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SUPPORTING STATEMENT
GREEN STURGEON ESA 4(D) RULE TAKE EXCEPTIONS AND EXEMPTIONS
OMB NUMBER 00648-0xxx

A.

JUSTIFICATION

1. Explain the circumstances that make the collection of information necessary.
The Southern Distinct Population Segment (Southern DPS) of North American green sturgeon
(Acipenser medirostris; hereafter, “Southern DPS”) was listed as a threatened species in April
2006. Section 4(d) of the Endangered Species Act of 1973 (ESA) authorizes the Secretary of
Commerce to adopt regulations determined to be necessary and advisable for the conservation of
species listed as threatened. Such regulations may include any or all of the prohibitions
described in section 9(a)(1) of the ESA.
As the agency with jurisdiction over the species, the National Oceanic and Atmospheric
Administration’s (NOAA) National Marine Fisheries Service (NMFS) determined that protective
regulations (a “4(d) rule”) are necessary and advisable for the conservation of the Southern DPS.
A proposed rule, RIN 0648-AV94, will establish protective regulations for the Southern DPS and
will apply all of the prohibitions listed under section 9(a)(1) of the ESA prohibiting the import,
export, possession, sale, delivery, carrying, transport, shipment, and receipt in interstate or
foreign commerce, or for commercial activity, of Southern DPS fish. The proposed rule would
also prohibit the take of Southern DPS fish within the United States (U.S.), the U.S. territorial
sea, or upon the high seas. Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or to attempt to engage in any such conduct [ESA section 3(18)].
The proposed rule would establish exceptions to and exemptions from the take prohibitions for
activities that NMFS determines to be adequately protective of the Southern DPS. Under the
exceptions, specific activities would be excluded from the take prohibitions for the Southern
DPS through a relatively informal coordination process. Under the exemptions, take of Southern
DPS fish would be covered under a NMFS 4(d) program established and approved by NMFS
through a formal process. The proposed rule also describes traditional methods for authorizing
takes through ESA section 7 or 10. In all of these circumstances, NMFS will depend on
voluntary adherence to criteria and reporting requirements, preparation of formal 4(d) program
packages, or submission of materials necessary to receive ESA permits so that: NMFS can:
1) assess the effects of the takes; 2) determine what category those takes fall under (i.e.,
excepted, exempted, prohibited); 3) approve 4(d) program plans or ESA applications that
ultimately will authorize the takes.
2. Explain how, by whom, how frequently, and for what purpose the information will be
used. If the information collected will be disseminated to the public or used to support
information that will be disseminated to the public, then explain how the collection
complies with applicable information quality guidelines.
To comply with the ESA and the regulations, entities must obtain take authorization prior to
engaging in activities involving take of Southern DPS fish unless take is covered by an
exception, an exemption, an ESA section 7 incidental take statement, or an ESA section 10
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permit. Under an exception, certain activities would not be subject to the take prohibitions if
they adhere to specific criteria and reporting requirements as specified in the 4(d) rule. Under an
exemption, the take prohibitions would not apply to scientific research or monitoring, fisheries,
or tribal resource management activities conducted under an approved 4(d) Program. Take
authorization for Federal agency actions may be granted under an ESA section 7 incidental take
statement. Take authorization for non-Federal actions may be granted under an ESA section
10(a)(1)(A) or 10(a)(1)(B) permit.
In order to ensure that activities qualify under the exceptions to or exemptions from the take
prohibitions, local, state, and federal agencies, non-governmental organizations, academic
researchers, and private organizations are asked to voluntarily submit detailed information
regarding their activity on a schedule to be determined by NMFS staff. This information will be
used by NMFS to (1) track the number of Southern DPS fish taken as a result of each action;
(2) understand and evaluate the cumulative effects of each action on the Southern DPS; and
(3) determine whether additional protections are needed for the species, or whether additional
exceptions may be warranted. NMFS designed the criteria to ensure that plans meeting the
criteria would adequately limit impacts on threatened Southern DPS fish, such that additional
protections in the form of a federal take prohibition would not be necessary and advisable.
The information collection for exceptions is described below:
(1) Federal, state or private-sponsored research or monitoring activities; entities are asked to:
(a) Show that the activity complies with required state reviews or permits and NMFS
