Federal Register Vol. 80, No.41,

On January 18, 2011, President Obama issued Executive Order 13563, “Improving Regulation and Regulatory Review.” The Order explains the Administration's goal of creating a regulatory system that protects “public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation” while using “the best, most innovative, and least burdensome tools to achieve regulatory ends.” After receipt and consideration of comments, the Department issued its Plan for Retrospective Analysis of Existing Rules in August 2011. On May 12, 2012, President Obama issued Executive Order 13610, “Identifying and Reducing Regulatory Burdens.” This Order explained that “it is particularly important for agencies to conduct retrospective analyses of existing rules to examine whether they remain justified and whether they should be modified or streamlined in light of changed circumstances, including the rise of new technologies.”

The Department recognizes the importance of conducting retrospective review of regulations and is once again seeking public comment on how the Department can increase the effectiveness of its significant regulations while minimizing the burden on regulated entities. The Department recognizes that the regulated community, academia, and the public at large have an understanding of its programs and their implementing regulations, and therefore is requesting public comment on how the Department can prepare workers for better jobs, improve workplace safety and health, promote fair and high-quality work environments, and secure a wide range of benefits for employees and those who are seeking work, all in ways that are more effective and least burdensome.

This request for public input will inform development of the Department's future plans to review its existing significant regulations. To facilitate receipt of the information, the Department has created an Internet portal specifically designed to capture your input and suggestions, http://www.dol.gov/regulations/regreview/. The portal contains a series of questions to gather information on how DOL can best meet the requirements of the Executive Order. The portal will be open to receive comments until March 18, 2015.

Please note that these questions do not pertain to DOL rulemakings currently open for public comment. To comment on an open rulemaking, please visit regulations.gov and submit comments by the deadline indicated in that rulemaking. Comments that pertain to rulemakings currently open for public comment will not be addressed by the Department in this venue, which focuses on retrospective review.

The Department will consider public comments as we update our plan to review the Department's significant rules. The Department is issuing this request solely to seek useful information as we update our review plan. While responses to this request do not bind the Department to any further actions related to the response, all submissions will be made available to the public on http://www.dol.gov/regulations/regreview/.

Prior documents in this proceeding: Notice of Hearing issued on March 28, 2013, and published in the March 28, 2013, issue of the Federal Register (78 FR 18899).

This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and is therefore excluded from the requirements of Executive Orders 12866, 13563, and 13175.

Notice is hereby given of the filing with the Hearing Clerk of this recommended decision with respect to the proposed amendments to Marketing Order 905 regulating the handling of oranges, grapefruit, tangerines, and tangelos grown in Florida, and the opportunity to file written exceptions thereto. Copies of this decision can be obtained from Melissa Schmaedick, whose address is listed above.

This recommended decision is issued pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act,” and the applicable rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR part 900).

The proposed amendments are based on the record of a public hearing held on April 24, 2013, in Winter Haven, Florida. Notice of this hearing was published in the Federal Register on March 28, 2013 (78 FR 18899). The notice of hearing contained nine proposals submitted by the Committee.

The proposed amendments were recommended by the Committee following deliberations at a public meeting on July 17, 2012, and were submitted to the Agricultural Marketing Service (AMS) on October 25, 2012. After reviewing the recommendation and other information submitted by the Committee, AMS decided to proceed with the formal rulemaking process and schedule the matter for hearing.

The Committee's proposed amendments to the order would: (1) Authorize regulation of new varieties and hybrids of citrus fruit; (2) authorize the regulation of intrastate shipments of fruit; (3) revise the process for redistricting the production area; (4) change the term of office and tenure requirements for Committee members; (5) authorize mail balloting procedures for Committee membership nominations; (6) increase the capacity of financial reserve funds; (7) authorize pack and container requirements for domestic shipments and authorize different regulations for different markets; (8) eliminate the use of separate acceptance statements in the nomination process; and (9) require handlers to register with the Committee.

The Department of Agriculture (USDA) also proposed to make such changes to the order as may be necessary, if any of the proposed changes are adopted, so that all of the order's provisions conform to the effectuated amendments.

Ten industry witnesses testified at the hearing. The witnesses represented citrus producers and handlers in the production area, as well as the Committee, and they all supported the proposed amendments. The witnesses emphasized the need to restructure Committee representation and administration as well as equip the industry with more tools to address the changing needs of fresh Florida citrus.

Witnesses offered testimony supporting the recommendation to authorize the regulation of new varieties and hybrids of citrus fruit. According to testimony, new varieties and hybrids could address the disease concerns of the industry and increase consumer demand for fresh citrus through the development of varieties with new characteristics.

Witnesses testified in support of streamlining the order by allowing mail ballots for Committee membership nominations, eliminating the use of separate acceptance statements in the nomination process, and changing the term of office and tenure requirements for Committee members to lengthen their terms of service. Witnesses stated that these three proposals would result in cost savings to the Committee and time savings for industry members. Moreover, longer term limits and overall tenure would contribute to stability in the administration of the order. The proposal to allow for greater financial reserves was supported by witnesses who indicated that additional reserves would result in less fluctuation in assessments and provide year-over-year budget stability.

Witnesses favored two proposals that would add authority to the order to regulate intrastate Florida citrus shipments in the event the Florida Department of Citrus discontinues or modifies its regulation of the fresh segment. This proposal was largely supported as a precautionary measure, with witnesses clearly stating that the authority would not be implemented unless Florida state regulations are not in effect. Witnesses also supported a similar proposal that would allow the Committee to develop different pack and container regulations for different markets, including the intrastate market.

Witnesses also supported the proposed amendment to modify the redistricting criteria and allow redistricting to occur more often than once every five years, as currently provided for under the order. The new criteria would give the Committee a clearer picture of production trends within the fresh citrus segment of the Florida citrus industry and allow the Committee to respond as necessary to best represent the fresh industry's interests.

Finally, witness testimony supported adding authority to require handler registration. Witnesses stated that handler registration would be helpful for two reasons: To assist in compliance and to provide the Committee with accurate handler information.

At the conclusion of the hearing, the Administrative Law Judge established a deadline of July 1, 2013, for interested persons to file proposed findings and conclusions or written arguments and briefs based on the evidence received at the hearing. One brief was filed.

The material issues presented on the record of hearing are as follows:

1. Whether to amend the definitions of “fruit” and “variety” in § 905.4 and § 905.5 to update terminology and authorize regulation of additional varieties and hybrids of citrus.

2. Whether to amend the definition of “handle or ship” in § 905.9 to authorize regulation of intrastate shipments.

3. Whether to amend § 905.14 to revise the process for redistricting the production area.

4. Whether to amend § 905.20 to change the term of office of Committee members from one to two years, and change the tenure requirements for Committee members from three to four years.

5. Whether to amend § 905.22 to authorize mail balloting procedures for Committee membership nominations.

6. Whether to amend § 905.42 to authorize the Committee to increase the capacity of its financial reserve funds from approximately six months of a fiscal period's expenses to approximately two years' fiscal periods' expenses.

7. Whether to amend § 905.52 to authorize pack and container requirements for domestic shipments and authorize different regulations for different markets.

8. Whether to amend § 905.28 to eliminate the use of separate acceptance statements in the nomination process.

9. Whether to amend § 905.7 to require handlers to register with the Committee.

The following findings and conclusions on the material issues are based on evidence presented at the hearing and the record thereof.

Sections 905.4, Fruit, and 905.5, Variety, should be amended to update order terminology and authorize regulation of additional varieties and hybrids of citrus.

The proposal to authorize regulation of new varieties and hybrids of citrus fruit would assist the industry in addressing declines in production caused by diseases. Research and development of disease-resistant hybrids may improve the health of Florida's fresh citrus industry. In addition, the industry would be better able to meet consumer preferences as new and improved fruit becomes available for commercial production.

In order to regulate newly developed citrus varieties and hybrids, authority must be added to the order. While the order currently authorizes regulation of specific hybrid fruit included in the definitions, it does not authorize regulation of new hybrids.

The proposal to amend the definitions of “fruit” and “variety” would revise order language to reflect terminology currently being used in the industry. The order currently lists varieties that are no longer commercially viable. Amendments to the definitions would remove those varieties and group other varieties under sub-definitions currently used within the industry.

The order currently identifies six types of citrus fruit that have varieties that can be regulated under the order. These are: Citrus sinensis, Osbeck, commonly called “oranges;” Citrus paradisi, MacFadyen, commonly called “grapefruit;” Citrus nobilis deliciosa, commonly called “tangerines;” Temple oranges; tangelos; and Honey tangerines.

The proposed amendment would revise this list by moving Temple oranges, tangelos and Honey tangerines under the modified definition of “variety,” and adding pummelos (Citrus maxima merr) as a new type. Additionally, authority would be added to regulate varieties of any hybrid fruit developed from the parent fruits of oranges, grapefruit, tangerines, and pummelos.

The definition of “varieties” currently identifies twelve classifications or groupings of varieties regulated under the order. These include: “round oranges;” late maturing oranges of the Valencia type; Temple oranges; Marsh and other seedless grapefruit, excluding pink grapefruit; Duncan and other seeded grapefruit, excluding pink grapefruit; Pink seedless grapefruit; Pink seeded grapefruit; tangelos; Dancy and similar tangerines, excluding Robinson and Honey tangerines; Robinson tangerines; Honey tangerines; and Navel oranges.

The proposed modification of this definition would re-organize the existing list and add new varieties as follows: Oranges, with sub-groupings for early and midseason oranges, Valencia, Lue Gim Gong, or similar late maturing oranges of the Valencia type, and navel oranges; Grapefruit, red grapefruit and all shades of color and white grapefruit; Tangerines and mandarins, with sub-groupings for Dancy, Robinson, Honey, Fall-Glo, Early Pride, Sunburst, and W-Murcott tangerines, and tangors; and pummelos, including Hirado Buntan and other pink seeded pummelos. Currently regulated citrus hybrids would also be included, specifically: Tangelos, including Orlando and Minneola tangelos, and Temple oranges.

A new sub-paragraph would be added to authorize regulation of any new varieties of citrus fruits specified in 905.4, Fruit, including hybrids of those fruit. Any new hybrid variety subject to regulation would be required to exhibit similar characteristics and be subject to cultural practices common to existing regulated varieties.

According to the record, the Florida citrus industry believes that newly-developed hybrids are necessary for the recovery and long-term health of the industry. The industry is funding the development of new varieties and hybrids and has developed a plan for field testing. The industry hopes to begin producing new varieties and hybrids in the next few seasons. According to the witnesses, there is great anticipation within the fresh segment of the Florida citrus industry for the introduction of new varieties and hybrids that will reverse the decline of the Florida citrus industry.

Witnesses explained that many of the varieties that have been the mainstay of the Florida fresh citrus industry have either succumbed to pest and disease challenges, or reached a point of market obsolescence. Furthermore, for the past decade, the Florida citrus industry has been contracting due to the loss of bearing trees and production, which has been brought about by the effects of two diseases, citrus canker and greening, and natural disasters, such as hurricanes. Also, the percentage of Florida's citrus crop utilized for fresh shipment has decreased to approximately nine percent of the total volume of citrus produced in Florida.

According to the record, during the past ten years, the number of bearing citrus trees has declined by 29 percent, while production has declined by 42 percent, and fresh utilization has declined by 45 percent. In addition, the value of the juice produced by fresh fruit varieties has continued to decline, which has further depressed the fresh citrus sector.

Witnesses gave examples of changes in consumer preferences that have also impacted the fresh Florida citrus industry. According to the record, Robinson and Dancy tangerines were the preferred varieties of tangerines by consumers thirty years ago. Over time, these varieties fell out of favor and were replaced by the Fall-Glo, Sunburst and Honey varieties because of their sweeter flavor. Consumers are now losing interest in these varieties and are showing a preference for easy-peel, seedless varieties.

These competitive varieties are grown in areas outside of Florida, such as California and Spain, and are currently not suitable for production in the state. As a result, the Florida fresh citrus industry is in the process of developing easy-peel, seedless varieties that will grow in the production area. The new fruit will likely be a hybrid fruit currently not regulated under the order. Witnesses explained that the order should be amended to authorize regulation of hybrid fruit so that this new variety can be regulated once it is ready for commercial production.

Researchers from the University of Florida (UF) testifying at the hearing stated that much research and development of new citrus fruit has been done to improve the competitiveness of the Florida citrus industry. According to the record, this research has resulted in the development and release of as many as ten new citrus fruits providing improvements such as sweeter oranges with earlier or later maturity and improved color and flavor attributes found in other citrus. In addition, research is focused on generating new and unique hybrids that may revitalize consumer interest in fresh Florida citrus. Two examples given by one witness from UF are the Sugar Belle mandarin hybrid and the Valquarius sweet orange, which are starting to be produced for the juice industry.

According to the record, varieties developed by the UF Citrus Breeding Program are being released into a “fast-track” testing program where a limited numbers of trees are grown on a test basis by interested growers. Fruit from the test trees cannot be sold.

Once the new varieties have been assessed for their potential value and growers plant sufficient numbers of trees to produce a supply of fruit for marketing through ordinary commercial channels, commercialization will proceed. Once a new variety becomes commercially viable, its inclusion under the order is likely to be considered by the Committee. Without the authority to regulate hybrid citrus fruit, the Committee would not be able to recommend the new fruit's inclusion under the marketing order.

One example of a new fruit that is currently in the test phase is the “UF914.” This is a hybrid of pummelo and grapefruit that resembles ordinary grapefruit in appearance, but is much larger. According to the record, it generally has higher sugar levels and lower acidity than an ordinary grapefruit, yet retains the red pigmentation, flavor and aroma of a grapefruit.

A critically important attribute of this particular variety is its extremely low content of furanocoumarins, those chemicals contained in ordinary grapefruit that are responsible for the so-called “grapefruit juice effect”, or a negative interaction between grapefruit juice and prescription medication, and subsequent medical recommendations for limited grapefruit consumption. As a consequence of its unique chemical composition, there could be substantial consumer demand for this variety. If this fruit were to be produced on a commercial scale, its inclusion under the order would be important to ensure and maintain quality and consistency of product in the market.

Researchers from the UF further explained that while new varieties will likely present marketing opportunities, they may also have new and unique quality attributes. Witnesses concluded that the success of these new varieties, as well as the future of Florida's fresh citrus industry, would be better secured by ensuring that new varieties will be required to meet quality standards.

In general, witnesses testifying in support of Material Issue Number One stated that, when new varieties and hybrids are available to the Florida citrus industry, it will be important that the marketing order contains the authority to regulate quality and size standards, and that its language be inclusive of all varieties likely to emerge from the breeding programs. The ability to regulate these varieties will ensure that the quality and consistency of fruit entering channels of trade will meet consumer demand, compete with product from global production areas, and ensure a fair economic return for Florida fresh citrus growers and handlers.

Two corrections to the proposed regulatory language were offered by a witness testifying from the UF Citrus Breeding Program. These corrections include: Correcting the Latin binomial for pummelo from “Citrus grandis” to “Citrus maxima Merr,” as listed in the Notice of Hearing; and, correcting the spelling of the previously listed “Poncirus trifoliate” to read “Poncirus trifoliata.” These corrections have been accepted and are incorporated into the revised definition of § 905.4, Fruit, below.

No testimony opposing the proposed amendment was given at the hearing. For the reasons stated above, it is recommended that §§ 905.4, Fruit, and 905.5, Variety, be amended to update terminology and authorize regulation of additional varieties and hybrids of citrus as proposed and corrected.

A conforming change is needed in the title of 7 CFR part 905. It is proposed to be revised to “ORANGES, GRAPEFRUIT, TANGERINES, AND PUMMELOS GROWN IN FLORIDA” to reflect the proposed addition of pummelos as a regulated fruit and the inclusion of tangelos as a regulated hybrid variety.

Section 905.9, the definition of “handle or ship,” should be amended to authorize regulation of fresh Florida citrus handled and shipped within the production area. This section should be further modified to state that any regulations or requirements implemented as a result of this new authority would not conflict with Florida state statutes or regulations in effect thereunder.

The order currently regulates the grade and size of fresh Florida citrus handled and shipped to points outside of the production area, including exports, but does not regulate shipments within the state of Florida. Fresh citrus fruit handled and shipped within the state are currently regulated by the Florida Citrus Commission under the Florida Department of Citrus rules, Chapter 20.

Witnesses explained that adding authority for intrastate shipments under the Federal marketing order would create one comprehensive program for regulating fresh Florida citrus in the event that the Florida state program were to stop regulating fresh citrus shipments. Witnesses further explained that this additional authority is being proposed as a precautionary measure and that the industry does not intend to implement this new authority while the Florida state program is in effect.

According to the record, the Committee spent approximately one and a half years thoroughly reviewing and considering this proposal. This proposal has been discussed by industry organizations and with two members of the Florida Citrus Commission, the group that oversees all Florida state citrus regulation. Witnesses stated that the proposal has industry support and, by design, would not conflict with state regulations.

According to the record, all witnesses who included remarks in their testimony about this proposal supported it as a precautionary measure for future use in the event that the State program no longer regulated fresh citrus shipments. Witnesses testifying in support of this proposal included individuals that serve or work closely with Florida state citrus regulatory programs. These witnesses stated that the Florida Citrus Commission is aware of this proposal and does not oppose it.

Witnesses also explained that the proposal to allow for different handling regulations for different market destinations under the order, further discussed in Material Issue 8, complemented the industry's effort to streamline regulation within Florida's fresh citrus industry. According to the record, the two proposals would result in a coordination of regulation under the Federal and State programs, and would provide an added authority under the order to regulate fresh shipments in the state of Florida in the event that the Florida Citrus Commission stopped regulating them. These proposals would streamline handling operations under both programs and would provide continuity in regulation.

No testimony or evidence opposing this proposal was provided at the hearing. For the reasons stated above, it is recommended that § 905.9, the definition of “handle or ship,” be amended to authorize regulation of fresh Florida citrus handled and shipped within the production area.

Section 905.14, Redistricting, should be amended to revise the process for redistricting the production area. This amendment would provide flexibility within the order allowing for the redefining of grower districts within the production area when warranted by relevant factors.

Under the order, the Committee is authorized to consider redistricting every five years. Any recommendation to redistrict must include an analysis of the following factors: (1) The volume of fruit shipped from each district; (2) the volume of fruit produced in each district; (3) the total number of acres of citrus grown in each district; and (4) other relevant factors. The order further requires that any redistricting must retain a minimum of eight, but no more than nine, grower membership positions on the Committee.

According to the record, the proposed amendment would modify three of the four factors used in assessing the need to change district boundaries and remove time restrictions, thereby increasing flexibility. Specifically, the amendment would change the assessment of total volume of fruit shipped from each district to the number of bearing trees in each district. It would also change the assessment of total volume of fruit produced in each district to the total volume of fresh fruit produced in each district. Finally, the consideration of total number of acres in each district would change to total number of bearing trees per district. The last remaining factor currently included in the order—other relevant factors when conditions warrant—would not be changed.

The proposed amendment would also remove the restriction on redistricting any more frequently than every five years. If implemented, the proposed modification to the order would allow for redistricting as needed when the above factors indicate that a change in district boundaries would be beneficial.

Witnesses explained that, due to the major declines in bearing tree numbers, production, and fresh shipments the Florida citrus industry has experienced over the past decade, this proposal would allow the Committee to determine the need for changes in grower districts on a timely basis using information that more accurately represents production trends within the fresh citrus industry.

For example, given the increased loss of trees per acre due to disease and natural disasters, the current guideline for calculating grower districts using acreage is no longer applicable. According to the record, when calculating production capacity within a county or grower district, the new industry standard is to consider bearing trees, not acreage. Due to heavy tree losses within producing groves, acreage is not a reliable indicator of production. Record evidence indicates that many groves have anywhere from 10 percent to as much as or more than 50 percent of their grove acreage with non-bearing trees or no trees at all. Therefore, acreage count as an indicator of production can be misleading. For this reason, the Committee is recommending the usage of bearing trees per district rather than acreage per district.

Witnesses also explained that the Florida Agricultural Statistical Service conducts a tree census every other year. With this information, the Committee would have accurate and timely information on bearing trees, by variety and county, to utilize in their redistricting evaluations.

Witnesses stated that the importance of identifying and assessing the volume of fresh production per district is paramount to understanding trends within the fresh segment of the Florida citrus industry. According to record evidence, the Florida citrus industry utilizes 90 percent or more of its annual crop to produce processed products. Witnesses explained it is important to identify where the remaining 10 percent of fresh citrus is being produced and handled so that the Committee can assign Committee representation or re-designate districts based on the true distribution of fresh citrus production.

Witnesses explained that calculating the volume of fresh citrus produced per district can be accomplished by identifying the number of fresh citrus variety trees in each district and multiplying that number by the average yield per tree of those varieties. Witnesses identified “fresh citrus varieties” as those varieties that return to the grower an on-tree value that exceeds the cost of production. These varieties currently would include Navel oranges, red and white grapefruit, specialty citrus varieties, Fall-Glo tangerines, Sunburst tangerines, tangelos, and Honey tangerines.

Finally, witnesses stated that the proposed amendments would allow the Committee the flexibility to adjust grower districts to reflect shifts in the production of fresh varieties and fresh volume of Florida citrus. Given industry concerns over the continued loss of trees and reduction in fresh volume, the Committee's ability to react to such changes in a timely manner is important to administer the marketing order program effectively.

No testimony opposing this proposal was presented at the hearing. For the reasons stated above, it is recommended that § 905.14, Redistricting, be amended to revise the process for redistricting the production area. This amendment would provide flexibility within the order to allow for the redefining of grower districts within the production area when relevant factors warrant redistricting.

Section 905.20, Term of office, should be amended to change the term of office of Committee members from one to two years, and change the tenure limits for Committee members from three to four years. This proposed change would provide more continuity in the administration of the order and would result in cost savings and efficiencies from fewer elections.

The order currently limits the term of office for Committee members and alternate members to one year, with the number of consecutive terms, or tenure, that a member or alternate can serve in their position limited to three terms. Therefore, the longest a Committee member can serve before being required to take a break in service is three years. The proposed amendment would lengthen this time to a total of four years, or a limit of two consecutive two-year terms.

Witnesses explained that the current requirements under the order disrupt the administration of the order. Each year nominations and new selections occur. The annual nomination process not only disrupts the work of the Committee, but it also requires time and resources from handlers and growers to participate in nominations and from the Committee to conduct them. Witnesses stated that changing the nomination process to a bi-annual occurrence would allow Committee members to work for two years without interruption, which would also reduce costs associated with conducting and participating in nominations. The overall effect would be an increase in administrative efficiencies and stability.

Regarding the need for increased continuity in leadership, witnesses explained that the production of fresh Florida citrus is rapidly changing. According to the record, in the last 10 seasons the fresh citrus industry has experienced production declines of 50 percent and shipment declines of 40 percent. Witnesses stated that it will be important to have continuity in leadership and representation as the industry addresses the issues of disease and development of new, consumer-friendly citrus varieties to bolster production and market demand.

No testimony opposing this proposal was provided at the hearing. For the reasons stated above, it is recommended that § 905.20, Term of office, be amended to change the term of office of Committee members from one to two years, and change the tenure limit for Committee members from three to four years. This proposed change would provide more continuity in the administration of the order and would result in cost savings and efficiencies with fewer nomination meetings to conduct.

Section 905.22, Nominations, should be amended to authorize the use of mail ballots in conducting Committee membership nominations. In addition, this section should be amended to provide that the nomination process occur in the month of June to allow ample time for the distribution and collection of mail ballots.

The order currently does not allow for voting by mail during the nomination process; all votes must be cast in person or, in the case of handlers, by proxy, at annual nomination meetings. For grower nominations, meetings are held at set locations within each of the three grower districts. Growers are entitled to one vote for each nominee in each of the districts in which he or she is a producer. Shipper nominations are held at the Florida Department of Citrus headquarters. Shippers may vote by proxy, and each shipper's vote is weighted by the volume of fruit handled by them during the then current fiscal period. The nomination process occurs in the month of July.

If implemented, this amendment would simplify the nomination and voting process and would increase industry participation, specifically grower participation. This amendment would also make the nomination process more efficient and economical by eliminating the Committee's expenses associated with holding a nomination meeting. Lastly, this change would reduce financial and other burdens currently required of growers commuting to vote.

Witnesses stated that the current process can limit grower participation due to time and travel requirements to attend nominating meetings. Given that the state of Florida production area is divided into three grower districts, each of these districts covers a large geographic area.

