        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R4-ES-2010-0084; [MO 92210-0-0008-B2]
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Spring Pygmy Sunfish as Endangered

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of petition finding and initiation of status review.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service, announce a 90-day finding on a petition to list the spring pygmy sunfish (Elassoma alabamae) as endangered under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that the petition and information currently available in our files 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 review of the status of the species to determine if the petitioned action is warranted. To ensure this status review is comprehensive, we are requesting scientific and commercial data and other information regarding this species. Based on the status review, we will issue a 12-month finding on the petition, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

          DATES:

          To allow us adequate time to conduct this review, we request that we receive information on or before May 31, 2011. Please note that if you are using the Federal eRulemaking Portal (see
            ADDRESSES section, below), the deadline for submitting an electronic comment is 11:59 p.m. Eastern Time on this date. After May 31, 2011, you must submit information directly to the Field Office (see
            FOR FURTHER INFORMATION CONTACT section below). Please note that we might not be able to address or incorporate information that we receive after the above requested date.

          ADDRESSES:
          You may submit information by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. In the box that reads “Enter Keyword or ID,” enter the Docket number for this finding, which is FWS-R4-ES-2010-0084. Check the box that reads “Open for Comment/Submission,” and then click the Search button. You should then see an icon that reads “Submit a Comment.” Please ensure that you have found the correct document before submitting your comment.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R4-ES-2010-0084; 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 we receive on the Internet at http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Request for Information section below for more details).

          FOR FURTHER INFORMATION CONTACT:

          Stephen Ricks, Field Supervisor, Mississippi Ecological Services Field Office, 6578 Dogwood View Parkway, Jackson, MS 39213; by telephone (601-321-1122); or by facsimile (601-965-4340). If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:

        Request for Information
        When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly review the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on the spring pygmy sunfish from governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties. We seek information on:
        (1) The species' biology, range, and population trends, including:
        (a) Habitat requirements for feeding, breeding, and sheltering;
        (b) Genetics and taxonomy;
        (c) Historical and current range, including distribution patterns;
        (d) Historical and current population levels, and current and projected trends; and
        (e) Past and ongoing conservation measures for the species, its habitat, or both.

        (2) The factors that are the basis for making a listing/delisting/downlisting determination for a species under section 4(a) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which are:
        (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.

        If, after the status review, we determine that listing the spring pygmy sunfish is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act), under section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, within the geographical range currently occupied by the spring pygmy sunfish, we request data and information on:
        (1) What may constitute “physical or biological features essential to the conservation of the species”;
        (2) Where these features are currently found; and
        (3) Whether any of these features may require special management considerations or protection.
        In addition, we request data and information on “specific areas outside the geographical area occupied by the species” that are “essential to the conservation of the species.” Please provide specific comments and information as to what, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the requirements of section 4 of the Act.
        Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
        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. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”

        You may submit your information concerning this status review by one of the methods 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 Web site. If you submit 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 supporting documentation that we received and used in preparing this finding is available for you to review at http://www.regulations.gov, or you may make an appointment during normal business hours at the U.S. Fish and Wildlife Service, Mississippi Ecological Services Field Office (see
          FOR FURTHER INFORMATION CONTACT).
        Background

        Section 4(b)(3)(A) of the Act (16 U.S.C. 1533(b)(3)(A)) 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. 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 conduct a species status review, which we subsequently summarize in our 12-month finding.
        The “substantial information” standard for a 90-day finding differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not mean that the 12-month finding will result in a warranted finding.
        Previous Federal Actions
        On November 29, 1977, we proposed to list the spring pygmy sunfish as endangered and to designate critical habitat (42 FR 60765). We withdrew the critical habitat portion of the proposal on March 6, 1979 (44 FR 12382). We then proposed critical habitat again for the species on July 27, 1979 (44 FR 44418). On January 24, 1980, we withdrew the pending proposal to list the spring pygmy sunfish, along with the proposed critical habitat designation (effective November 29, 1979) (45 FR 5782).
        The spring pygmy sunfish has been included in the following notices as a candidate species for listing: December 30, 1982 (47 FR 58454); September 18, 1985 (50 FR 37958); January 6, 1989 (54 FR 554); and November 15, 1994 (59 FR 58982).

        On February 28, 1996 (61 FR 7457), the Service published a notice of review in the Federal Register that removed the spring pygmy sunfish from the proposed candidate list because of recent discoveries (particularly of the Pryor Springs population).

        Petition History

        On November 24, 2009, we received a petition dated November 24, 2009, from the Center for Biological Diversity (CBD) and Michael Sandel of the University of Alabama, requesting that we list the spring pygmy sunfish (Elassoma alabamae) as endangered under the Act. The petition clearly identified itself as such and included the requested identification information for the petitioners as required by 50 CFR 424.14(a). In a December 17, 2009, letter, we informed the petitioners that we had reviewed the information presented in the petition, and outlined the petition process and timelines. In July 2010, we received letters from the North American Native Fishes Association (NANFA) and Dr. Stallsmith (University of Alabama at Huntsville) requesting that we emergency list the species under section 4(b)(7) of the Act. Following review of the petition, the letters, and information in our files, we also determined that issuing an emergency regulation temporarily listing the species was not warranted. We notified NANFA and Dr. Stallsmith of our determination on July 21, 2010.
        Species Information
        The spring pygmy sunfish (Elassoma alabamae) was discovered in 1938 but was not described until 1993 (Mayden 1993, pp. 1-14). This species is the smallest member of the genus Elassoma. Males are normally smaller than females, and both sexes have 5 to 8 broad, dark vertical bars separated by light-colored, narrow bars. Males are very dark to black with iridescent blue green color on their sides, cheeks, and gill covers (Boschung and Mayden 2004, pp. 614-615).

        The spring pygmy sunfish is a spring-associated fish, endemic to the Tennessee River drainage in the Eastern Highland Rim physiographic province and Dissected Tablelands (Curtis et al. 1913, p. 53) of Lauderdale and Limestone Counties in northern Alabama. The single remaining population of the spring pygmy sunfish currently occupies about 5 river miles (mi) (8.05 river kilometers (km)) of shallow, vegetated areas within four spring pools confluent with the upper Beaver Dam Spring Complex. These spring pools include Moss, Beaverdam, Thorsen, and Horton Springs, all in Limestone County, Alabama. The species is thought to be extirpated in Pryor Springs (also in Limestone County).

