        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 080228326-91445-02]
        RIN 0648-AW30
        Fisheries of the Northeastern United States; Northeast Skate Complex Fishery; Amendment 3

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes regulations to implement measures in Amendment 3 to the Northeast Skate Complex Fishery Management Plan (Skate FMP). Amendment 3 was developed by the New England Fishery Management Council (Council) to rebuild overfished skate stocks and implement annual catch limits (ACLs) and accountability measures (AMs) consistent with the requirements of the reauthorized Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Amendment 3 would implement a rebuilding plan for smooth skate and establish an ACL and annual catch target (ACT) for the skate complex, total allowable landings (TAL) for the skate wing and bait fisheries, seasonal quotas for the bait fishery, reduced possession limits, in-season possession limit triggers, and other measures to improve management of the skate fisheries. This proposed rule also includes skate fishery specifications for fishing years (FY) 2010 and 2011.

          DATES:
          Public comments must be received no later than 5 p.m., eastern standard time, on February 22, 2010.

          ADDRESSES:

          A final environmental impact statement (FEIS) was prepared for Amendment 3 that describes the proposed action and other considered alternatives and provides a thorough analysis of the impacts of the proposed measures and alternatives. Copies of Amendment 3, the FEIS, and the Initial Regulatory Flexibility Analysis (IRFA), are available on request from Paul J. Howard, Executive Director, New England Fishery Management Council (Council), 50 Water Street, Newburyport, MA 01950. These documents are also available online at http://www.nefmc.org.

          You may submit comments, identified by 0648-AW30, by any one of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal: http://www.regulations.gov.

          • Fax: (978) 281-9135, Attn: Tobey Curtis.
          • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Skate Amendment 3 Proposed Rule.”

            Instructions: No comments will be posted for public viewing until after the comment period has closed. All comments received are 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). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

          FOR FURTHER INFORMATION CONTACT:
          Tobey Curtis, Fishery Policy Analyst, (978) 281-9273; fax: (978) 281-9135.

        SUPPLEMENTARY INFORMATION:

        Background

        In 2003, NMFS implemented the Skate FMP to manage a complex of seven skate species in the Northeast Region: winter (Leucoraja ocellata); little (L. erinacea); thorny (Amblyraja radiata); barndoor (Dipturus laevis); smooth (Malacoraja senta); clearnose (Raja eglanteria); and rosette (L. garmani). The FMP established biological reference points and overfishing definitions for each species based on abundance indices in the NMFS Northeast Fisheries Science Center bottom trawl survey. In February 2007, NMFS informed the Council that, based on trawl survey data updated through 2006, winter skate was considered overfished. The Council was therefore required to initiate a rebuilding plan for winter skate, consistent with the Magnuson-Stevens Act.

        After considering a wide range of issues, alternatives, and public input, the Council submitted a draft environmental impact statement (DEIS) for Amendment 3 to NMFS. The Notice of Availability (NOA) for the DEIS published in the Federal Register on September 26, 2008 (73 FR 55843). In October 2008, the Council held four public hearings on the draft amendment, and public comments on the DEIS were accepted through November 10, 2008. At the time the amendment was initiated, the objectives of Amendment 3 were to rebuild winter skate and thorny skate (a species which has been overfished since FMP implementation) to their respective biomass targets, and to implement ACLs and AMs for the skate complex, consistent with the reauthorized Magnuson-Stevens Act. However, over the course of developing the amendment and subsequent to the publication of the DEIS, the objectives were modified to reflect more recent scientific information. Primarily, this includes the results of a new stock assessment completed in December 2008 by the Northeast Data Poor Stocks Working Group (DPWG). This assessment updated the minimum biomass thresholds and biomass targets for six of the seven skate species in the complex, resulting in a change in status for some species.
        These new biomass reference points, as well as the most recent trawl survey data, indicate that winter skate is not overfished; however, thorny skates remain overfished, and smooth skates are now also considered to be overfished. Thorny skate was also determined to be experiencing overfishing in 2007 (but not in 2008); therefore, under the requirements of the reauthorized Magnuson-Stevens Act, the Skate FMP must be amended to establish a rebuilding plan for smooth skate and establish ACLs and AMs by 2011. The final objectives of Amendment 3 are to prevent overfishing of and rebuild smooth and thorny skate, promote biomass increases in other skate stocks, and implement ACLs and AMs for the skate complex.
        Proposed Measures
        The proposed regulations are based on the description of the measures in Amendment 3. Under section 305(d) of the Magnuson-Stevens Act, the Secretary has general responsibility to promulgate regulations that may be necessary to carry out the provisions of an approved FMP or amendment. NMFS has noted several instances where it has interpreted the language in Amendment 3 to account for any missing detail or ambiguity in the Council's description of the proposed measures. NMFS seeks comments on all of the proposed measures in Amendment 3.
        New Biological Reference Points

        Due to the data poor status of skate stocks, including a lack of reliable species-specific information on landings and discards, poor understanding of population dynamics and basic life history, and the inability to estimate the biomass that would support harvest at maximum sustainable yield (BMSY) or the fishing mortality rate that would produce maximum sustainable yield (FMSY) using more traditional methods, the DPWG recommended continued use of trawl survey indices for status determinations. However, they recommended that the time series used to estimate biomass thresholds and targets be updated to include the most recent years of survey data. For all species except barndoor, the BMSY proxy (biomass target) is defined as the 75th percentile of the appropriate survey (autumn or spring trawl survey) biomass index time series for that species: autumn 1975-2007 for clearnose; spring 1982-2008 for little; autumn 1967-2007 for winter and rosette; and autumn 1963-2007 for smooth and thorny. For barndoor, the BMSY proxy remains unchanged as the average 1963-1966 autumn survey biomass index, because the survey did not catch barndoor skates during a protracted time period of years.

        A skate species is considered overfished if its 3-year moving average survey biomass falls below one-half of its BMSY proxy value (biomass threshold). Therefore, since the current biomass indices for thorny and smooth skates are below their respective thresholds, they are considered overfished (Table 1). The current biomass for clearnose and rosette skates are above their respective biomass targets, so they are considered to be above BMSY. Winter, little, and barndoor skates are not overfished, but not yet rebuilt to their biomass targets (Table 1).
        Fishing mortality reference points, defined by percentage changes in the survey biomass indices, remain unchanged. No skates are currently subject to overfishing, although thorny skate experienced overfishing in 2007. The existing and proposed biomass reference points are shown in Table 1, relative to the most recent survey biomass for each species.

          Table 1—Comparison Between Current Skate Biomass Status (Through Autumn 2008) With Existing and Proposed Biomass Reference Points

            Skate species
            Stratified mean biomass (kg/tow)
            Current biomass

            Threshold
            Proposed threshold
            Target
            Proposedtarget

            Winter
            5.23
            3.43
            2.80
            6.46
            5.60

            Little
            5.04
            3.27
            3.51
            6.54
            7.03

            Barndoor
            1.02
            0.81
            0.81
            1.62
            1.62

            Thorny
            0.42
            2.20
            2.06
            4.41
            4.12

            Smooth
            0.13
            0.16
            0.14
            0.31
            0.29

            Clearnose
            1.04
            0.28
            0.38
            0.56
            0.77

            Rosette
            0.052
            0.015
            0.024
            0.029
            0.048

        2010-2011 ACL, ACT, and TAL
        In each fishing year, the ACL for the skate complex would be set equal to the acceptable biological catch (ABC) recommended by the Council's Scientific and Statistical Committee (SSC). Through FY 2011, the SSC has recommended an ABC based on the median catch/biomass exploitation rate of the skate complex multiplied by the 2005-2007 average survey biomass, which is 67.556 million lb (30,643 mt) per year. To account for management uncertainty, an ACT would be set at 75 percent of the ACL, or 50.667 million lb (22,982 mt) per year. Due to the difficulties in monitoring skate discards in all fisheries during a fishing year, a projection of total annual dead discards would be subtracted from the ACT to generate the TAL for the skate fisheries. After deducting an estimate of skate landings from vessels fishing solely in state waters (approximately 3 percent of the total landings), the remaining TAL for Federal waters in FY 2010 and 2011 would be 20.783 million lb (9,427 mt) per year.

