        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 680
        [Docket No. 0812081573-1423-02]
        RIN 0648-AX47
        Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Crab Rationalization Program

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes regulations implementing Amendment 30 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (FMP). This proposed rule would amend the Bering Sea/Aleutian Islands Crab Rationalization Program (CR Program) to modify procedures for producing and submitting documents that are required under the Arbitration System to resolve price, delivery, and other disputes between harvesters and processors. This action is necessary to improve the quality and timeliness of market information used to conduct arbitration proceedings. 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.

          DATES:
          Comments must be received no later than September 9, 2011.

          ADDRESSES:
          Send comments to Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by “RIN 0648-AX47,” by any one of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal Web site at http://www.regulations.gov.
          • Mail: P.O. Box 21668, Juneau, AK 99802.
          • Fax: (907) 586-7557.
          • Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.

          All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may 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, Excel, WordPerfect, or Adobe portable document file (pdf) formats only.

          Copies of Amendment 30, the Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA) and the categorical exclusion prepared for this action—as well as the Environmental Impact Statement (EIS) prepared for the CR Program—may be obtained from the NMFS Alaska Region at the address above or from the Alaska Region Web site at http://alaskafisheries.noaa.gov. NMFS determined that this proposed action was categorically excluded from the need to prepare an environmental assessment under the National Environmental Policy Act.

          Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS Alaska Region by e-mail to OIRA_Submission@omb.eop.gov, or fax to 202-395-7285.

          FOR FURTHER INFORMATION CONTACT:
          Forrest R. Bowers, 907-586-7240.

        SUPPLEMENTARY INFORMATION:
        The king and Tanner crab fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI) are managed under the FMP. The FMP was prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Fishery Conservation and Management Act. Amendments 18 and 19 to the FMP implemented the CR Program. Regulations implementing the FMP, including the CR Program, are located at 50 CFR part 680.
        Background
        Under the CR Program, NMFS issued quota share (QS) to persons based on their qualifying harvest histories in the BSAI crab fisheries during a specific time period. Each year, the QS issued to a person yields an amount of individual fishing quota (IFQ), which is a permit providing an exclusive harvesting privilege for a specific amount of raw crab pounds, in a specific crab fishery, in a given season. The size of each annual IFQ allocation is based on the amount of QS held by a person in relation to the total QS pool in a crab fishery. For example, a person holding QS equaling 1 percent of the QS pool in a crab fishery would receive IFQ to harvest 1 percent of the annual total allowable catch (TAC) in that crab fishery. Catcher processor license holders were allocated catcher processor vessel owner (CPO) QS for their history as catcher processors; and catcher vessel license holders were issued catcher vessel owner (CVO) QS based on their history as a catcher vessel.
        Under the CR Program, 97 percent of the initial allocation of QS was issued to vessel owners as CPO or CVO QS; the remaining 3 percent was issued to vessel captains and crew as CPC or CVC QS based on their harvest histories as crew members onboard crab fishing vessels. Ninety percent of the annual CVO IFQ is issued as A shares, or Class A IFQ, which are subject to landing requirements in specific geographic regions, and must be delivered to a processor holding unused individual processor quota (IPQ). The remaining 10 percent of the annual CVO IFQ is issued as B shares, or Class B IFQ, which may be delivered to any processor and are not subject to regionalization. CPO, CPC, and CVC IFQ are not subject to regionalization and are not required to be matched with a processor holding IPQ.
        NMFS also issued processor quota shares (PQS) to processors based on their qualifying processing histories in the BSAI crab fisheries during a specific time period. These PQS yield annual IPQ, which represent a privilege to receive a certain amount of crab harvested with Class A IFQ. IPQ are issued in an amount equivalent to the Class A IFQ, creating a one-to-one correspondence between Class A IFQ and IPQ. Prior to the start of a crab fishing season, Class A IFQ and IPQ holders match their shares with one another, thereby determining their markets for the coming year. These matches may be modified during the crab season, but both parties must consent to any modifications.
        Arbitration System

        The CR Program requires holders of Class A IFQ to deliver their catch to processors holding IPQ for a specific crab fishery within a specific geographic region. Potential disputes among harvesters and processors during price and delivery negotiations can occur, and the share matching requirements can exacerbate these disputes. To fairly address potential price and delivery disputes that may arise between Class A IFQ holders and IPQ holders, the CR Program includes an arbitration system. Disputes are most likely to occur in cases where the Class A IFQ holder is not affiliated with an IPQ holder through common ownership or control and the IPQ holder will not consent to modification of the preseason share matching, thereby allowing the IPQ holder to dictate prices or other conditions without the ability of the Class A IFQ holder to move to an alternative market. Class A IFQ holders who are unaffiliated, or independent, of IPQ holders are commonly known as unaffiliated Class A IFQ holders. Conversely, Class A IFQ holders who are affiliated with IPQ holders through common ownership and control are known as affiliated Class A IFQ holders. Affiliated Class A IFQ holders are not eligible to use the arbitration system to settle price or other disputes. Affiliated Class A IFQ holders do not require an arbitration system, because they are integrated with IPQ holders and do not have distinct and potentially adversarial negotiating positions as may be the case with unaffiliated Class A IFQ and IPQ holders.

