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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 223 and 224
          - [Docket No. 011212298-1298-01; I.D. No. 113001A;]

# AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

# ACTION:

Notice of petition finding; request for information and comments.

# SUMMARY:

                        NMFS announces the 90-day finding for a petition to list Atlantic white marlin (                        *Tetrapturus albidus*) as threatened or endangered throughout its known range and to designate critical habitat under the Endangered Species Act (ESA).  NMFS finds that the petition presents substantial scientific information indicating that the petitioned action may be warranted.  NMFS will conduct a status review of Atlantic white marlin to determine if the petitioned action is warranted.  To ensure that the review is comprehensive, NMFS is soliciting information and comments pertaining to this species and potential critical habitat from any interested party.  NMFS also seeks suggestions from the public for peer reviewers to take part in the peer review process for the Atlantic white marlin status review.                    

# DATES:

Comments and information related to this petition finding must be received by February 19, 2002.

# ADDRESSES:

Requests for copies of the petition, and information and comments on this finding should be submitted to Georgia Cranmore, Assistant Regional Administrator for Protected Resources, National Marine Fisheries Service, Southeast Regional Office, 9721 Executive Center Drive North, St. Peterburg, FL 33702-2432.  The petition, finding and supporting data are available for public inspection, by appointment, during normal business hours at the above address.

# FOR FURTHER INFORMATION CONTACT:

Jennifer Lee, NMFS Southeast Region, (727) 570-5312; or David O’Brien, NMFS, Office of Protected Resources, (301) 713-1401.

# SUPPLEMENTARY INFORMATION:

## Background

                    Section 4 (b)(3)(A) of the ESA (16 U.S.C. 1531*et seq*.) requires that NMFS make a finding as to whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted.  NMFS’ ESA implementing regulations (50 CFR 424.14) define “substantial information” as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.  In determining whether substantial information exists for a petition to list a species, NMFS takes into account several factors, including information submitted with, and referenced in, the petition and all other information readily available in NMFS’ files.  To the maximum extent                           ( print page 65677)                        practicable, this finding is to be made within 90 days of the receipt of the petition, and the finding is to be published promptly in the                     **Federal Register**                    .  If NMFS finds that a petition presents substantial information indicating that the requested action may be warranted, section 4 (b)(3)(A) of the ESA requires the Secretary of Commerce (Secretary) to conduct a status review of the species.  Section 4 (b)(3)(B) requires the Secretary to make a finding as to whether or not the petitioned action is warranted within 1 year of the receipt of the petition.                

## Analysis of Petition

On September 4, 2001, NMFS received a petition from the Biodiversity Legal Foundation and James R. Chambers requesting NMFS to list the Atlantic white marlin (Tetrapturus albidus) as threatened or endangered throughout its range, and to designate critical habitat under the ESA.  The petition contained a detailed description of the species, including the  present legal status; taxonomy and physical appearance; ecological and fisheries importance; distribution; physical and biological characteristics of its habitat and ecosystem relationships; population status and trends; and factors contributing to the population’s decline.  Potential threats identified in the petition include: (1) overutilization for commercial purposes; (2) inadequacy of existing regulatory mechanisms; (3) predation; and (4) other natural or man-made factors affecting the species’ continued existence.  The petitioners also included information regarding how the species would benefit from being listed under the ESA, cited references and provided appendices in support of the petition.

Under the ESA, a listing determination can address a species, subspecies, or a distinct population segment (DPS) of a species (16 U.S.C. 1532 (16)).  The petitioners requested that NMFS list Atlantic white marlin throughout its entire range.  They are found in warm waters throughout tropical and temperate portions of the Atlantic Ocean and its adjacent seas (Caribbean, Mediterranean and Gulf of Mexico).  A highly migratory pelagic species, they are found predominantly in the open ocean over deep water, near the surface in the vicinity of major ocean currents where their prey is concentrated.  Their food resources include small fishes and invertebrates such as squid that can be swallowed whole.

The petitioners provided a detailed narrative justification for their petitioned action, describing past and present numbers and distribution of Atlantic white marlin.  Information regarding its status was provided for the entire range of the species.  The petition was accompanied by appropriate supporting documentation, including the most recent stock assessment for this species (SCRS/00/23).

                    In 1997, the Atlantic white marlin was listed as overfished under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801*et seq*.).  In April 1999, NMFS published Amendment 1 to the Atlantic Billfish Fishery Management Plan, which included rebuilding programs and measures to reduce bycatch and bycatch mortality for Atlantic billfish, including white marlin.  The International Commission for the Conservation of Atlantic Tunas (ICCAT), responsible for management of tunas and tuna-like fishes of the Atlantic Ocean also considers the Atlantic white marlin to be overfished.  Several binding recommendations have been adopted by ICCAT over the last few years to reduce landings and improve data and monitoring.  The most recent recommendation in November 2000 included a two-phase rebuilding plan involving further landing reductions and the development of more rebuilding measures after the next stock assessments in 2002.                

