        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17

        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List the Black-Footed Albatross (Phoebastria nigripes) as Threatened or Endangered

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of petition finding and initiation of status review.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the black-footed albatross (Phoebastria nigripes) as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). We find that the petition presents substantial scientific or commercial information indicating that listing the black-footed albatross may be warranted. Therefore, with the publication of this notice, we are initiating a status review to determine if listing the species is warranted. To ensure that the review is comprehensive, we are soliciting data and other information regarding this species.

          DATES:
          The finding announced in this document was made on October 9, 2007. To be considered in the 12-month finding for this petition, data, information, and comments must be submitted to us by December 10, 2007.

          ADDRESSES:
          The complete supporting file for this finding is available for public inspection, by appointment, during normal business hours at the Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3-122, Honolulu, HI 96813. You may submit data, information, comments, or questions concerning this species or our finding, by any one of several methods:
          1. By mail or hand-delivery to: Patrick Leonard, Field Supervisor, Pacific Islands Fish and Wildlife Office, U.S. Fish and Wildlife Service, 300 Ala Moana Boulevard, Box 50088, Honolulu, HI 96850.
          2. By electronic mail (e-mail) to: fw1bfal@fws.gov. Please include “Attn: black-footed albatross” in your e-mail subject header, preferably with your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your e-mail, contact us directly by calling the Pacific Islands Fish and Wildlife Office at 808-792-9400. Please note that the e-mail address above will be closed at the end of the public comment period.
          3. By fax to: the attention of Patrick Leonard at 808-792-9581.

          FOR FURTHER INFORMATION CONTACT:

          Patrick Leonard, Field Supervisor, Pacific Islands Fish and Wildlife Office (see ADDRESSES); by telephone (808-792-9400); or by facsimile (808-792-9581). Persons who use a telecommunications device for the deaf (TTD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Public Information Solicited
        When we make a finding that a petition presents substantial information to indicate that listing a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting additional information on the black-footed albatross. We request any additional information, comments, and suggestions from the public, other concerned governmental agencies, Tribes, the scientific community, industry, or any other interested parties concerning the status of the black-footed albatross. We are seeking information regarding the species' historical and current status and distribution, its biology and ecology, ongoing conservation measures for the species and its habitat, and threats to the species and its breeding and foraging habitats. Of particular interest is information pertaining to the factors the Service uses to determine if a species is threatened or endangered: (A) Present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence.

        We will base our 12-month finding on a review of the best scientific and commercial information available, including all information received during the public comment period. If you wish to comment or provide information, you may submit your comments and materials concerning this finding to the Field Supervisor, Pacific Islands Fish and Wildlife Office (see ADDRESSES section). Please note that comments merely stating support or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species shall be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will issue the 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act.
        Before including your address, phone number, e-mail address, or other personal identifying information in your comments, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
        Background

        Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the determination. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of this finding promptly in the Federal Register.
        Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information was presented, we are required to promptly commence a review of the status of the species.
        In making this finding, we relied on information provided by the petitioners that we determined to be reliable after reviewing sources referenced in the petition and information available in our files at the time of the petition review. We evaluated that information in accordance with 50 CFR 424.14(b). Our process in making this 90-day finding under section 4(b)(3)(A) of the Act and section 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold.
        Petition

        On October 1, 2004, we received a formal petition dated September 28, 2004, requesting that we list the black-footed albatross (Phoebastria nigripes) as a threatened or endangered species, and that critical habitat be designated concurrently with listing. The petition, submitted by Earthjustice on behalf of the Turtle Island Restoration Network and the Center for Biological Diversity, identified itself as such and contained the names, addresses, and signatures of the requesting parties. The petition included supporting information regarding the species' taxonomy and ecology, historical and current distribution, present status, potential causes of decline, and active imminent threats. We sent a letter acknowledging receipt of the petition to Earthjustice on December 3, 2004. In our response, we advised the petitioners that we had determined that emergency listing was not warranted for the species at that time, and owing to a significant number of listing rules due in 2005 under court-order and court-approved settlement agreements, we had insufficient resources to initiate a 90-day finding at that time. This notice constitutes our 90-day finding for the petition to list the black-footed albatross.
        Species Information

        The seabird family Diomedeidae (albatrosses) contains four genera and as many as 24 species (Robertson and Nunn 1998, pp. 15-19), the majority of which breed and forage in the Antarctic and sub-Antarctic. The black-footed albatross is one of four species in the genus Phoebastria, all but one of which breed and forage exclusively in the North Pacific Ocean (the waved albatross, Phoebastria irrorata, nests on the equator in the Galapagos Islands and forages in the South Pacific along the Peruvian coast). Of the North Pacific albatrosses, the black-footed albatross is the only all-dark species; the plumage is uniformly sooty brown with a whitish ring at the base of the bill and a white patch behind the eye. As they mature, birds develop a white patch above and below the tail (Bourne 1982, cited in Hyrenbach 2002, p. 87). The wingspan of the black-footed albatross is 76 to 85 inches (193 to 216 centimeters) and its average weight is 6.17 pounds (2.30 kilograms) (Whittow 1993, p. 13).
        According to the petition, recent breeding population estimates for the black-footed albatross range from 54,500 breeding pairs (The International Union for the Conservation of Nature and Natural Resources (IUCN) Red List 2003) to 64,500 breeding pairs (Brooke 2004). The most recent population assessment in our files falls squarely within this range, with a rough estimate of 61,000 pairs (U.S. Fish and Wildlife Service (USFWS) unpublished data 2006). The petition further states that the bulk of black-footed albatross today nest in the Northern Hawaiian Islands (Brooke 2004). Our information is in agreement, showing that approximately 97 percent of the breeding population nests in the predator-free Northwestern Hawaiian Islands, with most concentrated on two of these islands, Midway Atoll (35 percent) and Laysan Island (34 percent) USFWS unpublished data 2006). Approximately 3 percent of the world's black-footed albatross population nests on several remote islands in Japan. A few pairs nest on offshore islets in the main Hawaiian Islands, and from 1 to 3 pairs nest or attempt to nest annually on Wake Island in the Central Pacific, and on Guadalupe and San Benedicto Islands in Mexico.
        Recent study of the mitochondrial DNA of black-footed albatrosses indicates that Hawaiian and Japanese birds are genetically distinct, and further research may indicate that taxonomic revision is warranted to reflect this difference, according to the petition (Walsh and Edwards 2004). Information in our files agrees with this assessment (Walsh and Edwards 2005, p. 293); however, at present the black-footed albatross continues to be treated by the taxonomic authorities as a single species (American Ornithologists' Union 2005; Integrated Taxonomic Information System 2007), therefore we treat it as such in this finding.

        The petition describes the longevity and low reproductive rate of the black-footed albatross as factors that exacerbate their vulnerability to population impacts (Cousins and Cooper 1999; Walsh and Edwards 2004), and points out that for these reasons the species is highly sensitive to changes in adult survivorship (Lewison and Crowder 2003). Information in our files supports the petition's description of the life-history characteristics of this species. Black-footed albatrosses are long-lived (40 to 50 years) and slow to mature, with first breeding typically occurring at 8 to 10 years of age (Kendall et al. 2005, p. 11). The nesting phenology of the black-footed albatross is summarized by Whittow (1993, pp. 6-8). Pairs mate for life, and breed at a maximum of once each year (pairs skip years irregularly). Birds arrive at their nesting colonies in Hawaii and Japan in October, and most pairs produce their single egg by early December. Eggs hatch in January to February, and chicks fledge by mid to late July. Both adults take part in incubation and in brooding and feeding the chick.