According to witnesses, the burdens of commuting to a nomination meeting have led to poor voter turnout. A considerable number of growers do not live within an easily commutable radius of the nomination meeting locations. Time spent commuting to nomination meetings can be costly in terms of lost wages, time spent away from the workplace, and fuel costs for travel to and from the nomination meetings.

The Committee anticipates that this change will foster increased participation. By allowing voting by mail or other means, participation should increase, and the level of diversity among the members involved in the nomination process may increase as well. According to the record, the Committee believes that it will realize cost savings from conducting the nominations of members and alternate members by mail or other means. As presented earlier, this measure is coupled with the proposal to extend the term of office from a one-year term to a two-year term, which would decrease administrative and travel costs associated with nomination meetings. However, if there is any cost increase, it would be outweighed by the benefit of increased participation and involvement.

The Committee further proposed that the nomination process take place in the month of June in order to allow extra time for the mailing and receipt of mail ballots. The expense of mailing the ballots would be outweighed by the savings in travel and time-related costs of industry members no longer needing to travel to nomination meetings.

No testimony opposing the proposed amendment was given at the hearing. For the reasons stated above, it is recommended that § 905.22, Nominations, be amended to authorize the use of mail ballots in conducting Committee membership nominations and to conduct nominations in June.

Section 905.42, Handler's accounts, should be amended to authorize the Committee to increase the capacity of its financial reserve funds from approximately six months of a fiscal period's expenses to approximately two years' fiscal periods' expenses.

The order currently provides authority to hold in reserve funds equal to approximately one-half of one fiscal period's expenses. According to witnesses, this limits the Committee's flexibility to develop and implement projects requiring advertising, promotion or research without raising the assessment rate during the season. The proposed amendment would allow the Committee to increase their reserves up to two fiscal periods' expenses. The larger reserve fund would provide greater flexibility in the administration of the marketing order program and promote assessment rate stability.

Assessment revenue funds the Committee's administrative, research, and promotion activities. As production has declined over time, the Committee has had to either increase the assessment rate to generate more revenue, or rely on its reserves to fund some of its activities. This has caused the assessment rate to fluctuate substantially over time. The Committee's proposal to raise the reserve cap to two fiscal periods' expenses would reduce assessment rate fluctuation and make more funds available for the Committee to use in fiscal years when assessment revenue isn't sufficient to cover expenses.

According to the record, the Committee's fiscal year begins on August 1 and ends on July 31 of the following year. The shipping season for Florida fresh citrus begins in September and lasts about eight months, with approximately 87 percent of the volume being shipped in six months. The volume of regulated fresh citrus declined 17 percent in the last five seasons, and 41 percent in the last decade. Committee data indicates that 2013-2014 fresh shipments from Florida are projected to decrease another 10 percent from last season. Moreover, the 2013-2014 crop year projection of fresh shipments of 13.2 million boxes will be the lowest since the 1919-1920 season.

Witnesses explained that the Committee has tried to avoid assessment increases each year, and would rather establish an assessment rate that would fully fund its operations and build its reserves to handle the fluctuations in fresh shipments. However, with the current assessment rate and reserve threshold combination, reserves are being drawn down faster than they are being replenished year-over-year. Without raising the cap on reserves, witnesses stated that it will become increasingly difficult for the Committee to avoid annual increases in the assessment rate.

Witnesses testifying in favor of this proposal stated that raising the assessment rate to a level that would properly fund the Committee's operations and simultaneously build ample reserves to handle production fluctuations can only be achieved by increasing the amount of reserves the Committee is allowed to carry over from one fiscal year to the next.

According to the record, the Committee did consider a proposal that would increase the reserve threshold from one half year to one fiscal period's expenses. However, this option was ultimately rejected because current fluctuations in regulated shipments indicate that the Committee's reserve needs are greater than one year's annual expenses. Witnesses explained that it has been the Committee's practice to hold excess assessments during the past few fiscal years to ensure that there would be ample reserves to fully fund their operations.

Witnesses further stated that the proposal to increase the reserve threshold to two fiscal periods' worth of Committee expenses is essential to the Committee's financial stability moving forward, until fluctuations in production can be remedied through the development of disease-resistant citrus and new plantings of varieties with the characteristics desired by consumers of fresh Florida citrus.

Lastly, if the proposed amendment to increase the reserve fund were approved, witnesses stated that the Committee should begin building the reserves immediately.

No testimony opposing the proposed amendment was presented at the hearing. For the reasons stated above, it is recommended that Section 905.42, Handler's accounts, be amended to authorize the Committee to increase the capacity of its financial reserve funds from approximately six months of a fiscal period's expenses to approximately two fiscal periods' expenses.

Section 905.52, Issuance of regulations, should be amended to authorize pack and container requirements for domestic shipments and authorize different regulations for different markets. Additionally, in the event that the State of Florida opted to no longer regulate intrastate fresh citrus shipments, this amendment would also allow for such shipments to be regulated under the Federal marketing order.

The order currently regulates the size, capacity, weight, dimensions, marking, or pack of containers used for fresh citrus export shipments, provided that the container is not prohibited under Chapter 601 of the Florida Statutes. The Committee recommends that the order be amended to allow for the establishment of such regulation for both export and interstate shipments, and that these requirements may be different for different market destinations. By adding this authority, the Committee could recognize and meet the differing demands of customers and consumers domestically and abroad. Witnesses explained that having the flexibility to meet differing demands is important in maintaining current markets and creating new markets for any new varieties developed in the future.

The regulation of pack and containers for intrastate shipments falls under the authorities outlined in Chapter 20 of the Florida statutes. Changes to these regulations are developed by the Florida fresh citrus industry and presented to the Florida Citrus Commission for their approval. The Florida Citrus Commission oversees state regulation for both the fresh and processed segments of the state's citrus industry.

According to the record, intrastate markets have been recognized by the Florida citrus industry as being unique from the interstate and export markets in that much of the in-state fruit is sold locally by fruit stands and gift-fruit shippers. Typically, this fruit is sold in bins and ten-box containers so that the consumer may choose their own fruit. This is different from interstate or export shipments, which are typically packed and sold in cartons or bags. Intrastate shipments of fresh Florida citrus represent roughly six percent of the industry's total fresh shipments.

The Committee recommends amending the order to provide authority to regulate intrastate shipments of fresh citrus in the event that the State of Florida ceases to regulate them. This amendment would allow for orderly marketing of fresh citrus to continue if state regulations were no longer in effect. Witnesses explained that this amendment was proposed as a precautionary measure and that the Committee's recommendation had been discussed openly with the Florida Citrus Commission. No opposition was expressed.

USDA recommends modifying the proposed amendatory text published in the Notice of Hearing. USDA's modifications simplify the proposed amendatory text to more clearly state the intent of the Committee's recommendation and that which was supported by witness testimony. The modified language is included here below.

No testimony opposing the proposed amendment was given at the hearing. For the reasons stated above, it is recommended that § 905.52, Issuance of regulations, be amended to: Authorize different regulations for different market destinations; allow for the regulation of pack and container requirements for interstate shipments; and, in the absence of state regulation, allow for the establishment of requirements for intrastate shipments. Any regulation implemented under this authority would not conflict with Florida state statutes or regulation in effect thereunder.

Section 905.28, Qualifications and acceptance, should be modified to allow the Committee nominee acceptance statement and the background statement to be combined into one form.

The order currently requires each member and alternate to complete an acceptance letter in addition to the background statement when nominated to serve on the Committee.

This proposal would combine the separate acceptance and background statements into one form. Nominees agreeing to serve on the Committee would complete a background statement that would also include a statement of acceptance. If implemented, this proposal would reduce paperwork associated with the nomination process and result in time savings for nominees filling out the forms.

No testimony opposing the proposed amendment was given at the hearing. For the reasons stated above, it is recommended that § 905.28, Qualifications and acceptance, be amended to allow the acceptance statement and the background statement to be combined into one form.

Section 905.7, Handler, should be amended to require handlers to register with the Committee. This amendment would require handlers who intend to handle fresh citrus to provide the Committee with their contact information at the beginning of each crop year. This would assist in administering the compliance provisions of the order.

The order does not currently require handlers to register with the Committee. At the beginning of each crop year, the Committee receives a manifest of handlers who are handling fresh citrus from the state Department of Agriculture and Consumer Service. The information is gathered by the state of Florida through the state's dealer license requirements and through product inspection and certification. The Committee then uses this manifest for compliance purposes and to generate their assessment billings.

According to the record, the State of Florida Department of Citrus, Chapter 601, Florida Statutes, Florida Citrus Code 601.4, requires each packing house or handler that prepares Florida citrus for the fresh market in Florida to register annually with the Florida Department of Agriculture through the Division of Fruit and Vegetables (Division). In addition, Section 601.56, Florida Statutes, also referred to as the Florida Citrus Code, requires Florida citrus handlers to be approved by the Department of Citrus for a citrus fruit dealer's license.

Under the order, § 905.53, Inspection and certification, requires each lot of fresh citrus handled to be inspected by the Division. The Division certifies that the lot of fruit meets all applicable minimum grade and size requirements of the order. The Committee contracts annually with the Division to furnish the Committee, by month, information on each handler's regulated shipments, both interstate and export. This information allows the Committee to calculate each handler's assessment, as well as monitor compliance with grade and size regulation of fresh Florida citrus shipments.

Witnesses explained that while the Committee has not experienced major compliance issues in the past, adding authority for it to require handler registration would provide the Committee with a timely and accurate list of handlers who intend to handle fresh citrus each crop year. Witnesses further explained that in the event the Florida state program were to stop regulating fresh citrus shipments the Committee would be able to gather necessary information through a handler registration requirement to continue monitoring handler compliance under the program.

According to the record, the Committee monitors compliance (for both adherence to the order's grade and size requirements and assessment payments) through provisions of both its compliance and internal controls plans. There are procedures in both to ensure that handlers are fully informed of any violations and are given time to take corrective actions.

Witnesses explained that, in the very limited cases of minimum grade and size regulation violations, the majority of the reported violations involved less than a full pallet of fruit each, which would be equivalent to 54 cartons of citrus. Furthermore, most of the violations have been clerical errors made by the handlers' shipping departments. In the last few seasons, with most shippers using bar coding systems for loading trucks or containers, these violations have almost been eliminated. The Committee has not experienced many late or uncollectible assessments. Nonetheless, witnesses advocated the need to implement a handler registration requirement. This authority would provide the Committee with a timely and accurate list of handlers handling fresh citrus each crop year for the purposes of compliance and communication.

Witnesses explained that, if the amendment was approved, the Committee would have the authority to develop a handler registration form along with other guidelines to implement the collection of information. The handler registration form would likely require contact information along with other pertinent information deemed necessary for the operation of the order. Completed handler registration forms would provide accurate contact information that would improve the effectiveness of communications between handlers and the Committee, and assist in administering the compliance provisions of the order. Other than the time required to complete the registration form, witnesses stated that this proposal would not require handlers to bear any additional costs. Witnesses also stated that this proposal is not controversial and has support within the industry.

No testimony opposing the proposed amendment was given at the hearing. For the reasons stated above, it is recommended that § 905.7, Handler, be amended to require handler registration.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Marketing orders and amendments thereto are unique in that they are normally brought about through group action of essentially small entities for their own benefit.

According to the 2007 US Census of Agriculture, the number of citrus growers in Florida was 6,061. According to the National Agriculture Statistic Service (NASS) Citrus Fruit Report, published September 19, 2012, the total number of acres used in citrus production in Florida was 495,100 for the 2011/12 season. Based on the number of citrus growers from the US Census of Agriculture and the total acres used for citrus production from NASS, the average citrus farm size is 81.7 acres. NASS also reported the total value of production for Florida citrus at $1,804,484,000. Taking the total value of production for Florida citrus and dividing it by the total number of acres used for citrus production provides a return per acre of $3,644.69. A small grower as defined by the Small Business Administration (SBA) (13 CFR 121.201) is one that grosses less than $750,000 annually. Multiplying the return per acre of $3,644.69 by the average citrus farm size of 81.7 acres, yields an average return of $297,720.51. Therefore, a majority of Florida citrus producers are considered small entities under SBA's standards.

According to the industry, there were 44 handlers for the 2011/12 season, down 25 percent from the 2002/03 season. A small agricultural service firm as defined by the SBA is one that grosses less than $7,000,000 annually. Twenty one handlers would be considered a small entity under SBA's standards. A majority of handlers are considered large entities under SBA's standards.

The production area regulated under the order covers the portion of the state of Florida which is bound by the Suwannee River, the Georgia Border, the Atlantic Ocean, and the Gulf of Mexico. Acreage devoted to citrus production in the regulated area has declined in recent years.

According to data presented at the hearing, bearing acreage for oranges reached a high of 605,000 acres during the 2000/01 crop year. Since then, bearing acreage for oranges has decreased 28 percent. For grapefruit, bearing acreage reached a high of 107,800 acres during the 2000/01 crop year. Since the 2000/01 crop year, bearing acreage for grapefruit has decreased 58 percent. For tangelos, bearing acreage reached a high for the 2000/01 crop year of 10,800 acres for Florida. Since the 2000/01 crop year, bearing acreage for tangelos has decreased 62 percent. For tangerines and mandarins, bearing acreage reached a high for the 2000/01 crop year of 25,500 acres. Since the 2000/01 crop year, bearing acreage for tangerines and mandarins has decreased 53 percent.

According to data presented at the hearing, the total utilized production for oranges reached a high during the 2003/04 crop year of 242 million boxes. Since the 2000/01 crop year, total utilized production for oranges has decreased 34 percent. For grapefruit, the total utilized production reached a high during the 2001/02 crop year of 46.7 million boxes. Since the 2000/01 crop year, total utilized production for grapefruit has decreased 59 percent. For tangelos, the total utilized production reached a high during the 2002/03 crop year of 2.4 million boxes. Since the 2000/01 crop year, total utilized production for tangelos has decreased 45 percent. For tangerines and mandarins, the total utilized production reached a high during the 2001/02 crop year of 6.6 million boxes. Since the 2000/01 crop year, total utilized production for tangerines and mandarins has decreased 23 percent.

During the hearing held on April 24, 2013, interested persons were invited to present evidence at the hearing on the probable regulatory and informational impact of the proposed amendments to the order on small businesses. The evidence presented at the hearing shows that none of the proposed amendments would have any burdensome effects on small agricultural producers or firms.

The proposal described in Material Issue 1 would amend the definitions of “fruit” and “variety” in § 905.4 and § 905.5 to update terminology and authorize regulation of additional varieties and hybrids of citrus.

Currently, the New Varieties Development and Management Corporations, a non-profit research organization, is actively working to identify, acquire and sub-license promising citrus varieties and hybrids for the Florida citrus grower. In order to regulate these new varieties and hybrids, the definitions of fruit and variety must be amended so that these new varieties and hybrids can be regulated under the order.

Witnesses supported this proposal and stated that Florida growers have invested heavily and steadily in the development of new citrus varieties to meet changing demand and consumer preferences. Witnesses stated that it is imperative that the order be amended to keep pace with a rapidly changing industry and maximize its relevance and utility to the industry. No significant impact on small business entities is anticipated from this proposed change.

The proposal described in Material Issue 2 would amend the definition of “handle or ship” in § 905.9 to authorize regulation of intrastate shipments.

Currently, the Florida Citrus Commission, under the Florida Department of Citrus Rules Chapter 20, regulates the grade and size of intrastate shipments, while the Federal order regulates all interstate shipments and exports of fresh citrus. If the proposed amendment were implemented, authority to regulate intrastate shipments would be added to the Federal order. This amendment would allow for the eventual regulation of all fresh citrus shipments under the order if intrastate shipments were no longer regulated by the Florida Department of Citrus.

Witnesses explained that adding the authority to regulate intrastate shipments to the order would be a precautionary measure. If the Florida Department of Citrus were to stop regulating fresh citrus shipments, having the authority to do so under the Federal order would facilitate a streamlined transition of regulation from one program to the other. Such a transition would benefit growers and handlers as shipments of fresh citrus could continue without interruption.

Witnesses anticipated that handlers would incur little to no additional costs as a result of the proposed amendment. As currently proposed, the amendment would simply add an authority to the order. This authority would not be implemented unless warranted by other factors. If implemented, handlers of intrastate fresh citrus shipments would be subject to assessments under the order. However, the Florida Department of Citrus already collects assessments on intrastate shipments. Therefore, the cost of assessments collected on intrastate shipments, whether under the State or Federal program, would continue. In conclusion, it is determined that the benefits of adding the authority to regulate intrastate shipments of fresh citrus to the order would outweigh any costs.

The proposal described in Material Issue 3 would amend § 905.14 to revise the process for redistricting the production area.

The proposed amendment would grant flexibility to the Committee in redefining grower districts within the production area when the criteria and relevant factors within the production area warrant redistricting. Disease and natural disasters over the past decade have significantly affected bearing acreage. The proposed amendment would allow the Committee at any time, subject to the approval of the Secretary, to base their determination of grower districts on the number of bearing trees, volume of fresh fruit, total number of citrus acres, and other relevant factors when conditions warrant redistricting.

According to a witness, the proposed amendment would give the Committee, in future seasons, the flexibility to adjust grower districts to reflect the shift in production of fresh varieties and fresh volume. In addition, the Committee would be able to adjust grower districts based on the number of trees lost to disease and natural disasters. Thus, it is not expected that this proposal would result in any additional costs to growers or handlers.

The proposal described in Material Issue 4 would amend § 905.20 to change the term of office of Committee members from one to two years, and change the tenure limits for Committee members from three to four years.

According to a witness, a two-year term would allow for biennial nomination meetings, which would provide administrative efficiencies and stability. The current one-year term of office is administratively inefficient and requires additional Committee resources. Moreover, limiting terms to one year results in an annual effort to nominate and appoint new members. This process is costly to the Committee and requires time and resources for industry members to participate. A two-year term would reduce these costs. For the reasons described above, it is determined that the proposed amendment would benefit industry participants and improve administration of the order. The costs of implementing this proposal would be minimal, if any.

The proposal described in Material Issue 5 would amend § 905.22 to authorize mail balloting procedures for Committee membership nominations. Nomination meetings have low participation rates due to time, travel, and administrative costs.

The proposed amendment would allow the Committee to conduct the nomination and/or election of members and alternates by mail or other means according to the rules and regulations recommended by the Committee and approved by the Secretary. Currently, the Committee holds grower nomination meetings in each of the three grower districts and one shipper nomination meeting annually. Witnesses indicated that attending these meetings is costly due to travel expenses and time away from their growing or handling operations. While the proposed amendment would result in some increased expenses for printing and mailing of ballot materials, witnesses indicated that the potential savings to growers and handlers far exceed those costs.

Moreover, witnesses indicated that the additional benefit of increased participation in the nomination process as a result of materials being sent to all interested parties would outweigh the costs of conducting nominations by mail. This would be particularly true in the case of small business entities that have fewer resources and relatively less flexibility in managing their businesses compared to larger businesses. For these reasons, it is determined that the cost savings, increased participation, and other benefits gained from conducting nomination meetings via mail would outweigh the potential costs of implementing this proposal.

The proposal described in Material Issue 6 would amend § 905.42 to authorize the Committee to increase the capacity of its financial reserve funds from approximately six months of a fiscal period's expenses to approximately two fiscal periods' expenses. Such reserve funds could be used to cover any expenses authorized by the Committee or to cover necessary liquidation expenses if the order is terminated.

The proposed amendment would allow the Committee to increase their reserves up to two fiscal periods' expenses. Currently, reserves are capped at approximately one half of one year's expenses. Witnesses explained that the current cap on reserves is too restrictive and could limit the Committee's ability to develop and implement projects requiring advertising, promotion or research without raising the assessment rate during the season.

As discussed earlier in this recommended decision, witnesses considered the need to develop and promote new hybrid varieties and markets to be essential to reviving the health of the fresh citrus sector. According to them, not increasing the reserve cap would inhibit the Committee's ability to address these needs.

Also, without the proposed amendment it would become more difficult for the Committee to avoid assessment rate increases annually or during a season. According to the record, the proposed amendment would also provide greater stability in the administration of the order's assessment rate. Under the current reserve limit, the Committee would need to increase the assessment rate mid-season if the need for additional revenues for research or promotion activities occurs after the assessment rate and budget are finalized. Increasing the assessment rate mid-season confuses industry members and creates additional burdens in administering the order.

For the reasons discussed above, it is determined that the benefits of increasing the maximum level of funds that can be held in the financial reserves would outweigh the costs.

The proposal described in Material Issue 7 would amend § 905.52 to: Authorize different regulations for different market destinations; allow for the regulation of pack and container requirements for interstate shipments; and, in the absence of state regulation, allow for the establishment of requirements for intrastate shipments.

This would allow shippers to meet varying customer demands in different market destinations. In addition, the proposed amendment would allow regulation and orderly marketing to continue for intrastate shipments if Florida State fresh citrus regulations were discontinued. This authority will not be implemented unless state regulations were no longer in effect.

The proposed amendment to regulate containers and establish quality standards for the production area would not have any adverse effects on small businesses if approved. Continued orderly marketing of fresh citrus shipments within the State of Florida would equally benefit all segments of the industry and consumers by maintaining quality standards and consistency.

The proposal described in Material Issue 8 would Amend § 905.28 to eliminate the use of separate acceptance statements in the nomination process. Currently, nominees complete both background and acceptance statements when they are nominated. The elimination of the acceptance statement would reduce paperwork and administrative costs. Therefore, it is determined that the proposed amendment would benefit both large and small-scale fresh citrus businesses, and would reduce costs and improve the administration of the order.

The proposal described in Material Issue 9 would Amend § 905.7 to require handlers to register with the Committee. Currently, the Florida Department of Agriculture and Consumer Services, Division of Fruit and Vegetables has a registration program for handlers of Florida citrus. The Committee contracts annually with the Division to obtain information on each handler's regulated shipments, both interstate and export, on a monthly basis.

A handler registration form would serve as an efficient means for obtaining handler information that would improve communication between the Committee and handlers. It would also assist the Committee in monitoring and enforcing compliance. If a handler were to not comply with regulations in effect under the order, the Committee would have that handler's contact information on file to begin the compliance enforcement process. Moreover, if a handler failed to respond to compliance enforcement requests, the Committee could revoke a handler's registration. Without the registration, a handler would not be able to ship citrus subject to order regulation.

Witnesses stated that while a handler registration program may result in additional administrative costs, the benefits of this proposed amendment would outweigh those costs. Also, the proposal would not disproportionately disadvantage small-sized businesses as all handlers, regardless of size, would be required to register with the Committee. Furthermore, the new requirement would not result in a direct cost to handlers as the cost of administering a handler registration program would be borne by the Committee.

For these reasons, it is determined that the benefits of requiring handlers to register with the Committee would be greater than the costs.

Interested persons were invited to present evidence at the hearing on the probable regulatory and informational impact of the proposed amendments to the order on small entities. The record evidence indicates that implementation of the proposals to authorize regulation of new varieties and hybrids of citrus fruit; authorize the regulation of intrastate shipments of fruit; revise the process for redistricting the production area; change the term of office and tenure requirements for Committee members; authorize mail balloting procedures for Committee membership nominations; increase the capacity of financial reserve funds; authorize pack and container requirements for intrastate shipments and authorize different regulations for different markets; eliminate the use of separate acceptance statements in the nomination process; and, require handlers to register with the Committee would improve the operation of the order and are not anticipated to impact small businesses disproportionately.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. These amendments are intended to improve the operation and administration of the order and to assist in the marketing of fresh Florida citrus.

Committee meetings regarding these proposals, as well as the hearing date and location, were widely publicized throughout the Florida citrus industry, and all interested persons were invited to attend the meetings and the hearing to participate in Committee deliberations on all issues. All Committee meetings and the hearing were public forums and all entities, both large and small, were able to express views on these issues. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Current information collection requirements for Part 905 are approved by the Office of Management and Budget (OMB), under OMB Number 0581-0189—“Generic OMB Fruit Crops.” In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the termination of the Letter of Acceptance has been submitted to the Office of Management and Budget (OMB) for approval. The Letter of Acceptance has no time or cost burden associated with it due to the fact that handlers simply sign the form upon accepting nomination to the Committee. As a result, the current number of hours associated with OMB No. 0581-0189, Generic Fruit Crops, would remain the same: 7,786.71 hours.

