        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 223 and 224
        [Docket No. 130626570-3570-01]
        RIN 0648-XC742
        Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List Alabama Shad as Threatened or Endangered Under the Endangered Species Act

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

          ACTION:
          Notice of 90-day petition finding, request for information.

          SUMMARY:

          We (NMFS) announce a 90-day finding on a petition to list Alabama shad (Alosa alabamae) as threatened or endangered under the Endangered Species Act (ESA) and to designate critical habitat concurrent with the listing. We find that the information in our files presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We will conduct a status review of the species to determine if the petitioned action is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information regarding this species (see below).

          DATES:
          Information and comments on the subject action must be received by November 18, 2013.

          ADDRESSES:
          You may submit information, identified by the code NOAA-NMFS_2013-0142, addressed to: Kelly Shotts, Ecologist, by any of the following methods:
          • Electronic Submissions: Submit all electronic information via the Federal eRulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0142, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

          • Facsimile (fax): 727-824-5309.
          • Mail: NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701.
          • Hand delivery: You may hand deliver written information to our office during normal business hours at the street address given above.

            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 part of the public record and may be posted to http://www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. We 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 FURTHER INFORMATION CONTACT:
          Kelly Shotts, NMFS, Southeast Region, 727-824-5312; or Marta Nammack, NMFS, Office of Protected Resources, 301-427-8469.

        SUPPLEMENTARY INFORMATION:

        Background
        In 1997, we added Alabama shad to our Candidate Species List (62 FR 37562; July 14, 1997). At that time, a candidate species was defined as any species being considered by the Secretary of Commerce (Secretary) for listing as an endangered or a threatened species, but not yet the subject of a proposed rule (49 FR 38900; October 1, 1984). In 2004, we created the Species of Concern list (69 FR 19975; April 15, 2004) to encompass species for which we have some concerns regarding their status and threats, but for which insufficient information is available to indicate a need to list the species under the ESA. Twenty-five candidate species, including the Alabama shad, were transferred to the Species of Concern list at that time because they were not being considered for ESA listing and were better suited for Species of Concern status due to some concerns and uncertainty regarding their biological status and threats. The Species of Concern status does not carry any procedural or substantive protections under the ESA.

        On April 20, 2010, the Center for Biological Diversity (CBD), Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and the West Virginia Highlands Conservancy (petitioners) submitted a petition to the Secretaries of Interior and Commerce, as well as to the Regional Director of the Southeast Region of the U.S. Fish and Wildlife Service (USFWS), to list 404 aquatic, riparian, and wetland species from the southeastern United States as threatened or endangered under the ESA. The petitioners also requested that critical habitat be designated for all petitioned species. We notified the USFWS' Southeast Region by letter dated May 3, 2010, that the Alabama shad, one of the 404 petitioned species, would fall under NMFS' jurisdiction based on the August 1974 Memorandum of Understanding regarding jurisdictional responsibilities and listing procedures between the two agencies. We proposed to USFWS that NMFS evaluate the petition, for the Alabama shad only, for the purpose of the 90-day finding and any required subsequent listing action. On May 14, 2010, we sent the petitioners confirmation we would be evaluating the petition for Alabama shad. On February 17, 2011, we published a negative 90-day finding in the Federal Register (76 FR 9320) stating that the petition did not present substantial scientific or commercial information indicating that the requested listing of Alabama shad may be warranted.
        On April 28, 2011, in response to the negative 90-day finding, CBD filed a notice of intent to sue DOC and NMFS for alleged violations of the ESA in making its finding. CBD filed the lawsuit in the U.S. District Court for the District of Columbia on January 18, 2012. On June 21, 2013, CBD and DOC/NMFS settled the lawsuit, and we agreed to reevaluate the original listing petition and publish a new 90-day finding. Here we reevaluate the information provided in the 2010 petition, as well as information in our files, including some additional information since the 90-day finding published on February 17, 2011.
        ESA Statutory and Regulatory Provisions and Evaluation Framework

        Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531 et seq.), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find that substantial scientific or commercial information indicates that the petitioned action may be warranted (a “positive 90-day finding”), we are required to promptly commence a review of the status of the species concerned during which we will conduct a comprehensive review of the best available scientific and commercial information. In such cases, we are to conclude the review with a finding as to whether, in fact, the petitioned action is warranted within 12 months of receipt of the petition. Because the finding at the 12-month stage is based on a more thorough review of the available information, as compared to the narrow scope of review at the 90-day stage, a “may be warranted” finding does not prejudge the outcome of the status review.
        Under the ESA, a listing determination may address a “species,” which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). A joint NOAA and USFWS policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (“DPS Policy”; 61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively; 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered because of any one or a combination of the five factors found in section 4(a)(1): (A) The 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) any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
        ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In evaluating whether substantial information is contained in a petition, the Secretary must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and, (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).
        We evaluate the petitioner's request based upon the information in the petition including its references, and the information readily available in our files. We will accept the petitioner's sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates that the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude it supports the petitioner's assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90-day finding, if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue.

        To make a 90-day finding on a petition to list a species, we evaluate whether the petition or information readily available in our files presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species at issue faces extinction risk that is cause for concern; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species at issue (e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate the potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1). We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition.
        Court decisions clarify the appropriate scope and limitations of the Services' review of petitions at the 90-day finding stage, in making a determination whether a petitioned action “may be” warranted. As a general matter, these decisions hold that a petition need not establish a “strong likelihood” or a “high probability” that a species is either threatened or endangered to support a positive 90-day finding.
        Information available on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.

        Many petitions identify risk classifications made by other organizations or agencies, such as the International Union on the Conservation of Nature (IUCN), the American Fisheries Society (AFS), or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but the classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes, and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” (http://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a petition cites such classifications, we will evaluate the source information that the classification is based upon, in light of the standards on extinction risk and impacts or threats discussed above.
        Alabama Shad Species Description
        The Alabama shad (Alosa alabamae) is a euryhaline (adapted to a wide range of salinities), anadromous species that spawns in medium to large flowing rivers from the Mississippi River drainage to the Suwannee River, Florida. Alabama shad belong to the family Clupeidae and are closely related to, as well as similar in appearance and life history to, the American shad (A. sapidissima). They also resemble the skipjack herring (A. chrysochloris), which occurs in the same areas as Alabama shad. Defining characteristics of the Alabama shad are an upper jaw with a distinct median notch, and the number of gill rakers (41 to 48) on the lower limb of the anterior gill arch. Alabama shad differ morphologically from other Alosa species that occur in the same area by a lower jaw that does not protrude beyond the upper jaw, black spots along the length of the lower jaw, and a dorsal fin that lacks an elongated filament.

