        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R2-ES-2010-0022]
        [MO 92210-0-0008]

        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List a Stonefly (Isoperla jewetti) and a Mayfly (Fallceon eatoni) as Threatened or Endangered with Critical Habitat

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of 90-day petition finding.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list a stonefly (Isoperla jewetti) and a mayfly (Fallceon eatoni) as threatened or endangered under the Endangered Species Act of 1973, as amended. Based on our review, we find that the petition does not present substantial information indicating that listing either of the species may be warranted at this time. However, we ask the public to submit to us any new information that becomes available concerning the status of, or threats to, the stonefly or the mayfly or their habitat at any time.

          DATES:
          The finding announced in this document was made on April 6, 2010.

          ADDRESSES:
          This finding is available on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2010-0022. Supporting documentation we used in preparing this finding is available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Southwest Regional Ecological Services Office, 500 Gold Avenue SW, Albuquerque, NM 87102. Please submit any new information, materials, comments, or questions concerning this finding to the above address.

          FOR FURTHER INFORMATION CONTACT:
          Nancy Gloman, Assistant Regional Director, Southwest Regional Ecological Services Office; telephone 505/248-6920; facsimile 505/248-6788. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Background

        Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that a petitioned action may be warranted. We base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise readily available in our files. The Act requires that, to the maximum extent practicable, we make this finding within 90 days of our receipt of the petition, and publish our notice of this finding promptly in the Federal Register.
        Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, the Act requires that we promptly review the status of the species (status review), which is subsequently summarized in our 12-month finding.
        Petition History

        On June 25, 2007, we received a formal petition dated June 18, 2007, from Forest Guardians (now WildEarth Guardians), requesting that we, the U.S. Fish and Wildlife Service (Service), do the following: (1) Consider all full species in our Southwest Region ranked as G1 or G1G2 by the organization NatureServe, except those that are currently listed, are proposed for listing, or are candidates for listing; and (2) list each species under the Act as either endangered or threatened with critical habitat. The petition stated that it was incorporating by reference all analyses, references, and documentation provided by NatureServe in its online database at http://www.natureserve.org/. The petition clearly identified itself as a petition and included the appropriate identification information, as required in 50 CFR 424.14(a). In a July 11, 2007, letter to petitioner, we acknowledged receipt of the petition and stated that the petition was under review by staff in our Southwest Regional Office.
        We received a second petition, dated June 12, 2008, from WildEarth Guardians on June 18, 2008, requesting emergency listing of 32 species under the Act, including this stonefly and mayfly. We provided a response to this petition on July 22, 2008, indicating that we had reviewed the information presented in the petition and the immediacy of possible threats, and had determined that issuing an emergency regulation temporarily listing the species under section 4(b)(7) of the Act was not warranted. We also noted that we would continue to review these species through the petition process.
        On March 19, 2008, WildEarth Guardians filed a complaint alleging that the Service failed to comply with its mandatory duty to make a preliminary 90-day finding on the June 18, 2007, petition to list 475 southwestern species. We subsequently published an initial 90-day finding for 270 of the 475 petitioned species on January 6, 2009, concluding that the petition did not present substantial information that listing of those species may be warranted (74 FR 419). The stonefly and mayfly were included in the January 6, 2009, finding with the conclusion that the petition did not present substantial information indicating that listing may be warranted.
         On May 26, 2009, and May 12, 2009, WildEarth Guardians filed complaints challenging the negative 90-day findings for the stonefly and mayfly, respectively. We agreed pursuant to a stipulated settlement agreement to reassess the petition with respect to the stonefly and mayfly and issue new 90-day findings. This finding fulfills our obligations under the petition.
        Evaluation of Information for this Finding
        Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. We determine whether a species is an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.
        In making this 90-day finding, we evaluated whether information regarding threats to the stonefly and the mayfly, as presented in the June 18, 2007, and June 12, 2008, petitions and other information in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below. For each species, we fully evaluated all information available to us through the NatureServe website, information cited in NatureServe, and other information readily available in our files.
        We followed regulations at 50 CFR 424.14(b) in evaluating the information presented in the petitions. Paragraph (b)(1) of that section provides that the Service must consider whether the petition has presented substantial information indicating to a reasonable person that the petitioned action may be warranted. To determine that the species may warrant listing as Threatened or Endangered under the Act, as requested by the petitioners, the petition must present substantial information indicating that the species may be at risk of extinction now or in the foreseeable future.
        Stonefly (no common name) (Isoperla jewetti)

