        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [FWS-R8-ES-2009-0062; 92210-1117-0000-B4]
        [RIN 1018-AW85]
        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Buena Vista Lake shrew

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), propose to revise our designation of critical habitat for the Buena Vista Lake shrew (Sorex ornatus relictus) under the Endangered Species Act of 1973, as amended (Act). Our proposal is the same as the proposed critical habitat we published on August 19, 2004 (69 FR 51417). In total, approximately 4,649 acres (ac) (1,881 hectares (ha)) occur within the boundaries of the proposed revised critical habitat designation. The proposed revised critical habitat is located in the Central Valley floor of Kern County, California.

          DATES:

          To allow us adequate time to conduct this review, we request that we receive information on or before December 21, 2009. We must receive requests for public hearings, in writing, at the address shown in the FOR FURTHER INFORMATION CONTACT section by December 7, 2009.

          ADDRESSES:
          You may submit comments by one of the following methods:

            • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments on Docket No. FWS-R8-ES-2009-0062.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: Docket no. FWS-R8-ES-2009-0062; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

          We will not accept e-mail or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Daniel Russell, Acting Listing Coordinator, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, CA 95825; telephone (916) 414-6600; facsimile (916) 414-6712. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at (800) 877-8339.

        SUPPLEMENTARY INFORMATION:
        Public Comments
        We intend that any final action resulting from this proposal to revise critical habitat will be as accurate and as effective as possible. Therefore, we request comments or suggestions on this proposed rule. We particularly seek comments concerning:

        (1) The reasons we should or should not revise the designation of habitat as “critical habitat” under section 4 of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat is not prudent.
        (2) Specific information on:
        • Areas that provide habitat for the Buena Vista Lake shrew (herein after referred to as the shrew) that we did not discuss in our August 19, 2004 (69 FR 51417) proposed critical habitat rule,
        • Areas containing the features essential to the conservation of the shrew that we should include in the revised designation and why,
        • Areas proposed that do not contain features essential for the conservation of the species and why, and
        • Areas not occupied at the time of listing that are essential to the conservation of the species and why.
        (3) Land-use designations and current or planned activities in the areas proposed as revised critical habitat, as well as their possible effects on proposed revised critical habitat.
        (4) Comments or information that may assist us in identifying or clarifying the physical and biological features.
        (5) How the proposed revised critical habitat boundaries could be refined to more closely circumscribe the landscapes identified as containing the features essential to the species' conservation.
        (6) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts.

        (7) Whether any specific areas being proposed as revised critical habitat should be excluded under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any particular area outweigh the benefits of including that area under section 4(b)(2) of the Act.
        (8) Information on any quantifiable potential economic impacts of the proposed designation of critical habitat.
        (9) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

        You may submit your comments on this proposed rule by one of the methods listed in the ADDRESSES section. If you submit information via http://www.regulations.gov, your entire submission — including any personal identifying information—will be posted on the website. If you submit 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.

        Comments and information that we receive will be available for you to review at http://www.regulations.gov, or you may make an appointment during normal business hours at the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
        Background

        It is our intent to discuss only those topics directly relevant to the designation of revised critical habitat in this proposed rule. There is no new information on the biology, distribution, or abundance of the shrew since the time the species was listed. For more information on the shrew, refer to the final listing rule published in the Federal Register on March 6, 2002 (67 FR 10101).
        Previous Federal Actions
        On August 19, 2004, we proposed critical habitat for the shrew on approximately 4,649 ac (1,881 ha) in Kern County, California (69 FR 51417). On January 24, 2005, we published a final rule (70 FR 3438) designating 84 ac (34 ha) of critical habitat for the shrew in Kern County, California. The decrease in acreage from the areas we proposed to the areas we designated resulted from exclusions under section 4(b)(2) of the Act and, to a small degree, refinements in our mapping of critical habitat boundaries.

        On October 2, 2008, the Center for Biological Diversity filed a complaint in the U.S. District Court for the Eastern District of California challenging the Service's designation of critical habitat for the shrew (Center for Biological Diversity v. United States Fish and Wildlife, et al., Case No. 08-CV-01490-AWI-GSA). A July 9, 2009, settlement agreement stipulates the Service will, within 90 days of the signed agreement, submit to the Federal Register for publication a new proposal of critical habitat for the species which encompasses the same geographic area as the August 19, 2004, (69 FR 51417) proposed designation. Additionally, the Service agreed to submit to the Federal Register for publication, on or before March 22, 2012, a final determination on revised critical habitat for the shrew.
        The current designation of critical habitat for the Buena Vista Lake shrew (70 FR 3438, January 24, 2005) remains in full force and effect until we publish a new final rule revising critical habitat for the shrew.
        Critical Habitat
        Critical habitat is defined in section 3 of the Act as:
        (i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
        (I) essential to the conservation of the species and
        (II) which may require special management considerations or protection; and
        (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
        Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
        Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, Federal action agency's and the applicant's obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
        For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time it was listed must contain the physical and biological features essential to the conservation of the species, and be included only if those features may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (areas on which are found the physical and biological features (PBFs) laid out in the appropriate quantity and spatial arrangement for the conservation of the species). Under the Act and regulations at 50 CFR 424.12, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only when we determine that those areas are essential for the conservation of the species and that designation limited to those areas occupied at the time of listing would be inadequate to ensure the conservation of the species.

        Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.
        When we determine which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.
        Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species.
        Areas that are important to the conservation of the species, but are outside the critical habitat designation, will continue to be subject to conservation actions we implement under section 7(a)(1) of the Act. Areas that support populations are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available scientific information at the time of the agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
        Physical and Biological Features
        In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and the regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied at the time of listing to propose as critical habitat, we consider the physical and biological features essential to the conservation of the species which may require special management considerations or protection. These include, but are not limited to:
        (1) Space for individual and population growth and for normal behavior;
        (2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
        (3) Cover or shelter;
        (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
        (5) Habitats that are protected from disturbance or are representative of the historic, geographical, and ecological distributions of a species.
        We consider the specific physical and biological features (PBFs) to be the primary constituent elements of habitat laid out in the appropriate quantity and spatial arrangement essential for the conservation of the species. We derive the physical and biological features from the primary constituent elements (PCEs) for this species as they were described in the August 19, 2004 (69 FR 51417) proposed designation of critical habitat for the Buena Vista Lake shrew. Please refer to the Proposed Regulation Promulgation Section of this document and the previous proposed designation (69 FR 51417, August 19, 2004) for a description of PCEs.
        Proposed Revised Critical Habitat Designation
        Under the terms of the July 9, 2009, settlement agreement, we propose revised critical habitat for the shrew that matches the proposed designation we published on August 19, 2004 (69 FR 51417). See the Proposed Regulation Promulgation section of this document, which is the same as that which we published in 2004. The proposed designation includes five units which constitute approximately 4,649 ac (1,881 ha), located in the Central Valley floor of Kern County, California. Please see the August 19, 2004 (69 FR 51417), notice for details regarding methods, criteria, critical habitat unit descriptions, and special management considerations or protection for the proposed revised critical habitat designation.
        Effects of Critical Habitat Designation
        Section 7 Consultation

        Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. However, decisions by the courts of appeals for the Fifth and Ninth Circuits have invalidated our regulatory definition of “destruction or adverse modification” (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442F (5th Cir 2001)). Instead, we rely upon the statutory provisions of the Act to make that determination. Under the statutory provisions of the Act, the key factor in determining whether an action will destroy or adversely modify critical habitat is whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain those PCEs that relate to the ability of the area to support the species) to serve its intended conservation role for the species.
        Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402.
        Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. This is a procedural requirement only, as any conservation recommendations in a conference report or opinion are strictly advisory. However, once proposed species become listed, or proposed critical habitat is designated as final, the full prohibitions of section 7(a)(2) of the Act apply to any Federal action. The primary utility of the conference procedures is to maximize the opportunity for a Federal agency to adequately consider proposed species and critical habitat and avoid potential delays in implementing their proposed action as a result of the section 7(a)(2) compliance process, should those species be listed or the critical habitat designated.

