        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 120706220-4693-01]
        RIN 0648-BC34
        Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod Pot Gear Fishing Closure in the Pribilof Islands Habitat Conservation Zone in the Bering Sea

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS issues a proposed rule that would implement Amendment 103 to the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP) to close year-round the Pribilof Islands Habitat Conservation Zone (PIHCZ) to directed fishing for Pacific cod with pot gear to minimize bycatch and prevent overfishing of Pribilof Islands blue king crab (PIBKC). This action would promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable law.

          DATES:
          Submit comments on or before September 29, 2014.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2012-0141, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2012-0141, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Address written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

          Electronic copies of the BSAI FMP, Amendment 103 to the BSAI FMP, the Environmental Assessment (EA), and the Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA) prepared for this action are available from http://www.regulations.gov or from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Sarah Ellgen, 907-586-7228.

        SUPPLEMENTARY INFORMATION:

        NMFS manages the BSAI groundfish fisheries under the FMP for groundfish in the BSAI management area (BSAI FMP). The North Pacific Fishery Management Council (Council) prepared the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and other applicable laws. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600. Regulations implementing the BSAI FMP appear at 50 CFR part 679.

        The Council submitted Amendment 103 to the BSAI FMP for review by the Secretary of Commerce, and a notice of availability was published in the Federal Register on August 21, 2014 (79 FR 49487), with comments invited through October 20, 2014. Comments may address Amendment 103 to the BSAI FMP, or this proposed rule, but must be received by October 20, 2014, to be considered in the approval/disapproval decision on Amendment 103 to the BSAI FMP. All comments received by that date, whether specifically directed to Amendment 103 to the BSAI FMP or to this proposed rule will be considered in the approval/disapproval decision on Amendment 103.
        Background
        The Pribilof Islands blue king crab (PIBKC) stock is managed as a distinct stock and occurs around the islands of Saint Paul and Saint George in the Bering Sea. The PIBKC stock is currently overfished and under a rebuilding plan (69 FR 17651, April 5, 2004). NMFS and the Alaska Department of Fish and Game (ADF&G) have implemented a number of increasingly conservative management measures to limit potentially adverse fishery effects on PIBKC.
        In 1999, as part of the joint management of the crab stocks under the Crab FMP, the ADF&G closed the directed PIBKC fishery due to the declining trend in PIBKC abundance. ADF&G also closed the directed Pribilof Islands red king crab fishery to minimize the bycatch of PIBKC in that fishery. Based on NMFS annual trawl survey data, ADF&G continues to annually close specific State statistical areas where PIBKC are known to occur during the Bristol Bay red king crab, snow crab, and Tanner crab fisheries to minimize PIBKC bycatch in those crab fisheries.
        NMFS closed the Pribilof Islands Habitat Conservation Zone (PIHCZ) to groundfish trawl gear to protect blue king crab under Amendment 21a to the BSAI FMP (60 FR 4110, January 20, 1995). The PIHCZ was established based on the distribution of the blue king crab recorded in the NMFS annual trawl surveys and on observer data (see proposed Figure 10 to 50 CFR part 679).
        NMFS classified the PIBKC stock as a prohibited species in Table 2b to 50 CFR part 679. The BSAI FMP and implementing regulations at § 679.21 require that the incidental catch of prohibited species be avoided while fishing for groundfish. Regulations at § 679.7(a)(12) prohibit retaining or possessing prohibited species unless permitted to do so under the Prohibited Species Donation program as provided by § 679.26 of this part, or as authorized by other applicable law. Pursuant to these regulations, directed groundfish fisheries must immediately return PIBKC bycatch to the sea with a minimum of injury.
        Due to chronic low abundance, this stock remains overfished despite these measures to minimize catch of blue king crab. The cause of the continued low PIBKC stock abundance and failure to recover is not well understood. Information included in recent Stock Assessment and Fishery Evaluation (SAFE) reports suggest that environmental conditions such as changing ocean currents, changing water temperatures, and changing spatial distributions among king crab stocks may contribute to the failure of this stock to recover (see 2010, 2011, 2012 SAFE reports for the PIBKC). While there are no apparent physical barriers to adult dispersal, crab larval dispersal may be affected by local oceanography, which may in turn affect recruitment of the PIBKC stock (see Table 4-4 of the EA). Environmental conditions may also play a role in female crab reproduction and growth; however this relationship is poorly understood (Section 4.5.2 of the EA).
        The continuing low abundance of PIBKC underscores the need to implement additional measures to minimize PIBKC bycatch in the groundfish fisheries to the extent practicable. The Council considered additional conservation and management measures to further minimize bycatch and prevent overfishing with the goal to rebuild PIBKC. The Council recommended Amendment 103 to address the remaining significant source of PIBKC mortality by prohibiting Pacific cod directed fishing with pot gear in the PIHCZ. The Pacific cod pot fishery occurs within the PIHCZ and had the highest observed bycatch rates of PIBKC across all gear types from 2005 to 2011 (see Section 4.5.4 of the EA). This action is consistent with the PIBKC rebuilding plan, but reduces PIBKC bycatch in the groundfish fishery to address the potential for PIBKC bycatch in the groundfish fishery to exceed the annual PIBKC overfishing limit.
        The Council recommended closing the PIHCZ to directed fishing for Pacific cod with pot gear based on (1) the high rate of PIBKC bycatch in the PIHCZ relative to other areas outside of the PIHCZ, (2) the high concentration of PIBKC in the PIHCZ, (3) the occurrence of known PIBKC habitat within the PIHCZ, (4) the high rate of PIBKC bycatch in the Pacific cod pot fishery relative to other groundfish fisheries, and (5) the limited impact the Pacific cod pot gear closure in the PIHCZ would have on the Pacific cod pot fishery relative to other groundfish fisheries closures. This proposed action ensures that the reduction of bycatch is focused on the fishery that is most likely to achieve the bycatch reduction with the least economic impacts overall for the groundfish fisheries.
        In recommending this proposed action, the Council considered a number of management measures designed to reduce PIBKC bycatch in the groundfish fisheries. The Council considered expanding the year-round PIHCZ closure to apply not only to vessels using trawl gear, but also to groundfish fisheries that have contributed to a designated percentage threshold of PIBKC bycatch from 2003 to 2010. The Council also considered implementing groundfish closure areas that would mirror the current ADF&G crab closure areas or that would cover the entire distribution of the PIBKC stock. Such closures would apply to groundfish fisheries that have contributed to greater than a designated percentage threshold of PIBKC bycatch. Finally, the Council considered establishing PIBKC prohibited species catch (PSC) limits. All PIBKC bycatch in all groundfish fisheries would accrue toward the PIBKC PSC limit. Once reached, the PIBKC PSC limit would trigger fishery closures that would apply only to those groundfish fisheries that had contributed to a greater than designated threshold of PIBKC bycatch (triggered closures) (see Section 2 of the EA).
        The Council evaluated the alternatives based on the best scientific information available, including survey data on location and concentration of PIBKC, historical distribution of PIBKC, environmental conditions and biology of the PIBKC stock, observed PIBKC bycatch rates in all the groundfish fisheries, information on key habitat components for the PIBKC stock, the potential displacement of fishing effort from the alternative closure areas to other fishing grounds, and the economic impact of PIBKC bycatch reductions and closure areas on fishing communities.