        As described in the petition, black-footed albatrosses that breed in Hawaii generally forage to the northeast, toward coastal waters of North America, and move further north in the summer (Brooke 2004). Information in our files agrees with this description of foraging behavior and range. Black-footed albatrosses forage throughout the North Pacific Ocean, frequenting coastal North America especially during the breeding season (Fernandez et al. 2001, pp. 4-8). Foraging shifts north during the summer, after the breeding season, and black-footed albatrosses are the most abundant albatross species in the Gulf of Alaska and along the continental shelf south of the Aleutian Islands during this period (Suryan and Balogh 2005, pp. 1-5). The petition describes the black-footed albatross as a surface feeder and scavenger, seizing food and contact dipping primarily within 3 feet (1 meter) of the ocean's surface (Brooke 2004). The diet of adult albatross is primarily flying fish eggs, but also squid, fish, offal, and human refuse (Brooke 2004). The petition contends that scavenging is the activity that often brings the birds into contact with vessels. According to our files, the species' primary prey items are thought to be squid and eggs of flying fish (Whittow 1993, p. 3), but intensive diet studies are lacking. The information available in our files supports the petition's assertion that albatross are surface feeders and that their foraging behavior may expose them to vessels and fishing gear. Albatrosses scavenge food, will consume dead squid at the ocean surface (Pitman et al. 2004, pp. 162-164) and offal discarded from fishing vessels, pursue baited hooks as fishing gear is deployed, and opportunistically feed on fishery catch (e.g., swordfish; Xiphius gladius) that lies at the surface before it is brought on board (Duffy and Bisson 2006, p. 2).
        Threats Analysis
        Section 4 of the Act and implementing regulations (50 CFR 424) set forth procedures for adding species to the Federal List of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) Present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. In making this finding, we evaluated whether threats to the black-footed albatross presented in the petition and other information available in our files at the time of the petition review may pose a concern with respect to the species' survival. Our evaluation of these threats is presented below.
        A. The Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range
        The petition states that the current range of the black-footed albatross represents a significant curtailment of its historic range, and that colonies have been extirpated by feather- and egg-hunters from Johnston Atoll, Wake Island, Taongi Atoll (Marshall Islands), Marcus Island (Minami Torishima), Iwo Jima, and the Northern Mariana Islands (Lewison and Crowder 2003).
        Information in our files provides a review of evidence of the former nesting range of the black-footed albatross (Tickell 2000, pp. 217-218). The species' current range and documented extirpations from Marcus, Iwo Jima, and Agrihan (Northern Mariana Islands), and anecdotal observations from Johnston atoll and Wake Island are highly suggestive that the breeding range of the black-footed albatross once comprised a string of small islands spanning the Pacific north of 15 degrees North latitude and predominantly north of the Tropic of Cancer, however, little information exists with which to deduce the original size of the extirpated populations.
        Although information presented in the petition, as well as information in our files, indicates that the distribution of the black-footed albatross is now disjunct, the petition does not present substantial scientific or commercial information indicating that the species' range is continuing to contract. Nor does the petition present substantial scientific or commercial information indicating that the species' continued existence may be threatened as a result of past range contraction.
        B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
        The petition mentions the mass killing of black-footed albatrosses within the last 150 years by feather-hunters causing the extirpation of these birds from several breeding islands (Lewison and Crowder 2003), but concludes that such direct exploitation today is likely quite rare. We are not aware of any information indicating that present-day overutilization of black-footed albatross for commercial, recreational, scientific, or educational purposes is occurring and posing a threat to the species.
        As a result, we have determined that the petition does not present substantial scientific or commercial information indicating that the continued existence of the black-footed albatross is threatened by overutilization.
        C. Disease or Predation

        The petition states that because the ranges of the short-tailed albatross (Phoebastria albatrus) and black-footed albatross overlap, much of the disease factors affecting black-footed albatross are the same as those described in the July 31, 2000, final listing rule (65 FR 46643) for the endangered short-tailed albatross. The petition states that the final listing rule for short-tailed albatross explains that avian pox has been observed in chicks of albatross species on Midway Atoll. The petition also mentions that currently proliferating pathogens such avian cholera and West Nile virus are a potential risk to black-footed albatross.

        The final listing rule for short-tailed albatross states “an avian pox has been observed in chicks of albatross species on Midway Atoll, but whether this pox infects short-tailed albatrosses or may have an effect on the survivorship of any albatross species is unknown (T. Work, D.V.M., U.S. Geological Survey (USGS), Hawaii; 65 FR 46643). The petition presents no evidence that disease may threaten the black-footed albatross. Information in our files indicates that no diseases are known to affect the endangered short-tailed albatross population today (USFWS 2005, p. 14). Chicks of the closely-related Laysan albatross (Phoebastria immutabilis) do contract avian pox (Poxvirus avium), a mosquito-borne disease, in certain areas at Midway Atoll where the insects are present, but black-footed albatrosses do not nest in these areas and their chicks have not been observed with pox lesions (J. Klavitter, USFWS, pers. comm. 2006). A study of this disease in the Laysan albatross found that most chicks with pox lesions recovered and fledged, and that pox infection did not significantly affect fledging success at one colony (Young and VanderWerf 2006). Of a total of 16 black-footed albatross chicks found on Lehua Islet (offshore of Niihau Island, Hawaii) in 2005, two were observed with small pox lesions, but the birds appeared to be healthy and in good condition otherwise, and were presumed to have developed normally and fledged (E. VanderWerf, Service, pers. comm. 2006).
        Information in our files indicates that potentially fatal diseases such as avian cholera, avian influenza, and West Nile virus have not been observed in North Pacific albatrosses. No experimental or other data are available with which to assess the susceptibility of black-footed albatrosses to avian cholera or flu, and no occurrence of either disease has been recorded in Hawaii.
        The petition states that predation by naturally occurring and introduced predators pose a threat to the black-footed albatross. To support this claim the petitioners provide an excerpt from the short-tailed albatross listing rule (65 FR 46643), which mentions predation by sharks on fledgling albatrosses around their natal islands. Although black-footed albatrosses have been subject to predation by sharks, a natural phenomenon throughout their evolutionary history, the petition does not present substantial information indicating that this source of mortality may threaten the species.
        We find that the petition does not present substantial scientific or commercial information to indicate that disease or predation threatens the continued existence of the black-footed albatross.
        D. Inadequacy of Existing Regulatory Mechanisms

        The petition provides credible scientific information that incidental mortality in commercial longline fisheries may threaten the existence of the black-footed albatross (Gales 1998; Cousins and Cooper 2000; Cousins et al. 2000; IUCN Red List 2003; Lewison and Crowder 2003). Mortality is described as resulting from albatross diving on the baited hooks that float on the ocean's surface, and then either swallowing the baited hook or being caught and pulled underwater to drown (National Marine Fisheries Service (NMFS) 2004). Information in our files supports the petition, indicating that albatross have a propensity for pursuing baited fishing gear, especially those deployed by longline vessels, which leads to their being hooked on weighted lines, dragged underwater, and drowned (Tasker et al. 2001, p. 532). Black-footed albatrosses show this tendency, as evidenced by their documented pursuit of baited longline hooks (Melvin et al. 2001, p. 14) and their mortality on longline gear (Melvin et al. 2001, pp. 2, 35; NMFS—Alaska 2006, pp. 9-11; NMFS—Pacific Islands Regional Office (PIRO) unpublished data 2006).

