49412 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Proposed Rules 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

For the reasons given in the preamble 

of the emergency rule listing the Miami 

blue butterfly (Cyclargus thomasi 

bethunebakeri) as endangered and the 

cassius blue butterfly (Leptotes cassius 

theonus), ceraunus blue butterfly 

(Hemiargus ceraunus antibubastus), and 

nickerbean blue butterfly (Cyclargus 

ammon) as threatened due to similarity 

of appearance, published concurrently 

in the Rules and Regulations section of 

this issue of the Federal Register, we 

propose to amend part 17, subchapter B 

of chapter I, title 50 of the Code of 

Federal Regulations, as set forth below: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Public Law 

99–625, 100 Stat. 3500; unless otherwise 

noted. 

2. This document proposes to 

establish the provisions of the 

emergency rule published elsewhere (in 

this issue of the Federal Register) as a 

final rule. 

Dated: July 27, 2011. 

Gregory E. Siekaniec, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. 2011–19818 Filed 8–9–11; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Parts 17 and 224 

[Docket No. 110110016–1039–01] 

RIN 0648–XA144 

Endangered and Threatened Wildlife; 

90-Day Finding on a Petition To List 

the Saltmarsh Topminnow as 

Threatened or Endangered Under the 

Endangered Species Act 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce; United States Fish and 

Wildlife Service (USFWS), Interior. 

ACTION: 90-day petition finding; request 

for comments, and initiation of a status 

review. 

SUMMARY: We (NMFS and USFWS; also 

collectively referred to as the Services) 

announce a 90-day finding on a petition 

to list the saltmarsh topminnow 

(topminnow; Fundulus jenkinsi) as 

threatened or endangered under the 

Endangered Species Act (ESA). We find 

that the petition presents substantial 

scientific information indicating that the 

petitioned action may be warranted. We 

will conduct a status review of the 

species to determine if the petitioned 

action is warranted. To ensure that the 

status review is comprehensive, we are 

soliciting scientific and commercial data 

on the species (see below). 

DATES: Information and comments on 

the subject action must be received by 

October 11, 2011. 

ADDRESSES: You may submit 

information by one of the following 

methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. In the box that 

reads ‘‘Enter Keyword or ID,’’ enter the 

Docket number for this finding, which 

is 110110016–1039–01. Check the box 

that reads ‘‘Open for Comment/ 

Submission,’’ and then click the Search 

button. You should then see an icon that 

reads ‘‘Submit a Comment.’’ Please 

ensure that you have found the correct 

rulemaking before submitting your 

comment. 

U.S. mail or hand-delivery: Public 

Comments Processing, Attn: 

110110016–1039–01; Division of Policy 

and Directives Management; U.S. Fish 

and Wildlife Service; 4401 N. Fairfax 

Drive, MS 2042–PDM; Arlington, VA 

22203. 

We will post all information we 

receive on http://www.regulations.gov. 

This generally means that we will post 

any personal information you provide 

us. 

Copies of the petition and related 

materials are available upon request 

from the Assistant Regional 

Administrator, Protected Resources 

Division, Southeast Regional Office, 

NMFS, 263 13th Avenue South, St. 

Petersburg, FL 33701; Project Leader, 

USFWS, Panama City Ecological 

Services Office, 1601 Balboa Ave., 

Panama City, FL 32405; or online at: 

http://www.nmfs.noaa.gov/pr/species/ 

esa/other.htm 

FOR FURTHER INFORMATION CONTACT: 

Jason Rueter, NMFS Southeast Region, 

(727) 824–5312, Dwayne Meadows, 

NMFS Office of Protected Resources, 

(301) 713–1401, or Catherine Phillips, 

FWS, Panama City Ecological Services 

Office, (850) 769–0552. 

SUPPLEMENTARY INFORMATION: 

Background 

On September 7, 2010, we received a 

petition from WildEarth Guardians and 

Ms. Sarah Felsen to list the saltmarsh 

topminnow (Fundulus jenkinsi) as 

threatened or endangered under the 

ESA and to list the species under the 

emergency listing provisions of the ESA 

(16 U.S.C. 1533(b)(7)) owing to 

perceived threats from the Deepwater 

Horizon oil spill. Copies of this petition 

are available from us (see ADDRESSES, 

above). 