        The Council noted that the best scientific information on PIBKC location, observed catch rates, and habitat type indicates that the PIHCZ contains the highest concentration of PIBKC as well as PIBKC habitat. The Pacific cod pot gear fishery had the highest observed bycatch rates of PIBKC across all gear types from 2005 to 2011. During this time period, the average observed PIBKC bycatch rate in Pacific cod fisheries using pot gear within the PIHCZ was 0.052 crab per metric ton of groundfish. In the BSAI, the highest and second-highest PIBKC bycatch rates by Pacific cod pot gear are located within the PIHCZ to the northeast and east of St. Paul Island, respectively. Nearly all of the observed PIBKC bycatch was within the PIHCZ. In recommending the prohibition on directed fishing for Pacific cod with pot gear in the PIHCZ, the Council focused on the groundfish sector with the highest observed bycatch rate in an area where the PIBKC stock and habitat are concentrated (see Sections 2.2 and 4.5.5 of the EA).
        This action would prevent the BSAI groundfish fisheries from exceeding the overfishing level established for the PIBKC stock. Although the PIBKC bycatch in all groundfish fisheries has been below the overfishing level, the Council acknowledged that recent trends in crab bycatch suggest that groundfish fisheries occurring near the Pribilof Islands have the potential to exceed the overfishing level and acceptable biological catch for this stock (see Section 1.1 of the EA). Prohibiting Pacific cod pot fishing in the habitat conservation zone would remove a significant source of crab bycatch mortality and prevent exceeding the PIBKC overfishing level.
        This proposed action would minimize PIBKC bycatch in the groundfish fisheries to the extent practicable, consistent with National Standard 9. Prohibiting directed fishing for Pacific cod with pot gear in the PIHCZ would prevent PIBKC bycatch in an area of known PIBKC habitat. In recommending the proposed action, the Council noted that Pacific cod catches by vessels using pot gear that occur within the PIHCZ could be effectively harvested outside of the boundary of the PIHCZ; thus, the overall catch of Pacific cod would not be reduced. In addition, in more recent years, Pacific cod pot sector harvests within the PIHCZ have declined considerably to approximately 125 tons with a value of about $200,000, which represents less than one percent of Pacific cod pot fleet total revenue in 2010 (see Sections 1.4.2.1 and 1.4.2.2 of the RIR). According to the RIR, prohibiting fishing for Pacific cod with pot gear in the PIHCZ is practicable for the Pacific cod pot sector because this measure is not expected to result in increased operational costs or reduced harvest for this sector.
        As noted above, the Council evaluated a number of additional alternatives that would further reduce PIBKC bycatch in other groundfish fisheries. The Council did not recommend imposing prohibitions on directed groundfish fishing within the PIHCZ beyond the directed fishing for groundfish using trawl gear and directed fishing for Pacific cod using pot gear. Additional prohibitions were not projected to result in PIBKC bycatch savings, but would likely have serious adverse economic impacts on fishing communities, as the groundfish fisheries attempt to avoid PIBKC bycatch through foregone groundfish catch or increased operating costs.
        For example, prohibiting directed fishing for Pacific cod with hook-and-line gear would have closed the PIHCZ to the groundfish sector having the second highest PIBKC bycatch rate in this area. The observed PIBKC bycatch in the PIHCZ taken by the Pacific cod hook-and-line sector was 347 crabs from 2005 to 2011, amounting to 0.2 percent of the PIBKC stock abundance (see Section 4.5.5.1 of the EA, Table 4-12). However, based on the retrospective analysis, extending the PIHCZ closure to this sector could result in foregone groundfish catch, increased operating costs, and potentially serious negative economic impacts. The Pacific cod hook-and-line sector annually harvests 1,500 tons with a value of $2 million, or about 1.7 percent of this sector's total revenue, within the PIHCZ. In contrast to the Pacific cod pot sector's estimated pattern of redeployment outside of the PIHCZ, the retrospective analysis in the RIR indicates that the Pacific cod hook-and-line fleet will experience increased operational costs because this sector may need to make up foregone catch by altering fishing patterns in widely dispersed areas outside the PIHCZ that have a history of smaller catches (see Sections 4.5.5.1 of the EA and 1.4.2 of the RIR). In addition, the Pacific cod hook-and-line fishery is managed almost entirely under a voluntary cooperative management structure and can respond to PIBKC bycatch through cooperative management measures in order to avoid bycatch (see Section 4.5.5.1 of the EA).
        Similarly, the Council did not extend the closure to non-Pacific cod hook-and-line and pot fisheries within the PIHCZ because those sectors only had an average PIBKC bycatch rate of 0.0176 per metric ton of groundfish from 2005 to 2011 (see Section 4.5.5.1 of the EA). Based on the much lower observed PIBKC bycatch rate, the bycatch savings from extending the closure in the PIHCZ to those fisheries would likely be negligible and did not outweigh the costs that would be imposed on these fisheries.
        Although additional closures or extended closure configurations may further reduce PIBKC bycatch in the groundfish fisheries, as contemplated by Alternatives 3, 4, 5, and 6, the Council noted numerous stock distribution and observer coverage issues with respect to these alternatives. Area closures outside the PIHCZ and area closures triggered by fishery-wide PIBKC PSC limits would not be viable at this time because of the difficulty in establishing the PIBKC stock boundary, the current limitations in distinguishing and accounting for bycatch of PIBKC from bycatch of St. Matthew Island blue king crab in the groundfish fisheries, and the resulting limitations in the methodology for estimated mortality of PIBKC relative to stock distribution.
        For example, the PIBKC stock is located in Federal reporting area 513. However, portions of this stock are also located in Federal reporting areas 521 and 524, areas that are occupied primarily by the St. Matthew Island blue king crab stock. Because the catch accounting system (CAS) is designed to estimate catch across the entire Bering Sea in terms of catch per species, rather than catch per stock, the CAS does not have the resolution to distinguish between crab mortality of St. Matthew and Pribilof Islands blue king crab stocks in these areas. Further, the Council ultimately did not consider trigger cap closures (Alternatives 2c, 5, and 6) viable alternatives due to uncertainty in appropriate definition of the stock area and the resulting current limitations in the methodology for estimating mortality of PIBKC relative to the stock distribution (see Section 4.2.2 of the EA). The potential costs of the various alternatives are shown as tonnage and gross revenue at risk in Tables 1-6 to 1-15 of the RIR. Because of the added administrative costs associated with these closures and because NMFS would be unable to effectively manage these PIBKC bycatch reduction measures at this time, the Council and NMFS believe these alternatives would not be practicable.

        The Council considered but did not ultimately choose an option available under any of the alternatives to apply increased observer coverage. Observer coverage requirements were modified in 2013 under the restructured Observer Program (77 FR 70062, November 21, 2012), which now requires full observer coverage on catcher/processors, some of which were under 30 percent coverage requirements prior to 2013. This change in observer coverage will improve estimation for hook-and-line catcher/processors operating in the PIHCZ. Catcher vessels, which harvest a very small proportion of the groundfish relative to catcher/processors, are under partial coverage under the restructured Observer Program. Randomized deployment under the restructured Observer Program will improve the quality of data available from the catcher vessel sector and provide additional information on relative catch rates by all fleets (see Section 3.4.1 of the EA).
        Proposed Regulatory Revisions Required by the Actions
        NMFS proposes to revise § 679.22(a)(6) to prohibit directed fishing for Pacific cod using pot gear in the PIHCZ. The existing prohibition on the use of trawl gear in the PIHCZ would be retained. In addition, Figure 10 to part 679 would be revised by changing the name from “Pribilof Islands Habitat Conservation Area in the Bering Sea” to read “Pribilof Islands Habitat Conservation Zone in the Bering Sea” to be consistent with the definition of the PIHCZ at § 679.2. The map for Figure 10 would be reformatted for greater accuracy and improved appearance. These format changes are non-substantive. See proposed Figure 10 to part 679.
        Classification
        Pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the BSAI FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for the purposes of Executive Order (E.O.) 12866.
        Initial Regulatory Flexibility Analysis