        Alabama shad are a schooling fish; many individuals swim at the same speed and in the same direction. Research in the Pascagoula River system indicates that Alabama shad move between different riverine habitats seasonally during their first year of life (age 0). In early summer (June to mid-July) small juveniles were found to use sandbar habitats, then move to open channel and steep bank habitats containing large woody debris in late summer and fall (Mickle, 2006). Within these habitat types, Alabama shad tend to select cooler water temperatures (Mickle, 2006). While little is known of the Alabama shad's thermal tolerance, alosines in general are known to be highly sensitive to thermal stress (McCauley and Binkowski, 1982; Beitinger et al., 2000). Juvenile growth rate is about 1.2 inches (30 millimeters [mm]) per month from July to September and then 0.4 inches (10 mm) per month until December. Juveniles remain in fresh water for the first 6 to 8 months of their lives, feeding on small fishes and invertebrates (Ross, 2001) and move into the marine environment between September and December (Mickle et al., 2010) when they are about 2 to 5 inches total length (TL; 50 to 130 mm). There are almost no data describing the marine life stage of Alabama shad (Mettee and O'Neil, 2003; Mickle et al., 2010).
        Alabama shad move back into freshwater to spawn. Males appear to enter the river at earlier dates and lower water temperatures than females (Laurence and Yerger, 1966). Arrival at upstream spawning sites also varies by age (Mettee and O'Neil, 2003). Adults broadcast spawn in the spring or early summer over coarse sand and gravel sediments with moderate currents when river temperatures are between 66-72°F (19-22°C; Mettee and O'Neil, 2003). Adults are thought to feed on small fish, though they likely do not feed during the spawning run (Laurence and Yerger, 1967). Females become larger than males, reaching a little over 18 inches TL (467 mm), while males reach 16.5 inches TL (418 mm; Mettee and O'Neil, 2003). Age-2 and -3 adults are the most prevalent age class of spawning adults (Laurence and Yerger, 1967; Mettee and O'Neil, 2003; Ingram, 2007). Repeat spawning is common, but the percentage of returning spawners is highly variable among years. Annual fecundity ranges from approximately 16,000 to 360,000 eggs per female (Mettee and O'Neil, 2003; Ingram, 2007). Some natal homing tendency is evidenced by genetic differences among drainage basins (Bowen, 2005). The Alabama shad is relatively short lived, up to 6 years (Mettee and O'Neil, 2003).
        Analysis of the Petition

        First, we evaluated whether the petition presented the information indicated in 50 CFR 424.14(b)(2). The petition clearly indicates the administrative measure recommended and gives the scientific and common names of the taxonomically valid species involved. It contains a narrative justification for the recommended measure, describing the distribution of the species, as well as the threats faced by the species, and it is accompanied by supporting documentation in the form of bibliographic references. The petition presented very limited information to support the petitioned action. However, we have additional information in our files that was not provided in the petition to list the Alabama shad, including the abundance, age structure, and genetic make-up of the Alabama shad in the Apalachicola River, which we discuss in more detail below. We also have additional information clarifying the current range of the species. As stated in our prior 90-day finding (February 17, 2011), we periodically review our Species of Concern list to evaluate whether species should be retained or removed from the list or proposed for listing under the ESA, and we announced our intent to release a biological review of the species. We considered information in the biological review, publicly released in 2011 (Smith et al., 2011), to make this 90-day finding in response to the petition. Based on the information acquired in our files since publication of the prior finding, primarily the biological review by Smith et al. (2011), we find that substantial scientific or commercial information exists indicating that the petitioned action may be warranted.
        The petition states that Alabama shad have likely experienced both dramatic long-term population declines and short-term population declines of as much as 30 percent, and attributes these trends to habitat loss and degradation caused by impoundments, pollution, dredging, and other factors. The petition also states that commercial fishing in the Ohio River was a threat historically. While commercial fishing is no longer a threat, over-exploitation for recreational, scientific, or educational purposes, including intentional eradication or indirect impacts of fishing, were cited by the petition as possible threats to the species. The petition states that it is unknown whether Alabama shad are “appropriately protected,” noting the lack of fish passage at locks and dams as a primary management concern, and cites lack of regulatory protections associated with classifications assigned to Alabama shad by IUCN, NatureServe, AFS, the NMFS Species of Concern Program, and the states of Mississippi, Alabama, and Georgia. Other factors, such as pollution, sedimentation, and drought, are cited in the petition as contributing to declines in shad populations. Thus, the petition states that four of the five causal factors in section 4(a)(1) of the ESA are adversely affecting the continued existence of Alabama shad: habitat modification and degradation due to dams, dredging, and pollution; overutilization in historical commercial fisheries and continued indirect effects from fishing and eradication programs; inadequacy of existing regulatory mechanisms associated with current status classifications; and other natural or manmade factors, such as pollution, sedimentation, and drought.
        Evaluation of Information on Species Status

        The petition states that Alabama shad has undergone a major geographic contraction of its historical range that originally spanned the Gulf Coast from the Suwannee River, Florida, to the Mississippi River, and westward in the Ouachita River system (Arkansas/Louisiana) to eastern Oklahoma. The petition states that the species' current range includes the Apalachicola River system below Jim Woodruff Lock and Dam (JWLD); the Pascagoula River drainage in Mississippi; the Conecuh, Choctawhatchee, and Mobile Rivers in Alabama; the Ouachita River, Arkansas; and, the Missouri, Gasconade, Osage, and Meramec Rivers, Missouri. Information in our files indicates that the current range of Alabama shad is larger than that described in the petition. In addition to the rivers listed in the petition, the current range of Alabama shad includes the Apalachicola, Chattahoochee, Flint (ACF) River system above JWLD in Florida/Georgia/Alabama, the Pea River in Alabama, the Pearl River in Louisiana/Mississippi, and the Little Missouri River in Arkansas (Smith et al., 2011).

