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

        Endangered and Threatened Wildlife and Plants; 90-Day Finding on A Petition to List Astragalus debequaeus (DeBeque milkvetch) as Threatened or Endangered

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of 90-day petition finding.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list Astragalus debequaeus (DeBeque milkvetch) as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). We find that the petition does not present substantial scientific or commercial information indicating that listing A. debequaeus may be warranted. Therefore, we will not be initiating a further status review in response to this petition. We ask the public to submit to us any new information that becomes available concerning the status of A. debequaeus or threats to its habitat at any time. This information will help us monitor and encourage the conservation of the species.

          DATES:
          The finding announced in this document was made on February 14, 2007. You may submit new information concerning this species for our consideration at any time.

          ADDRESSES:
          The complete supporting file for this finding is available for public inspection, by appointment, during normal business hours at the Western Colorado Field Office, U.S. Fish and Wildlife Service, 764 Horizon Drive, Building B, Grand Junction, CO 81506. Submit new information, materials, comments, or questions concerning this species to us at the address above.

          FOR FURTHER INFORMATION CONTACT:

          Allan R. Pfister, Field Supervisor, Western Colorado Field Office (see ADDRESSES section) (telephone 970-243-2778, extension 29; facsimile 970-245-6933). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Background

        Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the determination. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of this finding promptly in the Federal Register.
        Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information was presented, we are required to promptly commence a review of the status of the species.
        In making this finding, we rely on information provided by the petitioner and evaluate that information in accordance with 50 CFR 424.14(b). Our 90-day finding process under section 4(b)(3)(A) of the Act and section 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold. A substantial finding should be made when the Service deems that adequate and reliable information has been presented that would lead a reasonable person to believe that the petitioned action may be warranted.

        On October 26, 2004, we received a formal petition, dated October 25, 2004, submitted by the Center for Native Ecosystems and the Colorado Native Plant Society (2004), requesting that we list Astragalus debequaeus as threatened or endangered, and designate critical habitat concurrently. The petition identified itself as such and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). We acknowledged receipt of the petition in a January 20, 2005, letter to Mr. Joshua Pollock. In that letter, we advised the petitioners that due to prior listing allocations in Fiscal Year 2005, we would not be able to begin processing the petition, and that emergency listing of A. debequaeus was not warranted. Delays in responding to the petition continued due to the high priority of responding to court orders and settlement agreements.

        On October 20, 2005, petitioners sent a 60-day notice of intent to sue for failure to grant emergency listing status to Astragalus debequaeus, to make a 90-day finding, and to make a 12-month finding. On June 8, 2006, petitioners filed suit to force the Service to make the “overdue” finding. On July 17, 2006, a settlement agreement was proposed by the Service with dates for the 90-day finding submittal being February 9, 2007, and, if the petition was found to be substantial, we would send a 12-month finding to the Federal Register by October 12, 2007. These dates were agreed upon in a settlement filed on August 10, 2006, and approved on August 15, 2006.
        General Biology and Listable Entity Evaluation

          Astragalus debequaeus is a member of the Fabaceae (Pea) family. Plants are clump-forming perennials 2 to 10 decimeters (8 to 39 inches (in.)) in diameter with a woody taproot; stems 14 to 30 centimeters (cm) (5.5 to 12 in.) long, curving upward; compound leaves 2 to 10 cm (0.8 to 4 in.) long with 13 to 21 glabrous, flat or somewhat folded leaflets. Flowers are white, upright, and 17 to 21 millimeters (mm) (0.6 to 0.8 in.) long. Pods are ascending, 15 to 23 mm (0.5 to 1 in.) long, 6 to 11 mm (0.2 to 0.4 in.) thick, and inflated with minute rough hairs that become smooth with age (Welsh 1985, p. 31).

          Astragalus debequaeus has only been identified as a separate taxonomic entity for about 20 years, which represents about two generations (Colorado Natural Heritage Program (CNHP) 2005, p. 60). The species was discovered and described as a new species in 1984 by Dr. Stanley Welsh of Brigham Young University. Astragalus debequaeus is recognized as a species in the Colorado Rare Plant Field Guide (Spackman et al. 1997b, p. 7); Integrated Taxonomic Information System (2007); NatureServe (2006); and Weber and Wittmann (1992, pp. 3, 42; 2001, p. 181).

