Proposed Rules. Proposed rule; reopening of comment period

Agency: Forest Service, USDA
Action: Proposed rule; reopening of comment period
Citation: FR Doc. 07-5245 · RIN 0596-AC38 · 36 CFR 261

Summary

The Forest Service is reopening the comment period for an additional 30 days and invites written comments on this proposed rule. The proposed rule was published in the Federal Register on May 10, 2007 (72 FR 26578), and should be referenced when preparing responses. This proposed rule would allow, if necessary, a criminal citation to be issued for unauthorized mineral operations on National Forest System lands.

Dates

Comments on this proposed rule must be received in writing by November 23, 2007.

Supplementary Information

Background Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific 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. We base this finding on information provided by the petitioner 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 for 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 History On February 22, 1999, we responded to a November 2, 1998, letter from Mr. Ron Sims, Kings County Executive, regarding the status of kokanee in Lake Sammamish. Our response letter questioned whether Mr. Sims' letter was in fact a petition. On March 16, 2000, we received a petition, dated March 15, 2000, from Save Lake Sammamish, Washington Trout, Sierra Club Cascade Chapter, Washington Environmental Council, Friends of the Earth, King County Conservation Voters, and Defenders of Wildlife. The petitioners requested that we emergency list the population of native summer-run (or early-run) kokanee that spawn in Issaquah Creek, a tributary of Lake Sammamish in King County, Washington, as an endangered distinct population segment (DPS) and designate critical habitat under the Act. The petition clearly identified itself as such and provided the names and addresses of the petitioners. We responded in two letters dated April 17, 2000, and November 6, 2000, stating that addressing the petition at that time was not practicable due to our workload addressing court orders and court-approved settlement agreements for other listing actions and that we would address the petition as funding became available. This petition finding fulfills that commitment. On July 10, 2007, we received a petition to list Lake Sammamish kokanee as threatened or endangered under the Act. We are in the process of analyzing that petition and intend to publish a 90-day finding on that petition in the near future. Species Information The kokanee and the sockeye salmon are two forms of the same species, Oncorhynchus nerka (Order Salmoniformes, Family Salmonidae), that are native to watersheds in the north Pacific from southern Kamchatka to Japan in the western Pacific and from Alaska to the Columbia River in North America (Page and Burr 1991, p. 52; Taylor et al. 1996, pp. 402-403). Adult kokanee look like sockeye salmon, but are generally smaller in size at maturity because they are confined to freshwater environments, which are less productive than the ocean (Gustafson et al. 1997, p. 29). Both sockeye and kokanee turn from silver to bright red during maturation, while the head is olive green and the fins are blackish red (Craig and Foote 2001, p. 381). Sockeye salmon are anadromous, migrating to the Pacific Ocean following hatching and rearing in freshwater to spend 2 to 3 years in marine waters before returning to freshwater environments to spawn. Kokanee are non-anadromous, spending their entire lives in freshwater habitats (Meehan and Bjorn 1991, pp. 56-57). Kokanee young are spawned in freshwater streams and subsequently migrate to a nursery lake (Burgner 1991, pp. 35-37). Kokanee remain in the lake until maturity and return to natal freshwater streams to spawn and die. Taylor et al. (1996, pp. 411-414) found multiple episodes of independent divergence between sockeye and kokanee throughout their current range. As ancestral sockeye populations expanded to new river systems, those that could not access the marine environment on a regular basis evolved into the non-anadromous kokanee form. This rapid adaptive evolution happened multiple times such that kokanee populations are genetically more similar to their sympatric (occupying the same geographic area without interbreeding) sockeye populations than kokanee in other river systems (Taylor et al. 1996, pp. 401, 413-414). Kokanee in the Lake Washington and Lake Sammamish watersheds are separated into three groups: (1) Summer-run, (2) middle-run, and (3) late-run kokanee, based on spawn timing and location (Berge and Higgins 2003, p. 3; Young et al. 2004, p. 66). Summer-run kokanee spawn during late summer (August through September) in Issaquah Creek and are the only run of kokanee known to spawn in that creek (sockeye salmon spawn there in October). Middle-run kokanee spawn in late September through November, primarily in larger Sammamish River tributaries. Late-run kokanee spawn from late fall into winter (October through January) in tributaries of Lake Sammamish. The petition and this petition finding address only the summer-run kokanee in Issaquah Creek. Berggren (1974, p. 9) and Pfeifer (1995, pp. 8-9 and 21-22) report escapements (the number of fish arriving at a natal stream or river to spawn) of summer-run Issaquah Creek kokanee numbering in the thousands during the 1970s. Since 1980, the escapement of summer-run Issaquah Creek kokanee has plummeted (Berge and Higgins 2003, p. 18). Between 1998 and 2001, only three summer-run kokanee redds (gravel nests of fish eggs) were observed in Issaquah Creek. In July 2001 and 2002, the Washington Department of Fish and Wildlife installed a fish weir across Issaquah Creek in an attempt to capture all migrating kokanee and spawn them in a hatchery for a supplementation program. However, no kokanee were observed or captured in these attempts (WDFW 2002, pp. 5-7). Distinct Vertebrate Population Segments The petitioners state that the summer-run Issaquah Creek kokanee is a DPS based on their August spawning period, fry emergence timing, coloration at the time of spawning, and genetic distinctness, and asked the Service to emergency list the DPS as endangered. Under the Act, we can consider for listing any species, subspecies, or DPS of any species of vertebrate fish or wildlife that interbreeds when mature, if information is substantial to indicate that such action may be warranted. To implement the measures prescribed by the Act and its Congressional guidance (see Senate Report 151, 96th Congress, 1st Session), we developed a joint policy with the National Oceanic and Atmospheric Administration entitled “Policy Regarding the Recognition of Distinct Vertebrate Population Segments under the Act” (61 FR 4725; February 7, 1996). According to this policy, the three elements considered regarding the potential recognition of a DPS as endangered or threatened are: (1) Discreteness of the population segment in relation to the remainder of the species to which it belongs; (2) significance of the population segment in relation to the remainder of the taxon; and (3) conservation status of the population segment in relation to the Act's standards for listing (i.e., when treated as if it were a species, is the population segment endangered or threatened?). Criteria for all three elements must be satisfied to meet the definition of a DPS. The petition discusses all three factors, but does not explicitly state whether they are evaluating these factors based on the standards set forth in the DPS policy. Following is our evaluation of these elements in relation to the petitioned entity, the summer-run Issaquah Creek kokanee. Discreteness Discreteness refers to the separation of a population segment from other members of the taxon based on either: (1) Physical, physiological, ecological, or behavioral factors; or (2) international boundaries that result in significant differences in control of exploitation, habitat management, conservation status, or regulatory mechanisms. Data contained in the petition, referenced in the petition, and otherwise available to the Service suggests that there is substantial information regarding the behavioral discreteness of summer-run Issaquah Creek kokanee. Timing of spawning and fry emergence for this population is earlier than any other kokanee or sockeye population in the Sammamish Basin (Berggren 1974, pp. 9 and 38; Pfeifer 1992, pp. 117 and 141; Young et al. 2004, p. 65). This difference in spawn timing may result in the reproductive isolation of summer-run kokanee. Based on the physical and behavioral factors referenced in the petition, we find that there is substantial information indicating that summer-run Issaquah Creek kokanee may meet the discreteness element of our DPS policy. Significance If a population segment is considered discrete under one or more of the conditions listed in the Service's DPS policy, its biological and ecological significance will then be considered. In carrying out this evaluation, the Service considers available scientific evidence of the potential DPS's importance to the taxon to which it belongs. This consideration may include, but is not limited to: (1) Persistence of the discrete population segment in a unique or unusual ecological setting; (2) evidence that loss of the discrete segment would result in a significant gap in the range of the taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of the taxon that may be more abundant elsewhere as an introduced population outside of its historic range; or (4) evidence that the discrete segment differs markedly from other populations in its genetic characteristics (61 FR 4721). The petition states that the summer-run Issaquah Creek kokanee population is significant because it is native to the Sammamish Basin and probably unique among kokanee and sockeye populations in the western United States. The petition points to several studies suggesting this population is genetically distinguishable from a number of other kokanee and sockeye populations. Our analysis of these statements relative to the DPS policy follows. 1. Persistence of the population segment in an ecological setting that is unique for the taxon. Neither the petition nor information in our files indicates that Issaquah Creek may be a unique or unusual ecological setting for kokanee. 2. Evidence that loss of the population segment would result in a significant gap in the range of taxon. Neither the petition nor information in our files indicates that loss of summer-run Issaquah Creek kokanee may result in a significant gap in the range of the taxon. According to the petition, Issaquah Creek is one of several tributaries to Lake Sammamish that are occupied by kokanee. There are also kokanee populations in tributaries to the Sammamish River (below Lake Sammamish). Furthermore, the taxon occurs throughout the North Pacific, from southern Kamchatka to Japan in the western Pacific and from Alaska south to the Columbia River system in the eastern Pacific (Page and Burr 1991, p. 52; Taylor et al. 1996, pp. 402-403). 3. Evidence that the 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. Neither the petition nor information in our files indicates that summer-run Issaquah Creek kokanee may represent the only surviving natural occurrence of this species. The petitioners note that there are at least 78 different kokanee populations from British Columbia, Colorado, Idaho, Montana, Oregon, Utah, and Washington. 4. Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. The petition cites several studies indicating that Issaquah Creek kokanee may be genetically differentiated from other kokanee and sockeye populations (Seeb and Wishard 1977, Wishard 1980, Hendry 1995, Hendry et al. 1996). These citations appear to be credible scientific publications and we accept the characterization of these publications provided in the petition for the purpose of this 90-day finding. However, we note that the definition of the term “significant,” as applied in these genetics studies is not the same as its usage when determining whether or not a population meets the significance criterion under the DPS policy. These studies found that there were “significant” differences in allele frequencies (the frequency of one member of a pair or series of genes occupying a specific position on a specific chromosome) between summer-run Issaquah Creek kokanee and the 11 other populations that they studied. However, these “significant” differences in allele frequencies must be placed into the appropriate spatial context of the species' distribution. The studies cited by the petitioners looked at four kokanee populations, inclusive of Issaquah Creek kokanee, and eight sockeye populations, all from the Lake Washington and Lake Sammamish Basins or hatchery strains. Taylor et al. (1996, pp. 409-410) looked at 750 Oncorhynchus nerka from 24 different populations throughout the range of the species and identified two major genetic groupings, the “northwestern group” (Kamchatka, Alaska, and northwest British Columbia) and the “southern group” (Fraser River and Columbia River systems). Given the large range of the species and the broader genetic relationships described by Taylor et al. (1996, pp. 409-410), the studies referenced by the petitioners looked only at a relatively small subset (both geographically and in total number) of O. nerka , and do not indicate that Issaquah Creek kokanee may have marked genetic differences that may make them significant to the taxon. Information in our files also fails to indicate that Issaquah Creek kokanee may be markedly genetically divergent or that they may be evolutionarily significant to the taxon. Although Coyle et al. (2001, p. 17) conclude that summer-run Issaquah Creek kokanee have significant genetic differences compared with other conspecific populations of kokanee and sockeye salmon and are a valid DPS, their analysis does not support these findings. The authors acknowledge that genetic differences between early-run Issaquah Creek kokanee and late-run Lake Sammamish kokanee are unknown (but see our discussion of more recent genetic work by Young et al. 2004, below), and the adaptive significance of early-run spawning and early fry emergence are unknown. Further, the authors acknowledged that while this population possesses size and coloration not typical of other kokanee populations in the Sammamish Basin, these are unlikely to be defining characteristics of the population. Although the authors point to the population's adaptation to warmer temperatures and lower stream flows (when compared to other kokanee populations in the Sammamish Basin) as evidence of a distinct adaptation to its environment, they also state that Kootenai Lake kokanee in British Columbia have early-run timing similar to that of summer-run Issaquah Creek kokanee. Coyle et al. (2001, p. 19) cite a study by Bentzen and Spies (2000, p. 6) as evidence that early-run Issaquah Creek kokanee are significantly different genetically to other conspecific populations of kokanee and sockeye salmon. However, Benzen and Spies (2000, p. 1-9) only studied kokanee populations from Issaquah Creek and Lake Whatcom, did not include other tributaries of Lake Sammamish in their study, and only examined three populations of sockeye salmon. Therefore, Bentzen and Spies' (2000, p. 6) conclusion that Issaquah Creek kokanee are significantly different from other conspecific populations of kokanee is applicable only to the small number of conspecific populations they examined, and only in the context that there were statistically significant differences at microsatellite loci (regions within genes where short sequences of DNA are repeated). An important distinction must be made between