        The spring pygmy sunfish was initially discovered in Cave Springs (Lauderdale County) in 1938, and extirpated about a year later due to inundation from the formation of Pickwick Reservoir. In 1941, the species was discovered in Pryor Springs (Limestone County). A series of geomorphic and contamination events over 30 years is believed to have attributed to the demise of the species in Pryor Springs and throughout the species' range—(Boschung and Mayden 2004, pp. 614-615). There are few documented sampling efforts in Pryor Springs between 1966 and 1979. However, collection information from this time period indicates a declining and almost extinct population, nearing extirpation. By 1984, an effort to re-establish the population of spring pygmy sunfish included transplanting the species from Moss Spring into Pryor Springs (Mettee et al. 1986, pp. 14-15). Reintroduction efforts continued in 1985 and 1987 (Mettee et al. 1986, pp. 6-7); however, by 2007, the species was believed extirpated from Pryor Springs due to impaired water quality and quantity problems, most likely attributable to agriculture (Sandel 2008, p. 2).
        The preferred habitat for the spring pygmy sunfish is clear and colorless to slightly stained spring water, spring runs, and associated spring-fed wetlands (Warren 2004, pp. 184-185). Spring pool habitats are typically static, persisting without disturbance for long periods. The spring pygmy sunfish is highly localized within these spring pools, being found in the water column associated with patches of specific submergent vegetation. Spring pygmy sunfishes are generally found at water depths from 5 to 40 inches (in) (12.7 cm to 101.6 centimeters (cm)) and rarely in the upper 5 in (12.7 cm) of the water column. Spring pygmy sunfish abundance is correlated with specific water quantity and quality parameters (i.e., water flow velocity, turbidity, anoxic (lack of oxygen) substratum, and water temperatures) and certain associated species such as amphipods, isopods, spring salamanders, crayfish, and snails (Sandel, pers. comm., 2007). The spring pygmy sunfish has high fecundity and quickly populates areas of available habitat (Sandel, pers. obs., 2004 through 2009). Reproductively active adults occur from January to October. Spawning occurs in March and April, when water quality parameters are within a suitable range, such as a pH of 6.0 to 7.7 and water temperatures of 57.2 to 68 degrees Fahrenheit (°F) (14 to 20 degrees Celsius (°C)). Spring pygmy sunfish produce about 65 eggs, and hatching occurs from April to September (Sandel, pers. obs., 2004 through 2009).
        The species is most abundant at the spring emergence, and exhibits metapopulation (a group of spatially separated populations of the same species that have some interaction) structure by occupying all suitable spring habitats where there is flowing spring water. This suggests that the population in the Beaverdam Creek system is a single, structured, continuous group of breeding individuals, genetically identifiable with limited gene flow from each springhead subpopulation (Sandel 2008, pp. 15-16).
        It is believed that migration between springheads is very important in maintaining genetic diversity of species within these small areas, although gene flow is limited. Even though individual subpopulations may be extirpated at times, due to drought or other ecological issues, the simultaneous loss of many subpopulations may cause extinction of the metapopulation.

        We accept the characterization of the spring pygmy sunfish as a valid species based on the taxonomic characters distinguishing the species from other members of the Elassoma genus (Mayden 1993, p. 4).
        Evaluation of Information for This Finding
        Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or a threatened species due to one or more of the 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 threats to the spring pygmy sunfish, presented in the petition and available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.

        A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range
        Information Provided in the Petition

        The petition states that decreased water quantity has degraded the spring pygmy sunfish's habitat (Warren et al. 2000; Warren 2004; Boschung and Mayden 2004) (cited in petition). Specifically, water from the aquifer of the Eastern Highland Rim located within the Tennessee River Catchment containing the entire Beaverdam Creek watershed is being withdrawn daily by the city of Huntsville and adjacent rural residents at a volume of 40 million gallons per day (MGD) (Compiled from NAWQA 2001, 2009; Sandel, pers. com, 2007).
        The petition states that this water withdrawal quantity is at least three times greater than the withdrawal volumes from the eight surrounding watersheds that remove at least 12 MGD. Groundwater extraction by agriculture from the springs (Thorsen Spring, Horton Spring, and Pryor Branch/Spring systems), with five diesel irrigation pumps operating simultaneously, withdraws 8,000 to 16,000 gallons per minute during drought conditions. In 2007, water from Thorsen Spring was extracted to a level that destroyed existing vegetation and decreased the abundance of the spring pygmy sunfish abundance by 99 percent (Sandel, pers. obs., 2004 through 2007). Chronic regional drought between 2000 and 2005 reduced rates of surface water flow and aquifer recharge. Desiccation of aquatic vegetation by water removal (pumping) within Thorsen, Horton, and Pryor Springs negatively impacted the vegetation of the spring pygmy sunfish's habitat (Jandebeur 1979; Mayden 1993; as cited in the petition).
        The petition states that declining water quality is a major threat to the spring pygmy sunfish due to the use of fertilizers and other agricultural chemicals within the Beaverdam Creek watershed. According to the petition, the watershed contains about 14,016 acres (5672.28 ha) of row cropland that uses fertilizers and other chemicals, which is eventually transported at a runoff rate exceeding 25 MGD throughout the tributaries of the watershed.
        The petition states that removal of aquatic and riparian vegetation due to herbicide application is a major threat to the spring pygmy sunfish. Herbicide application and other methods of aquatic vegetation removal within Thorsen Spring, Horton Spring, and Pryor Branch/Spring systems have impacted the species' habitat (Jandebeur 1979; Mayden 1993) (cited in petition).
        Evaluation of Information Provided in the Petition and Available in Service Files

        Data from our files support the petition's assertion that diminishing water quantity has the potential to be a significant threat to the spring pygmy sunfish. Increased urbanization within the entire Eastern Highland Rim topographic area (Woodside et al. 2001, p. 6) has increased water quantity usage throughout the Tennessee Valley Basin. Demand for water is correlated to projected population levels in Limestone and Lauderdale Counties. By 2015, the population in these counties is projected to increase dramatically (Roop 2010). Growing populations correspondingly increase demand for surface and ground water extraction within the Eastern Highland Rim. Currently about 40 percent of the public water supply for the City of Huntsville is withdrawn from the Tennessee River and 40 percent from groundwater (Hoos et al. 2001, p. 1; Kingsbury 2003, p. 2).

        The information in our files regarding groundwater extraction for Lauderdale and Limestone Counties is limited to general watershed and county-level data (USGS 2009a; USGS 2009b; Hutson et al. 2005, pp. 1-2). The petition only estimates the potential of eight pumps operating simultaneously within the spring pygmy sunfish's sites. Information in our files, along with field observations (Drennen, pers. obs., 2007 through 2009), supports the petition's claim that water is being withdrawn from spring pygmy sunfish habitat for irrigation. However, the specific water quantity removed from these sites and the impact that this removal has on the spring pygmy sunfish is not substantiated, and we do not have supporting information within our files.
        Declining water quality information presented in the petition for the Eastern Highland Rim, in general, is supported by information found in our files. Specific site threats to the spring pygmy sunfish mentioned in the petition, such as excessive sediment, decreasing water clarity, decreasing spawning and feeding sites, reduction of light, and the use of fertilizers and pesticides, were identified by the petition as impacting the broad topographic region that includes the limited sites occupied by the spring pygmy sunfish. However, the significance of this general threat to the spring pygmy sunfish is unknown. Information in our files supports the petition's assertion that decreased water quality may be a threat to the spring pygmy sunfish.
        Information in the petition and in our files indicates that, since 1945, various techniques for removing or limiting aquatic vegetation, such as herbicides, cattle grazing, and irrigation, have occurred within the spring systems and waterways throughout the habitat of the spring pygmy sunfish (Jandebeur 1979, pp. 4-8). The information in our files also supports the statement in the petition that manipulation and control of aquatic vegetation in the spring systems may be a threat to the spring pygmy sunfish.
        In summary, we find that the information provided in the petition, as well as other information in our files, presents substantial information indicating that the petitioned action may be warranted due to the present or threatened destruction, modification, or curtailment of the species' habitat or range, specifically because of declining water quantity and quality and loss of aquatic vegetation.
        B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes.
        Information Provided in the Petition
        The petition states that overutilization has not been implicated in the decline of this species because monthly surveys over the last 5 years for scientific evaluation were nonlethal. Previous lethal sampling of the spring pygmy sunfish within the various sites across the species' range for genetic work never constituted more than 10 percent of the total individuals collected per sampling event. The petition states that there is no evidence to suggest over-exploitation as a cause for the decline of the spring pygmy sunfish.
        Evaluation of Information Provided in the Petition and Available in Service Files
        There is no evidence provided by the petition, or within our files, to support threats under this factor. Therefore, we find that the information provided in the petition, as well as other information in our files, does not indicate or document that overutilization for commercial, recreational, scientific or educational purposes poses a threat to the species. However, we will evaluate all factors, including overutilization for commercial, recreational, scientific, or educational purposes, when we conduct the status review.
        C. Disease or Predation
        Information Provided in the Petition

