        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 224
        [Docket No. 150209121-5121-01]
        RIN 0648-XD760
        Endangered and Threatened Wildlife; Initial Finding on a Petition to Identify and Delist a Saint John River Distinct Population Segment of Shortnose Sturgeon Under the Endangered Species Act

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

          ACTION:
          Initial petition finding; request for information.

          SUMMARY:

          We (NMFS) announce an initial finding on a petition to identify the Saint John River population of shortnose sturgeon (Acipenser brevirostrum) as a distinct population segment (DPS) and delist this DPS from the Endangered Species Act. We have reviewed the petition, the references provided by the petitioner, and information readily available in our files, and we find that the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Therefore, we will conduct a status review of the shortnose sturgeon to determine if the petitioned actions are warranted. To ensure that our review is comprehensive, we are soliciting scientific and commercial information pertaining to this petition from any interested party.

          DATES:
          Information and comments on the subject action must be received by June 5, 2015.

          ADDRESSES:
          You may submit comments, information, or data on this document, identified by the code NOAA-NMFS-2015-0040, by either of the following methods:
          • Electronic Submissions: Submit all electronic comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0040, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.

          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. We accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous), although submitting comments anonymously will prevent us from contacting you if we have difficulty retrieving your submission.

          A copy of the petition and related materials are available upon request from the Director, Office of Protected Resources, 1315 East West Highway, Silver Spring, MD 20910, or online at: www.nmfs.noaa.gov/pr/species/fish/shortnose-sturgeon.html.

          FOR FURTHER INFORMATION CONTACT:
          Lisa Manning, Office of Protected Resources, 301-427-8466.

        SUPPLEMENTARY INFORMATION:

        Background

        On September 24, 2014, we received a petition from Dr. Michael J. Dadswell, Dr. Matthew K. Litvak, and Mr. Jonathan Barry regarding the population of shortnose sturgeon (Acipenser brevirostrum) native to the Saint John River in New Brunswick, Canada. The petition requests that we identify the Saint John River population of shortnose sturgeon as a distinct population segment (DPS) and contemporaneously delist this DPS from the Endangered Species Act.

          Acipenser brevirostrum was originally listed as an endangered species throughout its range by the U.S. Fish and Wildlife Service (USFWS) on March 11, 1967, under the Endangered Species Preservation Act (ESPA, 32 FR 4001). Shortnose sturgeon remained on the endangered species list when the U.S. Congress replaced ESPA by enacting the Endangered Species Conservation Act of 1969, which was in turn replaced by the Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531 et seq.). NMFS subsequently assumed jurisdiction for shortnose sturgeon under a 1974 government reorganization plan (39 FR 41370, November 27, 1974). In Canada, the shortnose sturgeon falls under the jurisdiction of the Department of Fisheries and Oceans (DFO) and was listed as a species of “special concern” under the Species at Risk Act (SARA) in 1980. The status under SARA was maintained following a 2005 assessment (COSEWIC 2005). Shortnose sturgeon is also listed under Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna (CITES).
        Statutory, Regulatory and Policy Provisions

        Section 4(b)(3)(A) of the ESA of 1973, as amended (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 the finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find that substantial scientific or commercial information in a petition indicates that the petitioned action may be warranted (a “positive initial finding” or “positive 90-day finding”), we are required to promptly commence a review of the status of the species concerned, which includes conducting a comprehensive review of the best available scientific and commercial information. Within 12 months of receiving the petition, we must conclude the review with a finding as to whether, in fact, the petitioned action is warranted (50 CFR 424.14(b)(3)). Because the finding at the 12-month stage is based on a significantly more thorough review of the available information, a “may be warranted” finding at this stage 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 that interbreeds when mature (16 U.S.C. 1532(16)). A joint policy issued by NMFS and the U.S. Fish and Wildlife Service (USFWS) clarifies the interpretation of the phrase “distinct population segment,” or DPS for the purposes of listing, delisting, and reclassifying a species under the ESA (“DPS Policy,” 61 FR 4722, February 7, 1996). The DPS Policy identifies two criteria for determining whether a population is a DPS: (1) The population must be “discrete” in relation to the remainder of the taxon (species or subspecies) to which it belongs; and (2) the population must be “significant” to the remainder of the taxon to which it belongs. Congress has instructed the Secretary to exercise authority to recognize DPS's “ * * * sparingly and only when the biological evidence indicates that such action is warranted.” (Senate Report 151, 96th Congress, 1st Session). In a recent decision, the United States District Court for the District of Columbia held that the ESA does not permit identification of a DPS solely for purposes of delisting. See Humane Soc'y v. Jewell, No. 13-186 (BAH), − F.3d. −, 2014 WL7237702 (D.D.C. December 19, 2014) (Western Great Lakes gray wolves). Because this is a single district court decision and may be appealed, we conclude it does not compel us to deny the present petition; however, we note that it highlights potential complications associated with the petitioned action.
        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, the determination of whether a species is threatened or endangered shall be based on any one or a combination of the following five section 4(a)(1) factors: The present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1); 50 CFR 424.11(c)).
        Under section 4(a)(1) of the ESA and the implementing regulations at 50 CFR 424.11(d), a species shall be removed from the list if the Secretary of Commerce determines, based on the best scientific and commercial data available after conducting a review of the species' status, that the species is no longer threatened or endangered because of one or a combination of the section 4(a)(1) factors. The regulations provide that a species listed under the ESA may be delisted only if such data substantiate that it is neither endangered nor threatened for one or more of the following reasons:
        (1) Extinction. Unless all individuals of the listed species had been previously identified and located, and were later found to be extirpated from their previous range, a sufficient period of time must be allowed before delisting to indicate clearly that the species is extinct.
        (2) Recovery. The principal goal of the USFWS and NMFS is to return listed species to a point at which protection under the ESA is no longer required. A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened.
        (3) Original data for classification in error. Subsequent investigations may show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error (50 CFR 424.11(d)).
        A determination whether to revise a species-level listing to recognize one or more DPSs in place of a species-level listing involves a judgment as to which approach for managing the species best furthers the purposes of the ESA. We will make that determination prior to making a final finding on the petition.

