        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R2-ES-2010-0041; MO 92210-0-0008]
        RIN 1018-AV97
        Endangered and Threatened Wildlife and Plants; 6-Month Extension of Final Determination for the Proposed Listing of the Dunes Sagebrush Lizard as Endangered

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce a 6-month extension of the final determination of whether to list the dunes sagebrush lizard (Sceloporus arenicolus) (lizard) as endangered and reopen the comment period on the proposed rule to list the species. We are taking this action because there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the proposed listing rule, making it necessary to solicit additional information by reopening the comment period for 45 days.

          DATES:
          The comment period end date is January 19, 2012. We request that comments be submitted by 11:59 p.m. Eastern Time on the closing date.

          ADDRESSES:
          You may submit written comments by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R2-ES-2010-0041, which is the docket number for this rulemaking.
          (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2010-0041; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.

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

          FOR FURTHER INFORMATION CONTACT:
          Wally Murphy, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Office, 2105 Osuna NE., Albuquerque, NM 87113; telephone ((505) 761-4781). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at (800) 877-8339).

        SUPPLEMENTARY INFORMATION:
        Background

        On December 14, 2010, we published a proposed rule (75 FR 77801) to list the dunes sagebrush lizard, a lizard known from southeastern New Mexico and adjacent west Texas, as endangered under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.). For a description of previous Federal actions concerning the dunes sagebrush lizard (formerly known as the sand dunes lizard), please refer to the proposed rule. In addition to the original comment period associated with the publication of the proposed rule, we held two public meetings in April 2011 and reopened the comment period to accept additional public comments (76 FR 19304, April 7, 2011). That comment period closed on May 9, 2011.
        Section 4(b)(6) of the Act requires that we take one of three actions within 1 year of a proposed listing: (1) Finalize the proposed listing; (2) withdraw the proposed listing; or (3) extend the final determination by not more than 6 months, if there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination, for the purposes of soliciting additional data.
        Since the publication of the proposed rule, there has been substantial disagreement regarding the interpretation of the limited surveys used to determine the dunes sagebrush lizard's status and trends. This has led to a significant disagreement regarding the current conservation status of the species in New Mexico and Texas. In addition, there was sparse information on the dunes sagebrush lizard's presence in Texas, leading to substantial disagreement on the accuracy of our analysis of the status of the lizard in Texas.
        Therefore, in consideration of the disagreements surrounding the lizard's status, we are extending the final determination for 6 months in order to solicit information that will help to clarify these issues.
        Public Comments

        We will accept written comments and information during this reopened comment period on our proposed listing for the dunes sagebrush lizard that was published in the Federal Register on December 14, 2010 (75 FR 77801). We will consider information and recommendations from all interested parties. We intend that any final action resulting from this proposal be as accurate as possible and based on the best available scientific and commercial data.
        Therefore, in consideration of the disagreements surrounding the lizard's status, we are extending the final determination for 6 months in order to solicit information that will help to clarify these issues. We are particularly interested in new information regarding:
        (1) Population estimates of the dunes sagebrush lizard in New Mexico and Texas.
        (2) Data that quantify the current amount of habitat and the loss of habitat.
        (3) Survey information, including maps, throughout the dunes sagebrush lizard's range, especially for Texas.
        In addition to our request for new information, we are also reopening the comment period to ensure the public has full access to and an opportunity to comment on all the available information we have received since the second comment period closed. We have received new survey information for the lizard in New Mexico and Texas and an unsolicited peer review study on our proposed rule. We are soliciting input from concerned governmental agencies, the scientific community, industry, or any other interested party concerning the proposed rule in light of this additional information.
        If you previously submitted comments or information on the proposed rule, please do not resubmit them. We have incorporated them into the public record, and we will fully consider them in the preparation of our final determination. Our final determination concerning this proposed listing will take into consideration all written comments and any additional information we received.

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

        Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R2-ES-2010-0041, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2010-0041, or by mail from the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
        Authors
        The primary authors of this notice are the staff of the U.S. Fish and Wildlife Service.
        Authority

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

          Dated: November 22, 2011.
          Daniel M. Ashe,
          Director, U.S. Fish and Wildlife Service.

      [FR Doc. 2011-31198 Filed 12-2-11; 8:45 am]
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        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 224
        [Docket No. 150209121-5941-02]
        RIN 0648-XD760
        Endangered and Threatened Wildlife; 12-Month Finding on a Petition To Identify and Delist a Saint John River Distinct Population Segment of Shortnose Sturgeon Under the Endangered Species Act

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

          ACTION:
          Notice of 12-month petition finding.

          SUMMARY:

          We, NMFS, announce a 12-month finding on a petition to identify and “delist” shortnose sturgeon (Acipenser brevirostrum) within the Saint John River in New Brunswick, Canada under the Endangered Species Act (ESA). The shortnose sturgeon is currently listed as an endangered species, at the species level, under the ESA. Based on our review of the best scientific and commercial data available, we have determined that the population of shortnose sturgeon from the Saint John River does not qualify as a distinct population segment. Therefore, we did not consider the petition further, and we do not propose to delist this population.

          DATES:
          This finding was made on October 26, 2015.

          ADDRESSES:

          Information used to make this finding is available for public inspection by appointment during normal business hours at NMFS, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910. The petition and the list of the references used in making this finding are also available on the NMFS Web site at: www.nmfs.noaa.gov/pr/species/fish/shortnose-sturgeon.html.

          FOR FURTHER INFORMATION CONTACT:
          Lisa Manning, Office of Protected Resources, 301-427-8466; Stephania Bolden, Southeast Regional Office, 727-824-5312; Julie Crocker, Greater Atlantic Regional Office, 978-282-8480.

        SUPPLEMENTARY INFORMATION:
        Background

        On September 24, 2014, we received a petition from Dr. Michael J. Dadswell, Dr. Matthew K. Litvak, and Mr. Jonathan Barry regarding the population of shortnose sturgeon (Acipenser brevirostrum) native to the Saint John River in New Brunswick, Canada. The petition requests that we identify the Saint John River population of shortnose sturgeon as a distinct population segment (DPS) and contemporaneously “delist” this DPS by removing it from the species-wide listing under the Endangered Species Act. On April 6, 2015, we published a positive finding indicating that the petitioned action may be warranted and that we were initiating a status review to consider the petition further (80 FR 18347).

        The shortnose sturgeon was originally listed as an endangered species throughout its range by the U.S. Fish and Wildlife Service (USFWS) on March 11, 1967, under the Endangered Species Preservation Act (ESPA, 32 FR 4001). Shortnose sturgeon remained on the endangered species list when the U.S. Congress replaced the ESPA by enacting the Endangered Species Conservation Act of 1969, which was in turn replaced by the Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531 et seq.). We subsequently assumed jurisdiction for shortnose sturgeon under a 1974 government reorganization plan (39 FR 41370, November 27, 1974). In Canada, the shortnose sturgeon falls under the jurisdiction of the Department of Fisheries and Oceans (DFO) and was first assessed by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) as “Special Concern” in 1980. This status was reconfirmed in 2005, and the species was listed as Special Concern under the Canadian federal Species at Risk Act (SARA) in 2009. The Special Concern status was reconfirmed again in 2015 (COSEWIC, In Press). Shortnose sturgeon is also listed under Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna (CITES).
        Statutory, Regulatory and Policy Provisions

        We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this determination, we first consider whether a group of organisms constitutes a “species” under section 3 of the ESA, and then we consider whether the status of the species qualifies it for listing as either threatened or endangered. Section 3 of the ESA defines a “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature” (16 U.S.C. 1532(16)). A joint policy issued by NMFS and the U.S. Fish and Wildlife Service (USFWS; collectively referred to as “the Services”) clarifies the interpretation of the phrase “distinct population segment” (DPS) for the purposes of listing, delisting, and reclassifying a species under the ESA (“DPS Policy,” 61 FR 4722, February 7, 1996). The DPS Policy identifies two criteria for determining whether a population is a DPS: (1) The population must be “discrete” in relation to the remainder of the taxon (species or subspecies) to which it belongs; and (2) the population must be “significant” to the remainder of the taxon to which it belongs.

        Congress has instructed the Secretary to exercise the authority to recognize DPS's “sparingly and only when the biological evidence indicates that such action is warranted” (S. Rep. 96-151 (1979)). The law is not settled as to the extent of the Services' discretion to modify a species-level listing to recognize a DPS having a status that differs from the original listing. In a recent decision, the United States District Court for the District of Columbia held that the ESA does not permit identification of a DPS solely for purposes of delisting. Humane Soc'y v. Jewell, 76 F. Supp. 3d 69 (D.D.C. Dec. 19, 2014), appeal docketed, No. 15-5041 (D.C. Cir. Feb. 19, 2015) (Western Great Lakes gray wolves) (consolidated with Nos. 15-5043, 15-5060, and 15-5061).
        A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). We interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future. In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened). In addition, we interpret “foreseeable future” as the horizon over which predictions about the conservation status of the species can be reasonably relied upon.