        The petition states that there is no evidence to suggest that disease is a cause for the decline of the spring pygmy sunfish. However, the petition does state that chain pickerel (Esox nigra) prey on the spring pygmy sunfish (Jandebeur 1997, cited in petition), and that other types of pygmy sunfish species in different localities have been found in the gut contents of piscivorous (fish-eating) fishes (Walsh and Burr 1984, cited in petition). The petition states that invasive species, such as predators like pirate perch (Aphredoderus sayanus) and grass pickerel (Esox americanus), and potential competitors such as the flier (Centrarchus macropterus) and bantam sunfish (Lepomis symmetricus), threaten the spring pygmy sunfish.
        Evaluation of Information Provided in the Petition and Available in Service Files
        The information in our files supports the assertion in the petition that disease is not a threat to the spring pygmy sunfish. Predation does pose a potential threat to the spring pygmy sunfish.
        In summary, we find that neither the information in the petition, nor other information in our files, indicates that disease is a threat to the spring pygmy sunfish. However, we find that the information provided in the petition, as well as other information in our files, suggests that predation by natural or invasive species may pose a threat to the spring pygmy sunfish. We will evaluate all factors, including disease and predation, when we conduct the status review.
        D. The Inadequacy of Existing Regulatory Mechanisms
        Information Provided in the Petition
        The petition states that the spring pygmy sunfish is not formally recognized or protected at any government level. Current State and Federal laws and regulations involving alteration of wetlands; channelization; water withdrawal; pesticide use and other agriculture best management practices; and buffer zones to protect water quality and quantity within spring systems are available, but these do not prohibit destroying the spring pygmy sunfish or its habitat.
        Evaluation of Information Provided in the Petition and Available in Service Files

        The spring pygmy sunfish and its habitat are afforded some protection from water quality and habitat degradation under the Clean Water Act of 1977 (33 U.S.C. 1251 et seq.) and the Alabama Water Pollution Control Law (Code of Alabama, sections 22-22-1 et seq., and regulations promulgated thereunder by the Alabama Department of Environmental Management) (Maynard and Gale. 1995, pp. 20-28). While these laws have resulted in some improvement in water quality and stream habitat for aquatic life, including the spring pygmy sunfish, such as requiring landowners engaged in agricultural practices to have an erosion prevention component within their farm plan, they alone have not been fully adequate to protect this species due to inconsistent implementation, monitoring, and enforcement. Furthermore, habitat degradation is ongoing despite the protection afforded by these laws.
        The State of Alabama maintains water-use classifications through issuance of National Pollutant Discharge Elimination System (NPDES) permits to industries, municipalities, and others that set maximum limits on certain pollutants or pollutant parameters. For water bodies on the Clean Water Act's Section 303(d) List of Impaired Water Bodies, States are required under the Clean Water Act to establish a Total Maximum Daily Load (TMDL) for the pollutants of concern that will bring water quality into the applicable standard. Many of the water bodies that do not meet Clean Water Act standards are within the occupied range of the spring pygmy sunfish (Alabama 2008 Section 303(d) List of Impaired Water Bodies).
        The State of Alabama's water quality standards, adopted from the national standards set by the U.S. Environmental Protection Agency (USEPA), appear to be protective of the spring pygmy sunfish as long as discharges are within permitted limits and are enforced according to the provisions of the Clean Water Act. These water quality requirements were established with the intent to protect all aquatic resources within the State of Alabama and are presumed to be protective of the spring pygmy sunfish. The Service is currently in consultation with the USEPA to evaluate the efficacy of criteria approved in USEPA's water quality standards for endangered and threatened species and their critical habitats as described in the Memorandum of Agreement our agencies signed in 2001 (66 FR 11201; February 22, 2001). Because the spring pygmy sunfish is not currently a federally listed species, it is not specifically considered in the ongoing consultation with USEPA.
        Water extraction has also been identified as a potential threat to the species (see Factor A above). There are few, if any, State and Federal regulations pertaining to ground water extraction and protection of aquifer recharge areas.
        In summary, the petition's claim that there are no existing regulatory mechanisms that protect the spring pygmy sunfish or its habitat from destruction is not supported by the information in our files. However, the information in our files indicates that degradation of habitat for this species is ongoing despite the protections afforded by these existing laws. Therefore, the information in the petition and in our files presents substantial information indicating that the petitioned action may be warranted due to the inadequacy of existing regulatory mechanisms, particularly those affording protection from habitat destruction or degradation.
        E. Other Natural or Manmade Factors Affecting Its Continued Existence
        Information Provided in the Petition

        The petition states that the Beaverdam Creek metapopulation is considered a single, semi-continuous group of subpopulations (Sandel, pers. comm., 2007; Sandel 2008, pp. 13-14), and that impediments to migration and gene flow between springheads are detrimental to maintaining genetic diversity in the species. Individuals from each site are genetically identifiable in a structured population, with limited, but regular, gene flow. The genetic viability of subpopulations is interdependent. Subpopulations may be naturally extirpated at times, and the simultaneous loss of many subpopulations may cause the metapopulation to become extinct. The petition states that inbreeding is a potential factor in the decline of the spring pygmy sunfish in Pryor Springs due to the reintroduction of too few individuals (Mettee et al. 1986; Sandel 2008) (as cited in petition).

        The petition states that if Asian silver and bighead carps (Hypopthalmichthys spp.) are introduced or expand their range from their present locality in the lower Tennessee River and Wheeler Reservoir systems, they may disturb the Beaverdam Creek plankton ecosystem by consuming significant proportions of plankton. The petition also states that invasive plant species, such as floating Amazonian parrot feather (Myriophyllum aquaticum) and water hyacinth (Eichhornia sp.), and the submerged aquatic vegetation Myriophyllum verticillatum and Ceratophyllum echinatum, threaten the Beaverdam Creek ecosystem by competitively excluding native vegetation and storing important nutrients within their aerial stems and leaves, resulting in little nutrition or cover for the food base of the species (no reference cited in the petition).
        Evaluation of Information Provided in the Petition and Available in Service Files
        Data from our files support the petition's assertion that impediments to migration and gene flow between springheads are detrimental to maintaining genetic diversity in the species, and therefore may be a significant threat to the spring pygmy sunfish.

