        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [FWS R2 ES 2008 0114; 92220-1113-0000; C5]
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To Delist Cirsium vinaceum (Sacramento Mountains Thistle)

          AGENCY:
          Fish and Wildlife Service, Interior.

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

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to remove the threatened Cirsium vinaceum (Sacramento Mountains thistle) from the Federal List of Threatened and Endangered Plants, under the Endangered Species Act of 1973, as amended (Act). We find that the petition presents substantial information indicating that delisting of C. vinaceum may be warranted. Therefore, with the publication of this notice, we are initiating a 12-month status review in response to this petition under section 4(b)(3)(B) of the Act to determine if delisting the species is warranted. To ensure that the review is comprehensive, we are soliciting data and other information regarding C. vinaceum.

          DATES:
          To allow us adequate time to conduct a status review, we request that information be submitted on or before December 22, 2008.

          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-R2-ES-2008-0114; 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:
          Wally “J” Murphy, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Office, 2105 Osuna Road, NE, Albuquerque, New Mexico 87113; telephone 505-346-2525; facsimile 505-346-2542. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Information Solicited

        When we make a finding that substantial information exists to indicate that listing or delisting 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 is complete and based on the best available scientific and commercial information, we are soliciting any additional information on the status of Cirsium vinaceum from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry or environmental entities, or any other interested parties. We are seeking information on historical and current distribution, biology and ecology, ongoing conservation measures for the species or its habitat, and threats to the species or its habitat. We also request information regarding the adequacy of existing regulatory mechanisms.

        Please note that comments merely stating support or opposition to the actions 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 a threatened or endangered species shall be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will issue the 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.).

        You may submit your information concerning this finding 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 Web site. 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 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, New Mexico Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
        Background
        Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) 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. Such findings are based on information contained in the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the finding. 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 this finding promptly in the Federal Register.
        Our 90-day finding under section 4(b)(3)(A) of the Act and § 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold. “Substantial information” is defined in 50 CFR 424.14(b) as “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.” If we find that substantial information was presented, we are required to promptly commence a status review of the species.
        We evaluated the information provided by the petitioner in accordance with 50 CFR 424.14(b). Our process for making this 90-day finding under section 4(b)(3)(A) of the Act and 50 CFR 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial scientific and commercial information” threshold (as mentioned above).
        Species Information

          Cirsium vinaceum is a stout plant, 3.3 to 5.9 feet (ft) (1 to 1.8 meters (m)) tall. Cirsium vinaceum stems are brown-purple and highly branched. The basal leaves are green, 12 to 20 inches (in) (30 to 50 centimeters (cm)) long, and up to 8 in (20 cm) wide, with ragged edges. Cirsium vinaceum is a short-lived perennial. It lives as a rosette (a circular arrangement of leaves close to the ground) for one or more years, and eventually a stem bolts upward producing flower and seed. Flowering, the vehicle for sexual reproduction, occurs only once, from July through September, when pink-purple flower heads form at the tips of stems. At any given time, flowering adults comprise approximately 10 percent of the total number of plants (USFS 2003). Seed production usually occurs from cross-pollination by native bees, flies, butterflies, and hummingbirds, although pollination from another plant is not always required for reproduction. Adult C. vinaceum plants die after flowering. Cirsium vinaceum is an obligate wetland species that requires saturated soils with surface or sub-surface water flow. Waters at these sites are rich in calcium carbonate from limestone sources that often precipitates out to create large areas of travertine (calcium carbonate) deposits, which occasionally become large bluffs or hills. Travertine deposits are the most common habitat of the species.

          Cirsium vinaceum presently occurs on both the eastern and western slopes of the Sacramento Mountains in south-central New Mexico. The species is found primarily on National Forest Service lands of the Lincoln National Forest in Otero County, New Mexico (Service 1993, p. 3). A few occupied sites lie on the extreme southern end of the Mescalero Apache Indian Reservation and a few private land inholdings within the Lincoln National Forest (Service 1993, p. 3). Within this known range, C. vinaceum grows in the mixed-conifer zone, between 7,500 and 9,500 ft (2,300 and 2,900 m), in limestone substrate.

          Cirsium vinaceum was listed as a threatened species on June 16, 1987, based on threats from water development, trampling and ground disturbance by livestock, recreation, logging, and the invasion of exotic plants (52 FR 22933). At the time of listing, it was known from 20 localities consisting of a total of 10,000 to 15,000 sexually reproducing plants (52 FR 22933). This number of plants was greater than the 2,000 to 3,000 sexually reproducing plants known at the time the species was proposed for listing in 1984 (49 FR 20735). A recovery plan for C. vinaceum was finalized on September 27, 1993 (Service 1993, pp. 1-23). Critical habitat has not been designated for this species.
        Review of the Petition

        On August 13, 2007, we received a petition from the Board of County Commissioners of Otero County, New Mexico, to delist Cirsium vinaceum. The petitioner cites the following documents pertaining to C. vinaceum: A 1984 proposal to determine C. vinaceum to be a threatened species and to determine critical habitat (49 FR 20735, May 16, 1984); the June 16, 1987 final rule to determine C. vinaceum to be a threatened species (52 FR 22933); the 1993 Sacramento Mountains Thistle (Cirsium vinaceum) Recovery Plan; the 2004 original petition to delist the Sacramento Mountains thistle submitted by Otero County Commissioner Doug Moore; the 2004 Final Environmental Impact Statement—Sacramento, Dry Canyon, and Davis Grazing Allotments (Forest Service 2004); the 2005 Programmatic Biological and Conference Opinion: the Continued Implementation of the Land and Resource Management Plans (LRMP) for the Eleven National Forests and National Grasslands of the Southwestern Region (LRMP Biological Opinion) (USFWS 2005); the 2006 90-day finding on a petition to delist the Sacramento Mountains thistle (Cirsium vinaceum) and initiation of a 5-year status review (71 FR 70479, December 5, 2006); the USDA Natural Resources Conservation Service web report, “New Mexico County Level Distribution for Cirsium vinaceum” (web-checked by petitioner February, 2007); and a U.S. Forest Service (Forest Service) Draft Map of Known Locations of Sacramento Mountains Thistle (Cirsium vinaceum), Sacramento Ranger District, Lincoln National Forest (undated). The petitioner clearly identifies the petition as a petition and includes the requisite information for the petitioner, as required in 50 CFR 424.14(a).
        The petitioner summarizes the natural history of Cirsium vinaceum, describes the range and population status from 1984 to 2003, and outlines the regulatory history.The petitioner emphasizes that C. vinaceum numbers have increased dramatically since the original listing and believes that the recovery objectives have been satisfied. Comparisons of occupied localities and population numbers are drawn from the 1984 petition to list C. vinaceum (49 FR 20735, May 16, 1984), the June 16, 1987 final rule to list C. vinaceum as threatened (52 FR 22933), the 1993 recovery plan for C. vinaceum, and the 2006 90-day finding on a petition to delist C. vinaceum (71 FR 70479, December 5, 2006). These documents give the locality and population numbers as: 14 localities with 2,000 to 3,000 total individuals in 1984; 20 localities with a total of 10,000 to 15,000 reproductive individuals in 1987; 62 localities with 49,000 total plants in 1993; and 86 localities with an estimated 350,000 to 400,000 total C. vinaceum plants in 2003. Population data after 2003 are not included in the petition. The petitioner also discusses possibilities of the range of C. vinaceum extending northward into Lincoln County as suggested by a National Resources Conservation Service web site general map that highlights Lincoln County as well as Otero County for the distribution of C. vinaceum (http://plants.usda.gov/java/county?state_name=New%20Mexico&statefips=35&symbol=CIVI4, from 2007), and southward, based on a large known population located toward the southern tip of the Sacramento Ranger District of the Lincoln National Forest.
        The petitioner claims that threats to Cirsium vinaceum have been “either completely eliminated or sufficiently reduced so that the long-term survival of C. vinaceum is ensured.” Each of the five listing factors is addressed by the petitioner, who analyzes threats given in the original listing of 1987 and believes that they have been minimized. The petitioner states that delisting is warranted based on the sufficient recovery of the species and the assertion that the initial listing was done in error.

