        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [FWS-R8-ES-2008-0045; MO 922105 0083-B2]

        Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List the San Francisco Bay-Delta Population of the Longfin Smelt (Spirinchus thaleichthys) as Endangered

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of 12-month petition finding.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the San Francisco Bay-Delta population of the longfin smelt (Spirinchus thaleichthys) as endangered with critical habitat under the Endangered Species Act of 1973, as amended (Act). After a thorough review of all available scientific and commercial information, we find that the San Francisco Bay-Delta population of the longfin smelt does not meet our definition of a distinct population segment (DPS), as identified in our DPS policy (61 FR 4721, February 7, 1996). As a result, listing the species as a DPS is not warranted. However, we are initiating a status assessment of the longfin smelt, and we solicit information on the status of the species range wide.

          DATES:
          The finding announced in the document was made on April 9, 2009.

          ADDRESSES:
          This finding is available on the Internet at http://www.regulations.gov and http://www.fws.gov/sacramento. Supporting documentation we used in preparing this finding are available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, Sacramento, CA 95825; telephone 916-414-6600; or facsimile 916-414-6712. Please submit any new information, materials, comments, or questions concerning this finding to the above street address or fax.

          FOR FURTHER INFORMATION CONTACT:

          For information on this finding, contact Susan Moore, Field Supervisor, or Arnold Roessler, Listing Program Coordinator, of the Sacramento Fish and Wildlife Office (see ADDRESSES). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Background
        Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.) requires that, for any petition containing substantial scientific and commercial information indicating that listing may be warranted, we make a finding within 12 months of the date of our receipt of the petition on whether the petitioned action is: (a) not warranted, (b) warranted, or (c) warranted, but the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether any species is threatened or endangered, and expeditious progress is being made to add or remove qualified species from the Lists of Endangered and Threatened Wildlife and Plants. Such 12-month findings are to be published promptly in the Federal Register. This finding is based on our determination, based on the limited evidence available, that the San Francisco Bay-Delta population of longfin smelt is not a valid distinct population segment (DPS) under our Distinct Population Segment Policy (61 FR 4721, February 7, 1996), and, therefore, cannot be considered a listable entity under section 3(16) of the Act.
        Previous Federal Actions
        On August 8, 2007, we received a petition from the Bay Institute, the Center for Biological Diversity, and the Natural Resources Defense Council to list the San Francisco Bay-Delta population of the longfin smelt as a distinct population segment (DPS) and designate critical habitat for the species concurrent with the listing. The petition was clearly identified as a petition for a listing rule and contained the names, signatures, and addresses of the requesting parties. On May 6, 2008, we published a 90-day finding (73 FR 24911) in which we concluded that the petition provided substantial information indicating that listing San Francisco Bay-Delta Population of the longfin smelt as a DPS may be warranted, and we initiated a status review. However, in that notice, we did not make a final determination that the San Francisco Bay-Delta Population of the longfin smelt was a DPS; we only stated that the petition presented substantial information indicating that listing as a DPS may be warranted and that we would finalize our determination in our status review. This notice constitutes the 12-month finding on the August 8, 2007, petition to list the San Francisco Bay-Delta population of the longfin smelt as a DPS and designate critical habitat for the species concurrent with the listing.
        Species Description
        The following species description is taken from U.S. Fish and Wildlife Service 1995, p. 47, except where cited otherwise. Longfin smelt is a pelagic (lives in open water), estuarine fish that typically measures 3.5 to 4.3 inches (in) (90-110 millimeters (mm)) standard length, although third-year females may grow up to 5.9 in (150 mm) (Moyle 2002, p. 236). The sides and lining of the gut cavity appear translucent silver, the back has an olive to iridescent pinkish hue, and mature males are usually darker in color than females. Longfin smelt can be distinguished from other smelts in California by their long pectoral fins, incomplete lateral line, weak or absent striations on their opercular (covering the gills) bones, low numbers of scales in the lateral series (54 to 65), and long maxillary bones (in adults, these bones extend just short of the posterior margin of the eye).
        Taxonomy

        The longfin smelt belongs to the true smelt family Osmeridae, and is one of three species in its genus; the night smelt (Spirinchus starksi) co-occurs in California and the shishamo (S. lanceolatus) occurs in northern Japan (McAllister 1963, pp. 10 and 15). Because of its distinctive characteristics, the San Francisco Bay-Delta population of longfin smelt was once described as a species separate from more northern populations (Moyle 2002, p. 235). McAllister (1963, p. 12) merged the two species, S. thaleichthys and S. dilatus, because the difference in morphological characters represented a north-south cline rather than a discrete set; a subsequent study using electrophoresis of allozymes (proteins used as genetic markers because DNA contains information that is used by cells to build proteins) showed that populations from Lake Washington near Seattle, Washington, and the Sacramento-San Joaquin Delta in California are similar genetically (Stanley et al. 1995, p. 390). The study did, however, find that the Sacramento-San Joaquin Delta population of longfin smelt differs in allele (alternative form of a gene) frequencies from the population in Lake Washington (Stanley et al. 1995, p. 390). Delta smelt and longfin smelt hybrids have been observed in the San Francisco Bay-Delta estuary, although these offspring are not thought to be fertile because delta smelt and longfin smelt are not closely related taxonomically or genetically (California Department of Fish and Game (CDFG) 2001, p. 473).
        Biology
        The longfin smelt is a euryhaline (tolerant of variable salinities) pelagic fish that inhabits various depths of the water column depending on the individual's life stage. Longfin smelt have been found throughout the year in fresh and brackish waters with salinities ranging from 14 to 28 parts per thousand (ppt) (CDFG 2001, p. 477). Adults can typically be found in the middle or lower part of the water column (Moyle 2002, p. 236), while larvae maintain position in the upper part of the water column, where they are usually found. Longfin smelt reportedly cannot tolerate water temperatures greater than 68 degrees Fahrenheit (°F) (20 degrees Celsius (°C)) (Moyle 2002, p. 236), and will move farther downstream (west) during the summer months when water temperatures in the Delta are higher. Adult longfin smelt occupy water at temperatures from 61 to 68 °F (16 to 20 °C), with spawning probably occurring in water with temperatures between 44.5 to 58 °F (7.0 to 14.5 °C) (Wang 1986, pp. 6-9).
        Longfin smelt prey primarily on opossum shrimp (Neomysis mercedis) and other small crustaceans (Acanthomysis sp.), although copepods such as the calanoid copepod (Pseudodiatomus forbesi) and cyclopoid copepod (Acanthocyclops vernalis) (Hobbs et al. 2006, p. 907) and other crustaceans are also preyed upon, especially by smaller fish (Moyle 2002, p. 236). Longfin smelt are preyed upon by fishes, birds, and mammals (Barnhart et al. 1992, p. 44) and are a major prey item of harbor seals (Phoca vitulina) in the Columbia River (Service 1995, p. 51). Predation of longfin smelt in the San Francisco Bay Estuary is known to occur by both striped bass (Morone saxatilis) and inland silversides (Menidia beryllina), but the effects of predation on the population are not well understood (Moyle 2002, p. 238). In the ocean, longfin smelt feed primarily on small crustaceans, but may also feed on jellyfish and larval fish (Barnhart et al. 1992, p. 44).
        Reproduction