        The arbitration system allows unaffiliated Class A IFQ holders to initiate an arbitration proceeding in the event of a dispute to allow an independent third party to provide a review of harvester and processor negotiation positions and provide an independent and binding resolution to issues under dispute. Regulations describing the arbitration system are found at 50 CFR 680.20. An extensive discussion of the components of the arbitration system is found in the preambles to the proposed rule (September 1, 2004; 69 FR 53397) and final rule (March 2, 2005; 70 FR 10174) that implemented the CR Program, as well as in the final EIS prepared for the Program, and is not reiterated here (see ADDRESSES).
        To facilitate arbitration proceedings, the arbitration system establishes a series of contractual requirements that CVO QS, PQS, Class A IFQ, and IPQ holders must meet that dictate how the arbitration system will function. Regulations require that all unaffiliated CVO QS and Class A IFQ holders join an Arbitration Organization (AO). Similarly, affiliated CVO QS and Class A IFQ holders are required to join a separate AO. PQS and IPQ holders are required to join a third AO. Regulations further require that these three AOs enter into a series of contracts that will allow the arbitration system to function. Although affiliated Class A IFQ and IPQ holders must join AOs, the primary role of the arbitration system is to facilitate negotiations among the unaffiliated Class A IFQ and IPQ holders. Therefore, this proposed rule would primarily affect unaffiliated Class A IFQ and IPQ holders. For clarity in this proposed rule, the AO representing unaffiliated CVO QS and Class A IFQ holders will be called the unaffiliated Class A IFQ arbitration organization, the AO representing affiliated CVO QS and Class A IFQ holders will be called the affiliated Class A IFQ arbitration organization, and the AO representing PQS and IPQ holders will be called the IPQ arbitration organization.
        Under the arbitration system, all AOs must establish contracts to hire an independent third-party data provider, who will provide up-to-date information on matches between Class A IFQ and IPQ holders for crab deliveries and contracts to hire independent experts to facilitate arbitration proceedings. Only the unaffiliated Class A IFQ AOs and the IPQ AOs can enter into contracts to hire: (1) A market analyst, who provides a pre-season market report of likely market conditions for each crab fishery to aid in price negotiations and arbitrations; (2) a formula arbitrator, who prepares a non-binding price formula that describes the historic division of first whole-sale values among harvesters and processors that can be used in price negotiations and arbitrations; and (3) a contract arbitrator, who reviews the positions of the parties during an arbitration proceeding and issues a binding decision based on a last-best offer form of arbitration.
        Under current regulations, contracts with the market analyst, formula arbitrator, and contract arbitrator must be established by June 1 and can only be established by the mutual agreement of unaffiliated Class A IFQ AOs and IPQ AOs. “Mutual agreement,” as defined in 50 CFR 680.2, requires the consent and agreement of unaffiliated Class A IFQ AOs that represent an amount of unaffiliated Class A IFQ equal to more than 50 percent of all the unaffiliated Class A IFQ in a fishery, and IPQ AOs that represent an amount of IPQ equal to more than 50 percent of all the IPQ in a fishery based upon the Annual Arbitration Organization Reports. This mutual agreement requirement is intended to ensure that the majority of the unaffiliated Class A IFQ and IPQ holders reach agreement on the contracts that will provide necessary services for the functioning of the arbitration system, but avoid the potential that the process could be compromised by the inability of all unaffiliated Class A IFQ or IPQ holders to reach unanimity on the contracts.
        During an arbitration proceeding, the contract arbitrator is required to consider the market report and the non-binding price formula when considering the offers provided by the parties to the arbitration proceeding. Because the market report and the non-binding price formula play a central role in the decision-making process of the contract arbitrator, the information used in their preparation and the timing of their production can affect their utility and importance.
        Need for Proposed Action
        As the CR Program has progressed, it has become clear to the unaffiliated Class A IFQ and IPQ holders—as well as to the market analyst, the formula arbitrator, and the contract arbitrator—that certain aspects of the existing requirements for the timing and content of the market report and non-binding price formula limit the effectiveness of the arbitration system. This proposed rule would modify four aspects of the arbitration system to improve its effectiveness by: (1) Allowing AOs to mutually agree to establish contracts that would forgo the preparation of market reports and non-binding price formulas if a CR Program crab fishery is unlikely to (and does not) open; (2) modifying the timeline for release of the non-binding price formula for the western Aleutian Islands golden king crab (WAG) and eastern Aleutian Islands golden king crab (EAG) fisheries; (3) modifying the information used in the market report and allowing AOs to mutually agree to modify the timing for release of the market report in each CR Program fishery; and (4) clarifying the authority of the AOs, market analyst, formula arbitrator, contract arbitrators, and third-party data provider to adopt additional arbitration system procedures that are not in conflict with arbitration system regulations. The need for and effect of each of these proposed actions are described in greater detail below.
        Action 1: Allow AOs To Forgo Preparation of Market Reports and Non-Binding Price Formulas if a Crab Fishery Is Unlikely To and Does Not Open

        This proposed action would allow AOs representing unaffiliated Class A IFQ holders and IPQ holders to mutually agree that when a crab fishery is unlikely to open, neither a market report nor a non-binding formula would be prepared for the fishery. If mutual agreement is reached, the proposed action would require the AOs representing unaffiliated Class A IFQ holders and IPQ holders to include provisions in the contracts with the market analyst and formula arbitrator that would reflect the mutual agreement of the AOs to forgo preparation of a market report and non-binding price formula for the fishery; require preparation of the market report and non-binding price formula in the event that an opening is later announced for the fishery; and specify a timeline for the production of the market report and non-binding price formula, which must occur before June 30.
        This proposed action would allow the AOs, and, by extension, the unaffiliated Class A IFQ and IPQ holders who are members of the AOs and who pay the costs for producing these reports, the option to forgo incurring expenses associated with the production of those reports when it appears unlikely that a fishery will open. The potential cost savings to the AOs could range from a few thousand to several tens of thousands of dollars. Additional details on the potential cost savings are provided in the analysis prepared for this proposed action.
        Status of stocks for CR Program crab fisheries is assessed annually and it is possible that some CR Program crab fisheries will not open in a given year. For example, during the first five years of the CR Program, the western Aleutian Islands red king crab and Pribilof Islands red and blue king crab fisheries have failed to open, and the Saint Matthew Island blue king crab fishery has only been open during the 2009-2010 and 2010-2011 fishing seasons. Regardless of whether a fishery is scheduled to open, regulations at 50 CFR 680.20(e)(4)(ii) require that the market report and non-binding price formula must be prepared for each crab fishery no later than 50 days before the opening date for the first crab fishing season for that crab QS fishery. Because most crab fisheries have an October 15 season opening date, most of the market reports and non-binding price formulas must be produced by August 26 each year. However, in most cases, the State of Alaska does not announce whether a CR Program crab fishery will be open or closed until October 1.
        The proposed action would allow the AOs to mutually agree to forgo the production of the market report and non-binding price formula if a fishery is unlikely to and does not open. This agreement would be required to be included in the contract the AOs establish with the market analyst and formula arbitrator. If the AOs mutually agree to include this provision in their contract with the market analyst and the formula arbitrator, the contract would also have to require the production of the market report and non-binding price formula in the event that a fishery previously not anticipated to open does actually open. The proposed regulations at §§ 680.20 (f) and (g) would leave the details about the timeline for producing these reports in the event of a fishery opening to the mutual agreement of the AOs, only requiring that the market report and non-binding price formula be produced prior to June 30. The mutual agreement to forgo the issuance of a market report would need to be incorporated into the contract with the market analyst.
        Regulations at § 680.20(e)(5) require that the AOs provide NMFS with the names of the persons serving as the market analyst and provide copies of the contracts with the market analyst and formula arbitrator no later than June 1 of each year. Therefore, the contract with the market analyst and formula arbitrator, including any terms that would allow forgoing the production of a market report and non-binding price formula for a fishery, would need to be incorporated in the contract between the AOs and the market analyst no later than June 1. If the AOs could not reach mutual agreement on these terms by June 1, then the existing regulatory requirements to produce a market report and non-binding price formula no later than 50 days before a fishery opening would apply.
        As discussed above, because most fisheries have an October 15 opening date, this would require most market reports to be produced no later than August 26. The Council recommended this approach so that AOs unable to reach mutual agreement on whether to forgo production of market reports and non-binding price formula would have sufficient time to comply with the 50-day requirements at § 680.20 for their production.
        The Council determined, and NMFS agrees, that production of a market report for fisheries unlikely to open is unnecessary and presents a financial burden to fishery participants. Elimination of the requirement to produce a market report for fisheries unlikely to open presents a minor risk that participants in a fishery will have inadequate information to inform price negotiations in the event that a fishery unexpectedly opens; however, NMFS agrees with the Council that this risk is mitigated by the requirement that AOs develop a contingency plan for describing how a market report will be produced when a fishery unexpectedly opens or when AOs disagree concerning whether a fishery will open.
        Action 2: Modify the Timing for Release of the Aleutian Islands Golden King Crab Fishery Non-Binding Price Formula
        Under current State regulations, the EAG and WAG fisheries open on August 15 of each year. This opening date means that the non-binding price formula developed for both fisheries must be released no later than June 26, as current regulations require that the formula be released at least 50 days prior to the opening date for these fisheries. However, the opening date for the EAG and WAG fisheries prevents the formula arbitrator from using the most current information from the Commercial Operators Annual Report (COAR), which is a key source of information on wholesale prices used in the non-binding price formula. COAR documents are typically not available until early July; therefore, data from the preceding season is not incorporated in the non-binding price formula. Testimony to the Council from the formula arbitrator, the unaffiliated Class A IFQ and IPQ AOs, and participants in these fisheries indicate that delaying the issuance of the non-binding price formula until the most recent COAR is available would provide more informative and useful reports for price negotiations.