        The petition describes the IUCN reclassification of the black-footed albatross from Vulnerable to Endangered in 2003 (BirdLife International 2003). This reclassification was based on observed and estimated mortality in domestic and foreign longline fisheries, extrapolations of total annual mortality, and the predicted population declines resulting from models based on these data and estimates (Cousins et al. 2000; Lewison and Crowder 2003). Information in our files confirms the estimates of mortality and predictions of population response published by Lewison and Crowder (2003, pp. 748-750) and cited by the petition. This study includes a bounded range of fishery-related mortality estimates, with a best-case scenario (the lower bound of estimated annual mortality) still resulting in a population decline of more than 20 percent over the next 60 years. The results of these modeling efforts indicate that the rate of mortality of black-footed albatrosses may be high enough to result in long-term population decline (Cousins et al. 2000, pp. 166-172; Lewison and Crowder 2003, pp. 748-750). Relevant to this issue is a Service-contracted formal status assessment of the black-footed (and Laysan) albatross that will include a synthesis and review of all existing data and other information about the species, including an assessment of fishery-related mortality and statistical models of the population status and trajectory. This assessment is currently undergoing peer review in preparation for publication. This population assessment will be useful in critically evaluating the population trend for the black-footed albatross and threats, as part of our 12-month finding.
        The petition states that each year commercial fisheries in the North Pacific inadvertently kill from 1 to 5 percent of the global population of the black-footed albatross (Lewison and Crowder 2003). The petition describes the documented mortality of black-footed albatrosses in U.S.-based fisheries (e.g., Cooper 2000) and satellite telemetry studies that point to overlap between the foraging range of the black-footed albatross and the operation of foreign-flag longline fisheries (Hyrenbach and Dotson 2003). Data in our files includes new information from satellite telemetry studies and public domain data on fishery distribution and effort since the petition was written, and provides support to the information in the petition that foreign longline fisheries in the North Pacific overlap with the foraging range of black-footed albatrosses and that incidental mortality in these fisheries is likely to occur (e.g., SPC-OFP 2004; Suryan and Balogh 2005, p. 1 and maps; Rivera 2006, pp. 7-9).
        The petition includes information on the inadequacy and ineffectiveness of existing regulations to minimize the mortality and injury of black-footed albatrosses in longline fisheries. The petition contends that inadequate regulations include the requirement that seabird deterrents be used in the Hawaii-based longline fishery only north of 23 degrees North latitude (asserted to be inadequate since black-footed albatrosses also forage south of this latitude). In addition, the petition explains that the effectiveness of these deterrents has not been established. The petition states that blue dye is a potentially effective deterrent when used on squid bait, but it does not adhere well to the scaly, fin-fish bait that is now required in the shallow-set fishery based in Hawaii (Gilman 2003) and that is commonly used in the deep-set sector of that fishery.
        Information in our files confirms that the deep- and shallow-set sectors of the Hawaii-based longline fishery operate both north and south of 23 degrees North latitude (NMFS-PIRO unpublished data 2006), and incidental injury and mortality of black-footed albatrosses takes place north and south of 23 degrees North latitude as well (NMFS-PIRO unpublished data 2004). Since the petition was written, new regulations have been published that require the use of seabird deterrents by all shallow-set vessels based in Hawaii regardless of where they fish. However, deep-set vessels, which expend more fishing effort south of 23 degrees North latitude than shallow-set vessels (NMFS-PIRO unpublished data 2006), are not required to use deterrents when fishing south of that latitude (NMFS 2005 (70 FR 75075), p. 75080). Only 20 percent of this sector of the fishery is monitored by observers; therefore, we have incomplete information about compliance with regulations, effectiveness of seabird deterrents, and rates and distribution of albatross mortality and injury.
        The petition describes the documented high mortality rate of black-footed albatrosses in Hawaii-based longline fisheries through 2001, especially shallow-set (or swordfish-target) fisheries. The petition reports mortality estimates of 3,200 black-footed and Laysan albatross a year on average, and indicates that this number may be underestimated by 30 to 95 percent since it does not include birds that drop off hooks or are taken by predators prior to being counted by observers (NMFS 2001b). Information in our files provides fleet-wide estimates of albatross mortality in the Hawaii-based fishery based on a statistical model built from analysis of spatial and temporal patterns in observed interactions between albatrosses and fishing vessels (McCracken 2001, pp. 1-26; NMFS-PIRO unpublished data 2006). Estimated mortality of black-footed albatrosses in the Hawaii-based longline fishery ranged from 1,000 to 2,500 per year in the mid-to late 1990s (McCracken 2001, pp. 19-20; NMFS-PIRO unpublished data 2006). This mortality dropped beginning in 2001 (NMFS-PIRO, unpublished data 2006; NMFS-PIFSC 2003, p. 3), coincident with the closure of the shallow-set sector of the fishery by a Federal court order intended to protect listed sea turtles (NMFS 2001a (66 FR 31561)). The estimated incidental capture of black-footed albatrosses fleet-wide was 1,339 in 2000 and dropped to an estimated total of 258 in 2001 (NMFS-PIRO unpublished data 2006). When the petition was submitted, the shallow-set fishery had just been reopened on a limited basis after a 3-year hiatus, with new measures in place to reduce the take of sea turtles (NMFS 2004a (69 FR 17329)). In the following year, however, the incidental mortality of black-footed albatrosses increased from an estimated 16 in 2004 to an estimated 89 in 2005 (NMFS-PIRO unpublished data 2006). This fishery was closed again in March 2006 (NMFS 2006 (71 FR 14824)) because the limit on incidental capture of sea turtles established through the National Marine Fisheries Service (NMFS) consultation under section 7 of the Act had been reached. This temporary closure remained in effect until December 31, 2006. The shallow-set fishery reopened on January 1, 2007, with the same bycatch reduction measures in place to reduce the take of sea turtles as had been instituted previously.

        The petition describes the documented mortality rate of black-footed albatrosses in Alaska-based demersal longline fisheries, and states that between 1993 and 2002, an observed 1,935 black-footed albatrosses were killed in Alaska-based fisheries (NMFS 2003). Although regulations promulgated in 2004 require measures to reduce the incidental mortality of seabirds in Alaska-based longline fisheries, including a suite of seabird deterrent devices and practices, the petition states that the rate of observer coverage is inadequate to monitor compliance with regulations requiring the use of seabird deterrents. According to information in our files, although all longline vessels greater than 26 feet ( 8 meters) in length operating out of Alaska are required to use seabird deterrents to minimize the incidental mortality of short-tailed albatrosses and other seabirds, vessels less than 26 feet (8 meters) in length are exempt from these requirements (NMFS 2004b, p. 1947). These seabird deterrents, particularly paired streamer lines, have proven to be highly effective under experimental conditions (Melvin et al. 2001, pp. 15-18), when constructed to appropriate specifications and deployed correctly (Melvin and Robertson 2000, p. 181). The largest vessels (greater than 125 feet (38 meters) in length; approximately 128 of which operate out of Alaska), are required to carry observers 100 percent of the time. However, the halibut fishery, which in 2004 comprised more than 1,000 smaller demersal longline vessels (J. Gharrett, NOAA Fisheries, pers. comm. 2006), is exempt from observer coverage (Alaska Fisheries Science Center (AFSC) 2006, p. 2).

        The petition states that the black-footed albatross remains at considerable risk of mortality from international fleets that are not required to employ the same seabird bycatch mitigation measures as U.S. fisheries, and contends that foreign pelagic and demersal longline fisheries account for a significant portion of the global annual mortality of black-footed albatross (Cooper 2000; Lewison and Crowder 2003). Information in our files indicates that despite progress toward international seabird protection agreements, as of yet there is no binding treaty or law that requires international fleets to employ mitigation measures to reduce the incidental mortality of the black-footed albatross throughout its range (Hall and Haward, p. 183). Although, as the petition describes, direct records of black-footed albatross mortality rates in non-U.S. fisheries are lacking (Cousins and Cooper 2000, p. 62; Tasker et al. 2000, p. 532), references cited by the petitioners and in our files describe the distribution and effort of the largest of these fisheries based on data available from the Secretariat of the Pacific Community (Lewison and Crowder 2003, p. 744; SPC-OFP 2004). Furthermore, as indicated in the petition, data exists describing high rates of black-footed albatross mortality in U.S.-based longline fisheries. Information in our files indicates that non-U.S. longline fisheries combined represent an order of magnitude more fishing effort than the longline fisheries operating out of Alaska and Hawaii (e.g., Cousins et al. 2000, p. 165), and they are known to overlap with the foraging range of the black-footed albatross (e.g., Lewison and Crowder 2003, p. 745; Hyrenbach and Dotson 2003, pp. 396-398, 401), suggesting that the degree of incidental mortality resulting from international fisheries may likely be greater than that observed in U.S.-based fisheries.
        Citing the results of studies that extrapolated total estimated mortality of black-footed albatrosses in all North Pacific longline fisheries, the petition states that the rate of mortality in U.S. and foreign longline fisheries in the North Pacific likely has population-level effects (Cooper 2000; Lewison and Crowder 2003). The petition notes that species with a low reproductive rate such as the black-footed albatross are susceptible to adult mortality, and even small changes in adult survival can affect population dynamics (Cousins and Cooper 2000; Lewison and Crowder 2003). The petition states that loss of breeding adults has a “ripple effect” in two ways: the current year's actual or potential breeding effort is lost (because a single adult cannot raise a chick) and several future years' effort is lost as well as the remaining adult seeks a new mate. Furthermore, incidental mortality of black-footed albatrosses in longline fisheries apparently is female-biased, thus exacerbating potential population level effects of fishery-related mortality on this highly monogamous species (Walsh and Edwards 2004).

