Federal Register / Vol. 70, No. 172 / Wednesday, September 7, 2005 / Proposed Rules 53141 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

Endangered and Threatened Wildlife 

and Plants: Notice of Receipt of an 

Application for an Incidental Take 

Permit (ITP) and Availability and 

Opening of Comment Period for a Draft 

Environment Assessment (EA) Habitat 

Conservation Plan (HCP) for the West 

Virginia Northern Flying Squirrel in 

Association With Snowshoe Mountain, 

Incorporated, Pocahontas County, WV 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of availability and 

receipt of application. 

SUMMARY: This notice advises the public 

that Snowshoe Mountain, Incorporated 

(SMI) has applied to the U.S. Fish and 

Wildlife Service (Service) for an ITP 

pursuant to section 10(a)(1)(B) of the 

Endangered Species Act of 1973 (ESA), 

as amended. The application has been 

assigned permit number TE–102380. 

The proposed permit would authorize 

the incidental take of a federally 

endangered species, the West Virginia 

northern flying squirrel (WVNFS) 

(Glaucomys sabrinus fuscus), known to 

occur throughout the property owned by 

the applicant at Snowshoe Mountain 

Resort, Pocahontas County, West 

Virginia. The proposed taking is 

incidental to a planned recreation and 

infrastructure expansion project on 

approximately 43 acres owned by SMI. 

The permit would be in effect for up to 

10 years depending on completion of 

the proposed activities. 

The Service announces the receipt of 

the SMI ITP application and the 

availability of the proposed Recreation 

and Infrastructure Expansion at 

Snowshoe Mountain HCP which 

accompanies the ITP application, for 

public comment. In addition, the 

Service also announces the availability 

of a draft EA for the proposed issuance 

of the ITP. This notice is provided 

pursuant to the section 10(c) of the ESA 

and National Environmental Policy Act 

of 1969 (NEPA) regulations (40 CFR 

1506.6). 

The Service will evaluate the 

application, associated documents, and 

comments submitted thereon to 

determine whether the application 

meets the requirements of NEPA 

regulations and section 10(a) of the ESA. 

If it is determined that the requirements 

are met, a permit will be issued for the 

incidental take of the WVNFS. The final 

NEPA and permit determinations will 

not be completed until after the end of 

the 60-day comment period and will 

fully consider all public comments 

received during the comment period. 

DATES: Written comments on the permit 

application, HCP, and EA should be 

sent to the Service’s West Virginia Field 

Office (see ADDRESSES) and should be 

received on or before November 7, 2005. 

ADDRESSES: Persons wishing to review 

the permit application, HCP, and draft 

EA may obtain a copy by writing to the 

Service’s West Virginia Field Office, 694 

Beverly Pike, Elkins, West Virginia 

26241. Requests for the documentation 

must be in writing to be processed. 

Written data or comments concerning 

the permit application, draft EA and/or 

HCP should also be addressed to the 

Field Office Supervisor, U.S. Fish and 

Wildlife Service, West Virginia Field 

Office, at the address above. Please refer 

to permit TE–102380 when submitting 

comments. Documents will also be 

available for public inspection by 

written request, by appointment only, 

during normal business hours (8 a.m. to 

4:30 p.m.). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Thomas Chapman or Shane Jones, West 

Virginia Field Office (see ADDRESSES), 

304–636–6586. 

SUPPLEMENTARY INFORMATION: Section 9 

of the ESA and Federal regulation 

prohibits the ‘‘taking’’ of a species listed 

as endangered or threatened. Under the 

ESA, the term ‘‘take’’ means to harass, 

harm, pursue, hunt, shoot, wound, kill, 

trap, capture, or collect listed wildlife, 

or to attempt to engage in any such 

conduct. The Service may, under 

limited circumstances, issue permits to 

‘‘incidentally take’’ listed species, if 

such taking is incidental to, and not the 

purpose of, otherwise lawful activities. 

Regulations governing permits for 

endangered species are promulgated in 

50 CFR 17.22. 

Background 

SMI has applied to the Service for an 

ITP pursuant to section 10(a) of the 

ESA. The applicant proposes to 

implement an HCP for the WVNFS that 

will allow construction within WVNFS 

habitat. The applicant’s proposed 

activities may result in take, as defined 

in the ESA and its implementing 

regulations, of listed species. 

Authorized take would only affect 

WVNFS; take of other federally listed 

species is specifically excluded from the 

proposed action. This permit would 

authorize the incidental take of WVNFS 

at Snowshoe Mountain Resort through 

otherwise lawful activities, specifically 

the recreation and infrastructure 

expansion, occurring in WVNFS habitat. 

