        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 020606142-2142-02; I.D. 041802F]
        RIN 0648-AP39
        Pacific Coast Groundfish Fishery; Experimental Setnet Sablefish Landings To Qualify Limited Entry Sablefish-Endorsed Permits for Tier Assignment

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes this rule to revise sablefish tier qualifications for the limited entry, fixed gear, primary sablefish fishery.  The proposed rule would amend tier qualifications to include sablefish landings taken under the provisions of an exempted fishing permit (EFP) from 1984-1985 with setnet gear north of 38° N. lat.  Setnet EFP landings would be added to the current pot (trap) and longline landings to qualify a sablefish-endorsed permit for its tier assignment.  This action is intended to recognize historical sablefish landings made by current primary season participants.

          DATES:
          Comments must be submitted in writing by July 24, 2002.

          ADDRESSES:
          Send comments to D. Robert Lohn, Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA  98115 or Rod McInnis, Acting Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213. Copies of the environmental assessment/regulatory impact review/initial regulatory flexibility analysis (EA/RIR/IRFA) for this action are available from Donald McIsaac, Executive Director, Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 200, Portland, OR  97220.

          FOR FURTHER INFORMATION CONTACT:

          Yvonne deReynier or Jamie Goen (Northwest Region, NMFS), phone: 206-526-6140; fax: 206-526-6736; and email: yvonne.dereynier@noaa.gov, jamie.goen@noaa.gov ; or Svein Fougner (Southwest Region, NMFS), phone: 562-980-4040; fax: 562-980-4047; and email: svein.fougner@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Electronic Access

        This proposed rule is available on the Government Printing Office's website at http://www.access.gpo.gov/su_docs/aces/aces140.html.
        NMFS is proposing this rule based on a recommendation of the Pacific Fishery Management Council (Council), under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The background and rationale for the Council’s recommendation are discussed subsequently in this preamble.  Additional information is available in the EA/RIR/IRFA prepared by the Council for this action.  Detailed information regarding the management history of the limited entry, fixed gear, sablefish-endorsed fishery, including the 3-tier program is available in the preamble to the 3-tier proposed rule at 63 FR 19878, April 22, 1998.
        Background

        The Pacific Coast Groundfish FMP, established in 1982, directs groundfish management in Federal waters off Washington, Oregon and California.  The Federal regulations at 50 CFR part 660, subpart G and the annual specifications and management measures published in the Federal Register implement the Pacific Coast groundfish FMP.  During the last 20 years, groundfish management has been through many changes including allocations of particular stocks, season scheduling, areas fished and gears used.
        Sablefish (Anoplopoma fimbria), also known as “blackcod,” is one of the most valuable groundfish species on the Pacific Coast. Because of its value, management decisions affecting the harvest of sablefish can be contentious.  In the past, the Council has made several sablefish management decisions including allocation among different sectors of the fleet.  Within the last decade, NMFS and the Council have made major changes in the allocation structure of the commercial sablefish fishery by creating a limited entry program, sablefish endorsements, and a tiered quota system.
        Sablefish Setnet EFPs
        When the FMP was implemented in 1982, the Council banned the use of setnet gear (a buoyed and anchored gillnet or trammel net) to target any groundfish, including sablefish, north of 38° N. lat.  The decision, based on limited scientific data, was made primarily to reduce social conflicts over possible salmon bycatch in the groundfish setnet fisheries.  In addition to the Council’s concerns about salmon bycatch, the Council was concerned over the lack of information on other incidentally caught species, the ability of setnets to fish indefinitely if lost or unattended, the complications associated with adding another gear type to an already complex fishery, the fact that the fishery is heavily capitalized, and the history of conflict between mobile and fixed gears.  When the Council decided to ban setnet gear for groundfish north of 38° N. lat. because of these concerns, NMFS approved the ban but also approved an EFP in that area in 1982 to collect more scientific information about the gear’s operations.
        The FMP specifies that EFPs may be issued to authorize fishing that would otherwise be prohibited.  EFPs gather information intended to promote increased use of underutilized species, realize the expansion potential of the groundfish fishery, and increase the harvest efficiency of the fishery consistent with the Magnuson-Stevens Act and the FMP.

        From 1982-1985, NMFS issued EFPs to harvest sablefish with setnet gear, including the use of setnet gear north of 38° N. lat.  The purpose of setnet EFPs was to study the use of setnet gear as a possible allowable gear type under the FMP and to explore the validity of the Council’s concerns in prohibiting the gear north of 38° N. lat.  NMFS issued the permits to get information on the use of setnets to harvest sablefish and to evaluate gear conflicts with other fisheries, gear loss, and incidental harvest of salmon, halibut, other groundfish species, marine mammals and birds.  At the Council’s March 1986 meeting, the Council recommended that NMFS not issue setnet EFPs beginning in 1986 because enough information had been gathered on setnets over the 4 years from 1982-1985 to validate their reasons for the ban on setnet gear north of 38° N lat.  After considering the Council’s recommendation, NMFS decided not to issue any setnet EFPs after 1985.
        Sablefish Allocation
        Since 1987, the Council has allocated the annual sablefish harvest between trawl gear and nontrawl gear.  In the nontrawl, or fixed gear, sector there are two operationally distinct gear types, pot (trap) and longline, that compete for the nontrawl sablefish harvest allocation.  From 1987-1994, both sectors, trawl and nontrawl, continued to be open access fisheries where an unlimited number of vessels could enter the fishery.
        The Council created a limited entry program (57 FR 54001, November 16, 1992) beginning in 1994 that split the commercial allocation between open access and limited entry fleets.  Limited entry program qualifications were based on vessel catch histories using trawl, longline or pot gear from 1984-1988 (known as the “window period”).  Qualifying requirements varied for the gear types, from 5 to 17 separate days of landing at least 500 lb (227 kg) of groundfish during the window period.  Depending on landings made and gear types used, limited entry permits were issued with gear endorsements, allowing vessels to participate in the groundfish fisheries with trawl, longline or pot gear.  Only trawl, longline and pot gear were eligible for gear endorsements in the limited entry program.  Even though setnet gear is a stationary or “fixed gear” like longline and pot gear, NMFS and the Council did not allow setnet gear in the limited entry program because it had been prohibited in the FMP north of 38° N lat.  EFP setnet landings were not a major issue when establishing the limited entry program, since most longline and pot vessels with a history in the groundfish fishery easily met the qualifying requirements at some point during the window period.
        The Council first considered whether to include sablefish landings under an EFP during Council deliberations in April 1994 on Amendment 8 to the FMP.  Amendment 8 was intended to create an individual quota system for West Coast sablefish and halibut.  The Council-preferred alternative for Amendment 8 included EFP setnet landings as fixed gear landings, along with landings from longline and pot gear, to count toward a vessel’s fixed gear sablefish catch history.  However, the Council tabled Amendment 8 in October 1994.
        After Amendment 8 was tabled, the Council created Amendment 9 to restrict participation in the limited entry fixed gear fishery.  In 1997, Amendment 9 to the FMP again changed the allocation structure of the fishery (62 FR 34670, June 27, 1997) by requiring that limited entry fixed gear vessels qualify for a sablefish endorsement to participate in the primary sablefish fishery.  The sablefish endorsement qualifying criteria were at least 16,000 lb (7,257 kg) of Council-managed sablefish caught with longline or pot gear in any one year from 1984-1994.  Again, including landings with setnet gear under the provisions of an EFP as a qualifying requirement was not an issue for sablefish endorsement applicants, since fixed gear vessels with a history of participation in the groundfish fishery easily met the low poundage requirements.
        Sablefish 3-Tier System
        Over time, sablefish fleet capitalization increased and the Council needed to set ever-shorter regular seasons to control catch levels.  The primary sablefish season in 1996 was only 5 days long, an intense “derby” fishery.  A “derby” fishery is a short competition with no trip or cumulative landing limits.  The Council considered the sablefish derby to be hazardous because it gave fishers strong incentives to stay on the ocean during bad weather, working at sea with heavy machinery and little or no sleep throughout the season.  Amendment 14 (66 FR 41152, August 7, 2001) has recently eliminated the sablefish derby by extending the season to 2.5 months in 2001 and a 7 month season in 2002.
        In 1998, the Council further subdivided the allocation structure of the limited entry, fixed gear, sablefish-endorsed primary sablefish fishery into 3 tiers (63 FR 38101, July 15, 1998).  The 3-tier system was intended to recognize historical and more recent participation and investment in the fixed gear sablefish fishery while eliminating the traditional derby style management system.
        Permit owners were divided into 3 separate tiers based on permit catch history using longline or pot gear between 1984-1994.  To qualify for Tier 1, the highest tier, a permit had to be associated with at least 898,000 lb (407,326 kg) of cumulative sablefish landings.  To qualify for Tier 2, a permit had to be associated with between 897,999 lb (407,326 kg) and 380,000 lb (172,365 kg) of cumulative sablefish landings.  Permits with cumulative sablefish landings below 380,000 lb (172,365 kg), but which had qualified for sablefish endorsements, were placed in Tier 3.  Because the qualifying requirements for the 3-tier system ranked participants for future harvest allocation based on high cumulative landings, participants had an incentive to try to qualify for as high a tier assignment as possible in order to increase their future economic returns from the fishery.
        Setnet Landings as Tier Qualifications
        After the 3-tier system was implemented in 1998, the Council realized it had overlooked the setnet issue.  For the first time since Amendment 8 was tabled, a permit owner brought the setnet issue to the attention of NMFS and the Council during implementation of the 3-tier program.
        NMFS notified sablefish-endorsed permit owners of their tier assignment by a “letter of qualification.”  If a permit owner believed that he qualified for a different tier, he had 30 days to submit evidence to NMFS.  NMFS then reviewed the evidence and issued a “letter of determination” stating whether the permit owner’s tier assignment had been revised.
        In this case, a permit owner challenged a tier assignment, stating that the EFP setnet landings should have been included in the fixed gear catch history as had been intended with Amendment 8.  NMFS disapproved the permit owner’s request because setnet landings were never considered for the 3-tier program.  The permit owner then took the issue before the Council in September 1998.  The Council members requested a decision package from the Council staff and the Northwest Region (Region) for the setnet issue in June 1999 but, due to the Council’s and the Region’s busy schedules and agenda priorities, no action was taken on the issue of including EFP setnet landings in the qualification requirements for tier assignment until the June 2001 Council meeting.
        In the case of the setnet fishery north of 38° N. lat., fishing under the EFP during 1984-1985 diverted some vessels from historical participation in the pot or longline sablefish fishery.  If those vessels had not participated in the setnet EFP and had fished for sablefish with pot or longline gear during 1984-1985 as usual, the vessels may have qualified for a higher tier assignment.