No other changes in these requirements are anticipated as a result of this proceeding. Should any such changes become necessary, they would be submitted to OMB for approval.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

The amendments to the order proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. If adopted, the proposed amendments would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this proposal.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of entry of the ruling.

Briefs, proposed findings and conclusions, and the evidence in the record were considered in making the findings and conclusions set forth in this recommended decision. To the extent that the suggested findings and conclusions filed by interested persons are inconsistent with the findings and conclusions of this recommended decision, the requests to make such findings or to reach such conclusions are denied.

The findings hereinafter set forth are supplementary to the findings and determinations which were previously made in connection with the issuance of the marketing agreement and order; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.

(1) The marketing order, as amended, and as hereby proposed to be further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act;

(2) The marketing order, as amended, and as hereby proposed to be further amended, regulates the handling of fresh citrus grown in the production area (Florida) in the same manner as, and is applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing order upon which a hearing has been held;

(3) The marketing order, as amended, and as hereby proposed to be further amended, is limited in its application to the smallest regional production area which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;

(4) The marketing order, as amended, and as hereby proposed to be further amended, prescribes, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of fresh citrus grown in the production area; and

(5) All handling of fresh citrus grown in the production area as defined in the marketing order is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

A 30-day comment period is provided to allow interested persons to respond to this proposal. Thirty days is deemed appropriate because these proposed changes have already been widely publicized and the Committee and industry would like to avail themselves of the opportunity to implement the changes as soon as possible. All written exceptions received within the comment period will be considered and a grower referendum will be conducted before any of these proposals are implemented.

For the reasons set out in the preamble, 7 CFR part 905 is proposed to be amended as follows:

This proposal is issued under Marketing Order No. 925, as amended (7 CFR part 925), regulating the handling of grapes grown in a designated area of southeastern California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

This proposed rule is also issued under section 8e of the Act, which provides that whenever certain specified commodities, including table grapes, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for the domestically produced commodities.

The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.

This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.

This proposed rule would partially relax the one-quarter pound minimum bunch size requirement in the order's regulations and the import regulation for all U.S. No. 1 Table grade grapes packed in clamshell consumer packages weighing 5 pounds or less. Under the revision, up to 20 percent of the weight of such containers could consist of single grape clusters weighing less than one-quarter pound but consisting of at least five berries each. This proposed rule would provide California desert grape handlers and importers with the flexibility to respond to an ongoing marketing opportunity. The committee met on November 5, 2013, and conducted an electronic vote on April 8, 2014, to unanimously recommend the partial relaxation for California desert grapes. The change in the import regulation is required under section 8e of the Act.

Section 925.52(a)(1) of the order provides authority to regulate the handling of any grade, size, quality, maturity, or pack of any and all varieties of grapes during the season. Section 925.53 provides authority for the committee to recommend to USDA changes to regulations issued pursuant to § 925.52. Section 925.55 specifies that when grapes are regulated pursuant to § 925.52, such grapes must be inspected by the Federal or Federal-State Inspection Service (FSIS) to ensure they meet applicable requirements.

Section 925.304(a) of the order's rules and regulations requires grapes to meet the minimum grade and size requirements of U.S. No 1 Table; or to meet all the requirements of U.S. No. 1 Institutional, except that a tolerance of 33 percent is provided for off-size bunches. The requirements for the U.S. No. 1 Table and U.S. No. 1 Institutional grades are set forth in the United States Standards for Grades of Table Grapes (European or Vinifera Type) (7 CFR 51.880 through 51.914) (Standards). To meet the requirements of U.S. No. 1 Table grade, grapes must have a bunch size of at least one-quarter pound.

In 2010, the order's regulations were relaxed with respect to the bunch size requirement specified in the Standards (75 FR 17031). This change permitted the use of bunch sizes smaller than one-quarter pound, but with at least five berries each, in packing consumer clamshell containers containing 2 pounds net weight or less. Not more than 20 percent of the weight of such containers could consist of these smaller bunches. This relaxation was made to allow handlers to take advantage of a new marketing opportunity for grapes packed in small clamshell containers. Prior to the relaxation, handlers were experiencing difficulty filling these containers properly with one-quarter pound bunches; smaller bunches were needed to fill the corners of the square container configuration to achieve the desired weight.

Since the order's regulations were amended in 2010, customers nationwide have been increasingly requesting grapes in larger clamshell containers. Handlers experience difficulty properly filling these larger containers to the desired weights with one-quarter pound bunch sizes, similar to the problem they experienced with the smaller 2-pound clamshell containers. Therefore, the committee recommended that the bunch size requirement in the order's regulations pertaining to U.S. No. 1 Table grade grapes be partially relaxed with respect to containers weighing 5 pounds or less. Under this proposed change, up to 20 percent of the weight of such containers may consist of single grape clusters weighing less than one-quarter pound, but with at least five berries each. This proposal would allow handlers to continue to respond to increased marketing opportunities. Section 925.304 (a) would be revised accordingly.

Under section 8e of the Act, minimum grade, size, quality, and maturity requirements for table grapes imported into the United States are established under Table Grape Import Regulation 4 (7 CFR 944.503) (import regulation). A relaxation in the California Desert Grape Regulation 6 minimum bunch size requirement would require a corresponding relaxation to the minimum bunch size requirement for imported table grapes. Like the domestic industry, this proposed action would allow importers the flexibility to respond to an ongoing marketing opportunity to meet consumer needs. Section 944.503(a)(1) would be revised accordingly.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 15 handlers of southeastern California grapes who are subject to regulation under the marketing order and about 41 grape producers in the production area. In addition, there are about 102 importers of grapes. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000 (13 CFR 121.201). Ten of the 15 handlers subject to regulation have annual grape sales of less than $7,000,000, according to USDA Market News Service and committee data. Based on information from the committee and USDA's Market News Service, it is estimated that at least 10 of the 41 producers have annual receipts of less than $750,000. Thus, it may be concluded that a majority of grape handlers regulated under the order and about ten of the producers could be classified as small entities under the SBA definitions.

Mexico, Chile, and Peru are the major countries that export table grapes to the United States. According to 2013 data from USDA's Foreign Agricultural Service (FAS), shipments of table grapes imported into the United States from Mexico totaled 16,582,989 18-pound lugs, from Chile totaled 47,922,204 18-pound lugs, and from Peru totaled 3,519,448 18-pound lugs. According to FAS data, the value of table grapes imported from Mexico, Chile, and Peru was $332,284,000, $760,952,000, and $80,912,000, respectively, for a total value of $1,174,148,000. It is estimated that the average importer receives $11.5 million in revenue from the sale of table grapes. Based on this information, it may be concluded that the average table grape importer would not be classified as a small entity.

This proposed rule would revise § 925.304(a) of the rules and regulations of the California desert grape order and § 944.503(a)(1) of the table grape import regulation. This proposed rule would partially relax the one-quarter pound minimum bunch size requirement in the order's regulations and the import regulation for U.S. No. 1 Table grade grapes packed in consumer clamshell packages weighing 5 pounds or less. Under the proposed relaxation, up to 20 percent of the weight of each package may consist of single grape clusters weighing less than one-quarter pound, but with at least five berries each. Authority for the proposed change to the California desert grape rules and regulations is provided in §§ 925.52(a)(1) and 925.53. Authority for the change to the table grape import regulation is provided in section 8e of the Act.

There is agreement in the industry for the need to expand the revised minimum bunch size requirement for grapes packed in these consumer clamshell packages to allow for more packaging options.

Regarding the impact of this proposed rule on affected entities, this rule would provide both California desert grape handlers and importers with the flexibility to continue to respond to an ongoing marketing opportunity to meet consumer needs. This marketing opportunity initially existed in the 2009 season, and the minimum bunch size regulations were revised for consumer clamshell packages weighing 2 pounds or less, on a test basis. In 2011, the regulation was revised permanently for consumer clamshell packages weighing 2 pounds or less due to the positive market response. This proposal would expand the revised requirements to include larger consumer clamshell packages weighing 5 pounds or less. Customers have been requesting larger sized clamshell packages, and this proposed action would enable handlers and importers to take advantage of increased market opportunities, which may result in increased shipments of consumer grape packages. This is expected to have a positive impact on producers, handlers, and importers.

No additional alternatives were considered because the 2011 revision produced the desired results, and no problems were identified. The committee believes the partial relaxation of the bunch size requirement for grapes packed in larger consumer clamshell packages was appropriate to prescribe for the 2014 and subsequent seasons.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This rule would not impose any additional reporting or recordkeeping requirements on either small or large grape handlers or importers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the committee's meeting was widely publicized throughout the grape industry, and all interested persons were invited to attend the meeting and participate in committee deliberations. Like all committee meetings, the November 5, 2013 meeting was a public meeting; and all entities, both large and small, were able to express their views on this issue.

Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Jeffrey Smutny at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

A 30-day comment period is provided to allow interested persons to respond to this proposal. Thirty days is deemed appropriate because this rule, if adopted, needs to be in place as soon as possible to allow handlers to take advantage of this relaxation during the regulatory period which begins on April 10, 2015. All written comments timely received will be considered before a final determination is made on this matter.

In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this rule.

For the reasons set forth in the preamble, 7 CFR parts 925 and 944 are proposed to be amended as follows:

On December 18, 2014, the Board published in the Federal Register a proposal to implement risk-based capital surcharges for U.S.-based global systemically important banking organizations.2 The proposed rule stated that the public comment period would close on March 2, 2015.3

The Board has received a comment letter requesting that the Board extend the comment period for the proposal.4 The commenter suggested that an extension of the comment period would facilitate more detailed comments about the implications of the proposal and its potential consequences.

Due to the range and complexity of the issues addressed in the proposed rulemaking, the public comment period has been extended until April 3, 2015. This action will allow interested persons additional time to analyze the proposal and prepare their comments.

Pursuant to authorities under § 705 of the Defense Production Act of 1950 as amended (DPA) (50 U.S.C. app. 2155) and § 104 of Executive Order 13603 of March 16, 2012 (National Defense Resources Preparedness, 77 FR 16651, 3 CFR, 2012 Comp., p. 225), the Bureau of Industry and Security (BIS) conducts studies that assess the capabilities of the U.S. industrial base to support the national defense. To produce these studies, BIS may issue surveys to collect detailed information related to the health and competitiveness of the U.S. industrial base from government sources and private individuals or organizations.

This proposed rule sets forth procedures intended to facilitate the accurate and timely completion of surveys issued by BIS to collect data for these studies. This rule sets forth in a single part of the Code of Federal Regulations the information about BIS's authority to conduct the studies, the authority to issue surveys to gather data in support of the studies, the purpose of the surveys and the manner in which such surveys are developed, the confidential treatment of submitted information, and the penalties for non-compliance with surveys.

Additionally, this rule explains BIS's procedures for verifying that the scope and purpose of the surveys are well defined, and assures that the surveys do not solicit data that duplicates adequate and authoritative data that is available to BIS from any federal or other responsible agency. A survey may require the submission of information similar or identical to information possessed by another federal agency but that is not available to BIS.

Based on requests it receives from U.S. Government agencies, BIS produces studies to develop findings and policy recommendations for the purpose of improving the competitiveness of specific domestic industries and technologies critical to meeting national defense and essential civilian requirements. These studies may require surveys to collect relevant data and assessments of that data and other information available to BIS.

BIS, in cooperation with the requesting agency, selects the persons to be surveyed based on the likelihood that they will have information relevant to a study. That likelihood is related to the person's association with the industry sector, material, product, service or technology that is the subject of the study. That association may be based on factors such as the person's role in directly or indirectly providing, producing, distributing, utilizing, procuring, researching, developing, consulting or advising on, the industry sector, material, product, service or technology that is the subject of the study.

Whether a person's association with the industry sector, material, product, service or technology being assessed is proximate or remote does not determine whether that person's association is sufficient for inclusion in the survey. For example, information about a supplier of raw materials or components that is several transactions removed from the production of the product that is the subject of a study may be relevant to assessing the capabilities of the U.S. industrial base to supply the product to support the national defense. In such a situation, the supplier would be included in the survey. The nature of the person from whom the information is sought also does not determine whether that person's association with the industry sector, material, product, service or technology at issue is sufficient for inclusion in the survey. Surveys may require information from businesses organized for profit, non-profit organizations, academic institutions and government agencies.

To be useful, a study must be comprehensive, accurate and focused on the relevant industry sector, material, product, service or technology. Therefore, surveys may require information about employment, research and development, sources of supply, manufacturing processes, customers, business strategy, finances and other factors affecting the industry's health and competitiveness. To properly focus the survey on the industry sector, material, product, service or technology being assessed, BIS may request information about a corporation as a whole or information about one or more specified units or individual activities of that corporation. The DPA provides both a civil remedy and criminal penalties that may be used when recipients of surveys do not supply the information sought.

BIS deems the information supplied in response to survey requests to be confidential and is prohibited by law from publishing or disclosing such information unless the Under Secretary for Industry and Security determines that withholding the information is contrary to the interest of the national defense. The authority to make this determination, which § 705(d) of the DPA gives to the President, has been delegated to relevant agencies, including the Secretary of Commerce, by § 802 of Executive Order 13603. The Secretary of Commerce re-delegated this authority to the Under Secretary for Industry and Security. The DPA provides criminal penalties for any person who willfully violates its prohibition on publication or disclosure.

This proposed rule would create a new part in Title 15, Chapter VII, Subchapter A of the Code of Federal Regulations to be designated as 15 CFR part 702. This new part would be devoted exclusively to BIS's collection of information under § 705 of the DPA (50 U.S.C. app. 2155). Placing the new part in Subchapter A would promote an orderly and logical regulatory structure because all other regulations implementing BIS authorities related to the DPA are contained in that subchapter.

Section 702.1 would set forth a general description of BIS' authority to collect information needed to complete the surveys. The survey responses assist BIS in determining the capabilities of the industrial base to support the national defense and to develop policy recommendations to improve both the international competitiveness of specific domestic industries and their ability to meet national defense needs.

Section 702.2 would implement the requirement to publish regulations found in § 705 of the DPA (50 U.S.C. app. 2155(a)) by requiring BIS personnel of appropriate competence and authority to ensure that before a survey is sent to any person for completion; (1) the scope and purpose of a survey have been established, (2) the scope and purpose are consistent with BIS's authorities under the DPA, and (3) the data requested by the survey does not duplicate adequate and authoritative data available to BIS from a federal or other authoritative source. A survey may require information that is similar or identical to information possessed by other federal agencies but not available to BIS. The section does not limit the factors that may be considered in deciding whether to conduct a survey nor does it modify or replace the requirements of the Paperwork Reduction Act. In addition, all surveys are reviewed by BIS and by the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act before they are distributed. The OMB review process provides additional assurance that surveys are designed to collect only information deemed necessary to meet the scope and purpose of a study.

Section 702.3 would address the confidentiality requirements imposed by § 705(d) of the DPA (50 U.S.C. app. 2155(d)) and, in accordance with that section, would provide two procedures by which the restrictions on disclosure in § 705(d) would be invoked. First, consistent with its current practice, BIS would deem all information submitted in response to a survey to be confidential. Second, a person submitting a response to a survey may request confidential treatment of the information submitted. Although the second procedure is likely to be redundant of the first, the statute prohibits disclosure if either the government deems the information to be confidential or if the person furnishing the information requests confidential treatment. BIS concludes that both procedures should be included in the regulations to be consistent with the statute. Additionally, § 702.3 would note that confidential information shall not be published or disclosed unless the Under Secretary for Industry and Security determines that withholding the information is contrary to the interest of the national defense. The statutory authority of the President to make this determination has been delegated to the Under Secretary for Industry and Security. This section also repeats the penalties that the statute authorizes for persons convicted of willfully violating the prohibition on disclosure.

Section 702.4 would require timely, complete and adequate responses to surveys. Specifically, the section would require that survey responses be returned to BIS within the time frame stated on the initial distribution letter or other request for information. The section would treat a response as “inadequate” if it provides information that is not responsive to the questions asked or if it provides aggregated information when specific information was requested.

Section 702.4 would set forth the criteria by which BIS may grant either an exemption from complying with the survey requirement or an extension of time to comply. The grounds for granting an exemption or an extension are limited and generally result when BIS concludes that the survey recipient lacks information deemed relevant to the survey or when compliance with the requirement would be unduly burdensome.

Section 702.4 would make clear that the deadline for complying with a survey is not suspended by submitting a request for an exemption or extension of time to comply.

Finally, § 702.4 would provide that BIS may return responses that are incomplete or inadequate and specify a due date for a complete and adequate response.

Section 702.5 would set forth the consequences of failure to comply with a survey or other request for information. These consequences are established by § 705(a) and (c) of the DPA (50 U.S.C. app. 2155(a) and (c)). If a person does not comply with a survey, BIS may serve a subpoena upon that person to compel compliance. If the person still does not comply, the government may apply to the U.S. district court in any district in which the person is found, resides or transacts business for an order requiring such person to comply. The district court has authority to punish any failure to comply with the order as contempt of court. Persons who are convicted of willfully failing to comply with a survey or other request for information may be fined not more than $10,000 or imprisoned for not more than one year, or both.

Section 702.6 would define certain terms used in part 702.

The word “confidential” would be defined in terms of § 705(d) of the DPA, thereby distinguishing its use in this rule from its use in connection with the classification of information for national security purposes as set forth in Executive Order 13526 of December 29, 2009, Classified National Security Information (75 FR 707; 3 CFR, 2010 Comp., p. 298).

The definition of the term “person” would be based on the definition of “person” in § 702 of the DPA (50 U.S.C. app. 2152) with some additions. The DPA definition reads: “The term `person' includes an individual, corporation, partnership, association, or any other organized group of persons, or legal successor or representative thereof, or any State or local government or agency thereof.” Use of the word “includes” in the statutory definition implies that the list following that word is not exhaustive. BIS concludes that the use of “includes” indicates that Congress recognized that the agency implementing the DPA would need discretion to identify the types of entities that would likely possess information relevant to the subject of each industrial base assessment to ensure a comprehensive collection of information.

This proposed rule would add “The Government of the United States, of the District of Columbia, of any commonwealth, territory or possession of the United States, or any department, agency or commission thereof.” BIS has concluded that inclusion of the additional entities is within its authority under the DPA because the DPA definition prefaces the list of entities with the word “includes,” and because inclusion of the additional entities is necessary to achieve the purpose of the statute.

Based on prior studies, BIS has observed that the U.S. Government makes a significant contribution to the industrial base, whether in research, technology development, testing, manufacturing, repair and overhaul, or trade development. As a result, the U.S. Government is a significant source of information regarding the industrial base. Similarly, it is plausible that the District of Columbia, commonwealths of the United States and other territories and agencies can be survey respondents, and therefore have been included to ensure the completeness of a survey sample and corresponding assessment.

The regulatory definition also would make clear that the term “corporation, partnership, association, or any other organized group of persons” is not limited to commercial, for-profit enterprises or publicly traded corporations.

The definitions of the terms “initial distribution letter” and “survey” each describe a document used in the data collection process. The definitions describe those documents based on the way they are used in current BIS practice.

Supplement No. 1 to part 702 would provide information that BIS believes would be helpful to persons who receive a survey. This information includes both a description of the survey and a glossary of terms.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, as that term is defined in of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et. seq.) unless that collection of information displays a currently valid OMB control number. This rule does not contain a collection of information that is subject to the Paperwork Reduction Act. This rule sets forth procedures related to BIS's administration of surveys pursuant to § 705 of the DPA (50 U.S.C. app. 2155). Individual surveys that are subject to the Paperwork Reduction Act will display a currently valid OMB control number.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq., generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute. However, under § 605(b) of the RFA, if the head of an agency certifies that a rule will not have a significant impact on a substantial number of small entities, the RFA does not require the agency to prepare a regulatory flexibility analysis. Pursuant to § 605(b), the Chief Counsel for Regulation, Department of Commerce, submitted a memorandum to the Chief Counsel for Advocacy, Small Business Administration, certifying that this proposed rule, if promulgated, will not have a significant impact on a substantial number of small entities. The rationale for that certification is as follows.

This proposed rule would set forth, in a single part of the Code of Federal Regulations, the Department of Commerce's authority under § 705 of the DPA “to obtain information in order to perform industry studies assessing the capabilities of the United States industrial base to support the national defense.” Since the mid-1980s, BIS and its predecessor organizations within the Department of Commerce have conducted such studies and required survey responses based on the statute. Section 705 of the DPA authorizes the collection of the information. The statute also authorizes the issuance of subpoenas for the information and authorizes the United States district courts to issue orders compelling compliance with such subpoenas. It also provides criminal penalties for failure to comply with the government's requests for information. This proposed rule would not require any person to supply information that the person would not be required to provide pursuant to the statute.

This proposed rule would require that surveys issued by BIS pursuant to § 705 be responded to by the deadline set forth in the survey. The rule would publicly state BIS's existing internal policies and standards for the granting of both an extension of time to comply with the requirement and exemptions from compliance. To the extent that publication of these policies and standards in the Code of Federal Regulations could be construed as a change in the burden on small entities or any other entities, the publication would have to be deemed as a reduction in burden because it facilitates access to the standards by all parties.

This proposed rule also would set forth the statutory standards for treating information submitted in response to a survey as confidential. It would reiterate the statutory penalties for failure to comply with a survey and for unauthorized release of information that § 705 requires to be treated as confidential.

This proposed rule would adopt the statutory definition of “person” but also add “[t]he Government of the United States, of the District of Columbia, of any commonwealth, territory or possession of the United States, or any department, agency or commission thereof” to the definition. The term “person” is used in the statute and in this proposed rule to represent those to whom the requirements of the statute and this proposed rule apply. BIS has historically interpreted the statute to apply to units of the U.S. Government (including the District of Columbia Government and the governments of the territories and possessions) and does not view this as a substantive change. For purposes of this certification, the addition is immaterial because the government bodies that would be added to the statutory definition by this proposed rule are not small entities under the definition provided in the Small Business Regulatory Enforcement Fairness Act of 1996.

Surveys are one-time exercises used to assess the state and/or capabilities of a particular industry sector or technology. Entities are selected for participation based on their role in, or relationship to, the industry sector or technology being assessed. Information obtained during the course of any one assessment may be relevant to determining whether the current entity supplying that information is a small entity. However, the composition of survey respondents varies dramatically between industry studies due to the complexity of each industry sector or technology being assessed. Consequently, BIS is unable to draw from existing data to estimate the number of small businesses participating in future collections. Accordingly, BIS is unable to determine the number of small entities that would be affected by this proposed rule.

Although BIS cannot predict the exact number of small entities that will be participating in any one survey, this rule would not impose a significant burden on any such small entities because it would not require any impacted entity to perform any action that it is not already required to perform pursuant to § 705 of the DPA.

Accordingly, the National Security Industrial Base Regulations (15 CFR Chapter VII, Subchapter A) is proposed to be amended as follows.

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01 (Revised), dated December 10, 2013, to the TTB Administrator to perform the functions and duties in the administration and enforcement of this law.

Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to define viticultural areas and sets out requirements for the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission to TTB of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes the standards for petitions requesting the establishment or modification of AVAs. Petitions to establish an AVA must include the following:

• Evidence that the region within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;

• An explanation of the basis for defining the boundary of the proposed AVA;

• A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed viticultural AVA;

• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and

• A detailed narrative description of the proposed AVA boundary based on USGS map markings.

TTB received a petition from C. Frederic Brander, owner and winemaker of the Brander Vineyard, proposing the establishment of the approximately 22,820-acre “Los Olivos District” AVA in Santa Barbara County, California. There are 12 bonded wineries and approximately 47 commercially producing vineyards covering a total of 1,120 acres within the proposed AVA. According to the petition, the distinguishing features of the proposed Los Olivos District AVA include its topography, soils, and climate. Unless otherwise noted, all information and data pertaining to the proposed AVA contained in this document are from the petition for the proposed Los Olivos District AVA and its supporting exhibits.

The proposed Los Olivos District AVA includes the towns of Los Olivos, Solvang, Ballard, and Santa Ynez. The proposed AVA lies entirely within the Santa Ynez Valley AVA (27 CFR 9.54), which, in turn, lies within the larger, multicounty Central Coast AVA (27 CFR 9.75). The proposed Los Olivos District AVA shares its western boundary with the eastern boundary of the Ballard Canyon AVA (27 CFR 9.230) and its eastern boundary with the western boundary of the Happy Canyon of Santa Barbara AVA (27 CR 9.217), but it does not overlap either of these AVAs.