        Longfin smelt may spawn as early as November and as late as June, although typically spawning occurs from February to April (Moyle 2002, p. 236). However, longfin smelt at various life stages are detected in the San Francisco Bay estuary trawl surveys in numerous months of the year (Rosenfield and Baxter 2007, p. 1578), suggesting that the spawning period may not be restricted to November to June or that growth and development between individuals varies. Spawning occurs in areas of relatively low salinity, which are considered essential nursery habitat for estuarine organisms (Jassby et al. 1995, p. 284). Spawning usually occurs over rocky or gravelly substrates and aquatic plants (Moyle 2002, p. 236). Female longfin smelt produce between 5,000 to 24,000 eggs which stick to the substrate, and hatch within 40 days depending on the water temperature (CDFG 2001, p. 477). Newly hatched embryos are transported in the upper portion of the water column downstream (west) into more brackish parts of the San Francisco Bay-Delta system (Moyle 2002, p. 236). Longfin smelt usually live for 2 years, although some individuals may spawn as 1- or 3-year-old fish (Moyle 2002, p. 236), and die soon after spawning.
        Range and Extant Distribution
        The historical and current range of the longfin smelt is from Alaska southward to the San Francisco Bay-Delta in California, which includes the Delta, Suisun Marsh, San Pablo Bay, and the San Francisco Bay to the Golden Gate. One fish was found in the Monterey Bay (south of the San Francisco Bay-Delta) in California (Eschmeyer 1983, p. 82; Wang 1986, pp. 6-10). In Alaska, longfin smelt are known from Hinchinbrook Island, Prince William Sound, Dixon Entrance, Yakutat Bay, and Cook Inlet (Alaska Natural Heritage Program (ANHP) 2006, p. 3). In Washington, the range includes Willapa Bay, Skagit Bay, Columbia River, Grays Harbor, and Puget Sound; in Oregon, the range includes Coos Bay and Yaquina Bay (ANHP 2006, p. 3). Relative to longfin smelt in the San Francisco Bay-Delta, the nearest confirmed breeding population of longfin smelt occurs in the Columbia River, approximately 640 miles (mi) (1,029 kilometers (km)) north of the San Francisco Bay-Delta (Randall Baxter, CDFG, pers. comm. 2008). In California, longfin smelt are known from (north to south) the Klamath River, Humboldt Bay and its tributaries, the Eel River, the Van Duzen River, the Russian River, and the San Francisco Bay-Delta (Moyle 2002, p. 235). The species was previously described as “weakly anadromous” (Fry 1973, p. 88); however, new research has found that at least part of the San Francisco Bay-Delta population is anadromous (living mostly in the ocean and spawning in fresh water) (Rosenfield and Baxter 2007, p. 1590). Non-anadromous land-locked populations occur in Lakes Harrison and Pit in British Columbia, and Lakes Washington and Union in Washington (Page and Burr 1991, p. 57).
        Longfin smelt are dispersed broadly in the San Francisco Bay-Delta estuary by high outflows and currents, which could transport larvae or small juveniles long distances before they mature and become demersal (living near the bottom of the water column) (Baxter 2008, p. 1). Unverified reports exist of longfin smelt being captured 3 to 4 mi (5 to 6 km) offshore in northern California (Service 1994, p. 3), but the ecology and behavior of longfin smelt in the open ocean remains largely unstudied. We are unaware of any studies assessing the swimming abilities of longfin smelt, but they may be comparable to juvenile salmon with the capability of swimming back into estuaries from the ocean (Moyle 2008, p. 1). We believe it is likely that individuals from the San Francisco Bay-Delta estuary population could be transported via ocean currents, north to the Russian River, Eel River/Humboldt Bay, and Klamath River estuaries, particularly during high outflow years, which are associated with northward ocean currents in the winter. It is also likely that individuals from northern estuaries may be transported to the San Francisco Bay-Delta estuary via southward (summer) currents, although the main southern current (the California current) is farther offshore than the northern current (the Davidson current). Humboldt Bay and the Klamath River are more than 260 mi (418 km) and 320 mi (515 km) away by sea, respectively, from the San Francisco Bay. It is impossible to reliably approximate how many individuals as a proportion of the population may be transported by currents or swim between the San Francisco Bay-Delta and the other estuaries.
        Distinct Population Segment
        We consider a species for listing under the Act if available information indicates such an action might be warranted. “Species” is defined in section 3 of the Act to include any subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). We, along with the National Marine Fisheries Service (now the National Oceanic and Atmospheric Administration-Fisheries (NOAA - Fisheries)), developed the Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DPS Policy) (February 7, 1996; 61 FR 4721) to help us in determining what constitutes a DPS. Under our DPS policy, we consider three elements in a decision regarding the status of a possible DPS as endangered or threatened under the Act. These elements include: (1) The discreteness of the population segment in relation to the remainder of the species to which it belongs; (2) the significance of the population segment to the species to which it belongs; and (3) the population segment's conservation status in relation to the Act's standards for listing. If we determine that a population segment meets the discreteness and significance standards, then the level of threat to that population segment is evaluated based on the five listing factors established by the Act to determine whether listing the DPS as either threatened or endangered is warranted.
        Discreteness
        The DPS policy states that 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); or (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 Act.
        Significance

        Under our DPS Policy, once we have determined that a population segment is discrete, we consider its biological and ecological significance to the larger taxon to which it belongs. This consideration may include, but is not limited to: (1) Persistence of the discrete population segment in an ecological setting that is unusual or unique for the taxon; (2) evidence that loss of the discrete population segment would result in a significant gap in the range of the 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 historic range; or (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.
        If a population is considered both discrete and significant (i.e., it is a distinct population segment) its evaluation for endangered or threatened status will be based on the Act's definitions of those terms and a five-factor analysis will be completed.
        Distinct Population Segment Analysis
        Discreteness
        The petitioners claim the San Francisco Bay-Delta population of longfin smelt is discrete because there is no evidence that large numbers of longfin smelt migrate between populations within their range in the eastern Pacific or along the California coast. Additionally, they cite survey data indicating longfin smelt populations within several hundred miles of the San Francisco Bay-Delta are small and possibly declining, which leads the petitioners to conclude that it is unlikely that longfin smelt in the San Francisco Bay-Delta are supplemented by immigration from other areas. Additionally, the petitioners cite Moyle (2002, p. 235) who concluded the longfin smelt in the San Francisco Bay-Delta are reproductively isolated from other population units.

        The range of the longfin smelt extends from Prince William Sound in Alaska, south to the San Francisco Bay-Delta. In California, longfin smelt have been found in the lower reaches and estuaries of the Klamath, Eel, Van Duzen (a tributary to the Eel River), and Russian Rivers, but populations in these areas are currently considered relatively small. We are unaware of historical numbers in these areas. Longfin smelt were historically abundant in Humboldt Bay, but this population is in decline (The Bay Institute et al. 2007, p. 1). The San Francisco Bay-Delta population is the southernmost self-sustaining population of longfin smelt (The Bay Institute et al. 2007, p. ii). One individual was found in Monterey Bay (Moyle 2002, p. 236), but a self-sustaining population is not considered present there. See Range and Extant Distribution for more information.
        Geographical Isolation
        The petitioners assert that the San Francisco Bay-Delta population is geographically isolated from all other populations, that there is no evidence of large numbers of longfin smelt migrating between populations, and that it is highly unlikely that the San Francisco Bay-Delta population is supplemented by populations from other areas. The petitioners requested the Service list the San Francisco Bay-Delta population of the longfin smelt as a DPS. We note that standard set forth in the DPS policy is that a DPS be “markedly separated” from other populations—thus, while absolute separation is not required, neither are “large numbers” of individuals migrating between populations.
        Although the range of longfin smelt extends into Canada, the San Francisco Bay-Delta population is not separated from all other populations by an international border. Therefore, the San Francisco Bay-Delta population cannot be discrete due to be delimiting by an international border.
        We are unaware of any targeted sampling efforts for longfin smelt, so the information we have about their distribution and numbers and our conclusions outlined below have been gleaned from past and ongoing sampling efforts that target other aquatic organisms. The following outlines the survey efforts and detections of longfin smelt in California north of San Francisco Bay as a result of these non-target sampling efforts.
        In the Klamath River, longfin smelt were found in low numbers in the early 1990s using electrofishing techniques from river mile 2 to river mile 4 (river km 3.2 to 6.4). The Klamath River is located approximately 320 mi (515 km) by sea north of the San Francisco Bay-Delta. Additional sampling by the Yurok Tribe in the Klamath River in recent years did not identify any longfin smelt; however, this sampling targeted salmonids and, as a result, any osmerids that may have been inadvertently captured were not documented (Gale 2008, p. 1). Also, because standard sampling methods for salmonids are likely highly inefficient for collecting longfin smelt, their presence or absence in the Klamath River cannot be determined based on the Yurok Tribe sampling data.

        In Humboldt Bay in Humboldt County, California, longfin smelt population numbers have likely always been small (Moyle 2002, p. 237). Humboldt Bay is located approximately 260 mi (418 km) by sea north of the San Francisco Bay-Delta. A total of 12 longfin smelt were caught in north Humboldt Bay during surveys using a variety of gear types from 2003 to 2005 (Pinnix et al. 2005, p. 11), and one adult was netted in Freshwater Creek (a tributary to Humboldt Bay) in February 2008 (Justin Garwood 2008, p. 1). Eleven longfin smelt were found at a total of four sites in Humboldt Bay between 2000 to 2001 (Cole 2004, p. 20). Survey efforts conducted by California State University at Humboldt caught only about half a dozen longfin smelt in Humboldt Bay in the past 10 years of non-target sampling using both trawls and beach seines (Mulligan 2008, p. 1). In addition, non-target sampling around a dredge disposal site about 2 mi (3.2 km) offshore from Humboldt Bay yields an average of a few dozen longfin smelt every year (Mulligan 2008, p. 1).
        The Humboldt Bay tributaries of Hookton Slough, Salmon Creek, and Elk River Slough were sampled from 2005 to 2006, and Freshwater/Eureka Slough and its tributaries were sampled from 2003 to 2006. Longfin smelt were found in very low numbers during these years in all of these tributaries (Mike Wallace, 2008, p. 1). Spawning longfin smelt have been recorded in the Van Duzen River and in the Eel River drainage in Humboldt County (Moyle 2002, p. 235), but the current status of longfin smelt and sampling efforts in these rivers is unknown. Humboldt Bay and the Klamath River estuaries may also support small but self-sustaining populations of longfin smelt. Pre-spawn and spent (post-spawn) adults have been detected in the Klamath River estuary as recently as 2001, and adult and juvenile longfin smelt have been detected in recent years in Humboldt Bay, suggesting spawning and recruitment may be occurring in these estuaries (Baxter 2008, p. 1).