        In making this 90-day finding, we evaluated whether information on the changes in the status and threats to Cirsium vinaceum, as presented in the petition, and clarified by information readily available in our files at the time of the petition review, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.
        Threats Analysis
        Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. We evaluate whether that species may be endangered or threatened because of one or more of the five factors described in section 4(a)(1) of the Act. We must consider these same five factors in delisting a species. We may delist a species only if the best scientific and commercial data available indicate that the species no longer meets the definition of threatened or endangered under the Act. Delisting may be warranted as a result of: (1) Extinction, (2) recovery, and/or (3) a determination that the original data used for classification of the species as endangered or threatened were in error.
        Under section 4 of the Act, we may list a species, subspecies, or Distinct Population Segment of vertebrate taxa on the basis of any of the following five factors: (A) Present or threatened destruction, modification, or curtailment of habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We also apply these same factors in determining whether the threats have been sufficiently reduced or eliminated to justify delisting. This 90-day finding is not a status assessment and does not constitute a status review under the Act.
        A. Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range

        The June 16, 1987, listing rule (52 FR 22933) and subsequent recovery plan (Service 1993, pp. 4-6) list habitat destruction or alteration by domestic livestock, water development (e.g., withdrawal from springs, reservoir construction), trampling by recreationists, road construction, logging, and competition with exotic plants as threats to the species' habitat and range. Cirsium vinaceum also has been impacted by off-road vehicles, motorcycles, road maintenance, and other activities (Service 1993, pp. 4-6; Forest Service 2004, pp. 625-629).
        Range and Population

        The petitioner states that the number of localities and abundance of Cirsium vinaceum have increased since it was listed. As discussed above, the petitioner notes that the known distribution of C. vinaceum has grown from 20 localities at the time of listing in 1987 to 86 discovered localities by 2003. As noted in the Species Information section above, we now know that flowering adults comprise approximately 10 percent of the total number of plants (USFS 2003). This means that the 350,000 to 400,000 individuals reported in 2003 by the petitioner equate to approximately 35,000 to 40,000 flowering plants. Therefore, the estimated number of flowering plants increased from 10,000 to 15,000 in 1987 to 35,000 to 40,000 by 2003.
        Our records indicate that the numbers of Cirsium vinaceum localities and individuals presented in the petition through 2003 are accurate. Much of the increase in individual plants is attributable to more intensive survey efforts since 1984 which also resulted in the discovery of several new areas of occupied habitat. There is no doubt that the numbers of documented C. vinaceum have grown between the years of 1984 and 2003, the most recent data presented in the petition.

        A method to estimate the total number of plants (flowering individuals plus rosette individuals that have not flowered yet) was devised, based on a 1989 count of all rosettes in 4 Circium vinaceum localities, which found that the number of rosettes (non-reproductive for that year, but potentially reproductive the following year) was approximately 10 times the number of reproductive plants in the field (Thompson 1991). Using this method, the total number of individual plants has been calculated by multiplying the number of flowering plants by 10 to obtain the number of both non-reproductive rosettes and reproductive individuals. This would amount to an increase from 100,000 to 150,000 total individuals in 1987 to 350,000 to 400,000 total individuals in 2003 (Service 2005, p. 712). In terms of range size, one (Fresnal Canyon) of the new thistle locations occurs outside the 155-square-mile area that was proposed but never finally designated as critical habitat in the 1984 listing proposal (May 16, 1984, 49 FR 20735). Thus, the overall distribution of the species has increased (Service 2005, p. 698; Sivinski 2007, p. 1). We agree with the petitioner that the numbers of localities and individuals, and the range of the species appears to have increased.
        Livestock Grazing
        The petitioner claims that the threat of livestock grazing activities has been adequately reduced as a result of herding practices, exclosures (fences to exclude livestock), and livestock inaccessibility due to rough terrain. In addition, the petitioner asserts that the use of exclosures, herding efforts, and natural inaccessibility collectively have satisfied one of the major actions of the recovery plan, which was to “develop habitat management plans to alleviate threats to the species and ensure permanent protection of at least 75 percent of the known occupied habitats according to steps outlined in the plans.”

        To support this conclusion, the petitioner cites the 1993 recovery plan, which mentions that grazing permittees have exerted more effort toward herding, and that many seep and spring habitats are excluded from frequent livestock use by the steepness of travertine ledges (Service 1993). The petitioner further cites the recovery plan and concludes that grazing impacts to the remaining habitats have been sufficiently mitigated as a result of exclosure fences constructed around almost half of all occupied Cirsium vinaceum sites recorded for 2003. According to the petition, which cites the Forest Service's 2003 Biological Assessment for the Sacramento Grazing Allotment Management Plan (Forest Service 2003), exclosures have increased C. vinaceum numbers for those fenced populations. The petitioner states that the recovered status of the species will be maintained by the installation of additional exclosure fences in the future, as noted in a final environmental impact statement covering the Sacramento grazing allotment (Forest Service 2004a).

        At the time of listing, the presence of livestock was recognized as being detrimental to Cirsium vinaceum due to trampling and ground disturbance (52 FR 22933, June 16, 1987). Evidence of damage by livestock was based on the notable decrease in numbers of individuals in Lucas Canyon when exposed to excessive grazing prior to listing, and on the substantial increase in C. vinaceum at Bluff Springs once the area was fenced (52 FR 22933). Our current understanding of livestock impacts involves the susceptibility of the species to trampling of vulnerable seedlings, rosettes, and flowering stalks, as well as damaging of travertine and soft substrates in occupied and potential habitat (Thomson 1991, pp. 44-52; Service 2004, pp. 62-63). Cirsium vinaceum can recover within a few weeks after heavy grazing is reduced or eliminated, and can continue to persist with light grazing if only the foliage and not the central stem is grazed (Forest Service 2003, pp. 53, 59; Service 2005, p. 697). But livestock consumption of flowering stalks and the leaves of rosettes can cause the loss of the entire reproductive output of the plant (Forest Service 2003, pp. 53, 59; Service 2005, p. 697). Thus, in areas that are grazed, C. vinaceum experiences direct impacts from livestock trampling and consumption, as well as indirect impacts from ground disturbance, substrate destruction, and rechannelling of water flow (Forest Service 2003, pp. 43-56; Service 2005, p. 697).
        Information in our files indicates that fencing around C. vinaceum individuals to prevent livestock access has produced an increase in plants in those localities. Currently, exclosures cover approximately 290 acres (ac) (120 hectares (ha)), protecting about half of the occupied habitat from the negative impacts associated with livestock use (Service 2005, p. 698). We agree with the petitioners that exclosures have protected individual plants and habitat from livestock access and destruction.
        Habitat Protection

        The petitioner states that the objective of the recovery plan to protect 75 percent of known occupied habitat has been met through the success of protecting Cirsium vinaceum from grazing through building exclosure fences. A portion of this protection also is afforded by topography, making terrain inaccessible to cattle, notes the petitioner. According to the petitioner, the recovery criterion has been exceeded based on a comparison of known population areas and C. vinaceum numbers between 1987 and 2003. Numbers of an estimated 10,000 to 15,000 plants from 20 known localities in 1987 are contrasted with data from 2003 for 350,000 to 400,000 plants. The petitioner links this increase to the fencing of approximately 290 ac (120 ha) of C. vinaceum habitat and concludes that the area fenced must have protected at least 75 percent of the known occupied habitats.

