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Federal Register / Vol. 70, No. 128 / Wednesday, July 6, 2005 / Proposed Rules 38849

Commission’s horizontal and vertical 488–5300 or (800) 378–3160, e-mail 0.61, 0.283, and 1.46, the date for filing cable ownership limits. The deadline to http://www.BCPIWEB.com. initial comments in MM Docket No. 92– file comments is extended from July 8, 264 is extended until August 8, 2005, Synopsis of the Order 2005, to August 8, 2005, and the and the date for filing reply comments deadline to file reply comments is 1. On May 17, 2005, the Commission is extended to September 9, 2005. extended from July 25, 2005, to released its Second Further Notice of September 9, 2005. The action is taken Proposed Rulemaking (‘‘Second Further List of Subjects in 47 CFR Part 76 in response to a Motion for Extension of Notice’’) in the above-captioned Cable Television. proceeding.1 The deadlines to file Time. Federal Communications Commission. DATES: Comments are due on or before comments and reply comments were originally set as July 8, 2005, and July Royce Sherlock, August 8, 2005; and reply comments are Chief, Industry Analysis Division. due on or before September 9, 2005. 25, 2005, respectively. 2. On June 10, 2005, the Media Access [FR Doc. 05–13148 Filed 7–5–05; 8:45 am] ADDRESSES: You may submit comments, Project, filing on behalf of itself and BILLING CODE 6712–01–P identified by MM Docket No. 92–264, by other consumer groups, religious any of the following methods: • Federal eRulemaking Portal: http:// organizations and citizens groups (‘‘MAP’’), requested an extension of www.regulations.gov. Follow the DEPARTMENT OF THE INTERIOR instructions for submitting comments. time until August 8, 2005, to file • comments in response to the Second Federal Communications Fish and Wildlife Service Commission’s Web site: http:// Further Notice, and until September 9, 2005, to file reply comments. MAP www.fcc.gov/cgb/ecfs/. Follow the 50 CFR Part 17 instructions for submitting comments. states that more time is needed because • the Second Further Notice asks complex People with Disabilities: Contact Endangered and Threatened Wildlife and detailed questions that would the FCC to request reasonable and Plants; 90-Day Finding on a accommodations (accessible format require extensive research and analysis to answer; public interest organizations Petition To List the American as documents, sign language interpreters, Threatened or Endangered CART, etc.) by e-mail: [email protected] have significant limits on their or telephone: 202–418–0530 or TTY: resources, preventing them from AGENCY: Fish and Wildlife Service, 202–418–0432. responding to such complex questions Interior. in a short period of time; and other For detailed instructions for ACTION: Notice of petition finding and conflicting commitments, including submitting comments and additional initiation of status review. information on the rulemaking process, other proceedings, make the initial see the SUPPLEMENTARY INFORMATION deadline impossible to meet for these SUMMARY: We, the U.S. Fish and section of this document. groups. Wildlife Service (Service), announce a 3. It is the policy of the Commission FOR FURTHER INFORMATION CONTACT: 90-day administrative finding on a that extensions of time are not routinely Royce Sherlock, Industry Analysis petition to list the granted. However, there is good cause to Division, Media Bureau, (202) 418–2330 (Anguilla rostrata) under the extend the comment and reply comment or [email protected]; or Patrick Endangered Act of 1973, as deadlines. The Second Further Notice Webre, Industry Analysis Division, amended (Act). We find the petition seeks comment on a broad range of Media Bureau, (202) 418–7953 or presents substantial information proposals in the record, as well as [email protected]. indicating that listing the American eel recent developments in the industry, may be warranted. We are initiating a SUPPLEMENTARY INFORMATION: This is a and the Commission has invited parties status review to determine if listing the synopsis of the Commission’s Order in to undertake their own studies to further species is warranted. To ensure that the MM Docket No. 92–264, released June inform the record. In view of the review is comprehensive, we are 22, 2005. The full text of the Order is complex and detailed questions and soliciting information and data available for inspection and copying issues set forth in the Second Further regarding this species. Monday through Thursday from 8 a.m. Notice, and to assure the fullest possible DATES: to 4:30 p.m. and Friday from 8 a.m. to public participation so that we can The administrative finding 11:30 a.m. in the Commission’s assemble a record that will help us to announced in this document was made Consumer and Governmental Affairs resolve the difficult issues in this on July 6, 2005. To be considered in the Bureau, Reference Information Center, proceeding, we find it appropriate to 12-month finding for this petition, data, Room CY–A257, Portals II, 445 12th grant MAP’s extension request and information, and comments should be Street, SW., Washington, DC 20554. The extend the deadlines for initial and submitted to us by September 6, 2005. complete text is also available on the reply comments to August 8, 2005, and ADDRESSES: Data, comments, Commission’s Internet Site at http:// September 9, 2005, respectively. information, or questions concerning www.fcc.gov. To request materials in 4. Accordingly, it is ordered that this petition should be sent to Martin accessible formats for people with MAP’s Request for Extension of Time to Miller, Chief, Division of Endangered disabilities (electronic files, large print, File Comments and Reply Comments in Species, Region 5, U.S. Fish and audio format and Braille), send an e- the above-captioned proceeding is Wildlife Service, 300 Westgate Center mail to [email protected] or call the granted. Drive, Hadley, MA 01035–9589; by Consumer & Governmental Affairs 5. It is further ordered that, pursuant facsimile to 413–253–8428; or by Bureau at (202) 418–0530 (voice), (202) to Sections 4(i), 4(j) and 5(c) of the electronic mail to 418–0432 (TTY). The complete text of Communications Act of 1934, as [email protected]. The petition the Order may also be purchased from amended, 47 U.S.C. 154(i), 154(j) and finding, supporting information, and the Commission’s copy contractor, Best 155(c), and Sections 0.61, 0.283, and comments are available for public Copy and Printing, Inc., Portals II, 445 1.46 of the Commission’s rules, 47 CFR inspection, by appointment, during 12th Street, SW., Room CY–B402, normal business hours at the above Washington, DC 20554, telephone (202) 1 70 FR 33680 (rel. June 8, 2005). address.

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FOR FURTHER INFORMATION CONTACT: natural history of the American eel, its enhance the abundance of American Heather Bell, at the above address cultural use, population status, and in both inland and territorial waters (telephone 413–253–8645; facsimile existing threats to the species. Threats within ASMFC’s jurisdiction, and to 413–253–8428). Persons who use a discussed in the petition included provide for sustainable commercial, telecommunications device for the deaf destruction and modification of habitat, subsistence, and recreational (TDD) may call the Federal Information overutilization, inadequacy of existing by preventing overharvest of any eel life Relay Service (FIRS) at 800–877–8339, regulatory mechanisms, and other stage. 24 hours a day, 7 days a week. natural and manmade factors such as For this finding, the Service utilized contaminants and hydroelectric SUPPLEMENTARY INFORMATION: the petition and the Management Plan, turbines. The petition did not address which was incorporated into the Background potential threats caused by disease or petition by reference, and other petition Section 4(b)(3)(A) of the Act requires predation. In response to the petitioners’ appendices and references. Because of that we make a finding on whether a request to list the American eel, the petition to list, delist, or reclassify a Service, as administrative lead for the the rigor and integrity of the species presents substantial information species, sent a letter to the petitioners Management Plan, and the significance to indicate that the petitioned action dated December 13, 2004, explaining to the American eel of the geographic may be warranted. To the maximum that the Service, in coordination with area covered by the Management Plan extent practicable, this finding is to be NOAA Fisheries, would review the (the transports the majority made within 90 days of receipt of the petition and determine whether or not of larval American eel to the Atlantic petition, and the finding is to be the petition presents substantial Coast States), the Service relied on the published promptly in the Federal information indicating that listing the petition and Management Plan in Register. American eel may be warranted. determining that the petitioned action This finding summarizes information Jurisdiction for the American eel is may be warranted. included in the petition and information jointly held by the Service and NOAA The ASMFC announced in March of available to us at the time of the petition Fisheries, with the Service having 2004 that it is developing an review. Our review of a 90-day finding administrative lead for processing this amendment to the Management Plan to under section 4(b)(3)(A) of the Act and petition and working closely with address continued stock declines. As section 424.14(b) of our regulations is NOAA Fisheries during the process. part of the amendment process it limited to a determination of whether Accompanying the petition, and committed to conduct a benchmark the information in the petition meets the incorporated by reference into the in 2005, and requested ‘‘substantial information’’ threshold. petition, is the Atlantic States Marine that the Service and NOAA Fisheries Our standard for substantial information Fisheries Commission’s (ASMFC) conduct a status review of the American with regard to a 90-day listing petition Interstate Management Plan for eel. Per this request, the Service agreed finding is ‘‘that amount of information American Eel (2000). The ASMFC is an in September 2004, prior to receiving that would lead a reasonable person to Interstate Compact of the 15 Atlantic the petition, to conduct a rangewide believe that the measure proposed in the Coast States ( to Florida) charged status review of the American eel in petition may be warranted’’ (50 CFR with managing interstate fisheries coordination with NOAA Fisheries and 424.14(b)). resources of the Atlantic Coast. The the ASMFC. We have to satisfy the Act’s Compact was approved by the Congress requirement that we use the best of the United States in 1942 in Public Species Information available science to make our decisions. Law 77–539, and authority was further However, we do not conduct additional amended by Public Law 81–721 and the American eel are a migratory fish research at this point, nor do we subject Atlantic Coastal Fisheries Cooperative species with multiple life stages that the petition to rigorous critical review. Management Act (Pub. L. 103–206). The migrate from freshwater to the ocean to Rather, at the 90-day finding stage, we Interstate Fishery Management Plan for (a life history strategy known as accept the petitioner’s sources and the American eel (Management Plan) ‘‘catadromy’’). American eels require characterizations of the information, to was developed by ASMFC in response various habitats over their long-lifespan, the extent that they appear to be based to declining stocks of American eel and including open oceans, large coastal on accepted scientific principles (such had input from the public and tributaries, small freshwater streams, as citing published and peer reviewed industry, as well as and lakes and ponds. They are articles, or studies done in accordance considerable technical scrutiny from the opportunistic feeders at every level of with valid methodologies), unless we scientific community. The Service and the food chain. The North Atlantic is have specific information to the NOAA Fisheries were involved in home to two recognized species of contrary. Our finding considers whether producing the Management Plan for the catadromous eel: the American eel and the petition states a reasonable case for American eel, as representatives to the the (A. anguilla). The listing on its face. Thus, our 90-day ASMFC Eel Technical Committee range of the American eel includes finding expresses no view as to the charged with developing the western Atlantic drainages from ultimate issue of whether the species Management Plan. State agencies and an Greenland to northern portions of South should be listed. academic institution were also involved America, including most Caribbean On November 18, 2004, the Service in developing this document, and it was Islands, the eastern , and and the National Oceanic and approved by the ASMFC board that inland areas of the Mississippi River Atmospheric Administration (NOAA consists of representatives from the 15 and the Great Lakes drainages. The Fisheries) received a petition, dated Atlantic Coast States. majority of the American eel population November 12, 2004, from Timothy A. The Management Plan provides a is along the Atlantic seaboard of the Watts and Douglas H. Watts, requesting detailed description of the life history, United States. There is U.S. and that the Service and NOAA Fisheries habitat requirements, the commercial international commercial harvest, list the American eel as an endangered fishery, population status, and threats to limited subsistence use by Native species under the Act. The petition the American eel. The goals of the Americans, and limited recreational contained detailed information on the Management Plan are to protect and interest in the American eel fishery.

