Endangered and Threatened Wildlife and Plants; Extension of Comment Period and Notice of Public Hearing on Proposed Endangered Status and Designation of Critical Habitat for the Alabama Sturgeon

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB73

Endangered and Threatened Wildlife and Plants; Extension of

Comment Period and Notice of Public Hearing on Proposed Endangered

Status and Designation of Critical Habitat for the Alabama Sturgeon

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; extension of comment period and notice of public

hearing.

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SUMMARY: The Fish and Wildlife Service (Service) gives notice that a

second public hearing will be held on the proposed rule to determine

endangered status and designate critical habitat for the Alabama

sturgeon, Scaphirhynchus suttkusi. The comment period is extended to

accommodate the public hearing.

DATES: The public hearing will be held from 6 p.m. to 10 p.m. on

January 13, 1994. The public comment period is extended through January

31, 1994.

ADDRESSES: The public hearing will be held at South Hall # 1,

Montgomery Civic Center, 300 Bibb Street, Montgomery, Alabama. Written

comments and materials should be sent to the Field Supervisor, U.S.

Fish and Wildlife Service, 6578 Dogwood View Parkway, suite A, Jackson,

Mississippi 39213, or may be submitted at the public hearing. Comments

and materials received will be available for public inspection, by

appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: James H. Stewart, at the above address

(601/965-4900).

SUPPLEMENTARY INFORMATION:

The Service proposed to determine the Alabama sturgeon, Scaphirhynchus

suttkusi, to be an endangered species and to designate its critical

habitat on June 15, 1993 (58 FR 33148). The Alabama sturgeon, a small

sturgeon with a maximum length of about 30 inches, is endemic to the

Mobile River system, Alabama and Mississippi. Its current range is

restricted to the lower Alabama River and the Cahaba River in Alabama.

Both of these areas and the free flowing portion of the lower Tombigbee

River are proposed as critical habitat. Factors in the sturgeon's

decline include dams, and possible adverse effects from altered water

flows, channel maintenance and gravel dredging.

A public hearing on the proposed rule was announced in the Federal

Register of September 13, 1993 (58 FR 47851) and was held on October 4,

1993 near Mobile, Alabama. The capacity of the facility selected for

the public hearing was not sufficient for all the individuals that

wished to attend. A second hearing was then announced in the Federal

Register on October 25, 1993 (58 FR 55036). The second public hearing

was scheduled for November 15, 1993, in Montgomery, Alabama, to allow

additional oral statements to be presented and to receive comment on a

scientific report prepared by experts on the taxonomy and on the

likelihood of existence of the Alabama sturgeon.

The November 15 hearing was canceled in response to a preliminary

injunction issued on November 9, 1993, that restrained the Service and

others from: (1) Disseminating the scientific report to the public;

and, (2) utilizing or relying upon the scientific report or any product

of the experts' deliberations in connection with the decision-making

process on the proposal to list the Alabama sturgeon and to designate

its critical habitat. Because the notice announcing the November 15

hearing specifically addressed the availability of the scientific

report and the Service's intent to receive comments on it, the Service

decided to postpone the hearing until a revised notice could be

published to announce the limitations imposed by, and to thereby avoid

inadvertent violations of, the court order.

On December 22, 1993, the court that issued the November 9 order

issued another order providing, in most relevant part, as follows:

Federal defendants and defendant-intervenor, and those acting in

active concert with them, are hereby permanently enjoined from

publishing, employing and relying upon the Advisory Committee report

* * * for any purpose whatsoever, directly or indirectly, in the

process of determining whether to list the Alabama sturgeon as an

endangered species.

Therefore, a second public hearing has now been scheduled for

January 13, 1994, and will allow additional oral statements to be

presented (of course, written comments will also be accepted and will

be given equal consideration). The time allocated for individual oral

statements may be limited if the number of parties present at the

hearing, or if the conduct of the individual commenter, necessitate

such a limitation. There is no limit, however, on the length or volume

of written comments or materials presented at the hearing or mailed to

the Service office in the ADDRESSES section.

In keeping with the court restrictions issued in Alabama-Tombigbee

Rivers Coalition v. Fish and Wildlife Service, Civ. No. 93-AR-2322-S,

the Service considers itself compelled to enforce the following

constraints on the submission of oral and written comments while the

court restrictions remain in effect:

(1) Individuals or organizations cannot refer to the scientific

report, issued on November 5, 1993, or to any drafts or other product

derived from the preparation of that report, in presenting any oral

statement or written comment; and,

(2) Individuals or organizations cannot attempt to bolster their

oral or written comments or opinions by reference to the scientific

report as authority.

The Departmental hearing officer at the hearing on January 13,

1994, will be authorized to terminate the opportunity to speak of any

person making a statement if, in the judgment of the hearing officer,

that person disregards the instructions not to address the scientific

report or its contents. Written comments or materials that contain

information that violates the above restrictions will be marked and

thereafter excluded from the administrative record while the court

restrictions remain in effect.

The Service intends that any final action resulting from the

proposed rule will be as accurate and as effective as possible. Except

for the court-imposed restrictions set out above, the Service

encourages the submission of all individual scientific opinions,

biological data, and other relevant scientific data that will assist in

arriving at the ``best scientific and commercial data available,'' as

mandated by Section 4 of the Endangered Species Act.

Authority: The authority for this action is the Endangered

Species Act, 16 U.S.C. 1531-1544.

List of Subjects in 50 CFR Part 17

Endangered and threatened wildlife, Fish, Marine mammals, Plants

(agriculture).

Dated: December 20, 1993.

Richard N. Smith,

Acting Director, Fish and Wildlife Service.

[FR Doc. 94-89 Filed 1-3-94; 8:45 am]

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