        In order to resolve this discrepancy equitably and not discourage future participation in EFPs, the Council recommended that NMFS include EFP setnet landings from 1984-1987 in the qualifying requirements for tier assignment.  However, NMFS did not issue any setnet EFPs after 1985.  Therefore, NMFS proposes to amend the regulations at 50 CFR part 660 to include landings of sablefish taken with setnet gear north of 38° N. lat. under the provisions of an EFP issued by NMFS in 1984-1985 when determining tier qualifications for permits that already have a sablefish endorsement.
        Housekeeping Corrections to 50 CFR Part 660
        NMFS proposes a technical correction to 50 CFR part 660 Subpart A, Subpart B, Subpart C, Subpart D, Subpart E, Subpart F, Subpart G, and Subpart H that would correct an outdated title of an agency official.
        NMFS proposes technical corrections to the groundfish regulations at 50 CFR part 660.  The first correction adds clarifying language to § 660.323(a)(4)(vi) to connect activities authorized under other paragraphs, such that if a whiting reapportionment authorized under § 660.323(a)(4)(iv) were to occur, the re-opening of primary whiting season described at § 660.323(a)(3)(i) is included in the list of Federal actions to be announced at § 660.323(a)(4)(vi).  The second correction updates the title of an agency official referenced in § 660.324(d) and § 660.350(b)(3).  The third correction amends a cross reference in § 660.324(f), and § 660.325(d)(2) and (e)(1).  These housekeeping corrections are technical amendments to the groundfish regulations and will not change the effect of the regulations on fisheries entities or resources.
        Classification
        This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.
        The Council prepared an IRFA that describes the economic impact this proposed rule, if adopted, would have on small entities.  A description of the action and why it is being considered are contained in the preamble of this proposed rule and in the SUMMARY section of the preamble.  A summary of the analysis on the proposed action (preferred alternative follows):
        A fish harvesting business is considered a small entity by the Small Business Administration (SBA) if it has annual receipts not in excess of $3.5 million.  All of the permit owners and vessels in the Pacific Coast limited entry, fixed gear fleet are considered small entities under SBA standards.  All 164 limited entry, fixed gear, sablefish-endorsed permits in the fleet are owned by small entities.
        Of the 499 limited entry permits in the West Coast groundfish fishery, 164 permits have fixed gear, sablefish endorsements.  Among those 164 sablefish-endorsed permits, 2 participated in the setnet EFP for sablefish between 1984-1985. By including setnet landings in the qualifying requirements for tier assignments, 1 of these permits is expected to move up from Tier 2 to Tier 1.  Tier 1 has the highest sablefish landing limits of the three tiers.  The other permit associated with a vessel that participated in the 1984 1985 setnet EFP fisheries already has a Tier 1 assignment.  This proposed rule will not allow new entrants to qualify for the limited entry program or sablefish endorsements.  Nor will it change the allocation of the sablefish optimum yield (OY) among the fishery sectors, including the limited entry fixed gear sablefish-endorsed fleet.  What will change is the amount of the limited entry fixed gear sablefish-endorsed fleet’s OY that each permit in the tier system receives, due to a change in the number of permits in each tier.
        Based on expected cumulative limits for 2001 and average prices from 2000, moving 1 permit from Tier 2 up to Tier 1 will increase that permit’s cumulative primary sablefish limit by 120 percent and increase the sablefish ex-vessel value for the permit an additional $51,942.  Consequently, the limits for all other 163 tiered permits will decrease by 0.76 percent.  The projected change in ex-vessel value of landed sablefish from a 0.76 percent decrease in permit limits are decreases of $737 for each of the 27 Tier 1 permits, $335 for each of the 42 Tier 2 permits and $191 for each of the 94 Tier 3 permits.  Overall, the change in permit value due to this proposed rule is expected to be minimal.
        In addition, the effect on private sector efficiency is not likely to be significant.  Over the long term, in the 3-tier permit stacking system, like individual transferable quotas, permit owners will likely have a tendency to transfer permits to more efficient producers, thus absorbing the inefficiency, if any, that results from one permit shifting tiers.  For the public sector, no effect is expected on enforcement and administrative costs, beyond the effort required to make the change in the regulations and alter the tier designations in the data system.
        This proposed rule is intended to recognize historical sablefish landings made by current primary season participants. Because of an oversight in qualification criteria during implementation of the 3-tier program, the 163 permit owners actually have been experiencing benefits from inflated gross revenues for the past 3 years that the program has been in place. The action proposed would equitably distribute the limited entry, fixed gear sablefish-endorsed permit allocation.  This proposed rule is also intended to encourage participation in future EFPs by including setnet EFP landings in qualifying requirements for tier limits at a time when some fishers participated in a setnet EFP rather than participating in a regular commercial fishery.
        The intermediate alternatives the Council considered but didn’t analyze were not reasonable in that there was no rationale behind why they were created.  For example, one of the intermediate options was a temporary higher tier.  The Council could not come up with a reason why they would consider a temporary higher tier, given that the tier system had been in place since 1998.  Temporary regulations or tiers are generally put in place as a way of reducing the negative effects to small businesses of regulatory changes.  It doesn’t make sense to create a temporary tier in a tier system that is already in place and in which there will be no new entrants.  Additionally, creating a temporary higher tier doesn’t address, over the long-term, the issue of unfairness to historical fixed gear sablefish fishermen who chose to participate in the setnet EFP instead and were penalized when the tier system was created.  Thus, a temporary higher tier might still discourage future participation in EFPS, which is part of what this proposed rule is trying to alleviate.  Therefore, the intermediate alternative of a temporary higher tier does not address the purpose and need of the proposed action.
        A copy of this analysis is available from the Council (see
          ADDRESSES).

          List of Subjects in 50 CFR Part 660
          Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, Reporting and recordkeeping requirements.

          Dated: June 18, 2002.
          Rebecca Lent,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:

          PART 660—FISHERIES OFF WEST COAST STATES AND IN THE WESTERN PACIFIC

          1.  The authority citation for part 660 continues to read as follows:

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

          2. In § 660.324, paragraph (d) remove the words “Regional Director” and add in their place, “Regional Administrator”, and in Paragraph (f) remove the words “subpart C” and add in their place, “§ 660.331 through § 660.341″.

          3. In § 660.334, paragraphs (d)(2) and (3) are redesignated as paragraphs (d)(3) and (4), respectively, a new paragraph (d)(2) is added; the newly redesignated paragraphs (d)(3) and (d)(4) are revised to read as follows:

            § 660.334
            Limited entry permits-endorsements.

          (d)* * *
          (2) Endorsement and tier assignment qualifying criteria.