Since the petition was sent to both 

NMFS and USFWS, and we both had 

information in our files concerning the 

species, we are jointly responding to the 

90-day finding. The species’ salt marsh, 

estuarine habitat falls within an area 

where both NMFS and FWS manage 

species. USFWS will be responsible for 

conducting the 12-month finding and 

determining if listing the saltmarsh 

topminnow is warranted and has agreed 

to assume sole jurisdiction from this 

point forward. 

ESA Statutory, Regulatory, and Policy 

Provisions and Evaluation Framework 

Section 4(b)(3)(A) of the ESA, as 

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

requires that, to the maximum extent 

practicable, within 90 days of receipt of 

a petition to list a species as threatened 

or endangered the Services make a 

finding on whether that petition 

presents substantial scientific or 

commercial information indicating that 

the petitioned action may be warranted, 

and to promptly publish such finding in 

the Federal Register (16 U.S.C. 

1533(b)(3)(A)). When it is found that 

substantial scientific or commercial 

information in a petition 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 during which we will 

conduct a comprehensive review of the 

best available scientific and commercial 

information. In such cases, we shall 

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 more 

thorough review of the available 

information, as compared to the narrow 

scope of review at the 90-day stage, a 

‘‘may be warranted’’ finding 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 distinct population 


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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Proposed Rules 49413 

segment (DPS) that interbreeds when 

mature (16 U.S.C. 1532(16)). 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, we 

determine whether species are 

threatened or endangered because of 

any one or a combination of the 

following five section 4(a)(1) factors: (1) 

The present or threatened destruction, 

modification, or curtailment of habitat 

or range; (2) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (3) disease or 

predation; (4) inadequacy of existing 

regulatory mechanisms; and/or (5) 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 the 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. In evaluating 

whether substantial information is 

contained in a petition, the Secretary 

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)). 

Court decisions have clarified the 

appropriate scope and limitations of the 

Services’ review of petitions at the 90- 

day finding stage, in making a 

determination that a petitioned action 

‘‘may be’’ warranted. As noted in the 

discussion of 12-month findings above, 

these decisions hold that a petition need 

not establish a ‘‘strong likelihood’’ or a 

‘‘high probability’’ that a species is 

either threatened or endangered to 

support a positive 90-day finding. 

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 it supports the petitioner’s 

assertions. In other words, 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 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 other 

organizations or agencies, as evidence of 

extinction risk for a species. Risk 

classifications of the petitioned species 

by other organizations or made under 

other Federal or state statutes may be 

informative, but the classification alone 

may not provide the rationale for a 

positive 90-day finding under the ESA. 

For example, as explained by 

NatureServe, a non-profit conservation 

organization spun-off from state natural 

heritage programs and The Nature 

Conservancy that provides scientific 

status rankings and assessments for atrisk species, its 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 information upon which the 

classification is based in light of the 

standards on extinction risk and 

impacts or threats discussed above. 

Distribution and Life History of 

Saltmarsh Topminnow 

The saltmarsh topminnow is one of 

the smallest members of the Fundulidae 

family; individuals are typically smaller 

than 45 mm long. The topminnow has 

cross-hatching on its back and sides that 

may be gray-green. Most individuals 

have 12 to13 dark round spots arranged 

in rows along their sides from above the 

pectoral fin to the base of the caudal fin. 

Sexual dimorphism amongst 

topminnows includes a longer median 


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49414 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Proposed Rules 

fin length in males and a lemon-yellow 

color on the anterior base of the male’s 

anal fin. The male’s dorsal fin develops 

a deep orange over the entire fin, a 

slight orange tint to the caudal fin, and 

a bright yellow on the pelvic fins. 

Mature females have a sheath on the 

anterior base of the anal fin used to 

position eggs during spawning. There is 

no chromatic coloring in females 

(Thompson, 1980; 1999). 