        An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). 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 and are not repeated here. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).
        On June 12, 2014, the Small Business Administration issued an interim final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33647, June 12, 2014). The rule increased the size standard for Finfish Fishing from $19.0 million to $20.5 million, Shellfish Fishing from $ 5.0 million to $5.5 million, and Other Marine Fishing from $7.0 million to $7.5 million. The new size standards were used to prepare the IRFA for this action.
        Number and Description of Small Entities Regulated by the Proposed Action
        The entities directly regulated by this proposed action are the owners and operators of vessels directed fishing for Pacific cod using pot gear in the PIHCZ. Earnings from all Alaska fisheries for 2010, the most recent year of complete earnings data, were matched with the vessels that participated in the BSAI groundfish fisheries for that year. Based on the known affiliations and joint ownership of the vessels, a total of 114 vessels caught, or caught and processed, less than $20.5 million ex-vessel value or product value of groundfish and other species in the BSAI. These 114 vessels are considered small entities because they all have annual ex-vessel revenues less than the $20.5 million standard for small finifish fishing vessels under the RFA. Of these 114 vessels, 34 directed fish for Pacific cod using pot gear, and all of these vessels could be regulated by this action.
        The six Western Alaska Community Development Quota (CDQ) groups and the 65 communities they represent are small entities under the RFA. Each of the CDQ groups receives annual allocations of Pacific cod in the BSAI. The CDQ groups harvest these allocations with vessels they own and vessels they contract with. The vessels owned by the CDQ groups and used to target Pacific cod are primarily large catcher/processors using hook-and-line or trawl gear. In 2012, the CDQ groups harvested 24,402 metric tons of Pacific cod. Less than 15 percent of this catch was made by vessels using pot gear, none of which were owned by the CDQ groups (actual catch using pot gear is confidential). None of the Pacific cod caught by the CDQ groups was harvested within the proposed closure areas. As CDQ groups have never used pot gear to harvest Pacific cod within the proposed closure area, the proposed action is not expected to impact the CDQ groups, the CDQ communities, or the vessels that fish on their behalf.
        The impacts of the proposed action on directly regulated small entities are analyzed in the IRFA. In recent years, many of the vessels identified in this analysis as having potential small entity impacts have become members of fishing cooperatives. Increased affiliation with the BSAI Freezer-Longline Cooperative, as well as various crab cooperatives, has resulted in many vessels now being classified as large entities due to these affiliations. This analysis has incorporated cooperative affiliation information to adjust the numbers of potentially directly regulated small entities and, thereby, the estimate of revenue at risk specific to small entities. The result is evident in the declining small entity impact estimates in 2010, where estimated impacts are near zero for many alternatives with the exception of potential CDQ impacts, which are, by definition, small although the vessels that harvest for CDQ organizations are themselves now large via affiliations. Thus, with increased membership in cooperatives, nearly all of the potentially directly regulated vessels are presently classified as large entities and the potential effects of the proposed action on small entities appears to be de-minimis.
        Duplicate, Overlapping, or Conflicting Federal Rules
        No duplication, overlap, or conflict between this proposed action and existing Federal rules has been identified.
        Description of Significant Alternatives That Minimize Adverse Impacts on Small Entities
        An IRFA requires a description of any significant alternatives to the preferred alternative that would minimize any significant adverse economic impact of the proposed rule on small entities. The suite of potential actions includes six alternatives with components and options for closures in the Bering Sea to minimize the bycatch of PIBKC and reduce the risk of overfishing.
        The Council's preferred alternative, Alternative 2b, was selected as the action alternative. Alternative 2b would close year round the PIHCZ to directed fishing for Pacific cod with pot gear to prevent overfishing of PIBKC and minimize bycatch of PIBKC in groundfish fisheries. Alternative 2b would further reduce PIBKC bycatch mortality in groundfish fisheries, enhancing the likelihood of a successful rebuilding effort.

        Alternative 1 is the status quo or no action alternative, which would not change the closure to all trawl gear in the PIHCZ. This alternative does not meet the goals and objectives of the action to minimize bycatch of PIBKC, and would not provide further protection to PIBKC from the potential effects of the groundfish fisheries.
        Alternatives 2 through 6 would retain all of the current protection measures in place for the PIBKC stock and apply additional measures. These alternatives would establish closure areas for specific groundfish fisheries that are described in the following paragraphs for each alternative.
        Alternative 2 included three specific methods for closing the PIHCZ to directed fishing for a variety of groundfish fisheries. Alternative 2a would close the PIHCZ on an annual basis to groundfish fisheries that met a threshold of PIBKC bycatch from 2003 to 2010 that is greater than 5 percent of the ABC of PIBKC. Fisheries that met the 5-percent threshold are the Pacific cod hook-and-line fishery, Pacific cod pot fishery, yellowfin sole trawl fishery, and other flatfish trawl fishery. Alternative 2b, the preferred alternative proposed to be implemented by this action, would close the PIHCZ year round to Pacific cod pot fishing. Alternative 2c would close the PIHCZ to directed fishing for Pacific cod by vessels using pot gear if the total PIBKC bycatch in all groundfish fisheries in the BSAI reached 20 percent, 30 percent, or 50 percent of the overall trigger closure cap of 75 percent of the ABC. Alternative 2c would also require vessels directed fishing for Pacific cod with pot gear in the PIHCZ to maintain 100 percent observer coverage. Alternatives 2a and 2c would have a greater impact on small entities than Alternative 2b because more vessels would be subject to potential closures in the PIHCZ. Alternative 2c would also increase the potential costs on small entities by increasing observer coverage requirements for these vessels.
        Alternative 3 would close the existing ADF&G crab closure area between 168° and 170° West longitude, and between 57° and 58° North latitude to additional fishing effort, in addition to the status quo groundfish trawl closure. Under Alternative 3, Option 3a, this closure would apply to all groundfish fisheries that have contributed greater than a designated threshold to bycatch of PIBKC since 2003. The closure would apply to any fishery that had bycatch of PIBKC between 2003 and 2010 of greater than 5 percent of ABC. Under the 5 percent threshold, the closure would apply to the following fisheries: Yellowfin sole trawl, other flatfish trawl, Pacific cod pot, and Pacific cod hook-and-line. Alternative 3b would close the area to directed fishing for Pacific cod only. Alternative 3a would have a greater impact on small entities than Alternative 3b because more vessels would be subject to potential closures in the PIHCZ. While Alternative 3b could potentially have less of an impact on small entities than the other alternatives (data is confidential for all years except 2005), the Alternative 3 closure boundaries exclude southern parts of the PIHCZ where PIBKC bycatch by Pacific cod pot fishing has occurred (see Figure 5-25 in the EA).
        Alternative 4 would establish a closure throughout the range of the PIBKC based on either the distribution of the PIBKC stock aggregated from 1975 to 2009, or from 1984 to 2009. This range of data represented recent trends of the known distribution of PIBKC based on current stock survey methodologies and is greater than the area closure in the PIHCZ and the ADF&G closures defined under Alternative 3. Alternatives 4a and 4b would establish closures consistent with the same criteria established for Alternatives 2a and 2b, and 3a and 3b, respectively. Alternative 4 would have a greater impact on small entities due to the greater size of the closure.
        Alternative 5 would establish a PSC limit equal to either the overfishing limit (OFL), the ABC, or a proportion of the ABC for the PIBKC stock. All bycatch of the PIBKC in all groundfish fisheries would accrue toward this PSC limit, and those groundfish fisheries that contributed to greater than a designated threshold of PIBKC bycatch since 2003 would be closed once the fishery-wide PSC limit was reached.
        Alternative 5 would have four closure area options: Options 5a, 5b, 5c, and 5d, which correspond to the closure areas defined under Alternatives 1, 3, and 4 (1975 to 2009 PIBKC stock distribution and 1984 to 2009 PIBKC stock distribution), respectively. Under each of these options, the closure would be triggered by attainment of a fishery-wide PIBKC PSC limit set at the following options: PSC limit equal to the OFL, PSC limit equal to the ABC, PSC limit equal to 90 percent of the ABC, or PSC limit equal to 75 percent of the ABC. Under Option 5d, under the PSC limit equal to 90 percent of the ABC and the PSC limit equal to 75 percent of the ABC, there would be an additional option for allocation of the PSC limit by gear type: 40 Percent trawl gear, 40 percent pot gear, and 20 percent hook-and-line gear.
        Alternative 6 would have two components: (1) Establish a year-round closure of the PIHCZ to directed fishing for Pacific cod using pot gear, and (2) establish a triggered closure of the area representing the distribution of the PIBKC stock from 1984 to 2009. The PSC limit associated with the triggered closure would be established as a fishery-wide level at 75 percent of the ABC. The PSC limit would be set either in the numbers of crab based on the average weight in the previous season or in numbers of crab based on a rolling 5-year average weight. The PSC limit would be further allocated to sectors either by gear type or to all groundfish fisheries in the aggregate by seasons.
        In addition, each of the alternatives included options to increase observer coverage that could be applied to all fisheries or a specific fishery.
        The Council ultimately did not consider trigger cap closures (Alternatives 2c, 5, and 6) viable alternatives, due to uncertainty in appropriate definition of the stock area and the resulting current limitations in the methodology for estimating mortality of PIBKC relative to the stock distribution (see discussion in Section 5.2.2 of the EA). These alternatives would not have a measurable impact that would minimize the bycatch of PIBKC relative to status quo. These alternatives could reduce the risk of overfishing, but they would not effectively prevent overfishing, consistent with the goals and objectives of this action.