        This stonefly is reported from three sites in Texas, Colorado, and New Mexico (NatureServe 2007). The species was originally described from specimens collected in 1939 in El Paso County, Texas (NatureServe 2007). A single specimen was collected in 1938 in Huerfano County, Colorado (NatureServe 2007). NatureServe (2007) notes that no other specimens have been documented from either of these sites, despite repeated survey efforts, although the information cited in NatureServe (2007) only discussed additional survey efforts at the Texas site. Immature specimens were collected at a third site in 1978 and 1980 from the Rio Grande, upstream from Radium Springs, Dona Ana County, New Mexico (Jacobi et al. 2005).

        The petitioners claim that agriculture is a threat to the stonefly; however, the mechanism of agricultural impact is unclear from the petition and information presented by the petitioner. The petitioners state that the stonefly is threatened by “habitat conversion to agriculture,” but provide no citation nor support for this statement. NatureServe (2007) indicates that the El Paso site “has been completely destroyed by agriculture,” but again provides no citations nor support for this statement. Szczythoko and Stewart (1979), referenced in NatureServe (2007), indicate that pesticides, often associated with agriculture, were used heavily in irrigation ditches and canals in the area and may have led to extirpation of this population. However, Jacobi et al. (2005) indicate more survey work is needed to verify that the El Paso population has in fact been extirpated. Concerning the population near Radium Springs, New Mexico, Jacobi et al. (2005) note that the site is in a highly regulated river downstream from concentrated agriculture. Jacobi et al.
          (2005) provide no additional discussion as to whether they interpret occurrence in a regulated river or proximity to agriculture to be a threat to this species. No information regarding any threats to the site in Colorado was presented.
        The petitioners cite the New Mexico Department of Game and Fish's (NMDGF) Comprehensive Wildlife Conservation Strategy for New Mexico. The conservation strategy identifies Species of Greatest Conservation Need (SGCN) and identifies conservation actions intended to conserve the species and their habitats. The conservation strategy states that, “New Mexico's SGCN are species that are indicative of the diversity and health of the State's wildlife that are associated with key habitats, including low and declining populations and species of high recreational, economic, or charismatic value (NMDGF 2005).” The petitioners claim that the stonefly's inclusion in this list of SGCN is evidence that the species meets the definition of a threatened species under the Act. The conservation strategy notes that the specific factors influencing the integrity of this species are “hydrologic modification, streamflow regulations and manipulation, water quality (NMDGF 2005);” however, they provide no citations nor explanation for how these factors may have affected or may be affecting the species or its habitat. In fact, the conservation strategy acknowledges multiple information gaps including that the “life history of most of the SGCN, including distribution, abundance, status and trends, habitat requirements, and movement information is poorly understood (NMDGF 2005).”
        In considering what factors (e.g., agricultural impacts, water issues) might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that may cause actual impacts to the species. If there is exposure to a factor, but no response is observed, or only a positive response is observed, that factor is not considered to be a threat. If there is exposure and the species responds negatively, the factor is considered to be a threat to some degree, and we then attempt to determine how significant a threat it may be. The mere identification of factors that could affect a species negatively is not sufficient to allow us to find that listing under the Act may be appropriate; we interpret the Act to require that the petition include information that these factors are likely operative threats that act on the species to the point that the species may meet the definition of endangered or threatened under the Act. We have determined that the information reviewed concerning agricultural impacts and water issues does not meet the substantial-information standard. We do not consider the assertion of possible extirpation of a historical site due to the past use of pesticides to constitute a current or future threat to the species as a whole, because no information was provided to suggest that the pesticide threat is still affecting the species or is likely to do so in the future. This is particularly so given the conclusory nature of the reference to pesticides (i.e., there was no indication of what agricultural practices the pesticide use was tied to, what pesticides were used, how the pesticides got to the habitat in question, or how they may have affected the species or its habitat). Presentation of some information along these lines would have allowed the Service to evaluate the likelihood that the threat was continuing or was likely to occur in the future. Similarly, we do not consider the information presented concerning water issues to be significant because there is no information to indicate how these factors may be affecting the species and its habitat or are expected to affect the species and its habitat in the future.
        Szczythoko and Stewart (1979), cited in NatureServe (2007), note that the stonefly is a rare species. The petitioners assert that, given the restricted known occurrence, a single event (e.g., drought, flood, habitat destruction, pollution, exotic species), could result in extinction. However, in order to determine that there is substantial information that a species may be endangered or threatened, we have to determine that the species actually may be subject to threats (such as the single events listed above). Those threats may be based on environmental or biological factors. In this case, we have no substantial information on threats that we can link to the status of the species in order to make a substantial finding.
        When determining whether a species may warrant listing under the Act, it is important to distinguish between the mere presence of threats either now or in the foreseeable future, and the susceptibility of a species to those threats, in order to determine whether those threats may likely impact the species and potentially cause it to be in danger of extinction now or in the foreseeable future. Because rare species may be vulnerable to single event occurrences, as suggested above, it is important to have information on how likely it is such an event may occur (such as referencing historical frequency of that event), whether the specific event might impact the species (for example, whether flooding would actually impact the stonefly), what form that impact would take and by what mechanism it might affect the species (in other words, what specific life history function, habitat requirement, or other need of the species might be impacted and how), and whether the possible impact would likely result in a significant threat to the species (to what extent might the event be a negative impact on the species). In order to determine that there is substantial information that the species may be in danger of extinction now or in the foreseeable future due to the above factors, available information should be specific to the species and should reasonably suggest that these factors may be operative threats that act on the species to the point that it may warrant protection under the Act. Broad statements about a generalized threat to rare species do not constitute substantial information that listing may be warranted. Rather, to raise a substantial question as to whether a species may be threatened with extinction now or in the foreseeable future, information specific to the species and situation (such as life-history characteristics and measures of rarity) should be linked to potential threats. It is not sufficient to say that because a species is rare it is threatened by general stochastic events such as natural catastrophes. There must be some likely stressor acting on the species or its habitat that may affect a species' status such that the species may be threatened now or within the foreseeable future.

