        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Yellowstone National Park Bison Herd as Endangered

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of 90-day petition finding.

          SUMMARY:
          We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the Yellowstone National Park (YNP) bison herd as endangered under the Endangered Species Act of 1973, as amended (Act). On the basis of our review of the petition and information readily available in our files, we have determined that there is substantial information indicating that the YNP bison herd may meet the criteria of discreteness and significance as defined by our policy on distinct vertebrate population segments (DPS). However, we have also determined that there is not substantial information indicating that listing the YNP bison herd under the Act may be warranted throughout all or a significant part of its range. We will not initiate a status review in response to this petition. We ask the public to submit to us any new information that becomes available concerning the status of the YNP bison herd or threats to it or its habitat at any time. This information will help us monitor and encourage the conservation of the species.

          DATES:
          The finding announced in this document was made on August 15, 2007. New information concerning this species may be submitted for our consideration at any time.

          ADDRESSES:

          Data, information, comments, or questions concerning this petition finding should be submitted to the Assistant Regional Director, Ecological Services, U.S. Fish and Wildlife Service, 134 Union Boulevard, Suite 645, Lakewood, Colorado 80228. The petition finding and supporting information will be available for public inspection, by appointment, during normal business hours at the above address. The petition and finding are available on our Web site at http://r6.fws.gov/mammals/bison.

          FOR FURTHER INFORMATION CONTACT:

          Michael Stempel, Assistant Regional Director, Ecological Services, U.S. Fish and Wildlife Service (see ADDRESSES section) (telephone 303-236-4253; facsimile 303-236-0027).

        SUPPLEMENTARY INFORMATION:
        Background

        Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate 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 at the time we make the determination. 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 this finding promptly in the Federal Register.
        Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information was presented, we are required to promptly commence a review of the status of the species.
        In making this finding, we relied on information provided by the petitioners and information otherwise available in our files, and evaluated that information in accordance with 50 CFR 424.14(b). Our process of coming to a 90-day finding under section 4(b)(3)(A) of the Act and section 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold.
        Mr. James Horsley of Moorhead, Minnesota, filed a petition dated January 5, 1999, with the Secretary of the Interior to list the “herd of buffalo at the Yellowstone National Park” “because it is endangered in a significant portion of its range.” Mr. Horsley requested that the Service list the herd as a subspecies or “distinct population group,” and to designate critical habitat in and adjacent to YNP. The Service received the petition on February 11, 1999. Action on this petition has been precluded until now because of higher priority listing actions. This finding does not consider critical habitat, which would only arise with a positive 12-month finding.
        Biology and Distribution

        The bison (also referred to as the American buffalo) is a member of the family Bovidae, which includes domestic cattle. Two subspecies of bison are currently recognized in North America—the plains bison (Bison bison bison) and the wood bison (Bison bison athabascae) (Boyd 2003, pp. 28-31). The species once ranged across central and western North America, but market hunting nearly extirpated the herds by the 1880s.

        Numerous Federal, State, and private bison herds currently exist in the United States, but YNP is the only area in the United States where bison have existed in the wild state since prehistoric times (Gates et al. 2005, p. 92). Boyd (2003, p. 38) estimated the plains bison population in North America at 500,000, and identified 50 herds (containing approximately 19,200 head) currently being managed with clear conservation objectives.
        Many of the numerous bison herds currently extant in the United States and Canada were reconstituted from stock that was used to develop bison-cattle hybrids (Boyd 2003, p. 23). Research on 11 Federal herds revealed that the bison herd in YNP was 1 of 3 that showed no evidence of genetic introgression with cattle (Halbert 2003, pp. 86-87) based on the alleles examined. (Introgression occurs when the genes of one species infiltrate the genes of another through repeated crossings.) The other two herds were Wind Cave National Park in South Dakota and Grand Teton National Park in Wyoming (Halbert 2003, p. 87), although the Grand Teton sample size was small so confidence in the results is lower than that for Wind Cave. More recently, the bison herd at Sully's Hill National Game Preserve in North Dakota has been sampled and is not known to be introgressed, although the sample size was small (Roffe 2005).
        Halbert (2003, pp. 44-45) found only four of the Federal herds made positive contributions to overall bison genetic diversity (measured in terms of allelic richness and gene diversity). Those herds were: YNP, National Bison Range (Montana), Wichita Mountains National Wildlife Refuge (Oklahoma), and Wind Cave.
        The winter 2005-2006 count of the YNP bison herd estimated the herd size at 3,546 bison (Geremia and Wallen 2006), and the most recent summer count estimated the herd size at 4,500 bison (Wallen 2007).
        Subspecies

        The bison in Yellowstone National Park are considered to be plains bison (Bison bison bison). As mentioned previously, Boyd (2003, p. 38) estimated the plains bison population in North America at 500,000, and identified 50 herds (containing approximately 19,200 head) currently being managed with clear conservation objectives. Given the abundance and management status of the subspecies, we have concluded that the petition has not presented substantial information indicating that its listing under the Act may be warranted.
        Distinct Vertebrate Population Segment

        The petitioner asked us to list the YNP bison herd as a “distinct population group.” We assume that the petitioner meant a Distinct Vertebrate Population Segment (DPS) for purposes of listing under the Act. Under section 3(15) of the Act, we may consider for listing any species, subspecies, or, for vertebrates, any DPS of these taxa. In determining whether an entity constitutes a DPS, and is therefore listable under the Act, we follow the Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (DPS Policy) (61 FR 4722; February 7, 1996). Under our DPS Policy, we must address three analytical steps prior to listing a possible DPS: (1) The discreteness of the population segment in relation to the remainder of the taxon; (2) the significance of the population segment to the taxon to which it belongs; and (3) the population segment's conservation status in relation to the Act's standards for listing (i.e., is the population segment, when treated as if it were a species, endangered or threatened) (61 FR 4722, February 7, 1996). This finding considers whether the petition states a reasonable case that the petitioned population may be a DPS.
        Discreteness
        Under the DPS Policy, a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following two conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation; or (2) it is delimited by international governmental boundaries within which significant differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist (61 FR 4722, February 7, 1996).
        Information Provided in the Petition on Discreteness

        The petitioner asserts that the YNP bison “herd is the only wild, unfenced buffalo herd in the nation,” but no specific citations are provided to support this conclusion. Information in our files support the conclusion that the YNP bison population is the only herd in the United States that has remained in a wild state since prehistoric times (Gates et al. 2005, p. 93). All other bison in the United States are reconstituted herds and are confined with fencing, or otherwise range restricted. Individuals from the Jackson bison herd in Grand Teton National Park and the National Elk Refuge have been known to migrate north into YNP, but this is a rare occurrence (Gates et al. 2005, p. 109). Therefore, we find that the YNP bison herd may be discrete from other members of the taxon Bison bison because of physical distance and barriers.
        Significance
        Under our DPS Policy, in addition to our consideration that a population segment is discrete, we consider its biological and ecological significance to the taxon to which it belongs. This consideration may include, but is not limited to: (1) Evidence of the persistence of the discrete population segment in an ecological setting that is unique or unusual for the taxon; (2) evidence that loss of the population segment would result in a significant gap in the range of the taxon; (3) evidence that the population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; and (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics (61 FR 4721; February 7, 1996).
        Information Provided in the Petition on Significance
        The petitioner asserts that the YNP bison herd is significant within the meaning of our DPS policy because it is the last wild, unfenced herd in the United States, and exhibits quasi-migratory behavior when members of the herd leave YNP during the winter in search of food. The petition also asserts that the herd may be a unique hybrid of the wood and plains bison, and the herd has historical and cultural significance to Native Americans. No citations are provided to substantiate these statements.
        (1) Evidence of the persistence of the discrete population segment in an ecological setting that is unique for the taxon. The petitioner asserts that YNP is the only area in the lower 48 States where bison have existed in the wild state since prehistoric times. This statement is consistent with Gates et al. (2005, p. 245), and indicates that the YNP bison herd may exist in a unique ecological setting within the meaning of our DPS Policy.

