        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 223 and 224
        [Docket No. 210409-0078;RTID 0648-XR116]
        Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Shortfin Mako 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 shortfin mako shark (Isurus oxyrinchus) as threatened or endangered under the Endangered Species Act (ESA) and to designate critical habitat concurrent with the listing. We find that the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Therefore, we are initiating a status review of the species to determine whether listing under the ESA is warranted. To ensure this status review is comprehensive, we are soliciting scientific and commercial information regarding this species.

          DATES:
          Scientific and commercial information pertinent to the petitioned action must be received by June 14, 2021.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2021-0028 by the following method:
          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2021-0028 in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          Interested persons may obtain a copy of the petition online at the NMFS website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/petitions-awaiting-90-day-findings.

          FOR FURTHER INFORMATION CONTACT:

          Adrienne Lohe, NMFS Office of Protected Resources, (301) 427-8442, Adrienne.Lohe@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Background

        On January 25, 2021, we received a petition from Defenders of Wildlife to list the shortfin mako shark (Isurus oxyrinchus) as a threatened or endangered species under the ESA and to designate critical habitat concurrent with the listing. The petition asserts that I. oxyrinchus is threatened by 4 of the 5 ESA section 4(a)(1) factors: (1) Present and threatened modification of its habitat; (2) overutilization for commercial and recreational purposes; (3) inadequacy of existing regulatory mechanisms; and (4) other natural or manmade factors. The petition is available online (see ADDRESSES).
        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 distinct population segment (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 to address identified threats; (5) or 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(h)(1)(i)) define “substantial scientific or commercial information” in the context of reviewing a petition to list, delist, or reclassify a species as credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted. Conclusions drawn in the petition without the support of credible scientific or commercial information will not be considered “substantial information.” In reaching the initial (90-day) finding on the petition, we will consider the information described in sections 50 CFR 424.14(c), (d), and (g) (if applicable).

        Our determination as to whether the petition provides substantial scientific or commercial information indicating that the petitioned action may be warranted will depend in part on the degree to which the petition includes the following types of information: (1) Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available; (2) identification of the factors under section 4(a)(1) of the ESA that may affect the species and where these factors are acting upon the species; (3) whether and to what extent any or all of the factors alone or in combination identified in section 4(a)(1) of the ESA may cause the species to be an endangered species or threatened species (i.e., the species is currently in danger of extinction or is likely to become so within the foreseeable future), and, if so, how high in magnitude and how imminent the threats to the species and its habitat are; (4) information on adequacy of regulatory protections and effectiveness of conservation activities by States as well as other parties, that have been initiated or that are ongoing, that may protect the species or its habitat; and (5) a complete, balanced representation of the relevant facts, including information that may contradict claims in the petition. See 50 CFR 424.14(d).
        If the petitioner provides supplemental information before the initial finding is made and states that it is part of the petition, the new information, along with the previously submitted information, is treated as a new petition that supersedes the original petition, and the statutory timeframes will begin when such supplemental information is received. See 50 CFR 424.14(g).

        We may also consider information readily available at the time the determination is made. We are not required to consider any supporting materials cited by the petitioner if the petitioner does not provide electronic or hard copies, to the extent permitted by U.S. copyright law, or appropriate excerpts or quotations from those materials (e.g., publications, maps, reports, letters from authorities). See 50 CFR 424.14(c)(6).
        The “substantial scientific or commercial information” standard must be applied in light of any prior reviews or findings we have made on the listing status of the species that is the subject of the petition. Where we have already conducted a finding on, or review of, the listing status of that species (whether in response to a petition or on our own initiative), we will evaluate any petition received thereafter seeking to list, delist, or reclassify that species to determine whether a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted despite the previous review or finding. Where the prior review resulted in a final agency action—such as a final listing determination, 90-day not-substantial finding, or 12-month not-warranted finding—a petition will generally not be considered to present substantial scientific and commercial information indicating that the petitioned action may be warranted unless the petition provides new information or analysis not previously considered. See 50 CFR 424.14(h)(1)(iii).
        At the 90-day finding stage, 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 conducting an impartial scientific review 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 necessitates a negative 90-day finding if a reasonable person conducting an impartial scientific review would conclude that the unknown information itself suggests the species may be at risk of extinction presently or within the foreseeable future.

        To make a 90-day finding on a petition to list a species, we first evaluate whether the information presented in the petition, in light of the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, if we conclude the petition presents substantial scientific or commercial information suggesting that the petitioned entity may constitute a “species,” we evaluate whether the information indicates that the species may face an extinction risk such that listing, delisting, or reclassification may be warranted; 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 whether the petition presents 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 whether the petition presents information suggesting potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1) of the ESA.
        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 nongovernmental 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 such 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” (https://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories). Additionally, species classifications under IUCN and the ESA are not equivalent; data standards, criteria used to evaluate species, and treatment of uncertainty are also not necessarily the same. 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, Habitat, and Life History

        The shortfin mako is a large pelagic shark that occurs across all temperate and tropical ocean waters (Rigby et al. 2019; Santos et al. 2020). The species is highly migratory and is known to travel long distances in open ocean, continental shelf, shelf edge, and shelf slope habitats (Rogers et al. 2015). The species also displays fidelity to small geographic areas on or near continental shelves and coastal areas of high productivity, although this resident behavior is rarely observed in the open ocean (Rogers et al. 2015; Francis et al. 2019). Shortfin mako shark vertical distribution in the water column is affected by water temperature, dissolved oxygen (DO) concentration, and time of day. The preferred water temperature of the species is thought to range between 17 °C and 22 °C (Casey and Kohler 1992; Nasby-Lucas et al. 2019; Santos et al. 2020), though the species also regularly occupies waters between 22 °C and 31 °C (Vaudo et al. 2017). As the species has one of the highest measured metabolic rates of any shark, it typically inhabits waters with DO concentrations of at least 3 milliliters per liter and avoids areas with low levels of DO (Sepulveda et al. 2007; Abascal et al. 2011). Individuals spend most of their time in the upper part of the water column but dive to depths of several hundred meters, allowing them to forage for mesopelagic fishes and squid, though dives may have other functions including navigation (Francis et al. 2019). Tagging studies have found that the species typically spends more time in deeper, colder water during the daytime and at night moves to shallower, warmer waters (Sepulveda et al. 2004; Loefer et al. 2005; Stevens et al. 2010; Abascal et al. 2011; Nasby-Lucas et al. 2019). Although thermal barriers have consistently been shown to limit shortfin mako movement between different regions (Casey and Kohler 1992; Vaudo et al. 2017; Corrigan et al. 2018; Santos et al. 2020), genetic studies indicate a globally panmictic population with some genetic structuring between ocean basins (Schrey and Heist 2003; Corrigan et al. 2018).