        Information on a species' rarity is relevant to the conservation status of a species. Generally speaking, a species that has a geographically restricted range is likely to be more susceptible to environmental threats (e.g., fire, flood, drought, human land use), should they occur, than a species that is not rare because one fire or flood could affect a larger total percentage of the range of a rare species than of a widespread species. However, we have no substantial information in this case to evaluate whether any environmental threats are currently acting upon this potentially rare species in a negative way, or are reasonably likely to act on it in the future. Stochastic threats (e.g., catastrophic fire and flood) are unpredictable by nature; however, there must be some information to indicate that the habitats are at least susceptible to catastrophic fire, flood, etc., and that the species would be negatively affected by those events. The fact that a rare species is potentially vulnerable to stochastic processes does not necessarily mean that it is reasonably likely to experience, or have its status affected by, a given stochastic process within timescales that are meaningful for under the Act.
        A species that has always been rare, yet continues to survive, could be well-equipped to continue to exist into the future. Many naturally rare species have persisted for long periods within small geographic areas, and many naturally rare species exhibit traits that allow them to persist despite their small population sizes. Consequently, that fact that a species is rare does not necessarily indicate that it may be in danger of extinction in the foreseeable future.
        The petitioner does not provide information to indicate that the range or abundance of the stonefly has been significantly curtailed. In other words, we do not know if the species has always been rare or if it was once more widespread. There are many features of a species' biology, ecology, and habitat that will modify its vulnerability to each threat such as the life history, population structure, geographic location, and characteristics of its local landscape. Whether a given rare species is affected by environmental or biological factors, and the magnitude of the effect of these factors on the species' ability to persist into the foreseeable future, is species- and context-specific. The petitioners have not presented even minimal information about the biology and ecology of the species to indicate that there may be any substantial genetic or demographic impacts to this potentially rare species.
        We do not find that rarity alone, without corroborating information regarding threats, meets the substantial information threshold indicating that the species may warrant listing. In the absence of information identifying threats to the species and linking those threats to the rarity of the species, the Service does not consider rarity alone to be a threat. As noted above, a species may be determined to be an endangered or threatened species due to one or more of the five factors used to evaluate threats as described in section 4(a)(1) of the Act. We do not find substantial information regarding threats to the stonefly under any of the five factors.
        Based on our evaluation of the information provided in the petition, we have determined that the petition does not present substantial information to indicate that listing the stonefly may be warranted.
        Mayfly (no common name) (Fallceon eatoni)