        The petitioner's assertion that the YNP bison were important to Native Americans also is supported by Gates et al. (2005, p. 77) (e.g., “The Lamar Valley and the Yellowstone River Valley north to Livingstone was an important area for bison and Native peoples throughout the Holocene.”). We agree with the petitioner that the YNP bison herd has substantial cultural and historical value. However, the significance criteria in our DPS Policy are based on biological factors identified in the Act that show that the population is significant to the taxon, and not on human cultural or historical significance. Therefore, we did not evaluate cultural and historical significance in our DPS analysis, but rather relied solely on the scientific criteria in the DPS Policy.

        The petitioner asserts that the YNP is significant because of its “quasi-migratory behavior.” Gates et al. (2005, p. 160) concludes that YNP is a forage-limited system, and that, “Bison move beyond park boundaries in winter in response to forage limitation caused by interactions between population density, variable forage production (driven by spring/early summer precipitation), snow conditions, and herbage removal primarily by bison and elk.” Winter movement of large herbivores, such as bison and elk, in search of forage is normal behavior. The fact that bison and elk range outside the Park is not unusual. Based on this information, we would not consider the YNP bison herd movements to winter range outside the Park boundary as a unique behavior within the meaning of our DPS Policy.
        (2) Evidence that loss of the population segment would result in a significant gap in the range of the taxon. The petition alleges that the YNP bison herd is the only remaining wild, unfenced bison herd. As discussed under “Biology and Distribution,” there are 3 other Federal bison herds that show no evidence of introgression with domestic cattle, based on sampling done to date. Because of the limited number and extent of bison herds that show no evidence of introgression with domestic cattle, we find that loss of the YNP bison herd might result in a significant gap in the current range of the taxon.
        (3) Evidence that the population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range. The petition provides no specific information to indicate that the YNP bison herd would meet this criterion. As noted above, Gates et al. (2005, p. 245) indicate that YNP is the only area in the lower 48 States where bison have existed in a wild state since prehistoric times. Bison originally ranged across western North America; because numerous herds have been reintroduced in the historic range, we have determined that the YNP herd is not the only surviving natural occurrence within its range. Additionally, the species is not more abundant elsewhere outside its historic range.
        (4) Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. The petition alleges that the YNP bison herd may be a unique hybrid of the wood and plains bison. No citations are provided, but this conclusion was stated in Meagher (1973, pp. 14-16), who considered the “mountain” bison a separate species. This controversy has since been resolved, and YNP staff now considers the remnant population, as well as the introduced bison, as being of plains bison origin (Boyd 2003, pp. 182-183; Wallen 2006).
        Additional information in our files compiled after this petition was submitted indicates that the YNP bison herd is one of three Federal herds that do not display genetic introgression with cattle. Maintenance of genetic diversity is an important long-term goal for management of species populations. Halbert (2003, p. 94), concluded her study by stating: “In conclusion, this study has assessed levels of domestic cattle introgression in 10 federal bison populations and identified at least 2 populations, Wind Cave and YNP, which at this time do not have any evidence of domestic cattle introgression and also have high levels of unique genetic variation in relation to other federal populations. As such, these populations should be given conservation priority * * *” Thus, we conclude that the YNP bison herd satisfies this genetic criterion of significance under the DPS Policy.
        DPS Determination

        The Grand Teton National Park/National Elk Refuge bison herd is separate from the YNP herd (Gates et al. 2005, p. 93), and there are less than a dozen other unconfined bison herds in the entire lower 48 States (Gates et al. 2005, p. 2). Therefore, the YNP herd is discrete from other members of the taxon. Recent genetic research confirms that the YNP bison herd is significant because of a lack of nuclear domestic cattle introgression. Although 3 other Federal herds exhibit this characteristic, the YNP bison are the only remnant population that has remained in a wild state since prehistoric times and, therefore, is important to the management of bison genetic diversity. Halbert (2003, pp. 44-45) found only four Federal herds that were sufficiently unique to contribute significantly to overall bison genetic diversity.
        On the basis of the preceding discussion, we believe that there is substantial information to conclude that the YNP bison herd may be discrete and significant within the meaning of our DPS Policy, and therefore may constitute a DPS.
        According to our DPS Policy, if a population of a species is found to be both discrete and significant, we then evaluate the conservation status of the population in relation to the listing factors found in section 4(a)(1) of the Act. Our assessment of the conservation status of the YNP bison herd, based on the information provided in the petition and our files, is provided in the “Conservation Status” section below.
        Conservation Status
        Pursuant to section 4(a) of the Act, we may list a species of a taxon on the basis of any one of the following factors: (A) Present or threatened destruction, modification, or curtailment of habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; or (E) other manmade or natural factors affecting its continued existence.
        Factor A. The Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range
        The petition asserts that the natural range of the YNP bison herd is being curtailed by the interruptions of its members' attempts to move out of the Park. The petitioner alleges that in 1996 the herd numbered approximately 3,000 head, and that over 1,000 of these bison were “slaughtered” outside YNP in the winter of 1996-1997, which threatened the “quasi-migratory” behavior of the herd.

        The petitioner is correct concerning the culling of YNP bison outside the Park in the winter of 1997. Since the 1920s, bison that venture out of YNP into Montana have been subject to various lethal and non-lethal measures to control brucellosis (Gates et al. 2005, p. 83), which is a contagious, costly disease of ruminant (cud-chewing) animals, such as bison, cattle, and swine. Since 1934, there has been a national Cooperative State-Federal Brucellosis Eradication Program, because the disease causes decreased milk production, weight loss in livestock, loss of young, infertility, and lameness (http://www.aphis.usda.gov/vs/nahps/brucellosis/). Culling of bison in interior YNP for population and brucellosis control ceased in 1968 (Gates et al. 2005, p. 87).
        However, the population data for the YNP bison herd do not support the petitioner's assertion that the 1997 bison mortality in Montana threatens the herd or its range. Since the winterkill and lethal brucellosis control actions in Montana during 1997, the YNP bison herd has continued to grow despite culling for population and brucellosis control, and currently numbers approximately 4,500 head (Wallen 2007). Additional information on culling is provided under Factor B.

        The petitioner's assertion that hazing and killing of bison outside the Park will affect the “quasi-migratory” behavior of the herd, and will result in a restriction of the range is not supported by information available in our files. Bison in YNP attempt to compensate for declining per capita food resources by range expansion (Gates et al. 2005, p. 131). In other words, bison move out of the Park in the winter in search of food, and this pattern has continued since implementation of the Joint Bison Management Plan (discussed in greater detail under Factor D) in 2000 (Clarke et al. 2005, p. 29). Therefore, the available information indicates that control actions have not affected the “quasi-migratory” ranging behavior of the YNP herd.
        Factor B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
        As mentioned under Factor A, the petitioner alleges that in 1996 the herd numbered approximately 3,000 head, and that over 1,000 of these bison were “slaughtered” outside YNP in the winter of 1996-1997. The petition claims that “Half the herd is now gone due to their slaughter.”