        Information in our files indicates that the petitioner's claim that the number of populations and range of Cirsium vinaceum are greater as of the date when the petition was written than what was known in 1987 is reliable and accurate. A delisting criterion in the recovery plan involves the permanent protection of at least 75 percent of the known occupied habitat (Service 1993, p. 9). Using the most current data presented by the petitioner, the achievement of 75 percent permanent protection for the known C. vinaceum occupied habitat area, number of localities, or number of plants would mean that 58 of an estimated 77 acres of occupied habitat, 64 of 86 occupied localities, or 262,500 to 300,000 of 350,000 to 400,000 plants would have to be permanently protected. Although the information presented by the petitioner does not indicate that protection of 75 percent of known occupied habitat has been achieved, it does indicate that the amount of habitat in protected status has increased and that the extent of the threat of disruption or modification of habitat may be reduced.
        Water Accessibility
        The petitioner maintains that threats of habitat destruction from water development have been reduced adequately by the Forest Service's special-use water permit process, new State legislation, and the implementation of conservation actions in the form of habitat improvement projects recommended in the recovery plan.

        The petitioner reports that New Mexico adopted in-stream flow legislation in 2005. From our records, the State of New Mexico enacted in-stream flow legislation in 2005 and then amended it in 2007. This legislation establishes a water reserve based on water donation, purchase, or lease from willing sellers to benefit species that are rare, sensitive, or have small populations (N.M. Stat. Ann. § 72-14-3.3). Use of the water is limited to aquatic or obligate riparian species within a river reach or ground water basin (N.M. Stat. Ann. § 72-14-3.3). The new State statute does provide a mechanism to protect lower drainage habitats of Cirsium vinaceum from drying if a strategic water reserve is created, although the legislation does not prevent the diversion of water from isolated montane wetlands or headwater springs, where C. vinaceum also occurs, and does not directly establish a “strategic water reserve” for the thistle, (N.M. Stat. Ann § 72-14-3.3). Nevertheless, the statute's goals of providing water to obligate riparian listed species, by creating a “strategic water reserve”, and avoiding the listing of additional species might be applied to benefit C. vinaceum (N.M. Stat. Ann § 72-14-3.3).

        The petitioner states that through the issuance of special-use permits, the Forest Service can control the location of a water diversion point in relation to Cirsium vinaceum locations near springs. According to the petitioner, the recovery plan recommends water diversion for spring development only at locations downstream of suitable habitat in order to provide necessary water to the species and prevent habitat disturbance (Service 1993). Citing the LRMP Biological Opinion (Service 2005), the petitioner claims that the Forest Service can specify the location of water intake points in special use permits to protect C. vinaceum from habitat degradation.
        The petitioner believes that water conservation to benefit Cirsium vinaceum has been implemented by the Forest Service. Citing the LRMP Biological Opinion (Service 2005), the petitioner describes a riparian improvement project in 2001-02 that supplied former occupied habitat with additional water by allowing drainage under roads in Water Canyon and the Rio Penasco. The petitioner maintains that this project increased water availability to plants, promoted establishment and abundance of the species, and helped to conserve C. vinaceum.

        At the time of listing, the Service was concerned about the impacts of water development or associated habitat deterioration to Cirsium vinaceum individuals. The listing notice mentioned that an unauthorized 1,900 ft (579 m) long pipeline and cement spring box had been constructed at a C. vinaceum site, which negatively impacted nearby plants (52 FR 22933, June 16, 1987). These structures impeded water flow to the plant and provided evidence of the sensitivity of C. vinaceum to diminishment of its water supply. Just prior to the time of listing, the Bureau of Reclamation had conducted studies of three potential dam and reservoir sites to be used for industrial and domestic water supply in the region (52 FR 22933). Developing any of these water sites was believed to pose a significant threat to C. vinaceum. To emphasize the species' requirement of wetland habitat, the Service identified the adoption of in-stream flow legislation and acquisition of water rights as the first delisting criterion for C. vinaceum in the recovery plan (Service 1993, p. 9).
        As an obligate wetland plant, Cirsium vinaceum continues to depend on water availability for its survival. Although the dam and reservoir projects mentioned in the listing notice were not implemented, information from our files indicates that C. vinaceum currently is subjected to water loss from natural drought conditions; other factors that can cause a spring to go dry (e.g., rerouting of underground channels); or human impacts, such as spring development or loss of water flow to an occupied site through diversion by roads or trails (Service 1993, pp. 4-5; Service 2004, p. 35). Currently, the region has been under drought conditions since 1999. The length and severity of the drought, and therefore its ultimate impact on C. vinaceum, are not known (Piechota et. al. 2004, pp. 303-305). It is likely that the seasonal distribution of yearly precipitation also plays a role in water availability for C. vinaceum. Spring desiccation at occupied sites has led to a reduction in the number of individual plants, and in some cases, caused a loss of all plants at previously occupied sites (Forest Service 2003, pp. 35-36). It is unclear how the springs in the Sacramento Mountains would respond to a combination of extended drought and an increase in the level of water withdrawals (e.g., diversions, groundwater pumping).

        In summary, the new State legislation provides a mechanism to protect lower drainage habitats of Cirsium vinaceum from drying if a strategic water reserve is created (N.M. Stat. Ann § 72-14-3.3). Moreover, the statute's goals of providing water to obligate riparian species by creating a “strategic water reserve” might be applied to benefit C. vinaceum (N.M. Stat. Ann § 72-14-3.3). Our records indicate that in the State of New Mexico, the land owner reserves the right to determine the point of water diversion (United States v. New Mexico, 438 U.S. 696 (1978)). For populations located on the Lincoln National Forest, the Forest Service has the ability to designate the intake point for water diversion during the special use permitting process in a manner that protects C. vinaceum from desiccation. Information from our files supports the petitioner's claim that the Water Canyon and the Rio Penasco road improvement project conserved water and C. vinaceum by retaining water and diverting it toward suitable habitat (Service 2005). This retention and influx of water into suitable habitat enabled C. vinaceum reoccupation of these sites (Service 2005).
        Road Construction, Logging, and Recreation

        The petitioner cites information in the recovery plan (Service 1993) to assert that road construction, logging operations, and recreational activities do not threaten the Cirsium vinaceum or its habitat at this time. Specifically, the petitioner claims that the Forest Service's policy of maintaining a 200-ft (61-m) buffer region around populations protects C. vinaceum during road construction, logging operations, and trail planning (Service 1993). The petition also references a “no entry area condition on a recent timber sale” (52 FR 22933, June 16, 1987), in response to minimizing logging threats to C. vinaceum. The petitioner provides a quote from the previous 90-day finding highlighting the Service's acknowledgement that logging “does not currently threaten the thistle” (71 FR 70479, December 5, 2006). In addressing recreation, the petitioner refers to the recovery plan's mention of a fence that was constructed by the Forest Service prior to 1993 around Bluff Springs and its fragile travertine substrate to re-route foot trails (Service 1993). The Biological Assessment for the Sacramento Grazing Allotment (Forest Service 2003) also is referenced by the petitioner to support the effectiveness of the Bluff Springs exclosure by noting that C. vinaceum numbers have increased since the fence was constructed.

        At the time of listing, there was concern that ground disturbance from road construction and logging could impact Cirsium vinaceum habitats if planning for logging operations did not consider the species (52 FR 22933). In addition, Bluff Springs, an area containing C. vinaceum, was also vulnerable to overuse by recreationists (52 FR 22933, June 16, 1987). The listing rule affirms that “overuse for recreation or any human-caused deterioration of the area around the springs could harm the species” (52 FR 22933). At present, our information indicates that the Forest Service applies a minimum 200-ft (61-m) protective buffer around C. vinaceum occurrences during forest management activities (Service 2002, p. 3; Service 2004, pp. 4-13). The exclosure constructed around Bluff Springs has served to dissuade human use and divert foot traffic from sensitive substrates at Bluff Springs, with a slowly responding increase in C. vinaceum numbers at that site as of 2007 (Forest Service 2003, p. 59; 2007 database). Maintenance of the buffers and exclosures appears to be assisting in the recovery of C. vinaceum.