        None of the viable alternatives (Alternative 2a, Alternatives 3a and 3b, and Alternatives 4a and 4b) could potentially have less of an impact on fisheries than the Council's recommended alternative, 2b. Table 1-34 in the IRFA (see ADDRESSES) provides a comparison of the potential impacts on directly regulated small entities, in terms of gross revenue at risk, under each of the alternatives. Based on the best available scientific data and information, there are no alternatives to the proposed action that have the potential to accomplish the stated objectives of the Magnuson-Stevens Act and any other applicable statutes and that have the potential to minimize any significant adverse economic impact of the proposed rule on directly regulated small entities.
        Reporting, Recordkeeping, and Other Compliance Requirements
        This proposed action does not contain reporting, recordkeeping, or other compliance requirements.

          List of Subjects in 50 CFR Part 679
          Alaska, Fisheries.

          Dated: August 26, 2014.
          Eileen Sobeck,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:

          PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

        1. The authority citation for part 679 continues to read as follows:

          Authority:
          16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Pub. L. 108-447.

        2. In § 679.22, revise paragraph (a)(6) to read as follows:

          § 679.22
          Closures
          (a) * * *
          (6) Pribilof Islands Habitat Conservation Zone. Directed fishing for groundfish using trawl gear and directed fishing for Pacific cod using pot gear is prohibited at all times in the area defined in Figure 10 to this part as the Pribilof Islands Habitat Conservation Zone.

        3. Revise Figure 10 to part 679—including the Figure heading—to read as follows:
        BILLING CODE 3510-22-P

          EP29AU14.010

      [FR Doc. 2014-20682 Filed 8-28-14; 8:45 am]
      BILLING CODE 3510-22-C


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R8-ES-2011-0114; 4500030113]
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List the San Bernardino Flying Squirrel as Endangered or Threatened With Critical Habitat

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of petition finding and initiation of status review.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the San Bernardino flying squirrel (Glaucomys sabrinus californicus) as endangered or threatened and to designate critical habitat under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that the petition presents substantial scientific or commercial information indicating that listing the San Bernardino flying squirrel may be warranted. Therefore, with the publication of this notice, we are initiating a review of the status of the species to determine if listing the San Bernardino flying squirrel is warranted. To ensure that this status review is comprehensive, we are requesting scientific and commercial data and other information regarding this subspecies. Based on the status review, we will issue a 12-month finding on the petition, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

          DATES:

          To allow us adequate time to conduct this review, we request that we receive information on or before April 2, 2012. The deadline for submitting an electronic comment using the Federal eRulemaking Portal (see ADDRESSES, below) is 11:59 p.m. Eastern Time on this date. After April 2, 2012, you must submit information directly to the Field Office (see FOR FURTHER INFORMATION CONTACT, below). Please note that we might not be able to address or incorporate information that we receive after the above requested date.

          ADDRESSES:
          You may submit information by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Enter Keyword or ID box, enter FWS-R8-ES-2011-0114, which is the docket number for this action. Then, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Submit a Comment.”
          (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R8-ES-2011-0114; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.
          We will post all information we receive on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Request for Information section below for more details).

          FOR FURTHER INFORMATION CONTACT:
          Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011, by telephone at 760-431-9440, or by facsimile to 760-431-9624. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Request for Information
        When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly initiate review of the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on the San Bernardino flying squirrel from governmental agencies, Native American tribes, the scientific community, industry, and any other interested parties. We seek information on:
        (1) The species' biology, range, and population trends, including:
        (a) Habitat requirements for feeding, breeding, and sheltering;
        (b) Genetics and taxonomy;
        (c) Historical and current range, including distribution patterns;
        (d) Historical and current population levels, and current and projected trends; and
        (e) Past and ongoing conservation measures for the species, its habitat, or both.

        (2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531 et seq.), which are:
        (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.
        (3) The potential effects of climate change on the species and its habitat, including information on the upwards shifts in high-elevation forest habitat and changes in the availability of food resources.
        If, after the status review, we determine that listing the San Bernardino flying squirrel is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act), under section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, we also request data and information on:
        (1) What may constitute “physical or biological features essential to the conservation of the species” within the geographical area currently occupied by the species;
        (2) Where these features are currently found;

        (3) Whether any of these features may require special management considerations or protection;
        (4) Specific areas outside the geographical area occupied by the species that are “essential for the conservation of the species”; and
        (5) What, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the requirements of section 4 of the Act.
        Please include sufficient information with your submission, such as scientific journal articles, other supporting publications, or data, to allow us to verify any scientific or commercial information you include.
        Submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

        You may submit your information concerning this status review by one of the methods listed in ADDRESSES. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

        Information and supporting documentation that we received and used in preparing this finding is available for you to review at http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
        Background

        Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. 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 scientific or commercial 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 initiate a species status review, which we subsequently summarize in our 12-month finding.
        Petition History
        On August 25, 2010, we received a petition dated August 24, 2010, from the Center for Biological Diversity (CBD), requesting that the San Bernardino flying squirrel be listed as endangered or threatened and to designate critical habitat concurrent with listing under the Act. The petition clearly identified itself as a petition, was dated, and included the requisite identification information required at 50 CFR 424.14(a). On October 5, 2010, we sent the petitioner a letter acknowledging our receipt of the petition, and responded that we had reviewed the information presented in the petition and determined that issuing an emergency regulation temporarily listing the species under section 4(b)(7) of the Act was not warranted. We also stated that due to court orders and court-approved settlement agreements for other listing and critical habitat determinations under the Act, our listing and critical habitat funding for Fiscal Year 2011 was committed to other projects. We said that we would be unable to address the petition at that time, but would complete the action when workload and funding allowed. This finding addresses the petition.
        Previous Federal Actions

        The San Bernardino flying squirrel is a subspecies that was previously recognized in four Notices of Review published in the Federal Register. On September 18, 1985, the Service issued the first Notice of Review identifying vertebrate animal taxa native to the United States being considered for possible addition to the List of Endangered and Threatened Wildlife (List), including the San Bernardino flying squirrel (50 FR 37958). Subsequently, three additional Notices of Review dated January 6, 1989 (54 FR 554), November 21, 1991 (56 FR 58804), and November 15, 1994 (59 FR 58982), were issued and presented an updated compilation of vertebrate and invertebrate animal taxa native to the United States, including the San Bernardino flying squirrel, that were being reviewed for possible addition to the List. This subspecies was categorized in these reviews as a “C2” taxon, meaning that listing was possibly appropriate but for which more information was needed before a final decision to list could be made. In 1996 the Service ceased using the C2 list. Subsequent Notices of Review contained only taxon for which the Service has on file sufficient information on biological vulnerability and threats to support proposals to list the species as endangered or threatened, but for which listing is precluded at present by other listing activity. These species are known as candidate species. Thus, the San Bernardino flying squirrel is not a candidate species.
        Species Information
        The San Bernardino flying squirrel (Glaucomys sabrinus californicus) is 1 of 25 subspecies of northern flying squirrel (Glaucomys sabrinus). There has been little research done on the subspecies (G. s. californicus); therefore, much of the biological information presented is based on other closely related subspecies of northern flying squirrel. The species (G. sabrinus) is a small gliding tree squirrel that lives in mixed-conifer forests (Weigl 2007, p. 898).