          (i) Permit catch history. Permit catch history will be used to determine whether a permit meets the qualifying criteria for a fixed gear sablefish endorsement and to determine the appropriate tier assignment for endorsed permits.  Permit catch history includes the catch history of the vessel(s) that initially qualified for the permit, and subsequent catch histories accrued when the limited entry permit or permit rights were associated with other vessels.  The catch history of a permit also includes the catch of any interim permit held by the current owner of the permit during the appeal of an initial NMFS decision to deny the initial issuance of a limited entry permit, but only if the appeal for which an interim permit was issued was lost by the appellant, and the owner's current permit was used by the owner in the 1995 limited entry sablefish fishery.  The catch history of an interim permit where the full “A” permit was ultimately granted will also be considered part of the catch history of the “A” permit.  If the current permit is the result of the combination of multiple permits, then for the combined permit to qualify for an endorsement, at least one of the permits that were combined must have had sufficient sablefish history to qualify for an endorsement; or the permit must qualify based on catch occurring after it was combined, but taken within the qualifying period.  If the current permit is the result of the combination of multiple permits, the combined catch histories of all of the permits that were combined to create a new permit before March 12, 1998, will be used in calculating the tier assignment for the resultant permit, together with any catch history (during the qualifying period) of the resultant permit.  Only sablefish catch regulated by this part that was taken with longline or trap (pot) gear will be considered for the sablefish endorsement, except that vessels qualifying for the sablefish endorsement based on longline or trap (pot) landings may include setnet sablefish landings defined at paragraph (d)(2)(ii)(B) of this section in meeting tier assignment qualifications. Sablefish harvested illegally or landed illegally will not be considered for this endorsement.
          (ii) Sablefish endorsement tier assignments. Only limited entry, fixed gear permits with sablefish endorsements will receive cumulative trip limit tier assignments.
          (A) The qualifying weight criteria for Tier 1 are at least 898,000 lb (407,326 kg) cumulative round weight of sablefish caught over the years 1984 1994.  The qualifying weight criteria for Tier 2 are at least 380,000 lb (172,365 kg), but no more than 897,999 lb (407,326 kg) cumulative round weight of sablefish caught over the years 1984-1994.  Fixed gear permits with less than 380,000 lb (172,365 kg) cumulative round weight of sablefish caught over the years 1984 1994 qualify for Tier 3.  All qualifying sablefish landings must be caught with longline or trap (pot), although setnet landings defined at sub-paragraph (B) of this section may also be included in tier assignment qualifying landings.  Sablefish taken in tribal set aside fisheries does not qualify.
          (B) Setnet sablefish landings are included in sablefish endorsement tier assignment qualifying criteria if those landings were made north of 38° N. lat. under the authority of an EFP issued by NMFS in any of the years 1984-1985, by a vessel that landed at least 16,000 lb (7,257 kg) of sablefish with longline or trap (pot) gear in any one year between 1984-1994.
          (iii) Evidence and burden of proof. A vessel owner (or person holding limited entry rights under the express terms of a written contract) applying for issuance, renewal, replacement, transfer, or registration of a limited entry permit has the burden to submit evidence to prove that qualification requirements are met.  The owner of a permit endorsed for longline or trap (pot) gear applying for a sablefish endorsement or a tier assignment under this section has the burden to submit evidence to prove that qualification requirements are met.  The following evidentiary standards apply:
          (A) A certified copy of the current vessel document (USCG or state) is the best evidence of vessel ownership and LOA.
          (B) A certified copy of a state fish receiving ticket is the best evidence of a landing, and of the type of gear used.
          (C) A copy of a written contract reserving or conveying limited entry rights is the best evidence of reserved or acquired rights.
          (D) Such other relevant, credible evidence as the applicant may submit, or the SFD or the Regional Administrator request or acquire, may also be considered.
          (3) Issuance process for sablefish endorsements and tier assignments. (i) No new applications for sablefish endorsements will be accepted after November 30, 1998.
          (ii) All tier assignments and subsequent appeals processes were completed by September 1998.  If, however, a permit owner with a sablefish endorsement believes that his permit may qualify for a change in tier status based on qualifications in paragraph  (d)(2)(ii)(B) of this section, SFD will accept applications for a tier change through December 31, 2002.  Paragraph (d)(2)(iii) of this section sets out the relevant evidentiary standards and burden of proof.
          (iii) After review of the evidence submitted under paragraph (ii), and any additional information the SFD finds to be relevant, the Regional Administrator will issue a letter of determination notifying a permit owner of whether the evidence submitted is sufficient to alter the initial tier assignment.  If the Regional Administrator determines the permit qualifies for a different tier, the permit owner will be issued a revised tier assignment certificate once the initial certificate is returned to the SFD for processing.
          (iv) If a permit owner chooses to file an appeal of the determination under paragraph (iii) of this section, the appeal must be filed with the Regional Administrator within 30 days of the issuance of the letter of determination.  The appeal must be in writing and must allege facts or circumstances, and include credible evidence demonstrating why the permit qualifies for a different tier assignment.  The appeal of a denial of an application for a different tier assignment will not be referred to the Council for a recommendation under § 660.340 (e).

          (v) Absent good cause for further delay, the Regional Administrator will issue a written decision on the appeal within 30 days of receipt of the appeal. The Regional Administrator's decision is the final administrative decision of the Department of Commerce as of the date of the decision.
          (4) Ownership requirements and limitations. (i) No partnership or corporation may own a limited entry permit with a sablefish endorsement unless that partnership or corporation owned a limited entry permit with a sablefish endorsement on November 1, 2000.  Otherwise, only individual human persons may own limited entry permits with sablefish endorsements.
          (ii) No person, partnership, or corporation may have ownership interest in or hold more than three permits with sablefish endorsements, except for persons, partnerships, or corporations that had ownership interest in more than 3 permits with sablefish endorsements as of November 1, 2000.  The exemption from the maximum ownership level of 3 permits only applies to ownership of the particular permits that were owned on November 1, 2000.  Persons, partnerships or corporations that had ownership interest 3 or more permits with sablefish endorsements as of November 1, 2000, may not acquire additional permits beyond those particular permits owned on November 1, 2000.  If, at some future time, a person, partnership, or corporation that owned more than 3 permits as of November 1, 2000, sells or otherwise permanently transfers (not leases) some of its originally owned permits, such that they then own fewer than 3 permits, they may then acquire additional permits, but may not have ownership interest in or hold more than 3 permits.
          (iii) A partnership or corporation will lose the exemptions provided in paragraphs (d)(4)(i) and (ii) of this section on the effective date of any change in the corporation or partnership from that which existed on November 1, 2000.  A “change” in the partnership or corporation means a change in the corporate or partnership membership, except a change caused by the death of a member providing the death did not result in any new members.  A change in membership is not considered to have occurred if a member becomes legally incapacitated and a trustee is appointed to act on his behalf, nor if the ownership of shares among existing members changes, nor if a member leaves the corporation or partnership and is not replaced.  Changes in the ownership of publicly held stock will not be deemed changes in ownership of the corporation.

          5. In § 660.335, paragraphs (d)(1), (d)(2), and (e)(1) are revised to read as follows:

            § 660.335
            Limited entry permits-renewal, combination, stacking, change of permit ownership or permit holdership, and transfer.

            (d) * * *
            (1) General. The permit owner may convey the limited entry permit to a different person.  The new permit owner will not be authorized to use the permit until the change in permit ownership has been registered with and approved by the SFD.  The SFD will not approve a change in permit ownership for limited entry permits with sablefish endorsements that does not meet the ownership requirements for those permits described at § 660.334 (d)(4).
            (2) Effective date. The change in ownership of the permit or change in the permit holder will be effective on the day the change is approved by SFD, unless the there is a concurrent change in the vessel registered to the permit.  Requirements for changing the vessel registered to the permit are described at paragraph (e) of this section.

            (e) * * *
            (1) General. A permit may not be used with any vessel other than the vessel registered to that permit.  For purposes of this section, a permit transfer occurs when, through SFD, a permit owner registers a limited entry permit for use with a new vessel. Permit transfer applications must be submitted to SFD with the appropriate documentation described at paragraph (g) of this section.  Upon receipt of a complete application, and following review and approval of the application, the SFD will reissue the permit registered to the new vessel.

          6. In § 660.350, paragraph (b)(3) remove the term “RA” and add, in its place, the words “Regional Administrator”.

          7. In addition to the amendments set forth above, in 50 CFR part 660 remove the words “Regional Director” and add, in their place, the words “Regional Administrator” in the following places:
          a. Section 660.12;
          b. Section 660.14 ((a), (b), (c), (e), and (f)(2);
          c. Section 660.15, (e) and (j);
          d. Section 660.17 (a), (c), (d), (e), (e)2), (e)(4) and (k);
          e. Section 600.21 (k), (k)(1), (k)(2), and (k)(3) and (k)(4);
          f. Section 660.23 (a) and (b);
          g. Section 660.27 (e), (f)(1), (f)(2), and (f)(2)(i);
          h. Section 660.28 (b), (g), (h), (h)(i)(1), and (h)(2)(ii);
          i. Section 660.31 (c)(2)and (d)(2);
          j. Section 660.43 (b);
          k. Section 660.50 (c);
          l. Section 660.51 (a), (b), (c)(1),(c)(2), (d), (e), (f),  (g)(1), (g)(2), and (j)(2);
          m. Section 660.52 (a), (b)(1) and (b)(3);
          n. Section 660.53 (c)(2) and (d)(2);
          o. Section 660.65 (a) and (d);
          p. Section 660.66 introductory text and (a);
          q. Section 660.67 (c)(1), (c)(2), (c)(4), (d)(2)(iii), and (d)(2)(iv);
          r. Section 660.81 (e);
          s. Section 660.84 (c)(2) and (c)(4);
          t. Section 660.85 (a);
          u. Section 660.302;
          v. Section 660.321 (a);
          w. Section 324 (d);
          x. Section 660.339;
          y. Section 660.402;
          z. Section 660.409 (a)(1) and (b)(1);
          aa. Section 660.411 (c).

      [FR Doc. 02-15884 Filed 6-21-02; 8:45 am]
      BILLING CODE  3510-22-S


        DEPARTMENT OF TRANSPORTATION
        Federal Railroad Administration
        49 CFR Parts 240 and 242
        Federal Motor Carrier Safety Administration
        49 CFR Part 391
        [Docket Numbers FMCSA-2015-0419 and FRA-2015-0111, Notice No. 2]
        Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea; Public Listening Sessions

          AGENCIES:
          Federal Motor Carrier Safety Administration (FMCSA) and Federal Railroad Administration (FRA), Department of Transportation (DOT).

