        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 300 and 600
        [Docket No. 040423129-4129-01; I.D. 041404D]
        RIN 0648-AQ22
        International Fisheries Regulations; Pacific Tuna Fisheries

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes regulations necessary to implement the 1981 Treaty Between the Government of the United States of America and the Government of Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges (Treaty) as authorized by recently passed legislation. The proposed rule would establish vessel marking, recordkeeping, and reporting requirements for U.S. albacore tuna fishing vessel operators and vessel marking and reporting requirements for Canadian albacore tuna fishing vessel operators fishing under the Treaty. The intended effect of this proposed rule is to allow the United States to carry out its obligations under the Treaty by allowing fishing by both U.S. and Canadian vessels as provided for in the Treaty.

          DATES:
          Comments must be submitted by May 17, 2004.

          ADDRESSES:

          Comments on the proposed rule should be sent to Rodney R. McInnis, Acting Administrator, Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802 or by e-mail to the Southwest Region at 0648-AQ22@noaa.gov. Comments may also be submitted by e-mail through the Federal e-Rulemaking portal: http://www.regulations.gov. Include in the subject line of the e-mail comment the following document identifier: 0648-AQ22. Comments also may be submitted by fax to (562) 980-4047. Copies of the environmental assessment/regulatory impact review/initial regulatory flexibility analysis (EA/RIR/IRFA) are available from Svein Fougner at the NMFS address. Comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted in writing to Svein Fougner, Assistant Administrator for Sustainable Fisheries, NMFS, Southwest Region and to David Rostker, OMB, by e-mail at David_Rostker@omb.eop.gov, or by facsimile (fax) to (202) 395-7285.

          FOR FURTHER INFORMATION CONTACT:

          Svein Fougner, Sustainable Fisheries Division, Southwest Region, NMFS, (562) 980-4030; fax: (562) 980-4047; and e-mail: svein.fougner@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        The Treaty, as amended in 2002, establishes a number of obligations of the Parties (the United States and Canada) to control reciprocal fishing in the waters of one Party by vessels of the other Party as well as reciprocal port privileges. The Treaty permits fishing vessels of one Party to fish for albacore tuna in waters under the fisheries jurisdiction of the other Party seaward of 12 nautical miles from the baseline from which the territorial sea is measured (hereafter generally referred to as “waters”). The Treaty originally allowed for unlimited fishing for albacore tuna by vessels of each Party in waters of the other Party. The Treaty was negotiated to allow reciprocal fishing and port calls in selected ports at a time when Canada asserted jurisdiction over highly migratory species such as tuna out to 200 nautical miles from its coastlines, while the U.S. did not recognize or assert a comparable claim to jurisdiction over highly migratory species off its coasts. (U.S. law was subsequently amended to accept jurisdiction by coastal states over highly migratory species in their 200-nautical mile Exclusive Economic Zones.)

        Initially, vessels of both countries regularly fished in each other's waters, but fishing patterns subsequently changed, as albacore were found more frequently in U.S. waters than in Canadian waters. As a result, Canadian vessels continued to fish regularly in U.S. waters most years, while it was comparatively rare for U.S. fishers to fish significantly in Canadian waters. Beginning in 1998, Canada sharply increased its fishing effort in U.S. waters from its historical average of about 75 vessels to 200 or more vessels a year. This was due at least partly to a shift into the albacore industry by displaced Canadian salmon vessels. U.S. fishing in Canadian waters, however, did not increase during this period.
        In 2000, the U.S. albacore fishing industry complained to the Departments of State (DOS) and Commerce that U.S. fishing grounds were overcrowded by the enlarged Canadian fleet fishing in U.S. waters, and that Canadian fishers were receiving disproportionate benefits under the Treaty. Many fishers called for termination of the Treaty if the number of Canadian vessels fishing in U.S. waters was not cut back.
        In response to the U.S. fishing industry request, and after consultation with NMFS and U.S. fishing and seafood processing industries, DOS initiated technical discussions with Canada to develop data on the fishery and share U.S. industry concerns. In early 2001, a negotiating team, led by DOS and including NMFS and industry representatives, entered into negotiations with Canada to amend the Treaty to provide a mechanism for setting a reciprocal limitation on the fishery conducted in each other's waters under the Treaty. The aim of the negotiations was not only to cut back the Canadian fishing effort to acceptable levels, but also to develop a system that could respond to future efforts by each Party to implement domestic and international conservation and management measures for the stock in its own waters. Implementation of such management measures could be difficult if unlimited fishing in each other's waters were permitted under the Treaty. The United States is now implementing a Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP), which includes albacore, and Canada has likewise developed and is implementing such a management plan.
        Agreement to amend the Treaty was reached on April 24, 2002. The U.S. Senate has given its advice and consent to the Treaty amendments, and Congress enacted H.R. 2584 (Pub. L. 108-219) on March 29, 2004, to authorize the Secretary of Commerce to issue regulations to implement the amended Treaty. The President signed H.R. 2584 into law on April 13, 2004, thereby enacting Pub. L. No. 108-219. The amendment to Article 1(b) of the Treaty allows for the United States and Canada to establish a mutually agreed upon fisheries limitation regime applicable to each Party's vessels fishing for albacore in the other Party's waters. Pursuant to that provision, the United States and Canada agreed to an initial limitation regime which is set out in a new Annex C. It is a 3-year regime that reduces the fishing effort each year until a level is reached in year three that is slightly above the pre-1998 average. Annex C also provides for a further reduced level of fishing after the 3-year period if the Parties are not able to reach agreement on a subsequent regime. The structure of the regime and its placement in Annex C provide the mechanism for readjustment of the fishing limitation by agreement by an exchange of diplomatic notes rather than Treaty amendments to more easily accommodate changing conservation and fishery management needs. If necessary, any such changes will be implemented through future rulemaking actions. Article VII of the Treaty provides that any Annex may be amended by executive agreement. The specific actions that are called for under the Treaty and would be implemented through this proposed rule are:
        Vessel Lists
        As under the original Treaty, each Party will provide annually to the other Party a list of its fishing vessels which may fish for albacore tuna in the other Party's waters. The list includes:
        (a) Vessel name;
        (b) Home port;
        (c) A vessel identification marking (number and letter combination) that identifies the flag state of the vessel;
        (d) Fishing vessel registration number, and
        (e) Captain or operator's name, if known.
        Each Party may provide the other Party with additions or deletions to its list at any time. As soon as possible after receipt, the receiving Party shall satisfy itself that the list received from the other Party provides the required information and shall inform the other Party in order to enable the albacore fishery by those vessels to proceed pursuant to the Treaty. A U.S. vessel must be on the list for at least 7 days prior to engaging in fishing under the Treaty. This is intended to ensure that both the U.S. and Canada have equal information as to eligible vessels, and U.S. and Canadian enforcement offices can obtain lists of eligible vessels that are up to date to facilitate enforcement.
        Vessel Marking
        When in the fishing zone of the other Party, each vessel must have its name and vessel identification marking (typically the U.S. Coast Guard documentation number or state registration number), followed by a letter code (U for U.S. vessels and C for Canadian vessels) prominently displayed where they will be clearly visible both from the air and from a surface vessel.
        Hail-in and Hail-out