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Life History Characteristics Upstream migration may occur from northern populations. Information from Reproduction and Growth May through October (Richkus and the northern stocks indicates that most Whalen 1999, as in ASMFC 2000), sexually mature females are greater than American eel eggs hatch in the peaking earlier in the southern and later 18 in (46 cm), and older than 4 years of , in the western Atlantic in the northern portion of the range age (Hardy 1978, Fahay 1978, as in Ocean (for further description of the (Helfman et al. 1984, McCleave and ASMFC 2000). Sargasso Sea, see Habitat section below). Kleckner 1982, as in ASMFC 2000). It has been hypothesized that sex The required environmental conditions Elvers become yellow eels determination, and the resulting for reproduction and the incubation approximately 2 years after hatching differences in ratios and distribution, period for the American eel are and resemble the adult form. Yellow may be due to a variety of factors, unknown (ASMFC 2000). The resulting eels are usually yellow or green, and including: (1) Latitudinal differences larvae (leptocephali) drift in the upper reach sizes up to about 11 in (28.0 cm) (females more abundant in northern 300 meters of the Gulf Stream for up to for males and 18 in (46 cm) for females areas: McCleave 1996, as in ASMFC one year before reaching the North (Hardy 1978, as in ASMFC 2000). The 2000), (2) differences in salinity American continent (Kleckner and timing and duration of upstream (females more abundant in freshwater: McCleave 1985, as in ASMFC 2000). At migration is watershed specific, and Facey and LaBar 1981, as in ASMFC sea, perhaps at the edge of the upstream migration may occur in most 2000), (3) density dependency (more continental shelf (Hardy 1978, as in months of the year (ASMFC 2000). The females in areas of low density: Fahay ASMFC), the shape of the larvae growth rates of yellow eels are variable, 1978, as in Facey and Van Den Avyle dramatically changes as they depending on latitudinal location (eels 1987), (4) timing (males returning to metamorphose into miniature grow more slowly in the north than in spawn earlier than females, and transparent glass eels (ASMFC 2000). the south) and habitat productivity (eels therefore finding it beneficial to stay in American eel larvae may only be grow more slowly in freshwater than in southern latitudes), or (5) energy use capable of undergoing metamorphosis estuarine areas because of the lack of (slower growth, such as that which during a specific window beginning productivity or nutrients in freshwater would occur in typically less productive after 6–8 months and remain capable for as compared to estuaries) (Richkus and areas of northern or inland areas, leads only 4–6 additional months (McCleave Whalen 1999, as in ASMFC 2000). to larger size, and for females a higher 1987, 1993, as in Castonguay et al. The silver eel life stage, during which fecundity: Helfman et al. 1987, as in 1994b). eels become sexually mature and begin ASMFC 2000). Glass eels actively migrate toward their spawning migration, begins after 3, Spawning. American eel fecundity freshwater and ascend rivers during the and up to 24 years as a yellow eel. can range between 0.5 to 21.9 million winter and spring by drifting on Yellow eels, responding to some eggs per female and can be predicted flooding tides, holding position near the environmental or metabolic signal, based on female size (Facey and Van bottom on ebb tides, and actively begin to migrate downstream in the late Den Avyle 1987, McCleave and Oliveira swimming along the shore in estuaries summer or fall. As they proceed 1998, as in ASMFC 2000). High above tidal influence (Facey and Van downstream, they transform into silver fecundity of the eel is consistent with an Den Avyle 1987; Barbin and Krueger eels (Hardy 1978; Fahay 1978; Wenner r-selected strategy that assumes high 1994, as in ASMFC 2000). Migration to 1973; Facey and Van Den Avyle 1987, mortality of larval and subadult stages freshwater occurs earlier in the southern as in ASMFC 2000). This transformation (Wenner and Musick 1974, Barbin and portion of the range and later in the includes several physiological changes, McCleave 1997, as in ASMFC 2000). northern portion (Helfman et al. 1984, including: (1) Silvering of the skin; (2) Adult American eels from throughout McCleave and Kleckner 1982, as in body fattening; (3) skin thickening; (4) their range are believed to synchronize ASMFC 2000), possibly due to the enlargement and pigment change; their arrival at the spawning grounds; increased distance of northern areas (5) increased length of capillaries in the however, little is known about the from the Sargasso Sea. rete (a netlike structure) of the swim oceanic portion of the spawning Anadromous fish (e.g., and bladder; and (6) digestive tract migration, or mechanisms for locating shad) spawn in freshwater but spend degeneration (Facey and Van Den Avyle the spawning grounds (Miles 1968, as in most of their lives at sea. As they 1987). ASMFC 2000). The American eel may mature, these fish usually return to their Sex Ratio. There are several use the geoelectrical fields generated by river of origin to repeat the cycle. Return environmental variables that may ocean currents for orientation (Rommel rates and abundance are driven by prior influence age at sexual maturity, sexual and Stasko 1973, as in ASMFC 2000). spawning success, at sea survival, and determination, and the resulting ratios The depth at which American eels environmental conditions. American of females and males (juveniles are not migrate in the ocean has been eels are also highly migratory, but in the sexually determined and at a certain hypothesized to vary with light opposite direction. Adult eels migrate stage may be hermaphroditic—being intensity and turbidity (Edel 1976, as in from freshwater to the ocean to spawn both sexes). In general, sexual ASMFC 2000). Migration has been (catadromy). Since they are not differentiation does not occur until eels suggested to occur within the upper few returning to a home river, dispersion of are about 8–10 in (20–25 cm) long hundred meters of the juvenile ‘‘glass’’ eels back into (Dolan and Power 1977, as in Facey and (Kleckner et al. 1983, McCleave and freshwater is more likely dependant on Van Den Avyle 1987). Sexual maturity Kleckner 1985, as in ASMFC 2000). environmental conditions, such as appears to occur at older ages and larger However, Robins et al. (1979, as in ocean and nearshore currents, river sizes in the northern portion of their ASMFC 2000) photographed two discharge rates, and temperature, as range when compared with the southern Anguillid eels, possibly pre-spawning well as timing of larval metamorphosis portion, resulting in northern females American eels, at depths of about 6,500 (R. StPierre pers. comm. 2005). being the most fecund and having a ft (2,000 m) on the floor of the Atlantic Glass eels become elvers when they relatively long life span (Helfman et al. Ocean in the Bahamas. ascend into brackish or fresh water and 1987, as in ASMFC 2000). Most sexually Some feature of the surface water become pigmented (McCleave and mature males are greater than 11 in (28 mass of the Sargasso Sea, such as Kleckner 1982, as in ASMFC 2000). cm), and older than 3 years of age in the thermal fronts, may serve as a cue for

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adult American eels to cease migration Wenner and Musick 1975, as in ASMFC waters, with elevated salinity and low and begin spawning. Eels are thought to 2000). plankton production. The Gulf Stream spawn in the winter and early spring in provides the western boundary, which Range, Distribution, and Habitat the upper few hundred meters of the along with other ocean gyres (large water column of the Sargasso Sea The American eel occupies fresh, circular currents in all the ocean (Kleckner et al. 1983, McCleave and brackish, and coastal waters along the basins), such as the North Equatorial Kleckner 1985, as in ASMFC 2000). from the southern tip of Current, encircles the Sargasso Sea. After spawning, the spent eel is Greenland to northeastern South Knowledge of the specific spawning assumed to die (Facey and Van Den America, the inland waters near the area for the American eel within the Avyle 1987). Caribbean, the eastern Gulf of Mexico, Sargasso Sea is based on the distribution The American eel and the European and inland to the Mississippi River and of the smallest leptocephali, as adults eel, considered separate species, both Great Lakes drainages. Important have never been observed in the area. spawn in the Sargasso Sea, but a aspects of American , Miller (1995, as in ASMFC 2000) mechanism for separation, possibly including spawning, larval reported two major distribution patterns location, depth, or timing of spawning, development, and migration, occur in for leptocephali with the highest is unknown, and an area of overlap in the open ocean. Successful migration of abundance in areas located near fronts spawning habitat is likely. Leptocephali leptocephali (and thus recruitment) in the west of the Subtropical of both species have been captured in depends on oceanic conditions being Convergence Zone (STCZ) in the suitable to transport the larvae to the same trawl (McCleave et al. 1986b, southwestern Atlantic. The smallest continental areas during the window of as in Facey and Van Den Avyle 1987). leptocephali were reported to have been metamorphosis from larvae into glass Morphologically, the adult American collected near the Bahama Banks (the eel on the Continental Shelf (see the and European eel differ in the number Bahamas) in the Florida Current and at Reproduction and Growth section of of vertebrae or myomeres. Larvae with stations close to the southerly fronts in this document). The mean circulation in the ‘‘American’’ and ‘‘European’’ the western STCZ. myomere counts have partially separate the vicinity of the spawning area tends but overlapping spatial and temporal to transport larvae westward, and Population Status eventually into the Gulf Stream system, distributions in the Sargasso Sea Historically, American eels were which carries them north and east along (Schmidt 1922, Schoth 1982, Schoth abundant in East Coast streams and ¨ the coast of (i.e. Florida and Tesch 1982, Boeatius and Harding estuaries, and thought to comprise more 1985a, b, Mcleave et al. 1987, Kleckner to Canada) (McCleave 1993, as in than 25 percent of the total fish biomass and McCleave 1988, as in Avise 2003), Castonguay et al. 1994). Other currents (Smith and Saunders 1955, Ogden 1970, indicating that spawning areas overlap may transport larvae in smaller numbers as in ASMFC 2000). Although this to some degree. Both mitochondrial and to the more southerly areas of the range, species declined from the historic nuclear gene evidence show that but the conditions under which this levels, the population remained American and European eels belong to happens are unclear. relatively stable, some thought, until the two largely separate gene pools (Avise Elver habitat likely includes soft, 1970s (ASMFC 2000). Others, including 2003). Genetic