        The TAL would be allocated between the skate wing fishery and the skate bait fishery based on historic landings proportions. The skate wing fishery predominantly lands winter skate, while the bait fishery predominantly lands little skate. The skate wing fishery would receive 66.5 percent of the TAL, or 13.821 million lb (6,269 mt), and the skate bait fishery would receive 33.5 percent of the TAL, or 6.962 million lb (3,158 mt). Landings of skates would be monitored and allocated to the appropriate fishery quota through information currently required to be submitted by seafood dealers on a weekly basis.
        If this action is not effective by the start of the fishing year on May 1, 2010, all skate landings that accrue from May 1, 2010, until the date of implementation of the final rule for this action will count against the respective skate wing and bait TALs for fishing year 2010, as described above.
        Possession Limits and Seasons
        All vessels possessing, retaining, and landing skates would continue to be required to obtain a Federal open access skate permit. Subject to the additional restrictions described in the following sections, a possession limit of 1,900 lb (862 kg) wing wt. (4,313 lb (1,956 kg) whole wt.) would be implemented for any vessels in possession of skates, unless the vessel is in possession of a Skate Bait Letter of Authorization. All skates landed in wing form or sold for use as food would accrue against the skate wing TAL. To keep the skate wing TAL from being exceeded, when 80 percent of the annual skate wing TAL is landed, the 1,900 lb (862 kg) skate wing possession limit would be reduced to 500 lb (227 kg) wing wt. (1,135 lb (515 kg) whole wt.) for the remainder of the fishing year. This would dilute incentives to target skates but allow some incidental catches of skates to be landed rather than discarded.
        This proposed rule retains the requirement that a vessel possessing a valid Federal skate permit must also fish under an Atlantic sea scallop, NE multispecies, or monkfish day-at-sea (DAS) in order to possess, retain, and land skates, with two exceptions: (1) That the vessel possesses a limited access multispecies permit and is enrolled and participating in an approved sector described at § 648.87; or (2) that the vessel is otherwise exempted under § 648.80.
        This action would also implement an incidental skate trip limit of 500 lb (227 kg) wing wt. or 1,135 lb (515 kg) whole wt. for any vessel issued a Federal skate permit that is not fishing under a DAS and is not participating in an approved sector under the Northeast Multispecies FMP.
        A possession limit of 20,000 lb (9,072 kg) whole wt. would be implemented for vessels participating in the skate bait fishery that also possess a Skate Bait Letter of Authorization. The existing requirements of the Skate Bait Letter of Authorization would remain in effect, including the requirement to land skates in only whole form, to be sold only as bait, a maximum skate size limit of 23 inches (58 cm) total length, and a minimum participation period of 7 days. To help maintain a consistent market supply of bait skates, the skate bait TAL would be split into three fishing seasons per year. All skates landed in whole form that are sold for use as bait would accrue against the skate bait TAL. When 90 percent of the skate bait quota is harvested in each season, the possession limit would be reduced to the whole weight equivalent of the skate wing fishery possession limit until the next season, whether it be 1,900 lb (862 kg) or 500 lb (227 kg) wing weight at the time.
        As an additional conservation measure, vessels declared to be fishing on a Northeast Multispecies Category B Day-at-Sea would have a skate possession limit of 220 lb (100 kg) wing wt. (500 lb (227 kg) whole wt.).
        Accountability Measures
        If the annual TAL (landings target) allocated to either fishery is exceeded by more than 5 percent in a given year, the possession limit trigger (80 percent in the wing fishery, 90 percent in the bait fishery) would be reduced by 1 percent for each 1-percent overage for that fishery. This would help prevent repeated excessive TAL overages.
        If it is determined that the ACL for the skate complex was exceeded in a given year, including landings and estimates of discards, then the ACL-ACT buffer (25 percent, initially) would be increased by 1 percent for each 1-percent overage. For example, if the ACL is exceeded by 5 percent, the ACL-ACT buffer would be increased to 30 percent in the subsequent fishing year, which could effectively reduce allowable landings.
        Annual Review, SAFE Reports, and Specifications Process
        In place of the “Skate Baseline Review” process included in the original Skate FMP, the Skate Plan Development Team (PDT) would convene annually to review skate stock status, fishery landings and discards, and determine if any AMs were triggered in the previous year. The annual review would also incorporate an assessment of changes to other fishery management plans that may impact skates, and determine if changes to skate management measures may be warranted. If changes to the Skate FMP are warranted, the Skate PDT would recommend changes via specifications or framework adjustment to the Council. Specifications for the skate fisheries could be implemented for up to 2 years.
        A Stock Assessment and Fishery Evaluation (SAFE) report for the skate complex would be completed every 2 years by the Skate PDT. The SAFE report would be the primary vehicle for the presentation of all updated biological and socio-economic information regarding the skate complex and its associated fisheries, and provide source data for any adjustments to the management measures that may be needed to continue to meet the goals and objectives of the FMP.
        At its April 2009 meeting, the Council reviewed the draft regulations and deemed them necessary and appropriate for implementation of Amendment 3, as required under section 303(c) of the Magnuson-Stevens Act. Technical changes to the regulations deemed necessary by the Secretary for clarity may be made, as provided under section 304(b) of the Magnuson-Stevens Act.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent with the Skate FMP, Amendment 3, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. Pursuant to the procedures established to implement section 6 of E.O. 12866, the Office of Management and Budget has determined that this proposed rule is not significant.

        A NOA for Amendment 3 was published on December 28, 2009. Public comments are being solicited on the amendment through the end of the comment period on February 26, 2010.. Public comments on the proposed rule must be received by the end of the comment period on the amendment, as published in the NOA, to be considered in the decision to approve or disapprove the amendment. All comments received by the end of the comment period on the amendment, whether specifically directed to the amendment, or 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 by close of business on the last day of the comment period; that does not mean postmarked or otherwise transmitted by that date.
        The Council prepared a FEIS for Amendment 3; a NOA was published on January 22, 2010. The FEIS describes the impacts of the proposed Amendment 3 measures on the environment. Because most of the measures were designed to reduce skate landings, the impacts are primarily social and economic, as well as biological. In general, all biological impacts are expected to be positive. Although the economic and social impacts may be negative in the short term, particularly for vessels that have traditionally targeted or relied substantially on sales of skates, the long-term social and economic benefits of sustainable skate fisheries would be positive.

        An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA), and is included in Amendment 3 and supplemented by information contained in the preamble to this proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section of the preamble and in the SUMMARY of this proposed rule. A summary of the IRFA follows. A copy of this analysis is available from the Council (see ADDRESSES).
        All of the entities (fishing vessels) affected by this action are considered small entities under the Small Business Administration size standards for small fishing businesses ($4.0 million in annual gross sales). Therefore, there are no disproportionate effects on small versus large entities. Information on costs in the fishery are not readily available and individual vessel profitability cannot be determined directly; therefore, expected changes in gross revenues were used as a proxy for profitability.
        This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This proposed rule does not duplicate, overlap, or conflict with other Federal rules.
        Description and Estimate of Number of Small Entities to Which the Rule Would Apply
        The participants in the commercial skate fishery were defined using Northeast dealer reports to identify any vessel that reported having landed 1 lb (0.45 kg) or more of skates during calendar year 2007. These dealer reports identified 542 vessels that landed skates in states from Maine to North Carolina out of 2,685 vessels that held a Federal skate permit.
        Economic Impacts of the Proposed Action Compared to Significant Non-Selected Alternatives
        The proposed action to establish possession limits for both the wing and bait skate fishery are expected to impact approximately 127 vessels out of the vessels included in the analysis (approximately 25 percent). Collectively, the proposed action would reduce skate revenues by 14.9 percent, and would reduce total revenues by 5.5 percent. Given that skate biomass is not expected to reach optimum yield (OY) without taking any action, the short-term economic losses resulting from the proposed actions are likely to be less than any future losses in yield and revenue.
        In terms of impacts to individual vessels, an analysis of dependency on the skate fishery indicates that almost 75 percent of the vessels included in the analysis have less than a 5-percent dependency on the skate fishery. The estimated impact on gross sales increases markedly in relation to dependency on the skate fishery among the 127 vessels estimated to be adversely affected by this action. The 18 affected vessels that show a less than 1-percent dependency on the skate fishery are estimated to have less than a 2-percent impact on gross revenues. By contrast, estimated revenue loss is 27.8 percent for the 75 affected vessels at the upper end of the dependency spectrum (4.75-percent dependent or greater).
        All of the alternatives considered in this action are based on the same TACs. However, some of the alternatives (1A and 3A) utilize a hard TAC approach while others (1B, 2, 3B and 4) use a target TAC approach. Under the hard TAC approach, the Regional Administrator would publish a notice prohibiting skate landings for the remainder of the fishing year once it is determined that skate landings will exceed the overall TAC. Adjustments to the TAC due to an overage would occur in the next fishing year. Under the target TAC approach, the Regional Administrator would determine when landings will meet or are likely to meet the TAL for each fishery (wing or bait), and publish a notice prohibiting landings in excess of the incidental limit for the remainder of the fishing year.
        The preferred alternative is basically a modified version of Alternative 2, with slightly higher possession limits for the skate bait fishery (20,000 lb versus 14,200 lb whole weight), a seasonal quota for the bait fishery (similar to Alternative 4), and modified accountability measures. A summary of the possession limits considered under each alternative is provided in Table 2. It should be noted that the Alternatives 1A and 1B propose the same possession limits for both the wing and bait fisheries, while Alternative 4 has the same possession limit for the wing fishery only. Alternatives 2, 3A, and 3B have the same possession limits for both the wing and bait fisheries.  Table 2. Comparison of possession limits under each alternative.