In the late 1800s, Alden March Boyd purchased land in Santa Barbara County and planted a 5,000-tree olive grove he named “Rancho Los Olivos.” The community that grew up nearby took the name “Los Olivos,” after Boyd's ranch. The proposed Los Olivos District AVA takes its name from the ranch and the town, both of which are located within the boundaries of the proposed AVA. The town and the ranch appear on the USGS Los Olivos quadrangle map. The town of Los Olivos also appears on a road map of Santa Barbara County, published by the American Automobile Association, which was included with the petition.

Name evidence for the proposed AVA is supported by the fact that several businesses use the moniker “Los Olivos” in their names, including the Los Olivos Grand Hotel, the Gallery Los Olivos, the Los Olivos Café, and the Los Olivos Grocery. Additionally, several public institutions that serve residents within the proposed AVA use the name “Los Olivos,” including the Los Olivos Library, the Los Olivos Post Office, and the Los Olivos Elementary School.

The boundary of the proposed Los Olivos District AVA separates the low, relatively flat plain that comprises the proposed AVA from the higher elevations and more rugged and mountainous terrain that surround the proposed AVA in all directions. The northern portion of the proposed boundary follows the 1,000-foot elevation contour through the lower foothills of the San Rafael Mountains and approximates the point above which marine fog does not reach. The eastern portion of the proposed boundary follows straight lines drawn between points shown on the USGS maps and separates the proposed AVA from the canyon lands of the Happy Canyon of Santa Barbara AVA. The southern portion of the proposed boundary follows the Santa Ynez River and separates the proposed AVA from the Santa Ynez Mountains and the Los Padres National Forest. The western portion of the proposed boundary follows several roads and straight lines drawn between points on the USGS maps and separates the proposed AVA from the canyon lands of the Ballard Canyon AVA to the west.

The distinguishing features of the proposed Los Olivos District AVA include its topography, soils, and climate.

According to the petition, the proposed Los Olivos District AVA is located on the only broad alluvial terrace plain of the Santa Ynez River. The topography of the proposed AVA is relatively uniform, with nearly flat terrain that gently slopes downward to the south. Elevations within the AVA range from approximately 400 feet in the southern portion of the proposed AVA, along the Santa Ynez River, to 1,000 feet in the northern portion, in the foothills of the San Rafael Mountains.

The petition discusses the benefits that the relatively flat, uniform topography of the proposed AVA has for viticulture. The lack of steeply sloped terrain minimizes the risk of erosion, allows vineyard owners more options to space vines and orient rows, and facilitates mechanical harvesting and tilling. The flat, open terrain also allows vineyards within the proposed AVA to receive uniform amounts of sunlight, rainfall, and temperature-moderating fog because there are no significant hills or mountains within the proposed AVA to block the rainfall and fog or to shade the vineyards.

The proposed Los Olivos District is surrounded by higher elevations and mountainous terrain in all directions. To the north are the San Rafael Mountains, with steep slopes and elevations reaching over 2,000 feet. To the east is the Happy Canyon of Santa Barbara AVA, which is marked by steeper terrain, rolling hills, and canyons. Elevations within the portion of the Happy Canyon of Santa Barbara AVA immediately adjacent to the proposed AVA reach heights of 1,600 feet. To the south of the proposed AVA are the Santa Ynez Mountains and the Los Padres National Forest, which have elevations reaching over 3,000 feet and steep, rugged terrain unsuitable for commercial viticulture. To the west of the proposed AVA is the Ballard Canyon AVA, which has rolling hills, maze-like canyons, and elevations reaching 1,200 feet.

Over 95 percent of the soils within the proposed Los Olivos District AVA are from the Positas-Ballard-Santa Ynez soil association and are derived from alluvium, including Orcutt sand and terrace deposits. The soils are moderately to well-drained gravelly fine sandy loams and clay loams with low to moderate fertility.

According to the petition, the soils found in the proposed Los Olivos District AVA are well-suited for viticulture. The soils drain well enough that the vines are not susceptible to root disease and chlorosis but do not drain so excessively as to require frequent irrigation. Soil nutrient levels within the proposed AVA are adequate to produce healthy vines and fruit without promoting excessive growth. Finally, the uniformity of the soils throughout the proposed Los Olivos District AVA results in a greater consistency in growing conditions for vineyards than is found in regions with greater soil variations.

To the north of the proposed Los Olivos District AVA, within the San Rafael Mountains, approximately 95 percent of the soils are of the Chamise-Arnold-Crow Hill association, which is described as well-drained to excessively drained and very low to moderately fertile. To the east and south of the proposed AVA, the soils are more diverse. Within the Happy Canyon of Santa Barbara AVA, to the east of the proposed AVA, approximately 40 percent of the soils are from the Positas-Ballard-Santa Ynez association. The remaining 60 percent of the soils are from the Chamise-Arnold-Crow Hill, the Shedd-Santa Lucia-Diablo, and the Toomes-Climara associations, which are all well-drained to excessively drained and range from very low to highly fertile. To the south of the proposed AVA, within the Santa Ynez Mountains, approximately 60 percent of the soils are from the Los Osos-Gaviota association, which is described as well-drained to excessively drained and very low to moderately fertile. The remaining 40 percent of the soils is a combination of soils from Shedd-Santa Lucia-Diablo association and sedimentary rock that is not suitable for viticulture. To the west, within the Ballard Canyon AVA, approximately 95 percent of the soils are from the Chamise-Arnold-Crow Hill association, which are characterized as being well-drained to excessively drained and having very low to moderately low fertility.

Within the Central Coast AVA, where the proposed Los Olivos District AVA is located, temperatures are affected by cooling marine fog. Locations close to the Pacific Ocean have heavy marine fog, while locations farther inland, such as the proposed AVA, receive less fog. In general, marine fog contributes to cool daytime temperatures and warm nighttime temperatures. Because the proposed Los Olivos District AVA is located about 30 miles inland from the Pacific Ocean, much of the marine fog has diminished by the time it reaches the proposed AVA in the late afternoon. However, enough fog remains to moderate the evening and nighttime temperatures. Due to the flat, open topography, the fog circulates freely throughout the entire proposed AVA.

In locations where fog is present throughout most of the day, the difference between the daily high and daily low temperatures (diurnal temperature variation) is usually smaller than in regions where fog is less prevalent because fog lowers the daytime temperatures and warms the nighttime temperatures. The following table shows the average monthly diurnal temperature variation during the growing season measured at weather stations in the proposed Los Olivos District AVA and in regions to the east and west. Data was not available for locations to the north and south of the proposed AVA.

The data shows that the proposed Los Olivos District AVA generally has smaller average monthly diurnal temperature variations than the region farther inland (Cachuma Lake) and greater average monthly variations than the region closer to the coast (Lompoc). Lompoc, which is located only 9 miles from the Pacific Ocean, has smaller average monthly diurnal temperature variations than the proposed AVA because the marine fog is heavy throughout the entire day, keeping daytime highs cool and allowing for only small drops in nighttime temperatures. From May through September, Cachuma Lake has greater average monthly diurnal temperature variations than the proposed AVA because the lake is farther from the ocean (approximately 36 miles). The marine fog has largely dissipated by the time it reaches Cachuma Lake, allowing daytime temperatures to rise higher and nighttime temperatures to drop lower than within the proposed AVA. During April and October, fog is lighter and occurs less frequently within the proposed AVA, so the diurnal temperature variations within the proposed AVA are similar to those at Cachuma Lake. The Ballard Canyon AVA is closer to the ocean than the proposed AVA, but the hills and canyons block much of the fog from entering the Ballard Canyon AVA. As a result, the Ballard Canyon AVA has generally greater diurnal temperature variations than the proposed Los Olivos District AVA.

According to the petition, diurnal temperature variations during the growing season affect viticulture. Warm daytime temperatures encourage fruit maturation and sugar production, and cool nighttime temperatures minimize acid loss. Therefore, grapes in regions with large diurnal temperature variations ripen faster and have higher levels of sugar and acid than regions with smaller diurnal temperature variations. Additionally, because regions with large diurnal temperature variations generally have less fog, grapes in those regions are not at as great a risk of mildew or fungal diseases as areas with heavier fog and smaller diurnal temperature variations.

The petition also included a summary of growing degree day (GDD) data 5 gathered during the 2007-2012 growing seasons for the proposed Los Olivos District AVA and the regions to the north, east, and west. Data was not available for the region to the south.

This document extends the public comment period established in the Federal Register proposed rule of January 7, 2015. In that document, EPA proposed significant new use rules for 13 chemical substances which were the subject of premanufacture notices (PMNs). EPA is hereby extending the comment period, which was set to end on March 9, 2015, to April 23, 2015.

To submit comments, or access the docket, please follow the detailed instructions provided under ADDRESSES in the Federal Register proposed rule of January 7, 2015. If you have questions, consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

On July 15, 2013, we received a petition from WildEarth Guardians to list 81 marine species as threatened or endangered under the Endangered Species Act (ESA). This petition included species from many different taxonomic groups, and we prepared our 90-day findings in batches by taxonomic group. We found that the petitioned actions may be warranted for 27 of the 81 species and announced the initiation of status reviews for each of the 27 species (78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; and 79 FR 10104, February 24, 2014). This document addresses the findings for one of those 27 species: The African coelacanth L. chalumnae. Findings for seven additional species can be found at 79 FR 74853 (December 16, 2014). The remaining 19 species will be addressed in subsequent findings.

We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this determination, we consider first whether a group of organisms constitutes a “species” under the ESA, then whether the status of the species qualifies it for listing as either threatened or endangered. Section 3 of the ESA defines a “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” On February 7, 1996, NMFS and the U.S. Fish and Wildlife Service (USFWS; together, the Services) adopted a policy describing what constitutes a distinct population segment (DPS) of a taxonomic species (the DPS Policy; 61 FR 4722). The DPS Policy identified two elements that must be considered when identifying a DPS: (1) The discreteness of the population segment in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the significance of the population segment to the remainder of the species (or subspecies) to which it belongs. As stated in the DPS Policy, Congress expressed its expectation that the Services would exercise authority with regard to DPSs sparingly and only when the biological evidence indicates such action is warranted.

Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” We interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).

When we consider whether species might qualify as threatened under the ESA, we must consider the meaning of the term “foreseeable future.” It is appropriate to interpret “foreseeable future” as the horizon over which predictions about the conservation status of the species can be reasonably relied upon. The foreseeable future considers the life history of the species, habitat characteristics, availability of data, particular threats, ability to predict threats, and the reliability to forecast the effects of these threats and future events on the status of the species under consideration. Because a species may be susceptible to a variety of threats for which different data are available, or which operate across different time scales, the foreseeable future is not necessarily reducible to a particular number of years. Thus, in our determinations, we may describe the foreseeable future in general or qualitative terms.

NMFS and the USFWS recently published a policy to clarify the interpretation of the phrase “significant portion of the range” (SPR) in the ESA definitions of “threatened” and “endangered” (76 FR 37577; July 01, 2014). The policy consists of the following four components:

(1) If a species is found to be endangered or threatened in only an SPR, the entire species is listed as endangered or threatened, respectively, and the ESA's protections apply across the species' entire range.

(2) A portion of the range of a species is “significant” if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction or likely to become so in the foreseeable future.

(3) The range of a species is considered to be the general geographical area within which that species can be found at the time USFWS or NMFS makes any particular status determination. This range includes those areas used throughout all or part of the species' life cycle, even if they are not used regularly (e.g., seasonal habitats). Lost historical range is relevant to the analysis of the status of the species, but it cannot constitute an SPR.

(4) If a species is not endangered or threatened throughout all of its range but is endangered or threatened within an SPR, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.

We considered this policy in evaluating whether to list the coelacanth as endangered or threatened under the ESA.

Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened due to any one or a combination of the following five threat factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence (16 U.S.C. 1533(a)(1)). We are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account efforts being made by any state or foreign nation to protect the species (16 U.S.C. 1533(a)(1)).

In making a listing determination, we first determine whether a petitioned species meets the ESA definition of a “species.” Next, using the best available information gathered during the status review for the species, we complete a status and extinction risk assessment across the range of the species. In assessing extinction risk, we consider the demographic viability factors developed by McElhany et al. (2000) and the risk matrix approach developed by Wainwright and Kope (1999) to organize and summarize extinction risk considerations. The approach of considering demographic risk factors to help frame the consideration of extinction risk has been used in many of our status reviews, including for Pacific salmonids, Pacific hake, walleye pollock, Pacific cod, Puget Sound rockfishes, Pacific herring, scalloped hammerhead sharks, and black abalone (see http://www.nmfs.noaa.gov/pr/species/ for links to these reviews). In this approach, the collective condition of individual populations is considered at the species level according to four demographic viability factors: Abundance, growth rate/productivity, spatial structure/connectivity, and diversity. These viability factors reflect concepts that are well-founded in conservation biology and that individually and collectively provide strong indicators of extinction risk.

We then assess efforts being made to protect the species, to determine if these conservation efforts are adequate to mitigate the existing threats. Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into consideration those efforts, if any, being made by any State or foreign nation to protect the species. We also evaluate conservation efforts that have not yet been fully implemented or shown to be effective using the criteria outlined in the joint NMFS/USFWS Policy for Evaluating Conservation Efforts (PECE; 68 FR 15100, March 28, 2003), to determine their certainty of implementation and effectiveness. The PECE is designed to ensure consistent and adequate evaluation of whether any conservation efforts that have been recently adopted or implemented, but not yet demonstrated to be effective, will result in improving the status of the species to the point at which listing is not warranted or contribute to forming the basis for listing a species as threatened rather than endangered. The two basic criteria established by the PECE are: (1) The certainty that the conservation efforts will be implemented; and (2) the certainty that the efforts will be effective. We consider these criteria, as applicable, below. We re-assess the extinction risk of the species in light of the existing conservation efforts.

If we determine that a species warrants listing as threatened or endangered, we publish a proposed rule in the Federal Register and seek public comment on the proposed listing.

We conducted a status review for the petitioned species addressed in this finding (Whittaker, 2014), which compiled information on the species' biology, ecology, life history, threats, and conservation status from information contained in the petition, our files, a comprehensive literature search, and consultation with experts. We also considered information submitted by the public in response to our petition finding. The draft status review report was also submitted to independent peer reviewers; comments and information received from peer reviewers were addressed and incorporated as appropriate before finalizing the draft report.

The status review report provides a thorough discussion of demographic risks and threats to the particular species. We considered all identified threats, both individually and cumulatively, to determine whether the species should reasonably be expected to respond to the threats in a way that causes actual impacts at the species level. The collective condition of individual populations was also considered at the species level, according to the four demographic viability factors discussed above.

The status review report is available on our Web site (see ADDRESSES section). The following section describes our analysis of the status of the African coelacanth, L. chalumnae.

Latimeria chalumnae, a fish commonly known as the African coelacanth, belongs to a very old lineage of bony fish, the class Sarcopterygii or lobe-finned fishes, which includes the coelacanths, the lungfish, and very early tetrapods. Most species of lobe-finned fish are extinct. Among the lobe-finned fishes, L. chalumnae is one of only two living species belonging to the order Coelacanthiformes. The belief that the coelacanth had gone extinct over 65 million years ago made the discovery of a living specimen off the coast of South Africa in 1938 particularly sensational (McAllister, 1971). Latimeria chalumnae inhabits coasts along the western Indian Ocean, while Latimeria menadoensis, commonly known as the Indonesian coelacanth, observed for the first time in 1997, appears to be restricted to Indonesian waters, but might also occur along the coastal islands in the eastern Indian Ocean (Erdmann et al., 1998; Erdmann, 1999; Springer, 1999; Fricke et al., 2000b, Hissman pers. com.). Latimeria chalumnae and L. menadoensis are genetically and geographically distinct (Pouyaud et al., 1999; Holder et al., 1999; Inoue, 2005). While genetically distinct, the Indonesian and African coelacanth species exhibit overlapping morphological traits, which makes it difficult to differentiate between them based on morphology alone.

The coelacanth has a number of unique morphological features. Most obvious are its stalked dorsal, pelvic, anal, and caudal fins. In the water, under camera observation, the body of the fish appears iridescent dark blue, but its natural color is brown (Hissman pers. com.); individuals have white blotches on their bodies that have been used for identification in the field. When individuals die, their color shifts from blue to brown. The name “coelacanth” comes from the Greek words for `hollow' and `spine,' referring to the fish's hollow oil-filled notochord, which supports the dorsal and ventral caudal fin rays (Balon et al., 1988). This notochord is composed of collagen which is stiffened under fluid pressure (Balon et al., 1988). Coelacanth species have a unique intracranial joint allowing them to simultaneously open the lower and upper jaws, possibly an adaptation for feeding (Balon et al., 1988). Coelacanths undergo osmoregulation via retention of urea (Griffith, 1991). Their swim bladder is filled with wax-esters used to passively regulate buoyancy, allowing the fish to reach depths of 700 meters during nightly feeding excursions (Hissmann et al., 2000). Males and females exhibit sexual dimorphism in size, with females larger than males (Bruton et al., 1991b).

The natural range of the African coelacanth L. chalumnae was once thought to be restricted to the Comoro Island Archipelago, located in the Western Indian Ocean between Madagascar and Mozambique. For many years, specimens caught off South Africa, Mozambique, and Madagascar were thought to be strays from the Comoro population (Schliewen et al., 1993; Hissmann et al., 1998). However, between 1995 and 2001, catches and observations of coelacanths from the coasts of Kenya (De Vos et al., 2002), Tanzania (Benno et al., 2006), South Africa (Hissmann et al., 2006), and Madagascar (Heemstra et al., 1996) suggested that the species was more widespread than previously thought, occupying deep water coastal habitat in several locations throughout the Western Indian Ocean. The range extent of the coelacanth remains unclear, as direct observations of established populations rely on dedicated deep water canyon surveys, or bycatch observations from gillnets and artisanal handlines (Hissmann et al., 2006). Today, three established coelacanth populations have been confirmed by survey efforts, inhabiting deep-water caves off the coast of the Comoros, South Africa, and the coast of Tanzania.

The coelacanth is known to inhabit waters deeper than 100m, making surveys difficult and reliant upon sophisticated technology including submersibles and remotely operated vehicles (ROVs), or highly-trained divers using special gas mixtures. To date, the best data addressing coelacanth habitat use come from in situ observations of the fish off the steep volcanic coasts of Grand Comoro Island; two decades of coelacanth observation there demonstrate that the coelacanth inhabits deep submarine caves and canyons which are thought to provide shelter from predation and ocean currents (Fricke et al., 2011). The fish aggregate in these caves in groups of up to 10 individuals. Retreat into these caves after nightly feeding activity is most likely a key factor for coelacanth survival, allowing the fish to rest and conserve energy in a deep-water, low-prey environment (Fricke et al., 1991a). At night, coelacanths occupy deeper waters to actively feed, spending the majority of their time between 200 and 300 m (Fricke et al., 1994; Hissmann et al., 2000). Larger individuals are known to venture below 400 m, with the deepest observation at 698 m (Hissmann et al., 2000).

South African coelacanth habitat has also been studied, although to a lesser extent than in the Comoro Islands (Venter et al., 2000; Hissmann et al., 2006; Roberts et al., 2006). In the deep canyons off the coast of South Africa, suitable coelacanth caves have been found at depths of 100-130 m, whereas at Grand Comoro Island, most caves are in depths of 180-230 m (Heemstra et al., 2006). In general, it is thought that the deep overhangs and caves found off the shelf of South Africa provide suitable shelter and refuge for coelacanths.

Habitat off of Tanzania consists of rocky terraces occurring between 70-140 m depth; the water temperature at coelacanth catch depths is around 20 °C (Nyandwi, 2009). A large number (n = 19) of Tanzanian coelacanths have been caught in the outer reefs near the village of Tanga. In this region, some coelacanth catches have been reported to occur at 50-60 m; however, the validity of these reports is questionable (Benno et al., 2006; Nyandwi, 2009, Hissman pers. com.). These incidents may indicate a shallower depth preference for Tanzanian coelacanths than that exhibited by Comoran coelacanths; however, more surveys are needed to better understand coelacanth habitat use in this region (Benno et al., 2006). The benthic substrate off the coast of Tanzania is sedimentary limestone rather than the volcanic rock of the Comoros. In this habitat, coelacanths are thought to use submarine cavities and shelves that have eroded out of the limestone composite for shelter.

Coelacanths demonstrate strong site fidelity with relatively large overlapping home ranges, greater than 8 km, as demonstrated at Comoro and South African sites where expeditions have tracked individual movements using ultrasonic transmitters (Fricke et al., 1994; Heemstra et al., 2006). Surveys off Grand Comoro over 21 years demonstrate that individual coelacanths may inhabit the same network of caves for decades; for example, 17 individuals originally identified in 1989 were re-sighted in 2008 in the same survey area (Fricke et al., 2011).

Temperature use for the Comoran coelacanth, based on survey observations, was found to be between 16.5 and 22.8 °C (Fricke et al., 1991b). Surveys of South African coelacanth habitat off of Sodwana Bay confirm this temperature use across a broad portion of its range (Hissmann et al., 2006). This corresponds to estimates of thermal requirements based on the temperature-dependent oxygen saturation of their blood, with an optimum at 15 °C and an upper threshold at 22-23 °C (Hughes et al., 1972). Thus, the coelacanth depends on cooler waters to help maintain its oxygen demands. Most likely, the depth distribution of coelacanth depends partly on this temperature requirement. The coelacanth's ecological niche is likely shaped by this narrow temperature requirement, prey abundance, and the need for shelter and oxygen.

It is thought that sedimentation and siltation act as a negative influence on coelacanth distribution. This is supported by a hypothesis surrounding the split between the two living coelacanth species estimated to have occurred 40-30 million years ago (Mya), corresponding with the collision between India and Eurasia (50 Mya), which created high levels of siltation and isolated individuals to the east and west of India (Inoue et al., 2005). This hypothesis has been supported by some surveys off Sodwana Bay where it was observed that some canyons, despite offering suitable habitat requirements, were not occupied by coelacanths; it was concluded that the turbidity of the water in these caves discouraged coelacanth habitation, as nearby canyons not affected by turbidity were occupied by coelacanths (Hissmann et al., 2006; Roberts et al., 2006).

Coelacanths are considered ovoviviparous, meaning the embryos are provided a yolk sac and develop inside the adult female until they are delivered as live births; coelacanth embryos are not surrounded by a solid shell. Embryos remain in gestation for 3 years; this period of embryogenesis has been determined by scale rings of embryo and newborn coelacanth specimens (Froese et al., 2000). The coelacanth gestation period is considered the longest of any vertebrate (Froese et al., 2000). It has been hypothesized that the coelacanth may live upwards of 40 or 50 years, and even up to 100 years (Bruton et al., 1991a, Fricke et al., 2011, Hissman per. com.). Coelacanth generation times are long. In fact, they are expected to reach reproductive maturity between 16 and 19 years of age (Froese et al., 2000). Coelacanth fecundity is not well known; 26 embryos were found within one female caught in 2001 from off of Mozambique, and other known fecundities are 5, 19, and 23 pups (Fricke et al., 1992).

Coelacanths are extremely slow drift-hunters. They descend at least 50 to 100 m below their daytime habitat to feed at night on the bottom or near-bottom, and are thought to consume deep-water prey, or prey found at the bottom of the ocean (Uyeno et al., 1991; Fricke et al., 1994). Stomach content analysis has revealed a variety of prey items including deepwater fishes ranging from cephalopods (including cuttlefish) to eels such as conger eels (Uyeno et al., 1991). The fish exhibits low-energy drift feeding behavior, which is thought to conserve energy and oxygen for the fish. Metabolic demands have been studied in the coelacanth, and demonstrate that they have one of the lowest resting metabolisms of all vertebrates (Hughes et al., 1972; Fricke et al., 2000a). The coelacanth's gill surface area is much smaller than other fishes of similar size; this morphological feature is a factor thought to heavily limit their growth rate and productivity due to its control over oxygen utilization (Froese et al., 2000). Studies of the fish's blood physiology have demonstrated that the oxygen dissociation curve is temperature dependent, and shows an affinity for oxygen at lower temperatures (15 °C). Small gill surface area and blood physiology are thought to influence the coelacanth's restriction to cold deep water habitat, and may correlate with their low metabolic rates, meager food consumption and generally slow growth and maturation (Froese et al., 2000).

