Federal Register / Vol. 74, No. 187 / Tuesday, September 29, 2009 / Proposed Rules 49845 

species based on those updates in 

scientific information. Therefore, based 

on information submitted by the 

petitioners and information in Service 

files, we find the information 

concerning advancements in science 

and new information concerning the 

needs of the species to be substantial 

information. We now know more 

specifically where habitat exists for 

manatees that is critical to their survival 

and recovery. As a consequence, we 

have determined that a revision to 

critical habitat for the manatee may be 

warranted to address new information 

concerning habitat usage and needs. 

(4) Petitioners Claim that The U.S. Fish 

and Wildlife Service Recognizes the 

Need for Revision. 

The petitioners cite passages from 

Service consultation documents and the 

current Florida Manatee Recovery Plan 

(Recovery Plan) as evidence that we 

have stated the need to assess and revise 

critical habitat for the Florida manatee 

(p. 17). Specifically, the petitioners cite 

a biological opinion regarding U.S. 

Army Corps of Engineers Application 

(No. 4-1-97-F-602): ‘‘The action area is 

within designated critical habitat for the 

manatee; however, no specific primary 

or secondary constituent elements were 

included in the critical habitat 

designation, making it difficult to 

determine when an action adversely 

modifies critical habitat.’’ The 

petitioners state that the Service’s 

Recovery Plan acknowledges the need to 

revise critical habitat and cite Recovery 

Action 3.5 from the Recovery Plan: 

‘‘Much has been learned about manatee 

distribution in the decades since 

manatee critical habitat was originally 

defined. The FWS should assess the 

need to revise critical habitat for the 

Florida manatee.’’ 

The Service disagrees with the 

petitioner’s statement that the Recovery 

Plan acknowledges the need to revise 

critical habitat; however, we do 

acknowledge that the 2001 Florida 

Manatee Recovery Plan contains a 

recovery action, including the 

recommendation as stated above, to 

assess the need to revise critical habitat. 

Although the Service believes 

‘‘assessing the need’’ is not the same as 

‘‘recognizing the need’’ for revision, we 

find that the information submitted by 

the petitioner in this category to be 

substantial information indicating that a 

revision to critical habitat for the 

manatee may be warranted. 

Petitioners’ Proposed Revisions to 

Critical Habitat 

In addition to identifying the 

deficiencies noted above with the 

current Florida manatee critical habitat 

designation, the petitioners dedicate an 

entire section of the petition to specific 

proposed revisions to manatee critical 

habitat in Florida. These proposed 

revisions include a description of 

geographic boundaries within each 

regional management unit that would 

alter the currently designated critical 

habitat, as well as recommended 

physical and biological features 

essential to the conservation of the 

manatee that would require protection 

and special attention either throughout 

all or portions of the petition’s proposed 

geographical boundary revisions. 

Within each geographic management 

unit (Northwest Region, Southwest 

Region, Atlantic Region, and Upper St. 

Johns River Region), the petitioners 

provide a list of the currently designated 

critical habitat areas followed by their 

proposed revisions to those areas. In 

most cases, the petitioners list 

additional areas that they believe should 

be included in a revision to the 

currently designated critical habitat 

boundaries. They cite available 

scientific data to support their proposal. 

The list of essential features 

recommended by the petitioners for 

each of these geographic areas includes 

warm water (natural springs, passive 

thermal basins, and power plant thermal 

discharges); various food sources 

(seagrasses and freshwater vegetation); 

travel corridors; shelter (for calving and 

from disturbances); fresh water; and 

other habitat features (water depth, 

water quality and salinity). 

The Service recognizes the 

importance of warm water habitat to 

manatees; however, we have not 

evaluated potential physical and 

biological features essential to the 

conservation of the manatee. The 

Service makes no statement at this time 

on the specific proposals by the 

petitioners for the constituent elements 

or for the areas presented as revised 

critical habitat geographic boundaries. 

We do believe that any revision to 

critical habitat should reflect the current 

understanding of the conservation needs 

of the species. 