            Alternative number
            Skate wing possession limit
            Option 1
            Option 2
            Skate bait possession limit
            Option 1
            Option 2

            1A(Hard TAC, and time/area management)

            4,800 wing lb(2,177 kg)
              10,896 whole lb
              (4,942 kg)

            3,800 wing lb(1,724 kg)
              8,626 whole lb.
              (3,913 kg).

            6,800 lb(3,084 kg)

            12,100 lb.(5,488 kg).

            1B(Target TAC and time/area management)

            4,800 wing lb(2,177 kg)
              10,896 whole lb
              (4,942 kg)

            3,800 wing lb(1,724 kg)
              8,626 whole lb.
              (3,913 kg).

            6,800 lb(3,084 kg)

            12,100 lb.(5,488 kg).

            2(Target TAC with time/area management as accountability measure only)

            2,500 wing lb(1,134 kg)
              5,675 whole lb
              (2,574 kg)

            1,900 wing lb(862 kg)
              4,313 whole lb.
              (1,956 kg).

            8,200 lb(3,719 kg)

            14,200 lb.(6,396 kg).

            3A(Hard TAC)

            2,500 wing lb(1,134 kg)
              5,675 whole lb
              (2,574 kg)

            1,900 wing lb(862 kg)
              4,313 whole lb.
              (1,956 kg).

            8,200 lb(3,719 kg)

            14,200 lb.(6,396 kg).

            3B(Target TAC)

            2,500 wing lb(1,134 kg)
              5,675 whole lb
              (2,574 kg)

            1,900 wing lb(862 kg)
              4,313 whole lb.
              (1,956 kg).

            8,200 lb(3,719 kg)

            14,200 lb.(6,396 kg).

            4(Target TAC)

            4,800 wing lb(2,177 kg)
              10,896 whole lb
              (4,942 kg)

            3,800 wing lb(1,724 kg).
              8,626 whole lb.
              (3,913 kg).

            Quota managed by season with no possession limit.

        All of the non-preferred alternatives considered in this action would have resulted in a reduction in revenue. Alternative 4 would affect the least number of vessels (99) and have the least impact on total revenue (2.8 percent), while alternatives 3A and 3B would affect the largest number of vessels (145) and have the greatest impact on total revenue (6.1 percent). The estimated economic impacts associated with Alternatives 1A and 1B are in between the two other non-preferred alternatives and are similar to the preferred alternative—affecting approximately 128 vessels and resulting in an estimated 5.1-percent reduction in total revenues. It should be noted that although Alternative 4 appears to have the least impact on revenue, the quantified economic effects of this alternative are underestimated since it does not include the likely negative impacts associated with quota management for the skate bait fishery. These impacts could not be quantified because the timing and affects are unpredictable and will vary from year to year.

          List of Subjects in 50 CFR Part 648
          Fisheries, Fishing, Recordkeeping and reporting requirements.

          Dated: January 14, 2010.
          James W. Balsiger,
          Acting Assistant Administrator for Fisheries, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:

          PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES
          1. The authority citation for part 648 continues to read as follows:

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

          2. In § 648.13, paragraph (h)(2) is revised to read as follows:

            § 648.13
            Transfers at sea.

            (h) Skates. (1) Except as provided in paragraph (h)(2) of this section, all persons or vessels issued a Federal skate permit are prohibited from transferring, or attempting to transfer, at sea any skates to any vessel, and all persons or vessels not issued a Federal skate permit are prohibited from transferring, or attempting to transfer, at sea to any vessel any skates while in the EEZ, or skates taken in or from the EEZ portion of the Skate Management Unit.
            (2) Vessels and vessel owners or operators issued Federal skate permits under § 648.4(a)(14) may transfer at sea skates taken in or from the EEZ portion of the Skate Management Unit, provided:
            (i) The transferring vessel possesses on board a valid letter of authorization issued by the Regional Administrator as specified under § 648.322(c); and
            (ii) The transferring vessel and vessel owner or operator comply with the requirements specified at § 648.322(c).

            3. In § 648.14, paragraphs (v)(1)(ii), (v)(3)(i) and (v)(3)(ii)(A) are revised to read as follows:

            § 648.14
            Prohibitions.

            (v) * * *
            (1) * * *
            (ii) Onboard a federally permitted lobster vessel (i.e., transfer at sea recipient) while in possession of only whole skates as bait that are less than the maximum size specified at § 648.322(c).

            (3) * * *
            (i) Skate wings. Fail to comply with the conditions of the skate wing possession and landing limits specified at § 648.322(b), unless holding a valid letter of authorization to fish for and land skates as bait only at § 648.322(c).
            (ii) * * *
            (A) Transfer at sea, or attempt to transfer at sea, to any vessel, any skates unless in compliance with the provisions of §§ 648.13(h) and 648.322(c).

            4. In § 648.80, paragraphs (b)(5)(i)(C)(1) and (2) and (b)(6)(i)(D)(1) and (2) are revised to read as follows:

            § 648.80
            NE Multispecies regulated mesh areas and restrictions on gear and methods of fishing.

            (b) * * *
            (5) * * *
            (i) * * *
            (C) * * *
            (1) The vessel is called into the monkfish DAS program (§ 648.92) and complies with the skate possession limit restrictions at § 648.322;
            (2) The vessel has a valid letter of authorization on board to fish for skates as bait only, and complies with the requirements specified at § 648.322(c); or

            (6) * * *
            (i) * * *
            (D) * * *
            (1) The vessel is called into the monkfish DAS program (§ 648.92) and complies with the skate possession limit restrictions at § 648.322;
            (2) The vessel has a valid letter of authorization on board to fish for skates as bait only, and complies with the requirements specified at § 648.322(c); or

            5. Revise § 648.320 to read as follows:

            § 648.320
            Skate FMP review and monitoring.
            (a) Annual review and specifications process. The Council, its Skate Plan Development Team (PDT), and its Skate Advisory Panel shall monitor the status of the fishery and the skate resources.