It was once thought that coelacanths were restricted to the Comoro Island Archipelago, and that individuals caught in other locations in the Western Indian Ocean were strays. However, growing evidence suggests that L. chalumnae consists of several established populations throughout the Western Indian Ocean (Schartl et al., 2005). Two resident and scientifically surveyed coelacanth populations exist in waters off South Africa and the Comoro Islands (Hissmann et al., 2006; Fricke et al., 2011). Increases in coelacanth catch off the coast of Tanzania during the last decade and genetic analysis of individuals caught there demonstrated that an established population exists there as well, as confirmed by the observance of 9 coelacanth individuals during a 2007 survey off the Tanzanian coast (Nikaido et al., 2011). Additional coelacanth catches have been recorded off Madagascar, Mozambique, and Kenya, but these regions have not yet been surveyed (Nulens et al., 2011) so their status is unclear. What is known of the coelacanth's distribution is largely based on bycatch data. Thus, the true number of established coelacanth populations, and the extent of the species' range across the Western Indian Ocean remain uncertain.

Insufficient data exist to quantitatively estimate coelacanth population abundance or trends over time for the majority of its range. Population abundance estimates are greatly challenged by sampling and survey conditions wherein deep technical scuba or submersibles are necessary to reach and document the coelacanth in its natural habitat.

Quantitative estimates of coelacanth abundance have been made only for the Comoro Islands. Coelacanth population abundance estimates for the western coastline of Grand Comoro were initially made in the late 1980s by Fricke et al. (1991a) and updated to include survey data from 1991 (Fricke et al., 1994). The survey area during this time covered 9 percent of the projected coelacanth habitat along the western coast of Grand Comoro (Hissmann et al., 1998). These estimates showed a relatively stable population ranging between 230-650 individuals (Fricke et al., 1994). Surveys conducted in 1994 across the southwestern coast of Grand Comoro (the same sample area as in earlier surveys) revealed a 68 percent decrease in cave inhabitants and a 32 percent decrease in the total number of coelacanths encountered as compared to a 1991 survey that covered the same area at the same time of year (Hissmann et al., 1998). Three additional surveys of the western coast of Grand Comoro occurred in the 2000s, and are summarized in Fricke et al. (2011). These survey methods and area were consistent with earlier surveys occurring in the late 1980s and 1990s. During surveys between 2000 and 2009, several marked individuals not sighted in 1994 re-appeared, and cave occupancy rates in these later surveys were similar to surveys of the early 1990s (Fricke et al., 2011). In total, nine dedicated coelacanth surveys have occurred in this area since 1986 (Fricke et al., 2011). Estimates of population abundance along the western coast of Grand Comoro, based on repeated surveys over almost 2 decades, are between 300 and 400 individuals, with 145 individuals identifiable via unique markings (Fricke et al., 2011). The 1994 survey showing population declines is thought to be an anomaly driven by higher water temperature, as later surveys demonstrate that the local population of western Grand Comoro has remained stable since the 1980s (Fricke et al., 2011). Some local Comoran fishermen have suggested that seasonal abundance patterns may exist for the coelacanth as they do for the locally-targeted oilfish, but there are insufficient data to address this phenomenon (Stobbs et al., 1991).

Across the coelacanth's range, juveniles (<100 cm) are largely absent from survey and catch data, suggesting that earlier life stages may exhibit differences in distribution and habitat use (Fricke et al., 2011). Length at birth is assumed to be 40 cm (Bruton et al., 1991a). Size classes between 40 and 100 cm are largely absent from surveys of the Comoros, South Africa, and Tanzania; these smaller sizes are also absent from shallower water, suggesting that they inhabit deeper water than older individuals (Fricke et al., 2011). In general, the distribution and relative abundance of juveniles across the coelacanth's range remains unknown.

Population estimates have not been conducted in other parts of the coelacanth's range, and it is possible that undiscovered populations exist across the Western Indian Ocean because coelacanths have been caught (in low numbers) off the coast of Madagascar, Kenya and Mozambique. Based on current understanding, coelacanth habitat and distribution is determined by the species' need for cool water and structurally complex caves and shelf overhangs for refuge. Using these requirements, Green et al. (2009) conducted a bathymetric survey using data coverage of the Western Indian Ocean in order to identify potential habitat for coelacanth populations, beyond occupied habitat already identified. The authors identified several locations off Mozambique and South Africa that met characteristics of coelacanth habitat. Lack of adequate data coverage for Tanzania and Madagascar precluded thorough analyses of these regions, so the authors did not rule out these locations as suitable coelacanth habitat. Although this bathymetric study did not lead to any additional surveys to confirm its findings, the analysis demonstrates the presence of suitable habitat throughout the Western Indian Ocean, and thus the potential for yet-undiscovered coelacanth populations. Based on the data presented, populations that have been surveyed appear to be stable with unknown abundance and trends elsewhere.

Genetic data on coelacanth population structure are limited and known distribution of coelacanth populations is potentially biased by targeted survey efforts and fishery catch data. However, recent whole-genome sequencing and genetic data available for multiple coelacanth specimens can be used to cautiously infer some patterns of population structure and connectivity across the coelacanth's known range (Nikaido et al., 2011; Lampert et al., 2012; Nikaido et al., 2013). Currently, whole-genome sequences exist for multiple individuals from Tanzania, the Comoros, and from the Indonesian coelacanth L. menadoensis.

Significant genetic divergence at the species level has been demonstrated to exist between L. chalumnae and L. menadoensis (Inoue et al. 2005) as described above.

Intraspecific population structure has been examined using L. chalumnae specimens from Tanzania, the Comoros, and southern Africa (Nikaido et al., 2011; Lampert et al., 2012; Nikaido et al., 2013). These studies suggest that L. chalumnae comprises multiple independent populations distributed across the Western Indian Ocean. However, based on limited samples, the geographic patterns and relatedness among coelacanth populations are not well understood. Using mitochondrial DNA analyses, Nikaido et al. (2011) demonstrated that individuals from northern Tanzania differ from those from southern Tanzania and the Comoros. In fact, this study estimated that a northern Tanzanian population diverged from the rest of the species an estimated 200,000 years ago. Nikaido et al. (2011) hypothesized that differentiation of individuals from northern Tanzania may relate to divergence of currents in this region, where hydrography limits gene flow and reduces the potential for drifting migrants. More recent data reflecting a greater number of samples and higher-resolution population analyses do not support a genetic break between individuals from north and south Tanzania. Instead, this more robust population-genetics approach reveals significant divergence among individuals from South Africa, Tanzania, and two populations which diverged but are co-existing within the Comoros; the mechanism of divergence between the two co-existing populations of the Comoros remains unclear (Lampert et al., 2012). All studies are consistent in that they demonstrate low absolute divergence among populations, which either relates to extremely low evolutionary rates in L. chalumnae, or recent divergence of populations after going through a bottleneck (such as a founding effect) (Lampert et al., 2012). Information derived from unique sequences of mitochondrial DNA support the Comoros as an ancestral population to other populations distributed throughout the Western Indian Ocean, because this population appears to have a greater number of ancestral haplotypes (Nikaido et al., 2011).

All coelacanth populations demonstrate the common characteristic of low diversity, but the Comoros population is the least diverse (Nikaido et al., 2011, Nikaido et al., 2013). Genetic evidence for inbreeding has been observed in investigations of coelacanth mitochondrial DNA and DNA fingerprinting, where high band-sharing coefficients showed significant inbreeding effects (Schartl et al., 2005). The species L. chalumnae exhibits significantly lower levels of genetic divergence than its sister species L. menadoensis (Nikaido et al., 2013). Because rates of molecular substitution and evolution are thought to be similar for these two species, the significantly lower diversity measures for L. chalumnae points to smaller populations (as compared to L. menadoensis) or the occurrence of repeated genetic bottlenecks, rather than slow evolution rate alone (Inoue et al., 2005, Nikaido et al., 2013). Low diversity within populations and evidence for inbreeding suggest that populations are independent and small.

While population structure is not clearly resolved across the region, available genetic data suggest the following: (1) Oceanographic and environmental conditions may cause uneven gene flow among coelacanth populations across the region; (2) populations across the Western Indian Ocean are independent, and do not represent strays from the Comoros, or a panmictic population (or a population in which all individuals are potential mates); (3) Evolutionary rates of coelacanths are extremely slow, and lower diversity in L. chalumnae as compared with L. menadoensis points to smaller population sizes and/or genetic bottleneck effects.

Available information regarding current, historical, and potential threats to the coelacanth was thoroughly reviewed (Whittaker, 2014). Across the species' range, we found the threats to the species to be generally low, with isolated threats of overutilization through bycatch and habitat loss in portions of its range. Other possible threats include climate change, overutilization via the curio trade, and habitat degradation in the form of pollution; however, across the species' full range we classify these threats as low. We summarize information regarding each of these threats below according to the factors specified in section 4(a)(1) of the ESA. Available information does not indicate that neither disease nor predation is operative threats on this species; therefore, we do not discuss those further here. See Whittaker (2014) for additional discussion of all ESA section 4(a)(1) threat categories.

There is no evidence curtailment of the historical range of L. chalumnae has occurred throughout its evolutionary history, either due to human interactions or natural forces. Genetic data and geological history suggest that the split between L. chalumnae and its Indonesian sister species L. menadoensis occurred 40-30 Mya, and that the genus was previously distributed throughout the coasts of Africa and Eurasia (Springer, 1999; Inoue et al., 2005). However, no data are available to inform an understanding of historical changes in the range of the species L. chalumnae. Although the order Coelacanthiformes was deemed to have become extinct 65 million years before the 1938 discovery in South Africa, this surprising encounter cannot be used as evidence for a curtailment of the species' range from historical levels given lack of any historical data on the species prior to its discovery. The species is naturally hidden from human observation, and therefore, highly technical diving, deep water survey equipment, or unique fishing techniques (such as hand lines) are required to reach the fish's cavernous, structurally complex, and deep habitat; thus, the contemporary and historical extent of its range remains unclear.

Due to its occurrence in deep water (>100 meters), the coelacanth may be particularly buffered from human disturbance (Heemstra et al., 2006). Nonetheless, increases in human population and development along the coastline of the Western Indian Ocean could impart long-term effects on the fish throughout its range. World human population forecasts predict that the largest percentage increase by 2050 will be in Africa, where the population is expected to at least double to 2.1 billion (Kincaid, 2010). The result of increased population density on coastal ecosystems of East Africa may include increased pollution and siltation, which may impact the coelacanth despite its use of a deep and relatively stable environment.

Human population growth will likely lead to increases in agricultural production, industrial development, and water use along the coast of the Western Indian Ocean; these land use changes may increase near shore sedimentation, possibly affecting coelacanth habitat. As described earlier, sedimentation is theorized to negatively impact coelacanth distribution (Springer, 1999). The coelacanth has been shown to avoid caves with turbid water, even if other preferred conditions of shelter and food are present (Hissmann et al., 2006). Many East African countries are still developing, and the population is growing. Increased food demand may lead to changes in land and water use, and an increase in agriculture and thus run-off and siltation to the coast. It is possible that, if increases in siltation occur, coelacanth habitat may be affected, and range reduced. However, the nature of these economic and land use changes, as well as their direct effect on sedimentation and subsequent impact on coelacanth habitat, remain highly uncertain.

Pollution of coastal African waters does not currently pose a direct threat to the coelacanth. A review of heavy metals in aquatic ecosystems of Africa showed generally low concentrations, close to background levels, and much lower than more industrial regions of the world (Biney et al., 1994). Yet, surprisingly, a toxicological study of two coelacanth specimens detected lipophilic organochlorine pollutants such as polychlorinated biphenyl (PCBs) and dichlorodiphenyltrichloroethane (DDT) (Hale et al., 1991). Levels ranged from 89 to 510 pg kg− l for PCB and 210 to 840 pg kg− l for DDT concentration, and were highest in lipid-rich tissues such as the swim bladder and liver (Hale et al., 1991). The coelacanth has high lipid content, and its trophic position may increase the probability of toxic bioaccumulation. Insufficient data are available to determine the impact of these toxins on coelacanth health and productivity.

Direct habitat destruction is likely to impact coelacanths off the coast of Tanga, Tanzania. Plans are in place to build a new deep-sea port in Mwambani Bay, 8 km south of the original Tanga Port. The construction of the Mwambani port is part of a large project to develop an alternative sea route for Uganda and other land-locked countries that have been depending on the port of Mombasa. Development of the port would include submarine blasting and channel dredging and destruction of known coelacanth habitat in the vicinity of Yambe and Karange islands—the site of several of the Tanzanian coelacanth catches (Hamlin, 2014). The new port is scheduled to be built in the middle of a newly-implemented Tanga Coelacanth Marine Park. The plans for Mwambani Bay's deep-sea port construction appear to be ongoing, despite conservation concerns. If built, the port would likely disrupt coelacanth habitat by direct elimination of deep-water shelters, or by a large influx of siltation that would likely result in coelacanth displacement.

Habitat destruction in the form of nearshore dynamite fishing on coral reefs may indirectly impact the coelacanth due to a reduction in prey availability, but these impacts are highly uncertain. As a restricted shallow-water activity, this destructive fishing would not impact the coelacanth's deep (+100 m) habitat directly. However, coral reefs in this region provide essential fish nursery habitat and are hot spots for biodiversity (Salm, 1983). Loss of nearshore coral habitat may negatively impact pelagic fish species due to loss of nursery habitat; it is highly uncertain how these impacts may affect the prey availability for the coelacanth. Dynamite fishing in the Comoros was observed recently by researchers (Fricke et al., 2011). While this method is not widespread throughout the Comoros, reduction in the sustainability of nearshore or pelagic fish populations may encourage fishermen to increase use of these new methods. Dynamite fishing in Tanzania is widespread, and has led to destruction of nearshore coral reefs and disruption of essential fish habitat (Wells, 2009). Destructive fishing practices occur throughout coral reefs along the coast of the Western Indian Ocean (Salm, 1983). The true extent to which the destruction of near shore coral habitat may affect the coelacanth remains uncertain, especially as the fish is thought to consume primarily deep-water prey (Uyeno, 1991; Uyeno et al., 1991).

Since its discovery in 1938, all known coelacanth catches are considered to have been the result of bycatch. Particularly in the Comoro Islands, where the highest number of coelacanth catches has occurred, researchers have found no evidence of a targeted coelacanth fishery given that methods do not exist to directly catch the deep-dwelling fish (Bruton et al., 1991c). The coelacanth meat is undesirable, and thus the fish is not consumed by humans (Fricke, 1998).

Out of 294 coelacanth catches since its 1939 discovery, the majority of catches (n = 215 as of 2011) have been a result of bycatch in the oilfish, or Revettus, artisanal fishery occurring only in the Comoro Island archipelago (Stobbs et al. 1991; Nulens et al. 2011). The Comoros oilfish fishery uses unmotorized outrigger canoes (locally called galawas). The fish are caught using handlines and hooks close to shore at depths as great as 800m (Stobbs et al., 1991). This traditional fishery is known locally as mazé fishing, and coelacanth catches have only occurred on Grand Comoro and Anjouan Islands (Stobbs et al., 1991). Oilfish are traditionally caught at night, an act considered locally to be very dangerous (Stobbs et al., 1991). Often, this artisanal fishing is performed only on dark moonless calm nights. In general, subsistence fishing in the region is limited by weather conditions, and often disrupted by monsoon or tropical storms. This fishery is also limited by a tradition of social pressure which restricts fishing to offshore waters adjacent to each fisherman's village (Stobbs et al., 1991).

Since its discovery in the Comoros (in 1938), coelacanth catch rate has been very low, between 2-4 individuals per year. Coelacanth catch rate in the Comoros shows no significant trend over time; however, it has fluctuated historically with changes in fishing technology and shifts in the ratio between artisanal and more modern pelagic fishing methods (Stobbs et al., 1991; Plante et al., 1998). From a broader temporal perspective, there was an increasing but insignificant change in coelacanth catch from the Comoros from 1954 to 1995 (Plante et al., 1998). However, between 1995 and 2008, the number of galawas in the Comoros has declined steadily, corresponding with a steady increase in motorized boats (Fricke et al., 2011). The most recent update of coelacanth catch inventory indicates that catch rates in the Comoro archipelago have declined and stabilized over the past decade (Nulens et al., 2011). In fact, between 2000 and 2008, catch rates were the lowest ever observed, likely due to the increase in motorized boats and decreased artisanal handline fishing over the past decade (Fricke et al., 2011). Today, mazé fishing is going out of favor in the Comoros (Plante et al., 1998; Fricke et al., 2011); this trend is expected to continue into the future, and reduces fishing pressure on the coelacanth in this region, most likely explaining the reduction in coelacanth catch over the past decade (Stobbs et al., 1991; Plante et al., 1998; Fricke et al., 2011; Nulens et al., 2011). Fishing mortality has been determined to be negligible in the Comoros population, likely relating to its population stability over time (Bruton et al., 1991a; Fricke et al., 2011).

Outside of the Comoros, coelacanths have been caught in Tanzania, Madagascar, Mozambique, Kenya, and South Africa (Nulens et al., 2011). Historically, far fewer coelacanth catches have occurred outside of the Comoros Islands. However, over the past decade, the trend in coelacanth catches shows a drastic increase in catch rate off Tanzania via shark gillnets (Fricke et al., 2011; Nulens et al., 2011). Hand line mazé fisheries are absent outside of the Comoros, thus catches across the rest of the Western Indian Ocean have occurred using different gear—deep-set shark gillnets and trawls. Trawls have been the mechanism for only 3 total coelacanth catches; minimal catch through trawling is thought to relate to the coelacanth's preferred rocky steep cavernous habitat, substrate not suitable for trawling activity (Benno et al., 2006). The first confirmed coelacanth catches using shark gillnets occurred in Madagascar in 1995 and in Tanzania in 2003, although a few earlier unconfirmed catches in these locations may have occurred as early as 1953 (Benno et al., 2006). The first Tanzanian catch in 2003 followed the introduction of shark gillnets in the region in 2001 (Benno et al., 2006). As of September 2003, the capture of coelacanths has been dominated by those caught in Tanzania (Nulens et al., 2011). Since the first 2003 catch in Tanzania, over 60 catches via deep water gillnets have been reported, with over 12 fish caught/year between 2003 and 2008 (Benno et al., 2006; Nulens et al., 2011). These shark gillnets are set at depths between 50 and 150m, and it is thought that accidental coelacanth catches in Tanzania occur when coelacanths leave their caves for nighttime hunting (Nyandwi, 2009).

Expansion of the shark gillnet fishery across the Western Indian Ocean may result in increased bycatch of the coelacanth, as has been observed off the coast of Tanzania, but the potential for such an increase is uncertain. Available information suggests that shark fishing effort has been increasing off the coast of east Africa, including the coelacanth range countries of Mozambique, Madagascar, Kenya, and South Africa (Smale, 2008). Techniques for catching sharks in this region include deep-set shark gillnets, such as those responsible for the commencement of coelacanth bycatch in Tanzania in 2003 (Nulins et al., 2011). Shark gillnet fishing is used in other East African countries, such as Mozambique, where these fisheries are highly profitable, and are driven by the demand for fin exports, with evidence for frequent illegal export occurring (Pierce et al., 2008). Despite the use of gillnet fishing practices elsewhere in East Africa, other areas have not shown a similar spike in coelacanth bycatch as has been observed in Tanzania. Quantification of effort from the shark gill net fishery in South Africa has been challenging due to high levels of illegal or unreported fishing occurring; for example, as little as 21 percent of the actual catch for shark gillnet and seine fisheries may be reported in South Africa (Hutchings et al., 2002). Nonetheless, shark fisheries in this region are thought to be overexploited, which may lead to an increase in future effort due to sustained global demand (Hutchings et al., 2002). It is reasonable to conclude that the use of shark gillnets will continue or increase in Tanzania and will continue to expand throughout the Western Indian Ocean; however, whether this trend will result in an increased threat of coelacanth bycatch is uncertain, especially given the uncertainty over the fish's range and habitat use throughout the coast of East Africa.

The coelacanth is not desirable commercially as a traditional food source or for artisanal handicrafts. Targeted methods of fishing the coelacanth have never been developed, and local cultures do not value the coelacanth commercially or for subsistence purposes (Fricke, 1998).

In the Comoros, the coelacanth has become a source of pride and national heritage (Fricke, 1998). However, cultural interest in the coelacanth does not put the fish at risk, and on the contrary, may encourage its conservation. Commercial interest through tourism to the coelacanth's habitat is not a realistic threat either, as the deepwater habitat is largely inaccessible. In the 1980s there was a rumor that Japanese scientists were attempting to develop a new anti-aging serum using the coelacanth notochord oil. Although these claims made international headlines, the rumor has since been rejected. As Fricke pointed out (Fricke, 1998), the unsubstantiated rumor of the `fountain of youth' serum had an unexpected result of stirring publicity and conservation interest in the fish. Interest in the coelacanth notochord oil for medicinal purposes does not pose a threat to the species, as claims of its life extending properties are unsubstantiated.

Interest in coelacanth specimens on the black market is a possible threat to the species. The concern mostly surrounds a curio trade rather than a potential aquarium trade. Because the fish is deep-water dependent, it survives for only a short period of time at the surface, and thus far, is not maintained in aquariums. Several attempts have been made to keep the coelacanth alive in captivity, but these attempts have demonstrated that the deep water fish is fragile and that it has been shown to survive at the surface for less than 10 hours (Hughes et al., 1972); the cause of death is thought to be a combination of capture stress and overheating resulting in asphyxiation. Comment threads found on the popular Web site Monster Fish Keepers, a forum for private aquarium and fish hobbyists, reveal widespread knowledge of the coelacanth's fragility; these hobbyists express general understanding that the coelacanth's life can be sustained at surface depth no longer than a few hours (Hamlin, 1992; Monsterfish, 2007). Thus, black market trade of the coelacanth for private aquaria is not a realistic threat. However, the black-market curio trade may be a source of exploitation. The same fish hobbyist forums reveal general interest in the fish as a curio specimen, and willingness to pay large sums relative to the typical Comoran income for a dead specimen (Monsterfish, 2009). Thus, black market curio trade may provide an economic incentive for capture of the fish. However, we did not find data suggesting that a black market curio trade is currently active.

Since discovery of the species in 1938, international scientists and researchers have cherished the coelacanth as the only representative of an important evolutionary branch in the tree of life. This has led to a long history of surveys to better understand the fish's ecology, habitat, distribution, and evolution. A tissue library from bycaught specimens is maintained at the Max Planck Institute in Germany, which provides the opportunity for scientific use of samples derived from these accidental coelacanth catches (Fricke, 1998). Coelacanth specimens have been used by more than 30 laboratories. In earlier years of coelacanth research, a reward of US$300-400 was offered to fishermen for each coelacanth caught (Fricke, 1998). However, those rewards have not been offered for decades. Prior to strict regulations on coelacanth trade, the global museum trade offered between US$400 and US$2000 for each specimen caught. Today, trade of the coelacanth is prohibited by the Convention on International Trade in Endangered Species (CITES) because the coelacanth is listed as an Appendix I species; however, some transfer of specimens for scientific study is permitted. We did not find any evidence that targeted coelacanth catch for scientific purposes is occurring. Thus, the demand for specimens for scientific research is not considered a threat.

In the future, scientific interest and study may be used as a basis for the public display of the coelacanth. The public display of the fish would be of high commercial value, and efforts to keep the coelacanth in captivity have already been made. In the late 1980s and early 1990s, American and Japanese aquariums attempted to directly capture and bring the coelacanth into captivity (Suzuki et al., 1985; Hamlin, 1992). These attempts were not successful; it was determined that coelacanth cannot be directly caught, and that they only survive for a few hours outside of their deep water environments (Hamlin, 1992). In the future, larger aquariums may pursue the use of pressurized tanks to keep the coelacanth alive in captivity, but their success is uncertain given the challenge of transporting a fish from its native habitat, and then maintaining it in an aquarium environment.

Coelacanth habitat preference and distribution is dictated by specialized requirements for appropriate shelter (caves, caverns, and shelves), prey availability, and a combination of depth and temperature that meets the fish's need for oxygen (relating to optimal blood saturation at 15 °C) (Hughes, 1972). Evidence from coelacanth habitation in South Africa is particularly useful in demonstrating the trade-offs among these important characteristics: There, coelacanths occupy depths of 100-140 m. The optimal temperature for the uptake of oxygen (15 °C) occurs at lower depths of 200 m, where fewer caves exist. It is thought that the occupation of shallower depths is a trade-off between the need for shelter and optimal oxygen uptake; increases in oceanic temperature as is expected in connection with climate change may disrupt the tight balance between coelacanths' metabolic needs and the need for refuge (Roberts et al., 2006).