        Shortfin makos are estimated to live to at least 29 years, and males and females reach maturity at approximately 7-8 years and 18-19 years, respectively (Bishop et al. 2006; Natanson et al. 2006). Natural mortality levels for the species are low (Bishop et al. 2006). Females have a 3-year reproductive cycle (Mollet et al. 2000), and estimates of gestation time vary from 9 months to 25 months (Mollet et al. 2000; Duffy and Francis 2001; Joung and Hsu 2005; Semba et al. 2011). Litter size typically ranges from 4 to 25 pups (Mollet et al. 2000; Joung and Hsu 2005). As the species is late maturing and slow growing with moderately high longevity and low annual fecundity, its productivity is very low (Bishop et al. 2006).
        Status and Population Trends

        While there are no data available on the global abundance of shortfin mako sharks, stock assessments and standardized catch-per-unit-effort (CPUE) data indicate that the species is declining globally (CITES 2019; Rigby et al. 2019). Overall, the species has experienced an estimated median population reduction of 46.6 percent, with the highest probability of 50-79 percent reduction over three generation lengths (72-75 years) (Rigby et al. 2019). All regional populations are in decline with the exception of the South Pacific, which shows some evidence of population increases (Rigby et al. 2019).

        The steepest population declines are indicated in the North and South Atlantic (Rigby et al. 2019). The most recent stock assessment by the International Commission for the Conservation of Atlantic Tunas (ICCAT) indicates a 90 percent probability that the North Atlantic stock is in an overfished state and is experiencing overfishing (ICCAT 2019b). Trend analysis of modeled biomass in the North Atlantic estimates a median decline of 60 percent between 1950 and 2017 (Rigby et al. 2019). Although ICCAT reports a high degree of uncertainty in the status of the South Atlantic stock (ICCAT 2019b), standardized catch rates in South Atlantic longlines indicate steep declines of 99 percent in the average CPUE of 1979-1997 and 1998-2007 (Rigby et al. 2019 citing Barreto et al. 2016). Further, long-term combined trends for shortfin mako and porbeagle (Lamna nasus) in the Mediterranean Sea indicate a 99.99 percent decrease in abundance and biomass since the early 19th century (Ferretti et al. 2008).

        Declines in the Indian and North Pacific Oceans are also evident, but not as steep as those indicated in the Atlantic (Rigby et al. 2019). Although the International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean (ISC) Shark Working Group (2018) found that the North Pacific stock was likely not in an overfished condition and was likely not experiencing overfishing between 1975 and 2016 (42 years), the IUCN Red List assessment of the trend over three generations (72 years) indicated a median decline of 36.5 percent (Rigby et al. 2019). Additionally, data from the Western and Central Pacific Fisheries Commission (WCPFC) indicate that longline catch rates of mako sharks (shortfin and longfin mako (Isurus paucus) combined) in the North Pacific declined significantly by an average of 7 percent (90 percent confidence interval: 3 to 11 percent) annually between 1995 and 2010 (Clarke et al. 2013). A preliminary stock assessment in the Indian Ocean indicates that the stock is experiencing overfishing, but is not yet overfished (Brunel et al. 2018). The trend analysis for modeled biomass in the Indian Ocean indicates a median decline of 47.9 percent over three generation lengths (Rigby et al. 2019).

        In the South Pacific, trend analysis of modeled biomass indicates a median increase of 35.2 percent over three generation lengths (Rigby et al. 2019). Longline catch rates reported to WCPFC did not indicate a significant trend in abundance of mako (shortfin and longfin combined) in the South Pacific between 1995 and 2010 (Clarke et al. 2013).
        In sum, while data on abundance and trends are incomplete, the information presented in the petition indicates that the species is declining across its range, with the exception of the South Pacific.
        Analysis of ESA Section 4(a)(1) Factors
        The petition asserts that I. oxyrinchus is threatened by four of the five ESA section 4(a)(1) factors: Present and threatened modification of its habitat, overutilization for commercial and recreational purposes, inadequacy of existing regulatory mechanisms, and other natural or manmade factors, including climate change. Information in the petition and readily available in our files indicates that the primary threat facing the species is overutilization in fisheries worldwide, and we find that listing the shortfin mako as a threatened or endangered species under the ESA may be warranted based on this threat alone. As such, we focus our discussion below on the evidence of overutilization in commercial fisheries. However, we note that in the status review for this species, we will evaluate all ESA section 4(a)(1) factors to determine whether any one or a combination of these factors are causing declines in the species or are likely to substantially negatively affect the species within the foreseeable future to such a point that the shortfin mako is at risk of extinction or likely to become so in the foreseeable future.
        Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

        According to information cited in the petition and readily available in our files, the greatest threat to the shortfin mako shark is historical and ongoing overfishing. Shortfin mako sharks are targeted in semi-industrial and artisanal fisheries in the Indian Ocean and as sportfish in recreational fisheries, though the majority of the catch is taken incidentally in commercial fisheries targeting tuna, billfish, and swordfish throughout the species' range (Camhi et al. 2008). According to the Food and Agriculture Organization of the United Nations (FAO) global capture production statistics, total reported catch for the shortfin mako in the period 2010-2016 totaled 91,989 metric tons (t) (CITES 2019). Landings in the Atlantic totaled 45,959 t (50 percent of global reported catch), in the Pacific totaled 31,838 t (34 percent of global reported catch), in the Indian Ocean totaled 14,043 t (15 percent of global reported catch), and in the Mediterranean totaled 152 t (less than 1 percent of global reported catch) (CITES 2019). Reported catch, however, is a substantial underestimate of actual catch. Campana (2016) estimates that in the Atlantic, only 25 percent of the total catch is reported to ICCAT. Reported catch also does not account for mortalities that result from fisheries interactions, including sharks that are discarded, finned, or that experience post-release mortality. In fact, levels of fishing mortality in the Northwest Atlantic estimated through fisheries-independent satellite telemetry data were found to be 10 times greater than previous estimates from fisheries-dependent data, and 5-18 times greater than those associated with maximum sustainable yield (Byrne et al. 2017). Therefore, impacts of commercial fishing fleets on the shortfin mako are likely much greater than reported catch numbers suggest.