        This mayfly was originally known from an 1892 collection from northern Sonora, Mexico (McCafferty 2006). No other occurrence was recorded until a single specimen was identified as Fallceon eatoni from among various specimens of other species originally collected in Salt River Canyon, Gila County, Arizona in 2005 (McCafferty 2006). An additional occurrence from 1969 was reported recently in Cottonwood Canyon in the San Bernardino Mountains in Riverside County, California (Meyer and McCafferty 2008).
        The petitioners discuss Arizona's Comprehensive Wildlife Conservation Strategy (Arizona Game and Fish Department 2005) and claim that the species is threatened by inadequate regulatory mechanisms because the mayfly is not included in the conservation strategy. However, there must first be a potential threat acting on the species that requires adequate regulation in order to claim that regulation of that potential threat is inadequate. We do not consider the information presented concerning inadequate regulatory mechanisms to be substantial information indicating that the mayfly may warrant listing.
        The petitioners claim that the mayfly is vulnerable to extinction due to its known occurrence at only one site. The petitioners assert that, given the restricted known occurrence, a single event (e.g., drought, flood, habitat destruction, pollution, exotic species), could result in extinction. McCafferty (2006), cited in NatureServe (2007), notes that, “Because of possible low numbers and restricted distribution, it may be considered a species of environmental concern.” However, in our assessment of threats, we consider whether a species might be rare and whether rarity might make it more vulnerable to threats. In order to determine that there is substantial information that a species may be endangered or threatened, we have to determine that the species actually may be subject to threats (such as the single events listed above). Those threats may be based on environmental or biological factors. In this case, we have no substantial information on threats that we can link to the status of the species in order to make a substantial finding.
        When determining whether a species may warrant listing under the Act, it is important to distinguish between the mere presence of threats either now or in the foreseeable future, and the susceptibility of a species to those threats, in order to determine whether those threats may likely impact the species and potentially cause it to be in danger of extinction now or in the foreseeable future. Because rare species may be vulnerable to single event occurrences, as suggested above, it is important to have information on how likely it is such an event may occur (such as referencing historical frequency of that event), whether the specific event might impact the species (for example, whether flooding would actually impact the mayfly), what form that impact would take and by what mechanism it might affect the species (in other words, what specific life history function, habitat requirement, or other need of the species might be impacted and how), and whether the possible impact would likely result in a significant threat to the species (to what extent might the event be a negative impact on the species). In order to determine that there is substantial information that the species may be in danger of extinction now or in the foreseeable future due to the above factors, available information should be specific to the species and should reasonably suggest that these factors may be operative threats that act on the species to the point that it may warrant protection under the Act. Broad statements about a generalized threat to rare species do not constitute substantial information that listing may be warranted. Rather, to raise a substantial question as to whether a species may be threatened with extinction now or in the foreseeable future, information specific to the species and situation (such as life-history characteristics and measures of rarity) should be linked to potential threats. It is not sufficient to say that because a species is rare it is threatened by general stochastic events such as natural catastrophes. There must be some likely stressor acting on the species or its habitat that may affect a species' status such that the species may be threatened now or within the foreseeable future.