Across the globe, ocean temperature is increasing at an accelerated rate (IPCC, 2013). The extent of this warming is reaching deeper and deeper waters (Abraham et al. 2013). Increase of global mean surface temperatures for 2081-2100 relative to 1986-2005 is projected to likely be in the ranges derived from the concentration-driven CMIP5 model simulations by the Intergovernmental Panel on Climate Change (IPCC), that is, 0.3 °C to 1.7 °C (RCP2.6), 1.1 °C to 2.6 °C (RCP4.5), 1.4 °C to 3.1 °C (RCP6.0), or 2.6 °C to 4.8 °C (RCP8.5) (IPCC, 2013). While these predictions relate to surface ocean temperatures, evidence from deep-water ocean measurements and models suggest that heat flux to the deep ocean has accelerated over the last decade (Abraham et al., 2013). If deep-water warming continues to keep pace with (or exceed the pace of) surface warming, even the most conservative IPCC scenarios may mean a warming of current coelacanth habitat.

The coelacanth is typically observed at 15-20 °C, with upper thermal preferences of 22-23 °C (Hughes et al., 1972). The effect of these thermal boundaries on the coelacanth's distribution has been demonstrated by a 1994 survey of the Comoro Islands, which revealed a 68 percent decrease in cave inhabitants and a 32 percent decrease in the total number of coelacanths encountered as compared to a 1991 survey (Hissmann et al., 1998). Temperature is thought to have directly led to this decline in coelacanth observations; in 1994, temperature of the survey region was 25.1 °C, the warmest ever recorded by researchers there (Hissmann et al., 1998). However, it is important to note that individually-identifiable coelacanths had returned to their previous habitat in subsequent surveys (Fricke et al., 2011); this suggests that the warm conditions in 1994 led to a displacement of coelacanth habitat, but did not lead to extirpation of that population, or a reduction in the population abundance. This information suggests that warming may impact coelacanth distribution, but there may be suitable habitat to accommodate a displacement of populations, where warming may not lead to decreases in population sizes or extirpation of populations. Despite deep water warming that has occurred over the last decade, the surveyed coelacanth population in the Comoros is described as stable, and not declining (Fricke et al., 2011).

Based on the majority of climate model predictions, it is likely that current coelacanth habitat will reach temperatures exceeding the fish's thermal preferences by 2100 (IPCC, 2013). It is unlikely that the low-diversity fish with long generation times will physiologically adapt to withstand the metabolic stress of a warming ocean. However, the fish may be able to move to suitable habitat outside of its current range, thus adapting its range to avoid the warming deep water conditions. If the fish is displaced based on its need for cooler waters, but complex cave shelters are not available, local extirpation or range restriction may occur. However, currently, these impacts and responses are highly uncertain. Thus, it is reasonable to conclude that a warming ocean may impact the fish's distribution, but the impact of warming on the future viability of the species is uncertain. Due to the coelacanth's temperature-dependent oxygen demand, coupled with a highly specific need for deep structurally complex cave shelter, warming oceanic waters may pose a threat to the coelacanth and displacement of populations, but the impact of this threat on the future viability of the species is highly uncertain, and climate change threats have not been clearly or mechanistically linked to any decline in coelacanth populations.

CITES Appendix I regulates trade in species in order to reduce the threat international trade poses to those species. The coelacanth is included in CITES-Appendix I. Appendix I addresses those species deemed threatened with extinction by international trade. CITES prohibits international trade in specimens of these species except when the purpose of the import is not commercial, meets criteria for other types of permits, and can otherwise be legally done without affecting the sustainability of the population, for instance, for scientific research. In these exceptional cases, trade may take place provided it is authorized by the granting of both an import permit and an export permit (or re-export certificate). We found no evidence of illegal trade of the coelacanth. Trade is limited to the transfer of specimens for scientific purposes. There is no evidence that CITES regulations are inadequate to address known threats such that they are contributing to the extinction risk of the species.

The coelacanth is also listed as Critically Endangered on the International Union for the Conservation of Nature's (IUCN) Red List. The IUCN is not a regulatory body, and thus the critically endangered listing does not impart any regulatory authority to conserve the species.

The threat to the coelacanth stemming from anthropogenic climate change includes elevated ocean temperature reaching its deep-water habitat and resulting in decreased fitness or relocation of populations based on elimination of suitable habitat, which may become restricted due to the tight interaction between the coelacanth's thermal requirements and need for highly complex cave shelter and prey. Impacts of climate change on the marine environment are already being observed in the Indian Ocean and elsewhere (Hoerling et al., 2004; Melillo et al., 2014) and the most recent IPCC assessment provides a high degree of certainty that human sources of greenhouse gases are contributing to global climate change (IPCC, 2013). Countries have responded to climate change through various international and national mechanisms, including the Kyoto Protocol of 2007. Because climate change-related threats have not been clearly or mechanistically linked to decline of coelacanths, the adequacy of existing or developing measures to control climate change threats is not possible to fully assess, nor are sufficient data available to determine what regulatory measures would be needed to adequately protect this species from the effects of climate change. While it is not possible to conclude that the current efforts have been inadequate such that they have contributed to the decline of this species, we consider it likely that coelacanth will be negatively impacted by climate change given the predictions of widespread ocean warming (IPCC, 2013).

In general, demographic characteristics of the coelacanth make it particularly vulnerable to exploitation. While coelacanth abundance across its entire range is not well understood, it is likely that population sizes across the Western Indian Ocean are small, as described in Whittaker (2014). The likelihood of low abundance makes coelacanth populations more vulnerable to extinction by elevating the impact of stochastic events or chronic threats resulting in coelacanth mortality. Their growth rate and productivity is extremely limited. The coelacanth has one of the slowest metabolisms of any vertebrate, and this relates to their meager demand for food, slow swim speed and passive foraging, need for refuge to rest, and small gill surface area which limits their absorption of oxygen. In addition, their gestation period is longer than any vertebrate (3 years), although their fecundity is moderate. They are long-lived species, with long generation times. The extremely long gestation period and late maturity makes the coelacanth particularly vulnerable to external threats such as bycatch, possibly impeding recovery from mortality events (Froese et al., 2000). Genetic data suggest that the coelacanth comprises independent and isolated populations, originating in the Comoros, but fully established around the Western Indian Ocean. The small and isolated nature of coelacanth populations, only three of which are confirmed to exist, increases vulnerability by preventing their replacement and recovery from external threats and mortality events, and increases the potential for local extirpations. Finally, the species exhibits extremely low levels of diversity (Schartl et al., 2005). Low levels of diversity reflect low adaptive and evolutionary potential, making the coelacanth particularly vulnerable to environmental change and episodic events. These events may reduce diversity further, and result in a significant change or loss of variation in life history characteristics (such as reproductive fitness and fecundity), morphology, behavior, or other adaptive characteristics. Due to their low diversity, coelacanth populations may be at an increased risk of random genetic drift and could experience the fixing of recessive detrimental genes that could further contribute to the species' extinction risk (Musick, 2011).

While demographic factors increase the coelacanth's vulnerability, the status review classified the risk of threats across its range as low or very low (Whittaker, 2014). We found that, in general, the coelacanth is largely buffered from habitat impacts due to its occurrence in deep water. Thus, the threats of dynamite fishing, pollution, land-use changes, and sedimentation are considered low-risk. The direct loss of coelacanth habitat may occur if the deep port of Mwambami Bay is developed off the coast of Tanzania. However, whether plans to build this port will come to fruition remains uncertain, and the effects will impact a small portion of the coelacanth's range. The threat of port development does not represent a widespread threat to the species, and the port of Mwambami Bay is the only large coastal development project (that we found) that would directly impact the fish.

As for impacts from overutilization, bycatch has historically been thought to pose the greatest threat to the coelacanth, but survey data show there is no observed link between coelacanth bycatch and population decline. A decade ago, the Comoros oilfish fishery was responsible for the highest rate of coelacanth bycatch. Historically, the Comoran fishery was responsible for catch rates of about 3 fish per year, and is not thought to have contributed to declines in population abundance. While the Comoran oilfish fishery has seen recent declines in effort and has never contributed to population decline of the coelacanth, a greater threat of bycatch has emerged in Tanzania over the last decade. As evidenced by high rates of coelacanth bycatch via the shark gillnet fishery, which began in 2001 in Tanzania, this fishing method has the potential to impact the coelacanth. Since 2003 in Tanzania, coelacanth catch rates have been more than 3 times greater than ever observed in the Comoros, at over 10 fish per year. It is unclear whether this catch rate is unsustainable due to limited information on trends and abundance of the Tanzanian population. While traditional Comoran handline fishing is no longer the most pressing bycatch threat to the fish, data suggest that the expansion of a shark gill net fishery throughout the Western Indian Ocean could result in additional coelacanth bycatch. The reduction of sustainable fisheries throughout the east African and South African coastline may encourage shifts to alternative fishing methods, such as gillnets, or trawling closer to shore, both of which could increase the probability of coelacanth bycatch. Bycatch in Tanzania is an ongoing threat, and potential for additional coelacanth bycatch across the fish's range poses a potential but uncertain threat to the fish's persistence into the foreseeable future. Coelacanth population abundance in Tanzania, and whether current bycatch rates are sustainable, is unknown. Thus, the risk of bycatch across the species' entire range is generally low. There is no real indication that overutilization for scientific purposes, public display, or the curio trade is occurring; thus we do not consider these factors as contributing a risk to the future persistence of the species across its range.

Because threats are low across the species' range, we have no reason to consider regulatory measures inadequate in protecting the species.

Regarding other natural or manmade factors, the threat of climate change via ocean warming may work synergistically to enhance all other threats to the coelacanth across its range, but the nature of these impacts is highly uncertain as described in Whittaker (2014). The extent of this impact on the coelacanth remains uncertain, and there has been no clear or mechanistic link between climate change or temperature warming and coelacanth population declines. Thus, the threat of climate change poses a low risk to the coelacanth.

Overall, the fish's demographic factors make it particularly vulnerable to ongoing and future threats, but existing threats pose a generally low risk. Thus, we find that the coelacanth is at a low risk of extinction due to current and projected threats to the species.

Since its discovery, much debate has surrounded the need to conserve the coelacanth, as an evolutionary relic and for its value to science. The long history of this debate was summarized by Bruton (1991). The international organization the Coelacanth Conservation Council (CCC) has been the primary body advocating for coelacanth conservation over the years since 1987.

The CCC has its headquarters in Moroni, Comoros, and the Secretariat is currently in Grahamstown, South Africa with branches in Canada, the United Kingdom, the United States, Germany and Japan. The CCC has set forth general objectives of promoting coelacanth research and conservation, along with establishing an international registry of coelacanth researchers and the compilation of a coelacanth inventory and bibliography, which were published for the first time in 1991 and recently updated in 2011 (Bruton et al., 1991b; Nulens et al., 2011).

Several conservation initiatives were implemented in the Comoros in the 1990s to reduce coelacanth bycatch. For instance, fishing aggregation devices were installed to encourage pelagic fishing and reduce pressure on the coelacanth from nearshore handline fishing. During this time, the use of motorized boats was encouraged for the same purpose, in order to direct fishing off-shore and reduce the use of artisanal handlines. Initially, there were some challenges, including lack of infrastructure preventing the repair of motors. However, the fishing trend today in the Comoros shows a clear shift to motorized pelagic fishing, and reduced interest in traditional handline fishing; this trend is occurring due to a natural shift in social perspectives and local economic trends.

A supporter of coelacanth conservation and member of the U.S. Explorer Club, Jerome Hamlin, author and curator of the Web site DINOFISH.com, has encouraged the use of a `Deep Release Kit' for coelacanth conservation when bycaught. The Deep Release Kit was created in response to the `Save the Coelacanth Contest' sponsored by DINOFISH.com (Hamlin, 2014). The kit consists of a barbless hook attached to a sack. The fisherman puts some of his sinker stones in the sack, places the hook in the lower jaw of the fish he has just caught with the shank pointing down to the sack, and releases the fish to the bottom where it frees itself. The purpose of the Deep Release procedure is to get the fish quickly to the cold bottom water with no further exertion on its part. A surface release (in theory) leaves the fish without the strength to get back down to depth. Hundreds of these devices have been distributed in the Comoros and Tanzania. These kits are some of the only direct coelacanth conservation measures in the Comoros or Tanzania. Yet, it is unclear whether these have been used at sea, their success is unproven, and it is unknown whether the method has been adopted by local fishermen.

Ongoing scientific research on the coelacanth may play a role in coelacanth conservation, as management of the species can improve with a more complete understanding of its biology and natural history. In 2002, South Africa instituted its African Coelacanth Ecosystem Programme, which has coordinated an extensive array of research including bathymetric surveys, taxonomic studies, and observational expeditions. This program is funded by the Global Environment Facility of the World Bank and it is in its third phase, taking an ecosystem-based approach to understanding coelacanth distribution and habitat utilization across the Western Indian Ocean, and providing deep-water research tools and resources for this research.

Local efforts for marine conservation exist in the Comoros. For example, the Mohéli Marine Park takes a co-management approach to stop some destructive fishing and conserve marine habitat using a series of no-take reserves. The park encompasses 212 km2, and was set up during a 5-year biodiversity conservation project which began in 1998, funded by the World Bank's Global Environment Facility; the goals of the project were to address the loss of biodiversity in Comoros and develop local capacity for natural resource management (Granek et al., 2005). However, no alternative revenue-generating activities have been provided, making life difficult for some fishermen. The World Bank's Global Environment Facility biodiversity management project in the Park ended in 2003, and there has been no source of additional financing to continue the resource co-management. The Moheli Park has brought together some key institutions to encourage sustainable management and monitoring of marine habitat of the Comoros; however, specific laws have not been enacted, and existing legislation has not been enforced (Ahamada et al., 2002). No coelacanths have ever been caught off the island of Moheli, so the park's impact on bycatch of the species is not applicable.

Other conservation efforts in the form of marine parks distributed throughout the Western Indian Ocean may benefit the coelacanth by reducing habitat destruction and improving prey availability; however, the direct impacts of these conservation efforts on the species is difficult to evaluate. Efforts to improve marine resource management and conservation in developing nations of east Africa have increased in the past decade. Today, 8.7 percent of the continental shelf in Kenya, 8.1 percent in Tanzania, and 4.0 percent in Mozambique have been designated as marine protected areas (Wells et al., 2007). Many of these parks intersect with known coelacanth habitat, or are in range countries where coelacanths have been caught and potential populations exist. However, in many areas, ongoing socioeconomic challenges have precluded effective management of these regions (Francis et al., 2002). Analysis of east African Marine Protected Area (MPA) management has demonstrated that socio-economic barriers make it more difficult to reach conservation goals (Tobey et al., 2006). Because of this, much effort has gone into creating community-based conservation planning in recent years (e.g., Harrison (2010)). Management constraints still remain. First, there are large gaps in ecosystem knowledge surrounding these marine parks; for instance, many vital habitats and species are not yet fully represented by MPAs in place today (Wells et al., 2007). Next, monitoring is not widely implemented and data are not available to determine whether biodiversity or socio-economic goals are being met (Wells et al., 2007).

A new marine park in Tanga, Tanzania has been put in place, and was prompted by increases in coelacanth catch in the region. The Tanga Coelacanth Marine Park is located on the northern coastline of Tanzania, extending north of the Pangani River estuary 100 km along the coastline towards Mafuriko village just north of Tanga city. The park covers an area of 552 km2, of which 85 km2 are terrestrial and 467 km2 are marine. The plans for the park were announced in 2009, and a general management plan published in 2011 (Parks; MPRU, 2011). The goal of the Tanga Coelacanth Marine Park is to conserve marine biodiversity, resource abundance, and ecosystem functions of the Park, including the coelacanth and its habitat; and enable sustainable livelihoods and full participation of local community users and other key stakeholders. The plans for the park, specific to the coelacanth, are to restrict fishing within its boundaries, including fishing with deep-set shark gillnets, the primary source of coelacanth bycatch in the area. Additional restrictions against destructive fishing and development practices have been set forth in the park's 2011 general management plan (MPRU, 2011). Partnership and guidance from the IUCN has encouraged plans for community-based and adaptive park management (Harrison, 2010).

Applying the considerations mandated by our PECE policy, we determine that the implementation and enforcement of the park's regulations and goals are unclear and untested; further, there are several reasons to believe that infrastructure, funding, and park management may not be adequate to fully prevent coelacanth bycatch within the park's boundaries: For one, illegal fishing off the coast of Tanzania is high (Tobey et al., 2006; Hempson, 2008; Wells, 2009). Widespread poverty and other regional socio-economic challenges in the region have reduced the effectiveness and implementation of other east African marine parks, and it is likely that the Tanga Coelacanth Marine Park will face similar challenges (Toby, 2006; Wells, 2012). Although recommendations and goals are set in place to increase tourism to the Park as an economic offset for stricter fishing regulations, the economic infrastructure and incentives needed for this shift are not in place or have not yet been proven to be effective. Next, there are plans to build a new deep-sea port in Mwambani Bay, just 8 km south of the original old Tanga Port, which would include submarine blasting and channel dredging and destruction of known coelacanth habitat in the vicinity of Yambe and Karange islands—the site of several of the Tanzanian coelacanth catches. The new port is scheduled to be built in the middle of the Tanga Coelacanth Marine Park. The construction of Mwambani port is part of a large project to develop an alternative sea route for Uganda and other land-locked countries which have been depending on the port of Mombasa. The plans for Mwambani Bay's deep-sea port construction appear to be ongoing, despite conservation concerns. It is unclear whether this port will be built, but its presence would negate many of the benefits (even now, unproven) of the Park. The general management plan for the park will be fully evaluated every 10 years, with a mid-term review every 5 years. The effectiveness of Tanga Coelacanth Marine Park is not yet known, and for reasons described above, we do not consider this park to provide certain conservation measures that would alleviate extinction risk to the species.

As noted above, we find that the species is at a low risk of extinction throughout its range. In other words, our range-wide analysis for the species does not lead us to conclude that the species meets the definition for either an endangered species or a threatened species based on the rangewide analysis. Thus, under the final Significant Portion of Its Range (SPR) policy announced in July 2014, we must go on to consider whether the species may have a higher risk of extinction in a significant portion of its range (79 FR 37577; July 1, 2014).

The final policy explains that it is necessary to fully evaluate a portion for potential listing under the “significant portion of its range” authority only if information indicates that the members of the species in a particular area are likely both to meet the test for biological significance and to be currently endangered or threatened in that area. Making this preliminary determination triggers a need for further review, but does not prejudge whether the portion actually meets these standards such that the species should be listed:

Thus, the preliminary determination that a portion may be both significant and endangered or threatened merely requires NMFS to engage in a more detailed analysis to determine whether the standards are actually met (Id. at 37587). Unless both are met, listing is not warranted. The policy further explains that, depending on the particular facts of each situation, NMFS may find it is more efficient to address the significance issue first, but in other cases it will make more sense to examine the status of the species in the potentially significant portions first. Whichever question is asked first, an affirmative answer is required to proceed to the second question. Id. (“[I]f we determine that a portion of the range is not “significant,” we will not need to determine whether the species is endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we will not need to determine if that portion was “significant.”). Thus, if the answer to the first question is negative—whether that regards the significance question or the status question—then the analysis concludes and listing is not warranted.

After a review of the best available information, we identified the Tanzanian population of the African coelacanth as a population facing concentrated threats because of increased catch rates in this region since 2003, and the threat of a deep-water port directly impacting coelacanth habitat in this region. Due to these concentrated threats, we found that the species may be at risk of extinction in this area. Under the policy, if we believe this population also may constitute a “significant” portion of the range of the African coelacanth, then we must go on to a more definitive analysis. We may either evaluate the extinction risk of this population first to determine whether it is threatened or endangered in that portion or first determine if it is in fact “significant.” Ultimately, of course, both tests have to be met to qualify the species for listing.

We proceeded to evaluate whether this population represents a significant portion of the range of the African coelacanth. The Tanzanian population is one of only three confirmed populations of the African coelacanth, all considered to be small and isolated. Because all three populations are isolated, the loss of one would not directly impact the other remaining populations. However, loss of any one of the three known coelacanth populations would significantly increase the extinction risk of the species as a whole, as only two small populations would remain, making them more vulnerable to catastrophic events such as storms, disease, or temperature anomalies. Tanzanian and Comoran populations are approximately 1,000 km apart, ocean currents are thought to have led to their divergence over 200,000 years ago, and connectivity between them is not thought to be maintained (Nikiado et al., 2011). The South African population is separated from the Comoran and Tanzanian populations by hundreds of miles. The Tanzanian population exhibits the greatest genetic divergence from the other populations, suggesting that it may be the most reproductively isolated among them (Lampert et al., 2012). Potential catastrophic events such as storms or significant temperature changes may affect the Comoran and Tanzanian populations simultaneously, due to their closer geographic proximity. The South African population, while not as genetically isolated, may experience isolated catastrophic events due to its geographic isolation. This reasoning supports our conclusion that the Tanzanian population comprises a significant portion of the range of the species because this portion's contribution to the viability of the African coelacanth is so important that, without the members in this portion, the African coelacanth would be likely to become in danger of extinction within the foreseeable future, throughout all of its range.

Because the Tanzanian population of the coelacanth was determined to represent a significant portion of the range of the species, we performed an extinction risk assessment on the Tanzanian population by evaluating how the demographic factors (abundance, productivity/growth rate, spatial structure/connectivity, and diversity) of the species would be impacted by the ESA section 4(a)(1) factors, considering only those factors affecting the Tanzanian population.

Coelacanth abundance across its entire range is not well understood, and no abundance estimates exist for the Tanzanian population. Based on general knowledge of the African coelacanth, the Tanzanian population is likely associated with very restricted and specific habitat requirements and low growth rates. We conclude that it is likely that the population size of the Tanzanian population is small for the same reasons described above for the species as a whole: It exhibits low levels of diversity (Nikaido et al., 2013), long generation times, and restricted habitat (Hissmann et al., 2006; Fricke et al., 2011). The likelihood of low abundance makes the Tanzanian population more vulnerable to extinction by elevating the impact of stochastic events or chronic threats resulting in coelacanth mortality.

Growth rate and productivity for the Tanzanian population is thought to exhibit similar characteristics to other populations of the species. The species as a whole has one of the slowest metabolisms of any vertebrate. The extremely long gestation period and late maturity makes the Tanzanian population particularly vulnerable to external threats such as bycatch, possibly impeding recovery from mortality events (Froese et al., 2000).

The Tanzanian population is thought to represent a single isolated population of the species. It has been estimated that this population diverged from the rest of the species 200,000 years ago (Nikaido et al., 2011). Differentiation of individuals from the Tanzanian population may relate to divergence of currents in this region, where hydrography limits gene flow and reduces the potential for drifting migrants. The isolated nature of the Tanzanian population lowers the potential for its recovery from external threats; the population is not thought to maintain connectivity with other populations, and thus has no source for replacement of individuals lost outside of its own reproductive processes. Fast-moving currents along the Eastern coast of Africa are thought to prevent connectivity among populations in the region (Nikaido et al., 2011). This may be particularly true for Tanzania. We consider current evidence for the Tanzanian population's high isolation from the rest of the species to contribute to a moderate risk of extinction, as these are natural factors (relevant under section 4(a)(1)(E)) that may increase vulnerability of this population by preventing its replacement and recovery from external threats and mortality events, and increase the potential for extinction.

Genomic analyses of individuals from the Tanzanian population and other representatives of the species reveal that divergence and diversity within and among populations is very low (Nikaido et al., 2013). Low levels of diversity reflect low adaptive and evolutionary potential, making the Tanzanian population particularly vulnerable to environmental change and episodic events. These events may reduce diversity further, and result in a significant change or loss of variation in life history characteristics (such as reproductive fitness and fecundity), morphology, behavior, or other adaptive characteristics. Due to the Tanzanian population's low diversity, this population may be at an increased risk of random genetic drift and could experience the fixing of recessive detrimental genes that could further contribute to the species' extinction risk (Musick, 2011).