        However, as stated under Factor A, the population data for the YNP bison herd do no support the contention that half the herd is now gone due to lethal control. In fact, since the winterkill and lethal brucellosis control actions in Montana during 1996-97, the YNP bison herd has continued to grow, and currently numbers approximately 4,500 head (Wallen 2006). Breeding success has been steady for at least 100 years, in spite of culling for population and brucellosis control (Fuller 2003, pp. 21-28). As part of the Joint Bison Management Plan, variable numbers of bison may be removed from the herd to maintain optimal population size and for brucellosis control. In addition, the Joint Bison Management Plan establishes that when the population drops to 2,300 bison, measures to protect bison will be increased. Management mortality would cease if the herd drops to 2,100 head. The herd may stabilize at about 3,500 to 3,800 head, but could fluctuate over time based on the severity of winter weather (USDI and USDA 2000, pp. 51-52).
        Factor C. Disease or Predation
        The petitioner provides no information on this factor, and we have no information in our files to indicate that the current conservation status of the YNP bison herd is affected by disease or predation. Although brucellosis is endemic to the herd, the disease does not appear to be a threat because the population continues to grow at a rate of between 5 and 8 percent (Fuller 2006, pp. 21-24). The Joint Bison Management Plan provides a detailed set of procedures for managing the YNP bison herd in conjunction with the brucellosis control program in Montana.
        Gates et al. (2005, p. 51) concluded that predation may become increasingly important as reintroduced wolves learn how to kill bison, but there is no information in our files to indicate that predation is a threat at this time.
        Factor D. The Inadequacy of Existing Regulatory Mechanisms
        The petitioner implies that existing regulatory mechanisms are inadequate to ensure protection of the YNP bison herd because some animals are killed outside the Park. We are assuming that, based on the information in our files, the petitioner is referring to lethal control of bison in conjunction with Montana's brucellosis control program.

        During the 1990s, a Bison Management Plan for the State of Montana and YNP (Joint Bison Management Plan) was developed. A Final Environmental Impact Statement and Record of Decision on the plan was issued by the Department of the Interior and the Department of Agriculture on December 20, 2000 (available at http://www.planning.nps.gov/document/yellbisonrod%2Epdf). The Joint Bison Management Plan provides a detailed set of procedures for managing the YNP bison herd in conjunction with the brucellosis control program in Montana.
        The Joint Bison Management Plan has a population target of greater than 2,100 bison (USDI and USDA 2000, pp. 51-52). The plan contains contingency measures to assure that the conservation status of the herd remains secure. If exigent circumstances arise during severe winters, the agencies agree to temporarily modify elements of the plan to mitigate total removal of bison. If the bison population declines to 2,300 within a single winter, the agencies will meet to evaluate modifications to the prevailing management prescriptions that could reduce the total management removal of bison from the population (USDI and USDA 2000, p. 52). If the bison population declines below 2,100 within a single winter, the agencies will, on a temporary basis for that winter, increase implementation of non-lethal management measures. One of the primary goals of the Joint Bison Management Plan is to provide for a “free-ranging bison herd” (USDI and USDA 2000, p. 6). The herd may stabilize at about 3,500 to 3,800 head, but could fluctuate over time based on the severity of winter weather (USDI and USDA 2000, pp. 51-52). This size range was identified by YNP staff as sufficient to protect the long-term status of the herd. The latest conservation genetics information indicates that a population in this range should be able to sustain the current level of genetic diversity indefinitely without the need for introducing immigrants from other populations (Wallen 2006).

        The Joint Bison Management Plan Status Review Team recently completed an analysis of the adaptive management elements of the plan (Clarke et al. 2005, pp. 28-29). With regard to YNP bison population abundance, the team found that the abundance of bison has grown steadily since the implementation of the Joint Bison Management Plan (see Figure 1). The population reached almost 4,900 head in the summer of 2005, and now numbers around 4,500. Winter weather conditions have been mild to average during the first 5 years, and the population has not dropped below 2,300 bison. The late winter population has been above the population target and management decision threshold of 3,000 head in 4 of the 5 years of implementation (Clarke et al. 2005, p. 28). Management-related mortality has resulted in greater than 200 bison removed during 3 of the 5 winters, but the population continues to expand (Clarke et al. 2005, p. 28). Based on this information we concur with the Status Review Team that the Joint Bison Management Plan is working with regard to successful management of the YNP bison herd.

          EP15AU07.000

        Factor E. Other Manmade or Natural Factors Affecting Its Continued Existence
        The petitioner provided no information on this factor, and we have no information in our files to indicate that possible circumstances in this category affect the YNP bison herd.
        Conclusion of the 5-Factor Analysis
        As required by the Act, we considered the five potential threat factors to assess whether there is substantial information to indicate that the potential Yellowstone National Park (YNP) bison herd DPS may be threatened or endangered throughout all or a significant portion of its range. The first step in this assessment is to determine whether there is substantial information that the DPS may be threatened or endangered throughout all of its range. If this is the case, then we make a positive 90-day finding for the DPS in its entirety. If it is not the case, we must next consider whether there is substantial information that there may be any significant portions of its range that are in threatened or endangered.
        On the basis of our review of the petition and other information readily available in our files, we have concluded that the petition does not present substantial information that listing the potential YNP bison herd DPS as threatened or endangered throughout all of its range may be warranted. The petition is based primarily on the threat of excessive killing of bison that venture outside YNP in order to prevent the spread of brucellosis to domestic livestock. However, we found no information to indicate that brucellosis control efforts, either previous or ongoing, threaten the continued existence of the potential YNP bison herd DPS. A large number of bison did die during the severe winter of 1996-97 due to the combined effects of natural causes and human control efforts, but the herd itself was not threatened by this mortality. A Joint Bison Management Plan for the YNP bison herd (USDI and USDA 2000), completed and implemented approximately one year after the petition was provided to the Service, provides mechanisms to address the impacts of brucellosis control actions on the herd while maintaining a self-sustaining bison herd in and adjacent to YNP. In addition, the population data for the YNP bison herd indicate that, since the winterkill and lethal brucellosis control actions in Montana during 1996-97, the YNP bison herd has continued to grow despite culling for population and brucellosis control, and currently numbers approximately 4,500 head.
        Having determined that the potential YNP bison herd DPS does not meet the definition of threatened or endangered, we must next consider whether there are any significant portions of its range that where the herd is danger of extinction or is likely to become endangered in the foreseeable future. On March 16, 2007, a formal opinion was issued by the Solicitor of the Department of the Interior, “The Meaning of ‘In Danger of Extinction Throughout All or a Significant Portion of Its Range’ ” (USDI 2007). We have summarized our interpretation of that opinion and the underlying statutory language below. A portion of a species' range (in this case, “species” refers to the potential YNP bison herd DPS) is significant if it is part of the current range of the species and is important to the conservation of the species because it contributes meaningfully to the representation, resiliency, or redundancy of the species. The contribution must be at a level such that its loss would result in a decrease in the ability to conserve the species.
        The first step in determining whether a species is threatened or endangered in a significant portion of its range is to identify any portions of the range of the species that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant and threatened or endangered. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that (i) the portions may be significant and (ii) the species may be in danger of extinction there or likely to become so within the foreseeable future. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the range that are unimportant to the conservation of the species, such portions will not warrant further consideration.
        If we identify any portions that warrant further consideration, we then determine whether in fact the species is threatened or endangered in any significant portion of its range. Depending on the biology of the species, its range, and the threats it faces, it may be more efficient for the Service to address the significance question first, or the status question first. Thus, if the Service determines that a portion of the range is not significant, the Service need not determine whether the species is threatened or endangered there; if the Service determines that the species is not threatened or endangered in a portion of its range, the Service need not determine if that portion is significant.
        The terms “resiliency,” “redundancy,” and “representation” are intended to be indicators of the conservation value of portions of the range. Resiliency of a species allows the species to recover from periodic disturbance. A species will likely be more resilient if large populations exist in high-quality habitat that is distributed throughout the range of the species in such a way as to capture the environmental variability found within the range of the species. In addition, the portion may contribute to resiliency for other reasons—for instance, it may contain an important concentration of certain types of habitat that are necessary for the species to carry out its life-history functions, such as breeding, feeding, migration, dispersal, or wintering. Redundancy of populations may be needed to provide a margin of safety for the species to withstand catastrophic events. This does not mean that any portion that provides redundancy is a significant portion of the range of a species. The idea is to conserve enough areas of the range such that random perturbations in the system act on only a few populations. Therefore, each area must be examined based on whether that area provides an increment of redundancy is important to the conservation of the species. Adequate representation ensures that the species' adaptive capabilities are conserved. Specifically, the portion should be evaluated to see how it contributes to the genetic diversity of the species. The loss of genetically based diversity may substantially reduce the ability of the species to respond and adapt to future environmental changes. A peripheral population may contribute meaningfully to representation if there is evidence that it provides genetic diversity due to its location on the margin of the species' habitat requirements.