        Shortfin makos are most commonly caught as bycatch in longline fisheries, and are also caught in gillnets, purse seines, trammel nets, and trawls (CITES 2019). When bycaught, the species experiences mortality through at-vessel or hooking mortality, and post-release mortality. Rates of at-vessel mortality, or mortality resulting from interactions with fishing gear prior to being brought onboard, have been estimated at 26.2 percent for shortfin makos bycaught in Northwest Atlantic pelagic longlines, though this varies by target species and fishing vessel (Campana et al. 2016). The proportion of shortfin makos that experience at-vessel mortality was significantly higher than that of blue sharks, likely because shortfin makos are obligate ram ventilators (i.e., they must be continuously swimming forwards to move water over the gills) with high oxygen requirements, and their ability to ram ventilate is compromised once hooked (Campana 2016; Campana et al. 2016). The rate of post-release mortality has been estimated at 31.3 percent for shortfin makos bycaught by Northwest Atlantic pelagic longlines (Campana et al. 2016). Combining at-vessel and post-release mortality, total bycatch mortality in the Canadian pelagic longline fishery is estimated at 49.3 percent (95 percent confidence interval: 23-73 percent), assuming that no live sharks are retained (Campana et al. 2016). Other available estimates of post-release mortality for the species include 47 percent in the Hawaiian deep-set commercial longline fishery and 31.6 percent in the Hawaiian shallow-set commercial longline fishery (Walsh et al. 2009). In sum, shortfin makos experience substantial mortality as a result of being incidentally caught in commercial fisheries.

        Shortfin makos also experience mortality through opportunistic retention, and are more frequently retained than other pelagic sharks based on their highly valued meat and fins (CITES 2019). The species is preferred in the Hong Kong fin market, one of the largest fin trading markets in the world (Fields et al. 2018). Clarke et al. (2006a) estimate that the species makes up approximately 2.7 percent (95 percent probability interval: 2.3 to 3.1 percent) of the Hong Kong shark fin trade, the fourth highest proportion of auctioned fin weight after blue (Prionace glauca, 17.3 percent), hammerhead (Sphyrna zygaena or S. lewini, 4.4 percent) and silky (Carcharhinus falciformis, 3.5 percent) sharks. A more recent study found shortfin makos to be the fifth most commonly traded species in Hong Kong based on random samples of fin trimmings from retail markets (Fields et al. 2018). The estimated number of shortfin makos utilized in the worldwide shark fin trade each year is between 300,000 and 1,000,000, totaling between 20,000 and 55,000 t in biomass (Clarke et al. 2006b). Beyond the fin trade, shortfin mako sharks are highly valued for their meat, which is utilized fresh, frozen, smoked, dried, and salted for human consumption (CITES 2019; Dent and Clarke 2015). Shortfin mako liver oil, teeth, jaws, and skin are also traded, though most of these products are of lower value and are not traded in significant quantities (CITES 2019).

        The shortfin mako's low productivity and high susceptibility to capture give it one of the highest risks of overexploitation of sharks caught by Atlantic pelagic longline fleets (Cortés et al. 2015). Additionally, fisheries mortality primarily affects sub-adults (approximate ages of 3-15 years), meaning that as this exploited age-class matures, the reproductive population will shrink (Winker et al. 2020). For this reason, ICCAT (2019a) projects that even with zero total allowable catch in the North Atlantic, the stock would continue to decline until 2035, and would have only a 53 percent probability of being rebuilt and no longer subject to overfishing by 2045. Overall, the shortfin mako's recent population declines, low productivity, high vulnerability to overexploitation, and the long lag time between implementation of management measures (e.g., reducing or eliminating allowable catch) and the start of population recovery lead us to conclude that listing the species as threatened or endangered may be warranted.
        Petition Finding

        After reviewing the petition, the literature cited in the petition, and other information readily available in our files, we find that listing I. oxyrinchus as a threatened or endangered species may be warranted. Therefore, in accordance with section 4(b)(3)(A) of the ESA and NMFS' implementing regulations (50 CFR 424.14(h)(2)), we will commence a status review of this species. During the status review, we will determine whether I. oxyrinchus is in danger of extinction (endangered) or likely to become so (threatened) throughout all or a significant portion of its range. As required by section 4(b)(3)(B) of the ESA, within 12 months of the receipt of the petition (January 25, 2021), we will make a finding as to whether listing the shortfin mako shark as an endangered or threatened species is warranted. If listing is 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 comments and information from interested parties on the status of the shortfin mako shark. Specifically, we are soliciting information in the following areas:

        (1) Historical and current abundance and population trends of I. oxyrinchus throughout its range;

        (2) Historical and current distribution and population structure of I. oxyrinchus;

        (3) Historical and current condition of habitat for I. oxyrinchus;

        (3) Historical and current data on bycatch and retention of I. oxyrinchus in industrial, commercial, artisanal, and recreational fisheries worldwide;

        (4) Data on trade of shortfin mako products, including fins, meat, jaws, skin, and liver oil; and
        (5) The effects of other known or potential threats to I. oxyrinchus over the short-term or long-term; and
        (5) Management, regulatory, or conservation programs for I. oxyrinchus, including mitigation measures related to any known or potential threats to the species throughout its range.

        We request that all data and information be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications. Please send any comments in accordance with the instructions provided in the ADDRESSES section above. We will base our findings on a review of the best available scientific and commercial information available, including all information received during the public comment period.
        References Cited

        A complete list of all references cited herein is available upon request (See FOR FURTHER INFORMATION CONTACT).

          Authority:

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

          Dated: April 12, 2021.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2021-07714 Filed 4-14-21; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF TRANSPORTATION
        Pipeline and Hazardous Materials Safety Administration
        49 CFR Parts 191 and 192
        [Docket No. PHMSA-2019-0131]
        Pipeline Safety: Farm Taps Frequently Asked Questions

          AGENCY:
          Pipeline and Hazardous Materials Safety Administration (PHMSA); DOT.

          ACTION:
          Announcement of frequently asked questions; request for comments.

          SUMMARY:

          The Pipeline and Hazardous Materials Safety Administration (PHMSA) is making available for comment a set of proposed frequently asked questions (FAQs) regarding individual service lines directly connected to production, gathering, or transmission pipelines, commonly referred to as farm taps. The proposed FAQs address the applicability of the Federal Pipeline Safety Regulations and include guidance related to the Exercise of Enforcement Discretion Regarding Farm Taps published in the Federal Register on March 26, 2019.

          DATES:
          Persons interested in submitting comments on the proposed farm tap FAQs must do so by June 19, 2020.

          ADDRESSES:
          You may submit comments, identified by docket number PHMSA-2019-0131, by any of the following methods:
          • E-Gov Web: http://www.regulations.gov. This site allows the public to enter comments on any Federal Register notice issued by any agency. Follow the online instructions for submitting comments.
          • Mail: Docket Management System: U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
          • Hand Delivery: DOT Docket Management System: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, between 9:00 a.m. and 5:00 p.m. EST, Monday through Friday, except federal holidays.
          • Fax: 202-493-2251.
          • Instructions: Identify the docket PHMSA-2019-0131, at the beginning of your comments. If you submit your comments by mail, submit two copies. If you wish to receive confirmation that PHMSA received your comments, include a self-addressed stamped postcard. Internet users may submit comments at http://www.regulations.gov.

