        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        RIN 0648-AX42
        Fisheries of the Exclusive Economic Zone Off Alaska; Central Gulf of Alaska Rockfish Program; Amendment 85

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

          ACTION:
          Notification of availability of fishery management plan amendment; request for comments.

          SUMMARY:
          The North Pacific Fishery Management Council submitted Amendment 85 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP) to NMFS for review. If approved, Amendment 85 would modify the GOA FMP and the Central Gulf of Alaska Rockfish Program to remove a restriction that prohibits certain catcher/processors from participating in directed groundfish fisheries in the Bering Sea and Aleutian Islands Management Area in July. This action is necessary to improve flexibility and reduce operating costs for catcher/processors that participate in the Central Gulf of Alaska Rockfish Program. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the GOA FMP, and other applicable laws.

          DATES:
          Comments on the amendment must be received on or before May 26, 2009.

          ADDRESSES:
          Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by “RIN 0648-AX42,” by any one of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
          • Mail: P. O. Box 21668, Juneau, AK 99802.
          • Fax: 907-586-7557.
          • Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.

          All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may 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, WordPerfect, or Adobe portable document file (pdf) formats only.

          Copies of Amendment 85 to the Fishery Management Plan for Groundfish of the Gulf of Alaska, the Regulatory Impact Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA), the categorical exclusion prepared for this action, and the Environmental Assessment (EA), RIR, and Final Regulatory Flexibility Analysis (FRFA) prepared for the Central Gulf of Alaska Rockfish Program are available from the NMFS Alaska Region at the address above or from the Alaska Region website at http://www.alaskafisheries.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Glenn Merrill, 907-586-7228, or Rachel Baker, 907-586-7425.

        SUPPLEMENTARY INFORMATION:

        The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce (Secretary). The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment. This notice announces that proposed Amendment 85 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP) is available for public review and comment.

        The groundfish fisheries in the exclusive economic zone of Alaska are managed under the GOA FMP and the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP). The FMPs were prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Act. Section 802 of the Consolidated Appropriations Act of 2004 (Public Law 108-199) granted NMFS specific authority to manage Central Gulf of Alaska (GOA) rockfish fisheries, and directed the Secretary, in consultation with the Council, to develop a program that recognizes the historical participation of fishing vessels and fish processors for Central GOA rockfish species. The Central Gulf of Alaska Rockfish Program (Rockfish Program) was recommended by the Council in June 2005 as Amendment 68 to the GOA FMP. Regulations implementing Amendment 68 were published on November 20, 2006 (71 FR 67210), and are located at 50 CFR part 679. Fishing began under the Rockfish Program on May 1, 2007.
        Amendment 85 would make minor changes to the GOA FMP to enable catcher/processors that fish in the Central GOA under the Rockfish Program to participate in groundfish fisheries in the BSAI in July.
        Under the Rockfish Program, NMFS issued quota share (QS) to persons who held a License Limitation Program (LLP) license that has been associated with a trawl catcher vessel or a trawl catcher/processor vessel that made legal landings of rockfish species and species harvested incidentally in the Central GOA rockfish fisheries during the rockfish fishing seasons from 1996 to 2002. Each year, an eligible rockfish harvester who received a QS allocation at the time the Rockfish Program was implemented may assign all QS associated with the LLP license either to a cooperative formed with other QS holders, or to a limited access fishery in which eligible harvesters compete for a share of the total allowable catch (TAC) for the Central GOA rockfish species. The total amount of QS assigned to all members of a cooperative yields cooperative quota (CQ), an exclusive annual harvest privilege for a portion of the TAC assigned to the Central GOA rockfish species. In addition, a cooperative receives CQ that may be used to harvest certain species caught incidentally in the rockfish fisheries. Eligible harvesters in either the catcher vessel sector or the catcher/processor sector may join cooperatives formed in their respective sectors.
        Vessels that fish under the Rockfish Program are subject to a suite of catch and fishery participation limits called sideboards. Sideboard limits are intended to prevent program participants from using the economic benefits and improved flexibility provided by exclusive harvesting privileges to increase effort in other fisheries and adversely affect participants that depend on those fisheries. The Rockfish Program sideboard limits were developed to restrict fishing by eligible Central GOA rockfish harvesters in non-Rockfish Program fisheries during the historical timing of the rockfish fishery, which generally began on July 1 and lasted two to three weeks. Several harvesters that participate in the Rockfish Program also historically participated in other groundfish fisheries in the GOA and BSAI after completing the Central GOA rockfish fisheries. Hence, the sideboard restrictions were limited to the month of July to enable these harvesters, particularly in the catcher/processor sector, to continue participating in these fisheries.
        Under current Rockfish Program regulations, all vessels in the catcher/processor sector that are assigned to a Central GOA rockfish cooperative and some vessels that participate in the limited access fishery are prohibited from fishing in BSAI groundfish fisheries, other than pollock and fixed-gear sablefish, for a period beginning July 1. This type of fishery participation sideboard is commonly called a stand down. When the Rockfish Program was implemented, the season opening date for the Central GOA rockfish fishery shifted from July 1 to May 1 for vessels that join a cooperative. In the first year of the Rockfish Program, most cooperative participants in the catcher/processor sector had completed fishing in the Rockfish Program fisheries and other GOA fisheries in June, but were prohibited from participating in BSAI groundfish fisheries in early July by the Rockfish Program stand down. Some catcher/processor vessels remained idle for the two-week stand down period, which was costly to vessel operators because maintenance and crew costs continue to accrue while a vessel is idle.
        The Council was prompted to reexamine the BSAI stand downs by participants in the catcher/processor sector of the Rockfish Program, who suggested that some Rockfish Program sideboard limits may be too restrictive. In April 2007, the Council initiated an analysis to examine the impacts of relieving certain catcher/processors that participate in the Rockfish Program from the BSAI stand downs. Based on the analysis and public comment, the Council adopted Amendment 85 to the GOA FMP in October 2008 and submitted it to NMFS for review by the Secretary.
        Amendment 85 to the GOA FMP would remove the BSAI stand downs that apply to catcher/processors that participate in the cooperative and limited access fisheries in the Rockfish Program. All other sideboard limits in the Rockfish Program would remain unchanged. The Council determined that the BSAI stand down requirements for vessels participating in the catcher/processor sector were no longer necessary to protect fishery participants in BSAI groundfish fisheries. Since implementation of the Rockfish Program, NMFS implemented Amendments 80 and 85 to the BSAI FMP. Amendment 80 allocated exclusive harvesting privileges for several BSAI directed trawl groundfish fisheries and Amendment 85 refined sector allocations for Pacific cod, which is a directed fishery. These management changes significantly increased the number of BSAI directed groundfish fisheries for which participants can receive exclusive harvesting privileges, and reduced the likelihood that catcher/processors participating in the Rockfish Program could increase effort in BSAI groundfish fisheries to the detriment of other participants, particularly during the short period in early July when the BSAI stand downs are in effect. The Council recommended Amendment 85 to the GOA FMP to improve flexibility and reduce operating costs for catcher/processors that participate in the Rockfish Program.

        The RIR/IRFA prepared for this action describes the costs and benefits of the proposed amendment (see ADDRESSES for availability). All of the directly regulated entities would be expected to benefit from this action relative to the status quo because the proposed amendment would allow greater flexibility for catcher/processors that participate in the Rockfish Program to coordinate harvesting operations in the GOA and BSAI.

        Public comments are being solicited on proposed Amendment 85 to the GOA FMP through the end of the comment period (see DATES). NMFS intends to publish in the Federal Register and seek public comment on a proposed rule that would implement Amendment 85, following NMFS' evaluation of the proposed rule under the Magnuson-Stevens Act. Public comments on the proposed rule must be received by the end of the comment period on Amendment 85 to be considered in the approval/disapproval decision on Amendment 85. All comments received by the end of the comment period on Amendment 85, whether specifically directed to the GOA FMP amendment or the proposed rule, will be considered in the FMP approval/disapproval decision. Comments received after that date will not be considered in the approval/disapproval decision on the amendment. To be considered, comments must be received, not just postmarked or otherwise transmitted, by the close of business on the last day of the comment period.