The HCP and permit would be in effect 

for a maximum of 10 years upon 

issuance. 

The applicant proposes to construct 

additional downhill ski slopes and 

expand an existing trail at Snowshoe, to 

accommodate the projected increase in 

skiers, particularly beginners and 

intermediate skiers, and the demand for 

skiable terrain. In connection with ski 

slope expansion, SMI proposes to 

complete a parking area expansion to 

alleviate traffic congestion as a result of 

the projected increased recreational use 

of the resort. Finally, SMI is proposing 

to develop an area in which to store 

some equipment, including snowplows, 

bulldozers, buses, trucks, earth graders, 

backhoes, and landscaping equipment. 

It is necessary to house this equipment 

in a centrally located area to ensure that 

heavy equipment traffic on the main 

road is minimized. The proposed 

activities are expected to remove 

approximately 43 acres of forest. 

The anticipated incidental take will 

be limited to harm through habitat loss 

as the result of the permanent loss of 43 

acres of suitable WVNFS habitat. SMI 

proposes to implement measures to 

minimize, mitigate, and monitor 

impacts to the WVNFS and include 

surveying for WVNFS, following 

seasonal clearing restrictions, allowing 

when possible, natural forest 

regeneration in temporary construction 

zones, and establishing a permanent 

conservation area to provide refuge for 

the WVNFS. 

The draft EA considers the 

environmental consequences of three 

alternatives, including a no-action 

alternative, the proposed action, and a 

reduced impact alternative. 

The Service provides this notice 

pursuant to section 10(c) of the ESA. 

The Service will evaluate whether the 

issuance of a section 10(a)(1)(B) ITP 

complies with section 7 of the ESA by 

conducting an intra-Service section 7 

consultation. The results of the 

biological opinion, in combination with 

the evaluation of the permit application, 

the HCP, EA, and comments submitted 

thereon, will be used in the final 

analysis to determine whether the 

application meets the requirements of 

section 10(a) of the ESA. If the 

requirements are met, the Service will 

issue a permit to SMI for the incidental 

take of WVNFS during the proposed 

recreation and infrastructure expansion 

activities. We will make the final permit 

decision no sooner than 60 days from 

the date of this notice. 

Authority: The authority for this section is 

the Endangered Species Act of 1973, as 

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

53142 Federal Register / Vol. 70, No. 172 / Wednesday, September 7, 2005 / Proposed Rules 

Dated: August 17, 2005. 

Marvin E. Moriarty, 

Regional Director, Region 5. 

[FR Doc. 05–17672 Filed 9–6–05; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[I.D. 050405E] 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Reef Fish 

Fishery of the Gulf of Mexico; Petition 

for Emergency Rulemaking for Red 

Snapper 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Denial of a petition for 

emergency rulemaking. 

SUMMARY: NMFS announces its decision 

to deny a petition for emergency or 

interim rulemaking under the 

Administrative Procedure Act (APA) 

and Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act). The Coastal 

Conservation Association (CCA), a 

marine conservation group composed of 

approximately 90,000 members, 

petitioned the U.S. Department of 

Commerce to immediately promulgate 

an emergency or interim rule under the 

Magnuson-Stevens Act to prevent 

overfishing of red snapper resulting 

from bycatch in the shrimp trawl fishery 

of the Gulf of Mexico. NMFS finds the 

emergency or interim rulemaking is not 

warranted, and additional management 

measures to end overfishing of red 

snapper would better be addressed 

through a Gulf of Mexico Fishery 

Management Council (Council) 

regulatory amendment and development 

of a fishery management plan (FMP) 

amendment. 

ADDRESSES: Copies of the NMFS 

decision on the CCA petition are 

available from Phil Steele, NMFS, 

Southeast Regional Office, 263 13th 

Avenue South, St. Petersburg, FL 33701; 

telephone: 727–824–5305, and via 

internet at: http://sero.nmfs.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: Phil 

Steele, Fishery Administrator, NMFS, 

Southeast Regional Office; telephone: 

727–824–5305; e-mail: 

phil.steele@noaa.gov. 

SUPPLEMENTARY INFORMATION: CCA filed 

a petition for emergency or interim 

rulemaking on March 29, 2005. NMFS 

published a notice of receipt of petition 

for rulemaking on May 12, 2005 (70 FR 

39700), and invited public comments 

for 60 days ending July 11, 2005. 

Summaries of and responses to 

comments are provided in the Response 

to Public Comments section below. 