        We may conduct conferences either informally or formally. We typically use informal conferences as a means of providing advisory conservation recommendations to assist the agency in eliminating conflicts that the proposed action may cause with respect to the proposed critical habitat. We typically use formal conferences when the Federal agency or the Service believes the proposed action is likely to adversely affect a species proposed for listing or degrade proposed critical habitat in some manner.
        We generally provide the results of an informal conference in a conference report, while we provide the results of a formal conference in a conference opinion. We typically prepare conference opinions on proposed critical habitat in accordance with procedures contained at 50 CFR 402.14, as if the proposed critical habitat was already designated. If no substantial new information or changes in the action alter the content of the opinion, we may adopt the conference opinion as the biological opinion when the critical habitat is designated (see 50 CFR 402.10(d)).

        If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. Activities on State, tribal, local, or private lands requiring a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from us under section 10 of the Act) or involving some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency) are subject to the section 7(a)(2) consultation process. Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded, authorized, or permitted, do not require section 7(a)(2) consultations.
        If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. At the conclusion of this consultation, the Service will issue either:
        (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
        (2) A biological opinion for Federal actions that may affect, but are likely to adversely affect, listed species or critical habitat.
        If we issue a biological opinion concluding that a project is likely to result in jeopardy to a listed species or the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable, to avoid these outcomes. We define “reasonable and prudent alternatives” at 50 CFR 402.02 as alternative actions identified during consultation that:
        • Can be implemented in a manner consistent with the intended purpose of the action,
        • Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
        • Are economically and technologically feasible, and
        • Would, in the Director's opinion, avoid jeopardizing the continued existence of the listed species or destroying or adversely modifying critical habitat.
        Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
        Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where a new species is listed or critical habitat is subsequently designated that may be affected and the Federal agency has retained discretionary involvement or control over the action. Consequently, some Federal agencies may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement may affect subsequently listed species or designated critical habitat.
        Application of the Jeopardy and Adverse Modification Standards
        Jeopardy Standard
        Currently, the Service applies an analytical framework for Buena Vista Lake shrew jeopardy analyses that relies heavily on the importance of known populations to the species' survival and recovery. Section 7(a)(2) of the Act analysis is focused not only on these populations but also on the habitat conditions necessary to support them.
        The jeopardy analysis usually expresses the survival and recovery needs of Buena Vista Lake shrew in a qualitative fashion without making distinctions between what is necessary for survival and what is necessary for recovery. Generally, the jeopardy analysis focuses on the range-wide status of Buena Vista Lake shrew, the factors responsible for that condition, and what is necessary for this species to survive and recover. An emphasis is also placed on characterizing the conditions of Buena Vista Lake shrew in the area affected by the proposed Federal action and the role of affected populations in the survival and recovery of the species. That context is then used to determine the significance of adverse and beneficial effects of the proposed Federal action and any cumulative effects for purposes of making the jeopardy determination.
        Adverse Modification Standard
        The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Generally, the conservation role of Buena Vista Lake shrew critical habitat units is to support the various life-history needs and provide for the conservation of the species. Activities that may destroy or adversely modify critical habitat are those that alter the PCEs to an extent that appreciably reduces the conservation value of critical habitat for Buena Vista Lake shrew.
        Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat may also jeopardize the continued existence of the species.
        Federal agencies already consult with us on activities in areas currently occupied by the species to ensure that their actions do not jeopardize the continued existence of the species. These actions include, but are not limited to:
        (1) Actions that would affect riparian or wetland areas by any Federal Agency. Such activities could include, but are not limited to, flood control or changes in water banking activities. These activities could eliminate or reduce the habitat necessary for the reproduction, sheltering, or growth of Buena Vista Lake shrews.
        (2) Actions that would affect the regulation of water flows by any Federal agency. Such activities could include, but are not limited to, damming, diversion, and channelization. These activities could eliminate or reduce the habitat necessary for the reproduction, sheltering, or growth of Buena Vista Lake shrews.

        (3) Actions that would involve regulations funded or permitted by the Federal Highway Administration. (We note that the Federal Highway Administration does not fund the routine operations and maintenance of the State highway system.) Such activities could include, but are not limited to, new road construction and right-of-way designation. These activities could eliminate or reduce riparian or wetland habitat along river crossings necessary for reproduction, sheltering, or growth of Buena Vista Lake shrews.
        (4) Actions that would involve regulation of airport improvement activities by the Federal Aviation Administration. Such activities could include, but are not limited to, the creation or expansion of airport facilities. These activities could eliminate or reduce riparian or wetland habitat necessary for the reproduction, sheltering, foraging, or growth of Buena Vista Lake shrews.
        (5) Actions that would involve licensing of construction of communication sites by the Federal Communications Commission. Such activities could include, but are not limited to, the installation of new radio equipment and facilities. These activities could eliminate or reduce the habitat necessary for the reproduction, sheltering, foraging, or growth of Buena Vista Lake shrews.
        (6) Actions that would involve funding of activities by the U.S. Environmental Protection Agency, Department of Energy, Federal Emergency Management Agency, Federal Highway Administration, or any other Federal agency. Such activities could include, but are not limited to, activities associated with the cleaning up of Superfund sites, erosion control activities, and flood control activities. These activities could eliminate or reduce upland or aquatic habitat for Buena Vista Lake shrews.
        (7) Actions that would affect waters of the United States authorized by the U.S. Army Corps of Engineers under section 404 of the Clean Water Act. Such activities could include, but are not limited to, placement of fill into wetlands. These activities could eliminate or reduce the habitat necessary for the reproduction, feeding, or growth of Buena Vista Lake shrews.
        All lands within this proposed revised designation as critical habitat are within the historical geographic area occupied by the species, and are likely to be used by the shrew whether for foraging, breeding, growth of juveniles, dispersal, migration, genetic exchange, or sheltering. We consider all lands included in this proposed revised designation to be essential to the survival of the species. Federal agencies already consult with us on activities in areas currently occupied by the species, and also one whether the species may be affected by the action, to ensure that their actions do not jeopardize the continued existence of the species. Therefore, we believe that the revised designation of critical habitat is not likely to result in a significant regulatory burden above that already in place due to the presence of the listed species. Few additional consultations are likely to be conducted due to the revised designation of critical habitat.
        Exemptions
        Application of Section 4(a)(3) of the Act
        The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes:
        • An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;
        • A statement of goals and priorities;
        • A detailed description of management actions to be implemented to provide for these ecological needs; and
        • A monitoring and adaptive management plan.
        Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws.
        The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”
        There are no Department of Defense lands with a completed INRMP within the proposed revised critical habitat designation.
        Economic Analysis
        Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information available and to consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat upon a determination that the benefits of such exclusions outweigh the benefits of specifying such areas as part of critical habitat. We cannot exclude such areas from critical habitat if such exclusion would result in the extinction of the species.
        The primary purpose of the economic analysis is to estimate the potential economic impacts associated with the designation of revised critical habitat for the Buena Vista Lake shrew. This information is intended to assist the Secretary in making decisions about whether the benefits of excluding particular areas from the designation outweigh the benefits of including those areas in the designation. The economic analysis considers the economic efficiency effects that may result from the designation, including habitat protections that may be co-extensive with the listing of the species. It also addresses distribution of impacts, including an assessment of the potential effects on small entities and the energy industry. This information can be used by the Secretary to assess whether the effects of the designation might unduly burden a particular group or economic sector.

        The analysis focuses on the direct and indirect costs of the rule. However, economic impacts to land use activities can exist in the absence of critical habitat. These impacts may result from, for example, local zoning laws, State natural resource laws, and enforceable management plans and best management practices applied by other State and Federal agencies. Economic impacts that result from these types of protections are not included in the analysis as they are considered to be part of the regulatory and policy baseline. Our economic analysis evaluated the potential future effects associated with the listing of this species as endangered under the Act, as well as any potential effect of the critical habitat designation above and beyond those regulatory and economic impacts associated with listing.