        The petition describes Alabama shad populations as “small” and states that the species is considered “very rare” in large portions of its historical range. The petition cites a NatureServe (2008) estimate that 6 to 20 populations of Alabama shad remain, but neither the petition nor NatureServe (2008) specify the location of those populations, the size of the populations, or the number, locations, and size of historical Alabama shad populations for comparison. The petition includes an observation by Mettee et al. (1996) that “there are only two known remaining runs of Alabama shad in the Mississippi River System and other spawning runs occur in the Florida Panhandle and southern Alabama.” The petition also presents conclusions by Mettee and O'Neil (2003) that spawning populations of shad are “relatively small.”

        After submission of the petition and publication of the prior finding, Smith et al. (2011) conducted an extensive search of publications, technical reports, and theses, and surveyed universities, state and Federal facilities, and non-profit organizations throughout the Alabama shad's historical range for any recent (since 2000) recorded captures. In some systems (e.g., Choctawhatchee River, Alabama; Apalachicola/Flint River System, Florida/Georgia; and Pascagoula/Leaf River system, Mississippi), hundreds to thousands of Alabama shad have been documented since 2000. Records for some systems (e.g., Conecuh River and Mobile Bay, Alabama; Suwannee and Withlacoochee Rivers, Florida; Thibodaux Weir, Louisiana; Chickasawhay River, Mississippi; and, Gasconade River, Missouri) documented less than 25 Alabama shad since 2000. In many systems (e.g., Pea River, Alabama/Florida; Chattahoochee River, Georgia; and, Lake Pontchartrain, Louisiana), Alabama shad have been recorded in those systems since 2000, but the number of Alabama shad observed or captured was not provided in the records. No records of Alabama shad captures or observations since 2000 were found for many systems historically occupied by Alabama shad. It is not clear from the available information whether targeted studies were performed and shad were not present, or if the lack of Alabama shad data is due to the absence of studies or record-keeping in regards to the species. The NatureServe (2008) classification and literature cited by the petition, as well as the information in our files, do not present estimates for historical or current abundance of Alabama shad for comparison and evaluation. However, the low numbers of Alabama shad (less than 25) documented in some rivers and the lack of records of the species in some historically occupied rivers since 2000 (Smith et al. 2011) indicate that there may be cause for concern over declines in some systems currently and historically occupied by Alabama shad.
        The petition cites various status classifications made by the IUCN, NatureServe, AFS, and our Species of Concern program to support its assertion that Alabama shad should be listed as threatened or endangered under the ESA. We do not give any particular weight to classifications established by other scientific and conservation organizations, which may or may not be based on criteria that directly correspond to the listing standards of the ESA. However, we have reviewed and evaluated the underlying information used to develop the various classifications given to Alabama shad by entities listed in the petition.

        The petition cites the IUCN's 2010 classification of Alabama shad as “endangered.” We found the IUCN updated its classification of Alabama shad in 2012, relying on a more current assessment of the species (citing NatureServe as the “assessor”), and reclassified the status from “endangered” to “data deficient.” The IUCN provided justification for their data deficient classification, stating there have been declines in the populations and geographic range of the species but “there has been no quantification of the rate of range or population decline” of the Alabama shad. NatureServe (2008) assigned Alabama shad a rank of “G3” or “vulnerable” given the species' limited distribution in Gulf of Mexico tributaries, reduction in population due to the effects of dams in blocking spawning migration, and degradation of habitat by siltation and pollutants. NatureServe (2008) described the Alabama shad's short-term trend as “relatively stable to decline of 30 percent” and the long-term trend as “relatively stable to decline of 70 percent”. The petition also included the 2008 AFS determination that Alabama shad were “threatened” (in imminent danger of becoming endangered throughout all or a significant portion of its range) based on (1) present or threatened destruction, modification, or reduction of habitat or range, and (2) over-exploitation for commercial, recreational, scientific, or educational purposes. The AFS designation did not provide any information on historical or current numbers, populations, or rates of decline, and also relies on NatureServe's (2008) ranking of “G3/vulnerable” (discussed in the previous section of this finding).
        The petitioner also cited our classification of the Alabama shad as a NMFS species of concern as reason to support an ESA listing. As previously noted, Alabama shad became a NMFS Species of Concern in 2004 when it was reclassified from a Candidate Species. We considered the entirety of the scientific and commercial information available to us on the apparent population decline of Alabama shad and the threats that contributed to the apparent decline when we classified Alabama shad as a Species of Concern in 2004. By definition, a Species of Concern is one for which we have some concerns regarding status and threats, but for which insufficient information was available at the time of classification to indicate a need to list the species under the ESA. Our own Species of Concern designation does not include a specific analysis of extinction risk for Alabama shad, or an analysis of population size or trends, or other information directly addressing whether the species faces extinction risk that is cause for concern and may warrant listing.
        In addition to these classifications by national and international organizations, the petition provided information that Alabama shad is considered by the states of Mississippi, Alabama, and Georgia to be of high conservation concern. Mississippi, Alabama, and Georgia did not provide population abundance estimates, population trends, or additional information supporting their classifications.