a statistically significant difference in allele frequencies using highly variable loci (e.g., microsatellites) and a biologically meaningful difference in genetic markers (Hedrick 1999, p. 316-317). This distinction is important because patterns of adaptive loci may not be correlated with highly variable loci, such as microsatellite loci. It is this high variability in microsatellite loci that enables the detection of very small genetic differences with statistical significance (Hedrick 1999, p. 316-317). While Bentzen and Spies (2000, p. 6) report statistically significant differences in allele frequencies between the two populations of kokanee and three populations of sockeye they studied, they provide no argument for how these differences may be biologically important or how may constitute marked genetic differences that are significant to the taxon. The most recent genetic work on kokanee in the Sammamish Basin shows that allele frequencies in Issaquah Creek and Lake Sammamish tributaries differ from those of other introduced strains within the basin and also showed greater genetic distance between middle-run and late-run kokanee than the genetic distance between either group and summer-run Issaquah Creek kokanee (Young et al. 2004, pp. 69-70). However, the authors note that the study had a small sample size for summer-run Issaquah Creek kokanee (n=13 individuals) and that inferences regarding the summer-run Issaquah Creek kokanee should be treated with caution. While this study provides some evidence that summer-run Issaquah Creek kokanee may be genetically differentiated from other kokanee in the Lake Washington and Lake Sammamish basins, it did not address whether the summer-run Issaquah Creek kokanee may be markedly genetically divergent from kokanee outside of the Lake Washington and Lake Sammamish basins or how such genetic divergence might be important to the taxon as a whole. The petition, in combination with information in our files, does not indicate how either the genetic makeup, early spawning, or color variation of summer-run Issaquah Creek kokanee may be significant to the taxon. Therefore, we conclude that the petition does not present substantial information indicating summer-run Issaquah Creek kokanee may meet the significance criterion of our DPS policy. Furthermore, neither the petition nor information in our files presents substantial information that summer-run Issaquah Creek kokanee may represent a significant portion of the species' range. Consequently we conclude that the petition does not present substantial information indicating that summer-run Issaquah Creek kokanee may be a listable entity under the Act. The petition presented information for the five listing factors in section 4 of the Act in an effort to identify threats that may be leading to the decline of the summer-run Issaquah Creek kokanee. These factors are pertinent only in cases where the organism being proposed for listing may be a listable entity as defined by section 3(15) of the Act. Because the petition does not present substantial information indicating that summer-run Issaquah Creek kokanee may meet the significance criterion for a DPS or may represent a significant portion of the species' range, the five threat factors are not analyzed here. Finding The Service has reviewed the petition to list the summer-run Issaquah Creek kokanee, the literature cited in the petition that was available to us, and other available scientific literature and information in our files. Based on this review, we find the petition does not present substantial information indicating that the summer-run Issaquah Creek kokanee may meet the criteria for being classified as a DPS under the Act. Although statistically significant differences in allele frequencies have been reported between summer-run Issaquah Creek kokanee and other kokanee and sockeye populations in the Sammamish Basin, information provided in the petition and other available information do not indicate how these differences may be biologically important or how they may constitute marked genetic differences that are significant to the taxon. Therefore, we will not commence a status review in response to this petition. If you wish to provide information regarding summer-run Issaquah Creek kokanee, you may submit your information or materials to the Manager, Western Washington Fish and Wildlife Office (see ADDRESSES ). References Cited A complete list of all references cited is available upon request from the Western Washington Fish and Wildlife Office (see ADDRESSES ). Author The primary authors of this document are Western Washington Fish and Wildlife Office (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 15, 2007. Kenneth Stansell, Acting Director, Fish and Wildlife Service. [FR Doc. E7-20748 Filed 10-22-07; 8:45 am] BILLING CODE 4310-55-P 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 Mountain Whitefish (Prosopium williamsoni) in the Big Lost River, ID, as Threatened or Endangered AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 90-day petition finding. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the mountain whitefish ( Prosopium williamsoni ) occurring in the Big Lost River in Idaho as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). We find that the petition does not present substantial scientific or commercial information indicating that listing the mountain whitefish in the Big Lost River may be warranted. This finding is based on insufficient information indicating that mountain whitefish in the Big Lost River may represent a species, subspecies, or distinct population segment (DPS) and, therefore, a listable entity under section 3(16) of the Act. Accordingly, we will not be initiating a status review in response to this petition. However, we ask the public to submit to us any new information that becomes available concerning the status of mountain whitefish occurring in the Big Lost River at any time. This information will help us to monitor and encourage the ongoing conservation of mountain whitefish in the Big Lost River. DATES: The finding announced in this document was made on October 23, 2007. You may submit new information concerning the mountain whitefish occurring in the Big Lost River for our consideration at any time. ADDRESSES: Submit data, information, comments, and materials concerning this finding to the Supervisor, Snake River Fish and Wildlife Office, 1387 S. Vinnell Way, Boise, ID 83709. The supporting file for this finding is available for public inspection, by appointment, during normal business hours at the above address. FOR FURTHER INFORMATION CONTACT: Jeffery Foss, Field Supervisor, Snake River Fish and Wildlife Office (see ADDRESSES ); telephone 208-378-5243; facsimile 208-378-5262. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339. SUPPLEMENTARY INFORMATION: Background Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Such findings are based on information contained in the petition, supporting information submitted with the petition, and information otherwise readily 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 a notice of the finding promptly in the Federal Register . Our standard for substantial scientific or commercial information, as defined by the Code of Federal Regulations (CFR), with regards 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 the petition presents substantial scientific or commercial information, we are required to promptly commence a status review of the species. We base this finding on information provided by the petitioner that we determined to be reliable after reviewing sources referenced in the petition and information readily available in our files at the time of the petition review. We evaluated this information in accordance with 50 CFR 424.14(b). Our process for making this 90-day finding under section 4(b)(3)(A) of the Act and § 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold. A substantial finding should be made when the Service deems that adequate and reliable information has been presented that would lead a reasonable person to believe that the petitioned action may be warranted. On June 15, 2006, we received a petition, dated June 14, 2006 (hereafter cited as ‘Petition’ 2006), from the Western Watersheds Project ('petitioner'). The petitioner requested that mountain whitefish in the Big Lost River, Idaho, be listed as threatened or endangered in accordance with section 4 of the Act. The petitioner also requested that critical habitat be designated. The petition clearly identified itself as such and included the requisite identification information for the petitioner, as required in title 50 of the Code of Federal Regulations (CFR), 424.14(a). In an August 21, 2006 letter to the petitioner, we acknowledged receipt of the petition, and explained that we would not be able to address the petition at that time due to other priorities relating to court orders and litigation settlement agreements. We further indicated that we had reviewed the petition and determined than an emergency listing was not necessary. The petition requested that we list the mountain whitefish in the Big Lost River of Idaho as a separate species, subspecies, or in the alternative as a distinct population segment. The petition contends that mountain whitefish occupying the Big Lost River have experienced “a population decline and extirpation, and a decreased range.” Threats identified in the Big Lost River include “loss and degradation of habitat due to irrigation diversions, livestock grazing, off-road vehicle use, roads; and predation, competition, and disease from non-native fish species.” The petition asserts that this situation is in contrast to other populations of mountain whitefish in other drainages. The petition was accompanied by a single document, the “Big Lost River Mountain Whitefish Status Report,” prepared by Ecosystem Sciences Foundation and dated February 2006 (hereafter cited as ‘ESF Status Report 2006’). This report contained information related to the taxonomy, life history, demographics, genetics, habitat, threats, and the past and present distribution of mountain whitefish in the Big Lost River. The petition incorporated by reference any citations used in the ESF Status Report 2006, but did not provide actual copies of those references. Species Information Mountain whitefish ( Prosopium williamsoni ) are members of the Salmonidae family and are found throughout mountainous areas of western North America in Canada and the United States. In the United States, the species is known to occur in the States of Washington, Oregon, Idaho, Wyoming, Montana, Colorado, Utah, Nevada, and California (NatureServe 2007). Mountain whitefish are relatively common and widespread in most river basins in Idaho (American Fisheries Society 2007). Their preferred habitat is cold water streams and lakes in western North America, and typically third or fourth order streams (Van Kirk et al. 2003, p. 8). While the majority of populations of mountain whitefish occur in riverine environments, some populations are restricted to lakes or isolated sink basins. Mountain whitefish in the Big Lost River reside in a “sink” drainage which was once part of a large Pleistocene lake system that included Lake Terreton (Van Kirk et al. 2003, p. 6). As the waters receded, the Big Lost River and four adjacent drainages lost their surface connection to the Snake River, resulting in five isolated sink drainages in Idaho. There are additional populations of mountain whitefish that occur in other sink drainages, such as tributaries in the Lahontan Basin in California and Nevada and the Bonneville Basin in Utah. Populations in these basins are similar to the population in the Big Lost River in that all are relict populations of mountain whitefish that formerly resided in large Pleistocene lake systems that are now closed basins. Mountain whitefish in the Big Lost River are thought to be most closely related to populations that occur in the upper Snake River based on genetic data from Whiteley et al. (2006) and Campbell and Cegelski (2005). The species most likely entered the Big Lost River approximately 10,000 years ago (Van Kirk et al. 2003, p. 8). Today, mountain whitefish in the Big Lost River are physically isolated from other populations within the Snake River basin. Mountain whitefish, also known as mountain herring, are about 57 centimeters (cm) (22 inches (in)) in length. The general body shape is slender with a somewhat round cross section, and body coloration is typically silver on the sides, dusky olive green or blue on the back, and the belly is a dull white (Simpson and Wallace 1982, p. 77). It has been suggested that individuals from the Big Lost River appear to be different from other populations of mountain whitefish in coloration and body shape, but data to confirm this observation has not yet been collected (A. Whiteley, pers. comm. 2007a). The spawning season for mountain whitefish is in the fall, and is correlated with stream temperature (Simpson and Wallace 1982, p. 77; Wydoski 2001, p. 694). Unlike other salmonids, mountain whitefish are broadcast spawners in which a nest or redd is not created; females scatter eggs and the males fertilize them (McGinnis 1984, p. 137). Mountain whitefish are thought to be opportunistic bottom feeders that consume whatever is in abundance, including fish eggs during the spawning season (McGinnis 1984, p. 137). It is known to actively feed on both aquatic and terrestrial insects, but is also a piscivore (eats other fish) (NatureServe 2007). Mountain whitefish reach sexual maturity at 3 to 4 years, and have been observed to live up to 12 years (Wydoski 2001, p. 694). Listable Entity Evaluation In making a 90-day finding on a petition to list a species, we must first establish that the subject of the petition may constitute a “species” under section 3(16) of the Act. In this case, the petitioner has requested that the mountain whitefish occupying the Big Lost River in Idaho be listed as a separate species, subspecies, or in the alternative, as a distinct population segment. For vertebrates, the Act allows listing of these three entities (16 U.S.C. 1532(16)). Evaluation of the Mountain Whitefish in the Big Lost River as a Species or Subspecies The mountain whitefish in the Big Lost River of Idaho are currently recognized as members of the single species Prosopium williamsoni, which is considered common and widespread throughout the mountainous western United States northward into Canada (NatureServe 2007). The mountain whitefish in the Big Lost River are not recognized as a separate species or subspecies by the American Fisheries Society (Nelson et al. 2004, p. 86), nor by the Integrated Taxonomic Information System (2007). The State of Idaho does not consider the mountain whitefish occupying the Big Lost River to be either a significant species or a species of concern (Idaho Comprehensive Wildlife Strategy 2005). The petitioner's arguments for the recognition of mountain whitefish in the Big Lost River as a species, subspecies or distinct population segment (discussed separately, below), rely primarily on the analysis of molecular data. Because of the complex and highly technical nature of molecular analysis, we consulted with a fisheries genetics expert within the Service to assess the petitioner's assertions to the potential significance of the genetics information presented. Dr. Donald E. Campton, Senior Scientist at the U.S. Fish and Wildlife Service's Abernathy Fish Technology Center and former President of the Genetics Section of the American Fisheries Society, served as our consultant on this finding. The petitioner contends that “the best available science demonstrates that the Big Lost River