        In the Russian River in Sonoma County, California (from the river mouth to approximately 10 mi (16 km) upriver), low numbers of longfin smelt were caught using otter trawls from 1997 to 2000 (Sonoma County Water Agency (SCWA) 1999, Appendices B-4 and B-8; SCWA 2000, Appendices B-8, B-10, B-11, and B-12; SCWA 2001, pp. 18-19). The Russian River estuary is approximately 75 mi (120 km) by sea north of the San Francisco Bay-Delta. No longfin smelt were caught in the Russian River using beach seines between 2003 and 2007 (SCWA 2004, p. 7; SCWA 2005, pp. 7-8; SCWA 2006, pp. 10-11; Cook 2008, p. 1). However, it is likely that beach seining is an ineffective method for determining presence or absence of longfin smelt, because it does not sample the depths (typically 15 to 22 feet (ft) (4 to 7 meters (m)) or the middle of the river channel where longfin smelt were previously found in the Russian River using otter trawls.
        One individual longfin smelt was found in Abbotts Lagoon at Point Reyes National Seashore in 1999 (Saiki and Martin 2001, p. 128), and near-shore midwater trawl surveys conducted by the NOAA - Fisheries in the spring for juvenile rockfish also detected longfin smelt and other smelt not identified to species at several locations from Cyprus Point near Monterey Bay to Point Reyes near Bodega Bay in 1984, 1994, and 2001 (Baltz, 2008, pp. 1-32). Although sampling continues, smelts caught have not been identified to species since 2001, and many of the stations where longfin smelt were identified in the 1980s and 1990s near the Gulf of the Farallones have not been sampled since 1996 (Sakuma, 2008, p. 1).
        The City of San Francisco detected longfin smelt a few miles offshore in the Pacific Ocean in 1983 and 1984, suggesting that individuals from the San Francisco estuary disperse beyond the Golden Gate Bridge (City of San Francisco 1985, pp. 5-8; Rosenfield and Baxter 2007, p. 1590). Additional surveys conducted between 1987 and 2007 were not examined for pelagic fish species, so it is possible that longfin smelt were captured but not identified during these surveys (Kellogg 2008, p. 1).
        Summary of Geographic Isolation
        Although no physical barriers exist between the San Francisco Bay-Delta and estuarine habitat to the north, the distance that longfin smelt are able to travel out into the open ocean or northward along the coast to reach these areas is unknown. The 1995 Sacramento/San Joaquin Delta Native Fishes Recovery Plan (Service 1995, pp. 47-65) states that the San Francisco estuary population “is isolated from other populations.” However, as described above in the Range and Extant Distribution section, it is likely that longfin smelt are moving or being transported via currents between the San Francisco Bay-Delta estuary and other estuaries to the north. A recent review of the abundance and distribution of longfin smelt within the San Francisco Bay-Delta concluded that at least a portion of the longfin smelt population within the San Francisco Bay-Delta is anadromous and routinely disperses outside the San Francisco Bay-Delta estuary and into the Pacific Ocean (Rosenfield and Baxter 2007, p. 1590). Although we know of no studies assessing swimming ability of longfin smelt, it may be comparable to juvenile salmon, which have the capability to swim back into estuaries from the ocean (Moyle 2008, p. 1). Based on the recent information that a portion of the San Francisco Bay-Delta population of longfin smelt are anadromous and able to swim into and out of the San Francisco Bay-Delta, it is likely that individuals have the ability to swim into and out of ocean currents and into and between estuaries, including estuaries outside of the San Francisco Bay-Delta estuary. In addition, other individuals may be transported by other mechanisms, such as high outflows and ocean currents (see Range and Extant Distribution section). The distance that longfin smelt could swim or be transported from the San Francisco Bay-Delta is unknown. It is possible that the San Francisco Bay-Delta population is supplementing smaller nearby estuaries (such as the Russian River); therefore, Moyle's (2002, p. 235) conclusion that longfin smelt in the San Francisco Bay-Delta being reproductively isolated is questionable. Additionally, it is possible that other self-sustaining estuaries (such as Humboldt Bay, Coos Bay, Columbia River) may be supplementing smaller estuaries in their vicinities. Therefore, we have determined the San Francisco Bay-Delta population of longfin smelt is not geographically isolated from other longfin smelt populations.
        Genetic Separation

        The petitioner states that the San Francisco Bay-Delta population of longfin smelt differs genetically from a population in Lake Washington in Washington State (Stanley et al. 1995, pp. 390-396). The petitioners conclude from the single study that the San Francisco Bay-Delta population differs markedly from other populations genetically and that additional genetic analysis will confirm that the San Francisco Bay-Delta population represents an evolutionarily independent lineage of this species and qualifies as a DPS.

        Only one genetic study has addressed longfin smelt. Stanley et al. (1995, pp. 390-396) used electrophoresis of allozymes to examine genetic variation within and between two populations of longfin smelt. Allozymes are proteins used as genetic markers and have been used to assess genetic variation for many years. Allozyme studies have the advantage of being relatively inexpensive and straightforward, once the basic technique is developed for a group. However, drawbacks of using electrophoretic allozyme studies include the limited number of proteins that can be screened (Parker et al. 1998, pp. 362-363) and the fact that they often detect little variability (Haig 1998, p. 419). It is not uncommon for population biologists to encounter species for which allozymes cannot be used as genetic markers because they lack variation (Parker et al. 1998, pp. 362-363).
        Stanley et al. (1995, p. 395) found the San Francisco Bay-Delta population and Lake Washington populations of longfin smelt were significantly different in allele frequencies at several loci (gene locations). However, the authors also stated the overall genetic dissimilarity was within the range of other conspecific fish species (Stanley et al. 1995, p. 395) and concluded their research indicates longfin smelt from Lake Washington and the San Francisco Bay-Delta are conspecific (of the same species) despite the large geographic separation. We believe that this study is not well suited to address whether the San Francisco Bay-Delta longfin smelt population is markedly separated from other populations of longfin smelt (the criterion of the DPS policy) because only two locations were sampled. These two locations are ecologically different from one another and widely separated geographically. The life history and ecology of the landlocked Lake Washington longfin smelt population is different than other estuary populations, and may have been geographically separated for many years from other populations with access to the open ocean. A more appropriate comparison would have been to analyze longfin smelt from a series of locations with access to the open ocean (e.g., Columbia River to Humboldt Bay) to assess the potential of genetic relatedness of longfin smelt from the San Francisco Bay-Delta and other populations. While the study indicates that Lake Washington and San Francisco Bay-Delta longfin smelt differ significantly at some allozyme loci, it does not evaluate the genetic relationship between these populations and intervening populations along the Pacific coast.

        Furthermore, at the time of their study, the authors believed the longfin smelt in Humboldt Bay to be rare or extinct but did acknowledge the existence of longfin smelt from the Klamath River, approximately 124 mi (200 km) north of Humboldt Bay. Stanley et al. (1995, p. 395) surmised that if the Humboldt Bay population was extinct, then genetic exchange between the Delta and Klamath River would be extremely unlikely. This line of reasoning appears to imply geographic isolation. However, based on more recent occurrence information, as we have outlined above, longfin smelt are found in estuaries north of the San Francisco Bay-Delta, including the Russian River, Humboldt Bay, and the Klamath River. Also taking into account recent confirmation that a portion of the San Francisco Bay-Delta population of longfin smelt is fully anadromous and able to swim into and out of the San Francisco Bay-Delta, and that it is likely that individuals have the ability to swim into and out of ocean currents and into and between estuaries, including estuaries outside of the San Francisco Bay-Delta estuary, we believe the potential for genetic interchange exists.
        As mentioned above, research to evaluate any genetic differences between the San Francisco Bay-Delta longfin smelt and other coastal longfin smelt populations has not yet been completed. There is also no indication that longfin smelt differ morphologically between the San Francisco Bay-Delta population and other populations. Researchers from University of California at Davis have undertaken a study using more modern molecular techniques, which examines DNA directly rather than looking at the product derived from DNA (i.e., proteins) to determine genetic variability within and among populations in Northern California, Oregon, and Washington (May 2008, p. 1). Additional study should provide more information on the distribution of genetic variation within the species and determine if longfin smelt from different locations are intermixing. We believe that while this additional study is needed, at this time we can not conclude that San Francisco Bay-Delta longfin smelt differ markedly from other populations in its genetic characteristics. Therefore, we have determined that, based on the best scientific and commercial information available, the San Francisco Bay-Delta population is not genetically distinct from other populations of longfin smelt.
        Determination of Discreteness
        Our DPS policy requires that when determining whether a population meets the definition of being a DPS, we must first consider discreteness of the population segment in relation to the remainder of the species to which it belongs. The population must be markedly separated from other population of the taxon as a consequence of physical, physiological, ecological, behavioral, genetic or morphological factors or as a result of international boundaries where significant differences in exploitation, management, conservation status, or regulatory mechanisms exist. If a population is considered discrete then we would consider the biological and ecological significance of the population. To be considered a DPS under our policy, the population must meet both the discreteness and significance aspects of the policy.
        We have determined that, based on the best scientific and commercial information available, the San Francisco Bay-Delta population of the longfin smelt is not markedly separated from the other populations of longfin smelt. The only available data to address the markedly separate standard for longfin smelt relate to geographic isolation and genetic uniqueness, and we do not find that these data indicate longfin smelt from the San Francisco Bay-Delta are markedly separated from other longfin smelt found elsewhere. Recent studies indicate that at least part of the San Francisco Bay-Delta population is anadromous and able to swim into and out of estuaries. Individuals may also be carried by currents from the San Francisco Bay-Delta to other estuaries outside the San Francisco Bay-Delta which leads us to the conclusion that longfin smelt may be able to disperse between populations. Although it is impossible without further study to reliably approximate how many individuals are being transported or swimming between the San Francisco Bay-Delta and the other estuaries, “large numbers” of migrating individuals are not required to rule out populations being markedly separated. Nor is absolute isolation required for populations to be markedly separated. On balance, the limited data available do not suggest that the San Francisco Bay-Delta population of the longfin smelt is markedly separate from populations outside the San Francisco Bay-Delta. In addition, the only genetic study conducted to date examined only Lake Washington and San Francisco Bay-Delta longfin smelt, a sampling scheme too limited to reasonably address whether longfin smelt in the San Francisco Bay-Delta differ genetically from other locations along the Pacific coast. Therefore, we have determined that the San Francisco Bay-Delta population of longfin smelt is not discrete as defined under our DPS policy.
        Significance
        Since the San Francisco Bay-Delta population of longfin smelt is not discrete as defined under our DPS policy, we do not need to evaluate the significance of the population to the species as a whole.
        Finding
        We have carefully assessed the best scientific and commercial information available regarding whether the San Francisco Bay-Delta population of the longfin smelt is a distinct population segment. We have reviewed the petition, information available in our files, and all information submitted to us following our 90-day petition finding (73 FR 24911, May 6, 2008). We also consulted with recognized smelt experts, including State and Federal agency biologists, academics, and individuals involved in sampling and surveying efforts for the longfin smelt.
        We find the San Francisco Bay-Delta population of the longfin smelt does not meet the discreteness criterion of our DPS policy (and therefore we did not undertake a significance review) and therefore is not a valid DPS. As a result, the San Francisco Bay-Delta population of the longfin smelt is not a listable entity under the Act and we will not complete a 5-factor analysis of the San Francisco Bay-Delta population of the longfin smelt in response to the August 8, 2007, petition. This finding is based on information obtained on the potential for dispersal via ocean currents, and on information that a portion of the longfin smelt within the San Francisco Bay-Delta regularly disperse out to the Pacific Ocean and are fully anadromous. Once individuals emigrate from the San Francisco Bay Estuary they are likely transported by ocean currents and able to occupy estuaries outside of the San Francisco Bay-Delta for an undetermined amount of time.