          Astragalus debequaeus plants are found on the fine-textured, sandy clay soils of the Atwell Gulch Member of the Wasatch Formation that are relatively barren, varicolored, seleniferous, and saline (Welsh 1985, p. 31). The habitat is found between 1,508 and 1,981 meters (4,970 and 6,500 feet) elevation in Mesa and Garfield Counties, Colorado. The species is known from 17 occurrences that occupy about 573 hectares (1,417 acres) (CNHP 2006, pp. 1-2). Fourteen of the occurrences are near the town of DeBeque, Colorado, in Mesa County. The Bureau of Land Management (BLM) Grand Junction Field Office (GJFO) manages 12 of these occurrences, 2 of which include small portions of private land. The other two occurrences near DeBeque, Colorado are located on private lands. There are three occurrences of A. debequaeus located in Garfield County at the base of the Roan Plateau near the town of Rifle. Two of these occurrences are primarily on BLM lands but include small portions of private land, while the other one is privately owned. The total estimated number of plants at all seventeen occurrences is at least 64,617 (CNHP 2006, p. 2; Lincoln and Bridgman 2006, p. 1). Table 1 outlines the known populations, estimated number of plants and area occupied, land ownership, and overall habitat quality as ranked by CNHP.

          Table 1.—Astragalus debequaeus Population Information (CNHP 2005; Lincoln and Bridgman 2006, p. 1).

            Occurence location
            Number of plants*
            Acres (hectares) * *

            Land ownership
            Quality * * *

            Shire Gulch
            8 to 10
            1 (0.4)
            Private
            D

            Pyramid Rock
            thousands
            300 to 392 (121 to 158)
            BLM GJFO
            A

            Pyramid View
            > 1,000
            8 (3.2)
            BLM GJFO
            A

            Coon Hollow
            > 50,000
            352 (142)
            BLM GJFO
            A

            Sulphur Gulch
            300 to thousands
            1 to 55 (0.4 to 22)
            BLM GJFO
            A

            Sulphur Gulch Bottomland * * * *
            >50
            >30 (12)
            BLM GSFO
            C

            Corcoran Wash
            500
            8 to 80 (3.2 to 32)
            BLM GJFO
            A

            Anvil Points
            >700
            97 (39)
            BLM GSFO/Private
            AB

            Little Horsethief Creek
            20
            1 (0.4)
            BLM GJFO
            C

            DeBeque Cutoff
            710 to thousands
            36 to 317 (14.5 to 128)
            BLM GJFO/Private
            A

            Plateau Valley
            12 to 50
            1 to 15 (0.4 to 6)
            BLM GJFO/Private
            C

            Atwell Gulch
            4,478 * * * * *
            >16 (6.5) * * * * *
            BLM GJFO
            AB

            South Dry Fork
            1,000
            15 (6)
            BLM GJFO/Private
            A

            Horsethief Creek
            100
            3 to 11 (1.2 to 4.4)
            BLM GJFO/Private
            B

            King Creek * * * *
            3
            1 (0.4)
            Private
            D

            Lockhart Draw * * * *
            1 to 5
            1 (0.4)
            BLM GJFO
            D

            JQS Trail * * * *
            70 to 100
            1 to 15 (0.4 to 6)
            BLM GSFO/Private
            C

          * Numbers of plants are estimates.
          * * Acres and hectares are estimates. When a range of acres or hectares is presented, the first number represents the observed occupied area and the second number represents the mapped area of continuous habitat.
          * * * Quality is an overall quality ranking assigned by CNHP where an “A” represents “excellent” quality, “B” represents “good” quality, “C” represents “fair” quality overall, and a “D” represents “poor” quality. Intermediates are represented with multiple letters.
          * * * * New occurrence added to the CNHP database in 2005.
          * * * * * Lincoln and Bridgman (2006, p. 1) provided population estimate and area estimates for new additions to Atwell Gulch.