Mountain Whitefish should be protected as a separate species or subspecies of whitefish because all genetic analyses demonstrate that it is genetically unique—so much so that the genetic distance observed between Big Lost River mountain whitefish and surrounding populations is at least as large as that seen between other subspecies or even species. [ESF] Status Report [2006], pp. 6, 14-15.” The ESF Status Report 2006, p. 6 cites Whiteley and Gamett (2002) for the basis of this assertion. Whiteley and Gamett (2002) is an abstract of a presentation given at the Sinks Symposium of the Idaho Chapter of the American Fisheries Society in February 2002 (Van Kirk et al. 2003, p. 13). We contacted Mr. Gamett to determine whether any written document was available reflecting the content of that presentation, but found that the abstract was the only written record. The Symposium Proceedings (Van Kirk et al. 2003) were available to us in our files. The abstract does not state that “the genetic distance is at least as large as that seen between other subspecies or even species,” but rather that “consideration of the Big Lost River mountain whitefish as a separate subspecies may be warranted.” This appears to represent the personal opinions of the presenting researchers, no data are presented to support the petitioner's claim regarding genetic distance, and the ESF Status Report 2006 cited by the petitioner appears to have overstated the conclusions of Whiteley and Gamett (2002). Data available in our files from a 2005 Idaho Department of Fish and Game Report do not support the contention that mountain whitefish found in the Big Lost River are genetically equivalent to a subspecies or species. In analyzing the sequence divergence of mitochondrial DNA between whitefish populations, Campbell and Cegelski (2005, Figure 3) found that the percent sequence divergence of mountain whitefish from the Big Lost River compared to other populations within the Upper Snake River Basin ranged from 0.33 to 0.49 percent. The authors note that, for comparison purposes, sequence divergence between recognized subspecies of cutthroat trout range ( Oncorhynchus clarki lewisi and O. c. bouvieri ) from 1.4 to 1.9 percent, and sequence divergence between different species of trout ( O. mykiss and O. clarki ) range from 4.0 to 4.5 percent (Campbell and Cegelski 2005, p. 6); these are far higher levels of mtDNA sequence divergence than was observed between mountain whitefish in the Big Lost River and other populations within the Upper Snake River assemblage. According to this report, the genetic distance between mountain whitefish in the Big Lost River and surrounding populations is far less than that observed between other subspecies or species of salmonids. Furthermore, several other populations of mountain whitefish examined by Campbell and Cegelski (2005, Figure 3) exhibited levels of divergence equal to or greater than that exhibited by fish from the Big Lost River (the Boise River populations, for example). This issue is discussed in further detail in the distinct population segment analysis presented below. The petitioner's citation of pages 14-15 of the ESF Status Report 2006 in support of their contention that mountain whitefish in the Big Lost River merit consideration as a separate species or subspecies apparently refers to several different statements and sources, beginning with the citation of Whiteley (2002) as stating that “the Big Lost [mountain whitefish] should be considered as a separate group. This group is highly genetically differentiated from all other populations analyzed to date” (ESF Status Report 2006, p. 15). The ESF Status Report 2006 presented only conclusions from the Whiteley 2002 reference, but provided no data or analysis to support those conclusions. Only the name of the author, a title, and the name of a genetics laboratory in the Biological Sciences Department at the University of Montana was provided under the Whiteley 2002 citation (ESF Status Report 2006, p. 18) and we were unable to locate a publication by that name through a search of the published literature. We therefore contacted Mr. Whiteley and asked for a copy of the referenced publication. Mr. Whiteley informed us that the document cited was an unpublished report to a funding agency (A. Whiteley, pers. comm. 2007b), and referred us to a recently published, peer-reviewed paper on the genetics of mountain whitefish (Whiteley et al. 2006, already contained in our files and discussed further below). In responding to us, Mr. Whiteley also stated that he believes that mountain whitefish in the Big Lost River are more divergent than two other “species” of whitefish, Prosopium spilonotus and P. abyssicola (A. Whiteley, 2007b; quotes from author's original communication). However, Mr. Whiteley went on to indicate that the classification of these mountain whitefish species is not clearly defined (that they may not be “good” species; A. Whiteley, 2007b, quotes from author's original communication) and subject to debate. The petitioner further references the following statements: “In analysis of all the genetic information available at that time, Gamett et al. (2004) concluded that Big Lost River whitefish are genetically different from all other whitefish and they are likely a unique species or subspecies of fish,” and “Given the most recent genetic studies of Miller et al. (2005) and Campbell et al. (2005), all of which confirm past studies and conclusions—the Big Lost mountain whitefish must be managed as a separate species from all other mountain whitefish” (ESF Status Report 2006, p. 15). The Gamett et al. (2004) citation appears to be a reference to an oral presentation made at a meeting of the Idaho Fish and Game Commissioners (ESF Status Report 2006, p. 16), and it was therefore unavailable to us. The citations for both Miller et al. (2005) and Campbell et al. (2005) appear to be references to abstracts, papers, or posters presented at a meeting of the American Fisheries Society and were not available to us. In our files we had a recent publication, W, Whiteley et al. (2006), regarding the genetics of mountain whitefish which was not cited in the ESF Status Report 2006. In this publication, the researchers utilized both allozymes and microsatellites to examine the genetic structure of mountain whitefish populations throughout the northwestern United States and British Columbia, plus two populations from western Alberta. The results indicated three large-scale genetic assemblages of mountain whitefish in this region based on allozyme data, and five large-scale genetic assemblages based on the microsatellite data (Whiteley et al. 2006, p. 2778). The Big Lost River population was included within the resulting Upper Snake River assemblage in both cases and is described as the “most genetically divergent” site in that assemblage. However, the data indicate that the degree of genetic divergence of mountain whitefish in the Big Lost River from other populations in the upper Snake River region is substantially less than the genetic divergence observed between the major assemblages. The authors note low levels of within-population genetic variation in several physically isolated populations of mountain whitefish, including not only the Big Lost River, but also the Big Wood River, Bull River, and Thutade Lake (Whiteley et al. 2006, p. 2780). They also note a higher degree of genetic differentiation in several physically isolated sites in the Upper Snake region, which is to be expected when gene flow is precluded geographically. In addition to the Big Lost River, this pattern was observed in the Henry's Fork and several Bonneville Basin sites (Whiteley et al. 2006, p. 2781). This most recent analysis of the genetic relationships of mountain whitefish (Whiteley et al. 2006) does not support the contention that mountain whitefish of the Big Lost River are distinctive or unique genetically as compared to other populations in the upper Snake River assemblages, or as compared to populations within other assemblages relative to the rest of the species. Rather, the authors point to a high degree of genetic differentiation between many populations of mountain whitefish in the Upper Snake River due to the topography of the region, and characterize those populations as “more finely subdivided than elsewhere” (Whiteley et al. 2006, p. 2781). The authors also point out that the degree of genetic differentiation observed in mountain whitefish among tributaries within river basins is less than that observed in populations of other salmonids, such as bull trout ( Salvelinus confluentus ) and westslope cutthroat trout ( Oncorhynchus clarki lewisi ) (i.e., bull trout and westslope cutthroat trout show greater levels of genetic differentiation between populations within river basins than do mountain whitefish) (Whiteley et al. 2006, p. 2783). Despite this high degree of genetic structuring, it has not been suggested in literature, that each of these bull trout or westslope cutthroat trout populations be considered as separate subspecies or species. The mountain whitefish in the Big Lost River exhibit less genetic differentiation than these populations. Also referenced by the petitioner in the ESF Status Report 2006 is the statement that “Whitefish in the Big Lost River are fixed for microsatellite alleles that are rare or not present in the surrounding rivers” (ESF Status Report 2006, p. 15). The petition cites Whiteley and Gamett (2002), which is the previously mentioned abstract from a meeting of the Idaho Chapter of the American Fisheries Society (Van Kirk et al. 2003, p. 13), available to us in our files. It refers to “the fixation of a unique allele in the Big Lost River population at one of the microsatellite loci.” The ESF Status Report 2006 implies that there are multiple rare or unique microsatellite alleles in the Big Lost River population, when in fact the abstract indicates there was only one unique allele. Although we were not provided with the data to support this statement, even if we assume that one microsatellite allele has become fixed in mountain whitefish occupying the Big Lost River, that information does not in and of itself confer any biological or ecological importance (e.g., as measured by morphological, physiological, or behavioral traits) because microsatellite alleles are considered selectively neutral, the frequencies of which largely reflect random or stochastic processes (e.g., genetic drift, population bottlenecks, founder effects, mutation rates) rather than selection for traits that confer increased fitness (Ashley and Dow 1994, p. 185). Indeed, the total lack of variability observed in microsatellites sampled for mountain whitefish in the Big Lost River (Whiteley et al. 2006, p. 2775) indicates that this population has likely undergone a past population bottleneck relative to other populations with a subsequent loss of genetic variability and random fixation (e.g., via drift of a unique [or nearly unique] allele) (D. Campton, pers. comm. 2007). Under such conditions, genetic distance may increase quickly, but is not in and of itself indicative of biological significance (Hedrick 1999, pp. 315, 316). We have no information, and the petitioner has offered none, to indicate that the fixation of this single microsatellite allele may in any way be biologically important or significant to the taxon as a whole. Such fixed allelic differences between geographically isolated freshwater populations of salmonid fishes are not considered uncommon (Allendorf and Waples 1996, p. 257). In sum, mountain whitefish occurring in the Big Lost River are not currently recognized as a subspecies or species (Nelson et al. 2004, p. 86; ITIS 2007), and neither the information provided in the petition nor in our files suggest that mountain whitefish in the Big Lost River may represent a distinct species or subspecies. Even considering the additional information supplied by Mr. Whiteley, our conclusion remains the same. Although no universally accepted definition of species and subspecies exists, in general such classifications are based on multiples lines of evidence, including factors such as morphology, behavior, and genetic characters (Haig et al. 2006, p. 1586). Information in our files indicates that the genetic distance observed between mountain whitefish in the Big Lost River and surrounding populations is substantially less than that observed between other subspecies or species of salmonids (Campbell and Cegelski 2005, p. 6). Likewise, the petition provides no substantial information to support its assertion that the mountain whitefish in the Big Lost River constitute a genetically unique stock; although the population possesses one unique haplotype, almost every population sampled had at least one unique haplotype, and some had several (Campbell and Cegelski 2005, Table 1). All available evidence indicates that there is a high degree of genetic structuring between populations of mountain whitefish, as is frequently observed in populations of freshwater salmonids (Allendorf and Waples 1996, p. 257; Whiteley et al. 2006, p. 2783), but that the degree of genetic differentiation between mountain whitefish in the Big Lost River and surrounding populations is no greater than that observed between other populations of mountain whitefish (Whiteley et al. 2006, p. 2781; Campbell and Cegelski 2005, Figure 3, p. 5). Although mountain whitefish in the Big Lost River may be genetically differentiated from other populations of the species, the data demonstrate that the same can be said of many populations of whitefish throughout the species' range; this widespread genetic structuring of populations alone does not indicate that each of these individual populations may warrant consideration as a separate subspecies or species (Haig et al. 2006, p. 1588). We conclude that the petitioner did not present substantial information indicating that mountain whitefish in the Big Lost River may be a species or subspecies. Evaluation of Mountain Whitefish in the Big Lost River as a Distinct Population Segment Under the Act, we can consider for listing any species, subspecies, or distinct population segment (DPS) of any species of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). The petitioner has asked us to consider listing mountain whitefish occurring in the Big Lost River of Idaho as a DPS. We, along with the National Marine Fisheries Service, developed the Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DPS Policy) (February 7, 1996, 61 FR 4722) to help us in determining what qualifies as a DPS under the Act. The policy identifies three elements that are to be considered in a decision regarding the status of a possible DPS as endangered or threatened under the Act: 1. Discreteness of the population segment in relation to the remainder of the species to which it belongs; 2. The significance of the population segment to the species to which it belongs; and 3. The population segment's conservation status in relation to the Act's standards for listing. Discreteness The petitioner asserts that the mountain whitefish occupying the Big Lost River basin are discrete due to the terminal nature of the Big Lost River within a sink drainage and the isolation of this population. Our DPS policy states that a population segment of a vertebrate species may be considered discrete if it is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. We agree that mountain whitefish in the Big Lost River may be considered discrete, since they occur in a closed basin lacking a surface connection to any major river system and are therefore physically separated from the remainder of the populations in the taxon. We therefore conclude that there is substantial information indicating that mountain whitefish in the Big Lost River may satisfy the discreteness criterion of the DPS policy. Significance If a population segment is considered discrete, our DPS policy directs us to consider available scientific evidence of the importance of this discrete population to the remainder of the taxon (species) to which it belongs. The policy suggests four potential factors to consider in evaluating significance: 1. Persistence of the discrete population in an ecological setting unusual or unique for the taxon, 2. Evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon, 3. Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range, or 4. Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. The petitioner points to two of these four factors in arguing for the significance of a possible DPS, contending that mountain whitefish occupying the Big Lost River are significant “because it [mountain whitefish] exists in a unique ecological setting that has contributed to its genetic differentiation, and because it differs markedly in its genetic characteristics from other whitefish populations.” The petition asserts that the Big Lost River is a unique ecological setting because it is one of five so-called “sinks drainages” that are a collection of closed surface drainage basins in southeastern Idaho, and that this physical isolation has led to genetic and other differences. The petitioner's argument that the mountain whitefish of the Big Lost River occupy a unique ecological setting relative to the rest of the species rests on the fact that the Big Lost River basin is a closed surface drainage basin. However, as noted earlier, the mountain whitefish also occurs in isolated populations in sink drainages in the Bonneville Basin in Utah and the Lahontan Basin in California and Nevada. Therefore, the mere fact that these mountain whitefish are found in a physically isolated drainage is not in and of itself unique, unusual, or significant to the species as a whole. In addition, other mountain whitefish occur in other types of physically isolated settings, such as above impassable waterfalls (e.g., Big Wood River and Henry's Fork of the Snake River in Idaho, or Bull River and Thutade Lake in British Columbia; Whiteley et al. 2006, p. 2780). The petitioner does not provide any information that the Big Lost river drainage is ecologically unusual or unique in any other way (e.g., in terms of prey species, community composition, water chemistry, substrate), apart from its physical isolation. As other populations of mountain whitefish also occur in closed drainage basins within the range of the species, and other populations occur within other physically isolated settings, the petition information does not indicate that the ecological setting of the Big Lost River is unique or unusual for the species. We next evaluate whether the mountain whitefish in the Big Lost River differ markedly from the remainder of the species in its genetic characteristics. The petition contends that mountain whitefish in the Big Lost River meet the significance criterion of the DPS policy “given the high level of genetic, morphological, and physical uniqueness of the Big Lost River Mountain Whitefish to the species as a whole.” As evidence, the petitioner states that “Big Lost River Mountain Whitefish are isolated and evolving separately from all other whitefish populations; the Big Lost River Mountain Whitefish have coloration and morphological differences—morphologically Big Lost River Mountain Whitefish are distinct from all other mountain whitefish; Big Lost River Mountain Whitefish are fixed for microsatellite alleles that are rare or not present in the surrounding rivers; biologically, Big Lost River Mountain Whitefish are an evolutionarily independent unit because they are isolated from surrounding populations and have been for some time; and the Big Lost River Mountain Whitefish is highly genetically differentiated from all other whitefish populations analyzed to date. [ESF] Status Report [2006], pp. 14-15.” We have already addressed in our evaluation of whether this population may be a separate species or subspecies, the petition's points regarding the fixation of a single microsatellite allele and the degree of genetic differentiation observed in mountain whitefish of the Big Lost River. In short, we concluded that the ESF Status Report 2006 had overstated the findings of Whiteley and Gamett 2002 by implying that more than one microsatellite allele was fixed in this population, when the abstract indicates that they only detected the fixation of a unique allele at a single microsatellite locus. We also found that the petitioner had not provided substantial information to indicate that the fixation of this one microsatellite allele may be significant to the taxon as a whole, particularly since microsatellites are considered likely to be neutral markers (Ashley and Dow 1994, p. 185), and fixed allelic differences between isolated populations of freshwater fishes are not considered to be uncommon (Gyllensten 1985, p. 691; Allendorf and Waples 1996, p. 257). We likewise concluded that the petitioner had not provided substantial information indicating that the genetic distance between mountain whitefish in the Big Lost River and surrounding populations was so great as to merit classification as a separate subspecies or species. Here, however, we must address whether the petitioner has provided us with substantial information indicating that there may be marked genetic differences between mountain whitefish found in the Big Lost River and the remainder of the species such that mountain whitefish occurring in the Big Lost River may be considered significant to the taxon as a whole. The petitioner relies upon pages 14-15 in the ESF Status Report 2006 in support of its significance argument regarding the genetic status of mountain whitefish in the Big Lost River. The first part of the discussion on these pages cites the studies of Miller et al. (2005) and Campbell et al. (2005), neither of which was directly available to us. According to the ESF Status Report 2006, Miller et al. (2005) defined two distinct clades of mountain whitefish and possibly four separate species, although the four possible species are not identified, and Campbell et al. (2005) found evidence for three large genetic assemblages of mountain whitefish, but neither reference apparently specifically addresses mountain whitefish in the Big Lost River (ESF Status Report 2006, p. 14). The ESF Status Report 2006 also cites Whiteley (2002) as identifying mountain whitefish from the Big Lost River as genetically most similar to the Upper Snake River populations above Shoshone Falls. The ESF Status Report 2006 quotes from Whiteley (2002) that “This group is highly genetically differentiated from all other populations analyzed to date. It is most genetically similar to populations from the upper Snake River (above Shoshone Falls) * * * These fish also have coloration and morphological differences, which provides additional evidence that they are highly differentiated from other mountain whitefish populations” (ESF Status Report 2006, p. 15). As noted earlier, the Whiteley (2002) citation in the ESF Status Report 2006 does not provide a reference to any obtainable published work or data, and when we requested the information from the author, he informed us that the quotations cited in the ESF Status Report 2006 were from an unpublished report to a funding agency, and provided us with a more recent published paper, Whiteley et al. (2006) (A. Whiteley, pers. comm. 2007a, b). This publication was also available to us in our files. Similar to the described findings of Campbell et al. 2005, Whiteley et al. (2006) found evidence for three large genetic assemblages of mountain whitefish in the Pacific Northwest, which they termed Cascadia, the Upper Missouri, and Upper Snake. As described above, mountain whitefish in the Big Lost River were one of several populations included within the Upper Snake assemblage. Although described as the “most genetically divergent” site in that assemblage, this publication identifies several other populations of mountain whitefish that, due to their physical isolation, exhibit low levels of within-population genetic variation (Big Lost River, Big Wood River, Bull River, and Thutade Lake) and that demonstrate a high degree of genetic differentiation, presumably due to reduced gene flow as a result of physical barriers (Big Lost River, Henry's Fork and several Bonneville Basin sites) (Whiteley et al. 2006, pp. 2780-2781). Thus the mountain whitefish found in the Big Lost River are not particularly distinctive or unique genetically in relation to the species as a whole, as several other isolated populations of the species exhibit similar levels of genetic variability and differentiation. In a personal communication to the Service, Mr. Whiteley also indicated that mountain whitefish in the Big Lost River “fall into the upper Snake River group and thus are not completely differentiated from all other whitefish populations analyzed to date” (A. Whiteley, 2007b). He went on to state that the degree of differentiation for mountain whitefish in the Big Lost River is the greatest he has observed, and that it is the single most divergent population from other nearby populations in the species' range. While we acknowledge that mountain whitefish in the Big Lost River may be genetically distinguished from other nearby populations, the petitioner provides no data to support the contention that this degree of divergence may be considered a marked level of differentiation, particularly in light of the fact that other populations of mountain whitefish, such as those in the Boise River, show a greater degree of difference, as described below. In considering the potential genetic distinctiveness of mountain whitefish in the Big Lost River, we evaluated the recent work of Campbell and Cegelski (2005), available in our files, which examined the phylogeography of mountain whitefish in Idaho, Utah, and Montana based on sequence analyses of the cytochrome-b gene of mitochondrial DNA (mtDNA). These data reveal that populations of mountain whitefish in general, and not just in the Big Lost River, are characterized by fixed, or nearly fixed, haplotypic differences between populations: Only 2 haplotypes out of 18 were shared by multiple populations (Campbell and Cegelski 2005, pp. 4-5). The possession of a unique haplotype is therefore not unique to the mountain whitefish of the Big Lost River; on the contrary, the publication by Campbell and Cegelski (2005) demonstrates that most populations of mountain whitefish sampled possess unique haplotypes. For example, in a sample of 7 individuals from the Boise River, the researchers identified 3 different haplotypes not observed in any of the 10 other populations sampled. The Big Lost River population possessed one unique haplotype, Haplotype 9. An analysis of the percent sequence divergence data presented in Figure 4 (Campbell and Cegelski 2005, p. 6) demonstrates that Haplotype 9 in the Big Lost River population differs from Haplotype 8 in the Henry's Fork population by 0.33 percent. This degree of divergence is far less than that observed between other populations of whitefish examined in this study, especially as compared to populations in the Lower Snake River assemblage. Haplotype 6, for example, from the Boise River, differs from Haplotype 5 observed within the same population by 1.49 percent. Campbell and Cegelski (2005) also found evidence for three broad genetic assemblages of mountain whitefish, which they term the Upper Snake River, Lower Snake River, and Upper Missouri River, and found that mountain whitefish from the Big Lost River, which have been isolated within that drainage, fall within the Upper Snake River Basin assemblage. The authors conclude that their results, in conjunction with “previous research indicating that mountain whitefish in the Big Lost [River] appear to be genetically and morphologically distinct” (citing Whiteley and Gamett 2003 [ sic ; 2002]), justify conserving the mountain whitefish occurring in the Big Lost River independent of other populations in the larger genetic assemblage to which they belong. We encourage the conservation of mountain whitefish and other native species as components of the natural biodiversity of the Big Lost River. However, the desirability of conserving mountain whitefish is not the same issue as whether the mountain whitefish found in the Big Lost River may qualify as a listable entity under the Act. Under the “significance” prong of the DPS policy we are required to apply a different and specific set of criteria. Based on the information in the petition and our files, we do not find substantial or reliable information indicating that mountain whitefish in the Big Lost River may be considered any more distinct genetically than any of several other populations of mountain whitefish examined, all of which may well be argued to merit conservation efforts outside of the realm of the Act. As noted above, the most recent genetic work (Whiteley et al. 2006) indicates that there are several physically isolated populations of mountain whitefish that, as expected under a scenario of reduced gene flow, show some divergence from their presumed common populations of origin. Particularly when a population has gone through a presumed bottleneck, as evidenced by the lack of microsatellite variation observed in mountain whitefish in the Big Lost River, the amount of genetic distance is expected to increase very quickly (Hedrick 1999, p. 315). Such increased distance does not, however, automatically confer biological significance in the absence of any indication of adaptive differences. The research clearly indicates that throughout the relatively broad range sampled, most populations of mountain whitefish have diverged to the point of possessing unique haplotypes, and that other populations of mountain whitefish exhibit a greater degree of genetic divergence than observed in mountain whitefish from the Big Lost River (Campell and Cegelski 2005, Figure 3). Mountain whitefish in general appear to exhibit a high degree of genetic structure between populations, as observed in many species of freshwater fishes (Gyllensten 1985, p. 691; Allendorf and Waples 1996, p. 257; Whiteley et al. 2006, p. 2783). The petition does not provide substantial evidence that the mountain whitefish in the Big Lost River are any more different than any of several other populations of whitefish throughout the species' range. In addition to genetics, the petitioner contends that differences in coloration and morphology of mountain whitefish in the Big Lost River provide additional evidence that they are “highly differentiated” from all other populations, citing the ESF Status Report 2006, pp. 14-15. The ESF Status Report 2006 contains no data or other analysis to support its assertions regarding color and morphological differences, but cites Whiteley (2002) as the source of this information; however, as described earlier, no obtainable reference is available (ESF Status Report 2006, p. 18). When we contacted the author and asked if he could provide us with the data demonstrating the referenced coloration and morphological differences. Mr. Whiteley replied, “I don't have any data on morphological variation for whitefish from the Big Lost. The references you cite all go back to personal observations by myself” (A. Whiteley, pers. comm., 2007a). Although he believes that “whitefish in the Big Lost [River] look different,” Mr. Whiteley stated that “these traits have not been quantified” (A. Whiteley, pers. comm. 2007a). This suggests that the authors of the ESF Status