Topminnows’ average lifespan is only 

1 to 2 years. Individuals are relatively 

isolated and live their lives in a small 

physical area. The reproductive biology 

of the topminnow is not well studied, 

but current research shows the 

topminnow to be in reproductive 

condition from March through August, 

but spawning may also occur earlier 

(Peterson and Lopez, 2008). Spawning 

probably occurs only once in an 

individual’s lifetime, but females 

produce several hundred eggs during 

that reproductive cycle (Thompson, 

1999). 

The topminnow prefers the brackish 

environment of Spartina alterniflora 

and Juncus roemerianus saltmarsh 

habitats. The fish are most common in 

small, shallow tidal meanders of the 

saltmarsh with salinities of 1–4 parts 

per thousand (ppt); while marsh 

habitats that appear appropriate, but 

had mean salinities of 17 ppt did not 

contain topminnows (Thompson, 1980; 

Peterson et al., 2003). In addition to 

salinity, water depth, bank slope, and 

plant stem density may influence 

distribution of the topminnow. 

Topminnows are found in this type of 

saltmarsh habitat along the northern 

Gulf of Mexico from the Escambia River 

(Florida) to Galveston Bay (Texas) 

(Gilbert and Relyea, 1992). 

Analysis of the Petition 

We evaluated whether the petition 

presented the information indicated in 

50 CFR 424.14(b)(2). The petition states 

the administrative measures 

recommended, and provides the 

scientific and common name of the 

species. The petition includes a detailed 

narrative justification for the 

recommended measure, including some 

information on numbers of the species, 

historical geographic occurrences of the 

species, and threats faced by the 

species. The petition provides 

information relevant to the status of the 

species as well as supporting references 

and documentation. The saltmarsh 

topminnow is taxonomically a species 

and thus is an eligible entity for listing 

under the ESA. The petition states that 

the saltmarsh topminnow is imperiled, 

extremely rare, and that the primary 

threat contributing to the saltmarsh 

topminnow’s endangerment is habitat 

degradation. The petition also asserts 

that the species’ biological constraints, 

such as small population size and its 

reproductive traits, increase its risk of 

extinction. The petition cites coastal 

development, levee and canal 

construction, and pollution as the 

threats cumulatively leading to the 

decline of saltmarsh habitat. According 

to the petition, at least three of the five 

causal factors in section 4(a)(1) of the 

ESA are, in combination, adversely 

affecting the continued existence of the 

saltmarsh topminnow, as follows: (A) 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (D) inadequacy of 

existing regulatory mechanisms; and (E) 

other natural or manmade factors, 

particularly the fish’s low reproductive 

rate. 

Information on Extinction Risk and 

Status 

The petition cites classifications made 

by NMFS, the states of Florida, 

Louisiana, and Mississippi, and 

NatureServe to support its assertion that 

the saltmarsh topminnow is imperiled. 

In 1991, NMFS added the saltmarsh 

topminnow to our Candidate Species 

List. In 2004, NMFS created the Species 

of Concern list (69 FR 19975; April 15, 

2004) to encompass species for which 

we have some concerns regarding their 

status and threats, but for which 

insufficient information is available to 

indicate a need to list the species under 

the ESA. Twenty-five candidate species, 

including the saltmarsh topminnow, 

were transferred to the Species of 

Concern list at that time because they 

were not being considered for ESA 

listing and were better suited for 

Species of Concern status due to some 

concerns and uncertainty regarding 

their biological status and threats. The 

Species of Concern status does not carry 

any procedural or substantive 

protections under the ESA. Our 

rationale for including the saltmarsh 

topminnow on the species of concern 

list included a potential population 

decline and threats from habitat 

alteration, dredging, and marsh erosion. 

The state of Florida lists the saltmarsh 

topminnow on its species of special 

concern list, recognizing that the 

saltmarsh topminnow is particularly 

vulnerable ‘‘to habitat modification, 

environmental alteration, human 

disturbance, or human exploitation 

which, in the foreseeable future, may 

result in its becoming a threatened 

species unless appropriate or protective 

management techniques are initiated or 

maintained.’’ However, the petition 

cites the species’ rarity in the waters of 

Florida, claiming the State’s protective 

measures are insufficient to protect the 

species as a whole. Mississippi lists the 

species as a Species of Greatest 

Conservation Need in its ‘‘Estuarine 

Bays, Lakes, and Tidal Streams’’ habitat 

subtype. The state identifies five high 

and five medium level threats to this 

habitat subtype. However, this listing 

provides no legal protection to the 

species. Finally, Louisiana also lists the 

saltmarsh topminnow as a Species of 

Greatest Conservation Need, though this 

too offers no legal protection. 