        Information currently available in our files provides information on the abundance and increase of the species in one river system, as well as insight into the species' resilience. Abundance of Alabama shad varied greatly between 2005-2007 (~2,000-26,000) as described by Ely et al. (2008) and was lower than expected based on a comparison with American shad in the Savannah and Altamaha Rivers (100,000-200,000). Ingram (2007) compared growth and age class structure of Alabama shad in the Apalachicola River in 2005-2006 with results from studies conducted in 1967 and 1972 and indicated that the current population structure, with fewer age classes and an earlier age at maturity, was indicative of a declining population. Ingram (2007) also noted that when a population includes only a few year classes, abundance can rebound quickly when environmental conditions change (Rutherford et al., 1992). Fluctuations in abundance of American shad were noted by Ely et al. (2008) and are well documented by others (Hattala et al., 1996; Atlantic States Marine Fisheries Commission, 1998; Moring, 2005). Ely et al. (2008) concluded that commonly observed variations in year-class strength suggest Alabama shad are resilient and capable of quickly increasing in number under favorable conditions.
        Evaluation of Information on Threats to the Species
        The bulk of the information in the petition is an overview of many of the past and ongoing categories of threats that are believed to have contributed collectively to the decline of 404 aquatic, riparian, and wetland species in the Southeast. The majority of the information on threats in the petition is either general for all 404 species with no clear linkage to Alabama shad or is specifically linked to other species or to habitats not occupied by Alabama shad. The petition states that four of the five causal factors in section 4(a)(1) of the ESA are adversely affecting the continued existence of Alabama shad: (A) Present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for the commercial, recreational, scientific, or educational purposes; (C) inadequacy of regulatory mechanisms; and, (D) other natural or manmade factors.

        The petition states that Alabama shad have been cut off from many historical spawning areas by dams and locks, citing Robison and Buchanan (1988), Etnier (1997), and Mirarchi et al. (2004). Dams can block access to upriver spawning sites for anadromous species, as well as alter downstream flow regimes. Dams are present on some rivers that are occupied by Alabama shad. The petition did not provide substantial information quantifying the extent to which shad populations have been reduced by the presence of dams, and we have no such information in our files. However, there is some information in our files suggesting that dams may be resulting in reduced populations in some rivers.

        Beginning in 2005, a cooperative study supported by multiple local, academic, state, and Federal conservation partners, including NMFS, started tracking movements of Alabama shad and other fish species in the Apalachicola River (USFWS, 2008; Ely et al., 2008; TNC, 2010). The study also evaluated the feasibility of moving fish upriver of JWLD, located at the confluence of the Chattahoochee and Flint Rivers, which presents the first major obstacle on the Apalachicola River to the upstream migration of Alabama shad to their historical spawning grounds. The results of this collaborative study showed that the existing lock at JWLD could be operated to allow fish to move upriver through the lock where they could access spawning habitat.

        Based on these results, the U.S. Army Corps of Engineers (USACE) began “conservation locking” (operating the lock at JWLD to provide Alabama shad access to upstream habitat) in 2008. The locks are operated twice a day to correspond with the natural movement patterns of migrating fish during spawning seasons (February through May) each year. Since conservation locking began, Alabama shad have been found to pass upstream of the lock with 45 percent efficiency (Young, 2010) and, as a result, can access over 150 miles (241.4 km) of historical habitat and spawning areas in the ACF River System for the first time in more than 50 years (TNC, 2010). Young (2010) estimated the number of Alabama shad in the ACF River System at 98,469 in 2010, almost four times larger than the previous high estimate of 25,935 in 2005 (Ely et al., 2008). The number of Alabama shad in the Apalachicola River in 2011 was estimated at 26,193 and was lower than the 2010 value but slightly higher than the maximum abundance in the 2005-2009 period (Young, 2011). The major difference between the 2010 and 2011 Alabama shad spawning runs was a lack of age-1 males in 2011 (Young, 2011). Notably, the 2011 run was dominated by older, larger adult females in excellent condition, a potential indicator of strong year classes in the future (Young, 2011). Sammons and Young (2012) provided the most recent report from the Apalachicola River, estimating the number of Alabama shad at 122,578 in 2012 (the largest since 2005). This spawning run was composed of many males presumed to be from the 2010 year class, as well as numerous older, larger adults of both sexes (presumably recruits from 2009). Sammons and Young (2012) noted that a year of higher than average flows in 2009 may have contributed to spawning and recruitment successes in 2010 and 2012. Sammons and Young (2012) also noted that alosine population sizes commonly fluctuate widely.
        Smith et al. (2011) conducted a population viability analysis (PVA) of Alabama shad in the ACF River System. A PVA is a modeling tool that estimates the future size and risk of extinction for populations of organisms. Smith et al. (2011) estimated returning female abundance in 20 years relative to current numbers and predicted that the ACF population is increasing and under present conditions could reach carrying capacity in about 40 years. The PVA indicated significant declines in abundance only in modeled scenarios with the highest levels and frequencies of mortality (Smith et al., 2011).
        We provided funds to USFWS to complete a genetic study on Alabama shad in the Apalachicola River, Florida (Moyer, 2012). The study assessed genetic parameters that may influence its extinction risk. Moyer (2012) determined that there is no observable genetic structure in Alabama shad in the Apalachicola River and that the species exhibits low amounts of genetic diversity.

        The conservation locking program in the ACF River System and PVA on the ACF River Alabama shad demonstrated that the species is resilient and is responding positively to increased spawning habitat access. However, this may not be the case in other river systems historically occupied by Alabama shad. The petition relates the construction of dams built on the lower Tombigbee and Alabama Rivers in the 1960s to “steep declines in shad populations” in the Mobile River Basin (Barkuloo et al., 1993; Mettee and O'Neil, 2003; NatureServe, 2008). While there is no information in the petition or our files quantifying declines in Alabama shad populations due to dams, Smith et al. (2011) found no records of Alabama shad in the Tombigbee and Alabama Rivers (the examples presented in the petition) since 2000. Therefore, the information presented in the petition and in our files indicates that Alabama shad populations in some rivers may have declined and causes us to be concerned that habitat modification may pose a significant risk to Alabama shad.
        In addition to the information on the present and threatened destruction, modification, or curtailment of habitat or range, the petitioner provided information regarding the inadequacy of regulatory mechanisms and other natural or manmade factors that may cause a significant threat to the Alabama shad. However, because we have determined that the information available on the present and threatened destruction, modification, or curtailment of habitat or range may be a cause for concern for Alabama shad, we do not find a need to conduct a detailed analysis of the other submitted information here.
        Petition Finding
        We have determined after reviewing information readily available in our files that there is substantial information indicating that the petitioned action may be warranted. Under section 4(b)(3)(A) of the ESA, an affirmative 90-day finding requires that we promptly commence a status review of the petitioned species (16 U.S.C. 1533 (b)(3)(A)).
        Information Solicited
        To ensure that the status review is based on the best available scientific and commercial data, we are soliciting information on the status of the Alabama shad throughout its range including: (1) Historical and current distribution and abundance, including data addressing presence or absence at a riverine scale; (2) historical and current population sizes and trends; (3) biological information (life history, genetics, population connectivity, etc.); (4) landings and trade data; (5) management, regulatory, and enforcement information; (6) any current or planned activities that may adversely impact the species; and (7) ongoing or planned efforts to protect and restore the species and their habitats. We request that all information be accompanied by: (1) Supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents. Section 4(b)(1)(A) of the ESA and NMFS' implementing regulations (50 CFR 424.11(b)) require that a listing determination be based solely on the best scientific and commercial data, without consideration of possible economic or other impacts of the determination. During the 60-day public comment period we are seeking information related only to the status of the Alabama shad throughout its range.
        Peer Review