          ACTION:
          Notice of public listening sessions.

          SUMMARY:
          FMCSA and FRA announce three public listening sessions on May 12, 17, and 25, 2016, to solicit information on the prevalence of moderate-to-severe obstructive sleep apnea (OSA) among individuals occupying safety sensitive positions in highway and rail transportation, and of its potential consequences for the safety of rail and highway transportation. FMCSA and FRA (collectively “the Agencies”) also request information on potential costs and benefits from possible regulatory actions that address the safety risks associated with motor carrier and rail transportation workers in safety sensitive positions who have OSA. The listening sessions will provide interested parties an opportunity to share their views and any data or analysis on this topic with representatives of both Agencies. The Agencies will transcribe all comments and place the transcripts in the dockets referenced above for the Agencies' consideration. The Agencies will webcast the entire proceedings of all three meetings.

          DATES:
          The listening sessions will be held on:
          • Thursday, May 12, 2016, in Washington, DC;
          • Tuesday, May 17, in, Chicago, IL; and
          • Wednesday, May 25, in Los Angeles, CA.
          All sessions will run from 10 a.m. to noon and 1:30 p.m. to 3:30 p.m., local time. If all interested parties have the opportunity to comment, the sessions may conclude early.

          ADDRESSES:
          The May 12, 2016, listening session will be held at the National Association of Home Builders, 1201 15th Street NW., Washington, DC 20005. The May 17, 2016, session will be held at the Marriott Courtyard Chicago Downtown/River North, 30 E. Hubbard Street, Chicago, IL 60611. The final session will be held on May 25, 2016, at the Westin Bonaventure Hotel and Suites, 404 S. Figueroa Street, Los Angeles, CA 90071. In addition to attending the sessions in person, the Agencies offer several ways to provide comments, as described below.

            Internet Address for Live Webcast. The Agencies will post specific information on how to participate via the Internet on the Agencies' Web sites at www.fmcsa.dot.gov/calendar and www.fra.dot.gov/ in advance of the listening session. This Notice provides more information on the listening sessions below in Section II., Meeting Participation and Information the Agencies Seek from the Public.
          Written comments. You may submit comments identified by Docket Numbers FMCSA-2015-0419 and FRA-2015-0111 using any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments;
          • Mail: Docket Management Facility, U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE., West Building, Ground Floor, Washington, DC 20590-0001;
          • Hand Delivery or Courier: West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; and
          • Fax: 202-493-2251.
          See the SUPPLEMENTARY INFORMATION section below for more details on how to submit written comments.

          FOR FURTHER INFORMATION CONTACT:

            For information about the listening sessions: Ms. Shannon L. Watson, Senior Policy Advisor, FMCSA, 1200 New Jersey Avenue SE., Washington, DC 20590, by telephone at 202-366-2551, or by email at shannon.watson@dot.gov.

          If you need sign language interpretation or any other accessibility accommodation, please contact Ms. Watson at least one week in advance of each session to allow us to arrange for such services. The Agencies cannot guarantee that interpreter services requested on short notice will be provided.

            For other information on Obstructive Sleep Apnea:

            FMCSA: Ms. Angela Wongus, Medical Programs Division, FMCSA, 1200 New Jersey Ave. SE., Washington, DC 20590, by telephone at 202-366-3109, or by email at fmcsamedical@dot.gov.

            FRA: Dr. Bernard Arseneau, Medical Director, Assurance and Compliance, FRA, 1200 New Jersey Avenue SE., Washington, DC 20590, by telephone at 202-493-6232, or by email at bernard.arseneau@dot.gov.

        SUPPLEMENTARY INFORMATION:
        Submitting Comments
        If you submit a comment, please include the docket numbers for this notice (FMCSA-2015-0419 and FRA-2015-0111), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. The Agencies recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agencies can contact you if there are questions regarding your submission.
        To submit your comment online, go to http://www.regulations.gov, enter the docket numbers, FMCSA-2015-0419 and FRA-2015-0111, in the keyword box, and click “Search.” When the new screen appears, click on the “Comment Now!” button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit.

        If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.
        The Agencies published the ANPRM on March 10, 2016 (81 FR 12642). The Agencies will consider all comments and material received before the end of the comment period on June 8, 2016, and may draft a notice of proposed rulemaking based on your comments and other information and analysis.
        Viewing Comments and Documents

        To view comments and any documents this preamble references as available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2015-0419 and FRA-2015-0111, in the keyword box, and click “Search.” Next, click the “Open Docket Folder” button and choose the document to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., E.T., Monday through Friday, except Federal holidays.
        Privacy Act

        Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its potential rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which you can review at www.transportation.gov/privacy.

        I. Background
        Advance Notice of Proposed Rulemaking

        On March 10, 2016, the Agencies published an advance notice of proposed rulemaking (ANPRM) requesting data and information regarding the prevalence of moderate-to-severe OSA among individuals occupying safety sensitive positions in highway and rail transportation, and on its potential consequences for the safety of rail and highway transportation. 81 FR 12642. The Agencies also requested information on potential costs and benefits from regulatory actions that address the safety risks associated with motor carrier and rail transportation workers in safety sensitive positions who have OSA. Id. The purpose of these listening sessions is to receive oral comments in response to the ANPRM.
        Legal Basis
        Federal Motor Carrier Safety Administration
        FMCSA has authority under 49 U.S.C. 31136(a) and 31502(b)—delegated to the Agency by 49 CFR 1.87(f) and (i), respectively—to establish minimum qualifications, including medical and physical qualifications, for commercial motor vehicle (CMV) drivers operating in interstate commerce. Section 31136(a)(3) requires that FMCSA's safety regulations ensure that the physical conditions of CMV drivers enable them to operate their vehicles safely, and that medical examiners (MEs) trained in physical and medical examination standards perform the physical examinations required of such operators.
        In 2005, Congress authorized FMCSA to establish a Medical Review Board (MRB) composed of experts “in a variety of medical specialties relevant to the driver fitness requirements” to provide advice and recommendations on qualification standards. 49 U.S.C. 31149(a). The position of FMCSA Chief Medical Examiner was authorized at the same time. 49 U.S.C. 31149(b). Under section 31149(c)(1), FMCSA, with the advice of the MRB and Chief Medical Examiner, is directed to “establish, review and revise . . . medical standards for operators of commercial motor vehicles that will ensure that the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely.” FMCSA, in conjunction with the Chief Medical Examiner, asked the MRB to review and report specifically on OSA.
        Federal Railroad Administration
        Under 49 U.S.C. 20103, the Secretary of Transportation (Secretary) has broad authority to issue regulations governing every area of railroad safety. The Secretary has delegated rulemaking responsibility under section 20103 to the Administrator of FRA. 49 CFR 1.89(a). Moreover, FRA has exercised this safety authority to require other medical testing. FRA regulations require locomotive engineers (49 CFR 240.121) and conductors (49 CFR 242.117) to undergo vision and hearing testing as part of their qualification and certification at least every 3 years. There are individual medical circumstances that may lead a railroad to require some engineers or conductors to undergo more frequent testing. In addition, Congress has authorized the Secretary to consider requiring certification of the following other crafts and classes of employees: (1) Car repair and maintenance employees; (2) onboard service workers; (3) rail welders; (4) dispatchers; (5) signal repair and maintenance employees; and (6) any other craft or class of employees that the Secretary determines appropriate. Therefore, the Secretary, and the FRA Administrator by delegation, have statutory authority to issue regulations to address the safety risks posed by employees in safety sensitive positions with OSA.
        What is obstructive sleep apnea?
        OSA is a respiratory disorder characterized by a reduction or cessation of breathing during sleep. OSA is characterized by repeated episodes of upper airway collapse in the region of the upper throat (pharynx) that results in intermittent periods of partial airflow obstruction (hypopneas), complete airflow obstruction (apneas), and respiratory effort-related arousals from sleep (RERAs) in which affected individuals awaken partially and may experience gasping and choking as they struggle to breathe. Risk factors for developing OSA include: Obesity; male gender; advancing age; family history of OSA; large neck size; and an anatomically small oropharynx (throat). OSA is associated as well with increased risk for other adverse health conditions such as: Hypertension (high blood pressure); diabetes; obesity; cardiac dysrhythmias (irregular heartbeat); myocardial infarction (heart attack); stroke; and sudden cardiac death.
        Individuals who have undiagnosed OSA are often unaware they have experienced periods of sleep interrupted by breathing difficulties (apneas, hypopneas, or RERAs) when they wake. As a result, the condition is often unrecognized by affected individuals and underdiagnosed by medical professionals.
        What are the safety risks in transportation?
        For individuals with OSA, eight hours of sleep can be less restful or refreshing than four hours of ordinary, uninterrupted sleep.1

           Undiagnosed or inadequately treated moderate to severe OSA can cause unintended sleep episodes and resulting deficits in attention, concentration, situational awareness, and memory, thus reducing the capacity to safely respond to hazards when performing safety sensitive duties. Therefore, OSA is a critical safety issue that can affect operations in all modes of travel in the transportation industry.