data in conjunction with undisturbed bottom sediments (Facey the Southeastern Fishes Council vertebral counts indicate that about 2 to and Van Den Avyle 1987) and river Technical Advisory Committee, 4 percent of the Icelandic eel are of currents appropriate for upstream American eel ancestry but do not appear migration (Tesch 1977; Sorensen 1986; concluded, based on a review of 51 to be strays, indicating a zone of Sorensen and Bianchini 1986, as in major drainages of the southern United hybridization between the two species ASMFC 2000). Feeding and growth of States, that the regional stock of the (Avise 2003). yellow eels occur in estuaries and fresh American eel was stable (Warren et al. Genetic studies indicate that waters over a period of many years 2000) through the 1990s, and American eels are a single panmictic (including offshore, midwater, and NatureServe, which utilizes occurrence breeding population (Williams and bottom areas of lakes, estuaries, and data, listed many eel stocks in Atlantic Koehn 1984, as in ASMFC 2000), large streams) (Adams and Hankinson States as stable in 2001 (NatureServe meaning that it is a single breeding 1928, Facey and LaBar 1981, GLFC 2004). population exhibiting random mating, 1996, Helfman et al. 1983, NYSDEC According to the ASMFC (2000), the and that offspring from any parents are 1997a & b, as in ASMFC 2000; Facey eel has lost much of its habitat along the capable of inhabiting any suitable and Van Den Avyle 1987). eastern United States. As stated in the habitat in any portion of the range. When American eels metamorphose petition, the ASMFC states: ‘‘By region, Recent analyses, however, may indicate into silver eels and migrate seaward to the potential habitat loss [for American genetic variation with latitude, their spawning ground, they travel eel] is greatest (91 percent) in North suggesting that mating within the downstream mostly at night (Bigelow Atlantic region (Maine to Connecticut) species is not panmictic in the strict and Schroeder 1953, as in ASMFC 2000) where stream access is estimated to sense and that dispersal of larvae is not and may inhabit a broad range of depths have been reduced from 111,482 entirely random with respect to where throughout the water column. kilometers to 10,349 kilometers of their parents resided in continental As mentioned earlier, spawning stream length. Stream habitat in the Mid waters (Avise 2003). occurs in the Sargasso Sea, an oval area Atlantic region (New York through in the middle of the Atlantic Ocean, Virginia) is estimated to have been Feeding Habits between the West Indies and the reduced from 199,312 km to 24,534 km American eels are carnivorous, and at (between 20° to 35° North Latitude and of unobstructed stream length (88 various life stages and locations they 30° to 70° West Longitude), composed of percent loss). The stream habitat in the feed on multiple trophic levels, such as a nearly 5.2 million km 2 area. Although South Atlantic region (North Carolina to zooplankton and phytoplankton as the boundaries are not easily delineated, Florida) is estimated to have decreased leptocephali, aquatic invertebrates as the Sea is identified as the ‘‘eye’’ of a from 246,007 km to 55,872 km of juveniles, and fish and as large, slow, clockwise moving gyre of unobstructed stream access, a 77 adults (McCord 1977, Ogden 1970, clear, deep blue colored, warm surface percent loss.’’

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Decreases have been noted in the commercial eel harvest peaked at more appear to be most dramatic in the Saint commercial and recreational fisheries. than 500,000 lbs (250 tn) in 1978. The Lawrence, Lake Ontario, and Since the fisheries’ peak in the mid 30,000 lbs (15 tn) harvest in 2003 was northeastern states. In other areas, such 1970s at 3.5 million pounds, a fraction of the 1978 harvest (Dohne as the southeast, declines may not be as commercial landings have declined 2004, as in petition). severe and populations may be stable. significantly to a near record low of The St. Lawrence River in Canada, Additionally, the American eel appears 868,215 pounds in 2001. Recreational one of the largest rivers in North to have lost the majority of its stream data concerning eel harvest also appears America, has seen little or no habitat, ranging from 91 to 77 percent to indicate a decline in abundance. recruitment for the last 10 years, with an habitat loss in states bordering the According to the National Marine estimate of only 1 percent of the stocks Atlantic Ocean. Although much of the Fisheries Service (now NOAA Fisheries) remaining in this area. This observation population trend information is based Marine Recreational Fisheries Statistics is partially based on the age of eels on harvest data without any measure of Survey, recreational harvest in 2001 was (which appear to be getting older, effort, we believe that the petitioner has 10,805 eels, a significant decrease from indicating a failure in recruitment) and provided substantial information the peak of 106,968 eels in 1982 the monitoring of abundance at the eel indicating that the eel’s population has (ASMFC 2000). Harvest data are often ladder at the Moses-Saunders Dam. declined on a regional basis, in addition all that is available; however, taken Annual numbers of juvenile eels to experiencing severe habitat loss. alone without a measure of fishing climbing the Moses-Saunders Dam eel Factors that may contribute to a effort, this type of data are not good ladder decreased from a peak of possible population decline are habitat indicators of eel abundance because 1,293,570 in 1983, to 935,170 in 1985, loss and degradation, overharvest, harvest is dependent on demand, which and went as low as 11,533 eels in 1992 disease, structures impeding upstream can fluctuate dramatically (the number (a 99 percent decline in recruitment to and downstream passage, contaminants, of commercial harvest permits issued Lake Ontario). Electrofishing surveys and variable oceanic conditions (further per state can provide a surrogate for and waterfall surveys of tributaries to discussed in Discussion of Listing fishing effort, and understanding and the Gulf of St. Lawrence also point to an Factors). Similar declines in the adjusting for market fluctuations can eel recruitment decline between 1981 population of European and Japanese provide a clearer picture of trends). and 1985 of approximately 80–90 eels have been observed (Moriarty and Additionally, changes in year-class percent (Castonguay et al. 1994a). Lake Dekker 1997, Tatsukawa and Matsumiya strength are not readily recognizable Ontario scientific trawl surveys from 1999, as in Haro et al. 2000). 1972–1999 (except 1989) indicated a because most samples of eels include Discussion individuals of similar sizes, but from downward trend with catches in the last unknown year classes, and harvest of five years an order of magnitude lower In the following discussion, we young yellow-phase eels for use as crab than in the first five years of the survey respond to each of the major assertions bait and as live bait for recreational (ICES 2000). These observed declines made in the petition, organized by the fisheries frequently go unreported (Haro may have significant impacts on the eel Act’s listing factors. Section 4 of the Act et al. 2000). rangewide, as the stock in the St. and its implementing regulations (50 Richkus and Whalen (1999, as in Lawrence River is made up primarily of CFR 424) set forth the procedures for ASMFC 2000) concluded that there is large spawning females. There is adding species to the Federal list of broad-based evidence for a decline of concern that if their numbers are down, endangered and threatened species. A American eels from 1984 to 1995 based it may affect recruitment to the entire species may be determined to be an on a Mann-Kendall trend analysis of eel Atlantic Coast. John Casselman, endangered or threatened species due to abundance time series on eel migration researcher for the Ontario Ministry of one or more of the five factors described data, including data from the Moses- Natural Resources, Canada, and others, in section 4(a)(1) of the Act. The five Saunders . Their results hypothesize that a substantial listing factors are: (1) The present or indicate significant negative trends for proportion of large female spawners for threatened destruction, modification, or yellow and/or silver eel abundance in this panmictic species are from the St. curtailment of its habitat or range; (2) Ontario, Quebec, New York, and Lawrence system (ASMFC 2004). As a overutilization for commercial, Virginia. The authors found no trends consequence of the observed decline, recreational, scientific, or educational for glass eel or elvers, but those data sets the Ontario Ministry of Natural purposes; (3) disease or predation; (4) were generally not complete and may Resources issued a moratorium in 2004 the inadequacy of existing regulatory not have covered the years where the on commercial eel harvest for Ontario mechanisms; and (5) other natural or largest declines were observed in other waters, and a moratorium on manmade factors affecting its continued data sets. recreational eel harvest is forthcoming existence. In Canada, different areas report (Casselman pers. comm. 2005). The petition provided specific seemingly opposing harvest data. Recent information indicates that a information on the life history of the Commercial landings in the Nova Scotia decline in U.S. harvest continues. Based American eel, use of American eels by region of the Gulf of St. Lawrence and on 2002 harvest reports collected by the humans, population status, obstacles to from Newfoundland show variability in ASMFC, the long-term average (52 year river passage, mortality by hydroelectric yellow and silver eel landings, but no period) for landings is down 64 percent, turbines, and the impacts of clear trend. By contrast, an upward the more recent average (past 20 years) contaminants, habitat loss, and harvest, trend is apparent in catches south of the for landings is down 44 percent, and the as well as a discussion of inadequacy of Gulf of St. Lawrence, in the Canadian most recent average (past 5 years) for existing regulatory mechanisms. Atlantic/Bay of Fundy regions (threefold landings is down about 30 percent (Geer Incorporated into the petition by increase since the mid or late 1980s) 2004). reference was the ASMFC Interstate (ICES 2000). According to Ontario’s The information provided by the Fishery Management Plan for American Ministry of Natural Resources, Lake petitioners indicates that American eel Eel (Management Plan) (ASMFC 2000), Ontario, which had as many as 10 populations have generally declined which summarizes peer reviewed million eels two decades ago, now holds and the species has lost much of its papers on the status of the species and only tens of thousands. Ontario’s habitat. Declines in eel populations recent and historical trends and