          • Privacy Act: DOT may solicit comments from the public regarding certain general notices. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

          • Confidential Business Information: Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this document contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this document, it is important that you clearly designate the submitted comments as CBI. Pursuant to 49 CFR 190.343, you may ask PHMSA to give confidential treatment to information you give to the agency by taking the following steps: (1) Mark each page of the original document submission containing CBI as “Confidential”; (2) send PHMSA, along with the original document, a second copy of the original document with the CBI deleted; and (3) explain why the information you are submitting is CBI. Unless you are notified otherwise, PHMSA will treat such marked submissions as confidential under FOIA, and they will not be placed in the public docket of this document. Submissions containing CBI should be sent to Sayler Palabrica at DOT, PHMSA, PHP-30, 1200 New Jersey Avenue SE, PHP-30, Washington, DC 20590-0001.
          Any commentary PHMSA receives that is not specifically designated as CBI will be placed in the public docket for this matter.
          • Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Follow the online instructions for accessing the dockets. Alternatively, you may review the documents in person at the street address listed above.

          FOR FURTHER INFORMATION CONTACT:

            General: Mr. Sayler Palabrica by telephone at 202-366-0559, or email at sayler.palabrica@dot.gov.

            Technical: Mr. Chris McLaren by telephone at 281-216-4455, or email at chris.mclaren@dot.gov.

        SUPPLEMENTARY INFORMATION:
        PHMSA provides written clarification of the pipeline safety regulations (49 CFR parts 190-199) in the form of FAQs and other guidance materials. PHMSA is requesting public comment on a set of proposed FAQs intended to clarify, explain, and promote better understanding and implementation of the requirements in Parts 191 and 192 with respect to individual service pipelines directly connected to transmission, gathering, or production pipelines. These facilities are typically located in rural areas and are commonly known as “farm taps.”
        These proposed FAQs reflect PHMSA's current application of the regulations to the specific implementation scenarios presented. However, there are many situations and configurations in which farm taps exist in gas pipeline systems, and individual FAQs cannot account for all possible scenarios. Operators may request written regulatory interpretations from PHMSA regarding specific situations in accordance with § 190.11.
        FAQs are provided to help the regulated community understand how to comply with the regulations, but they are not substantive rules themselves and do not create legally enforceable rights, assign duties, or impose new obligations not otherwise contained in the existing regulations and standards. However, an operator who is able to demonstrate compliance with the FAQs is likely to be able to demonstrate compliance with the relevant regulations. If a different course of action is taken by a pipeline operator, the operator must be able to demonstrate that its conduct is in accordance with the regulations.

        On January 23, 2017, PHMSA published a final rule titled “Operator Qualification, Cost Recovery, Accident and Incident Notification, and Other Pipeline Safety Changes” in the Federal Register (82 FR 7972). This final rule, effective March 24, 2017, excepted individual service lines directly connected to a transmission, gathering, or production pipeline from the distribution integrity management program (DIMP) regulations at § 192.1003(b). Instead, PHMSA added § 192.740, requiring periodic inspection and maintenance for pressure-regulating, limiting, and overpressure protection devices on individual service lines directly connected to production, gathering, or transmission pipelines. PHMSA adopted this approach after working with stakeholders to best identify how to address risks to the integrity of farm taps in an appropriate and cost-effective manner.
        After the publication of the rule, industry stakeholders commented that PHMSA had underestimated the costs of compliance with the new § 192.740 farm tap inspection requirements, and that existing DIMP requirements, in conjunction with other current requirements such as § 192.723(b)(2) leak surveys, could provide an equivalent level of safety. As part of DOT's regulatory review process, PHMSA is considering changes to the requirements for maintaining pressure-regulating, limiting, and overpressure protection devices on farm taps in the future.
        On March 26, 2019, PHMSA issued an Announcement of Enforcement Discretion (84 FR 11253) that provides operators with the flexibility to address the safety of pressure control, limiting, and overpressure protection devices on farm taps under either § 192.740 or their DIMP, as specified by § 192.1003 prior to its revision.

        To help operators better understand the applicability of § 192.740 and other issues related to farm taps, PHMSA is issuing these proposed FAQs. PHMSA invites interested parties to review the proposed FAQs and submit written comments, data, or other information. Other topics addressed in the proposed FAQs include how to determine if a farm tap is regulated; reporting requirements for distribution services from an unregulated source pipeline; the applicability of operation and maintenance requirements; regulatory definitions; the applicability of certain requirements to existing facilities; testing requirements; and other Part 192 requirements. When finalized, these FAQs will supersede FAQ C.3.7 in the Distribution Integrity Management Frequently Asked Questions document at: https://www.phmsa.dot.gov/pipeline/gas-distribution-integrity-management/gas-distribution-integrity-management-faqs.

        The proposed FAQs and other supporting documents are available online on the Federal eRulemaking Portal, https://www.regulations.gov; search for Docket No. PHMSA-2019-0131. Before finalizing the proposed FAQs, PHMSA will evaluate all comments received on or before the comment closing date. Comments received after the closing date will be evaluated to the extent practicable. Once finalized, PHMSA's FAQs will be posted on PHMSA's public website at https://www.phmsa.dot.gov.

          Issued in Washington, DC, on April 9, 2020, under authority delegated in 49 CFR 1.97.
          Alan K. Mayberry,
          Associate Administrator for Pipeline Safety.

      [FR Doc. 2020-07922 Filed 4-17-20; 8:45 am]
       BILLING CODE 4910-60-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R4-ES-2018-0010; 4500030113]
        RIN 1018-BD06
        Endangered and Threatened Wildlife and Plants; Section 4(d) Rule for Louisiana Pinesnake

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), propose a rule under section 4(d) of the Endangered Species Act for the Louisiana pinesnake (Pituophis ruthveni), a reptile from Louisiana and Texas. This rule would provide measures to protect the species.

          DATES:

          We will accept comments received or postmarked on or before May 7, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by April 23, 2018.

          ADDRESSES:
          You may submit comments by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2018-0010, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”
          (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-2018-0010, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

          We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information).