        The northern flying squirrel's geographic range encompasses southern portions of the Appalachian Mountains in the east and the Rocky Mountains, Sierra Nevada mountain range, and San Bernardino Mountains in the west (Smith 2007, p. 862). The San Bernardino flying squirrel is the most southerly distributed subspecies of northern flying squirrel on the western coast of the United States. It is separated and isolated geographically from the Sierra Nevada subspecies by 164 miles (265 kilometers) and the Mojave Desert (Brylski et al. 1998, p. 90). Historically, the San Bernardino flying squirrel was observed in the San Bernardino and San Jacinto Mountains of southern California (San Bernardino County and Riverside County; Grinnell and Swarth 1913, p. 328). The San Gorgonio pass, which probably linked the two ranges during the last ice age, now forms a barrier between the San Bernardino Mountains and San Jacinto Mountains (USFS 2005a, p. 1127). During the last ice age, the northern flying squirrel would have existed farther south than its observed range of the San Bernardino and San Jacinto Mountains, and it is believed that the San Bernardino flying squirrel represents ancestral populations that have been isolated in forested, higher elevation refugia by a warming climate (Butler et al. 1991, p. 4; Arbogast 2007, p. 844; Weigl 2007, p. 897).
        The subspecies was first described by Rhoads (1897) based on four specimens collected near Squirrel Inn in the San Bernardino Mountains at 5,200 feet (ft) (1585 meters (m)). Grinnell and Swarth (1913, p. 328) also trapped a San Bernardino flying squirrel in the San Jacinto Mountains in the unincorporated community of Idyllwild. Since 1913, there have been anecdotal sightings of San Bernardino flying squirrels in the San Jacinto Mountains, but no verified sightings or trapping records (USFS 2005a, p. 1228). A study of owl pellets from the San Jacinto Mountains did not find any San Bernardino flying squirrel remains (Stephenson and Calcarone 1999, p. 204). Additionally, the San Jacinto Centennial Resurvey by the San Diego Natural History Museum has failed to detect San Bernardino flying squirrels in their trapping efforts thus far (San Diego Natural History Museum 2011). Therefore, this historical habitat in the San Jacinto Mountains may no longer by occupied by the San Bernardino flying squirrel.
        The San Bernardino flying squirrel is genetically distinct from other subspecies of northern flying squirrels (Arbogast 2007, p. 844), and is morphologically different from other flying squirrels. The San Bernardino flying squirrel is paler in color and the smallest in size on a spectrum of subspecies from Alaska to the San Bernardino Mountains. The San Bernardino flying squirrel is an animal that belongs to the Order Rodentia, Family Sciuridae, and Subfamily Petauristinae (Wells-Gosling and Heaney 1984, p. 1). It is designated as a species of special concern by the California Department of Fish and Game and identified as a sensitive species by the U.S. Forest Service (U.S. Forest Service [USFS] 2005a, p. 1127).

        The San Bernardino flying squirrel is an arboreal (lives in trees) rodent that is active year-round and primarily nocturnal (Smith 2007, p. 862). Mature squirrels are typically 11-12 inches (in) (28-31 centimeters (cm)) in length and 3.5-5.5 ounces (98-158 grams) in weight (Grinnell and Swarth 1913, p. 329; Sumner 1927, p. 316; Butler et al. 1991, p. 12). The San Bernardino flying squirrel's coloration is gray to wood-brown to cinnamon on the upper side of the body and pale cream or white on the underside (Wells-Gosling and Heaney 1984, p. 2). As a subspecies of northern flying squirrel, it uses a furred membrane called a patagium that extends from wrist to ankle, thus enabling it to glide between trees (Wells-Gosling and Heaney 1984, p. 2). The San Bernardino flying squirrel can easily glide over 60-ft (18-m) expanses and has been known to glide more than 300 ft (91 m) (Butler et al. 1991, p. 19). This species tends to be long-lived with individuals living 4-7 years or more (Weigl 2007, p. 900). Northern flying squirrels are considered seasonal breeders (March through May) with typically one small litter (two to four young) per year; substantial energy is put into each offspring (Wells-Gosling and Heaney 1984, p. 4; Smith 2007, p. 862). Two types of nests are normally used by northern flying squirrels: External leaf nests constructed on branches and nests in cavities of trees (Smith 2007, p. 866) that protect the squirrels from the elements, particularly during cold winters.

        The main food preference for San Bernardino flying squirrels is truffles, a type of hypogeous (underground) fungi that occurs 2-6 in (5-15 cm) below the surface of the forest floor. San Bernardino flying squirrels have been found to eat fungi from three genera: Melanogaster, Hymenogaster, and Gymnomyces (Butler et al. 1991, p. 20). These fungi form symbiotic relationships with the roots of trees under the surface of the soil. Squirrels digest the nutrients from the truffle while simultaneously spreading the truffle spores and inoculating trees throughout the forest and habitat of the squirrel (Pyare and Longland 2001, p. 681; Weigl 2007, p. 900). When snow covers this food resource in the winter, the squirrels eat arboreal lichens and vegetation (Hall 1991, p. 616, Pyare and Longland 2001, p. 684; Smith 2007, p. 869).

        San Bernardino flying squirrels are also hunted as prey by other species. Wells-Gosling and Heaney (1984, p. 4) identified the following known predators of northern flying squirrels: barn owls (Tylo alba), great horned owls (Bubo virginianus), red-tailed hawks (Buteo jamaicensis), spotted owls (Strix occidentalis), martens (Martes americana), domestic house cats (Felis catus), wolves (Canis lupus), weasels (Mustela spp.), and foxes (Vulpes spp. and Urocyon spp.) (Wells-Gosling and Heaney 1984, p. 4). Identification of San Bernardino flying squirrel remains have been found in spotted owl pellets in the San Bernardino Mountains, making the spotted owl a known predator of the subspecies (Butler et al. 1991, p. 19; Smith et al. 1999, p. 24).

        We found no information in the petition or our files on the amount of space required by the San Bernardino flying squirrel. Other subspecies of northern flying squirrel have a range of 5-148 acres (ac) (2-60 hectares (ha)) of forest needed to support individuals of flying squirrels (Weigl 2007, p. 900). Typically, squirrels do not use all of this area on a daily basis, but can make longer journeys when searching for mates and food (Weigl 2007, p. 900). The San Bernardino flying squirrel inhabits high-elevation mixed-conifer forests approximately 4,000-8,500 ft (1,585-2,590 m) in elevation (Grinnell 1933, p. 136; Butler et al. 1991, p. 2; USFS 2005a, p. 1127). The vegetation of these areas commonly includes Abies concolor (white fir), Quercus kelloggii (black oak), and Pinus jeffreyi (Jeffrey pine) (Rhoads 1897, p. 323; Sumner 1927, p. 315; Grinnell 1933, p. 136; Butler et al. 1991, pp. 2, 5).

        San Bernardino flying squirrels are typically found in mature old-growth forests, although second-growth stands may still support relatively high densities of the subspecies (Butler et al. 1991, p. 5). Microhabitat factors related to mature forests (such as stumps, snags, and dead trees) are used by the squirrel for nesting and foraging habitat (Butler et al. 1991, p. 5). The subspecies also tends to choose trees for dens or nests that are over 100 ft (30 m) tall with diameters (at breast height) greater than 30 in (76 cm) (Butler et al. 1991, p. 17). Moisture is also a key factor in San Bernardino flying squirrel habitat, especially within the drier forests found in southern California (Smith 2007, p. 866). San Bernardino flying squirrels tend to occur more often in riparian areas, such as near a stream or spring (USFS 2005a, p. 1129), which retain an increased level of moisture that helps promote the growth of truffles (Meyer and North 2005, p. 1015). The canopy of a mature forest also helps to retain moisture and provide both shelter and protection from predators (USFS 2005a, p. 1129). Larger and older trees with associated woody debris and decaying logs also tend to be correlated with more abundant truffles in the soil (Weigl 2007, p. 900). Therefore, the San Bernardino flying squirrel's habitat seems to be related to conditions that are optimal for nesting and provide an ample supply of food.