NatureServe classifies saltmarsh 

topminnow as ‘‘vulnerable’’. 

NatureServe’s ‘‘vulnerable’’ 

classification category is given to 

species that are ‘‘at moderate risk of 

extinction or elimination due to a 

restricted range, relatively few 

populations, recent and widespread 

declines, or other factors.’’ NatureServe 

specifically cites ‘‘patchy distribution 

within a small range along the coast of 

the Gulf of Mexico; may be declining 

due to pollution and habitat destruction; 

and local populations are relatively 

vulnerable to extirpation with a reduced 

capacity for re-colonization,’’ as reasons 

for its vulnerable classification of the 

saltmarsh topminnow. 

The petition also describes 

demographic factors specific to the 

saltmarsh topminnow that could be 

indicative of its extinction risk, for 

which the petition provides supporting 

information. These include a declining 

population trend with sparse 

individuals in some locations and a 

contraction of the historical range. The 

petition also asserts that small sizes of 

adult populations of the saltmarsh 

topminnow are contributing to the 

species’ extinction risk, citing 

information on the species rarity or 

absence in reports of most fish studies 

of the northern Gulf of Mexico. The 

petition references the generally 

understood natural rarity of the species 

(e.g., citing Lee et al., 1980). However, 

rarity alone is not an indication that the 

saltmarsh topminnow faces an 

extinction risk that is cause for concern. 

A species’ rarity could be cause for 

concern if the species was distributed in 

small, isolated populations, or had a 

very restricted geographic range and 

was subject to specific habitat 

degradation. Both of these conditions 

appear to be applicable to the saltmarsh 

topminnow. Peterson et al. (2003) cite 

the low relative abundance and patchy 

distribution of the species along with 

increased development pressure as 

reasons to quantify the habitat 

characteristics of the species. Rarity 

could also subject a species to 

heightened extinction risk if specific 


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stressors are negatively affecting its 

status and trends. Therefore, we must 

evaluate whether information indicates 

the saltmarsh topminnow’s population 

has declined or continues to decline, 

and if so whether this suggests 

extinction risk that is cause for concern. 

Population decline can result in 

extinction risk that is cause for concern 

in certain circumstances, for instance if 

the decline is rapid and/or below a 

critical minimum population threshold 

and the species has low resilience for 

recovery from a decline (Musick, 1999). 

Information discussed above shows that 

decline for these species is possible, 

given the evidence of loss of its 

narrowly preferred habitat, though it is 

unclear how rapid or severe this decline 

has been. 

The species’ reliance on an apparently 

narrow range of habitat conditions 

makes it vulnerable to alterations and 

changes in marsh habitat. The petition 

states that coastal development, levee 

and canal construction, pollution, and 

other threats cumulatively imperil 

saltmarsh habitat, and consequently, the 

saltmarsh topminnow. Coastal 

development, levee and canal 

construction, pollution, and other 

threats may provide inferences about 

the status of marsh habitat and thus 

population status and trends of the 

saltmarsh topminnow, though such 

inferences may not be reliable in the 

absence of information regarding the 

level or distribution of marsh habitat 

over time, changes in development and 

construction practices, or changes in 

sampling design for the species that may 

affect abundance estimates independent 

of changes in a species’ habitat and 

population. Wetland and marsh loss 

data described in the petition include 

NMFS’ recent proposed ESA listing of 

largetooth sawfish (75 FR 25174): 

‘‘Wetland losses in the Gulf of Mexico 

region of the U.S. averages annual net 

losses of 60,000 acres (242.8 km2) of 

coastal and freshwater habitats from 

1998 to 2004 (Stedman et al., 2008). 