        However, given the demonstrated anadromy of the San Francisco Bay Estuary population of longfin smelt and its potential for dispersal, we are initiating a range wide status assessment of the longfin smelt and are seeking information regarding: taxonomy, genetics, distribution, habitat selection, population density and trends, habitat trends, effects of management, dispersal and migratory capabilities or patterns of dispersal, and potential threats to the longfin smelt throughout its range in Alaska, Canada, Washington, Oregon, and California. Upon completion of this review, we will also evaluate whether the best available scientific information suggests that the San Francisco Bay-Delta population of the longfin smelt may be considered to occupy a significant portion of the range (SPR), and institute appropriate action. We encourage interested parties to continue to gather data that will assist in determining the status of the longfin smelt. New information should be submitted to the Field Supervisor, Sacramento Fish and Wildlife Office (see ADDRESSES).
        References Cited

        A complete list of all references cited in this proposal is available upon request. You may request a list of all references cited in this document from the Supervisor, Sacramento Fish and Wildlife Office (see ADDRESSES).
        Author
        The primary authors of this notice are staff members of the Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, Sacramento, CA 95825.
        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, 2009.
          Rowan W. Gould,
          Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. E9-8087 Filed 4-8-09; 8:45 am]

        BILLING CODE 4310-55-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 600 and 622
        [Docket No. 050729208-5208-01; I.D. 060805B]
        RIN 0648-AP51
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Comprehensive Amendment to the Fishery Management Plans of the U.S. Caribbean

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS issues this proposed rule to implement a comprehensive amendment prepared by the Caribbean Fishery Management Council (Council) to amend its Reef Fish, Spiny Lobster, Queen Conch, and Coral Fishery Management Plans (FMPs). The comprehensive amendment is designed to ensure the FMPs are fully compliant with the provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This proposed rule would redefine the fishery management units for the FMPs; establish seasonal closures; impose gear restrictions and requirements; revise requirements for marking pots and traps; and prohibit the filleting of fish at sea. In addition, the comprehensive amendment would establish biological reference points and stock status criteria; establish rebuilding schedules and strategies to end overfishing and rebuild overfished stocks; provide for standardized collection of bycatch data; minimize bycatch and bycatch mortality to the extent practicable; designate essential fish habitat (EFH) and EFH habitat areas of particular concern (HAPCs); and minimize adverse impacts on such habitat to the extent practicable. The intended effect of this proposed rule is to achieve optimum yield in the fisheries and provide social and economic benefits associated with maintaining healthy stocks.

          DATES:
          Comments must be received no later than 5 p.m., eastern time, on September 28, 2005.

          ADDRESSES:
          You may submit comments on the proposed rule by any of the following methods:
          • E-mail: 0648-AP51.Proposed@noaa.gov. Include in the subject line of the e-mail comment the following document identifier 0648-AP51.
          • Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Mail: Steve Branstetter, NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701.
          • Fax: 727-824-5308, Attention: Steve Branstetter.
          Copies of documents supporting this action may be obtained by contacting the NMFS Southeast Regional Office at the above address.

          FOR FURTHER INFORMATION CONTACT:

          Steve Branstetter, 727-824-5305; fax 727-824-5308; e-mail Steve.Branstetter@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        The fisheries for spiny lobster, queen conch, reef fish, and corals and reef-associated invertebrates in the exclusive economic zone (EEZ) off Puerto Rico and of the U.S. Virgin Islands are managed under the respective fishery management plans prepared by the Council. These fishery management plans are implemented under the authority of the Magnuson-Stevens Act by regulations at 50 CFR part 622. This proposed rule would implement Amendment 2 to the FMP for the Spiny Lobster Fishery, Amendment 1 to the FMP for Queen Conch Resources, Amendment 3 to the FMP for the Reef Fish Fishery, and Amendment 2 to the FMP for the Corals and Reef Associated Plants and Invertebrates of Puerto Rico and the U.S. Virgin Islands, known collectively as the Comprehensive Amendment to the FMPs of the Caribbean.
        Background

        A notice of availability for the comprehensive amendment was published in the Federal Register on June 16, 2005 (70 FR 35053). This proposed rule and the comprehensive amendment are intended to address various requirements set forth in the Magnuson-Stevens Act: (1) Assess and specify the present and probable future condition of, and the maximum sustainable yield and optimum yield from, fisheries; (2) specify objective and measurable criteria for identifying when a fishery is overfished; (3) end overfishing and rebuild overfished stocks, and prevent overfishing in fisheries that are identified as approaching an overfished condition; (4) establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery and implement conservation and management measures that minimize bycatch and bycatch mortality to the extent practicable; and (5) identify, describe, and designate EFH and EFH-HAPCs for managed stocks, minimize to the extent practicable adverse effects on such habitat caused by fishing, and identify other actions to encourage the conservation and enhancement of such habitat.
        Provisions of This Proposed Rule
        Revision of Fishery Management Units (FMUs)
        This proposed rule would redefine the FMUs in all the Council FMPs. FMUs define the specific species that are to be the target of conservation and management.

        The proposed rule would remove from the respective FMUs, species found predominantly in the waters of Puerto Rico or the U.S. Virgin Islands (rather than in Federal waters). In addition, those species for which data are inadequate to establish a need for conservation and management, biological reference points, or stock status determination criteria would remain in the FMUs for data collection purposes but would not be subject to Federal regulation at this time. When sufficient data are available and, if a need for management is determined, appropriate regulations would be implemented through subsequent rulemaking.
        Under the proposed rule, Caribbean helmet, flame helmet, Caribbean vase, and whelk (West Indian top shell) would be removed from the Queen Conch FMP. All other species in the Caribbean conch FMU, except queen conch, and all aquarium trade species in the Reef Fish and Coral Reef FMPs, would be retained in the respective FMUs for data collection purposes only. Tables 1 and 2 of Appendix A to 50 CFR Part 622 (Caribbean Coral Reef Resources and Caribbean Reef Fish, respectively) would be revised accordingly; Table 5 of Appendix A to 50 CFR Part 622 (Caribbean Conch Resources) would be added; and the definition of “Caribbean conch resource” would be removed and replaced by a definition of “queen conch.”
        The proposed change would provide for collection of data on aquarium trade species and other species retained in the respective FMUs for data collection purposes only, but would remove these species from Federal regulations at this time. Consequently, existing regulations at 50 CFR 622.41(b) defining a marine aquarium fish as “a Caribbean reef fish that is smaller than 5.5 inches (14.0 cm) TL” and restricting the harvest of a marine aquarium fish to hand-held dip nets or hand-held slurp guns would be eliminated. The regulation at 50 CFR 622.32(b)(1)(ii) prohibiting the harvest and possession of butterflyfish and seahorses from Federal waters of the U.S. Caribbean also would be eliminated. There would be no specification of maximum sustainable yield (MSY), optimum yield (OY), or stock status determination criteria for species retained for data collection purposes only.
        Seasonal Closures
        This proposed rule would establish several seasonal closures to reduce fishing mortality, provide protection to key species during peak spawning seasons, protect EFH, and help to rebuild overfished fish stocks or keep healthy stocks from becoming overfished. For snappers, fishing for or possessing black, blackfin, vermilion, or silk snapper, in or from the Caribbean EEZ would be prohibited from October 1 through December 31 each year. From April 1 through June 30 each year, fishing for or possessing lane or mutton snapper in or from the Caribbean EEZ would also be prohibited. For grouper, fishing for or possessing red, black, tiger, yellowfin, or yellowedge grouper, in or from the Caribbean EEZ, would be prohibited from February 1 through April 30 each year. In addition, fishing for or possessing red hind in or from the Caribbean EEZ would be would be prohibited off the west coast of Puerto Rico west of 67°10′ W. longitude from December 1 through February each year. Further, to help rebuild overfished grouper species and to protect EFH, fishing for or possessing any species of fish, except highly migratory species, in or from the Grammanik Bank closed area would be prohibited from February 1 to April 30 each year. Highly migratory species means bluefin, bigeye, yellowfin, albacore, and skipjack tunas; swordfish; sharks (listed in Appendix A to 50 CFR Part 635); white marlin, blue marlin, sailfish, and longbill spearfish. The Grammanik Bank closed area is bound by rhumb lines connecting, in order, the following points:

            Point
            North lat.
            West long.