Finding 

Our process for making this 90–day 

finding under section 4(b)(3)(D) of the 

Act is limited to a determination of 

whether the information in the petition 

presents ‘‘substantial scientific 

information,’’ which is interpreted in 

our regulations as ‘‘that amount of 

information that would lead a 

reasonable person to believe that the 

measure proposed in the petition may 

be warranted’’ (50 CFR 424.14(b)). 

Based on this review and evaluation, 

in addition to the information readily 

available in our files, we find that the 

petition has presented substantial 

scientific information indicating that 

revision of the critical habitat 

designation for the Florida manatee may 

be warranted. Therefore, we are 

initiating a review to determine how we 

intend to proceed with the request to 

revise the critical habitat designation 

under the Act for the Florida manatee. 

References Cited 

A complete list of all references cited 

in this rule is available on the Internet 

at http://www.regulations.govor upon 

request from the Field Supervisor, 

Jacksonville, Florida Ecological Services 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Author(s) 

The primary authors of this notice are 

the staff members of the Jacksonville, 

Florida Ecological Services Office (see 

FOR FURTHER INFORMATION CONTACT). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: September 16, 2009. 

Thomas L. Strickland 

Assistant Secretary for Fish and Wildlife and 

Parks 

[FR Doc. E9–23245 Filed 9–28– 09; 8:45 am] 

BILLING CODE 4310–55–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 0909111273–91274–01] 

RIN 0648–XR09 

Fisheries Off West Coast States; 

Coastal Pelagic Species Fisheries; 

Annual Specifications 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule. 

SUMMARY: NMFS proposes a regulation 

to implement the annual harvest 

guideline (HG) for Pacific mackerel in 

the U.S. exclusive economic zone (EEZ) 

off the Pacific coast. This HG is 

proposed according to the regulations 

implementing the Coastal Pelagic 

Species (CPS) Fishery Management Plan 

(FMP) and establishes allowable harvest 


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49846 Federal Register / Vol. 74, No. 187 / Tuesday, September 29, 2009 / Proposed Rules 

levels for Pacific mackerel off the Pacific 

coast. The proposed total HG for the 

2009–2010 fishing year is 10,000 metric 

tons (mt) and is proposed to be divided 

into a directed fishery HG of 8,000 mt 

and an incidental fishery of 2,000 mt. 

DATES: Comments must be received by 

October 29, 2009. 

ADDRESSES: You may submit comments 

on this proposed rule identified by 

0648–XR09 by any one of the following 

methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov 

• Mail: Rodney R. McInnis, Regional 

Administrator, Southwest Region, 

NMFS, 501 West Ocean Blvd., Suite 

4200, Long Beach, 

CA 90802. 

• Fax: (562)980–4047, Att: Joshua 

Lindsay 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

Copies of the report Pacific Mackerel 

(Scomber japonicus) Stock Assessment 

for U.S. Management in the 2009–2010 

Fishing Year may be obtained from the 

Southwest Regional Office (see 

ADDRESSES). 

FOR FURTHER INFORMATION CONTACT: 

Joshua Lindsay, Southwest Region, 

NMFS, (562) 980–4034. 

SUPPLEMENTARY INFORMATION: The CPS 

FMP, which is implemented by 

regulation at 50 CFR part 660, subpart 

I, divides management unit species into 

two categories: actively managed and 

monitored. The HGs for actively 

managed species (Pacific sardine and 

Pacific mackerel) are based on formulas 

applied to current biomass estimates. 

During public meetings each year, the 

biomass for each actively managed 

species within the CPS FMP is 

presented to the Pacific Fishery 

Management Council’s (Pacific Council) 

Coastal Pelagic Species Management 

Team (Team), the Council’s Coastal 

Pelagic Species Advisory Subpanel 

(Subpanel) and the CPS Subcommitee of 

the Scientific and Statistical Committee 

(SSC). At that time, the biomass, the 

acceptable biological catch (ABC) and 

the status of the fisheries are reviewed 

and discussed. This information is then 

presented to the Council along with HG 

recommendations and comments from 

the Team and Subpanel. Following 

review by the Council and after hearing 

public comments, the Council makes its 

HG recommendation to NOAA’s 

National Marine Fisheries Service 

(NMFS). The annual HG is published in 

the Federal Register as close as 

practicable to the start of the fishing 

season. 