        This proposed action would amend the existing regulations at § 680.20(g) to require the non-binding price formula be released at least 30 days prior to the start of these fisheries to provide the formula arbitrator time to incorporate data from the most recent COAR. Fishery participants testifying to the Council indicated that producing the non-binding price formula at least 30 days prior to the start of the fisheries, rather than at least 50 days prior to the start of the fisheries, would not be expected to adversely affect price negotiations. Participants in the fisheries noted that a more complete and current non-binding price formula using COAR data from the most recent EAG and WAG fisheries would outweigh any potential disadvantage of a slightly shorter period of time to review the non-binding price formula before fishing begins. The Council determined and NMFS agrees that this proposed action would provide the affected fishing industry with the most recent data for use in the non-binding price formula while providing as much lead time as possible before the start of the fisheries for consideration of the non-binding price formula in any potential negotiations.

        Action 3: Modify the Information Used and Timing for Release of the Market Report
        Existing regulations at § 680.20(f) require that the market report be released no later than 50 days prior to the opening of a fishery and that it cannot be supplemented with additional information once released. Existing regulations permit the inclusion of publicly available information, as well as data from proprietary sources in the market report. The CR Program established the 50-day release date and prohibition on subsequent supplements to the market report to reduce the risk that the market report could contain proprietary data released during a fishing season. Any such data could unduly influence the results of the market report by creating incentives for processors or harvesters to present data that cannot be reviewed publicly and have that data incorporated in a manner that would influence the results of the market report for the benefit of one party, thereby increasing the risk of tainting the market report with information that could be used for anticompetitive purposes.
        To address these concerns, regulations at § 680.20(f)(2)(v) require that any price information contained in the market report: (1) Include only data that is based on information regarding activities occurring more than three months prior to the generation of the market report; (2) include only statistics for which there are at least five providers reporting data upon which each statistic is based and for which no single provider's data represents more than 25 percent of a weighted basis of that statistic; and (3) be sufficiently aggregated such that any information disseminated in the market report would not identify specific price information by an individual provider of information. These provisions are intended to prevent the use of private information in the report that could skew the conclusions reached by the market analyst in a manner that might benefit a specific private interest and could therefore be anticompetitive.
        While these requirements limit the potential for a harvester or processor to submit data for his or her benefit, these requirements also limit the usefulness of the market report because much of the data contained in the report are no longer indicative of market conditions by the time the market report is released. Furthermore, aggregation of data across five or more sources may not always be possible in the small market of crab producers, limiting the availability of data from private sources for any market report. Because of these concerns, representatives of the unaffiliated Class A IFQ and IPQ AOs recommended several changes to the market report.
        The AOs recommended that, by at least 50 days prior to a fishery opening, the AOs representing the unaffiliated Class A IFQ and IPQ holders should be permitted to mutually agree to the timeline for release of the market report, and that these AOs could mutually agree to allow supplements to the market report at any time prior to June 30. Additionally, the AOs recommended that the market report use only publicly available information and that the AOs be provided discretion in recommending contents of the market report. The Council agreed that the current requirement for market reports to be complete at least 50 days prior to the season prevents inclusion of the most current and relevant pricing information and that the prohibition on supplements to the report prevents subsequent report modification to provide useful market information inseason or after completion of the initial report. The Council concurred with the AOs that market reports would be more timely and informative if those reports can be produced and supplemented at any time and recommended that the market report contain only publicly available information to reduce the risk that any information provided by a private source could taint the market report for anticompetitive purposes. For the purposes of this proposed action, publicly available information means data and information published in a manner that makes them available, either for a fee or at no cost, to the public at large. The Council also recommended allowing the AOs to negotiate the timing of release of the market report and the inclusion of any supplements to enhance the timeliness, accuracy, and usefulness of the market report.
        NMFS agrees with the Council that the flexibility afforded by this proposed action should allow AOs to provide the most useful, timely information to participants in need of market information for price negotiations. This proposed action presents some risk that majority QS and PQS holders could assert their position in the AOs to provide a market report that is not particularly beneficial to holders of relatively small amounts of QS or PQS, and who may be likely to derive the greatest benefit from the market reports. The Council and NMFS find the risk to be minor and that the benefits of the proposed action outweigh this slight and unlikely risk.
        To be consistent with the Council's recommendations, this proposed action would amend regulations at § 680.20(f) to remove the ability for IFQ and IPQ holders to submit proprietary data for inclusion in the market report, require that the information that the market analyst considers be publicly available, and allow AOs to mutually agree to negotiate the content and the timing for release of the market report. As with Action 1, while the proposed regulations would allow the AOs to mutually agree to a date for release of the market report, regulations would require release of the market report prior to June 30. NMFS also proposes to amend regulations at § 680.20(f) to clarify that if the AOs cannot mutually agree to the contents, timing for release, or a provision addressing whether any supplements for the market report will be permitted, the market report would have to be released 50 days prior to the start of a crab fishery, and supplements to the market report would not be permitted. This would ensure that a market report will be prepared for each fishery if the AOs cannot reach mutual agreement. The Council recommended that existing requirements should apply if mutual agreement is not possible to ensure that all parties have some market report available for consideration during price negotiations even if the data in that report may not be as current as that available later in the year.
        Action 4: Clarify the Authority of the AOs, Market Analyst, Formula Arbitrator, Contract Arbitrators, and Third-Party Data Provider