            A
            18°11.898′
            64°56.328′

            B
            18°11.645′
            64°56.225′

            C
            18°11.058′
            64°57.810′

            D
            18°11.311′
            64°57.913′

            A
            18°11.898′
            64°56.328′

        To reduce fishing mortality and help rebuild the overfished stock of Caribbean queen conch, the proposed rule would prohibit fishing for or possessing on board a fishing vessel a Caribbean queen conch in or from the Caribbean EEZ, except during October through June in the area east of 64°34′ W. longitude which includes Lang Bank east of St. Croix, U.S. Virgin Islands.
        Restrictions on Gillnets and Trammel Nets

        To help achieve necessary reductions in fishing mortality and to reduce bycatch, the use of gillnets or trammel nets to fish for Caribbean reef fish or Caribbean spiny lobster would be prohibited in the Caribbean EEZ. Possession of a gillnet or trammel net and any Caribbean reef fish or Caribbean spiny lobster in or from the Caribbean EEZ would be prima facie evidence of a violation of this provision. To further minimize bycatch and bycatch mortality, the proposed rule would require any gillnet or trammel net used in the Caribbean EEZ to fish for any other species, including flying fishes or needlefishes, to be tended at all times.
        Other Gear Restrictions to Minimize Adverse Effects on EFH
        This proposed rule would prohibit all fishing with pots, traps, gillnets, trammel nets, or bottom longlines year-round in the proposed Grammanik Bank closed area and in the existing seasonally closed mutton snapper spawning aggregation area off the southwest coast of St. Croix, U.S. Virgin Islands and the red hind spawning aggregation areas east of St. Croix and west of Puerto Rico (Bajo de Cico, Tourmaline Bank, and Abrir La Sierra Bank). See 50 CFR 622.33(a)(1) and (2) for the coordinates of these existing seasonally closed areas. The year-round prohibition on use of these gear types within these discrete spawning aggregation sites would protect EFH and contribute to needed reductions in fishing mortality.

        To further minimize the adverse impacts of fishing on EFH in the EEZ, the proposed rule would establish several additional regulatory requirements. For all vessels that fish for or possess Caribbean spiny lobster or Caribbean reef fish in or from the EEZ, the proposed rule would require at least one buoy that floats at the surface be attached to all traps or pots fished individually, and at least one such buoy be attached at each end of trap lines linking traps or pots. This is intended to more readily identify the location of traps and, thus, preclude the practice of using a grapnel hook to locate and retrieve unmarked traps which results in substantial damage to EFH. It should also minimize the loss of traps and subsequent adverse effects of ghost fishing.
        To enhance compatibility with regulations in the waters of Puerto Rico and the U.S. Virgin Islands and, thereby, enhance enforceability and compliance, the proposed rule would amend current requirements for trap construction to require one degradable escape panel, which could be the trap door if it is attached with the required degradable fasteners and is located on the side of the trap.
        For all commercial and recreational vessels that fish for or possess Caribbean reef species in or from the EEZ, the proposed rule would require an anchor retrieval system that ensures the anchor is recovered by its crown in order to prevent the anchor from dragging along the bottom during recovery and damaging EFH. For a grapnel hook, this could include an incorporated anchor rode reversal bar that runs parallel along the shank, which allows the rode to reverse and slip back toward the crown. For a fluke or plow-type anchor (e.g., Danforth, Delta, Fortress, etc.), a trip line consisting of a line from the crown of the anchor to a surface buoy would be required.
        Prohibition on Filleting Fish
        Nassau and goliath grouper cannot be harvested or possessed in or from the Caribbean EEZ. However, if fish are filleted, the ability to properly identify these species and enforce the prohibition on harvest and possession is compromised. To enhance enforceability of this provision and to help rebuild the overfished stocks of Nassau and goliath grouper, filleting of fish, except for highly migratory species, in or from the Caribbean EEZ would be prohibited. Fish subject to this prohibition would have to be landed with heads and fins intact. The proposed rule would provide minor exceptions to this requirement regarding “bait” and “consumption at sea” as specified in § 622.38(d) of this proposed rule.
        Additional Provisions Contained in the Comprehensive Amendment
        Establishment or Refinement of Biological Reference Points and Stock Status Criteria
        The comprehensive amendment would establish or revise estimates for MSY, OY, minimum stock size threshold (MSST), and a maximum fishing mortality threshold (MFMT) for various fish stocks.

        MSY and OY targets would vary according to FMUs. MSY and OY would be set to zero for all species in the Caribbean coral reef resource FMU, excluding those species retained for data collection purposes. For all other species, MSY would be established from recent average catch (C) in the commercial and recreational fisheries and from estimates of the current biomass (BCURR/BMSY) and fishing mortality (FCURR/FMSY) ratios. MSY would be equal to C/[(FCURR/FMSY) x (BCURR/BMSY)]. OY would then be established as the average yield associated with a fishing mortality (F) equal to the fishing mortality to achieve OY (FOY) where FOY = 0.75FMSY.

        For each FMU sub-unit for which biomass and fishing mortality ratios have not been estimated through a stock assessment or other scientific exercise (i.e., stock status is unknown), the following estimates will be used: (1) For species that are not believed to be at risk based on the best available information, the FCURR/FMSY proxy is estimated as 0.75 and the BCURR/BMSY proxy is estimated as 1.25; (2) For species for which no positive or negative determination can be made on the status of their condition, the default fishing mortality ratio and biomass ratio proxies would be estimated as 1.00; and (3) For species that are believed to be at risk based on the best available information, the fishing mortality ratio would be estimated at 1.50 and the biomass ratio would be estimated as 0.75.
        MSST would be established as BMSY(1-c); where c equals the natural mortality rate (M) or 0.50, whichever is smaller. This alternative is preferred for Caribbean spiny lobster, queen conch, and all species in the reef fish and coral reef resource FMUs, excluding those species retained for data collection purposes.

        MFMT would be based on an MSY control rule. For all species in the Coral FMP, MFMT would be zero, excluding those species retained for data collection purposes. For Caribbean queen conch, spiny lobster, and reef fish, excluding those species retained for data collection purposes, MFMT would be based on an allowable biological catch (ABC), which would be defined as ABC = FMSY(B). For those species where FMSY estimates are not available, natural mortality (M) would be used as a proxy for FMSY. An OY control rule would define target catch limits such that they equal FOY(B).
        Establishment of Rebuilding Schedules
        Based on the establishment or revision of the biological reference points and stock status criteria described above, several species would be considered overfished. Therefore, in accordance with the Magnuson-Stevens Act, the Council is establishing the following stock rebuilding schedules.
        Nassau Grouper would be rebuilt to BMSY in 25 years, using the formula TMIN (10 years) + one generation time (15 years) = 25 years.
        Goliath Grouper would be rebuilt to BMSY in 30 years, using the formula TMIN (10 years) + one generation time (20 years) = 30 years.
        Queen Conch would be rebuilt to BMSY in 15 years, using the formula TMIN (10 years) + one generation time (5 years) = 15 years.

        Grouper Unit 4 (including red, black, tiger, yellowfin, yellowedge and misty grouper) would be rebuilt to BMSY in 10 years.
        Standardized Bycatch Reporting
        The comprehensive amendment would establish a standardized bycatch reporting methodology throughout the Council's area of jurisdiction by using existing databases in addition to revising certain other existing databases. Use of the Marine Recreational Fishery Statistics Survey database would provide additional bycatch information on the recreational and subsistence sectors. The Council and NMFS would also consult with Puerto Rico and the U.S. Virgin Islands in an effort to modify the state trip ticket systems currently in place in the U.S. Caribbean to require standardized collection of bycatch data.
        Designation of EFH and HAPCs
        The comprehensive amendment would describe and identify EFH according to functional relationships between life history stages of federally managed species and Caribbean marine and estuarine habitats. For spiny lobster, queen conch and reef fish, EFH in the U.S. Caribbean would consist of all waters from mean high water to the outer boundary of the EEZ, which are used by eggs and larvae, and seagrass, benthic algae, mangrove, coral, and live/hard bottom substrates from mean high water to 100 fathoms (183 m) depth, which are used by other life stages. EFH for the coral fishery in the U.S. Caribbean consists of all waters from mean low water to the outer boundary of the EEZ, which is used by larvae, and all coral and hard bottom substrates from mean low water to 100 fathoms (83 m) depth, which are used by other life stages.

        The comprehensive amendment would designate HAPCs in the Reef Fish FMP based on confirmed spawning locations and on areas or sites identified as having particular ecological importance to managed species. (See Section 6.7.1.3 of the comprehensive amendment for more detailed description of the respective HAPCs). Based on the confirmed occurrence of spawning in these particular areas, HAPCs in the Reef Fish FMP would be designated off of Puerto Rico at Tourmaline Bank/Buoy 8, Abrir La Sierra Bank/Buoy 6, Bajo de Cico, and Vieques, El Seco. Off St. Croix, HAPCs for reef fish would include the mutton snapper spawning aggregation area (50 CFR 622.33(a)(1)) and Lang Bank, (50 CFR 622.33(a)(2)(i)). Off St. Thomas, HAPCs would be designated as Hind Bank Marine Conservation District (50 CFR 622.33(b)(1)) and Grammanik Bank (50 CFR 622.33(a)(3)). Based on habitat areas or sites identified as having particular ecological importance to Caribbean reef fish species, HAPCs would be designated off Puerto Rico at Hacienda la Esperanza, Manití; Bajuras and Tiberones, Isabela; Cabezas de San Juan, Fajardo; JOBANNERR, Jobos Bay; Bioluminescent Bays, Vieques; Boquerón State Forest; Pantano Cibuco, Vega Baja; Piñones State Forest; Río Espiritu Santo, Río Grande; Seagrass beds of Culebra Island (nine sites designated as Resource Category 1 and two additional sites); and Northwest Vieques seagrass west of Mosquito Pier, Vieques. Off St. Thomas, HAPCs would be designated off southeastern St. Thomas, including Cas Key and the mangrove lagoon in Great St. James Bay; and Saba Island/Perseverance Bay, including Flat Key and Black Point Reef. Off St. Croix, HAPCs would be designated as Salt River Bay National Historical Park and Ecological Preserve and Marine Reserve and Wildlife Sanctuary; Altona Lagoon; Great Pond; South Shore Industrial Area; and Sandy Point National Wildlife Refuge.
        For the Coral Reef FMP HAPCs would be designated as those EFH habitat areas or sites identified as having particular ecological importance to Caribbean coral species. (See Section 6.7.1.3 of the comprehensive amendment for more detailed description of the respective HAPCs). Off Puerto Rico, these include Luis Peña Channel, Culebra; Mona/Monito; La Parguera, Lajas; Caja de Muertos, Ponce; Tourmaline Reef; Guánica state Forest; Punta Petrona, Santa Isabel; Ceiba state Forest; La Cordillera, Fajardo; Guayama Reefs; Steps and Tres Palmas, Rincon; Los Corchos Reef, Culebra; and Desecheo Reefs, Desecheo. Off St. Croix, HAPCs would be designated at the St. Croix Coral Reef Area of Particular Concern, including the East End Marine Park; Buck Island Reef National Monument; South Shore Industrial Area Patch Reef and Deep Reef System; Frederiksted Reef System; Cane Bay; and Green Cay Wildlife Refuge.
        Memorandums of Understanding (MOUs)
        The comprehensive amendment also proposes to develop MOUs to achieve cooperative management and compatible regulatory regimes. The comprehensive amendment proposes to develop a MOU between NMFS and the U.S. Virgin Islands government leading to the development of compatible regulations to achieve the objectives for Nassau grouper set forth in the Council's Reef Fish FMP in U.S. Virgin Islands and Federal waters of the U.S. Caribbean. In addition, the amendment proposes to develop an MOU between NMFS and the governments of Puerto Rico and the U.S. Virgin Islands to develop compatible regulations to achieve the management objectives set forth in the Council's Queen Conch FMP in state and Federal waters of the U.S. Caribbean.
        Classification
        At this time, NMFS has not determined that the comprehensive amendment that this proposed rule would implement is consistent with the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period on this proposed rule.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        NMFS prepared a final supplemental environmental impact statement for this amendment; a notice of availability was published on June 24, 2005 (70 FR 36582).