        Mechanical fragmentation of the species' habitat into smaller, isolated subpopulations has transpired due to localized environmental degradation from agriculture, increased urbanization, and other anthropogenic disturbances of the spring systems throughout the watersheds of the Eastern Highland Rim (Sandel 2008, pp. 2-4, 13). This fragmentation of the spring pygmy sunfish's habitat has the potential to impose negative selective pressures on the species' populations, including genetic isolation; reduction of space for rearing, recruitment, and reproduction; reduction of adaptive capabilities and increased likelihood of local extinctions (Burkhead et al. 1997, pp. 397-399). Connectivity of these fragmented habitats as a whole allows improvement in water quality by flushing and diluting possible pollutants and in water quantity by linking the water bodies together. Connectivity also maintains flow between the existing occupied habitat and unoccupied habitat, which, in turn, allows for the potential of colonization of these unoccupied habitat areas when conditions become favorable for the species. In addition, the connectivity also maintains heterozygosity (genetic diversity), or gene flow between the populations of the species, and reduces inbreeding, thereby maintaining the integrity of the population (Hallerman 2003, pp. 363-364).
        However, we find that the information provided in the petition and in our files does not support the claim that Asian silver and bighead carps, or invasive plant species, pose a threat to the spring pygmy sunfish at this time.
        In summary, we find the information provided in the petition, as well as other information in our files, concerning habitat fragmentation and its resulting effects on gene flow and potential demographic impacts within the population is substantial, indicating that the petitioned action may be warranted due to other natural or manmade factors affecting the spring pygmy sunfish's continued existence.
        Finding
        On the basis of our review under section 4(b)(3)(A) of the Act, we have determined that the petition presents substantial scientific or commercial information indicating that listing the spring pygmy sunfish throughout its entire range may be warranted. This finding is based on information provided under Factors A, C, D and E. In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species may warrant listing as endangered or threatened as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information should contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of endangered or threatened under the Act.
        Because we have found that the petition presents substantial information indicating that listing may be warranted, we are initiating a status review to determine whether listing the spring pygmy sunfish under the Act is warranted.
        References Cited

        A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the Mississippi Ecological Services Field Office, 6578 Dogwood View Parkway, Jackson, MS 39213.
        Authors

        The primary author of this notice is Daniel J. Drennen of the Mississippi Ecological Services Field Office, Jackson, MS (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: March 16, 2011.
          Rowan W. Gould,
          Director, U.S. Fish and Wildlife Service.

      [FR Doc. 2011-7691 Filed 3-31-11; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 300
        [181022969-9171-01]
        RIN 0648-BI55
        Pacific Halibut Fisheries; Catch Sharing Plan

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to approve changes to the Pacific Halibut Catch Sharing Plan for the International Pacific Halibut Commission's regulatory Area 2A off Washington, Oregon, and California. In addition, NMFS proposes to implement the portions of the Plan and management measures that are not implemented through the International Pacific Halibut Commission. These measures include the recreational fishery seasons and allocations and management measures for Area 2A. These actions are intended to conserve Pacific halibut and provide angler opportunity where available.

          DATES:
          Comments on the proposed rule must be received on or before March 29, 2019.

          ADDRESSES:
          Submit your comments, identified by NOAA-NMFS-2018-0132, by either of the following methods:
          • Federal e-Rulemaking Portal: Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0132, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Kathryn Blair, West Coast Region, NMFS, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232.

            Instructions: NMFS may not consider comments if they are sent by any other method, to any other address or individual, or received after the comment period ends. All comments received are a part of the public record and NMFS will post them for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender is publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

            Docket: This rule is accessible via the internet at the Office of the Federal Register website at http://www.access.gpo.gov/su_docs/aces/aces140.html. Background information and documents are available at the NMFS West Coast Region website at http://www.westcoast.fisheries.noaa.gov/fisheries/management/pacific_halibut_management.html and at the Council's website at http://www.pcouncil.org. Other comments received may be accessed through Regulations.gov.

          FOR FURTHER INFORMATION CONTACT:

          Kathryn Blair, phone: 503-231-6858, fax: 503-231-6893, or email: kathryn.blair@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Background
        The Northern Pacific Halibut Act (Halibut Act) of 1982 gives the Secretary of Commerce responsibility for implementing the provisions of the Halibut Convention between the United States and Canada. 16 U.S.C. 773-773k. The Halibut Act requires that the Secretary adopt regulations to carry out the purposes and objectives of the Halibut Convention and Halibut Act 16 U.S.C. 773(c). The Halibut Act also authorizes the regional fishery management councils to develop regulations in addition to, but not in conflict with, regulations of the International Pacific Halibut Commission (IPHC) to govern the Pacific halibut catch in their corresponding U.S. Convention waters. 16 U.S.C. 773c(c).
        At its annual meeting in February 2019, the IPHC recommended an Area 2A catch limit of 1,500,000 lb (680.4 metric tons (mt)) for 2019. This catch limit is derived from the total constant exploitation yield (TCEY) of 1,650,000 lb (748.4 mt), which includes commercial discards and bycatch estimates calculated using a formula developed by the IPHC. The table below shows the fishery and subarea allocations resulting from the framework described in the 2019 Area 2A Catch Sharing Plan.

          Table 1—Area 2A Catch Limit and Fishery Subarea Allocations for 2019

            Pounds
            Metric tons

            Area 2A TCEY
            1,650,000
            748.4

            Area 2A Catch Limit
            1,500,000
            680.4

            Tribal commercial fishery
            497,000
            225.4

            Incidental commercial during sablefish fishery
            70,000
            31.8

            Non-tribal directed commercial fishery
            254,426
            115.4

            Incidental commercial catch during salmon troll fishery
            44,899
            20.4

            Washington recreational fishery—Puget Sound
            77,550
            35.2

            Washington recreational fishery—North Coast
            128,187
            58.1

            Washington recreational fishery—South Coast
            62,896
            28.5

            Columbia River recreational fishery
            15,127
            6.9

            Oregon recreational fishery—Central Oregon
            271,592
            123.2

            Oregon recreational fishery—Southern Oregon
            11,322
            5.1

            California recreational fishery
            39,000
            17.7

        The Area 2A catch limit, tribal commercial fishery allocation, and commercial fishery allocations are adopted by the IPHC and will be published in the Federal Register after acceptance by the Secretary of State in accordance with 50 CFR 300.62.