        Following the publication of the previous proposed critical habitat designation (69 FR 51417), we conducted an economic analysis to estimate the potential economic effect of the designation. On November 30, 2004, we published a notice of availability for the draft economic analysis of the proposed critical habitat designation (69 FR 69578). The economic analysis included both retrospective, or pre-designation, and prospective, or post-designation, economic costs to various entities as a result of Buena Vista Lake shrew conservation activities. Retrospective costs are those costs estimated to have occurred from the time the species was listed in April 2002 until the proposal of critical habitat in August 2004. The estimated retrospective cost is $122,237. These costs were primarily certain administrative costs associated with the preparation of a Comprehensive Conservation Plan at the Kern National Wildlife Refuge critical habitat unit (CHU) and the section 7 consultation related to the preparation of a biological opinion related to a habitat conservation plan (HCP) at the Goose Lake proposed CHU.
        Values presented in the draft economic analysis are in 2004 dollars and are calculated at 3 and 7 percent discount rates. Total prospective costs range from $6.7 to $14.2 million under a 3 percent discount rate, and $4.8 to $10.1million under a 7 percent rate. Thus, prospective average annual costs range from $452,266 to $955,833. These costs include effects on agricultural producers adjacent or proximate to three CHUs, biological monitoring, HCP development, and supplemental water purchases. The ranges reflect totals with and without supplemental water for Kern Lake, Coles Levee, and Kern Fan Water Recharge CHUs. Both the Kern National Wildlife Refuge and Goose Lake CHUs are assumed to require supplemental water, and thus do not contribute to this range of costs. However, the economic analysis prepared for the 2004 critical habitat designation does not accurately reflect the full range of potential economic impacts that may result from this proposed revision to Buena Vista Lake shrew critical habitat.

        We are preparing a new draft economic analysis of the economic impacts of this proposed revision to critical habitat for the shrew. Upon completion of the new draft economic analysis, we will announce its availability in the Federal Register and reopen the public comment period on the proposed revised designation and the new draft economic analysis. At that time, copies of the draft economic analysis will be available for downloading from the Internet at http://www.regulations.gov, or by contacting the Sacramento Fish and Wildlife Office directly (see FOR FURTHER INFORMATION CONTACT section).
        Peer Review
        In accordance with our joint policy published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our revised critical habitat designation is based on scientifically sound data, assumptions, and analyses. We have invited these peer reviewers to comment during this public comment period on our specific assumptions and conclusions in this proposed designation of revised critical habitat.
        We will consider all comments and information we receive during this comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal.
        Public Hearings

        The Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register. Such requests must be sent to the address shown in the FOR FURTHER INFORMATION CONTACT section. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.
        Required Determinations
        Regulatory Planning and Review—Executive Order 12866
        The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this proposed rule under Executive Order 12866 (E.O. 12866). OMB bases its determination upon the following four criteria:
        (a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
        (b) Whether the rule will create inconsistencies with other Federal agencies' actions.
        (c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
        (d) Whether the rule raises novel legal or policy issues.
        Regulatory Flexibility Act
        Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, whenever an agency must publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

        At this time, we lack the available economic information necessary to provide an adequate factual basis for the required RFA finding. Therefore, we defer the RFA finding until completion of the new draft economic analysis prepared under section 4(b)(2) of the Act and E.O. 12866. Upon completion of the new draft economic analysis, we will announce its availability in the Federal Register and reopen the public comment period on the proposed revised designation and the new draft economic analysis. We will include with this announcement, as appropriate, an initial regulatory flexibility analysis or a certification that the rule will not have a significant economic impact on a substantial number of small entities accompanied by the factual basis for that determination.
        Unfunded Mandates Reform Act

        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:

        (a) This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or [T]ribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and [T]ribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
        The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
        (b) We do not believe that this rule would significantly or uniquely affect small governments. Therefore, a Small Government Agency Plan is not required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment if appropriate
        Takings
        In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating revised critical habitat for the Buena Vista Lake shrew in a takings implications assessment. The takings implications assessment concludes that this designation of revised critical habitat for this species does not pose significant takings implications for lands within or affected by the designation.
        Federalism
        In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this proposed revised critical habitat designation with appropriate State resource agencies in California. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical and biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for case-by-case section 7 consultations to occur).
        Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
        Civil Justice Reform
        In accordance with E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating revised critical habitat in accordance with the provisions of the Act. This proposed rule uses standard property descriptions and identifies the physical and biological features within the designated areas to assist the public in understanding the habitat needs of the this species.
        Paperwork Reduction Act of 1995

        This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
        National Environmental Policy Act (NEPA)

        It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
        Clarity of the Rule
        We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
        (a) Be logically organized;
        (b) Use the active voice to address readers directly;
        (c) Use clear language rather than jargon;
        (d) Be divided into short sections and sentences; and
        (e) Use lists and tables wherever possible.

        If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

        Government-to-Government Relationship with Tribes
        In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), E.O. 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act”, we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes.
        We have determined that there are no tribal lands occupied at the time of listing that contain the features essential for the conservation, and no tribal lands that are essential for the conservation for the Buena Vista Lake shrew. Therefore, we have not proposed to designate revised critical habitat for this species on tribal lands.
        Energy Supply, Distribution, or Use
        On May 18, 2001, the President issued an Executive Order (E.O. 13211; Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. We do not expect it to significantly affect energy supplies, distribution, or use. Because this action is not a significant energy action, no Statement of Energy Effects is required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted.
        References Cited

        A complete list of all references cited in this rulemaking is available on http://www.regulations.gov and upon request from the Field Supervisor, Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).
        Author(s)

        The primary authors of this notice are the staff members of the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).

          List of Subjects in 50 CFR Part 17

        Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
        Proposed Regulation Promulgation
        Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

          PART 17— [AMENDED]
          1. The authority citation for part 17 continues to read as follows:

            Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201- 4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

          2. Amend § 17.95(a) by revising the entry for “Buena Vista Lake Shrew (Sorex ornatus relictus)” to read as follows:
          § 17.95 Critical habitat—fish and wildlife.
          (a) Mammals.

          Buena Vista Lake Shrew (Sorex ornatus relictus)
          (1) Critical habitat units are depicted for Kern County, California, on the maps below.
          (2) The primary constituent elements of critical habitat for the Buena Vista Lake shrew are the habitat components that provide:
          (i) Riparian or wetland communities supporting a complex vegetative structure with a thick cover of leaf litter or dense mats of low-lying vegetation;
          (ii) Suitable moisture supplied by a shallow water table, irrigation, or proximity to permanent or semi-permanent water; and
          (iii) A consistent and diverse supply of prey.
          (3) Critical habitat does not include existing features and structures, such as buildings, aqueducts, airports, roads, and other developed areas not containing one or more of the primary constituent elements.
          (4) Data layers defining map units were created on a base of USGS 7.5' quadrangles, and critical habitat units were then mapped using Universal Transverse Mercator (UTM) coordinates.
          (5) Note: Map 1 (index map) follows:

        BILLING CODE 4310-55-S

          EP21OC09.023

        (6) Unit 1a: Kern National Wildlife Refuge, Kern County, California.