        Information on a species' rarity is relevant to the conservation status of a species because small populations are generally at greater risk of extinction than are large populations. Generally speaking, a species that is rare is likely to be more susceptible to environmental threats (e.g., fire, flood, drought, human land use), should they occur, than a species that is not rare because one fire or flood could affect a larger total percentage of the range of a rare species than of a widespread species. However, we have no substantial information in this case to evaluate whether any environmental threats are currently acting upon this potentially rare species in a negative way, or are reasonably likely to act on it in the future. Stochastic threats (e.g., catastrophic fire and flood) are unpredictable by nature; however, there must be some information to indicate that the habitats are at least susceptible to catastrophic fire, flood, etc. and that the species would be negatively affected by those events. The fact that a rare species is potentially vulnerable to stochastic processes does not necessarily mean that it is reasonably likely to experience, or have its status affected by, a given stochastic process within timescales that are meaningful under the Act.
        A species that has always been rare, yet continues to survive, could be well-equipped to continue to exist into the future. Many naturally rare species have persisted for long periods within small geographic areas, and many naturally rare species exhibit traits that allow them to persist despite their small population sizes. Consequently, the fact that a species is rare does not necessarily indicate that it may be in danger of extinction in the foreseeable future.
        The petitioner does not provide information to indicate that the range or abundance of the mayfly has been significantly curtailed. In other words, we do not know if the species has always been rare or if it was once more widespread. There are many features of a species' biology, ecology, and habitat that will modify its vulnerability to each threat such as the life history, population structure, geographic location, and characteristics of its local landscape. Whether a given rare species is affected by environmental or biological factors, and the magnitude of the effect of these factors on the species' ability to persist into the foreseeable future, is species- and context-specific. The petitioners have not presented even minimal information about the biology and ecology of the species to indicate that there may be any substantial genetic or demographic impacts to this potentially rare species.
        We do not find that rarity alone, without corroborating information regarding threats, meets the substantial information threshold indicating that the species may warrant listing. In the absence of information identifying threats to the species and linking those threats to the rarity of the species, the Service does not consider rarity alone to be a threat. As noted above, a species may be determined to be an endangered or threatened species due to one or more of the five factors used to evaluate threats as described in section 4(a)(1) of the Act. We do not find substantial information regarding threats to the mayfly under any of the five factors.
        Based on our evaluation of the information provided in the petition, we have determined that the petition does not present substantial information to indicate that listing the mayfly may be warranted.
        Finding
        We reviewed and evaluated information in the petition and the literature cited in the petition that was readily available on the Internet and in local libraries. We also reviewed reliable information readily available in our files. On the basis of our review under section 4(b)(3)(A) of the Act, we have determined that the petition does not present substantial scientific or commercial information indicating that listing may be warranted for the stonefly or for the mayfly.
        References Cited

        A complete list of references cited is available on the Internet at Docket No. FWS-R2-ES-2010-0020 at http://www.regulations.gov and upon request from the Southwest Regional Ecological Services Office (see ADDRESSES).
        Author

        The primary authors of this document are the staff members of the Southwest Regional Ecological Services Offices (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: March 25, 2010.
          Jeffrey L. Underwood,
          Acting Director, Fish and Wildlife Service.

      [FR Doc. 2010-7550 Filed 4-5-10; 8:45 am]
      BILLING CODE 4310-55-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 300
        RIN 0648-BC44
        [Docket No. 120814337-2337-01]
        International Fisheries; Pacific Tuna Fisheries; Fishing Restrictions in the Eastern Pacific Ocean

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes regulations under the Tuna Conventions Act to implement Resolution C-12-09 of the Inter-American Tropical Tuna Commission (IATTC) by establishing limits on commercial retention of bluefin tuna by U.S. fishing vessels operating in the Eastern Pacific Ocean in 2012 and 2013. This action is necessary for the United States to satisfy its obligations as a member of the IATTC and to reduce overfishing of the stock.

          DATES:
          Comments must be submitted in writing by January 11, 2013. A public hearing will be held at 1 p.m. to 4 p.m. PDT, January 11, 2013, in Long Beach, CA.

          ADDRESSES:

          You may submit comments on this document, identified by NOAA-NMFS-2012-0172, by any of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal: http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, first click the “submit a comment” icon, then enter NOAA-NMFS-2012-0172 in the keyword search. Locate the document you wish to comment on from the resulting list and click on the “Submit a Comment” icon on the right of that line.
          • Mail: Submit written comments to Heidi Taylor, NMFS Southwest Regional Office, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802. Include the identifier “NOAA-NMFS-2012-0172” in the comments.
          • Fax: 562-980-4047; Attn: Heidi Taylor.
          • Public hearing: The public is welcome to attend a public hearing and offer comments on this rule on January 11, 2013 from 1 p.m. 4 p.m. at 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802. The public may also participate in the public hearing via conference line: 1-888-760-6181; participant passcode: #7600181.

            Instructions: Comments must be submitted by one of the above methods to ensure they are received, documented, and considered by NMFS. 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. All comments received are a 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.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will only be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats.

          Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS SWR and by email to OIRA_Submission@omb.eop.gov, or faxed to (202) 395-7285. Copies of the draft Regulatory Impact Review (RIR) and other supporting documents are available at http://swr.nmfs.noaa.gov/.

          FOR FURTHER INFORMATION CONTACT:
          Heidi Taylor, NMFS SWR, 562-980-4039.