        To the extent required by either Party, the operator of any albacore fishing vessel must provide the vessel name, vessel identification number, captain or operator's name and the purpose for being in such Party's fishing zone prior to entering and leaving the waters in which fishing is permitted (i.e., waters under the fisheries jurisdiction of the other Party seaward of 12 nautical miles from the baseline from which the territorial sea is measured for the purpose of fishing).
        Recordkeeping
        Operators of vessels of both Parties must keep accurate logbook records of catch and effort while fishing pursuant to the Treaty and must provide to its government statistics and other scientific information on its operations in the fishing zone of the other Party.
        Information Exchange

        Each Party will annually monitor the amount of fishing and the weight of albacore tuna caught by its vessels in waters under the fisheries jurisdiction of the other Party, and will annually provide this information to the other Party. The information will be exchanged by the Parties on an annual basis and at least 30 days prior to the annual consultations (see below). Other specific information to be provided, as well as the forms and procedures for providing such information, will be agreed upon by the two Parties.
        Annual Treaty Consultations
        The United States and Canada will consult annually to:
        (a) Discuss data and information on albacore tuna fisheries exchanged under the Treaty, and
        (b) Exchange information on their respective conservation and management measures for albacore tuna and on implementation of internationally agreed conservation and management measures applicable to the Parties related to fisheries covered under the Treaty.
        Notification of Management Laws and Regulations

        The Parties will also notify one another of the conservation and management laws and regulations applicable to vessels fishing in each other's waters.
        Limitation of Fishing Effort
        Annex C of the Treaty limits the level of fishing that vessels of one Party can conduct in fishing for albacore tuna in the other Party's waters, beginning on June 1 of the first year of implementation of the limitation program. The limit can be exercised in terms of either the maximum number of vessels that can fish under the Treaty for up to 4 months each in a year; or the maximum number of fishing months that vessels can conduct in a year without a limit on the number of vessels that can participate in the year. Each Party would be free to choose the method of application. For purposes of monitoring fleet activity and counting fishing against the limitation, a “vessel fishing month” is defined as any calendar month or part thereof in which a U.S. vessel is in the waters subject to the fisheries jurisdiction of Canada for the purpose of fishing for albacore tuna under the Treaty.
        NMFS has chosen to apply the limit in terms of vessel fishing months. This is administratively the simplest approach and provides maximum flexibility to U.S. vessels to engage in fishing in Canadian waters if the fish are there. Other methods would be more complex as they could require establishing the specific vessels that could participate or limiting vessel participation to a monthly total limit to spread out the fishing opportunity. This is unnecessary given recent years' levels of U.S. fishing in Canadian waters.
        During the first year, the limit on fishing by U.S. vessels in Canadian waters will be 680 vessel fishing months; during the second year, the limit will be 560 vessel fishing months; and during the third year, the limit will be 500 vessel fishing months.
        In the event that, in any year, U.S. fishing effort in Canadian waters is less than the annual maximum set out above, the unused portion of that year's maximum may be carried forward and added to the maximum for any subsequent year, provided that the resulting level of fishing effort in any one year does not exceed the maximum for the preceding year. That is, a “carry over” by year 3 could not be fully applied that year if this would allow more fishing than the year 2 limit.
        It should be noted that the Treaty does not affect rights of U.S. vessels, including fishing vessels, to transit Canadian waters. However, Canadian hail-in requirements will continue to apply to transiting vessels, and with respect to albacore fishing vessels, fishing gear must be stowed in an unfishable condition to prevent the vessel from being considered to be “fishing” under the Treaty.
        Extension or Adjustment of Fishing Limits
        Prior to the expiration of this 3-year effort limitation program, the Parties will consult to consider a new limitation program or extension of this program for 1 or more years. If no agreement is reached by the Parties by the expiration of the program, then Parties may fish in future years at a level no more than 75 percent of the limitation applicable during the last year. Thus, the limits under this provision would be up to 375 vessel months without a limit on the number of vessels that are active, or 94 vessels with up to 4 months fishing by each vessel. However, if there were any carryover available from a previous year, fishing could be permitted up to the limit of year 3 above (125 vessels or 500 fishing months). These limits would apply until a new agreement is reached.
        The intent of this program is to ensure that neither Party receives disproportionate benefits from the fishing opportunities provided by the Treaty and that neither Party's fishermen will be disadvantaged relative to the other Party's fishermen under the Treaty.
        To carry out this agreement, NMFS proposes to establish the following requirements for U.S. albacore fishing vessel owners and operators:
        1. Vessel List. As noted above, the U.S. and Canada exchange lists of vessels eligible to fish under the Treaty. The owner of any albacore fishing vessel who wants that vessel to be on the list of U.S. vessels eligible to fish for albacore tuna in Canadian waters under the Treaty must provide to NMFS the vessel name, the vessel registration number (U.S. Coast Guard documentation number or, if not documented, the state registration number), the home port, and the captain or operator's name. A vessel is not eligible to fish for albacore tuna in Canadian waters if it is not on the U.S. vessel list. This information must be provided not less than 7 days prior to engaging in fishing for albacore tuna in Canadian waters. This will provide time for information to be provided to U.S. and Canadian enforcement and management staff to facilitate vessel tracking and enforce compliance with the Treaty limits. Each list is only valid for a single calendar year.
        2. Vessel Marking. A U.S. vessel eligible to fish for albacore tuna in Canadian waters must be marked with the name and vessel identification marking prominently displayed where they will be clearly visible both from the air and from a surface vessel. The letter “U” must be painted or otherwise securely affixed to the vessel and be positioned at the end of each appearance on the vessel of its U.S. Coast Guard Documentation number (or if not documented, the state registration number) in the same height and size as the numerals.
        Regulations at 50 CFR 660.704 implementing the HMS FMP establish vessel marking size requirements relative to the size of the vessel involved; the U would be the same size as the numerals for each vessel under those regulations.
        3. Logbook Reports. The owner of a U.S. albacore fishing vessel is responsible for ensuring that a logbook of catch and effort covering fishing under the Treaty is maintained and submitted to the Southwest Region, NMFS, within 15 days of the end of the trip if the vessel re-enters U.S. waters or enters the Canadian territorial sea or other Canadian waters in which fishing is not permitted; or within 7 days of landing of fish if the vessel entered the high seas after exiting the Canadian EEZ. NMFS will provide the logbook form upon being advised of the owner's request to be placed on the list of eligible vessels as described above. Regulations at 50 CFR 660.708 establish logbook requirements for fisheries under the HMS FMP; the reporting requirement under this proposed rule complements the HMS FMP rule.
        4. Hail-in/Hail-out Reports. The operator of a U.S. vessel eligible to fish for albacore tuna in Canadian waters may not enter Canadian waters to fish unless he has first contacted appropriate authorities to advise them of this intent. NMFS is contracting for a call-in system to support U.S. reporting requirements. Reports will be acceptable through single sideband radio, landline and cell telephone, fax, and e-mail. NMFS will provide detailed information to U.S. vessel operators of the appropriate times for reporting and the contractor contact points (phone numbers, radio frequencies, and e-mail addresses) to all owners or operators identified on the list of eligible vessels.