        The petition states that there are numerous international and multilateral initiatives and advisory groups that have made recommendations for decreasing the incidental mortality of black-footed albatrosses and other seabirds in North Pacific fisheries. However, no binding agreement or international law yet exists that requires or enforces the use of seabird deterrents and minimization of this mortality in high-seas fisheries (e.g., Cousins et al. 2000, pp. 167-168). The petition notes that mortality of black-footed albatrosses occurs incidental to fishing activities although the Migratory Bird Treaty Act of 1918 (MBTA), as amended, specifically prohibits take of migratory birds. The term “take” under the MBTA is defined as to “...pursue, hunt, shoot, wound, kill, trap, capture, or collect...” (50 CFR 10.12). The petition contends that the take prohibition of the MBTA has not been enforced, and that incidental take of black-footed albatross by the longline fishing industry has not been adequately regulated.
        Although mitigation measures have reduced mortality of black-footed albatrosses in some (U.S.-based) fisheries, the information in the petition indicates that fishery-related threats to the species throughout its range are ongoing. We find that the petition presents substantial scientific or commercial information to indicate that the inadequacy of existing regulatory mechanisms may threaten the continued existence of the black-footed albatross.
        E. Other Natural or Manmade Factors Affecting the Species' Continued Existence

        The petition describes the high levels of contaminants, such as heavy metals and organochlorines (e.g., polychlorinated biphenyls (PCBs) and dichloro-diphenyl-trichloroethane (DDT)), found in black-footed albatross tissue (Jones et al. 1994; Ludwig et al. 1998). These substances have been correlated with egg-shell thinning and embryo death in the black-footed albatross and are found in concentrations that have caused reproductive and neurological problems in other species (Jones et al. 1994; Ludwig et al. 1998).

        Information in our files indicates that black-footed albatross are exposed to contaminants via their diet (Finkelstein et al. 2006, p. 681). Contaminants such as organochlorines and mercury biomagnify up the marine food chain and are at higher concentrations in long-lived marine predators (Finkelstein et al. 2006, pp. 678-679). Biomagnified concentrations of organochlorines and mercury are higher in North Pacific albatrosses than in species in the Southern hemisphere (where ambient levels of these contaminants are lower overall) (Guruge et al. 2001, p. 392). In the North Pacific, concentrations of these contaminants are higher in black-footed than in Laysan albatrosses (Guruge et al. 2001, p. 392; Finkelstein et al. 2006, p. 680). As described in the petition, the organochlorine and mercury levels found in black-footed albatrosses in 1992 and 1993 were high enough to pose a toxicological risk and interfere with reproduction (Ludwig et al. 1998). Information in our files supports the petition's contention that these contaminants may pose a threat to black-footed albatross. Since the petition was written, new information indicates that concentrations of PCBs and dichloro-diphenyl-dichloroethylene (DDE) in black-footed and Laysan albatrosses were reported to be 160 to 360 percent higher in samples from 2000 and 2001 than in samples from 1992 and 1993 (Finkelstein et al. 2006, p. 684). The proportional increase found in the black-footed albatross over this time period was twice that observed in the Laysan albatross (Finkelstein et al. 2006, p. 684). Results of recent studies indicate that these contaminant levels are associated with altered immune function in black-footed albatrosses (Finkelstein et al., in review). In addition, black footed albatrosses are carrying organochlorine burdens at concentrations that have caused endocrine disruption and altered immune function in gulls and terns from the Great Lakes (Myra Finkelstein, University of California at Santa Cruz, pers. comm. 2006).
        We find that the petition presents substantial scientific or commercial information to indicate that the ingestion of a variety of contaminants, such as organochlorine compounds and heavy metals, may pose a threat to the continued existence of the black-footed albatross.
        Finding
        We have reviewed the petition, literature cited in the petition, and information in our files. The petition presents reliable information to indicate that the lack of adequate regulatory mechanisms to minimize incidental mortality in commercial fisheries and the ingestion of environmental contaminants may threaten the black-footed albatross. The information in our files at this time supports the petition's statements regarding these threats to the black-footed albatross. Thus, on the basis of our review, we find that the petition presents substantial scientific or commercial information indicating that listing the black-footed albatross as threatened or endangered may be warranted, and we are initiating a status review of the species. At the conclusion of the status review which will involve a review of the information in, and results of, our status assessment currently being peer reviewed, we will issue a 12-month finding, in accordance with section 4(b)(3)(B) of the Act, as to whether or not the Service believes a proposal to list the species is warranted.
        We have reviewed the available information to determine if the existing and foreseeable threats pose an emergency. We have determined that although there are apparent threats to the species, they do not appear to be of such a magnitude as to pose an immediate and irreversible threat to the species such as to warrant emergency listing at this time. However, if at any time we determine that emergency listing of the black-footed albatross is warranted, we will seek to initiate an emergency listing.
        References Cited

        A complete list of all references cited herein is available, upon request, from the Pacific Islands Fish and Wildlife Office (see ADDRESSES section above).
        Author

        The primary author of this notice is the staff of the Pacific Islands Fish and Wildlife Office (see ADDRESSES section above).
        Authority

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

          Dated: September 27, 2007.
          Kenneth Stansell,
          Deputy Director, Fish and Wildlife Service.

       [FR Doc. E7-19690 Filed 10-5-07; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 600 and 648
        [Docket No. 031104274-3274-01; I.D. 101603A]
        RIN 0648-AQ83
        Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries

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

          ACTION:
          Proposed rule, 2004 initial specifications; request for comments.

          SUMMARY:

          NMFS proposes initial specifications for the 2004 fishing year for Atlantic mackerel, squid, and butterfish (MSB).  Regulations governing these fisheries require NMFS to publish proposed specifications for the upcoming fishing year and to provide an opportunity for public comment.  The intent of this action is to fulfill this requirement and to promote the development and conservation of the MSB resources.  This action also proposes an increase in the Illex squid catch limit for squid/butterfish incidental catch permit holders from 5,000 lb (2.27 mt) to 10,000 lb (4.54 mt).  In addition, this action would correct the regulations implementing the MSB Fishery Management Plan (FMP) by reinserting regulatory text that was incorrectly removed in the final rule that implemented measures contained in the Atlantic Herring FMP, which was published on December 11, 2000.

          DATES:
          Public comments must be received no later than 5 p.m., Eastern Standard Time, on December 15, 2003.

          ADDRESSES:

          Copies of supporting documents used by the Mid-Atlantic Fishery Management Council, including the Environmental Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are available from:   Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE  19904-6790.  The EA/RIR/IRFA is accessible via the Internet at http:/www.nero.noaa.gov.
          Comments on the proposed specifications should be sent to:   Patricia A. Kurkul, Regional Administrator, Northeast Regional Office, NMFS, One Blackburn Drive, Gloucester, MA  01930-2298.  Please mark the envelope, “Comments-2004 MSB Specifications.”  Comments also may be sent via facsimile (fax) to 978-281-9135.  Comments will not be accepted if submitted via e-mail or Internet.

          FOR FURTHER INFORMATION CONTACT:

          Paul H. Jones, Fishery Policy Analyst, 978-281-9273, fax 978-281-9135, e-mail paul.h.jones@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Regulations implementing the Fishery Management Plan for the Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP), prepared by the Mid-Atlantic Fishery Management Council (Council), appear at 50 CFR part 648, subpart B.  Regulations governing foreign fishing appear at 50 CFR part 600, subpart F.  These regulations, at §§ 600.516(c) and 648.21, require that NMFS, based on the maximum optimum yield (Max OY) of each fishery as established by the regulations, annually publish a proposed rule specifying the initial amounts of the initial optimum yield (IOY), as well as the amounts for allowable biological catch (ABC), domestic annual harvest (DAH), domestic annual processing (DAP), total allowable level of foreign fishing (TALFF), and JVP for the affected species managed under the FMP.  In addition, these regulations allow Loligo squid specifications to be specified for up to 3 years, subject to annual review.  The regulations found in § 648.20 also specify that IOY for squid is equal to the combination of research quota and DAH, with no TALFF specified for squid.  For butterfish, the regulations specify that a butterfish bycatch TALFF will be specified only if TALFF is specified for Atlantic mackerel.  Procedures for determining the initial annual amounts are found in § 648.21.