sturgeon research protocols that are currently under development and will be finalized
when the final 4(d) rule is published;
(b) Show that the research or monitoring activity is directed at the Southern DPS and not
be incidental to research or monitoring of another species;
(c) Show that take of live mature adults in the lower Feather River from the confluence
with the Sacramento River to the Oroville Dam (river kilometer (rkm) 116), the lower
Yuba River from the confluence with the Feather River to the Daguerre Dam (rkm 19), or
Suisun, San Pablo, and San Francisco Bays or the Sacramento-San Joaquin Delta from
the Golden Gate Bridge up into the Sacramento River to Keswick Dam (rkm 483) only
occurs from July 1 through March 1 so as to substantially increase the likelihood that
uninterrupted upstream spawning migrations of adults will occur;
(d) Show that take is non-lethal;
(e) Show that take involving the removal of any life stage of the Southern DPS from the
wild does not exceed 60 minutes;
(f) Show that take does not involve artificial spawning or enhancement activities;
(g) Provide a description of the study objectives and justification, a summary of the study
design and methodology, estimates of the total non-lethal take of Southern DPS fish
anticipated, estimates of incidental take of other ESA listed species anticipated and proof
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that those takes have been authorized by NMFS or the U.S. Fish and Wildlife Service
(USFWS), identification of funding sources, and a point of contact to NMFS at least 60
days prior to the start of the study;
(h) Include in the report the total number of Southern DPS and any other ESA listed
species taken, information that supports that take was non-lethal, and a summary of the
project results and submit this report to NMFS on a schedule to be determined by NMFS
staff;
(i) Show that research or monitoring that involves action, permitting or funding by a
federal agency complies with the requirements of ESA section 7(a)(2) in order to ensure
that the action will not jeopardize the continued existence of the threatened Southern
DPS.
(2) Emergency fish rescue and salvage activities; entities are asked to:
(a) Show that the activity complies with required state or other Federal reviews or
permits;
(b) Show that activities are conducted by an employee or designee of NMFS or the
USFWS, any Federal land management agency, or California Department of Fish and
Game (CDFG), Oregon Department of Fish and Wildlife (ODFW), Washington
Department of Fish and Wildlife (WDFW), or Alaska Department of Fish and Game
(ADFG);
(c) Show that the emergency rescue occurs because of emergency situations that result
from natural disasters or national defense or security emergencies (see 50 CFR 402.05);
(d) Show that the emergency rescue benefits the Southern DPS;
(e) Submit a report to NMFS that includes, at a minimum, the number and status of fish
handled and the location of rescue and/or salvage operations within 30 days after
conducting the emergency rescue.
(3) Habitat restoration activities; entities are asked to:
(a) Show that the activity complies with required state and Federal reviews and permits;
(b) Send a detailed description of the restoration activity to NMFS at least 60 days prior
to the start of the restoration project which includes: the geographic area affected; when
activities will occur; how they will be conducted; and the severity of direct, indirect, and
cumulative impacts of activities on the Southern DPS; identification of funding sources;
demonstration that all state and federal regulatory requirements have been met; a
description of methods used to ensure that the likelihood of survival or recovery of the
listed species is not reduced; a plan for minimizing and mitigating any adverse impacts to
Southern DPS spawning or rearing habitat; an estimate of the amount of incidental take
of the listed species that may occur and a description of how that estimate was made; a
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plan for effective monitoring and adaptive management; a pledge to use best available
science and technology when conducting restoration activities; and a point of contact;
(c) Send progress reports that include the total number of Southern DPS taken,
information regarding whether the take was lethal or non-lethal, a summary of the status
of the project, and any changes in the methods being employed, to NMFS on a schedule
to be determined by NMFS staff;
(d) Show that activities that involve action, permitting or funding by a federal agency
comply with the requirements of ESA section 7(a)(2) in order to ensure that the action
will not jeopardize the continued existence of the threatened Southern DPS.
The information collections for 4(d) Program exemptions below:
(a) Fishery Management and Evaluation Plans (FMEP): Commercial and recreational
fisheries activities would not be subject to the take prohibitions if conducted under an
approved FMEP. Green sturgeon are not targeted, but are taken as bycatch in fisheries