        B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

        The petitioner provides minimal information addressing this factor, reiterating that this factor has not been an issue for Cirsium vinaceum. The original listing did not cite this factor as significant and a review of information in our files does not suggest that overutilization for commercial, recreational, scientific or educational purposes currently threatens C. vinaceum. We agree that this issue may not be applicable to the species at this time.
        C. Disease or Predation
        Disease is mentioned as being an insignificant threat to Cirsium vinaceum in the conclusion of the petition. No information is provided by the petitioner regarding the effects of disease on the species. At the time of listing, there were no known diseases to C. vinaceum, and disease was not mentioned in the listing petition. Currently, we have no information in our files suggesting that disease may be a significant threat to the species.

        The petitioner states that wildlife and livestock predation or consumption of Cirsium vinaceum is not a known threat. The 2004 Biological Assessment for the Southwestern Region is referenced as support for the assertion that wildlife predation is negligible and cattle are the primary grazers of C. vinaceum (Forest Service 2004). The petition cites the recovery plan to support its conclusion that threats from grazing have been alleviated by exclosures, inaccessible topography, and herding practices (Service 1993). Based on a Forest Service herbivory (plant consumption) monitoring report, the petitioner claims that livestock consumption of the plants is no longer a substantial threat because livestock herbivory during 1992 led to increases in C. vinaceum vigor and population growth in 1993 (Forest Service 1994). The petitioner further reports that there was no evidence of negative effects to C. vinaceum from livestock grazing during the years of 1995, 1998, and 2001 (Forest Service 2004). The petitioner suggests that “a certain amount of herbivory may promote C. vinaceum reproduction by causing seeds to shed and by dispersing the seeds” (p. 27 of the petition) and concludes that herbivory by livestock is not a significant threat to C. vinaceum.

        At the time of listing, herbivory by livestock was not mentioned as a threat, but trampling of Cirsium vinaceum and ground disturbance by livestock were understood to be threats (52 FR 22933, June 16, 1987) (see additional discussion in Factor A above). However, by the time of the recovery plan's publication date, research verified that livestock consumption of C. vinaceum caused a reduction in plant rosette size and reproductive output (Service 1993, p. 5). Some thistle localities are protected from livestock access by use of exclosure fencing.

        Information in our files indicates that a complex relationship exists among Cirsium vinaceum, precipitation, and livestock herbivory; however, overall, plants in grazed areas do more poorly than C. vinaceum plants protected from livestock access (Forest Service 2003, pp. 44-51). Still, our data affirm an increase in C. vinaceum abundance, detected during the early and mid 1990s for the Forest Service's herbivory report.
        D. Existing Regulatory Mechanisms

        The petitioner provides documentation of protective regulations in the form of Forest Service regulations, the Lacey Act, New Mexico State law, and a potential post-delisting monitoring process to claim that existing regulations are sufficient to conserve Cirsium vinaceum if it becomes delisted. Several regulations under Forest Service jurisdiction are discussed by the petitioner. A Federal regulation protects threatened and endangered species against take in National Forests, which prohibits the damage or removal of plants, including C. vinaceum (36 CFR 261.9). The Forest Service's issuance of special-use permits to designate points of water diversion in the Lincoln National Forest is addressed as a means to protect C. vinaceum from spring development. Based on the recovery plan, the petitioner mentions that a permit is required to collect plants in C. vinaceum localities (Service 1993). The petitioner presents two other species that have received protection from the Sensitive Species program (McKittrick pennyroyal (Hedeoma apiculatum) and Tumamoc globeberry (Tumamoca macdougalii)), and claims that this program provides an additional regulatory mechanism for C. vinaceum protection (58 FR 49244; 58 FR 33562). The petitioner believes that the 200-ft (61-m) buffer around roads, trails, and timber operations described in the recovery plan (Service 1993), along with the standards and guidelines given in the LRMP Biological Opinion (Service 2005), offer direction for actions in the Lincoln National Forest, which further protect C. vinaceum.

        The petitioner also claims that the Lacey Act provides adequate protection to Cirsium vinaceum. According to the petition, the Lacey Act makes importing, exporting, transporting, selling, receiving, acquiring, or purchasing C. vinaceum unlawful within or outside of State, National, and international boundaries (16 U.S.C. 3372; Service 1993, p. 6). At the State level, the petitioner asserts that C. vinaceum receives protection from the New Mexico State Endangered Plant Species Act. The New Mexico State Endangered Plant Species Act prohibits the take, damage, or sale of listed plants, and requires permits for scientific study (N.M. Stat. Ann. § 19.21.2). The recent in-stream flow legislation is mentioned by the petitioner as another protective regulation for the species in terms of water provisioning (N.M. Stat. Ann § 72-14-3.3). Finally, the petitioner believes that the post-delisting monitoring plan will protect the species because any indication of becoming extinct would trigger the emergency listing process of the Act that would re-list C. vinaceum (16 U.S.C. 1533(g)).

        At the time of listing, only the Federal regulations at 36 CFR 261.9 prohibiting take of plants from National Forests were in existence (52 FR 22933, June 16, 1987). The other regulations had not been enacted. Currently, under the Act, damage, destruction, removal, possession, transport, or sale of Cirsium vinaceum is prohibited on Federal lands (16 U.S.C. 1531 et seq.). On State lands, the Act serves to prohibit moving, digging up, cutting, damaging, destroying, transporting, or selling C. vinaceum, including instances where trespassing is involved (16 U.S.C. 1531 et seq.). Permits may be authorized under specific instances to engage in otherwise lawful activities with C. vinaceum.

        Information in our files, along with information from the petition, supports the existence of the mentioned regulatory mechanisms for Cirsium vinaceum as a listed species. As a delisted species, C. vinaceum individuals would continue to be protected by the Lacey Act, if involved in collection, transport, or commerce, as well as the New Mexico State Endangered Plant Species Act, if the plant retains its state status as endangered; however, these laws do not protect C. vinaceum habitat. If delisted, C. vinaceum could benefit from regulatory protection as a Forest Service sensitive species. We affirm that C. vinaceum would be carefully monitored for at least 5 years after delisting to ensure that the species would not be at risk of extinction during that time. If delisted, the post-delisting monitoring plan would likely include thresholds indicating when a status review was warranted.

        E. Other Factors Affecting the Species

        Citing information from the recovery plan and the LRMP Biological Opinion (Service 2005), the petitioner discusses a lack of evidence indicating that exotic teasel (Dipsacus sylvestris) and musk thistle (Carduus nutans) are posing threats to C. vinaceum via competition. The petitioner acknowledges the “potential for C. vinaceum to become excluded from some of its drier habitats by the invasive teasel,” which the petitioner quotes from the recovery plan (Service 1993). However, the petitioner also claims that evidence concerning competitive impacts to C. vinaceum from interactions with bull thistle (Cirsium vulgare), Canada thistle (Cirsium arvense), and poison hemlock (Conium maculatum) has not been presented. Thus, the petitioner concludes that competition from invasive plants is not an immediate threat to C. vinaceum.

        At the time of listing, competition with introduced teasel and musk thistle had reduced or eliminated populations of Cirsium vinaceum at sites where it had formerly grown or where habitat was still suitable but where invasive plant species were present (52 FR 22933, June 16, 1987). Information in our files indicates that exotic teasel and musk thistle occurrences are being monitored and are found at approximately one-third of the C. vinaceum localities (2007 database). At this time we have no information suggesting that competition among C. vinaceum and exotic plants is a significant threat. Similarly, we have no information establishing bull thistle, Canada thistle, and poison hemlock as immediate threats to C. vinaceum. Information in our files suggests the musk thistle may be serving as a vector for Rhinocyllus conicus, the exotic seed head weevil (Sivinski 2007, pp. 6, 13; Gardner and Thompson 2008, p. 1), although future interactions among the musk thistle, weevil, and C. vinaceum remain unclear.
        Finding

        We have reviewed the delisting petition and the supporting documents, as well as other information in our files. We find that the delisting petition and other information in our files present substantial information that threats to Cirsium vinaceum may have been reduced and that delisting C. vinaceum may be warranted, and we are initiating a status review. 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 and 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)).