        At the initial finding stage on a petition to list, delist, or reclassify a species, the statute requires that we determine whether the petition has presented substantial scientific or commercial information indicating that the petitioned action may be warranted. See ESA section 4(b)(3)(A) (16 U.S.C. 1533(b)(3)(A)). ESA-implementing regulations issued jointly by NMFS and the USFWS (50 CFR 424.14(b)(1)) define “substantial information” as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. When evaluating whether substantial information is contained in a petition, we 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)).
        At the initial finding stage, we evaluate the petitioner's request based upon the information in the petition, including references provided, 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 petitioner's 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 which indicates that 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 initial finding stage, so long as it is reliable and a reasonable person would conclude that it supports the petitioner's assertions. In other words, conclusive information indicating that the species may meet the ESA's requirements for listing is not required to make a positive initial finding.

        Many petitions identify risk classifications made by other organizations, such as the International Union for 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 making an initial 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 of the ESA and our policies as described above.
        Species Description

        The shortnose sturgeon is a bony fish (Class Osteichthyes) that retains many primitive physical characteristics that reflect its ancient lineage. Distinctive features include a protective armor of bony plates called “scutes” that extend longitudinally from the base of the skull to the caudal peduncle; a subterminal, protractile tube-like mouth; and chemosensory barbels. The general body shape is cylindrical, tapering at the head and caudal peduncle, and the upper lobe of the tail is longer than lower lobe. Shortnose sturgeon vary in color but are generally dark brown to olive or black on the dorsal surface, lighter along the row of lateral scutes, and nearly white on the ventral surface. Adults have no teeth but possess bony plates in the esophagus that are used to crush hard prey items (Vladykov and Greeley 1963; Gilbert 1989). The skeleton is almost entirely cartilaginous with the exception of some bones in the skull, jaw and pectoral girdle. Maximum reported length is 1.43 m (total length, TL) and maximum reported weight is 23 kg (Dadswell 1984). Growth rates and maximum size display clinal variation, with the fastest growth rates and smallest maximum sizes occurring in southern populations. Shortnose sturgeon are benthic feeders, and their diet typically consists of small insects, crustaceans, mollusks, polychaetes, and small benthic fishes (McCleave et al. 1977; Dadswell 1979; Marchette and Smiley 1982; Dadswell et al. 1984; Moser and Ross 1995; Kynard et al. 2000; Collins et al. 2002).
        Shortnose sturgeon occur along the East Coast of North America in rivers, estuaries, and marine waters. The current species' range is thought to extend from the Saint John River in New Brunswick, Canada, south to the St. Johns River, Florida (NMFS 1998). Shortnose sturgeon are “anadromous,” meaning they are born in freshwater, migrate to the ocean, then migrate back into freshwater as adults to spawn. However, some shortnose sturgeon populations rarely leave their natal river or associated estuary.
        Shortnose sturgeon are relatively long-lived and slow to mature. Female sturgeon can live up to 67 years, but males seldom exceed 30 years of age. Males and females mature at about the same length, around 1.5-1.8 feet (45-55 cm), throughout their range. However, age at maturity varies across the range due the clinal variation in growth rates. Shortnose sturgeon also exhibit sexually dimorphic growth patterns across latitude: males mature at 2-3 years in Georgia and at 10-11 years in the Saint John River; females mature at 4-5 years in Georgia and at 12-18 years in the Saint John River (NMFS 2010). In general, males are thought to spawn every other year, but may spawn annually in some rivers (Kieffer and Kynard 1996; NMFS 1998). Females appear to spawn less frequently—approximately every three years to five years (Dadswell 1979).
        Analysis of the Petition
        The petition requests that we identify the Saint John River shortnose sturgeon (SJRSS) as a DPS and make a finding that this DPS does not meet the definition of threatened or endangered under the ESA. In effect, the petition requests the delisting of the SJRSS, which is currently part of the range-wide listing of shortnose sturgeon at the taxonomic level of species. The administrative actions requested in the petition are clear, and the petition is supported by a detailed narrative justification and appropriate references. The petition provides information regarding the status of, and threats to, the SJRSS. The petition does not request any DPS delineations or change in ESA status for the remainder of the species, and does not provide a discussion of the abundance, distribution, status or threats to shortnose sturgeon within the U.S. portion of the species' range. The Petitioners state that while they understand their petition may “trigger a range-wide status review of shortnose sturgeon,” they “respectfully request that the designation of the SJRSS population be treated independently and published on its own merits and schedule.”
        As stated previously, to be considered a DPS, a population must be both discrete from other populations of the species and significant to the species as a whole (61 FR 4722, February 7, 1996). Under the DPS Policy, a population may be considered “discrete” if it satisfies either one of the following conditions:
        (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.
        (2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA.

        The petition states that the SJRSS is markedly separated from other populations as a result of “geography, range, and physical constraints.” The petition does not specify, nor are we aware of, any “physical constraints” that preclude mixing of the Saint John River (SJR) population with other populations. However, the petition and references in our files suggest that there is no, or only limited, spatial overlap in the range of shortnose sturgeon from the SJR and rivers just to the south in Maine (e.g., Kennnebec, Androscoggin and Penobscot rivers). Separation of the SJR population from other shortnose populations is also supported by genetic data, which indicate limited interbreeding among some river populations. For example, Wirgin et al. (2009) assessed genetic differentiation among shortnose sturgeon from 14 river systems by comparing frequencies of mitochondrial DNA (mtDNA) control region haplotypes. The results of this analysis indicate that although 6 of 8 haplotypes in the SJR sample (N= 42 fish) are shared with other Gulf of Maine river samples, the SJR sample has significantly different haplotype frequencies than the other Gulf of Maine rivers (Wirgin et al. 2009). Female-mediated gene flow between the Penobscot River and the Saint John River was also estimated to occur at a low rate—only about 2 migrants per generation (Wirgin et al. 2009). A more recent study by King et al. (2014) using nuclear DNA provides additional indication that the SJRSS may be discrete from other river populations. King et al. (2014) used multiple approaches (principle component analysis and Bayesian clustering) to analyze data for 11 microsatellite loci for shortnose sturgeon from 17 sample populations (N= 561 total fish), including 25 fish from the SJR. The results suggest the existence of three metapopulations (Northeast, Mid-Atlantic, and South Atlantic), each with a different degree of genetic sub-structuring. The Northeast metapopulation, which encompasses the Merrimack, Androscoggin, Kennebec, Penobscot and Saint John rivers, was shown to have a moderate degree of differentiation into three groups: Merrimack, Androscoggin/Kennebec/Penobscot, and Saint John River. Estimates of the effective number of migrants per generation were very low among the three metapopulations (average ranged between 0.89-1.89), but were much higher within each metapopulation. For the Saint John River in particular, the estimated effective number of migrants per generation with the other rivers within the Northeast metapopulation ranged from 2.25-3.43 (King et al. 2014). Overall, we find that the SJRSS may be discrete from other populations based on the existing genetic data.