For the 2009–2010 Pacific mackerel 

management season a full assessment 

for Pacific mackerel was conducted and 

then reviewed by a Stock Assessment 

Review (STAR) Panel in May 2009. This 

most recent full assessment for Pacific 

mackerel estimates the current biomass 

to be 282,049 mt. Based on this 

estimated biomass, the harvest control 

rule in the CPS FMP produces an ABC 

of 55,408 mt. 

At the June 2009 Pacific Council 

Meeting, the Council reviewed the 

current Pacific mackerel stock 

assessment, biomass numbers, ABC and 

STAR Panel Report, as well as heard 

statements/reports from the SSC, Team 

and Subpanel. Although the assessment 

for Pacific mackerel was reviewed by a 

STAR Panel and was approved by the 

SSC as the best available science for use 

in management, concerns were 

expressed by all the advisory groups 

regarding the data sources that informed 

the assessment and the uncertainty in 

the assessment results. Taking into 

consideration these reports and 

statements, the Council adopted the 

most recent assessment for Pacific 

mackerel along with the calculated 

ABC, but recommended setting an 

overall HG for the July 1, 2009 through 

June 30, 2010 fishing season at 10,000 

mt. The Council also recommended that 

8,000 mt of this total HG be allocated for 

a directed fishery and 2,000 mt be setaside for incidental Pacific mackerel 

landings in other fisheries should the 

8,000 mt directed fishery HG be 

attained. Should the directed Pacific 

mackerel fishery attain landings of 8,000 

mt, the Council recommends that NMFS 

close the directed fishery and establish 

a 45 percent incidental catch allowance 

when Pacific mackerel are landed with 

other CPS (no more than 45% by weight 

of the CPS landed per trip may be 

Pacific mackerel), except that up to 1 mt 

of Pacific mackerel can be landed 

without landing any other CPS. 

Information on the fishery and the 

stock assessment can be found in the 

report Pacific mackerel (Scomber 

japonicus) Stock Assessment for U.S. 

Management in the 2009–10 Fishing 

Season (see ADDRESSES). 

The harvest control rule formula in 

the FMP uses the following factors to 

determine the ABC: 

1. Biomass. The estimated stock 

biomass of Pacific mackerel age one and 

above for the 2009–2010 management 

season is 282,049 mt. 

2. Cutoff. This is the biomass level 

below which no commercial fishery is 

allowed. The FMP established this level 

at 18,200 mt. 

3. Distribution. The portion of the 

Pacific mackerel biomass estimated in 

the U.S. EEZ off the Pacific coast is 70 

percent and is based on the average 

historical larval distribution obtained 

from scientific cruises and the 

distribution of the resource according to 

the logbooks of aerial fish-spotters. 

4. Fraction. The harvest fraction is the 

percentage of the biomass above 18,200 

mt that may be harvested. The FMP 

established this at 30 percent. 

Classification 

Pursuant to section 304(b)(1)(A) of the 

Magnuson-Stevens Act, the NMFS 

Assistant Administrator has determined 

that this proposed rule is consistent 

with the CPS FMP, other provisions of 

the Magnuson-Stevens Act, and other 

applicable law, subject to further 

consideration after public comment. 

These proposed specifications are 

exempt from review under Executive 

Order 12866. 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration that this 

proposed rule, if adopted, would not 

have a significant economic impact on 

a substantial number of small entities as 

follows: 

The purpose of this proposed rule is to 

implement the 2009–2010 HG for Pacific 

mackerel in the U.S. EEZ off the Pacific coast. 

The CPS FMP and its implementing 

regulations require NMFS to set an annual 

HG for the Pacific mackerel fishery based on 

the harvest formula in the FMP. The harvest 

formula is applied to the current stock 

biomass estimate to determine the ABC, from 

which the HG is then derived. 