        NMFS and the U.S. Coast Guard will use all available means to inform fishers of closures of the fishery in Canadian waters in a timely manner. This will include use of Notice to Mariners, a hotline on current information relative to fishing limits, fax notices, and Internet and Web page notices. A closure notice also will be published in the Federal Register. Other means may be developed with the industry in the future.
        The proposed rule also would add a new § 600.530 to the foreign fishing regulations at 50 CFR part 600, subpart F. This will reinforce Canadian regulations to govern the activity of Canadian vessels and ensure adequate ability to enforce the regulations and prosecute violations.
        The DOS has concurred with issuance of this proposed rule as required by Public Law 108-219.
        Classification

        NMFS prepared an IRFA that describes the economic impact this proposed rule, if adopted, would have on small entities. The IRFA is available from NMFS (see
          ADDRESSES). A summary of the IRFA follows.
        The proposed rule would not likely have significant effects on U.S. vessels that are active in the troll albacore fishery off the West Coast and on the high seas, all of which are considered small entities. About 800 vessels made landings of albacore into U.S. ports or transshipped albacore to foreign ports in 2003, with a total estimated catch of just under 15,000 metric tons (mt). Average annual albacore catches have been about 12,000 mt for the past 10 years. The amount of fishing in Canadian waters has been quite low; NMFS estimates that between 1 and 2 percent of total U.S. fishing effort (estimated at about 25,000 days per year) has been conducted in Canadian waters the past 10 years. The Treaty limitations are not expected to affect either the amount of fishing by U.S. vessels or their albacore catches in future years off the West Coast, in Canadian waters, or on the high seas. There are no catch limits under the Treaty or these implementing regulations. If Canadian fishing in U.S. waters declines through the effort limitation regime, there may be less competition on fishing grounds in U.S. waters, but it does not appear (though it is not certain) that there would be any effects on U.S. vessels' effort or catches or on subsequent revenues and profits in the fishery.

        The principal impacts of the proposed rule are reporting burdens (see following discussion of Paperwork Reduction Act burdens). The monetary cost of these burdens is estimated to be less than $30 per year for any U.S. vessel that participates in fishing under the Treaty.

        NMFS considered the following alternatives to the proposed approach: (a) To establish a U.S. limited entry program by which to carry out the U.S. effort limitation regime using “vessel years” as the operating limit; and (b) to establish monthly effort limits (i.e., one-fifth of the annual limit each month in the months of June through October each year) to implement the effort limitation regime on a vessel month basis. The former would be administratively more complex than the proposed approach. It would require establishing either a lottery by which eligible vessels might be selected or criteria (e.g., prior participation) by which the requisite number of vessels would be identified as being eligible to fish in the year; issuing specific licenses or permits for fishing under the Treaty to those vessels; and then evaluating the effects and effectiveness of the program and possibly refining it the next year.
        The latter would also be more complex and less flexible than the proposed approach. It could support enforcement of the program by ensuring that there would not be an excessive flood of vessels into Canadian waters in any one month. However, it also would increase the potential that the U.S. would not be able to carry out as much fishing as legally permitted under the Treaty, since unused vessel months in one month would not carry over to the following month (which is the practical effect of the proposed approach).
        Thus the proposed action was chosen for administrative ease, maximum flexibility to the fleet, and ability to enforce and administer at relatively low cost.
        Neither of the alternatives (nor the proposed rule) would be likely to substantially affect the fishing effort and catch and revenue of the U.S. albacore fishery. As noted above, U.S. vessels have not fished extensively in Canadian waters for many years, and the U.S. fleet is not expected to fish at levels permitted under the Treaty. Thus the form of the limitation used should not result in changes in fishing effort, catches or revenue.
        The proposed rule establishes reporting burdens subject to the Paperwork Reduction Act (PRA). The vessel marking requirement consists of adding the letter “U” after the vessel marking number required under regulations at 50 CFR 660.704 if the vessel enters Canadian waters. This is estimated to take 5 minutes per vessel. It is expected that all of the U.S. vessels that would fish under the Treaty are subject to the HMS FMP and/or the High Seas Fishing Compliance Act, both of which require vessel marking, and the added cost (adding the letter U) under this proposed rule is minimal. Given the limits of the amended Treaty, the maximum number of times the added burden would occur in the 3 year period is 1,740 vessel crossings, or 580 per year, with a burden of 48.33 hours annualized.