for other species, such as white sturgeon, salmon, and groundfish. To qualify for the
exemption, fishery management agencies would prepare an FMEP and submit the plan to
NMFS. NMFS would evaluate the plan based on its completeness and potential impact
on the Southern DPS. NMFS may approve the plan or return the plan to the agency for
revision. New or amended FMEPs would be published in the Federal Register for public
comment prior to approval by NMFS. Decisions to withdraw approval for an FMEP
would also be published in the Federal Register and subject to public comment.
Fishery management agencies seeking take authorization under an FMEP would be
required to submit in writing to NMFS:
(i) The FMEP, including: prohibitions on the retention of green sturgeon; a bycatch
management strategy, including maximum bycatch levels for green sturgeon and
biologically-based rationale demonstrating how the measures will protect the Southern
DPS; and plans for monitoring and evaluation, enforcement, and education. NMFS
would use this information to evaluate the potential impacts of the plan on the
Southern DPS.
(ii) Biannual reports to NMFS, including: the number of green sturgeon taken in the
fishery and an evaluation and summary of the effectiveness of the FMEP. NMFS
would use the reports to evaluate the FMEPs and recommend changes to improve the
effectiveness of the FMEPs.
(b) Tribal Fishery Management Plans (TFMP): Fishery harvest activities conducted by a
tribe, tribal member, tribal permittee, tribal employee, or tribal agent would not be
subject to the take prohibitions if conducted in compliance with an approved TFMP. A
TFMP may be developed by one tribe or jointly with other tribes and may vary in
content. The Secretary of Commerce would consult with the tribe(s) on a government-togovernment basis to provide technical assistance during development of a TFMP. The
tribe or tribes would prepare a plan addressing fishery harvest activities and submit it to
NMFS. NMFS would evaluate the plan based on its completeness and potential impact
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on the Southern DPS. Approval would also be contingent on a determination by the
Secretary of Commerce that the TFMP would not appreciably reduce the likelihood of
survival or recovery of the Southern DPS. NMFS may approve the plan or return the
plan to the tribe for revision. New or amended TFMPs and the Secretary’s determination
on the TFMP would be published in the Federal Register for public comment prior to
approval.
(c) State-sponsored scientific research programs: Scientific research activities involving
incidental or direct take of listed species are typically authorized under ESA section 7 or
10. Establishment of state-sponsored scientific research programs between state fishery
agencies and NMFS would provide an additional method for researchers to obtain take
authorization. The programs would cover research and monitoring projects involving
Southern DPS fish that are conducted by a state fishery agency (i.e., CDFG, ODFW,
WDFW, or ADFG) or by recipients of a state fishery agency-issued permit. Such
programs would help streamline the process for researchers, state agencies, and NMFS by
allowing state fishery agencies to maintain primary responsibility for coordination and
oversight of research activities. Each year, researchers would be required to submit
research applications to the state fishery agency. State fishery agencies would evaluate
and determine which projects are eligible for inclusion under the program and then
transmit approved applications to NMFS for review and approval. Researchers would
not be required to apply for a separate permit from NMFS. NMFS would continue to
work with the state fishery agencies to ensure authorized research involving listed
Southern DPS fish is both coordinated and conducted in a manner that prevents overutilization of the resource.
State ESA 4(d) research programs have been developed and implemented in California,
Oregon, and Washington for listed west coast salmon and steelhead. Within these
programs, the state permit process has been adapted consistent with ESA requirements
for research-related take of listed species. Green sturgeon would most likely be
incorporated into the existing state ESA 4(d) research programs established for listed
salmon and steelhead. Otherwise, the state would be required to prepare a program and
submit it to NMFS for approval. NMFS may approve the program or return the program
description to the agency for revision.
Under a state-sponsored scientific research program, the state fishery agency would be
required to provide for NMFS’ review and approval a list of all scientific research
activities involving Southern DPS fish for the coming year, including for each project:
(i) An estimate of the total direct or indirect take of Southern DPS fish that is
anticipated;
(ii) A description of the study design and methodology;
(iii) A justification for take of Southern DPS fish and the techniques to be employed;
(iv) A point of contact.