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provides extensive information on the instituted timing restrictions and Alterations of Stream Flow life history and the threats and impacts established specific areas where harvest Information provided by the affecting various life stages of the is closed (ASMFC 2002). The remainder petitioner. The petitioner did not species, in the eastern United States. of the Sargasso Sea is outside of the EEZ provide specific information on the Participating in the development of the and currently not subject to restriction. effects that alterations of stream flow Management Plan were the Service; It is conceivable that harvesting have on American eels. However, the Maine Department of Marine Resources; Sargassum would affect eggs and Management Plan incorporated by Division of Fish; Game and leptocephali, if harvest occurs where reference discussed alterations of stream Wildlife; Delaware Division of Fish and eggs and leptocephali are present. There flow as being a possible threat to their Wildlife; Department of is also the potential that migrating or access to tributaries, which would limit Natural Resources; Maryland spawning adults may be affected either upstream recruitment. Department of Natural Resources; and directly or indirectly by the harvest of Elvers are small (4 in/10 cm or less in East Carolina University. This document Sargassum. We agree that seaweed length) and are poor swimmers, initially was also approved by the ASMFC board, harvest may impact American eels. utilizing tides when initiating upstream which consists of representatives from However, we are not aware of any migration. Elvers orient to river currents 15 Atlantic Coast States. analysis on the extent and impact of this This 90-day finding is not a status for their upstream migration (Tesch assessment and does not constitute a activity on the American eel; therefore, 1977, as in ASMFC 2000). Their status review under the Act. we are unable to speak to whether upstream migration is a slow process seaweed harvest has caused or (Haro and Krueger 1988, as in Richkus A. The Present or Threatened contributed to a decline in American and Whalen 1999, as in ASMFC, Destruction, Modification, or eel. estimated upstream migration rates of 6 Curtailment of Its Habitat or Range m/day), and if the current becomes too Benthic Habitat Degradation The petition, its appendices, and weak or too strong (changes in stream referenced documents discuss the Information provided in the petition. velocity), the eels may move into following threats which we have The petitioner did not provide specific backwater areas, severely delaying grouped under Factor A: (1) Seaweed information on the effects of benthic upstream progress (Tesch 1977, as in harvest; (2) benthic habitat degradation; habitat destruction on American eels. ASMFC 2000). The onset of this active (3) alterations in stream flow; (4) loss of However, the Management Plan upstream migration appears to be wetland habitat; and (5) loss of upper incorporated by reference discussed influenced by several environmental tributary habitat. benthic habitat destruction as a possible variables (changes in water chemistry threat within the Continental shelf caused by intrusion of estuarine water, Seaweed Harvest habitat. or changes in pH or salinity), or other Information provided in the petition. environmental variables such as river The Management Plan also explained The petitioner did not provide specific current velocities, the odor of that larval migration, feeding, and information on the effects of seaweed decomposing leaf detritus, or a growth, and juvenile metamorphosis, harvest on American eels. However, the temperature threshold (Facey and Van migration, feeding, and growth all occur Management Plan incorporated by Den Avyle 1987, Sorensen and on the Continental Shelf. Glass eel reference discussed seaweed harvest as Bianchini 1986, as in ASMFC 2000). growth, distribution, and abundance, a possible emerging threat to the ocean Analysis of the information provided according to the ASMFC, is probably spawning habitat. in the petition and information in our impacted by a variety direct effects (e.g., Reproduction of all American eels files. Altering stream flows, such as channel dredging and overboard spoil occurs in the Sargasso Sea. One species rapid changes in stream flow associated disposal) and indirect effects (e.g., of Sargassum, a brown algae that is with hydroelectric project peaking changes in salinity due to dredging) commonly found floating in the operations and water storage facilities, (ASMFC 2000). Sargasso Sea and drifting along the may limit upstream recruitment Atlantic Coast from Florida to Cape Cod, Analysis of the information provided according to ASMFC by affecting was harvested in U.S. waters primarily in the petition and information in our upstream migration (2000). However, by one company. The harvesting of files. Glass eels and elvers burrow or we are not aware of any analysis on the Sargassum began in 1976, but has only rest in deep water during the day extent and impact of alterations of occurred in the Sargasso Sea since 1987 (Deelder 1958, as in ASMFC), and stream flow on American eels, and (ASMFC 2000). therefore may be susceptible to therefore, we are unable to speak to Analysis of the information provided activities, such as dredging, that disturb whether alterations of stream flow have in the petition and information in our those habitats. Channel dredging and caused or contributed to a decline in the files. The Management Plan proposes overboard spoil disposal are common American eel. that the harvest of Sargassum may affect throughout the Atlantic coast. Changes American eels (ASMFC 2000). From in salinity as a result of dredging Loss of Wetland Habitat 1976 through 1998, approximately projects could alter the distribution of Information provided by the 44,800 lbs (dry) of Sargassum have been American eels. Additionally, dredging petitioner. The petitioner did not harvested, 33,500 lbs of which were associated with whelk and other provide specific information on the from the Sargasso Sea (ASMFC 1998). fisheries may damage benthic habitat for effects of wetland habitat loss on The ASMFC stated that the harvesting of this species (ASMFC 2000). However, American eels. However, the Sargassum was to be eliminated in the we are not aware of any analysis on the Management Plan incorporated by South Atlantic Exclusive Economic extent and impact of these activities on reference discussed loss of wetland Zone (EEZ) by January 2001; however, the American eel, and therefore, we are habitat under decreased availability of a Management Unit for Sargassum was unable to speak to whether benthic important habitats. established in 2002 throughout the habitat degradation has caused or Lost wetlands or access to wetlands South Atlantic EEZ and State Waters contributed to a decline in the American have significantly decreased the that did not eliminate harvest, but eel. availability of important habitats for

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feeding and growth of American eel is estimated at 91 percent. The South blockage where predatory fish may juveniles and subadults (ASMFC 2000). Atlantic region of North Carolina to congregate). Ackerknecht et al. (1984, as in ASMFC Florida is estimated to have experienced Based on the information provided by 2000) reported in 1984 that over half (54 a 77 percent loss of habitat (Busch et al. the petitioner and an analysis of the percent) of the coastal wetlands in the 1998, as in ASMFC 2000). Although information in our files, we agree with lower 48 states have been destroyed. elvers will attempt to scale wetted the petitioners’ assertion that the Analysis of the information provided substrates, such as small dam faces, for decline in American eel may be in some in the petition and information in our many of the migrants, dams probably part attributable to the loss of upper files. Wetlands loss can be caused by limit their ability to pass these tributary habitat for female eel, and if filling and dredging, and coastal structures (Tesch 1977, as in ASMFC not responsible for the decline initially, subsidence. Degradation of wetland 2000). may well be a limiting factor as habitat has occurred due to In Canada, the construction of the population numbers decrease. contaminants and the invasion of Moses-Saunders Dam in 1954–58 B. Overutilization for Commercial, nonnative species. Although prior losses impeded upstream (and downstream) Recreational, Scientific, or Educational have been significant, regulations migration on the St. Lawrence River, Purposes implemented in the 1970s have curbed restricting access by migratory fish from declines by 42 percent. For example, all the Atlantic Ocean to Lake Ontario and Information provided by the coastal States in the lower 48, except the Finger Lakes system in New York for petitioner. According to the petitioners, , have enacted special laws to 20 years. An eel ladder, constructed at it is undisputed that overutilization protect estuarine wetlands (Ackerknecht the dam in 1974, improved upstream through harvest of the American eel is et al. 1984; Tiner 1991). The ASMFC passage (ASMFC 2000). occurring across the species’ range in (2000) reported that the historic loss of Analysis of the information provided the United States and that along with wetland habitat, along with loss of in the petition and information in our habitat loss, harvest pressure is a upper tributary habitat (discussed files. Castonguay et al. (1994a) reviewed primary cause of any possible historic below), significantly decreased the major habitat modifications as a and recent decline in abundance of the availability of important habitats for the potential cause for the drastic decline of American eel (Castonguay et al. 1994a feeding and growth of American eels. American eels in the Lake Ontario and and 1994b, as in ASMFC 2000). However, the most significant loss of Gulf of St. Lawrence ecosystems. The U.S. commercial fishery has estuarine wetlands occurred before the Anthropogenic (human-caused) habitat traditionally supplied American eels for decline in the American eel was modifications in the Lake Ontario/St. the U.S. and European food markets, reported. We agree that the loss of Lawrence (such as the domestic trotline bait, bait for domestic wetland habitat has likely impacted and Moses-Saunders Dam) occurred mostly sport fisheries, and (at times) the Asian may continue to impact American eels. before the 1960s, whereas the eel food market. American eel fisheries However, because of the temporal recruitment decline started only in the exist in the United States, Canada, and discrepancy between the greatest to a lesser extent the Caribbean and wetland loss and the onset of a decline, early to mid 1980s. The lack of temporal we believe that the loss of wetland correspondence between permanent Central America. American eel fisheries habitat is unlikely the single cause of habitat modifications argues, according have fluctuated widely. For example, the decline, but may have contributed to to Castonguay et al. (1994a), against throughout the first half of the 20th the decline in combination with other their role in the decline. However, they century, the eel fishery was small; factors. provide caution to accepting this however, as European and Asian eel explanation, because of the American fisheries declined by the late 1960s, a Loss of Upper Tributary Habitat eel’s strikingly different life histories strong market developed in the early Information provided by the (panmictic, longer lived, and ocean 1970’s for live American glass eel and petitioner. The petitioners presented spawning as compared to anadromous elvers which range from 2–4 inches information on the decline of freshwater fishes); catadromous fishes (such as eel) (Crawford 1996, as in ASMFC 2000). habitat available to American eels, are likely to respond more slowly to Eastern Asia has an intensive stating that it has declined, having been these anthropogenic impacts compared industry (165,347 tn/ destroyed, modified, or curtailed by at with anadromous fish populations. 