Although wetland restoration activities 

are ongoing in this region of the U.S., 

the losses significantly outweigh the 

gains (Stedman et al., 2008). These 

losses have been attributed to 

commercial and residential 

development, port construction 

(dredging, blasting, and filling 

activities), construction of water control 

structures, modification to freshwater 

inflows (Rio Grande River in Texas), 

and gas and oil related activities.’’ Other 

citations include the Environmental 

Protection Agency’s estimate that ‘‘by 

2050 one third of coastal Louisiana will 

have vanished into the Gulf of Mexico,’’ 

and Thompson and Peterson’s (2003) 

statement that ‘‘coastal Louisiana is 

presently in the erosional phase of delta 

cycling, being accelerated, unfortunately 

in some areas, by many of man’s 

activities in the coastal region.’’ Thus, 

information about the threats to the 

species’ habitat and inferences made 

about the species because of the 

alteration of its habitat may be 

indicators of the species’ status and 

extinction risk. This is particularly true 

given the saltmarsh topminnow’s 

preference for shallow water of low to 

moderate salinity saltmarsh 

environments, which in some cases has 

lost 40 percent of known acreage by 

conversion to developed land over a 

four decade time span (1950–1992; 

Peterson et al. 2003). 

In summary, the petition and its 

supporting documentation provide 

information on the status of the species 

and its extinction risk especially in light 

of population demographic 

characteristics that suggests the species 

may meet the ESA’s requirements for 

listing. 

Information on Threats to the Species 

The petition states that impacts and 

threats corresponding with three factors 

in section 4(a)(1) of the ESA are 

impacting the saltmarsh topminnow. 

Specifically, the petition states that 

losses of and threats to the species’ 

saltmarsh habitat, inadequacy of 

mechanisms to protect the fish or its 

habitat, and the species’ biological 

parameters including low rate of 

reproduction and limited individual 

ranges, are individually and 

synergistically causing imperilment of 

the saltmarsh topminnow. 

The Present or Threatened Destruction, 

Modification, or Curtailment of Its 

Habitat or Range 

The petition states ‘‘the curtailment of 

its historic habitat range, and the threats 

to its current habitat * * * make the 

saltmarsh topminnow especially 

vulnerable to extinction.’’ The petition 

acknowledges the general parameters of 

the historical range still apply (from 

Galveston Bay, TX to Escambia Bay, FL), 

but goes on to assert that this range has 

become spotty, stating scientists can no 

longer locate the species between 

Galveston Bay and southeastern 

Louisiana. 

The petition also cites a number of 

reports on marsh loss in the Gulf of 

Mexico over varying periods of time 

ranging from the 1950s to future 

projections to 2050. Loss of marsh 

habitat ranges from 13 to 40 percent 

depending on time frame, expected 

future impacts, and area of the report. 

Additionally, the petition states 

‘‘scientists consider the topminnows 

that live off the western Florida 

panhandle to be ‘threatened,’ ’’ citing 

Gilbert and Relyea (1992). 

Levee and canal construction is cited 

as an impediment to the topminnow 

gaining access to the vegetated, flooded 

marsh surface during high tide. The 

petition provides examples and notes 

that Federal and state governments have 

worked to remedy this situation by 

restoring natural water flows in a 

number of large river deltas with 

functional success being accomplished. 

Although functional success was 

accomplished in the petition’s cited 

restoration projects, the petitioners 

claim ‘‘mixed success’’ because of 

political controversy, not scientific 

feasibility. Despite these restoration 

projects, overall marsh loss is 

continuing as described above. 

A further factor affecting salt marsh 

habitat loss is the dock-side gaming 

industry of Mississippi and Louisiana. 

The success of the gaming industry in 

attracting tourists has led developers to 

create larger offshore casinos that drain 

wetlands. The amount of development 

has led to a situation where further 

construction cannot be undertaken 

without impacting wetlands. 

Compounding this problem is the 

human waste from these casinos 

polluting the water in remaining 

wetlands (NOAA CSC, 1999). 