        Since 1988, NMFS has implemented annual Catch Sharing Plans that allocate the IPHC regulatory Area 2A Pacific halibut catch limit between treaty Indian and non-Indian harvesters, and among non-Indian commercial and recreational (sport) fisheries. The Pacific Fishery Management Council (Council) develops Catch Sharing Plans in accordance with the Halibut Act. In 1995, the Council recommended, and NMFS approved and implemented a long-term Area 2A Catch Sharing Plan (60 FR 14651; March 20, 1995). NMFS has been implementing adjustments to the Area 2A Catch Sharing Plan based on Council recommendations each year to address the changing needs of these fisheries. While the full Catch Sharing Plan is not published in the Federal Register, it is made available on the Council and NMFS websites.
        This rule proposes to adopt the Council's recommended changes to the Catch Sharing Plan for IPHC regulatory Area 2A, which affect only the recreational fishery. In addition, this rule would revise the recreational Pacific halibut fishery management measures, such as season dates and bag limits, that are set in NMFS regulations. These management measures are detailed in the Council's recommended Catch Sharing Plan and were developed through the Council's public process. This rule proposes 2019 season dates for the recreational fisheries consistent with the Council's recommendations as well as recommendations from Oregon and Washington. The proposed season dates for California are identical to those from 2018.
        For 2019, the Council recommended minor modifications to recreational (sport) fisheries to better match the needs of the fishery. The Catch Sharing Plan changes provide flexibility to the state recreational fishery managers for opening the South Coast nearshore fishery and for extending the Columbia River fishery into the summer by both modifying the number of open days and the process for setting open days.
        Incidental Halibut Retention in the Sablefish Primary Fishery North of Pt. Chehalis, WA

        The proposed 2019 Catch Sharing Plan allows incidental halibut retention in the sablefish primary fishery north of Pt. Chehalis, WA, when the Washington recreational catch limit is 214,110 lb (101.7 mt) or greater, provided that a minimum of 10,000 lb (4.5 mt) is available. The Area 2A catch limit for 2019 is great enough to allow 70,000 lb (31.8 mt) for incidental halibut retention in the sablefish primary fishery, which occurs when the catch limit is 1,500,000 lb (680.4 mt) or more. NMFS intends to publish the incidental halibut landing restrictions in the sablefish fishery in the Federal Register as an inseason action by April 1, 2019, or as soon as possible thereafter.
        Proposed Changes to the 2019 Area 2A Catch Sharing Plan
        Each year, at the Council's September meeting, the Washington Department of Fish and Wildlife (WDFW), Oregon Department of Fish and Wildlife (ODFW), California Department of Fish and Wildlife (CDFW), NMFS, and treaty Indian tribes in the State of Washington with treaty fishing rights for halibut have an opportunity to propose changes to the Catch Sharing Plan for consideration by the Council. At the September 2018 Council meeting, only WDFW and ODFW proposed changes to the Catch Sharing Plan. The Council voted to solicit public input on all of the changes recommended by WDFW and ODFW. WDFW and ODFW subsequently held public workshops on the recommended changes.
        At its November 2018 meeting, the Council considered the results of the state-sponsored workshops on the recommended changes to the Catch Sharing Plan, along with public input provided at the 2018 September and November Council meetings, and made its final recommendations for modifications to the Catch Sharing Plan. NMFS proposes to approve all of the Council's recommended changes to the Catch Sharing Plan as discussed below.
        1. In section (f)(1)(iii), the Council recommended removing the set-aside of 10 percent or 2,000 lb (0.91 mt) for the nearshore fishery in Washington South Coast subarea, instead allowing the nearshore fishery to be open after the primary (all-depth) fishery closes, if sufficient quota remains. The goal of this change is to clarify that the nearshore fishery will open only if there is sufficient quota after the primary fishery has closed. In previous years, the South Coast primary fishery has exceeded its sub-allocation, and the nearshore fishery has remained closed.
        2. In section (f)(1)(iv), the Council recommended modifying the method used in setting open days for the Columbia River subarea. Specifically, the Council recommended that the all-depth fishery open dates would be determined after consultation between ODFW and WDFW, in time for final action at the November Council meeting. This change allows for collaboration between stakeholders in Washington and Oregon to determine a season opening that meets the needs of the fishery.
        3. In section (f)(1)(iv), the Council recommended modifying the open days for the Columbia River subarea from three to two days per week, with openings occurring on a combination of Thursday, Friday, or Sunday. In 2018, the fishery was open three days per week and the season lasted only five days. This change, combined with the change mentioned above, is expected to extend the season into the summer.

        Additional discussion of these changes is included in the materials submitted to the Council at its September and November meetings, available at https://www.pcouncil.org/council-operations/council-meetings/past-meetings/. A version of the proposed Catch Sharing Plan including these changes can be found at http://www.westcoast.fisheries.noaa.gov/fisheries/management/pacific_halibut_management.html.

        Proposed 2019 Recreational Fishery Management Measures
        On the Council's recommendation, NMFS also proposes recreational fishery management measures, including season dates and bag limits that are necessary to implement the Council's recommended Catch Sharing Plan in 2019. The Catch Sharing Plan includes a framework for setting fishing open days by subarea, and each state submits final recommended season dates annually. This proposed rule contains dates for the recreational (sport) fisheries based on the 2019 Catch Sharing Plan as recommended by the Council. The season dates preferred for the States of Washington and Oregon, following input from the public, are proposed here. The season dates proposed for California are the same as they were in 2017 and 2018. The final rule will select dates based on public comment, including comments from California after it has concluded its public meetings gathering input on season dates.
        The annual domestic management measures are published each year through a final rule under NMFS' authority to implement the Halibut Convention. 50 CFR 300.62. As provided in the Halibut Act at 16 U.S.C. 773b, the Secretary of State, with the concurrence of the Secretary of Commerce, may accept or reject, on behalf of the United States, regulations recommended by the IPHC in accordance with the Convention. For the 2018 fishing season, the final rule for the commercial fisheries and IPHC regulations was published on March 9, 2018, (83 FR 10390) and the final rule for Area 2A recreational fisheries was published on March 26, 2018 (83 FR 13090). The final rule establishing catch limits for Area 2A published on March 26, 2018 (83 FR 13080). The section numbers below correspond to IPHC regulation sections in the March 9, 2018, final rule.
        NMFS proposes the following regulations to implement the Catch Sharing Plan recommended by the Council under the Halibut Act. After the opportunity for public comment, NMFS will publish a final rule implementing the Catch Sharing Plan and annual management measures, as required by implementing regulations at 50 CFR 300.63(b)(1). The numbering of this section corresponds to the annual regulations promulgated by the IPHC; IPHC regulations for 2019 will be finalized via separate rulemaking by March 15, 2019, or as soon as possible thereafter. This proposed rule would then add the following text to Section 27 of the annual domestic management measures and paragraph (8) of the 2019 IPHC regulations, “Sport Fishing for Pacific Halibut—IPHC Regulatory Area 2A”:
        (8) The sport fishing subareas, subquotas, fishing dates, and daily bag limits are as follows, except as modified under the inseason actions consistent with 50 CFR 300.63(c). All sport fishing in Area 2A is managed on a “port of landing” basis, whereby any halibut landed into a port counts toward the quota for the area in which that port is located, and the regulations governing the area of landing apply, regardless of the specific area of catch.
        (a) The quota for the area in Puget Sound and the U.S. waters in the Strait of Juan de Fuca, east of a line extending from 48°17.30′ N lat., 124°23.70′ W long. north to 48°24.10′ N lat., 124°23.70′ W long., is 77,550 lb (35.2 mt).
        (i) The fishing seasons are:
        (A) Fishing is open May 2, 4, 9, 11, 18, 24, and 26; June 6, 8, 20, and 22, or until there is not sufficient quota for another full day of fishing and the area is closed by the Commission. Any closure will be announced on the NMFS hotline at 800-662-9825.
        (ii) The daily bag limit is one halibut of any size per day per person.
        (b) The quota for landings into ports in the area off the north Washington coast, west of the line described in paragraph (2)(a) of section 26 and north of the Queets River (47°31.70′ N lat.) (North Coast subarea), is 128,187 lb (58.1 mt).
        (i) The fishing seasons are:
        (A) Fishing is open May 2, 4, 9, 11, 18, 24, and 26; June 6, 8, 20, and 22, or until there is not sufficient quota for another full day of fishing and the area is closed by the Commission. Any closure will be announced on the NMFS hotline at 800-662-9825.

