        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 83
        [Docket No. FWS-R9-WSR-2010-0009]
        [91400-5110-POLI-7B; 91400-9410-POLI-7B]
        RIN 1018-AX00
        Removing Regulations Implementing the Fish and Wildlife Conservation Act

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule.

          SUMMARY:
          We, the U.S. Fish and Wildlife Service (Service), propose to remove our regulations implementing the Fish and Wildlife Conservation Act of 1980. The Act authorized financial and technical assistance to States to design conservation plans and programs to benefit nongame species; however, funds never became available to carry out the Act, and we do not expect funds to become available in the future.

          DATES:
          We will consider comments received or postmarked on or before July 6, 2010.

          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-R9-WSR-2010-0009.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R9-WSR-2010-0009; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

          We will not accept e-mail or faxes. We will post all public 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:
          Joyce Johnson, Wildlife and Sport Fish Restoration Program, Division of Policy and Programs, U.S. Fish and Wildlife Service, 703-358-2156.

        SUPPLEMENTARY INFORMATION:
        Background
        The Service manages or comanages 54 financial assistance programs. Our Wildlife and Sport Fish Restoration Program manages, in whole or in part, 19 of these programs. We implement some of these programs via regulations in title 50 of the Code of Federal Regulations (CFR), particularly in subchapter F “Financial Assistance—Wildlife and Sport Fish Restoration Program,” which currently includes parts 80 through 86.

        The regulations at part 83 implement the Fish and Wildlife Conservation Act of 1980 (16 U.S.C. 2901-2911). This act authorized the Service to give financial and technical assistance to States and other eligible jurisdictions to design conservation plans and programs to benefit nongame species. The regulations tell the fish and wildlife agencies of the 50 States, the Commonwealths of Puerto Rico and the Northern Mariana Islands, the District of Columbia, and the territories of Guam, the U.S. Virgin Islands, and American Samoa how they can take part in this grant program. However, neither the Fish and Wildlife Conservation Act nor any subsequent legislation established a continuing source of funds for this grant program, nor have annual Appropriations Acts provided any funds for it. In 1984, the Service's Western Energy and Land Use Team prepared a document identifying potential funding sources, but none of these options were adopted.
        Congress has appropriated funds in recent years for State conservation planning and programs to benefit nongame species, but none of these grant programs have been under the authority of the Fish and Wildlife Conservation Act. Instead, Congress made funds available through the Wildlife Conservation and Restoration grant program in 2001 and—during each year since 2002—the State Wildlife Grants program. Based on this 30-year record, we do not expect that the grant program authorized by the Fish and Wildlife Conservation Act of 1980 will receive any funding, so we propose to remove its implementing regulations.
        Public Comments

        You may submit your comments and materials concerning this 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. Finally, we will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked, by the date specified in the DATES section.
        Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment - including your personal identifying information - may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
        Required Determinations
        Clarity of This Regulation
        We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
        (a) Be logically organized;
        (b) Use the active voice to address readers directly;
        (c) Use clear language rather than jargon;
        (d) Be divided into short sections and sentences; and
         (e) Use lists and tables wherever possible.

        If you feel that we have not met these requirements, send us comments by one of the methods listed in the “ADDRESSES” section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs with unclear writing, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.
        Regulatory Planning and Review
        The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this rule under E.O. 12866. OMB bases its determination on the following four criteria:
         (a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
         (b) Whether the rule will create inconsistencies with other Federal agencies' actions.
         (c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
         (d) Whether the rule raises novel legal or policy issues.
        Regulatory Flexibility Act
        The Regulatory Flexibility Act requires an agency to consider the impact of proposed rules on small entities, i.e., small businesses, small organizations, and small government jurisdictions. If there is a significant economic impact on a substantial number of small entities, the agency must perform a Regulatory Flexibility Analysis. This is not required if the head of an agency certifies the rule would not have a significant economic impact on a substantial number of small entities. The Small Business Regulatory Enforcement Fairness Act (SBREFA) amended the Regulatory Flexibility Act to require Federal agencies to state the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities.
        We are removing a rule governing an unfunded grant program. Consequently, we certify that the removal would not have a significant economic effect on a substantial number of small entities; a Regulatory Flexibility Analysis is not required.
        In addition, this proposed rule is not a major rule under SBREFA and would not have a significant impact on a substantial number of small entities because it does not:
        a. Have an annual effect on the economy of $100 million or more.
        b. Cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions.
        c. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
        Unfunded Mandates Reform Act
        The Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. The Act requires each Federal agency, to the extent permitted by law, to prepare a written assessment of the effects of a proposed rule with Federal mandates that may result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any 1 year. We have determined the following under the Unfunded Mandates Reform Act:
        a. As discussed in the determination for the Regulatory Flexibility Act, this proposed rule would not have a significant economic effect on a substantial number of small entities.
        b. The regulation does not require a small government agency plan or any other requirement for expenditure of local funds.
        c. There are no mandated costs associated with the proposed rule.
        d. This proposed rule would not produce a Federal mandate of $100 million or greater in any year; i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.
        Takings
        This proposed rule would not have significant takings implications under E.O. 12630 because it would not have a provision for taking private property. Therefore, a takings implication assessment is not required.
        Federalism
        This proposed rule would not have sufficient Federalism effects to warrant preparation of a Federalism assessment under E.O. 13132. It would not interfere with the States' ability to manage themselves or their funds.
        Civil Justice Reform

        The Office of the Solicitor has determined under E.O. 12988 that the rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of E.O. 12988.
        Paperwork Reduction Act

        This proposed rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
        National Environmental Policy Act

        We have analyzed this rule under the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and part 516 of the Departmental Manual (DM). This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental impact statement/assessment is not required because this proposed action qualifies for the categorical exclusion for administrative changes provided in 516 DM 2, Appendix 1, section 1.10.
        Government-to-Government Relationship with Tribes
        We have evaluated potential effects on federally recognized Indian tribes under the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2. We have determined that there are no potential effects. This proposed rule would not interfere with the tribes' ability to manage themselves or their funds.
        Energy Supply, Distribution, or Use
        E.O. 13211 addresses regulations that significantly affect energy supply, distribution, and use and requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not a significant regulatory action under E.O. 12866 and would not affect energy supplies, distribution, or use. Therefore, no Statement of Energy Effects is required.

          List of Subjects in 50 CFR Part 83
          Fish, Grant programs—natural resources, Reporting and recordkeeping requirements, Wildlife.

        Proposed Regulation Promulgation
        For the reasons discussed in the preamble, under the authority of 16 U.S.C. 2901, we propose to amend subchapter F of chapter I, title 50 of the Code of Federal Regulations, as follows:
        Part 83—[Removed and Reserved]
        Remove and reserve part 83, consisting of §§ 83.1 through 83.21.

          Dated: April 6, 2010.
          Thomas L. Strickland,
          Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2010-10604 Filed 5-5-10; 8:45 am]
      BILLING CODE 4310-55-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 99128355-0305-03; I.D. 101200F]
        RIN 0648-AM50
        Fisheries of the Northeastern United States; Proposed 2001 Fishing Quotas for Atlantic Surf Clams, Ocean Quahogs, and Maine Mahogany Ocean Quahogs

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

          ACTION:
          Proposed 2001 fishing quotas for Atlantic surf clams, ocean quahogs, and Maine mahogany ocean quahogs; request for comments.