Another threat to the topminnow’s 

habitat identified by the petition is oil 

and gas refining and the byproducts 

from such activities. The petition cites 

the Deepwater Horizon oil spill as a 

threat to habitat, and cites Cowan’s (NY 

Times, 2010) concern for the spill’s 

threat to the ‘‘brackish water’’ of the 

saltmarsh, in particular. Data are 

provided in the petition on the extent of 

damage caused by this unprecedented 

event to the marsh habitat of the 

topminnow, and on the estimated range 

impacted by the spill. The petition also 

discusses the long-term pollution that 

the oil industry causes to wetlands in 

general and to salt marshes in 

particular. The petition cites the Federal 

government and the state of Texas’ 

acknowledgement that long-term oil 

refining activities have significantly 

polluted the coastal land straddling the 

Texas-Louisiana border, particularly the 

Port Arthur, Texas area. 

A final threat to the species identified 

by the petition is land subsidence and 

sea level rise caused by petroleum 

development and climate change effects. 

We have no information in our files to 

contradict any of these above-listed 

threats. 


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In summary, the petition and its 

references present substantial 

information that indicates the present or 

threatened destruction, modification, or 

curtailment of habitat or range may be 

causing or contributing to an extinction 

risk for the saltmarsh topminnow that is 

cause for concern. 

Inadequacy of Existing Regulatory 

Mechanisms 

The petition argues that listing is 

warranted due to the inadequacy of 

existing regulatory mechanisms, stating 

that ‘‘state and federal regulatory 

mechanisms have failed to protect the 

topminnow and its habitat.’’ The 

petition cites the listing of the species 

under Louisiana, Florida, and 

Mississippi state programs, but states 

that due to the paucity of the species in 

Florida, its listing and protection there 

does not afford the species as a whole 

significant protection, while Louisiana 

and Mississippi listings carry no legal 

protections. Further, the Species of 

Concern listing by NMFS, while 

recognizing the potential for 

imperilment, provides no legal 

protection either. 

The petition cites numerous holes in 

protection of the saltmarsh topminnow’s 

habitat. These include the limitations of 

the Coastal Wetlands Planning, 

Protection, and Restoration Act, 16 

U.S.C. 3951 et seq., in slowing largescale wetlands degradation; and the U.S. 

Army Corps of Engineers 

acknowledgement that the statute was 

not a broad enough approach to 

wetlands restoration to reverse the 

breakdown of a (wetland) ecosystem. 

Further, the petition notes the failure of 

the 1999 Louisiana Coastal Area 

Ecosystem Restoration Study to 

implement a comprehensive solution to 

wetland loss. The petition also cites the 

failure of the Federal and state 

governments to regulate the dock-side 

gaming industry. Wallis (2008) shows 

that economic considerations are often 

weighted heavily compared to 

environmental concerns in analyzing 

impacts of the dock-side gaming 

industry by Mississippi’s coastal 

programs. Finally, the petition cites the 

inadequacy of the Clean Water Act in 

protecting wetlands from hypoxia 

inducing agricultural run-off pollution, 

due to its categorization as a non-point 

source, which exempts it from many 

permitting requirements. 

In summary, the petition presents 

substantial scientific or commercial 

information indicating existing 

regulatory mechanisms may be 

inadequate to address threats of 

extinction to the saltmarsh topminnow. 

Other Natural or Manmade Factors 

The petition suggests that the 

saltmarsh topminnow is naturally 

vulnerable to increased risk of 

extinction, particularly because of some 

biological constraints such as small 

population size and reproductive traits. 

The petition argues that the saltmarsh 

topminnow is characterized by a very 

low rate of reproduction and limited 

range of individuals, which limits interpopulation mixing. We have no 

information to refute these claims. The 

petition references the USFWS 

recognition that small population size 

increases extinction risk, and 

specifically referenced a candidate 

assessment for the Langford tree snail in 

support (http://ecos.fws.gov/docs/ 

candforms_pdf/r1/G0AI_I01.pdf). The 

assessment for the Langford tree snail 

included a population estimate to 

support the conclusions made on the 

species small population size; however, 

no population estimate is given for the 

saltmarsh topminnow. Thus, it is 

unclear whether the saltmarsh 

topminnow is susceptible to the same 

reproductive limitations inherent with a 

small population size like the Langford 

tree snail. In summary, there is no 

scientific or commercial information 

available that suggests that low rate of 

reproduction in the saltmarsh 

topminnow may contribute to the 

species’ risk of extinction, alone or in 

combination with other factors. 