        Pursuant to the ESA and our implementing regulations, the determination of whether a species is threatened or endangered shall be based on any one or a combination of the following five section 4(a)(1) factors: The present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence. 16 U.S.C. 1533(a)(1); 50 CFR 424.11(c). Listing determinations must be based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account any efforts being made by any state or foreign nation (or any political subdivision of such state or foreign nation) to protect the species. 16 U.S.C. 1532(b)(1)(A).

        Under section 4(a)(1) of the ESA and the implementing regulations at 50 CFR 424.11(d), a species shall be removed from the list if the Secretary of Commerce determines, based on the best scientific and commercial data available after conducting a review of the species' status, that the species is no longer threatened or endangered because of one or a combination of the section 4(a)(1) factors. The regulations provide that a species listed under the ESA may be delisted only if such data substantiate that it is neither endangered nor threatened for one or more of the following reasons:

          (1) Extinction. Unless all individuals of the listed species had been previously identified and located, and were later found to be extirpated from their previous range, a sufficient period of time must be allowed before delisting to indicate clearly that the species is extinct.
          (2) Recovery. The principal goal of the USFWS and NMFS is to return listed species to a point at which protection under the ESA is no longer required. A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened.
          (3) Original data for classification in error. Subsequent investigations may show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error.

          50 CFR 424.11(d).

        To complete the required finding in response to the current delisting petition, we first evaluated whether the petitioned entity meets the criteria of the DPS Policy. As we noted in our initial petition finding, a determination whether to revise a species-level listing to recognize one or more DPSs in place of a species-level listing involves, first, determining whether particular DPS(s) exist(s) (based on meeting the criteria of the DPS Policy) and, if that finding is affirmative, complex evaluation as to the most appropriate approach for managing the species in light of the purposes and authorities under the ESA.
        Species Description

        Below, we summarize basic life history information for shortnose sturgeon. A more thorough discussion of all life stages, reproductive biology, habitat use, abundance estimates and threats are provided in the Shortnose Sturgeon Biological Assessment completed by the Shortnose Sturgeon Status Review Team in 2010 (SSRT 2010; http://www.fisheries.noaa.gov/pr/species/fish/shortnose-sturgeon.html).

        There are 25 species and four recognized genera of sturgeons (family Acipenseridae), which comprise an ancient and distinctive assemblage with fossils dating to at least the Upper Cretaceous period, more than 66 million years ago (Findeis 1997). The shortnose sturgeon, Acipenser brevirostrum, is the smallest of the three extant sturgeon species in eastern North America. Many primitive physical characteristics that reflect the shortnose sturgeon's ancient lineage have been retained, including a protective armor of bony plates called “scutes”; a subterminal, protractile tube-like mouth; and chemosensory barbels. The general body shape is cylindrical, tapering at the head and caudal peduncle, and the upper lobe of the tail is longer than the lower lobe. Shortnose sturgeon vary in color but are generally dark brown to olive or black on the dorsal surface, lighter along the row of lateral scutes, and nearly white on the ventral surface. Adults have no teeth but possess bony plates in the esophagus that are used to crush hard prey items (Vladykov and Greeley 1963; Gilbert 1989). The skeleton is almost entirely cartilaginous with the exception of some bones in the skull, jaw and pectoral girdle.

        Shortnose sturgeon occur along the East Coast of North America in rivers, estuaries, and marine waters. Historically, they were present in most major rivers systems along the Atlantic coast (Kynard 1997). Their current riverine distribution extends from the Saint John River, New Brunswick, Canada, to possibly as far south as the St. Johns River, Florida (Figure 1; Kynard 1997; Gorham and McAllister 1974). Recently available information indicates that their marine range extends farther northward than previously thought and includes the Minas Basin, Nova Scotia (Dadswell et al. 2013). The distribution of shortnose sturgeon across their range, however, is disjunct, with no known reproducing populations occurring within the roughly 400 km of coast between the Chesapeake Bay and the southern boundary of North Carolina. Shortnose sturgeon live in close proximity with Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus) throughout much of their range. However, Atlantic sturgeon spend more of their life cycle in the open ocean compared to shortnose sturgeon. Within rivers, shortnose sturgeon and Atlantic sturgeon may share foraging habitat and resources, but shortnose sturgeon generally spawn farther upriver and earlier than Atlantic sturgeon (Kynard 1997, Bain 1997).
        BILLING CODE 3510-22-P

          EP26OC15.030

        BILLING CODE 3510-22-C

        Shortnose sturgeon typically migrate seasonally between upstream freshwater spawning habitats and downstream foraging mesohaline (i.e., salinities of 5 to 18 parts per thousand) habitat based on water temperature, flow, and salinity cues. Based on their varied and complex use of freshwater, estuarine, and marine waters, shortnose sturgeon have been characterized in the literature as “anadromous” or “amphidromous” (Bain 1977; Kieffer and Kynard 1993). An anadromous species is defined as one that spawns in freshwater and spends much of its life cycle in marine waters, whereas a freshwater amphidromous species is one that spawns and remains in freshwater for most of its life cycle but spends some time in saline water. Because shortnose sturgeon had historically rarely been detected far from their natal estuary, they were once considered to be largely confined to their natal rivers and estuaries (NMFS 1998). However, more recent research has demonstrated that shortnose sturgeon leave their natal estuaries, undergo coastal migrations, and use other river systems to a greater extent than previously thought (Kynard 1997; Savoy 2004; Fernandes 2010; Zydlewski et al. 2011; Dionne et al. 2013). The reasons for inter-riverine movements are not yet clear, and the degree to which this behavior occurs appears to vary among river systems.

        Shortnose sturgeon are benthic feeders, and their diet typically consists of small insects, crustaceans, mollusks, polychaetes, and small benthic fishes (McCleave et al. 1977; Dadswell 1979; Marchette and Smiley 1982; Dadswell et al. 1984; Moser and Ross 1995; Kynard et al. 2000; Collins et al. 2002). Both juvenile and adult shortnose sturgeon primarily forage over sandy-mud bottoms, which support benthic invertebrates (Carlson and Simpson 1987, Kynard 1997). Shortnose sturgeon have also been observed feeding off plant surfaces (Dadswell et al. 1984). Sturgeon likely use electroreception, olfaction, and tactile chemosensory cues to forage, while vision is thought to play a minor role (Miller 2004).

        Foraging in the colder rivers in the northern part of their range appears to greatly decline or cease during winter months when shortnose sturgeon generally become inactive. In mid-Atlantic areas, including the Chesapeake Bay, and the Delaware River, foraging is believed to occur year-round, though shortnose sturgeon are believed to feed less in the winter (J. O'Herron, Amitrone O'Herron, Inc., pers. comm. 2008 as cited in SSRT 2010). In the southern part of their range, shortnose sturgeon are known to forage widely throughout the estuary during the winter, fall, and spring (Collins and Smith 1993, Weber et al. 1999). During the hotter months of summer, foraging may taper off or cease as shortnose sturgeon take refuge from high water temperatures.

        Shortnose sturgeon are relatively small compared to most extant sturgeon species and reach a maximum length of about 120 cm total length (TL) and weight of about 24 kg (Dadswell 1979; Waldman et al. 2002); however, both maximum size and growth rate display a pattern of gradual variation across the range, with the fastest growth rates and smallest maximum sizes occurring in the more southern populations (Dadswell et al. 1984). The northernmost populations exhibit the slowest growth and largest adult sizes. The largest shortnose sturgeon reported in the published literature to date was collected from the Saint John River, Canada, and measured 143cm TL (122 cm fork length (FL)) and weighed 23.6 kg (Dadswell 1979). In contrast, in their review, Dadswell et al. (1984) indicated that the largest adult reported from the St. Johns River, Florida, was a 73.5 cm (TL) female. Dadswell et al. (1984) compared reported growth parameters across the range and showed that the von Bertalanffy growth parameter K and estimated asymptotic length ranged from 0.042 and 130.0 cm (FL), respectively, for Saint John River fish to 0.149 and 97.0 cm (FL) for Altamaha River, Georgia fish. However, the land-locked shortnose sturgeon population located upstream of Holyoke Dam at river km 140 of the Connecticut River has the slowest adult growth rate of any surveyed, which may at least in part reflect food limitations (Taubert 1980a).

        Shortnose sturgeon are relatively long-lived and slow to mature. The oldest shortnose sturgeon reported was a 67 year-old female from the Saint John River, and the oldest male reported was a 32 year-old fish, also captured in the Saint John River (Dadswell 1979). In general, fish in the northern portion of the species' range live longer than individuals in the southern portion of the species' range (Gilbert 1989). Males and females mature at about the same length, around 45-55 cm FL, throughout their range (Dadswell et al. 1984). However, age at maturity varies by sex and with latitude, with males in the southern rivers displaying the youngest ages at maturity (see review in Dadswell et al. 1984). For example, age at first maturation in males occurs at about 2-3 years of age in Georgia and at about 10-11 years in the Saint John River. Females mature by 6 years of age in Georgia and at about 13 years in the Saint John River (Dadswell et al. 1984).