        NatureServe and the CNHP rank the species as G2/S2, indicating that it is imperiled both globally and within Colorado due to extreme rarity (6 to 20 occurrences) and/or because of other factors demonstrably making it vulnerable to extinction throughout its range.
        Previous Federal Actions

          Astragalus debequaeus was listed as a Category 2 (C2) candidate for listing in 1993 (58 FR 51144, September 30, 1993). In the February 28, 1996, Notice of Review (61 FR 7595), we discontinued the use of multiple candidate categories and considered only the former Category 1 candidates for listing purposes. Because the species did not meet the threshold of the definition of a C1 species, A. debequaeus was removed from the candidate list at that time. The species is managed as a Sensitive Species by BLM, as designated by the BLM State Director, with special management consideration. The BLM Manual 6840 provides policy direction that BLM sensitive plant species are to be managed as if they were candidate species for Federal listing so that they do not become listed, while also fulfilling other Federal law mandates.
        Threats Analysis

        Section 4 of the Act and its implementing regulations (50 CFR 424) set forth the procedures for adding species to the Federal List of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. In making this finding, we evaluated whether threats to the Astragalus debequaeus presented in the petition and other information available in our files at the time of the petition review may pose a concern with respect to the A. debequaeus survival. Our evaluation of these threats is presented below under the most appropriate listing factor.
        A. The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
        The petitioners state that substantial threats to the species' habitat are presented by—(1) traditional oil and gas development, (2) oil-shale mining, (3) coalbed methane development and/or coal mining, (4) noxious weeds and seeding, (5) existing and projected roads, (6) livestock trampling, (7) off-road vehicle (ORV) use, and (8) increased housing development. We address each of these topics individually below.

          Information Provided in the Petition Regarding Traditional Oil and Gas Development—Oil and gas resources and development are extensive within the range of Astragalus debequaeus. The species is endemic to the Atwell Gulch Member of the Wasatch Formation substrate, which overlays deposits of oil and gas in the Piceance Basin that BLM has leased for energy development. The following table summarizes information provided in the petition regarding activities within the leases and the sections where plants occur. Occurrences listed in this table are not necessarily the same as those shown in the previous table due to different occurrence criteria protocols used by CNHP in 2004 versus 2006.

          Table 2.—Summary Information Provided in the Petition Regarding Activities Within the Leases and the Sections Where Astragalus debequaeus Plants Occur

            Occurence location *
            Number of leases 1

            Old 2

            New 3

            Applications for permit to drill in the lease area 4

            Applications for permit to drill in the section 5

            Pipelines
            Roads
            ORV
            Grazing

            Pyramid Rock
            4
            11
            20
            10
            multiple
            multiple
            90% open
            open

            Corcoran Wash

            1

            open
            open

            South Dry Fork
            3
            2

            1
            1
            open
            open

            Sulphur Gulch
            2

            2

            1
            1
            open
            open

            DeBeque South
            2
            3
            2
            3
            3
            1
            open
            open

            Atwell Gulch

            1
            2

            multiple
            open
            open

            Jerry Gulch
            1
            2

            open
            open

            Anvil Points
            3
            1
            27
            31

            open
            open

            1 Occurrences listed in this table are not the same as those shown in the previous table due to different occurrence criteria protocols used by CNHP in 2004 versus 2006. Another discrepancy originates from the fact that four additional occurrences were documented in 2005 after this information was obtained by the petitioners from the CNHP.

            2 Leases granted prior to standard stipulations being included in lease notices.

            3 Leases with, at least, standard stipulations allowing avoidance up to 200 meters. Some of these stipulations also control surface use.

            4 Applications for permit to drill in the lease area as of 2004.

            5 Applications for permit to drill in the section (approximately 640 acres (2.6 km2)) where plants occur as of 2004.

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—We cannot find support for the petitioners' claim that the high density of oil and gas infrastructure causes direct and indirect impacts to Astragalus debequaeus. The petitioners cite two instances in which “a sizable number” and “a dozen or so” sensitive plants (no species named) were destroyed during construction of two well pads (BLM GSFO 1999a, pp. 4-33, 34). The BLM GSFO is aware of only one instance where A. debequaeus was directly impacted. The BLM permitted the loss of three plants within a proposed disturbance area for an access road (Scheck 2006a). The Service has information on only one additional instance, in the BLM GJFO management area, where four plants were lost during construction of a pipeline and 12 plants were transplanted (Alward 2006).

        The petition provides general information regarding the extent of oil and gas leasing and potential development in the BLM GSFO and GJFO management areas within the range of Astragalus debequaeus. It does not present specific information that this development has resulted in losses or threatens to result in losses of plants or habitat. Much of the information in the petition identifies potential threats and hypothetical impacts rather than actual impacts.

        On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing of Astragalus debequaeus may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range due to oil and gas development.