            (1) The Skate PDT shall meet at least annually to review the status of the species in the skate complex. At a minimum, this review shall include annual updates to survey indices, fishery landings and discards; a re-evaluation of stock status based on the updated survey indices and the FMP's overfishing definitions; and a determination of whether any of the accountability measures specified under § 648.323 were triggered. The review shall also include an analysis of changes to other FMPs (e.g., Northeast Multispecies, Monkfish, Atlantic Scallops, etc.) that may impact skate stocks, and describe the anticipated impacts of those changes on the skate fishery.
            (2) If new and/or additional information becomes available, the Skate PDT shall consider it during this annual review. Based on this review, the Skate PDT shall provide guidance to the Skate Committee and the Council regarding the need to adjust measures in the Skate FMP to better achieve the FMP's objectives. After considering guidance, the Council may submit to NMFS its recommendations for changes to management measures, as appropriate, through the specifications process described in this section, the framework process specified in § 648.321, or through an amendment to the FMP.
            (3) For overfished skate species, the Skate PDT and the Council shall monitor the trawl survey index as a proxy for stock biomass. As long as the 3-year average of the appropriate weight per tow increases above the average for the previous 3 years, it is assumed that the stock is rebuilding to target levels. If the 3-year average of the appropriate survey mean weight per tow declines below the average for the previous 3 years, then the Council shall take management action to ensure that stock rebuilding will achieve target levels.
            (4) Based on the annual review described above and/or the Stock Assessment and Fishery Evaluation (SAFE) Report described in paragraph (b) of this section, recommendations for acceptable biological catch (ABC) from the Scientific and Statistical Committee, and any other relevant information, the Skate PDT shall recommend to the Skate Committee and Council the following annual specifications for harvest of skates: An annual catch limit (ACL) for the skate complex set less than or equal to ABC; an annual catch target (ACT) for the skate complex set less than or equal to 75 percent of the ACL; and total allowable landings (TAL) necessary to meet the objectives of the FMP in each fishing year (May 1-April 30), specified for a period of up to 2 fishing years.
            (5) Recommended measures. The Skate PDT shall also recommend management measures to the Skate Committee and Council to assure that the specifications are not exceeded. Recommended measures should include, but are not limited to:
            (A) Possession limits in each fishery;
            (B) In-season possession limit triggers for the wing and/or bait fisheries; and
            (C) Required adjustments to in-season possession limit trigger percentages or the ACL-ACT buffer, based on the accountability measures specified at § 648.323.
            (6) Taking into account the annual review and/or SAFE Report described in paragraph (b) of this section, the advice of the Scientific and Statistical Committee, and any other relevant information, the Skate PDT may also recommend to the Skate Committee and Council changes to stock status determination criteria and associated thresholds based on the best scientific information available, including information from peer-reviewed stock assessments of the skate complex and its component species. These adjustments may be included in the Council's specifications for the skate fisheries.
            (7) Council recommendation. The Council shall review the recommendations of the Skate PDT, Skate Committee, and Scientific and Statistical Committee, any public comment received thereon, and any other relevant information, and make a recommendation to the Regional Administrator on appropriate specifications and any measures necessary to assure that the specifications will not be exceeded. The Council's recommendation must include supporting documentation, as appropriate, concerning the environmental, economic, and social impacts of the recommendations. The Regional Administrator shall review the recommendations and publish a rule in the Federal Register proposing specifications and associated measures, consistent with the Administrative Procedure Act. If the specifications published in the Federal Register differ from those recommended by the Council, the reasons for any differences must be clearly stated and the revised specifications must satisfy the criteria set forth in this section. If the final specifications are not published in the Federal Register for the start of the fishing year, the previous year's specifications shall remain in effect until superseded by the final rule implementing the current year's specifications, to ensure that there is no lapse in regulations while new specifications are completed.
            (b) Biennial SAFE Report—(1) The Skate PDT shall prepare a biennial Stock Assessment and Fishery Evaluation (SAFE) Report for the NE skate complex. The SAFE Report shall be the primary vehicle for the presentation of all updated biological and socio-economic information regarding the NE skate complex and its associated fisheries. The SAFE Report shall provide source data for any adjustments to the management measures that may be needed to continue to meet the goals and objectives of the FMP.
            (2) In any year in which a SAFE Report is not completed by the Skate PDT, the annual review process described in paragraph (a) of this section shall be used to recommend any necessary adjustments to specifications and/or management measures in the FMP.
            6. Revise § 648.321 to read as follows:

            § 648.321
            Framework adjustment process.
            (a) Adjustment process. To implement a framework adjustment for the Skate FMP, the Council shall develop and analyze proposed actions over the span of at least two Council meetings (the initial meeting agenda must include notification of the impending proposal for a framework adjustment) and provide advance public notice of the availability of both the proposals and the analyses. Opportunity to provide written and oral comments shall be provided throughout the process before the Council submits its recommendations to the Regional Administrator.
            (1) Council review and analyses. In response to the annual review, or at any other time, the Council may initiate action to add or adjust management measures if it finds that action is necessary to meet or be consistent with the goals and objectives of the Skate FMP. After a framework action has been initiated, the Council shall develop and analyze appropriate management actions within the scope of measures specified in paragraph (b) of this section. The Council shall publish notice of its intent to take action and provide the public with any relevant analyses and opportunity to comment on any possible actions. Documentation and analyses for the framework adjustment shall be available at least 1 week before the final meeting.
            (2) Council recommendation. After developing management actions and receiving public testimony, the Council may make a recommendation to the Regional Administrator. The Council's recommendation shall include supporting rationale, an analysis of impacts required under paragraph (a)(1) of this section, and a recommendation to the Regional Administrator on whether to issue the management measures as a final rule. If the Council recommends that the framework measures should be issued directly as a final rule, without opportunity for public notice and comment, the Council shall consider at least the following factors and provide support and analysis for each factor considered:
            (i) Whether the availability of data on which the recommended management measures are based allows for adequate time to publish a proposed rule, and whether regulations have to be in place for an entire harvest/fishing season;
            (ii) Whether there has been adequate notice and opportunity for participation by the public and members of the affected industry in the development of the Council's recommended management measures;
            (iii) Whether there is an immediate need to protect the resource or to impose management measures to resolve gear conflicts; and
            (iv) Whether there will be a continuing evaluation of management measures adopted following their implementation as a final rule.

            (3) The Regional Administrator may publish the recommended framework measures in the Federal Register. If the Council's recommendation is first published as a proposed rule and the Regional Administrator concurs with the Council's recommendation after receiving additional public comment, the measures shall then be published as a final rule in the Federal Register.

            (4) If the Regional Administrator approves the Council's recommendations, the Secretary may, for good cause found under the standard of the Administrative Procedure Act, waive the requirement for a proposed rule and opportunity for public comment in the Federal Register. The Secretary, in so doing, shall publish only the final rule. Submission of recommendations does not preclude the Secretary from deciding to provide additional opportunity for prior notice and comment in the Federal Register.

            (5) The Regional Administrator may approve, disapprove, or partially approve the Council's recommendation. If the Regional Administrator does not approve the Council's specific recommendation, the Regional Administrator must notify the Council in writing of the reasons for the action prior to the first Council meeting following publication of such decision.
            (b) Possible framework adjustment measures. Measures that may be changed or implemented through framework action, provided that any corresponding management adjustments can also be implemented through a framework adjustment, include:
            (1) Skate permitting and reporting;
            (2) Skate overfishing definitions and related targets and thresholds;
            (3) Prohibitions on possession and/or landing of individual skate species;
            (4) Skate possession limits;
            (5) Skate closed areas (and consideration of exempted gears and fisheries);
            (6) Seasonal skate fishery restrictions and specifications;
            (7) Target TACs for individual skate species;
            (8) Hard TACs/quotas for skates, including species-specific quotas, fishery quotas, and/or quotas for non-directed fisheries;
            (9) Establishment of a mechanism for TAC set-asides to conduct scientific research, or for other reasons;
            (10) Onboard observer requirements;
            (11) Gear modifications, requirements, restrictions, and/or prohibitions;
            (12) Minimum and/or maximum sizes for skates;
            (13) Adjustments to exemption area requirements, area coordinates, and/or management lines established by the FMP;
            (14) Measures to address protected species issues, if necessary;
            (15) Description and identification of EFH;
            (16) Description and identification of habitat areas of particular concern;
            (17) Measures to protect EFH;
            (18) OY and/or MSY specifications;
            (19) Changes to the accountability measures described at § 648.323;
            (20) Changes to TAL allocation proportions to the skate wing and bait fisheries;
            (21) Changes to seasonal quotas in the skate bait or wing fisheries;
            (22) Reduction of the baseline 25-percent ACL-ACT buffer to less than 25 percent; and
            (23) Changes to catch monitoring procedures.
            (c) Emergency action. Nothing in this section is meant to derogate from the authority of the Secretary to take emergency action under section 305(c) of the Magnuson-Stevens Act.
            7. Revise § 648.322 to read as follows:

            § 648.322
            Skate allocation, possession, and landing provisions.
            (a) Allocation of TAL. (1) A total of 66.5 percent of the annual skate complex TAL shall be allocated to the skate wing fishery. All skate products that are landed in wing form, for the skate wing market, or classified by Federal dealers as food as required under § 648.7(a)(1)(i), shall count against the skate wing fishery TAL.
            (2) A total of 33.5 percent of the annual TAL shall be allocated to the skate bait fishery. All skate products that are landed for the skate bait market, or classified by Federal dealers as bait as required under § 648.7(a)(1)(i), shall count against the skate bait fishery TAL. The annual skate bait fishery TAL shall be allocated in three seasonal quota periods as follows:
            (i) Season 1—May 1 through July 31, 30.8 percent of the annual skate bait fishery TAL shall be allocated;
            (ii) Season 2—August 1 through October 31, 37.1 percent of the annual skate bait fishery TAL shall be allocated; and
            (iii) Season 3—November 1 through April 30, the remainder of the annual skate bait fishery TAL not landed in Seasons 1 or 2 shall be allocated.
            (b) Skate wing possession and landing limits. A vessel or operator of a vessel that has been issued a valid Federal skate permit under this part, provided the vessel fishes under an Atlantic sea scallop, NE multispecies, or monkfish DAS as specified at §§ 648.53, 648.82, and 648.92, respectively, or is also a limited access multispecies vessel participating in an approved sector described under § 648.87, unless otherwise exempted under § 648.80 or paragraph (c) of this section, may fish for, possess, and/or land up to the allowable trip limits specified as follows:
            (1) Up to 1,900 lb (862 kg) of skate wings (4,313 lb (1,956 kg) whole weight) per trip, except for a vessel fishing on a declared NE multispecies Category B DAS described under § 648.85(b), which is limited to no more than 220 lb (100 kg) of skate wings (500 lb (227 kg) whole weight) per trip (or any prorated combination of skate wings and whole skates based on the conversion factor for wing weight to whole weight of 2.27—for example, 100 lb (45.4 kg) of skate wings × 2.27 = 227 lb (103.1 kg) of whole skates).
            (2) In-season adjustment of skate wing possession limits. When the Regional Administrator projects that 80 percent of the annual skate wing fishery TAL has been landed, the Regional Administrator shall, through a notice in the Federal Register consistent with the Administrative Procedure Act, reduce the skate wing trip limit to 500 lb (227 kg) of skate wings (1,135 lb (515 kg) whole weight, or any prorated combination of skate wings and whole skates based on the conversion factor for wing weight to whole weight of 2.27) for the remainder of the fishing year, unless such a reduction would be expected to prevent attainment of the annual TAL.
            (3) Incidental possession limit for vessels not under a DAS. A vessel issued a Federal skate permit that is not fishing under an Atlantic sea scallop, NE multispecies, or monkfish DAS as specified at §§ 648.53, 648.82, and 648.92, respectively, and is not a limited access multispecies vessel participating in an approved sector described under § 648.87, may retain up to 500 lb (227 kg) of skate wings or 1,135 lb (515 kg) of whole skate, or any prorated combination of skate wings and whole skates based on the conversion factor for wing weight to whole weight of 2.27), per trip.
            (c) Bait Letter of Authorization (LOA). A skate vessel owner or operator under this part may request and receive from the Regional Administrator an exemption from the skate wing possession limit restrictions for a minimum of 7 consecutive days, provided that at least the following requirements and conditions are met:
            (1) The vessel owner or operator obtains and retains onboard the vessel a valid LOA. LOAs are available upon request from the Regional Administrator.
            (2) The vessel owner or operator possesses and/or lands only whole skates less than 23 inches (58.42 cm) total length.
            (3) The vessel owner or operator fishes for, possesses, or lands skates only for use as bait.
            (4) The vessel owner or operator possesses or lands no more than 20,000 lb (9,072 kg) of only whole skates less than 23 inches (58.42 cm) total length, and does not possess or land any skate wings or whole skates greater than 23 inches (58.42 cm) total length. Vessels that possess, and/or land any combination of skate wings and whole skates less than 23 inches (58.42 cm) total length must comply with the possession limit restrictions under paragraph (b) of this section for all skates or skate parts on board.
            (5) The vessel owner or operator complies with the transfer at sea requirements at § 648.13(h).
            (d) In-season adjustment of skate bait possession limits. When the Regional Administrator projects that 90 percent of the skate bait fishery seasonal quota has been landed in Seasons 1 or 2, or 90 percent of the annual skate bait fishery TAL has been landed, the Regional Administrator shall, through a notice in the Federal Register consistent with the Administrative Procedure Act, reduce the skate bait trip limit to the whole weight equivalent of the skate wing trip limit specified under paragraph (b) of this section for the remainder of the quota period, unless such a reduction would be expected to prevent attainment of the seasonal quota or annual TAL.
            (e) Prohibitions on possession of skates. A vessel fishing in the EEZ portion of the Skate Management Unit may not:
            (1) Retain, possess, or land barndoor or thorny skates taken in or from the EEZ portion of the Skate Management Unit.
            (2) Retain, possess, or land smooth skates taken in or from the GOM RMA described at § 648.80(a)(1)(i).
            8. Section 648.323 is added to read as follows:

            § 648.323
            Accountability measures.
            (a) TAL overages. If the skate wing fishery TAL or skate bait fishery TAL is determined to have been exceeded by more than 5 percent in any given year based upon, but not limited to, available landings information, the Regional Administrator shall reduce the in-season possession limit trigger for that fishery, as specified at § 648.322(b) and (c), in the next fishing year by 1 percent for each 1 percent of TAL overage, consistent with the Administrative Procedure Act.
            (b) ACL overages. (1) If the ACL is determined to have been exceeded in any given year, based upon, but not limited to, available landings and discard information, the percent buffer between ACL and ACT, initially specified at 25 percent, shall be increased by 1 percent for each 1-percent ACL overage in the subsequent fishing year, through either the specifications or framework adjustment process described under §§ 648.320 and 648.321.
            (2) If the Council fails to initiate action to correct an ACL overage through the specifications or framework adjustment process, consistent with paragraph (b)(1) of this section, the Regional Administrator shall implement the required adjustment, as described under paragraph (b)(1) of this section, consistent with the Administrative Procedure Act.

      [FR Doc. 2010-1084 Filed 1-20-10; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17

        Endangered and Threatened Wildlife and Plants; Revised 12-Month Finding for the Beaver Cave Beetle (Pseudanophthalmus major)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of revised 12-month petition finding.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce our revised 12-month finding for a petition to list the Beaver Cave beetle (Pseudanophthalmus major) under the Endangered Species Act (Act) of 1973 (16 U.S.C. 1531 et seq.). After a review of the best available scientific and commercial information, we conclude that this species is not likely to become an endangered or threatened species within the foreseeable future throughout all or a significant portion of its range. Therefore, we find that proposing a rule to list the species is not warranted, and we no longer consider it to be a candidate species for listing. However, the Service will continue to seek new information on the taxonomy, biology, and ecology of this species, as well as potential threats to its continued existence.

          DATES:
          This finding was made on October 11, 2006. Although no further action will result from this finding, we request that you submit new information concerning the taxonomy, biology, ecology, and status of the Beaver Cave beetle, as well as potential threats to its continued existence, whenever such information becomes available.

          ADDRESSES:
          The complete file for this finding is available for inspection, by appointment and during normal business hours, at the U.S. Fish and Wildlife Service, 3761 Georgetown Road, Frankfort, Kentucky 40601. Submit new information, materials, comments, or questions concerning this species to us at the same address.

          FOR FURTHER INFORMATION CONTACT:

          Dr. Michael A. Floyd, Kentucky Ecological Services Field Office at the address listed above, by telephone at 502-695-0468, by facsimile at 502-695-1024, or by e-mail at mike_floyd@fws.gov.