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

          Dated: March 19, 2009.
          Emily H. Menashes
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. E9-6462 Filed 3-23-09; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [I.D. 080703B]
        Groundfish Fisheries of the Bering Sea and Aleutian Islands Area and the Gulf of Alaska, King and Tanner Crab Fisheries in the Bering Sea/Aleutian Islands, Scallop and Salmon Fisheries Off the Coast of AK

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

          ACTION:
          Notification regarding the evaluation of potential  habitat areas of particular concern (HAPCs) within essential fish habitat (EFH).

          SUMMARY:
          NMFS intends to evaluate alternative approaches for HAPC designation in the EFH Environmental Impact Statement (EIS) NMFS is preparing in conjunction with the North Pacific Fishery Management Council.  Although NMFS' notice of intent to prepare the North Pacific EFH EIS implied that specific new HAPCs would be evaluated in the EIS, NMFS' current plan is to consider specific HAPC designations in separate National Environmental Policy Act analyses.

          FOR FURTHER INFORMATION CONTACT:
          Cindy Hartmann, (907) 586-7585.

        SUPPLEMENTARY INFORMATION:
        The Magnuson-Stevens Fishery Conservation and Management Act requires NMFS and the Council to identify EFH in fishery management plans.  The EFH regulations at 50 CFR 600.815(a)(8) encourage Councils to identify HAPCs within EFH based on the ecological importance of the habitat, sensitivity to human-induced environmental degradation, stress to the habitat from development activities, and/or rarity of the habitat.
        On June 6, 2001, NMFS published a notice of intent to prepare an EIS for the EFH components of the following five management plans:   the Fishery Management Plan (FMP) for the Groundfish Fishery of the Bering Sea/Aleutian Islands (BSAI) Area, the FMP for groundfish of the Gulf of Alaska, the FMP for BSAI Commercial King and Tanner Crabs, the FMP for the Scallop Fishery off Alaska, and the FMP for the Salmon Fishery in the EEZ off the Coast of Alaska (66 FR 30396).  NMFS requested written comments and gave notice of six scoping meetings.  NMFS noted that three types of actions will be analyzed in the EIS:   (1) describe and identify EFH for the fisheries; (2) identify HAPCs within EFH; and (3) minimize to the extent practicable the adverse effects of fishing on EFH.
        On January 10, 2002, NMFS published a notification of preliminary alternative approaches for EFH and HAPC and requested written comments (67 FR 1325).  Subsequently, based on public comment at the April, 2003, Council meeting, NMFS and the Council determined that it would be most effective to identify an approach to HAPC designation first, and then to consider specific candidate HAPCs through a separate process.  For this first iteration of the HAPC process, any resulting HAPC designations and associated fishery management measures would be promulgated on the same time line as any measures resulting from the EFH EIS.  The Council may also consider additional HAPCs in the future.

        The EFH EIS will evaluate five alternative approaches for identifying HAPCs.  Under Alternative 1, the FMPs would be amended to remove the present identification of HAPCs.  Under Alternative 2, HAPCs would remain as they are currently identified in the Council's FMPs:   living substrates in shallow waters, living substrates in deep waters, and freshwater areas used by anadromous fish.  Under Alternative 3, HAPC designations would be constrained to explicit geographically defined sites or locations, such as a particular seamount.  Under Alternative 4, habitat types would be selected based on the HAPC considerations in the regulations, and HAPC sites would then be selected within the habitat types.  Under Alternative 5, HAPC areas would be identified for individual FMP species based on the productivity of the habitat.
        The timeline for completing the EFH EIS has been revised since the scoping meetings held in 2001.  The current schedule is as follows:   Council review of preliminary draft EIS from September 15 - October 14, 2003; Draft EIS published for public comments by January 16, 2004; public comment period on draft EIS no later than January 16 - April 15, 2004; Final EIS published by June 1, 2005; Record of Decision by August 14, 2005; any resulting FMP amendments and final regulations by August 13, 2006; concurrent HAPC process with any implementing regulations by August 13, 2006.

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

          Dated: August 14, 2003.
          Bruce C. Morehead,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 03-21366 Filed 8-19-03; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 680
        RIN 0648-AX47
        Fisheries of the Exclusive Economic Zone Off Alaska; Allocating Bering Sea and Aleutian Islands King and Tanner Crab Fishery Resources

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

          ACTION:
          Notice of availability of fishery management plan amendment; request for comments.

          SUMMARY:
          The Bering Sea/Aleutian Islands (BSAI) Crab Rationalization Program (CR Program) allocates BSAI crab resources among harvesters, processors, and coastal communities. Amendment 30 would amend the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (FMP) and the CR Program to modify procedures for producing and submitting documents that are required under the arbitration system to resolve price, delivery, and other disputes between harvesters and processors. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable laws.

          DATES:
          Comments on the amendment must be submitted on or before September 23, 2011.

          ADDRESSES:
          Send comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by “RIN 0648-AX47”, by any one of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal Web site at http://www.regulations.gov.

          • Mail: P.O. Box 21668, Juneau, AK 99802.
          • Fax: (907) 586-7557.
          • Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.

          All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (e.g., name, address) voluntarily submitted by the commenter may 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, WordPerfect, or Adobe portable document file (pdf) formats only.

          Copies of Amendment 30, the Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), the categorical exclusion prepared for this action, and the Environmental Impact Statement (EIS) prepared for the Crab Rationalization Program may be obtained from the NMFS Alaska Region at the address above or from the Alaska Region Web site at http://www.fakr.noaa.gov/sustainablefisheries.htm.

          FOR FURTHER INFORMATION CONTACT:
          Forrest R. Bowers, 907-586-7240.

        SUPPLEMENTARY INFORMATION:

        The Magnuson-Stevens Act requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce (Secretary). The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment.

        The king and Tanner crab fisheries in the exclusive economic zone of the BSAI are managed under the FMP. The FMP was prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Act as amended by the Consolidated Appropriations Act of 2004 (Pub. L. 108-199, section 801). Amendments 18 and 19 to the FMP amended the FMP to include the CR Program. Regulations implementing the FMP, including the CR Program are located at 50 CFR Part 680.
        Under the CR Program, NMFS issued quota share (QS) to holders of License Limitation Program (LLP) licenses and crew onboard vessels. Each year QS yields an exclusive harvest privilege for a portion of the total allowable catch called individual fishing quota (IFQ). Several types of QS are issued; Catcher Vessel Owner (CVO) QS was issued to owners of catcher vessels based on their participation in CR Program fisheries during designated qualifying years.
        NMFS also issued processor quota share (PQS) under the CR Program. Each year PQS yields an exclusive privilege to process a portion of the IFQ. This annual exclusive processing privilege is called individual processor quota (IPQ). CVO QS yields Class A and Class B IFQ. Class A IFQ is required to be delivered to a processor with matching IPQ within specific geographic regions. Class B IFQ can be delivered to any processor in any geographic region. Ninety percent of the IFQ derived from CVO QS is Class A IFQ, and the remaining 10 percent is Class B IFQ. These requirements ensure that catch continues to be delivered to processors and communities with historic investment in the fisheries.
        Because harvesters holding Class A IFQ are required to deliver to processors holding IPQ for a specific crab fishery within a specific geographic region, it is possible that this requirement could adversely affect price and delivery negotiations among harvesters and processors. To address potential price and delivery disputes that may arise between Class A IFQ holders and IPQ holders, the Program includes an arbitration system to fairly and equitably resolve price, delivery terms, performance standards, and other disputes in the event that Class A IFQ and IPQ holders are unable to reach agreement on those terms.
        To facilitate the arbitration proceedings, the arbitration system establishes a series of contractual requirements that Class A IFQ and IPQ holders must meet. These contracts include requirements to hire: (1) A market analyst, who provides a pre-season market report of likely market conditions for each crab fishery to aid in price negotiations and arbitrations; (2) a formula arbitrator, who prepares a non-binding price formula that describes the historic division of first whole-sale values among harvesters and processors that can be used in price negotiations and arbitrations; and (3) a contract arbitrator, who reviews the positions of the parties during an arbitration proceeding and issues a binding decision based on a last-best offer form of arbitration. As the CR Program has progressed, it has become clear that the existing requirements for the timing and content of the market report and non-binding price formula limit the effectiveness of the arbitration system. The timing for the preparation of these documents did not allow the most recent publically available market data to be considered when price negotiations were conducted, thereby limiting their utility.
        Amendment 30, if approved, would modify four aspects of the arbitration system to improve its effectiveness by: (1) Allowing Class A IFQ and IPQ holders to establish contracts requiring the preparation of market reports and non-binding price formulas only if a crab fishery is open; (2) modifying the timeline for release of the non-binding price formula for the western Aleutian Islands golden king crab (WAG), and eastern Aleutian Islands golden king crab (EAG) fisheries; (3) modifying the information used and timing for release of the market report; and (4) clarifying the authority of the market analyst, formula arbitrator, and other parties involved in the administration of the arbitration system. The forthcoming proposed rule would implement the Council's recommendation under Amendment 30.