            1 Gay, P., Weaver, T., Loube, D., Iber, C. (2006). Evaluation of positive airway pressure treatment for sleep related breathing disorders in adults. Positive Airway Pressure Task Force; Standards of Practice Committee; American Academy of Sleep Medicine. Sleep 29:381-401.

        II. Meeting Participation and Information the Agencies Seek From the Public
        Each listening session is open to the public. Speakers should try to limit their remarks to 3-5 minutes. No preregistration is required. Attendees may submit material to the Agencies' staff at the session to include in the pubic dockets referenced in this notice.
        Those participating in the webcast will have the opportunity to submit comments online that will be read aloud at the sessions with comments made in the meeting rooms. The Agencies will docket the transcripts of the webcast, a separate transcription of each listening session prepared by an official court reporter, and all other materials submitted to the Agencies' personnel.
        The Agencies continue to request public comment on the questions below. In your response, please provide supporting materials and identify your interest in this rulemaking, whether in the transportation industry, medical profession, or other.
        The Problem of OSA
        1. What is the prevalence of moderate-to-severe OSA among the general adult U.S. population? How does this prevalence vary by age?
        2. What is prevalence of moderate-to-severe OSA among individuals occupying safety sensitive transportation positions? If it differs from that among the general population, why does it appear to do so? If no existing estimates exist, what methods and information sources can the Agencies use to reliably estimate this prevalence?
        3. Is there information (studies, data, etc.) available for estimating the future consequences resulting from individuals with OSA occupying safety sensitive transportation positions in the absence of new restrictions? For example, does any organization track the number of historical motor carrier or train accidents caused by OSA? With respect to rail, how would any OSA regulations and the current positive train control system requirements interrelate?
        4. Which categories of transportation workers with safety sensitive duties should be required to undergo screening for OSA? On what basis did you identify those workers?
        Costs and Benefits
        5. What alternative forms and degrees of restriction could FMCSA and FRA place on the performance of safety-sensitive duties by transportation workers with moderate-to-severe OSA, and how effective would these restrictions be in improving transportation safety? Should any regulations differentiate requirements for patients with moderate, as opposed to severe, OSA?
        6. What are the potential costs of alternative FMCSA/FRA regulatory actions that would restrict the safety sensitive activities of transportation workers diagnosed with moderate-to-severe OSA? Who would incur those costs? What are the benefits of such actions and who would realize them?
        7. What are the potential improved health outcomes for individuals occupying safety sensitive transportation positions who would receive OSA treatment due to regulations?
        8. What models or empirical evidence is available to use to estimate potential costs and benefits of alternative restrictions?
        9. What costs would be imposed on transportation workers with safety sensitive duties by requiring screening, evaluation, and treatment of OSA?
        10. Are there any private or governmental sources of financial assistance? Would health insurance cover costs for screening and/or treatment of OSA?
        Screening Procedures and Diagnostics
        11. What medical guidelines, other than those the American Academy of Sleep Medicine guidance the Federal Aviation Administration currently uses, are suitable for screening transportation workers with safety sensitive duties that are regulated by FMCSA/FRA for OSA? What level of effectiveness are you seeing with these guidelines?
        12. What were the safety performance histories of transportation workers with safety sensitive duties who were diagnosed with moderate-to-severe OSA, who are now successfully compliant with treatment before and after their diagnosis?
        13. When and how frequently should transportation workers with safety sensitive duties be screened for OSA? What methods (laboratory, at-home, split, etc.) of diagnosing OSA are appropriate and why?
        14. What, if any, restrictions or prohibitions should there be on transportation workers' safety sensitive duties while they are being evaluated for moderate-to-severe OSA?
        15. What methods are currently employed for providing training or other informational materials about OSA to transportation workers with safety sensitive duties? How effective are these methods at identifying workers with OSA?
        Medical Personnel Qualifications and Restrictions
        16. What qualifications or credentials are necessary for a medical practitioner who performs OSA screening? What qualifications or credentials are necessary for a medical practitioner who performs the diagnosis and treatment of OSA?
        17. With respect to FRA, should it use Railroad MEs to perform OSA screening, diagnosis, and treatment?
        18. Should MEs or Agencies' other designated medical practitioners impose restrictions on a transportation worker with safety sensitive duties who self-reports experiencing excessive sleepiness while performing safety sensitive duties?
        Treatment Effectiveness
        19. What should be the acceptable criteria for evaluating the effectiveness of prescribed treatments for moderate-to-severe OSA?
        20. What measures should be used to evaluate whether transportation employees with safety sensitive duties are receiving effective OSA treatment?

          Issued on: April 22, 2016.
          Larry W. Minor,
          Associate Administrator for Policy.

      [FR Doc. 2016-09911 Filed 4-27-16; 8:45 am]
      BILLING CODE 4910-EX-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [FWS-R8-ES-2009-0047]
        [MO 92210530083-B2]

        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List the Amargosa Toad (Bufo nelsoni) as Threatened or Endangered

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of 90-day petition finding and initiation of status review.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the Amargosa toad (Bufo nelsoni) as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). We find that the petition presents substantial scientific or commercial information indicating that listing this species may be warranted. Therefore, with the publication of this notice, we are initiating a status review to determine if listing the Amargosa toad is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial data and other information regarding this species.

          DATES:
          We made the finding announced in this document on September 10, 2009. To allow us adequate time to conduct this review, we request that we receive information on or before November 9, 2009.

          ADDRESSES:
          You may submit information by one of the following methods:

            • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R8-ES-2009-0047; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

          We will not accept e-mail or faxes. We will post all information received on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Information Solicited section below for more details).

          FOR FURTHER INFORMATION CONTACT:
          Robert D. Williams, Field Supervisor, Nevada Fish and Wildlife Office, 4701 North Torrey Pines Drive, Las Vegas, NV 89130, by telephone (702-515-5230), or by facsimile (702-515-5231). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Information Solicited
        When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review (12-month finding) is complete and based on the best available scientific and commercial information, we are soliciting information concerning the status of the Amargosa toad. We request information from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning the status of the Amargosa toad. We are seeking information regarding:
        (1) The species' historical and current status and distribution, its biology and ecology, and ongoing conservation measures for the species and its habitat.

        (2) Information relevant to the factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531 et seq.), which are:

        (a) The present or threatened destruction, modification, or curtailment of the species' habitat or range;
        (b) Overutilization for commercial, recreational, scientific, or educational purposes;
        (c) Disease or predation;
        (d) The inadequacy of existing regulatory mechanisms; or
        (e) Other natural or manmade factors affecting its continued existence.
        (3) Any proposed projects or development plans that may result in increased water use in the Oasis Valley.
        (4) Information on methods to control crayfish (Procambarus spp.) in desert riparian systems.
        (5) Information on effects of mosquitofish on eggs and larvae of the Amargosa toad or other species of toad where mosquitofish are not native.
        (6) Data on surface water quality or groundwater monitoring in the Oasis Valley, including transport or movement of environmental contaminants from mining operations and the Nevada Test Site.
        (7) Information on whether or not UV-B radiation is increasing in the Oasis Valley and, if so, the effects of this increase on Amargosa toads.
        (8) Information as to any other threats to Amargosa toads asserted in the petition.
        If we determine that listing the Amargosa toad is warranted, it is our intent to propose critical habitat to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, with regard to areas within the geographical range currently occupied by the Amargosa toad, we also request data and information on what may constitute physical or biological features that are essential to the conservation of the species, where these features are currently found, and whether any of these features may require special management considerations or protection. In addition, we request data and information regarding whether or not there are 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 the Act.
        Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.” Based on the status review, we will issue a 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act.

        You may submit your information concerning this status review by one of the methods listed in the ADDRESSES section. We will not consider submissions sent by e-mail or fax or to an address not listed in the ADDRESSES section.
        If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

        Information and materials we receive, as well as supporting documentation we used in preparing this finding, will be available for public inspection on http://www.regulations.gov, or by appointment during normal business hours, at the U.S. Fish and Wildlife Service, 4701 North Torrey Pines Drive, Las Vegas, NV.
        Background

        Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the determination. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register.
        Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “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)). If we find that substantial scientific or commercial information was presented, we are required to promptly commence a status review of the species.
        On February 27, 2008, we received a petition dated February 26, 2008, from the Center for Biological Diversity and Public Employees for Environmental Responsibility (PEER; hereinafter referred to as “petitioners”) requesting that the Amargosa toad be listed as endangered or threatened under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). In a letter to the petitioners dated May 1, 2008, we responded that we had reviewed the petition and found that an emergency listing was not warranted. We also stated that, although we were currently required to complete a significant number of listing and critical habitat actions, we anticipated making an initial finding on the petition during Fiscal Year 2008. However, due to unforeseen delays, we were not able to complete the finding at that time. This notice constitutes our initial finding on the petition.
        Previous Federal Actions
        On August 2, 1977, the Service included the Amargosa toad on a list of amphibians that we were reviewing to determine whether those species should be proposed for listing as endangered or threatened (42 FR 39121). Subsequently, beginning in 1982, we assigned the Amargosa toad as either a category 1 or category 2 candidate species under the Act (47 FR 58454, December 30, 1982; 50 FR 37958, September 18, 1985; 54 FR 554, January 6, 1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). A category 1 species was a taxon for which the Service has substantial information on hand to support the biological appropriateness of proposing to list as endangered or threatened under the Act. A category 2 species was a taxon for which the Service has information indicating that proposing to list the species as endangered or threatened is possibly appropriate, but that information is not conclusive data on biological vulnerability or threats that would support a proposed listing.