        The petitioner provides a detailed petition that reviews much of the knowledge of Cirsium vinaceum, including the natural history, range, and threats. The documents referenced provide substantial information indicating that C. vinaceum is more widely distributed throughout several canyon drainages in the Sacramento Mountains area than recorded at the time of listing. The 2003 population data of C. vinaceum, the most recent survey data analyzed by the petitioner, indicates that the number of individuals has increased since the time of listing in 1987. Additionally, substantial documentation of the reduction of threats from potential water development, road construction, logging operations, and recreational activities is presented. The petitioner also provides substantial information indicating that additional regulatory mechanisms may now exist that could limit damage to individuals and the development of water in riparian areas.
        It is important to note that the “substantial information” standard for a 90-day finding is in contrast to the Act's “best scientific and commercial data” standard that applies to a 12-month finding as to 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 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 necessarily mean that the 12-month finding will be warranted.
        References Cited

        A complete list of all references cited in this notice is available upon request from the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
        Author

        The primary authors of this rule are the New Mexico Ecological Services Field Office staff (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: October 28, 2008.
           Kenneth Stansell,
          Acting Director, Fish and Wildlife Service.

       [FR Doc. E8-26275 Filed 11-5-08; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF HEALTH AND HUMAN SERVICES
        Indian Health Service
        42 CFR Part 136
        [Docket No. IHS-FRDOC-0001]
        RIN 0917-AA14
        Removal of Obsolete Portion of Regulation Relating to Care and Treatment of Ineligible Individuals

          AGENCY:
          Indian Health Service, Department of Health and Human Services.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Indian Health Service (IHS) of the Department of Health and Human Services (HHS or “the Department”) is issuing this Notice of Proposed Rulemaking (NPRM) to remove obsolete language appearing in the Code of Federal Regulations, regarding the rates charged for the provision of IHS services to ineligible individuals.

          DATES:
          Comments due on or before August 14, 2020.

          ADDRESSES:
          You may submit comments to this proposed rule, identified by RIN 0917-AA14 by any of the following methods:
          • Federal eRulemaking Portal. You may submit electronic comments at http://www.regulations.gov by searching for the Docket ID number IHS-FRDOC-0001. Follow the instructions http://www.regulations.gov online for submitting comments through this method.
          • Regular, Express, or Overnight Mail: You may mail comments to Indian Health Service, Attention: Evonne Bennett, Acting Director, NPRM, RIN 0917-AA14, Division of Regulatory and Policy Coordination, Office of Management Services, Indian Health Service, 5600 Fishers Lane, Mailstop: 09E70, Rockville, Maryland 20857.

          All comments received by the methods and due date specified above will be posted without change to content to http://www.regulations.gov, including any personal information provided about the commenter, and such posting may occur before or after the closing of the comment period.

            Docket: For complete access to background documents or posted comments, go to http://www.regulations.gov and search for Docket ID number IHS-FRDOC-0001.

          FOR FURTHER INFORMATION CONTACT:
          Evonne Bennett, Acting Director, Division of Regulatory and Policy Coordination, Office of Management Services, IHS, 5600 Fishers Lane, Rockville, MD 20857, Mail Stop: 09E70. Telephone (301) 443-1116 (This is not a toll-free number).

        SUPPLEMENTARY INFORMATION:

        In response to Executive Order 13777, Sec. 3(d), which directs agencies to repeal existing regulations that are “outdated, unnecessary or ineffective” from the CFR, HHS proposes to remove outdated language appearing in the CFR at 42 CFR 136.14. The regulations in this part establish general principles and program requirements for carrying out Indian health programs. Regarding the provision of IHS services to ineligible individuals, § 136.14(b) provides that such individuals should be charged “rates approved by the Assistant Secretary for Health and Surgeon General published in the Federal Register.” The Assistant Secretary for Health and the Surgeon General no longer approve or publish such rates. The Agency therefore proposes the removal of this unnecessary language. If the outdated language of § 136.14(b) were to be removed as proposed, § 136.14 in its entirety would read: “(a) In case of an emergency, as an act of humanity, individuals not eligible under § 136.12 may be provided temporary care and treatment in Service facilities; (b) Charging ineligible individuals. Where the Service Unit Director determines that an ineligible individual is able to defray the cost of care and treatment, the individual shall be charged. Reimbursement from third-party payors may be arranged by the patient or by the Service on behalf of the patient.”
        Executive Orders 12866, 13563, 13771, and 13777
        Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). HHS submits that this proposed rule is not “economically significant” as measured by the $100 million threshold, and hence not a major rule under the Congressional Review Act. This rule has not been designated as a “significant regulatory action” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
        Executive Order 13771, titled, “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017. Executive Order 13771 directs agencies to categorize all impacts which generate or alleviate costs associated with regulatory burden and to determine the actions net incremental effect. HHS identifies this proposed rule as a deregulatory action (removing an obsolete rule from the CFR) that provides no cost savings.
        Executive Order 13777, titled, “Enforcing the Regulatory Reform Agenda,” was issued on February 24, 2017. As required by Section 3 of this Executive Order, HHS established a Regulatory Reform Task Force (HHS Task Force). Pursuant to Section 3(d)(ii), the HHS Task Force evaluated this rulemaking and determined that these regulations are “outdated, unnecessary, or ineffective.” Following this finding, the HHS Task Force advised IHS to initiate this rulemaking to remove the unnecessary regulation from the CFR.
        Regulatory Flexibility Act
        This action will not have a significant economic impact on Indian health programs. Therefore, the regulatory flexibility analysis provided for under the Regulatory Flexibility Act is not required.
        Paperwork Reduction Act
        This action does not affect any information collections.

          List of Subjects in 42 CFR 136
          Care and treatment of ineligible individuals.

        For the reasons set forth above, the Department of Health and Human Services proposes to amend 42 CFR 136.14 as follows:

          PART 136—INDIAN HEALTH

        1. The authority citation for part 136 continues to read as follows:

          Authority:
          25 U.S.C. 13; sec. 3, 68 Stat. 674 (42 U.S.C. 2001, 2003); Sec. 1, 42 Stat. 208 (25 U.S.C. 13); 42 U.S.C. 2001.

        2. Amend §  136.14 by revising paragraph (b) to read as follows:

          § 136.14
          Care and treatment of ineligible individuals.

          (b) Charging ineligible individuals. Where the Service Unit Director determines that an ineligible individual is able to defray the cost of care and treatment, the individual shall be charged. Reimbursement from third-party payors may be arranged by the patient or by the Service on behalf of the patient.

          Dated: March 13, 2020.
          Michael D. Weahkee,
          RADM, Assistant Surgeon General, U.S. Public Health Service, Principal Deputy Director, Indian Health Service.
          Approved: April 9, 2020.
          Alex M. Azar II,
          Secretary, Department of Health and Human Services.

      [FR Doc. 2020-12749 Filed 6-12-20; 8:45 am]
      BILLING CODE 4165-16-P


        DEPARTMENT OF TRANSPORTATION
        Surface Transportation Board
        49 CFR Chapter X
        [Docket No. EP 711]
        Petition for Rulemaking To Adopt Revised Competitive Switching Rules

          AGENCY:
          Surface Transportation Board, DOT.

          ACTION:
          Notice of public hearing.

          SUMMARY:
          The Surface Transportation Board (the Board) will hold a public hearing to explore further the issues surrounding the petition by The National Industrial Transportation League (NITL) and the related comments filed in this proceeding.

          DATES:
          The hearing will be held on October 22, 2013, beginning at 9:30 a.m., in the Hearing Room at the Board's headquarters located at 395 E Street SW., Washington, DC. The hearing will be open for public observation. Any person wishing to speak at the hearing shall file with the Board a notice of intent to participate (identifying the party, the proposed speaker, and the time requested), and a summary of the intended testimony (not to exceed three pages), no later than September 23, 2013. The notices of intent to participate and the summaries of testimony are not required to be served on the parties of record in this proceeding; they will be posted to the Board's Web site when they are filed.