        Applying the process described above for determining whether a species is threatened in a significant portion of its range, we next addressed whether any portions of the range of the potential YNP bison herd DPS warranted further consideration. According to Gates et al. (2005), most bison in the YNP herd are confined within Yellowstone National Park for all or most of the year. Rut takes place within YNP from around mid-July to mid-August (Meagher, 1973) in one of three rutting areas—the largest rutting aggregation is in the Hayden Valley, the second largest in the eastern Lamar Valley, and a small aggregation occurs in small high elevation grasslands on the Mirror Plateau and Cache/Calfee Ridge (Gates et al. 2005). Most bison remain in YNP during winter, especially in the geothermally-influenced central portion of the Park. Calves are born in April-May on the winter range (Meagher 1973). For these reasons we have determined that there is substantial information that Yellowstone National Park may constitute a significant portion of the range for the potential YNP bison herd DPS.

        In late winter/early spring, varying numbers of bison may move outside the Park's boundaries into Montana near West Yellowstone and Gardiner looking for forage. Bison that move outside YNP usually return by late spring (YNP, 2007). The proportion of Yellowstone bison that move to winter ranges outside YNP varies from 3 to 30 percent per year, depending on conditions (YNP, 2007). Bison move beyond Park boundaries in late winter in response to forage limitation caused by interactions between population density, variable forage production, snow conditions, and grazing competition (Gates et al. 2005). The Gardiner basin has been considered important winter range for bison since at least the 1940s and is an important component of the Northern winter range; in contrast, the West Yellowstone area does not have unique ecological value as winter range according to Gates et al. (2005). For these reasons we believe there is substantial information that the Gardiner basin provides resiliency to the herd during harsh winters, and, therefore, may constitute a significant portion of the range for the potential YNP bison herd DPS.

        On the basis of our review of the petition and other information readily available in our files, we have concluded that the petition does not present substantial information that the Yellowstone bison herd may be threatened or endangered in either of the potentially significant portions of the range as outlined in the two previous paragraphs. Management of the Yellowstone bison herd is guided by a Joint Bison Management Plan for the YNP bison herd (USDI and USDA 2000). Management of bison within the Park is the responsibility of the National Park Service. Culling of bison in interior YNP for population and brucellosis management stopped in 1968 (Gates et al. 2005). Population data for the YNP bison herd indicate that, since the winterkill and lethal brucellosis control actions in Montana during 1996-97, the YNP bison herd has continued to grow despite culling for population and brucellosis control, and currently numbers approximately 4,500 animals. We therefore conclude that the petition does not present substantial information indicating that listing the Yellowstone bison herd within YNP may be warranted.
        Outside YNP, management of bison is primarily the responsibility of the State of Montana (USDI and USDA 2000). Bison that leave YNP are subject to hazing and lethal control as a part of the brucellosis control program, but the Joint Bison Management Plan provides conservation measures that eliminate the control program as a threat to the continued existence of the herd. We therefore conclude that the petition does not present substantial information indicating that listing the Yellowstone bison herd on the winter range outside YNP may be warranted.
        In summary, we have determined that the petition has not presented substantial information indicating that the potential YNP bison herd DPS may warrant listing as threatened or endangered throughout all or any significant portion of its range. Although we will not be initiating a status review in response to this petition, we ask the public to submit to us any new information that becomes available concerning the status of the YNP bison herd or threats to it or its habitat at any time. This information will help us monitor and encourage the conservation of the species.
        References

        A complete list of all references cited herein is available on request from the Region 6 Endangered Species Program, U.S. Fish and Wildlife Service (see ADDRESSES section).
        Author

        The primary author of this document is Chuck Davis, Region 6 Endangered Species Program, U.S. Fish and Wildlife Service (see ADDRESSES section).
        Authority

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

          Dated: August 6, 2007.
          H. Dale Hall,
          Director, U.S. Fish and Wildlife Service.

      [FR Doc. E7-16004 Filed 8-14-07; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 050421110-5110-01; I.D. 041505F]
        RIN 0648-AT03
        Pacific Halibut Fisheries; Fisheries of the Exclusive Economic Zone Off Alaska; Individual Fishing Quota Program; Community Development Quota Program

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          NMFS proposes an amendment to the Pacific halibut regulations for waters in and off Alaska. This proposed action modifies the Individual Fishing Quota (IFQ) Program and the Western Alaska Community Development Quota (CDQ) Program by allowing quota share holders in International Pacific Halibut Commission (IPHC) Regulatory Area (Area) 4C to fish their Area 4C IFQ in Area 4D. This proposed action is intended to enhance harvesting opportunities for halibut by IFQ and CDQ fishermen and is necessary to promote the objectives of the Northern Pacific Halibut Act of 1982 (Halibut Act) with respect to the IFQ and CDQ Pacific halibut fisheries, consistent with the regulations and resource management objectives of the IPHC.

          DATES:
          Written comments must be received no later than June 6, 2005.

          ADDRESSES:
          Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Lori Durall. Comments may be submitted by:
          • Mail: P.O. Box 21668, Juneau, AK 99802.
          • Hand Delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.
          • Fax: 907-586-7557.
          • E-mail: 4cd-0648-AT03@noaa.gov. Include in the subject line of the e-mail the following document identifier: IFQ Halibut 4CD RIN 0648-AT03. E-mail comments, with or without attachments, are limited to 5 megabytes.
          • Webform at the Federal eRulemaking Portal: www.regulations.gov Follow the instructions at that site for submitting comments.
          Copies of the environmental assessment (EA), regulatory impact review (RIR), and initial regulatory flexibility analysis (IRFA) prepared for this action are available from NMFS at the above address or by calling the Sustainable Fisheries Division, Alaska Region, NMFS, at 907-586-7228.

          FOR FURTHER INFORMATION CONTACT:
          Bubba Cook, 907-586-7425 or bubba.cook@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Background and Need for Action
        Management of the Pacific halibut (Hippoglossus stenolepis) (halibut) fishery in and off Alaska is based on an international agreement between Canada and the United States. This agreement, titled the “Convention Between the United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea” (Convention), was signed at Ottawa, Canada on March 2, 1953, and was amended by the “Protocol Amending the Convention,” signed at Washington, D.C., March 29, 1979. The Convention is implemented in the United States by the Halibut Act.