          SUMMARY:
          NMFS issues proposed quotas for the Atlantic surf clam, ocean quahog, and Maine mahogany ocean quahog fisheries for 2001.  Regulations governing these fisheries require NMFS to propose for public comment specifications for the 2001 fishing year.  The intent of this action is to propose allowable harvest levels of Atlantic surf clams and ocean quahogs from the exclusive economic zone and an allowable harvest level of Maine mahogany ocean  quahogs from the waters north of 43°50′N. lat. in 2001.

          DATES:
          Comments must be received no later than 5 p.m., eastern standard time, on December 8, 2000.

          ADDRESSES:
          Copies of supporting documents, including the Environmental Assessment, Regulatory Impact Review, Initial Regulatory Flexibility Analysis (EA/RIR/IRFA), and the Essential Fish Habitat Assessment, are available from Patricia A. Kurkul, Regional Administrator, Northeast Region, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA  01930-2298.  The EA/RIR/IRFA is accessible via the Internet at http://www.nero.gov/ro/doc/nr.htm.
          Written comments on the proposed specifications should be sent to the Regional Administrator. Mark on the outside of the envelope, “Comments—2001 Clam and Quahog Specifications.”  Comments may also be sent via facsimile (fax) to (978)281-9371.  Comments will not be accepted if submitted via e-mail or the Internet.
          Send comments on any ambiguity or unnecessary complexity arising from the language used in this proposed rule to Patricia A. Kurkul, Regional Administrator.

          FOR FURTHER INFORMATION CONTACT:
          Jennifer L. Anderson, Fishery Management Specialist, 978-281-9226.

        SUPPLEMENTARY INFORMATION:
        The Fishery Management Plan (FMP) for the Atlantic Surf Clam and Ocean Quahog Fisheries directs NMFS, in consultation with the Mid-Atlantic Fishery Management Council (Council), to specify quotas for surf clams and ocean quahogs on an annual basis from a range that represents the optimum yield (OY) for each fishery.  It is the policy of the Council that the levels selected allow fishing to continue at that level for at least 10 years for surf clams and for 30 years for ocean quahogs.  While staying within this constraint, the Council policy is to also consider the economic benefits of the quotas.  Regulations implementing Amendment 10 to the FMP (63 FR 27481, May 19, 1998) added Maine mahogany ocean quahogs to the management unit and provide that a small artisanal fishery for ocean quahogs in the waters north of 43°50' N. lat. will have an annual quota with an initial amount of 100,000 Maine bushels (bu) (35,240 hectoliters (hL)) within a range of 17,000 to 100,000 Maine bu (5,991 hL to 35,240 hL).  As specified in Amendment 10, the Maine mahogany ocean quahog quota is in addition to the quota specified for the ocean quahog fishery.
        The fishing quotas must be in compliance with overfishing definitions for each species.  The overfishing definition for ocean quahogs is based on a control rule, which requires a biomass target of ½ virgin biomass or 2 billion lb (907,200 mt) of meats (200 million bu); a fishing mortality rate (F) target of F0.1 = 0.02; a biomass threshold of ½ biomass target, or 1 billion lb (453,600 mt) of meats (100 million bu); and a fishing mortality threshold of F25% = 0.042.  The current biomass is estimated to be around 3.3 billion lb (1.6 million mt) of meats (330 million bu), or about 80 percent of the virgin biomass, and current F is estimated to be 0.02.  NMFS approved the overfishing definition for ocean quahogs contained in Amendment 12 to the FMP, but disapproved the proposed overfishing definition for surf clams because it was based only on surf clams from the Northern New Jersey area and did not take into account the entire range of the resource.  The December 1999 Stock Assessment Review Committee (SARC) proposed an overfishing definition for surf clams, which the Council reviewed and approved at its March 2000 meeting.  The Council-approved definition has a biomass target of ½ of current biomass as a proxy for FMSY (1.4 billion lb, or 640 thousand mt, or 82.4 million bu); a biomass threshold of ½ of the proxy for BMSY (700 thousand lb or 320 thousand mt); a fishing mortality threshold of FMSY, where the current best proxy for FMSY is the natural mortality rate (M) (0.15), and requires that the F target will always be set less than the F threshold and that it will be the F associated with the Council-selected quota (approximately 0.03 for 2001).  This new overfishing definition for surf clams will be submitted to the Secretary for approval in Amendment 13, which the Council anticipates will be completed in early 2001.
        In proposing these quotas, the Council considered the available stock assessments, data reported by harvesters and processors, and other relevant information concerning exploitable biomass and spawning biomass, fishing mortality rates, stock recruitment, projected effort and catches, and areas closed to fishing.  This information was presented in a written report prepared by the Council staff.  The proposed quotas for the 2001 Atlantic surf clam, ocean quahog, and Maine mahogany ocean quahog fisheries are shown in the following table.  The status quo levels for 2000 for both the regular ocean quahog and the Maine mahogany ocean quahog will be maintained, but the surf clam quota will be increased by 11 percent, from 2.565 million bu to 2.85 million bu (1.366 million hL to 1.518 million hL).

          Proposed 2001 Surf Clam/Ocean Quahog Quotas

            Fishery
            2001 final quotas (bu)
            2001 final quotas (hL)