        SUPPLEMENTARY INFORMATION:

        Background

        The Act provides two mechanisms for considering species for listing. One method allows the Secretary, on his own initiative, to identify species for listing under the standards of section 4(a)(1). We implement this through an assessment process to identify species that are candidates for listing, which means we have on file sufficient information on biological vulnerability and threats to support a proposal to list the species as endangered or threatened, but for which preparation and publication of a proposal is precluded by higher-priority listing actions. Using this process, we identified the Beaver Cave beetle as a candidate for listing in 2001 and included it in the Candidate Notice of Review (CNOR) published in the Federal Register on October 30, 2001 (66 FR 54808). In subsequent CNORs that we published on June 13, 2002 (67 FR 40657), May 4, 2004 (69 FR 24875), and May 11, 2005 (70 FR 24870), we continued to recognize this species as a candidate for listing based on updated assessments of its status. We also published a CNOR on September 12, 2006 (71 FR 53755), which maintained the species as a candidate for listing because we had not yet finalized this, our most current review of the species.
        A second mechanism that the Act provides for considering species for listing is for the public to petition us to add a species to the Federal Lists of Threatened or Endangered Species (Lists) found at 50 CFR 17.11 (animals) and § 17.12 (plants). Under section 4(b)(3)(A), when we receive such a petition, we must determine within 90 days, to the extent practicable, whether the petition presents substantial scientific or commercial information that listing may be warranted (a “90-day finding”). If we make a positive 90-day finding, we must promptly commence a status review of the species and under section 4(b)(3)(B), we must make and publish one of three possible findings within 12 months of receipt of such a petition (a “12-month finding”):
        1. The petitioned action is not warranted;
        2. The petitioned action is warranted (in which case we are to promptly publish a proposed regulation to implement the petitioned action); or
        3. The petitioned action is warranted but (a) the immediate proposal of a regulation and final promulgation of a regulation implementing the petitioned action is precluded by pending proposals, and (b) expeditious progress is being made to add qualified species to the Lists (i.e., a “warranted but precluded” 12-month petition finding). Our standard for making a species a candidate through our own initiative is identical to the standard for making a “warranted but precluded” 12-month petition finding.
        On May 11, 2004, the Service received a petition from the Center for Biological Diversity to list 225 species we previously had identified as candidates for listing, including the Beaver Cave beetle. Pursuant to requirements in section 4(b)(3)(B) of the Act, the CNOR and Notice of Findings on Resubmitted Petitions published by the Service on May 11, 2005 (70 FR 24870) included a finding that the immediate issuance of a proposed listing rule and the timely promulgation of a final rule for each of these petitioned species, including the Beaver Cave beetle, was warranted but precluded by higher priority listing actions, and that expeditious progress was being made to add qualified species to the Lists.

        Section 4(b)(3)(C)(i) of the Act directs that when we make a “warranted but precluded” finding on a petition, we are to treat the petition as being one that is resubmitted annually on the date of the finding; thus the Act requires us to reassess the petitioned actions and to publish a finding on the resubmitted petition on an annual basis. We included a “warranted but precluded” finding on the resubmitted petition on the Beaver Cave beetle in the CNOR and Notice of Findings on Resubmitted Petitions published in the Federal Register on September 12, 2006 (71 FR 53755). The resubmitted petition finding was based on an assessment of the Beaver Cave beetle that covered information available as of October 2005. Although we typically make the annual finding for petitioned candidate species through the CNOR, we are not required to wait a full year to reassess the status of such species and may publish a revised petition finding separately from the CNOR. That is what we are doing in this situation.

        As a result of new information regarding conservation efforts for the Beaver Cave beetle, we have completed a reassessment of its status (FWS 2006a). The updated assessment document is available from our Kentucky Ecological Services Field Office (see ADDRESSES, above). This resubmitted 12-month finding evaluates new information, as described in the species assessment and related documents referenced in it, and re-evaluates previously-acquired information.
        Species Information
        The Beaver Cave beetle (Pseudanophthalmus major) was described by Krekeler (1973) from 3 specimens collected from Beaver Cave, Harrison County, Kentucky by T.C. Barr and J.R. Holsinger in 1966. Cave beetles in the genus Pseudanophthalmus are small, eyeless, reddish-brown insects that belong to the predatory ground beetle family Carabidae. Like most other insects, they have six legs and a body that consists of a head, thorax, and abdomen. Body length is generally from 3.0 to 8.0 millimeters (mm) (0.12 to 0.32 inches), depending upon the species. Maximum body length for the Beaver Cave beetle is 8 mm. According to Barr (1996), the genus Pseudanophthalmus is represented by approximately 255 species. The different species within the genus are differentiated by differences in the shape and size of the various body parts, especially the shape of the male appendages used during reproduction. Most members of the genus are cave dependent (troglobites) and are not found outside the cave environment. All are predatory and feed upon small cave invertebrates such as spiders, mites, millipedes, and diplurans, while the larger Pseudanophthalmus species also feed on cave cricket eggs (Barr 1996). Members of this genus vary in rarity from fairly common, widespread species that are found in many caves to species that are extremely rare and restricted to only one cave, such as the Beaver Cave beetle.
        Little detailed life history information is available for the rarest of the cave beetles, including the Beaver Cave beetle. However, the generalized summary that follows is accurate for the more common and more easily studied species and is believed to also apply to the rarer species (Barr 1998). Cave beetles copulate in the fall, and the eggs are deposited in the cave soil during late fall. The eggs hatch and larvae appear in late fall through early winter. Pupation occurs in late winter to early summer with the adult beetles emerging in early summer (Barr 1996).
        The limestone caves in which these cave beetles are found provide a unique and fragile environment that supports a variety of species that have evolved to survive and reproduce under the demanding conditions found in cave ecosystems. No photosynthesis takes place within the dark zone of a cave. Therefore, all organisms that are adapted to life within a cave are dependent upon energy from the surface. This energy can be in the form of leaf litter, woody debris or small bits of organic matter that is washed or falls into the cave, or guano deposited by cave-dependent bats that feed on the surface and return to the cave to roost (Barr 1996).

        The Beaver Cave beetle is restricted to Beaver Cave, a limestone cave located in the Bluegrass Region of central Kentucky. There are no other caves in the vicinity of Beaver Cave, and the Beaver cave beetle has not been found at any other locations. The only known entrance to Beaver Cave is located in an open pasture and hillside of a dairy farm in eastern Harrison County. The cave generally trends northeastward from its entrance for approximately 350 meters before terminating in a breakdown (i.e., a portion of the cave where the ceiling has collapsed) (Laudermilk 2006). Most of Beaver Cave is comprised of a simple, narrow passage approximately 1 meter wide and 2.5 meters high. However, there are several larger rooms  present, and there are multiple levels in a few places (Laudermilk 2006). A more extensive description of the cave can be found in Barr (1996).