150,000 t metric production) which is least 84 percent in the United States. Although along the U.S. Atlantic dependent upon and supported by wild- This significant loss of habitat is due to Coast there remains some available caught glass eel and elvers because blockage or restriction caused by dams. upstream habitat, unlike anadromous artificial propagation of the species from In a Busch et al. (1998, as in ASMFC species such as or shad, fertilized egg to commercial size has not 2000) assessment, they determined that American eels have no particular been successful (Moriarty and Dekker Atlantic coastal streams from Maine to homing instinct. The implication here is 1997, as in ASMFC 2000). Both glass Florida have 15,115 dams that can that although rivers remain that allow and elver commercial eel fisheries are hinder or prevent upstream and for upstream migration, even if an adult scattered throughout the American eel’s downstream movement of eels, resulting female successfully migrates down her range, with the present fishery in a restriction or loss of access to 84 resident stream and spawns, the concentrated in Maine (16,599 lbs percent of the stream habitat within the resulting young eels will not necessarily landed in 1995; ASMFC 2000). Atlantic Coastal historic range. This is a return to that stream and could, due to Yellow eel spend from 2 to 30 years potential reduction from 345,359 miles currents, be delivered to an area with in fresh and estuarine habitats before (556,801 kilometers) to 56,393 miles upstream blockage. Returning to a reaching sexual maturity and are (90,755 kilometers) of stream habitat stream with blockage does not harvested throughout that period. available for species such as American necessarily eliminate survival (as the According to ASMFC (2000) they are eel. The greatest losses reported in young can remain in the lower reaches thus susceptible to overharvest. Silver Busch et al.’s study were in the North and likely become male), but it may eels are sexually mature individuals and Atlantic region from Maine to present increased risks of predation are harvested in freshwater and marine Connecticut where potential habitat loss (predation may be significant at the environments throughout their range.

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During strong market periods, for Law Enforcement expended a great deal reproductively successful. If there were instance in the 1970s and 1990’s, legal of man hours and effort focused on the sufficient reduction in the reproductive shipment increases of over 153 and 230 protection of American eels. This period contribution from particular areas, percent, respectively, were recorded saw a marked increase in illegal activity overall egg production would likely be (ASMFC 2000). Annual harvest reported involving American eels that was impacted. Because larval dispersal is in the mid 1970’s was in excess of 1,700 directly attributable to the black market random, a decline in larval production tons, and in the 1990’s just under 14 value of elvers. Service investigations would impact the entire species range, tons. These harvests are likely less than revealed that during this period including those areas from which the the actual amount exported as poachers could easily expect to reproductive contribution of spawners underreporting has been an issue command in the neighborhood of $350 was high. Weeder’s more recent work in (underreporting has ranged from 3.6 to per pound for eels, harvested at only association with Hammond (in review), 261 percent) (ASMFC 2000). More about 2 to 4 inches long, that were then stated that strong fishing pressure, recent information provided by the exported live to Asia and which removes thousands of pound of petitioner indicates that U.S. landings (USFWS–DLE pers. comm.). eels per day from the small tidal on the Atlantic Coast are down about 64 In 1999 the Office of Law estuaries they studied, is likely to cause percent of the long-term average, Enforcement observed a nearly complete reduced densities consistent with the possibly (Geer 2004). cessation of illegal activity involving demographics they observed. Median Analysis of information provided in American eels. This appears to be the catch-per-unit effort (CPUE) of eels the petition and information in our files. result of a bottoming out of the black sampled in a fishery-independent Information in our files provides market value for elvers and not a survey of Chesapeake Bay’s Sassafras additional detail on the extent of the reaction to previous enforcement River, a heavily fished system, dropped commercial and recreational American activity. In 1999 commercial fisherman, from 9 to 0 eels per eel pot (between eel fishery. Few recreational anglers who could legally harvest elvers in 1981 and 1998) and median total weight directly target eel, but eel are often Maine, reported they were lucky to get dropped from 2.5k kg/pot to 0 kg/pot. purchased by recreational fishermen for $20–$22 a pound as compared to the Conversely, an increase in eel size was use as bait for larger gamefish such as $350 per pound seen the year before. observed after fishing ceased in the Wye striped bass. From the Atlantic coast This drop in value apparently was the River. They concluded that the lower area surveyed, the estimated total result of the preference of Asian fecundity and number of spawning annual catch of eel ranged from 212,690 consumers for the taste of juvenile adults may reduce the amount of eel in 1982 to 36,741 eel in 1997 Asian eels over American eels and the spawner biomass to unsafe levels. (ASMFC 2000). Some recreational availability of farmed raised Asian eels. Along with the commercial fishery in fishermen may catch eels for bait During this three year period, the Office the U.S., an active commercial fishery purposes directly, but not report such of Law Enforcement conducted three exists in Canada. Yellow and silver eel landings (ASMFC 2004). separate but related investigations catches are reported from the Lake Commercial exports of glass eels to intended to detect and prosecute Ontario/St. Lawrence River ecosystem Europe and Asia have led to subjects involved in illegal as well as from the Gulf of St. Lawrence enforcement problems due to high commercialization of elvers. Current and from Atlantic Nova Scotia and the prices, low cost of entry to the fishery, regulatory requirements make it difficult Bay of Fundy (ICES 2000). The mean and large numbers of participants. State to document the number of glass eels in annual catches of St. Lawrence River agencies have focused enforcement the commercial trade. The Atlantic were 788 tn (715 t) in 1984 and 592 tn efforts on take while federal efforts have States Marine Fisheries Commission has (537 t) in 1991. The periodic reporting been focused on foreign trade aspects of recommended that the Fish and Wildlife of ‘‘river eel’’ catches in the Caribbean the fishery. A U.S. Fish and Wildlife Service proceed with listing the and Central American countries are Service, Division of Law Enforcement American eel in Appendix III of CITES believed to be glass eels/elvers caught (USFWS–DLE) review of foreign trade of to allow for better monitoring of glass for export. Information has only been American eels from 1992 to 1996 eel harvest and commercialization. collected since 1975 and may very well revealed problems with reporting of Recently the price for elvers has risen to be underreported. The catches have catches and exports, with records for $200 per pound (USFWS–DLE pers. ranged from 1.1 tn (1 t) (1975 in Mexico, 1993 showing more than twice as many comm.). 1988 and 1989 in Dominican Republic, live American eels being exported as Shifts in population makeup are and 1989 in Cuba) to 54 tn (49 t) were reported caught in the U.S. evident in the upper Chesapeake Bay in (Dominican Republic in 1994) (ICES Commercial eel harvest is reportedly Maryland where harvest pressure is on 2000). one of the largest commercial fishing larger eels. Weeder and Uphoff (2003) In analyzing the effect of harvest on activities on the east coast due to the noted a shift in population makeup American eel abundance, there are high economic incentives associated between the 1980s and 1990s toward various reasons the magnitude of the with glass eels. The commercial ‘‘on- younger, smaller eels being harvested. threat is difficult to determine. Most of the-street’’ price for glass eels from the This is consistent with responses to the data on eel numbers come from Atlantic seaboard ranges from increased size selective fishing pressure commercial harvest data (or landings) approximately $600 per pound in the (i.e. large eels being exploited). Many where fishing effort is not always early fishery to $100 per pound in the exploited decrease in size at available and may consist of different late fishery (USFWS–DLE pers. comm.). maturity as a compensatory response year-classes which are not differentiable Illegal take of glass eels and possibly (Trippel 1995, as cited in Weeder and simply based on eel size (ASMFC 2000). other life stages were not recognized as Uphoff 2003). Harvest of large Harvest is market driven and therefore a major problem until summer 1997. individuals unequally affects females. high harvest years may reflect high Numerous prosecutions for illegal Eels below 40 cm in length are either market demand rather than increased fishing activity involving glass eels have male or female, but almost all eels abundance (likewise, low harvest taken place in state and federal courts greater than 40 cm are female. numbers may indicate a low market since 1997. During the period March Additionally, suggests Weeder and demand rather than a decrease in 1996 through March 1998, the Office of Uphoff, smaller eels may be less abundance). Harvest of highly valued