        In addition, the regulations at § 648.21(g) allow the specification of research set-asides (RSA) to be used for research purposes.  For 2004, the Council recommended RSAs of up to 2 percent of IOY for Atlantic mackerel and butterfish; and of up to 3 percent of IOY for squids.  The RSAs would fund research and data collection for those species.  A Request for Research Proposals was published to solicit proposals for 2004 based on research priorities previously identified by the Council (68 FR 3864, January 27, 2003).  The deadline for submission was March 28, 2003.  On July 19, 2003, NOAA Fisheries convened a Review Panel to review the comments submitted by technical reviewers on proposed research projects that would be funded using RSAs.  Based on discussions among participants on the Review Panel, one Loligo squid project proposal was recommended for approval and will be forwarded to the NOAA Grants Office for award.  Consistent with the Council's recommendations, the quotas in this proposed rule have been adjusted to reflect the project recommended for approval.  If the awards are not made by the NOAA Grants Office for any reason, NMFS will publish a notice in the Federal Register to restore the unused RSA amount to the annual quota.

        Table 1 contains the proposed initial specifications for the 2004 Atlantic mackerel, Loligo and Illex squids, and butterfish fisheries.

          Table 1.  Proposed Initial Annual Specifications, in Metric Tons (mt), for Atlantic Mackerel, Squid, and Butterfish for the Fishing Year January 1 through December 31, 2004

            Specifications

              Loligo

              Illex

            Atlantic Mackerel
            Butterfish

            Max OY
            26,000
            24,000

              1N/A
            16,000

            ABC
            17,000
            24,000
            347,000
            7,200

            IOY

              416,872.4
            24,000

              3170,000
            5,900

            DAH
            16,872.4
            24,000

              3170,000
            5,900

            DAP
            16,872.4
            24,000
            150,000
            5,900

            JVP
            0
            0
            5,000
            0

            TALFF
            0
            0
            0
            0

            1 Not applicable.

            2 IOY may be increased during the year, but the total ABC will not exceed 347,000 mt

            3 Includes 15,000 mt of Atlantic mackerel recreational allocation.

            4 Excludes 127.6 mt for RSA.

        2004 Proposed Specifications
        Atlantic Mackerel

        Overfishing for Atlantic mackerel is defined by the FMP to  occur when the catch associated with a threshold fishing mortality rate (F) of FMSY (the F that produces MSY (maximum sustainable yield)) is exceeded.  When spawning stock biomass (SSB) is greater than 890,000 mt, the maximum F threshold is FMSY (0.45), and the target F is 0.25.  To avoid low levels of recruitment, the FMP contains a control rule whereby the threshold F decreases linearly from 0.45 at 890,000 mt SSB to zero at 225,000 mt SSB (1/4 of the biomass level that would produce MSY on a continuing basis (BMSY)), and the target F decreases linearly from 0.25 at 890,000 mt SSB to zero at 450,000 mt SSB (1/2 BMSY).  Annual quotas are specified that correspond to the target F resulting from this control rule.

        Since SSB is currently above 890,000 mt, the target F for 2004 is 0.25.  The yield associated with that target F at the estimated stock size is 369,000 mt.  The ABC recommendation of 347,000 mt represents an adjustment to the yield estimate of 369,000 mt, derived by subtracting the estimated Canadian catch of 22,000 mt from the yield estimate.  The proposed IOY for the 2004 Atlantic mackerel fishery is 170,000 mt, which is equal to the proposed DAH.  The specification of DAH is computed by totaling the estimated recreational catch, the proposed DAP, and the proposed JVP.  The 170,000-mt proposed DAH is comprised of 15,000 mt recreational, 150,000 mt DAP, and 5,000 mt JVP.

        The JVP of 5,000 mt that the Council recommends, and NMFS proposes, is a reduction from the amount specified for 2003 (10,000 mt, with the Administrator, Northeast Region, NMFS (Regional Administrator) authorized to increase it to 20,000 mt).  The DAP and JVP components of DAH were historically estimated using the Council's annual processor survey, which was intended to obtain estimates of processing capacity in the domestic and joint venture (JV) fisheries.  However, from 1994 through 2002, response to this voluntary survey was incomplete and did not contain projections from some large processors.  For 2003 and 2004, in place of the survey, the Council relied on testimony concerning their current and projected shoreside processing capacity for Atlantic mackerel in 2003 and 2004 presented by domestic processors during its annual specification meetings.  While domestic processing capacity is increasing, the Council believes, based on the best data available, that the capacity of the domestic fleet to harvest mackerel still exceeds the domestic processors' capacity to process mackerel.  Therefore, the Council has recommended, and NMFS proposes, a specification of 5,000 mt of JVP for the 2004 fishery.  In previous years, to expedite an inseason adjustment to JVP, the Council specified in advance that NMFS could implement a specified inseason increase in JVP.  This year there is no recommendation to expedite an inseason adjustment.  However, if additional applications for JVP are received, § 648.21(e) authorizes inseason adjustments by the Regional Administrator, in consultation with the Council, during the fishing year by publishing a notification in the Federal Register and providing a 30-day comment period.
        The Council also recommended, and NMFS proposes to maintain, a TALFF of zero.   The Council believes that the development of the domestic mackerel fishery results in the greatest resource benefits to the nation.  With DAP set at 150,000 mt, the Council was concerned that the perceived competition TALFF represents to U.S. processors could impede the future expansion of domestic mackerel processing facilities.
        As authorized by §§ 600.501 and 600.520(b)(2)(ii), the Council recommended, and NMFS proposes, that several special conditions be imposed on the 2004 Atlantic mackerel fishery, as follows:   (1) JVs would be allowed south of 37°30′ N. lat., but river herring bycatch may not exceed 0.25 percent of the over-the-side transfers of Atlantic mackerel; (2) the Regional Administrator should ensure that impacts on marine mammals are reduced in the prosecution of the Atlantic mackerel fishery; (3) the mackerel optimum yield (OY) may be increased during the year, but the total should not exceed 347,000 mt; and (4) applications from a particular nation for an Atlantic mackerel JV allocation for 2004 may be based on an evaluation by the Regional Administrator of that nation's performances relative to purchase obligations for previous years.
        Atlantic Squids
        Loligo
        The FMP defines overfishing for Loligo squid as occurring when the catch associated with a threshold of the fishing mortality that produces the maximum sustainable level of yield per recruit (FMAX) is exceeded (FMAX is a proxy for FMSY).  When an estimate of FMSY becomes available, it will replace the current overfishing proxy, FMAX.  Max OY is specified as the catch associated with FMAX.  The biomass target is specified as BMSY.
        The most recent stock assessment for Loligo squid (the 34th Northeast Regional Stock Assessment Workshop, 2002 (SAW-34)) concluded overfishing is not occurring and recommended that the Council maintain the catch of 20,000 mt (to include both landings and discards).   Based on that advice and the assumption that the stock will be at or near Bmsy in 2004, the Council recommended no changes from the 2003 quota level.  The 2004 quota is specified as the yield associated with 75 percent of Fmsy at Bmsy, or 17,000 mt, based on projections from SAW-34.  The regulations continue to specify Max OY as the yield associated with Fmax, or 26,000 mt.  Thus, the 2004 proposed Max OY for Loligo squid is 26,000 mt and the recommended ABC for the 2004 fishery is 17,000 mt.

        The FMP does not authorize the specification of JVP and TALFF for the Loligo squid fishery, because of the domestic industry's capacity to harvest and process the OY for this fishery; therefore, JVP and TALFF are zero.
        Distribution of the Annual Loligo Squid Quota

        Since 2001, the annual DAH for Loligo squid has been allocated into quarterly periods.  The Council and NMFS recommend no change from the 2003 quarterly distribution system.  Due to the recommendation of one research project that would utilize Loligo squid RSA, this proposed rule would adjust the quarterly allocations from those that were proposed, based on formulas specified in the FMP.  The 2004 quarterly allocations would be as follows:

          Table 2. Loligo Squid Quarterly Allocations

            Quarter
            Percent
            Metric tons1

            Research set-aside

            I (Jan-Mar)
            33.23
            5,606.7
            N/A

            II(Apr-Jun)
            17.61
            2,971.2
            N/A

            III(Jul-Sep)
            17.3
            2,918.9
            N/A

            IV(Oct-Dec)
            31.86
            5,375.6
            N/A

            Total
            100
            16,872.4
            127.6

            1Quarterly allocations after 127.5 mt RSA deduction.