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The state fishery agency would also be required to submit to NMFS an annual report that
includes, for each project:
(i) A summary of the number of green sturgeon taken directly or incidentally; and
(ii) A summary of the results of the project, in order for NMFS to evaluate the effects of
the research project on the Southern DPS.
It is anticipated that some of the information collected will be disseminated to the public or used
to support publicly disseminated information. As explained in the preceding paragraphs, the
information gathered has utility. NOAA’s NMFS will retain control over the information and
safeguard it from improper access, modification, and destruction, consistent with NOAA
standards for confidentiality, privacy, and electronic information. See response to Question 10
of this Supporting Statement for more information on confidentiality and privacy. The
information collection is designed to yield data that meet all applicable information quality
guidelines. Prior to dissemination, the information will be subjected to quality control measures
and a pre-dissemination review pursuant to Section 515 of Public Law 106-554.
3. Describe whether, and to what extent, the collection of information involves the use of
automated, electronic, mechanical, or other technological techniques or other forms of
information technology.
The rule would not require any particular method of submission of plans or reports. A webbased system was developed for the state of Oregon’s ESA 4(d) research program for listed
salmon and steelhead Evolutionarily Significant Units (ESU), and is currently available for use
by applicants in Oregon, Washington, and Idaho. Such a web-based system has also been
developed for CDFG’s ESA 4(d) research program for listed salmonids. The web-based system
has helped streamline and standardize the application and authorization process for researchers,
as well as the review process for state and NOAA biologists. Any state sponsored scientific
research program developed for Southern DPS green sturgeon would likely be able to use the
web-based system, or develop a similar web-based system.
Web-based systems have not been developed for the other exceptions or exemptions, but may be
developed in the future. At the least, a summary of the criteria and instructions on how to apply
for each exception would be posted on the NMFS website.
4. Describe efforts to identify duplication.
Several of the exemptions under the proposed 4(d) rule were modeled after “limits” established
in a 4(d) rule for listed West Coast salmon and steelhead. Thus, several of the information
collections are similar to those required under the 4(d) rule for listed salmon and steelhead: (1)
FMEPs; (2) TFMPs; and (3) state-sponsored scientific research programs. The collections for
exceptions are unique to the Southern DPS. Although several of the collections are similar,
separate collections are necessary for the Southern DPS because: (1) the plans and reports
collected for listed salmon and steelhead do not address Southern DPS fish; and (2) the specific
criteria for the plans and reports differ from those under the collections for listed salmon and
steelhead.
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In some cases, Southern DPS green sturgeon may be incorporated into existing programs. For
example, NMFS would plan to incorporate Southern DPS green sturgeon into existing statesponsored scientific research programs developed for listed salmon and steelhead ESUs in
California, Oregon, and Washington. This would reduce the number of burden hours required by
state fishery agencies to develop the programs. State fishery agencies may also choose to
combine the annual reports for Southern DPS fish and listed salmon and steelhead ESUs into one
report, because several studies may involve both Southern DPS fish and listed salmon and
steelhead ESUs. In addition, existing water diversion screening programs may be revised to
address concerns specific to Southern DPS green sturgeon.
In the absence of exceptions and the 4(d) rule exemptions, NMFS provides ESA coverage
through section 10 research, enhancement, and incidental take permits for private entities, or
through section 7 consultation with Federal agencies. The ESA section 7 and section 10
processes have their own specific reporting requirements associated with them.
5. If the collection of information involves small businesses or other small entities, describe
the methods used to minimize burden.
None of these collections would have a significant impact on small entities. Most of the affected
entities are state, local, tribal or Federal government.
6. Describe the consequences to the Federal program or policy activities if the collection is
not conducted or is conducted less frequently.
If NMFS were not to provide exceptions or exemptions to the take prohibitions, then entities
would be required to obtain take authorization under an ESA section 10 permit for non-Federal
agency actions, or an ESA section 7 consultation for Federal agency actions. Without an ESA
section 10 permit or a completed ESA section 7 consultation, the entity would remain at risk of
ESA enforcement for violation of the take prohibitions. In some cases, the exceptions would
provide a more stream-lined process and facilitate coordination among the entities, the States,
and NMFS. In addition, the protective measures implemented under the plans and programs may
benefit other species.
The information collections under the exceptions and exemptions would serve several purposes,
each vital to NMFS’ ability to protect and conserve the Southern DPS. The information
collections (i.e., the plans, programs, and reports) would: (1) inform NMFS of proposed actions
that may result in take of Southern DPS fish; (2) allow NMFS to evaluate and provide feedback
on the potential effects of actions on the Southern DPS and to determine whether the actions
meet criteria under the exceptions; and (3) provide NMFS with data and regular updates on the
actions. Not collecting plans and programs, or collecting reports less frequently, would hinder
NMFS’ ability to provide for the conservation of the Southern DPS.
7. Explain any special circumstances that require the collection to be conducted in a
manner inconsistent with OMB guidelines.
This information collection is consistent with OMB guidelines (5 CFR 1320.6).