        The petition also asserts that the SJRSS can be considered “discrete,” because it is delimited by the U.S.-Canada border, on either side of which the species experiences significant differences in the control of exploitation, management of habitat, conservation status, and regulatory mechanisms. In support of this assertion, the petition points to the differing conservation status that shortnose sturgeon has under the ESA in the United States and the SARA in Canada. The shortnose sturgeon is listed as “endangered” under the ESA, and the SJRSS is listed as “special concern” under the SARA. Resulting differences include that under the ESA, all “take” of endangered species such as the shortnose sturgeon is prohibited, with take being defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” (16 U.S.C. 1532(19)); whereas, in Canada, under the Fisheries Act, all means of killing SJRSS are prohibited except for fishing (R.S.C.1985,c. F-14), which apparently results in virtually zero mortality due to conservative size restrictions on retention of shortnose sturgeon (COSEWIC 2005). Certain provisions of the ESA apply throughout the range of shortnose sturgeon to prohibit activities undertaken by persons subject to U.S. jurisdiction. See 16 U.S.C. 1538(a)(1)(A), (D)-(F). The petition does not provide additional information to clarify how the differences in the control of exploitation or regulation of the species within the two countries translate into meaningful differences for shortnose sturgeon or its habitat, nor does it explain how the management differences are significant with respect to section 4(a)(1)(D) of the ESA. We find that, while there is insufficient support to use the international boundary as a potential basis for considering the SJRSS “discrete,” the petition does provide sufficient information to indicate that the SJRSS may be discrete based on biological data; and therefore, we proceeded to evaluate information presented in the petition and the cited references with respect to the second criterion of the DPS Policy.
        Under the DPS Policy, if a population segment is found to be discrete, then its biological and ecological significance to the taxon to which it belongs is evaluated. This consideration may include, but is not limited to: (1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that the loss of the discrete population segment would result in a significant gap in the range of a taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; and (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics (61 FR 4722, February 7, 1996).
        The petition states that the SJRSS meets the “significance” criterion of the DPS Policy on the basis of all four of the considerations listed in the policy. First, the petition asserts that the SJRSS persists in a unique ecological setting, because it occurs at the northern extreme of the species' range. Second, the petition states that loss of this population would result in a significant gap in the range of the species, and, third, that the SJRSS is the “only known surviving natural occurrence of this DPS taxon in its historic range.” Lastly, the petition states that the SJRSS differs markedly from other populations of shortnose sturgeon in its genetic characteristics.

        We agree that the SJRSS may have markedly different genetic characteristics from other shortnose sturgeon populations, because it has some morphological, behavioral, and genetic differences from other populations. We do not, however, find sufficient information in the petition or cited references to suggest that the riverine, estuarine, or marine habitats of the SJRSS represent a unique ecological setting for the taxon. Supporting information provided in the petition pertained to the life history and habitat use patterns of Atlantic salmon and the Gulf of Maine region; this information is not particularly relevant or explanatory with respect to the uniqueness of SJRSS habitat or shortnose sturgeon. We also find relatively limited support in the petition and references provided to suggest that the loss of this particular population, which occurs at the northernmost portion of the species' range, would result in a significant gap in the species' range. The species is broadly distributed along the East Coast of North America and highly mobile; furthermore, estimated rates of migration are higher among rivers within the northeast region versus the mid-Atlantic region (King et al. 2014). Lastly, we find no support for the assertion that the SJRSS is the only surviving natural occurrence of shortnose sturgeon within its historical range. Shortnose sturgeon are present in at least 42 coastal rivers within the species' historical range (NMFS 2010). We also note that the terms “taxon” and “historical range” in the relevant context of the DPS Policy refer to the larger taxonomic entity, not the DPS under evaluation, as may have been assumed by the Petitioners.
        Overall, we conclude that the information presented in the petition and supporting references suggests that the SJRSS may meet the “discreteness” and the “significance” criteria of the DPS Policy and thus may qualify as a DPS. Therefore, we proceeded to review the petition and information readily available in our files to evaluate whether this potential DPS should continue to be protected under the ESA.

        The status of the SJRSS was most recently reviewed in 2005 by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), which is the official scientific body established under SARA responsible for assessing extinction risk of wildlife species in Canada. This most recent assessment concluded that the status of the SJRSS had not changed, and that the population still warranted a status of “special concern (SC),” which is defined under SARA as “a wildlife species that may become a threatened or endangered species because of a combination of biological characteristics and identified threats” (S.C. 2002, c. 29). The 2005 COSEWIC assessment also indicated that the SJRSS met the criterion for “threatened” under SARA based on criterion D2 (i.e., Canadian population with a very restricted index of area of occupancy or number of locations, based on presence in only one river) but was classified as SC because there were “no immediate threats” (COSEWIC 2005). The petition asserts that the SC classification under SARA indicates the SJRSS does not meet the definition of threatened or endangered under the ESA, and that the SC status under SARA is “substantially similar” to the non-regulatory “species of concern” designation that NMFS has extended to some species. NMFS “species of concern” are defined as those species about which we have some concerns regarding status and threats, but for which insufficient information is available to indicate a need to list the species under the ESA (69 FR 19975, April 15, 2004). Under SARA, a threatened species is defined as “a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction” (S.C. 2002, c. 29). A threatened species is defined in section 3 of the ESA as “. . . any species which is likely to become an endangered species within the foreseeable future throughout all or a portion of its range” (16 U.S.C. 1532(3)). While similar, these definitions are not equivalent and require interpretations of different terms. Furthermore, the processes and standards by which species are evaluated under each statute are not the same. Thus, while the “special concern” status under SARA is an indication that the SJRSS is not at immediate risk of extirpation, it remains unclear what status may be warranted for an SJRSS DPS under the ESA.