        Generally, the IPHC develops halibut fishery management regulations pursuant to the Convention and submits those regulations to the U.S. Secretary of State for approval. NMFS publishes approved IPHC regulations in the Federal Register as annual management measures. NMFS published the IPHC's current annual management measures on February 25, 2005 (70 FR 9242).
        The Halibut Act also authorizes the North Pacific Fishery Management Council (Council) to develop halibut fishery regulations in and off Alaska that are in addition to, but not in conflict with, the approved IPHC regulations (Halibut Act, section 773(c)). Regulations developed by the Council will be implemented only upon approval of the U.S. Secretary of Commerce (Secretary).
        The IFQ and CDQ Fisheries

        In December 1991, the Council adopted a limited access system for managing the halibut fishery in and off Alaska under authority of the Halibut Act. This limited access system included an IFQ Program for Areas 2C through 4D, and the CDQ program for Areas 4B through 4E. The Council designed the IFQ and CDQ Programs to allocate specific harvesting privileges among U.S. fishermen and eligible western Alaska communities to resolve management and conservation problems associated with “open access” fishery management, and to promote the development of fishery-based economic opportunities in western Alaska. Acting on behalf of the Secretary, NMFS initially implemented the IFQ and CDQ programs through regulations published in the Federal Register on November 9, 1993 (58 FR 59375). Fishing for halibut under these two programs began on March 15, 1995.
        Each quota share (QS) represents a transferable harvest privilege, within specified limitations, which is converted annually into IFQ. Fishermen granted IFQs are authorized to harvest a specified amount of halibut in the Areas specified on an IFQ permit issued to the fishermen.
        NMFS and the State of Alaska jointly manage the CDQ Program based on a program design developed by the Council. Currently, 65 communities are eligible to participate in the CDQ Program, representing about 27,000 western Alaska residents. These communities are located within 50 nautical miles of the Bering Sea coast or on an island in the Bering Sea and are predominantly populated by Alaska Natives. The eligible communities formed six non-profit corporations known as CDQ groups to manage and administer allocations, investments, and economic development projects.
        Catch Sharing Plan (CSP) for Area 4

        The CSP for Area 4 originally was developed by the Council to apportion the IPHC's halibut catch limit for Area 4 among Areas 4A, 4B, 4C, 4D, and 4E as necessary to carry out the socioeconomic objectives of the IFQ and CDQ programs. The Area 4 CSP was published in the Federal Register on March 20, 1996 (61 FR 11337) and implemented that same year.

        NMFS subsequently modified the Area 4 CSP to remove Areas 4A and 4B from the CSP in 1998, to allow the catch limits for these two areas and a combined Area 4C-E to be set according to the IPHC's revised area specific biomass-based methodology. The IPHC considers Area 4A, Area 4B, and the combined Area 4C-E to have separate halibut populations for purposes of management. A complete description of the proposed revisions to the Area 4 CSP, catch limit apportionments, and geographical description of each subarea was published in the Federal Register on January 12, 1998 (63 FR 1812). These modifications were approved March 17, 1998 (63 FR 13000). Beginning in 1998, the IPHC has annually implemented the measures specified in the Area 4 CSP to apportion the combined Area 4C-E catch limit independently among Areas 4C, 4D, and 4E. The annual management measures addressing the Area 4C-E catch limit in 2005 were published on February 25, 2005 (70 FR 9242).
        The IPHC assesses the halibut resource in Areas 4C-E as a single stock unit. The IPHC continues to use survey-based estimates scaled to adjoining areas for the combined Area 4C-E because the information needed for an analytical assessment is not available. In the past, the IPHC scaled the combined area to Area 3A because it represented the nearest area with an analytical estimate. Since the development of an analytical estimate for Area 4A in 2003, the IPHC now estimates the Area 4C-E biomass as 142 percent of the Area 4A biomass. The combined area quota is subsequently broken out by subarea according to the CSP.

        Since its implementation in 1998, the CSP has been applied to the annual combined Area 4C-E catch limit established by the IPHC. A direct allocation of 80,000 lb (36.3 mt) is made to Area 4E in the revised CSP when the Area 4C-E catch limit is greater than 1,657,600 lb (751.9 mt). The purpose is to provide CDQ fishermen in Area 4E with additional harvesting opportunity. The entire Area 4E catch limit is assigned to the CDQ reserve and subsequently allocated to qualifying CDQ groups. The remainder of the combined catch limit is allocated as 46.43 percent to Area 4C, 46.43 percent to Area 4D, and 7.14 percent to Area 4E.
        Previous Revision of the CSP
        In 1999, four CDQ groups with CDQ halibut fishing authority in Area 4D requested a regulatory change to allow CDQ halibut allocated to them in Area 4D to be harvested in Area 4E. The Council subsequently recommended a CSP change authorizing halibut CDQ issued in Area 4D to be harvested in Area 4E. In January 2002, the IPHC concurred in the Council's recommendation because it considers the halibut in Areas 4C, 4D, and 4E to be a single stock unit for management purposes. The Council based its recommendation on the fact that most of the communities in CDQ groups with only Area 4D halibut CDQ had to travel extended distances offshore to harvest Area 4D halibut CDQ or the quota had to be harvested by large, non-local vessels. In 2003, the CSP and the regulations were amended by the Secretary to allow only Area 4D QS holders to harvest their CDQ in Area 4E (68 FR 9902, March 3, 2003).
        The Proposed Revision of the CSP
        Halibut IFQ and CDQ fishermen in Area 4C have experienced a steady drop in catch rates since 1985. The drop is consistent among gear types and amounts to a decline in catch rates of greater than 70 percent over the past ten years. The reduced catch rates have consequently reduced the total harvest of halibut by IFQ and CDQ fishermen in Area 4C. During the 2003 fishing season, Area 4C fishermen landed just 42 percent of the total Area 4C IFQ halibut allocation compared to a statewide average of 97 percent for all Areas. Only 45 percent of the Area 4C CDQ halibut allocation was landed by 4C fishermen during the 2003 fishing season compared to an average of 94 percent in other CDQ areas. The declines in catch rates and consequent poor harvests have generated considerable concern among Area 4C community residents who depend heavily on the halibut resource to support their local economies.
        Recent research conducted by the IPHC indicates localized depletion in Area 4C. Localized depletion results from concentrated fishing effort in a limited area that exceeds the sustainable level for fishing in that area. Although effort and catches of halibut have increased in Area 4C over the last 10 years, catch per unit effort (CPUE) has declined steadily since commercial fishing began. Catches increased because fishing effort increased, offsetting the decline in CPUE. IPHC research shows that a comparison of CPUE with effort indicates a continuous pattern of increasing effort and decreasing CPUE. The IPHC suggests that increased effort in Area 4C is unlikely to produce increased catch.
        The commercial catch taken in Area 4C is highly concentrated around the two Pribilof Islands of St. Paul and St. George. For commercial catches between 1993 and 2004, with known latitude/longitude locations, approximately 73 percent of the Area 4C catch was taken within 18 nautical miles of St. Paul Island and 25 percent within 18 nautical miles of St. George Island. More importantly, much of the directed effort for the halibut fishery during the 1993-2004 time period occurred in relatively small areas south of the Pribilof Islands and were concentrated in the southwest corner of Area 4C. The IPHC notes that 46.43 percent of the entire Area 4C-E catch limit is allotted for only 5.1 percent of the total Area 4C-E fishing grounds located in Area 4C. The available fishing grounds in Area 4C consists of only 561 square nautical miles out of a total of 11,076 square nautical miles comprising Area 4C. The limited fishing grounds in Area 4C results in a concentrated fishing effort in a relatively small fishing area. The IPHC also notes that incidental catch of halibut in other fisheries has reduced recruitment and immigration into Area 4C, further exacerbating the localized depletion. The diminished harvests, limited fishing grounds, and reduced recruitment and immigration suggests a decrease in halibut abundance over time in Area 4C which results in a decreased CPUE. The IPHC recommends a reduction in effort in Area 4C to observe how the halibut biomass responds and further determine the productivity of stock.
        Current regulations at 50 CFR 679.42(a)(1) prohibit harvesting halibut IFQ or CDQ in a regulatory area other than the area for which the quota is allocated. Halibut IFQ and CDQ allocated in a particular area may be harvested only in that same area, in accordance with biomass-based quotas, except that halibut CDQ allocated for Area 4D may be harvested in Area 4E. One solution for reducing fishing effort in Area 4C while continuing to allow Area 4C fishermen to fully harvest their IFQ or CDQ is to redistribute fishing effort from Area 4C to Area 4D.
        The CSP assigns 46.43 percent of the combined 4C-E catch to Area 4D, which is an amount equal to that allocated to Area 4C. However, for the same percentage, Area 4D has approximately ten times more fishing grounds at 5,605 square nautical miles than Area 4C at 561 square nautical miles. Fishermen in Area 4D have harvested an average of 92 percent of the IFQ allocation for Area 4D over the past ten years, achieving 100 percent during 2003 and 2004. Fishermen also harvested an average of 89 percent of the Area 4D CDQ allocation over the past ten years, achieving 80 and 84 percent during 2003 and 2004, respectively. On average, Area 4D conducted only 32 percent of the IFQ landings that Area 4C conducted over the past ten years inferring that less effort was required to achieve the full harvest of the 4D IFQ halibut allocation. Likewise, CDQ landings of halibut from Area 4D were only 19 percent of those from Area 4C over the past ten years inferring that less effort was required to achieve the full harvest of the 4D CDQ harvest. Therefore, less effort was required to harvest the Area 4D IFQ and CDQ halibut allocation in Area 4D, indicating a higher CPUE in Area 4D.
        Allowing Area 4C IFQ and CDQ holders to harvest their IFQ and CDQ in Area 4D would provide several benefits to Area 4C IFQ and CDQ holders including: (1) reducing fishing effort within Area 4C, thereby alleviating localized depletion; (2) increasing human health and safety in the small boat fleet that harvests halibut near St. Paul and St. George Islands by reducing competition with larger vessels that may harvest their IFQ in either Area 4C or 4D; and (3) increasing the geographic area available for harvesting Area 4C quota, thereby spreading out the fishing fleet. Furthermore, despite a potential increase in fishing effort in Area 4D resulting from the proposed action, the IPHC notes that the ratio of halibut harvest to available fishing grounds would remain much lower in Area 4D than in Area 4C. Therefore, the likelihood that the localized depletion problem in Area 4C would simply be transposed to Area 4D would remain low.