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8. Provide information on the PRA Federal Register Notice that solicited public comments
on the information collection prior to this submission. Summarize the public comments
received in response to that notice and describe the actions taken by the agency in response
to those comments. Describe the efforts to consult with persons outside the agency to
obtain their views on the availability of data, frequency of collection, the clarity of
instructions and recordkeeping, disclosure, or reporting format (if any), and on the data
elements to be recorded, disclosed, or reported.
A proposed rule, Regulation Identifier Number (RIN) 0648-AV94, to establish protective
regulations under section 4(d) of the ESA for the threatened Southern DPS of green sturgeon,
was published in the Federal Register on May 21, 2009 (74 FR 23822) seeking public comment
on the proposed protective regulations and the proposed information collections.
9. Explain any decisions to provide payments or gifts to respondents, other than
remuneration of contractors or grantees.
No payments, gifts, or remuneration are associated with these voluntary collections of
information.
10. Describe any assurance of confidentiality provided to respondents and the basis for
assurance in statute, regulation, or agency policy.
There are no assurances of confidentiality associated with these voluntary collections of
information. The information supplied would be a matter of public record.
11. Provide additional justification for any questions of sensitive nature, such as sexual
behavior and attitudes, religious beliefs, and other matters that are commonly considered
private.
No questions of a sensitive nature are included in this information collection.
12. Provide an estimate in hours of the burden of the collection of information.
The estimated total number of respondents is 38. The total number of annual responses is 67,
and the recordkeeping and reporting burden to the general public for the green sturgeon 4(d) rule
take exceptions is estimated to be 1,528 hours per year. The estimated annual labor cost to the
general public to apply for coverage under the green sturgeon 4(d) rule take exceptions and to
comply with the requirements under the exceptions is approximately $27,495. Table 1
summarizes the estimated annual number of responses, average hours per response, total annual
hours, labor cost per response, and total annual labor costs for each information collection.
13. Provide an estimate of the total annual cost burden to the respondents or recordkeepers resulting from the collection (excluding the value of the burden hours in Question
12 above).
The estimated total number of respondents is 38, and the estimated annual cost to the general
public, excluding burden hours, such as maintenance and submission costs associated with the
green sturgeon 4(d) rule take exceptions and exemptions, is approximately $185.63 (rounded to
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$189 in ROCIS). There are no capital or start-up costs associated with this information
collection. Table 2 summarizes the annual number of responses, average operations and
maintenance costs per response, and total annual operations and maintenance costs for each
information collection.
14. Provide estimates of annualized cost to the Federal government.
The estimated annual costs for processing submissions for the green sturgeon 4(d) rule take
exceptions and exemptions and responding to the reporting requirements to the Federal
government was determined by calculating the total time necessary for staff to complete the
response and multiplying the amount by $18 per hour. The total annual estimated cost to the
Federal government is $17,406. Table 3 summarizes the annual number of responses, average
processing time per response, total annual processing hours, cost per response, and total annual
costs for each information collection.
15. Explain the reasons for any program changes or adjustments.
Not applicable. This is a new information collection.
16. For collections whose results will be published, outline the plans for tabulation and
publication.
As described above under Question 2, several of the plans and programs would be required to be
published in the Federal Register for public comment prior to approval under the exceptions.
NMFS plans to make available on the NMFS Southwest Region website the approved plans and
programs and annual reports submitted in compliance with the requirements under the
exceptions.
17. If seeking approval to not display the expiration date for OMB approval of the
information collection, explain the reasons why display would be inappropriate.
Not applicable.
18. Explain each exception to the certification statement.
Not applicable.