        The 2005 COSEWIC assessment states that incidental bycatch in fisheries, poaching, and habitat loss and degradation are threats to the SJRSS. The petition provides no data or references with which to evaluate the level or trends in bycatch or poaching. Habitat loss and degradation occur in the form of dams, impoundments, and water quality impacts stemming from urban, agricultural and industrial activities (COSEWIC 2005). The petition states that the largest threat to the SJRSS may be the Mactaquac Dam, which was completed in 1967 and is impassable by sturgeon. No studies have been conducted to evaluate the effect of the dam on spawning as a consequence of changes in water flow or temperature (COSEWIC 2005). Aboriginal knowledge also suggests that there has been a decline in the SJRSS since the Mactaquac Dam was constructed (COSEWIC 2005). There have also been no evaluations of the impact of contaminants on shortnose sturgeon in the SJR (COSEWIC 2005). However, water quality in the SJR, while still a significant concern in some areas, has improved since 2000, and many fish communities are healthy and stable (CRI 2011). The majority of the watershed is forested, and all municipalities, which are mostly small, now have sewage treatment capabilities (COSEWIC 2005). Overall, the information provided regarding threats to the SJRSS within its riverine and marine habitats is limited and difficult to fully assess.

        The only comprehensive population estimate available for consideration in connection with this finding for the SJRSS population comes from Dadswell's (1979) mark-recapture study in 1973-1977. Dadswell (1979) calculated a Jolly-Seber population estimate of 18,000 (± 30%) adults. Thus, the overall population trend is “unknown” (COSEWIC 2005). However, some evidence suggests the population has remained fairly stable since the 1970's. Size distributions and growth rates for sturgeon sampled in the SJR during 1998-2000 are similar to those measured and estimated for sturgeon sampled in 1973-1977 (COSEWIC 2005). Both time periods indicate a broad range of size and age-classes. A possible indicator of the stability of the SJRSS mentioned in the petition is the stable catch of adult shortnose sturgeon in a 26-year old annual fishing derby on the Kennebecasis River, a tributary of the Saint John. Catch records or some assessment of the catch records from this tournament were not provided in the petition or supporting references, so this statement is difficult to verify at this time. More recent studies conducted in overwintering areas have produced partial adult population estimates of 4,836 ± 69 in 2005 and 3,852-5,222 in 2009 and 2011, indicating persistence at the overwintering sites over this time period and suggesting stable abundance (Li et al. 2007; Usivyatsov et al. 2012). Interestingly, the range of the SJRSS has also recently been scientifically recognized as extending to include the waters off of Nova Scotia: Dadswell et al. (2013) recently confirmed the presence of an adult shortnose sturgeon in the Minas Basin, which is about 165 km from the mouth of the SJR. Fishers also report that they have been catching 1-2 shortnose sturgeon in their weirs during the past decade (Dadswell et al. 2013). Lastly, Stokesbury et al. (2014) used an index called the “Species Ability to Forestall Extinction Index,” or SAFE index, to characterize the SJRSS risk of extinction and concluded that this population was above the authors' particular threshold for “threatened,” which was based on an assumed minimum viable population of 5,000 adults. Because there have been no comprehensive surveys of the SJRSS since the 1970s, Stokesbury et al. (2014) also assumed an adult population size of 18,000 based on the 1973-1977 study by Dadswell (1979) in order to calculate the index for the SJRSS. Overall, while data are lacking with respect to current population abundance and trends, the available evidence suggests that the population has remained stable since the 1970s and is not at high risk of extirpation.
        In summary, we find that the shortnose sturgeon within the Saint John River in New Brunswick, Canada, may meet the “discreteness” and “significance” criteria of the DPS Policy (61 FR 4722, February 7, 1996) and thus may qualify as a DPS. We also find that, given the available information regarding the seemingly stable and thus potentially sufficiently high abundance of the shortnose sturgeon in the SJR, the SJRSS, if considered on its own, may not meet the criteria for listing under the ESA. Revisions to the current species-level listing for shortnose sturgeon therefore may be warranted, if we determine it would best further the purposes of the ESA. While there is substantial uncertainty regarding the current population size, trends, and threats, we conclude that the petition and references provide sufficient indication that the petitioned action may be warranted.
        Petition Finding
        After reviewing the information contained in the petition, as well as information readily available in our files, we conclude that the petition presents substantial scientific or commercial information indicating the petitioned actions may be warranted for the SJRSS. We hereby announce the initiation of a status review to determine whether the petitioned population meets the DPS criteria and whether the current species-level listing should be revised.
        Information Solicited
        To ensure that the status review is based on the best available scientific and commercial data, we are soliciting information relevant to the petitioned actions. Specifically, we are soliciting data and information, including unpublished data and information, in the following areas: (1) Recent genetic analyses of populations of shortnose sturgeon; (2) current distribution and abundance of shortnose sturgeon range-wide; (3) movements, migratory patterns and habitat use of shortnose sturgeon along the northeast coast of the United States and in Canadian waters; (4) historical and current population trends for shortnose sturgeon within the Saint John River; (6) past, current and future threats, including bycatch rates and any current or planned activities that may adversely impact the SJRSS; (7) ongoing or planned efforts to protect and restore the SJRSS and their habitat; 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 to the Office of Protected Resources (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: March 31, 2015.
          Eileen Sobeck,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 2015-07833 Filed 4-3-15; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 635
        [Docket No. 001113318-2297-02; I.D. 110200D]
        RIN 0648-AO75
        Atlantic Highly Migratory Species; Incidental Catch Requirements of Bluefin Tuna

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

           NMFS proposes to amend regulations governing the Atlantic bluefin tuna (BFT) fishery as they affect landing of BFT in the Atlantic pelagic longline fishery.  The intent of this action is to minimize dead discards of BFT and improve management of the Atlantic pelagic longline fishery, while complying with the National Standards of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and allowing harvest consistent with recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT).  NMFS will hold public hearings to receive comments from fishery participants and other interested members of the public regarding these issues.  Public hearings on this proposed rule will be announced in a separate Federal Register document.

          DATES:
          Written comments on the proposed rule must be received by 5 p.m. on February 7, 2003.