        Public comments are being solicited on proposed Amendment 30 through the end of the comment period (see DATES). NMFS intends to publish a proposed rule in the Federal Register for public comment that would implement Amendment 30, following NMFS' evaluation under the Magnuson-Stevens Act procedures. Public comments on the proposed rule must be received by the close of the comment period on Amendment 30 to be considered in the approval/disapproval decision on Amendment 30. All comments received by the end of the comment period on Amendment 30, whether specifically directed to the FMP amendment or the proposed rule, will be considered in the approval/disapproval decision on Amendment 30. Comments received after the end of the public comment period for Amendment 30, even if received within the comment period for the proposed rule, will not be considered in the approval/disapproval decision on the amendment. To be considered, comments must be received, not just postmarked or otherwise transmitted, by the close of business on the last day of the comment period.

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

          Dated: July 20, 2011.
          Emily H. Menashes,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2011-18725 Filed 7-22-11; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 160126053-6053-01]
        RIN 0648-BF74
        Magnuson-Stevens Act Provisions; Fisheries off West Coast States; Pacific Coast Groundfish Fishery; 2016 Tribal Fishery for Pacific Whiting

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS issues this proposed rule for the 2016 Pacific whiting fishery under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP), the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and the Pacific Whiting Act of 2006. This proposed rule would allocate 17.5% of the U.S. Total Allowable Catch of Pacific whiting for 2016 to Pacific Coast Indian tribes that have a Treaty right to harvest groundfish.

          DATES:
          Comments on this proposed rule must be received no later than April 11, 2016.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2016-0009, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0009, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: William W. Stelle, Jr., Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070, Attn: Miako Ushio.

            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 will generally 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. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          FOR FURTHER INFORMATION CONTACT:

          Miako Ushio (West Coast Region, NMFS), phone: 206-526-4644, and email: miako.ushio@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Electronic Access

        This proposed rule is accessible via the Internet at the Office of the Federal Register Web site at https://www.federalregister.gov. Background information and documents are available at the NMFS West Coast Region Web site at http://www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html and at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/.

        Background
        The regulations at 50 CFR 660.50(d) establish the process by which the tribes with treaty fishing rights in the area covered by the Pacific Coast Groundfish Fishery Management Plan (FMP) request new allocations or regulations specific to the tribes, in writing, during the biennial harvest specifications and management measures process. The regulations state that the Secretary will develop tribal allocations and regulations in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus. The procedures NMFS employs in implementing tribal treaty rights under the FMP were designed to provide a framework process by which NMFS can accommodate tribal treaty rights by setting aside appropriate amounts of fish in conjunction with the Pacific Fishery Management Council (Council) process for determining harvest specifications and management measures.
        Since the FMP has been in place, NMFS has been allocating a portion of the U.S. total allowable catch (TAC) (called Optimum Yield (OY) or Annual Catch Limit (ACL) prior to 2012) of Pacific whiting to the tribal fishery, following the process established in 50 CFR 660.50(d). The tribal allocation is subtracted from the U.S. Pacific whiting TAC before allocation to the non-tribal sectors.

        There are four tribes that can participate in the tribal whiting fishery: the Hoh Tribe, the Makah Tribe, the Quileute Tribe, and the Quinault Indian Nation (collectively, the “Treaty Tribes”). The Hoh Tribe has not expressed an interest in participating to date. The Quileute Tribe and Quinault Indian Nation have expressed interest in participating in the whiting fishery. However, to date, only the Makah Tribe has prosecuted a tribal fishery for Pacific whiting. They have harvested whiting since 1996 using midwater trawl gear. Tribal allocations have been based on discussions with the Treaty Tribes regarding their intent for those fishing years. Table 1 below provides a history of U.S. OYs and annual tribal allocation in metric tons (mt).

          Table 1—U.S. Optimum Yields (OYs) and Annual Tribal Allocation in Metric Tons (mt)

              Year

              U.S. OY

              Tribal Allocation

            2006
            269,069 mt
            32,500 mt

            2007
            242,591 mt
            35,000 mt

            2008
            269,545 mt
            35,000 mt

            2009
            135,939 mt
            50,000 mt

            2010
            193,935 mt
            49,939 mt

            2011
            290,903 mt
            66,908 mt

            2012
            186,037 mt TAC 1

            48,556 mt

            2013
            269,745 mt TAC
            63,205 mt

            2014
            316,206 mt TAC
            55,336 mt

            2015
            325,072 mt TAC
            56,888 mt

            1 Beginning in 2012, the United States started using the term Total Allowable Catch, based on the Agreement between the Government of the United States of America and the Government of Canada on Pacific Hake/Whiting.

        In 2009, NMFS, the states of Washington and Oregon, and the Treaty Tribes started a process to determine the long-term tribal allocation for Pacific whiting; however, no long-term allocation has been determined. In order to ensure Treaty Tribes continue to receive allocations, this rule proposes the 2016 tribal allocation of Pacific whiting. This is an interim allocation not intended to set precedent for future allocations.
        Tribal Allocation for 2016
        In exchanges between NMFS and the Treaty Tribes during 2015, the Makah Tribe indicated their intent to participate in the tribal whiting fishery in 2016. The Makah Tribe has requested 17.5% of the U.S. TAC. The Quileute Tribe and the Quinault Indian Nation indicated that they are not planning to participate in 2016. NMFS proposes a tribal allocation that accommodates the Makah request, specifically 17.5% of the U.S. TAC. NMFS believes that the current scientific information regarding the distribution and abundance of the coastal Pacific whiting stock suggests that 17.5% is within the range of the tribal treaty right to Pacific whiting.
        The Joint Management Committee, which was established pursuant to the Agreement between the United States and Canada on Pacific Hake/Whiting (the Agreement), is anticipated to recommend the coastwide and corresponding U.S./Canada TACs no later than March 25, 2016. The U.S. TAC is 73.88% of the coastwide TAC. Until this TAC is set, NMFS cannot propose a specific amount for the tribal allocation. The whiting fishery typically begins in May, and the final rule establishing the whiting specifications for 2016 is anticipated to be published by early May. Therefore, in order to provide for public input on the tribal allocation, NMFS is issuing this proposed rule without the final 2016 TAC. However, to provide a basis for public input, NMFS is describing a range of potential tribal allocations in this proposed rule, applying the proposed approach to determining the tribal allocation to a range of potential TACs derived from historical experience.
        In order to project a range of potential tribal allocations for 2016, NMFS is applying its proposed approach to determining the tribal allocation to the range of U.S. TACs over the last 10 years, 2006 through 2015 (plus or minus 25% to capture variability in stock abundance). The range of TACs in that time period was 135,939 mt (2009) to 325,072 mt (2015). Applying the 25% variability results in a range of potential TACs of 101,954 mt to 406,340 mt for 2016. Therefore, using the proposed allocation rate of 17.5%, the potential range of the tribal allocation for 2016 would between 17,842 and 71,110 mt.