Regarding habitat threats to the Tanzanian population, loss and degradation of coelacanth habitat can take the form of pollution, dynamite fishing, sedimentation, and direct loss through development. Future human population growth and land use changes off the coast of Tanzania increase these threats to the Tanzanian population, but their trends and impacts are highly uncertain. In general, the coelacanth is largely buffered from habitat impacts due to its occurrence in deep water, and general effects of pollution and development are similar to those described for the rest of the species. However, specifically related to the Tanzanian population, direct loss of habitat is likely to occur if the deep port of Mwambami Bay is developed. The port is planned to be built just 8 km south of the original old Tanga Port, and this would include submarine blasting and channel dredging and destruction of known coelacanth habitat in the vicinity of Yambe and Karange islands—the site of several of the Tanzanian coelacanth catches. The new port is scheduled to be built in the middle of the Tanga Coelacanth Marine Park. The construction of Mwambani port is part of a large project to develop an alternative sea route for Uganda and other land-locked countries that have been depending on the port of Mombasa. The plans for Mwambani Bay's deep-sea port construction appear to be ongoing, despite conservation concerns, and thus it is reasonable to conclude that it poses a likely threat to the species. Whether plans to build this port will come to fruition remains uncertain, but if built, the deep port could significantly impact the Tanzanian population of coelacanths by destroying habitat directly. For the Tanzanian population, the construction of this deep-water port could be catastrophic, and it is clear that the boundaries of the new Tanga Marine Park are insufficient in halting plans for the port's development.

As for impacts from overutilization, bycatch has historically been thought to pose the greatest threat to the coelacanth. While survey data from the Comoros show there is no observed link between coelacanth bycatch and population decline, since 2003 in Tanzania, coelacanth catch rates have been more than 3 times greater than ever observed in the Comoros, at over 10 fish per year. It is unclear whether this catch rate is sustainable due to limited information on trends and abundance of the Tanzanian population. The further expansion of a shark gill net fishery in Tanzania, as has been observed over the last decade, could result in additional coelacanth bycatch. Bycatch in Tanzania is an ongoing threat. While direct data assessing Tanzanian coelacanth population decline are not available, the relatively high and persistent catch rate in this region has the potential to deplete this small and isolated population, which has life history characteristics that greatly impede its recovery and resiliency to mortality.

We consider the threat of overutilization for scientific purposes, public display, or for the curio trade as low for reasons described above, as they apply to the rest of the species.

We consider the threat of inadequate regulatory mechanisms as low for the Tanzanian population for the same reasons described above for the rest of the species. Additionally, we classify the risk of climate change as low for the Tanzanian population for the same reasons described above for the rest of the species.

Overall, the Tanzanian population's demographic factors make it particularly vulnerable to ongoing and future threats, which pose a moderate risk to the species. Based on the best available information, threats of bycatch to the Tanzanian population appear to be persistent, and the potential development of a deep port within this population's habitat could be catastrophic to the population in the foreseeable future. Thus, we find that the Tanzanian population is at a moderate risk of extinction due to current and projected threats.

Therefore, we conclude that the Tanzanian population is at moderate risk of extinction in a significant portion of the African coelacanth's range of the species.

In accordance with the SPR policy, if a species is determined to be threatened or endangered in a significant portion of its range, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies. Because the Tanzanian population represents a significant portion of the range of the species, and this population is at a moderate risk of extinction, we performed a DPS analysis on that population.

As defined in the ESA (Sec. 3(15)), a “species” includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. The joint NMFS-U.S. Fish and Wildlife Service (USFWS) policy on identifying distinct population segments (DPS) (61 FR 4722; February 7, 1996) identifies two criteria for DPS designations: (1) The population must be discrete in relation to the remainder of the taxon (species or subspecies) to which it belongs; and (2) the population must be “significant” (as that term is used in the context of the DPS policy, which is different from its usage under the SPR policy) to the remainder of the taxon to which it belongs.

Discreteness: A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) “It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation”; or (2) “it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D)” of the ESA (61 FR 4722; February 7, 1996).

Significance: If a population segment is found to be discrete under one or both of the above conditions, then its biological and ecological significance to the taxon to which it belongs is evaluated. This consideration may include, but is not limited to: (1) “Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that the loss of the discrete population segment would result in a significant gap in the range of a taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; and (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics” (61 FR 4722; February 7, 1996).

The Tanzanian population cannot be differentiated from other populations based on its morphology. In fact, no coelacanth population exhibits significant distinguishing morphological characteristics, and morphological differences within the Latimeria genus as a whole have been debated (Pouyad et al., 1999, Holder et al., 1999; Erdmann et al., 1999). No unique behavioral, physical, or ecological characteristics have been identified for the Tanzanian population to set it apart from the rest of the taxon. Only a single dedicated survey of the Tanzanian population is available; thus, future surveys may reveal distinguishing ecological features of the population.

As stated above, genetic data on coelacanth population structure are limited and known distribution of coelacanth populations is potentially biased by targeted survey efforts and fishery catch data. However, recent whole-genome sequencing and genetic data available for multiple coelacanth specimens can be used to cautiously infer some patterns of population structure and connectivity across the coelacanth's known range (Nikaido et al., 2011; Lampert et al., 2012; Nikaido et al., 2013). Intraspecific population structure has been examined using L. chalumnae specimens from Tanzania, the Comoros, and southern Africa (Nikaido et al., 2011; Lampert et al., 2012; Nikaido et al., 2013). These studies suggest that L. chalumnae comprises multiple isolated and reproductively independent populations distributed across the Western Indian Ocean, only three which have been confirmed (inhabiting waters off of Tanzania, the Comoros, and South Africa).

While population structure of the taxon, described earlier, is not fully resolved, all genetic data available suggest that the Tanzanian population represents a single isolated population of the species. Multiple genetic studies corroborate a significant divergence between Tanzanian individuals, and individuals from the South African and Comoros populations (Nikaido et al.; 2011, Lampert et al., 2012). This includes evidence from both nuclear and mitochondrial DNA (Nikaido et al., 2011, Lampert et al., 2012, Nikaido et al., 2013). The Tanzanian population is the most diverged of all coelacanth populations (Lampert et al., 2012). Differentiation of individuals from the Tanzanian population may relate to divergence of currents in this region, where hydrography limits gene flow and reduces the potential for drifting migrants (Nikaido et al., 2011). All available data suggest that the Tanzanian population does not likely maintain connectivity with other populations, and likely has no source for replacement of individuals outside of its own reproductive processes.

The Tanzanian population is geographically isolated from the Comoran and South African populations. The Tanzanian population is approximately 1,000 km away from the Comoran population and over 4,000 km away from the South African population, with oceanic currents further reducing their potential for connectivity. While it is thought that the Comoran population is the source of other populations along the Western Indian Ocean, the Tanzanian and South African populations may have been established as many as 200,000 years ago, as genetic data suggest (Nikaido et al., 2011).

Based on genetic evidence, and the clear geographic isolation of the Tanzanian population, we determined that the Tanzanian population of L. chalumnae is discrete from other populations within the species.

The Tanzanian population does not persist in an ecological setting unusual or unique for the taxon. Although the Tanzanian individuals are thought to inhabit limestone ledges rather than volcanic caves where Comoran and South African individuals are found, the depth, prey, temperature, and shelter requirements are remarkably similar among the known coelacanth populations (Hissman et al., 2006). We found no evidence to suggest that differences in the ecological setting of the Tanzanian population have led to any adaptive or behavioral characteristics that set the population apart from the rest of the taxon, or contribute significant adaptive diversity to the species.

The Tanzanian population is one of only three known populations within the species. Although it is not the only surviving natural occurrence of the taxon, we determined that loss of this population segment would result in a significant gap in the taxon's range for the following reasons: Although coelacanth populations are not thought to maintain reproductive connectivity, loss of one population would make the other two populations more vulnerable to catastrophic events, as explained earlier. The extent of the Tanzanian population's range is not known, but given the existence of only three known coelacanth populations considered to be small and isolated, loss of the Tanzanian population would constitute a significant gap in the range of the taxon, and thus we consider this population to be significant to the taxon as a whole.

We determined that the Tanzanian population is discrete based on evidence for its genetic and geographic isolation from the rest of the taxon. The population also meets the significance criterion set forth by the DPS policy, as its loss would constitute a significant gap in the taxon's range. Because it is both discrete and significant to the taxon as a whole, we identify the Tanzanian population as a valid DPS.

We assessed the ESA section 4(a)(1) factors and conclude that the species, viewed across its entire range, experiences a low risk of extinction. However, we determined that the Tanzanian population constitutes a significant portion of the range of the species, as defined by the SPR policy (79 FR 37577; July 1, 2014). The Tanzanian population faces ongoing or future threats from overutilization and habitat destruction, with the species' natural biological vulnerability to overexploitation exacerbating the severity of the threats. The Tanzanian population faces demographic risks, such as population isolation with low productivity, which make it likely to be influenced by stochastic or depensatory processes throughout its range, and place the population at an increased risk of extinction from the aforementioned threats within the foreseeable future. In our consideration of the foreseeable future, we evaluated how far into the future we could reliably predict the operation of the major threats to this population, as well as the population's response to those threats. We are confident in our ability to predict out several decades in assessing the threats of overutilization and habitat destruction, and their interaction with the life history of the coelacanth, with its lifespan of 40 or more years. With regard to habitat destruction, we evaluated the likelihood of the deep water port being constructed. If the port is to be developed, the results could significantly impact the Tanzanian coelacanth population. Evidence suggests that the plans for its construction are moving forward; its construction is not certain, but likely. If built, the construction of the port would likely occur within the next decade. With bycatch, and its interaction with the fish's demographic characteristics, we feel that defining the foreseeable future out to several decades is appropriate. Based on this information, we find that the Tanzanian population is at a moderate risk of extinction within the foreseeable future. Therefore, we consider the Tanzanian population to be threatened.

In accordance with the our SPR policy, if a species is determined to be threatened or endangered across a significant portion of its range, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies. Based on the best available scientific and commercial information as presented in the status report and this finding, we do not find that the African coelacanth L. chalumnae is currently in danger of extinction throughout all of its range, nor is it likely to become so in the foreseeable future. However, because the Tanzanian population represents a significant portion of the range of the species, and this population is threatened, we conclude that the African coelacanth is threatened in a significant portion of its range. Because the population in the significant portion of the range is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.

Therefore, we propose to list the Tanzanian DPS of the African coelacanth as threatened under the ESA.

The petition requested that, if the African coelacanth were listed under the ESA, the Indonesian coelacanth also be listed due to its “similarity of appearance.” The ESA provides for treating any species as an endangered species or a threatened species even if it is not listed as such under the ESA if: (1) Such species so closely resembles in appearance, at the point in question, a species which has been listed pursuant to section 4 of the ESA that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species; (2) the effect of this substantial difficulty is an additional threat to the listed species; and (3) such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of the ESA.

While the African and Indonesian species exhibit morphological similarities, they are clearly geographically and genetically separated. Enforcement personnel would have no difficulty in differentiating between the Tanzanian DPS of the African coelacanth and the Indonesian coelacanth because of similarity of appearance because their geographic separation (in the Western Indian Ocean and Indo-Pacific, respectively) should facilitate regulation of taking. The species experience no overlap in range and catch of both species is relatively low, and well-documented. We do not deem ESA protection for the Indonesian coelacanth to be advisable at this time, as the clear genetic and geographic differences between the two species set them apart in a way that allows for easy identification, regardless of their similar appearance.

Because we are proposing to list the Tanzanian DPS as a threatened species under the ESA, we also considered any potential similarity of appearance issues that may arise in differentiating between the proposed DPS and other populations of the species. No morphological characteristics separate the Tanzanian DPS from other populations of the species. However, we do not conclude that listing the South African or Comoran populations based on similarity of appearance is warranted. First, outside of Tanzania, coelacanth catches are infrequent, and well documented. Second, the three known coelacanth populations do not overlap geographically. Differentiation between the African and Indonesian coelacanth, and likewise between the Tanzanian DPS and other populations of the species, could potentially pose a problem for enforcement of section 9 prohibitions on trade, should any be applied. However, that issue is addressed, at least with respect to imports and exports, by the inclusion of coelacanth in CITES Appendix I.

Conservation measures provided for species listed as endangered or threatened under the ESA include recovery plans (16 U.S.C. 1533(f)); concurrent designation of critical habitat, if prudent and determinable (16 U.S.C. 1533(a)(3)(A)) and consistent with implementing regulations; Federal agency requirements to consult with NMFS under section 7 of the ESA to ensure their actions do not jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated (16 U.S.C. 1536); and, for endangered species, prohibitions on taking (16 U.S.C. 1538). Recognition of the species' plight through listing promotes conservation actions by Federal and state agencies, foreign entities, private groups, and individuals.

Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS regulations require Federal agencies to consult with us to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. Section 7(a)(4) (16 U.S.C. 1536(a)(4)) of the ESA and NMFS/USFWS regulations also require Federal agencies to confer with us on actions likely to jeopardize the continued existence of species proposed for listing, or that result in the destruction or adverse modification of proposed critical habitat of those species. It is unlikely that the listing of this DPS under the ESA will increase the number of section 7 consultations, because the DPS occurs outside of the United States and is unlikely to be affected by Federal actions.

Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the ESA is no longer necessary. Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the maximum extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. However, critical habitat shall not be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12(h)).

The best available scientific data as discussed above identify the geographical area occupied by the species as being entirely outside U.S. jurisdiction, so we cannot designate critical habitat for this species. We can designate critical habitat in areas in the United States currently unoccupied by the species, if the area(s) are determined by the Secretary to be essential for the conservation of the species. Based on the best available information, we have not identified unoccupied area(s) in U.S. water that are currently essential to the species proposed for listing. Thus, as we discussed above, we will not propose critical habitat for this species.

On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that requires NMFS to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the ESA.

Because we are proposing to list the Tanzanian DPS of the African coelacanth as threatened, no prohibitions of Section 9(a)(1) of the ESA will apply to this species.

We are proposing to list Tanzanian DPS of the African coelacanth, L. chalumnae as threatened under the ESA. In the case of threatened species, ESA section 4(d) leaves it to the Secretary's discretion whether, and to what extent, to extend the section 9(a) “take” prohibitions to the species, and authorizes us to issue regulations necessary and advisable for the conservation of the species. Thus, we have flexibility under section 4(d) to tailor protective regulations, taking into account the effectiveness of available conservation measures. The 4(d) protective regulations may prohibit, with respect to threatened species, some or all of the acts which section 9(a) of the ESA prohibits with respect to endangered species. These 9(a) prohibitions apply to all individuals, organizations, and agencies subject to U.S. jurisdiction. We will consider potential protective regulations pursuant to section 4(d) for the proposed threatened coelacanth DPS. We seek public comment on potential 4(d) protective regulations (see below).

To ensure that any final action resulting from this proposed rule to list the Tanzanian DPS of the African coelacanth will be as accurate and effective as possible, we are soliciting comments and information from the public, other concerned governmental agencies, the scientific community, industry, and any other interested parties on information in the status review and proposed rule. Comments are encouraged on this proposal (See DATES and ADDRESSES). We must base our final determination on the best available scientific and commercial information. We cannot, for example, consider the economic effects of a listing determination. Before finalizing this proposed rule, we will consider the comments and any additional information we receive, and such information may lead to a final regulation that differs from this proposal or result in a withdrawal of this listing proposal. We particularly seek:

(1) Information concerning the threats to the Tanzanian DPS of the African coelacanth proposed for listing;

(2) Taxonomic information on the species;

(3) Biological information (life history, genetics, population connectivity, etc.) on the species;

(4) Efforts being made to protect the species throughout its current range;

(5) Information on the commercial trade of the species;

(6) Historical and current distribution and abundance and trends for the species; and

(7) Information relevant to potential ESA section 4(d) protective regulations for the proposed threatened DPS, especially the application, if any, of the ESA section 9 prohibitions on import, take, possession, receipt, and sale of the African coelacanth.

We request that all information be accompanied by: (1) Supporting documentation, such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents.

In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing a minimum peer review standard. Similarly, a joint NMFS/FWS policy (59 FR 34270; July 1, 1994) requires us to solicit independent expert review from qualified specialists, in addition to a public comment period. The intent of the peer review policy is to ensure that listings are based on the best scientific and commercial data available. We solicited peer review comments on the African coelacanth status review report, including from: Five scientists with expertise on the African coelacanth. We incorporated these comments into the status review report for the African coelacanth and this 12-month finding.

A complete list of the references used in this proposed rule is available upon request (see ADDRESSES).

The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981), NMFS has concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA) (See NOAA Administrative Order 216-6).

As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this proposed rule is exempt from review under Executive Order 12866. This proposed rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.

In accordance with E.O. 13132, we determined that this proposed rule does not have significant Federalism effects and that a Federalism assessment is not required. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, this proposed rule will be given to the relevant governmental agencies in the countries in which the species occurs, and they will be invited to comment. We will confer with the U.S. Department of State to ensure appropriate notice is given to foreign nations within the range the DPS (Tanzania). As the process continues, we intend to continue engaging in informal and formal contacts with the U.S. State Department, giving careful consideration to all written and oral comments received.

For the reasons set out in the preamble, we propose to amend 50 CFR part 223 as follows:

On August 26, 2014, we received a petition from Friends of Animals requesting that we list the common thresher shark (Alopias vulpinus) as endangered or threatened under the ESA, or, in the alternative, delineate six distinct population segments (DPSs) of the common thresher shark, as described in the petition, and list them as endangered or threatened. Friends of Animals also requested that critical habitat be designated for this species in U.S. waters concurrent with final ESA listing.

The petitioner states that the common thresher shark merits listing as an endangered or threatened species under the ESA because of the following: (1) The species faces threats from historical and continued fishing for both commercial and recreational purposes; (2) life history characteristics and limited ability to recover from fishing pressure makes the species particularly vulnerable to overexploitation; and (3) there is a lack of regulations that specifically protect the common thresher shark.

Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531 et seq.), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and promptly publish the finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find that substantial scientific or commercial information in a petition and in our files indicates the petitioned action may be warranted (a “positive 90-day finding”), we are required to promptly commence a review of the status of the species concerned, which includes conducting a comprehensive review of the best available scientific and commercial information. Within 12 months of receiving the petition, we must conclude the review with a finding as to whether, in fact, the petitioned action is warranted. Because the finding at the 12-month stage is based on a significantly more thorough review of the available information, a “may be warranted” finding at the 90-day stage does not prejudge the outcome of the status review.

Under the ESA, a listing determination may address a “species,” which is defined to also include subspecies and, for any vertebrate species, any DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint NMFS-U.S. Fish and Wildlife Service (USFWS) policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (“DPS Policy”; 61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively; 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, the determination of whether a species is threatened or endangered shall be based on any one or a combination of the following five section 4(a)(1) factors: The present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).

ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. When evaluating whether substantial information is contained in a petition, we must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).

At the 90-day stage, we evaluate the petitioner's request based upon the information in the petition including its references, and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioner's sources and characterizations of the information presented, if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude that it supports the petitioner's assertions. Conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90-day finding, if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue.

To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species at issue faces extinction risk that is cause for concern; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species at issue (e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate the potential links between these demographic risks and the causative impacts and threats identified in ESA section 4(a)(1).

Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.

Many petitions identify risk classifications made by non-governmental organizations, such as the International Union for the Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but such classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” (http://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a petition cites such classifications, we will evaluate the source of information that the classification is based upon in light of the standards on extinction risk and impacts or threats discussed above.

The common thresher shark (Alopias vulpinus) is a large highly migratory pelagic species of shark found throughout the world in temperate and tropical seas. In the North Atlantic, common thresher sharks occur from Newfoundland, Canada, to Cuba in the west and from Norway and the British Isles to the African coast in the east (Gervelis, 2013). Landings along the South Atlantic coast of the United States and in the Gulf of Mexico are rare. Common thresher sharks also occur along the Atlantic coast of South America from Venezuela to southern Argentina. In the eastern Atlantic, A. vulpinus ranges from the central coast of Norway south to, and including, the Mediterranean Sea and down the African coast to the Ivory Coast. They appear to be most abundant along the Iberian coastline, particularly during spring and fall. Specimens have also been recorded at Cape Province, South Africa (Goldman, 2009). In the Indian Ocean, A. vulpinus is found along the east coast of Somalia, and in waters adjacent to the Maldive Islands and Chagos archipelago. They are also present off Australia (Tasmania to central Western Australia), Sumatra, Pakistan, India, Sri Lanka, Oman, Kenya, the northwestern coast of Madagascar and South Africa. A few specimens have been taken from southwest of the Chagos archipelago, the Gulf of Aden, and northwest Red Sea. In the western Pacific Ocean, the range of A. vulpinus includes southern Japan, Korea, China, parts of Australia and New Zealand. They are also present around several Pacific Islands, including New Caledonia, Society Islands, Fanning Islands and Hawaii. In the Northeast Pacific Ocean, the geographic range of common thresher sharks extends from Goose Bay, British Columbia, Canada to the Baja Peninsula, Mexico and out to about 200 miles from the coast (Goldman, 2009). Additionally, they are found off Chile and records exist from Panama (Campagno, 1984).

The common thresher shark possesses an elongated upper caudal lobe almost equal to its body length, which is unique to this family. It has a moderately large eye, a broad head, short snout, narrow tipped pectoral fins, no grooves on the head above the gills, and lateral teeth without distinct cusplets. The origin of the pelvic fins is well behind the insertion of the first dorsal fin. While some of the above characteristics may be shared by other thresher shark species, diagnostic features separating this species from the other two thresher shark species (bigeye thresher, A. superciliosus, and pelagic thresher, A. pelagicus) are the presence of labial furrows, the origin of the second dorsal fin posterior to the end of the pelvic fin free rear tip, and the white color of the abdomen extending upward over the pectoral fin bases, and again rearward of the pelvic fins. In living specimens, dorsal coloration may vary from brown, blue slate, slate gray, blue gray, and dark lead to nearly black, with a metallic, often purplish, luster. The lower surface of the snout (forward of the nostrils) and pectoral fin bases are generally not white and may be the same color as the dorsal surface (Goldman, 2009).

Surveys of the common thresher shark from our Southwest Fisheries Science Center (SWFSC) demonstrate habitat separation between juveniles and adults (PMFC, 2003; Smith et al., 2008). Juveniles occupy relatively shallow water over the continental shelf, while adults are found in deeper water, but rarely range beyond 200 miles (321.87 km) from the coast (PMFC, 2003; Smith et al., 2008). Both adults and juveniles are associated with highly biologically productive waters, found in regions of upwelling or intense mixing.

Common thresher sharks feed at mid-trophic levels on small pelagic fish and squid. Given their more specialized diet compared to other local pelagic sharks, they are more likely to exert top-down effects on their prey, although this remains to be demonstrated. Based on studies at the SWFSC, the top six prey species, in order, are northern anchovy, Pacific sardine, Pacific hake, Pacific mackerel, jack mackerel, and market squid (Preti et al., 2001, 2004). Thresher sharks are unique, in that they use their tail in a whip-like fashion to disorient and incapacitate their prey (Oliver, 2013).

The life span of the common thresher shark is estimated between 15 and 50 years, although additional research to confirm this is necessary (Gervalis, 2013). Thresher sharks reach maturity at approximately 5 years of age and at around 166 cm fork length for both sexes. They grow approximately 30 cm per year for the first 5 years of their lives (Gervalis, 2013; Smith et al., 2008). Maximum size has been estimated for thresher sharks along the U.S. West Coast at 550 cm (Gervalis, 2013; Smith et al., 2008). Their mode of reproduction is aplacental ovoviviparous and oophagous, and a typical litter size is 2-4 pups, with gestation thought to be around 9 months (NMFS Common Thresher Shark Fact Sheet; PMFC, 2003; Smith et al., 2008). Pupping is thought to occur in the springtime, with mating thought to occur in the summer, and nursery grounds for pups are in shallow continental shelf waters 90 m deep or less (NMFS Common Thresher Shark Fact Sheet).

The petition requests that we list the common thresher shark throughout its range, or list the species as six DPSs. The petitioner identifies six subpopulations that it believes may qualify for listing: Eastern Central Pacific, Indo-West Pacific, Northwest and Western Central Atlantic, Southwest Atlantic, Mediterranean, and Northeast Atlantic. To meet the definition of a DPS, a population must be both discrete from other populations of the species and significant to the species as a whole (61 FR 4722; February 7, 1996).