The petition also discusses human 

population growth as a factor that 

increases the saltmarsh topminnow’s 

risk of extinction. The petition uses two 

references which estimate the expected 

increase in population along the coastal 

area of the Gulf of Mexico and cites 

Waddell and Clarke (2008) as support 

for its assertion that expanded human 

population growth will affect the 

saltmarsh habitat and thus the species, 

‘‘as the global population continues to 

increase and demographic shifts toward 

coastal areas persist, even greater 

pressures will be placed on nearshore 

resources to satisfy human desires for 

food, culture, tourism, recreation, and 

profit.’’ The potential consequences of 

threats to the topminnow’s preferred 

habitat are discussed above. Finally, the 

petition cites the cumulative and 

synergistic effects of the loss of habitat, 

low reproductive rates, and population 

isolation as factors contributing to the 

imperilment of the saltmarsh 

topminnow. 

Summary of Section 4(a)(1) Factors 

We conclude that the petition 

presents substantial scientific or 

commercial information indicating that 

a combination of three of the section 

4(a)(1) factors: the present or threatened 

destruction, modification or curtailment 

of habitat, inadequate regulatory 

mechanisms, and other natural or 

manmade factors, may be causing or 

contributing to extinction risk for the 

saltmarsh topminnow. 

Petition Finding 

After reviewing the information 

contained in the petition, as well as 

information readily available in our 

files, we conclude the petition presents 

substantial scientific information 

indicating the petitioned action of 

listing the saltmarsh topminnow as 

threatened or endangered may be 

warranted. Therefore, in accordance 

with section 4(b)(3)(B) of the ESA and 

the Service’s implementing regulations 

(50 CFR 424.14(b)(2)), USFWS will 

commence a review of the status of the 

species and make a determination 

within 12 months of receiving the 

petition as to whether the petitioned 

listing is warranted. 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. 

Finally, we conclude that the petition 

provides no justification for us to 

exercise our discretion to list the species 

under the emergency listing provisions 

of the ESA. While the BP Deepwater 

Horizon oil spill likely has impacted the 

saltmarsh topminnow or its habitat, 

petitioners failed to provide sufficient 

evidence or information to support a 

finding that the event caused or is 

continuing to cause a change in the 

species’ status or habitat that requires 

immediate listing under the ESA to 

address a significant risk to the 

saltmarsh topminnow’s well-being. 

Information Solicited 

To ensure the status review is based 

on the best available scientific and 

commercial data, we are soliciting 

information on whether the saltmarsh 

topminnow is endangered or threatened 

(see DATES and ADDRESSES sections 

above). Specifically, we are soliciting 

information in the following areas: (1) 

Historical and current distribution and 

abundance of the species throughout its 

range; (2) historical and current 

population trends; (3) information on 

life history, (4) information related to 

taxonomy of the species and closely 

related forms; (5) information on any 

current or planned activities that may 

adversely impact the species; (6) 

ongoing efforts to protect and restore the 

species and its habitat, and (7) 

management, regulatory, and 

enforcement information. We request 


srobinson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Proposed Rules 49417 

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. 

If, after the status review, we 

determine that listing the saltmarsh 

topminnow is warranted, we will 

propose critical habitat (see definition 

in section 3(5)(A) of the ESA), under 

section 4 of the ESA, to the maximum 

extent prudent and determinable at the 

same time we propose to list the 

species. Therefore, within the 

geographical range currently occupied 

by the saltmarsh topminnow, we request 

data and information on: 

(1) What may constitute ‘‘physical or 

biological features essential to the 

conservation of the species’’; 

(2) Where such physical and 

biological features are currently found; 

and 

(3) Whether any of these features may 

require special management 

considerations or protection. 

In addition, we request data and 

information on ‘‘specific areas outside 

the geographical area occupied by the 

species’’ that are ‘‘essential to the 

conservation of the species.’’ Please 

provide specific comments and 

information as to what, if any, critical 

habitat you think we should propose for 

designation if the species is proposed 

for listing, and why such habitat meets 

the requirements of section 4 of the 

ESA. 