              1Surf clam
            2,850,000
            1,518,000

              1Ocean quahog
            4,500,000
            2,396,000

              2Maine mahogany quahog
            100,000
            35,240

            11 bushel = 1.88 cubic ft. = 53.24 liters

            2 1 bushel = 1.2445 cubic ft. = 35.24 liters

        Surf Clams

        The Council recommended a 2001 quota of 2.850 million bu (1.518 million hL) for surf clams, an 11-percent increase over the 2000 quota and the first change since 1995.  This level of quota is reflective of the quota levels that existed during the first 5 years of the Individual Transferable Quota (ITQ) system (1990 to 1994).  The most recent biological assessments (from the 1997 and 1999 surveys) indicate the resource is healthy, composed of many age classes, and can safely sustain increased harvests.  However, the assessments noted that the majority of the surf clam catch is derived from one area (Northern New Jersey) and cautioned that careful consideration should be given to implementing a stock-wide quota increase in order to avoid localized depletion of the surf clam stock.  In addressing this concern, the Council has recommended only a slight increase of the surf clam quota.  Due to recent evidence of sufficient recruitment, it is felt that this level of quota will not harm the long-term sustainability of the resource.  In 1999, the F associated with a quota of 2.565 million bu (1.366 million hL) was approximately 0.02; this slight quota increase may increase the F to at most 0.03.
        The proposed quota takes into account analysis of surf clam abundance that was part of the 30th Northeast Regional Stock Assessment Workshop (SAW 30).  SAW 30 utilized data from the 1999 surf clam survey, which included work to estimate dredge efficiency.  Results from the 1999 survey and assessment corroborate those of the 1997 survey and assessment and provided the Council the opportunity to safely increase the quota.
        The Council continues to assume that none of the surf clams on Georges Bank (approximately one quarter of the total resource) will be available in the near future for harvesting because of paralytic shellfish poisoning.  This area has been closed to the harvest of clams and other shellfish since 1989, and the Council and NMFS have no reason to believe that it will reopen in the near future.
        Ocean Quahogs
        The Council recommended a 2001 quota of 4.5 million bu (2.396 million hL) for ocean quahogs.  This quota would be identical to that adopted for the past 2 years, but an increase of 13 percent from the 1998 quota level.  The FMP specifies that the quota level must comply with the ocean quahog overfishing definition.
        The 1999 quota yielded an F of approximately 0.02, compared with the F threshold of 0.04 contained in the overfishing definition.  The specific F associated with the 2001 quota is expected to be close to the F in 1999 because a similar  proportion of the biomass remains unexploited.
        The Atlantic surf clam and ocean quahog quotas are specified in standard bushels of 53.24 liters per bushel, while the Maine mahogany ocean quahog quota is specified in “Main” bushels of 35.24 liters per bushel.  Because Maine mahogany ocean quahogs are the same species as ocean quahogs, both fisheries are combined and share the same ocean quahog overfishing definition.  When the two quota amounts are added, the total allowable harvest is still lower than the level that would result in overfishing for the entire stock, as previously defined in the ocean quahog overfishing definition.
        The Council proposed a 2001 ocean quahog quota based on the  analysis of abundance for that species found in the draft report of the 31st Northeast Regional Stock Assessment Workshop (SAW 31), concluded in August 2000.  Similar to surf clams, SAW 31 and the assessment from the 1997 survey (SAW 27) included work to estimate dredge efficiency and showed a significant increase in the estimate of ocean quahog biomass.  Although 36 percent of the resource is located on Georges Bank, SAW 31 did not question whether Georges Bank would ever be reopened.  The resource is of sufficient size overall that the proportion of ocean quahogs that exists on Georges Bank is not necessary to meet the Council’s 30-year supply policy.  It is estimated that, even when excluding the ocean quahog resource portion on Georges Bank, around 80 percent of the virgin biomass remains after 2 decades of harvesting these long-lived creatures.
        Although SAW 31 showed that the ocean quahog quota could have been increased beyond the 2000 quota level, the Council did not recommend any change for 2001 because of four major factors:  (1) The 1999 quota was not constraining to the industry; (2) nearly all industry members supported the 4.5-million bu (2.396- million hL) harvest level; (3) repeated concern was expressed by the industry over the continued lack of apparent ocean quahog recruitment south of Georges Bank; and (4) unless prices or technology changes significantly in the near future, it is unlikely that the ocean quahog fishery extractions in the past are sustainable because those extractions have been dependent on rich virgin beds.
        The Council recommended that the Maine mahogany ocean quahog quota remain unchanged from the 2000 quota level at 100,000 Maine bu (35,240 hL) for 2001.  There has been no attempt yet to develop and conduct a scientific survey of the extent of the Maine resource.  From the information currently available, maintaining the quota at its current maximum level for another year will not seriously constrain the fishery or endanger the resource.  To increase the quota beyond the current maximum level of 100,000 bu (35,240 hL) will require a scientific survey and assessment led by the State of Maine.
        Classification
        This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of E.O. 12866.

        The Council prepared an Initial Regulatory Flexibility Analysis (IRFA) in section 5.0 of the RIR that describes the economic impacts this proposed rule, if adopted, would have on small entities.  A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of the SUPPLEMENTARY INFORMATION section.  A summary of the IRFA follows:
        In 1999, a total of 45 vessels reported harvesting surf clams or ocean quahogs from Federal waters under an ITQ system.  Average 1999 gross income from surf clam harvests was $646,701 per vessel.  Average 1999 gross income from ocean quahog harvests was $691,316 per vessel.  In the small artisanal fishery for ocean quahogs in Maine, 38 vessels reported harvests in the clam logbooks, with an average value of $68,097 per boat.  All of these vessels are small entities.  The Council recommends no change in the 2001 quotas for ocean quahogs or Maine mahogany ocean quahogs from their present 2000 quotas of 4.500 and 0.100 million bu (2.396 million hL and 35,240 hL), respectively.  The Council recommends an 11-percent increase in the surf clam quota from 2.565 million bu to 2.85 million bu (1.366 million hL to 1.518 million hL).

        Since the 1999 harvest level of 3.772 million bu (2.0 million hL) for ocean quahogs is below the 2001 proposed quota and the Council assumes that no changes in fishing effort or yield-to-effort will take place in 2000, the Council believes that the 2001 proposed quota will yield a surplus quota available to vessels participating in the ocean quahog fishery.  In addition, the Maine mahogany quahog fishery 1999 harvest level of 0.094 million Maine bu (33,134 hL) is slightly below the 2001 proposed quota, and preliminary landings reports for 2000 suggest that the Maine fishery may reach the 0.100-million Maine bu (35,240 hL) quota level allocated to the fishery before the year ends.  However, fishermen may continue harvesting after the mahogany quahog is reached, provided they purchase allocation from the ITQ portion of the ocean quahog fishery.
        In the case of the surf clam fishery, nearly 99 percent, or 2.538 million bu (1.351 million hL), of the 1999 allocation of 2.565-million bu (1.366-million hL) quota was harvested.  Preliminary trends for 2000 suggest that the quota will likely be harvested this year as well.  Due to the scarcity of dense ocean quahog beds inshore, the surf clam industry has been increasingly shifting its focus away from the harvesting of ocean quahogs and has begun harvesting an increased number of surf clams.  Therefore, the Council believes that the market can now absorb the 2001 proposed quota increase of 11 percent.
        The Council analyzed four ocean quahog quota alternatives, in addition to the preferred 4.500-million bu (2.396-million hL) option, including 4.000, 4.250, 4.750, and 6.000 million bu (2.129, 2.263, 2.529, and 3.195 million hL).  The minimum allowable quota specified in the current OY range is 4.0 million bu (2.129 million hL) of ocean quahogs.  Adoption of this quota would represent a 12-percent decrease from the current 4.5-million bu (2.396-million hL) quota and, assuming the entire quota is harvested, a 6.1-percent increase in harvest from the 1999 harvest level of 3.770 million bu (2.0 million hL).  This alternative would take the most conservative approach to managing the fishery that is currently available to the Council.  Adopting the maximum allowable quota of 6.000 million bu (3.195 million hL) for ocean quahogs would represent a 33-percent increase in allowable harvest and a 59-percent increase in landings from 1999, assuming all the quota is taken.  The industry does not have a market available to absorb such a massive increase in landings and may not have the vessel capacity necessary to harvest a quota this large.  All of the alternatives, including the preferred alternative, would yield increased revenues relative to revenues from actual landings.
        The Council identified four surf clam quota alternatives in addition to the preferred alternative of 2.850 million bu (1.518 million hL), including 1.850, 2.365, 2.565, and 3.400 million bu (0.985, 1.259, 1.366, and 1.810 million hL).  The minimum allowable quota specified in the current OY range is 1.850 million bu (0.985 million hL) of surf clams.  Adoption of this quota would represent a 28-percent decrease from the current 2.565-million bu (1.366-million hL) quota, and a 27-percent decrease from the 1999 harvest level of 2.538 million bu (1.351 million hL).  Assuming that demand is price elastic, a reduction in quota of this magnitude would have a substantially negative impact on overall exvessel revenues.  Adoption of the 2.365-million bu (1.259-million hL) quota would most likely have a limited impact on small entities, since it is identical to 1998 base year landings of 2.365 million bu (1.259 million hL).  Adopting the maximum allowable quota of 3.40 million bu (1.810 million hL) for surf clams would allow for a 33-percent increase in harvest.  The preferred alternative allows for the 11-percent increase of 2.565 to 2.85 million bu (1.366 million hL to 1.518 million hL).  In summation, the Council determined that the only alternative that would significantly negatively impact revenues to vessels is the 1.850-million bu (0.985-million hL) alternative for surf clams.  The status quo quota and the slight reduction alternative would be restrictive and have a slight impact on revenues.  The resource can support the 11-percent increase in landings proposed in the preferred alternative, and the industry believes it can utilize this additional product and thus have a beneficial impact for the Nation.
        The FMP specifies that the maximum quota for Maine mahogany ocean quahogs is 100,000 Maine bu (35,240 hL) and that an increase of the quota would require a scientific survey and stock assessment of the Maine mahogany ocean quahog resource.  An assessment has not been completed, and, therefore, the Council did not look at higher alternative quotas for this fishery.  The Council staff analyzed two smaller Maine mahogany ocean quahog quota alternatives, in addition to the preferred 100,000-Maine bu (35,240-hL) option, including 50,000 Maine bu (17,624 hL) and 72,466 Maine bu (25,543 hL).  Maine mahogany ocean quahog fishermen may supplement their quota by purchasing or renting ocean quahog quota from ITQ holders.  Therefore, any quota below the 1999 landing level of 93,938 bu (33,112 hL) would most likely cause a decrease in revenues to individual vessels, while a quota greater than that level could cause an increase.
        Nine to 12 processors participated in the surf clam and ocean quahog fisheries.  However, five firms are responsible for the vast majority of purchases in the exvessel market and sale of processed clam products in appropriate wholesale markets.  Impacts to surf clams and ocean quahog processors would most likely mirror the impacts of the various quotas to vessels as discussed above.  Revenues earned by processors would be derived from the wholesale market for clam products, and, since a large number of substitute products (i.e., other food products) are available, the demand for processed clam products is likely to be price elastic and revenues, resulting in revenue increases or decreases with changes in price.
        In 2000, surf clam allocation holders totaled 106, while 65 firms or individuals held ocean quahog allocation.  If the recommended quotas are accepted (i.e., no change from 2000 quotas on ocean quahogs, Maine mahogany ocean quahogs, and a slight increase of 11 percent for surf clams), it is likely that impacts to allocation holders or buyers will be minimal.  Theoretically, increases in quota would most likely benefit those who must purchase quota through lower prices (values) and negatively impact sellers of quota because the quota would be reduced in value.  Decreases in quota would most likely have an opposite effect.
        This proposed rule would not impose any new reporting, recordkeeping, or other compliance requirements.  Therefore, the costs of compliance would remain unchanged.