        Conservation Efforts
        The Service's Partners for Fish and Wildlife (Partners) Program (Kentucky Ecological Services Field Office) began working with the owner of the Beaver Cave property in 2002, and other partners (Kentucky Department of Fish and Wildlife Resources (KDFWR), Natural Resource Conservation Service (NRCS), Farm Service Agency (FSA), Kentucky State Nature Preserves Commission, and Kentucky Division of Forestry) soon thereafter, to implement projects that would conserve Beaver Cave and the species that occupy it and in order to eliminate the threats to the Beaver Cave beetle and its habitat or reduce them to the point that listing was no longer warranted. The Partners Program coordinated several conservation efforts that were planned and implemented through five inter-related agreements/contracts between the landowner and the agencies listed above: (a) A Partners Program 15-year Wildlife Habitat Enhancement Agreement; (b) a Continuous Conservation Reserve Program (CCRP) 15-year contract through FSA; (c) a Wildlife Habitat Incentives Program (WHIP) 15-year contract through NRCS; and (d) two Landowner Incentive Program (LIP) 10-year agreements through KDFWR. These projects were initiated in the summer of 2003 and fully implemented by fall of 2005. Collectively, these agreements and contracts encompassed three general conservation efforts: (1) Maintain Beaver Cave and the landowner's surrounding property in a manner that (a) reduces or eliminates sediment and animal waste within the cave's watershed by excluding cattle from the cave entrance with fencing, developing and implementing a rotational grazing program, and installing hardened stream crossings and heavy use areas, and (b) establishes and maintains a forested buffer around the entrance to Beaver Cave; (2) construct and maintain the metal gate at the entrance to Beaver Cave; and (3) control and limit access to Beaver Cave and the landowner's surrounding property.
        Many aspects of the conservation efforts identified in the five inter-related agreements are on-going, such as maintenance of the gate and control of access into the cave, and others have already been implemented (e.g., exclusion of cattle, construction of the cave gate, tree plantings, hardened stream crossings). Based on our evaluation of each of the three conservation efforts using the criteria provided in the Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) (68 FR 15100), we have determined that each of the three efforts is sufficiently certain to be implemented and effective so as to have contributed to the elimination or reduction of threats to the species (FWS 2006b). Therefore, the Service can consider these conservation efforts in making a determination as to whether the Beaver Cave beetle meets the Service's definition of a threatened or endangered species.
        Discussion of Listing Factors
        Section 4 of the Act and implementing regulations at 50 CFR part 424 set forth procedures for adding species to the Lists. A species may be determined to be an endangered or threatened species based on the applicability of one or more of the five factors described in section 4(a)(1). These factors and their application to the Beaver Cave beetle are summarized below.
        A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range
        In our initial assessment of the Beaver Cave beetle in 2001, we identified this species as a candidate for listing due to the present and threatened destruction and modification of its habitat (66 FR 54800). The activities contributing to this threat factor have now been addressed, as summarized below.
        In our initial 2001 assessment and subsequent CNORs and petition findings, we identified and recognized a potential risk of destruction or modification of the cave environment (the species' habitat) which could occur as a result of (1) polluted runoff from the farm operation, specifically animal waste, sediment, or spills of toxic materials in the watershed in which the cave occurs; and (2) unauthorized human entry to Beaver Cave (i.e., trash dumping, vandalism, physical habitat disturbance, and trampling of beetles). We now have determined that the potential risk of polluted stormwater runoff is limited, because these pollutants have been significantly reduced through full implementation of the CCRP contracts, LIP agreement, and Partners agreement specified above. These contracts and agreements and subsequent conservation efforts have eliminated these threats or reduced them to a point that any negative effects are unexpected or would be insignificant to the point that this listing factor no longer applies. The reduction in threats has been accomplished through the installation of two heavy-use feeding areas that are away from the cave and its entrance and associated exclusion fencing, the development of a rotational grazing program that concentrates cattle away from the cave entrance and its watershed, and the installation of a hardened stream crossing within the Beaver Cave watershed. Also, these agreements and contracts provided funding for cattle exclusion fencing and native vegetation plantings surrounding the cave entrance, thereby protecting it from cattle disturbance and establishing a natural filter (barrier) for any potential non-point source pollutants that could potentially enter the cave during storm events. Toxic material spills from external sources are improbable, because the Beaver Cave watershed is small and not in an area where toxic chemicals are produced or stored, nor is there likely to be transport of toxic materials in the area due to the rural nature of the surrounding area. A trash and debris-filled sinkhole that is connected to Beaver was also unclogged and cleaned, providing further protection against contamination of the underground drainage basin.
        To address the unlawful human trespass, trash dumping, vandalism, and habitat degradation of Beaver Cave, a bat-friendly cave gate was constructed just inside the cave entrance in 2004. The WHIP contract provided 53 percent of the funding for the cave gate construction, and the remaining 47 percent was obtained through a second LIP agreement. Under these agreements and contracts, unlawful entry to Beaver Cave is prevented, and the landowner has assumed responsibility for maintaining and inspecting the gate. This includes periodic inspections of the gate, taking necessary steps to repair the gate as needed, and ensuring the gate does not become blocked with rock or other debris that would block access to the cave for native bats or other species or prevent organic matter from entering the cave. Bat guano and other organic matter from the surface are important components of energy flow for the cave environment. Fencing has been erected around an approximate 1-acre area containing the entrance to Beaver Cave to promote the development of natural habitat around the cave entrance, provide further protection to the property, and control access to the cave entrance. These actions promote energy flow and eliminate the threats from dumping, vandalism, and unauthorized trespass such that this listing factor no longer applies.

        Many aspects of these conservation efforts are on-going, such as the growth and monitoring of the riparian plantings, maintenance of the cave gate, and control of access into the cave, but all of the primary habitat restoration and protection efforts (e.g., cave gate construction, fencing and subsequent cattle exclusion, hardened feeding areas, tree plantings, sinkhole clean-up) have already been completed.
        Based on the information summarized above, the Beaver Cave beetle is not threatened by the present or threatened destruction, modification, or curtailment of its habitat or range.
        B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
        We have no evidence of overutilization of the Beaver Cave beetle in the past for commercial, recreational, scientific, or educational purposes, and have no information that suggests such a threat exists in the foreseeable future. Under the inter-related agreements specified above, collection for scientific purposes would be allowed only with the permission of the landowner and the Service. The cave has been used for recreational purposes by spelunkers and by passive recreationists in the past, but placement of the locked metal gate across the cave entrance in 2004 has effectively eliminated such uses. Further, through maintenance of the metal gate at the cave entrance, as required by the LIP agreement and WHIP contract, all unauthorized access to the cave is prevented. Based on these considerations, overutilization for commercial, recreational, scientific, or educational purposes is not a threat to the species.
        C. Disease or Predation
        Disease and predation are not known to be threats for this species and are, instead, a normal part of its life history. Mortality from disease or predation likely occurs but has not eliminated this species in the past, and we have no reason to expect disease or predation to pose a substantial risk to the species in the future. Based on these considerations, disease or predation is not a threat to the species.
        D. The Inadequacy of Existing Regulatory Mechanisms
        Although the Beaver Cave beetle is listed as endangered in Kentucky by the Kentucky State Nature Preserves Commission, such listings provide no substantive protection under the current Kentucky law. However, there are no foreseeable reasons why specific regulatory mechanisms are necessary to ensure the conservation of this species, because the landowner and the involved agencies have committed to and are implementing various conservation efforts to protect Beaver Cave and the Beaver Cave beetle. These include, but are not limited to, strictly controlling access to the cave and the property surrounding the cave opening and restoring and enhancing the vegetation communities surrounding the cave and in its watershed. The metal gate is effective in preventing unauthorized entry into the cave, and as described above, the landowner has committed to and is implementing measures to strictly control access to the cave. Based on these considerations, the inadequacy of existing regulatory mechanisms is not a threat to the species.
        E. Other Natural or Manmade Factors Affecting Its Continued Existence
        Populations of this beetle species are restricted to Beaver Cave and are generally thought to be represented by a small number of individuals. Although this is a natural situation, their limited distribution and numbers make this species vulnerable to extirpation due to effects from various manmade factors, such as spills of toxic substances, non-point source pollutants, and habitat-related damage, as described above under Factor A. As described above, the conservation efforts included in the five inter-related agreements summarized above have removed or substantially reduced these habitat-related risks. Small population sizes for these species may also limit the natural interchange of genetic material within the population, which could affect long-term genetic and population viability. However, this is an endemic species that has persisted over time (i.e., from at least the time of its discovery to the present time) and under conditions that were worse than the current, more-protective situation despite the perceived risks of limited genetic interchange. For the reasons described above, the Beaver Cave beetle is not threatened by other natural or human-caused factors.
        Revised Petition Finding
        We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by the Beaver Cave beetle.
        We have evaluated the threats to the Beaver Cave beetle and considered factors that, individually and in combination, presently or potentially could pose a risk to the species and its habitat. We conclude that listing this species under the Act is not warranted, because the species is not likely to become an endangered or threatened species within the foreseeable future throughout all or a significant portion of its range. This species no longer meets our definition of a candidate and is removed from candidate status.
        We will continue to monitor the status of the Beaver Cave beetle, and to accept additional information and comments from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding. We will reconsider this determination in the event that new information indicates that the threats to this species are of a considerably greater magnitude or imminence than identified here.
        References

        A complete list of all references cited herein is available upon request from the Kentucky Ecological Services Field Office, U.S. Fish and Wildlife Service (see ADDRESSES).
        Author

        The primary author of this finding is Dr. Michael A. Floyd, U.S. Fish and Wildlife Service (see ADDRESSES).
        Authority

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

          Dated: September 28, 2006.
          Marshall Jones,
          Acting Director, Fish and Wildlife Service.

       [FR Doc. E6-16540 Filed 10-10-06; 8:45 am]
      BILLING CODE 4310-55-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 63
        [AD-FRL-6955-9]
        RIN 2060-AF29
        National Emission Standards for Hazardous Air Pollutants for Ferroalloys Production: Ferromanganese and Silicomanganese

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule; amendments.

          SUMMARY:
          We are proposing to amend the national emission standards for hazardous air pollutants (NESHAP) for Ferroalloys Production: Ferromanganese and Silicomanganese (40 CFR Part 63, Subpart XXX). Changes are being made in response to a petition for reconsideration submitted to the EPA following promulgation of the final rule, and a petition for review filed in the U.S. Court of Appeals for the District of Columbia Circuit. The revisions establish new emission limitations for ferromanganese and silicomanganese production in open submerged arc furnaces. We are establishing four subcategories within this category of furnaces and specifying numerical emission limitations for particulate matter (PM) for each, in order to account for differences in emission potential and control due to differences in furnace size, operating conditions, and alloy type.
          In the Rules and Regulations section of this Federal Register, we are making this amendment in a direct final rule because we view these amendments as noncontroversial and we anticipate no adverse comments. We have explained our reasons for this amendment in the preamble to the direct final rule.