          ADDRESSES:

          All filings may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the “E-FILING” link on the Board's Web site at “www.stb.dot.gov.” Any person submitting a filing in the traditional paper format should send an original and 10 copies of the filing to: Surface Transportation Board, Attn: Docket No. EP 711, 395 E Street SW., Washington, DC 20423-0001.
          Copies of written submissions will be posted to the Board's Web site and will be available for viewing and self-copying in the Board's Public Docket Room, Suite 131. Copies of the submissions will also be available (for a fee) by contacting the Board's Chief Records Officer at (202) 245-0238 or 395 E Street SW., Washington, DC 20423-0001.

          FOR FURTHER INFORMATION CONTACT:
          Valerie Quinn at (202) 245-0382. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339.

        SUPPLEMENTARY INFORMATION:
        By decision served on July 25, 2012, the Board began a proceeding to consider a proposal submitted by NITL to modify the Board's standards for mandatory competitive switching. Under its proposal, certain captive shippers located in terminal areas would be granted access to a competing railroad if there is a working interchange within a reasonable distance (30 miles under NITL's proposal). In its decision, the Board sought empirical information about the impact of the proposal if it were to be adopted. The Board received numerous comments in response to its decision. In order to explore further NITL's proposal and the issues raised in the submitted comments, the Board will hold a public hearing.
        This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

          It is ordered:

        1. A public hearing in this proceeding will be held on October 22, 2013, at 9:30 a.m., in the Board's Hearing Room, at 395 E Street SW., Washington, DC, as described above.
        2. By September 23, 2013, any person wishing to speak at the hearing shall file with the Board a notice of intent to participate (identifying the party, the proposed speaker, and the time requested), and a summary of the intended testimony (not to exceed three pages). The notices of intent to participate and the summaries of testimony are not required to be served on the parties of record in this proceeding; they will be posted to the Board's Web site when they are filed.
        3. This decision is effective on its service date.

          Decided: August 12, 2013.

          By the Board, Rachel D. Campbell, Director, Office of Proceedings.
          Derrick A. Gardner,
          Clearance Clerk.

      [FR Doc. 2013-19828 Filed 8-14-13; 8:45 am]
      BILLING CODE 4915-01-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 90
        [WT Docket No. 11-202; FCC 11-185]
        Private Land Mobile Radio Service Regulations

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          This document proposes to modify our rules to permit the implementation of foreign object debris (FOD) detection radar in the 78-81 GHz band. FOD at airports can seriously threaten the safety of airport personnel and airline passengers and can have a negative impact on airport logistics and operations. We seek comment on service and technical rules, and on whether such operations should be authorized on a licensed or unlicensed basis.

          DATES:
          Submit comments on or before February 10, 2012 and reply comments are due on or before February 27, 2012.

          ADDRESSES:
          You may submit comments, identified by WT Docket No. 11-202; FCC 11-185, by any of the following methods:
          • Federal eRulemaking Portal:
            http://www.regulations.gov. Follow the instructions for submitting comments.
          • Federal Communications Commission's Web Site:
            http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
          • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: FCC504@fcc.gov or phone (202) 418-0530 or TTY: (202) 418-0432.

          For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

          FOR FURTHER INFORMATION CONTACT:
          Tim Maguire, Mobility Division, Wireless Telecommunications Bureau, (202) 418-2155.

        SUPPLEMENTARY INFORMATION:
        This is a summary of the Commission's Notice of Proposed Rulemaking and Order (“NPRM”) in WT Docket No. 11-202, FCC 11-185, adopted December 15, 2011, and released December 20, 2011. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by sending an email to fcc504@fcc.gov or by calling the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (tty).
        I. Procedural Matters
        A. Ex Parte Rules-Permit-but-Disclose Proceeding

        1. The proceeding this Notice initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.
        B. Comment Dates

        2. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

          Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: http://www.regulations.gov.

          Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
        Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

         All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
         Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
         U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.

          People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (tty).
        C. Paperwork Reduction Act
        3. This NPRM may contain proposed new information collection requirements dependent on which potential licensing scheme the Commission adopts. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.
        II. Initial Regulatory Flexibility Analysis

        4. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules proposed in the Notice of Proposed Rule Making in WT Docket No. 11-202 (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM as provided on the first page of this document. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.1
           In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.2

            1 See 5 U.S.C. 603(a).

            2 Id.

        5. The proposed rules in the NPRM are intended to permit the implementation of foreign object debris (FOD) detection radar in the 78-81 GHz band. FOD at airports can seriously threaten the safety of airport personnel and airline passengers and can have a negative impact on airport logistics and operations.
        A. Legal Basis
        6. Authority for issuance of this item is contained in sections 4(i), 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 403.
        B. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

        7. Pursuant to 5 U.S.C. 603(b)(3), the RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” Id. In addition, according to 5 U.S.C. 601(3), the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA at 5 U.S.C. 632. Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency after consultation with the Office of Advocacy of the SBA, and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.” Below, we further describe and estimate the number of small entity licensees and regulatees that may be affected by the rules changes proposed in this NPRM.

        8. The SBA has developed a small business size standard for airport operations within the two broad economic census categories of “Air Traffic Control” and “Other Airport Operations.” See 13 CFR 121.201, NAICS codes 488111 and 488119. Under both categories, the SBA deems a business to be small if it has average annual receipts of seven million dollars or less. For the census category of Airport Operations, Census Bureau data for 2007 show that there were 1,075 firms in this category that operated for the entire year. Of this total, 899 had annual revenue of less than five million dollars, and 74 had annual revenue between five and ten million dollars. Thus, under this category and associated small business size standard, the majority of firms can be considered small.

        9. Some of the rules proposed herein may also affect small businesses that manufacture aviation radio equipment. The Commission has not developed a definition of small entities applicable to aviation radio equipment manufacturers. Therefore, the applicable definition is that for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturers. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: All such firms having 750 or fewer employees. See 13 CFR 121.201, NAICS codes 334220. For this category of manufacturers, Census data for 2007, which supersede the similar data in the 2002 Census, show that there were 398 such establishments that operated that year. Of those 398 establishments, 393 (approximately 99%) had fewer than 1,000 employees and 912 (approximately 97%) had fewer than 500 employees. Between these two figures, the Commission estimates that about 915 establishments (approximately 97%) had fewer than 750 employees and, thus, would be considered small under the applicable SBA size standard. Accordingly, the majority of establishments in this category can be considered small under that standard.
        C. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities
        10. The rule changes under consideration in the NPRM would require manufacturers to meet certain criteria and potential users to operate the equipment as prescribed in the rules. We believe the proposed rules would have no other significant effect on the compliance burdens of regulatees. We invite comment on our tentative conclusion that the possible rule changes will not have a negative impact on small entities, or for that matter any entities, and do not impose new compliance costs on any entity. To the extent that commenters believe that any of the above possible rule changes would impose a new reporting, recordkeeping, or compliance burden on small entities, we ask that they describe the nature of that burden in some detail and, if possible, quantify the costs to small entities.
        D. Steps Taken To Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered
        11. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.3

            3 5 U.S.C. 603(c)(1)-(4).

        12. We hereby invite interested parties to address any or all of these regulatory alternatives and to suggest additional alternatives to minimize any significant economic impact on small entities. Any significant alternative presented in the comments will be considered.
        E. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules
        13. None.
        III. Ordering Clauses

        14. Pursuant to sections 1, 4(i), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303(f), 303(g), and 303(r), this Notice of Proposed Rule Making
          Is Adopted.

        15. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Notice of Proposed Rule Making, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

        16. Pursuant to sections 4(i), 302, and 303(e), of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 302, and 303(e), and § 1.3 of the Commission's rules, 47 CFR 1.3, the Request for Waiver filed by Trex Enterprises Corporation on November 3, 2010, Is Granted In Part and Denied In Part to the extent set forth above. This action is effective upon release of the Order.