        The President has directed Federal agencies to use plain language in their communications with the public, including regulations.  To comply with this directive, we seek public comment on any ambiguity or unnecessary complexity arising from the language used in this proposed rule.  Such comments should be sent to Patricia A. Kurkul, the Regional Administrator (see ADDRESSES).

          Authority:
          16 U.S.C. 1801 et seq.

          Dated:  November 1, 2000.
          William T. Hogarth,
          Deputy Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 00-28675 Filed 11-7-00; 8:45 am]
      BILLING CODE:  3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 697
        [Docket No. 070516106-7106-01; I.D. 041907A]
        RIN 0648-AV44
        Atlantic Coastal Fisheries Cooperative Management Act Provisions; Weakfish Fishery

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to decrease the incidental catch allowance for weakfish caught in the Exclusive Economic Zone (EEZ) from 300 lb (135 kg) to no more than 150 lb (67 kg) per day or trip, whichever is longer in duration. The intent of this proposed rule is to modify regulations for the Atlantic coast stock of weakfish to be more compatible with the Atlantic States Marine Fisheries Commission's (Commission) Interstate Fishery Management Plan (ISFMP) for weakfish, as set forth in the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act).

          DATES:
          Written comments must be received on or before July 16, 2007.

          ADDRESSES:
          You may submit comments by any of the following methods:
          • E-Mail: Weakfish.150@noaa.gov. Include in the subject line the following identifier: “Comments on Weakfish Bycatch 150.”
          • Federal e-rulemaking portal: http:/www.regulations.gov

          • Mail: Chris Moore, Chief, Partnerships and Communications Division (SF8), Office of Sustainable Fisheries, National Marine Fisheries Service, 1315 East-West Highway, Suite 13317, Silver Spring, MD 20910. Mark the outside of the envelope: “Comments on Weakfish Bycatch 150 Proposed Rule.”
          • Fax: (301) 713-0596

          FOR FURTHER INFORMATION CONTACT:
          Tom Meyer, 301-713-2334.

        SUPPLEMENTARY INFORMATION:
        Background

        NMFS is proposing to modify weakfish conservation measures in the EEZ under the authority of the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act), 16 U.S.C. 5103, which states that, in the absence of an approved and implemented Fishery Management Plan under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.) and, after consultation with the appropriate Fishery Management Council(s), the Secretary of Commerce (Secretary) may implement regulations to govern fishing in the EEZ, i.e., from 3 to 200 nm offshore. These regulations must be (1) compatible with the effective implementation of an ISFMP developed by the Commission, and (2) consistent with the national standards set forth in section 301 of the Magnuson-Stevens Act.