Pacific mackerel harvest is one component 

of CPS fisheries off the U.S. West Coast 

which primarily includes the fisheries for 

Pacific sardine, northern anchovy, jack 

mackerel and market squid. Pacific mackerel 

are principally caught off southern California 

within the limited entry portion (south of 39 

N. latitude; Point Arena, California) of the 

fishery. Sixty vessels are currently permitted 

in the Federal CPS limited entry fishery off 

California. These vessels are considered 

small business entities by the U.S. Small 

Business Administration since the vessels do 

not have annual receipts in excess of $4.0 


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Federal Register / Vol. 74, No. 187 / Tuesday, September 29, 2009 / Proposed Rules 49847 

million. This proposed rule has an equal 

effect on all of these small entities. Therefore, 

there would be no disporportionate impacts 

on large and small business entities under 

the proposed action. 

The profitability of these vessels as a result 

of this proposed rule is based on the average 

Pacific mackerel ex-vessel price per mt. 

NMFS used average Pacific mackerel exvessel price per mt to conduct a profitability 

analysis because cost data for the harvesting 

operations of CPS finfish vessels was 

unavailable. 

During the 2007/2008 fishing year 6,200 mt 

of Pacific mackerel were landed with an 

estimated ex-vessel value of $900,000 and 

during the 2008/2009 fishing year 

approximately 4,000 mt were landed with an 

estimated exvessel value of $780,000. The 

proposed HG for the 2009/2010 Pacific 

mackerel fishing season (July 1, 2008 through 

June 30, 2009) is 10,000 mt. If the fleet were 

to take the entire 2009/2010 HG, and 

assuming no change in the coastwide average 

ex-vessel price per mt of $200, the potential 

revenue to the fleet would be approximately 

$2 million. 

The amount of Pacific mackerel caught 

each year depends greatly on market forces 

within the fishery, as well as the other CPS 

fisheries, and on the regional availability of 

the species to the fleet and the fleets’ ability 

to easily find schools relatively close to port. 

If there is no change in market conditions 

(i.e., a lack in demand for Pacific mackerel 

product), it is not likely that the full HG will 

be taken during the 2009–2010 fishing year, 

in which case profits will be lower than if the 

entire HG were taken. Additionally, the 

potential lack of regional availability of the 

resource to the fleet can cause a reduction in 

the amount of Pacific mackerel that is 

harvested, in turn, potentially reducing the 

total revenue to the fleet. 

The annual average U.S. Pacific mackerel 

harvest from 2001/2002 to 2008/2009 is 5,584 

mt with an average annual exvessel revenue 

of $929,419. Based on this catch and revenue 

history for Pacific mackerel over the last nine 

years NMFS does not anticipate a drop in 

profitability based on this rule, as the 2009/ 

2010 available harvest (10,000 mt) is nearly 

twice the average catch during that time. 

In addition, the revenue derived from 

harvesting Pacific mackerel is only one factor 

determining the overall revenue of the CPS 

fleet and therefore the economic impact to 

the fleet from the proposed action cannot be 

viewed in isolation. CPS vessels typically 

harvest a number of other species, including 

Pacific sardine, market squid, northern 

anchovy, and tuna, with the focus on Pacific 

sardine, which had an estimated ex-vessel of 

$14.5 million in 2008 and market squid 

which had an estimated ex-vessel of $26 

million in 2008. Therefore Pacific mackerel 

is only a small component of this multispecies CPS fishery. 

Based on the disproportionality and 

profitability analysis above, this rule if 

adopted, will not have a significant economic 

impact on a substantial number of these 

small entities. 

As a result, an Initial Regulatory 

Flexibility Analysis is not required and 

none has been prepared. 

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

Dated: September 23, 2009. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

[FR Doc. E9–23463 Filed 9–28–09; 8:45 am] 

BILLING CODE 3510–22–S 


CPrice-Sewell on DSKGBLS3C1PROD with PROPOSALS