        The proposed rule would require that vessel owners or operators take action each year to be sure that their vessels are on the list of vessels eligible to fish in Canadian waters under the Treaty. This can be done with a 5 minute phone call. Although it is highly unlikely, it is assumed for estimating the reporting burden that 700 vessels will get on the list (this is about 90 percent of the number of vessels that actually landed albacore into a West Coast port in 2003); under this assumption, the total fleet burden is 58.33 hours. It should be noted that there is no cost to get on the list; therefore, it is expected that many will choose to get on the list just in case an opportunity to fish in Canadian waters arises during the year. The proposed rule also will require U.S. vessels to report border crossings to and from Canadian waters. Assuming a round trip for the maximum of 580 vessels (assuming that every vessel fishes only 1 month toward the U.S. limit), and with each call taking an average of 5 minutes, this imposes a burden of 96.67 hours. Finally, the proposed rule would impose a logbook reporting requirement for U.S. vessels fishing under the Treaty in Canadian waters. Under the limits of the Treaty, U.S. vessels will be limited to an average of no more than 580 vessel months per year (over 3 years). Assuming full fishing each month (i.e., up to 30 days per month) and 1 logbook page per day (at 5 minutes per page), the reporting burden will be 2.5 hours per vessel per month or a fleet total of 1450 hours per year. It is estimated that 50 percent of these vessels already participate in a voluntary albacore fishery logbook program, so the net new burden for which PRA approval has been requested is 725 hours.
        Most years there will be much less fishing under the Treaty than the level on which this estimate is based. However, assuming full participation, the total new reporting burden for the fleet is 928.33 hours per year for the first 3 year period of fishing limits. There are no significant capital or equipment costs associated with this reporting burden. NMFS is working with the albacore fishery to evaluate the potential of electronic recordkeeping and reporting for this fishery. This could reduce the collection burden in the future. A PRA clearance request has been submitted to the Office of Management and Budget with this proposed rule.

        Public comment is sought regarding whether these proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility, the accuracy of the burden estimate, ways to enhance the quality, utility, and clarity of the information to be collected, and ways to minimize the burden of the collection of information, including through the use of automated information technology. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted to, Svein Fougner, Assistant Administrator for Sustainable Fisheries, NMFS, Southwest Region (see ADDRESSES) and by e-mail to David_Rostker@omb.eop.gov, or facsimile (fax) to (202) 395-7285.
        Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirement of the PRA, unless that collection of information displays a currently valid OMB control number.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        NMFS conducted a formal Endangered Species Act section 7 consultation on the U.S. troll albacore fishery as it would operate as a component of the fisheries to be managed under the HMS FMP. The resulting Biological Opinion indicated that the fishery is not likely to jeopardize the continued existence of any listed species under NMFS jurisdiction. NMFS also conducted a formal section 7 consultation with the U.S. Fish and Wildlife Service (USFWS) on the U.S. troll albacore fishery as it would operate as a component of the fisheries to be managed under the HMS FMP. The resulting Biological Opinion concluded that the fishery is not likely to jeopardize the continued existence of any listed species under USFWS jurisdiction. The fishery as it would operate under this proposed rule is not expected to differ from the fishery under the HMS FMP. Thus, there are no different impacts expected on ESA-listed species, and no further consultations are necessary.

          List of Subjects
          50 CFR Part 300
          Fisheries, High seas fishing, International agreements, Reporting and recordkeeping requirements, Permits.
          50 CFR Part 600
          Administrative practice and procedure, Confidential business information, Fisheries, Fishing, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Statistics.

          Dated: April 27, 2004.
          Rebecca Lent,
          Deputy Assistant Administrator for Regulatory Programs, 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. A new subpart L is added to read as follows:

            Subpart L—Pacific Albacore Tuna Fisheries

          2. The authority citation for subpart L reads as follows:

            Authority:
            Pub. L. 108-219.

            § 300.170
            Purpose and scope.
            The regulations in this subpart govern fishing by U.S. vessels in waters under the fisheries jurisdiction of Canada pursuant to the 1981 Treaty Between the Government of the United States of America and the Government of Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges as amended in 2002. Regulations governing fishing by Canadian vessels in waters under the fisheries jurisdiction of the United States pursuant to this Treaty as amended in 2002 are found at § 600.530 of chapter VI of this title.

            § 300.171
            Definitions.
            In addition to the definitions in the Magnuson-Stevens Fishery Conservation and Management Act and § 600.10 of Chapter VI of this title, the terms used in this subpart have the following meanings:

              Fishing under the Treaty as amended in 2002 means to engage in fishing for albacore tuna in waters under the fisheries jurisdiction of Canada seaward of 12 nautical miles from the baseline from which the territorial sea is measured.

              Regional Administrator means the Regional Administrator, Southwest Region, NMFS, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213, or a designee.

              Reporting Office means the office designated by the Regional Administrator to take hail-in and hail-out reports from U.S. and Canadian vessel operators.

              Treaty means the 1981 Treaty Between the Government of the United States of America and the Government of Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges as amended in 2002.

            § 300.172
            Vessel list.
            The “vessel list” is the list of U.S. vessels that are authorized to fish under the Treaty as amended in 2002. Only a vessel on the list for at least 7 days may engage in fishing in Canadian waters under the Treaty as amended in 2002. At least 7 (seven) days prior to the first day on which any fishing in Canadian waters may begin, the owner of any U.S. vessel that wishes to be eligible to fish for albacore tuna under the Treaty as amended in 2002 must provide the Regional Administrator or his designee with the vessel name, the owner's name and address, phone number where the owner can be reached, the U.S. Coast Guard documentation number (or State registration number if not documented), and vessel operator (if different from the owner) and his or her address and phone number. NMFS will then place the vessel on the vessel list.

            § 300.173
            Vessel identification.
            A U.S. vessel fishing under the Treaty as amended in 2002 must be marked with its name and vessel identification prominently displayed where they will be clearly visible both from the air and from a surface vessel. Vessel identification means the U.S. Coast Guard Documentation number (or if not documented, the State registration number) followed by the letter U in the same height and size as the numerals. Numerals and the letter U must meet the size requirements of § 660.704 of chapter VI of this title.

            § 300.174
            Logbook reports.
            The owner of any U.S. vessel that fishes for albacore tuna in Canadian waters under the Treaty as amended in 2002 must maintain and submit to the Regional Administrator a logbook of catch and effort of such fishing. The logbook form will be provided to the vessel owner as soon as practicable after the request to be placed on the list of vessels. The logbook must be submitted to the Regional Administrator within 15 days of the end of a trip, regardless of whether the trip ends by reentry to U.S. waters or entry to Canada's territorial sea, other Canadian waters in which fishing is not permitted, or a Canadian port. If the departure is due to exit to the high seas, the vessel operator must submit the logbook within 7 days of its next landing.

            § 300.175
            Hail-in and hail-out reports.