        This proposed rule would be implemented under authority of Section 305(d) of the Magnuson-Stevens Act, which gives the Secretary responsibility to “carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act.” With this proposed rule, NMFS, acting on behalf of the Secretary, would ensure that the FMP is implemented in a manner consistent with treaty rights of four Northwest Tribes to fish in their “usual and accustomed grounds and stations” in common with non-tribal citizens. United States v. Washington, 384 F. Supp. 313 (W.D. 1974).
        Classification
        NMFS has preliminarily determined that the management measures for the 2016 Pacific whiting tribal fishery are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. In making the final determination, NMFS will take into account the data, views, and comments received during the comment period.
        The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.
        As required by section 603 of the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was prepared. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS.

        Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. The Small Business Administration (SBA) has established size criteria for entities involved in the fishing industry. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates) and if it has combined annual receipts, not in excess of $20.5 million for all its affiliated operations worldwide (See 79 FR 33647; June 12, 2014). For marinas and charter/party boats, a small business now defined as one with annual receipts, not in excess of $7.5 million. For purposes of rulemaking, NMFS is applying the $20.5 million standard to catcher processors (C/Ps) because Pacific whiting C/Ps are involved in the commercial harvest of finfish. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide. Effective February 26, 2016, a seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 750 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide (See NAICS 311710 at 81 FR 4469; January 26, 2016).

          Small organizations. The RFA defines small organizations as any nonprofit enterprise that is independently owned and operated and is not dominant in its field.

          Small governmental jurisdictions. The RFA defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or special districts with populations of less than 50,000.
        This proposed rule would allocate 17.5% of the U.S. Total Allowable Catch of Pacific whiting for 2016 to Pacific Coast Indian tribes that have a Treaty right to harvest groundfish. This allocation percentage was used for the 2015 fishery. The entities that this rule directly impacts are the Makah Tribe and the following in the non-tribal fisheries: Quota share (QS) holders in the Shorebased Individual Fishing Quota (IFQ) Program—Trawl Fishery; vessels in the Mothership Coop (MS) Program—Whiting At-sea Trawl Fishery; and the C/P Coop Whiting At-sea Trawl Fishery. These entities determine how much of their allocations are to be actually fished and what vessels are allowed to fish their allocations. This rule proposes to allocate fish to the Makah Tribe. Based on groundfish ex-vessel revenues and on tribal enrollments (the population size of each tribe), the Makah Tribe is considered a small entity.
        Currently, the Shorebased IFQ Program is composed of 172 Quota Share permits/accounts, 152 vessel accounts, and 44 first receivers. The MS fishery is currently composed of a single coop, with six mothership processor permits, and 34 Mothership/Catcher-Vessel (MS/CV) endorsed permits, with three permits each having two catch history assignments. The C/P Program is composed of 10 C/P permits owned by three companies that have formed a single co-op. Many companies participate in two sectors and some participate in all three sectors. All of the 34 mothership catch history assignments are associated with a single mothership co-op and all ten of the catcher-processor permits are associated with a co-op. These co-ops are considered large entities from several perspectives; they have participants that are large entities, whiting co-op revenues exceed or have exceeded the $20.5 million, or co-op members are connected to American Fishing Act permits or co-ops where the NMFS Alaska Region has determined they are all large entities (79 FR 54597; September 12, 2014). After accounting for cross participation, multiple QS account holders, and affiliation through ownership, NMFS estimates that there are 103 non-tribal entities directly affected by these proposed regulations, 89 of which are considered “small” businesses.
        For the years 2011 to 2015, the total whiting fishery (tribal and non-tribal) averaged harvests of approximately 205,000 mt annually, worth over $52 million in ex-vessel revenues. As the U.S. whiting TAC has been highly variable during this time, so have harvests. In the past five years, harvests have ranged from 160,000 mt (2012) to 264,000 mt (2014). Ex-vessel revenues have also varied in the same period, with annual ex-vessel revenues ranging from $25 million (2015) to $65 million (2013 and 2014). Total whiting harvest in 2015 was approximately 151,000 mt worth $25 million, at an ex-vessel price of $167 per mt. In 2014, harvest was 264,000 tons, and ex-vessel revenues were over $64 million with an average ex-vessel price of $240 per mt. The prices for whiting are largely determined by the world market for groundfish, because most of the whiting harvested is exported. Poor world market conditions led to a decrease in prices in 2015. There was no tribal catch of Pacific whiting in 2015, and overall, a lower percentage of the commercial TAC was harvested than in prior years.
        The use of ex-vessel values does not take into account the wholesale or export value of the fishery, or the costs of harvesting and processing whiting into a finished product. The latest available economic data indicates that in 2012, motherships received $30.3 million in wholesale revenue, C/Ps received $51 million, and shoreside processors $55 million.  The Pacific whiting fishery harvests almost exclusively Pacific whiting. While bycatch of other species occurs, the fishery is constrained by bycatch limits on key overfished species. This is a high-volume fishery with low ex-vessel prices per pound. This fishery also has seasonal aspects based on the distribution of whiting off the west coast.
        Since 1996, there has been a tribal allocation of the U.S. Pacific whiting TAC. Tribal fisheries undertake a mixture of fishing activities that are similar to the activities that non-tribal fisheries undertake. Tribal harvests have been delivered to both shoreside plants and at-sea processors. These processing facilities also process fish harvested by non-tribal fisheries.
        This proposed rule would allocate 17.5% of Pacific whiting to the tribal fishery, and would ultimately determine how much is left for allocation to the non-tribal sectors. The amount of whiting allocated to both the tribal and non-tribal sectors is based on the U.S. TAC. From the U.S. TAC, small amounts of whiting that account for research catch and for bycatch in other fisheries are deducted. The amount of the tribal allocation is also deducted directly from the TAC. After accounting for these deductions, the remainder is the commercial harvest guideline. This guideline is then allocated among the three non-tribal sectors as follows: 34 percent for the C/P Coop Program; 24 percent for the MS Coop Program; and 42 percent for the Shorebased IFQ Program.
        The effect of the tribal allocation on non-tribal fisheries will depend on the level of tribal harvests relative to their allocation and the reapportioning process. Total whiting harvest in 2015 was approximately 151,000 mt worth $25 million, at an ex-vessel price of $167 per mt. Assuming a similar TAC and ex-vessel price in 2016, if the Treaty Tribes were to harvest 17.5%, the approximate value of that harvest would be $4.4 million. If the Treaty Tribes do not harvest their entire allocation, there are opportunities during the year to reapportion unharvested tribal amounts to the non-tribal fleets. For example, in 2015, NMFS executed one such reapportionment. The best available information through September 14, 2015, indicated that at least 30,000 mt of the tribal allocation would not be harvested by December 31, 2015. To allow for full utilization the resource, NMFS reapportioned 30,000 mt on September 16, 2015, to the Shorebased IFQ Program, C/P Coop and MS Coop in proportion to each sector's original allocation. Reapportioning this amount was expected to allow for greater attainment of the TAC while not limiting tribal harvest opportunities for the remainder of the year. The revised Pacific whiting allocations for 2015 following the reapportionment were: Tribal 26,888 mt; C/P Coop 100,873 mt; MS Coop 71,204 mt; and Shorebased IFQ Program 214,607 mt.