Report 2006 erred in alluding to “phenotypic studies” if, in fact, they were referring to a researcher's personal observations (ESF Status Report 2006, p. 6). Therefore, we do not consider the statement in the ESF Status Report 2006 to this effect to be reliable. We accept Mr. Whiteley's description (A. Whiteley, pers. comm. 2007a) that mountain whitefish from the Big Lost River may differ in color and form. However, based purely on Mr. Whiteley's opinion of the nature of these differences (shorter heads and possibly differing in body shape), we conclude that the petitioner has not provided us with substantial and reliable information to support the claim that the mountain whitefish in the Big Lost River have a “high level of [genetic], morphological and physical uniqueness * * * to the species as a whole.” We have no evidence before us to suggest that any differences in color or morphology that may exist are anything other than natural phenotypic variation that is often observed in different populations of fish. Natural variation in characteristics such as body shape in fish is commonly attributable to environmental factors, such as water temperature during development (e.g., Barlow 1961). Additionally, many fish exhibit a considerable degree of intraspecific variation in morphology, which has been experimentally demonstrated to be the result of phenotypic plasticity in response to the environment rather than a heritable response to selection (e.g., Mittelbach et al. 1999). Head depth is a common plastic trait in fish related to diet (e.g., Day et al. 1994). We have no information in our files, nor has the petitioner provided any substantial information, to suggest that any apparent differences in morphology or coloration of the mountain whitefish are in any way biologically meaningful such that they may be significant to the species as a whole. We also considered the additional information provided by Mr. Whiteley (A. Whiteley, pers. comm. 2007a). Even considering this additional information, our conclusion remains the same. DPS Conclusion Our DPS policy directs us to evaluate the significance of a discrete population in the context of its importance to the remainder of the taxon. Based on an analysis of the information presented by the petitioner, Service staff expertise, and information within our files, our evaluation indicates that the genetic, morphological, and coloration differences cited by the petitioner do not indicate that mountain whitefish found in the Big Lost River may differ markedly from other populations of mountain whitefish such as to be significant to the species as a whole. Therefore, the differences do not rise to the level of significance under the criteria set by our DPS policy. Because the mountain whitefish occupying the Big Lost River fail to meet the significance criteria for a DPS under the policy, we have determined that they do not constitute a listable entity under the Act. We also note that the petitioner did not petition us to list the Big Lost River mountain whitefish on the basis of a significant portion of the species' range, nor did the petitioner provide specific information indicating that the mountain whitefish within the Big Lost River basin represented a significant portion of the range of the species. Therefore, we did not specifically analyze whether the mountain whitefish in the Big Lost River basin represented a significant portion of the range of the species. Finding We have reviewed and evaluated the petition and literature cited in the petition in relation to information available to us. On the basis of this review and evaluation, we find that the petition does not present substantial scientific information to indicate that listing the mountain whitefish in the Big Lost River of Idaho may be warranted. This finding is based on lack of substantial information indicating that the mountain whitefish occurring in the Big Lost River qualify as a listable entity under section 3(16) of the Act. We find that mountain whitefish occurring in the Big Lost River do not constitute a separate species or subspecies, and although they may be considered discrete, neither the petition nor our files contain substantial information to indicate that this population may be biologically or ecologically significant according to the criteria under our DPS policy. Although we are not commencing a status review in response to this petition, we will continue to monitor the status and trends, potential threats, and ongoing management actions that might affect mountain whitefish in the Big Lost River. We encourage interested parties to continue to gather data that will assist with conservation of mountain whitefish in the Big Lost River basin. If you wish to provide information regarding mountain whitefish in the Big Lost River, you may submit your information or materials to the Field Supervisor, Snake River Fish and Wildlife Office (see ADDRESSES ). References Cited A complete list of all references cited is available on request from the Snake River Fish and Wildlife Office (see ADDRESSES ). Author The primary author of this notice is the Snake River Fish and Wildlife Office (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 15, 2007. Kenneth Stansell, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. E7-20767 Filed 10-22-07; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 0612243157-7232-03] RIN 0648-AT87 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery and Shrimp Fishery of the Gulf of Mexico; Amendment 27/14 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS issues this proposed rule that would implement a joint Amendment 27 to the FMP for the Reef Fish Resources of the Gulf of Mexico (Reef Fish FMP) and Amendment 14 to the Fishery Management Plan (FMP) for the Shrimp Fishery of the Gulf of Mexico (Shrimp FMP)(Amendment 27/14) prepared by the Gulf of Mexico Fishery Management Council (Council). This proposed rule would reduce the commercial and recreational quotas for red snapper, reduce the commercial minimum size limit for red snapper, reduce the recreational bag limit for red snapper, prohibit the retention of red snapper under the bag limit for the captain and crew of a vessel operating as a charter vessel or headboat, require the use of non-stainless steel circle hooks when using natural baits to fish for Gulf reef fish, require the use of venting tools and dehooking devices when participating in the commercial or recreational reef fish fisheries, and provide for seasonal closures of the Gulf shrimp fishery to reduce red snapper bycatch consistent with the Amendment's framework procedure. In addition, the proposed rule would establish a target reduction of shrimp trawl bycatch mortality of red snapper, assume a 10-percent reduction in post-hurricane fishing effort and landings when evaluating alternative TACs and management measures or in the alternative, not assume the 10% effort reduction, and establish a framework procedure to adjust the target effort level and closed season for the Gulf shrimp fishery. The measures contained in this proposed rule are intended to satisfy a U.S. District Court Order to establish a revised red snapper rebuilding plan by December 12, 2007, and to end overfishing of the red snapper resource in the Gulf of Mexico. DATES: Written comments must be received on or before December 7, 2007. ADDRESSES: You may submit comments on the proposed rule by any of the following methods: • E-mail: 0648-AT87.Proposed27-14@noaa.gov. Include in the subject line the following document identifier: 0648-AT87.Proposed27-14. • Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. • Mail: Peter Hood, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701. • Fax: 727-824-5308; Attention: Peter Hood. Instructions: All comments received are a part of the public record and will generally 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. Copies of Amendment 27/14, which include a supplemental environmental impact statement (SEIS), an initial regulatory flexibility analysis (IRFA), a regulatory impact review (RIR), and a fishery impact statement, may be obtained from the Gulf of Mexico Fishery Management Council, 2203 North Lois Avenue, Suite 1100, Tampa, FL 33607; telephone 813-348-1630; fax 813-348-1711; e-mail gulfcouncil@gulfcouncil.org ; or may be downloaded from the Council's Web site at http://www.gulfcouncil.org/. FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone 727-824-5305; fax 727-824-5308; e-mail peter.hood@noaa.gov. SUPPLEMENTARY INFORMATION: The reef fish and shrimp fisheries of the Gulf of Mexico are managed under their respective FMPs (Reef Fish FMP and Shrimp FMP). The FMPs were prepared by the Gulf of Mexico Fishery Management Council (Council) and are implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Background Multiple fisheries influence the status of the red snapper stock in the Gulf of Mexico, including the commercial and recreational red snapper fisheries and the shrimp trawl fishery, which takes red snapper incidentally when harvesting shrimp. A 2005 stock assessment concluded the Gulf of Mexico red snapper stock is overfished and undergoing overfishing, and red snapper fishing mortality rates are too high in both the directed and shrimp fisheries. In response to the 2005 assessment, the Council began drafting Amendment 27/14 to address overfishing and revise the red snapper rebuilding plan. In August 2006, the Council voted to delay consideration of the amendment until January 2007, pending completion of 2006 recreational effort and landings data and shrimp effort data. On March 12, 2007, the United States District Court for the Southern District of Texas, Houston Division, issued a ruling on legal challenges to the current red snapper rebuilding plan contained in Amendment 22 to the Reef Fish FMP ( Coastal Conservation Association v. Gutierrez et al. , Case No. H-05-1214, consolidated with Gulf Restoration Network et al. , v. Gutierrez et al. , Case No. H-05-2998). The Court required a new rebuilding plan by December 12, 2007. However, consistent with the Court ruling, if the revised rebuilding plan cannot be implemented by December 12, 2007, additional rule-making may be required to implement one or more of the measures contained in Amendment 27/14 on an interim basis. Therefore, to reduce fishing mortality and maintain stock rebuilding in the interim, NMFS published a temporary rule, effective May 2, 2007 (72 FR 15617, April 2, 2007). The temporary rule reduced the recreational quota from 4.47 million lb (2.03 million kg) to 3.185 million lb (1.445 million kg), and the commercial quota from 4.65 million lb (2.11 million kg) to 3.315 million lb (1.504 million kg). The recreational bag limit was reduced from four fish to two fish per person per day to constrain the recreational harvest to its quota during the existing April 21 through October 31 fishing season. The commercial minimum size limit was reduced from 15 inches (38 cm) total length (TL) to 13 inches (33 cm) TL to reduce discard mortality. To reduce red snapper bycatch mortality in the shrimp fishery, a target reduction goal was established to reduce red snapper bycatch mortality by at least 50 percent compared to the bycatch mortality rate during the 2001-2003 time period. Under the Magnuson-Stevens Act, NMFS has the ability to extend these interim measures if necessary. The measures in the temporary rule and this proposed rule are consistent with the March 12, 2007 Court ruling. The measures in the proposed rule are designed to address long-term reductions in red snapper fishing mortality rates of the directed red snapper fisheries, shrimp fishery, and other reef fish fisheries. Revised Rebuilding Plan The proposed actions are intended to implement revisions to the Council's red snapper rebuilding plan with a goal of having at least a 50-percent probability of ending overfishing for red snapper between 2009 and 2010 and rebuilding the stock to the biomass level associated with maximum sustainable yield (MSY) by 2032. Under the proposed actions, the probability of ending overfishing by 2010 is estimated to be greater than 50 percent. The annual total allowable catch (TAC) during the first 3 years of the plan is 0.3 million lb (0.136 million kg) lower than the maximum annual TAC allowed under the rebuilding projections. Although the rebuilding plan does not account for additional reductions in release mortality expected from the proposed required use of circle hooks, dehooking devices, and venting tools, these proposed measures would further increase the probability of ending overfishing by 2010. Also, NMFS continues to develop bycatch reduction devices (BRDs) which promise better performance than those presently used in the shrimp fishery. Beginning in 2011, the recommended revisions to the rebuilding plan would allow for harvest levels to begin increasing, while maintaining greater than a 50-percent probability of rebuilding the red snapper stock by the target date of 2032. Future TACs and quotas are modeled around yields associated with a fishing mortality producing MSY (proxy = 26-percent spawning potential ratio), in association with achieving needed reductions in bycatch and discard mortality in both the directed and shrimp fisheries. Under the recommended revisions to the rebuilding plan, the TAC would increase to 7.0 million lb (3.175 million kg) in 2011, and reach 14.0 million lb (6.35 million kg) by 2032. The recommended revisions to the rebuilding plan would also allow the shrimp bycatch mortality reduction target to drop from 74 percent in 2008 to 67 percent in 2011, and thereafter, the target would decline at a constant rate from 67 to 60 percent by 2032. Any change made to the rebuilding plan and implementing measures, however, is contingent on successfully ending overfishing in the next 3 years and would require further action be recommended by the Council and subsequently approved by NMFS. To increase the probability of successfully rebuilding the red snapper stock, the rebuilding plan and management measures would be reviewed and adjusted, as necessary, based on periodic stock assessments. Measures To Reduce Directed Fishing Mortality To reduce fishing mortality and end overfishing of the red snapper stock in the Gulf of Mexico, the proposed rule would reduce the existing quotas for the commercial and recreational fisheries. The proposed rule would establish a commercial quota of 2.55 million lb (1.16 million kg) and a recreational quota of 2.45 million lb (1.11 million kg). Because of the individual fishing quota program in the commercial fishery, no measures are proposed to further constrain commercial harvest to its 2.55 million lb (1.16 million kg) quota, but measures are proposed to constrain the recreational harvest to its quota of 2.45 million (1.11 million kg). The Council considered various size limit and bag limit combinations which would determine the length of the recreational fishing season. The proposed two-fish bag limit would allow a June 1 through September 15 (107-day) recreational fishing season. In addition to the two-fish bag limit, constraining the captain and crew of for-hire vessels to a zero-fish bag limit would allow the fishing season to be extended through the end of September (122 days). Based on extensive public comment, the Council chose to assume a 10-percent reduction in post-hurricane fishing effort and landings when evaluating recreational management measures. Application of this assumption, along with implementation of the two-fish bag limit and the zero-fish captain and crew limit of for-hire vessels, would allow the recreational fishing season to extend from May 15 through October 15 (154 days). Although preliminary data suggest some declines have