            (a) The operator of any U.S. vessel that wishes to engage in fishing in waters under the fisheries jurisdiction of Canada must file a hail-in report to the Reporting Office prior to engaging in fishing in such waters.
            (b) The operator of a U.S. vessel that has been fishing under the Treaty as amended in 2002 must file a hail-out report to the Reporting Office within 24 hours of departing waters under the fisheries jurisdiction of Canada.

            § 300.176
            Prohibitions.
            It is prohibited for the owner or operator of a U.S. fishing vessel to:
            (a) Engage in fishing in waters under the fisheries jurisdiction of Canada if:
            (1) The vessel has not been on the list of fisheries pursuant to § 300.172 for at least 7 days;
            (2) The vessel is not clearly marked as required under § 300.173;
            (3) The vessel operator has not filed a hail-in report with the Reporting Office as required under § 300.175(a); or
            (4) The Regional Administrator has announced that the U.S. limit on fishing under the Treaty as amended in 2002 has been reached.
            (b) Fail to maintain and submit logbook records of catch and effort statistics as required under § 300.174;
            (c) Fail to report an exit from waters under the fisheries jurisdiction of Canada as required by § 300.175(b).
            For the reasons set out in the preamble, 50 CFR part 600 subpart F is proposed to be amended as follows:

            Subpart F—Foreign Fishing

          3. The authority citation for subpart F continues to read as follows:

            Authority:
            16 U.S.C. 1801 et seq. as amended by Pub. L. 108-219.

          4. A new § 600.530 is added to read as follows:

            § 600.530
            Pacific albacore fishery.
            (a) Purpose and scope. This section regulates fishing by Canadian vessels under the 1981 Treaty Between the Government of the United States of America and the Government of Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges as amended in 2002. Regulations governing fishing by U.S. vessels in waters under the fisheries jurisdiction of the Canada pursuant to this Treaty are found at §§ 300.170-176 of chapter II of this title.
            (b) Definitions.

            In addition to the definitions in the Magnuson-Stevens Fishery Conservation and Management Act and § 600.10, the terms used in this subpart have the following meanings:

              Fishing under the Treaty as amended in 2002 means to engage in fishing for albacore tuna in waters under the fisheries jurisdiction of the United States seaward of 12 nautical miles from the baseline from which the territorial sea is measured.

              Regional Administrator means the Regional Administrator, Southwest Region, NMFS, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213, or a designee.

              Reporting Office means the office designated by the Regional Administrator to take hail-in and hail-out reports from U.S. and Canadian vessel operators.

              Treaty means the 1981 Treaty Between the Government of the United States of America and the Government of Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges as amended in 2002.
            (c) Vessel list. A Canadian vessel is not eligible to fish for albacore in U.S. waters under the Treaty as amended in 2002 unless the vessel is on the list provided to NMFS by the Government of Canada of vessels authorized by Canada to fish under the Treaty as amended in 2002.
            (d) Vessel identification. A Canadian vessel fishing under the Treaty as amended in 2002 must clearly display its Canadian vessel registration number followed by the letter C in the same height and size as the numerals, consistent with Canadian vessel marking requirements.
            (e) Hail-in reports. The operator of a Canadian vessel eligible to fish for albacore in U.S. waters under the Treaty as amended in 2002 must file a hail-in report with the Reporting Office prior to beginning any such fishing.
            (f) Hail-out Reports. The operator of a Canadian vessel that has been fishing in U.S. waters under the Treaty as amended in 2002 must file a hail-out report with the Reporting Office prior to or upon exit from U.S. waters.
            (g) Prohibitions. It is prohibited for the operator of a Canadian vessel to engage in fishing in U.S. waters if the vessel:
            (1) Is not on the vessel list in paragraph (c) of this section;
            (2) Has not filed a hail-in report to advise of an intent to fish under the Treaty as amended in 2002 prior to engaging in such fishing; or
            (3) Is not clearly marked in accordance with paragraph (d) of this section.

      [FR Doc. 04-9849 Filed 4-29-04; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [FWS-R6-ES-2009-0037; 92210-1117-0000-B4]
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To Revise Critical Habitat for Eriogonum pelinophilum (Clay-Loving Wild Buckwheat)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of 90-day petition finding and initiation of critical habitat review.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (USFWS), announce a 90-day finding on a petition to revise critical habitat for Eriogonum pelinophilum (clay-loving wild buckwheat) under the Endangered Species Act (Act) of 1973, as amended. Following a review of the petition, we find that the petition presents substantial scientific or commercial information indicating that revision of the critical habitat for E. pelinophilum may be warranted. Therefore, with the publication of this notice, we are initiating a review of the critical habitat for the species, and will subsequently issue a 12-month finding to determine if revisions to the species' critical habitat are warranted. To ensure that the review is comprehensive, we are soliciting scientific and commercial data and other information regarding this species.

          DATES:
          The finding announced in this document was made on June 22, 2009. To be considered in the 12-month finding for this petition to revise critical habitat, data and information must be submitted to us by July 22, 2009.

          ADDRESSES:
          You may submit information by one of the following methods:
          • Federal rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments to Docket No. FWS-R6-ES-2009-0037.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R6-ES-2009-0037; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.
          We will post all information received on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Information Solicited section below for more details).

          FOR FURTHER INFORMATION CONTACT:
          Patty Gelatt, Acting Western Colorado Supervisor, U.S. Fish and Wildlife Service, Ecological Services, 764 Horizon Drive, Building B, Grand Junction, CO 81506-3946, by telephone (970-243-2778), or by facsimile (970-245-6933). People who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Information Solicited

        When we make a finding that a petition presents substantial information indicating that revisions to critical habitat may be warranted, we are required to promptly commence a review of the status of the existing critical habitat determination. To ensure that this review of critical habitat is complete and based on the best available science and commercial information, we are soliciting additional information for Eriogonum pelinophilum. We request information from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, agriculture, or any other interested parties concerning the status of critical habitat for E. pelinophilum. We are seeking information regarding:
        (1) The historical and current status and distribution of E. pelinophilum, its biology and ecology, and ongoing conservation measures for the species and its habitat;
        (2) Physical and biological features essential to the conservation of the species; and
        (3) Information on threats to the species and its habitat.
        Please note that submissions merely stating support or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination; section 4(b)(2) of the Act directs that determinations as to whether critical habitat shall be revised shall be made “solely on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat.” At the conclusion of the critical habitat review, we will issue a 12-month finding on the petition, as provided in section 4(b)(3)(D)(ii) of the Act.