        Trapping efforts historically detected low numbers of flying squirrels in the San Bernardino Mountains (Sumner 1927, p. 316). In our available information, we found only two recent trapping surveys (1991 and 1998) that included searching for San Bernardino flying squirrels through the San Bernardino National Forest (Butler et al. 1991, p. 13; Driessen et al. 1998, p. 4). Butler et al. (1991, p. 14) estimated the density of San Bernardino flying squirrels in the San Bernardino Mountains at 0.94 flying squirrels per ha (2.5 ac) based on one trapping grid. This estimate is in the lower range of northern flying squirrel densities found in the western United States (0.9-3.07 squirrels per ha (2.5 ac); Butler et al. 1991, p. 6). Butler et al. (1991, p. 10) found 22 San Bernardino flying squirrels during trapping, with the greatest number of squirrels on the west side of the Bear Mountain Ski Area. A trapping effort in 1998 captured six San Bernardino flying squirrels at a site near the unincorporated community of Fawnskin and three squirrels at a site near Bear Mountain (Driessen et al. 1998, pp. 4-6). However, no recent studies have been done on the abundance of San Bernardino flying squirrels in the San Bernardino Mountains.
        Butler et al. (1991, p. 26) looked for remains of San Bernardino flying squirrels in spotted owl pellets to estimate distribution of the species within the San Bernardino National Forest. They found 172 instances of San Bernardino flying squirrels within pellets from 43 owl nest sites between 1987 and 1991 (Butler et al. 1991, p. 19). Using these data, they extrapolated habitat occupied by San Bernardino flying squirrels to estimate the following range: Sugarpine Mountain and Lake Silverwood in the west, east to Lake Arrowhead and Big Bear Lake regions, and south to parts of San Gorgonio Wilderness, the Thurman Flats area along Mill Creek, and the Raywood Flat area along the Gorgonio River (Butler et al. 1991, pp. 19-26). Rangers and biologists of the Mountaintop Ranger District (San Bernardino National Forest) have received numerous anecdotal reports and photographs of San Bernardino flying squirrels in residential areas of the unincorporated communities of Big Bear, Angeles Oaks, Fawnskin, and Lake Arrowhead (USFS 2005a, p. 1128).
        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. A species may be determined to be 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 potential threats to the San Bernardino flying squirrel, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. In several instances, the petitioner associated a potential threat with a factor different than the factor under which the Service generally analyzes that threat; those particular instances are noted below where appropriate and the threats are analyzed under the factor consistent with Service guidance. Our evaluation of this information is presented below.
        A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range
        Climate Change—Information Provided in the Petition

        The petition states that the ecological impacts of climate change are causing alterations in the habitat of many species in response to rising temperatures (Bonfils et al. 2008, pp. 6421, 6422; CBD 2010, p. 26), changes in precipitation and precipitation extremes (Leung et al. 2004, pp. 75, 109; CBD 2010, p. 36), reduced snowpack in California mountains (Pierce et al. 2008, p. 6425; CBD 2010, p. 32), and increased drought duration and severity causing lower soil moisture (CBD 2010, p. 37; Dominguez et al. 2010, pp. 499, 500). The petition claims that these climate changes are leading to a loss of the mixed-conifer/black-oak forest habitat used by the San Bernardino flying squirrel. Abies concolor (white fir) and Pinus jeffreyi (Jeffrey pine) trees in the adjacent Santa Rosa Mountains have shown an upslope shift over the past 30 years, a trend that may suggest a similar change is also occurring in the San Bernardino and San Jacinto Mountains (Kelly and Goulden 2008, p. 11823; CBD 2010, p. 40). The petition states that high-elevation species have limited suitable habitat for movement in response to these climate-caused shifts in habitat, and may simply run out of suitable habitat to occupy. The petition states that San Bernardino flying squirrels are more vulnerable to climate change because they are a high-elevation species at the southern limit of the species' range where climate change impacts are expected to be more pronounced.
        Climate Change—Evaluation of Information Provided in the Petition and Available in Service Files

        After our evaluation of information provided in the petition, we find that the petition provides information to support the claim that the San Bernardino flying squirrel's habitat may be affected by impacts due to climate change. Consideration of ongoing and projected climate change is a component of our analyses under the Endangered Species Act. Described in general terms, “climate change” refers to a change in the state of the climate (whether due to natural variability, human activity, or both) that can be identified by changes in the mean or variability of its properties (e.g., temperature, precipitation) and that persists for an extended period, typically decades or longer (Intergovernmental Panel on Climate Change (IPCC 2007, p. 30). Various types of changes in climate can have direct or indirect effects on species, and these may be positive or negative depending on the species and other relevant considerations, such as the effects of interactions with nonclimate conditions (e.g., habitat fragmentation). We use our expert judgment to weigh relevant information, including uncertainty, in our consideration of various aspects of climate change that are relevant to the San Bernardino flying squirrel. Climate is influenced primarily by long-term patterns in air temperature and precipitation. Changes in temperature and rainfall patterns are expected to shift the distribution of ecosystems northward (IPCC 2007, p. 33) and up mountain slopes (McDonald and Brown 1992, pp. 411-412; IPCC 2007, p. 33). These predicted climate shifts could lead to a loss in conifer/black oak forests, thus potentially eliminating suitable nesting sites, food, and other habitat requirements for San Bernardino flying squirrels. Flying squirrels occur more frequently near riparian ecosystems (USFS 2005a, p. 1129; Smith 2007, p. 866); therefore, changes in water regime or decreased flow could affect vegetation structure necessary for the species (Smith 2007, p. 864). In summary, we find the petition presents substantial scientific or commercial information indicating that the San Bernardino flying squirrel may be threatened by the effects of climate change based on the present or threatened destruction, modification, or curtailment of its habitat or range.
        Forest Fuel-Reduction Practices—Information Provided in the Petition
        The petition notes that San Bernardino flying squirrel habitat is lost not only due to climate change, but also due to fuel reduction projects in the San Bernardino and San Jacinto Mountains. Salvage logging and construction or maintenance of fuel breaks and Wildland-Urban Interface (WUI) Defense and Threat Zones are also cited by the petitioner as threats to the habitat of the San Bernardino flying squirrel. The petition claims that these fuel-reduction practices reduce suitable habitat and also remove or damage important habitat components including important food resources (USFS 2005b, pp. 25-27; CBD 2010, p. 46). The petitioner states that fuel-reduction projects degrade the habitat of the flying squirrel.
        Forest Fuel-Reduction Practices—Evaluation of Information Provided in the Petition and Available in Service Files
        We evaluated the information in the petition and in our files and found that forest management practices in the urban-forest interface of communities in the San Bernardino Mountains, in combination with other habitat threats, may add to the degradation of habitat structure or loss of habitat needed by the San Bernardino flying squirrel. Fuel treatments used to reduce the intensity of fires and the amount of fuel in the forest include removing dead trees and thinning the forest (USFS 2005b, p. 27). These practices may remove habitat for San Bernardino flying squirrel nests (such as snags and dead trees) and the canopy structure needed to maintain a moist sheltered habitat. Additionally, fuel breaks and WUI defense zones are constructed along roads, ridgelines, and buildings to prevent the spread of wildfire (USFS 2005b, p. 27). All vegetation is regularly removed from these WUI areas. Where San Bernardino flying squirrel habitat occurs within fuel break areas, these practices remove some vegetation used by flying squirrels. Although these planned actions may affect San Bernardino flying squirrel habitat within the San Bernardino National Forest, the U.S. Forest Service has committed to strategically locating fuel treatments with respect to natural resources and sensitive habitat (USFS 2005b, p. 26). Therefore, the San Bernardino Land Management Plan diminishes the impacts to San Bernardino flying squirrel habitat by strategically placing fuel management areas.
        Although we currently do not have information to support the determination that these practices decrease the food supply of San Bernardino flying squirrels, fuel-reduction practices near urban communities in the San Bernardino Mountains, combined with habitat loss from other sources, could impact the amount and quality of San Bernardino flying squirrel habitat. In summary, we find that the petition presents substantial scientific or commercial information indicating that the San Bernardino flying squirrel may be threatened by the effects of fuel-reduction practices in the San Bernardino Mountains.
        Urban Air Pollution—Information Provided in the Petition

        Urban air pollution was cited in the petition as a threat to the San Bernardino flying squirrel due to its ability to potentially change the availability of resources for food, cover, and nesting. Specifically, the petition claims that increased nitrogen deposition and ozone enrichment alter the diversity and availability of epiphytic lichen (a symbiotic organism composed of fungus and algae that grow on plants for mechanical support) communities that the squirrels depend on for food (Fenn et al. 2008, pp. 505, 508; CBD 2010, p. 56). This increase in nitrogen deposition and ozone enrichment was also cited by the petitioner as causing a decrease in the understory plant community that may provide protection from predators of flying squirrels (CBD 2010, p. 56). Additionally, air pollution was cited as being responsible for a decrease in the diversity of fungi and an increase in susceptibility of trees to drought (CBD 2010, p. 57).
        Urban Air Pollution—Evaluation of Information Provided in the Petition and Available in Service Files

        We evaluated the information in the petition and in our files and found no information that connects urban air pollution to the degradation or loss of San Bernardino flying squirrel habitat. The petition suggests that urban air pollution is a threat to the San Bernardino flying squirrel due to its ability to potentially change the availability of resources for food, cover, and nesting. We acknowledge that information in our files and in the petition indicates that urban air pollution affects the Los Angeles basin, including the San Bernardino Mountains (Fenn et al. 2003, p. 396; Fenn et al. 2008, p. 502), with nitrogen deposition impacts including eutrophication in water bodies, community composition changes in vegetation, low visibility in the area, and increased ozone pollutants (Fenn et al. 2003, pp. 391-392). However, nitrogen emissions within the southern California region decreased from 1975-2000 due to stricter regulations (Fenn et al. 2003, p. 401). Our evaluation of information in the petition and our files did not reveal a connection between urban air pollution and San Bernardino flying squirrel habitat.