        On September 21, 1994, the Service received a petition from the Biodiversity Legal Foundation of Boulder, Colorado, requesting emergency listing of the Amargosa toad as endangered. At the time we received the petition, the Amargosa toad was a category 1 candidate species. On March 23, 1995, we announced our 90-day finding that the petitioned action may be warranted and initiated a status review of the species (60 FR 15280). On July 26, 1995, the Service recommended removal of the Amargosa toad from category 1 candidate status based on information we obtained during the status review. On February 28, 1996 (61 FR 7596), we removed the Amargosa toad from candidate status. On March 1, 1996, we announced our 12-month finding that listing the Amargosa toad as endangered or threatened was not warranted (61 FR 8018).
        Species Information
        Taxonomy and Description

        The Amargosa toad is a member of the family Bufonidae which includes North American true toads. Stejneger (1893, cited in Lannoo 2005, p. 427) described the Amargosa toad as Bufo boreas nelsoni, a subspecies of the western toad (Bufo boreas). Savage (1959, pp. 251-254) was the first to refer to the Amargosa toad as Bufo nelsoni in accordance with the rules of the International Code of Zoological Nomenclature. Feder (1997, cited in Lannoo 2005, p. 428) diagnosed Bufo nelsoni by allozymic data and was the first to publish species rank for the Amargosa toad. Mitochondrial DNA analyses by Goebel (1996, cited in Lannoo 2005, p. 429) are consistent with species status for the Amargosa toad. In 2002, Bufo nelsoni was listed as a full species on the Integrated Taxonomic Information System database compiled by the Smithsonian Institution with the highest credibility rating by their Taxonomic Working Group (Lannoo 2005, p. 427).
        Adult male Amargosa toads are typically 1.6 to 2.7 inches (in.) (42 to 68 millimeters (mm)) snout-vent length, females typically 1.8 to 3.5 in. (46 to 89 mm) snout-vent length (Nevada Department of Wildlife [NDOW] 2000a, p. A-2). The dorsal body of the Amargosa toad has three paired rows of tubercles, or wart-like skin projections, with brown center coloration. The back has black speckling or asymmetrical spots. Background coloration ranges from almost black to brownish or buffy olive and may vary considerably among individual toads in the same population. A light mid-dorsal stripe occurs along the backbone. The large, wart-like parotid glands located behind the eye are tawny to olive. Underneath, the Amargosa toad is whitish or pale olive with scattered black spots that merge above the legs to form the appearance of “pants.”
        Historical and Current Range

        Amargosa toads are endemic to Oasis Valley in southern Nye County, Nevada. The area occupied by the Amargosa toad is isolated with no known or probable connections to members of the western toad complex (NDOW 2000a, p. A-1). The nearest known record for a western toad is approximately 35 linear miles (56 kilometers (km)) away at Furnace Creek in Death Valley National Park, California, where an introduced population of western toad occurs. The historical and current range of the Amargosa toad is estimated to be a 10-mile (16-km) stretch of the Amargosa River and nearby spring systems roughly between the towns of Springdale and Beatty. In 1996, the Amargosa Toad Working Group (ATWG) was organized to provide recommendations for management and conservation of the Amargosa toad. The ATWG consists of representatives of the Service, NDOW, Nevada Department of Conservation and Natural Resources, Bureau of Land Management (BLM), Nye County and local community, the University of Nevada at Reno, and other stakeholders. In 2007, the ATWG prepared a map of all known and potential habitat for the species, including potential movement corridors, and posted the map on the Internet at: http://www.fws.gov/nevada/nv%5Fspecies/amargosa_toad.html. The total amount of known and potential Amargosa toad habitat delineated on the ATWG map is 8,440 acres (ac) (3,416 hectares (ha)).
        Life History and Ecology
        Amargosa toad habitat requirements for breeding and population recruitment include the presence of open, ponded or flowing water, with riparian vegetative cover in an early to intermediate successional stage to form a partial canopy for shade with minimal emergent vegetation at the water's edges. Immature (metamorphs or toadlets) and adult Amargosa toads are dependent upon the areas described above as well as areas they can use for shelter, including burrows, debris piles, spaces under logs or rocks, or areas of dense vegetation (NDOW 2000a, p. A-2). Adult toads also require adjacent vegetated uplands for nocturnal foraging. Upland habitat typically consists of Mojave and Great Basin desert vegetation with leaf litter, rock outcrops, rodent burrows, woody debris, and open areas that are sparsely vegetated. Dense vegetation and advanced successional stages of riparian vegetation appear to limit habitat suitability and occupancy by all life stages, particularly where open water is not present (NDOW 2000a, p. A-2).
        The breeding season for the Amargosa toad begins in mid-February and may extend into July during which time adults congregate at breeding sites. Jones (2004, p. 19) found 82 percent of clutches were laid from February 27 to March 23 in the 2001 season. Eggs are deposited in strings among vegetation in shallow water. A female may lay up to 6,000 eggs in a single clutch. The eggs typically develop into larvae (tadpoles) within 1 to 2 weeks, but as quickly as 3 days in thermal waters (NDOW 2000a, p. A-2). Larvae are blackish with silvery speckles, rounded tail tips, and translucent tail fins. Larvae feed on algae, decaying plant material, and organic detritus that is suspended in the water column or on the substrate. Larvae may be swept downstream if a current is present. Larval mortality may be very high, although recruitment estimates have not been made (CBD and PEER 2008, p. 10). Amargosa toad tadpoles require relatively open water that persists long enough for the completion of metamorphosis and development into toadlets at which time they leave the water. Tadpoles metamorphose into toadlets in about 4 to 8 weeks, though development is highly variable depending on water temperature and site conditions (Jones 2004, p. 7). Predation and early desiccation of wetlands needed for breeding may destroy an entire breeding effort. Amargosa toads are believed to typically live 3 to 4 years in the wild, but a toad marked in 1998 was recaptured in 2008.
        Amargosa toads may be active any time of the year. Toads eat invertebrates including spiders, scorpions, ants, harvester ants, wasps, beetles, flies, grasshoppers, stink bugs, water striders, damsel flies, mosquitoes, mites, and snails. They use their sticky tongue to grab prey items in a sit-and-wait predator strategy (CBD and PEER 2008, p. 11).