        On February 1, 2007, the Commission's Weakfish Management Board (Board) approved Addendum II to Amendment 4 to the ISFMP for Weakfish. Under the Addendum, the states of Massachusetts through North Carolina will be required to implement a six fish creel limit at their current size limit for the recreational fishery. For the commercial fishery, the Addendum reduces the allowable bycatch limit from 300 pounds to 150 pounds per day or trip. There is currently a bycatch limit of no more than 300 pounds in the EEZ. Addendum II also establishes two management triggers that will require the Board to reconsider the management program if met: (1) when the coastwide commercial landings reach 2.99 million pounds (80 percent of the mean from 2000 2004), and (2) when any state's landings exceed its five year average by more than 25 percent. States are required to fully implement the addendum measures by October 29, 2007. The Board's action was taken in response to a significant decline in stock abundance and increasing total mortality since 1999. As a result of weakfish's depleted stock size, the Board is required under Amendment 4 to adjust the management program to help rebuild spawning stock biomass. This issue is compounded by the fact that natural mortality, rather than fishing mortality, has been indicated as the lead cause for stock decline in the Commission's October 25, 2006, Fishery Management Plan Review for the Weakfish Fishery.
        Status of the Weakfish Fishery
        The most recent stock assessment (December 2006) was not upheld by an external peer review panel. Therefore, there is uncertainty in the stock status of weakfish. Analyses do indicate that biomass is low and that overfishing is not the cause. The Weakfish Technical Committee, in response to the peer review panel's report, supported five conclusions based on significant evidence that the Board has accepted for management use: (1) The stock is declining; (2) total mortality is increasing; (3) there is not much evidence of overfishing; (4) something other than fishing mortality is causing the decline in the stock; and (5) there is a strong chance that regulating the fishery will not, in itself, reverse stock decline.
        Proposed Action
        NMFS believes that the proposed decrease of the incidental catch allowance for weakfish is warranted even given the conclusions of the Weakfish Technical Committee. Pursuant to the Atlantic Coastal Act, 16 U.S.C. 5103, the Secretary has a statutory obligation to support the Commission's Interstate Fishery Management Program. The Commission recently adopted Addendum II to Amendment 4, which included a decrease in the commercial bycatch limit. The proposed rule would implement this decrease, consistent with Addendum II, allowing non-directed fisheries using a mesh size less than 3 1/4-inch square stretch mesh or 3 3/4-inch diamond stretch mesh for trawls and 2 7/8-inch stretch mesh for gillnets to possess no more than 150 lb (67 kg) of weakfish during any one day or trip, whichever is longer in duration; a decrease of 150 lb (67 kg) per day or trip from the current Federal regulation of 300 lb (135 kg) at § 697.7(a)(4)). This action supports the Commission's Interstate Fishery Management Program by being compatible with the effective implementation of the Commission's Weakfish Plan, is consistent with the national standards set forth in section 301 of the Magnuson Stevens Act, and would continue regulatory uniformity in state and Federal waters. This action would also be beneficial insofar as incongruous regulations can confuse stakeholders and complicate management.
        Classification
        This proposed rule is published under the authority of the Atlantic Coastal Act. Paragraphs (A) and (B) of section 804(b) (1) of the Atlantic Coastal Act, 16 U.S.C. 5103(a)-(b), authorizes the Secretary to implement regulations in the EEZ in the absence of a Magnuson-Stevens Act FMP. Such regulations must be compatible with the effective implementation of a Commission's ISFMP, and consistent with the national standards set forth in section 301 of the Magnuson-Stevens Act.
        The Assistant Administrator for Fisheries has preliminarily determined that this action is compatible with the effective implementation of the Commission's ISFMP for weakfish and consistent with the national standards of the Magnuson-Stevens Act. The Secretary, before making the final determination, will take into account data, views, and comments received during the comment period.
        Preliminary review of the proposed action in relation to NOAA Administrative Order (NAO) 216 6, including the criteria used to determine significance, suggests that the proposed action would not have a significant effect, individually or cumulatively on the human environment. Furthermore, NMFS has preliminarily determined that the proposed action is categorically excluded from the requirement to prepare an Environmental Impact Statement or an EA in accordance with 5.05(b) of NAO 216 6, because a prior NEPA document (EA dated August 2003) analyzed the impacts of landing 150 pounds versus 300 pounds of weakfish bycatch. That document found that neither the 150 lb. nor the 300 lb. bycatch limit created a significant impact on the quality of human environment. Although the stock's downward trend is apparent now versus when analyzed in 2003, that trend would not alter the environmental analyses or conclusions rendered in 2003. Specifically, fishing effort (number of tows) and practices (where fished) would remain the same. Nor would the number of weakfish actually caught and killed increase or decrease, because those weakfish that are not retained as incidental catch are discarded as bycatch. The action would, however, continue regulatory uniformity in state and Federal waters, which, as was also the case in 2003, is beneficial insofar as incongruous regulations can confuse stakeholders and complicate management. Accordingly, there would be no significant impact on the physical or human environment resulting from this action and the need to perform further analysis is categorically excluded pursuant to Section 5.05(b) of NAO 216 6.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
        NMFS prepared a regulatory flexibility analysis (RFA) that described the economic impacts on small entities for a similar action described in the final rule to increase the permitted non-directed incidental catch of weakfish from 150 lb (67 kg) to no more than 300 lb (135 kg) per day or trip (68 FR 56789, October 2, 2003). The RFA found that the economic impacts on small entities were not significant and would be at most a positive impact of $1,600 for the entire fishery for the entire year.

        This proposed action would return the allowable incidental catch back to 150 lb (67 kg) from the current 300 lb (135 kg) level. NMFS does not have an estimate of the number of small entities to which the proposed action would apply because vessels most likely to be impacted are not required to hold a permit to fish for weakfish in the EEZ. The action would only apply to those fishermen who capture weakfish incidentally (as bycatch) while fishing for other species using a smaller mesh size than is allowed in the directed weakfish fishery. This proposed action would not alter current fishing practices or effort, or increase or decrease the number of weakfish caught because weakfish that are not retained as incidental catch are discarded as bycatch. However, fishermen who catch weakfish incidentally would be able to sell only 150 lb. of weakfish retained per trip rather than 300 lb. The price per pound of weakfish is $0.795 per pound, using the most recent 2005 data. The economic analysis provided in the 2003 rule explains the impact, now a negative impact, that would accrue to the fishermen as a result of the proposed rule. (68 FR 56789, October 2. 2003). Using the updated price per pound of weakfish, that negative impact would be at most $2072 for the whole fishery. NMFS does not consider the economic impact to be significant because the incidental weakfish catch is only a small portion of the entire catch and resulting revenue of these vessels. Using 2005 data, the average annual revenue of those vessels was $243,000, so the impact would be less than 1 percent. Therefore, NMFS has preliminarily determined that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.
        This proposed rule has been determined to be not significant for E.O. 12866 purposes.

          List of Subjects in 50 CFR Part 697
          Fisheries, Fishing.

          Dated: June 8, 2007.
          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 697, is proposed to be amended as follows:

          PART 697—ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT
          1. The authority citation for 50 CFR part 697 continues to read as follows:

            Authority:
            16 U.S.C. 5101 et seq.

            2. In § 697.7, paragraph (a)(4) is revised to read as follows:

            § 697.7
            Prohibitions.
            (a) * * *
            (4) Possess more than 150 lb (67 kg) of weakfish during any one day or trip, whichever is longer, in the EEZ when using a mesh size less than 3 1/4-inch (8.3 cm) square stretch mesh(as measured between the centers of opposite knots when stretched taut) or 3 3/4-inch (9.5 cm) diamond stretch mesh for finfish trawls and 2 7/8-inch (7.3 cm) stretch mesh for gillnets.

      [FR Doc. E7-11524 Filed 6-13-07; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 223 and 224
        [Docket No. 111025652-1657-01]
        RIN 0648-XA798
        Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Scalloped Hammerhead Shark as Threatened or Endangered Under the Endangered Species Act

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

          ACTION:
          90-day petition finding, request for information, and initiation of status review.

          SUMMARY:

          We, NMFS, announce a 90-day finding on a petition to list the scalloped hammerhead shark (Sphyrna lewini) or, in the alternative, multiple distinct population segments (DPSs) of the scalloped hammerhead shark as threatened or endangered under the Endangered Species Act (ESA), and to designate critical habitat concurrently with the listing. We find that the petition and information in our files present substantial scientific or commercial information indicating that the petitioned action may be warranted. We will conduct a status review of the species to determine if the petitioned action is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information pertaining to this species from any interested party.

          DATES:
          Information and comments on the subject action must be received by January 27, 2012.

          ADDRESSES:
          You may submit comments, information, or data, identified by “NOAA-NMFS-2011-0261” by any one of the following methods:
          • Electronic Submissions: Submit all electronic comments via the Federal eRulemaking Portal http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, first click the “submit a comment” icon, then enter “NOAA-NMFS-2011-0261” in the keyword search. Locate the document you wish to comment on from the resulting list and click on the “Submit a Comment” icon on the right of that line.
          • Mail or
            hand-delivery: Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.

          Instructions: All comments received are a part of the public record and may be posted to http://www.regulations.gov without change. All personally identifiable information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, Corel WordPerfect, or Adobe PDF file formats only.

          FOR FURTHER INFORMATION CONTACT:
          Maggie Miller, NMFS, Office of Protected Resources, (301) 427-8403.