        Although urban air pollution has been observed in the region, the effects of this pollution on the San Bernardino flying squirrel are unknown. Fenn et al. (2008, p. 505) reported that increased nitrogen deposition can affect the diversity of acidophytes (symbiotic organisms that occur on host tress with an acidic pH) in a lichen community. While nitrogen deposition rates in the Los Angeles basin are high compared to the rest of the country, we do not have information on the impacts of decreased lichen diversity or availability to San Bernardino flying squirrels. There was no information presented in the petition or found in our files on the effects of urban air pollution on the flying squirrel's main source of food (truffles).
        The petitioner also claims that nitrogen deposition and ozone enrichment cause declines in understory plant diversity and higher susceptibility to drought in plants. The petitioner did not support their claim or provide information that documents a connection between the loss of understory plant diversity and the main truffle food source of the squirrel. The loss of truffles is based on the assumption that the decreasing trend seen with lichens would be similar in truffles (CBD 2010, p. 57). Therefore, after our evaluation of the information, the petition does not present evidence on how urban air pollution might affect the San Bernardino flying squirrel's main food source. While research shows that urban air pollution could be affecting the San Bernardino Mountains, it is unclear how these changes in plant and lichen availability, diversity, and physiology will directly or indirectly affect San Bernardino flying squirrel.

        With regards to urban air pollution, the petitioner does not provide citations to support assertions concerning the present or threatened destruction, modification, or curtailment of habitat or range for the San Bernardino flying squirrel. Their arguments rely on the loss of diversity and availability of acidophyte lichens, declines in understory plant diversity, and a higher susceptibility to drought conditions in plants without drawing on evidence of how these changes are negatively affecting the San Bernardino flying squirrel. No information is provided to determine how these changes directly affect San Bernardino flying squirrels. Therefore, we find the petition, as well as other information in our files, does not present substantial scientific or commercial information to indicate that urban air pollution may present a threat to the San Bernardino flying squirrel such that the petitioned action may be warranted. We will, however, further investigate whether urban air pollution is a potential threat to the habitat of the San Bernardino flying squirrel in our 12-month status review.
        Urban Development—Information Provided in the Petition
        Urban development in the San Bernardino and San Jacinto Mountains was noted in the petition as a threat to San Bernardino flying squirrel habitat. The petition asserted that the expansion of existing communities and ski resorts, as well as new development, led to the loss and fragmentation of remaining habitat, accompanied by the need for further fuel reductions around these human structures (USFS 2005a, p. 1135; CBD 2010, pp. 57-59), and require expanded fuel management for WUI Defense Zones (CBD 2010, pp. 57-59). The petition states that the San Bernardino flying squirrel is threatened by loss and fragmentation of mature forest habitat in the San Bernardino Mountains area.
        Urban Development—Evaluation of Information Provided in the Petition and Available in Service Files
        Through the evaluation of the petition and information in our files, we found that several development projects are planned in areas that contain San Bernardino flying squirrels or within habitat considered suitable for the taxon (County of San Bernardino 2007, pp. 15, 37; Michael Brandman Associates 2010, pp. 2-2, 2-3; PCR Services Corporation 2010, pp. 2-3, 3.C-26; Vista Community Planners 2010, p. 1-3). The U.S. Forest Service states that urban development impacts the habitat of the San Bernardino flying squirrel (USFS 2005a, p. 1135). Urban development may affect San Bernardino flying squirrel habitat through direct loss of habitat, habitat fragmentation, and habitat modification through such activities as fuel treatment around structures (USFS 2005a, p. 1135). Habitat fragmentation may occur in some areas where openings created between trees are wider than 200 ft (61 m) and squirrels are unable to glide between trees (USFS 2005a, p. 1135). One recent survey has a confirmed observation of San Bernardino flying squirrels within a development area (PCR Services Corporation 2010, p. 3.C-26). Many urban development projects have incorporated best management practices during construction to benefit the San Bernardino flying squirrel (Michael Brandman Associates 2010, p. ES-26; PCR Services Corporation 2010, pp. ES-19, ES-20; Vista Community Planners 2010, p. 3-4).
        Although the Service has received notification letters and has commented on proposed projects (USFWS 2006, pp. 1-4), the Service does not have a regulatory role in the review of these proposed development projects because the San Bernardino flying squirrel is not a listed species under the Act. These proposed projects are expected to result in the direct loss of habitat, habitat fragmentation, or habitat modification. Therefore, we find the petition presents substantial scientific or commercial information indicating that the San Bernardino flying squirrel may be threatened by urban development.
        Summary of Factor A
        In summary, we find that the petition and other information in our files present substantial information indicating that environmental impacts resulting from climate change, forest fuel-reduction practices, and urban development may be threats to the habitat or range of the San Bernardino flying squirrel. Coupled with range reduction due to the likely extirpation of the squirrel in the San Jacinto Mountains, and low density of squirrels detected within the San Bernardino Mountains, these habitat impacts may affect the San Bernardino flying squirrel. The petition and other information in our files do not present substantial information indicating that urban air pollution may be a threat to the San Bernardino flying squirrel, although we will further investigate urban air pollution in our 12-month status review.
        B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
        Information Provided in the Petition
        The petition asserts that San Bernardino flying squirrels are considered a “nuisance species” by nesting in attics, and that their removal may cause injury or death. Additionally, the petition notes the potential for San Bernardino flying squirrels to be captured as pets. The petition also includes the potential threat of house cat predation, which we discuss below under Factor C (Disease or Predation).
        Evaluation of Information Provided in the Petition and Available in Service Files
        We reviewed information in our files and the information provided by the petition, and did not find substantial information to indicate that San Bernardino flying squirrels are being injured or killed by people, nor was any reference information provided to support that they are collected as pets. There is some evidence that San Bernardino flying squirrels have been run over by vehicles in the San Bernardino National Forest (Chris Brown 2010, pers. comm.); however, there was no information presented in the petition or found in our files on the effects of such mortality on the San Bernardino flying squirrel. We find that the petition does not present substantial scientific or commercial information to indicate that overutilization for commercial, recreational, scientific, or educational purposes may present a threat to the San Bernardino flying squirrel such that the petitioned action may be warranted. However, we will further investigate whether injury or death caused by humans and collection as pets are potential threats to the San Bernardino flying squirrel in our 12-month status review.
        C. Disease or Predation
        Information Provided in the Petition

        The petition claims that, although San Bernardino flying squirrel diseases have not been well-studied, some evidence suggests that disease could pose a threat to the species. West Nile virus has been detected in grey squirrels (Sciurus griseus) in the San Bernardino Mountains. Additionally, the petition states that climate change may lead to increases in temperature and humidity, allowing new pathogens to expand northward and upslope, exposing the subspecies to new threats from disease. The petition also notes that San Bernardino flying squirrels face an increasing risk of predation from domestic house cats due to the expansion of communities and development in the San Bernardino and San Jacinto Mountains.
        Evaluation of Information Provided in the Petition and Available in Service Files

        We did not find substantial information to indicate that West Nile virus presents a threat to the San Bernardino flying squirrel. There was no information provided in the petition (nor in our files) to support the petitioner's claim that West Nile virus is the direct cause of grey squirrel population declines, nor is there evidence that San Bernardino flying squirrels are being affected by the virus. While the petition provides some information to suggest that rising temperatures can expand the range and reproductive output of some pathogens, no information was provided to indicate that this is occurring within the range of the San Bernardino flying squirrel, nor does information in our files indicate that new pathogens threaten the subspecies now or in the future. However, we will further investigate whether West Nile virus is a potential threat to the San Bernardino flying squirrel in our 12-month status review.