        The Council in conjunction with NMFS prepared an initial regulatory flexibility analysis (IRFA) as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).
        The proposed rule would implement an integrated FMP amendment that will bring the Caribbean Council's FMPs for spiny lobster, queen conch, reef fish, corals, and reef associated plants and invertebrates into full compliance with requirements of the Magnuson-Stevens Act. The Magnuson-Stevens Act provides the statutory basis for the proposed rule. The objectives of the proposed rule are to: (1) define FMUs and FMU sub-units, (2) specify biological reference points and stock status determination criteria, (3) regulate fishing mortality, (4) rebuild overfished fisheries, (5) conserve and protect yellowfin grouper, (6) achieve bycatch mandates, and (7) achieve the EFH mandates.
        The proposed rule would affect commercial and recreational fishermen and charter fishing services in Puerto Rico and the U.S. Virgin Islands. In Puerto Rico, there are approximately 1,758 commercial fishers, of which 1,262 fishers are full-time and 496 are part-time. The number of commercial fishers in the U.S. Virgin Islands is estimated to be 349. Approximately 50 entities offer year-round charter services in the U.S. Caribbean, with the majority located in the U.S. Virgin Islands. NMFS expects that 88 Puerto Rican commercial fishers, or 5 percent, and 50 U.S. Virgin Islands commercial fishers, or 10 percent, and 3 of the charter services, or 5 percent operate in the EEZ and may be affected by this proposed rule. The Small Business Administration (SBA) size standards for the finfish, shellfish, and other marine fishing industries are the same; each has a size standard of $3.5 million in annual sales. The SBA size standard for the charter fishing industry is $6.0 million in annual sales. NMFS assumes that all of the commercial fishers in Puerto Rico, all of the commercial fishers in the U.S. Virgin Islands, and all of the charter fishing services that operate in the U.S. Caribbean EEZ are small businesses. Thus, NMFS expects that a total of 6.5 percent of small businesses in commercial fishing and 5 percent of small businesses in charter fishing services may be affected by this proposed rule.

        The proposed rule would: (1) prohibit fishing for or possession of queen conch in the EEZ, with the exception of Lang Bank east of St. Croix; (2a) move aquarium trade species of Caribbean coral and reef fish from a management to a data collection only category, thereby removing existing fishery management restrictions on these species; (2b) move all species of Caribbean conch, with the exception of queen conch, to a data collection only category, thereby removing fishery management restrictions on these species; (3) close the EEZ to the possession of red, black, tiger, yellowfin, and yellowedge grouper from February 1 through April 30; (4) close the EEZ off the west coast of Puerto Rico to the possession of red hind from December 1 through February 28; (5) close the EEZ to the possession of black, blackfin, vermilion, and silk snapper from October 1 through December 31; (6) close the EEZ to the possession of mutton snapper and lane snapper from April 1 through June 30; (7a) implement an immediate prohibition against the use of gillnets and trammel nets to fish for Caribbean reef fish or Caribbean spiny lobster in the EEZ; (7b) require gillnets used to fish for other species in the EEZ to be tended at all times; (8) prohibit the filleting of fish in the EEZ and require that fish captured or possessed in the EEZ be landed with heads and fins intact, with minor exceptions; (9) close an area of the Grammanik Bank to fishing for or possessing any species of fish, except highly migratory species, from February 1 through April 30 of each year; (10) amend current requirements for trap construction such that only one escape panel is required, which could be the door; (11a) require at least one buoy that floats on the surface for all traps/pots fished individually for all fishing vessels that fish for or possess Caribbean spiny lobster or Caribbean reef fish species in or from the EEZ; (11b) require at least one buoy at each end of trap lines linking traps/pots for all fishing vessels that fish for or possess Caribbean spiny lobster or Caribbean reef fish species in or from the EEZ; (11c) prohibit use of pots/traps, gill/trammel nets, and bottom longlines on coral or hard bottom year-round in the existing seasonally closed areas and Grammanik Bank in the EEZ; and (11d) require an anchor retrieval system for all vessels that fish for or possess Caribbean reef fish species in or from the EEZ.
        Identification, to the extent practicable, of all relevant federal rules that may duplicate, overlap, or conflict with the proposed rule is incorporated into the following discussion of compliance requirements and their associated economic impacts.
        The queen conch fishery occurs primarily in state waters. Approximately 92 percent of Puerto Rican queen conch harvest is reported to be obtained from state waters of Puerto Rico, while 60 percent of U.S. Virgin Islands queen conch harvests is estimated to be harvested from state waters. Only 18 fishermen were observed harvesting queen conch in the EEZ in the U.S. Caribbean in 1999 (2 from the U.S. Virgin Islands and 16 from Puerto Rico). These 18 fishers represented 7 percent of 260 U.S. Caribbean queen conch fishers (209 in Puerto Rico and 51 in the U.S. Virgin Islands), or less than 1 percent of all small commercial fishing businesses in the U.S. Caribbean. The 16 fishers from Puerto Rico represent 8 percent of queen conch fishers from that area, while the 2 fishers from the U.S. Virgin Islands represent 4 percent of U.S. Virgin Islands queen conch fishers. Because of water depth in the EEZ, SCUBA is the primary harvest gear and likely the only gear used to harvest queen conch in the EEZ. Consequently, harvests of queen conch in the EEZ are limited to a great extent by the amount of time a diver can safely work underwater. It is likely that most to all of the 16 fishers from Puerto Rico that harvest queen conch from the EEZ generate the bulk of their revenues and profits from queen conch taken from shallower state waters. Furthermore, it is likely that their revenues and profits from queen conch harvested from the EEZ represent a small proportion of their total revenues and profits, and the proposed prohibition against fishing for or possession of queen conch in the EEZ, with the exception of Lang Bank, is not expected to have a significant adverse economic impact on these fishers. However, revenues and profits from queen conch fishing in the EEZ represent a larger proportion of total revenues and profits from queen conch for the 2 U.S. Virgin Islands queen conch fishers, and the prohibition could have a greater adverse economic impact on these fishers. Additionally, if Puerto Rico and the U.S. Virgin Islands were to further restrict queen conch fishing in state waters, the combined Federal and state actions would have a much greater adverse economic impact on these fishers.
        Any small business that harvests species of Caribbean conch, other than queen conch, or aquarium trade species of Caribbean coral or reef fish in the EEZ could potentially benefit from the proposed movement of these species to a data-collection-only category because this would eliminate existing Federal fishing restrictions on these species. However, any economic benefit that is obtained by small businesses from this proposed movement is expected to be negligible because harvest of these species occurs predominantly in state waters.
        The U.S. Caribbean reef fish fishery is essentially a multi-species fishery in that fishers catch multiple species of reef fish on any given trip. Consequently, the harvest of any particular species likely represents a small proportion of total revenue and profit for any given trip. In addition to the closures contained in the proposed rule, there is currently a seasonal closure from December 1 through February 28 to all fishing in red hind spawning areas and a seasonal closure from March 1 through June 30 to all fishing in the mutton snapper spawning aggregation area. To mitigate any revenue and profit losses that may result from the proposed closures, commercial fishers and charter fishing operations that fish for reef fish in the EEZ may intensify fishing before and after the seasonal closures or relocate to state waters. The mitigating economic effects of these behavioral changes cannot be forecast. Nonetheless, the combined seasonal closures may have a significant adverse economic impact on up to 6.5 percent of the small commercial fishing businesses and up to 5 percent of the small charter fishing businesses.
        The prohibition against the use of gillnets and trammel nets to catch Caribbean spiny lobster and reef fish would require the adoption of other gear, most likely traps/pots, to harvest these species. NMFS does not believe, however, that Puerto Rican fishers significantly use either gillnets or trammel nets to fish in the EEZ because of water depth. Consequently, the prohibition would likely affect a small number of the small commercial fishing businesses in Puerto Rico that operate in the EEZ. In the U.S. Virgin Islands, more fishable habitat exists that can be targeted by nets due to the 3 nm (5.6 km) state boundary. Divers commonly deploy nets in shallower portions of Lang Bank off St. Croix, where they place the nets in the migratory pathways of reef fish. Nets accounted for 33 percent of parrotfish landings and 11 percent of surgeonfish landings in the U.S. Virgin Islands from 1994 through 2002. Furthermore, the use of gillnets and trammel nets has increased among St. Croix fishers because they have switched from traps due to frequent trap theft and vandalism. Consequently, the prohibition against the use of gill and trammel nets is expected to have a greater adverse economic impact on the small commercial fishing businesses in the U.S. Virgin Islands that operate in the EEZ.
        The prohibition against the use of gill and trammel nets in the EEZ would not apply to the harvest of ballyhoo, gar, and flying fish, which are commonly found near the surface. When used to harvest these species, the nets must be tended at all times. Ballyhoo and gar are used as bait. At present, there is insufficient information to determine the economic impact on any small businesses that may currently harvest ballyhoo, gar, or flying fish in the EEZ by using untended gill and trammel nets.