        In December 2004, the Council recommended a regulatory amendment that would allow an Area 4C QS holder to harvest his or her IFQ and CDQ in Area 4D. The Council made its recommendation based on the diminishing harvests and the resulting decline of economic conditions in the Area 4C communities. In January 2005, the IPHC approved a regulatory change to the halibut annual management measures that would allow the Council's recommendation to take effect in 2005 if it is approved by the Secretary.
        This action proposes to change the Area 4 CSP and the IFQ and CDQ regulations to incorporate the Council's recommendation that Area 4C halibut IFQ or CDQ may be harvested either in Area 4C or in Area 4D. No changes are proposed, however, to the existing Area 4 CSP that apportions the combined Area 4C-E annual catch limit among Areas 4C, 4D, and 4E. The authority to allocate the annual Area 4 catch limit according to the Area 4 CSP is specified at 50 CFR 300.65(b) and will continue to be implemented by the IPHC in its annual management measures pursuant to 50 CFR 300.62. The following paragraph would be added to the Area 4 CSP:

          An IFQ or CDQ holder with an allocation of Area 4C halibut IFQ and CDQ may harvest all or part of that allocation in Area 4D. This provision is based on the Council's recommendation in December 2004, to allow IFQ and CDQ fishermen in Area 4C additional halibut IFQ and CDQ harvesting opportunities. The framework that allocates the IPHC catch limits among Areas 4C, 4D, and 4E remains unchanged.

        This change in the Area 4 CSP will complement regulatory changes at § 679.7(f)(4) and § 679.42(a)(1). If approved and implemented as proposed, fishermen who possess Area 4C IFQ or CDQ would receive a statement in accordance with § 679.40(c)(3) that would specify the maximum amount of Area 4C halibut that may be harvested in Area 4C or 4D. In the first year of implementation, however, this statement will be issued before the effective date of the proposed regulatory change and, therefore, would not include a reference to Area 4D. Therefore, proposed paragraph 679.42(a)(1)(i) would authorize harvest of Area 4C IFQ and CDQ in Area 4D during the 2005 fishing year. In subsequent years, however, the proposed change to the CSP, the proposed minor regulatory changes, and the permit statement would allow Area 4C QS holders to harvest their IFQ and CDQ in Area 4D.
        This proposed rule would make a minor change to § 679.7(f)(4) which prohibits retaining IFQ halibut on a vessel in excess of the total amount of unharvested IFQ applicable to the IFQ regulatory area in which the vessel is deploying gear and that is simultaneously held by all IFQ holders on board. The total amount of IFQ or CDQ available to individual Area 4C IFQ or CDQ holders will not change as a result of this action. The proposed change would substitute the word “area(s)” for “area” and add “CDQ” to correspond with IFQ, clarifying that the total amount of unharvested IFQ or CDQ assigned to Area 4C may be harvested in either Area 4C or 4D. Therefore, an Area 4C IFQ or CDQ holder may harvest only the total amount of IFQ or CDQ halibut assigned to Area 4C in either Area 4C or 4D, but may not harvest the total amount assigned in both Areas 4C and 4D.
        NMFS proposes to monitor each IFQ or CDQ holder's halibut catch in Areas 4C and 4D. If the catch in Area 4D exceeds the group's initial allocation for Area 4D, then NMFS will subtract this additional catch from the group's Area 4C allocation. Halibut IFQ or CDQ catch from Area 4C also will be subtracted from each IFQ or CDQ holder's Area 4C allocation. Any amount of halibut IFQ or CDQ catch in Area 4D that exceeds the 4D allocation and is subtracted from the Area 4C allocation will no longer be available for harvest in Area 4C. This procedure would allow each IFQ or CDQ holder to decide where to catch their Area 4C halibut IFQ or CDQ allocation without requiring transfers. Each IFQ or CDQ holder would have to monitor the harvest of Area 4C and 4D halibut IFQ or CDQ to ensure that: (1) its total catch in Area 4C does not exceed its Area 4C allocation, minus any portion of its Area 4C quota harvested in Area 4D, (2) its total catch in Area 4D does not exceed the sum of its Area 4C and Area 4D allocations, minus any portion of its Area 4C allocation harvested in Area 4C, and (3) its total catch in Areas 4C and 4D does not exceed the sum of its Area 4C and Area 4D allocations.
        Although CDQ assigned to Area 4D QS currently may be harvested in Area 4E, this proposed action would not allow CDQ assigned to Area 4C to be harvested in Area 4E. The current prohibition against harvesting halibut IFQ and CDQ in an area different from the area to which it is assigned will remain effective, except that halibut CDQ assigned to Area 4D may be harvested in Area 4E. If the Secretary approves this action, a second exception to the prohibition would allow Area 4C IFQ or CDQ holders to fish their IFQ and CDQ in Area 4C or 4D, but this action would not authorize Area 4C CDQ holders to fish their CDQ in Area 4E.
        Classification
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        The Council recommended this action to the Secretary for adoption pursuant to its authority under the Halibut Act. An RIR/IRFA for the proposed revisions to the Area 4 CSP and regulatory amendment describes the management background, the purpose and need for action, the management alternatives, and the socioeconomic impacts of the alternatives (see ADDRESSES).
        The IRFA prepared for this action assesses potential impacts on small entities for purposes of the Regulatory Flexibility Act (RFA). The Council reviewed two alternatives, a “no action” alternative and a preferred alternative to allow Area 4C QS holders to harvest their IFQ and CDQ in Area 4D subject to review after the third year of implementation. The no action alternative limits the opportunities of Area 4C QS holders to harvest their halibut allocations. The preferred alternative would allow an exception for Area 4C to the rule that requires all QS to be harvested in the area to which it is assigned.