        Information provided by the petitioner and readily available in our files indicates the San Bernardino flying squirrel may be threatened by predation from domestic and feral cats (Mitchell and Beck 1992, p. 200; USFS 2005a, pp. 1134, 1135), and this threat may be increasing due to increases in residential development within the range of this subspecies. Domestic cats can range and hunt across both urban and adjacent forested areas. Several residential development projects are planned in areas that contain San Bernardino flying squirrels or within suitable habitat for the species (County of San Bernardino 2007, pp. 15, 37; Michael Brandman Associates 2010, pp. 2-2, 2-3; PCR Services Corporation 2010, pp. 2-3, 3.C-26; Vista Community Planners 2010, p. 1-3). Domestic house cats are listed as a predator of northern flying squirrel species (Wells-Gosling and Heaney 1984, p. 4) and have been documented preying on the southern flying squirrel (Glaucomys volans; found through eastern North America south to Mexico and Honduras) (Mitchell and Beck 1992, p. 200). Additionally, Hall et al. (2000, p. 23) found California ground squirrels (Spermophilus beecheyi) occasionally in the scat of feral cats. Research shows that feral cats show a preference for hunting native species in riparian habitats (Hall et al. 2000, p. 23), and it is reasonable to assume that feral and free-ranging cat abundance would increase as more residential development occurs (Jurek 1994, p. 1; Hall et al. 2000, p. 20).
        All species are subjected to some level of disease and predation under natural conditions, and the San Bernardino flying squirrel has many natural predators (see Background section). We do not have substantial information from the petition or in our files to suggest that this naturally occurring predation is outside the range of natural variation in the ecosystem. However, domestic and feral cats are an unnatural, nonnative, and possibly increasing predation threat to the San Bernardino flying squirrel (Mitchell and Beck 1992, p. 197).
        In summary, we find that the information provided in the petition, as well as other information in our files, presents substantial scientific or commercial information indicating that the petitioned action may be warranted due to predation of the San Bernardino flying squirrel by domestic and feral cats. As stated above, we will also further investigate whether West Nile virus is a potential threat to the San Bernardino flying squirrel in our 12-month status review.
        D. The Inadequacy of Existing Regulatory Mechanisms
        International, Federal, and State Greenhouse Gas Regulatory Mechanisms—Information Provided in the Petition

        The petition states that current greenhouse gas regulatory mechanisms are inadequate to protect the San Bernardino flying squirrel and its habitat, particularly concerning impacts related to climate change. The United Nations Framework Convention on Climate Change and the Kyoto Protocol were noted as inadequate international regulatory mechanisms. The petitioners cite the Service's 2008 listing of the polar bear (Ursus maritimus), which concluded that there are no regulatory mechanisms that address the anthropogenic causes of climate change (such as greenhouse gas emissions) and the impact of warming temperatures and altered precipitation patterns on diminishing sea ice (73 FR 28288, May 15, 2008). California laws and initiatives (including the Global Warming Solutions Act of 2006 and California Environmental Quality Act (CEQA)) and the Federal Clean Air Act, Energy Policy and Conservation Act, Clean Water Act, and Endangered Species Act were all also listed as inadequate greenhouse gas regulatory mechanisms.
        International, Federal, and State Federal Greenhouse Gas Regulatory Mechanisms—Evaluation of Information Provided in the Petition and Available in Service Files
        For environmental impacts that may be due to climate change, as discussed above under Factor A, we will further explore any existing regulatory mechanisms that may ameliorate these effects in our 12-month status review.
        San Bernardino National Forest Land and Resource Management Plan (LRMP)—Information Provided in the Petition
        The San Bernardino National Forest Land and Resource Management Plan (LRMP) is listed by the petitioner as inadequate to protect the San Bernardino flying squirrel or its habitat. The petitioner claims the Plan's fuel reduction program degrades the mixed-conifer forest habitat and does not adequately allow for monitoring and evaluation of impacts to the squirrel.
        San Bernardino National Forest Land Management Plan (LRMP)—Evaluation of Information Provided in the Petition and Available in Service Files
        The San Bernardino National Forest LRMP was prepared in accordance with the National Forest Management Act of 1976 (NFMA), the regulatory mechanism directing the administration and management of national forests. The Plan's intent is to maintain forests in a sustainable manner to allow for social, economic, and ecological benefits to continue for future generations. The San Bernardino National Forest LRMP includes provisions specifically to reduce habitat loss and fragmentation and reduce conflicts with development (USFS 2005b, p. 23). While we agree that creating fuel breaks may remove some components of San Bernardino flying squirrel habitat, we do not find substantial information that the NFMA, or the level of monitoring of impacts performed by the Forest Service, is inadequate in addressing the threat of habitat loss in the San Bernardino National Forest. After evaluation of the petition and information in our files, the petitioner does not provide adequate information to support the claim that San Bernardino National Forest LRMP is an inadequate existing regulatory mechanism for the San Bernardino flying squirrel.
        State Regulatory Mechanisms—Information Provided in the Petition

        In addition to discussing State regulatory mechanisms related to greenhouse gas emissions, the petition claims local agencies are not adequately evaluating the individual and cumulative impacts of development projects on the San Bernardino flying squirrel despite its status as an “Endangered, Rare, or Threatened Species” under CEQA (CBD 2010, p. 62).

        State Regulatory Mechanisms—Evaluation of Information Provided in the Petition and Available in Service Files
        The petition provides no information to support the claim that local agencies are not adequately evaluating the individual and cumulative impacts of development projects on the San Bernardino flying squirrel under CEQA. CEQA does provide some protection for unlisted species through requiring public agencies to disclose environmental impacts of a project on native species and natural communities. CEQA also requires the identification and mitigation of project impacts, unless the agency makes a finding of overriding consideration. Therefore, CEQA does provide some protection for the San Bernardino flying squirrel and its habitat.
        Summary of Factor D
        We find that the petition does not present substantial scientific or commercial information to indicate that the inadequacy of existing regulatory mechanisms may present a threat to the San Bernardino flying squirrel such that the petitioned action may be warranted. However, we will further investigate whether the inadequacy of existing regulatory mechanisms is a potential threat to the San Bernardino flying squirrel in our 12-month status review.
        E. Other Natural or Manmade Factors Affecting Its Continued Existence
        Information Provided in the Petition
        The petition identified environmental impacts resulting from climate change as a factor impacting the San Bernardino flying squirrel. We know of no element of the San Bernardino flying squirrel's life history or physiology that would be directly affected by changes in climate. Predicted climate changes could impact forested environments upon which San Bernardino flying squirrels depend. Therefore, we addressed all climate change threats under Factor A above.
        The petition did not identify any other natural or manmade factors that could potentially impact the San Bernardino flying squirrel.
        Evaluation of Information Provided in the Petition and Available in Service Files

        The available information in our files does not indicate any threat to the San Bernardino flying squirrel from other natural or manmade factors affecting its continued existence. The limited range and low density of the subspecies suggest that San Bernardino flying squirrels may be more vulnerable to stochastic events such as large wildfires, as seen in other species with small populations and narrow ranges (Kohlmann et al. 2005, pp. 85, 86). However, we have no information at this time in regard to San Bernardino flying squirrels to support this theory, although we will further investigate whether this is a potential threat in our 12-month finding. Therefore, we find that the petition and information readily available in our files do not provide substantial scientific or commercial information to indicate that other natural or manmade factors may present a threat to the San Bernardino flying squirrel such that the petitioned action may be warranted.
        Finding
        On the basis of our evaluation of the petition and other readily available data under section 4(b)(3)(A) of the Act, we determine that the petition presents substantial scientific or commercial information indicating that listing the San Bernardino flying squirrel throughout its entire range may be warranted. This finding is based on information provided under Factors A and C. We determine that information provided under Factors B, D, and E does not present substantial information.
        Because we have found that the petition presents substantial information indicating that listing the San Bernardino flying squirrel may be warranted, we are initiating a status review to determine whether listing the San Bernardino flying squirrel under the Act is warranted.
        The “substantial information” standard for a 90-day finding differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not mean that the 12-month finding will result in a warranted finding.
        References Cited

        A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
        Author
        The primary authors of this notice are the staff members of the Carlsbad Fish and Wildlife Office.

          Authority:

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

          Dated: January 19, 2012.
          Daniel M. Ashe,
          Director, U.S. Fish and Wildlife Service.

      [FR Doc. 2012-2135 Filed 1-31-12; 8:45 am]
      BILLING CODE 4310-55-P