        SUPPLEMENTARY INFORMATION:

        Background

        On August 14, 2011, we received a petition from WildEarth Guardians and Friends of Animals to list the scalloped hammerhead shark (Sphyrna lewini) as threatened or endangered under the ESA throughout its entire range, or, as an alternative, to delineate the species into five DPSs (Eastern Central and Southeast Pacific, Eastern Central Atlantic, Northwest and Western Central Atlantic, Southwest Atlantic, and Western Indian Ocean) and list any or all of these DPSs as threatened or endangered. The petitioners also requested that critical habitat be designated for the scalloped hammerhead under the ESA. Copies of the petition are available upon request (see ADDRESSES, above).
        ESA Statutory, Regulatory, and Policy Provisions and Evaluation Framework

        Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 et seq.), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When it is found that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted (a “positive 90-day finding”), we are required to promptly commence a review of the status of the species concerned during which we will conduct a comprehensive review of the best available scientific and commercial information. In such cases, we conclude the review with a finding as to whether, in fact, the petitioned action is warranted within 12 months of receipt of the petition. Because the finding at the 12-month stage is based on a more thorough review of the available information, as compared to the narrow scope of review at the 90-day stage, a “may be warranted” finding does not prejudge the outcome of the status review.
        Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, “the Services”) policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following five section 4(a)(1) factors: (1) The present or threatened destruction, modification, or curtailment of habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).

        ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In evaluating whether substantial information is contained in a petition, the Secretary must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).
        Judicial decisions have clarified the appropriate scope and limitations of the Services' review of petitions at the 90-day finding stage, in making a determination that a petitioned action “may be” warranted. As a general matter, these decisions hold that a petition need not establish a “strong likelihood” or a “high probability” that a species is either threatened or endangered to support a positive 90-day finding.
        We evaluate the petitioners' request based upon the information in the petition including its references and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioners' sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude it supports the petitioners' assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90-day finding if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue.

        To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species faces an extinction risk that is cause for concern; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species (e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate the potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1).
        Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information indicating that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.

        Many petitions identify risk classifications made by non-governmental organizations, such as the International Union on the Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but the classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” (http://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a petition cites such classifications, we will evaluate the source of information that the classification is based upon in light of the standards on extinction risk and impacts or threats discussed above.
        Distribution and Life History of the Scalloped Hammerhead Shark

        The scalloped hammerhead shark is a circumglobal species that lives in coastal warm temperate and tropical seas. It occurs over continental and insular shelves, as well as adjacent deep waters, but is seldom found in waters cooler than 22 °C (Compagno, 1984; Schulze-Haugen et al., 2003). Scalloped hammerhead sharks are highly mobile and partly migratory and are likely the most abundant of the hammerhead species (Maguire et al., 2006). However, Maguire et al. (2006) also notes that “although its worldwide distribution and known high abundance gives the species some protection globally, the risk of local depletions remains a serious concern.”
        In the western Atlantic Ocean, the scalloped hammerhead range extends from the Northeast coast of the United States (from New Jersey to Florida) to Brazil, including the Gulf of Mexico and Caribbean Sea. In the eastern Atlantic, it can be found from the Mediterranean Sea to Namibia. Populations in the Indian Ocean are found in the following locations: South Africa and the Red Sea to Pakistan, India, and Myanmar, and in the western Pacific the scalloped hammerhead can be found from Japan and China to New Caledonia, including throughout the Philippines, Indonesia, and off Australia. Distribution in the eastern Pacific Ocean extends from the coast of southern California (U.S.), including the Gulf of California, to Ecuador and possibly Peru (Compagno, 1984), and off waters of Hawaii (U.S.) and Tahiti.

        The general life history pattern of the scalloped hammerhead shark is that of a long lived (oldest known sharks of both sexes aged at 30.5 years; Piercy et al., 2007), slow growing, and late maturing species. The scalloped hammerhead shark has a laterally expanded head that resembles a hammer, hence the common name “hammerhead,” and belongs to the Sphyrnidae family. The scalloped hammerhead shark is distinguished from other hammerheads by a marked central indentation on the anterior margin of the head, along with two more indentations on each side of this central indentation, giving the head a “scalloped” appearance. It has a broadly arched mouth and the rear margin of the head is slightly swept backward. The dentition of the hammerhead consists of small, narrow, and triangular teeth with smooth edges (often slightly serrated in larger individuals), and is similar in both jaws. The front teeth are erect while subsequent teeth have oblique cusps, and the lower teeth are more erect than the upper teeth (Florida Museum of Natural History, 2011). The body of the scalloped hammerhead is fusiform, with a large first dorsal fin and low second dorsal and pelvic fins. The first dorsal fin is moderately hooked with its origin over or slightly behind the pectoral fin insertions and the rear tip in front of the pelvic fin origins. The height of the second dorsal fin is less than the anal fin height and has a posterior margin that is approximately twice the height of the fin, with the free rear tip almost reaching the precaudal pit. The pelvic fins have relatively straight rear margins while the anal fin is deeply notched on the posterior margin (Compagno, 1984). The scalloped hammerhead generally has a uniform gray, grayish brown, bronze, or olive coloration on top of the body that shades to white on the underside with dusky or black pectoral fin tips.

        The oldest aged scalloped hammerhead sharks had lengths of 241 cm (females) and 234 cm (males) (Piercy et al., 2007), but the scalloped hammerhead shark can reach lengths of up to 365-420 cm (Compagno, 1984). The estimates on the exact age and length at sexual maturity for the scalloped hammerhead vary widely by region. In the Gulf of Mexico, Branstetter (1987) estimated that females mature around 270 cm, or about 15 years of age, and males mature around 180 cm, or 9-10 years of age. In Northeastern Taiwan waters, Chen et al. (1990) calculated age at maturity to be 4 years for females and 3.8 years for males, corresponding to lengths of 210 cm and 198 cm, respectively. Zeeberg et al. (2006) considered hammerheads greater than 140 cm to be mature in Northwest Africa, while off the coast of northern Australia, males are thought to reach maturity at 150 cm and females at 200 cm (Stevens and Lyle, 1989). On the east coast of South Africa, observed median length at maturity for scalloped hammerheads was 184 cm for females and 161 cm for males, with age estimated around 11 years (Dudley and Simpfendorfer, 2006). While it may appear that maturity estimates vary by region, it is unclear whether these differences are truly biological or a result of differences in band interpretations in aging methodology approaches (Piercy et al., 2007).
        The scalloped hammerhead shark is viviparous (i.e., give birth to live young), with a gestation period of 9-12 months and likely followed by a one-year resting period (Branstetter, 1987; Stevens and Lyle, 1989; Chen et al., 1990; Liu and Chen, 1999). Females move inshore to birth during the summer months, with litter sizes anywhere between 2 and 41 live pups (Branstetter, 1987; Stevens and Lyle, 1989; Hazin et al., 2001; White et al., 2008). Length at birth estimates for scalloped hammerheads range from 31-50 cm (Branstetter, 1987; Stevens and Lyle, 1989; Chen et al., 1990; Zeeberg et al., 2006). Juveniles remain close to inshore waters but will migrate to deeper waters as they grow. Both juveniles and adult scalloped hammerhead sharks have been found to occur as solitary individuals, as pairs, and in schools. The schooling behavior has been documented during summer migrations off the coast of South Africa as well as in permanent resident populations, like those in the East China Sea (Compagno, 1984). Adult aggregations are most common offshore over seamounts and near islands, especially near the Galapagos, Malpelo, Cocos and Revillagigedo Islands, and within the Gulf of California (Compagno, 1984; CITES, 2010). The schooling behavior exhibited by scalloped hammerheads makes them vulnerable to being caught in large numbers (Hayes et al., 2009).
        The scalloped hammerhead shark is a high trophic level predator (Cortés, 1999) and opportunistic feeder, with a diet that includes a wide variety of teleosts, cephalopods, crustaceans, and rays (Compagno, 1984).
        Analysis of Petition and Information Readily Available in NMFS Files