        Sturgeon are iteroparous, meaning they reproduce more than once during their lifetime. In general, male shortnose sturgeon are thought to spawn every other year, but they may spawn annually in some rivers (Dovel et al. 1992; Kieffer and Kynard 1996). Females appear to spawn less frequently—approximately every 3 to 5 years (Dadswell 1979). Spawning typically occurs during late winter/early spring (southern rivers) and mid-to-late spring (northern rivers) (Dadswell 1979, Taubert 1980a and b, Kynard 1997). The onset of spawning may be cued by decreasing river discharge following the peak spring freshet, when water temperatures range from 8 to 15 °C and bottom water velocities range between 25-130 cm/s, although photoperiod (or day-length) appears to control spawning readiness (Dadswell et al. 1984; Kynard et al. 2012). Spawning appears to occur in the sturgeons' natal river, often just below the fall line at the farthest accessible upstream reach of the river (Dovel 1981; Buckley and Kynard 1985; Kieffer and Kynard 1993; O`Herron et al. 1993; Kieffer and Kynard 1996). Following spawning, adult shortnose sturgeon disperse quickly down river and typically remain downstream of their spawning areas throughout the rest of the year (Buckley and Kynard 1985, Dadswell et al. 1984; Buckley and Kynard 1985; O'Herron et al. 1993).
        In a review by Gilbert (1989), fecundity of shortnose sturgeon was reported to range between approximately 30,000-200,000 eggs per female. Shortnose sturgeon collected from the Saint John River had a range of 27,000-208,000 eggs and a mean of 11,568 eggs/kg body weight (Dadswell 1979). Development of the eggs and transition through the subsequent larval, juvenile and sub-adult life stages are discussed in more detail in SSRT 2010.

        A total abundance estimate for shortnose sturgeon is not available. However, population estimates, using a variety of techniques, have been generated for many individual river systems. In general, northern shortnose sturgeon population abundances are greater than southern populations (Kynard 1997). The Hudson River shortnose sturgeon population is currently considered to be the largest extant population (61,000 adults, 95 percent CI: 52,898-72,191; Bain et al. 2007; however, see discussion of this estimate in SSRT 2010). Available data suggest that some populations in northern rivers have increased over the past several decades (e.g., Hudson, Kennebec; Bain et al. 2000; Squiers 2003) and that others may be stable (e.g., Delaware; Brundage and O'Herron 2006). South of Chesapeake Bay, populations are relatively small compared to the northern populations. The largest population of shortnose sturgeon in the southern part of the range is from the Altamaha River, which was most recently estimated at 6,320 fish (95% CI: 4387-9249; Devries 2006). Occasional observations of shortnose sturgeon have been made in some rivers where shortnose sturgeon are considered extirpated (e.g., St. Johns, St. Mary's, Potomac, Housatonic, and Neuse rivers); the few fish that have been observed in these rivers are generally presumed to be immigrants from neighboring basins.

        The most recent total population estimate for the Saint John River dates to the 1970's. Using tag recapture data from 1973-1977, Dadswell (1979) calculated a Jolly-Seber population estimate of 18,000 (±30% SE; 95 percent CI: 7,200-28,880, COSEWIC, In Press) adults (> 50 cm) below the Mactaquac Dam. Several partial population estimates are also available for the Kennebecasis River, a tributary in the lower reaches of the Saint John River. Litvak (unpublished data) calculated a Jolly-Seber estimate of 2,068 fish (95% CI: 801-11,277) in the Kennebecasis using mark-recapture data from 1998 to 2004 (COSEWIC, In Press). Based on videotaping of overwintering aggregations of shortnose sturgeon on the Kennebecasis River at the confluence of the Hammond River (rkm 35), Li et al. (2007) used ordinary Kriging to estimate that 4,836 (95% CI: 4,701-4,971) adult shortnose sturgeon were overwintering in that area. Usvyatsov et al. (2012) repeated this sampling in 2009 and 2011 and, using three different modeling techniques, estimated a total of 3,852-5,222 shortnose sturgeon in the study area, which suggests fairly stable abundance and habitat use at this site.

        Threats that contributed to the species' decline and led to the listing of shortnose sturgeon under the ESA included pollution, overfishing, and bycatch in the shad fishery (USDOI 1973). Shortnose sturgeon were also thought to be extirpated, or nearly so, from most of the rivers in their historical range (USDOI 1973). In the late nineteenth and early twentieth centuries, shortnose sturgeon were commonly harvested incidental to Atlantic sturgeon, the larger and more commercially valuable of these two sympatric sturgeon species (NMFS 1998). Although there is currently no legal directed fishing for shortnose sturgeon in the United States, poaching is suspected, and bycatch still occurs in some areas. In particular, shortnose sturgeon are caught incidentally by bass anglers and in the alewife/gaspereau, American shad, American eel, and Atlantic sturgeon fisheries in the Saint John River; and shad fisheries in the Altamaha River, Santee River, Savannah River, and elsewhere (COSEWIC, In Press; SSRT 2010; Bahn et al. 2009; COSEWIC 2005). The construction of dams has also resulted in substantial loss of historical shortnose sturgeon habitat in some areas along the Atlantic seaboard. The construction and operation of dams can impede upstream movement to sturgeon spawning habitat (e.g., Connecticut River, Santee River). Remediation measures, such as dam removal or modification to allow for fish passage have improved access in some rivers, and additional similar restoration efforts are being considered in other areas (e.g., possible removal of the Mactaquac dam in the Saint John River). Other possible and ongoing threats include operation of power generating stations, water diversion projects, dredging, and other in-water activities that impact habitat.
        Distinct Population Segment Analysis
        The following sections provide our analysis of whether the petitioned entity—the Saint John River population of shortnose sturgeon—qualifies as a DPS of shortnose sturgeon (whether it is both “discrete” and “significant”). To complete this analysis we relied on the best scientific and commercial data available and considered all relevant literature and public comments submitted in response to our 90-day finding (80 FR 18347, April 6, 2015).
        For purposes of this analysis, we defined the Saint John River population segment of shortnose sturgeon to consist of shortnose sturgeon spawned in the Saint John River downstream of the Mactaquac Dam. Prior to construction of Mactaquac Dam in 1968/1969, sturgeon occurred upstream of the dam; however, it is unclear whether these were shortnose and/or Atlantic sturgeon and whether any sturgeon are still present upstream of the dam (COSEWIC, In Press). Lacking this information, we cannot consider fish that may be present upstream of the dam in our distinct population segment analysis. Throughout our discussion below we also use the term “population” to refer collectively to all shortnose sturgeon that are presumed to be natal to a particular river rather than using this term to refer strictly to a completely closed reproductive unit.
        Discreteness Criterion
        The Services' joint DPS Policy states that a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions:
        (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.
        (2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA (61 FR 4722, February 7, 1996).
        There are no physical barriers preventing the movement of Saint John River shortnose sturgeon outside of the Saint John River estuary or along the coast. The Mactaquac Dam, located about 140 km upstream and at the head of tide (Canadian Rivers Institute 2011), is the first upstream physical barrier on the Saint John River. This and other dams on the Saint John River block shortnose sturgeon from accessing upstream habitats, but there are no dams or other physical barriers separating Saint John River sturgeon from other shortnose sturgeon populations.

        As mentioned previously, shortnose sturgeon have been documented to leave their natal river/estuary and move to other rivers to varying extents across their range. For example, telemetry data generated by Zydlewski et al. (2011) during 2008-2010 indicate that inter-riverine movements of adult shortnose sturgeon occur fairly frequently among rivers in Maine. Seventy percent of tagged adults (25 of 41 fish) moved between the Penobscot and Kennebec rivers (about 150 km away), and up to 52% of the coastal migrants (13 of 25 fish) also used other, smaller river systems (i.e., Damariscotta, Medomak, St. George) between the Penobscot and Kennebec rivers (Zydlewski et al. 2011). Shortnose sturgeon are also known to move between rivers in Maine and (e.g., Kennebec, Saco) and the Merrimack River estuary in Massachusetts, traveling distances of up to about 250 km (as measured by a conservative, direct path distance; Little et al. 2013; Wippelhauser et al. 2015). At the other end of the range, in the Southeast United States, inter-riverine movements appear fairly common and include movements between the Savannah River and Winyah Bay and between the Altamaha and Ogeechee rivers (Peterson and Farrae 2011; Post et al. 2014).

        Many inter-riverine movements have been observed elsewhere within the species' range, but patterns are not yet well resolved. For example, some shortnose sturgeon captured and/or tagged in the Connecticut River have been recaptured, detected, or were previously tagged in the Housatonic River (T. Savoy, CT DEP, pers. comm. 2015), the Hudson River (Savoy 2004), and the Merrimack River (M. Kieffer, USGS, pers. comm. 2015). At this time, the available tagging and tracking information is too limited to determine if Hudson River and Connecticut River shortnose sturgeon are making regular movements outside of their natal rivers and whether movement as far as the Merrimack River is a normal behavior. Movement data from the Chesapeake Bay is also relatively limited, but existing data indicate that shortnose sturgeon do move from the Chesapeake Bay through the Chesapeake and Delaware Canal into the Delaware River (Welsh et al. 2002).
        The distances of the reported marine migrations vary widely from very short distances—such as between the Santee River and Winyah Bay, which are only about 15 km apart—to fairly long—as in the case of movements between the Merrimack and the Penobscot rivers, which are about 339 km apart at their mouths.1
           In general, the available data suggest that movements between geographically proximate rivers are more common, while movements between more distant rivers do not, or only rarely, occur. A detailed discussion of the physical movements of shortnose sturgeon is provided in SSRT 2010.