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glass eels or elvers to meet foreign American eel, we will determine the according to the International Council aquaculture demands are likely implications of these factors on the role for the Exploration of the Sea (ICES) underreported, and there is evidence of of harvest on the eel’s decline. (2000), it is unlikely that there are substantial illegal harvest and sale of Information from the Chesapeake substantial effects from the parasite on glass eels and elvers having occurred studies suggests that not only numbers, American eel abundance (because of the through the 1990s on the Atlantic Coast but eel size may well be important in lack of temporal correspondence (R. St. Pierre, pers. comm. 2005). determining the impacts of harvest, as between the appearance of the parasite The absence of fishing effort have already been noted in the and American eel declines). information was identified by Chesapeake Bay. Because the petitioner Predation Castonguay et al. (1994a) as a major and the ASMFC indicated that weakness in their assessment of commercial harvest is a possible reason American eel juveniles and adults are commercial fishing and declines in the for the decline of the American eel and a seasonal food item of various finfish, American eel. They analyzed trends in that at the 90-day finding stage we and data are available that indicate eels commercial eel landings in Canada and accept the petitioner’s sources and are preyed on by fish-eating birds and the United States and compared them to characterizations of the information, to mammals such as mink (Sinha and the timing of the decline. They the extent that they appear to be based Jones 1967, Seymour 1974, as in concluded that there was little evidence on accepted scientific principles, we ASMFC 2000). Younger life stages may that commercial fishing caused the conclude that commercial harvest likely also provide a food source. decline. effects American eel abundance, Analysis of information provided in Ongoing research by Chesapeake Bay although it may not be solely the petition and information in our files. area scientists, however, suggests that responsible for its decline, and we Under conditions of abundance, impacts eels appear to be overfished. Fishing conclude that commercial harvest is from predation would not be of concern; mortality has been estimated at two to likely to impact the American eel in the however, when populations are four times natural mortality (Weeder, J. future. declining, or particular life stages are and J. Uphoff. In in review). Although experiencing heavy predation, the this does not point to the reason for the C. Disease or Predation impact of what were typical stresses decline, it may indicate, at least in the Information provided in the petition: may be magnified. The information Chesapeake Bay, an important area for The petition did not specifically provide provided and available in our files is, American eels, current fishing pressure information on disease and predation: however, insufficient to determine the may be affecting future abundance. however, the Management Plan role of predation in the decline of the There are several factors occurring on, incorporated by reference provided the American eel. and affecting the abundance of, multiple information below. life stages (glass, elver, yellow, and D. The Inadequacy of Existing silver) of American eel. These factors Disease Regulatory Mechanisms increase the risk that significant harvest American eels are afflicted by disease The petition stated that State and pressure poses for the American eel like any other species; however, one Federal agencies have not adequately population due to their life history. disease was specifically discussed by regulated (1) fish passage, or (2) harvest According to the ASMFC (2000), the ASMFC as a potential threat to the and trade, leading to a decline in following factors should be considered overall health of the American eel. The population numbers and range of the in any analysis of harvest effects: (1) non-indigenous eel swimbladder American eel. American eels mature slowly, requiring (Anguillicola crassus) is a Fish Passage 7 to 30+ years to attain sexual maturity parasite native to marine and freshwater (K. Oliveira, Univ. of Maine pers. areas of eastern Asia, from and Information provided by the comm., as in ASMFC 2000); (2) glass China to Vietnam. Its native host is the petitioner. The petitioners stated that eels aggregate seasonally to migrate, (Anguilla japonica). The under the authority of the Federal making them more vulnerable to capture nematode has been documented to have Power Act, the Federal Energy in large numbers (Haro and Krueger significant negative impacts on Regulatory Commission (FERC) can 1988, as in ASMFC 2000); (3) one year European eels, and on American eels in immediately stop the killing of adult class of yellow eels are harvested over Texas and South Carolina. female American eels in hydroelectric many years, resulting in high Analysis of information provided in turbines in the United States, but have cumulative fishing mortality (Richkus the petition and information in our files. failed to do so. They also state that the and Whalen 1999, as in ASMFC 2000); The swimbladder nematode was found Service and NOAA Fisheries, pursuant (4) all harvest is pre-spawning in American eels (Barse and Secor 1999, to Section 18 of the Federal Power Act, (McCleave 1996, as in ASMFC 2000); as in ICES 2000) in 1997, but may have have the legal authority to require the and (5) changes in year class abundance been present earlier. The nematode has licensees of private hydroelectric dams are not readily recognizable, because been implicated with acute mortality in to provide safe and efficient upstream harvest abundance data include eels of eels, as well as internal injury and and downstream passage for American similar sizes but from a number of year growth impairment. Part of its life cycle eels. The petitioners allege that, to date, classes (Ritter et al. 1997, as in ASMFC occurs in the eel’s , and its neither agency has exercised this legal 2000), potentially masking declines. departure through the swim bladder authority. Additionally, the petitioners In responding to the petitioners’ wall can cause injury and scarring. state that pursuant to the Federal Clean assertion that commercial harvest is a These effects on the swim bladder could Water Act, the Environmental threat to the American eel we were impact a silver eel’s ability to travel to Protection Agency (EPA) has the legal presented with differing analyses on the Sargasso Sea spawning grounds and authority to require the licensees of whether and to what degree legal and thus its reproductive success (ICES private hydroelectric dams to provide illegal harvest is implicated in the 2000). safe and efficient upstream and decline, and complicating factors in Although there is evidence that the downstream passage for American eels. determining harvest impacts. As part of parasite Anguillicola crassus causes Allegedly, to date, the EPA has declined our 12-month status review of the negative impacts to Anguilla spp, to exercise this legal authority. Finally,

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the petitioners were not aware of any Stevens Fisheries Conservation and In summary, although individual instance in Maine or Massachusetts Management Act, the ASMFC can jurisdictions have taken some action in where these States have required by law immediately prohibit the harvest of response to the decline of the American the safe and efficient passage of American eels in the waters of the eel (Canada’s moratorium on American eels at non-hydroelectric United States from Maine to Florida, commercial harvest in Ontario) or are dams, despite fish passage statutes and asserted that they have not considering changes (ASMFC which allow the States to make such exercised this authority. Amendment 1), there are both gaps in requirements. Also, the petitioners Analysis of information provided in the ability of current regulations to questioned whether other States had the petition and information in our files. address threats (varied state statutes requiring safe and efficient The Magnuson Stevens Fisheries regulations), and as the petitioners passage of juvenile American eels at Conservation and Management Act does pointed out, limited implementation of non-hydroelectric dams and whether not apply as indicated by the petitioner. existing regulatory mechanisms (limited such statutes were being enforced. The Atlantic Coastal Fisheries and varying state restrictions on eel Analysis of information provided in Cooperative Management Act does harvest, harvest within the EEZ). To the the petition and information in our files. allow for emergency actions to be taken extent we find that commercial harvest Safe upstream and downstream passage, by the ASMFC and obligates States to (Factor B. Overutilization for which the petitioner alleges lacks implement the emergency actions (e.g., commercial, recreational, scientific, or adequate regulatory mechanisms, is harvest restrictions). To address educational purposes) may be standard when special licenses are concerns regarding coastwide declines responsible in part for the decline of the required. For example, dams for in American eel abundance, the American eel, the existing regulations hydropower production and navigation ASMFC’s American Eel Management may be inadequate or nonexistent and provide opportunities for fish passage Board authorized development in March therefore partly responsible for the when required by the resource 2004, of an Amendment to the Interstate decline of the American eel. management agencies, such as the Fishery Management Plan for American Service. The Service takes every E. Other Natural or Manmade Factors eel, which may include changes in Affecting Continued Existence opportunity available to insure that safe harvest restrictions for recreational and The petition, its appendices, and upstream and downstream passage is commercial fisheries. However, these referenced documents discuss the prescribed for American eels under the are not currently in place, and a large following threats which we have Federal Power Act during relicensing of number of eel use areas/habitats are grouped under Factor E: (1) Hydropower hydroelectric power facilities that are outside the jurisdictional boundaries of under the purview of FERC. NOAA turbines; (2) displacement by or the State agencies within the purview of competition with nonnative species: (3) Fisheries has exercised its legal the ASMFC. These include watersheds authority under the Federal Power Act contaminants; and (4) changes in in the Canadian Atlantic Provinces of to prescribe fishways for eels at select oceanographic conditions. Quebec and Ontario, upstream projects. However, not all hydroelectric freshwater reaches managed by inland Hydropower Turbines power facilities are currently equipped fish and wildlife agencies, regional with structures that ensure safe Information provided by the institutions such as the Gulf States upstream and downstream passage. Of petitioners. According to the petitioners, Marine Fisheries Commission and Great the 15,570 dams on the Atlantic Coast radio tagging studies of migrating female Lakes Fishery Commission, and those only 1,100 dams were identified for American eels conducted by the Maine waters within Native American hydropower production and 50 for Department of Marine Resources Reservations where Tribal Governments navigation. Therefore, over 90 percent of (MDMR) at two hydroelectric dams in the dams in the range of the American have jurisdiction. To date, of these other Maine indicate nearly 100 percent of eel, including those for water-level jurisdictions, only the Province of adult female eels entering