        (i) From USGS 1:24,000 quadrangle maps Hacienda Ranch, California, and Lost Hills NE, California, land bounded by the following UTM 11 NAD 27 coordinates (E, N): 261370, 3955645; 261384, 3955731; 261457, 3955912; 261502, 3955985; 261534, 3956044; 261643, 3955967; 261679, 3955949; 261775, 3955967; 261797, 3955981; 261784, 3956017; 261779, 3956062; 261802, 3956149; 261829, 3956249; 261815, 3956326; 261788, 3956417; 261784, 3956621; 261734, 3956675; 261711, 3956716; 261716, 3956762; 261756, 3956784; 261788, 3956825; 261793, 3956862; 261797, 3957157; 261806, 3957170; 261825, 3957175; 261943, 3957120; 261993, 3957107; 262179, 3957093; 262297, 3957089; 262315, 3957071; 262424, 3956857; 262469, 3956771; 262479, 3956739; 262479, 3956707; 262465, 3956685; 262460, 3956671; 262460, 3956644; 262465, 3956607; 262469, 3956566; 262479, 3956535; 262465, 3956494; 262451, 3956453; 262447, 3956417; 262447, 3956385; 262460, 3956367; 262488, 3956362; 262519, 3956385; 262551, 3956417; 262598, 3956482; 262561, 3956219; 262543, 3956086; 262536, 3956035; 262456, 3955981; 262429, 3955903; 262397, 3955881; 262347, 3955858; 262320, 3955844; 262265, 3955822; 262224, 3955799; 262197, 3955776; 262202, 3955763; 262220, 3955744; 262256, 3955717; 262288, 3955704; 262383, 3955694; 262438, 3955690; 262487, 3955684; 262486, 3955677; 262477, 3955610; 261938, 3955627; 261370, 3955645; returning to 261370, 3955645.
        (ii) The map of Unit 1a appears at paragraph (8)(ii) of this entry.
        (7) Unit 1b: Kern National Wildlife Refuge, Kern County, California.
        (i) From USGS 1:24,000 quadrangle map Lost Hills NW, California, and Lost Hills NE, California; land bounded by the following UTM 11 NAD 27 coordinates (E, N): 263287, 3957189; 263287, 3957174; 263304, 3957163; 263343, 3957160; 263390, 3957139; 263399, 3957115; 263411, 3957100; 263438, 3957086; 263459, 3957050; 263464, 3957023; 263464, 3957003; 263506, 3957003; 263553, 3956997; 263589, 3956964; 263607, 3956929; 263613, 3956887; 263607, 3956834; 263613, 3956801; 263627, 3956748; 263621, 3956686; 263571, 3956638; 263547, 3956617; 263550, 3956573; 263539, 3956532; 263500, 3956505; 263453, 3956490; 263402, 3956502; 263390, 3956511; 263382, 3956463; 263364, 3956416; 263328, 3956381; 263287, 3956363; 263236, 3956360; 263207, 3956354; 263180, 3956321; 263147, 3956271; 263097, 3956241; 263053, 3956232; 262988, 3956226; 262931, 3956250; 262878, 3956283; 262822, 3956309; 262786, 3956318; 262745, 3956315; 262688, 3956318; 262662, 3956321; 262650, 3956327; 262674, 3956499; 262715, 3956472; 262748, 3956455; 262783, 3956458; 262816, 3956458; 262854, 3956443; 262899, 3956428; 262961, 3956389; 263005, 3956372; 263053, 3956386; 263091, 3956431; 263142, 3956484; 263195, 3956526; 263239, 3956520; 263254, 3956502; 263272, 3956540; 263296, 3956603; 263334, 3956647; 263384, 3956662; 263423, 3956647; 263423, 3956674; 263450, 3956703; 263473, 3956727; 263482, 3956757; 263467, 3956780; 263467, 3956810; 263470, 3956831; 263473, 3956854; 263461, 3956860; 263426, 3956866; 263384, 3956869; 263340, 3956902; 263319, 3956949; 263310, 3956976; 263293, 3957006; 263275, 3957020; 263248, 3957041; 263207, 3957047; 263162, 3957056; 263136, 3957080; 263115, 3957136; 263109, 3957171; 263109, 3957195; 263287, 3957189; returning to 263287, 3957189.
        (ii) The map of Unit 1b appears at paragraph (8)(ii) of this entry.
        (8) Unit 1c: Kern National Wildlife Refuge, Kern County, California.
        (i) From USGS 1:24,000 quadrangle map Lost Hills NW, California, and Lost Hills NE, California; land bounded by the following UTM 11 NAD 27 coordinates (E, N): 262564, 3955705; 262575, 3955694; 262592, 3955680; 262623, 3955677; 262864, 3955666; 263540, 3955646; 264029, 3955635; 264946, 3955607; 266049, 3955565; 266680, 3955534; 266700, 3955531; 266714, 3955523; 266714, 3955495; 266588, 3955497; 266243, 3955511; 264214, 3955584; 262687, 3955626; 262572, 3955629; 262528, 3955647; 262530, 3955660; 262533, 3955685; 262536, 3955706; 262564, 3955705; returning to 262564, 3955705.
        (ii) Note: Map 2 (Units 1a, 1b, and 1c) follows:

          EP21OC09.024

        (9) Unit 2: Goose Lake, Kern County, California.

        (i) From USGS 1:24,000 quadrangle map Semitropic, California, land bounded by the following UTM 11 NAD 27 coordinates (E, N): 269741, 3939122; 269841, 3939090; 269931, 3939074; 270005, 3939064; 270065, 3939048; 270081, 3939030; 270117, 3939010; 270185, 3938968; 270273, 3938860; 270351, 3938749; 270403, 3938691; 270443, 3938671; 270484, 3938649; 270502, 3938621; 270544, 3938573; 270598, 3938547; 270660, 3938527; 270782, 3938449; 270824, 3938423; 270848, 3938423; 270878, 3938431; 270930, 3938449; 271005, 3938452; 271020, 3938439; 271064, 3938409; 271120, 3938353; 271186, 3938269; 271260, 3938173; 271286, 3938125; 271286, 3938079; 271278, 3938035; 271288, 3937959; 271318, 3937905; 271334, 3937887; 271392, 3937893; 271444, 3937905; 271556, 3937957; 271578, 3937939; 271623, 3937907; 271635, 3937885; 271639, 3937855; 271653, 3937819; 271667, 3937785; 271685, 3937767; 271727, 3937751; 271749, 3937735; 271761, 3937702; 271761, 3937658; 271763, 3937582; 271765, 3937570; 271777, 3937548; 271793, 3937526; 271843, 3937504; 271905, 3937470; 272025, 3937400; 272087, 3937372; 272123, 3937328; 272141, 3937312; 272143, 3937294; 272139, 3937274; 272125, 3937250; 272091, 3937212; 271995, 3937122; 271931, 3937068; 271911, 3937040; 271901, 3937004; 271901, 3936914; 271901, 3936848; 271903, 3936802; 271907, 3936750; 271915, 3936716; 271935, 3936700; 271969, 3936702; 272009, 3936706; 272037, 3936694; 272047, 3936674; 272061, 3936638; 272075, 3936580; 272067, 3936533; 272065, 3936457; 272083, 3936371; 272089, 3936307; 272085, 3936191; 272067, 3936127; 272067, 3936087; 272101, 3936007; 272181, 3935911; 272241, 3935853; 272379, 3935749; 272429, 3935687; 272504, 3935603; 272525, 3935587; 272573, 3935555; 272625, 3935533; 272669, 3935517; 272703, 3935479; 272729, 3935427; 272763, 3935380; 272810, 3935344; 272858, 3935316; 272864, 3935290; 272860, 3935258; 272822, 3935212; 272790, 3935148; 272788, 3935086; 272808, 3935024; 272802, 3934974; 272814, 3934916; 272882, 3934818; 272920, 3934764; 272964, 3934686; 272998, 3934652; 273032, 3934632; 273064, 3934608; 273084, 3934508; 273090, 3934444; 273126, 3934370; 273172, 3934302; 273216, 3934257; 273234, 3934231; 273242, 3934185; 273244, 3934139; 273228, 3934101; 273208, 3934081; 273158, 3934055; 273122, 3934045; 273076, 3934041; 273018, 3934049; 272956, 3934067; 272940, 3934071; 272890, 3934081; 272870, 3934079; 272850, 3934077; 272832, 3934055; 272824, 3934035; 272828, 3933995; 272832, 3933957; 272850, 3933923; 272876, 3933881; 272912, 3933819; 272922, 3933791; 272946, 3933753; 273012, 3933641; 273014, 3933611; 273004, 3933579; 272980, 3933575; 272946, 3933579; 272916, 3933593; 272898, 3933597; 272854, 3933621; 272818, 3933637; 272800, 3933637; 272788, 3933625; 272780, 3933601; 272763, 3933575; 272743, 3933571; 272705, 3933585; 272665, 3933669; 272445, 3933945; 272411, 3933951; 272379, 3933963; 272317, 3933995; 272227, 3934081; 272177, 3934169; 272139, 3934245; 272135, 3934294; 272115, 3934362; 272063, 3934402; 272011, 3934470; 271817, 3934758; 271739, 3934912; 271711, 3935000; 271663, 3935054; 271596, 3935112; 271514, 3935154; 271470, 3935200; 271364, 3935298; 271310, 3935413; 271296, 3935477; 271304, 3935523; 271304, 3935571; 271254, 3935639; 271156, 3935723; 271082, 3935797; 271040, 3935817; 271006, 3935859; 270976, 3935873; 270910, 3935887; 270824, 3935911; 270712, 3935979; 270624, 3936038; 270598, 3936089; 270550, 3936181; 270528, 3936215; 270488, 3936249; 270419, 3936275; 270327, 3936295; 270265, 3936325; 270199, 3936375; 270135, 3936421; 270089, 3936463; 270033, 3936493; 269891, 3936500; 269745, 3936506; 269603, 3936566; 269575, 3936586; 269523, 3936650; 269503, 3936684; 269513, 3936714; 269557, 3936768; 269633, 3936788; 269761, 3936784; 269835, 3936788; 270035, 3936782; 270071, 3936778; 270153, 3936728; 270285, 3936688; 270417, 3936680; 270550, 3936690; 270716, 3936690; 271054, 3936732; 271166, 3936772; 271242, 3936820; 271312, 3936896; 271324, 3936926; 271314, 3936962; 271300, 3937002; 271266, 3937064; 271260, 3937094; 271278, 3937156; 271290, 3937256; 271286, 3937368; 271278, 3937422; 271222, 3937530; 271164, 3937596; 271150, 3937632; 271136, 3937652; 271084, 3937668; 271038, 3937699; 270979, 3937746; 270981, 3937783; 270987, 3937969; 270960, 3938011; 270868, 3938143; 270728, 3938249; 270692, 3938259; 270628, 3938259; 270606, 3938273; 270500, 3938387; 270435, 3938483; 270401, 3938521; 270373, 3938543; 270315, 3938561; 270287, 3938569; 270113, 3938769; 269941, 3938928; 269843, 3938962; 269715, 3939032; 269585, 3939032; 269563, 3939032; 269543, 3939040; 269533, 3939054; 269533, 3939074; 269543, 3939096; 269567, 3939110; 269591, 3939120; 269621, 3939122; 269659, 3939144; 269685, 3939146; 269709, 3939138; 269741, 3939122; returning to 269741, 3939122.
        (ii) Note: Map 3 (Unit 2) follows:

          EP21OC09.025

        (10) Unit 3: Kern Fan Water Recharge Area, Kern County, California.

        (i) From USGS 1:24,000 quadrangle maps Tupman, California, and Stevens, California, land bounded by the following UTM 11 NAD 27 coordinates (E, N): 295516, 3908835; 295279, 3908837; 295290, 3909235; 295839, 3909235; 295839, 3909605; 296123, 3909598; 296123, 3910008; 296939, 3909995; 296945, 3910388; 297306, 3910388; 297306, 3910580; 298301, 3910571; 298305, 3911170; 298614, 3911161; 298617, 3911357; 299013, 3911357; 299021, 3911981; 300650, 3911934; 300666, 3912745; 301491, 3912726; 301496, 3913131; 301878, 3913131; 301885, 3913492; 302639, 3913467; 302689, 3913456; 302875, 3913452; 302953, 3913467; 303501, 3913456; 303499, 3913377; 303346, 3913377; 303182, 3913345; 303096, 3913310; 302950, 3913206; 302850, 3913113; 302800, 3913024; 302782, 3912942; 302764, 3912860; 302686, 3912771; 302671, 3912700; 302664, 3912300; 302261, 3912303; 302250, 3911900; 301850, 3911907; 301827, 3910972; 301270, 3910731; 301149, 3910709; 300352, 3910586; 298760, 3909525; 298405, 3909289; 298306, 3909259; 296918, 3909128; 295881, 3909023; 295832, 3908998; 295780, 3908939; 295750, 3908877; 295710, 3908847; 295653, 3908837; returning to 295516, 3908835.
        (ii) Note: Map 4 (Unit 3) follows:

          EP21OC09.026

        (11) Unit 4: Coles Levee Unit, Kern County, California.

        (i) From USGS 1:24,000 quadrangle maps Tupman, and Buena Vista Lakebed, California, land bounded by the following UTM 11 NAD 27 coordinates (E, N): 287308, 3908077; 287165, 3908138; 287172, 3908222; 287285, 3908192; 287341, 3908153; 287414, 3908098; 287610, 3908020; 287614, 3907949; 287624, 3907898; 287631, 3907847; 287668, 3907818; 287716, 3907803; 287779, 3907811; 287843, 3907787; 287915, 3907750; 288008, 3907711; 288058, 3907689; 288114, 3907658; 288160, 3907643; 288138, 3907573; 288150, 3907533; 288182, 3907490; 288229, 3907431; 288272, 3907372; 288298, 3907314; 288284, 3907242; 288348, 3907166; 288396, 3907126; 288453, 3907045; 288530, 3906966; 288583, 3906909; 288667, 3906812; 288705, 3906757; 288744, 3906700; 288796, 3906619; 288848, 3906542; 288901, 3906392; 288938, 3906357; 288998, 3906330; 289020, 3906301; 289045, 3906261; 289081, 3906173; 289115, 3906128; 289131, 3906076; 289119, 3906028; 289135, 3906004; 289165, 3905928; 289197, 3905879; 289271, 3905813; 289358, 3905761; 289389, 3905735; 289480, 3905654; 289597, 3905561; 289758, 3905425; 289910, 3905291; 290046, 3905162; 290070, 3905143; 290115, 3904972; 290125, 3904923; 290185, 3904904; 290200, 3904868; 290206, 3904784; 290205, 3904694; 290207, 3904637; 290218, 3904594; 290234, 3904560; 290251, 3904514; 290244, 3904477; 290234, 3904437; 290242, 3904380; 290275, 3904275; 290324, 3904182; 290376, 3904078; 290418, 3903999; 290467, 3903903; 290499, 3903856; 290545, 3903769; 290575, 3903699; 290601, 3903641; 290624, 3903595; 290673, 3903473; 290708, 3903444; 290705, 3903422; 290695, 3903396; 290733, 3903335; 290771, 3903227; 290793, 3903070; 290795, 3903016; 290802, 3902968; 290815, 3902899; 290812, 3902870; 290794, 3902836; 290778, 3902637; 290775, 3902582; 290802, 3902553; 290785, 3902492; 290764, 3902406; 290768, 3902275; 290782, 3902151; 290776, 3902124; 290744, 3902068; 290668, 3901981; 290608, 3901920; 290572, 3901811; 290459, 3901742; 290454, 3901756; 290386, 3901852; 290407, 3901876; 290507, 3901957; 290601, 3902026; 290671, 3902088; 290699, 3902164; 290699, 3902230; 290693, 3902301; 290694, 3902410; 290690, 3902504; 290694, 3902638; 290701, 3902789; 290711, 3902878; 290722, 3903028; 290722, 3903129; 290696, 3903214; 290677, 3903290; 290619, 3903389; 290577, 3903475; 290495, 3903653; 290439, 3903768; 290401, 3903848; 290347, 3903947; 290298, 3904071; 290224, 3904237; 290169, 3904357; 290152, 3904432; 290141, 3904507; 290139, 3904575; 290113, 3904653; 290087, 3904717; 290060, 3904773; 290050, 3904836; 290030, 3904894; 290008, 3904975; 289979, 3905056; 289927, 3905163; 289868, 3905242; 289805, 3905291; 289745, 3905342; 289684, 3905386; 289617, 3905441; 289518, 3905517; 289397, 3905610; 289269, 3905708; 289176, 3905781; 289124, 3905822; 289088, 3905884; 289068, 3905932; 289055, 3905970; 289036, 3906012; 289029, 3906057; 289016, 3906107; 289006, 3906162; 288994, 3906200; 288973, 3906236; 288940, 3906273; 288835, 3906369; 288791, 3906415; 288729, 3906457; 288672, 3906513; 288656, 3906561; 288651, 3906608; 288641, 3906669; 288619, 3906723; 288598, 3906761; 288545, 3906827; 288415, 3906958; 288351, 3907026; 288255, 3907123; 288204, 3907179; 288155, 3907233; 288109, 3907278; 288080, 3907311; 288060, 3907340; 288028, 3907386; 287992, 3907412; 287960, 3907420; 287893, 3907455; 287829, 3907486; 287774, 3907509; 287709, 3907532; 287645, 3907569; 287613, 3907589; 287570, 3907640; 287558, 3907682; 287537, 3907740; 287491, 3907756; 287471, 3907781; 287449, 3907839; 287435, 3907900; 287419, 3907959; 287365, 3908021; returning to 287308, 3908077.
        (ii)Note: Map 5 (Unit 4) follows:

          EP21OC09.027

        (12) Unit 5: Kern Lake, Kern County, California.

        (i) From USGS 1:24,000 quadrangle map Coal Oil Canyon, California, land bounded by the following UTM 11 NAD 27 coordinates (E, N): 312996, 3887027; 312953, 3887034; 312911, 3887047; 312886, 3887054; 312657, 3887298; 313456, 3887299; 313458, 3887806; 313823, 3887799; 313823, 3887314; 313786, 3887267; 313696, 3887224; 313618, 3887189; 313491, 3887139; 313363, 3887112; 313298, 3887107; 313231, 3887112; 313193, 3887142; 313168, 3887157; 313136, 3887152; 313091, 3887112; 313056, 3887072; returning to 312996, 3887027.
        (ii) Note: Map 6 (Unit 5) follows:

          EP21OC09.028

          Dated: October 7, 2009
          Thomas L. Strickland
          Assistant Secretary for Fish and Wildlife and Parks

      [FR Doc. E9-25242 Filed 10-20-09; 8:45 am]
      BILLING CODE 4310-55-C


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        RIN 0648-BB76
        Fisheries of the Exclusive Economic Zone Off Alaska; Fisheries of the Gulf of Alaska; Amendment 89 to the Fishery Management Plan for Groundfish of the Gulf of Alaska

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

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

          SUMMARY:

          The North Pacific Fishery Management Council has submitted Amendment 89 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). Amendment 89 would modify the FMP in two ways, if approved. First, Amendment 89 would establish a protection area in Marmot Bay, northeast of Kodiak Island, and close that area to fishing with trawl gear except for directed fishing for pollock with pelagic trawl gear to reduce bycatch of Tanner crab (Chionoecetes bairdi) in Gulf of Alaska (GOA) groundfish fisheries. Second, Amendment 89 would require the use of modified nonpelagic trawl gear when directed fishing for flatfish in the Central Regulatory Area of the GOA and would provide authority in the FMP to specify in regulation the modifications that are required to raise portions of the gear off the sea floor. The use of modified nonpelagic trawl gear in these fisheries would reduce the unobserved injury and mortality of Tanner crab and the potential adverse impacts of nonpelagic trawl gear on bottom habitat. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable law. Comments from the public are encouraged.

          DATES:
          Comments on the amendment must be received on or before August 2, 2013.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2011-0294, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2011-0294, 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.
          • Fax: Address written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Fax comments to 907-586-7557.

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

          Electronic copies of Amendment 89, the EA/RIR/IFRA prepared for the Area Closures for Tanner Crab Protection in Gulf of Alaska Groundfish Fisheries (Area Closures EA/RIR/IRFA), and the EA/RIR/IRFA for Trawl Sweep Modification in the Flatfish Fishery in the Central Gulf of Alaska (Trawl Sweep EA/RIE/IRFA) are available from http://www.regulations.gov or from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Tom Pearson, 907-481-1780.

        SUPPLEMENTARY INFORMATION:

        NMFS manages the groundfish fisheries in the exclusive economic zone under the Fishery Management Plan for Groundfish of the GOA (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), 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600 and 679.

        The Magnuson-Stevens Act requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment. This notice announces that proposed Amendment 89 to the FMP is available for public review and comment.
        Background
        Since the implementation of the FMP in 1978, the Council and NMFS have adopted measures intended to control the catch of species taken incidentally in groundfish fisheries. Certain species are designated as “prohibited” in the FMP, because they are the target of other fully utilized domestic fisheries. The FMP and implementing regulations at § 679.21 require that catch of these species and species groups must be avoided while fishing for groundfish, and when incidentally caught, they must be immediately returned to sea with a minimum of injury. These species include Pacific halibut, Pacific herring, Pacific salmon, steelhead trout, king crab, and Tanner crab. The incidental catch of prohibited species under § 679.21 require prohibited species to be discarded at sea with minimum injury, or retained but not sold under the Prohibited Species Donation Program at § 679.26. The Magnuson-Stevens Act refers to species which must be discarded by regulation as “bycatch.”

        The Council has recommended in both the Bering Sea and Aleutian Islands Management Area (BSAI) and GOA, and NMFS has implemented, measures to: (1) Close areas with a high occurrence of prohibited species, or where there is a relatively high level of prohibited species catch; (2) require the use of gear specifically modified to minimize prohibited species catch and effects on bottom habitat; and (3) establish prohibited species catch (PSC) limits in specific Alaska groundfish fisheries. A summary of these measures is in Section 1 of the Area Closures EA/RIR/IRFA (see ADDRESSES).
        The Council has recommended, and NMFS has implemented, closure areas to protect king crab stock in the GOA. These area closures limit the use of gear that fish on or close to the sea floor, such as nonpelagic trawl and pot gears, to minimize the bycatch of crab species and adverse impacts on crab habitat. Specifically, in the Central GOA, regulations implementing Amendment 15 to the FMP (52 FR 12183, April 15, 1987) established closures near Kodiak, AK, to protect king crab habitat. These closure areas were subsequently expanded and revised under regulations implementing Amendment 26 to the FMP (58 FR 503, January 6, 1993). Time and areas closures to the use of nonpelagic trawl gear have been shown to reduce injury and mortality to crab species in both the BSAI and GOA. For this reason, NMFS is proposing closure to vessels using trawl gear except for vessels directed fishing for pollock with pelagic trawl gear to protect Tanner crab in a portion of the Central GOA.
        Recently, NMFS implemented regulations that require the use of modified nonpelagic trawl gear in the Bering Sea flatfish fisheries to reduce the bycatch of crab and minimize the impact of this gear on bottom habitat. See Amendment 94 to the FMP for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP) for additional detail (75 FR 61642, October 6, 2010). NMFS is proposing to also require the use of raised trawl sweeps in the GOA.