B.

COLLECTIONS OF INFORMATION EMPLOYING STATISTICAL METHODS

Not applicable. This information collection request does not employ statistical methods.

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Table 1. Summary of the estimated annual number of responses, average hours per response, total annual burden
hours, labor cost per response, and total annual labor costs to the public resulting from the information collections.
Information
Collection
Scientific
Research/monitoring
exception
Scientific
Research/monitoring
exception report
Emergency fish
rescue reports
Habitat Restoration
exception
Habitat Restoration
exception report
FMEP
FMEP report
(biannual)
TFMP
State research
program
Research reports
TOTAL

Annual #
Responses

Av. Hours Per
Response

Total Annual
Hours

Labor Cost
Per Response
(@$18/Hr)

Total Annual
Labor Costs

10

40

400

$720

$7,200

10

5

50

$90

$900

3

5

15

$90

$270

10

40

400

$720

$7,200

10

5

50

$90

$900

10

40

400

$720

$7,200

5

2.5

12.5

$45

$225

1

20

20

$360

$360

4

40

160

$720

$2,880

4
67

5

20
1,527.5

$90

$360
$27,495

Table 2. Summary of the estimated annual number of responses, average operations and maintenance costs per
response, and total annual operations and maintenance costs to the public resulting from the information collections.
Information Collection
Scientific
Research/monitoring
exception
Scientific
Research/monitoring
exception report
Emergency fish rescue
reports
Habitat Restoration
exception
Habitat Restoration
exception report
FMEP
FMEP report (biannual)
TFMP
State research program
Research reports
TOTAL

Annual #
Responses

Av. Operations & Maintenance
Costs Per Response

Total Annual Operations &
Maintenance Costs

10

$1.00 (copy) + $1.65 (postage) =
$2.65

$26.50

10

$1.00 (copy) + $1.65 (postage) =
$2.65

$26.50

3
10
10
10
5
1
4
4

$1.00 (copy) + $1.65 (postage) =
$1.65
$1.00 (copy) + $1.65 (postage) =
$2.65
$1.00 (copy) + $1.65 (postage) =
$2.65
$1.00 (copy) + $1.65 (postage) =
$2.65
$1.00 (copy) + $1.65 (postage) =
$2.65
$1.00 (copy) + $1.65 (postage) =
$2.65
$2.00 (copy) + $2.67 (postage) =
$4.67
$1.00 (copy) + $1.65 (postage) =
$2.65

$7.95
$26.50
$26.50
$26.50
$13.25
$2.65
$18.68
$10.60
$185.63 (ROCIS rounded to
$189)

67

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Table 3. Summary of the estimated annual number of responses, average Federal government processing hours per
response, total annual processing hours, average cost to process each response, and total annual costs to the Federal
government resulting from the information collections.
Information
Collection
Scientific
Research/monitoring
exception
Scientific
Research/monitoring
exception report
Emergency fish
rescue reports
Habitat Restoration
exception
Habitat Restoration
exception report
FMEP
FMEP report
(biannual)
TFMP
State research
program
Research reports
TOTAL

Annual #
Responses

Av. Processing
Hours Per
Response

Total Annual
Processing
Hours

Cost Per
Response
(@$18/Hr)

Total
Annual
Costs

10

20

200

$360

$3,600

10

8

80

$144

$1,440

3

5

15

$90

$270

10

20

200

$360

$3,600

10

8

80

$144

$1,440

10

20

200

$360

$3,600

5

8

40

$72

$720

1

40

40

$720

$720

4

20

80

$360

$1,440

4
67

8

32
967

$144

$576
$17,406

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