project control, water supply, and recreation, Ontario, Canada, has placed a turbines are killed or severely injured, do not necessarily have Federal moratorium on the harvest of American and therefore unable to complete their licensing requirements (ASMFC 2000), eels. spawning migration (MDMR 2002, as in but not all these structures would be Currently, Atlantic Coast states differ petition). Additionally, the Petitioner’s considered barriers. in their eel harvest regulations, such as state, ‘‘Radio-tracking of adult American To the extent that we find safe variations in the minimum size of eels by Maine Department of Marine upstream passage (Factor A. Access to harvestable eel, dates of harvest, and Resources just above the Lockwood upper tributary habitat) and fishing gear. Few states have defined hydro-electoric project on the Kennebec downstream passage (Factor E. fishing seasons and limited management River during fall 2002 indicates that 40 Hydropower turbines) may be over the eel fishery (ASMFC 2000). percent or more of the adult American responsible in part for the decline of the The ASMFC also recommended in the eel attempting to migrate past the American eel, we concur with the Management Plan that the Secretary of Lockwood Project each fall are petitioners that the existing regulations Commerce address and initiate controls entrained and killed in the Lockwood for facilities preventing safe up and over harvest and use of American eels Dam turbines, despite the availability of downstream passage may be inadequate in Federal waters (3–200 nautical miles the project spillway for passage (MDMR or not exist because the vast majority of offshore) that are not landed in States’ 2003). According to the petitioner, the these dams do not have Federal waters. Specifically, the ASMFC entrainment and death of eels in the licensing requirement, and therefore, recommended that the Secretary of turbine is not a recent issue. The may be partly responsible for the Commerce ban harvests of American petitioners’ state that records of severe decline of the American eel. eels at any life stage in the EEZ, but kills of female American eels by the permit the possession of up to 50 eel per turbines of hydro-mechanical and Harvest and Trade person as bait. NOAA Fisheries does not hydroelectric dams exist since as early Information provided by the now have a fishery management plan for as the 1880s. petitioner. The petitioners stated that eels and does not manage the fishery in Downstream passage of silver eels is under the authority of the Magnuson- the EEZ. stated by ASMFC (2000) as a problem in

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streams with hydropower turbines. minutes from the 2004 ASMFC meeting, the American eel suggest increased According to Ritter et al. (1997, as in have exploded in certain areas, having tolerance with size and age (Hinton and ASMFC), the 1,100 hydropower dams been introduced as recently as the early Eversole 1978, 1979, 1980, as in ASMFC on the eastern seaboard of the United 1980s in some systems. They have 2000). A relatively new, specific area of States may represent a major source of displaced some of the indigenous concern deals with coastal wetlands and mortality to pre-spawning adults and species. There has been the potential impact caused by spraying represent approximately 7 percent of the speculation from some research done at insecticides for mosquito control at the dams on the eastern seaboard. Virginia Commonwealth University that time glass eels enter these areas According to the petitioners, virtually they have a large impact on the shad (ASMFC 2000). none of these hydropower facilities population and potentially on the Analysis of information provided in provide safe passage for migrating American eel population as well the petition and information in our files. female American eels. As a result, (ASMFC 2004). Because no additional Contaminants clearly accumulate in downstream passage by female information was presented or available American eels at high levels. Some American eels at these facilities is via in our files at this time, we are unable evidence indicates that contaminant the project turbines, which results in the to analyze further the impact of levels may be high enough to be toxic death of female eels attempting to displacement by or competition with to larvae and possibly affect the health migrate. According to Hadderingh nonnative species on American eels. of adult migrating eels. However, we (1990, as in ASMFC) and McCleave were not presented with information, Contaminants (pers. comm., as in ASMFC), if eels have nor did we have information in our to pass through turbines in their Information provided by the files, on the level of risk to the species downstream migration, mortality rates petitioners. As the petitioners state, from different contaminants. Declines in range from 5 to 60 percent depending on American eels are benthic, long-lived, recruitment in the St. Lawrence River the flow through the turbines and the and lipid (fat) rich (bioaccumulation of (and in Europe), according to length of the individual. many toxins occurs in the fat of the Castonguay et al., do not coincide with Analysis of information provided in fish). Therefore, American eels can periods of maximum contamination by the petition and information in our files. accumulate high concentrations of organochlorine compounds (Castonguay We agree with the petitioners’ assertions contaminants, potentially causing an et al. 1994a; Knights 1996, as in ICES that rivers with hydropower turbines are increased incidence of disease and 2000), and ICES stated that spawners a documented threat to female reproductive impairment than is found would still be available from American eels as they leave the rivers to in other fish species (Couillard et al. uncontaminated areas (ICES 2000). spawn and may be a threat to the 1997, as in ASMFC). Studies have Therefore, in responding to the species as a whole. Although shown bioaccumulation of mercury and petitioners’ assertion that contaminants hydropower turbines are on less than 7 other heavy metals, dioxin and are a threat to the American eel, we can percent of the rivers, this mortality may chlordane, polychlorinated biphenyls agree that individual American eel and be playing a larger role as the (PCBs) and their young are likely at risk from population declines (because as the dichlorodiphenyltrichloroethane (DDT) certain contaminants: however, the population declines, gravid females in American eels. petitioners did not provide substantial become a vital resource and a high An analysis of the contaminants in information nor do we have any in our percentage of these individuals are lost migrating silver eels in the St. Lawrence files supporting this assertion. Therefore to hydropower turbines). Additionally, River showed that the highest we are unable to support, at this time, not all hydroelectric power facilities are concentrations of chemicals were in the the assertion that contaminants are a currently equipped with structures that gonads. Concentrations of PCB and DDT threat to the species at a population ensure safe upstream and downstream were found to be 17 percent and 28 level. passage. There is particular concern that percent higher in the gonads than in the Changes in Oceanographic Conditions the St. Lawrence River/Lake Ontario carcasses. The chemical levels in the stock, a significant (possibly 19 percent eggs could exceed the thresholds of Information provided by the of total female spawners) source of old, toxicity for larvae. Also, since the petitioner. The petition did not large, fecund female spawners migrating females are not feeding, the specifically provide information on the (Castonguay et al. 1994a), is impacted chemical levels in the eggs could be effects that changes in oceanographic by turbines at the Moses-Saunders and even higher at hatching, increasing the conditions are having on American eel Beauhrnois-Les Ce´dres hydroelectric likelihood of toxicity to the larvae abundance and distribution, but the complex on the St. Lawrence River. (Hodson et al. 1994, as in ASMFC 2000). Management Plan incorporated by According to ASMFC (2000), in the St. reference provided the information Displacement by or Competition With Lawrence River migrating silver eels, below. Nonnative Species vertebral malformations and basophilic The ASMFC lists changes in Information provided by the foci (lesions) in the liver were found to oceanographic conditions as a concern petitioners. The petitioner did not be most common in contaminated eels to the ocean habitat of the American eel. provide information on the impact of (Couillard et al. 1997, as in ASMFC The spatial and temporal distribution of displacement by or competition with 2000). leptocephali is a result of oceanic nonnative species. Rather, what is Aside from bioaccumulation, ASMFC circulation patterns and the drifting presented below is recent information expressed concern over accidental spills behavior of the larvae, and therefore from a petition reference on a and mosquito abatement practices and potential changes in oceanographic potentially emerging threat. their effect on eels. Accidental release of conditions that influence the transport Two nonnative species may be toxins into the Rhine River in 1986 of leptocephali may have an impact on impacting American eels, the flathead killed hundreds of thousands of juvenile recruitment to coastal catfish (Pylodictis olivaris) and the blue European eels (Facey and Van Den tributaries, potentially impacting an catfish (Ictalurus furcatus), both native Avyle 1987, as in ASMFC 2000). overall year class (McCleave 1998; to the Mississippi River watershed. Toxicity studies of aquaculture Castonguay et al. 1994b, as in ASMFC These two species, according to the chemical effects on various life stages of 2000). Castonguay et al. (1994a, as in