        You may submit your information concerning this critical habitat review by one of the methods listed in the ADDRESSES section.
        If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov. Please include sufficient information with your comments to allow us to verify any scientific or commercial information you provide.

        Information and materials we receive, as well as supporting documentation we used in preparing this 90-day finding, will be available for public inspection on http://www.regulations.gov, or by appointment during normal business hours, at the U.S. Fish and Wildlife Service, Western Colorado Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
        Background

        Section 4(b)(3)(D) of the Act of 1973, as amended (16 U.S.C. 1531 et seq.), requires that we make a finding on whether a petition to revise critical habitat for a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register.
        Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly commence a review of the species' critical habitat.
        Previous Federal Actions

          Eriogonum pelinophilum was proposed for listing as an endangered species on June 22, 1983, and critical habitat was proposed concurrently (48 FR 28504). The final rule designating the species as endangered, and designating 119.8 acres (ac) (48.5 hectares (ha)), the known range of the species at that time, was published on July 13, 1984 (49 FR 28562). Critical habitat for this species is set forth at 50 CFR 17.96(a) under the Family Polygonaceae. The currently designated critical habitat is in Delta County, Colorado.

        On July 24, 2006, we received a petition, dated July 17, 2006, from the Center for Native Ecosystems, the Colorado Native Plant Society, and the Uncompahgre Valley Association (collectively referred to as the petitioners) requesting that we revise the critical habitat designation for Eriogonum pelinophilum. The petition clearly identified itself as a petition and included the requisite identification information for the petitioners as required in 50 CFR 424.14(a). The petition contained a species and habitat description for E. pelinophilum, a description of previous Federal actions, a section addressing statutory requirements for E. pelinophilum, a description of the various populations and their status, a section addressing threats to E. pelinophilum, and recommendations regarding critical habitat for the species. Potential threats discussed in the petition include destruction and modification of habitat, threats from herbivory, and threats from inadequate regulatory mechanisms.

        On September 29, 2006, we acknowledged the receipt of the petition but stated that given staff and budget limitations we would not be able to further address the petition at that time. On November 13, 2006, we received a notice of intent to sue dated November 9, 2006, from the petitioners regarding our failure to make a 90-day finding on the petition to revise Eriogonum pelinophilum critical habitat. On March 3, 2008, the petitioners filed suit with the United States District Court for the District of Colorado for our failure to make a 90-day finding on the petition to revise critical habitat for the species. On September 30, 2008, we reached a settlement agreement with the plaintiffs to submit a 90-day finding on the petition to revise critical habitat to the Federal Register by June 15, 2009, and, if the petition is considered substantial, submit a 12-month finding to the Federal Register by September 21, 2009. This 90-day finding evaluates the petition as stipulated in the settlement agreement.
        Species Information
        In 1958, Eriogonum pelinophilum was first collected near Hotchkiss, in Delta County, Colorado, by Howard Gentry. The species was first recognized as its own taxon in 1969, and officially described by James Reveal in 1973 (Reveal 1969, pp. 75-76; 1973, pp. 120-122). No other locations were identified until 1984 (Colorado Natural Heritage Program (CNHP) 1986, p. 1).

          Eriogonum pelinophilum is a low-growing, rounded, densely branched subshrub (low shrub with ground-hugging stems) in the buckwheat family (Polygonaceae), with dark green, inrolled leaves that appear needlelike, and clusters of white to cream colored flowers with greenish-red to brownish-red bases and veins at the end of the branches. The Eriogonum genus has undergone rapid evolution in the arid regions of the West, and, as a native North American genus, is second only to the Penstemon (beardtongue) in number of species (roughly 250 Eriogonum species) (Reveal 2005a, p. 1).

          Eriogonum pelinophilum is estimated to live between 20 and 50 years (NatureServe 2008, p. 5). Flowering typically occurs from late May to early September with individual flowers lasting fewer than 3 days (Bowlin et al. 1992, p. 298). Reproduction requires a pollinator. Over 50 species of insects visit E. pelinophilum flowers; approximately 25 are native bees, and 18 are native ants (Bowlin et al. 1992, pp. 299-300). Some fruits are removed by harvester ants (Bowlin et al. 1992, p. 299); however, no information is available on species that may disperse seeds.

          Eriogonum pelinophilum has been considered a close relative of, or synonymous with, E. clavellatum and a close relative of E. contortum (Reveal 2006, p. 3). The species is currently recognized as a distinct species (Reveal 2005b, p. 1; Kartesz in litt. 2009, p. 1). E. pelinophilum is allied to, but distinct from, E. clavellatum, and both are distinct from E. contortum (Reveal 2006, p. 3). Morphological and distributional differences also occur between E. pelinophilum, E. contortum, and E. clavellatum. E. pelinophilum has white flowers and occurs in Delta and Montrose Counties, Colorado; E. contortum has yellow flowers and occurs farther north in Mesa and Garfield Counties, Colorado, and Grand County, Utah (Spackman et al. 1997, E. pelinophilum page). E. pelinophilum is shorter, measuring 2 to 4 inches (in) (0.5 to 1 decimeters (dm)), has smaller involucres (bracts below the flowers) of 0.12 to 0.14 in (3 to 3.5 millimeters (mm)), with petals all the same length. E. clavellatum is taller measuring 4 to 8 in (1 to 2 dm), has larger involucres, 0.16 to 0.18 in (4 to 4.5 mm), with two different sized petals, and is only known from Montezuma County, Colorado, and adjacent San Juan Mountain Counties in Utah and New Mexico (Spackman et al. 1997, E. pelinophilum page; Reveal 2005c, p. 1).
        Critical Habitat
        Background
        Critical habitat is defined in section 3(5)(A) of the Act as:
        (i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
        (I) essential to the conservation of the species and
        (II) which may require special management considerations or protection; and
        (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
        Conservation, as defined under section 3(3) of the Act, means the use of all methods and procedures that are necessary to bring any endangered of threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, or transplantation.
        Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) of the Act requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by private landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the landowner's obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

        For inclusion in a critical habitat designation, habitat within the geographical area occupied by the species must contain the physical and biological features essential to the conservation of the species, and be included only if those features may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas containing the essential physical and biological features that provide for requisite life cycle needs of the species (areas on which are found the primary constituent elements (PCEs) laid out in the appropriate quantity and spatial arrangement for the conservation of the species). Under the Act and regulations at 50 CFR 424.12, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only when we determine that those areas are essential for the conservation of the species and that designation limited to those areas occupied at the time of listing would be inadequate to ensure the conservation of the species.

        Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.
        Habitat Information

          Eriogonum pelinophilum is endemic to the rolling clay (adobe) hills and flats immediately adjacent to the communities of Delta and Montrose, Colorado. The plants extend from near Lazear, east of Delta, on the northern end of the species' range, to the southeastern edge of Montrose in Delta and Montrose Counties, Colorado, and occur from 5,180 to 6,350 feet (ft) (1,579 to 1,965 meters (m)) in elevation (CNHP 2006, p. 3; 2009, spatial data; NatureServe 2008, pp. 4-5; USFWS 2009, Table 1). The known occurrences exist within an area roughly 11.5 miles (mi) (18.5 kilometers (km)) by 28.5 mi (45.6 km) (CNHP 2009, spatial data). The area where E. pelinophilum occurs is dry, receiving an average of 8 to 9 in. (20 to 23 centimeters (cm)) of precipitation a year (Western Regional Climate Center 2009a, p. 1; 2009b, p. 1). The soils where E. pelinophilum is found are described as whitish, alkaline (pH over 7), clay soils of the Mancos shale formation. They are part of the Billings Series, known for their fine texture and weak, unstable structure (NatureServe 2008, p. 4). In addition, the soils are calcareous (containing calcium carbonate). Plants are generally found within swales or drainages where there is more moisture than surrounding areas. These swales are generally located in low-lying areas that have rolling topography, and steeper, more barren slopes above them. Plants near Delta at lower elevation areas are associated with small areas where snow lingers because of north- and east-facing aspects (Ewing and Glenne 2009, p. 2).

          Eriogonum pelinophilum occurs in plant communities characterized by low species diversity, low productivity, and minimal canopy cover (NatureServe 2008, p. 4). The associated vegetation is sparse, with E. pelinophilum generally one of the dominant species (CNHP 1987, Table 2). In lower elevations near Delta, the dominant plant species is Atriplex corrugata (mat saltbrush); at higher elevations near Montrose, the dominant plant species is Artemesia nova (black sagebrush), although A. corrugata is still abundant (Southwest Regional Gap Analysis Project 2004, spatial data). Other species associated with E. pelinophilum include Atriplex confertifolia (shadscale), Atriplex gardneri (Gardner's saltbush), Picrothamnus desertorum (formerly Artemisia spinescens) (bud sagebrush), Xylorhiza venusta (charming woodyaster), and another local endemic, Penstemon retrorsus (Adobe Hills beardtongue) (CNHP 1987, Table 2; Coles 2006, p. 1; NatureServe 2008, p. 4).

        In the following sections, several terms are used that refer to groupings of Eriogonum pelinophilum. Element Occurrences (EOs) are defined by Natural Heritage Programs as areas where a species is or was located. For E. pelinophilum, EO specifications have been developed that lump one to many polygons (sites) based on a standardized maximum separation distance, in this case 1.2 mi (2 km) across suitable habitat, and 0.6 mi (1 km) across unsuitable habitat (CNHP 2007, p. 1). We use the term ‘sites' to define areas that contain an EO. EOs are meant to approximate populations. Although not explicitly stated, we believe that the populations cited by the petitioners are E. pelinophilum EOs identified as of 2006.
         Evaluation of Information Contained in the Petition
        The petitioners state that 16 populations of Eriogonum pelinophilum existed in 2006, containing 30,000 to 60,000 individuals total, and that 8 historical occurrences have been fully extirpated (Reveal 2006, p. 2). The petitioners describe general threats to the species' habitat, and specific threats to each of the 16 E. pelinophilum populations. The petitioners give reasons why revising critical habitat for E. pelinophilum is prudent and determinable, and describe the need as immediate because several of the threats the species faces are growing in magnitude and immediacy. The petitioners claim that critical habitat must be revised because the currently designated habitat omits an area that is now known to contain the largest and most biologically important populations of the species. Further, they say that the current designation is inadequate for ensuring recovery of the species. The petitioners made recommendations of critical habitat locations in their petition.

        We used the information provided in the petition to assess the status of Eriogonum pelinophilum. We also used information in our files, including the annual report we receive each January from the Colorado Natural Heritage Program (CNHP 2009, pp. 1-81), new E. pelinophilum locations from BIO-Logic Environmental (TriState 2004, map; Boyle in litt. 2009, map), and geospatial layers. Geospatial layers included land ownership, locations of conservation easements, and locations of BLM Areas of Critical Environmental Concern.
        Population Status
        According to CNHP, 20 Eriogonum pelinophilum EOs currently exist (CNHP 2009, pp. 1-81; USFWS 2009, Table 1). Of these 20 EOs, 7 have not been located again in over 20 years and are considered historical. A survey was conducted at an additional EO (015), where no plants were found (CNHP 2009, pp. 1-81; USFWS 2009, Table 1). The petitioners cite a map showing seven extirpated E. pelinophilum locations (Reveal 2006, p. 2). These locations are not included in the CNHP database. We have no information on how these extirpations were determined, their exact locations, if they were portions of other EOs, or how many plants were lost; therefore, they are not included in our assessments of populations.
        We are aware of two additional populations of Eriogonum pelinophilum that are not incorporated into the CNHP database, and that, based on appropriate separation distances, would comprise two new EOs (see Table 1). One site has fewer than 100 plants and the other site has an estimated 500 plants (TriState 2004, map; Boyle in litt. 2009, map). Table 1 provides a comparison of populations cited by the petitioners to known EOs, and land management or ownership status.
        Of the 12 EOs where Eriogonum pelinophilum is currently known to exist (not counting the 2 newly discovered EOs), 2 are ranked by CNHP as A, 6 are ranked as B, 3 are ranked as C, and 1 is ranked as D (CNHP 2009, pp. 1-81; USFWS 2009, Table 1). An A rank represents E. pelinophilum occurrences with the largest size, highest number of individuals, and the best-quality habitat; a D rank represents occurrences with the smallest size, the lowest number of individuals, and the worst-quality habitat (CNHP 2007, pp. 1-2; 2009, pp. 1-81; USFWS 2009, Table 1).

          Table 1. Colorado Natural Heritage Program (CNHP) Eriogonum pelinophilum Element Occurrences (EOs) compared with populations cited in the petition. Ranks A, B, C, and D represent the quality of the EO (from best- to worst-quality, respectively); H indicates an EO has not been visited in over 20 years; and F indicates an EO that could not be found during subsequent visits. Included are two newly discovered EOs not yet numbered by CNHP, seven historical EOs, and one EO in which no plants were recently found (015).