        NMFS considered two alternatives for this action: the “No-Action” and the “Proposed Action.” NMFS did not consider a broader range of alternatives to the proposed allocation. The tribal allocation is based primarily on the requests of the tribes. These requests reflect the level of participation in the fishery that will allow them to exercise their treaty right to fish for whiting. Under the Proposed Action alternative, NMFS proposes to set the tribal allocation percentage at 17.5%, as requested by the tribes. This would yield a tribal allocation of between 17,842 and 71,110 mt for 2016. Consideration of a percentage lower than the tribal request of 17.5% is not appropriate in this instance. As a matter of policy, NMFS has historically supported the harvest levels requested by the tribes. Based on the information available to NMFS, the tribal request is within their tribal treaty rights. A higher percentage would arguably also be within the scope of the treaty right. However, a higher percentage would unnecessarily limit the non-tribal fishery.
        Under the No-Action alternative, NMFS would not make an allocation to the tribal sector. This alternative was considered, but the regulatory framework provides for a tribal allocation on an annual basis only. Therefore, the no-action alternative would result in no allocation of Pacific whiting to the tribal sector in 2016, which would be inconsistent with NMFS' responsibility to manage the fishery consistent with the tribes' treaty rights. Given that there is a tribal request for allocation in 2016, this alternative received no further consideration.

        NMFS believes this proposed rule would not adversely affect small entities. The reapportioning process allows unharvested tribal allocations of whiting, fished by small entities, to be fished by the non-tribal fleets, benefitting both large and small entities. Nonetheless, NMFS has prepared an IRFA and is requesting comments on this conclusion. See ADDRESSES.
        There are no reporting, recordkeeping or other compliance requirements in the proposed rule.
        No Federal rules have been identified that duplicate, overlap, or conflict with this action.
        Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Consistent with the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, NMFS has coordinated specifically with the tribes interested in the whiting fishery regarding the issues addressed by this rule.

          List of Subjects in 50 CFR Part 660
          Fisheries, Fishing, Indian fisheries.

          Dated: March 3, 2016.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

          PART 660—FISHERIES OFF WEST COAST STATES

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

          Authority:
          16 U.S.C. 1801 et seq. and 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

        2. In § 660.50, revise paragraph (f)(4) to read as follows:

          § 660.50
          Pacific Coast treaty Indian fisheries.

          (f) * * *
          (4) Pacific whiting. The tribal allocation for 2016 will be 17.5% of the U.S. TAC.

      [FR Doc. 2016-05254 Filed 3-9-16; 8:45 am]
       BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 223 and 224
        [Docket No. 040525161-5274-05; I.D. No. 052104F]
        RIN No. 0648-AR93
        Endangered and Threatened Species: Request for Comment on Alternative Approach to Delineating 10 Evolutionarily Significant Units of West Coast Oncorhynchus mykiss

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

          ACTION:
          Proposed rule; request for comment.

          SUMMARY:

          In June 2004, we (NMFS) proposed that 10 Evolutionarily Significant Units (ESUs) of West Coast Oncorhynchus mykiss be listed as endangered or threatened species under the Endangered Species Act (ESA). We have reconsidered the preliminary decision to apply the Pacific salmon ESU Policy to these stocks and seek comment on our proposed application of the joint NMFS/U.S. Fish and Wildlife Service (FWS) “Policy Regarding the Recognition of Distinct Vertebrate Population Segments under the ESA” (DPS Policy) to the delineation of Oncorhynchus mykiss distinct population segments (DPSs).

          DATES:
          All comments must be received no later than 5 p.m. Pacific standard time on December 5, 2005.

          ADDRESSES:
          You may submit comments and information by any of the following methods. Please identify submittals as pertaining to the “Proposed Steelhead DPSs and Listings.”
          • E-mail: SteelheadDPS.nwr@noaa.gov. Include “Proposed Steelhead DPSs and Listings” in the subject line of the message.

          • Internet: Comments may also be submitted electronically through the Federal e-Rulemaking portal at: http://www.regulations.gov.
          • Mail: Submit written comments and information to Chief, NMFS, Protected Resources Division, 1201 NE Lloyd Boulevard, Suite 1100, Portland, Oregon 97232.
          • Hand Delivery/Courier: You may hand-deliver written comments to our office during normal business hours at the street address given above.
          • Fax: 503-230-5441

          FOR FURTHER INFORMATION CONTACT:

          Craig Wingert, NMFS, Southwest Region, (562) 980-4021, Dr. Scott Rumsey, NMFS, Northwest Region, (503) 872-2791, or Marta Nammack, NMFS, Office of Protected Resources, (301) 713-1401. Copies of the Federal Register notices, additional steelhead-related documents, and a list of all the references cited in this notice are available on the Internet at http://www.nwr.noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Background
        Policies for Delineating Species under the ESA

        Section 3 of the ESA defines the term species to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature” [emphasis added]. In 1991 we issued a policy for making species determinations for Pacific salmon (“ESU Policy;” 56 FR 58612; November 20, 1991). Under this policy a group of Pacific salmon populations is considered an ESU if it is substantially reproductively isolated from other conspecific populations, and it represents an important component in the evolutionary legacy of the biological species. Under that policy, the biological ESU is considered to be a “distinct population segment” and thus a “species” under the ESA. In 1996, we and FWS adopted a joint policy for recognizing DPSs under the ESA (DPS Policy; 61 FR 4722; February 7, 1996). The DPS Policy adopts similar but slightly different criteria from the ESU Policy for determining when a group of organisms constitutes a DPS: it must be discrete from other populations, and it must be significant to its taxon. A group of organisms is discrete if it is “markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, and behavioral factors.” Although the ESU Policy does not specifically apply to steelhead, the DPS Policy states that NMFS will continue to implement the ESU Policy with respect to Pacific salmonids (inclusive of O. mykiss).
        Previous Federal ESA Actions Related to West Coast Steelhead

        In 1996, we completed a comprehensive status review of West Coast steelhead (Busby et al., 1996) that resulted in proposed listing determinations for 10 steelhead ESUs, 5 as endangered and 5 as threatened species (61 FR 41541; August 9, 1996). On August 18, 1997, we listed five of the ESUs, two as endangered and three as threatened (62 FR 43937) and announced a 6-month extension of final listing determinations for the other five ESUs, pursuant to section 4(b)(6)(B)(I) of the ESA (62 FR 43974). On March 10, 1998, we proposed to list two additional steelhead ESUs as threatened (63 FR 11798). On March 19, 1998, we listed as threatened two of the steelhead ESUs that were deferred in August 1997 and designated the other three proposed ESUs as candidate species (63 FR 13347). On March 25, 1999, we listed as threatened the two ESUs proposed in March 1998 (64 FR 14517). On February 11, 2000, we proposed to list the Northern California steelhead ESU as threatened (65 FR 6960) and listed that ESU as threatened on June 7, 2000 (65 FR 36074). Under these listing decisions, there are currently 10 listed steelhead ESUs, two endangered (Southern California and Upper Columbia River) and eight threatened (South-Central California, Central California Coast, California Central Valley, Northern California, Upper Willamette River, Lower Columbia River, Middle Columbia River, and Snake River Basin).

        In our 1997 steelhead listings (62 FR 43937), we noted uncertainties about the relationship of resident and anadromous O. mykiss, yet concluded that the two forms are part of a single ESU where the resident and anadromous O. mykiss have the opportunity to interbreed. FWS disagreed that resident O. mykiss should be included in the steelhead ESUs and advised that the resident fish not be listed. Accordingly, we decided to list only the anadromous O. mykiss at that time. That decision was followed in each of the subsequent steelhead listings described in the preceding paragraph.