        SUPPLEMENTARY INFORMATION:
        Background on the IATTC

        The United States is a member of the IATTC, which was established under the 1949 Convention for the Establishment of an Inter-American Tropical Tuna Commission. The full text of the 1949 Convention is available at: http://www.iattc.org/PDFFiles/IATTC_convention_1949.pdf. The IATTC was established to provide an international arrangement to ensure the effective international conservation and management of highly migratory species of fish in the Convention Area (defined as the waters of the eastern Pacific Ocean (EPO)). Since 1998, conservation resolutions implemented within the IATTC have further defined the Convention Area as the area bounded by the coast of the Americas, the 50° N. and 50° S. parallels, and the 150° W. meridian. The IATTC has maintained a scientific research and fishery monitoring program for many years, and regularly assesses the status of tuna and billfish stocks in the EPO to determine appropriate harvest limits or other measures to prevent overexploitation of these stocks and to promote viable fisheries. Current IATTC membership includes: Belize, Canada, China, Chinese Taipei (Taiwan), Colombia, Costa Rica, Ecuador, El Salvador, the European Union, France, Guatemala, Japan, Kiribati, the Republic of Korea, Mexico, Nicaragua, Panama, Peru, the United States, Vanuatu, and Venezuela. Bolivia and the Cook Islands are cooperating non-members.
        International Obligations of the United States Under the Convention
        As a Contracting Party to the 1949 Convention and a member of the IATTC, the United States is legally bound to implement the decisions of the IATTC. The Tuna Conventions Act (16 U.S.C. 951-962) directs the Secretary of Commerce, after approval by the Secretary of State, to promulgate such regulations as may be necessary to implement recommendations adopted by the IATTC. The authority to promulgate such regulations has been delegated to NMFS.
        IATTC Decisions in 2012

        At its 83rd Meeting, in June 2012, the IATTC adopted by consensus Resolution C-12-09, Conservation and Management Measures for Bluefin Tuna in the EPO. All active resolutions and recommendations of the IATTC are available on the following Web site: http://iattc.org/ResolutionsActiveENG.htm.

        The main objective of Resolution C-12-09 is to conserve Pacific bluefin tuna (Thunnus orientalis) by establishing limits on the commercial catches of in the EPO. Before Resolution C-12-09, the IATTC had not adopted harvest limits for Pacific bluefin tuna in the EPO. In particular, the IATTC recognizes the need to reduce the mortality of juvenile Pacific bluefin tuna. The IATTC emphasizes that the measures in Resolution C-12-09 are intended as an interim means for assuring viability of the Pacific bluefin tuna resource. Future conservation measures should be based in part on development of future scientific information and advice of the International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean and the IATTC scientific staff. Table 1 below shows the United States commercial catch of Pacific bluefin tuna for the years 1999 to 2009 in the EPO. At this time, landings in 2010 cannot be reported due to data confidentiality.

          Table 1—United States Commercial Catch of Pacific Bluefin Tuna in the EPO
          [In metric tons]

            Year
            Pacific bluefin tuna catch
              (in metric tons)

            1999
            186

            2000
            313

            2001
            196

            2002
            11

            2003
            36

            2004
            10

            2005
            207

            2006
            1

            2007
            45

            2008
            1

            2009
            415

            2010

          Source: PacFIN, extracted Aug. 16, 2011.

        In 2010, the Western and Central Pacific Fisheries Commission (WCPFC) adopted conservation and management measures for Pacific bluefin tuna to ensure that the current level of fishing mortality rate is not increased. Resolution C-12-09 complements action taken by WCPFC in 2010 that set effort quotas in the western central Pacific Ocean. The combination of Resolution C-12-09 and the WCPFC effort quotas are an important step for reducing the overfishing of bluefin tuna. In 2011, NMFS determined overfishing is occurring on Pacific bluefin tuna based on stock assessment results of the International Scientific Committee (76 FR 28422 (May 17, 2011)). NMFS recommended that domestic and international actions should be developed to end overfishing and rebuild the affected stock.
        Proposed Action
        NMFS is proposing to implement domestically Resolution C-12-09, which provides for the conservation and management of Pacific bluefin tuna in the EPO through the following methods: retention of bluefin tuna by all United States commercial fishing vessels in the EPO shall be prohibited (i) for the remainder of 2012 when 500 metric tons has been harvested by the United States commercial fishing vessels, and (ii) for the remainder of 2013 when 10,000 metric tons has been harvested by the commercial fishing vessels of all countries in 2012 and 2013 combined. The 2013 prohibition will not be effective unless and until the annual commercial harvest of Pacific bluefin tuna by the United States fleet has reached 500 metric tons.
        To clarify, the United States commercial fishery may catch more than the 500 metric tons in 2013, provided the 10,000 (2012 and 2013 combined) metric ton limit by the international fleet is not reached. However, if the 10,000 metric ton limit is reached, then the United States commercial fishery may catch up to a total of 500 metric tons of Pacific bluefin tuna.
        Announcement of the Limit Being Reached