        We evaluated the information provided in the petition and readily available in our files to determine if the petition presented substantial scientific or commercial information indicating that the petitioned action may be warranted. The petition contains information on the species, including the taxonomy, species description, geographic distribution, habitat, population status and trends, and factors contributing to the species' decline. The petition states that the primary threat to the scalloped hammerhead shark is exploitation by fishing, with the ongoing practice of “finning” of particular concern. The petitioners also assert that the lack of adequate regulatory protection programs worldwide, as well the species' biological constraints, increase the susceptibility of the scalloped hammerhead shark to exploitation and extinction. Although data are not available to determine the actual number or size of the global population of scalloped hammerhead sharks, the information from our files and from the petitioners' references suggest that the scalloped hammerhead underwent significant range-wide declines from historical abundance levels (Feretti et al., 2008; Hayes et al., 2009; CITES, 2010).
        According to the petition, at least three of the five causal factors in section 4(a)(1) of the ESA are adversely affecting the continued existence of the scalloped hammerhead shark, specifically: (B) Overutilization for commercial, recreational, scientific, or educational purposes; (D) inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. In the following sections, we use the information presented in the petition and in our files to determine whether the petitioned action may be warranted. We consider the global population of scalloped hammerhead sharks and will revisit the question of DPSs during a status review, if necessary. We summarize our analysis and conclusions regarding the information presented by the petitioner and in our files on the specific ESA section 4(a)(1) factors affecting the species' risk of global extinction below.
        Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

        Information from the petition and in our files suggests that the primary threat to the scalloped hammerhead shark is from fisheries. We refer to the U.S. and Palau CITES (2010) proposal to list S. lewini under Appendix II (henceforth, referred to as the CITES proposal) for much of the available abundance and catch trend data as this is a recent compilation of information on the species.

        Scalloped hammerhead sharks are both targeted and taken as bycatch in many global fisheries (e.g., bottom and pelagic longlines, coastal gillnet fisheries, artisanal fisheries). Because of their large fins with high fin noodle content (a gelatinous product used to make shark fin soup), scalloped hammerheads fetch a high commercial value in the Asian shark fin trade (Abercrombie et al., 2005). In Hong Kong, the world's largest fin trade market, S. lewini and S. zygaena (smooth hammerhead) are mainly traded under the “Chun chi” market category, which also happens to be the second most traded fin category. Together, smooth and scalloped hammerheads are estimated to comprise 4-5 percent of the total fins traded in the Hong Kong market, which suggests that 1.3 to 2.7 million individuals of these species (equivalent to a biomass of 49,000-90,000 tons) are used in the Hong Kong fin trade annually (Clarke et al., 2006; Camhi et al., 2009).

        In the United States, scalloped hammerhead sharks are mainly caught as bycatch in longline and coastal gillnet fisheries and are known to suffer high mortality from capture. In the northwest Atlantic, on-line mortalities (for all age groups) were estimated at 91.4 percent and 93.8 percent (Mejuto et al., 2002; Morgan and Burgess, 2007; Camhi et al., 2009). Scalloped hammerheads have also become a popular target species of recreational fishermen in the last several decades. A recent stock assessment by Hayes et al. (2009) found that the northwestern Atlantic population in 1981, which ranged between 146,000 and 165,000 individuals, has since decreased to approximately 25,000-28,000 individuals in 2005, a level estimated to be at 45 percent of the biomass that would produce the maximum sustainable yield (MSY). Fishing mortality was also estimated to be 129 percent of fishing mortality associated with MSY. Given the data, Hayes et al. (2009) concluded that the northwestern Atlantic S. lewini stock is only 17 percent of the virgin stock size, or, in other words, has been depleted by approximately 83 percent since 1981. In another study, Myers et al. (2007) documented a 98 percent decline of S. lewini off the coast of North Carolina between 1972 and 2003 using standardized catch per unit effort (CPUE) data from shark targeted, fishery-independent surveys. Myers et al. (2007) remarks that the trends in abundance may be indicative of coastwide population changes, because the survey was situated “where it intercepts sharks on their seasonal migrations.” A time-series analysis conducted by Carlson et al. (2005) since 1995 suggests that the northwest Atlantic population may be stabilized but at a very low level (CITES, 2010).

        According to the CITES proposal, overutilization of scalloped hammerheads has also been documented off the coast of Belize, leading to an observed decline in the abundance and size of hammerheads and prompting a halt in the Belize-based shark fishery. However, fishing pressure on hammerheads still continues as a result of Guatemalan fishermen entering Belizean waters (CITES, 2010). Further south, in Brazil, declines between 60 and 90 percent of adult female scalloped hammerheads have been reported from 1993 to 2001 using CPUE data, while the abundance of neonates has significantly decreased over the past 10 years (CITES, 2010). In inshore waters, neonates are heavily targeted by coastal gillnets and recreational fisheries, and are also caught as bycatch in shrimp and pair trawls (CITES, 2010). Further offshore, catches of scalloped hammerheads have been documented as incidental take in other directed fisheries, such as a tuna fishery based in Santos City, São Paulo State, Brazil, where data has revealed a decline in these incidental catch weights, from 290 t in 1990 to 59 t in 1996 (Amorim et al., 1998).
        In the Pacific Ocean, juvenile scalloped hammerheads are targeted mainly in directed fisheries but also taken as bycatch by shrimp trawlers and coastal teleost fisheries. Importance of scalloped hammerheads in fishery landings appears to vary by region, from 11.9 percent of the total catch from El Salvador (number of individuals (n)=412; 1991-1992) to 36 percent from the Gulf of Tehauntepec, Mexico (n=8,659; 1996-1998), and ranging from 6 percent (n=339) to 74 percent (n=800) of the total catch off different parts of Guatemala (1996-1999) (CITES, 2010). In Ecuador, landings of hammerhead sharks have decreased since 1996, with a 51 percent decline in artisanal fishery landings between 2004 and 2006 in the Port of Manta, an area where artisanal and drift-net fleets account for 80 percent of shark landings in Ecuador (CITES, 2010).
        In the Indian Ocean, pelagic sharks, including the scalloped hammerhead, are targeted in various fisheries, including semi-industrial, artisanal, and recreational fisheries. Countries that fish for sharks include: Egypt, India, Iran, Oman, Saudi Arabia, Sudan, United Arab Emirates, and Yemen, where the probable or actual status of the shark populations is unknown, and Maldives, Kenya, Mauritius, Seychelles, South Africa, and United Republic of Tanzania, where the actual status of the shark population is presumed to be fully to over exploited (Young, 2006). We conclude that the information in the petition and in our files suggests that fisheries may be impacting the continued existence of the scalloped hammerhead.
        Inadequacy of Existing Regulatory Mechanisms

        The petition asserts that the inadequacy of existing Federal, state, or international regulatory mechanisms require that the scalloped hammerhead shark be listed under the ESA. The petition contends that the lack of specific regulations for the scalloped hammerhead has failed to prevent large population declines of the shark species. However, the latest stock assessment for the northwestern Atlantic scalloped hammerhead shark population estimated that a total allowable catch (TAC) of 2,853 scalloped hammerhead sharks per year (or 69 percent of the 2005 catch) would allow a 70 percent probability of rebuilding to MSY in 10 years (Hayes et al., 2009). Based on this assessment, on April 28, 2011, NMFS determined that the northwestern Atlantic scalloped hammerhead shark stock was “overfished” and that “overfishing is occurring,” prompting NMFS to “take action to end or prevent overfishing in the fishery and implement conservation and management measures to rebuild overfished stocks within 2 years” (76 FR 23794; April 28, 2011). This status determination is specific to the northwestern Atlantic scalloped hammerhead shark stock and any additional regulations would be implemented to prevent large population declines of that stock.