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ASMFC 2000) suggests that a weak, a decline in the American eel Finding slow Gulf Stream would cause larvae to abundance and their distribution, On the basis of our review, we find miss the optimum period for whether taken singly or in combination that the petition presents substantial metamorphosis and be lost to the with other factors discussed above. scientific and commercial information population. Castonguay et al. (1994a, as Summary indicating that listing the American eel in ASMFC 2000) also suggests that may be warranted. The main threats to recent cooling events and oceanographic It is reasonable to infer, as the the species presented by the petitioner changes in the northwest Atlantic may petitioners proposed and scientifically and supported by the information they have altered the currents or other supported, that the American eel is provided appear to be commercial processes that carry glass eel to the harvest, habitat loss and degradation continent. experiencing a decline. The petitioner due to loss of wetlands and upper Analysis of information provided in also provided information on possible the petition and information in our files. reasons for this decline which are tributary habitat, hydropower turbine Eels are expected to be even more generally not refuted, but more often are mortality, changes in oceanic affected by North Atlantic climatic validated by the information in our files, conditions, and inadequacy of existing changes than most marine species as the which suggests that the listing action regulatory mechanisms. relative strength and position of the Gulf may be warranted. Our review of the Public Information Solicited Stream is vital for their dispersal and ASMFC 2000 Management Plan (which When we make a finding that successful migration, and the species the petitioner incorporated by reference substantial information is presented to consists of a single spawning population and which the Service and NOAA indicate that listing a species may be which may depend on the strength or Fisheries, State representatives, and warranted, we are required to promptly location of thermal ocean fronts to academics were involved with writing), commence a review of the status of the trigger spawning. Evidence of historic with regards to the life history of the species. To ensure that the status review population contractions is presented for species, potential threats to the various is complete and based on the best both the American eel and the European life stages of this species, and the available scientific and commercial eel. Most of these events probably habitats it utilizes, provided us with a occurred during the Wisconsinan data, we are soliciting information on range of potential causes for the decline the American eel. We request any glaciation 20,000 years ago, which and the likely effects to the species. changed ocean circulation, thereby additional data, comments, and These potential threats and effects suggestions from the public, other reducing the speed of the Gulf Stream provided by the petitioner were (Duplessy 1999, Lynch-Stieglitz et al. concerned governmental agencies, supported by scientific research with Native American Tribes, the scientific 1999, as in Wirth and Bernatchez 2003), gaps in information acknowledged. and moved the gyre boundary and community, industry, or any other associated currents further to the south The complex life history and the interested parties concerning the status (Keffer et al. 1988, as in Wirth and incompleteness of historical data of the American eel. We are seeking Bernatchez 2003). (abundance, stock composition, life information regarding the species’ However, the degree to which recent stage mortality rates, and exploitation historical and current status and (within the last 30–40 years) oceanic rates) make it challenging at this time to distribution, its biology and ecology, changes have contributed to the understand the potential influence of ongoing conservation measures for the American eel population decline is still the numerous individual threats, and species and its habitat, and threats to being debated. Castonguay et al. (1994a) threats acting in a cumulative fashion or the species and its habitat. evaluated the role of oceanic variations synergistically. Individual and Finally, if we determine that listing in the decline of both the American and cumulative effects of these threats upon the American eel is warranted, it is our European eel, and although they could the American eel may be magnified as intent to propose critical habitat to the not test the hypothesis of reduced the species’ abundance declines, and as maximum extent prudent and recruitment directly, they found the proposed by Wirth and Bernatchez determinable at the time we would most important result of their analysis (2003), there may be a synergistic effect propose to list the species. Therefore, to be the similarity between North of the short- and long-term threats faced we request data and information on America and Europe in both the rate of by the species because of its peculiar what may constitute physical or decline of these two eel species and the life history. biological features essential to the year in which the decline began. That conservation of the species, where these Further analysis of oceanic variations such declines could be due to features are currently found and is necessary particularly in light of the simultaneous and equivalent habitat, whether any of these areas are in need pollution, or fishing pressures, they say, scant direct evidence and the potential of special management, and whether is unlikely. Rather they conclude that for oceanic variations to be there are areas not containing these the most probable cause is an oceanic compounding or confounding the features which might of themselves be factor acting simultaneously on both impact of other threats. Commercial essential to the conservation of the species. harvest, habitat loss and degradation species. Please provide specific We would concur with the ASMFC (primarily the loss of wetlands and comments as to what, if any, critical that changes in oceanographic upper tributary habitat), hydropower habitat should be proposed for conditions (i.e. changes in the strength turbine mortality, and inadequacy of designation, if the species is proposed and direction of ocean currents ‘‘in existing regulatory mechanisms, may for listing and why that proposed particular the Gulf Stream) may have an also have caused or contributed to the habitat meets the requirements of the impact on juvenile recruitment to decline of the American eel. Other Act. coastal tributaries, particularly those on potential threats, such as seaweed If you wish to comment or provide the Atlantic seaboard. Also, because of harvest, benthic habitat destruction, information, you may submit your the lack of information in our files to the alterations of stream flow, disease, comments and materials concerning this contrary, we concur that changes in predation, and contaminants, could not finding to the Division of Endangered oceanic conditions may be a reason for be fully addressed or supported. Species (see ADDRESSES section).

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Our practice is to make comments and DEPARTMENT OF COMMERCE Regional Administrator, Protected materials provided, including names Resources Division, Northwest Region, and home addresses of respondents, National Oceanic and Atmospheric NMFS, 1201 NE Lloyd Avenue, Suite available for public review during Administration 1100, Portland, OR 97232. regular business hours. Respondents FOR FURTHER INFORMATION CONTACT: may request that we withhold a 50 CFR Part 223 Melissa Neuman, NMFS, Southwest respondent’s identity, to the extent [Docket No. 050323081–5081–01; I.D. Region (562) 980–4115; Scott Rumsey, allowable by law. If you wish us to 031505C] NMFS, Northwest Region (503) 872– 2791; or Lisa Manning, NMFS, Office of withhold your name or address, you RIN 0648–AT02 must state this request prominently at Protected Resources (301) 713–1401. the beginning of your submission. Endangered and Threatened Species: SUPPLEMENTARY INFORMATION: However, we will not consider Extension of Public Comment Period Background anonymous comments. To the extent on Proposed Listing Determination for consistent with applicable law, we will the Southern Distinct Population On April 6, 2005, NMFS published a make all submissions from Segment of North American Green proposed ESA listing determination for organizations or businesses, and from the Southern DPS of green sturgeon (70 FR 17386). The proposed rule was based individuals identifying themselves as AGENCY: National Marine Fisheries representatives or officials of on: information showing that spawning Service (NMFS), National Oceanic and adults are concentrated into one organizations or businesses, available Atmospheric Administration (NOAA), for public inspection in their entirety. spawning river (i.e., Sacramento River), Commerce. thus, increasing the risk of extirpation Comments and materials received will ACTION: Proposed rule; extension of due to catastrophic events; threats that be available for public inspection, by public comment period. remain severe and have not been appointment, during normal business adequately addressed by conservation SUMMARY: In April 2005, NMFS hours at the address listed above under measures currently in place; fishery- proposed to list the Southern Distinct ADDRESSES. independent data exhibiting a negative Population Segment (DPS) of the North trend in juvenile green sturgeon Literature Cited American green sturgeon (Acipenser abundance; and information showing medirostris; hereafter ‘‘green sturgeon’’) A complete list of all references cited evidence of lost spawning habitat in the as threatened under the Endangered herein is available, upon request, from upper Sacramento and Feather Rivers. Species Act. NMFS is extending the the Hadley, Massachusetts, Regional With the publication of the proposed public comment period on the proposed ADDRESSES listing determination, NMFS announced Office (see section above). listing determination until July 27, a 90–day public comment period ending 2005. Author on July 5, 2005. On June 20, NMFS DATES: The due date for written The primary author of this notice is announced that it would hold a public comments is extended to July 27, 2005. Heather Bell, Hadley, Massachusetts, hearing (70 FR 35391) on July 6 in ADDRESSES: You may submit comments Sacramento, CA, and extended the Regional Office (see ADDRESSES section on the proposed rule by any of the public comment period to July 6 to above). following methods: coincide with the public hearing. Authority: The authority for this action is • E-mail: the Endangered Species Act of 1973, as [email protected]. Extension of Public Comment Period amended (16 U.S.C. 1531 et seq.). • Federal e-Rulemaking Portal: http:/ NMFS has received a request from a Dated: June 21, 2005. /www.regulations.gov. Follow the U.S. Department of the Interior to instructions for submitting comments. extend the public comment period by 2 Matt Hogan, • Mail: Submit written comments to weeks. In this notice NMFS is extending Acting Director, Fish and Wildlife Service. Chief, Protected Resources Division, the public comment period by three [FR Doc. 05–12971 Filed 7–5–05; 8:45 am] Southwest Region, National Marine weeks, and now comments will be BILLING CODE 4310–55–P Fisheries Service, 501 West Ocean accepted until July 27, 2005. Blvd., Suite 4200, Long Beach, CA, 90802–4213. References • Fax: 562–980–4027. Copies of the Federal Register notices The updated green sturgeon status and related materials cited in this review and other reference materials document are available on the Internet related to the proposed rule can be at http://swr.noaa.gov, or upon request obtained via the Internet at: http:// (see ADDRESSES). www.swr.noaa.gov. The updated status Authority: 16 U.S.C. 1531 et seq. review and list of references are also available by submitting a request to the Dated: June 30, 2005. Assistant Regional Administrator, Wanda L. Cain, Protected Resources Division, Acting Director, Office of Protected Resources, Southwest Region, NMFS, 501 West National Marine Fisheries Service. Ocean Blvd., Suite 4200, Long Beach, [FR Doc. 05–13264 Filed 7–5–05; 8:45 am] CA 90802–4213, or the Assistant BILLING CODE 3510–22–S

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