        To help ensure that the total catch of Pacific bluefin tuna in the EPO does not exceed the catch limit for each year, NMFS will report United States catch to the IATTC Director on a monthly basis. The IATTC Director, in turn will communicate on a regular basis the current catch levels and will inform the members of the IATTC when the total annual catch limit is reached. If NMFS determines, based on the information provided by the IATTC Director, that the applicable limit is imminent by a specific future date in that year, NMFS will publish a notice in the Federal Register announcing that specific restrictions will be effective on that specific future date until the end of the calendar year. Additionally, if the United States commercial fishing fleet has already caught 500 metric tons or more of Pacific bluefin tuna in 2012 or 2013 and the overall catch limit is reached, NMFS will publish a notice in the Federal Register announcing that restrictions will be effective immediately through the end of the calendar year. Under the authority of the Tuna Convention Act, fishery management resolutions made by the IATTC and approved by the Department of State will be promulgated in the Federal Register. This includes necessary additional notifications to inform the public on an action that may impact the United States commercial fishing fleet. Specifically, 50 CFR 300.20, which implements the Tuna Convention Act, states the following:
        “The regulations in this subpart are issued under the authority of the Tuna Conventions Act of 1950 (Act). The regulations implement recommendations of the Inter-American Tropical Tuna Commission (IATTC) for the conservation and management of highly migratory fish resources in the Eastern Tropical Pacific Ocean so far as they affect vessels and persons subject to the jurisdiction of the United States.”
        NMFS will also endeavor to make publicly available, such as on a Web site, regularly updated estimates and/or forecasts of Pacific bluefin tuna catches in order to help fishermen plan for the possibility of the limit being reached.
        The commercial catch limitation would go into effect in 2012, and remain in effect through 2013 unless the IATTC decides to remove or modify the measure in 2013. NMFS expects controls on fishing for Pacific bluefin tuna in the ETP to be included by the IATTC in future resolutions.
        Classification
        The NMFS Assistant Administrator has determined that this proposed rule is consistent with the Tuna Conventions Act of 1950 and other applicable laws, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the (RFA), 5 U.S.C. section 601 note. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).
        The proposed rule would apply to owners and operators of United States commercial fishing vessels that catch Pacific bluefin tuna in the IATTC Convention Area. It is important to note that no United States commercial vessels specialize in harvesting bluefin tuna in the EPO. Bluefin tuna is caught commercially, on an irregular basis; by small coastal purse seine vessels operating in the Southern California Bight with limited additional landings by the drift gillnet fleet that targets swordfish and thresher shark. The Pacific bluefin commercial catch limitations are not expected to result in a closure of the United States fishery because catches from recent years have not reached the 500 metric tons. The last year the United States exceeded 500 metric tons was 1998. Refer to Table 1 (found above) for United States commercial catch of bluefin in the EPO for years 1999 to 2010.
        The United States West Coast catch of bluefin tuna represents a relatively minor component of the overall EPO tuna catch. The number of purse seine vessels that have landed tuna in California averaged 197 annually between 1981-90, but declined to an annual average of 11 in the 2001-2010 period. The decline in the number of domestic vessels is correlated in part with the relocation of large cannery operations. Currently there are no canneries functioning as primary offloaders of tuna in California.
        As part of the IRFA, the proposed rule impacts to small entities in the IATTC Convention Area were analyzed. The United States West Coast vessels (all gear types) operating in the EPO averaged annual landings of 113 metric tons of PBF during 2000-2011. The annual average catch of PBF had an ex-vessel value of $175,892 (unadjusted for inflation) during 2000-2011. About 66 percent of this value was attributed to small coastal pelagic purse seiners that opportunistically target bluefin tuna in EPO, thus any bluefin tuna conservation measures primarily affect these vessels. Small purse seiners averaged 98 metric tons of bluefin tuna landings per year, with a range from zero to 411 metric tons per year during 2000-2011. There were up to six small purse seiners opportunistically targeting bluefin tuna in any one year during 2000-2011. Bluefin tuna is also incidentally caught and landed by large mesh drift gillnet vessels in small quantity. The landings of bluefin tuna by longline and albacore surface hook-and-line vessels operating in EPO have been negligible in recent years.