        The mean home range of adult Amargosa toads has been studied at the Torrance Ranch site and at Amargosa River Narrows. Home ranges at these sites are estimated to be approximately 1.5 ac (0.6 ha), with no difference between males and females (Jones 2004, p. 48). Rare movements occur over 0.8 mile (1.3 km) between breeding sites along the Amargosa River and 0.5 mile (0.8 km) across uplands (NDOW 2000b, p. 9). During rain events, toad movements are not always confined to riparian corridors and reports exist of Amargosa toads moving over upland ridges (Jones 2004, p. 49). However, significant genetic differentiation of Amargosa toads among sites suggests Amargosa toads do not make extensive use of upland habitat for movement or migration (Simandle 2006, p. 38). Amargosa toads are attracted to disturbed areas where they forage and breed (NDOW 2000b, pp. 7-8 and 19), and seemingly co-exist with humans as indicated by survey data collected at developed study sites (urban and residential).
        Predators of toads include common raven (Corvus corax), white-faced ibis (Plegadis chihi), great egret (Ardea alba), snowy egret (Egretta thula), great blue heron (Ardea herodias), red-tailed hawk (Buteo jamaicensis), red-shouldered hawk (Buteo lineatus), spotted sandpiper (Actitis macularius), American robin (Turdus migratorius), American badger (Taxidea taxus), crayfish (Procambarus spp.), and various fish species (CBD and PEER 2008, p. 11).
        Status
        Since 1998, the Amargosa toad has been classified as a Protected Species by the State of Nevada. No Federal protection is currently afforded the species other than designation as a Special Status Species by the BLM. Conservation and management oversight for the Amargosa toad is provided through the ATWG. The ATWG is comprised mostly of biologists, managers, and private landowners with a common interest in Amargosa toad conservation. The Amargosa Toad Conservation Agreement and Strategy was completed in 2000 (CA/S) (NDOW 2000a, pp. 1-12) and provides management and conservation guidance for the Amargosa toad. Efforts to update the CA/S were initiated at the November 7, 2007, meeting of the ATWG.
        In 1998, the Nevada Department of Wildlife (NDOW) initiated a long-term population monitoring program for the Amargosa toad using mark/recapture methods at key sites. The study involves capture and marking (with implanted tags) of all adult Amargosa toads found that are 2 in. (50 mm), or greater in length. As of November 2007, a total of 5,666 Amargosa toads had been captured and tagged since 1998. The 2007 estimate for the number of toads 2 in. (50 mm) or greater in length from all surveyed sites is 5,179, which is 13 percent less than the estimate for 1998 through 2006 (Hobbs 2007, p. 1). Further, additional populations of toads may occur on unsurveyed sites on private land (NDOW 2000b, p. 18).
        Simandle (2006, p. 42) determined that Amargosa toads meet the criteria and expectations of metapopulations. This means that occupied habitats, unoccupied but suitable habitats, and intervening habitat that may be occasionally used during infrequent migration events should all be considered as conservation priorities. Rare events such as intense floods demonstrate that these are dynamic, disturbance-dependent ecological systems upon which the Amargosa toad depends. Events such as floods may simultaneously destroy existing occupied habitat, create new suitable habitat, and facilitate infrequent movement among different sites.
        Five Factor Evaluation
        Section 4 of the Act, and its implementing regulations at 50 CFR 424, set forth the criteria and procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. The Service determines whether a species is an endangered or threatened species due to one or more of the following five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.
        In making this 90-day finding, we evaluated whether information regarding the Amargosa toad, as presented in the petition and other information available in our files at the time of the petition review, meets the definition of substantial information as stated in 50 CFR 424.14(b)(1), indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.
        Factor A.
        Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range
        The petition outlines numerous assertions regarding the present or threatened destruction, modification, or curtailment of the Amargosa toad's habitat or range. Several assertions point to Amargosa toad habitat being threatened by proposed Federal land sales and by development projects on private land. The petitioners claim that federal land proposed for sale and private lands subject to development encompass the majority of the range of the Amargosa toad (CBD and PEER 2008, pp. 3, 19, and 29). The petition states that threats to the Amargosa toad resulting from federal land sales are the development that would take place on these and the surrounding private lands, and the increased demand for groundwater to support that development (CBD and PEER 2008, pp. 3, 17, and 20).
        The petition raises the issue of potential development plans for the Town of Rhyolite that would include the need for water (CBD and PEER 2008, p. 20). Indian Spring has been identified as a potential water extraction site that would support Rhyolite development. The petition states that if this were to occur, it would likely adversely affect the water table at that site.
        The petition also states that the proposed Reward Mine on BLM land has the potential to affect groundwater in the area. The Reward Mine is approximately 3 miles (4.8 km) southeast of the Amargosa River at the Narrows, south of Beatty. The mine operations would use up to 287 acre-feet of groundwater per year over a period of 6 years (John Shomaker and Associates, Inc. 2008, p. 1). The petitioners claim that proposed water withdrawal potentially may create a cone of depression that could lower water levels upstream and impact toad habitat. The February 2008 analysis provided by BLM on the Reward Mine indicates water for operations would be provided by a well in alluvium next to the Amargosa River (John Shoemaker & Associates Inc. 2008, p. 1). The petitioners assert the combination of river water and local groundwater extracted from the well could lower groundwater levels in Oasis Valley (particularly southern Oasis Valley); however, the petitioner did not provide any support for these assertions.

        The petitioners assert that lowering of the water table from increased groundwater use could seriously impact toad habitat (CBD and PEER 2008, p. 17). Further, they claim that portions of the Amargosa River may have become dewatered from overuse by humans (CBD and PEER 2008, p. 17). A detailed analysis of the impacts of groundwater and surface water withdrawals on water levels in the Amargosa River would be required to demonstrate the above effects. There is no indication in our files or submitted with the petition that such an analysis has been completed. However, we have in our files a 1998 ruling on an application for groundwater withdrawal in the Oasis Valley issued by the Nevada State Engineer (NSE). This ruling recognized a high degree of connection between groundwater and surface water in Oasis Valley (NSE Ruling 4669). The NSE found that combined groundwater and surface water allocations significantly exceeded the current estimate of perennial yield in the basin. Proposed land uses and development in and near the area of Oasis Valley could lead to additional groundwater allocations, accompanied by a reduction in Amargosa toad habitat through a lowering of local groundwater levels. A small decrease in groundwater levels in Oasis Valley could lead to a significant reduction in the area of open pools of water at springs, along spring branches, or along the Amargosa River (particularly during dry summer months), all of which provide habitat for the Amargosa toad (Braumiller 2008, p. 1). Therefore existing and future water use in the Oasis Valley may pose a threat to the Amargosa toad.
        Other potential threats identified by the petitioners include alterations of the riparian corridor that may affect toad movements and habitat connectivity; habitat loss and fragmentation resulting from proposed projects including flood control projects, a railroad, and a mineral material site; overgrowth of vegetation as a result of fencing; feral burro and livestock effects on springs and toads; direct mortality associated with roads and highways; and off-highway vehicle (OHV) use.
        The petitioners generally describe the potential effects that could result from flood control projects (CBD and PEER 2008, pp. 17 and 20). However, the petitioners do not provide information on any specific flood control projects that may threaten the species or its habitat, and the Service is unaware of any proposed flood control actions that would alter the Amargosa River.
        The petitioners state that construction of a new railroad, as proposed by the U.S. Department of Energy to transport nuclear waste to Yucca Mountain, may cross the northernmost portion of the Oasis Valley, north of Colson pond, disturbing approximately 20 ac (8 ha) of Amargosa toad habitat (CBD and PEER 2008, p. 18). Although habitat is suitable, Amargosa toads are not known to occur in this area (ATWG 2006, pp. 1-2).
        Vegetation overgrowth and use of springs by feral burros and cattle are other land management issues raised by the petitioners that may result in degraded habitat and depressed Amargosa toad numbers (CBD and PEER 2008, pp. 17-18, 21 and 23-25). Fencing has been installed at the Crystal and Indian springs sites to exclude feral burros. While burros and livestock (ungulates) may trample Amargosa toad eggs and larvae, light to moderate disturbance is important to Amargosa toads (ATWG 2005, p. 2). In the absence of disturbance, vegetation grows uncontrolled and reduces open areas necessary for Amargosa toads. Intensive and uncontrolled use of Amargosa toad habitat by ungulates may threaten the species by resulting in habitat degradation and potential loss of individual Amargosa toads; however, light to moderate use may be beneficial to the Amargosa toad. Targeted grazing on the Torrance Ranch by The Nature Conservancy improved habitat, and Amargosa toads responded positively as indicated by use of the area by Amargosa toads for feeding and breeding. Complete removal of ungulates could lead to overgrowth of vegetation, and may pose a more serious threat to the Amargosa toad than moderate ungulate use.
        The petitioners claim that OHV activity has been increasing around the Beatty area and results in decreased habitat quality, loss of riparian habitats, and direct mortality of Amargosa toads (CBD and PEER 2008, pp. 21 and 27). Most OHV use in the Beatty area, including the Terrible's 200 Las Vegas to Reno race, occurs during the daytime when toads are likely sheltering. OHVs are used by community residents within the town limits of Beatty mostly along existing roads and trails. However, OHV travel within the river corridor, washes, or other areas used by toads for breeding or for sheltering during daylight hours may impact Amargosa toads, particularly eggs and tadpoles that are known to occur in road depressions. Although the extent of impacts to the Amargosa toad as a result of OHV use is largely unknown, we believe this current OHV use could pose a threat to the Amargosa toad.
        In summary, we find that the information provided in the petition, as well as information in our files, presents substantial scientific or commercial information indicating that listing the Amargosa toad as threatened or endangered may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range, including existing and future water development, use of groundwater to support land development, overgrowth of vegetation, excessive habitat use by ungulates, and OHV use in toad habitat. We will investigate whether there are additional potential threats to the Amargosa toad related to Factor A during our status review.
        Factor B.
        Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
        The petitioners state that there is no evidence that scientific research has resulted in negative consequences on studied populations of the Amargosa toad (CBD and PEER 2008, p. 22). We have no information in our files that indicates overutilization for commercial, recreational, scientific, or educational purposes is a threat to the Amargosa toad. However, we will further investigate whether overutilization for commercial, recreational, scientific, or educational purposes is a potential threat to the toad during our status review.
        Factor C.
        Disease or Predation
        The petitioners did not present evidence, and no evidence exists in our files, that disease may be a threat to the Amargosa toad at this time. However, we will further investigate whether disease is a potential threat to the toad during our status review.

        The petitioners claim that exotic species or nonnative predators and competitors, including nonnative crayfish (Procambarus spp.), largemouth bass (Micropterus salmoides), nonnative trout (Oncorhynchus spp.), black bullhead catfish (Ictalurus melas), mosquitofish (Gambusia affinis), and nonnative bullfrogs (Rana catesbeiana), are a serious threat to the Amargosa toad. Since their introduction in the mid-1980s, nonnative crayfish have become established along most of the Amargosa River and springs occupied by the Amargosa toad, and occur in large numbers (CBD and PEER 2008, p. 3). Crayfish consume toad eggs and larvae, and were located in 7 of 11 sites surveyed during a study (CBD and PEER 2008, p. 23; Jones 2004, pp. 24-25). Bass are known to occur in at least one pond on private property in Oasis Valley, but there is no information in our files to support the claim that trout currently occur in Oasis Valley. Black bullhead catfish are known at one pond that is also occupied by Amargosa toads. Catfish and toads have co-occurred at this site for at least 9 years. Mosquitofish have been introduced into waters of Oasis Valley and occur at most sites occupied by toads. Mosquitofish have been observed to remove and consume eggs of the arroyo toad (Bufo californicus; Lannoo 2005, p. 399) and may also prey on Amargosa toad eggs. It is conceivable that nonnative predators have an impact on Amargosa toads; however, the overall effects of these introduced aquatic species specifically to the Amargosa toad are unknown.