          ADDRESSES:
          Comments on the proposed rule should be sent to, and copies of the Draft Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) may be obtained from Brad McHale, Highly Migratory Species Management Division, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA, 01930.  These documents are also available from the Highly Migratory Species Division website at www.nmfs.noaa.gov/sfa/hmspg.html.  Comments also may be sent via facsimile (fax) to 301-713-1917.  Comments will not be accepted if submitted via e-mail or on the Internet.

          FOR FURTHER INFORMATION CONTACT:
          Brad McHale or Dianne Stephan, 978-281-9260.

        SUPPLEMENTARY INFORMATION:

        The U.S. Atlantic highly migratory species (HMS) fisheries are managed under the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP).  Implementing regulations at 50 CFR part 635 are issued under the dual authority of the Magnuson-Stevens Act (codified at 16 U.S.C. 1801 et seq.) and the Atlantic Tunas Convention Act (ATCA; codified at 16 U.S.C. 971 et seq.).  Regulations issued under the authority of ATCA carry out the recommendations of ICCAT.
        Management of Bluefin Tuna
        The first ICCAT management recommendations for Atlantic BFT were adopted in 1974, and established a minimum size and limited fishing mortality to then recent levels.  With the passage of ATCA in 1975, the United States took action to comply with the ICCAT recommendations and limited U.S. harvest by imposing quotas and size limits.  In spite of the ICCAT recommendations and U.S. compliance with these recommendations, western Atlantic BFT stock abundance continued to decline.  In 1981, NMFS prohibited the use of longlines for a directed BFT fishery and implemented an incidental catch limit for two geographically distinct areas where different BFT catch limits would apply (46 FR 8012, January 26, 1981).  After conducting a series of stock assessments, ICCAT's scientific body, the Standing Committee on Research and Statistics, recommended in 1981 that catches from the western Atlantic stock be severely reduced to as near zero as possible to stem the decline of the stock.  Based on this recommendation, allowable landings of western Atlantic bluefin have been restricted since 1982.  Also in 1982, an ICCAT consultation among officials representing the governments of Brazil, Canada, Japan, and the United States agreed, inter alia, that there be no directed fishery on the spawning stock of Atlantic bluefin tuna in the Gulf of Mexico.  Domestic regulations to carry out the ICCAT recommendations were implemented in 1982 and 1983, which included designating authorized gears and quotas for the established fisheries.
        The U.S. Atlantic Pelagic Longline Fishery
        The U.S. Atlantic pelagic longline fishery is a multi-species fishery that operates throughout the western Atlantic Ocean, the Gulf of Mexico, and the Caribbean Sea.  Pelagic longline gear is composed of several parts.  The primary fishing line, or mainline of the longline system, can vary from five to 40 miles in length, with approximately 20 to 30 hooks per mile.  Each individual hook is connected by a leader to the mainline.   Pelagic longline gear and fishing method can be modified to target certain species, most commonly swordfish and yellowfin and bigeye tunas.  At least 30 different species have been recorded as caught in this gear throughout the range of the fishery.  Many of the non-target species are landed and sold.  However, some of those species are discarded as bycatch (dead or alive) for economic or regulatory reasons.  Bluefin tuna are one such incidentally caught species that are marketable but may be discarded when required by regulations on landings restrictions.
        Incidental Catch Regulations
        Since 1977, NMFS has implemented a series of management measures designed to regulate the incidental catch of BFT in non-directed Atlantic fisheries.  In 1981, NMFS prohibited the use of longlines for a directed BFT fishery, implemented incidental catch limits, and established northern and southern management areas where different catch limits applied (46 FR 8012, January 26, 1981).  Longline fishermen were restricted to two BFT per vessel per trip in the southern region and two percent by weight of all other fish on board in the northern region.  In 1982, ICCAT recommended a ban on directed fishing for BFT in the Gulf of Mexico.  Over the following decade, the value of BFT increased dramatically and fishing practices evolved with respect to incidental catch of BFT.  In response, NMFS established various strategies to discourage pelagic longline vessels from developing a target fishery for this valuable species while allowing for the retention of incidentally caught BFT.
         In 1992, as BFT continued to be released as bycatch in the longline fishery and most of those fish were reported as being discarded dead, NMFS determined that existing catch limits in the southern region (up to two BFT per trip, without any requirement that BFT be landed in conjunction with other species) were not effective at reducing the incentive to target BFT, and target catch requirements were implemented (57 FR 365, January 6, 1992).  NMFS required longline vessels to land, offload, and sell at least 2,500 lbs. (1,136 kg) of other species as a condition for landing a maximum of one BFT.  NMFS continued to evaluate bycatch in the longline fishery, and, consistent with objectives of preventing a target fishery while allowing for retention of incidental catch, moved the boundary line for the northern and southern areas from 36o N. Latitude to 34o N. Latitude and further altered the southern area target catch requirements in 1994 (59 FR 2814, January 19, 1994).

        The current target catch requirements, unchanged since 1994,  restrict longline vessels to one fish per vessel per trip in the southern region (south of 34o N. Latitude) with a minimum of 1,500 lbs. (680 kg) of other fish landings from January through April, and 3,500 lbs. (1,588 kg) of other fish landings from May through December.  North of 34o N. Latitude, BFT landings by longline vessels are restricted to two percent by weight of all other landed catch.  Despite efforts to alter target catch requirements and adjust geographic management areas, bycatch and discards of BFT by U.S. pelagic longline vessels have continued.  Consequently, NMFS has continued to evaluate management alternatives to achieve a balance between allowing the retention of truly incidentally caught BFT while preventing a directed fishery and reducing discards.
        Bycatch Reduction
        In 1999, NMFS published the HMS FMP and implementing regulations (64 FR 29090, May 28, 1999), which included a measure to close an area of ocean off the Mid-Atlantic Bight to longline fishing during the month of June in an attempt to minimize bycatch of BFT and ensure compliance with ICCAT recommendations.  The HMS FMP also considered, but did not implement, further modifications to target catch requirements because of the difficulty in determining catch levels and landings allowances that would likely reduce dead discards.  The lack of correlation between the level of target catch and bluefin tuna discards indicated that bluefin tuna catches were truly incidental.  While an area closure was selected as the most expedient means of reducing dead discards, NMFS also concluded that future analyses of catch rates may provide guidance for a change in the target catch requirements.