          FOR FURTHER INFORMATION CONTACT:
          Joseph Ranson, Field Supervisor, U.S. Fish and Wildlife Service, Louisiana Ecological Services Office, 646 Cajundome Blvd., Suite 400, Lafayette, LA; telephone 337-291-3113. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Previous Federal Actions

        On October 6, 2016, the Service, under the authority of the Endangered Species Act, as amended (“Act”; 16 U.S.C. 1531 et seq.), published in the Federal Register a proposed rule to add the Louisiana pinesnake (Pituophis ruthveni), a reptile from Louisiana and Texas, as a threatened species to the List of Endangered and Threatened Wildlife (81 FR 69454). The List of Endangered and Threatened Wildlife is in title 50 of the Code of Federal Regulations in part 17 (50 CFR 17.11(h)). The proposed listing rule had a 60-day comment period, ending on December 5, 2016. Then, on October 6, 2017, the Service published in the Federal Register a document that reopened the comment period on the proposed rule and announced that we were extending by 6 months the 1-year period for making a final determination on the proposed rule to list the Louisiana pinesnake as a threatened species (82 FR 46748). In accordance with section 4(b)(6)(A)(i)(III) of the Act, this extension was based on our finding that there was substantial disagreement regarding available information related to the interpretation of the available survey data used to determine the Louisiana pinesnake's status and trends. The second comment period closed November 6, 2017. No public hearing was requested or held in response to publication of these documents.
        Elsewhere in this issue of the Federal Register, we publish a final rule for the 2016 proposed listing rule for the Louisiana pinesnake as a threatened species. For a complete list of previous Federal actions related to this species as well as information on its taxonomy, habitat, life history, historical and current distribution, population estimates and status, and a summary of factors affecting the species, see that proposed rule (81 FR 69454, October 6, 2016).
        Background

        The primary habitat feature that contributes to the conservation of the Louisiana pinesnake is open-canopy forest situated on well-drained sandy soils with an abundant herbaceous plant community that provides forage for the Baird's pocket gopher (Geomys breviceps), which is the snake's primary known source of food. In addition, Baird's pocket gopher burrows are the primary known source of shelter for the Louisiana pinesnake. As discussed in the, proposed listing rule, one of the primary threats to the Louisiana pinesnake is the continuing loss and degradation of the open pine forest habitat that supports the Baird's pocket gopher. In the types of sandy soil in which the Louisiana pinesnake and pocket gopher are found (Wagner et al. 2014, p. 152 ; Duran 2010, p. 11; Davis et al. 1938, p. 414), the pocket gopher creates burrows at an average depth of about 18 centimeters (cm) (7 inches (in)) (Wagner et al. 2015, p. 54).

        One of the primary features of suitable pocket gopher habitat is a diverse herbaceous (non-woody) plant community with an adequate amount of forbs (non-grass herbaceous vegetation) that provide forage for the pocket gopher. Louisiana pinesnakes and pocket gophers are known to be highly associated (Ealy et al. 2004, p. 389) and occur together in areas with herbaceous vegetation, a nonexistent or sparse midstory, and a low pine basal area (Rudolph and Burgdorf 1997, p. 117; Himes et al. 2006, pp. 110, 112; Wagner et al. 2017, p. 22). In a study of pocket gophers in a Louisiana forest system managed according to guidelines for red-cockaded woodpecker (Picoides borealis) habitat, it was shown that pocket gopher selection of habitat increased with increasing forb cover and decreased with increasing midstory stem density and midstory pine basal area (Wagner et al. 2017, p. 11). Few (less than 25 percent) sites used by pocket gophers had less than 18 percent coverage by forbs alone (Wagner et al. 2017, p. 22). Use by pocket gophers is also inhibited by increased midstory stem density and midstory pine basal area even when herbaceous vegetation is present (Wagner et al. 2017, pp. 20, 22, 25). Pocket gophers used areas with higher densities of trees much less frequently than areas with fewer stems, presumably because of greater root mass, which reduces burrowing efficiency (Wagner et al. 2017, pp. 11, 22).
        One of the main causes of the degradation of this habitat is the decline in or absence of fire. Fire was the primary source of historical disturbance and maintenance, and prescribed fire is currently known to reduce midstory and understory hardwoods and promote abundant herbaceous groundcover in the natural communities of the longleaf dominant pine ecosystem where the Louisiana pinesnake most often occurs. In the absence of regularly recurring, unsuppressed fires, open pine forest habitat requires active management activities essentially the same as those required to produce and maintain red-cockaded woodpecker foraging habitat. Those activities, such as thinning, prescribed burning, reforestation and afforestation, midstory woody vegetation control, herbaceous vegetation (especially forbs) enhancement, and harvest (particularly in stands that require substantial improvement) are necessary to maintain or restore forests to the conditions that are suitable (as described in the preceding paragraph) for pocket gophers and Louisiana pinesnakes.
        Establishment and management of open pine forests beneficial to the Louisiana pinesnake has been occurring on some privately owned land in Louisiana and Texas Additionally, throughout the range of the Louisiana pinesnake, Federal and State agencies have developed conservation efforts, which have provided a conservation benefit to the species. Increased efforts, however, are necessary on both public and private lands to address continued habitat loss, degradation, and fragmentation, one of the species' primary threats across its entire range, and it is the intent of this proposed rule to encourage these increased efforts.
        In the proposed listing rule (81 FR 69454, October 6, 2016), we solicited public comments as to which prohibitions, and exceptions to those prohibitions, are necessary and advisable to provide for the conservation of the Louisiana pinesnake. During the public comment periods on the proposed listing rule (81 FR 69454, October 6, 2016; 82 FR 46748, October 6, 2017), we received comments expressing concern that, when the species is listed under the Act, certain beneficial forest management activities on private land could be considered takings in violation of section 9(a)(1) of the Act or its implementing regulations, and would thus be regulated.
        The Service intends to strongly encourage the continuation and increased implementation of forest management activities—thinning, prescribed fire, and mid- and understory woody vegetation control in particular—that promote open canopy forest and herbaceous vegetation growth, which are beneficial to the Louisiana pinesnake. In recognition of efforts that provide for conservation and management of the Louisiana pinesnake and its habitat in a manner consistent with the purposes of the Act, as discussed in more detail below, we are now proposing a rule under section 4(d) of the Act that identifies situations in which take resulting from actions that provide for conservation and management of the Louisiana pinesnake would not be prohibited. Information about section 4(d) of the Act is set forth below in Provisions of Section 4(d) of the Act.
        Our goal is to strongly encourage continuation and increased implementation of these beneficial practices. Nevertheless, if activities could cause subsurface ground disturbance that can directly harm or kill Louisiana pinesnakes inhabiting pocket gopher burrows, or inhibit the persistence of suitable pocket gopher and Louisiana pinesnake habitat, as described above, they would be subject to the section 9 take prohibitions in certain occupied habitat areas, specifically areas known as Louisiana pinesnake estimated occupied habitat areas (EOHAs). These areas have been the site of recorded occurrences of Louisiana pinesnakes, and they are considered by the Service to be occupied by the species (see the proposed listing rule). This regulation would also apply to any EOHAs that are identified in the future, because activities in such areas could be detrimental to maintenance and development of suitable habitat conditions critical to this species and are more likely to affect the Louisiana pinesnake directly.
        Provisions of Section 4(d) of the Act

        The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to threatened wildlife. Under section 4(d) of the Act, the Secretary of the Interior has the discretion to issue such regulations as he deems necessary and advisable to provide for the conservation of threatened species. The Secretary also has the discretion to prohibit, by regulation with respect to any threatened species of fish or wildlife, any act prohibited under section 9(a)(1) of the Act. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.31, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) threatened wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. To the extent the section 9(a)(1) prohibitions apply only to endangered species, this proposed rule would apply those same prohibitions to the Louisiana pinesnake with some exceptions.
        The regulations implementing the ESA include a provision that generally applies to threatened wildlife the same prohibitions and exceptions that apply to endangered wildlife (50 CFR 17.31(a), 17.32), in accordance with section 4(d) of the Act. For any species, the Service may instead develop a protective regulation that is specific to the conservation needs of that species. Such a regulation would contain all of the protections applicable to that species (50 CFR 17.31(c)); this may include some of the general prohibitions and exceptions under 50 CFR 17.31 and 17.32, but would also include protections that are tailored to the specific conservation needs of the threatened species and may be more or less restrictive than the general provisions at 50 CFR 17.31.