        On July 1, 1994, NMFS and the U.S. Fish and Wildlife Service published a series of policies regarding listings under the ESA, including a policy for peer review of scientific data (59 FR 34270). The intent of the peer review policy is to ensure listings are based on the best scientific and commercial data available. The Office of Management and Budget issued its Final Information Quality Bulletin for Peer Review on December 16, 2004. The Bulletin went into effect June 16, 2005, and generally requires that all “influential scientific information” and “highly influential scientific information” disseminated on or after that date be peer reviewed. Because the information used to evaluate this petition may be considered “influential scientific information,” we solicit the names of recognized experts in the field that could take part in the peer review process for this status review (see ADDRESSES). Independent peer reviewers will be selected from the academic and scientific community, tribal and other Native American groups, Federal and state agencies, the private sector, and public interest groups.
        References Cited

        A complete list of all references is available upon request from the Protected Resources Division of the NMFS Southeast Regional Office (see ADDRESSES).
        Authority

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

          Dated: September 13, 2013.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2013-22869 Filed 9-18-13; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF TRANSPORTATION
        Federal Transit Administration
        49 CFR Part 633
        [Docket No. FTA-2009-0030]
        RIN 2132-AA92
        Capital Project Management

          AGENCY:
          Federal Transit Administration (FTA), DOT.

          ACTION:
          Notice of withdrawal of proposed rulemaking.

          SUMMARY:

          The Federal Transit Administration is withdrawing its September 13, 2011, Notice of Proposed Rulemaking to revise the agency's project management oversight regulations, in light of the recent, fundamental changes to the statutes that authorize the discretionary and formula capital programs at 49 U.S.C. Chapter 53. Given the repeal of the Fixed Guideway Modernization program, the creation of the Core Capacity Improvement and State of Good Repair programs, and the streamlining of the New Starts and Small Starts project development process, FTA must re-examine its proposed definition of major capital project and its policy and procedure for risk assessment. Also, the agency must develop policy and regulatory proposals for addressing several explicit directives in the new surface transportation authorization statute, the Moving Ahead for Progress in the 21st Century Act (“MAP-21”). FTA will reinitiate a rulemaking for project management oversight in the near future. Additionally, FTA may seek to set policy on major capital projects through public notice-and-comment, and provide technical assistance through guidance.

          FOR FURTHER INFORMATION CONTACT:

          For program matters, Carlos M. Garay at (202) 366-6471 or carlos.garay@dot.gov. For legal matters, Scott A. Biehl at (202) 366-0826 or scott.biehl@dot.gov.

        SUPPLEMENTARY INFORMATION:

          The NPRM on Capital Project Management and the Dear Colleague Letters on Risk Assessment: On September 13, 2011, FTA published a Notice of Proposed Rulemaking (NPRM) to transform the current regulation for project management oversight at 49 CFR part 633 into a discrete set of managerial principles for sponsors of major capital projects. (76 FR 56363-56381). The NPRM was designed to enable FTA to more clearly identify the necessary management capacity and capability of a sponsor of a major capital project; spell out the many facets of project management that must be addressed in a project management plan; tailor the level of FTA oversight to the costs, complexities, and risks of a major capital project; set forth the means and objectives of risk assessments for major capital projects; and articulate the roles and responsibilities of FTA's project management oversight contractors.

        A critical component of the NPRM was the proposed definition of major capital project. Under the current regulation, 49 CFR 633.5, a major capital project is defined in pertinent part as any project funded with any amount of discretionary New Starts funds, or any Fixed Guideway Modernization (FGM) project, of a total cost of $100 million or more, receiving funds under the formula FGM program. In the September 2011 NPRM, FTA proposed that a major capital project be redefined as either of the following: Any New Starts or FGM project for which the sponsor sought $100 million or more under the New Starts or FGM programs, or any capital project the Federal Transit Administrator found would benefit from the FTA project management oversight program, given the size or complexity of the project, the uniqueness of the technology, the previous project management experience of the sponsor, or any other risks inherent in the project. Thus, in the NPRM, the agency suggested that the level of Federal investment in a project is a more appropriate benchmark than the total capital costs of a project, and that $100 million in Federal grant funds is an appropriate number for that purpose. Also, FTA proposed that in his or her discretion, the Administrator could designate any capital project seeking funds under the discretionary Small Starts program as a major capital project subject to the 49 CFR part 633 regulations. See generally, 76 FR 56365-56368.

        Another key element of the NPRM was the proposed rule and guidance on risk assessment. Specifically, under proposed Section 633.23, FTA would have been vested with the discretion to perform or allow a project sponsor to perform a risk assessment at a level commensurate with the size, cost, or complexity of a major capital project at any point during project development. Also, under proposed Section 633.23, FTA would have had explicit authority to require a sponsor to develop explicit plans and tools for risk and contingency mitigation, measures for additional management capacity and capability, or financial mechanisms to accommodate the unfunded risks. In an appendix to the proposed rule FTA set forth the agency's basic methodology for conducting risk assessments, at that time. See, 76 FR 56378-56380.