        In 2005, the Council initiated a series of reviews on prohibited species bycatch in the GOA groundfish fisheries. These reviews led the Council to focus action on two prohibited species and two regulatory areas with potentially high bycatch levels: Chinook salmon (Oncorhynchus tshawytscha) bycatch in pollock fisheries in the Central and Western GOA, and Tanner crab bycatch in the Central GOA. The Council addressed Chinook salmon bycatch in the GOA through Amendment 93 to the FMP (77 FR 42629, July 20, 2012). In October 2009, the Council initiated an analysis of potential protection measures for Tanner crab in the Central GOA. In April 2010, the Council initially reviewed alternative bycatch control measures, subsequently revised and refined these alternatives, and in October 2010, recommended that the FMP be amended to establish a protection area in Marmot Bay, northeast of Kodiak Island, and that the area be closed to fishing with trawl gear except for directed fishing for pollock with pelagic trawl gear.
        When the Council recommended the Marmot Bay Area closure in October 2010, it directed its staff to review the practicality of requiring the use of modified nonpelagic trawl gear by vessels directed fishing for flatfish in the Central GOA. The Council recommended this review as a first step in considering additional measures to reduce the potential adverse effects of nonpelagic trawl gear on bottom habitat and to reduce unobserved Tanner crab injury and mortality. The Council's recommendation was based on past experience with the use of modified nonpelagic trawl gear to reduce potential adverse effects on bottom habitat in Bering Sea flatfish fisheries. In 2008, NMFS, the NMFS Office of Law Enforcement, and the fishing industry tested modified nonpelagic fishing gear in the Bering Sea under normal fishing conditions to determine if this gear could be used safely and effectively in ways that may reduce potential adverse effects on bottom habitat while maintaining effective catch rates for flatfish target species. These initial tests were successful, and in October 2009, the Council recommended Amendment 94 to the FMP for Groundfish of the BSAI, which requires vessels directed fishing for flatfish in the Bering Sea subarea to use modified nonpelagic trawl gear. In 2010, NMFS published final regulations implementing BSAI Amendment 94 (75 FR 61642, October 6, 2010).
        In February 2012, the Council reviewed an analysis of potential impacts of expanding the required use of modified nonpelagic trawl gear to vessels in the Central GOA flatfish fisheries. After additional review in April 2012, the Council recommended requiring that vessels directed fishing for flatfish in the Central GOA use modified nonpelagic trawl gear. GOA Amendment 89 incorporates both of the Council's recommendations, intended to be taken as a suite of protection measures for Tanner crab in the Central GOA.
        The Council identified several reasons for protection measures for Tanner crab in the GOA groundfish fisheries:

        • Tanner crab is identified in the FMP as a prohibited species that is incidentally caught in the Central GOA groundfish trawl, pot, and longline fisheries. Tanner crab is incidentally caught in relatively high proportion by vessels using nonpelagic trawl gear in the Central GOA.
        • Directed fisheries for Tanner crab in the Central GOA are fully allocated under the current limited entry system managed by the State of Alaska. Details of this crab fishery are described in Section 3.5 in the Area Closures EA/RIR/IRFA.
        • No specific conservation measures exist in the Central GOA to address adverse interactions with Tanner crab by vessels using trawl gear to directed fish for groundfish.
        • Tanner crab is a bottom-dwelling species, and limits on the use of nonpelagic trawl gear may reduce Tanner crab PSC and adverse effects on Tanner crab habitat.
        Proposed Action 1: Marmot Bay Tanner Crab Protection Area
        Amendment 89 to the GOA FMP would establish an area called the Marmot Bay Tanner Crab Protection Area (Marmot Bay Area). The proposed Marmot Bay Area is northeast of Kodiak Island and would extend westward from 151 degrees 47 minutes W longitude to State waters between 58 degrees N latitude and 58 degrees 15 minutes N latitude. The proposed Marmot Bay Area would share borders with two existing areas, the Type 1 Marmot Flats Area and the Type 3 Outer Bay Area. The southern and eastern borders of the proposed Marmot Bay Area would be the same latitude and longitude as the northern and eastern borders, respectively, of the existing Marmot Flats Area. The Marmot Flats Area is closed to directed fishing with nonpelagic trawl gear (see § 679.22(b)(1)(i) and Figure 5 to part 679). Under current regulations, the Outer Marmot Bay Area is open to directed fishing with nonpelagic trawl gear unless otherwise closed. The proposed Marmot Bay Area and the existing Marmot Flats and Outer Marmot Bay Areas are shown in Figure 1. Where the proposed Marmot Bay Area overlaps the Type 3 Outer Marmot Bay Area, the more restrictive proposed regulation, the year round closure to the use of trawl gear (excepted as noted) in the Marmot Bay Area would apply. State of Alaska waters to the west of both the proposed Marmot Bay Area and the existing Marmot Flats Area are closed year-round to the use of nonpelagic trawl gear under existing state regulations (5 AAC 39.164).

          EP03JN13.000

        With one exception, Amendment 89 would close the Marmot Bay Area year-round to directed fishing for groundfish by vessels using trawl gear. The term “directed fishing” is defined in regulation at § 679.2. Directed fishing for pollock by vessels using pelagic trawl gear would be exempt from this closure. Overall, the effect of the proposed Marmot Bay Area closure would be to extend closures on the use of trawl gear to the north and east of State and Federal waters that are currently closed to nonpelagic trawl gear. The Marmot Bay Area closure also would prohibit the use of all trawl gear, other than pelagic trawl gear used in the directed fishery for pollock. The Council recommended this exemption due to the limited potential reductions of Tanner crab PSC that would occur if the pelagic trawl pollock fishery were subject to the closure. The use of pelagic trawl gear for species other than pollock was not identified in the Marmot Bay Area; therefore, no additional exemptions to the trawl closure were warranted. See Section 3.3.2 of the Area Closures EA/RIR/IRFA for additional detail.
        The Council recommended the Marmot Bay Area trawl gear closure based primarily on the high observed rate of Tanner crab mortality by nonpelagic trawl gear in the Marmot Bay Area relative to other areas in the Central GOA. (See Section 3.3 of the Area Closures EA/RIR/IRFA for additional detail.) The areas with the greatest abundance of crab are the Marmot Bay Area, northeast of Kodiak Island; the Chiniak Gully east of Kodiak Island; and Alaska Department of Fish and Game (ADF&G) Statistical Areas 525702 and 525630, southeast of Kodiak Island. The Marmot Bay Area had the highest average mortality rate of crab per metric ton (mt) of groundfish catch by vessels using nonpelagic trawl gear in the Kodiak District between 2001 and 2009 (the most recent years of available data) at 7.68 crab/mt groundfish. (See Section 3.3 of the Area Closures EA/RIR/IRFA for additional detail.)
        The Council considered a range of alternative closure areas to limit the use of nonpelagic trawl gear and pot gear in the Marmot Bay Area, ADF&G Statistical Areas 525702 and 525630, and the Chiniak Gully. Ultimately, the Council recommended limiting the closure to most trawl gear in the Marmot Bay Area based on: (1) The high rate of Tanner crab mortality in the Marmot Bay Area relative to other areas; (2) the observation of mature male and female Tanner crab populations within the Marmot Bay Area; (3) the occurrence of known Tanner crab habitat within the Marmot Bay Area; (4) the high rate of Tanner crab bycatch by vessels using trawl gear relative to pot gear; and (5) the limited impact that the Marmot Bay Area closure would likely have on existing nonpelagic trawl participants relative to closures in other areas. See Section 3.1 of the Area Closures EA/RIR/IRFA for additional detail of the alternatives considered. The Council considered but rejected closing areas to pot, longline, and pelagic trawl gear used in the directed pollock fishery given the relatively small amount of Tanner crab bycatch by these gear types relative to nonpelagic trawl gear. (See Section 3.3.3 of the Area Closures EA/RIR/IRFA for additional detail.)
        The Marmot Bay Area closure would be consistent with past measures the Council has recommended, and NMFS has implemented, to limit impacts of nonpelagic trawl gear on crab populations, directly by limiting injury and mortality, and indirectly by reducing potential adverse habitat impacts. Overall, observed Tanner crab mortality in the Central GOA accounts for less than one fifth of one percent of the assessed crab population in the Central GOA. See Section 3.3.3 of the Area Closures EA/RIR/IRFA for additional detail. Because overall crab bycatch in the GOA groundfish fisheries can be small in relation to crab population, but potentially concentrated in certain areas or at certain times, time and area closures are more effective than Tanner crab PSC limits in reducing the potential impacts of nonpelagic trawl gear on crab stocks. The proposed closure for the Marmot Bay Area may assist in the conservation of the Tanner crab stock by reducing injury and mortality and potential adverse effects of nonpelagic trawl gear on bottom habitat used by Tanner crab.
        In October 2010, the Council also recommended that NMFS incorporate statistically robust observer information from certain vessels using pot gear in the Marmot Bay Area and certain vessels using nonpelagic trawl or pot gear in two other specific areas near Kodiak, AK (ADF&G Statistical Area 525702 and Chiniak Gully). Overall, the intent of the Council's recommendation was to improve estimates of Tanner crab bycatch data in the GOA groundfish fisheries that occur within these areas. At the same meeting that the Council recommended enhanced observer coverage for these three areas, the Council also recommended Amendment 86 to the BSAI FMP and Amendment 76 to the GOA FMP which comprehensively restructured the funding and deployment of onboard observers under the North Pacific Groundfish Observer Program (Observer Program). The Council included as part of its recommendation for improved estimates of Tanner crab bycatch that NMFS “incorporate, to the extent possible, in [the restructured Observer Program], an observer deployment strategy that ensures adequate coverage to establish statistically robust observations” in the three specific areas near Kodiak, AK.
        NMFS published a notice of availability for Amendments 86 and 76 to the FMPs on March 14, 2012 (77 FR 15019), and a proposed rule for the restructured Observer Program on April 18, 2012 (77 FR 23326). On June 7, 2012, the Secretary of Commerce approved Amendments 86 and 76 to the FMPs for the restructured Observer Program in the Alaska groundfish fisheries, and the final rule to implement the amendments, effective January 1, 2013, was published on November 21, 2012 (77 FR 70062). Details of the restructured Observer Program are available in the proposed and final rules for that action.
        The restructured Observer Program improves the quality of fisheries data, including Tanner crab bycatch information in the GOA groundfish fisheries. Vessels under the restructured Observer Program are either fully or partially observed. A detailed list of vessels in the full and partial observer coverage categories is provided in the restructured Observer Program proposed rule (77 FR 23326, April 18, 2012). A randomized system for the assignment of observer coverage throughout the GOA for partially observed vessels is used to reduce potential bias in the observer data. Selecting specific locations in the Central GOA for increased observer coverage would reduce the ability to randomize observer assignments and therefore potentially bias observer data. Because the restructured Observer Program incorporates an observer deployment strategy that ensures adequate coverage to establish statistically robust observations for the GOA, NMFS has determined that the Council's recommendation has been implemented by Amendments 86 and 76 and no additional measures are needed with Amendment 89. NMFS intends to use the regulations and deployment process established under the restructured Observer Program to obtain fishery catch and bycatch data without specific observer coverage requirements in specific areas in the GOA. In order to ensure that the Council's desire to obtain better observer data is being met, NMFS will present a deployment plan for observers annually for the Council's review.
        Proposed Action 2: Modification of Nonpelagic Trawl Gear Used in the Central GOA Directed Flatfish Fisheries