          List of Subjects in 47 CFR Part 90

        Communications equipment, Private land mobile, Radio.

          Federal Communications Commission.
          Marlene H. Dortch,
          Secretary.

        For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 90 as follows:

          PART 90—PRIVATE LAND MOBILE RADIO SERVICES
          1. The authority citation for part 90 continues to read as follows:

            Authority:
            Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).

          2. Section 90.103 is amended by revising the table in paragraph (b) by inserting a new entry at the end of the table and by adding paragraph (c)(30) to read as follows:

            § 90.103
            Radiolocation Service.

            (b) * * *

              Radiolocation Service Frequency Table

                Frequency or band
                Class of stations
                Limitations

                *         *         *         *         *         *         *

                78,000-81,000
                do
                30

             (c) * * *
            (30) Eligibility is restricted to airport authorities, or entities approved by the Federal Aviation Administration. Use is limited to foreign object debris detection.

      [FR Doc. 2012-351 Filed 1-10-12; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AI26
        Endangered and Threatened Wildlife and Plants; Critical Habitat Designation for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; notice of public hearing.

          SUMMARY:
          We, the Fish and Wildlife Service (Service), provide notice that we are holding three public hearings to take oral comments regarding the proposed rule to designate critical habitat for 4 crustaceans and 11 plants endemic to vernal pools in California and southern Oregon.

          DATES:
          We will hold public hearings and a public informational meeting at the following dates and times:

        October 22, 2002:

        San Luis Obispo, CA
        First public hearing: 1 p.m. until 3 p.m.; registration begins at 12:30 p.m. Second public hearing: 6 p.m. until 8 p.m.; registration begins at 5:30 p.m. October 24, 2002:
        Sacramento, CA
        First public hearing: 1 p.m. until 3 p.m.; registration begins at 12:30 p.m.
        Second public hearing: 6 p.m. until 8 p.m.; registration begins at 5:30 p.m.
        Medford, OR
        Public informational meeting: 1:30 p.m. until 3:30 p.m.
        Public hearing: 6 p.m. until 8 p.m.; registration begins at 5:30 p.m.

        Written comments on the proposed rule (67 FR 59884) must still be received by the date published in the proposed rule.

          ADDRESSES:
          The public hearings and public informational meeting will be held at the following locations:

        San Louis Obispo, CA: Embassy Suites, 333 Madonna Road.
        Sacramento, CA: Radisson Hotel, 500 Leisure Lane.
        Medford, OR: Red Lion Hotel, 200 N. Riverside Avenue.

        Written comments and materials concerning the proposed critical habitat designation for 4 vernal pool crustaceans and 11 vernal pool plants in California and Southern Oregon (67 FR 59884) should be sent to Wayne S. White, Field Supervisor, Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way Room W-2605, Sacramento, CA 95825. Written comments may also be sent by facsimile to 916/414-6713 or through the internet to fwl_vernalpool@fws.gov. You may also hand-deliver written comments to our Sacramento Fish and Wildlife Office, at the above address, or at any of the public hearings mentioned above.

        Comments and materials received, as well as supporting documentation used in the preparation of the proposed critical habitat designation rule, will be available for public inspection, by appointment, during normal business hours, at the above address. You may obtain copies of the proposed rule from the above address, by calling 916/414-6600, or from our Web site at http://sacramento.fws.gov.

          FOR FURTHER INFORMATION CONTACT:

          Arnold Roessler or Susan Moore at the above address (telephone 916/414-6600, facsimile 916/414-6713 or visit our Web site at http://sacramento.fws.gov/). Information regarding this proposal is available in alternative formats upon request.

        SUPPLEMENTARY INFORMATION:

        Background
        On September 24, 2002, we published a proposed rule to designate critical habitat, pursuant to the Endangered Species Act of 1973, as amended (Act) for 4 vernal pool crustaceans and 11 vernal pool plants (67 FR 59884). The purpose of the public hearings announced here is to take oral comments on the proposed critical habitat designation.
        Critical habitat consists of specific areas on which are found physical or biological characteristics essential to the conservation of a threatened or endangered species. The designation of critical habitat does not establish a preserve or regulate purely private uses of land. However, the Act does require Federal agencies to avoid taking actions that are likely to result in the destruction or adverse modification of critical habitat and to consult with us regarding how to best to avoid such destruction or adverse modification. Critical habitat designations also inform the public regarding areas of special importance for the conservation of the threatened or endangered species involved.

        The four vernal pool crustaceans involved in this critical habitat designation are the Conservancy fairy shrimp (Branchinecta conservatio), longhorn fairy shrimp (Branchinecta longiantenna), vernal pool fairy shrimp (Branchinecta lynchi) and vernal pool tadpole shrimp (Lepidurus packardi). The eleven vernal pool plant species are Butte County meadowfoam (Limnanthes floccosa ssp. californica), Contra Costa goldfields (Lasthenia conjugens), Hoover's spurge (Chamaesyce hooveri), succulent (or fleshy) owl's-clover (Castilleja campestris ssp. succulenta), Colusa grass (Neostapfia colusana), Greene's tuctoria (Tuctoria greenei), hairy Orcutt grass (Orcuttia pilosa), Sacramento Orcutt grass (Orcuttia viscida), San Joaquin Valley Orcutt grass (Orcuttia inaequalis), slender Orcutt grass (Orcuttia tenuis), and Solano grass (Tuctoria mucronata). We are proposing a total of 128 units of critical habitat for these 15 species, totaling approximately 672,920 hectares (ha) (1,662,762 acres (ac)) in 36 counties in California and one county in Oregon.
        All the species listed above live in vernal pools (shallow depressions that hold water seasonally), swales (shallow drainages that carry water seasonally), and ephemeral freshwater habitats. None are known to occur in riverine waters, marine waters, or other permanent bodies of water. The vernal pool habitats of these species have a discontinuous distribution west of the Sierra Nevada that extends from southern Oregon through California into northern Baja California, Mexico. The species have all adapted to the generally mild climate and seasonal periods of inundation and drying which help make the vernal pool ecosystems of California and southern Oregon unique.
        Public Comments Solicited
        We solicit additional information and comments that may assist us in making a final decision on the proposed rule to designate critical habitat for 4 vernal pool crustaceans and 11 vernal pool plants. We intend our final critical habitat designation to identify as accurately and effectively as possible those areas possessing characteristics essential to the conservation of the species. We will also take into account any economic or other impacts which this designation might cause. Therefore, we request comments and additional information from the general public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. Comments are particularly sought concerning:
        (1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether areas under consideration require additional special management;
        (2) Specific information on the amount and distribution of any of the vernal pool crustaceans or vernal pool plants and what habitat is essential to the conservation of these species and why;
        (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat; in particular, in Oregon, we seek information related to potential of selected parcels to contribute to the species recovery, considering their zoning, adjacent land uses, watershed integrity, and potential for edge effects (related to shape of parcel);
        (4) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families;

        (5) Economic and other values associated with designating critical habitat for vernal pool crustaceans and vernal pool plants such as those derived from non-consumptive uses (e.g., hiking, camping, bird-watching, enhanced watershed protection, improved air quality, increased soil retention, “existence values,” and reductions in administrative costs);
        (6) Whether any areas should be excluded pursuant to section 4(b)(2); and
        (7) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.