        Since that time, NMFS has continued to evaluate alternatives to achieve a balance between minimizing bycatch (i.e., allowing retention of BFT) and discouraging directed longline fishing effort on BFT.  Members of the pelagic longline industry have commented that the target catch requirements are overly restrictive, resulting in excessive dead discards of incidentally caught BFT.  Consequently, the Longline category BFT quota is not being landed, which then results in additional mortality as unused Longline category quota is transferred to other BFT fishing categories.
        NMFS analyzed additional data on the landing patterns of longline vessels, and published an Advance Notice of Proposed Rulemaking (ANPR) (65 FR 69492, November 17, 2000).  Highly Migratory Species Advisory Panel (AP) members discussed the target catch requirements at their meetings in April 2001 and April 2002, and generally favored modifying the target catch requirements to minimize bycatch of BFT in the pelagic longline fishery.  However, AP members cautioned against adjusting target catch requirements in such a way that would provide an incentive to target BFT with pelagic longline gear.
        Evaluation of Existing Regulations
        In the 2001 and 2002 Stock Assessment and Fishery Evaluation (SAFE) Reports, NMFS evaluated the effectiveness of the June closed area in minimizing discards of BFT.  The available data, based on logbooks submitted by fishermen, indicate a substantial decline in BFT bycatch throughout the year, indicating the closed area may be effective at reducing dead discards.
        The BFT Longline category is allocated 8.1 percent of the total U.S. BFT landings quota.  The Longline category quota is split between northern and southern areas, with 78.9 percent allocated to the southern area and 21.1 percent allocated to the northern area.
        Estimates of dead discards for 2000 fishing year totaled 30 metric tons (mt).  In 1997 and 1998, discards were higher proportionally (dead discards to BFT landed) in the northern area compared to the southern area (mostly Gulf of Mexico), but this relationship changed in 1999 and 2000, where a higher proportion of the dead discards being reported through the pelagic logbook occurred in the southern area.
        NMFS evaluated observer data for 1998-2000, which indicate that two or less BFT were caught on 88 percent of all longline trips.  In addition, over this same time period, median values for landed catch (not including BFT) by pelagic longline vessels were approximately 3,000 lbs. (1,361 kg) in the southern region in the winter and early spring (January through April) and 3,500 lbs. (1,588 kg) in that area in May through December.  Median landings in the northern area throughout the year were 3,800 lbs. (1,724 kg).  Target catch and dead discards information was used in developing potential alternatives to the current target catch requirements.
        Alternatives Considered
        In addition to taking no action at this time, NMFS considered various combinations of catch limits for the northern and southern areas including:  (1) requiring 3,500 lbs. (1,588 kg) of catch for one BFT to be landed in the northern area but no change to the southern area requirements; (2) requiring 3,500 lbs. (1,588 kg) of catch for one BFT to be landed, and 6,000 lbs. (2,722 kg) of other catch to land two BFT in the northern area, but no change to the southern area requirements; (3) the same as (2) for the northern area, but also allowing two BFT to be landed on a trip with 6,000 lbs. (2,722 kg) of other catch in the southern area; (4) lowering minimum target catch requirements in all areas, at all times, to 2,000 lbs. (907 kg) to retain one BFT and 6,000 lbs. (2,722 kg) to retain two BFT (the preferred alternative); and (5) lowering minimum target catch requirements in all areas, at all times, to 1,500 lbs. (680 kg) to retain one BFT and 6,000 lbs. (2,722 kg) to retain two BFT.
        NMFS prefers to alter the target catch requirements for both geographic management areas to reduce dead discards of BFT in all areas.  NMFS therefore does not prefer alternatives which take no action or do not affect the southern area limit.  In addition, landings per trip do not differ between the southern and northern areas as much as they have in the past, and similar retention limits for the different areas now seem warranted.  The alternative that would lower the target catch requirements to 1,500 lbs. (680 kg) in all areas at all times may result in the longline incidental catch quota of BFT being filled quickly, which could lead to subsequent discarding of BFT, and is therefore is not preferred.  The preferred alternative would require 2,000 lbs. (907 kg) of other fish landings to retain one BFT, and 6,000 lbs. (2,722 kg) of other fish landings to retain two BFT, in all areas.
        The preferred alternative would maintain a boundary line between the northern and southern areas to account for seasonal differences in the fisheries and prevent one area from consuming all the incidental longline quota, but would move the boundary line to an area with little longline fishing activity nearby and adjust the longline quota subdivision to reflect the change in areas.  Seasonal differences in bluefin tuna migration patterns between northern feeding migrations and southern spawning migrations affect fishing interaction rates and the condition of the fish in terms of fat content and ability to survive the capture experience.  Any division line should account for such seasonal differences in the fisheries and correspond with interaction rates to ensure that catches are incidental and do not result in excess discards.  In addition, any division line should not be near an area where fish are usually landed, i.e., it should be clear that fish caught in a particular area will be landed in that area.  The North/South boundary line is proposed to be moved to 31&00′ N. Latitude, near Jekyll Island, Georgia, and the North/South quota subdivision within the Longline category would be adjusted to allocate 30 percent to the northern area and 70 percent to the southern area.