        In addition, the petition asserts that there is little international regulation of fishing or trading to protect scalloped hammerheads; however, in 2010, the International Commission for the Conservation of Atlantic Tunas (ICCAT) developed recommendations 10-07 and 10-08, which specifically prohibit the retention, transshipping, landing, sorting, or selling of hammerhead sharks, other than bonnethead sharks, caught in association with ICCAT fisheries. The ICCAT is responsible for the conservation of tuna and tuna-like species in the Atlantic Ocean and adjacent seas and its recommendations are binding to Contracting Parties (of which there are 48, including the United States), unless Parties object pursuant to the treaty. On April 29, 2011, NMFS proposed and on August 29, 2011, finalized the implementation of these recommendations, which affect the U.S. commercial HMS pelagic longline (PLL) fishery and recreational fisheries for tunas, swordfish, and billfish in the Atlantic Ocean, including the Caribbean Sea and Gulf of Mexico (76 FR 53652; August 29, 2011).

        The petition notes that finning bans are a common form of shark management regulation and have been adopted by 19 countries, including Mexico, Costa Rica, and Chile, but argues that many of these bans contain loopholes that allow for the continued removal of shark fins at sea. It is important to note that the petition does not provide information that some countries and management bodies are working to address these issues, including the United States and the European Union (EU). In fact, on January 4, 2011, the 2010 U.S. Shark Conservation Act was signed. This legislation requires that all sharks caught in U.S. waters, with an exemption for smooth dogfish, be landed with fins naturally attached, effectively ending the practice of removing fins at sea in the United States (Pub. L. 111-348). However, even with the increase and strengthening of finning bans, the lack of internationally enforced catch limits or trade regulations allows for the continued and unregulated fishing of scalloped hammerheads in international waters. In 2010, the United States and Palau proposed to list S. lewini under Appendix II of CITES, which would have imposed international trade regulations and provided protection for the species through the requirement of export permits or re-export certificates. However, this proposal was rejected. In 2011, the EU failed in its proposals to secure Indian Ocean Tuna Commission (IOTC) and Inter-American Tropical Tuna Commission (IATTC) protection for the scalloped hammerhead, which would have prohibited retaining onboard, transhipping, landing, storing, selling, or offering for sale any part or whole carcass of hammerhead sharks of the family Sphyrnidae taken in the IOTC and IATTC area of competence, respectively. In addition, information in our files and in the petition indicates that illegal fishing of this species may be occurring in certain regions. For example, in Cocos Island National Park, off Costa Rica, a “no take” zone was established in 1992, yet populations of S. lewini continued to decline by an estimated 71 percent from 1992 to 2004 (Myers et al., 2004). In Ecuador, concern over illegal fishing around the Galapagos Islands prompted a 2004 ban on the exportation of fins; however, this only resulted in the establishment of new illegal trade routes and continued exploitation of S. lewini (CITES, 2010). Thus, the information in the petition and in our files suggests that while there is increasing support for domestic and international shark conservation and regulation, the existing regulatory mechanisms in some portions of the S. lewini range may be inadequate to address threats to the global scalloped hammerhead population.
        Other Natural or Manmade Factors

        The petition contends that “biological vulnerability” in the form of long gestation periods, late maturity, large size, and documented schooling behavior, is affecting the species' ability to recover from exploitation. However, a recent ecological risk assessment for pelagic sharks found that scalloped hammerheads ranked among the less vulnerable species in terms of its biological productivity and susceptibility to the pelagic longline fisheries in the Atlantic Ocean (Cortés et al., 2010), suggesting a low risk of overexploitation. In addition, the petition states that “high predation on pups further hampers the species' ability to recover,” but Clarke (1971) noted that despite this mortality, the population of pups remains high in nursery grounds and suggested that birth rates may match mortality rates, hence protecting the population from significant losses. Thus, available information is insufficient to indicate that there has been any negative effect on the scalloped hammerhead shark's ability to recover due to its biological characteristics.
        The petition also asserts that “human population growth” may pose a serious threat to the scalloped hammerhead population. However, broad statements about generalized threats to the species do not constitute substantial information indicating that listing may be warranted. Although the petition presents information that the human population may be expanding, it does not provide information indicating an increase in fishing pressure on scalloped hammerhead sharks due specifically to this human population growth, or information that scalloped hammerhead sharks are responding in a negative fashion to human population growth.
        Summary of Section 4(a)(1) Factors
        We conclude that the petition presents substantial scientific or commercial information indicating that a combination of two of the section 4(a)(1) factors: Overutilization for commercial, recreational, scientific, or educational purposes, and inadequate existing regulatory mechanisms, may be causing or contributing to an increased risk of extinction for the scalloped hammerhead shark.
        Petition Finding
        After reviewing the information contained in the petition, as well as information readily available in our files, and based on the above analysis, we conclude the petition presents substantial scientific information indicating the petitioned action of listing the scalloped hammerhead shark as threatened or endangered may be warranted. Therefore, in accordance with section 4(b)(3)(B) of the ESA and NMFS' implementing regulations (50 CFR 424.14(b)(2)), we will commence a status review of the species. During our status review, we will first determine whether the species is in danger of extinction (endangered) or likely to become so (threatened) throughout all or a significant portion of its range. If it is not, then we will consider whether the populations identified by the petitioner meet the DPS policy criteria, and if so, whether any of these are threatened or endangered. We now initiate this review, and thus, the scalloped hammerhead shark is considered to be a candidate species (69 FR 19975; April 15, 2004). Within 12 months of the receipt of the petition (August 14, 2012), we will make a finding as to whether listing the species (or any identified DPSs) as endangered or threatened is warranted as required by section 4(b)(3)(B) of the ESA. If listing the species (or any identified DPSs) is found to be warranted, we will publish a proposed rule and solicit public comments before developing and publishing a final rule.
        Information Solicited

        To ensure that the status review is based on the best available scientific and commercial data, we are soliciting information on whether the scalloped hammerhead shark is endangered or threatened. Specifically, we are soliciting information in the following areas: (1) Historical and current distribution and abundance of this species throughout its range; (2) historical and current population trends; (3) life history in marine environments; (4) shark fin trade data; (5) any current or planned activities that may adversely impact the species; (6) ongoing or planned efforts to protect and restore the species and their habitats; (7) population structure information, such as genetics data; and (8) management, regulatory, and enforcement information. We request that all information 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.
        References Cited

        A complete list of references is available upon request from NMFS Protected Resources Headquarters Office (see ADDRESSES).
        Authority

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

          Dated: November 21, 2011.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2011-30599 Filed 11-25-11; 8:45 am]
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