        Amendment 89 would amend the FMP to require the use of modified nonpelagic trawl gear when directed fishing for flatfish in the Central GOA and would provide authority in the FMP to specify in regulation the modifications that are required to raise portions of the gear off the sea floor. In the GOA, the flatfish fisheries include the directed fisheries for shallow-water flatfish, deep-water flatfish, arrowtooth flounder, rex sole, and flathead sole, as defined in Table 10 to 50 CFR part 679.
        While the proposed amendments to the FMP under Amendment 89 are general, the Council provided detailed recommendations on the specific modifications that would be required to nonpelagic trawl gear through regulation. The primary effect of the proposed rule to implement this aspect of Amendment 89 would be to require modifications to a specific component of the gear. Nonpelagic trawl gear uses a pair of long lines called “sweeps” to herd fish into the net. The sweeps drag across the bottom and may adversely impact benthic organisms (e.g., crab species, sea whips, sponges, and basket stars). Approximately 90 percent of the bottom contact of nonpelagic trawl gear used in directed fishing for flatfish is from the sweeps, which can be more than 1,000 feet (304.8 m) in length.
        NMFS studies in the Bering Sea have shown that elevating the trawl sweeps can reduce the adverse effects of nonpelagic trawl gear on Tanner, snow, and red king crab by reducing the unobserved mortality and injury of these species. In addition, elevating the trawl sweeps can reduce impacts on benthic organisms, such as basketstars and sea whips. Further research was conducted in 2011 in the GOA to identify the appropriate construction of modified nonpelagic trawl gear, and to identify and resolve any implementation issues specific to the GOA. Field testing in the GOA of the modified nonpelagic trawl gear demonstrated that the participants in the GOA flatfish fishery can meet the same performance standard and construction requirements that apply to the Bering Sea flatfish fishery under regulations at § 679.24(f). Additional information on these studies and tests is provided in Section 1.5.5 of the Trawl Sweep EA/RIR/IRFA.
        Proposed regulations implementing Amendment 89 would require that vessels using nonpelagic trawl gear to directed fish for flatfish in the Central GOA meet the performance standard and construction requirements set forth in § 679.24(f), which require the use of elevating devices to raise the elevated section of the sweeps at least 2.5 inches. Elevating devices would be placed on the sweeps to meet this performance standard. Details of the performance standard and construction requirements are at § 679.24(f).
        As noted in Section 1.8 of the Trawl Sweep EA/RIR/IRFA, it is not possible to quantify a benefit to crab stocks in the Central GOA from modified nonpelagic trawl gear without further testing to understand how sediment conditions in the Central GOA flatfish fishery compare to the areas in which the Bering Sea experiments occurred. However, the general similarity of GOA trawl gear to that used in the Bering Sea indicates that while the benefits may be smaller due to different sediment conditions in the GOA, they would still be substantial. While requiring this gear modification for vessels fishing in the Central GOA flatfish fishery could provide benefits to crab stocks by reducing unobserved injury and mortality, it would not be likely to change reported crab PSC totals from nonpelagic trawl fishing, which account only for crabs that come up in the trawl net. As noted in Section 2.9 of the Trawl Sweep EA/RIR/IRFA, the proposed action is not expected to result in a net decrease in the target catch rates in the Central GOA flatfish fishery.

        The Council considered but rejected alternatives that would have required the use of modified nonpelagic trawl gear in other nonpelagic trawl fisheries (e.g., Pacific cod), and the use of nonpelagic trawl gear in the Eastern and Western GOA flatfish fisheries. Flatfish fisheries in the Central GOA contribute the greatest proportion of Tanner crab PSC, while other nonpelagic trawl gear fisheries in the GOA account for only a modest proportion of Tanner crab PSC. See Sections 1.1 and 1.5 of the Trawl Sweep EA/RIR/IRFA for additional detail (see ADDRESSES). The Council's recommendation targets the specific fisheries that consistently have the highest bycatch of Tanner crab in the GOA.
        Public Comments

        NMFS is soliciting public comments on the proposed FMP amendment through August 2, 2013. A proposed rule that would implement Amendment 89 will be published in the Federal Register for public comment at a later date, following NMFS' evaluation pursuant to the Magnuson-Stevens Act. Public comments on the proposed rule must be received by the end of the comment period on Amendment 89 in order to be considered in the approval/disapproval decision on the amendment. All comments received on the amendment by the end of the comment period, whether specifically directed to the amendment or to the proposed rule, will be considered in the approval/disapproval decision. Comments received after that date will not be considered in the approval/disapproval decision on the amendment. To be considered, comments must be received—not just postmarked or otherwise transmitted—by 1700 hours, A.D.T., on the last day of the comment period (See DATES and ADDRESSES).

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

          Dated: May 29, 2013.
          Emily H. Menashes,
          Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2013-13050 Filed 5-31-13; 8:45 am]
      BILLING CODE 3510-22-P