            1 Distances between rivers mouths reported here were measured in GIS using the NOAA Medium Resolution Vector Shoreline, 20m bathymetry contour, and a fixed scale of 1:250,000. Estimated distances reported are the average of three, independently drawn and measured paths for each river pair. The assumed travel path between river mouths was the shortest possible distance that followed the general outline of the coast and was constrained by the 20m bathymetry contour, except where the shortest travel path across a deep, narrow inlet or bay crossed the 20m bathymetry contour.

        The extent of coastal movements of shortnose sturgeon from the Saint John River is currently unknown (COSEWIC, In Press); however, some limited data are available and provide some insight into whether these fish may be geographically isolated from other populations. Any movement between Saint John River sturgeon and the nearest population in the Penobscot River would require a marine migration of about 362 km, a similar travel distance as between the Merrimack and the Penobscot rivers (340 km) and between the Connecticut and Merrimack rivers (348 km).2

           Dadswell (1979) reported that of 121 marked Saint John River shortnose sturgeon recaptured by commercial fisherman, 13 fish (11 percent) were recaptured in the Bay of Fundy, indicating that a portion of the population migrated into the marine environment. In addition, a confirmed shortnose sturgeon was caught in a fishing weir in the Minas Basin, off the coast of Nova Scotia about 165 km north of the mouth of the Saint John River (Dadswell et al. 2013). Fishermen in the Minas Basin also claim to catch about one to two shortnose sturgeon per year in their weirs (Dadswell et al. 2013). While it is plausible that the shortnose sturgeon captured in the Minas Bay originated from the Saint John River, data to confirm this are not available. In contrast, limited telemetry data suggest that movements outside of the Saint John River are not common. Of 64 shortnose sturgeon tagged in the Saint John River over the course of about 16 years from 1999 to 2015, none have been detected moving past the farthest downriver acoustic receiver located near the Saint John Harbor Bridge (M. Litvak, pers. comm. July 31, 2015).

            2 Distances reported here were measured following the same methods described in the previous footnote. The distance reported between the Connecticut and Merrimack River assumes a travel path via the Cape Cod Canal. A travel path around Cape Cod would instead result in a marine migration of about 560 km.

        Overall, while there is unambiguous evidence that shortnose sturgeon from the Saint John River leave the estuary—at least occasionally—and use the marine environment, and that shortnose sturgeon are capable of making long distance movements between river systems, there are no available data on coastal migrations of Saint John River shortnose sturgeon. To date, there are also no reported observations or detections of shortnose sturgeon from the Gulf of Maine rivers moving into the Saint John River. Thus, while it is possible that the Saint John River shortnose sturgeon come in contact with shortnose sturgeon from elsewhere, it is also likely that some degree of geographical isolation by distance is occurring.

        Although acoustic telemetry studies have revealed that shortnose sturgeon leave their natal river systems to a much greater extent than previously thought, such movements do not necessarily constitute permanent emigration or indicate interbreeding of populations. Tagging and telemetry studies within several river systems have provided evidence that shortnose sturgeon in those particular systems tend to spawn in their natal river (e.g., Dovel 1981; Buckley and Kynard 1985; Kieffer and Kynard 1993; O`Herron et al. 1993; Kieffer and Kynard 1996). Tag return data for shortnose sturgeon in the Saint John River over the course of a 4-year study completed by Dadswell (1979) suggests there is little emigration from this system as well, and that spawning takes place in the freshwater sections of the upper estuary. The high site fidelity to natal rivers suggested by this and other studies indicates a there is a possible behavioral mechanism for the marked separation of the Saint John River population of shortnose sturgeon from other populations of the species.
        A substantial amount of genetic data has become available since the “Final Recovery Plan for Shortnose Sturgeon” was developed in 1998. Below, we summarize the best available genetic data and information, which informed our evaluation of the “discreteness” of the Saint John River population segment. A more in-depth presentation of genetic data, including discussions of types of analyses and assumptions, is available in the Biological Assessment (SSRT 2010).

        Much of the published information on population structure for shortnose sturgeon has been based on the genetic analysis of the maternally inherited mitochondrial DNA (mtDNA) due in part to the difficulties of analyzing data from the polyploid nuclear genome (Waldman et al. 2008). The analyses have focused on a moderately polymorphic 440 base pair portion of the mtDNA control region—a relatively rapidly evolving region of mtDNA and thus a good indicator of population-level differentiation. Haplotype frequencies and sequence divergence data have consistently indicated an overall isolation-by-distance pattern of genetic population structure across the species' range, meaning that populations of shortnose sturgeon inhabiting rivers and embayments that are geographically more distant tend to be less related than those that are geographically closer (e.g., Walsh et al. 2001, Grunwald et al. 2002, Waldman et al. 2002, and Wirgin et al. 2005; Wirgin et al. 2009). The haplotypes observed are typically shared across two to four or more adjacent sampled rivers but with little sharing of haplotypes between northern and southern populations (Waldman et al. 2002; Wirgin et al. 2009). Results for the Saint John River are compatible with these general patterns. For example, in the largest study to date, Wirgin et al. (2009) observed eight haplotypes within the Saint John River sample (n=42); and of the eight observed haplotypes, one was exclusive (or “private”) to the Saint John River (and observed in 1 of 42 fish), and the remaining haplotypes were shared with two to six other rivers. None of the shared haplotypes were observed in samples south of the Chesapeake Bay. A previously unreported haplotype was recently observed in 2 of 15 shortnose caught from the Kennebecasis River, a tributary of the Saint John (Kerr, 2015; P. Wilson, public comment, May 2015). This new haplotype could indicate an even greater degree of differentiation of the Saint John River fish; however, no other rivers were sampled or analyzed as part of this study.

        Despite the localized sharing of haplotypes, frequencies of the observed haplotypes are significantly different in most pairwise comparisons of the rivers sampled (i.e., comparisons of haplotype frequencies from samples from two rivers), including many adjacent rivers (Wirgin et al. 2009). Such pairwise comparisons for the Saint John River in particular have indicated that this population is genetically distinct from the geographically closest sampled populations, including the Penobscot, Kennebec, and Androscoggin rivers (Grunwald et al. 2002; Waldman et al. 2002; Wirgin et al. 2005; Wirgin et al. 2009). For example, Wirgin et al. (2009) reported significant differences (p<0.0005) in haplotype frequencies between Saint John River shortnose sturgeon (n=42) and Penobscot (n=44, Chi-square=37.22), Kennebec (n=54, Chi-square=54.85), and Androscoggin (n=48, Chi-square=37.91) river samples. The level of genetic differentiation between the Saint John River population and the Penobscot, Kennebec, and Androscoggin rivers also appears substantial, with Phi ST values ranging from 0.213 to 0.291 (where Phi ST ranges from 0 to 1, with 1 indicating complete isolation; Wirgin et al. 2009).

        Estimates of female-mediated gene flow between the Saint John River and the Gulf of Maine rivers are fairly low. Wirgin et al. (2009) estimated female-mediated gene flow between the Saint John River and other Gulf of Maine rivers as 1.90-2.85 female migrants per generation based on Phi ST values, and as 1.5-1.9 females per generation in a separate, coalescent-based analysis. This result suggests that (if model assumptions are true) no more than three female shortnose sturgeon from the Saint John River are likely to spawn in the other Gulf of Maine rivers (or vice versa) per generation. These results provide additional evidence that the degree of female-based reproductive exchange between the Saint John River population and other nearby shortnose river populations has been relatively limited over many generations.
        More recently, King et al. (2014) completed a series of analyses using nuclear DNA (nDNA) samples from 17 extant shortnose sturgeon populations across the species range. In contrast to the maternally inherited mtDNA, nDNA reflects the genetic inheritance from both the male and female parents. King et al. (2014) surveyed the samples at 11 polysomic microsatellite DNA loci and then evaluated the 181 observed alleles as presence/absence data using a variety of analytical techniques. The population structuring revealed by these analyses is consistent with the previous mtDNA analyses in that they also indicate a regional scale isolation-by-distance pattern of genetic differentiation. Analysis of genetic distances among individual fish (using principle coordinate analysis, PCO) revealed that the sampled fish grouped into one of three major geographic units: (1) Northeast, which included samples from the Saint John, Penobscot, Kennebec, Androscoggin, and Merrimack rivers; (2) Mid-Atlantic, which included samples from the Connecticut, Hudson, and Delaware rivers, as well as the Chesapeake Bay proper; and (3) Southeast, which included samples from the Cape Fear River, Winyah Bay, the Santee-Cooper, Edisto, Savannah, Ogeechee, and Altamaha rivers, and Lake Marion (King et al. 2014).