        The arbitration program established by the CR Program requires AOs to enter into a series of contracts with harvesters, processors, market analysts, arbitrators, and, if desirable, a third-party data provider. Regulations require each of these contracts to contain several specific provisions. However, the regulations do not specify all aspects of the arbitration system. For example, regulations at §§ 680.20(f) and (g) do not provide specific details about how the market reports and non-binding price formula documents should be released, how specific data-quality issues within these documents should be considered and addressed, or how new information should be incorporated. Because the regulations are specific on certain requirements and silent as to other aspects, arbitration administrators (i.e., the AO representatives, contract arbitrators, formula arbitrators, market analysts, and third party data providers) have questioned their authority to agree to provisions or develop procedures that could improve the arbitration program but that are not explicitly contained in regulation. Absent a regulation that clearly specifies this authority, it could be argued that these actions are beyond the scope of an arbitration administrator's powers.
        As a result, arbitration administrators have expressed some concern that potential liability could influence decisionmaking. For example, if an arbitrator is concerned that a participant may litigate if the arbitrator makes a certain finding, the arbitrator's independence could be compromised. Likewise, arbitration organizations might choose not to make changes in the arbitration structure that are agreed to by participants in both harvesting and processing sectors, but are not addressed by the regulations, if they fear potential lawsuits related to those changes. At the extreme, the threat of liability could make it difficult to find persons willing to perform arbitration services.
        Although not specifically stated in the regulations originally developed to implement the CR Program, a review of the EIS prepared for the CR Program supports the conclusion that the Council intended for arbitration administrators to have the discretion to adapt the arbitration system to address perceived problems in program administration. Specifically, the EIS notes that administration of the arbitration system “would be undertaken primarily by industry, avoiding government involvement in the price setting process and providing greater flexibility to adopt agreed to modifications without government action.”
        This flexibility was viewed by the Council and NMFS as necessary to avoid time consuming and costly processes of the Council and NMFS to amend the program through the standard regulatory process. The Council believed that broader administrative authority by the arbitration administrators would improve the efficiency of administration of the arbitration system. Although many industry participants have argued that the arbitration administrators have broad authority to adopt provisions to improve the operations of the arbitration system, absent a regulation clearly specifying this authority, it could be argued that these actions are beyond the scope of their powers.
        For these reasons, the Council recommended that the regulations be modified to specifically state that arbitration administrators have the authority to establish procedures and make administrative decisions concerning the arbitration program that are in addition to those requirements specified in regulation, provided those actions are not in conflict with any of the regulatory requirements. NMFS agrees with the Council's recommendations and proposes this additional clarification in a new paragraph at § 680.20(i). This proposed clarification of authority is intended to remove any inhibitions of arbitration administrators to adopt procedures and make decisions that would improve the operation of the arbitration system.
        Expected Effects of the Proposed Action
        The RIR describes the predicted effects of the proposed action on harvesters, processors, arbitration administrators, communities, management and enforcement, consumers, and the nation. Only the effects of the proposed action on harvesters, processors, and arbitration administrators are described here. Overall, this action would be expected to slightly reduce the costs for harvesters and processors to comply with the arbitration system requirements by eliminating the requirements that market reports and non-binding price formulas be prepared for fisheries that are not open for fishing, provide a more timely and useful non-binding price formula for the eastern and western Aleutian Islands golden king crab fisheries, provide more timely and useful market reports that may be used during price negotiations between harvesters and processors, and provide additional flexibility and clarity for the arbitration administrators when establishing policies and procedures not detailed in the regulations.
        A minor overall net benefit to the Nation is likely to arise from this proposed action. Action 1 is likely to decrease costs, Actions 2 and 3 are likely to improve the quality and timing of information provided to participants in the arbitration system, and Action 4 is likely to provide additional clarity for arbitration administrators. Overall, this proposed action would most benefit unaffiliated Class A IFQ and IPQ holders participating in the arbitration system.
        Summary of Regulatory Changes
        This action proposes the following changes to the existing regulatory text at 50 CFR part 680:
        • Modify § 680.20(f)(1) to permit AOs by mutual agreement to include a provision in the contract with the market analyst to forgo the production of a market report if a crab fishery is not anticipated to open for fishing. If such a provision is included in the contract with the market analyst, the contract must also contain provisions to require the market analyst to produce a market report before June 30 in the event that the fishery that was not anticipated to open does subsequently open for fishing. In the absence of such an agreement and contract provisions, a market report would be required to be produced for that crab fishery no later than 50 days before the start of a crab fishery;
        • Modify § 680.20(f)(2) to require that a market report contain only publicly available data, and that the AOs could, by mutual agreement, include a provision in their contract with the market analyst that would permit the production of supplemental reports for a fishery. The contract with the market analyst would have to specify the terms under which supplements to the market report would be produced if such a provision is included in the contract;
        • Modify § 680.20(f)(4) to permit AOs, by mutual agreement, to include a provision in the contract with the market analyst that would allow the production of the market report for a crab fishery on a schedule that differs from the regulatory requirement to produce a market report not later than 50 days before the start of a crab fishery. If such a provision is included, the contract with the market analyst would have to specify the terms under which a market report would be produced and would have to require the release of the market report prior to the close of the fishery. In the absence of such an agreement by the AOs, the contract with the market analyst would require the production of a market report no later than 50 days before the start of a crab fishery;
        • Modify § 680.20(f)(4)(ii) to specify that the Market Analyst is providing the Market Report. This modification was not a part of the Council's action on Amendment 30, but this proposed regulatory amendment is an appropriate opportunity to correct the lack of specificity in this paragraph;

        • Modify § 680.20(g)(1) to permit AOs, by mutual agreement, to include a provision in the contract with the formula arbitrator to forgo the production of a non-binding price formula if a crab fishery is not anticipated to open for fishing. If such a provision is included, the contract must also contain provisions that would require the formula arbitrator to produce a non-binding price formula before June 30 in the event that a fishery that was not anticipated to open does subsequently open for fishing. In the absence of such an agreement and contract provisions, a non-binding price formula would be required to be produced for that crab fishery no later than 50 days before the start of a crab fishery;
        • Modify § 680.20(g)(2) to require that the non-binding price formula produced for the western Aleutian Islands golden king crab fishery and the eastern Aleutian Islands golden king crab fishery be produced no later than 30 days prior to the start of those crab fisheries; and
        • Add paragraph (i) to § 680.20 to clarify that arbitration administrators may establish procedures, policies, and make administrative decisions concerning the administration of the arbitration system that are in addition to regulatory requirements, provided those procedures, policies, or administrative decisions are not otherwise in conflict with any requirement contained in the arbitration system regulations.
        Classification
        The Assistant Administrator for Fisheries, NOAA, has determined that this proposed rule is consistent with Amendment 30, the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable laws, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        An IRFA was prepared that describes the economic impact this proposed rule, if adopted, would have on small entities. Copies of the RIR/IRFA prepared for this proposed rule are available from NMFS. The RIR/IRFA prepared for this proposed rule incorporates by reference an extensive RIR/FRFA prepared for Amendments 18 and 19 to the FMP that detailed the impacts of the CR Program on small entities.
        The IRFA for this proposed action describes the action, why this action is being proposed, the objectives and legal basis for the proposed rule, the type and number of small entities to which the proposed rule would apply, and the projected reporting, recordkeeping, and other compliance requirements of the proposed rule. It also identifies any overlapping, duplicative, or conflicting Federal rules and describes any significant alternatives to the proposed rule that accomplish the stated objectives of the Magnuson-Stevens Act and other applicable statutes, and that would minimize any significant adverse economic impact of the proposed rule on small entities. The description of the proposed action, its purpose, and its legal basis are described in the preamble and are not repeated here.
        Under each of these actions, holders of CVO QS and holders of PQS would be regulated in the contracts that they must establish as a condition of receiving Class A IFQ and IPQ, respectively. The holders of these shares are the entities that are directly regulated by this action. Of the estimated 221 QS holders in the fisheries, 210 are estimated to be small entities. Of the estimated 25 PQS holders, 17 are estimated to be small entities.
        All of the directly regulated persons would be expected to benefit from this action relative to the status quo alternative because the proposed action is expected to reduce the costs of compliance with the arbitration system, provide more timely and useful market reports and non-binding price formulas for use in negotiations, and provide clarity concerning the administration of the arbitration system.
        Among the two alternatives considered for each of the four proposed actions, the Council and NMFS determined that the proposed actions would best minimize potential adverse economic impacts on the directly regulated entities. Action 1 Alternative 1, the status quo alternative, would continue to require that a market report and non-binding price formula be prepared for a crab fishery that is closed to fishing. Alternative 2, the proposed action, would provide the AOs with the discretion not to produce a market report and non-binding price formula if a fishery does not open, thereby reducing costs to the quota holders directly regulated.
        No additional alternatives were analyzed because both a market report and non-binding price formula are prepared or they are not, and an additional alternative would not be necessary or appropriate to address the proposed action. Alternatives that would rely on preliminary notice from State of Alaska fishery managers of intent to close a fishery, after which arbitration organizations would not be required to contract for a market report or non-binding formula for that fishery were considered and not analyzed. The need for formal notice from fishery managers could be misinterpreted and disruptive to planning for fishing in the upcoming fishing season. Additionally, alternatives that would create a strict timeframe for applying the exemption, as well as for producing the market report and non-binding formula were considered and not analyzed. These alternatives are believed to be overly restrictive and administratively burdensome, limiting the ability of arbitration organizations to appropriately respond to changes in circumstances in providing the reports and formulas.
        Action 2 Alternative 1, the status quo alternative, would continue to require that a non-binding price formula for the eastern and western Aleutian Islands golden king crab fisheries be prepared at least 50 days prior to the fishery openings. Alternative 2, the proposed action, would require that a non-binding price formula be prepared at least 30 days prior to the fishery opening, thereby ensuring that relevant price information can be incorporated in the non-binding price formula.
        No additional alternatives were considered because the AOs and formula arbitrator stated that a minimum of 30 days between the release of the non-binding price formula and the start of the season is required to provide harvesters and processors with the time necessary to review the non-binding price formula, and an additional alternative would not be necessary or appropriate to address the proposed action.
        Action 3 Alternative 1, the status quo alternative, would continue to require that market reports be released at least 50 days prior to the opening of a fishery, that they not be supplemented with additional information once released, and that they be based on publicly available information, as well as data from proprietary sources within certain parameters described in the preamble. Alternative 2, the proposed action, would provide the AOs with the discretion to mutually agree to negotiate the timing for release of a market report and to include any supplements to help provide a timely, accurate, and more useful product. Alternative 2 also would require that the information that the market analyst considers be publicly available.