        (ii) The daily bag limit is one halibut of any size per day per person.

        (iii) Recreational fishing for groundfish and halibut is prohibited within the North Coast Recreational Yelloweye Rockfish Conservation Area (YRCA). It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the North Coast Recreational YRCA. A vessel fishing with recreational gear in the North Coast Recreational YRCA may not be in possession of any halibut. Recreational vessels may transit through the North Coast Recreational YRCA with or without halibut on board. The North Coast Recreational YRCA is a C-shaped area off the northern Washington coast intended to protect yelloweye rockfish. The North Coast Recreational YRCA is defined in groundfish regulations at 50 CFR 660.70(a).
        (c) The quota for landings into ports in the area between the Queets River, WA (47°31.70′ N lat.), and Leadbetter Point, WA (46°38.17′ N lat.)(South Coast subarea), is 62,896 lb (28.5 mt).
        (i) This subarea is divided between the all-waters fishery (the Washington South coast primary fishery), and the incidental nearshore fishery in the area from 47°31.70′ N lat. south to 46°58.00′ N lat. and east of a boundary line approximating the 30 fm depth contour. This area is defined by straight lines connecting all of the following points in the order stated as described by the following coordinates (the Washington South coast, northern nearshore area):
        (1) 47°31.70′ N lat, 124°37.03′ W long;
        (2) 47°25.67′ N lat, 124°34.79′ W long;
        (3) 47°12.82′ N lat, 124°29.12′ W long;
        (4) 46°58.00′ N lat, 124°24.24′ W long.
        The primary fishery season dates are May 2, 5, 9, 12, and 24, or until there is not sufficient quota for another full day of fishing and the area is closed by the Commission. Any closure will be announced on the NMFS hotline at 800-662-9825. If sufficient quota remains, the fishing season in the nearshore area commences the Saturday subsequent to the closure of the primary fishery, and continues 7 days per week until 62,896 lb (28.5 mt) is projected to be taken by the two fisheries combined and the fishery is closed by the Commission or September 30, whichever is earlier. If the fishery is closed prior to September 30, and there is insufficient quota remaining to reopen the northern nearshore area for another fishing day, then any remaining quota may be transferred in-season to another Washington coastal subarea by NMFS.
        (ii) The daily bag limit is one halibut of any size per day per person.
        (iii) Seaward of the boundary line approximating the 30-fm depth contour and during days open to the primary fishery, lingcod may be taken, retained and possessed when allowed by groundfish regulations at 50 CFR 660.360, subpart G.
        (iv) Recreational fishing for groundfish and halibut is prohibited within the South Coast Recreational YRCA and Westport Offshore YRCA. It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the South Coast Recreational YRCA and Westport Offshore YRCA. A vessel fishing in the South Coast Recreational YRCA and/or Westport Offshore YRCA may not be in possession of any halibut. Recreational vessels may transit through the South Coast Recreational YRCA and Westport Offshore YRCA with or without halibut on board. The South Coast Recreational YRCA and Westport Offshore YRCA are areas off the southern Washington coast established to protect yelloweye rockfish. The South Coast Recreational YRCA is defined at 50 CFR 660.70(d). The Westport Offshore YRCA is defined at 50 CFR 660.70(e).
        (d) The quota for landings into ports in the area between Leadbetter Point, WA (46°38.17′ N lat.), and Cape Falcon, OR (45°46.00′ N lat.)(Columbia River subarea), is 15,127 lb (6.9 mt).
        (i) This subarea is divided into an all-depth fishery and a nearshore fishery. The nearshore fishery is allocated 500 lb (0.23 mt) of the subarea allocation. The nearshore fishery extends from Leadbetter Point (46°38.17′ N lat., 124°15.88′ W long.) to the Columbia River (46°16.00′ N lat., 124°15.88′ W long.) by connecting the following coordinates in Washington 46°38.17′ N lat., 124°15.88′ W long. 46°16.00′ N lat., 124°15.88′ W long. and connecting to the boundary line approximating the 40 fm (73 m) depth contour in Oregon. The nearshore fishery opens May 6, and continues on Monday, Tuesday, and Wednesday each week until the nearshore allocation is taken, or September 30, whichever is earlier. The all-depth fishing season is open May 2, 5, 9, 12, 24, and 26. If sufficient quota remains after May 26, the Columbia River subarea would be open two days per week (Thursday and Sunday) until 15,127 lb (6.9 mt) are estimated to have been taken and the season is closed by the Commission, or September 30, whichever is earlier. Subsequent to this closure, if there is insufficient quota remaining in the Columbia River subarea for another fishing day, then any remaining quota may be transferred inseason to another Washington and/or Oregon subarea by NMFS. Any remaining quota would be transferred to each state in proportion to its contribution.
        (ii) The daily bag limit is one halibut of any size per day per person.
        (iii) Pacific Coast groundfish may not be taken and retained, possessed or landed when halibut are on board the vessel, except sablefish, Pacific cod, flatfish species, and lingcod caught north of the Washington-Oregon border during the recreational halibut fishery, when allowed by Pacific Coast groundfish regulations, during days open to the all-depth fishery only.
        (iv) Taking, retaining, possessing, or landing halibut on groundfish trips is only allowed in the nearshore area on days not open to all-depth Pacific halibut fisheries.
        (e) The quota for landings into ports in the area off Oregon between Cape Falcon (45°46.00′ N lat.) and Humbug Mountain (42°40.50′ N lat.) (Oregon Central Coast subarea), is 271,592 lb (123.2 mt).
        (i) The fishing seasons are:
        (A) The first season (the “inside 40-fm” fishery) commences June 1, and continues 7 days a week, in the area shoreward of a boundary line approximating the 40-fm (73-m) depth contour, or until the sub-quota for the central Oregon “inside 40-fm” fishery of 32,591 lb (14.8 mt), or any inseason revised subquota, is estimated to have been taken and the season is closed by the Commission, or October 31, whichever is earlier. The boundary line approximating the 40-fm (73-m) depth contour between 45°46.00′ N lat. and 42°40.50′ N lat. is defined at § 660.71(k).
        (B) The second season (spring season), which is for the “all-depth” fishery, is open May 9, 10, 11; 16, 17, 18; 23, 24, 25; 30, 31, June 1; and 6, 7, 8. The allocation to the all-depth fishery is 171,103 lb (77.6 mt). If sufficient unharvested quota remains for additional fishing days, the season will re-open June 20, 21, 22; July 4, 5, 6; and July 18, 19, 20. Notice of the re-opening will be announced on the NMFS hotline (206) 526-6667 or (800) 662-9825.