occurred since the 2005 hurricane season, the magnitude of reductions varies by fishing sector, is often less than 10 percent, and in some cases effort or landings have increased. Further, it is unknown how long post-hurricane reductions in landings and fishing effort may continue as the fisheries recover. The Council's recommended alternative for Action 1 of Amendment 27/14 includes, among other things, a recreational fishing season of 107 days, which when coupled with the zero captain and crew bag limit, results in a 122-day recreational season (June 1-September). However, the Council's recommended alternative for Action 2 would apply an assumed 10-percent reduction in post-hurricane recreational fishing effort to the measures in Action 1. Doing so results in a recreational fishing season of 154 days. In light of the foregoing discussion, NMFS proposes the recommended recreational season in Action 1, 107 days, coupled with the zero captain and crew bag limit, which results in a 122-day recreational season (June 1-September). NMFS also proposes, in the alternative, the longer 154-day recreational fishing season resulting from the Council's recommended alternative for Action 2. NMFS specifically requests comments on the assumed 10-percent reduction in effort and landings as recommended in Amendment 27/14, which would affect the designation of the length of the recreational fishing season established by this rule. The existing 16-inch (41-cm) TL recreational minimum size limit would remain unchanged. Public comments during development of the amendment indicated most anglers preferred a longer fishing season rather than a lower minimum size limit. Lowering the recreational minimum size limit would have substantially shortened the fishing season to compensate for increases in angler catch rates. Although most anglers preferred a longer fishing season, they did not support a further reduction of the bag limit to one fish to further extend the fishing season because a one-fish bag limit was considered too low to provide a satisfactory recreational fishing trip. Measures To Reduce Bycatch Mortality in the Directed Fishery Reductions in red snapper bycatch (regulatory discards) are needed in all sectors of the directed red snapper fishery to reduce overfishing in the short term and to recover the stock over the long term. The proposed rule would reduce the commercial size limit from 15 inches (38 cm) TL to 13 inches (33 cm) TL. This reduction in the size limit is expected to reduce dead discards by 40 to 60 percent and allow the stock to recover in a shorter time period. The proposed rule would also require the use of circle hooks, venting tools, and dehooking devices to reduce bycatch and bycatch mortality when fishing for Gulf reef fish in the exclusive economic zone (EEZ). It is unknown to what extent bycatch or bycatch mortality will be reduced by these gears, but all of these gears have been shown to increase the survival of released fish. Measures To Reduce Shrimp Trawl Bycatch Mortality To end overfishing of red snapper between 2009 and 2010, the 2005 assessment for red snapper indicated the benchmark 2001-2003 level of red snapper bycatch mortality attributable to shrimp fishing must be reduced by 74 percent. The proposed rule would establish an initial reduction target 74 percent less than the benchmark. The proposed rule would also describe the process by which the target goals for bycatch mortality could be reduced over time, consistent with the stock rebuilding plan and subsequent stock assessments, through appropriate rulemaking. If stock rebuilding targets are met over the next 3 years and overfishing is ended, the target bycatch mortality goal for the shrimp fishery would then be decreased to 67 percent of the 2001-2003 benchmark beginning in 2011. Thereafter, the target goal would be reduced at a constant rate to achieve a target reduction goal of 60 percent less than the benchmark by 2032. However, any such change would occur only after the Council and NMFS reviewed updated information regarding the status of the red snapper stock and the rebuilding projections. Subsequent to the benchmark years of 2001-2003, effort in the offshore shrimp fishery has declined dramatically due to external economic issues, such as increasing fixed costs (fuel, ice, etc.), imports, and stagnant shrimp prices. Juvenile red snapper are more abundant in the 10-30 fathom (18-55 m) depth strata from Mobile Bay, Alabama, to Brownsville, Texas, and effort reductions in this particular area are substantial. Effort within this area can be used as a proxy for bycatch mortality on juvenile red snapper. Bycatch mortality on juvenile red snapper in 2005 for the 10-30 fathom (18-55 m) depth strata was approximately 60 percent less than the benchmark 2001-2003 period, and in 2006, bycatch mortality was 65 percent less than the benchmark period. Early estimates for 2007 suggest effort in the Gulf shrimp fishery may be lower than in 2006. To ensure the remaining reductions needed to meet the 74-percent target, the proposed rule would set forth the procedure by which NMFS would establish seasonal area closures for the Gulf shrimp fishery consistent with the framework procedures established in Amendment 27/14. Such closures, if necessary, would be established within some or all of the area that approximates the 10-30 fathom (18-55 m) depth strata from Mobile Bay, Alabama, to the Louisiana-Texas boundary. The proposed rule identifies an eastern zone, a Louisiana zone, and a Texas zone, bounded by coordinates marking the maximum closed area. The geographical scope and duration of the closure would be dependent on the level of effort reduction needed to meet the 74-percent reduction target. As an example, if the closure included the maximum area defined and covered the typical 60-day time period of the Texas closure, based on the level of effort expended in this area during recent years, such a closure would provide as much as a 24-percent reduction in fishing mortality on juvenile red snapper. Should additional closure of the shrimp fishery be needed after reopening Federal waters off Texas in July, the closure could be expanded to include waters off Texas as well as areas east of Texas. To implement such a closure in accordance with the framework procedures established in Amendment 27/14, on or about March 1, NMFS would use the most recent 12-month period of shrimp effort data available, and assess the level of effort within the areas where red snapper are abundant. The NMFS Southeast Regional Administrator would, based on an assessment from the NMFS Southeast Fisheries Science Center, determine the geographical scope and duration of a closure needed to meet the bycatch mortality reduction target, and implement a closure intended to begin on the same date and time as the Texas closure. Coordinating the timing of the framework closure with that of the long-standing Texas closure would facilitate enforcement efforts by simplifying regulations for both fishermen and law enforcement agents. If the RA determines that a framework closure is necessary, the closure falls within the scope of the potential closures evaluated in the FMP such as coordination of any closure with the Texas closure, and good cause exists to waive notice and comment pursuant to the Administrative Procedure Act, NMFS will implement the closure by publication of a final rule in the Federal Register . If such good cause waiver is not justified, NMFS will implement the closure via appropriate notice and comment rulemaking. Classification Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, I have determined that this proposed rule is consistent with Amendment 27/14, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. This proposed rule has been determined to be significant for purposes of Executive Order 12866. NMFS prepared a SEIS for this amendment. A notice of availability for the draft SEIS was published on April 20, 2007 (72 FR 19928). A notice of availability for the final SEIS was published on August 3, 2007 (72 FR 43271). NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, for this proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the objectives of, and legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from the Council (see ADDRESSES ). A summary of the IRFA follows. The Magnuson-Stevens Act provides the statutory basis for the proposed rule. The proposed rule would reduce the commercial quota from 4.65 million lb (2.14 million kg) to 2.55 million lb (1.16 million kg) and the recreational quota from 4.47 million lb (2.06 million kg) to 2.45 million lb (1.11 million kg), reduce the recreational bag limit from four fish to two fish and the bag limit for captain and crew of for-hire vessels to zero, reduce the commercial minimum size limit from 15 inches (38 cm) TL to 13 inches (33 cm) TL, require participants in all Gulf reef fish fishery sectors to use non-stainless steel circle hooks (when using natural baits) and to use venting tools and dehooking devices, and provide for seasonal area closures of the Gulf shrimp fishery to reduce red snapper bycatch consistent with Amendment 27/14's framework procedure. In addition, the proposed rule would assume a 10-percent reduction in recreational red snapper effort and landings due to hurricane effects or in the alternative, not assume the 10-percent effort reduction, establish a target reduction goal for shrimp trawl bycatch mortality on red snapper, establish options for time-area closures for the shrimp fishery that would maintain the target reduction goal, and establish a framework whereby NMFS could adjust the target reduction goal and time-area closures. NMFS specifically requests comments on the assumed 10-percent reduction in effort and landings as recommended in Amendment 27/14, which would affect the designation of the length of the recreational fishing season established by this rule. The purpose of this proposed rule is to reduce red snapper catch, bycatch, and discard mortality in the directed commercial and recreational fisheries and the shrimp fishery in order to end overfishing for red snapper between 2009 and 2010 and rebuild the stock by 2032 in compliance with the red snapper rebuilding plan. No duplicative, overlapping or conflicting Federal rules have been identified. Management actions considered in this proposed rule are expected to affect all vessels that operate in the commercial red snapper fishery, all vessels that have a Federal reef fish for-hire permit, and all dealers and processors that handle product from these fisheries. Although this proposed rule contains actions that pertain to the commercial shrimp fishery, these actions are not expected to impose any direct adverse impacts on the fishery or associated entities. Prior to the January 2007 implementation of the red snapper individual fishing quota program (IFQ), 136 entities held Class 1 licenses that allowed a commercial vessel trip limit of up to 2,000 lb (907 kg) of red snapper and 628 entities held Class 2 licenses that allowed a trip limit of up to 200 lb (91 kg) of red snapper. Between 2002 and 2004, the top 50 red snapper vessels in terms of landings harvested 2.77 million lb (1.26 million kg) of red snapper, on average, or 64 percent of the industry total. Vessels ranked 51 to 131 harvested 1.29 million lb (0.59 million kg), on average, or 30 percent of the industry total for the same period. Thus, the top 131 red snapper vessels accounted for approximately 94 percent of the total industry red snapper landings. Red snapper are mainly harvested by fishermen using vertical-line gear. These fishermen accounted for approximately 90 percent of commercial red snapper Gulf harvests, on average, between 2002 and 2004. Average annual gross receipts (2004 dollars) and net income (gross receipts minus all costs) per vessel vary by gear type, area fished, and volume of catch. High-volume vessels using vertical lines averaged gross receipts and net income of $110,070 and $28,466 in the northern Gulf, but only $67,979 and $23,822 in the eastern Gulf. Low-volume vessels using vertical lines averaged gross receipts and net income of $24,095 and $6,801 in the northern Gulf, but $24,588 and $4,479 respectively in the eastern Gulf. Vessels using bottom longlines averaged gross receipts and net income of $116,989 and $25,452 for high-volume vessels, but only $87,635 and $14,978 respectively for low-volume vessels. The current fleet permitted to operate in the Gulf reef fish for-hire sector is estimated to be 1,625 vessels. The for-hire fleet is comprised of charterboats, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. The average charterboat is estimated to generate $76,960 in annual revenues and $36,758 in annual profits, whereas the appropriate values for the average headboat are $404,172 and $338,209, respectively. On average, both charterboats and headboats operate at about 50 percent of their passenger capacity per trip. The measures in this action would also be expected to affect fish dealers, particularly those that receive red snapper from harvesting vessels. A Federal permit is required for a fish dealer to receive reef fish from commercial vessels, and there are 227 dealers currently permitted to buy and sell reef fish species. All reef fish processors would be included in this total because all processors must be dealers. Most of these dealers are located in Florida (146), with 29 in Louisiana, 18 in Texas, 14 in Alabama, 5 in Mississippi, and 15 in states outside the Gulf. In addition, vessels identify the dealers who receive their fish on logbook reports. Commercial reef fish vessels with Federal permits are required to sell their harvest only to permitted dealers. From 1997 through 2002, on average, 154 reef fish dealers actively bought and sold red snapper. These dealers were distributed around the Gulf as follows: 7 in Alabama, 96 in Florida, 22 in Louisiana, 7 in Mississippi, and 22 in Texas. On average, Florida dealers purchased approximately $1.8 million of red snapper, followed by Louisiana ($1.4 million), Texas ($1.3 million), Mississippi ($174,000), and Alabama ($88,000). These dealers may hold permits for multiple fisheries, but it is not possible to determine what percentage of their total business comes from the red snapper fishery. Although it is unknown how many eligible shrimp permit holders will apply for moratorium permits and, thus, would be potentially affected by this action, 2,666 vessels would qualify for the shrimp permit and are assumed to constitute the potentially affected universe of shrimp vessels. The average annual gross revenue (all harvest species) per qualifying vessel in 2005 was approximately $116,000, while the comparable figure for qualifying vessels active in the Gulf shrimp fishery, i.e. , vessels with recorded shrimp landings in 2005, was approximately $152,000. In the same year, the maximum annual gross revenue from shrimp by a vessel was approximately $757,000 for both all qualifying and active qualifying vessels, whereas the figure for all harvest species was approximately $1.89 million by an inactive qualifier and $757,000 for an active qualifier. The most recent projection of performance in the commercial shrimp fishery indicated that the average vessel, across all vessel size categories, experienced a negative 33-percent rate of return and that economic losses would continue until 2012. Thus, almost any but the most minor additional financial burden would be expected to generate a significant adverse impact on affected vessels and potentially hasten additional exit from the fishery. In 2005, 609 dealers were identified operating in the commercial shrimp fishery. Employment information for this sector is not available. In 2005, 60 