          DATES:

            Comments. Submit comments on or before April 23, 2001.

            Public Hearing. If anyone contacts us requesting to speak at a public hearing by April 11, 2001, we will hold a public hearing on April 23, 2001.

          ADDRESSES:
          By U.S. Postal Service, send comments (in duplicate if possible) to: Air and Radiation Docket and Information Center (6102), Attention Docket Number A-92-59, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC 20460. In person or by courier, deliver comments (in duplicate if possible) to: Air and Radiation Docket and Information Center (6102), Attention Docket Number A-92-59, U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460. The EPA requests that a separate copy of each public comment be sent to the contact person listed below.

            Public Hearing. If a public hearing is held, it will be held at 10:00 a.m. in our Office of Administration Auditorium, Research Triangle Park, North Carolina, or at an alternate site nearby.

            Docket. Docket No. A-92-59 contains supporting information used in developing the standards and guidelines. The docket is located at the U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460 in room M-1500, Waterside Mall (ground floor), and may be inspected from 8:30 a.m. to 5:30 p.m., Monday through Friday, excluding legal holidays.

          FOR FURTHER INFORMATION CONTACT:
          Mr. Conrad Chin, Metals Group, Emission Standards Division (MD-13), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone (919) 541-1512; facsimile (919) 541-5600; electronic mail address: chin.conrad@epamail.epa.gov.

        SUPPLEMENTARY INFORMATION:

        A direct final rule identical to this proposal is published in the Rules and Regulations section of this Federal Register. If adverse comments are received on this proposal, the direct final rule will be withdrawn and the comments will be addressed in a subsequent final rule. If adverse comments are received only on a discrete portion of the rule, we will consider withdrawing only that portion of the rule. If no significant adverse comments are received, no further action will be taken on this proposal and the direct final rule will become effective on May 21, 2001.

        The regulatory text for this proposal is identical to that for the direct final rule published in the Rules and Regulations section of this Federal Register. For further supplementary information, see the direct final rule published in the Federal Register.
        What Are the Administrative Requirements for This Action?

        Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is, therefore, not subject to review by the Office of Management and Budget. In addition, since this action establishes no new requirements, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to section 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This action also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13175 (65 FR 67249, January 1, 2001).
        This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

        This action does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In taking this action, we have taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). We have complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of this action in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

          List of Subjects in 40 CFR Part 63
          Environmental protection, Air pollution control, Ferromanganese and silicomanganese production, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.

          Dated: March 15, 2001.
          Christine Todd Whitman,
          Administrator.

      [FR Doc. 01-7027 Filed 3-21-01; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF HOMELAND SECURITY
        Coast Guard
        46 CFR Part 404
        [Docket No. USCG-2009-0552]
        Great Lakes Pilotage Ratemaking Methodology

          AGENCY:
          Coast Guard, DHS.

          ACTION:
          Request for public comments.

          SUMMARY:
          The Coast Guard requests public comments on the adequacy of existing regulations that provide the methodology for reviewing and adjusting rates for pilots on the U.S. waters of the Great Lakes. The Coast Guard seeks these comments in order to obtain a better understanding of how well Great Lakes shippers, Great Lakes pilots, and the general public think those formulas represent the realities of commercial shipping on the Great Lakes and fairly balance competing considerations. The Coast Guard will refer the comments it receives to the Great Lakes Pilotage Advisory Committee for review and recommendations.

          DATES:
          Comments and related material must reach the Docket Management Facility on or before October 19, 2009 for consideration.

          ADDRESSES:
          You may submit written comments identified by docket number USCG-2009-0552 using any one of the following:
          (1) Federal eRulemaking Portal:
            http://www.regulations.gov.

          (2) Fax: 202-493-2251.
          (3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
          (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except  Federal holidays. The telephone number is 202-366-9329.

          To avoid duplication, please use only one of these four methods. Our online docket is available on the Internet at http://www.regulations.gov under docket number USCG-2009-0552.

          FOR FURTHER INFORMATION CONTACT:

          If you have questions concerning this notice, please call or e-mail Mr. Paul Eulitt, CG-54122, Coast Guard, telephone 202-372-1537, Coast Guard; e-mail Paul.W.Eulitt@uscg.mil. If you have questions on viewing or submitting material to the docket, call Ms. Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

        SUPPLEMENTARY INFORMATION:

        Request for Comments

        We encourage you to submit comments and related material in response to this notice. We discuss why we seek comments, and suggest what your comments should cover, under “Background and Purpose.” All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided.

          Submitting comments: If you submit a comment, please include the docket number for this notice (USCG-2009-0552). You may submit your comments and material online, or by fax, mail or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
        To submit your comment online, go to http://www.regulations.gov, select the Advanced Docket Search option on the right side of the screen, insert “USCG-2009-0552” in the Docket ID box, press Enter, and then click on the balloon shape in the Actions column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period.

          Viewing comments: To view comments, go to http://www.regulations.gov, select the Advanced Docket Search option on the right side of the screen, insert USCG-2009-0552 in the Docket ID box, press Enter, and then click on the item in the Docket ID column. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

          Privacy Act: Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act system of records notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).
        Background and Purpose
        This notice is issued pursuant to the authority granted to the Secretary of Homeland Security by the Great Lakes Pilotage Act of 1960 (“the Act”), 46 U.S.C. Chapter 93 as amended, as delegated by the Secretary to the Coast Guard in Department of Homeland Security Delegation No. 0170.1. The Act requires foreign-flag vessels and U.S.-flag vessels engaged in foreign trade to use federally registered Great Lakes pilots while transiting the St. Lawrence Seaway and the Great Lakes system, and requires the Secretary to “prescribe by regulation rates and charges for pilotage services, giving consideration to the public interest and the costs of providing the services.” 46 U.S.C. 9303(f). Coast Guard regulations implement the Act and can be found in 46 CFR, parts 401 through 404.

        The Great Lakes pilotage regulations contain ratemaking formulas that we apply each year in reviewing rates and, if necessary, adjusting them. The formulas appear in appendices to 46 CFR part 404. The final rule for our 2009 rate review and adjustment appears elsewhere in today's Federal Register, and you may consult it for more information about the ratemaking process.
        In past years, some commenters on our annual ratemakings have suggested we need to review our ratemaking formulas. Some of these commenters have implied the need for a general review, while others have focused on our definition of “bridge hours.” Bridge hours are a key component in determining the target rate of compensation that our ratemaking aims to provide for pilots, and currently are defined as “the number of hours a pilot is aboard a vessel providing pilotage service.” 46 CFR part 404, Appendix A, Step 2.B(1). Some commenters have suggested that the current definition is too narrow, in part because it does not include a pilot's wait time due to vessel delays or detentions.
        At this time, there is no Coast Guard rulemaking project under way to revise our current Great Lakes pilotage regulations, and this notice is not an “advance notice” of a proposed rulemaking nor does it indicate that such a rulemaking has been opened. However, we are interested in obtaining as comprehensive an idea as possible of the extent and nature of any objections to the current ratemaking formulas. We seek a better understanding of how well Great Lakes shippers, Great Lakes pilots, and the general public think those formulas fairly balance competing considerations and represent the realities of commercial shipping on the Great Lakes. Any comments we receive in response to this notice will be referred to the Great Lakes Pilotage Advisory Committee (GLPAC) for GLPAC's review and recommendations. The Act established GLPAC to advise on significant actions or policy formulation affecting Great Lakes pilotage. 46 U.S.C. 9307(d).
        If you would like to comment on our ratemaking formulas, we ask that, insofar as possible, you:
        • Tell us whether you are a member of the general public, an industry representative, or a pilot;
        • Tell us specifically what you like or dislike about the current formulas; and
        • Tell us exactly how you would revise our formulas to better serve industry, pilots, and the public—“Write your own formula”.

          Dated: July 13, 2009.
          Howard L. Hime,
          Acting Director of Commercial Regulations and Standards, U.S. Coast Guard.

      [FR Doc. E9-17228 Filed 7-20-09; 8:45 am]
      BILLING CODE 4910-15-P