        Subsequent analyses revealed that each of the three regions has a different pattern of sub-structuring. Within the Northeast group, two separate analyses (PCO and STRUCTURE) indicated a high degree of relatedness and possible panmixia (i.e., random mating of individuals) among the Penobscot, Kennebec, and Androscoggin rivers; whereas, the Saint John and Merrimack rivers appeared more differentiated from each other as well as from the other Gulf of Maine rivers (King et al. 2014). Pairwise comparisons at the population level showed that, within the Northeast region, estimates of genetic differentiation were greatest between the Saint John and Merrimack rivers (Phi PT = 0.100, p <0.0004), the two most distant rivers within this region. Pairwise comparisons of the Saint John River to the remaining rivers within the Northeast region revealed lower but still statistically significant levels of genetic differentiation (Phi PT = 0.068-0.077; King et al. 2014). Relatively low levels of differentiation were observed in pairwise comparisons for all other rivers within the Northeast region (Phi PT = 0.013-0.087), half of which were not statistically significant (King et al. 2014). In comparison, within the Mid-Atlantic group, pairwise comparisons among rivers showed moderate levels of genetic differentiation among most river populations (average Phi PT = 0.077, range = 0.018-0.118); whereas, estimates of population level genetic differentiation were very low among samples populations in the Southeast group (average Phi PT = 0.047, range = 0.005 to 0.095; King et al. 2014), suggesting a more genetically similar set of populations.
        Theoretical estimates of gene flow (derived from Phi PT values) between the Saint John River and the other Northeast rivers ranged from 2.25 to 3.43 migrants per generation (King et al. 2014). Gene flow estimates for the Merrimack River were similarly low, ranging from 2.25 to 4.06 (King et al. 2014). In contrast, the effective number of migrants per generation estimated to occur between the remaining rivers within the Northeast region was much higher and ranged from 16.42 to 83.08 (King et al. 2014).
        Overall, the analyses completed by King et al. (2014) indicate that differentiation among Northeast populations is less than that observed among the Mid-Atlantic populations and greater than that observed among Southeast populations. However, within the Northeast region, both the Saint John and Merrimack River sample populations are genetically distinct from the other sample populations. Although the estimates of gene flow suggest some connectivity between the Saint John and other rivers within the Northeast, the significantly different allele and haplotype frequencies shown consistently in the nDNA and mtDNA studies provide indirect evidence that the Saint John River population is relatively reproductively isolated.

        As highlighted in the DPS Policy, quantitative measures of morphological discontinuity or differentiation can serve as evidence of marked separation of populations. We examined whether the morphological data for shortnose sturgeon across its range provide evidence of marked separation of the Saint John River population. As noted previously, maximum adult size (length and weight) varies across the range, with the largest maximum sizes occurring in the Saint John River at the northernmost end of the range, and the smallest sizes occurring in rivers at the southern end of the range (Dadswell et al. 1984). The largest individual reported in the literature (122 cm FL, 23.6 kg) was captured in the Saint John River, although there is also a report of a specimen measuring 124.6 cm FL (M. Litvak, unpublished data, as cited in COSEWIC, In Press). Lengths of shortnose sturgeon captured in surveys of the Saint John River in 1974-1975 ranged from 60 to 120 cm FL (n=1,621). The majority of these fish, however, were smaller than 100 cm FL (1,476 fish), and only six fish were longer than 111 cm FL (Dadswell 1979). To the south, in the Kennebec River, Maine shortnose sturgeon captured during 1980 and 1981 had lengths ranging from 58.5 to 103.0 cm FL, and averaging 80.8 cm FL (n=24; Walsh et al. 2001). Smaller size ranges are reported for rivers in the southernmost portion of the range with some occasional captures of larger specimens. For example, adult shortnose sturgeon captured in the Altamaha River, Georgia, in 2010-2013 ranged from 57.4-83.0 cm FL and averaged 70.1 cm long (FL, n=40; Peterson 2014), but a shortnose sturgeon measuring 104.5 cm FL and weighing 8.94 kg was captured in the Altamaha River in summer, 2004 (D. Peterson, UGA, unpubl. data). Overall, the attribute of size appears to display clinal variation, meaning there is a gradual change with geographic location (Huxley 1938). The fact that the Saint John River population segment, which lies at the northernmost end of the range, exhibits the largest sizes does not in itself constitute a morphological discontinuity. Given the apparent gradual nature of the variation in size with latitude, we find that there is no marked separation of the Saint John River population segment on the basis of a quantitative discontinuity in size.

        In addition to body size, other attributes such as snout length, head length, and mouth width can provide evidence of a morphological discontinuity and were also considered. Walsh et al. (2001) examined six morphological and five meristic attributes for shortnose sturgeon in the Androscoggin, Kennebec, and Hudson rivers. All morphological features measured (i.e., body length, snout length, head length, mouth width, and interorbital width) were largest for the Kennebec River fish and smallest for fish from the southern-most river in the study, the Hudson River (Walsh et al. 2001). Meristic features (e.g., scute counts) were similar for the three rivers and were not related to fish size (Walsh et al. 2001). Overall, the degree of phenotypic differentiation of fish from the two rivers in Maine (Androscoggin and Kennebec), which share an estuary mouth, was very low, while a much greater degree of differentiation was observed for the fish from the Hudson River (Walsh et al. 2001). This result was congruent with results of corresponding mtDNA analyses, which indicated that the Hudson River had a much greater degree of genetic differentiation from, and much lower rate of gene flow with, the two rivers in Maine (Walsh et al. 2001). The results of this particular study suggest there could be clinal variation in these other phenotypic characteristics, similar to the pattern observed for body size. As far as we are aware, however, similar studies have not yet been conducted to examine the variation in additional sets of morphological attributes across the range of shortnose sturgeon and relative to the Saint John River population in particular. Therefore, there is no basis to conclude marked separation of the Saint John River population segment on the basis of morphological discontinuity.
        In conclusion, although the currently available data do not show that the Saint John River shortnose sturgeon constitute a completely isolated or closed population, we find that available genetic data, evidence of site fidelity, and the likelihood of some degree of geographical isolation together constitute sufficient information to indicate that the Saint John River shortnose sturgeon are markedly separated from other populations of shortnose sturgeon. Thus, after considering the best available data and all public comments submitted in response to our initial petition finding, we conclude that the Saint John River population segment of shortnose sturgeon is “discrete.” We therefore proceeded to evaluate the best available data with respect to the second criterion of the DPS Policy, “significance.”
        Significance Criterion
        Under the DPS Policy, if a population segment is found to be discrete, then we proceed to the next step of evaluating its biological and ecological significance to the taxon to which it belongs. As we explained above, a population must be both “discrete” (the first prong of the DPS Policy) and “significant” (the second prong of the DPS Policy) to qualify for recognition as a DPS.
        Consideration of significance may include, but is not limited to: (1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that the loss of the discrete population segment would result in a significant gap in the range of a taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; and (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics (61 FR 4722, February 7, 1996). These four factors are non-exclusive; other relevant factors may be considered in the “significance” analysis. Further, significance of the discrete population segment is not necessarily determined by existence of one of these classes of information standing alone. Rather, information analyzed under these and any other applicable considerations is evaluated relative to the biological and ecological importance of the discrete population to the taxon as a whole. Accordingly, all relevant and available biological and ecological information is analyzed to determine whether, because of its particular characteristics, the population is significant to the conservation of the taxon as a whole.
        Persistence in an Ecological Setting Unusual or Unique for the Taxon

        Shortnose sturgeon once occupied most major rivers systems along the Atlantic coast of North America (Kynard 1997). Although extirpated from some areas due mainly to overharvest, bycatch, pollution, and habitat degradation, shortnose sturgeon still occur in at least 25 rivers systems within their historical range (NMFS 1998). Throughout their current range, shortnose sturgeon occur in riverine, estuarine, and marine habitats; and, as adults, generally move seasonally between freshwater spawning habitat and downstream mesohaline and sometimes coastal marine areas in response to cues such as water temperature, flow, and salinity. Like other species of sturgeon (e.g. A. transmontanus in the Columbia River, Oregon), shortnose sturgeon are also capable of adopting a fully freshwater existence, as is the case for the population of shortnose sturgeon above the Holyoke Dam in the Connecticut River and in Lake Marion, South Carolina. While each river system within the shortnose sturgeon's range is similar in terms of its most basic features and functions, each river system differs to varying degrees in terms of its specific, physical and biological attributes, such as hydrologic regime, benthic substrates, water quality, and prey communities. A few examples are discussed briefly below.