        Also unchanged from 2003, the Council recommended that the 2004 directed fishery be closed in Quarters I-III when 80 percent of the period allocation is harvested, with vessels restricted to a 2,500-lb (1,134-kg) Loligo
          squid trip limit per single calender day until the end of the respective quarter.  The directed fishery would close when 95 percent of the total annual DAH has been harvested, with vessels restricted to a 2,500-lb (1,134-kg) Loligo squid trip limit per single calender day for the remainder of the year.  Quota overages from Quarter I would be deducted from the allocation in Quarter III, and any overages from Quarter II would be deducted from Quarter IV.  By default, quarterly underages from Quarters II and III carry over into Quarter IV, because Quarter IV does not close until 95 percent of the total annual quota has been harvested.  Additionally, if the Quarter I landings for Loligo squid are less than 80 percent of the Quarter I allocation, the underage below 80 percent is applied to Quarter III.
        Illex
        The overfishing definition for Illex squid states that overfishing for Illex squid occurs when the catch associated with a threshold fishing mortality rate of FMSY is exceeded.  Max OY is specified as the catch associated with a fishing mortality rate of FMSY, while DAH is specified as the level of harvest that corresponds to a target fishing mortality rate of 75 percent Fmsy.  The biomass target is specified as BMSY.  The minimum biomass threshold is specified as 1/2 BMSY.
        The Council recommended annual measures for the Illex fishery at its June 2003 meeting.  At that time, the most recent stock assessment information dated from 1999 (the 29th Stock Assessment Workshop; SAW 29).  SAW 29 concluded that the stock was not in an overfished condition and that overfishing was not occurring.  Due to the lack of adequate data, the estimate of yield at Fmsy was not updated in the assessment so there were no yield estimates corresponding to the target fishing mortality rate.  However, an upper bound on annual fishing morality was computed for the US EEZ portion of the stock based on a model which incorporated weekly landings, relative fishing effort, and mean squid weights during 1994-1998.  These estimates of the fishing mortality rate were well below the biological reference points.  Therefore, the Council recommended that DAH should continue to be specified at 24,000 mt.

        In September 2003, subsequent to the Council action, the results of an updated assessment of the Illex squid stock (the 37th Northeast Regional Stock Assessment Workshop; SAW-37) were released.  SAW-37 concluded that overfishing was not likely to have occurred during the period 1992-2002.  SAW-37 found that it was not possible to evaluate the current biomass status for Illex squid relative to Bmsy because the size of the stock could not be reliably estimated.  SAW 37 noted that since 1999, NEFSC autumn survey abundance indices have been below the 1982-2002 average, but that it could not determine whether this trend is due to low abundance, low availability or both.  The assessment noted that surface and bottom water temperatures in the mid-Atlantic Bight have been warmer than average during recent years, and that Illex abundance and biomass indices from the autumn surveys were significantly negatively correlated with bottom water temperature anomalies from the autumn surveys.  SAW 37 concluded that this likely indicates an environmental effect on productivity.  While landings have been below the 1982-2002 average since 1998, SAW 37 found that this could be due to the reduced effort observed during the time period, low biomass or both factors.

        SAW 37 cautioned that, under current stock conditions, a DAH of 24,000 mt, which assumes a stock at Bmsy, may not be sufficient to prevent overfishing.  It also cautioned that the existing overfishing definition, which is based on Fmsy, is not only difficult to estimate given the available information, but may also perform poorly given the stock's production dynamics.  In addition, SAW 37 recommended that, given uncertainties in the stock distribution and population biology, the fishery should be managed in relation to the proportion of the stock on the continental shelf and available to U.S. fisheries.  However, SAW 37 did not recommend specific action, and the assessment also noted that more knowledge of Illex is necessary to respond to these concerns.  While cooperative research efforts are underway, there is currently no information to use to construct an alternative recommendation.

        Despite the cautions within SAW 37, the assessment also concluded that it was unlikely that overfishing occurred during 1999-2002 for several reasons.  Many of these reasons remain applicable to the proposal to maintain DAH at 24,000 mt for 2004.  The reasons are:  (1) The current small fleet size and effort levels make it unlikely that the fishery could exert the very high fishing mortality rate required to exceed the level recommended in the assessment (F50%), (2) the short fishing season makes high annual average fishing mortality rates unlikely, (3) the restricted geographical distribution of the fishery makes high annual average fishing mortality rates for the entire stock unlikely, (4) relative exploitation indices have declined considerably since 1999 and have been below the 1982-2002 median since then, and (5) preliminary model results indicate that fishing mortality rates as high as F50% are unlikely to have occurred even during 1999, when relative fishing mortality was the highest in recent years.

        Therefore, NMFS proposes that the annual specifications for Illex squid should remain unchanged for 2004, agreeing with the Council that there is no basis for concluding that the specification are likely to result in overfishing.  The specification of Max OY, ABC and DAH would remain unchanged from 2003 at 24,000 mt.  As the Council noted, the management program for Illex requires the directed fishery to be closed when 95 percent of the quota is harvested (22,800 mt).  While incidental landings are allowed following this closure, the amount of Illex caught incidentally by vessels targeting other species is limited due to the specialized nature of the Illex fishery. Illex is harvested offshore near the edge of the continental shelf during the summer.  The species spoils quickly, so freezing or refrigerated seawater equipment must be utilized to prevent spoilage.  Similar to Loligo squid, when a trip limit is in effect, vessels are prohibited from possessing or landing more than the specified amount in a single calendar day.  Few vessels are expected to invest in the necessary equipment to pursue Illex under the the incidental catch allowance.

        The FMP does not authorize the specification of JVP and TALFF for the Illex squid fishery because of the domestic fishing industry's capacity to harvest and to process the OY from this fishery.
        Increase in the Illex Squid Catch Limit for Squid/Butterfish Incidental Catch Permit Holders

        The Council has also recommended, and NMFS proposes, to increase the Illex squid catch limit for squid/butterfish incidental catch permit holders from 5,000 lb (2.27 mt) to 10,000 lb (4.54 mt).  This also represents the trip limit in effect when the directed fishery is closed. Illex squid is a high volume, low value species, which is taken offshore near the edge of the continental shelf during the summer.  The species also spoils rapidly, so either freezing or refrigerated seawater equipment is necessary to hold the catch and deliver it shoreside in a marketable condition.  Given the substantial capital investment required to prosecute this fishery, the Council does not expect that squid/butterfish incidental catch permit holders will target Illex squid as result of the increase in the bycatch allowance.  Rather, this measure will provide some positive economic benefit by allowing these incidental catch permit holders to retain more of the Illex squid taken as bycatch in other directed fisheries.
        Butterfish
        The FMP set OY for butterfish at 16,000 mt.  Based on the most current stock assessment, the Council recommends, and NMFS proposes, an ABC of 7,200 mt for the 2004 fishery.  This  represents no change in the specifications since 1996.  Commercial landings of butterfish have been low, at 1,964 mt, 2,116 mt, 1,432 mt, 4,373 mt and 841 mt for the 1998 through 2002 fisheries, respectively.  Lack of market demand and the difficulty in locating schools of market-sized fish have constrained this fishery.
        For the 2004 fishing year, the Council recommended, and NMFS proposes, an IOY for butterfish of 5,900 mt.  The IOY is composed of a DAH of 5,900 mt and a bycatch TALFF that is equal to zero.  The regulations found in § 648.20 authorize the specification of JVP or TALFF specifications for butterfish only for a bycatch TALFF specification if TALFF is specified for Atlantic mackerel.  Because the Council did not recommend TALFF for Atlantic mackerel, TALFF for butterfish is set at zero.
        Correcting Amendment
        On December 11, 2000, NMFS published a final rule at 65 FR 77450 to implement management measures contained in the Atlantic Herring FMP.  However, the final rule removed § 648.6 (a)(2), because the measures were thought to also pertain to Atlantic herring vessels and, therefore, were thought to be redundant with the Atlantic herring processing permit provisions specified at § 648.4(a)(10)(ii).  The text previously codified at § 648.6 (a)(2) allowed any Atlantic mackerel vessel that exceeded the size or horsepower restrictions specified at § 648.4 (a)(5)(iii), to be issued an at-sea processor permit to receive over the side, possess and process Atlantic mackerel harvested in or from the Exclusive Economic Zone.  However, this measure does not pertain to Atlantic herring vessels and is not redundant with the provision that was established under § 648.4(a)(10)(ii).  Therefore, this rule would reinsert § 648.6 (a)(2), which was incorrectly removed on December 11, 2000.
        Classification
        This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of E.O. 12866.