        In 2001, the U.S. District Court in Eugene, Oregon, set aside the 1998 threatened listing of the Oregon Coast coho ESU (Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001)) (Alsea decision). In the Oregon Coast coho listing (63 FR 42587; August 10, 1998), we did not include in the listing 10 hatchery stocks determined to be part of the Oregon Coast coho ESU. The court upheld our policy of considering an ESU to be a DPS, but ruled that once we had delineated a DPS, the ESA did not allow listing a subset of that DPS. In response to the Alsea decision and several listing and delisting petitions, we announced we would conduct an updated status review of 27 West Coast salmonid ESUs, including the 10 listed steelhead ESUs (67 FR 6215, February 11, 2002; 67 FR 48601, July 25, 2002; 67 FR 79898, December 31, 2002).

        On June 14, 2004, we proposed to continue applying our ESU Policy to the delineation of DPSs of O. mykiss, and to list the 10 O. mykiss ESUs including the resident fish that co-occur with the anadromous form (69 FR 33102). We proposed to list one ESU in California as endangered (Southern California), and nine ESUs in California, Oregon, Washington, and Idaho as threatened (South-Central California, Central California Coast, California Central Valley, Northern California, Upper Willamette River, Lower Columbia River, Middle Columbia River, Snake River Basin, and Upper Columbia). In the proposed rule, we noted that the Alsea decision required listing of an entire ESU/DPS, in contrast to our prior steelhead-only listings, and stated the scientific principles and working assumptions that we used to determine whether particular resident groups were part of an O. mykiss ESU that included anadromous steelhead (69 FR 33102). We proposed that where resident (rainbow trout) and anadromous (steelhead) O. mykiss occur in the same stream, they are not “substantially reproductively isolated” from one another and are therefore part of the same ESU.
        Following an initial public comment period of 90 days, we twice extended the public comment period for an additional 36 and 22 days (69 FR 53031, August 31, 2004; 69 FR 61348, October 18, 2004), respectively. During the comment period, we received numerous comments disagreeing with our proposal to include resident populations in the subject O. mykiss ESUs (in general and for specific resident populations) and criticizing how we considered resident O. mykiss in evaluating the risk to the continued existence of the whole ESU.

        On June 7, 2005, FWS wrote to NMFS (FWS, 2005), stating its concerns about the factual and legal bases for our proposed listing determinations for 10 O. mykiss ESUs, specifying issues of substantial disagreement regarding the relationship between anadromous and resident O. mykiss. On June 28, 2005, we published a notice in the Federal Register announcing the ESA statutory 6-month extension of the final listing determinations for the subject O. mykiss ESUs to resolve the substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determinations (70 FR 37219). As a result of these comments, we are re-opening the comment period to consider whether the final rule should delineate 10 steelhead-only DPSs, list one DPS in California as endangered (Southern California), and list the remaining nine DPSs in California, Oregon, Washington, and Idaho as threatened (South-Central California, Central California Coast, California Central Valley, Northern California, Upper Willamette River, Lower Columbia River, Middle Columbia River, Snake River Basin, and Upper Columbia).
        Application of the Joint DPS Policy for Determination of Species

        In its June 7, 2005, letter recommending that the final listing determinations for the 10 O. mykiss ESUs under review be extended, FWS suggested that we ensure that our delineation of O. mykiss ESUs complies with the DPS Policy. We agree, in this case, that it is appropriate that we consider departing from our past practice of applying the ESU Policy to O. mykiss stocks, and instead apply the DPS Policy in determining “species” of O. mykiss for listing consideration. Such an approach would also be consistent with use of the DPS Policy by the agencies in defining DPSs of Atlantic salmon (Salmo salar; 65 FR 69459; November 17, 2000). The primary difference in the application of the two policies is that the ESU Policy relies on “substantial reproductive isolation” as the primary factor in delineating a group of organisms, while the DPS Policy relies on “marked separation” to delineate the group. Within a discrete group of O. mykiss populations, the resident and anadromous life forms of O. mykiss remain “markedly separated” as a consequence of physical, physiological, ecological, and behavioral factors. Despite the apparent lack of reproductive isolation between the two forms within a given population or group of populations, under the DPS Policy anadromous and resident O. mykiss may not warrant delineation as part of the same DPS.
        In order to provide sufficient notice to the public to allow for informed comment, we provide the following analysis of how the proposed application of the DPS Policy to O. mykiss stocks would affect the proposed listings.
        Proposed Evaluation of Discreteness under the DPS Policy
        Under the DPS Policy a population segment may be considered discrete if it satisfies either one of the following conditions:
        (1) It is markedly separated from other populations of the same biological taxon as a consequence of physical, physiological, ecological, or behavioral factors; or
        (2) It is delimited by international governmental boundaries across which there is a significant difference in exploitation control, habitat management or conservation status.

        The discreteness of the 10 West Coast steelhead DPSs under consideration relative to other population groups of the O. mykiss species is well documented by the previous NMFS status reviews that delineated steelhead ESUs (e.g., NMFS, 1997; Busby et al., 1996, 1997, 1999; Adams, 2000; Good et al., 2005). These reviews concluded that the ESUs respectively are substantially reproductively isolated based on established phylogenetic groupings, available population genetic data, differences in migration and spawn timing, patterns in the duration of freshwater and marine residence, and geographic separation of populations. These traits that established the substantial reproductive isolation of the respective steelhead ESUs under the ESU Policy also satisfy the “discreteness” criterion of the DPS Policy. In the following paragraphs we address the question of whether the co-occurring anadromous and resident life forms within these proposed steelhead DPSs are themselves discrete or warrant inclusion in the same DPS.

        Under the ESU Policy we have previously determined that where resident and anadromous O. mykiss co-occur there is likely to be interbreeding between the two life-history forms, and that co-occurring resident and anadromous O. mykiss below long-standing impassable barriers are part of the same ESU. This conclusion was based on empirical studies that show that resident and anadromous O. mykiss are similar genetically when they co-occur with no physical barriers to migration or interbreeding (Chilcote, 1976; Currens et al., 1987; Leider et al., 1995; Busby et al., 1996; Pearsons et al., 1998), and the observation that individuals can occasionally produce progeny of the alternate life-history form (Shapovalov and Taft, 1954; Burgner et al., 1992; Mullan et al., 1992; Zimmerman and Reeves, 2000; Kostow, 2003; Ardren, 200; Blouin, 200; Pearsons et al., 2003; Marshal and Foley, 2004; Narum et al., 2004; Seamons et al., 2004).