        The Saint John River begins in northern Maine, United States, travels through New Brunswick, Canada, and empties into the Bay of Fundy within the northeast Gulf of Maine. The river is approximately 673 km long, fed by numerous tributaries, and has a large tidal estuary and a basin area of over 55,000 km2 (Kidd et al. 2011). According to the Nature Conservancy's (TNC) ecoregion classification system, the Saint John River watershed lies within the New England-Acadian (terrestrial), Northeast United States and Southeast Canada Atlantic Drainages (freshwater), and the Gulf of Maine/Bay of Fundy (marine) ecoregions. The mean annual discharge is approximately 1,100 m3/s, dissolved oxygen levels average 8.5 to 11 mg/l, and benthic substrates downstream of the Mataquac Dam consist largely of shifting sands (Kidd et al. 2011). Due to the low slope of the lower reaches and the extreme tidal range of the Bay of Fundy, the head of the tide can extend about 140 km upstream from the river mouth (Kidd et al. 2011). During the shortnose sturgeon spring/summer spawning season, water temperatures range from about 10 to 15 °C; and within overwintering areas, water temperature range between 0 and 13 C (Dadswell 1979; Dadswell et al. 1984). Shortnose sturgeon in the Saint John River appear to move to deeper waters when surface water temperatures exceed 21 °C (Dadswell et al. 1984). Further to the south, but still within the same terrestrial, freshwater, and marine TNC ecoregions as the Saint John River, is the smaller Penobscot River system in Maine. This river is 175 km long (not including the West and South Branches), has a drainage basin of 22,265 km2, and an annual average discharge of about 342 m3/s (Lake et al. 2012; USGS 2015). Benthic substrates, consisting of bedrock, boulders, cobble and sand deposits are undergoing changes in response to the removal of two dams—Great Works Dam at rkm 60 and Veazie Dam at rkm 48—within the past three years (FERC 2010; Cox et al. 2014). The Veazie Dam was located close to the head of the tide, and although conditions have since changed, Haefner (1967, as cited in Fernandes et al. 2010) stated that, during peak springtime flows, freshwater extends to rkm 17, and that the salt wedge intrudes as far as about rkm 42 when river discharges decrease in summer. Water temperatures in shortnose sturgeon overwintering areas in the Penobscot River range from about 0 °C to 13.3 °C, and the fish appear to move out of overwintering areas when water temperatures reach about 2.4 °C (Fernandes et al. 2010). Towards the southern end of the range and occurring within a very different set of ecoregions is the Altamaha River, which is formed by the confluence of the Ocmulgee and Oconee rivers in Georgia. One of the longest free-flowing systems on the Atlantic Coast, the Atlamaha River is just over 220 km long, has a watershed area of about 37,300 km2, and flows mainly eastward before emptying into the Atlantic Ocean (TNC 2005). Tidal influence extends up to about rkm 40 (DeVries 2006). The average annual discharge is 381 m3/s, and benthic substrates consist mostly of sands with very few rocky outcrops (Heidt and Gilbert 1979; DeVries 2006). Water temperatures during the winter/spring spawning period have averaged about 10.5 °C (Heidt and Gilbert 1979), which is consistent with DeVries' (2006) observation that spawning runs appeared to commence when water temperatures reach 10.2 °C. When water temperatures exceed 27 °C, shortnose sturgeon typically move above the salt-fresh water interface and aggregate in deeper areas of the river (DeVries 2006); however, shortnose sturgeon have also been observed to use lower portions of the river throughout the summer, even when water temperatures averaged 34 °C (Heidt and Gilbert 1979; DeVries 2006).
        Overall, the variation in habitat characteristics across the range of shortnose sturgeon indicates that there is no single type or typical river system. Despite a suite of existing threats, shortnose sturgeon continue to occupy many river systems across their historical range. The fact that the Saint John River lies at one end of the species' range, and among other attributes, experiences different temperature and flow regimes, does not mean that this particular river is unusual or unique given the variability in habitat conditions observed across the range. Therefore, we conclude that the Saint John River is not an unusual or unique ecological setting when viewed against the range of the taxon as a whole. Furthermore, though not relied up on for our finding, we note that COSEWIC (In Press) recently concluded that shortnose sturgeon from other river systems would probably be able to survive in Canada.
        Significant Gap in the Range of the Taxon

        The second consideration under the DPS Policy in determining whether a population may be “significant” to its taxon is whether the “loss of the discrete population segment would result in a significant gap in the range of a taxon” (61 FR 4722, February 7, 1996). Shortnose sturgeon are distributed along the Atlantic coast of North America from the Minas Basin, Nova Scotia to the St. Johns River, Florida, representing a coastal range of roughly 3,700 km. The Saint John River, located at the northern end of the range, represents a small portion of the species' currently occupied geographic range. In addition, although the Saint John River is presumed to contain a relatively large population of shortnose sturgeon, that populaiton is not considered the largest, and it represents one of at least 10 spawning populations (SSRT 2010). Furthermore, relatively recent field data indicate shortnose sturgeon make coastal migrations to a greater extent than previously thought (e.g., Dionne et al. 2013) and are capable of making marine migrations of over 300 km (e.g., between Penobscot and Merrimack rivers; M. Kieffer, USGS, pers. comm. 2010). Such data suggest the potential for recolonization of the Saint John River by shortnose sturgeon migrating from populations to the south. Further indirect evidence in support of this possibility comes from the existing genetic data, which indicate some level of gene flow among rivers in the Northeast, including the Saint John River (Wirgin et al. 2005; Wirgin et al. 2009; King et al. 2014). Thus, in light of the potential for recolonization and the fact that the Saint John River population of shortnose sturgeon does not constitute a substantial proportion of the species' range, we conclude that the loss of the Saint John River would not constitute a significant gap in the range of the species.
        Only Natural Occurrence of the Taxon
        Under the DPS Policy, a discrete population segment that represents the “only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range” may be significant to the taxon as whole (61 FR 4722, February 7, 1996). This consideration is not relevant in this particular case, because shortnose sturgeon are present in many river systems throughout their historical range (SSRT 2010).
        Genetic Characteristics
        As stated in the DPS Policy, in assessing the “significance” of a “discrete” population, we consider whether the discrete population segment differs markedly from other populations of the species in its genetic characteristics (61 FR 4722, February 7, 1996). Therefore, we examined the available data to determine whether the Saint John River shortnose sturgeon differ markedly in their genetic characteristics when compared to other populations. In conducting this evaluation under the second criterion of the DPS policy, we looked beyond whether the genetic data allow for discrimination of the Saint John population segment from other populations (a topic of evaluation in connection with the first criterion of “discreteness”), and instead focused on whether the data indicate marked genetic differences that appear to be significant to the taxon as a whole. In this sense, we give independent meaning to the “genetic discontinuity” of the discreteness criterion of the DPS Policy and the “markedly differing genetic characteristics” of the significance criterion.

        Genetic analyses indicate fairly moderate to high levels of genetic diversity of shortnose sturgeon in most river systems across the geographic range (Grunwald et al. 2002, Quattro et al. 2002; Wirgin et al. 2009). Based on the 11 nDNA loci examined in samples from 17 locations, King et al. (2014) reported that the number of observed alleles (i.e., versions of a gene at a particular locus; here with overall frequencies >1%) ranged from a low of 55 in the Cape Fear River (n= 3 fish) to a high of 152 in the Hudson River (n= 45 fish); 118 alleles were observed in the Saint John River sample (n=25 fish). Estimated heterozygosity was not reported by river sample, but King et al. (2014) noted that it was lowest for the southern rivers relative to the mid-Atlantic and northern river samples. Wirgin et al. (2009) reported that haplotypic diversity ranged from 0.500 (Santee River, n=4) to 0.862 (Altamaha River, n= 69) across 15 sample populations, with the Saint John River population having a haplotype diversity index of 0.696 (n=42). The number of individual haplotypes observed in any one river sample ranged from two (Santee River, n=4) to 13 (Winyah Bay, n=46), with eight haplotypes observed in the Saint John River sample (n=42, Wirgin et al. 2009). The level of genetic diversity based on the mtDNA was not correlated with population size, and there was also no evidence of population bottlenecks, which may be due to historical recency of most population declines (over past ~100 years, Grunwald et al. 2002; Wirgin et al. 2009). Overall, the level of genetic diversity observed for the Saint John River population segment is not unusual relative to that observed in the taxon as a whole. However, Grunwald et al. (2002) noted that the lack of reduced haplotypic diversity within the northern sample rivers contrasts with findings for other anadromous fishes from previously glaciated rivers. Grunwald et al. (2002) hypothesized the high degree of haplotypic diversity and large number of unique haplotypes in the previously glaciated northern region (i.e., Hudson River and northward) may be the result of a northern population having survived in one or more northern refugia.

        As discussed previously, at a regional scale, most of the mtDNA haplotypes observed are shared across multiple, adjacent rivers sampled; however, very little sharing of haplotypes has been documented between the northern and southern portions of the range (Quattro et al. 2002; Grunwald et al. 2002; Wirgin et al. 2009). In the analysis conducted by Wirgin et al. (2009), the Saint John River sample had one private haplotype (in 1 of 42 fish) and shared the remaining 7 haplotypes with multiple rivers. Of the seven shared haplotypes, two were each shared with two other river systems, including the Hudson and Connecticut rivers, and the remaining five haplotypes were shared across three to six other rivers within the northeast and mid-Atlantic portions of the range (Wirgin et al. 2009). In an earlier study by Quattro et al. (2002) in which control region mtDNA was sequenced for 211 shortnose sturgeon collected from five southeastern U.S. rivers and the Saint John River, one haplotype was observed in all river samples. This shared haplotype occurred in 1 of 13 fish (7.7%) sampled from the Saint John River and 1 of 5 fish (20%) sampled from Winyah Bay; the remaining river samples contained this haplotype at higher frequencies (36%-79%, Quattro et al. 2002).