        The courts have recognized the extent of the Secretary's discretion to develop prohibitions, as well as exclusions from those prohibitions, that are appropriate for the conservation of a species. For example, the Secretary may decide not to prohibit take, or to put in place only limited take prohibitions. See Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the protective regulation for a species need not address all the threats to the species. As noted by Congress when the Act was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species,” or he may choose to forbid both taking and importation but allow the transportation of such species, as long as the measures will “serve to conserve, protect, or restore the species concerned in accordance with the purposes of the Act” (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
        Proposed 4(d) Rule for the Louisiana Pinesnake
        Under this proposed section 4(d) rule, except as noted below, all prohibitions and provisions of 50 CFR 17.31 and 17.32 would apply to the Louisiana pinesnake.
        Outside of any known EOHAs, the following management activities would not be subject to the general prohibitions at 50 CFR 17.31:
        (1) Forestry activities, including tree thinning, harvest (including clearcutting), planting and replanting pines, as well as other silvicultural practices outlined below, that maintain lands in forest land use and that result in the establishment and maintenance of open pine canopy conditions through time across the landscape.
        (2) Prescribed burning, including all firebreak establishment and maintenance actions, as well as actions taken to control wildfires.
        (3) Herbicide application that is generally targeted for invasive plant species control and midstory and understory woody vegetation control, but is also used for site preparation when applied in a manner that minimizes long-term impact to noninvasive herbaceous vegetation. These provisions include only herbicide applications conducted in a manner consistent with Federal and applicable State laws, including Environmental Protection Agency label restrictions and herbicide application guidelines as prescribed by manufacturers.
        Although these management activities may result in some minimal level of harm or temporary disturbance to the Louisiana pinesnake, overall, these activities benefit the pinesnake by contributing to conservation and recovery. With adherence to the three limitations described in the preceding paragraph these activities will have a net beneficial effect on the species by encouraging active forest management that creates and maintains the herbaceous plant conditions needed to support the persistence of Baird's pocket gopher populations, which is essential to the long-term viability and conservation of the Louisiana pinesnake. This is a reasonable conclusion and therefore meets the standard for applying endangered-species prohibitions to threatened species under the second sentence of section 4(d) of the Act (16 U.S.C. 1533(d) (“The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title . . . with respect to endangered species.”)). Moreover, even if the “necessary and advisable” standard in the first sentence of section 4(d) applied to regulations adopting endangered-species prohibitions for a threatened species, we would find that adopting these prohibitions meets that standard.
        These provisions are necessary because, absent protections, the species is likely to become in danger of extinction in the foreseeable future. Applying the prohibitions of the Act will minimize threats that could cause further declines in the status of the species. Additionally, these provisions are advisable because the species needs active conservation to improve the quality of its habitat. By exempting some of the prohibitions, these provisions can encourage cooperation by landowners and other affected parties in implementing conservation measures. This will allow for use of the land while at the same time ensuring the preservation of suitable habitat and minimizing impact on the species.
        When practicable and to the extent possible, the Service encourages managers to conduct such activities in a manner to maintain suitable Louisiana pinesnake habitat in large tracts; minimize ground and subsurface disturbance; and promote a diverse, abundant herbaceous groundcover. Prescribed fire is an important tool to effectively manage open-canopy pine habitats to establish and maintain suitable conditions for the Louisiana pinesnake, and the Service strongly encourages its use over other methods (mechanical or chemical) wherever practicable. The Service also encourages managers, when practicable and to the extent possible, to (1) enroll their lands into third-party forest certification programs such as the Sustainable Forest Initiative, Forest Stewardship Council, and American Tree Farm System; and (2) conduct such activities using best management practices as described and implemented through such programs, or by others such as State forestry agencies, the U.S. Department of Agriculture (the Forest Service's Forest Stewardship Program or the Natural Resources Conservation Service's Conservation Practices Manual), or the U.S. Fish and Wildlife Service's Partners for Fish and Wildlife Program.

        As noted above, the management activities discussed above are not subject to the general prohibitions at 50 CFR 17.31 outside of known EOHAs. Within any known EOHAs on lands with suitable or preferable soils that are forested, undeveloped, or non-farmed (i.e., not cultivated on an annual basis) and adjacent to forested lands, the management activities discussed above would also not be subject to the general prohibitions at 50 CFR 17.31, but only provided the following additional conditions are met:

        (a) Those activities do not cause subsurface disturbance including, but not limited to, wind-rowing, stumping, disking (except during firebreak creation or maintenance), root-raking, drum chopping, below-ground shearing, and bedding. In highly degraded areas with no herbaceous vegetation, subsurface disturbance shall be limited to that less than 4 in (10 cm) in depth; and
        (b) Those activities do not inhibit the persistence of suitable pocket gopher and Louisiana pinesnake habitat.
        These additional conditions on when the prohibitions would not apply within known EOHAs are reasonable because the actual likelihood of encountering individuals of the species is higher within the EOHAs. For the same reason, even if the “necessary and advisable” standard is applied to regulations adopting endangered-species prohibitions for a threatened species, we would find that adopting these more narrow prohibitions is necessary and advisable.