        No additional alternatives were analyzed because Alternative 2 provides the AOs with the discretion to determine the timing of the report and the need to produce supplements if required. An alternative that would fix a specific date for the production of a market report and any supplements, or that required the use of proprietary data, would fail to address the purpose of this proposed action, which is to provide a timely and complete report as needed by the participants in the arbitration system. These alternatives were believed to be overly prescriptive, limiting the ability of arbitration organizations to agree to terms for the production of market reports that would be most useful and informative to fishery participants. In addition, an alternative to remove the requirement for any market report was also considered, but not analyzed. The market report is thought to provide beneficial baseline market information for negotiations. In addition, small, independent participants in the program are thought to derive benefit from information in the market report which might otherwise be costly for them to gather. As a consequence, the alternative to remove the market report requirement was determined to be inconsistent with the basic program objectives for price arbitration in the CR Program fisheries.
        Action 4 Alternative 1, the status quo alternative, would not provide any additional clarity to arbitration administrators on their ability to establish policies and procedures not specifically described in existing regulations at § 680.20. Alternative 2, the proposed action, would clarify that AOs can establish procedures and make administrative decisions concerning the arbitration program that are not explicitly specified in the regulations provided those actions are not in conflict with any requirement contained in the arbitration system regulations.
        An alternative that would grant immunity to arbitration administrators for their actions taken in the administration of the arbitration system was considered, but not analyzed. Regulations that grant arbitral immunity would effectively restrict the ability of courts to adjudicate certain actions against specific persons. While there are clear benefits to arbitration systems from arbitral immunity, and courts have applied arbitral immunity for arbitrators and arbitration organizations, it is uncertain whether the Magnuson-Stevens Fishery Conservation and Management Act authorizes NMFS to promulgate regulations that grant such immunity. The Council stated its belief that the preferred alternative (by clarifying the scope of authority of arbitration administrators) would strengthen any argument that common law or other immunity should be extended to any acts taken to administer the arbitration program (including the development of arbitration procedures).
        The proposed actions in this rule would modify existing recordkeeping and reporting requirements, but do not propose any additional recordkeeping and reporting requirements. Specifically, the proposed actions would modify the timing, preparation, and release of information used in the market reports and non-binding price formulas. The analysis revealed no Federal rules that would conflict with, overlap, or be duplicated by the alternatives under consideration.
        This proposed rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval under OMB Control No. 0648-0516. Public reporting burden for the market report is estimated to average four hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

        Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS Alaska Region (the address is available in the ADDRESSES section), and e-mail to OIRA Submission@omb.eop.gov, or fax to 202-395-7285.
        Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

          List of Subjects in 50 CFR Part 680
          Alaska, Fisheries.

          Dated: August 3, 2011.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 680 is proposed to be amended as follows:

          PART 680—SHELLFISH FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
          1. The authority citation for 50 CFR part 680 continues to read as follows:

            Authority:
             16 U.S.C. 1862; Pub. L. 109-241; Pub. L. 109-479.

          2. In § 680.20,
          a. Revise paragraphs (e)(4)(i), (e)(4)(ii), and (f)(1);
          b. Revise paragraphs (f)(2) introductory text, and paragraphs (f)(2)(i) and (f)(2)(ii), and remove paragraphs (f)(2)(iii) through (v);
          c. Redesignate paragraphs (f)(2)(vi) through (f)(2)(viii) as paragraphs (f)(2)(iii) through (f)(2)(v) respectively, and revise newly redesignated paragraph (f)(2)(v);
          d. Revise paragraphs (f)(4)(i), (f)(4)(ii), and (g)(1);
          e. Revise paragraph (g)(2)(viii)(B); and
          f. Add new paragraph (i) to read as follows:

            § 680.20
            Arbitration system.

            (e) * * *
            (4) * * *
            (i) For each crab fishing year, QS holders who are members of Arbitration QS/IFQ Arbitration Organization(s) and PQS holders who are members of PQS/IPQ Arbitration Organization(s), by mutual agreement, will select one Market Analyst, one Formula Arbitrator, and Contract Arbitrator(s) for each crab QS fishery. The number of Contract Arbitrators selected for each fishery will be subject to the mutual agreement of those Arbitration Organizations. The selection of the Market Analyst and the Formula Arbitrator must occur in time to ensure the Market Report and non-binding price formula are produced within the time line established in paragraphs (f)(4)(i) and (g)(2)(viii)(B) of this section.
            (ii) The Arbitration Organizations representing Arbitration QS holders and PQS holders in a crab fishery shall establish by mutual agreement the contractual obligations of the Market Analyst, Formula Arbitrator, and Contract Arbitrator(s) for each fishery. The contractual obligations of the Market Analyst, the formula Arbitrator and Contract Arbitrators will be enforced by the parties to the contract.

            (f) * * *
            (1) Except as provided in paragraph (f)(1)(ii) of this section:
            (i) The Arbitration QS/IFQ Arbitration Organizations and the PQS/IPQ Arbitration Organizations shall establish a contract with the Market Analyst to produce a Market Report for each crab QS fishery. The terms of this contract must specify that the Market Analyst must produce a Market Report that shall provide an analysis of the market for products of that fishery.