        The objective of the proposed action is to increase opportunities of Area 4C QS holders to harvest their halibut allocations. The legal basis for the proposed action is explained in the preamble of this proposed rule. In summary, NMFS manages the North Pacific halibut fisheries of the Bering Sea in Convention waters under the authority of the Northern Pacific Halibut Management Act. Regulations at 50 CFR 300.60 through 300.65 govern the Pacific halibut fishery in the waters of the U.S. The annual Pacific halibut management measures for 2005 were published in the Federal Register on February 25, 2005 (70 FR 9242).
        The proposed action would partially relieve the restriction limiting harvests of Pacific halibut IFQ and CDQ to the IPHC regulatory area to which it is assigned. The entities regulated by this action are those entities that are authorized to harvest halibut in Areas 4C and 4D. These entities include six CDQ groups, and the owners and operators of longline catcher vessels and catcher/processor vessels in these areas who hold halibut IFQ or CDQ.

        The alternatives addressed in the IRFA may directly affect all six CDQ groups, which represent 65 western Alaska communities with a total 2000 population of over 27,000, which receive halibut CDQ in halibut Areas 4C and 63 persons who held more than 4 million QS units in Area 4C in 2004. There are 23 Category D vessels fishing halibut IFQs in Area 4C. Some fishermen have expressed interest in purchasing larger vessels to fish their category D QS. Other fishermen may hire Category C or B vessels to fish their Category D QS because of bad weather and safety reason. The halibut fleet in Area 4C is larger and more diverse than in Area 4D, which is comprised of mostly larger vessels.
        Two CDQ groups hold Area 4C QS/CDQ. People in these communities benefit from the halibut CDQ and IFQ fisheries directly and indirectly. Some residents earn income from participating in the CDQ fishery, either by harvesting or processing halibut, which provides a direct effect on both the economic health of the individuals and their communities. Some residents earn income from participating in the CDQ fishery, which economically benefits the individuals and their communities through jobs harvesting and processing halibut.
        As of November 2004, there are 63 persons holding QS in Area 4C. In 2002, 24 unique vessels made IFQ halibut landings in Area 4C. Reported ex-vessel price helps describe the small entities regulated by this action. NMFS publishes annually “standard prices” for halibut and sablefish that estimate the ex-vessel prices received by IFQ fishermen for their harvests. NMFS uses these prices for calculating permit holder cost recovery fee liabilities. In 2003, these price data suggest that the price of halibut might have been about $2.92 per pound for headed and gutted halibut (December 22, 2003, 68 FR 71036). This harvest limit and price imply maximum vessel revenues of less than $1,000,000 for halibut. Thus, no vessel subject to these restrictions could have been used to land the maximum gross revenue threshold for a “small” catcher vessel established under RFA rules, which is more than $3,000,000 worth of halibut in 2003. Therefore all halibut vessels may be assumed to be small entities, for purposes of the IRFA. These estimates are likely to overestimate the numbers of small entities because they do not take account of income that might have been earned by the vessel in other fisheries or activities, and they do not take account of vessel affiliations. NMFS has defined all halibut vessels as small businesses for the purpose of regulatory flexibility analysis.
        Impacts on regulated small entities resulting from the proposed action appear to be positive. Qualitatively, the preferred alternative is likely to increase the amount of halibut harvested from the recent low levels up to the total catch limit specified for Area 4C. Any increase in harvest would have a positive economic impact on participating small entities. However, it is not possible to quantitatively estimate magnitudes of these impacts at this time.
        This proposed action does not impose new recordkeeping or reporting requirements on the regulated small entities. Additionally, this proposed action does not duplicate, overlap, or conflict with any other Federal rules. The alternatives described for this proposed action are not expected to result in adverse impacts on directly regulated small entities.

          List of Subjects in 50 CFR Part 679
          Alaska, Determinations and appeals, Fisheries, Recordkeeping and reporting requirements.

          Dated: April 29, 2005.
          John Oliver
          Deputy Assistant Administrator for Operations, 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.; 1540(f); 1801 et seq; 1851 note; 3631 et seq.

        2. In § 679.7, paragraph (f)(4) is revised to read as follows:

          § 679.7
          Prohibitions.
          (f) * * *

          (4) Except as provided in § 679.40(d), retain IFQ or CDQ halibut or IFQ or CDQ sablefish on a vessel in excess of the total amount of unharvested IFQ or CDQ, applicable to the vessel category and IFQ or CDQ regulatory area(s) in which the vessel is deploying fixed gear, and that is currently held by all IFQ or CDQ card holders aboard the vessel, unless the vessel has an observer aboard under subpart E of this part and maintains the applicable daily fishing log prescribed in the annual management measures published in the Federal Register pursuant to 50 CFR 300.62 and § 679.5.

        3. In § 679.42, paragraph (a)(1) is revised to read as follows:

          § 679.42
          Limitations on use of QS and IFQ.
          (a) * * *
          (1) The QS or IFQ specified for one IFQ regulatory area must not be used in a different IFQ regulatory area, except:
          (i) Notwithstanding § 679.4(d)(1), §§ 679.7(f)(4) and (f)(11), §§ 679.40(b)(1), (c)(3), and (e), from [EFFECTIVE DATE OF FINAL RULE] to November 15, 2005, all or part of the QS and IFQ specified for regulatory area 4C may be harvested in either Area 4C or Area 4D.
          (ii) For the year 2006 and subsequent annual IFQ fishing seasons, all or part of the QS and IFQ specified for regulatory area 4C may be harvested in either Area 4C or Area 4D.

      [FR Doc. 05-9003 Filed 5-4-05; 8:45 am]
      BILLING CODE 3510-22-S


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R04-OAR-2015-0444; FRL-9934-42-Region 4]
        Air Plan Approval; KY; Emissions Statements for the 2008 8-Hour Ozone NAAQS

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:

          The Environmental Protection Agency (EPA) is proposing to approve the portion of a draft state implementation plan (SIP) revision submitted by the Commonwealth of Kentucky, through the Kentucky Division of Air Quality (DAQ) on April 15, 2015, for parallel processing, that addresses the emissions statement requirements for Kentucky's portion of the Cincinnati, Ohio-Kentucky-Indiana (Cincinnati, OH-KY-IN) 2008 8-hour ozone national ambient air quality standards (NAAQS) nonattainment area (hereinafter referred to as the “Cincinnati, OH-KY-IN Area” or “Area”). Annual emissions reporting (i.e., emissions statements) is required for all ozone nonattainment areas. The Area is comprised of Butler, Clermont, Clinton, Hamilton and Warren Counties in Ohio; portions of Boone, Campbell, and Kenton Counties in Kentucky; and a portion of Dearborn County in Indiana. EPA will consider and take action on the Ohio and Indiana submissions addressing the emissions statements requirements for their portions of this Area in separate actions. This action is being taken pursuant to the Clean Air Act (CAA or Act) and its implementing regulations.

          DATES:
          Written comments must be received on or before October 22, 2015.

          ADDRESSES:

          Submit your comments, identified by Docket ID No. EPA-R04-OAR-2015-0444, by one of the following methods:

          1. www.regulations.gov: Follow the on-line instructions for submitting comments.
          2. Email: R4-ARMS@epa.gov.

          3. Fax: (404) 562-9019.
          4. Mail: “EPA-R04-OAR-2015-0444,” Air Regulatory Management Section, (formerly the Regulatory Development Section), Air Planning and Implementation Branch (formerly the Air Planning Branch), Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960.
          5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

            Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-2015-0444. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov or email, information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

            Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information may not be publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

          FOR FURTHER INFORMATION CONTACT:

          Tiereny Bell, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Bell can be reached at (404) 562-9088 and via electronic mail at bell.tiereny@epa.gov.

