelnose sturgeon (Scaphirhynchus platorynchus) as threatened under the “Similarity of Appearance” provisions of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.). The shovelnose sturgeon (Scaphirhynchus platorynchus) and the endangered pallid sturgeon (Scaphirhynchus albus) are difficult to differentiate in the wild and inhabit overlapping portions of the Missouri and Mississippi River basins. Four States where the two species commonly coexist allow for commercial fishing of shovelnose sturgeon, which is in demand for its roe (eggs sold as caviar). The close resemblance in appearance between the two species creates substantial difficulty for fishermen, State regulators, and law enforcement personnel in differentiating between shovelnose and pallid sturgeon, both whole specimens and parts (including flesh and roe). This similarity of appearance has resulted in the documented take of pallid sturgeon and is a threat to the species. The determination that the shovelnose sturgeon should be treated as threatened due to similarity of appearance will substantially facilitate law enforcement actions to protect and conserve pallid sturgeon.

Listing the shovelnose sturgeon as threatened under the “similarity of appearance” provisions of the Act will extend take prohibitions to shovelnose sturgeon, shovelnose-pallid sturgeon hybrids, or their roe when associated with a commercial fishing activity. All otherwise legal activities within the identified areas that may involve shovelnose sturgeon and shovelnose-pallid sturgeon hybrids and which are conducted in accordance with applicable State, Federal, Tribal, and local laws and regulations will not be considered take under this proposed regulation.

Under the special 4(d) rule, take would only be prohibited where shovelnose and pallid sturgeons' range commonly overlap. Specifically, this includes the portion of the Missouri River in Iowa, Kansas, Missouri, Montana, Nebraska, North Dakota, and South Dakota; the portion of the Mississippi River in Arkansas, Illinois (downstream from Melvin Price Locks and Dam), Kentucky, Louisiana, Mississippi, Missouri (downstream from Melvin Price Locks and Dam), and Tennessee; the Platte River downstream of Elkhorn River confluence in Nebraska; the portion of the Kansas River downstream from Bowersock Dam in Kansas; the Yellowstone River downstream of the Bighorn River confluence in North Dakota and Montana; and the Atchafalaya River in Louisiana.

The proposed designation of similarity of appearance under section 4(e) of the Act would not extend any other protections of the Act, such as the requirements to designate critical habitat, the recovery planning provisions under section 4(f), or consultation requirements for Federal agencies under section 7, to shovelnose sturgeon. Therefore, should the proposal become final, Federal agencies would not be required to consult with us on activities they authorize, fund, or carry out that may affect shovelnose sturgeon.

Additional information on the pallid sturgeon and the proposal, including a copy of the Federal Register notice, can be found at: http://www.fws.gov/​mountain-prairie/​missouririver/​moriver_​pallidsturgeon.htm.

Public Comments

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

We will take into consideration all comments and any additional information we received during this reopened comment period on the proposed rule during the preparation of a final rulemaking. Accordingly, the final decision may differ from the proposal.

Public Hearing

Section 4(b)(5)(E) of the Act requires that we hold one public hearing on the proposal, if requested. Our September 22, 2009 proposal required written requests for a public hearing to be submitted by November 6, 2009 (74 FR 48215). Prior to this deadline, we received several requests to hold or inform the public about informational meetings or public hearings.

Accordingly, we have scheduled an informational meeting (a brief presentation about the proposed rule with a question-and-answer period) from 4:30 p.m. to 6 p.m., and a public hearing from 6:30 p.m. to 8:30 p.m., on January 28, 2010, on the 3rd floor of the University Center, Southeast Missouri State University, One University Plaza, Cape Girardeau, MO 65307 (573-651-2282).

Anyone wishing to make an oral statement at the public hearing for the record is encouraged to provide a written copy of their statement to us at the hearing. In the event there is a large attendance, the time allotted for oral statements may be limited. Speakers can sign up only at the informational meeting and hearing. Oral and written statements receive equal consideration. There are no limits on the length of written comments submitted to us. If you have any questions concerning the public hearing or need reasonable accommodations to attend and participate in the public hearing, please contact Jane Ledwin at [phone], extension 109, as soon as possible, but no later than 1 week before the hearing date, to allow sufficient time to process requests. Information regarding the proposal is available in alternative formats upon request.

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

Dated: December 29, 2009.

Jane Lyder,

Acting Assistant Secretary for Fish and Wildlife and Parks.