        The discreteness criterion of the DPS Policy, however, does not rely on reproductive isolation but on the marked separation of population groups as a consequence of biological factors. Despite the apparent reproductive exchange between resident and anadromous O. mykiss, the two life forms remain markedly separated physically, physiologically, ecologically, and behaviorally. Steelhead differ from resident rainbow trout physically in adult size and fecundity, physiologically by undergoing smoltification, ecologically in their preferred prey and principal predators, and behaviorally in their migratory strategy. Where the two life forms co-occur, adult steelhead typically range in size from 40-72 cm in length and 2-5 kg body mass, while adult rainbow trout typically range in size from 25-46 cm in length and 0.5-2 kg body mass (Shapovalov and Taft, 1954; Wydoski and Whitney, 1979; Jones, 1984). Steelhead females produce approximately 2,500 to 10,000 eggs, and rainbow trout fecundity ranges from 700 to 4,000 eggs per female (Shapovalov and Taft, 1954; Buckley, 1967; Moyle, 1976; McGregor, 1986; Pauley et al., 1986), with steelhead eggs being approximately twice the diameter of rainbow trout eggs or larger (Scott and Crossman, 1973; Wang, 1986; Tyler et al., 1996). Steelhead undergo a complex physiological change that enables them to make the transition from freshwater to saltwater (smoltification), while rainbow trout reside in freshwater throughout their entire life cycle. While juvenile and adult steelhead prey on euphausiid crustaceans, squid, herring, and other small fishes in the marine environment, the diet of adult rainbow trout is primarily aquatic and terrestrial insects and their larvae, mollusks, amphipod crustaceans, fish eggs, and minnows (LeBrasseur, 1966; Scott and Crossman, 1973; Wydoski and Whitney, 1979). Finally, steelhead migrate several to hundreds of miles from their natal streams to the ocean, and spend up to 3 years in the ocean migrating thousands of miles before returning to freshwater to spawn (Busby et al., 1996). Rainbow trout, in contrast, may exhibit seasonal migrations of tens of kilometers but generally remain associated with their natal drainages (Meka et al., 1999).
        Given the marked separation between the anadromous and resident life-history forms in physical, physiological, ecological, and behavioral factors, we may conclude that the anadromous steelhead populations are discrete from the resident rainbow trout populations within the DPSs under consideration. If so, we would conclude that the Southern California, South-Central California, Central California Coast, California Central Valley, Northern California, Upper Willamette River, Lower Columbia River, Middle Columbia River, Upper Columbia River, and Snake River Basin steelhead DPSs under consideration satisfy the “discreteness” criterion under the DPS Policy.
        Proposed Evaluation of Significance under the DPS Policy
        Under the DPS Policy, if a population group is determined to be discrete, the agency must then consider whether it is significant to the taxon to which it belongs. Considerations in evaluating the significance of a discrete population include: (1) persistence of the discrete population in an unusual or unique ecological setting for the taxon; (2) evidence that the loss of the discrete population segment would cause a significant gap in the taxon's range; (3) evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere outside its historical geographic range; or (4) evidence that the discrete population has marked genetic differences from other populations of the species.

        The significance of the 10 West Coast steelhead DPSs under consideration to the O. mykiss species is well documented by the previous NMFS status reviews that delineated steelhead ESUs (e.g., NMFS, 1997; Busby et al., 1996, 1997, 1999; Adams, 2000; Good et al., 2005). These reviews concluded that the steelhead population groups respectively represent an important component in the evolutionary legacy of the species based on unique or unusual life-history, genetic, and ecological characteristics and occupied ecoregion(s) (i.e., unique geographic regions defined by climatic, geologic, hydrologic, and floral composition characteristics; Donley et al., 1979; Jackson, 1993; Omernik, 1987). These traits that established the evolutionary importance of the respective steelhead population groups under the ESU Policy also satisfy the “significance” criterion of the DPS Policy. These proposed steelhead DPSs, if lost, would represent: the loss of unusual or unique habitats and ecosystems occupied by the species; a significant gap in the species' range; and/or a significant loss to the ecological, life-history, and genetic diversity of the taxon. We may conclude, based on our previous ESU determinations, that the Southern California, South-Central California, Central California Coast, California Central Valley, Northern California, Upper Willamette River, Lower Columbia River, Middle Columbia River, Upper Columbia River, and Snake River Basin steelhead DPSs under consideration satisfy the “significance” criterion under the DPS Policy.
        Proposed Alternative Species Determinations for Steelhead DPSs
        If we were to apply the DPS Policy to West Coast O. mykiss, based on the considerations discussed above, the previously proposed species determinations for 10 West Coast O. mykiss ESUs (see 69 FR 33102; June 14, 2004) may be revised to consist of these steelhead-only DPSs. As noted above, the consideration of substantial reproductive isolation for the previously defined steelhead ESUs directly informs the delineation of discrete steelhead-only population units under the DPS Policy. Under this alternative approach the geographic boundaries for the steelhead-only DPSs would not change from those previously delineated for the steelhead or O. mykiss ESUs. The steelhead-only DPSs under consideration would include “all naturally spawned populations of anadromous O. mykiss (steelhead)” within the geographic boundaries of a given DPS.

        On June 28, 2005, we finalized a new policy for the consideration of hatchery-origin fish in ESA listing determinations (“Hatchery Listing Policy;” 70 FR 37204). Under the Hatchery Listing Policy hatchery stocks are considered part of an ESU if they exhibit a level of genetic divergence relative to the local natural population(s) that is no more than what occurs within the ESU (70 FR at 37215; June 28, 2005). Consistent with the June 14, 2004, proposed listing determinations (69 FR 33102; June 14, 2004) and the recent final listing determinations for 16 West Coast salmon ESUs (70 FR 37160; June 28, 2005), hatchery stocks would be included in a steelhead DPS if they are no more than moderately diverged from local, native populations in the watershed(s) in which they are released. The level of divergence for hatchery programs associated with the subject steelhead DPSs is reviewed in the 2003 Salmon and Steelhead Hatchery Assessment Group Report (NMFS, 2003), and the 2004 Salmonid Hatchery Assessment and Inventory Report (NMFS, 2004b). Were we to apply the DPS Policy, the DPS membership of hatchery programs included in the steelhead DPSs would be unchanged from that proposed for the 10 O. mykiss
          ESUs (see Table 2, 69 FR at 33120; June 14, 2004).

        Below we discuss proposed clarifying changes to the proposed Central California Coast and Northern California steelhead DPSs. These proposed clarifying changes are relevant whether we continue to use O. mykiss ESUs inclusive of anadromous and resident life forms, or instead we take action on steelhead-only DPSs.
        Proposed Central California Coast Steelhead DPS

        The Central California Coast steelhead ESU previously included all naturally spawned populations of steelhead in California streams from the Russian River to Aptos Creek, and the drainages of San Francisco and San Pablo Bays eastward to the Napa River (inclusive), excluding the Sacramento-San Joaquin River Basin (62 FR 43937; August 18, 1997). Recent information, however, indicates that those portions of the ESU in San Francisco Bay and eastward towards the Central Valley were incorrectly described in the 1997 listing notice and need to be clarified. Accordingly, the specification of a proposed Central California Coast steelhead DPS would include all naturally spawned populations of anadromous O. mykiss (steelhead) in coastal streams from the Russian River (inclusive) to Aptos Creek (inclusive), and the drainages of San Francisco, San Pablo, and Suisun Bays eastward to Chipps Island at the confluence of the Sacramento and San Joaquin Rivers and in tributary streams to Suisun Marsh including Suisun Creek, Green Valley Creek, and an unnamed tributary to Cordelia Slough (commonly referred to as Red Top Creek), exclusive of the Sacramento-San Joaquin River Basin of the California Central Valley.
        Proposed Northern California Steelhead DPS
        The Northern California O. mykiss ESU previously included all naturally spawned steelhead in California coastal river basins from Redwood Creek south to the Gualala River (inclusive) (65 FR 36074; June 7, 2000). Recently, however, we have discovered that there is a coastal section between the southern boundary of the proposed Northern California DPS (the Gualala River) and the northern boundary of the proposed Central California Coast steelhead DPS (the Russian River) that contains several small streams that support steelhead. No genetic or other information is currently available for determining which proposed DPS includes these small streams. We believe that the geographic proximity and similarity in environmental and ecological conditions of these small streams suggests that they would be placed in the Northern California steelhead DPS. Accordingly, we would clarify the geographic boundaries of the Northern California steelhead DPS to include all naturally spawned populations of anadromous O. mykiss (steelhead) in California coastal river basins from Redwood Creek southward to, but not including, the Russian River.
        Evaluation of Species' Status

        NMFS' Pacific Salmonid Biological Review Team (BRT) (an expert panel of scientists from several Federal agencies including NMFS, FWS, and the U.S. Geological Survey) reviewed the viability and extinction risk of naturally spawning populations in the 10 steelhead ESUs that were the subject of our June 2004 proposed rule (Good et al., 2005). The BRT evaluated the risk of extinction faced by naturally spawning populations in the 10 O. mykiss ESUs corresponding to the steelhead DPSs addressed in this request for comment (Good et al., 2005). Although the ESUs reviewed by the BRT included co-occurring populations of resident O. mykiss, little or no population data are available for most resident O. mykiss populations. The BRT's findings regarding extinction risk are based on the status of the steelhead populations in the ESUs reviewed. Where available, the BRT incorporated information about resident populations into their analyses of extinction risk. For the Southern California, South-Central California Coast, Central California Coast, California Central Valley, Middle Columbia River, Upper Columbia River, and Snake River Basin O. mykiss ESUs the BRT noted that the presence of qualitatively abundant resident populations reduced risks to the ESU's abundance (see NMFS, 2004a; Good et al., 2005). However, the BRT concluded for all the O. mykiss ESUs reviewed that the contribution of the resident life-history form to the viability of an O. mykiss ESU in-total is unknown, and may not substantially reduce the ESU's level of extinction risk. Therefore, the BRT's extinction risk findings may directly inform evaluations of extinction risk for the steelhead DPSs under consideration.