        Anyone wishing to make an oral comment or statement for the record at any of the hearings listed above is encouraged (but not required) to also provide a written copy of the statement and to present it to us at the hearing. Oral comments will be transcribed. In the event there is a large attendance, the time allotted for oral statements may be limited. Oral and written statements receive equal consideration. There are no limits to the length of written comments presented at the hearing or mailed, faxed or emailed to us. Legal notices announcing the date, time, and location of the public hearings will be published in newspapers concurrently with this Federal Register notice. We will hold public informational meetings in various locations in California and will publicize the dates and locations in the local news media.
        Persons needing reasonable accommodations in order to attend and participate in the public hearing should contact Patti Carroll at 503/231-2080 as soon as possible. In order to allow sufficient time to process requests, please call no later than one week before the hearing date.
        Previously submitted written comments on this proposal need not be resubmitted. Please submit electronic mail comments as an ASCII file and avoid the use of special characters and any form of encryption. Please also include “Attn: [RIN 1018-AI26]” and your name and return address in your electronic message. If you do not receive a confirmation from our system that we have received your e-mail message, contact us directly by calling our Sacramento Fish and Wildlife Office at telephone number 916/414-6600. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the Sacramento Fish and Wildlife Office, at the above address.
        Author
        The primary author of this notice is Glen Tarr (see ADDRESSES section).

          Authority:

          The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

          Dated: October 1, 2002.
          Paul Hoffman,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 02-25720 Filed 10-9-02; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 635
        RIN 0648-BD22
        Atlantic Highly Migratory Species; Atlantic Shark Management Measures

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

          ACTION:
          Notice of Intent (NOI) to prepare an Environmental Impact Statement (EIS); request for comments.

          SUMMARY:
          On October 7, 2011, we published an NOI to prepare an EIS for Amendment 5 to the 2006 Consolidated Highly Migratory Species (HMS) Fishery Management Plan (FMP) to address the results of recent shark stock assessments for several shark species, including dusky sharks. In that notice, based on the 2010/2011 Southeast Data, Assessment and Review (SEDAR) assessments for sandbar, dusky, and blacknose sharks, we declared that the status of the dusky shark stock is still overfished and still experiencing overfishing (i.e., their stock status has not changed). On November 26, 2012, we published a proposed rule for draft Amendment 5 to the 2006 Consolidated HMS FMP. After fully considering the public comments received on draft Amendment 5 and its proposed rule, we decided that further analysis and consideration of management approaches, data sources, and available information are needed for dusky sharks beyond those considered in the proposed rule. Thus, we announce our intent to prepare a separate EIS under the National Environmental Policy Act (NEPA) to conduct further analyses and explore management options specific to rebuilding and ending overfishing of dusky sharks. This EIS would assess the potential effects on the human environment of action to rebuild and end overfishing of the dusky shark stock, consistent with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Through the rulemaking process, we would amend the 2006 Consolidated HMS FMP and examine management alternatives available to rebuild dusky sharks and end overfishing, as necessary.

          DATES:
          Comments must be received no later than 5 p.m., local time, on May 24, 2013.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2013-0070, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=[NOAA-NMFS-2013-0070], click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Highly Migratory Species Management Division, NMFS Office of Sustainable Fisheries, 1315 East-West Highway, Silver Spring, MD 20910. Please mark on the outside of the envelope “Comments on Amendment 5b NOI to the HMS FMP.”
          • Fax: 301-713-1917; Attn: Peter Cooper.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and generally will be posted 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 will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

          For a copy of the stock assessments,please contact Peter Cooper (301) 427-8503 or download them online at http://www.nmfs.noaa.gov/sfa/hms/ or http://www.sefsc.noaa.gov/sedar/Index.jsp.

          FOR FURTHER INFORMATION CONTACT:
          Karyl Brewster-Geisz or Peter Cooper at (301) 427-8503.

        SUPPLEMENTARY INFORMATION:

        The Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. Management of these species is described in the 2006 Consolidated HMS FMP and its amendments, which are implemented by regulations at 50 CFR part 635. Copies of the 2006 Consolidated HMS FMP and amendments are available from NMFS on request (see FOR FURTHER INFORMATION CONTACT).
        On October 7, 2011 (76 FR 62331), we published an NOI that announced the stock status determinations for various sharks, including dusky sharks. In that notice, based on the 2010/2011 SEDAR assessments for sandbar, dusky, and blacknose sharks, we declared that the status of the dusky shark stock is still overfished and still experiencing overfishing (i.e., their stock status has not changed). In the notice, we also announced our intent to prepare an EIS to assess the potential effects on the human environment of action to rebuild and end overfishing on various species of sharks, including dusky sharks, consistent with the Magnuson-Stevens Act.
        On November 26, 2012, we published a proposed rule (77 FR 70552) for draft Amendment 5 to the 2006 Consolidated HMS FMP based on several shark stock assessments that were completed from 2009 to 2012. As described in the proposed rule, we proposed measures that were designed to reduce fishing mortality and effort in order to rebuild various overfished Atlantic shark species, including dusky sharks, while ensuring that a limited sustainable shark fishery for certain species could be maintained consistent with our legal obligations and the 2006 Consolidated HMS FMP. The proposed measures included changing commercial quotas and species groups, establishing several new time/area closures, changing an existing time/area closure, increasing the recreational minimum size for sharks, and establishing recreational reporting for certain species of sharks.

        The comment period for the proposed rule closed on February 12, 2013. After reviewing all of the comments received, we decided to conduct further analyses on measures pertaining to dusky sharks in an FMP amendment, EIS, and proposed rule separate from but related to the FMP amendment, EIS, and rule for the other species of sharks. Thus, we announce our intent to prepare a separate EIS under NEPA to conduct further analyses and explore management options specific to rebuilding and ending overfishing of dusky sharks. This EIS would assess the potential effects on the human environment of the process of rebuilding and ending overfishing of the dusky shark stock, consistent with the Magnuson-Stevens Act. Through the rulemaking process, we would amend the 2006 Consolidated HMS FMP and examine management alternatives available to rebuild dusky sharks and end overfishing, as necessary. Moving forward, the ongoing FMP amendment for the other species of sharks included in draft Amendment 5, specifically scalloped hammerhead, sandbar, blacknose, and Gulf of Mexico blacktip sharks, will be called “Amendment 5a.” The FMP amendment for dusky sharks will be called “Amendment 5b.”
        In Amendment 5b, we will explore a variety of alternatives to rebuild dusky sharks. We will likely continue to consider alternatives similar to those considered in draft Amendment 5 while also considering the comments received on draft Amendment 5, and additional alternatives as appropriate. Some of the comments on the proposed rulemaking for Amendment 5 requested that we consider approaches to dusky shark fishery management significantly different from those we analyzed in the proposed rulemaking for Amendment 5. For example, draft Amendment 5 proposed to increase the recreational size limit for all sharks based on the dusky shark age at maturity and many recreational fishermen asked for specific exemptions to, or different approaches to allow landings of other sharks such as blacktip sharks or “blue” sharks such as shortfin mako or thresher sharks. As another example, pelagic longline fishermen asked us to consider closing areas based on depth or other characteristics that may better define dusky shark habitats or to implement gear restrictions, such as limiting gangions to 300-pound test monofilament or requiring smaller circle hooks that might reduce interactions or allow any caught dusky sharks to escape with minimal harm.
        In addition, we received numerous comments on the proposed dusky shark measures regarding the data sources used and the analyses of these data. Many commenters stated that they believed that economic analyses of the time/area closures underestimated the potential impacts either because the analyses did not fully consider regional impacts and the effects on vessels that could not move to other fishing areas or because the analyses did not fully consider that the proposed closures would effectively close a much larger area due to Gulf Stream currents causing longlines to drift into the proposed closed areas. Commenters asked for new summaries of the data used and additional data analyses, including incorporating more observer data into the analysis of the alternatives. We plan to conduct additional analyses in the new EIS for Amendment 5b.
        Addressing dusky shark management measures in a subsequent and separate rulemaking via Amendment 5b will allow us to fully consider and address public comments on those measures, to consider other measures beyond the scope of those proposed and analyzed in draft Amendment 5, and to conduct additional analyses based on the best scientific information available. Comments received on the dusky measures of the draft Amendment 5 will be considered during the development of the new rule and Amendment 5b.

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

          Dated: April 18, 2013.
          Kara Meckley,
          Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2013-09671 Filed 4-23-13; 8:45 am]
      BILLING CODE 3510-22-P