processors in the shrimp fishery were identified, employing approximately 3,400 persons, or an average of 56 employees per entity. The maximum number of employees for a shrimp processor in 2005 was 353. The Small Business Administration (SBA) defines a small business in the commercial fishing industry as an entity that is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has total annual average receipts not in excess of $4.0 million annually (NAICS codes 114111 and 114112, finfish and shellfish fishing). For for-hire vessels, these same criteria apply except that the annual receipts threshold is $6.5 million (NAICS code 713990, recreational industries). For seafood processors and dealers, the SBA uses an employee threshold rather than a receipts threshold. The threshold is 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide for a seafood processor and 100 or fewer persons for a seafood dealer. Some persons/entities are known to own multiple vessels ( i.e. fleet operations) in the commercial red snapper fishery and in the commercial reef fish fisheries in general, but the extent of such operations is unknown. The maximum number of reef fish permits reported owned by the same person/entity is 6 permits. Additional permits and the revenues associated with those permits may be linked to an entity through affiliation rules, but such affiliation links cannot be made using existing data. Further, a definitive determination of whether any commercial entity would be considered a large entity cannot be made using average revenue information. However, since the average total revenue in the commercial red snapper fishery between 2002 and 2004 was $11.652 million, given the number of license holders in the fishery is 764, the summary statistics and the maximum number of permits owned by a single person/entity provided above, NMFS determined that all commercial reef fish harvest entities that would be affected by this action are small entities. Fleet operations also exist in the for-hire sector, with at least one entity reported to hold 12 permits. The bulk of the fleet, however, consists of single permit operations. Thus, based on the average revenue figures above, all for-hire operations affected by this proposed rule are small entities. Average employment per reef fish dealer is unknown. Although dealers and processors are not synonymous entities, total employment for reef fish processors in the Southeast is approximately 700 individuals, both part and full time. While all processors must be dealers, a dealer need not be a processor. Further, processing fish is a much more labor intensive than buying fish. Therefore, given the employment estimate for the processing sector and the number of dealers that participated in the fishery on average per year from 1997-2002 (154 dealers), NMFS assumed that the maximum number of employees for reef fish dealers and processors are unlikely to surpass the SBA employment benchmarks. Therefore, all reef fish dealers and processors affected by this proposed rule are small entities. While gross revenues vary between shrimp vessels of different physical size, these differences do not affect the assessment of maximum gross revenue per vessel and the subsequent determination of whether shrimp vessels constitute large or small entities. As with the other sectors, fleet operations are known to exist in the commercial shrimp fishery, but the magnitude of such cannot be determined using available data. Given these findings, and the maximum revenue per vessel figures noted above, NMFS determined that all shrimp vessels that could be affected by this proposed rule are small entities. Similar to the reef fish industry, processing shrimp is more labor intensive than buying shrimp. Thus, average employment in the shrimp dealer sector is assumed to be less than that in the processing sector. Because the maximum number of employees for a shrimp processor does not exceed the SBA threshold, all shrimp dealers and processors that could be affected by this proposed rule are small entities. The proposed red snapper recreational and commercial quota decreases are expected to reduce profits in the for-hire and commercial sectors. In the for-hire sector, declines in profits, approximated by net operating revenue (gross revenue minus operating costs except labor) decreases, are expected due to declines in individual angler trip bookings. Under the proposed 2.45 million lb (1.11 million kg) recreational quota and two-fish bag limit, the estimated annual net operating revenue losses to the for-hire sector are approximately $1.1 million. It is not possible to accurately estimate the extent to which individual for-hire operations will be affected by the proposed quota reduction. However, a simple average suggests that, for the 1,625 vessels active in the for-hire sector, the average annual net operating revenue loss would approximate $680 per vessel. This simple arithmetic mean does not provide information on losses that may be incurred by a specific for-hire operation. Depending on the geographic location of their operation, level of activity, reliance on red snapper trips, diversity of species available, and preferences of their core clientele, some vessels likely would be impacted more than others. Quantifying the number of vessels that might face greater economic losses is not possible with available data. However, in general, the average impact per vessel will vary inversely with the number of vessels included in this core group. For example, if expected economic impacts were borne by 10 to 25 percent of the fleet, average losses in net operating revenue per vessel would be expected to range from approximately $2,700 to $6,800. The assessment of impacts on for-hire profits was based on the recreational quota and not season length. Although industry comment indicated that a longer open season was preferable to a shorter season, regardless of total allowable catch, and would result in less economic losses, estimating the differential economic impacts of season length was not possible with available data, and the estimated reduction in for-hire profits as a result of the proposed recreational quota is neutral with respect to season length. If red snapper season length is a significant factor in for-hire profits, then the estimated $1.1 million losses could understate by an indeterminate amount the impacts of the shorter season that would occur if a 10-percent reduction in recreational red snapper effort and landings due to hurricane effects is not assumed in the determination of season length. For the commercial red snapper sector, reductions in profits, as measured by changes in net operating revenue to owners, captains, and crew, are expected to result from revenue losses associated with lower snapper harvests. Net operating revenue losses due to the commercial quota reduction would be mitigated by the action to lower the commercial size limit. The impact analysis for the commercial red snapper sector assumed the fishery was operating under an individual fishing quota program (IFQ), which was implemented in January 2007. Under the IFQ, the number of vessels operating in the fishery is expected to decline substantially as quota shares are consolidated. However, since the IFQ program has only recently been implemented, substantive data on the expected contraction is not yet available to indicate the size and type of fleet that will ultimately occur. Therefore, analysis of the quota reduction impacts assumed the fleet would contract to homogenous fleets of a specific vessel size and accompanying operational characteristics, with the resultant fleet comprised of either more small vessels (35 ft (10.7 m)) or fewer large vessels (65 ft (19.8 m)). Under the status quo commercial quota of 4.65 million lb (2.14 million kg), for the smallest (35 ft (10.7 m)) and largest (65 ft (19.8 m)) vessel length class considered, the fleet would be composed of either ninety-five 35-ft (10.7-m) vessels or thirty-nine 65-ft (19.8-m) vessels. The average annual net operating revenue per vessel within each vessel size class was estimated at $274,000 and $667,000, respectively. Under the proposed 2.55 million lb (1.16 million kg) commercial quota, projected losses in net operating revenues to owners, captains, and crew in the commercial sector are estimated to be approximately $11.5 million. The fleet would be composed of either fifty-two 35-ft (10.7-m) or twenty-two 65-ft (19.8-m) vessels, representing a reduction of either forty-three 35-ft (10.7-m) vessels or seventeen 65-ft (19.8-m) vessels. For each of these potential fleets, the corresponding average net operating revenue for remaining vessels was estimated at $278,000 and $665,000, respectively. Average short-term net operating revenue losses per vessel are therefore estimated at $121,000 and $295,000 for the 35-ft (10.7-m) and 65-ft (19.8-m) vessel classes, respectively. The proposed commercial quota reduction is also expected to adversely impact dealers and processors involved in the red snapper trade. Although substantial decreases in revenues collected from domestic red snapper are anticipated, the lack of firm-level gross revenues and profit data precludes quantification of the expected losses. To mitigate the adverse economic impacts that would result from the proposed 45-percent decrease in the commercial quota, dealers and processors may increase their reliance on imported snapper and their use of other reef fish species as substitutes. Preventing captain and crew from retaining a red snapper bag limit while on charter is not expected to affect the profitability of for-hire operations because the sale of recreational reef fish landings is already prohibited. The proposed requirement for all persons aboard reef fish vessels to use non-stainless steel circle hooks (when using natural baits), venting tools, and dehooking devices is expected to result in minimal impacts on the profitability of small entities because of the current widespread use of circle hooks, their competitive pricing, and the availability of dehooking devices and venting tools for less than $15 each. The management measures considered in this proposed rule do not affect the reporting or record-keeping requirements for reef fish and shrimp vessels, dealers, or processors. This proposed action does not require additional records or report preparation. Four alternatives, including the status quo, were considered for the action to set TAC and, thus, establish the recreational and commercial quotas in the red snapper fishery. Three of the alternatives include multiple options and sub-options to manage the recreational fishery under the respective TACs and quotas. The first alternative, the status quo, would not be consistent with assumptions related to expected reductions in directed and bycatch mortality rates and would not, as indicated by the March 12, 2007 Court Opinion ( Coastal Conservation Association v. Gutierrez et al. , Case No. H-05-1214, consolidated with Gulf Restoration Network et al. , v. Gutierrez et al. , Case No. H-05-2998), be associated with a sufficient probability of the red snapper rebuilding plan's success. If implemented, the status quo alternative would result in drastic TAC and quota reductions in subsequent years and, thus, greater adverse economic impacts during that time in order for the resource to continue on the designated recovery path. The second alternative to the proposed TAC action would have reduced the red snapper TAC to 7.0 million lb (3.175 million kg), with resultant commercial and recreational quotas of 3.57 and 3.43 million lb (1.62 and 1.44 million kg), respectively. This alternative has the potential of generating, depending upon the sub-option selected, lower short-term adverse economic impacts than the proposed action. However, a 7.0 million lb (3.175 million kg) TAC is neither consistent with the current mortality reduction assumptions nor is it in accordance with the findings of the recent Court Opinion. Like the status quo, this alternative would require greater TAC reductions in subsequent years, thereby generating greater adverse economic impacts over that time than the proposed rule. The third alternative to the proposed TAC action would have reduced the red snapper TAC to 3.0 million lb (1.36 million kg), with resultant commercial and recreational quotas of 1.53 and 1.47 million lb (0.69 and 0.67 million kg), respectively. This alternative would have reduced the TAC and quotas more than necessary to end overfishing within the specified time period and would be expected to result in an overly restrictive management approach with unnecessary and greater adverse economic impacts than the proposed rule. Three alternatives, including the proposed status quo action and the alternative proposed 10-percent reduction, were considered for the action addressing post-hurricane effort and landings reduction. Although some post-hurricane reduction in effort and landings is demonstrated by available data, the reductions are not consistent across the entire fishery and are not expected to persist as the industry recovers. The proposed action could potentially result in a shorter season than necessary to end overfishing, thereby increasing short-term adverse economic impacts. The alternative proposed action, a 10-percent reduction in post-hurricane effort in the red snapper fishery, would extend the fishing season and yield greater short-term economic benefits than the proposed action. However, this reduction may not be supported by available data and may therefore result in a failure to meet conservation goals, resulting in long-term negative economic impacts relative to the proposed action. The alternative to the proposed actions would assume a 25-percent reduction in post-hurricane effort and landings. This alternative, which would result in a longer season than the proposed action, would result in greater short-term economic benefits than the proposed action. However, a 25-percent reduction is not supported by available data, is believed to be an excessive assumption, and would be expected to result in a failure to meet conservation goals, resulting in substantial long-term negative economic impacts relative to the proposed action. Two alternatives, including the status quo, were considered for the captain and crew bag limit action. Analyses indicate that under the proposed action to reduce the captain and crew bag limit to zero, the recreational red snapper fishing season could remain open 4-16 days longer relative to the status quo. The status quo alternative would require more restrictive measures on recreational anglers (i.e., shorter open season, lower bag limit) to achieve rebuilding goals, because the fish retained by the captain and crew would represent an additional source of mortality that would have to be factored into harvest controls. These more restrictive measures would be expected to result in greater reductions in trip demand than the proposed angler restrictions, resulting in increased reductions in for-hire profits and angler value than the proposed action. Three alternatives, including the status quo, were considered for the commercial red snapper minimum size limit. The first alternative to the proposed action, the status quo, would be expected to result in continued unnecessary bycatch mortality and would not, therefore, meet the Council's objectives. The proposed 13-inch (33-cm) minimum size limit in the commercial sector would be expected to result in decreased economic impacts to the fishery and associated industries due to anticipated increases in the operational efficiency of commercial vessels and a potential price premium for smaller fish. The third alternative would eliminate the commercial