        SUPPLEMENTARY INFORMATION:

        I. What is parallel processing?

        Consistent with EPA regulations found at 40 CFR part 51, Appendix V, section 2.3.1, for purposes of expediting review of a SIP submittal, parallel processing allows a state to submit a plan to EPA prior to actual adoption by the state. Generally, the state submits a copy of the proposed regulation or other revisions to EPA before conducting its public hearing. EPA reviews this proposed state action and prepares a notice of proposed rulemaking. EPA's notice of proposed rulemaking is published in the Federal Register during the same time frame that the state is holding its public process. The state and EPA then provide for concurrent public comment periods on both the state action and federal action.
        If the revision that is finally adopted and submitted by the state is changed in aspects other than those identified in the proposed rulemaking on the parallel process submission, EPA will evaluate those changes and if necessary and appropriate, issue another notice of proposed rulemaking. The final rulemaking action by EPA will occur only after the SIP revision has been adopted by the state and submitted formally to EPA for incorporation into the SIP.
        On April 15, 2015, the State of Kentucky, through Kentucky DAQ, submitted a formal letter request for parallel processing of a draft SIP revision that the Commonwealth was already taking through public comment. Kentucky DAQ requested parallel processing so that EPA could begin to take action on its draft SIP revision in advance of the Commonwealth's submission of the final SIP revision, should that be necessary. As stated above, the final rulemaking action by EPA will occur only after the SIP revision has been: (1) Adopted by Kentucky; (2) submitted formally to EPA for incorporation into the SIP; and (3) evaluated by EPA, including any changes made by the State after the April 15, 2015, draft was submitted to EPA.
        II. Background

        On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under EPA's regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.075 ppm. See 40 CFR 50.15. Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement. The ambient air quality monitoring data completeness requirement is met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix I of part 50.

        Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that is violating the NAAQS, based on the three most recent years of ambient air quality data at the conclusion of the designation process. The Cincinnati, OH-KY-IN Area was designated nonattainment for the 2008 8-hour ozone NAAQS on April 30, 2012 (effective July 20, 2012) using 2008-2010 ambient air quality data. See 77 FR 30088. At the time of designation, the Cincinnati, OH-KY-IN Area was classified as a marginal nonattainment area for the 2008 8-hour ozone NAAQS. On March 6, 2015, EPA finalized a rule entitled “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements” (SIP Requirements Rule) that establishes the requirements that state, tribal, and local air quality management agencies must meet as they develop implementation plans for areas where air quality exceeds the 2008 8-hour ozone NAAQS.1

          See 80 FR 12264. This rule establishes nonattainment area attainment dates based on Table 1 of section 181(a) of the CAA, including an attainment date three years after the July 20, 2012, effective date, for areas classified as marginal for the 2008 8-hour ozone NAAQS. Therefore, the attainment date for the Cincinnati, OH-KY-IN Area is July 20, 2015.

            1 The SIP Requirements Rule addresses a range of nonattainment area SIP requirements for the 2008 ozone NAAQS, including requirements pertaining to attainment demonstrations, reasonable further progress (RFP), reasonably available control technology, reasonably available control measures, major new source review, emission inventories, and the timing of SIP submissions and of compliance with emission control measures in the SIP. The rule also revokes the 1997 ozone NAAQS and establishes anti-backsliding requirements.

        Based on the nonattainment designation, Kentucky is required to develop a nonattainment SIP revision addressing certain CAA requirements. Specifically, pursuant to CAA section 182(a)(3)(B), Kentucky is required to submit a SIP revision addressing emissions statements requirements.

        Ground level ozone is not emitted directly into the air, but is created by chemical reactions between oxides of nitrogen (NOX) and volatile organic compounds (VOC) in the presence of sunlight. Emissions from industrial facilities and electric utilities, motor vehicle exhaust, gasoline vapors, and chemical solvents are some of the major sources of NOX and VOC. Section 182(a)(3)(B) of the CAA requires each state with ozone nonattainment areas to submit a SIP revision requiring annual emissions statements to be submitted to the state by the owner or operator of each NOX or VOC stationary source 2

           located within a nonattainment area showing the actual emissions of NOX and VOC from that source. The first statement is due three years from the area's nonattainment designation, and subsequent statements are due at least annually thereafter.

            2 A state may waive the emissions statements requirement for any class or category of stationary sources which emit less than 25 tons per year of VOCs or NOX if the state meets the requirements of section 182(a)(3)(B)(ii).

        On April 15, 2015, Kentucky submitted a draft SIP revision, for parallel processing, containing emissions statements requirements related to its portion of the Cincinnati, OH-KY-IN Area. EPA is now taking action to propose approval of this SIP revision as meeting the requirements of section 182(a)(3)(B) of the CAA. More information on EPA's analysis of Kentucky's SIP revision is provided below.
        III. Analysis of the Commonwealth's Submittal

        Kentucky's April 15, 2015, draft submission seeks to include the specific sections of 401 Kentucky Administrative Regulations (KAR) 52.020—Title V permits, 401 KAR 52:030 Federally-enforceable permits for non-major sources, 401 KAR 52:040—State-Origin Permits, and 401 KAR 52:070—Registration of designated sources identified on pages 8 and 9 of its submittal into the SIP to meet the emissions statements requirements of CAA section 182(a)(3)(B). EPA has preliminarily determined that the specific regulatory sections identified on pages 8 and 9 of the SIP submission, collectively, meet the emissions statement requirements of section 182(a)(3)(B) because they require sources that emit 25 tons per year or more of VOCs or NOX within the Kentucky portion of the Area to submit annual certified statements showing actual VOC and NOX emissions.3
           Consequently, EPA is proposing to approve the portion of Kentucky's April 15, 2015, draft SIP submission that addresses the emissions statements requirements for the Kentucky portion of the Area.

            3 Kentucky's requirement for an emissions statement program is listed within its permitting regulations. Kentucky does not have a stand-alone regulation addressing the emissions statement requirements of section 182(a)(3)(B).

        IV. Incorporation By Reference

        In this proposed rule, EPA is proposing to finalize regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to finalize the incorporate by reference of 401 KAR 52:020—Title V permits, Section 22 entitled “Annual Emissions Certification”, first sentence only and Section 23 entitled “Certification by Responsible Official”, introductory paragraph text and subsection (4) only; 401 KAR 52:030—Federally-enforceable permits for nonmajor sources, Section 3 entitled “General Provisions”, subsection (4) only, Section 22 entitled “Certification by Responsible Official”, introductory text and subsection (4) only, and Section 25 entitled “Sources Subject to Title V”, subsection (1) introductory text, subsection (1)(c), and subsection (2) introductory text only; 401 KAR 52:040—State-Origin Permits, Section 3 entitled “General Provisions”, subsection (2) introductory text, subsection (2)(c), and subsection (3) only, Section 20 entitled “Annual Emissions Certification for Specified Sources”, subsection (1) only, and Section 21 entitled “Certification by Responsible Official”, introductory text and subsection (4) only; and 401 KAR 52:070—Registration of designated sources, Section 3 entitled “General Provisions”, subsection (2) introductory text, subsection (2)(a)(1), and subsection (2)(a)(2) first sentence only. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the Region 4 EPA office (see the ADDRESSES section of this preamble for more information).
        V. Proposed Action
        EPA is proposing to approve the portion of a draft SIP revision submitted by Kentucky on April 15, 2015, that addresses the CAA section 182(a)(3)(B) emissions statements requirements for the Kentucky portion of the Cincinnati, OH-KY-IN Area. EPA has preliminarily concluded that this portion of the Commonwealth's draft submission meets the requirements of sections 110 and 182 of the CAA.
        VI. Statutory and Executive Order Reviews

        Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
        • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

        • does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

        • is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

        • does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
        • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
        • is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
        • is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
        • is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
        • does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

        In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

          Authority:
           42 U.S.C. 7401 et seq.

          Dated: September 10, 2015.
          Heather McTeer Toney,
          Regional Administrator, Region 4.

      [FR Doc. 2015-23657 Filed 9-21-15; 8:45 am]
       BILLING CODE 6560-50-P