        The Council prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, in section 3.0 of the RIR that describes the economic impacts this proposed rule, if adopted, would have on small entities.  A description of the action, why it is being considered, and the legal basis for this action are contained in the SUPPLEMENTARY INFORMATION section of this proposed rule.  This proposed rule does not duplicate, overlap, or conflict with other Federal rules.  There are no new reporting or recordkeeping requirements contained in the Preferred Alternatives or any of the alternatives considered for this action.  A copy of the IRFA can be obtained from the Council or NMFS (see
          ADDRESSES) or via the Internet at http:/www.nero.noaa.gov.  A summary of the analysis follows:

        The number of potential fishing vessels in the 2003 fisheries are 381 for Loligo squid/butterfish, 72 for Illex squid, 2,407 for Atlantic mackerel, and 2,119 vessels with incidental catch permits for squid/butterfish.  All of the vessels are considered small entities.  Many vessels participate in more than one of these fisheries; therefore, the numbers are not additive.  The proposed DAH specifications of 170,000 mt for Atlantic mackerel, 24,000 mt for Illex squid, and 5,900 mt for butterfish represent no constraint on vessels in these fisheries.  The level of landings in the proposed specifications for 2004 have not been achieved by vessels in these fisheries in recent years.  Absent such a constraint, no impacts on revenues are expected as a result of the proposed action.
        From 1998-2002, Loligo squid landings averaged 16,631 mt.  If the 2004 proposed DAH specification of 17,000 mt for Loligo squid is achieved, there would be an increase in catch and revenue in the Loligo squid fishery relative to the average landings from 1998-2002.  NMFS also proposes to increase the Illex squid catch limit for squid/butterfish incidental catch permit holders from 5,000 lb (2.27 mt) per trip to 10,000 lb (4.54 mt) per trip.  This measure would provide some positive economic benefit by allowing these incidental catch permit holders to retain more of the Illex squid taken as bycatch in other directed fisheries. Illex squid is a high volume, low value species, which is taken offshore near the edge of the continental shelf during the summer.  The species spoils rapidly, so either freezing or refrigerated seawater equipment is necessary to hold the catch and deliver it shoreside in a marketable condition.  Therefore, given the substantial capital investment required to prosecute this fishery, the Council does not expect that squid/butterfish incidental catch permit holders will target Illex squid as a result of the increase in the bycatch allowance.  Since this measure is not expected to increase fishing effort in the Illex squid fishery, no overall change in revenue is expected.
        One alternative considered for the Atlantic mackerel fishery was to specify the 2004 specifications at the same level as 2003.  This option would set JVP at 10,000 mt.  The Council rejected this option because of concerns it could negatively impact the potential for expansion of the shore-side processing sector of this industry in 2003.  Preliminary 2003 commercial landings through June 2003, (30,347 mt) have exceeded the total landing for 2002 (26,192 mt) and are almost three times the average commercial landings for 1997-2001 (11,583 mt).  The Council felt that specifying JVP at 10,000 mt was unnecessary and could result in negative economic and/or social impacts to the U.S. mackerel industry.  Some or all of the vessel owners, crews, dealers, processors or fishing communities associated with the Atlantic mackerel fishery could be adversely affected by maintaining the 2003 annual specifications for Atlantic mackerel in 2004.  Maintaining a JVP allocation of 5,000 mt allows JVP operations to continue at recent levels, as JVP landings in recent years have been less than 5,000 mt.  A second alternative considered for Atlantic mackerel was to set ABC at the long-term potential catch (LTPC), or 134,000 mt.  This alternative was found inconsistent with the status of the stock.  The current adult stock was recently estimated to exceed 2.1 million mt.  The specification of ABC at LTPC would effectively result in an exploitation rate of only about 6 percent, well below the optimal level of exploitation.  The Council considered the level of foregone yield under this alternative unacceptable because population modeling of the Atlantic mackerel stock dynamics indicate that the safe level of removals from the current mackerel stock size is considerably higher than the level proposed under this alternative.
        For Loligo squid, one alternative that was considered was to set the ABC, DAH, DAP, and IOY at 13,000 mt, or a 20.1-percent reduction from the 2002 level.  If the 13,000-mt alternative was adopted for the 2004 fishing year, 110 of the 426 impacted vessels would experience a total gross revenue reduction (all species combined) of greater than 5 percent.  The remaining 316 vessels would experience a less than 5-percent reduction in revenue or an increase in revenue.

        A second alternative would have set ABC, DAH, DAP, and IOY at 18,300 mt.  Under this alternative, the quota would be specified at a level that is 1,300 mt higher than is specified by the overfishing definition control rule in the FMP.  Since the stock is technically not protected from overfishing, some negative economic and social impacts could be expected from this alternative in the long term, if the stock did become overfished.  The vessel owners, crews, dealers, processors and fishing communities associated with these ports would be expected to be affected the most by this alternative when compared to the proposed 2004 annual specifications for Loligo.
        For Illex squid, one alternative considered would have set Max OY, ABC, IOY, DAH, and DAP at 30,000 mt, and a second alternative would have set Max OY at 24,000 mt and ABC, IOY, DAH, and DAP at 19,000 mt.  The first alternative would allow harvest far in excess of recent landings in this fishery.  Therefore, there would be no constraints and, thus, no revenue reductions, associated with these specifications.  However, the Council considered the first alternative unacceptable because an ABC specification of 30,000 mt may not prevent overfishing in years of moderate to low abundance of Illex squid.  Conversely, the second alternative, an ABC of 19,000 mt would not allow the fishery to perform at its optimal exploitation level during a year of relatively high abundance, and was therefore rejected as having unnecessary negative economic impacts.
        For butterfish, the Council considered two alternatives; the first set a Max OY of 16,000 mt and an ABC, IOY, DAH, and DAP of 7,200 mt, and the second set a Max OY of 16,000 mt and a ABC, IOY, DAH, and DAP at 10,000 mt.  These specifications both exceed recent harvests in the butterfish fishery and would not constrain or impact the industry; however, they could lead to overfishing of the stock and, thus, were rejected by the Council.

          List of Subjects in 50 CFR Part 648
          Fisheries, Fishing, Reporting and recordkeeping requirements.

          Dated: November 8, 2003.
          Rebecca Lent,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:

          PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

        1.  The authority citation for part 648 continues to read as follows:

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

        2.  In § 648.4, the first sentence of paragraph (a)(5)(ii) is amended to read as follows:

          § 648.4
          Vessel permits.
          (a) * * *
          (5) * * *
          (ii) Squid/butterfish incidental catch permit. Any vessel of the United States may obtain a permit to fish for or retain up to 2,500 lb (1.13 mt) of Loligo squid or butterfish, or up to 10,000 lb (4.54 mt) of Illex squid, as an incidental catch in another directed fishery. * * *

        3.  In § 648.6, paragraph (a)(2) is added to read as follows:

          § 648.6
          Dealer/processor permits.
          (a) * * *
          (2) At-sea processors. Notwithstanding the provisions of § 648.4 (a)(5), any vessel of the United States must have been issued and carry on board a valid at-sea processor permit issued under this section to receive over the side, possess and process Atlantic mackerel harvested in or from the EEZ by a lawfully permitted vessel of the United States.

        4.  In § 648.22, paragraph (c) is added to read as follows:

          § 648.22
          Closure of the fishery.

          (c) Incidental catches. During the closure of the directed fishery for mackerel, the possession limit for mackerel is 10 percent by weight of the total amount of fish on board. During a period of closure of the directed fishery for Loligo, Illex, or butterfish, the possession limit for Loligo and butterfish is 2,500 lb (1.13 mt) each, and the possession limit for Illex is 10,000 lb (4.54 mt).  Vessels may not land more than these limits during any single calendar day, which is defined as the 24-hour period beginning at 0001 hours and ending at 2400 hours.

      [FR Doc. 03-28548 Filed 11-13-03; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF THE INTERIOR
        Office of Surface Mining Reclamation and Enforcement
        30 CFR Part 950
        [SATS No. WY-048-FOR; Docket ID OSM-2020-0005; S1D1S SS08011000 SX064A000 212S180110; S2D2S SS08011000 SX064A000 21XS501520]
        Wyoming Abandoned Mine Land Reclamation Plan

          AGENCY:
          Office of Surface Mining Reclamation and Enforcement, Interior.