        For the vessels (all gear types) that caught bluefin tuna, the share of revenue from bluefin tuna relative to the revenues from all species ranged from 0.11 percent to 6.96 percent during 2000-2011. The share of revenue from bluefin tuna averaged 2.42 percent relative to the revenue from the portfolio of all species for the vessels that landed bluefin tuna during 2000-2011. Given the number of active vessels during that period (average 45 boats per year of all gear types), annual revenue per boat from the bluefin tuna averaged $3,866.
        The described bluefin tuna catch limit for the United States in the IATTC Convention Area will remain in force for 2012 and 2013. Approximately two small purse seiners per year on average have the potential to be affected by this proposed rule when adopted. All fisheries, whether they opportunistically target bluefin tuna or catch it incidentally, would be able to fish in the normal manner without any material changes in operations or associated revenues. The proposed rule is not expected to result in any change in fishing operations or any significant reduction in associated revenues. The economic effect of bluefin tuna catch limitation to the United States commercial fleet and small entities from the IATTC Convention Area in EPO will not be significant.
        NMFS compared the effects of the bluefin tuna provisions proposed in this rule to one alternative, which is a no action alternative. Under this alternative, there would be no changes to current regulations to limit United States commercial catches of bluefin tuna in the IATTC Convention Area as stipulated in Resolution C-12-09. Under this alternative, there would be no effects to vessel owners compared to the status quo. Based on recent bluefin tuna catch data and expected future trends, it is unlikely that there would be any benefit from not implementing the bluefin tuna provisions; however, the United States would not be implementing Resolution C-12-09 and would therefore not be satisfying its international obligations as a member of the IATTC.

          List of Subjects in 50 CFR Part 300
          Administrative practice and procedure, Fish, Fisheries, Fishing, Marine resources, Reporting and recordkeeping requirements, Treaties.

          Dated: December 6, 2012.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, performing the functions and duties of the Assistant Administrator for Fisheries, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 300 is proposed to be amended as follows:

          PART 300—INTERNATIONAL FISHERIES REGULATIONS
          1. The authority citation for 50 CFR part 300, continues to read as follows:

            Authority:
            16 U.S.C. 1801 et seq., 16 U.S.C. 5501 et seq., 16 U.S.C. 2431 et seq., 31 U.S.C. 9701 et seq.

          2. In § 300.24, a new paragraph (u) is added to read as follows:

            § 300.24
            Prohibitions.

            (u) Target or retain Pacific bluefin tuna in the IATTC Convention Area by any United States vessel engaged in commercial fishing after the date specified by the Regional Administrator's notification of closure issued under § 300.25 (h).
            3. In § 300.25, a new paragraph (h) is added to read as follows:

            § 300.25
            Eastern Pacific fisheries management.

            (h) Bluefin tuna commercial catch limits in the eastern Pacific Ocean.

            (1) After the date specified in a notice published by Regional Administrator in the Federal Register, a United States vessel engaged in commercial fishing may not target or retain Bluefin tuna in the Convention Area for the remainder of the calendar year. NMFS will publish such a notice prohibiting further targeting and retention of bluefin tuna on the projected date
            (i) for the remainder of 2012 when the United States commercial vessels in the Convention Area has already met or exceeded 500 metric tons, or
            (ii) for the remainder of 2013 when 10,000 metric tons or more have been harvested by the commercial fishing vessels of all countries in 2012 and 2013 combined. The 2013 prohibition will not be effective unless and until the annual commercial harvest of Pacific bluefin tuna by the United States fleet has reached 500 metric tons.
            (2) [Reserved]

      [FR Doc. 2012-29968 Filed 12-11-12; 8:45 am]
      BILLING CODE 3510-22-P