        Impacts of the Preferred Alternative
        The preferred alternative would likely result in a reduction in BFT discards in all areas, and would allow longline fishermen fishing in the northern area to retain a BFT on more trips.  It would also allow more BFT to be landed by fishermen in the southern area, but only if they retain 6,000 lbs. (2,722 kg) of other fish species on a trip.  The preferred alternative is estimated to reduce discards of BFT by longline vessels by 23.5 percent on a coastwide basis.  In addition, it is estimated that the preferred alternative would allow longline vessels to retain an additional 38 mt of BFT coastwide, an increase of approximately 60 percent from 2000 levels but still within the quota allocated for incidental catch.
        The positive economic impacts of this alternative are likely to be felt by pelagic longline fishermen in all areas.  Gross revenues and net revenues to pelagic longline vessels would increase as a result of the increased landings of BFT.  While revenues from BFT would increase by an amount similar to the increase in landings, the overall increase in revenues to the longline fishery would be relatively small (about 1.1 percent), as BFT make up only a small percentage of longline catch and landings.  However, overall, no net increase in BFT revenues is expected because total BFT landings for all fishing categories will not increase.  In past years, the BFT quota not actually landed by pelagic longline vessels has been transferred to and landed by vessels in other fishing categories but total BFT landings are limited by the overall total allowable catch (TAC) system through which the United States is issued annual quotas.
        This alternative may have some positive impacts on the western Atlantic BFT stock because total mortality should decrease.  The preferred alternative would maintain BFT landings by pelagic longline vessels within the previously established Longline category BFT quota.  However, because discards would likely decrease, the United States would use less of its dead discard allowance, which would have positive impacts on the stock as, per the ICCAT recommendation, half the unused portion of the dead discard allowance cannot be carried over to future years and is, in that sense, invested in stock rebuilding.  The preferred alternative would also likely reduce the extent of reallocating unused longline BFT quota to other categories, as the longline fishery will likely land more of its quota.  Such reallocation is consistent with legislative requirements to allow U.S. fishermen the opportunity to land the U.S. quota, but has led to increased overall mortality, as BFT that could not be landed (and a proportion were discarded dead) by pelagic longline vessels were transferred to and landed by other fishing categories.
        Because pelagic longline fishermen routinely catch BFT incidental to other fishing operations, this alternative would not likely result in increased pelagic longline effort and therefore would not affect catches or discards of other managed finfish species or increased interaction with protected species.
        Inseason Adjustments

        Currently, regulations provide the authority for NMFS to adjust the BFT retention limits in the Angling and General categories during the fishing season by publishing a notice in the Federal Register and providing three days advanced notice.  The preferred alternative would provide NMFS with similar authority for BFT retention limits in the Longline category.  Specifically, NMFS could adjust the BFT retention limits for pelagic longline vessels by number over a range from zero to three fish per trip and/or by weight within 25 percent of the target catch requirements (e.g., 2,000 lbs. to 2,500 lbs.).
        The purpose of providing NMFS inseason adjustment authority for BFT retention by longline vessels would be to increase the likelihood of meeting the management objectives for the BFT fishery on an inseason basis.  This authority would provide NMFS with the additional ability to achieve a balance between allowing the retention of truly incidentally caught BFT while preventing a directed fishery, reducing discards, and keeping all BFT fisheries within their allocated quotas.  This balance can be affected by variation in BFT abundance and migration patterns.  Thus, inseason adjustment authority would enhance NMFS' ability to reduce discards while ensuring that landings are maintained within the quota.
        Classification
        This proposed rule is published under the authority of the Magnuson-Stevens Act and ATCA.  The Assistant Administrator for Fisheries, NOAA (AA), has preliminarily determined that the regulations contained in this rule are necessary to implement the recommendations of ICCAT and to manage the domestic Atlantic highly migratory species fisheries.
        NMFS has prepared an Initial Regulatory Flexibility Analysis (IRFA) for this proposed rule and has requested comments from the Chief Counsel for Advocacy of the Small Business Administration.  A summary of the IRFA follows:

          The annual gross revenues from the Atlantic pelagic longline fishery are approximately $29 million.  There are approximately 171 pelagic longline vessels that are permitted to retain Atlantic tunas and swordfish, all of which are considered small entities, and average annual gross revenues per vessel are approximately $168,000.  The analyses for the IRFA assume that all pelagic longline vessels have similar levels of catch and gross revenues.  While this may not be true, the analyses are sufficient to show the relative impact of the various alternatives on vessels.  NMFS considered five alternatives regarding changing the target catch requirements for bluefin tuna retention by pelagic longline vessels:  (1) no action/status quo; (2) adjusting the target catch requirements to allow pelagic longline vessels landing north of 34o N. latitude to land one bluefin tuna per trip, provided they also land 3,500 lbs. of other catch from the same trip; (3) adjusting the target catch requirements to allow pelagic longline vessels landing north of 34o N. latitude to land one bluefin tuna per trip, provided they also land 3,500 lbs. of other catch from the same trip, or two bluefin tuna per trip, provided they also land 6,000 lbs. of other catch from the same trip; (4) adjusting the target catch requirements to allow pelagic longline vessels in all areas to land one bluefin tuna per trip, provided they also land 3,500 lbs. of other catch from the same trip, or two bluefin tuna per trip, provided they also land 6,000 lbs. of other catch from the same trip, with pelagic longline vessels landing south of 34o N. latitude allowed to land their one bluefin tuna per trip with only 1,500 lbs. of other fish from the same trip from January through April; (5) adjusting the target catch requirements to allow pelagic longline vessels in all areas and times to land one bluefin tuna per trip, provided they also land 2,000 lbs. of other catch from the same trip, or two bluefin tuna per trip, provided they also land 6,000 lbs. of other catch from the same trip (preferred alternative); and (6) adjusting the target catch requirements to allow pelagic longline vessels in all areas and times to land one bluefin tuna per trip, provided they also land 1,500 lbs. of other catch from the same trip, or two bluefin tuna per trip, provided they also land 6,000 lbs. of other catch from the same trip.