          ACTION:
          Proposed rule; opening of public comment period and opportunity for public hearing on proposed amendment.

          SUMMARY:
          We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are announcing receipt of a proposed amendment to the Wyoming Abandoned Mine Land Reclamation (AMLR) Plan (hereinafter, the Wyoming Plan) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Wyoming proposes extensive revisions to its Plan in response to a letter sent from OSMRE and to improve the Plan's readability and operational efficiency. These changes are being submitted in response to legislative and regulatory changes made under SMCRA. This document gives the times and locations that the Wyoming plan and proposed amendment to that plan are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.

          DATES:
          We will accept written comments on this amendment until 4:00 p.m., m.d.t. January 19, 2021. If requested, we will hold a public hearing on the amendment on January 11, 2021. We will accept requests to speak at a public hearing until 4:00 p.m., m.d.t. on January 4, 2021.

          ADDRESSES:
          You may submit comments, identified by SATS No. WY-048-FOR, by any of the following methods:
          • Mail/Hand Delivery: Mr. Jeffrey Fleischman, Director, Denver Field Division; Office of Surface Mining Reclamation and Enforcement; Casper Area Office; 150 East “B” Street, Room 1018, P.O. Box 11018, Casper, Wyoming 82601.
          • Fax: (307) 261-6552.
          • Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

          We cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than the ones listed above will be included in the docket for this rulemaking and considered.

            Instructions: All submissions received must include the agency name and docket number for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Comment Procedures” heading of the SUPPLEMENTARY INFORMATION section of this document.

            Docket: For access to the docket to review copies of the Wyoming plan, this amendment, a listing of any scheduled public hearings, and all written comments received in response to this document, you must go to the address listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting OSMRE's Casper Area Office or the full text of the plan amendment is available for you to read at http://www.regulations.gov.

          Jeffrey Fleischman, Director Denver Field Division, Office of Surface Mining Reclamation and Enforcement, Dick Cheney Federal Building, 150 East B Street, Room 1018, Casper, Wyoming 82601-1018. Telephone: (307) 261-6550. Email: jfleischman@osmre.gov.

          In addition, you may review a copy of the amendment during regular business hours at the following location: Alan Edwards, AML Administrator, Wyoming Department of Environmental Quality, 200 West 17th Street, Cheyenne, Wyoming 82002, Telephone: 307-777-7062.

          FOR FURTHER INFORMATION CONTACT:

          Jeffrey Fleischman, Division Chief, Casper Area Office. Office of Surface Mining Reclamation and Enforcement, Dick Cheney Federal Building, P.O. Box 11018, 150 East B Street, Casper, Wyoming 82601-1018. Telephone: (307) 261-6555. Email: jfleischman@osmre.gov.

        SUPPLEMENTARY INFORMATION:

          I. Background on the Wyoming Plan
          II. Description of the Proposed Amendment
          III. Public Comment Procedures
          IV. Statutory and Executive Order Reviews

        I. Background on the Wyoming Plan

        The Abandoned Mine Land Reclamation Program was established by Title IV of the Act (30 U.S.C. 1201 et seq.) in response to concerns over extensive environmental damage caused by past coal mining activities. The program is funded by a reclamation fee collected on each ton of coal that is produced. The money collected is used to finance the reclamation of abandoned coal mines and for other authorized activities. Section 405 of the Act allows States and Indian tribes to assume exclusive responsibility for reclamation activity within the State or on Indian lands if they develop and submit to the Secretary of the Interior for approval, a program (often referred to as a plan) for the reclamation of abandoned coal mines.

        On February 14, 1983, the Secretary of the Interior approved Wyoming's AMLR Plan. You can find general background information on the Wyoming Plan, including the Secretary's findings and the disposition of comments, in the February 14, 1983, Federal Register (48 FR 6536). OSM announced in the May 25, 1984, Federal Register (49 FR 22139), the Director's decision accepting certification by Wyoming that it had addressed all known coal-related impacts in the State that were eligible for funding under the Wyoming Plan. Wyoming could then proceed in reclaiming low priority non-coal projects. The Director accepted Wyoming's proposal that it would seek immediate funding for reclamation of any additional coal-related problems that occur during the life of the Wyoming Plan. You can find later actions concerning Wyoming's Plan and plan amendments at 30 CFR 950.35.
        II. Description of the Proposed Amendment
        On March 6, 2019, OSMRE issued a letter to Wyoming, under the authority of 30 CFR 884.15, directing the State to update its Reclamation Plan to meet the requirements of SMCRA as revised on December 20, 2006 as part of the Tax Relief and Health Care Act of 2006 (Pub. L. 109-432), and the implementing federal regulations as revised on November 14, 2008 (73 FR 67576) and February 5, 2015 (80 FR 6435). OSMRE provided Wyoming with a summary of these changes to the Federal program and a description of the potentially required State Plan amendments in the March 6, 2019 letter.
        By letter dated July 21, 2020, Wyoming submitted this proposed amendment to implement the required changes identified in OSMRE's letter as well as additional changes proposed at the State's initiative to make the Wyoming Plan more reader friendly. The proposed amendment would repeal and replace Wyoming's existing AML Plan.
        Wyoming's Proposed Plan Amendment
        1. Reorganizes the Wyoming Plan to implement the required changes identified in OSMRE's March 6, 2019 letter.
        2. Restructures the Wyoming Plan to be more reader friendly, by removing excess narrative and instead incorporating required information by reference.
        3. Revises the Wyoming Plan to include an updated Attorney General's opinion, which confirms that the Wyoming Department of Environmental Quality continues to have the legal authority to oversee and implement Wyoming's AMLR Program.

        4. Incorporates in the Wyoming Plan, the provisions from 30 CFR 875.19, Federal Register (80 FR 6435), which extend limited liability protection to non-coal reclamation projects.
        5. Reaffirms in the Wyoming Plan, that non-coal reclamation activities will reflect the priorities under Title IV, Section 411(c) and 30 CFR 875.15.
        6. Identifies in the Wyoming Plan, that the first priority for reclamation shall be for high priority coal, but reserves the Wyoming AML Program's ability to reclaim non-coal land, water, and facilities as allowed by Title IV, Section 411(b) through (g), with approval by OSMRE and after the issuance of an Authorization to Proceed (ATP) which is required for all projects.
        7. Acknowledges in the Wyoming Plan, that emergency conditions may arise at times which require quick responses and outlines the processes by which such emergency conditions are addressed, because the Wyoming AML Program does not have an approved emergency response program under section 410 of SMCRA (30 U.S.C. 1240).

        8. Incorporates new language in the Wyoming Plan regarding public records, which reflects a change to the Wyoming AML regulations approved by state statute in 2018.

        9. Summarizes in the Wyoming Plan, overall AML Policies and Procedures, including staffing, personnel policies, and the accounting system, as well as describes the processes followed to comply with applicable federal regulations.

        The full text of the plan amendment is available for you to read at the locations listed above under ADDRESSES.
        III. Public Comment Procedures
        We are seeking your comments on whether the amendment satisfies the applicable plan approval criteria of 30 CFR 884.14 and 884.15. If we approve the amendment, it will become part of the Wyoming Plan.
        Electronic or Written Comments
        If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.

        We cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than those listed above (see ADDRESSES) will be included in the docket for this rulemaking and considered.
        Public Availability of Comments
        Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
        Public Hearing

        If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., m.d.t. on January 4, 2021. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing.
        To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue, on the specified date, until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
        Public Meeting

        If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.
        IV. Statutory and Executive Order Reviews
        Executive Order 12866—Regulatory Planning and Review and Executive Order 13563—Improving Regulation and Regulatory Review
        Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993, the approval of State program and/or AML plan amendments is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.
        Other Laws and Executive Orders Affecting Rulemaking

        When a State submits a Plan amendment to OSMRE for review, our regulations at 30 CFR 884.14 and 884.15, and agency policy require public notification and an opportunity for public comment. We accomplish this by publishing a notice in the Federal Register indicating receipt of the proposed amendment and its text or a summary of its terms. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule.

          List of Subjects in 30 CFR Part 950
          Abandoned mine reclamation programs, Intergovernmental relations, Surface mining, Underground mining.

          David Berry,
          Regional Director, Western Region.

      [FR Doc. 2020-27545 Filed 12-16-20; 8:45 am]
      BILLING CODE 4310-05-P