                    The petitioners assert that existing protection for Atlantic white marlin at both the national and international level is inadequate to conserve the species or prevent its slide to extinction.  The population's decline has been documented thoroughly by ICCAT's scientific advisors, the Standing Committee for Research and Statistics (SCRS).  According to the petitioners, the primary cause of the Atlantic white marlin decline is due to bycatch in the international swordfish and tuna fisheries.  The most recent stock assessment conducted in July of 2000 (SCRS/00/23) indicates that by the end of 1999:  (1) the total Atlantic stock biomass had declined to less than 15 percent of its maximum sustainable yield level; (2) fishing mortality was estimated to be at least seven times higher than the sustainable level; (3) overfishing has taken place for over three decades; and (4) the stock is less productive than previously estimated, with a maximum sustainable yield smaller than 1,300 metric tons.  The population’s abundance was last at its long-term sustainable level in 1980.  Reduction in prey species availability may also be a threat to the species, with two of its important prey species, Atlantic bluefish and squid, listed as overfished under the Magnuson-Stevens Act (16 U.S.C. 1801*et seq*.).                

## Petition Finding

Based on the above information and the criteria specified in 50 CFR 424.14 (b)(2), NMFS finds that the petitioner presents substantial scientific and commercial information indicating that a listing of Atlantic white marlin may be warranted.  Under section 4 (b)(3)(A) of the ESA, this finding requires that NMFS commence a status review on Atlantic white marlin.  NMFS is now initiating this review.  Within one year of the receipt of the petition (by September 3, 2002), a finding will be made as to whether listing the Atlantic population of the white marlin as threatened or endangered is warranted, as required by section 4 (b)(3)(B) of the ESA.  If warranted, NMFS will publish a proposed rule and take public comment before developing and publishing a final rule.

## Listing Factors and Basis for Determination

Under section 4 (a)(1) of the ESA, a species can be determined to be threatened or endangered for any one of the following reasons: (1) Present or threatened destruction, modification, or curtailment of habitat or range; (2) over-utilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence.  Listing determinations are made solely on the basis of the best scientific and commercial data available, after conducting a review of the status of the species and taking into account efforts made by any state or foreign nation to protect such species.

## Information Solicited

                    To ensure that the status review is completed in a timely manner and based on the best available scientific and commercial data, NMFS is soliciting information and comments on whether the Atlantic white marlin is endangered or threatened based on the above listing criteria.  Specifically, NMFS is soliciting information in the following areas: (1) Historical and current abundance of Atlantic white marlin; (2) current spatial distribution; (3) population status and trends; (4) information on any current or planned activities that may adversely impact Atlantic white marlin, especially related to the five listing factors identified above; and (4) ongoing efforts to protect Atlantic white marlin and their habitat. NMFS requests that all data,                           ( print page 65678)                        information, and comments be accompanied by: (1) supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter’s name, address, and any association, institution, or business that the person represents.                

## Critical Habitat

NMFS is also requesting information on areas that may qualify as critical habitat for the Atlantic white marlin.  Areas that include the physical and biological features essential to the recovery of the species should be identified.  Areas outside the present range should also be identified if such areas are essential to the recovery of the species.  Essential features include, but are not limited to: (1) space for individual growth and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for reproduction and development of offspring; and (5) habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of the species (50 CFR 424.12 (b)).

For areas potentially qualifying as critical habitat, NMFS requests information describing (1) the activities that affect the area or that could be affected by the designation, and (2) the economic costs and benefits of management measures likely to result from the designation.  NMFS is required to consider the probable economic and other impacts on proposed or ongoing activities in making a final critical habitat designation(50 CFR 424.19).

## Peer Review

On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife Service, published a series of policies regarding listings under the ESA, including a policy for peer review of scientific data (59 FR 34270).  The intent of the peer review policy is to ensure that listings are based on the best scientific and commercial data available.  NMFS is soliciting the names of recognized experts in the field that could take part in the peer review process for this status review.  Independent peer reviewers will be selected from the academic and scientific community, tribal and other Native American groups, Federal and state agencies, the private sector, and public interest groups.

## References Cited

SCRS. 2000.  Report of the ICCAT Billfish Workshop (Miami, FL, USA, July 18-28,2000) - Billfish Detailed Report

Authority:16 U.S.C. 1531*et seq*.                    

Dated: December 14, 2001.

William T. Hogarth,

Assistant Administrator for Fisheries, National Marine Fisheries Service.

[FR Doc. 01-31285 Filed 12-19-01; 8:45 am]

BILLING CODE  3510-22-S