The petition does not provide biological evidence to support the existence of the six “subpopulations” identified; however, the petition states that six subpopulations of the common thresher shark are discrete. The petition goes on to define this discreteness according to the second discreteness factor listed in the NMFS/USFWS joint DPS policy, where a population can be considered discrete if it “is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.” The petitioner maintains that the “broad and varied spectrum of harvest control, habitat management, conservation status, and regulatory mechanisms” addressing the species may qualify different “subpopulations” as discrete under this discreteness factor, asserting that, “due to broad differences in regulation of their management and capture, the subpopulations of common thresher sharks should be considered sufficiently discrete for protection as DPSs under the ESA.”

The petition does not propose any boundaries for the six suggested DPSs, nor does the petition describe in any detail the ways in which different management relating to international governmental boundaries may delineate the species into boundaries aligning with the six suggested DPSs. Specific gaps in management or intergovernmental boundaries are not described as they relate to any of the six proposed DPSs. We were also unable to find information to define the six subpopulations as discrete on biological grounds. In our files, only a single preliminary study was available to suggest population structure of the common thresher shark. This study examined mitochondrial control region DNA, which demonstrated significant population structure between most pairwise comparisons, but the sample sizes were extremely low, and thus the results could not be interpreted with confidence. The data support separate Atlantic vs. Pacific populations (or at least female philopatry) (Trejo, 2005). However, based on the preliminary nature of these data, and low sample size throughout the study, these results cannot be relied upon to divide the common thresher shark into the six subpopulations proposed by the petition.

Based on information in the petition and readily available in our files, we were unable to find evidence to support the discreteness of any of the six DPSs proposed. Because of this, arguments made by the petitioner describing the potential significance of any suggested DPS are irrelevant. Thus, we conclude that the petition provides insufficient evidence to identify any DPSs of the common thresher shark at this time.

The following sections contain information found in the petition and readily available in our files to determine whether a reasonable person would conclude that an endangered or threatened listing may be warranted as a result of any of the factors listed under section 4(a)(1) of the ESA.

The petition does not provide a population abundance estimate for common thresher sharks, but points to its “vulnerable” status on the IUCN Red List, and quotes extensively from the Encyclopedia of Life, an online collaborative database intended for documenting information on all species of life. The petition asserts that a global decline of common thresher sharks has been caused mainly by commercial and recreational fishing (both direct harvest and bycatch), particularly during the 1970s and early 1980s. The petition references high commercial catch rates for common threshers along the U.S. West Coast during the 1980s, and declines in catch by the mid-1990s, indicative of overexploitation (Goldman et al., 2009). In the Northwest and Western Central Atlantic, the petition cites the Encyclopedia of Life for asserting 50-80 percent declines in common thresher shark abundance occurring from 1986-2005. The petition describes likely declines of common thresher sharks in the Mediterranean due to high fishing pressure. In the Northeast Atlantic, the petition describes variable landings prior to 2000 and a decline in landings since 2002 (ICES, 2006). Finally, the petition points to increased interest in recreational fishing of the common thresher shark, with the potential for high post-release mortality. The petition does not provide information on estimates of abundance across the range of the species.

Although historical overfishing of the common thresher shark led to serious declines in population abundance, particularly during the 1980s, regulations since the early 1990s have contributed to trends of rebuilding of the species over the past two decades in some portions of its range, particularly in the Eastern Pacific Ocean (PFMC, 2011; NMFS Common Thresher Shark Fact Sheet). However, in other portions of the species' global range, declines due to overutilization (bycatch, recreation, and directed catch) may be ongoing, leading to declines in abundance. The threat of commercial fishing is discussed in more detail below (see “Overutilization”).

The last IUCN assessment of the common thresher shark was completed in 2009 and since then several estimates of global and subpopulation trends and status have been made. Perhaps most heavily studied have been common thresher sharks in the Eastern Pacific Ocean, where the shark has historically been most heavily fished. Commercial fishing of thresher sharks in the U.S. was eliminated by gill net regulations by 1990, and within a decade, the population began to slowly rebuild to just below 50 percent of the initial subpopulation size (Camhi et al., 2007). A preliminary examination of trends in the catch-per-unit-effort and total catch of common thresher sharks in this region is consistent with earlier conclusions that the population is increasing from its decline in the late 1980s and early 1990s (PMFC, 2011). Efforts to conduct a full stock assessment have been initiated by NMFS. Based on preliminary stock assessment results, there appears to be an initial period of decline from 1981 to 1986, followed by a gradual recovery of the stock. The index is highly variable after 2000, which is possibly due to regulatory and operational changes in the fishery (SWFSC, unpublished data).

In the Northwest Atlantic, declines in relative abundance cited by the petitioner were derived from analyses of logbook data, reported in Cortés (2007). This study reported a 63 percent decline of thresher sharks (on the genus level) based on logbook data, occurring between 1986 and 2006 (Cortés, 2007). The observer index data from the same study shows an opposite trend in relative abundance, with a 28 percent increase of threshers in the Northwest Atlantic since 1992. Logbook data over the same period (1992-2006) showed a 50 percent decline in thresher sharks. The logbook dataset is the largest available for the western North Atlantic Ocean, but the observer dataset is generally more reliable in terms of consistent identification and reporting. According to observer data, relative abundance of thresher sharks (again, only at the genus level) in the western North Atlantic Ocean appears to have stabilized or even be increasing since the late 1990s (Cortés, 2007). A more recent analysis using logbook data between 1996 and 2005 provides some supporting evidence that the abundance of thresher sharks has stabilized over this time period (Baum, 2010). However, the conflicting evidence between logbook and observer data showing opposite trends in thresher shark abundance cannot be fully resolved at this time. Data are not available in the petition or in our own files to assess the trend in population abundance in this region since 2006, or to assess the trend specific to the common thresher shark. Because the logbook data from this region shows consistent evidence of a significant and continued decline in thresher sharks, we must consider this information in our 90-day determination.

For the Northeast Atlantic, there are no population abundance estimates available, but data indicate that the species is taken in driftnets and gillnets. In the Mediterranean Sea, estimates show significant declines in thresher shark abundance during the past two decades, reflecting data up to 2006; according to historical data compiled using a generalized linear model, thresher sharks have declined between 96 and 99 percent in abundance and biomass in the Mediterranean Sea (Ferretti et al., 2008).

In other areas of the world, estimates of thresher shark abundance are limited. For the Indo-West Pacific, little information is currently available on common thresher sharks. Although pelagic fishing effort in this region is high, with reported increases in recent years, the common thresher shark is more characteristic of cooler waters, and further information needs to be collected on records and catches of the species in this region (IUCN assessment, 2009).

In conclusion, trends throughout the Eastern Pacific Ocean portion of the species' range suggest that the population there is rebuilding from historical overexploitation. However, across the rest of its global range, we find evidence suggesting that population abundance of common thresher sharks has continued to decline or, as in the Northwest Atlantic Ocean, may be stable at a diminished abundance. While data are still limited with respect to population size and trends, we find the petition and our files sufficient in presenting substantial information on common thresher shark abundance, trends, or status to indicate that the petitioned action may be warranted.

The petition indicated three main categories of threats to the common thresher shark: Overutilization for commercial, recreational, scientific, or educational purposes; the inadequacy of existing regulatory mechanisms; and other natural or manmade factors affecting its continued existence. We discuss each of these below, as well as an additional evaluation of other 4(a)(1) factors based on information in the petition, and the information readily available in our files.

The petition does not list threats to habitat as impacting the common thresher shark. In our files, we were also unable to find evidence that destruction, modification, or curtailment of habitat or range were negatively impacting the species. Supporting this conclusion, in our files, we found evidence demonstrating that habitat pollution has not resulted in high concentrations of pollutants in the bodies of common thresher sharks. For example, Suk et al. (2009) demonstrated that the level of mercury measured in the muscle of individual thresher sharks was quite low (mean 0.13 ± 0.15 μg/g), with no traces of mercury detected in the liver. Mercury concentration increased with shark size to a maximum of 0.7 μg/g for a 241 cm fork length (~ 425 lb) individual, still far lower than for other sharks examined in the study, including the shortfin mako and the sevengill shark (Suk et al., 2009). Although data are unavailable to assess the impact of these mercury levels on the health of the common thresher shark, low mercury levels exhibited by the common thresher shark likely relate to its tendency to feed on small schooling fish and cephalopods, at lower trophic levels than the prey consumed by other sharks studied.

In summary, the petition, references cited, and information in our files do not comprise substantial information indicating there is present or threatened destruction, modification, or curtailment of the common thresher shark's habitat or range such that listing may be warranted.

The petition states that “historical and continued trends of fishing of this commercially and recreationally valuable shark remain a threat,” listing commercial exploitation as the first threat of overutilization of the species. Historically, common thresher sharks were primarily caught in the drift gillnet fishery established off the West Coast of the United States, which targeted the species in the late 1970s. The fishery had shifted its focus to a swordfish fishery by the mid-1980s due to economic drivers, but also to protect pupping female thresher sharks (PFMC, 2003). Since that time, common thresher sharks have only been targeted secondarily or caught incidentally in the drift gillnet fishery there. West Coast commercial landings are down from 1,800 metric tons (mt) in the early 1980s to below 200 mt in 2008 and 2009 (PFMC, 2010). As stated above, based on preliminary stock assessment results, there appears to be an initial period of decline from 1981 to 1986, followed by a gradual rebuilding of the stock (NMFS SWFSC, unpublished data). Average annual landings since 2004 have been about 200 mt (PFMC, 2011), well below an established sustainable and precautionary harvest level of 450 mt, and this level of landings has allowed the population to further rebuild. Regulations on commercial fishing operations (e.g., time and area closures) to protect gravid females during the pupping season (March through August), combined with a switch in the primary target of the driftnet fishery from thresher sharks to swordfish, have likely contributed to the rebuilding of the common thresher shark in the Eastern Pacific Ocean over the past 25 years (PMFC, 2003).

The petition states that in addition to broad commercial harvest of the species, direct catch related to the shark fin trade has resulted in population decline. No information connecting population declines as a result of this direct catch is provided in the petition. The petition states that common thresher shark fins are valuable due to their large size and longer fin needles. Evidence suggests that the three thresher shark species, collectively, may account for approximately 2.3 percent of the fins auctioned in Hong Kong, the world's largest fin-trading center (Clarke, 2006). This translates to 0.4 million to 3.9 million threshers that may enter the global fin trade each year (Clarke, 2006). However, information on the species-specific impact of this harvest on common thresher shark abundance is not provided by the petitioner, and is not available in our files. The bigeye thresher shark is of higher value and vulnerability to fishing than the common thresher shark (Cortez, 2010); however, the relative proportion of each thresher shark species comprising the shark-fin trade is not available in this genus-level assessment. Overall, evidence that common thresher sharks (and threshers in general) are highly valued for their fins and comprise a portion of the Hong Kong fin-trading auction suggests that this threat may impact the species.

Indirect catch is another category of overutilization identified by the petition, which states that post-release mortality may be high in the species. However, no information is provided in the petition to connect the effect of bycatch on population declines of the species. In our own files, we found evidence to support that adults and juveniles of common thresher shark are caught as bycatch in longline, purse seine and mid-water fisheries (IATTC, 2006). As stated in the petition, in the Northeast Atlantic Ocean prior to 2000, estimated landings fluctuated at 13-17 t, and in 2000-2001 they exceeded 100 t, after which they dropped to 4 t in 2002 and have not exceeded 7 t since (ICES, 2006). In the Mediterranean, there are no large-scale fisheries targeting pelagic sharks and rays, but these species are taken as bycatch in surface longline fisheries (Cahmi, 2009). In our files, we found evidence that, in the last two decades, common thresher sharks have declined between 96 and 99 percent in abundance and biomass in the Mediterranean Sea (Ferretti, 2008). Currently, there is no commercial fishery for common thresher sharks on the East Coast of the United States, but they are taken as bycatch on pelagic longlines and in gillnets; here, commercial bycatch landings averaged 19,958 kg (dressed weight) from 2003 to 2011, with landings peaking at 27,801 kg (dressed weight) in 2010 (NMFS, 2012; Gervalis et al., 2013). These landings may be linked to declines in the species across the Northwest Atlantic portion of its range; however, as discussed earlier, conflicting logbook and observer data decrease the certainty of these trends (Cortés, 2007; Baum, 2010). In the Southwest Atlantic Ocean, off the coast of Brazil, big eye thresher sharks represent almost 100 percent of thresher sharks caught, and only occasionally are common thresher sharks caught in the longline fishery (Amorin, 1998).

The petition identified recreational fishing as the fourth category of overutilization. In our files, we found evidence that common thresher sharks are valued by recreational sport fishermen throughout the species' U.S. East Coast and West Coast range, and those that are caught are generally landed; the common thresher shark is considered one of the better species for human consumption (Compagno, 2001). The species appears to be increasing in importance at shark tournaments in the Northeastern United States. As described in the petition, at one major tournament, common thresher shark numbers increased steadily such that the percent of total catch increased from 0.1 percent to 4.8 from 1965 to 1995 and jumped to 27.8 percent of the total catch in 2004 (Gervalis et al., 2013). Heberer (2010) identified the potential negative impact of recreational fishing on the survival of the common thresher shark by assessing post-release survivorship of sharks captured using the caudal-fin-based techniques used by most recreational fishermen. Since common thresher sharks use their elongate upper caudal lobe to immobilize prey before it is consumed, the majority of thresher sharks captured in the recreational fishery are hooked in the caudal fin and hauled-in backwards (Heberer, 2010). The common thresher is an obligate ram ventilator that requires forward motion to ventilate the gills (Heberer, 2010). The reduced ability to extract oxygen from the water during capture as well as the stress induced from these capture methods may influence recovery following release. The findings of Heberer (2010) demonstrate that large tail-hooked common thresher sharks with prolonged fight times (≥85 min) exhibit a heightened stress response, which may contribute to an increased mortality rate. This work suggests, especially for larger thresher sharks, that recreational catch-and-release may not be an effective conservation-based strategy for the species. A recent paper by Sepulveda (2014) found similar evidence for high post-release mortality of recreationally caught common thresher sharks in the California recreational shark fishery. Their results demonstrated that caudal-fin-based angling techniques, which often result in trailing gear left embedded in the shark, can negatively affect post-release survivorship. This work suggests that mouth-based angling techniques can, when performed properly, result in a higher survivorship of released sharks. However, these techniques are not a common practice. Recreational catch varies widely from year to year but has averaged roughly 20 mt annually in recent years (CDFG, 2008). The estimated level of catch in this fishery may be imprecise because the fishery is patchy and sporadic. Although recreational catch rate data are unavailable or highly unreliable, evidence for high post-release mortality suggests that increases in recreational fishing may pose a threat to the common thresher shark.

Overall, trends throughout the Eastern Pacific Ocean suggest that the species either may be rebuilding from historical overexploitation, or may be stable. Elsewhere across the species' range, information in the petition and in our files suggests that the species may continue to experience declines as a result of overutilization. While measures may be implemented to improve post-release mortality of a recreational common thresher shark fishery, and to reduce bycatch, we found no evidence that these measures have been incorporated into common practice. In summary, the petition, references cited, and information in our files comprise substantial information indicating that listing may be warranted because of overutilization for commercial, recreational, scientific or educational purposes.

The petitioner does not identify predation and disease as a threat to the common thresher shark, and we were unable to find any information in our files to suggest that this factor is affecting the continued survival of the species.

The petition states that “the U.S. does not provide adequate protection for this species. Additionally, this global species lacks international protection under the Convention on International Trade in Endangered Species (CITES), and regional management mechanisms remain ineffective.”

On the contrary, we found that national fishing regulations on common thresher shark fishing in the United States are precautionary, and have led to the rebuilding of the species in U.S. waters over the last two decades. The Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species includes an annual harvest guideline of 340 mt for thresher shark. This is a precautionary harvest guideline for commercial catch, which is estimated to be 75 percent of the regional maximum sustainable yield for this population. Time and area restrictions in the pelagic drift gillnet fishery were imposed off California in the mid-1980s to protect thresher sharks, and more regulations were added in 2000 to protect sea turtles, resulting in reduced effort. In the United States Atlantic Ocean, the species has been managed as part of the pelagic shark complex under the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan. Management measures include the following: Commercial quotas, limited entry, time-area closures, and recreational bag limits. Sharks are required to be landed with fins naturally attached to the carcass. Overfishing and overfished status is currently unknown (NMFS HMS 3rd Qtr 2011 stock status), but preliminary stock assessment data suggest that the species is rebuilding in U.S. waters due to management measures to conserve the species (SWFSC, unpublished).

Since we received the petition, the common thresher shark has been listed in Appendix II under the International Convention on the Conservation of Migratory Species of Wild Animals (CMS). The petitioner stated that there are no laws specifically addressing the needs of the common thresher shark; however, a CMS Appendix II listing now encourages international cooperation towards conservation of the species.

We agree with the petition that the majority of other international regulations provide general protection for all sharks, and that includes the common thresher shark. The petition asserts that finning regulations are “inadequate” for protecting the common thresher shark species because common thresher sharks may still be caught, either directly or indirectly as bycatch. The petition also cites several regional fisheries management organizations (RFMOs) that implement a 5-percent fin-to-carcass ratio regulation, describes what the petitioner contends are potential loopholes in those regulations, and states that these general regulations are inadequate for the common thresher shark, whose larger fins make it a more targeted species. We agree with the petitioner that the common thresher shark is highly valued for its fins, and can be identified in the shark fin market, although only to the genus level. However, we do not find that national and international regulations are inadequate for protecting the common thresher shark.

Finning regulations are a common form of shark management regulation and have been adopted by far more countries and regional fishery management organizations than the petition lists (see HSI, 2012). While the petitioner asserts that there may be some loopholes in regulations using a 5% fin-to-carcass ratio, we find that the common thresher shark is rebuilding in broad portions of its range and is of lower vulnerability due to its demographic characteristics, such that current regulations are not considered inadequate. In addition, a number of countries have also enacted complete shark fishing bans, with the Bahamas, Marshall Islands, Honduras, Sabah (Malaysia), and Tokelau (an island territory of New Zealand) added to the list in 2011, and an area of 1.9 million km off the Cook Islands added in 2012. The petition states that Tokelau and the Cook Islands have only partial fishing bans, but this statement appears to be based on incomplete information. Shark sanctuaries can also be found in the Eastern Tropical Pacific Seascape (which encompasses around 2,000,000 km2 and includes the Galapagos, Cocos, and Malpelo Islands), and in waters off the Maldives, Mauritania, Palau, and French Polynesia. Countries, states, and territories that prohibit the sale or trade of shark fins or products include the Bahamas, Commonwealth of the Northern Mariana Islands, American Samoa, Cook Islands, Egypt, French Polynesia, Guam, Republic of Marshall Islands, and Sabah. Several U.S. States prohibit the sale or trade of shark fins/products as well, including Hawaii, Oregon, Washington, California, Illinois, Maryland, Delaware, New York and Massachusetts. The U.S. Shark Conservation Act of 2010 protects all shark species, making it illegal to remove any of the fins of a shark (including the tail) at sea; to have custody, control, or possession of any such fin aboard a fishing vessel unless it is naturally attached to the corresponding carcass; to transfer any such fin from one vessel to another vessel at sea, or to receive any such fin in such transfer, without the fin naturally attached to the corresponding carcass; or to land any such fin that is not naturally attached to the corresponding carcass, or to land any shark carcass without such fins naturally attached. Additionally, many cities in Canada also prohibit the sale or trade of shark fins/products. All of these measures provide protections for the global common thresher shark population.

The petition also mentions the lack of CITES protections for the common thresher shark. The common thresher shark is not a CITES listed species, however, a CITES listing would only address threats associated with the international trade of the species, and would not address such impacts as bycatch or recreational catch-and-release of the species. Although a CITES Appendix II listing or international reporting requirements would provide better data on the global catch and trade of the common thresher shark, the lack of a CITES listing or requirements would not suggest that current regulatory mechanisms are inadequate to protect the common thresher shark population from becoming endangered under the ESA.

In summary, the petition, references cited, and information in our files do not comprise substantial information indicating that the species is impacted by inadequacy of regulatory mechanisms such that listing may be warranted.

The petition states that the biological constraints of the common thresher shark, such as its low reproduction rate (typically 2-4 pups a year), coupled with the time required to reach maturity (approximately 5 years), contribute to the species' vulnerability to harvesting and its inability to recover rapidly. It is true that the common thresher shark and pelagic sharks, in general, exhibit relatively slow growth rates and low fecundity; however, not all species are equally vulnerable to fishing pressure due to these life history characteristics.

An ecological risk assessment conducted to inform the International Commission for the Conservation of Atlantic Tunas (ICCAT) categorized the relative risk of overexploitation of the 11 major species of pelagic sharks, including the common thresher shark (Cortés et al., 2010, 2012). The study derived an overall vulnerability ranking for each of the 11 species, which was defined as “a measure of the extent to which the impact of a fishery [Atlantic long line] on a species will exceed its biological ability to renew itself” (Cortés et al., 2010, 2012). This robust assessment found that common thresher sharks, along with pelagic stingrays, are relatively productive species that show very low susceptibility to the combined pelagic longline fisheries in the Atlantic Ocean (Cortés et al., 2010, 2012). In fact, of 11 species examined, common thresher sharks exhibited one of the lowest vulnerability rankings. The relatively low vulnerability of the common thresher shark is further supported by a recent comparison of demographic models which ranked 26 pelagic sharks according to their potential growth rate and rebound potential (Chapple et al., 2013). The common thresher shark was found to rank 9 out of 26 overall in terms of its egg production, rebound potential, potential for population increase, and for its stochastic growth rate; again ranking among the highest in productivity when compared with other pelagic sharks (Chapple et al., 2013). Even within the genus Alopiidae, the common thresher shark is considered the fastest-growing and earliest-maturing of the three species, and attains the largest size (Smith et al., 2008).

In summary, the petition, references cited, and information in our files do not comprise substantial information indicating that the species is impacted by “other natural or manmade factors,” including the life history trait of slow productivity, such that listing of the species may be warranted.

We conclude that the petition does not present substantial scientific or commercial information indicating that the ESA section (4)(a)(1) threats of “other manmade or natural factors” or “inadequacy of regulatory mechanisms” may be causing or contributing to an increased risk of extinction for the global population of the common thresher shark. In addition, neither the petition nor information in our files indicated that the “present or threatened destruction, modification, or curtailment of its habitat or range,” or “disease or predation” are threats to the species. However, we do conclude that the petition and information in our files present substantial scientific or commercial information indicating that the section 4(a)(1) factor “overutilization for commercial, recreational, scientific, or educational purposes” may be causing or contributing to an increased risk of extinction for the species.

Based on the above information and the criteria specified in 50 CFR 424.14(b)(2), we find that the petition and information readily available in our files presents substantial scientific and commercial information indicating that the petitioned action of listing the common thresher shark worldwide as threatened or endangered may be warranted. Therefore, in accordance with section 4(b)(3)(B) of the ESA and NMFS' implementing regulations (50 CFR 424.14(b)(2)), we will commence a status review of the species. During the status review, we will determine whether the species is in danger of extinction (endangered) or likely to become so within the foreseeable future (threatened) throughout all or a significant portion of its range. We now initiate this review, and thus, we consider the common thresher shark to be a candidate species (69 FR 19975; April 15, 2004). Within 12 months of the receipt of the petition (August 26, 2015), we will make a finding as to whether listing the species as endangered or threatened is warranted as required by section 4(b)(3)(B) of the ESA. If listing the species is found to be warranted, we will publish a proposed rule and solicit public comments before developing and publishing a final rule.

To ensure that the status review is based on the best available scientific and commercial data, we are soliciting information relevant to whether the common thresher shark is endangered or threatened. Specifically, we are soliciting information in the following areas: (1) Historical and current distribution and abundance of this species throughout its range; (2) historical and current population trends; (3) life history in marine environments, including identified nursery grounds; (4) historical and current data on common thresher shark bycatch and retention in industrial, commercial, artisanal, and recreational fisheries worldwide; (5) historical and current data on common thresher shark discards in global fisheries; (6) data on the trade of common thresher shark products, including fins, jaws, meat, and teeth; (7) any current or planned activities that may adversely impact the species; (8) ongoing or planned efforts to protect and restore the species and its habitats; (9) population structure information, such as genetics data; and (10) management, regulatory, and enforcement information. We request that all information be accompanied by: (1) Supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents.

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