        (C) The third season (summer season), which is for the “all-depth” fishery, will be August 2, 3; 16, 17; 30, 31; September 13, 14; 27, 28; October 11, 12; and 25, 26; and will continue until the combined spring season and summer season quotas in the area between Cape Falcon and Humbug Mountain, Oregon, are estimated to have been taken and the area is closed by the Commission. NMFS will announce on the NMFS hotline in July whether the fishery will re-open for the summer season in August. Additional fishing days may be opened if sufficient quota remains after the last day of the first scheduled open period. If, after this date, an amount greater than or equal to 60,000 lb (27.2 mt) remains in the combined all-depth and inside 40-fm (73-m) quota, the fishery may re-open every Friday and Saturday, beginning August 2 and 3, and ending when there is insufficient quota remaining, whichever is earlier. If after September 3, an amount greater than or equal to 30,000 lb (13.6 mt) remains in the combined all-depth and inside 40-fm (73-m) quota, and the fishery is not already open every Friday and Saturday, the fishery may re-open every Friday and Saturday, beginning September 6 and 7, and ending October 31. After September 3, the bag limit may be increased to two fish of any size per person, per day. NMFS will announce on the NMFS hotline whether the summer all-depth fishery will be open on such additional fishing days, what days the fishery will be open and what the bag limit is.
        (ii) The daily bag limit is one halibut of any size per day per person, unless otherwise specified. NMFS will announce on the NMFS hotline any bag limit changes.
        (iii) During days open to all-depth halibut fishing when the groundfish fishery is restricted by depth, no groundfish may be taken and retained, possessed or landed, when halibut are on board the vessel, except sablefish, Pacific cod, and flatfish species, when allowed by groundfish regulations, if halibut are onboard the vessel. During days open to all-depth halibut fishing when the groundfish fishery is open to all depths, any groundfish species permitted under the groundfish regulations may be retained, possessed or landed if halibut are on board the vessel. During days open to nearshore halibut fishing, flatfish species may be taken and retained seaward of the seasonal groundfish depths restrictions, if halibut are on board the vessel.
        (iv) When the all-depth halibut fishery is closed and halibut fishing is permitted only shoreward of a boundary line approximating the 40-fm (73-m) depth contour, halibut possession and retention by vessels operating seaward of a boundary line approximating the 40-fm (73-m) depth contour is prohibited.
        (v) Recreational fishing for groundfish and halibut is prohibited within the Stonewall Bank YRCA. It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the Stonewall Bank YRCA. A vessel fishing in the Stonewall Bank YRCA may not possess any halibut. Recreational vessels may transit through the Stonewall Bank YRCA with or without halibut on board. The Stonewall Bank YRCA is an area off central Oregon, near Stonewall Bank, intended to protect yelloweye rockfish. The Stonewall Bank YRCA is defined at § 660.70(f).
        (f) The quota for landings into ports in the area south of Humbug Mountain, OR (42° 40.50′ N lat.) to the Oregon/California Border (42° 00.00′ N lat.)(Southern Oregon subarea) is 11,322 lb (5.1 mt).
        (i) The fishing season commences on May 1, and continues 7 days per week until the subquota is taken, or October 31, whichever is earlier.
        (ii) The daily bag limit is one halibut per person with no size limit.
        (iii) No Pacific Coast groundfish may be taken and retained, possessed or landed, except sablefish, Pacific cod, and flatfish species, in areas closed to groundfish, if halibut are on board the vessel.
        (g) The quota for landings into ports south of the Oregon/California Border (42°00.00′ N lat.) and along the California coast is 39,000 lb (17.7 mt).
        (i) The fishing season will be open May 1 through June 15, July 1 through July 15, August 1 through August 15, and September 1 through October 31, or until the subarea quota is estimated to have been taken and the season is closed by the Commission, whichever is earlier. NMFS will announce any closure by the Commission on the NMFS hotline (206) 526-6667 or (800) 662-9825.
        (ii) The daily bag limit is one halibut of any size per day per person.
        Classification
        Regulations governing the U.S. fisheries for Pacific halibut are developed by the IPHC, the Pacific Fishery Management Council, the North Pacific Fishery Management Council, and the Secretary of Commerce. Section 5 of the Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c) provides the Secretary of Commerce with the general responsibility to carry out the Halibut Convention between Canada and the United States for the management of Pacific halibut, including the authority to adopt regulations as may be necessary to carry out the purposes and objectives of the Halibut Convention and Halibut Act. This proposed rule is consistent with the Secretary's authority under the Halibut Act.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866. This proposed rule is not expected to be an Executive Order 13771 regulatory action because this proposed rule is not significant under Executive Order 12866.
        NMFS finds good cause to waive a longer notice and comment period, in favor of a 15-day comment period, pursuant to 5 U.S.C. 553(b)(3)(B). The final rule must be effective by May 1, in time for the start of recreational Pacific halibut fisheries. The 2019 Catch Sharing Plan provides the framework for the annual management measures and subarea allocations based on the 2019 Area 2A catch limit for Pacific halibut. Some recreational fishery subareas open May 1, 2019, and the final rule for this action implements season dates for those fisheries. Additionally, the final rule would implement a change to the Catch Sharing Plan season structure for the Washington South Coast and Columbia River subareas, which starts in early May. For these reasons, delaying the rule would cause economic harm to the associated fishing communities by reducing fishing opportunity at the start of the fishing year. Due to the recent government shutdown, NMFS was not able to provide notice of this proposed rule earlier. However, NMFS is able to take public comment for 15 days while still ensuring a final rule is promulgated in time for the May 1 fishery opening date.
        The Regulatory Flexibility Act (RFA) requires Federal agencies to prepare, and make available for public comment, both an initial and final regulatory flexibility analysis (IRFA and FRFA), unless the agency can certify that the proposed and/or final rule would not have a significant economic impact on a substantial number of small entities. These analyses describe the impact on small businesses, non-profit enterprises, local governments, and other small entities as defined by the RFA (5 U.S.C. 603). This analysis is to inform the agency and the public of the expected economic effects of the alternatives, and aid NMFS in considering any significant regulatory alternatives that would accomplish the applicable objectives and minimize the economic impact on affected small entities. The RFA does not require the alternative with the least cost or with the least adverse effect on small entities be chosen as the preferred alternative.

        The IRFA must only address the effects of a proposed rule on entities subject to the regulation (i.e., entities to which the rule will directly apply) rather than all entities affected by the regulation, which would include entities to which the rule will indirectly apply.