        Since 1990 and 1993, there have been prohibitions against the harvest and possession of Nassau grouper and Goliath grouper in the EEZ, respectively; however, anecdotal evidence suggests that illegal harvest and possession may occur. Prohibiting the filleting of all species of fish in the U.S. Caribbean EEZ, except highly migratory species or species caught and used for bait or the crew's own consumption, and requiring that all fish captured or possessed in the EEZ be landed with heads and fins intact would improve enforcement of existing prohibitions and result in reduced illegal revenues. At the same time, the prohibition may reduce legal revenues for those who fish for other species in the EEZ and fillet their fish due to limited storage capacity. Since whole fish take up more space in a vessel than fillets, harvest per trip may be reduced. However, since the typical fishing vessel in the Caribbean EEZ does not have fish holds and in many cases does not use coolers, it is expected that a substantial number of the small businesses do not fillet their catches in the EEZ and would not experience a significant adverse economic impact.
        The proposed rule would prohibit fishing for or possession of any species of fish, except highly migratory species, within a 0.44 nm2 (1.5 km2) area of Grammanik Bank from February 1 through April 30 of each year. The proposed seasonal Grammanik Bank closure is expected to have the greatest adverse economic impact on fishers who harvest yellowfin grouper because the reported spawning aggregation of yellowfin grouper is centered within the proposed closed area during this time. As previously discussed, the proposed rule would close the U.S. EEZ to the possession of red, black, tiger, yellowfin, and yellowedge grouper from February 1 through April 30. The combined impact of the Grammanik Bank closure and the February through April prohibition on yellowfin grouper fishers in the EEZ would be a prohibition on fishing for yellowfin grouper or any other fish in an area of Grammanik Bank for 3 months and a ban on the possession of yellowfin grouper in the EEZ for the same 3 months. To mitigate losses due to the prohibitions, commercial fishers may intensify fishing for yellowfin grouper and other species before and after the seasonal bans and/or move their fishing activities to state waters. The 1994 through 2002 average annual landings of all grouper species caught in both state and Federal waters in both St. Thomas and St. John is 22,368 lb (10,146 kg). The proportion of the grouper species caught in the EEZ during February through April within this average is expected to be comparatively small, and the proportion of the average that represents yellowfin grouper caught in the EEZ during those months even smaller. Average annual landings of yellowfin grouper in Puerto Rico from 1997 though 2002 is approximately 4,400 lb (1,996 kg). NMFS expects that the proportion of yellowfin grouper within this average caught in the EEZ from February 1 through April 30 is comparatively small, as well. Nonetheless, the adverse economic impact could be significant for some of the small commercial fishers that operate in the EEZ.
        The proposed rule would require only one escape panel for traps and pots. Anecdotal information and the experience of local fishery management officials indicate that Caribbean fishers would be more likely to comply with such a requirement rather than the current requirement of two escape panels. Since the proposed rule would relax an existing restriction, no adverse economic impact associated with this measure is anticipated.
        Although the current data collection system in place in the U.S. Caribbean, partially funded through Federal grants, does not require commercial fishers or charter fishing operations to report bycatch data, Puerto Rico has agreed to require that this information be reported, and the U.S. Virgin Islands has already incorporated bycatch data into its reporting requirement. The proposed rule would require consultation with Puerto Rico in an effort to add data fields to its existing mandatory landings reports in order to include consistent and standardized bycatch data. Consequently, the proposed rule does not directly impose any new reporting or recordkeeping requirements. However, the indirect economic impact of requiring additional reporting information will accrue to commercial fishing and charter fishing businesses in Puerto Rico through additional time to report bycatch information. At present, there is insufficient information to quantify the amount of time necessary to report such information and how this might affect business operation; however, the individual burden is not expected to be substantial and not impose a significant adverse impact.
        The use of traps and pots in the EEZ is expected to be infrequent because of water depth. Nevertheless, for those who use traps and pots in the EEZ, the requirement to have at least one buoy that floats on the surface of all traps or pots fished individually and have at least one buoy at each end of trap lines linking traps/pots is not expected to impose a significant adverse economic impact since the additional gear expenses should be minor.
        The proposed prohibition against the use of traps and pots, gill and trammel nets, and bottom longlines in currently existing, seasonally closed areas and the proposed Grammanik Bank seasonal closure represents a ban against the use of traditional gear types in these areas. This prohibition could be especially burdensome to U.S. Virgin Islands commercial fishers from St. Croix because they have already lost fishing areas in state waters due to U.S. Virgin Islands closures. The majority of fishable habitat off St. Croix is primarily isolated to Lang Bank and, currently, the head of Lang Bank is closed to all fishing from December 1 through February 28 each year. The proposed prohibition would ban the use of traditional gear in an area that encompasses approximately the easternmost half of the Bank. Consequently, NMFS expects that the ban will have a significant adverse economic impact on those St. Croix commercial fishers that currently use traps and pots, gills and trammel nets, and/or bottom longlines in the eastern half of the Bank.
        The owner or operator of any fishing vessel, recreational or commercial, that fishes for or possesses Caribbean reef fish in or from the Caribbean EEZ must ensure that the vessel uses only an anchor retrieval system that recovers the anchor by its crown, thereby preventing the anchor from dragging along the bottom during recovery and damaging habitat. NMFS assumes that most commercial and charter fishing vessels that operate in the EEZ do not currently have an anchor retrieval system that meets the proposed requirement. For those fishers that have a grapnel hook, this would require incorporating an anchor rode reversal bar that runs parallel along the shank, and for those that have a fluke or plow-type anchor, a trip line consisting of a line from the crown of the anchor to a surface buoy would be required. There is currently insufficient information to quantify the number of fishing vessels that use the different types of anchors and the costs of making necessary modifications. However, NMFS expects the cost will not represent a significant adverse economic impact on these small businesses.

        Significant alternatives to the proposed actions that were considered would have increased the significant adverse economic impact on small businesses. One alternative would have banned fishing for or possession of queen conch in the entire EEZ, which could have had a greater adverse economic impact on the 7 percent of small businesses that harvest queen conch in the EEZ. Although sufficient data are not available to determine the impact of this rejected alternative on the relatively few individual vessel operators that harvest queen conch in the EEZ, it is expected that few, if any, such operators have a total dependence on harvest from the EEZ because the majority of queen conch are harvested from state waters. Regardless, the opportunity to shift fishing effort from the EEZ to state waters would tend to mitigate any adverse impacts. Alternatives to the preferred seasonal bans on the possession of mutton snapper and lane snapper, red hind, and the respective snapper and grouper species would have banned the possession of all species managed by the Caribbean Council for 3 months, 6 months, or a year. Such bans would have had greater adverse economic impacts than the proposed rule. Alternatives to the proposed prohibition on the use of gillnets and trammel nets in the EEZ considered closing various areas of the EEZ to fishing for or possession of all species or eliminating the use of fish traps in the EEZ, which would have had greater adverse economic impacts. Alternatives to the proposed ban on filleting of fish in the EEZ would have established seasonal or area closures to protect spawning stocks of Nassau and Goliath grouper, which would have had greater adverse economic impact on fishers, especially St. Croix fishers. One alternative to the proposed seasonal ban on fishing for or possession of all fish in the Grammanik Bank, except highly migratory species, would have increased the size and length of the ban and the second alternative would have added a year-round ban on fishing for or possession of yellowfin grouper in the EEZ. Both of these alternatives would have increased the adverse economic impact. Finally, an alternative to the proposed modification of the trip ticket system to include bycatch information would have implemented a Federal permit system for commercial and charter fishing businesses that operate in the EEZ, with a mandatory monthly reporting requirement, and would have had a greater adverse impact than the proposed action.

          List of Subjects

          50 CFR Part 600

        Administrative practice and procedure, Confidential business information, Fisheries, Fishing, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Statistics.

          50 CFR Part 622

        Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.

          Dated: September 2, 2005.
          John Oliver,
          Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR parts 600 and 622 are proposed to be amended as follows:

          PART 600—MAGNUSON-STEVENS ACT PROVISIONS

        1. The authority citation for part 600, Subpart H continues to read as follows:

          Authority:
          5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

          § 600.725
          [Amended]
          2. In § 600.725, amend the table in paragraph (v), section V., as follows:
          a. Under the heading “1. Caribbean Spiny Lobster Fishery (FMP)”, remove entry “C” from the first and second columns; redesignate entries “D” and “E” as “C” and “D”, respectively, in the first and second columns; and remove the words “gillnet, trammel net” from the second column in the newly redesignated entry “D”; and
          b. Under the heading “2. Caribbean Shallow Water Reef Fish Fishery (FMP)”, remove entry “C” from the first and second columns; and redesignate entry “D” as “C” in the first and second columns.

          PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

        3. The authority citation for part 622 continues to read as follows:

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

        4. In § 622.2, the definition of “Caribbean conch resource” is removed, and a definition of “Caribbean queen conch” is added in alphabetical order to read as follows:

          § 622.2
          Definitions and acronyms.

            Caribbean queen conch means the species, Strombus gigus, or a part thereof.

        5. In § 622.6, paragraph (b)(1)(ii)(A) is revised to read as follows:

          § 622.6
          Vessel and gear identification.

          (b) * * *
          (1) * * *
          (ii) * * *
          (A) Caribbean EEZ. Traps or pots used in the Caribbean spiny lobster or Caribbean reef fish fisheries that are fished individually, rather than tied together in a trap line, must have at least one buoy attached that floats on the surface. Traps or pots used in the Caribbean spiny lobster or Caribbean reef fish fisheries that are tied together in a trap line must have at least one buoy that floats at the surface attached at each end of the trap line. Each buoy must display the official number and color code assigned to the vessel by Puerto Rico or the U.S. Virgin Islands, whichever is applicable.

        6. In § 622.31, paragraph (l) is added to read as follows:

          § 622.31
          Prohibited gear and methods.

          (l) Gillnets and trammel nets in the Caribbean EEZ. A gillnet or trammel net may not be used in the Caribbean EEZ to fish for Caribbean reef fish or Caribbean spiny lobster. Possession of a gillnet or trammel net and any Caribbean reef fish or Caribbean spiny lobster in or from the Caribbean EEZ is prima facie evidence of violation of this paragraph (l). A gillnet or trammel net used in the Caribbean EEZ to fish for any other species, including species in the family Exocoetidae, flyingfishes, or the family Belonidae, needlefishes, must be tended at all times.

        7. In § 622.32, paragraph (b)(1)(ii) is revised, and paragraph (b)(1)(iv) is added to read as follows:

          § 622.32
          Prohibited and limited-harvest species.

          (b) * * *
          (1) * * *
          (ii) No person may fish for or possess goliath grouper and Nassau grouper in or from the Caribbean EEZ. Such fish caught in the Caribbean EEZ must be released immediately with a minimum of harm.

          (iv) No person may fish for, or possess on board a fishing vessel, a Caribbean queen conch in or from the Caribbean EEZ, except during October through June in the area east of 64°34′ W. longitude which includes Lang Bank east of St. Croix, U.S. Virgin Islands.

        8. In § 622.33, paragraph (a) introductory text and paragraph (a)(3) are revised, and paragraphs (a)(4) through (a)(7) are added to read as follows:

          § 622.33
          Caribbean EEZ seasonal and/or area closures.
          (a) Seasonal closures. In addition to the other restrictions specified in this paragraph (a), fishing with pots, traps, bottom longlines, gillnets or trammel nets is prohibited year-round in the closed areas specified in paragraphs (a)(1), (a)(2), and (a)(3) of this section.

          (3) Grammanik Bank closed area. (i) The Grammanik Bank closed area is bounded by rhumb lines connecting, in order, the following points:

              Point
              North lat.
              West long.

              A
              18°11.898′
              64°56.328′

              B
              18°11.645′
              64°56.225′

              C
              18°11.058′
              64°57.810′

              D
              18°11.311′
              64°57.913′

              A
              18°11.898′
              64°56.328′

          (ii) From February through April, each year, no person may fish for or possess any species of fish, except highly migratory species, in or from the Grammanik Bank closed area. This prohibition on possession does not apply to such fish harvested and landed ashore prior to the closure. For the purpose of paragraph (a)(4) of this section, “fish” means finfish, mollusks, crustaceans, and all other forms of marine animal and plant life other than marine mammals and birds. “Highly migratory species” means bluefin, bigeye, yellowfin, albacore, and skipjack tunas; swordfish; sharks (listed in Appendix A to Part 635 of this title); white marlin, blue marlin, sailfish, and longbill spearfish.
          (4) Red, black, tiger, yellowfin, or yellowedge grouper. From February through April, each year, no person may fish for or possess red, black, tiger, yellowfin, or yellowedge grouper in or from the Caribbean EEZ. This prohibition on possession does not apply to such grouper harvested and landed ashore prior to the closure.
          (5) Additional red hind closure. From December through February, each year, no person may fish for or possess red hind in or from the Caribbean EEZ west of 67°10′ W. longitude. This prohibition on possession does not apply to red hind harvested and landed ashore prior to the closure.
          (6) Vermilion, black, silk, or blackfin snapper. From October through December, each year, no person may fish for or possess vermilion, black, silk, or blackfin snapper in or from the Caribbean EEZ. This prohibition on possession does not apply to such snapper harvested and landed ashore prior to the closure.
          (7) Lane or mutton snapper. From April through June, each year, no person may fish for or possess lane or mutton snapper in or from the Caribbean EEZ. This prohibition on possession does not apply to such snapper harvested and landed ashore prior to the closure.

        9. In § 622.38, paragraphs (a), (d), and (f) are revised to read as follows:

          § 622.38
          Landing fish intact.

          (a) The following must be maintained with head and fins intact: cobia, king mackerel, and Spanish mackerel in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ, except as specified for king mackerel in paragraph (g) of this section; dolphin and wahoo in or from the Atlantic EEZ; South Atlantic snapper-grouper in or from the South Atlantic EEZ, except as specified in paragraph (h) of this section; finfish in or from the Caribbean EEZ, except as specified in paragraphs (c) and (d) of this section; and finfish in or from the Gulf EEZ, except as specified in paragraphs (c) and (d) of this section. Such fish may be eviscerated, gilled, and scaled, but must otherwise be maintained in a whole condition.

          (d) In the Gulf EEZ or Caribbean EEZ:
          (1) Bait is exempt from the requirement to be maintained with head and fins intact.
          (i) For the purpose of this paragraph (d)(1), “bait” means—
          (A) Packaged, headless fish fillets that have the skin attached and are frozen or refrigerated;
          (B) Headless fish fillets that have the skin attached and are held in brine; or
          (C) Small pieces no larger than 3 in3 (7.6 cm3) or strips no larger than 3 inches by 9 inches (7.6 cm by 22.9 cm) that have the skin attached and are frozen, refrigerated, or held in brine.
          (ii) Paragraph (d)(1)(i) of this section notwithstanding, a finfish or part thereof possessed in or landed from the Gulf EEZ or Caribbean EEZ that is subsequently sold or purchased as a finfish species, rather than as bait, is not bait.
          (2) Legal-sized finfish possessed for consumption at sea on the harvesting vessel are exempt from the requirement to have head and fins intact, provided—
          (i) Such finfish do not exceed any applicable bag limit;
          (ii) Such finfish do not exceed 1.5 lb (680 g) of finfish parts per person aboard; and
          (iii) The vessel is equipped to cook such finfish on board.

          (f) Queen conch in or from the Caribbean EEZ must be maintained with meat and shell intact.

        10. In § 622.40, paragraph (b)(1)(i) is revised to read as follows:

          § 622.40
          Limitations on traps and pots.

          (b) * * *
          (1) * * *
          (i) A fish trap used or possessed in the Caribbean EEZ must have a panel located on one side of the trap, excluding the top, bottom, and side containing the trap entrance. The opening covered by the panel must measure not less than 8 by 8 inches (20.3 by 20.3 cm). The mesh size of the panel may not be smaller than the mesh size of the trap. The panel must be attached to the trap with untreated jute twine with a diameter not exceeding 1/8 inch (3.2 mm). An access door may serve as the panel, provided it is on an appropriate side, it is hinged only at its bottom, its only other fastening is untreated jute twine with a diameter not exceeding 1/8 inch (3.2 mm), and such fastening is at the top of the door so that the door will fall open when such twine degrades. Jute twine used to secure a panel may not be wrapped or overlapped.

        11. In § 622.41, paragraph (b) is revised to read as follows:

          § 622.41
          Species specific limitations.

          (b) Caribbean reef fish anchoring restriction. The owner or operator of any fishing vessel, recreational or commercial, that fishes for or possesses Caribbean reef fish in or from the Caribbean EEZ must ensure that the vessel uses only an anchor retrieval system that recovers the anchor by its crown, thereby preventing the anchor from dragging along the bottom during recovery. For a grapnel hook, this could include an incorporated anchor rode reversal bar that runs parallel along the shank, which allows the rode to reverse and slip back towards the crown. For a fluke- or plow-type anchor, a trip line consisting of a line from the crown of the anchor to a surface buoy would be required.

        12. In Appendix A to Part 622, Tables 1 and 2 are revised, and Table 5 is added to read as follows:
        BILLING CODE 3510-22-S

          EP13SE05.006

          EP13SE05.007

          EP13SE05.008

          EP13SE05.009

          EP13SE05.010

          EP13SE05.011

          EP13SE05.012

          EP13SE05.013

          EP13SE05.014

          EP13SE05.015

          EP13SE05.016

          EP13SE05.017

          EP13SE05.018

          EP13SE05.019

          EP13SE05.020

          EP13SE05.021

          EP13SE05.022

        Table 5 of Appendix A to Part 622—Caribbean Conch Resources
        Queen conch, Strombus gigas

        The following species are included for data collection purposes only:
        Atlantic triton's trumpet, Charonia variegata

        Cameo helmet, Cassis madagascarensis

        Green star shell, Astrea tuber

        Hawkwing conch, Strombus raninus

        Milk conch, Strombus costatus

        Roostertail conch, Strombus gallus

        West Indian fighting conch, Strombus pugilis

        True tulip, Fasciolaria tulipa

      [FR Doc. 05-17945 Filed 9-12-05; 8:45 am]
      BILLING CODE 3510-22-C