        Shortly after the issuance of the NPRM, on September 30, 2011, the Federal Transit Administrator and his Associate Administrators for Planning & Environment and Program Management issued Dear Colleague letters to the transit industry which announced a more streamlined process for conducting risk assessments for New Starts projects. http://www.fta.dot.gov/newsroom/12910_13883.html. In brief, the Dear Colleague letters announced an approach whereby the risk assessment for a New Starts project would be tailored to the unique capabilities of the project sponsor, the sponsor's experience in construction of transit infrastructure, the size and complexity of the project, and the total amount of New Starts funding requested for the project, and that, in some instances, a sponsor would be allowed to conduct its own risk assessment, in lieu of an assessment by FTA. It must be emphasized, however, that the Dear Colleague letters of September 30, 2011, were based on the New Starts project development process under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (“SAFETEA-LU”), the authorization statute that preceded MAP-21. Under MAP-21, the New Starts project development process is designed to be considerably quicker and less onerous for the project sponsor.

          Changes to the FTA Capital Programs Under MAP-21: MAP-21 took effect on October 1, 2012. Of the many changes to the FTA capital programs under MAP-21, two of the most important are the repeal of the longstanding formula program for Fixed Guideway Modernization (FGM) and the creation of the State of Good Repair (SGR) program. In one respect, the SGR program, now codified at 49 U.S.C. 5337, is the successor to the FGM program, in that the SGR program will support many of the same types of projects that were funded under the FGM program. It is clear, however, that in establishing the new SGR program under MAP-21, the Congress has raised its expectations of both FTA and the public transportation industry as compared to the previous FGM program. Specifically, through the mandate of a national Transit Asset Management (“TAM”) system at 49 U.S.C. 5326, the Congress is requiring FTA to establish systematic means for transit asset management by all operators of public transportation, for all modes of public transportation, throughout the United States. This national system of TAM will be based on a definition of the term State of Good Repair—to be developed through rulemaking—and performance measures for making improvements in the condition of transit agencies' facilities and equipment. Moreover, through the tiered formula of the SGR program at Section 5337, the Congress is targeting the largest amounts of Federal financial assistance to the operators of public transportation most in need of that assistance, for the express purpose of improving the condition of those operators' existing assets. In light of these fundamental changes to the principal formula program for capital assistance, FTA must consider whether, and if so, under what circumstances an SGR project should be defined as a major capital project subject to the oversight rules at 49 CFR part 633.

        Another change of upmost importance under MAP-21 is the establishment of the new competitive, discretionary Core Capacity Improvement (“CCI”) program, codified at 49 U.S.C. 5309(e). The single purpose of the CCI program is to provide Federal financial assistance for capital projects that will increase the capacities of existing fixed guideway systems in discrete corridors by at least ten percent—but explicitly, the statute excludes any elements of a project designed to maintain the State of Good Repair of the existing fixed guideway system. Here again, FTA must consider whether, and if so, under what circumstances a CCI project should be defined as a major capital project subject to the oversight rules at 49 CFR part 633.

        Yet another change of upmost importance is the streamlining of the New Starts project development process. Under the authorization statutes that preceded MAP-21, the New Starts process entailed the discrete, sequential phases of “alternatives analysis,” “preliminary engineering,” and final design,” prior to the construction of a project under a Full Funding Grant Agreement (FFGA). Under MAP-21, however, there are now only two sequential steps that preceded the construction of a project under an FFGA: The phases of “project development” and “engineering.” See, 49 U.S.C. 5309(d)(1), (2). No longer will there be an analysis of alternatives other than the evaluation of alternatives necessary for compliance with the National Environmental Policy Act. No longer will there be a requirement that FTA approve a New Starts project for entry into project development, as there was, for example, during SAFETEA-LU, when FTA had to approve a project for entry into preliminary engineering. Under MAP-21, a project sponsor must complete all activities required to obtain a rating and evaluation against the New Starts criteria for project justification, supportive land use policy and patterns, and local financial commitment, within two years from the date the sponsor's project enters “project development,” absent a waiver from the deadline. All of these changes to the New Starts program will affect FTA's project management oversight, and in particular, the agency's policy and procedure for risk assessment.

        Also, under MAP-21, there are a number of explicit directives for FTA's management of the New Starts, Small Starts, and Core Capacity Improvement programs that will affect FTA's oversight of major capital projects under the rules at 49 CFR part 633. Among them are the following:
        • In accordance with 49 U.S.C. 5309(c)(3), FTA is obliged to “use an expedited technical capacity review process” for any sponsor that has “recently and successfully completed” a New Start or CCI project, provided the budget, cost, and ridership outcomes for the previous project were consistent with or better than the projections, and the sponsor demonstrates that it “continues to have the staff expertise and other resources necessary to implement” the New Start or CCI project.

        • In accordance with 49 U.S.C. 5309(g)(3), “to the maximum extent practicable” FTA is obliged to use “warrants” in making a determination of project justification for a New Start or CCI project for which the Federal share will be less than $100 million or 50 percent of the total project costs, and the sponsor has certified that its existing public transportation system is in a State of Good Repair.
        • In accordance with 49 U.S.C. 5309(g)(4), “to the maximum extent practicable” FTA is obliged to issue Letters of Intent and enter into Early Systems Work Agreements to “expedite” a New Start or CCI project towards construction.

        • In accordance with 49 U.S.C. 5309(f)(2)(F), in assessing the stability, reliability, and availability of proposed sources of local financing for a New Start or CCI project, FTA must consider “private contributions to the project, including cost-effective project delivery, management or transfer of project risks, expedited project schedule, financial partnering, and other public-private partnership strategies.”
        • In accordance with 49 U.S.C. 5309(h), in rating and evaluating a Small Start project, FTA must assess “the benefits of the project as compared to the Federal assistance to be provided and the degree of local financial commitment.”
        • In accordance with 49 U.S.C. 5309(i), a federally funded New Start or CCI project in a “program of interrelated projects” may advance through the New Start or CCI process provided the entire program of interrelated projects, as a whole, meets the requirements for project justification and local financial commitment; each project within the entire program of interrelated projects enters construction “within a reasonable time frame”; and the entire program of interrelated projects “is supported by an acceptable degree of local financial commitment.”