The Petition 

The petition filed by CCA states the 

red snapper stock in the Gulf of Mexico 

is overfished and undergoing 

overfishing. Although the petition 

acknowledges the directed red snapper 

commercial and recreational sectors 

share responsibility for rebuilding the 

stock, it asserts the failure of bycatch 

reduction devices (BRDs) required in 

the commercial shrimp fishery to meet 

established bycatch reduction standards 

makes recovery of the Gulf red snapper 

fishery unlikely and ensures years of 

continued overfishing of this stock. The 

petition states the directed recreational 

and commercial red snapper sectors 

have already adopted many measures 

necessary to rebuild the stock. The 

petition seeks emergency regulations or 

interim measures to stop the overfishing 

resulting from excessive bycatch of 

juvenile red snapper in the Gulf shrimp 

fishery. The petition also suggests 

management measures such as bag 

limits and total allowable catch 

restrictions would be applicable to the 

directed red snapper fishery. 

The CCA petition states the 

prevention of overfishing and recovery 

of the red snapper stock is predicated on 

at least a 44–percent reduction from the 

average level of bycatch mortality on 

juvenile red snapper, age 0 and age 1, 

by the Gulf shrimp fishery during the 

years 1984–1989. Further, because 

recent research indicates current BRD 

use, in practice, yields only a 12–

percent bycatch reduction, CCA argues 

that the existing plan for preventing 

overfishing and rebuilding the red 

snapper stock must be declared a 

failure. CCA asserts the fisheries 

regulatory establishment is plainly 

aware of red snapper overfishing by the 

shrimp trawl fishery, but has failed to 

take corrective action. The petition 

requests NMFS immediately initiate 

emergency regulations or interim 

measures resulting in bycatch reduction 

sufficient to allow the red snapper stock 

to rebuild within the time period 

established in the Reef Fish Fishery 

Management Plan (Reef Fish FMP). The 

petition states such bycatch reduction 

measures should include strict bycatch 

quotas tracked by observer data, time 

and area closures or restrictions, 

improved BRDs, season limitations, 

seasonal closures, and/or other 

reduction measures. In addition, the 

petition states a firm bycatch reduction 

target of 60–80 percent of historic levels 

should be set, with a time line to 

achieve the target within the shortest 

period possible. The petition also 

proposes a mandated effort reduction 

program for the Gulf shrimp fleet. 

History of NMFS and Council Efforts to 

Reduce Bycatch in the Shrimp Fishery 

Efforts to rebuild the red snapper 

stock are complicated by significant 

amounts of bycatch in the shrimp 

fishery. Ending overfishing and 

allowing the stock to rebuild cannot 

occur through regulations on the 

directed red snapper fishery alone. The 

shrimp fishery annually removes 25 to 

45 million juvenile red snapper 

(approximately 2–5 million lb (0.9–2.3 

million kg)), primarily from the western 

Gulf, whereas the directed fishery 

removes approximately 4 million adult 

fish (approximately 9 million lb (4.1 

million kg)) annually. The success of the 

red snapper rebuilding plan depends 

heavily on reductions in shrimp trawl 

bycatch. 

The Council recognized the inherent 

need to reduce red snapper bycatch in 

the shrimp fishery in 1997 when they 

approved Amendment 9 to the Shrimp 

Fishery Management Plan (Shrimp 

FMP). The purpose of this amendment 

was to reduce unwanted bycatch of 

juvenile red snapper in the shrimp 

fishery and, to the extent practicable, 

not adversely affect the shrimp fishery. 

Because of substantial fishing mortality 

on juvenile red snapper and the need to 

rebuild the overfished stock, the 

Council considered development and 

use of BRDs and other management 

measures to reduce bycatch. The 

Council approved a goal for reducing 

red snapper bycatch by 44 percent from 

the average annual mortality of age–0 

and age–1 red snapper during 1984–

1989. Upon approval of Amendment 9, 

the fisheye BRD and Andrews Turtle 

Excluder Device (Andrews TED) were 

the only two devices determined to be 

capable of reducing bycatch by the 

required amount; however, the Andrews 

TED was proposed to be certified as a 

BRD only during a time when and in a 

geographical area where it is an 

approved TED. On December 19, 1997, 

approval of the Andrews TED, as a TED, 

was withdrawn; therefore, the Andrews 

TED was not certified as a BRD in the 

final rule implementing Amendment 9. 

However, the framework procedure 

approved by the Council in Amendment 

9 allowed for additional BRDs to be 

certified by NMFS. Cooperative 

industry/government research available 

in 1997 indicated the approved BRDs