        Anyone undertaking activities that are not covered by the provisions, including the additional conditions, and may result in take would need to: (1) ensure, in consultation with the Service are not likely to jeopardize the continued existence of the species (where the entity is a Federal agency or there is a Federal nexus), or (2) obtain a permit before proceeding with the activity (if there is no Federal nexus). A map of the currently known EOHAs is found in the proposed listing rule (81 FR 69461, October 6, 2016). The Service intends to update maps identifying the locations of Louisiana pinesnake EOHAs and make them available to the public in the docket on www.regulations.gov as new information becomes available. Alternatively, you may contact the Louisiana Ecological Services Field Office (see ADDRESSES).
        Based on the explanations above, the prohibitions under section 9(a)(1) would apply to the Louisiana pinesnake, with specific exemptions tailored to the conservation of the species. Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) and consultation requirements under section 7 of the Act or the ability of the Service to enter into partnerships for the management and protection of the Louisiana pinesnake.
        Available Conservation Measures
        Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition of a species through listing it results in public awareness, and leads Federal, State, Tribal, and local agencies, private organizations, and individuals to undertake conservation. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. Information about the protection required by Federal agencies, and the prohibitions against certain activities, and recovery planning and implementation and interagency consultation, are discussed in the proposed and final listing rules.
        The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to threatened wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.31, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) threatened wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally.
        As described in the final listing rule, it is our policy to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. Since the Louisiana pinesnake is a threatened species subject to the protections outlined in both section 9(a)(1) of the Act and this proposed rule, we are identifying those activities that would or would not constitute a violation of either section 9(a)(1) or this proposed rule. Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act or this proposed rule; this list is not comprehensive:
        (1) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the Louisiana pinesnake, including interstate transportation across State lines and import or export across international boundaries, except for properly documented antique specimens of these taxa at least 100 years old, as defined by section 10(h)(1) of the Act.
        (2) Introduction of nonnative animal species that compete with or prey upon the Louisiana pinesnake.
        (3) Introduction of invasive plant species that contribute to the degradation of the natural habitat of the Louisiana pinesnake.
        (4) Unauthorized destruction or modification of suitable occupied Louisiana pinesnake habitat that results in damage to or alteration of desirable herbaceous (non-woody) vegetation or the destruction of Baird's pocket gopher burrow systems used as refugia by the Louisiana pinesnake, or that impairs in other ways the species' essential behaviors such as breeding, feeding, or sheltering.
        (5) Unauthorized use of insecticides and rodenticides that could impact small mammal prey populations, through either unintended or direct impacts within habitat occupied by Louisiana pinesnakes.
        (6) Unauthorized actions that would result in the destruction of eggs or cause mortality or injury to hatchling, juvenile, or adult Louisiana pinesnakes.

        Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Louisiana Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
        Under regulations codified at 50 CFR 17.32, we may issue permits to carry out otherwise prohibited activities involving threatened wildlife under certain circumstances, including the following: Scientific purposes, to enhance the propagation or survival of the species, economic hardship, zoological exhibition, and incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
        Information Requested
        We intend that any final action resulting from this proposal will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning the proposed section 4(d) rule. We will consider all comments and information received during our preparation of a final 4(d) rule. Accordingly, our final decision may differ from this proposal based on specific public comments or any other new information that may become available.
        We particularly seek comments concerning:

        (1) Information concerning the appropriateness and scope of a 4(d) rule for the Louisiana pinesnake. We are particularly interested in input from forestry experts regarding forest management, restoration practices, or related activities, along with the value of certified forestry practices and best management practices, that would be appropriately addressed through a 4(d) rule.
        (2) Additional provisions the Service may wish to consider for a 4(d) rule in order to manage and conserve the Louisiana pinesnake.
        Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
        Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

        You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.
        If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

        Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Louisiana Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
        Required Determinations
        Clarity of the Rule
        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:
        (1) Be logically organized;
        (2) Use the active voice to address readers directly;
        (3) Use clear language rather than jargon;
        (4) Be divided into short sections and sentences; and
        (5) 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 ADDRESSES. 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 that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.
        National Environmental Policy Act (42 U.S.C. 4321 et seq.)
        We intend to undertake an environmental assessment of this action under the authority of the National Environmental Policy Act of 1969. We will notify the public of the availability of the draft environmental assessment for this proposal when it is finished.
        References Cited

        A list of the references cited in this proposed rule may be found in the docket in www.regulations.gov.

        Authors

        The primary authors of this proposed rule are the staff members of the Louisiana Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).

          List of Subjects in 50 CFR Part 17
          Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

        Proposed Regulation Promulgation
        Accordingly, for the reasons just described, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

          PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS

        1. The authority citation for part 17 continues to read as follows:

          Authority:
           16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

        2. Amend § 17.42 by adding paragraph (i) to read as follows:

          § 17.42
           Special rules—reptiles.

          (i) Louisiana pinesnake (Pituophuis ruthveni)—(1) Definitions. The following definitions apply only to terms used in this paragraph (i) for activities affecting the Louisiana pinesnake.
          (i) Estimated occupied habitat area (EOHA). Areas of land where occurrences of Louisiana pinesnakes have been recorded and that are considered by the Service to be occupied by the species. For current information regarding the EOHAs, contact your local Service ecological services field office. Field office contact information may be obtained from the Service regional offices, the addresses of which are listed in 50 CFR 2.2.
          (ii) Suitable or preferable soils. Those soils in Louisiana and Texas that generally have high sand content and a low water table and that have been shown to be selected by Louisiana pinesnakes (Natural Resources Conservation Service soil survey hydrologic group, Categories A and B).
          (2) Prohibitions. Except as noted in paragraph (i)(3) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 apply to the Louisiana pinesnake.
          (3) Exceptions from prohibitions. Incidental take of the Louisiana pinesnake will not be considered a violation of section 9 of the Act if the take results from any of the following activities:
          (i) Outside any known EOHAs:
          (A) Forestry activities, including tree thinning, harvest (including clearcutting), planting and replanting pines, as well as other silviculture practices, that maintain lands in forest land use and that result in the establishment and maintenance of open canopy conditions through time across the landscape.
          (B) Prescribed burning, including all firebreak establishment and maintenance actions, as well as actions taken to control wildfires.
          (C) Herbicide application that is generally targeted for invasive plant species control and midstory and understory woody vegetation control, but also for site preparation when applied in a manner that minimizes long-term impact to noninvasive herbaceous vegetation. All exempted herbicide applications must be conducted in a manner consistent with Federal and applicable State laws, including Environmental Protection Agency label restrictions and herbicide application guidelines as prescribed by herbicide manufacturers.

          (ii) Within any known EOHAs on lands with suitable or preferable soils that are forested, undeveloped, or non-farmed (i.e., not cultivated on an annual basis) and adjacent to forested lands, activities described in paragraphs (i)(3)(i)(A) through (C) of this section provided that:
          (A) Activities do not cause subsurface disturbance, including, but not limited to, wind-rowing, stumping, disking (except during firebreak creation or maintenance), root-raking, drum chopping, below-ground shearing, and bedding. In highly degraded areas with no herbaceous vegetation, subsurface disturbance will be limited to that less than 4 inches in depth.
          (B) Activities do not inhibit the persistence of suitable Louisiana pinesnake and Baird's pocket gopher habitat.

          Dated: March 12, 2018.
          James W. Kurth,
          Deputy Director, U.S. Fish and Wildlife Service, exercising the authority of the Director U.S. Fish and Wildlife Service.