            (ii) The Arbitration QS/IFQ Arbitration Organizations and the PQS/IPQ Arbitration Organizations may, by mutual agreement, include a provision in the contract with the Market Analyst to forgo production of a Market Report for a crab QS fishery if the Arbitration QS/IFQ Arbitration Organizations and the PQS/IPQ Arbitration Organizations anticipate that the crab QS fishery will not open for fishing during a crab fishing year. If such a provision is included in the contract with the Market Analyst, the Arbitration QS/IFQ Arbitration Organizations and the PQS/IPQ Arbitration Organizations must include a provision in the contract with the Market Analyst to produce a Market Report not later than June 30 for the crab QS fishery that was expected to remain closed but subsequently opens for fishing during the crab fishing year.
            (2) The contract with the Market Analyst must specify that:
            (i) The Market Analyst will base the Market Report on a survey of the market for crab products produced by the fishery.
            (ii) The Market Analyst will note generally the sources from which he or she gathered information. The Market Report must include only publicly available data and information. Data and information will be considered publicly available if they are published in a manner that makes them available, either for a fee or at no cost, to the public at large.

            (v) The Market Analyst must not issue interim or supplemental reports for any crab QS fishery unless the Arbitration QS/IFQ Arbitration Organizations and the PQS/IPQ Arbitration Organizations, by mutual agreement, include a provision in the contract with the Market Analyst for the production of interim or supplemental reports for a crab QS fishery. If the Arbitration QS/IFQ Arbitration Organizations and the PQS/IPQ Arbitration Organizations have a mutual agreement to produce interim or supplemental reports, the contract with the Market Analyst must specify the terms and conditions under which those interim or supplemental reports will be produced.

            (4) * * *
            (i) In all subsequent years and except as provided in paragraph (f)(1)(ii) of this section, the Market Report for each crab QS fishery must be produced not later than 50 days prior to the first crab fishing season for that crab QS fishery, unless the Arbitration QS/IFQ Arbitration Organizations and the PQS/IPQ Arbitration Organizations, by mutual agreement, include a provision in the contract with the Market Analyst to establish a different date for production of the Market Report for that crab QS fishery.
            (ii) The contract with the Market Analyst must specify that the Market Analyst will provide the Market Report in that crab fishing year to:

            (g) * * *
            (1) Except as provided in paragraph (g)(1)(ii) of this section:
            (i) The Arbitration QS/IFQ Arbitration Organizations and the PQS/IPQ Arbitration Organizations shall establish a contract with the Formula Arbitrator to produce a Non-Binding Price Formula for each crab QS fishery.
            (ii) The Arbitration QS/IFQ Arbitration Organizations and the PQS/IPQ Arbitration Organizations may, by mutual agreement, include a provision in the contract with the Formula Arbitrator to forgo production of a Non-Binding Price Formula for a crab QS fishery if the Arbitration QS/IFQ Arbitration Organizations and the PQS/IPQ Arbitration Organizations anticipate that the crab QS fishery will not open for fishing during a crab fishing year. If such a provision is included in the contract with the Formula Arbitrator, the Arbitration QS/IFQ Arbitration Organizations and the PQS/IPQ Arbitration Organizations must include a provision in the contract with the Formula Arbitrator to produce a Non-Binding Price Formula not later than June 30 for the crab QS fishery that was expected to remain closed but subsequently opens for fishing during the crab fishing year.

            (2) * * *
            (viii) * * *
            (A) * * *
            (B) In all subsequent years and except as provided in paragraph (g)(1)(ii) of this section, the Non-Binding Price Formula must be produced not later than 50 days prior to the first crab fishing season for that crab QS fishery, except that the Non-Binding Price Formulas for the western Aleutian Islands golden king crab fishery and the eastern Aleutian Islands golden king crab fishery must be produced not later than 30 days prior to the first crab fishing season for those crab QS fisheries.

              (i) Other Procedures, Policies, and Decisions.
            The arbitration organizations, market analysts, arbitrators, or third party data providers are authorized to adopt arbitration system procedures, including additional provisions in the various contracts, provided those procedures are not inconsistent with any other provision in the regulations.

      [FR Doc. 2011-20187 Filed 8-9-11; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AI19
        Endangered and Threatened Wildlife and Plants; Listing the Tumbling Creek Cavesnail as Endangered

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule.

          SUMMARY:

          We, the Fish and Wildlife Service (Service), propose to list the Tumbling Creek cavesnail, Antrobia culveri, as endangered pursuant to the Endangered Species Act of 1973, as amended (Act). An emergency rule listing this species as endangered for 240 days is published concurrently in this issue of the Federal Register. This species is known to occur in one cave in Missouri. The distribution of this species has decreased in Tumbling Creek by 90 percent since 1974. Although cavesnail numbers fluctuated seasonally and annually between 1996 and 2000, it was not found in the monitored section of the cave stream during five surveys in 2001. A few individuals continue to be found in an upstream area, but the population has declined so drastically that the species is on the verge of extinction. Reasons for the decline are unknown, but are likely caused by activities in Tumbling Creek Cave's surface recharge area that have degraded the stream's water quality. Critical habitat is not being proposed at this time. We solicit additional data, information, and comments from the public that may assist us in making a final decision on this proposed action.

          DATES:
          Comments from all interested parties must be received by February 25, 2002. Public hearing requests must be received by February 11, 2002.

          ADDRESSES:
          Comments and other materials concerning this proposal should be sent to the Field Supervisor, Columbia, Missouri Field Office, U.S. Fish and Wildlife Service, 608 E. Cherry St., Room 200, Columbia, Missouri 65201-7712. Comments and materials received, as well as the supporting documentation used in preparing the rule, will be available for public inspection, by appointment, during normal business hours at the above address.

          FOR FURTHER INFORMATION CONTACT:
          Dr. Paul McKenzie at the address listed above (telephone: 573-876-1911, ext. 107; email: paul_mckenzie@fws.gov; facsimile: 573-876-1914; or Mr. Ron Refsnider, U.S. Fish and Wildlife Service, Bishop Henry Whipple Federal Building, 1 Federal Drive, Fort Snelling, Minnesota 55111-4056; telephone: 612-713-5346; email: ron_refsnider@fws.gov; facsimile: 612-713-5292).

        SUPPLEMENTARY INFORMATION:
        Background

        For a discussion of biological background information, previous Federal actions, factors affecting the species, critical habitat, and conservation measures available, consult the emergency rule for the Tumbling Creek cavesnail published concurrently in this issue of the Federal Register.
        Public Comments Solicited
        We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:
        (1) Biological, commercial trade, or other relevant data concerning any threat (or lack thereof) to this species;
        (2) The location of any additional populations of this species;
        (3) Additional information concerning the range, distribution, and population size of this species;
        (4) Current or planned activities in the subject area and their possible impacts on this species; and

        (5) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act.

        In making any final decision on this proposal we will take into consideration the comments and any additional information we receive, and such communications may lead to a final regulation that differs from this proposal.

        The Act requires that a public hearing be held if requested within 45 days of the date of publication of a proposed rule. Such requests must be made in writing and must be addressed to the Field Supervisor of our Columbia, Missouri, Field Office. (See
          ADDRESSES section).
        National Environmental Policy Act

        We have determined that an Environmental Assessment or Environmental Impact Statement, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section (4)(a) of the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).
        Paperwork Reduction Act

        This rule does not contain any collections of information other than those already approved under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of Management and Budget clearance number 1018-0094. 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 control number. For additional information concerning permit and associated requirements for endangered species, see 50 CFR 17.21 and 17.22.
        Author

        The primary author of this proposed rule is Paul McKenzie, Ph.D., of our Columbia, Missouri, Field Office (see ADDRESSES section).