          Next Steps: FTA intends to reinitiate the rulemaking proposed on September 11, 2011, at 76 FR 56363-56381, for the same purposes as stated in that NPRM. There is no change in the objective to attain stronger capital project management by project sponsors. Moreover, the agency is committed to developing more effective means of overseeing the major capital projects in which it invests taxpayer funds. Currently, FTA expects to issue a new Notice of Proposed Rulemaking to transform the project management oversight regulations at 49 CFR part 633 into rules for Capital Project Management in fall 2013. In the interim, FTA will issue guidance to the public transportation industry on the use of risk assessments for major capital projects.
        Additionally, over the next several months, FTA will propose a number of policies and rulemakings on the New Starts, Small Starts, Core Capacity Improvement, and State of Good Repair programs, and a rulemaking on Transit Asset Management, all of which, as noted above, have implications for the future rulemaking on Capital Project Management. The agency must carefully coordinate these various policy and regulatory initiatives, in balance with the agency's obligation to stand up the new Public Transportation Safety Program authorized at 49 U.S.C. Section 5329, which the agency's single highest priority. Accordingly, the Notice of Proposed Rulemaking to amend the regulations at 49 CFR part 633 is hereby withdrawn.
        Regulatory Impact
        Since this action is a withdrawal of a proposed rulemaking it is neither a proposed nor a final rule, therefore, it is not subject to Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act, or the U.S. Department of Transportation's Regulatory Policies and Procedures (44 FR 11034; February 26, 1979).

          List of Subjects in 49 CFR Part 633
          Transportation, Mass transportation, Project management oversight, Major capital projects, Fixed guideway projects, Risk assessment, Project management plans.

        Accordingly, the Notice of Proposed Rulemaking, Docket No. FTA-2009-0030, published in the Federal Register on September 13, 2011 (76 FR 56363) is withdrawn.

          Issued in Washington, DC on March 8, 2013.
          Peter Rogoff,
          Administrator.

      [FR Doc. 2013-06082 Filed 3-14-13; 8:45 am]
      BILLING CODE P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 050819225-5225-01; I.D. 080505A]
        RIN 0648-AS59
        Fisheries Off West Coast States and in the Western Pacific; Coastal Pelagic Species Fisheries; Annual Specifications

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes a regulation to implement the annual harvest guideline for Pacific mackerel in the U.S. exclusive economic zone (EEZ) off the Pacific coast. The Coastal Pelagic Species (CPS) Fishery Management Plan (FMP) and its implementing regulations require NMFS to set an annual harvest guideline for Pacific mackerel based on the formula in the FMP. The intended effect of this action is to propose allowable harvest levels for Pacific mackerel off the Pacific coast.

          DATES:
          Comments must be received by September 13, 2005.

          ADDRESSES:
          You may submit comments on this proposed rule identified by I.D. 080505A by any of the following methods:
          • E-mail: 0648-AS59.SWR@noaa.gov. Include I.D. 080505A in the subject line of the message.
          • Federal e-Rulemaking portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Fax: (562) 980-4047.
          • Mail: Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802.
          The report Assessment of the Pacific Mackerel (Scomber japonicus) Stock for U.S. Management in the 2005-2006 Season, and an economic analysis may be obtained at the address above.

          FOR FURTHER INFORMATION CONTACT:
          Tonya L. Wick, Southwest Region, NMFS, (562) 980-4036.

        SUPPLEMENTARY INFORMATION:

        The FMP, which was implemented by publication of the final rule in the Federal Register on December 15, 1999 (64 FR 69888), divides management unit species into the categories of actively managed and monitored. Harvest guidelines of actively managed species (Pacific sardine and Pacific mackerel) are based on formulas applied to current biomass estimates. Biomass estimates are not calculated for species that are only monitored (jack mackerel, northern anchovy, and market squid).

        At a public meeting each year, the biomass for each actively managed species is reviewed by the Pacific Fishery Management Council's (Council) CPS Management Team (Team). The biomass, harvest guideline, and status of the fisheries are then reviewed at a public meeting of the Council's CPS Advisory Subpanel (Subpanel). This information is also reviewed by the Council's Scientific and Statistical Committee (SSC). The Council reviews reports from the Team, Subpanel, and SSC, then, after providing time for public comment, makes its recommendation to NMFS. The annual harvest guideline and season structure are published by NMFS in the Federal Register as soon as practicable before the beginning of the appropriate fishing season. The Pacific mackerel season begins on July 1 of each year and ends on June 30 of the following year.
        The Team meeting took place at the office of the NMFS, Southwest Fisheries Science Center, in La Jolla, California, on May 18, 2005. The Subpanel and SSC meetings took place in conjunction with the June 13-18, 2005, Council meeting in Foster City, California.

        The size of the Pacific mackerel population was estimated using a newly modified version of the integrated stock assessment model called Age-structured Assessment Program (ASAP). Using this new ASAP model was recommended by the Coastal Pelagic Species Stock Assessment Review panel meeting held on June 16, 2004, in La Jolla, California. This new ASAP model replaces the old modified virtual population analysis stock assessment model used in previous years. ASAP is a flexible forward-simulation that allows for the efficient and reliable estimation of a large number of parameters. ASAP uses parameters such as fishery dependent (commercial and recreational landings) and fishery independent (e.g., aerial spotter survey index, commercial passenger fishing vessel logbook catch per unit effort, and California Cooperative Oceanic Fisheries Investigations surveys) data to obtain annual estimates of Pacific mackerel abundance, year-class strength, and age-specific fishing mortality for 1983 through 2004. The biomass was calculated through the end of 2004, then estimated for the fishing season that begins July 1, 2005, based on (1) the number of Pacific mackerel estimated to comprise each year class at the beginning of 2005, (2) modeled estimates of fishing mortality during 2004, (3) assumptions for natural and fishing mortality through the first half of 2005, and (4) estimates of age-specific growth. Based on this approach, the biomass for July 1, 2005, would be 101,147 metric tons (mt). Applying the formula in the FMP results in a harvest guideline of 17,419 mt, which is 32 percent greater than last year but similar to low harvest guidelines of recent years.
        The formula in the FMP uses the following factors to determine the harvest guideline:
        1. The biomass of Pacific mackerel. For 2005, this estimate is 101,147 mt.
        2. The cutoff. This is the biomass level below which no commercial fishery is allowed. The FMP established the cutoff level at 18,200 mt. The cutoff is subtracted from the biomass, leaving 82,947 mt.
        3. The portion of the Pacific mackerel biomass that is in U.S. waters. This estimate is 70 percent, based on the historical average of larval distribution obtained from scientific cruises and the distribution of the resource obtained from logbooks of fish-spotters. Therefore, the harvestable biomass in U.S. waters is 70 percent of 82,947 mt, that is, 58,063 mt.
        4. The harvest fraction. This is the percentage of the biomass above 18,200 mt that may be harvested. The FMP established the harvest fraction at 30 percent. The harvest fraction is multiplied by the harvestable biomass in U.S. waters (58,063 mt), which results in 17,419 mt.