        Were we to apply the DPS Policy, we would assess the effects of hatchery programs on the extinction risk of a DPS in-total (i.e., the collective extinction risk of natural- and hatchery origin components within the DPS) on the basis of the factors that the BRT determined are currently limiting the DPS (e.g., abundance, productivity, spatial structure, and diversity), and how artificial propagation efforts within the DPS affect those factors. The Artificial Propagation Evaluation Workshop (NMFS, 2004c) reviewed the BRT's findings (NMFS, 2003; Good et al., 2005), evaluated the Salmonid Hatchery Inventory and Effects Evaluation Report (NMFS, 2004b), and assessed the overall extinction risk of DPSs with associated hatchery stocks. The reader is referred to the BRT's report (Good et al., 2005), the Salmonid Hatchery Inventory and Effects Evaluation Report (NMFS, 2004b), and the Workshop Report (NMFS, 2004c) for more detailed descriptions of the viability of individual natural populations and hatchery stocks within these DPSs.
        Analysis of Efforts Being Made to Protect Proposed West Coast Steelhead DPSs
        In the proposed rule addressing 10 O. mykiss ESUs we reviewed protective efforts ranging in scope from regional conservation strategies to local watershed initiatives (see 69 FR 33102; June 14, 2004). We preliminarily concluded that protective efforts collectively do not provide sufficient certainty of implementation and effectiveness to substantially ameliorate the level of assessed extinction risk for all but one of the steelhead ESUs under consideration (see the June 14, 2004, proposed rule for a summary of the relevant protective efforts (69 FR 33102) benefitting the California Central Valley ESU and a description of the proposed finding that these efforts mitigate the ESU's level of extinction risk (69 FR 33102)). While we acknowledge that many of the ongoing protective efforts are likely to promote the conservation of listed salmonids, most efforts are relatively recent and have yet to indicate their effectiveness. Also, few address conservation needs at scales sufficient to conserve entire ESUs. Under our proposed approach to apply the DPS Policy, we would likely conclude that existing protective efforts lack the certainty of implementation and effectiveness to substantially ameliorate the extinction risk of the steelhead DPSs under consideration (but for the proposed California Central Valley steelhead DPS, as noted above).
        Proposed Listing Determinations

        Under our proposed approach to apply the DPS Policy, we would likely conclude that the steelhead DPSs under consideration warrant listing under the ESA, based on the BRT's findings, our analysis of the contributions of artificial propagation, and our evaluation of protective efforts. We likely would list the proposed Southern California steelhead DPS as an endangered species and list the proposed South-Central California, Central California Coast, California Central Valley, Northern California, Upper Willamette River, Lower Columbia River, Middle Columbia River, Upper Columbia River, and Snake River Basin steelhead DPSs as threatened species. The reader is referred to the final BRT report (Good et al., 2005) and the previous proposed rule (69 FR 33102; June 14, 2004) for a more detailed description of a given DPS's status.
        Prohibitions and Protective Regulations
        In the case of threatened species, section 4(d) of the ESA leaves it to the Secretary's discretion whether and to what extent to extend the statutory 9(a) “take” prohibitions for endangered species, and directs the agency to issue regulations it considers necessary and advisable for the conservation of the species. On June 28, 2005, as part of the final listing determinations for 16 West Coast salmon ESUs (70 FR 37160), we amended and streamlined the previously promulgated 4(d) protective regulations for threatened salmon and steelhead. (The reader is referred to the June 2005 final rule for information on the specific changes promulgated).
        The amended June 2005 4(d) rule applies to the eight steelhead-only ESUs currently listed as threatened under the ESA. Were we to apply the DPS Policy, the amended 4(d) rule would apply to eight of the steelhead DPSs under consideration: the South-Central California, Central California Coast, California Central Valley, Northern California, Upper Willamette River, Lower Columbia River, Middle Columbia River, and Snake River Basin steelhead DPSs. We would not make any changes in the protective regulations for these proposed threatened steelhead DPSs.

        The Upper Columbia River steelhead ESU is currently listed as endangered and subject to the section 9(a) take prohibitions. As part of the June 2004 proposed listing determinations, we proposed to list the Upper Columbia River O. mykiss ESU as threatened, and to extend to it the amended 4(d) protective regulations for threatened species (69 FR 33102; June 14, 2004). Were we to apply the DPS Policy and list an Upper Columbia River steelhead DPS as threatened, we would extend to it the June 2005 amended 4(d) protective regulations. We believe that extending the amended 4(d) protective regulations would be necessary and advisable for the conservation of the steelhead in the Upper Columbia River. Such an extension of the 4(d) protective regulations would result in a reduction of the regulatory burden as the various 4(d) limits were not previously available for activities affecting the endangered Upper Columbia River steelhead ESU.
        In the June 2005 amendments to the 4(d) protective regulations we amended the 4(d) limit that provides a temporary exemption for ongoing research and enhancement activities with pending applications (limit § 223.203(b)(2)). The existing deadline associated with this limit will expire December 28, 2005. We believe that ongoing research and enhancement activities that are important to the conservation and recovery of listed salmon and steelhead should not be interrupted. Were we to apply the DPS Policy and list nine steelhead-only DPSs as threatened, we would amend limit § 223.203(b)(2) to again provide a temporary exemption for ongoing research and enhancement activities affecting the subject steelhead DPSs.
        Information Solicited

        After considering information provided by the FWS and several public commenters, we have reconsidered the preliminary decision to apply the ESU Policy to these stocks and seek comment on the proposed application of the DPS Policy to the delineation of O. mykiss DPSs. To ensure that the final action resulting from the proposed rule to list 10 species of West Coast O. mykiss will be as accurate and effective as possible, and informed by the best available scientific and commercial information, we are re-opening the public comment period to solicit additional information, comments, and suggestions from the public, other governmental agencies, the scientific community, industry, and any other interested parties. We are particularly interested in receiving comment on the alternative approach to delineate and list steelhead-only DPSs of O. mykiss. Specifically, we seek comment on: the use of the DPS Policy as the basis for listing determinations with respect to O. mykiss; our proposed determination under the joint DPS Policy that the proposed steelhead DPSs are discrete from other such population groups of O. mykiss, and within these proposed DPSs that the anadromous and resident life forms are discrete and would not warrant delineation within the same DPS; our proposed determination under the DPS Policy that the proposed steelhead DPSs are significant to the O. mykiss species; our proposed conclusion that the BRT's risk assessments for O. mykiss ESUs directly inform the assessment of extinction risk for steelhead DPSs; and the proposed ESA listing determinations for the steelhead DPSs under consideration. Additionally, we seek comment on the clarifying changes to the proposed Central California Coast and Northern California steelhead DPSs.
        References

        A complete list of all references cited herein is available upon request (see ADDRESSES), or can be obtained from the Internet at: http://www.nwr.noaa.gov.

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

          Dated: November 1, 2005.
          James W. Balsiger,
          Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 05-22043 Filed 11-3-05; 8:45 am]
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