          List of Subjects in 50 CFR Part 17
          Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

        Proposed Regulation Promulgation

        For the reasons given in the preamble to the emergency rule listing the Tumbling Creek cavesnail as endangered, published concurrently in this issue of the Federal Register, 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 § 17.11(h) by adding the following, in alphabetical order under SNAILS, to the List of Endangered and Threatened Wildlife:

            § 17.11
            Endangered and threatened wildlife.

            (h) * * *

                Species
                Common name
                Scientific name
                Historic range
                Vertebrate population where endangered or threatened
                Status
                When listed
                Critical habitat
                Special rules

                *         *         *         *         *         *         *

                  Snails

                *         *         *         *         *         *         *

                Cavesnail, Tumbling Creek

                  Antrobia culveri

                U.S.A. (MO)
                NA
                E

                NA
                NA

                *         *         *         *         *         *         *

            Dated: December 10, 2001.
            Marshall P. Jones Jr.,
            Acting Director, Fish and Wildlife Service.

      [FR Doc. 01-31306 Filed 12-26-01; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 223
        [Docket No. 101124581-0584-01]
        RIN 0648-XA046
        Endangered and Threatened Species; 90-Day Finding on Petitions To Delist the Eastern Distinct Population Segment of the Steller Sea Lion

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

          ACTION:
          Notice of 90-day petition finding; request for information.

          SUMMARY:

          We (NMFS) announce a 90-day finding on two petitions to delist the eastern Distinct Population Segment (DPS) of the Steller Sea Lion (Eumetopias jubatus) under the Endangered Species Act of 1973, as amended (ESA). We find that the petitions present substantial scientific or commercial information indicating that the petitioned action may be warranted. We are continuing our status review of this DPS to determine if the petitioned action is warranted. To ensure that the status review is comprehensive, we are again soliciting scientific and commercial information regarding this species from any interested party.

          DATES:
          Information and comments must be submitted to NMFS by February 11, 2011.

          ADDRESSES:
          You may submit comments, identified by RIN 0648-XA046, by any of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http//www.regulations.gov. Follow the instructions for submitting comments.
          • Hand-delivery: Assistant Regional Administrator, Protected Resources Division, NMFS, Alaska Regional Office, Attn: Ellen Sebastian, Juneau Federal Building, 709 West 9th Street, Room 420A, Juneau, AK 99802-1668.
          • Mail: P.O. Box 21668, Juneau, AK 99802.
          • Facsimile (fax): (907) 586-7557.

            Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may 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, Excel, WordPerfect, or Adobe PDF file formats only.
          The petitions may be viewed at: http://www.alaskafisheries.noaa.gov./protectedresources/stellers/edps/status.htm.

          FOR FURTHER INFORMATION CONTACT:
          Dr. Lisa Rotterman, NMFS, Alaska Region, (907) 271-1692; Kaja Brix, NMFS, Alaska Region, (907) 586-7235; or Lisa Manning, NMFS, Office of Protected Resources, (301) 713-1401.

        SUPPLEMENTARY INFORMATION:
        ESA Statutory Provisions and Policy Considerations
        The Administrative Procedure Act and ESA enable an interested person to petition for the listing or delisting of a species, subspecies, or DPS of a vertebrate species which interbreeds when mature (5 U.S.C. 553(e), 16 U.S.C.1533(b)(3)(A)). ESA-implementing regulations issued by NMFS and the U.S. Fish and Wildlife Service (FWS) also establish procedures for receiving and considering petitions to revise the lists and for conducting periodic reviews of listed species (50 CFR 424.01).

        Section 4(b)(3)(A) of the ESA (16 U.S.C. 1533(b)(3)(A)) requires that the Secretary of Commerce (Secretary) make a finding as to whether a petition to delist a species presents substantial scientific or commercial information indicating the petitioned action may be warranted. ESA implementing regulations define “substantial information” as the amount of information that would lead a reasonable person to believe the measure proposed in the petition may be warranted (50 CFR 424.14(b)(1)). In determining whether substantial information exists for a petition to list a species, we take into account several factors, including information submitted with, and referenced in, the petition and all other information readily available in our files. To the maximum extent practicable, this finding is to be made within 90 days of the receipt of the petition (16 U.S.C. 1533(b)(3)(A)), and the finding is to be published promptly in the Federal Register. If the Secretary finds that a petition presents substantial information indicating that the requested action may be warranted, the Secretary must conduct a status review of the species concerned.
        Section 4(b)(3)(B) requires the Secretary to make a finding as to whether or not the petitioned action is warranted within 12 months of the receipt of the petition. The Secretary has delegated the authority for these actions to the NOAA Assistant Administrator for Fisheries. In making the 12-month finding whether the petitioned action is warranted, we will also determine whether the eastern DPS continues to qualify as a threatened species.
        The ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” (ESA section 3(6)). A threatened species is defined as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range” (ESA section 3(19)). The basis for the determination of a species' status under the ESA is provided in section 4 of the ESA. Under the ESA, a listing determination can address a species, subspecies, or a DPS of a vertebrate species which interbreeds when mature (16 U.S.C. 1532 (16)). Under section 4(a)(1) of the ESA, a species may be determined to be threatened or endangered as a result of any one of the following factors:
        (A) Present or threatened destruction, modification, or curtailment of habitat or range;
        (B) Over-utilization for commercial, recreational, scientific, or educational purposes;
        (C) Disease or predation;
        (D) Inadequacy of existing regulatory mechanisms; or
        (E) Other natural or manmade factors affecting its continued existence.
        Regulations implementing the ESA instruct NMFS to consider these same factors when determining whether to delist a species, a subspecies, or a DPS (50 CFR 424.11(d)).
        Listing determinations are made solely on the basis of the best scientific and commercial data available, after conducting a review of the status of the species and taking into account efforts made by any state or foreign nation to protect such species.
        Regulations implementing the ESA provide the rules for revising the Lists of Endangered and Threatened Wildlife and Plants (50 CFR 424). The regulations provide criteria for determining species to be endangered or threatened. In addition to identifying the factors that NMFS should consider when determining whether to delist a species, a subspecies, or a DPS, the ESA implementing regulations state that a species may be delisted for one or more of the following reasons: The species is extinct or has been extirpated from its previous range; the species has recovered and is no longer endangered or threatened; or investigations show the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error (50 CFR 424.11(d)).
        Background
        The Steller sea lion (Eumetopias jubatus) was listed as a threatened species under the ESA on April 5, 1990 (55 FR 12645). Critical habitat was designated on August 27, 1993 (58 FR 45269), based on the location of terrestrial rookery and haulout sites, spatial extent of foraging trips, and availability of prey. In 1997, based on demographic and genetic dissimilarities, we designated two DPSs of Steller sea lions under the ESA: A western DPS and an eastern DPS (62 FR 24345, 62 FR 30772). Due to persistent decline, the western DPS was reclassified as endangered, while the increasing eastern DPS remained classified as threatened.