        While the shortnose sturgeon from the Saint John River have a fairly high degree of genetic diversity and shared haplotypes with other rivers, they can be statistically differentiated from other river samples based on haplotype frequencies and nDNA distance metrics (Wirgin et al. 2009; King et al. 2014). However, the same is also true for the majority of rivers across the range of the species. For example, using genetic distances (Phi PT), King et al. (2014) detected significant differences in all pairwise comparisons except for three rivers in the northeast (Penobscot, Androscoggin, and Kennebec rivers) and three rivers in the southeast (Edisto, Savannah, and Ogeechee rivers). Similarly, significant differences in haplotype frequencies have been reported for most river populations sampled. In Chi-squared analyses, Grunwald et al. (2002) reported significant differences for all but 4 of 82 pairwise comparisons of mtDNA nucleotide substitution haplotype frequencies across 10 sample sets (two of which were from different sections of the Connecticut River), and Wirgin et al. (2009) reported significant differences for all but 9 of 91 pairwise comparisons of mtDNA haplotype frequencies across 13 river populations.

        The magnitude of these genetic differences between individual river systems varies across the range of the species and indicates a hierarchical pattern of differentiation. For example, the mtDNA data reveal a deep divergence between rivers in the northern portion of the range from rivers in the southern portion of the range. Of the 29 haplotypes observed by Grunwald et al. (2002), 11 (37.9%) were restricted to northern systems, 13 (44.8%) were restricted to the more southern systems, and only 5 (17.2%) slightly overlapped the two regions. In the later and larger study by Wirgin et al. (2009), the observed haplotypes again clustered into regional groupings: 10 of 38 observed haplotypes (26.3%) only occurred in systems north of the Hudson River, 16 of 38 (42.1%) only occurred in systems south of the Chesapeake Bay, and just 5 of 38 (13.2%) haplotypes overlapped in the mid-Atlantic region. The limited sharing of haplotypes between the north and south regions is consistent with strong female homing fidelity and limited gene flow between these regions. The break in shared haplotypes corresponds with the historical division of the species due to Pleistocene glaciation, which Grunwald et al. (2002) stated was probably the most significant event affecting population structure and patterns of mtDNA diversity in shortnose sturgeon.
        The recent nDNA analyses of King et al. (2014) also indicate an unambiguous differentiation of sample populations into one of three major geographic groupings—Northeast, Mid-Atlantic, or Southeast. When all 17 sample populations were pooled by these three geographic regions, correct assignment to each region was 99.1% for the Northeast and 100% (i.e., zero mi-assigned fish) for the remaining two regions (King et al. 2014). Of the 133 fish included for the Northeast group, one was mis-assigned to the Mid-Atlantic. The estimates of effective migrants per generation (based on Phi PT) are consistent with the regional zones of genetic discontinuity among Northeast, Mid-Atlantic, and Southeast river systems. The average migrants per generation between regions ranged from less than one migrant (i.e., 0.89) between Northeast and Southeast to nearly two migrants (i.e., 1.89) between Northeast and Mid-Atlantic. In contrast, the range of estimated migrants per generation within regions was 2.25-83.08 for the Northeast, 1.87-13.64 for the Mid-Atlantic, and 2.38-49.75 for the Southeast (King et al. 2014). The estimated migrants per generation between the Saint John River in particular and all other rivers within the Northeast ranged from 2.25-3.43 (King et al. 2014). Taken together, these data indicate that the degree of genetic differentiation between the Saint John River and the rivers within the Gulf of Maine is relatively small or “shallow”, especially relative to the deeper divergence observed among the regional groupings of river populations. A possible explanation for the relatively low level of differentiation within the Northeast is that the those populations are relatively young in a geologic sense due to recent glaciations compared to populations in the more southern part of the range (SSRT 2010).

        In conclusion, given the patterns of genetic diversity, shared haplotypes, and relative magnitudes of genetic divergence at the river drainage versus regional scale, we find there is insufficient evidence that the Saint John River population of shortnose sturgeon differs markedly in its genetic characteristics relative to the taxon as a whole so as to meet the test for “significance” on this basis. While the Saint John River population segment can be genetically distinguished from other river populations, available genetic evidence places it into a larger evolutionarily meaningful unit, along with several other river populations sampled. The degree of differentiation among the three larger regional groups is more marked than the differences observed among populations from the Saint John and other nearest rivers, suggesting that the Saint John River population's differentiation is not “significant” in the context of the whole species. Gene flow estimates are also consistent with the observed deeper zones of divergence detected at the regional scale. Thus, we conclude that these data do not support delineation of the Saint John River population segment as “significant.” In so interpreting the available genetic data, we are mindful of the Congressional guidance to use the DPS designation sparingly.
        DPS Conclusion and Petition Finding

        We conclude that the Saint John River population of shortnose sturgeon is “discrete” based on evidence that it is a relatively closed and somewhat geographically isolated population segment. It thus satisfies the first prong of the DPS policy. However, we also find that the Saint John River population segment is not “significant” to the taxon as a whole. It thus fails to satisfy the second prong of the DPS Policy. As such, based on the best available data, we conclude that the Saint John River population of shortnose sturgeon does not constitute a DPS and, thus, does not qualify as a “species” under the ESA. Therefore, we deny the petition to consider this DPS for delisting. Our denial of the petition on this ground does not imply any finding as to how we should proceed if the situation were otherwise, i.e., where a population is found instead to meet the criteria to be a DPS. Even if the population had met both criteria of the DPS Policy, and even if the population were also found to have a status that differed from the listed entity, it would not necessarily be appropriate to propose modifications to the current listing, in light of the unsettled legal issues surrounding such revisions. Nor do we resolve here what steps would need to be followed to propose revisions to the species' listing if the facts had been otherwise; such an inquiry would be hypothetical in this case. It is clear that because the petition at issue here sought identification of a DPS, and because the population at issue is not a DPS, this particular petition must be denied. As this is a final action, we do not solicit comments on it.
        References Cited

        A complete list of references is available upon request to the Office of Protected Resources (see ADDRESSES).
        Authority

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

          Dated: October 20, 2015.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2015-27148 Filed 10-23-15; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 101013504-0504-02]
        RIN 0648-XY27
        Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Atlantic Surfclam and Ocean Quahog Fishery; Proposed 2011-2013 Fishing Quotas for Atlantic Surfclam and Ocean Quahog

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes quotas for the Atlantic surfclam and ocean quahog fisheries for 2011, 2012, and 2013. Regulations governing these fisheries require NMFS to publish the proposed quota specifications for the 2011-2013 fishing years and seek public comment on such proposed measures. The intent of this action is to propose allowable harvest levels of Atlantic surfclams and ocean quahogs from the Exclusive Economic Zone to prevent overfishing and to allow harvesting of optimum yield (OY).

          DATES:
          Comments must be received no later than 5 p.m., eastern standard time, on November 24, 2010.

          ADDRESSES:

          Copies of supporting documents, including the Environmental Assessment, Regulatory Impact Review (RIR), and Initial Regulatory Flexibility Analysis (IRFA) are available from Christopher Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State St., Dover, DE 19901. A copy of the EA/RIR/IRFA is accessible via the Internet at http://www.nero.noaa.gov/nero/regs/com.html.

          You may submit comments, identified by RIN 0648-XY27, by any one of the following methods:

            Mail: Patricia A. Kurkul, Regional Administrator, Northeast Region, NMFS, 55 Great Republic Drive, Gloucester, MA 01930. Mark on the outside of the envelope, “Comments on 2011-2013 SC/OQ Proposed Specifications.”

            Fax: (978) 281-9135.

            Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal, http://www.regulations.gov.

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

          FOR FURTHER INFORMATION CONTACT:
          Anna Macan, Fishery Management Specialist, 978-281-9165.

        SUPPLEMENTARY INFORMATION:
        The fishery management plan (FMP) for Atlantic surfclams and ocean quahogs requires that NMFS, in consultation with the Mid-Atlantic Fishery Management Council (Council), specify quotas for surfclam and ocean quahog for a 3-year period, with an annual review, from a range that represents the OY for each fishery. It is the policy of the Council that the levels selected allow sustainable fishing to continue at that level for at least 10 years for surfclams, and 30 years for ocean quahogs. In addition to this constraint, the Council policy also considers the economic impacts of the quotas. Regulations implementing Amendment 10 to the FMP (63 FR 27481, May 19, 1998) added Maine ocean quahogs (locally known as Maine mahogany quahogs) to the management unit, and provided for a small artisanal fishery for ocean quahogs in the waters north of 43°50′ N. lat., with an annual quota within a range of 17,000 to 100,000 Maine bu (5,991 to 35,240 hL). As specified in Amendment 10, the Maine mahogany ocean quahog quota is allocated separately from the quota specified for the ocean quahog fishery. Regulations implementing Amendment 13 to the FMP (68 FR 69970, December 16, 2003) established the ability to set multi-year quotas. An evaluation, in the form of an annual quota recommendation, is conducted by the Council every year to determine if the multi-year quota specifications remains appropriate. The fishing quotas must be in compliance with overfishing definitions for each species. In recommending these quotas, the Council considered the most recent stock assessments, data reported by harvesters and processors, and other relevant information concerning exploitable biomass and spawning biomass, fishing mortality rates, stock recruitment, projected fishing effort and catches, and areas closed to fishing.
        In June 2010, the Council voted to recommend maintaining the 2010 quota levels of 5.333 million bu (284 million L) for the ocean quahog fishery, 3.400 million bu (181 million L) for the Atlantic surfclam fishery, and 100,000 Maine bu (35,240 hL) for the Maine ocean quahog fishery for 2011-2013. The proposed quotas for the 2011-2013 Atlantic surfclam and ocean quahog fishery are shown in the table below. The Atlantic surfclam and ocean quahog quotas are specified in “industry” bu of 53.24 L per bu, while the Maine ocean quahog quota is specified in “Maine” bu of 35.24 L per bu. Because Maine ocean quahogs are the same species as ocean quahogs, both fisheries are assessed under the same ocean quahog overfishing definition. When the two quota amounts (ocean quahog and Maine ocean quahog) are added, the total allowable harvest is still lower than the level that would result in overfishing for the entire stock.