          NMFS separated out pelagic longline vessels into three groups:  vessels homeported in the northern area that landed more than one bluefin tuna on an individual trip during 1998-2000; vessels homeported in the northern area that landed one or less bluefin tuna on individual trips during 1998-2000; and vessels homeported in the southern area.  Northern area vessels were separated into two groups because Alternative 2 would have a negative impact on the vessels that landed more than one bluefin tuna on a particular trip, as it would only allow retention of one bluefin tuna per trip in the northern area, whereas the status quo does not limit the number of bluefin tuna so long as the percentage of bluefin tuna did not exceed two percent of the weight of the other landings.  During 1998-2000, six vessels landed more than one bluefin tuna on individual trips, and two vessels landed two bluefin tuna twice (total of eight trips).  For these analyses, NMFS assumed that these six vessels would each have a trip in which they would have been able to land two bluefin tuna under the status quo.
          The change in annual gross revenues for pelagic longline vessel as a result of the various alternatives to adjust the target catch requirements was estimated by calculating the difference in the number of bluefin tuna that could be retained by the particular group of vessels, multiplying that number of fish by the average weight and price per pound for that area during 2000.  In the northern area, the average weight of bluefin tuna landed by longline vessels in 2000 was 456 lbs., and the average per pound was $5.56, for an estimate of $2,535 per fish.  In the southern area, the average weight of bluefin tuna landed by longline vessels in 2000 was 537 lbs., and the average price per pound was $5.31, for an estimate of $2,851 per fish.
          For Alternative 2, vessels in the northern area would land 72 bluefin tuna, 16 more than were landed in 2000.  Using the average weight and price information for the northern area, the revenues from the additional 16 fish were divided among the 102 vessels in the northern area, for an average increase in gross revenues of $398.  For the six vessels that could have landed two bluefin tuna on a trip however, these vessels would lose the revenues from the second bluefin tuna, $2,535.  Thus, the change in gross revenues for each of these six vessels would be -$2,137 ($398 - $2,535), approximately a -1.2% change.  Vessels in the southern area would not experience any change in revenues under this alternative, as the target catch requirements would not change.  The impacts on revenues for the other alternatives were estimated in a similar manner.  Other than Alternative 2, no alternative would have a negative impact on any vessel in the pelagic longline fishery, but even Alternative 2 would have a positive impact on all but a few vessels.  Alternatives 4, 5 (preferred alternative), and 6 would have a positive impact on revenues for vessels in all areas.   Thus, only one non-preferred alternative considered would have negative economic impacts; all preferred alternatives would minimize current negative impacts such that consideration of significant alternatives to minimize impacts to small entities is unnecessary.
          NMFS considered three alternatives regarding moving the North/South division line and reallocating Longline category bluefin tuna quota including (1) no action/status quo; (2) moving the Longline category North/South division line to 31°00′ N. latitude near Jekyll Island, Georgia, and adjusting the Longline category subquotas to allocate 70 percent to the southern area and 30 percent to the northern area (preferred alternative); and (3) eliminating the Longline category North/South division line and establish one quota for the Longline category for all areas.  Alternatives 1 and 2  should not have any direct impact on small entities, although Alternative 2 should address current confusion regarding applicability of regulations and could help prevent negative impacts on small entities due to closures.  Alternative 3 could have negative impacts if a fishery closure occurred.
          NMFS considered three alternatives regarding providing NMFS with inseason authority to modify bluefin tuna retention limits by pelagic longline vessels including (1) no action/status quo; (2) providing NMFS with authority to adjust the bluefin tuna retention limits for pelagic longline vessels from a range of zero to three fish per trip; and (3) providing NMFS with authority to adjust the bluefin tuna retention limits for pelagic longline vessels by number from a range of zero to three fish per trip and by weight within 25 percent of the target catch requirements (preferred alternative).  None of these three alternatives should have any direct impact on small entities because the total bluefin tuna quota is not changed.  The preferred alternative, however, which would provide NMFS with inseason authority, could help prevent negative impacts on small entities due to closures.

        NMFS prepared a draft EA for this proposed rule, and the AA has preliminarily concluded that there would be no significant impact on the human environment if this proposed rule were implemented.  The EA presents analyses of the anticipated impacts of these proposed regulations and the alternatives considered.  A copy of the EA and other analytical documents prepared for this proposed rule, are available from NMFS (see
          ADDRESSES).
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        On September 7, 2000, NMFS reinitiated formal consultation for all HMS commercial fisheries under section 7 of the Endangered Species Act.  A Biological Opinion (BiOp) issued June 14, 2001, concluded that continued operation of the Atlantic pelagic longline fishery is likely to jeopardize the continued existence of endangered and threatened sea turtle species under NMFS jurisdiction.  On July 9, 2002 (67 FR 45393), NMFS implemented the reasonable and prudent alternative required by the BiOp.  None of the actions in this proposed rule are expected to have any additional impact on sea turtles as these actions are not likely to increase or decrease pelagic longline effort, nor are they expected to shift effort into other fishing areas.

          List of Subjects in 50 CFR Part 635

        Fisheries, Fishing, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Statistics, Treaties.

          Dated:  December 17, 2002.
          William T. Hogarth,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

          For the reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows:

            PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES

          1.  The authority citation for part 635 continues to read as follows:

            Authority:
            16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

          2.  In § 635.23, paragraph (f) is revised to read as follows:

            § 635.23
            Retention limits for BFT.
            (f) Longline category. Persons aboard a vessel permitted in the Atlantic Tunas Longline category may retain, possess, land, and sell large medium and giant BFT taken incidentally in fishing for other species. For vessels fishing North or South of 31°00′ N. lat., limits on retention, possession, landing and sale are as follows:
            (1) One large medium or giant BFT per vessel per trip may be landed, provided that at least 2,000 lb (907 kg) of species other than BFT are legally caught, retained, and offloaded from the same trip and are recorded on the dealer weighout slip as sold.  Two large medium or giant BFT per vessel per trip may be landed, provided that at least 6,000 lb (2,727 kg) of species other than BFT are legally caught, retained, and offloaded from the same trip and are recorded on the dealer weighout slip as sold.

            (2) NMFS may increase or decrease the Longline category retention limit of large medium and giant BFT over a range from zero to a maximum of three per trip, or, for a given BFT retention limit, increase or decrease the target catch requirement by 25 percent from the level specified in paragraph (f)(1) of this section.  Such increase or decrease in the BFT retention limit or target catch requirement will be based on a review of dealer reports, observer reports, vessel logbooks, landing trends, availability of the species on the fishing grounds, and any other relevant factors, and will consider the likelihood of increasing dead discards of BFT and/or exceeding the incidental landings quota established for the pelagic longline fishery.  Such adjustments may be made separately for vessels fishing North or South of 31°00′ N. lat.  NMFS will adjust the retention limits and target catch requirements specified in paragraph (f)(1) of this section by filing with the Office of the Federal Register for publication notification of the adjustment.  Such adjustment will not be effective until at least 30 calendar days after notification is filed with the Office of the Federal Register for publication.

          3.  In § 635.27, paragraph (a)(3) is revised to read as follows:

            § 635.27
            Quotas.
            (a) * * *
            (3) Longline category quota. The total amount of large medium and giant BFT that may be caught incidentally and retained, possessed, or landed by vessels for which Longline category Atlantic tunas permits have been issued is 8.1 percent of the overall U.S. BFT quota.  No more than 70.0 percent of the Longline category quota may be caught, retained, possessed, or landed in the area south of 31°00′ N. lat.

      [FR Doc. 02-32431 Filed 12-23-02; 8:45 am]
      BILLING CODE 3510-22-S