            EO Number
            EO Rank
            Petition Population
            Land Management, with Rough Estimates of Ownership Percentage

            001
            B
            a, Lawhead Gulch
            private

            003
            B
            d, North Selig Canal
            33% BLM-66% private

            004
            B
            g, Olathe South
            private

            006
            B
            h, North Mesa
            private

            011
            C
            i, North Fairview
            50% BLM-50% private

            012
            B
            n, Sunshine Road
            5% BLM-95% private

            014
            A
            f, Candy Lane/Peach Valley
            BLM

            016
            C
            p, Dry Cedar Creek
            BLM

            018
            A
            o, Wacker Ranch/Fairview South
            70% BLM-20% Colorado State (CNAP)-10% private

            024
            D
            j, Montrose Northeast
            private

            025
            B
            e, Selig Canal
            90% BLM-10% private

            041
            B
            new, discovered in 2007
            66% BLM-33% private

            none
            none
            new, discovered in 2004
            33% BLM-66% private

            none
            none
            new, discovered in 2008
            BLM

            015
            F
            considered extirpated in petition
            private

            007
            H, C
            b, Peach Valley
            private

            013
            H, C
            l, Cedar Creek
            private

            017
            H, C
            m, Oak Grove Road
            private

            019
            H, C
            c, Star Nelson Airport
            private

            021
            H, C
            k, Montrose East
            private

            022
            H, C
            k, Montrose East
            private

            023
            H, C
            not included in petition
            unknown

        The most recent rangewide population estimate for all Eriogonum pelinophilum EOs ranked A through D, which does not include the two newly discovered populations, is 276,000 individuals on 575 ac (233 ha) of currently occupied habitat (CNHP 2009, pp. 1-81; USFWS 2009, Table 1). Roughly 46 percent of the habitat is in private ownership, and 54 percent is managed by either the Bureau of Land Management (BLM) or Colorado Natural Areas Program (CNAP) (CNHP 2009, pp. 1-81; USFWS 2009, Table 1). Approximately 14 percent of the total currently occupied habitat is covered by conservation easements, located on privately owned land. Of the 14 known E. pelinophilum EOs, including the 2 newly discovered populations, 4 occur wholly on private land; 6 occur on a combination of BLM and private lands; 1 occurs on BLM Colorado State (Colorado Natural Areas), and private lands; and 3 occur wholly on BLM land (see Table 1).

        We attribute the large difference between the rangewide population estimate from the 2006 petition (30,000 to 60,000 individuals; Reveal 2006, p. 2), and our 2009 estimate (276,000 individuals), to increased survey efforts that occurred in 2007 near Fairview South (EO 018), where the known locations of Eriogonum pelinophilum and number of individuals greatly increased (CNHP 2009, EO 18; Ferguson 2007, pp. 2, 4). Survey intensity has not been consistent in the different EOs, so plant numbers at each EO may not be representative of the true abundance. As a general rule, plant estimates that are not based on a sampling protocol tend to underestimate the number of individuals at any given location.
        Critical Habitat Evaluation
        The existing critical habitat for Eriogonum pelinophilum, as designated in 1984, encompasses 119.8 ac (48.5 ha) and one population (Lawhead Gulch, EO 001), which was then the entire known range of the species (49 FR 28565). Within that designation, only about 65 ac (26 ha) of habitat remains occupied (based on a geospatial analysis); approximately 2,000 individual plants persist. By comparing to currently known CNHP EOs, the critical habitat designation for E. pelinophilum includes approximately 65 of 575 ac (26 of 233 ha) of currently occupied habitat, or only 11 percent, and 2,000 of 276,000 individuals, or only 0.7 percent (USFWS 2009, Table 1).
        Finding
        In making this finding, we relied on information provided by the petitioners, sources cited by the petitioners, and information readily available in our files. We evaluated that information in accordance with 50 CFR 424.14(c). Our process for making this 90-day finding under section 4(b)(3)(D) of the Act and section 50 CFR 424.14(c) of our regulations is limited to a determination of whether the information in the petition meets the “substantial scientific and commercial information” threshold.

        We have assessed information provided by the petitioners and available in our files. The critical habitat designation from 1984 includes approximately 11 percent of habitat known to be currently occupied and 0.7 percent of individual Eriogonum pelinophilum plants. In addition, E. pelinophilum has special protections in portions of only four extant EOs (on four private land sites); roughly a third of all the known areas currently occupied by the species is on private land with no protections from destruction or adverse modification of habitat.

        Under section 3 of the Act, critical habitat is to include the areas essential to the conservation of the species. Conservation is intended to bring the species to the point at which the measures provided under the Act are no longer necessary, i.e., the species is recovered. Critical habitat designations identify, to the extent known and using the best scientific and commercial data available, habitat areas containing the essential physical and biological features that provide for requisite life cycle needs of the species (areas on which are found the PCEs laid out in the appropriate quantity and spatial arrangement for the conservation of the species). The petitioners have presented substantial information to indicate that the critical habitat for Eriogonum pelinophilum, as designated, may not represent the entire area containing the physical and biological features essential to the conservation of the species. Only a small proportion of the currently known habitat and individuals are included, only the northernmost portion of the species' range is represented, and areas outside of the designation are only provided special protections in portions of 4 of the remaining 13 populations. Habitat is often dynamic, and a species' range may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas we may later determine are necessary for the recovery of the species. The known habitat areas occupied by E. pelinophilum have changed since critical habitat designation, and identification and designation of currently known occupied habitat may be essential to the conservation of the species.

        On the basis of our evaluation of new occupied sites provided in the petition and in our files, we find that the petition presents substantial information indicating that revising critical habitat for Eriogonum pelinophilum under the Act may be warranted. Therefore, we are initiating a status review to determine if a revision to critical habitat for E. pelinophilum is warranted under the Act, and if so, how we would intend to proceed with such a revision.
        References Cited

        A complete list of all references cited in this document is available, upon request, from the Western Colorado Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
        Author

        The primary authors of this notice are the staff members of the U.S. Fish and Wildlife Service, Western Colorado Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
        Authority

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

          Dated: June 15, 2009
          Rowan W. Gould

            Acting Director, U.S. Fish and Wildlife Service

      [FR Doc. E9-14709 Filed 6-19-09; 8:45 am]
      BILLING CODE 4310-55-S