          Proposed 2011-2013 Atlantic Surfclam and Ocean Quahog1 Quotas

            2011
            bu
            hL
            2012
            bu
            hL
            2013
            bu
            hL

            Surfclams 2

            3.400
            1.810
            3.400
            1.810
            3.400
            1.810

            Ocean Quahogs 2

            5.333
            2.840
            5.333
            2.840
            5.333
            2.840

            Maine Ocean Quahogs 3

            100,000
            35,240
            100,000
            35,240
            100,000
            35,240

            1 Numerical values are in millions except for Maine ocean quahogs.

            2 1 bu = 1.88 cubic ft. = 53.24 liters.

            3 1 bu = 1.2445 cubic ft. = 35.24 liters.

        Surfclams

        The proposed 2011-2013 status quo surfclam quota was developed after reviewing the results of the Northeast Regional Stock Assessment Workshop (SAW) 49 for Atlantic surfclam, released to the public in February 2010. The surfclam quota recommendation is consistent with the SAW 49 finding that the Atlantic surfclam stock is not overfished, nor is overfishing occurring. Estimated fishable stock biomass in 2008 was above the management target, and fishing mortality was below the management threshold. Although recruitment, growth rate, and biomass have continued to decline in the southern region (NJ and Delmarva), relative to historic conditions, these declines are offset by an increase in biomass and recruitment on Georges Bank and off Long Island, NY. Based on this information, the Council recommended, and NMFS is proposing, to maintain the status quo surfclam quota of 3.4 million bu (181 million L) for 2011-2013. This quota represents the maximum allowable quota under the FMP.
        Ocean Quahogs
        The proposed 2011-2013 quota for ocean quahogs also reflects the status quo quota of 5.333 million bu (284 million L) in 2010. SAW 48, released to the public in August 2009, found that the ocean quahog stock is not overfished, nor is overfishing occurring. Estimated fishable biomass in 2008 was above the management target, and estimated fishing mortality was significantly below the target level. Fishing mortality is not expected to reach the threshold if the proposed quota is harvested each of the 3 years. Ocean quahog is an unproductive stock that is being fished down from its pre-fishery level; however, after several decades of relatively low fishing mortality, the stock is still above the biomass target reference points. In fact, the stock biomass is still at 81 percent of the pre-fishing level. Based on this information, the Council recommended, and NMFS is proposing, to maintain the status quo quota of 5.333 million bu (284 million L) for 2011-2013. This quota level may be above current market demand, but allows for market growth, should conditions change.
        The proposed 2011-2013 quota for Maine ocean quahogs is the status quo level of 100,000 Maine bu (35,240 hL). In 2008, the State of Maine completed a stock assessment of the resource within the Maine Mahogany Quahog Zone. This assessment was peer-reviewed as part of SAW 48. The findings of the Maine quahog survey did not change the status of the entire ocean quahog resource. The proposed quota represents the maximum allowable quota under the FMP.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMP, other provisions of the MSA, and other applicable law, subject to further consideration after public comment. This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866.

        Pursuant to 5 U.S.C. 603, an initial regulatory flexibility analysis (IRFA) has been prepared, which describes the economic impacts that this proposed rule, if adopted, would have on small entities. A summary of the IRFA is included in this section. The complete IRFA and regulatory impact review is available from the Council (see
          ADDRESSES). A description of the reasons why this action is being considered, as well as the objectives of and legal basis for this proposed rule is found in the preamble of this proposed rule. There are no Federal rules that duplicate, overlap, or conflict with this proposed rule.
        This action proposes fishing quotas for Atlantic surfclams and ocean quahogs for 2011-2013. The Council analyzed four quota alternatives for the Atlantic surfclam fishery, five alternatives for the ocean quahog fishery, and four alternatives for the Maine ocean quahog fishery. Each of the alternative sets included the proposed alternative and a “no action” alternative. The three proposed quotas for 2011-2013 are 5.333 million bu (284 million L) for the ocean quahog fishery, 3.400 million bu (181 million L) for the Atlantic surfclam fishery, and 100,000 Maine bu (35,240 hL) for the Maine ocean quahog fishery.
        Description and Estimate of the Number of Small Entities to Which This Proposed Rule Would Apply
        The Small Business Administration (SBA) defines a small commercial fishing entity as a firm with gross annual receipts not exceeding $4 million. In 2009, a total of 43 vessels reported harvesting surfclams and/or ocean quahogs from Federal waters under the Individual Fishing Quota (IFQ) system. In addition, 19 vessels participated in the limited access Maine ocean quahog fishery, for a total of 62 participants in the 2009 fisheries. Average 2009 gross income from surfclam IFQ trips was $833,333 per vessel, and from ocean quahog IFQ trips was $1,533,333 per vessel. The Maine ocean quahog fishery reported an average value of $105,263 per vessel. Each vessel in this analysis is treated as a single entity for purposes of size determination and impact assessment. All 62 commercial fishing entities fall below the SBA size threshold for small commercial fishing entities.
        In addition to the active vessels that participate in the fishery there are 45 ocean quahog quota IFQ allocation holders, 57 surfclam allocation holders, and 40 Federal limited access Maine mahogany quahog permit holders. An allocation holder may choose to fish or lease his or her quota allocation.
        Economic Impacts of This Proposed Action
        The proposed quotas for 2011-2013 reflect the same quota levels set for 2008-2010. Therefore, it is not expected that there will be any different economic impacts beyond status quo resulting from the proposed quota level. Leaving the ocean quahog quota at the harvest level of 5.333 million bu (284 million L) is not expected to constrain the fishery. In fact, actual ocean quahog landings for 2008 and 2009 were approximately 65 percent of the available quota. The total 2010 harvest is expected to be similar to recent years (as of September 30, 2010, only 47.6 percent of the quota had been harvested, a level slightly less than on this date in 2009). The surfclam quota is proposed to be set to the maximum allowed under the FMP.
        In contrast to the ocean quahog harvest, the surfclam fishery has harvested over 80 percent of the available quota each year since 2005, except for 2009, where 69 percent of the quota was landed. As of September 30, 2010, only 47.7 percent of the quota has been harvested for FY 2010, a level slightly less than on this date in 2009.
        The Maine ocean quahog quota is proposed to be set at the maximum allowed under the FMP (100,000 Maine bu; 35,240 hL). It is anticipated that by maintaining the status quo quota level for the next 3 years, the fishing industry will benefit from the stability of product demand from the seafood processors and being able to predict future fishery performance based on past performance from the last 3 years.
        Economic Impacts of Alternatives to the Proposed Action

        The Council analyzed four alternatives for the Atlantic surfclam fishery, five alternatives for the ocean quahog fishery, and four alternatives for the Maine ocean quahog fishery. Each of the alternative sets included the proposed alternative and a “no action” alternative. The selection of “no action” alternative would result in no quotas being established, a closure of the fishery, and is contrary to the FMP. Based on 2009 ex-vessel prices, the result of no Federal surfclam or ocean quahog harvests in 2011 would be a loss of $30 million to the Federal surfclam fishery, $23 million to the ocean quahog fishery, and $2 million to the Maine ocean quahog fishery, for a total loss of $55 million. The viable alternatives to the proposed quotas for ocean quahog that are permissible under the FMP and the Magnuson-Stevens Act include a 20-percent decrease from the status quo, a 6.2-percent decrease from the status quo, and a 20-percent increase from the status quo; therefore, there are no significant alternatives that would reduce economic impacts on the regulated entities.
        The alternatives to the proposed surfclam quotas that are permissible under the FMP and the Magnuson-Stevens Act include a 45.6-percent decrease from the status quo and a 4.4-percent decrease from the status quo; therefore, there are no significant alternatives that would reduce economic impacts on the regulated entities.
        The alternatives to the proposed Maine ocean quahog quota that are permissible under the FMP and the Magnuson-Stevens Act include a 50-percent decrease from the status quo and a 10-percent decrease from the status quo; therefore, there are no significant alternatives that would reduce economic impacts on the regulated entities.
        Reporting and Recordkeeping Requirements
        This proposed rule would not impose any new reporting, recordkeeping, or other compliance requirements. Therefore, the costs of compliance would remain unchanged.

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

          Dated: October 20, 2010.
          John Oliver,
          Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

      [FR Doc. 2010-26940 Filed 10-22-10; 8:45 am]
      BILLING CODE 3510-22-P