Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - [Docket No. 100813341-0341-01]
          - RIN 0648-XX56

# AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. 

# ACTION:

Notice of 90-day petition finding. 

# SUMMARY:

                        We (NMFS) received a petition to list Georgia Basin populations of China rockfish (                        *Sebastes nebulosus*) and tiger rockfish (                        *S. nigrocinctus*) as endangered or threatened species under the Endangered Species Act (ESA). We determine that the petition does not present substantial evidence to indicate that the petitioned action may be warranted.                     

# ADDRESSES:

Requests for copies of this petition regarding Georgia Basin China rockfish and tiger rockfish should be submitted to Chief, Protected Resources Division, NMFS, 1201 NE Lloyd Boulevard, Suite 1100, Portland, OR 97232. The petition and supporting data are available for public inspection, by appointment, Monday through Friday, at this address. 

# FOR FURTHER INFORMATION CONTACT:

Garth Griffin, NMFS, Northwest Region, (503) 231-2005 or Dwayne Meadows, NMFS, Office of Protected Resources, (301) 713-1401. 

# SUPPLEMENTARY INFORMATION:

## Background

Section 4 of the ESA contains provisions allowing interested persons to petition the Secretary of the Interior or the Secretary of Commerce (Secretary) to add a species to or remove a species from the List of Endangered and Threatened Wildlife and to designate critical habitat. On April 27, 2010, we received a petition from Mr. Sam Wright of Olympia, WA, to list Georgia Basin populations of China rockfish and tiger rockfish. For the purpose of this petition finding, we consider the Georgia Basin to include the inland marine waters of Puget Sound, the Strait of Georgia (north to the mouth of the Campbell River in British Columbia), and the portion of the Strait of Juan de Fuca east of the Victoria Sill (see our determination to list three distinct population segments of Puget Sound/Georgia Basin distinct population segments of rockfish, 75 FR 22276 (April 28, 2010)).

                    Section 4(b)(3)(A) of the ESA (16 U.S.C. 1531-1544) requires that we determine whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate that the petitioned action may be warranted. In making this determination, we consider information submitted with and referenced in the petition, and all other information available in our files. To the maximum extent practicable, this finding is to be made within 90 days of the receipt of the petition, and the finding is to be published promptly in the                     **Federal Register**                    .                 

In evaluating a petition, the Secretary considers whether it (1) describes past and present numbers and distribution of the species and any threats faced by the species (50 CFR 424.14(b)(2)(ii)); (2) provides information regarding the status of the species over all or a significant portion of its range (50 CFR 424.14(b)(2)(iii)); and (3) is accompanied by appropriate supporting documentation (50 CFR 424.14(b)(2)(iv)). 

                    The ESA defines “species” to include subspecies, or a distinct population segment of a vertebrate species (16 U.S.C. 1532(16)). The petitioner requested listing of the Georgia Basin populations of China rockfish and tiger rockfish. We evaluated whether the information provided or cited in the petition met our standard for “substantial information” as defined in joint ESA implementing regulations issued by NMFS and the U.S. Fish and Wildlife Service (50 CFR 424.14(b)). We also reviewed other information                           ( print page 52929)                        available to us (currently within our files).                

## Previous Petition to list Puget Sound China Rockfish and Tiger Rockfish

We have received numerous petitions from Mr. Wright. In 1999, he petitioned us to list 18 species of Puget Sound marine fishes. Based on the information presented in that petition, and available in our files, we conducted status reviews on seven of those fishes. Information on the other eleven fishes (including China rockfish and tiger rockfish) was insubstantial and we therefore did not conduct status reviews (64 FR 33037; June 21, 1999).

## Analysis of Petition

When reviewing a petition to list a species under the ESA, we consider information provided in the petition as well as information available in agency files. Mr. Wright's petition provides information from SCUBA surveys conducted in the Georgia Basin from 1998 to 2009. The petition points to the fact that there are few observations of China rockfish and tiger rockfish in these surveys. The petition provides no analysis to explain how these surveys can be interpreted to indicate either a low abundance level or a declining trend in abundance, either of which might be evidence of risk to the species. To the contrary, the petitioner acknowledges that adults of these two species tend to remain hidden in rocky habitats, which could make them difficult for SCUBA divers to observe.

In the absence of any analysis in the petition, we independently reviewed the information from these surveys and concluded they do not provide evidence of low abundance or a declining trend in abundance. The surveys are opportunistic sightings, reported by recreational or professional divers. There is no research protocol associated with these SCUBA reports, and the identification of individual fish species cannot be independently verified. Because the area surveyed and the level of effort are opportunistic and variable, because the reports are not collected in a systematic sampling design, and because adults of these species tend to hide in rocky habitats that could make them difficult to observe, we concluded that these survey results do not support inferences about population abundance. 

The petition also provides a short description of the total recreational catch of these species over a 12-year period. The description appears under a heading in the petition entitled “Low Abundance Problem,” but the petition provides no explanation of how this information reveals anything about the abundance of these two species. In the absence of an analysis in the petition, we independently reviewed the information on recreational catches of these two species available in our records. The proportion of these two species in the recreational rockfish catch is low, approximately 1 percent over the 12-year period. Standing alone, however, this low percentage does not indicate a low occurrence of these rockfish species relative to others because, as noted above, adults of the petitioned species tend to remain hidden in rocky habitat and are therefore less available to anglers. Nor does this information reveal anything about the absolute abundance of these two species. The catch information therefore does not indicate that abundance of these species is low enough to pose a threat to viability. 

We agree with the petitioner's assertion that China rockfish and tiger rockfish typically utilize a small home range and experience low productivity. However, as the petitioner acknowledges, a small home range causes individuals to remain hidden in rocky habitat, where they may experience lower mortality, as a result of less frequent exposure to predators. Low productivity can be a risk factor in some instances. However, low productivity is not an indication of declining abundance (another risk factor) since it reflects a life history trade-off between fecundity and life span.

Finally, the petitioner fails to demonstrate how any of these individual pieces of information could be integrated into a trend analysis or some other type of analysis suggesting the two species are at risk. 

The petitioner states “This would be an ideal time to conduct a status review of these two species since most of the required assessment work has already been done and there is an existing Biological Review Team (BRT).” While it is true that NMFS recently completed an ESA review of five rockfish species in the Puget Sound/Strait of Georgia (including the formation and use of a BRT), that is not a basis to conduct additional reviews under ESA section 4(b)(3)(A). NMFS did not look at information on China rockfish and tiger rockfish during its review earlier in the year, and the BRT was subsequently disbanded.

## Petition Finding

After reviewing the petition, as well as information readily available to us, we have determined that the petition does not present substantial scientific information indicating the petitioned action may be warranted. If new information becomes available to suggest that Georgia Basin populations of China rockfish and tiger rockfish may warrant listing under the ESA, we will reconsider conducting a status review.

## References

A complete list of all references cited herein is available upon request (see ADDRESSES section).

Authority:16 U.S.C. 1531*et seq.*

Dated: August 24, 2010.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

[FR Doc. 2010-21536 Filed 8-27-10; 8:45 am]

BILLING CODE 3510-22-S