        In summary, we find that the information provided in the petition, as well as information in our files, presents substantial scientific or commercial information indicating that listing the Amargosa toad may be warranted due to the threat of predation by introduced species.

        Factor D.
        Inadequacy of Existing Regulatory Mechanisms
        The petitioners cite BLM's failure to protect the Amargosa toad through designation of important toad habitat as an Area of Critical Environmental Concern (ACEC) or through provision of a comparable level of protection through other means (CBD and PEER 2008, pp. 19 and 27). Further, they claim that the Town of Beatty and Nye County have failed to cooperate in local community efforts to develop a conservation area in Oasis Valley (CBD and PEER 2008, p. 20), and, therefore, that Amargosa toad habitat on private land is threatened by potential development which may proceed without conservation for the Amargosa toad (CBD and PEER 2008, p. 19). Finally, the petitioners assert that the State of Nevada fails to provide adequate protection for the Amargosa toad through existing statutes particularly regarding permit exemptions for residential groundwater use up to 1,800 gallons per day and habitat threats on private lands (CBD and PEER 2008, pp. 20 and 28).
        The petitioners also claim that BLM allows OHV racing near the Crystal Springs exclosure and in a wash potentially used by Amargosa toads. They further state that BLM usually does not enforce OHV exclusion from riparian areas in Oasis Valley (CBD and PEER 2008, p. 27).
        Finally, the petition claims that BLM failed to follow through with habitat projects (CBD and PEER 2008, pp. 20 and 25) and the CA/S has failed at protecting toad habitat and increasing toad populations (CBD and PEER 2008, p. 27).
        Water development may adversely affect areas occupied by Amargosa toad. The State of Nevada permits exemptions for up to 1,800 gallons per day for residential use, which may collectively result in a substantial volume of groundwater withdrawal. The structure of State water regulations and absence of sufficient data on groundwater and surface water to support development without affecting toad habitat constitutes a potential threat to the Amargosa toad. Further, the Service is unaware of a final master plan that guides community planning in concert with toad conservation. The Service acknowledges that activities and potential development on private lands within Oasis Valley are significant threats to the toad.
        Near the Crystal Spring exclosure, BLM has approved OHV events that occur over a 2-day period during the daytime when Amargosa toads are sheltering. The BLM imposes permit conditions to minimize impacts to the area. The Service is unaware of any information that indicates these events or casual OHV use are threats to the Amargosa toad or that BLM fails to enforce OHV exclusion from riparian areas. In 2008, BLM chose an alternate route away from toad habitat for OHV events near Crystal Spring.
        Following a recent review of the CA/S, the ATWG concluded that implementation of the CA/S was an overall success. While some projects have not been completed, a number of important activities not identified in the CA/S have been conducted. The updated CA/S will include information on all accomplishments that benefit the toad. The petition asserts that several habitat enhancement projects proposed in the CA/S (CBD and PEER 2008, p. 20) were not completed, but these projects will be revisited in the upcoming review of CA/S.
        In summary, we find that the information provided in the petition, as well as information in our files, does present substantial scientific or commercial information indicating that listing the Amargosa toad may be warranted due to the inadequacy of the existing regulatory mechanisms, particularly State regulations that allow for residential groundwater use up to 1,800 gallons per day without the need for a permit and the lack of a final master plan for the Oasis Valley.
        Factor E.
        Other Natural or Manmade Factors Affecting the Species' Continued Existence
        The petitioners assert that the Amargosa toad is particularly vulnerable to extinction due to its exceedingly small range and small population size; most of its range has been impacted by humans (Simandle 2006, p. 14; Petition, pp. 16 and 29), and small populations are particularly vulnerable to genetic drift. Information in our files also suggests that the historical and current range of the Amargosa toad is small, i.e., approximately 10 miles (16 km) long consisting of 8,440 ac (3,416 ha) centered on the Amargosa River and including movement corridors among adjacent spring sites and the river. Small population size and range, compounded by threats under Factor A, could threaten the Amargosa toad. Therefore, we find that the information in the petition and in our files presents substantial information that small range and population size may be an important threat to the Amargosa toad when combined with potential threats from development identified in Factor A.
        The petition states that species found in few locations, such as the Amargosa toad, are susceptible to stochastic events such as fire or floods (CBD and PEER 2008, p. 22). Controlled burns conducted on Torrance Ranch in 2008 were successful at reducing vegetation and improving toad habitat; toad reproduction was documented immediately following the burn (ATWG 2008, p. 1). Flood events are a natural disturbance and may benefit the Amargosa toad through periodic habitat disturbances. We will further investigate whether susceptibility to stochastic events is a potential threat to the toad during our status review.
        Radiation poisoning through groundwater contamination (from atomic testing on the Nevada Test Site) was also cited by the petitioners (CBD and PEER 2008, p. 21). The petitioners also assert that pollution of unknown levels on private land is a threat to the Amargosa toad (CBD and PEER 2008, p. 25). No information on groundwater connections or the types, amounts, infiltration speed, or locations of pollution was provided in the petition or exists in our files to support this claim as an important threat to the Amargosa toad. However, we will further investigate whether radiation poisoning through groundwater contamination is a potential threat to the toad during our status review.
        Environmental factors, including global warming, were identified by the petitioners as factors that could decrease habitat for the Amargosa toad through drought. The petitioners also mentioned increased UV-B radiation, which could weaken the Amargosa toad's immune system and result in mortality from disease (CBD and PEER 2008, p. 22). As acknowledged in the petition (CBD and PEER 2008, p. 23), disease has not been observed in Amargosa toads, and no field observations of Amargosa toad mortalities suggesting disease have been reported.

        We acknowledged in Factor A that management of water resources to meet the needs of the Amargosa toad is important for Amargosa toad conservation. Environmental changes due to climate change, including drought, could exacerbate the threats under Factor A. Therefore, we find that the information in the petition and in our files presents substantial information to indicate environmental changes due to climate change could exacerbate threats under Factor A and combine to threaten the Amargosa toad.

        Finally, the petitioners claim that introduced, invasive trees have become established along stretches of the Amargosa River and springs, which may reduce prey and microhabitat available for the Amargosa toad (CBD and PEER 2008, pp. 24 and 26). Since the CA/S was signed in 2000, removal of invasive trees, tamarisk (Tamarix ramosissima) and Russian olive (Elaeagnus angustifolia) has been ongoing and successful as a joint effort involving State, Federal, and private landowners. Amargosa toads are known to use areas underneath tamarisk and Russian olive trees for feeding and sheltering. Tamarisk and Russian olive removal efforts generally include replacement with native riparian species that will provide the same function. We will further investigate whether invasive trees are a potential threat to the toad during our status review.
        In summary, we find that the information provided in the petition and in our files presents substantial scientific or commercial information indicating that listing the Amargosa toad may be warranted due to threats from other natural or manmade factors. These factors, particularly small populations, small range size, and environmental changes due to climate change, could exacerbate threats identified under Factor A.
        Finding
        We have reviewed the petition and the literature cited in the petition, and evaluated the information to determine whether the sources cited support the claims made in the petition. We also reviewed information that was readily available in our files. Based on our evaluation of the information provided in the petition, and information in our files, we find that the petition presents substantial scientific information indicating that listing the Amargosa toad may be warranted.
        Our process for making this 90-day finding under section 4(b)(3)(A) of the Act is limited to a determination of whether the information in the petition presents “substantial scientific or commercial 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)). Section 4(a) of the Act states the Secretary shall, by regulation promulgated in accordance with subsection (b) of the Act, determine whether any species is an endangered species or a threatened species because of any of the five listing factors. Furthermore, regulations at 50 CFR 424.11(c) state a species shall be listed or reclassified if the Secretary determines, on the basis of the best scientific and commercial data available after conducting a review of the species' status, that the species is endangered or threatened because of any one or a combination of the five listing factors.
        As described in our Five-Factor Evaluation above, the petitioners presented substantial information indicating that the Amargosa toad may be threatened throughout its entire range due to four of the five listing factors described in the Act. Therefore, based on our determination that the petitioned action may be warranted due to substantial information presented under Factors A, C, D and E, we are initiating a status review to determine whether listing the Amargosa toad under the Act is warranted. We will address any other potential threats during our status review. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information regarding the Amargosa toad relevant to all five listing factors.
        The “substantial information” standard for a 90-day finding differs from the Act's “best scientific and commercial data” standard that applies to a 12-month finding after a status review to determine whether a petitioned action is warranted. A 90-day finding is not a status assessment of the species and does not constitute a status review under the Act. Our final determination as to whether a petitioned action is warranted is not made until we have completed a thorough status review of the species, which is conducted following a positive 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a positive 90-day finding does not mean that the 12-month finding also will be positive.
        References Cited

        A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the Nevada Fish and Wildlife Office, Las Vegas, Nevada (see FOR FURTHER INFORMATION CONTACT).
        Author

        The primary authors of this notice are the staff members of the Nevada Fish and Wildlife 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: August 26, 2009.
          Daniel M. Ashe,
          Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. E9-21762 Filed 9-9- 09; 8:45 am]
      BILLING CODE 4310-55-S