      [FR Doc. 2018-07108 Filed 4-5-18; 8:45 am]
       BILLING CODE 4333-15-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [I.D. 110904D]
        RIN 0648-AS37
        Fisheries of the Exclusive Economic Zone Off Alaska; Aleutian Islands Directed Pollock Fishery

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

          ACTION:
          Notice of availability; request for comments.

          SUMMARY:
          The North Pacific Fishery Management Council (Council) has submitted Amendment 82 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). Amendment 82, if approved, would establish a framework for management of the Aleutian Islands subarea (AI) directed pollock fishery. This action is necessary to implement provisions of the Consolidated Appropriations Act of 2004 that require the directed pollock fishery in the AI to be allocated to the Aleut Corporation for economic development of Adak, Alaska. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the FMP, Consolidated Appropriations Act of 2004, and other applicable laws. Comments from the public are welcome.

          DATES:
          Comments on Amendment 82 must be received by close of business on January 18, 2005.

          ADDRESSES:
          Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Lori Durall. Comments may be submitted by:
          • Mail: P.O. Box 21668, Juneau, AK 99802;
          • Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK;
          • Fax: 907-586-7557; or
          • E-mail: BSA82NOA-0648-AS37@noaa.gov. Include in the subject line the following document identifier: AI pollock NOA. E-mail comments, with or without attachments, are limited to 5 megabytes.

          Copies of Amendment 82, the Environmental Assessment/Regulatory Impact Review (EA/RIR) for the amendment, and the 2000 and 2001 Biological Opinions on the groundfish fisheries may be obtained from the same address or from the Alaska Region NMFS website at www.fakr.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Melanie Brown, 907-586-7228 or melanie.brown@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The Magnuson-Stevens Act requires that each Regional Fishery Management Council submit any FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving a FMP amendment, immediately publish a notice in the Federal Register that the amendment is available for public review and comment.

        The Council adopted Amendment 82 in June 2004 and clarified it in October 2004. If approved by NMFS, this amendment would establish a framework for management of the AI directed pollock fishery.  The Consolidated Appropriations Act of 2004 (Public Law (Pub. L.) 108-199, Sec. 803) requires the AI directed pollock fishery to be allocated to the Aleut Corporation for economic development of Adak, Alaska. This action would establish the allocation of the directed pollock fishery to the Aleut Corporation and would specify the management provisions for this fishery.
        Public Law 108-199 requires the Aleut Corporation's selection of participants in the AI directed pollock fishery and limits participation to American Fisheries Act (AFA, Pub. L. 105-277, Title II of Division C) qualified entities and vessels equal to or less than 60 feet (18.3 m) in length overall (LOA) with certain endorsements. Section 803(b) restricts the annual harvest of pollock in the AI directed pollock fishery by vessels equal to or less than 60 feet (18.3 m) LOA to less than 25 percent until 2009, and to less than 50 percent prior to 2013. These vessels must receive 50 percent of the directed pollock fishery allocation starting in 2013 and beyond. An FMP amendment and associated regulatory amendments are needed to implement these and other measures necessary to manage this fishery pursuant to provisions specified in Pub. L. 108-199.
        Prior to Pub. L. 108-199, the AI directed pollock fishery was managed pursuant to the AFA. The AFA allocated the AI directed pollock fishery to specific harvesters and processors named in the AFA and specified in regulations at 50 CFR part 679. Public Law 108-199 allocates all of the AI directed pollock fishery to the Aleut Corporation. The implementation of Pub. L. 108-199 requires the amendment of AFA provisions in the FMP and in the regulations at 50 CFR part 679 to provide for the allocation of the AI directed pollock fishery to the Aleut Corporation and for the management of this fishery.
        The management provisions of Amendment 82 include:
        1. Allocation of the AI directed pollock fishery to the Aleut Corporation;
        2. Harvest specifications provisions including limits on the size of the annual total allowable catch (TAC) of pollock, the seasonal apportionment of pollock TAC, the Council's policy on the methods of funding the AI directed pollock fishery within the 2 million metric ton (mt) maximum annual optimum yield for groundfish of the BSAI, and the Council's policy on reallocating unharvested amounts of the AI pollock allocation to the Bering Sea pollock allocation;
        3. Fishery monitoring provisions including restrictions on having pollock from more than one area on a vessel at one time, observer and scale requirements, catch monitoring control plans for shoreside and stationary floating processors, and the Aleut Corporation's responsibilities for ensuring the harvest does not exceed the quotas;
        4. Limitations on the pollock allocation to AFA qualified vessels and to vessels equal to or less than 60 feet (18.3 m) LOA until 2013, when at least 50 percent of the allocation must be to vessels equal to or less than 60 feet (18.3 m) LOA;
        5. Reporting requirements; and
        6. A new AI Chinook salmon prohibited species catch limit and revisions to Chinook salmon savings areas closure requirements.

        Pollock is an important prey species for the endangered and threatened Steller sea lion populations. The Steller sea lion protection measures evaluated in the 2000 and 2001 Biological Opinions (see ADDRESSES) were considered in the development of the management provisions of Amendment 82. The protection measures for Steller sea lions include spatial and temporal dispersion of pollock harvest. The pollock fishing closure areas in the AI would remain unchanged under Amendment 82 to ensure spatial dispersion of fishing effort. To temporally disperse harvest of prey species, the Steller sea lion protection measures implemented in the BSAI apportion 40 percent of pollock harvest to the A season and 60 percent to the B season. Amendment 82 would continue to temporally disperse pollock harvest with no more than 40 percent of the acceptable biological catch (ABC) authorized to be harvested in the A season. The total harvest of pollock in the Bering Sea subarea, including any rollover of unharvested AI pollock, also would remain well below the ABC so that overall harvest would be in proportion to biomass and less likely to compete with Steller sea lions for prey. Both of these harvest provisions satisfy the intent of the Steller sea lion protection measures.

        Public comments are being solicited on proposed Amendment 82 through January 18, 2005. A proposed rule that would implement Amendment 82 will be published in the Federal Register for public comment at a later date, following NMFS' evaluation under the Magnuson-Stevens Act procedures. Public comments on the proposed rule must be received by the end of the comment period on the amendment in order to be considered in the approval/disapproval decision on the amendment. All comments received on the amendment by the end of the comment period, whether specifically directed to the amendment or to the proposed rule, will be considered in the approval/disapproval decision. Comments received after that date will not be considered in the approval/disapproval decision on the amendment. To be considered, comments must be received not just postmarked or otherwise transmitted by close of business on the last day of the comment period.

          Dated: November 10, 2004.
          Alan D. Risenhoover,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 04-25431 Filed 11-15-04; 8:45 am]
      BILLING CODE 3510-22-S