minimum size limit. Eliminating the commercial size limit would exacerbate user conflicts between the commercial and recreational sectors since the recreational sector would have a 16-inch (41-cm) minimum size limit, while the commercial sector would not have any minimum size limit. Further, since no commercial market is known to exist for red snapper smaller than 12 inches (30 cm), no additional benefits would be expected to accrue to the commercial sector, and total economic impacts to the commercial sector would be expected to be comparable to those of the proposed action. Three alternatives, including the status quo, were considered for the gear requirement action. The two alternatives encompassing gear requirements contained options that specified the fisheries over which the requirements would apply. The proposed action would require the use of non-stainless steel circle hooks when using natural baits, and require the use of venting tools and dehooking devices from all participants in the reef fish fisheries of the Gulf of Mexico. By reducing bycatch and bycatch mortality in the red snapper and reef fish fisheries, the proposed action would contribute to improving the likelihood of success of the red snapper rebuilding plan and is expected to result in long-term net economic benefits. The sub-options that reduced the fisheries to which the proposed gear requirements would apply would be expected to result in less reduction in bycatch mortality and long-term economic benefits than the proposed rule. However, in general, however, little economic impact is anticipated because of the already widespread use of circle hooks and the fact that venting/dehooking devices are relatively inexpensive (less than $15 each). The first alternative to the proposed gear action would not impose any new gear requirements on fishermen and would not, in the short term, result in any direct adverse economic impacts. However, this alternative would not contribute to improving the likelihood of success of the red snapper rebuilding plan. Relative to the proposed action, this alternative could result in more severe restrictions on fishery participants in the long run and, thus, generate greater adverse economic impacts. The second alternative and associated fishery sub-options to the proposed gear action would specify only a minimum hook size. Compared to the proposed action, this alternative would be less effective in reducing bycatch and bycatch mortality. As a result, in the long run, it would be expected to result in smaller economic benefits than the proposed action. Six alternatives, including the status quo, were considered for the bycatch reduction target in the commercial shrimp fishery. The status quo would not have established a bycatch reduction target, would not ensure consistent reductions in bycatch fishing mortality on juvenile red snapper in the shrimp fishery, and would not be consistent with the 2005 SEDAR assessment recommendations to further reduce bycatch fishing mortality rates on the red snapper stock. The proposed action, which would establish a target reduction of shrimp trawl bycatch mortality on red snapper 74 percent less than the benchmark years of 2001-2003, is consistent with the proposed quotas and an increased probability of the red snapper rebuilding plan's success. The proposed action, which also specifically outlines the future progression of the bycatch mortality reduction target if overfishing is successfully ended by 2010 based upon review of status reports and other relevant information, would be an administrative action with no expected direct adverse economic effects. The second and third alternatives to the proposed bycatch reduction target would establish lower reduction targets than the proposed action. Like the proposed action, these alternatives are not expected to result in direct adverse economic impacts. However, the lower targets do not contribute sufficiently to increasing the likelihood of the red snapper rebuilding plan's success and could be expected to require further effort reductions, resulting in more severe management measures in the long run. The fourth alternative to the proposed action would, as the proposed action, establish a 74-percent reduction in shrimp trawl bycatch mortality on red snapper, but would not specify changes to the target or the method by which the target might be adjusted in the future. Similarly, the fifth alternative to the proposed action would establish a 74-percent reduction in shrimp trawl bycatch mortality on red snapper, but would also explicitly link future adjustments to the bycatch reduction target to red snapper stock assessment updates. Four alternatives, including the status quo, were considered for the action to potentially establish fishing restrictions for the EEZ shrimp fishery in the Gulf of Mexico. The first alternative to the proposed action, the status quo, would not establish potential fishing restrictions for the Gulf shrimp fishery. The status quo would not result in direct or indirect adverse economic impacts because potential restrictions would not be established for the shrimp fishery. However, if status quo effort reductions in the fishery are not sufficient to achieve target goals, this alternative may result in more severe future restrictions and potentially greater adverse economic impacts than the enactment of potential effort restrictions at this time. The proposed action would, if necessary, establish a seasonal closure beginning on the same start date as the closure of the EEZ off Texas in the 10-to 30-fathom (18- to 55-m) zone of selected areas within statistical zones 10-21 in the Gulf of Mexico. This measure, which would ensure that target reductions in shrimp trawl bycatch mortality are met, is consistent with the proposed quotas, and would contribute to increasing the likelihood of the red snapper rebuilding plan's success. The proposed action is administrative in nature and thus would not be expected to result in any direct economic effects. Direct economic impacts would only accrue if, in the future, it is determined that the proposed bycatch reduction target has not been met and thus a seasonal closure is necessary. The direct economic effects of the closure would be analyzed at that time, as appropriate. The second and third alternatives to the proposed action would also establish seasonal closures, as necessary, in the 10 to 30-fathom (18- to 55-m) zone of selected areas within statistical zones 10-21 in the Gulf of Mexico but would consider alternative time frames for the closures. As with the proposed action, these alternatives are administrative in nature and thus would not be expected to result in any direct economic effects. Direct economic impacts would only accrue if, in the future, it is determined that the proposed bycatch reduction target has not been met and thus a seasonal closure is necessary. However, compared to the long-term benefits expected to accrue to the red snapper fishery from the proposed action, smaller long-term economic benefits to the red snapper fishery are expected to result from these alternatives. Greater positive impacts associated with the proposed action are attributable to the specified starting date of a potential closure, which would coincide with the movement of age 1 snapper from shrimp grounds to larger structures. Two alternatives, including the status quo, were considered for the action to establish a framework procedure to adjust effort in the commercial shrimp fishery. The second alternative would establish a framework procedure. The proposed action, which would allow the Regional Administrator to implement closures based upon annual shrimp effort assessments conducted by the Southeast Fisheries Science Center, is expected to be the quickest and most efficient approach to establishing recommended closures. Two other options were considered under the second alternative. These options would establish less expedient means of implementing recommended closures. Direct adverse economic impacts would not be expected to result from the alternatives included in this action because the establishment of a framework procedure to adjust effort in the commercial shrimp fishery is an administrative action. List of Subjects in 50 CFR Part 622 Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands. Dated: October 19, 2007. William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows: PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority: 16 U.S.C. 1801 et seq. 2. In § 622.2, the definitions for “circle hook,” “dehooking device,” and “venting device” are added in alphabetical order to read as follows: § 622.2 Definitions and acronyms. Circle hook means a fishing hook designed and manufactured so that the point is turned perpendicularly back to the shank to form a generally circular, or oval, shape. Dehooking device means a device intended to remove a hook embedded in a fish to release the fish with minimum damage. Venting device means a device intended to deflate the swim bladder of a fish to release the fish with minimum damage. 3. In § 622.31, paragraph (o) is added to read as follows: § 622.31 Prohibited gear and methods. (o) Stainless steel hooks in the Gulf EEZ . Stainless steel hooks may not be used to fish for Gulf reef fish when using natural bait in the Gulf EEZ. 4. In § 622.34, paragraph (l) is added and the first sentence of paragraph (m) and is revised to read as follows: § 622.34 Gulf EEZ seasonal and/or area closures. (l) Closures of the Gulf shrimp fishery to reduce red snapper bycatch . During a closure implemented in accordance with this paragraph (l), trawling is prohibited within the specified closed area(s). (1) Procedure for determining need for and extent of closures . Each year, in accordance with the applicable framework procedure established in the FMP for the Shrimp Fishery in the Gulf of Mexico (FMP), the RA will, if necessary, establish a seasonal area closure for the shrimp fishery in all or a portion of the areas of the Gulf EEZ specified in paragraphs (l)(2) through (l)(4) of this section. The RA's determination of the need for such closure and its geographical scope and duration will be based on an annual assessment, by the Southeast Fisheries Science Center, of the shrimp effort and associated shrimp trawl bycatch mortality on red snapper in the 10-30 fathom area of statistical zones 10-21, compared to the 74-percent target reduction of shrimp trawl bycatch mortality on red snapper from the benchmark years of 2001-2003 established in the FMP. The framework procedure provides for adjustment of this target reduction level, consistent with the red snapper stock rebuilding plan and the findings of subsequent stock assessments, via appropriate rulemaking. The assessment will be based on shrimp effort data for the most recent 12-month period available and will include a recommendation regarding the geographical scope and duration of the closure. The Southeast Fisheries Science Center's assessment will be provided to the RA on or about March 1 of each year. If the RA determines that a closure is necessary, the closure falls within the scope of the potential closures evaluated in the FMP, and good cause exists to waive notice and comment, NMFS will implement the closure by publication of a final rule in the Federal Register . If such good cause waiver is not justified, NMFS will implement the closure via appropriate notice and comment rulemaking. NMFS intends that any closure implemented consistent with this paragraph (l) will begin on the same date and time as the Texas closure. (2) Eastern zone . The eastern zone is bounded by rhumb lines connecting, in order, the following points: Point North lat. West long. A 29°14′ 88°57′ B 29°24′ 88°34′ C 29°34′ 87°38′ D 30°04′ 87°00′ E 30°04′ 88°41′ F 29°36′ 88°37′ G 29°21′ 88°59′ A 29°14′ 88°57′ (3) Louisiana zone. The Louisiana zone is bounded by rhumb lines connecting, in order, the following points: Point North lat. West long. A 29°09.1′ 93°41.4′ B 29°09.25′ 92°36′ C 28°35′ 90°44′ D 29°09′ 89°48′ E 28°57′ 89°34′ F 28°40′ 90°09′ G 28°18′ 90°33′ H 28°25′ 91°37′ I 28°21.7′ 93°28.4′ A 29°09.1′ 93°41.4′ (4) Texas zone. The Texas zone is bounded by rhumb lines connecting, in order, the following points: Point North lat. West long. A 29°09.1′ 93°41.4′ B 28°44′ 95°15′ C 28°11′ 96°17′ D 27°44′ 96°53′ E 27°02′ 97°11′ F 26°00.5′ 96°57.3′ G 26°00.5′ 96°35.85′ H 26°24′ 96°36′ I 26°49′ 96°52′ J 27°12′ 96°51′ K 27°39′ 96°33′ L 27°55′ 96°04′ M 28°21.7′ 93°28.4′ A 29°09.1′ 93°41.4′ (m) * * * The recreational fishery for red snapper in or from the Gulf EEZ is closed from January 1 through May 31 and from October 1 through December 31, each year. * * * 5. In § 622.37, paragraph (d)(1)(iv) is revised to read as follows: § 622.37 Size limits. (d) * * * (1) * * * (iv) Red snapper—16 inches (40.6 cm), TL, for a fish taken by a person subject to the bag limit specified in § 622.39 (b)(1)(iii) and 13 inches (38.1 cm), TL, for a fish taken by a person not subject to the bag limit. 6. In § 622.39, paragraph (b)(1)(iii) is revised to read as follows: § 622.39 Bag and possession limits. (b) * * * (1) * * * (iii) Red snapper—2. However, no red snapper may be retained by the captain or crew of a vessel operating as a charter vessel or headboat. The bag limit for such captain and crew is zero. 7. In § 622.41, paragraph (m) is added to read as follows: § 622.41 Species specific limitations. (m) Required gear in the Gulf reef fish fishery . For a person on board a vessel to fish for Gulf reef fish in the Gulf EEZ, the vessel must possess on board and such person must use the gear as specified in paragraphs (m)(1) through (m)(3) of this section. (1) Non-stainless steel circle hooks . Non-stainless steel circle hooks are required when fishing with natural baits. (2) Dehooking device . At least one dehooking device is required and must be used to remove hooks embedded in Gulf reef fish with minimum damage. The hook removal device must be constructed to allow the hook to be secured and the barb shielded without re-engaging during the removal process. The dehooking end must be blunt, and all edges rounded. The device must be of a size appropriate to secure the range of hook sizes and styles used in the Gulf reef fish fishery. (3) Venting tool . At least one venting tool is required and must be used to deflate the swimbladders of Gulf reef fish to release the fish with minimum damage. This tool must be a sharpened, hollow instrument, such as a hypodermic syringe with the plunger removed, or a 16-gauge needle fixed to a hollow wooden dowel. A tool such as a knife or an ice-pick may not be used. The venting tool must be inserted into the fish at a 45-degree angle approximately 1 to 2 inches (2.54 to 5.08 cm) from the base of the pectoral fin. The tool must be inserted just deep enough to release the gases, so that the fish may be released with minimum damage. 8. In § 622.42, paragraphs (a)(1)(i) and (a)(2) are revised to read as follows: § 622.42 Quotas. (a) * * * (1) * * * (i) Red snapper—2.55 million lb (1.16 million kg), round weight. (2) Recreational quota for red snapper . The following quota applies to persons who harvest red snapper other than under commercial vessel permits for Gulf reef fish and the commercial quota specified in paragraph (a)(1)(i) of this section—2.45 million lb (1.11 million kg), round weight. 9. In § 622.48, paragraph (i) is revised to read as follows: § 622.48 Adjustment of management measures. (i) Gulf shrimp . Closed seasons and areas, target effort and fishing mortality reduction levels, bycatch reduction criteria, BRD certification and decertification criteria, BRD testing protocol, certified BRDs, and BRD specification. [FR Doc. 07-5245 Filed 10-19-07; 12:54 pm]