        We completed the first recovery plan for Steller sea lions in December 1992. At that time, the entire species was listed as threatened under the ESA. Because that recovery plan became obsolete after the reclassification of Steller sea lions into two distinct population segments (DPS) in 1997, and because nearly all of the recovery actions contained in the first plan had been completed, NMFS assembled a new Steller Sea Lion Recovery Team (Team) in 2001 to assist NMFS in revising the Recovery Plan and further promote conservation of the species. In March, 2008, NMFS released a Revised Recovery Plan for the Steller Sea Lion: Eastern and Western Distinct Population Segments (Recovery Plan). The 2008 Recovery Plan states that, in 2002, the number of individuals in the eastern DPS was estimated to be between 46,000 and 58,000 and that this population had been increasing at approximately 3 percent per year since the late 1970s (Pitcher et al. 2007, as cited in NMFS 2008:x). The Executive Summary of the 2008 Recovery Plan states that the eastern DPS appears to have recovered from the predator control programs of the 20th century, which extirpated animals at rookeries and haulouts, no substantial threats are currently evident, and the population continues to increase at approximately 3 percent per year (NMFS 2008). The 2008 Recovery Plan also summarizes that:

          “* * * no threats to continued recovery were identified for the eastern DPS. Although several factors affecting the western DPS also affect the eastern DPS (e.g., environmental variability, killer whale predation, toxic substances, disturbance, shooting), these threats do not appear to be at a level sufficient to keep this population from continuing to recover, given the long term sustained growth of the population as a whole. However, concerns exist regarding global climate change and the potential for the southern part of the range (i.e., California) to be adversely affected. Future monitoring should target this southern portion of the range” (NMFS 2008:xiii).”

        It further states, “The primary action[s] [recommended] in the plan [are] to initiate a status review for the eastern DPS and consider removing it from the Federal List of Endangered Wildlife and Plants.” (NMFS 2008:xvi). The 2008 Recovery Plan identifies the following delisting criteria:
        1. The population has increased at an average annual growth rate of 3 percent per year for 30 years.
        2. The ESA listing factor criteria are met. NMFS (2008: viv).
        The Recovery Plan states that when the first of these criteria has been met, NMFS will evaluate the ESA listing factor criteria to determine whether to delist the eastern DPS.
        On June 29, 2010, we provided notice of the initiation of a 5-year status review of the eastern DPS of Steller sea lion under the ESA and opened a public comment period (75 FR 37385, June 29, 2010; 75 FR 38979, Wednesday, July 7, 2010). The agency subsequently re-opened a second public comment period (75 FR 53272, August 31, 2010). A 5-year status review is a periodic process conducted to ensure that the listing classification of a species is accurate, and it is based on the best scientific and commercial data available at the time of the review. On the basis of such reviews under section 4(c)(2)(B) of the ESA, we determine whether or not any species should be removed from the list (delisted), or reclassified from endangered to threatened or from threatened to endangered.
        Analysis of the Petitions
        On August 30, 2010, we received a petition from the States of Washington and Oregon to delist the eastern DPS of Steller sea lion under the ESA. On September 1, 2010, the Secretary of Commerce received a petition from the State of Alaska to delist the eastern DPS of Steller sea lion. Both petitions contend that the eastern DPS of Steller sea lions has recovered, is not in danger of extinction now, and is not likely to be in danger in the foreseeable future. Because we received two petitions within a short period of time that requested the same action, we have considered the two petitions jointly in making our 90-day finding.
        Both petitions make multiple references to statements, information, and conclusions from the aforementioned 2008 Revised Recovery Plan, and literature cited within this document. For example, the conclusion section of the State of Alaska petition states:

          “In the 2008 Recovery Plan, NMFS concluded that “[n]o threats to recovery [of the Eastern DPS of the Steller sea lion] have been identified and the population has been increasing for over 25 years, new rookeries have been created, and the population is at historical high levels.” 2008 Recovery Plan at VII-7.”

        Additionally, new information that was not available at the time of the 2008 Recovery Plan, but that was readily available in our files upon receipt of the petitions, was presented in the petitions. For example, the petition from the States of Oregon and Washington refers to a recently published paper when they state:

          “Boyd (2010) concluded that “the eastern and western segments of the population have probabilities of persistence that mean they do not meet the criteria for classification as endangered and it would be reasonable to de-list them”.”

        The State of Alaska's petition cites new aerial survey information provided in a memorandum from the Alaska Fishery Science Center to the Alaska Region Protected Resources Division of NMFS. This memorandum reported that Steller sea lion pup production in Southeast Alaska (eastern DPS) totaled 7,462 pups in 2009, with 7,443 counted at the 5 major rookeries where 5,510 had been counted in 2005.
        The petitions also present some new information that was not readily available in our files. For example, the petition from the States of Oregon and Washington cites unpublished data from studies of Steller sea lions by the Oregon and Washington Departments of Wildlife to support their conclusion that

          “None of the potential natural or manmade causes for population decline examined in the western population range appear to be having negative impacts on eastern stock sea lions occurring in Oregon and Washington * * *.”

        This petition also provides preliminary results of non-pup abundance survey data from 1976-2008 collected by the Oregon Department of Wildlife, and the Petitioners report that unpublished data from surveys conducted by the Washington Department of Fish and Wildlife (WDFW) along the Washington coast show both increasing Steller sea lion numbers at haulout areas as well as increasing numbers of newborn pups at several locations over recent years. The Petitioners further contend that the available data demonstrate 31 years of population growth in the area of the primary Steller sea lion rookeries in U.S. waters south of Alaska (citing Pitcher et al., 2007). Based on the information presented and referenced in the petition, as well as all other information readily available in our files, we find that the petitions present substantial information indicating that the petitioned action may be warranted.
        Status Review and Solicitation of New Information

        As a result of this finding, we will continue our ongoing status review to determine whether the delisting of the eastern DPS of Steller sea lion under the ESA is warranted. We intend that any final action resulting from this status review will be as accurate and as effective as possible. Therefore, to ensure that the status review is complete and based on the best available scientific and commercial information, we are opening another public comment period for 60 days to solicit comments, suggestions, data, and information from the public, concerned governmental agencies, Native American tribes, conservation groups, the scientific community, industry, and any other interested parties concerning the status of the eastern DPS of the Steller sea lion (Eumetopias jubatus) throughout its range, including, but not limited to information on:
        (A) Species biology, including, but not limited to, population trends, distribution and abundance, demographics, habitat use and requirements, genetics, and foraging ecology; (B) habitat conditions, including, but not limited to, amount, distribution, and suitability of habitat; (C) the effects of conservation measures that have been implemented to benefit the species; (D) status and trends of threats; and (E) other new information, data, or corrections, including, but not limited to, taxonomic or nomenclatural changes, identification of erroneous information contained in the list, and improved analytical methods.

        Upon completion of the status review, and within 12 months of our receipt of the first petition to delist this DPS, we must make one of the following findings: (1) The petitioned action is not warranted, in which case the Secretary shall promptly publish such finding in the Federal Register and so notify the petitioner; (2) the petitioned action is warranted, in which case the Secretary shall promptly publish in the Federal Register a proposed regulation to implement the action pursuant to 50 CFR 424.16; or (3) the petitioned action is warranted, but that (A) the immediate proposal and timely promulgation of a regulation to implement the petitioned action is precluded because of other pending proposals to list, delist, or reclassify species, and (B) expeditious progress is being made to list, delist, or reclassify qualified species, in which case such findings shall be promptly published in the Federal Register together with a description and evaluation of the reasons and data on which the finding is based.
        We will base our findings on a review of the best scientific and commercial information available, including information received during the public comment periods opened during this status review.

          Authority:
          16 U.S.C. 1531 et seq.

          Dated: December 8, 2010.
          Eric C. Schwaab,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 2010-31232 Filed 12-10-10; 8:45 am]
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