References Cited 

A complete list of all references is 

available upon request from the 

Protected Resources Division of the 

NMFS Southeast Regional Office or the 

USFWS Panama City Ecological Office 

(see ADDRESSES). 

Authority: The authority for this action is 

the Endangered Species Act of 1973, as 

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

Dated: July 21, 2011. 

Gregory E. Siekaniec, 

Acting Director, U.S. Fish and Wildlife 

Service. 

Dated: August 5, 2011. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatoru Programs, National Marine 

Fisheries Service. 

[FR Doc. 2011–20335 Filed 8–9–11; 8:45 am] 

BILLING CODE 3510–22–P; 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 100819383–0386–01] 

RIN 0648–BA18 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Bering Sea and 

Aleutian Islands Management Area; 

Limited Access Privilege Program 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations 

that would implement Amendment 93 

to the Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area 

(FMP). This proposed rule would 

amend the Bering Sea and Aleutian 

Islands Amendment 80 Program to 

modify the criteria for forming and 

participating in a harvesting 

cooperative. This action is necessary to 

encourage greater participation in 

harvesting cooperatives, which enable 

members to more efficiently target 

species, avoid areas with undesirable 

bycatch, and improve the quality of 

products produced. This action is 

intended to promote the goals and 

objectives of the Magnuson-Stevens 

Fishery Conservation and Management 

Act, the Fishery Management Plan, and 

other applicable law. 

DATES: Comments must be received no 

later than September 9, 2011. 

ADDRESSES: Send comments to James W. 

Balsiger, Ph.D., Administrator, Alaska 

Region, NMFS, Attn: Ellen Sebastian. 

You may submit comments, identified 

by RIN 0648–BA18, by any one of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal at http:// 

www.regulations.gov. 

• Fax: (907) 586–7557, Attn: Ellen 

Sebastian. 

• Mail: P.O. Box 21668, Juneau, AK 

99802. 

• Hand Delivery to the Federal 

Building: 709 West 9th Street, Room 

420A, Juneau, AK. 

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 (e.g., name, address) 

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 required fields 

if you wish to remain anonymous). 

Attachments to electronic comments 

will be accepted in Microsoft Word, 

Excel, WordPerfect, or Adobe portable 

document file (pdf) formats only. 

Copies of Amendment 93, the 

Environmental Assessment (EA), 

Regulatory Impact Review (RIR), and the 

Initial Regulatory Flexibility Analysis 

(IRFA)—collectively known as the 

Analysis—for this action are available 

from the Alaska Region Web site at 

http://alaskafisheries.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Gwen Herrewig, (907) 586–7091. 

SUPPLEMENTARY INFORMATION: The 

groundfish fisheries in the exclusive 

economic zone off Alaska are managed 

under the Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area 

(BSAI FMP). The FMP was prepared by 

the North Pacific Fishery Management 

Council (Council) under the MagnusonStevens Fishery Conservation and 

Management Act (MSA). Amendment 

80 to the BSAI FMP implemented the 

Amendment 80 Program. Regulations 

implementing Amendment 80 were 

published on September 14, 2007 (72 FR 

52668). These regulations are located at 

50 CFR part 679. 

Background 

The Amendment 80 program is 

commonly known as a limited access 

privilege program (LAPP). Eligible 

fishery participants may receive 

exclusive access to specific fishery 

resources if certain conditions are met. 

Under the Amendment 80 Program, 

NMFS issues a quota share (QS) permit 

to a person holding the catch history of 

an original qualifying non-American 

Fisheries Act (AFA) trawl catcher/ 

processor that met specific criteria 

designated by Congress under the 

Capacity Reduction Program (CRP) (Pub. 

L. 108–447). NMFS determined that 28 

vessels met the criteria specified in the 

CRP. These vessels comprise the 

originally qualifying Amendment 80 

vessels. NMFS determined the amount 

of QS issued based on the catch history 

of six Amendment 80 species (Atka 

mackerel, Aleutian Islands Pacific ocean 

perch, flathead sole, Pacific cod, rock 

sole, and yellowfin sole) in the Bering 

Sea and Aleutian Islands Management 

Area (BSAI), from 1998 through 2004, 

derived from the 28 originally 


srobinson on DSK4SPTVN1PROD with PROPOSALS