        Part 121 of Title 13, Code of Federal Regulations (CFR), sets forth, by North American Industry Classification System (NAICS) categories, the maximum number of employees or average annual gross receipts a business may have to be considered a small entity for RFA purposes. See 13 CFR 121.201. Under this provision, the U.S. Small Business Administration (SBA) established criteria for businesses in the fishery sector to qualify as small entities. Standards are expressed either in number of employees, or annual receipts in millions of dollars. The number of employees or annual receipts indicates the maximum allowed for a concern and its affiliates to be considered small (13 CFR 121.201).
        Provision is made under SBA's regulations for an agency to develop its own industry-specific size standards after consultation with SBA's Office of Advocacy and an opportunity for public comment (see 13 CFR 121.903(c)).
        Description of the Reasons Why Action by the Agency Is Being Considered

        Each year, the states of Washington, Oregon, California, and the treaty tribes that fish for halibut meet with their fishery participants to review halibut management under the Catch Sharing Plan. Based on feedback from these meetings and experience from the previous year's fishing season, the states or the tribes may propose changes to the Catch Sharing Plan for the upcoming year at the Council's September and November meetings. Proposed changes to the Catch Sharing Plan are intended to remedy any problems encountered during the previous year's management, problems with other fisheries with overlapping management jurisdiction (i.e., Pacific Coast groundfish), or other anticipated problems.
        Statement of the Objectives of, and Legal Basis for, the Proposed Rule
        The Northern Pacific Halibut Act (Halibut Act) of 1982 gives the Secretary of Commerce responsibility for implementing the provisions of the Halibut Convention between the United States and Canada. The Halibut Act requires that the Secretary adopt regulations to carry out the purposes and objectives of the Halibut Convention and Halibut Act. The Halibut Act also authorizes the regional fishery management councils to develop regulations in addition to, but not in conflict with, regulations of the IPHC to govern the Pacific halibut catch in their corresponding U.S. Convention waters. The Council's main management objective for the Pacific halibut fishery in Area 2A is to manage fisheries to remain within the catch limit for Area 2A.
        A second objective is to allow each commercial, recreational (sport), and tribal fishery to target halibut in the manner that is appropriate to meet the conservation requirements for species that co-occur with Pacific halibut. A third objective is to meet the needs of fishery participants in particular fisheries and fishing areas.
        A Description and, Where Feasible, Estimate of the Number of Small Entities To Which the Proposed Rule Would Apply

        This rule proposes changes to only the sport fishing sector of the halibut fishery. Therefore, this rule may affect some charterboat operations in Area 2A. Previous analyses determined that charterboats are small businesses. See 77 FR 5477 (Feb. 3, 2012) and 76 FR 2876 (Jan. 18, 2011). Charter fishing operations are classified under NAICS code, 487210, with a corresponding SBA size standard of $7.5 million in annual receipts. No commercial fishing entities are directly affected by this rule.
        In 2018, the IPHC issued 133 licenses to the charterboat fleet. Recent information on charterboat activity is not available, but prior analysis indicated that 60 percent of the IPHC charterboat license holders (around 80 vessels) may be affected by these regulations. Private vessels used for recreational fishing are not businesses, and are therefore not subject to the RFA.
        Description of the Projected Reporting, Record-Keeping, and Other Compliance Requirements of This Proposed Rule
        The proposed changes to the Catch Sharing Plan and domestic management measures do not include any new reporting or recordkeeping requirements.
        Federal Rules That May Duplicate, Overlap or Conflict With the Proposed Rule
        There are no relevant federal rules that may duplicate, overlap, or conflict with this action.
        Description and Estimate of Economic Effects on Entities, by Entity Size and Industry
        The major effect of halibut management on small entities will be from the catch limit decisions made by the IPHC, a decision independent from this proposed action. This proposed action only makes minor changes to the Plan to provide increased recreational opportunities under the allocations that result from the Area 2A catch limit. There are no large entities involved in the halibut fisheries; therefore, none of these changes will have a disproportionately negative effect on small entities versus large entities. The proposed changes to the plan are considered minor, with minimal economic effects.
        An Explanation of the Criteria Used To Evaluate Whether the Rule Would Impose “Significant” Economic Effects
        The proposed recreational management measures implement the Catch Sharing Plan by managing the fisheries to meet the differing fishery needs of the various areas along the coast according to the Catch Sharing Plan's objectives. These changes were uncontroversial throughout the Council's public process and are considered minor because the timing and level of participation are not expected to change. Removing the set-aside in the nearshore fishery is not expected to impact the fishery participants, because in previous years the South Coast primary fishery has exceeded its sub-allocation, and the nearshore fishery has remained closed. This proposed rule would clarify that the fishery is open only if there is quota remaining. Reducing the number of open days per week in the Columbia River subarea from three open days (status quo—open Thursday, Friday, and Sunday), to two open days (open a combination of Thursday, Friday, or Sunday), is expected to allow for the season to stay open through the summer, though not increase the number of open days. Allowing the season to remain open for three days could result in the season ending at an earlier date. The proposed Catch Sharing Plan changes are not expected to change the timing and participation in these recreational fisheries, therefore the changes are not expected to have a significant economic impact on a substantial number of small entities.
        An Explanation of the Criteria Used To Evaluate Whether the Rule Would Impose Effects on “a Substantial Number” of Small Entities
        Participants in the recreational Washington and Columbia River subareas will be impacted by these changes, and all of the entities are considered small. However, the effects of the rule would be minimal as described above. In 2017, the average number of participants in the Columbia River subarea was 73 (private vessels and charterboats are not differentiated), with the highest number on the first two days and last day. Participation in 2019 is expected to be similar.
        A Description of, and an Explanation of the Basis for, Assumptions Used

        In the description of the entities affected, estimates of the number of charterboats were based off a 2004 report by the Pacific States Marine Fisheries Commission. This report has not been updated and the number of entities is assumed to be similar.
        Description of Any Significant Alternatives to the Proposed Rule That Accomplish the Stated Objectives of Applicable Statutes and That Minimize Any Significant Economic Impact of the Proposed Rule on Small Entities
        The status quo alternative would not achieve the objectives and requirements of the Convention and Halibut Act, specifically conserving Pacific halibut and allocating quota equitably. Because the effects of the rule would be minimal, there are no other additional significant alternatives that would further minimize the impact of the proposed rule on small entities while achieving the goals and objectives of the Convention and Halibut Act. In addition, these changes were proposed by stakeholders to address the needs of the fisheries, and, as explained above, the proposed changes are not expected to have a significant economic impact on a substantial number of small entities.

        A copy of this analysis is available from the Council or NMFS (see ADDRESSES).
        Pursuant to Executive Order 13175, the Secretary recognizes the sovereign status and co-manager role of Indian tribes over shared Federal and tribal fishery resources. Section 302(b)(5) of the Magnuson-Stevens Fishery Conservation and Management Act establishes a seat on the Pacific Council for a representative of an Indian tribe with federally recognized fishing rights from California, Oregon, Washington, or Idaho.
        The U.S. Government formally recognizes that the 13 Washington Tribes have treaty rights to fish for Pacific halibut. In general terms, the quantification of those rights is 50 percent of the harvestable surplus of Pacific halibut available in the tribes' usual and accustomed fishing areas (described at 50 CFR 300.64). Each of the treaty tribes has the discretion to administer their fisheries and to establish their own policies to achieve program objectives. Accordingly, tribal allocations and regulations, including the proposed changes to the Plan, have been developed in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.

          Dated: March 11, 2019.
          Chris Oliver,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 2019-04748 Filed 3-13-19; 8:45 am]
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