        Information on the fishery and the stock assessment are found in the report Assessment of the Pacific Mackerel (Scomber japonicus) Stock for U.S. Management in the 2005-2006 Season, which may be obtained at the address above (see ADDRESSES).
        For the last three years, the fishing industry has recommended dividing the harvest guideline into a directed fishery and an incidental fishery, reserving a portion of the harvest guideline for incidental harvest in the Pacific sardine fishery so that the Pacific sardine fishery is not hindered by a prohibition on the harvest of Pacific mackerel. At its meeting on June 15, 2005, the Subpanel recommended for the 2005-2006 fishing season that a directed fishery of 13,419 mt and an incidental fishery of 4,000 mt be implemented. An incidental allowance of 40 percent of Pacific mackerel in landings of any CPS would become effective if the 13,419 mt of the directed fishery is harvested. The Subpanel also recommended to allow up to 1 mt of Pacific mackerel to be landed during the incidental fishery without the requirement to land any other CPS. This provision provides Pacific mackerel for small specialty markets. The Subpanel recommended that an inseason review of the Pacific mackerel season be completed for the March 2006 Council meeting, with the possibility of reopening the directed fishery as an automatic action if sufficient amount of the harvest guideline reserved for the incidental fishery remains unharvested. At that time the NMFS Southwest Regional Administrator will review the fishery to assess whether there is a sufficient amount of the unharvested portion of the harvest guideline (i.e., anything in excess of the amount needed to support incidental harvest) to warrant a reopening of the directed fishery. As of June 7, 2005, approximately 4,808 mt of Pacific mackerel had been landed; therefore, an incidental fishery was not necessary.
        Classification
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:

          The purpose of the proposed rule is to implement the 2005-2006 harvest guideline for Pacific mackerel in the U.S. EEZ off the Pacific coast. The CPS FMP and its implementing regulations require NMFS to set an annual harvest guideline for Pacific mackerel based on the formula in the FMP. The harvest guideline is derived by a formula applied to the current biomass estimate. The formula leaves little latitude for discretion except when errors are found in the calculations or in the data. There is no alternative to the harvest guideline as specified; there is no discretion to use an adjusted formula. Further, there is only one stock assessment method recommended for use to establish the adult biomass used to derive the harvest guideline. No changes are proposed in the regulations governing the fishery.
          The harvest guideline would apply to approximately 90 small fishing vessels coastwide that fish for Pacific mackerel within U.S. waters. This proposed rule has an equal effect on all of these small entities and therefore will impact a substantial number of these small entities in the same manner. These vessels fish for small pelagic fish (Pacific sardine, Pacific mackerel) all year and for market squid in the winter, and may harvest tuna in the U.S. EEZ seasonally when they are available, usually late in the summer and early fall. These vessels are considered small business entities by the U.S. Small Business Administration since the vessels do not have annual receipts in excess of $3.5 million. Therefore, there would be no economic impacts resulting from disproportionality between small and large vessels under the proposed action.
          There is no limit on the amount of catch that any single vessel can take; the harvest guideline is available until fully utilized by the entire CPS fleet. The small entities that would be affected by the proposed action are the vessels that compose the West Coast CPS finish fleet. The profitability of these vessels as a result of this proposed rule is based on the average Pacific mackerel ex-vessel price per mt. NMFS used average Pacific mackerel average ex-vessel price per mt to conduct a profitability analysis because it lacked cost data for the harvesting operations of CPS finfish vessels.
          For the July 1, 2004, through June 30, 2005, fishing year, the harvest guideline was set at 13,268 mt with an estimated ex-vessel value of $2.1 million based. As of June 7, 2005, only 4,808 mt had been harvested, valued at an estimated $741 thousand, reflecting the relatively poor market conditions for Pacific mackerel relative to other species of interest (e.g., Pacific sardine, market squid) and the lack of market orders.

          The 2005-2006 Pacific mackerel season began on July 1, 2005, and ends on June 30, 2006, or when the harvest guideline is caught and the fishery is closed. The proposed harvest guideline for the 2005-2006 fishing season is 17,419 mt, which is higher than the 13,268 mt harvest guideline for the prior year. If the fleet were to take the entire 2005-2006 harvest guideline, and assuming no change in the coastwide average ex-vessel price per mt of $154.35, the potential revenue to the fleet could be approximately $2.69 million. However, if there is no change in market conditions (i.e., a lack in demand for Pacific mackerel product), it is not likely that the full harvest guideline will be taken in the 2005-2006 fishing year in which case profits may be lower than if the entire harvest guideline were to be landed. Additionally, the full harvest guideline may not be taken because of the lack of availability of the Pacific mackerel resource in the area of the fishery. The potential lack of availability of the resource to the fishing fleet could also cause reduction in the amount of Pacific mackerel that could be harvested in which case would reduce total revenue to the fleet. NMFS does not anticipate a drop in profitability based on this rule as, if anything, it allows fishermen to harvest more than last year. Based on the disproportionality and profitability analysis above, NMFS does not believe that there will be a significant economic impact to a substantial number of these small entities. As a result, an Initial Regulatory Flexibility Analysis is not required and none has been prepared.

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

          Dated: August 24, 2005.
          James W. Balsiger,
          Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 05-17142 Filed 8-26-05; 8:45 am]
      BILLING CODE 3510-22-S