          Information Provided in the Petition Regarding Oil Shale Development—Petitioners state that oil-shale mining continues to become a more concrete threat that would devastate Astragalus debequaeus. They cite the previous mining activity that could resume given sufficient economic incentive, and the conditional oil-shale water rights permits that are still held by three oil companies in Garfield and Mesa Counties, Colorado.

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—New oil-shale research leases currently being considered by the BLM in Colorado would be located in the Piceance Basin in Rio Blanco County, outside of the range for Astragalus debequaeus (BLM 2006, p. 1). Potential future expansion of the research leases to commercial production would occur in the same area, also outside of the species' range. Oil-shale reserves are found in the Green River Shale formation. A. debequaeus is found in the Wasatch formation. The two formations are exposed in close proximity to each other in some areas in Garfield County, Colorado, but we have no information in our files to indicate that historical oil-shale mining in this area is likely to resume in the foreseeable future. Petitioners do not provide evidence that incentives are likely to increase.
        Renewal of water rights associated with oil-shale development does not suggest imminent or foreseeable destruction of habitat. In February 2006, Mesa County granted an oil company an extension of a conceptual conditional use permit for a water diversion system in the DeBeque area, but no proposed plan of development was submitted (Mesa County 2006, p. 1-2). While indirect or cumulative impacts may result if large water storage projects or other facilities are constructed in the DeBeque area (Scheck 2006a), the petitioners did not provide specific information, nor does the Service have information to indicate that water projects are likely to be developed within the range of this species in the foreseeable future.
        Due to the lack of overlap between the range of Astragalus debequaeus and areas considered for new oil-shale development, we have determined that the information in the petition is incorrect and therefore is not substantial with respect to a threat to the species from oil shale development or associated indirect impacts. On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing of A. debequaeus may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range due to oil-shale development.

          Information Provided in the Petition Regarding Coalbed Methane Development—The petitioners assert that coalbed methane development and coal mining may constitute threats to Astragalus debequaeus due to the resources present and the processes for extraction. Petitioners state that 30 coalbed methane wells have been drilled on South Shale Ridge in the vicinity of an A. debequaeus site, and 10 more have been permitted but not drilled.

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—Petitioners provide no information to substantiate the claim that coalbed methane development or coal mining are impacting, or are likely to impact, Astragalus debequaeus occurrences. On site surveys by the BLM GJFO have not documented any A. debequaeus plants within active or permitted coalbed methane development areas and have not identified any potential threats to the species from these activities (Trappett 2005). On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing of A. debequaeus may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range due to coalbed methane or coal development.

          Information Provided in the Petition Regarding Noxious Weeds—Petitioners state that noxious weeds and seeding pose threats to Astragalus debequaeus. The petition gives three examples of cheatgrass (Bromus tectorum) invasions documented at A. debequaeus occurrences.

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—The petitioners' description of weed and introduced seed interactions with rare plants in general is accurate and applicable to Astragalus debequaeus habitat after disturbance. Three examples are given of cheatgrass invasions documented at A. debequaeus occurrences. Two of the sites, Pyramid View and Pyramid Rock/Pyramid Ridge, are ranked by CNHP as “A” (excellent) for “quality” even though the cheatgrass downgraded the “condition” of the habitat to a “B” (good). At the third occurrence at Horsethief Creek the “quality” is ranked “B” although the site is given a “C” (fair) for “condition” due to cheatgrass and the roadside location. A. debequaeus plants at this site are large (114 cm/45 in.) and seedlings are present (CNHP 2005, pp. 36-37). While cheatgrass is nearly ubiquitous in the western United States, it does not necessarily dominate perennial plants or prevent seedling establishment.

        In the BLM GSFO management area, cheatgrass has been noted as a component of the vegetative community at all Anvil Points occurrences that have been visited in the past 4 years. Based on observations during these surveys, it does not appear that the Anvil Points occurrences are dominated by cheatgrass or other noxious weeds, and the Astragalus debequaeus populations do not appear to be suppressed by the presence of cheatgrass at the current levels (Scheck 2006a).

        On the basis of a review of the information in the petition, it is our determination that the petition does not contain substantial information to indicate that cheatgrass and other noxious weeds or seeds are a threat to Astragalus debequaeous. Despite the presence of cheatgrass in some locations where A. debequaeous occurs, cheatgrass does not appear to suppress A. debequaeus (Scheck 2006a). We have concluded that a slight downgrade in habitat quality at a few locations does not constitute a threat to the species. Neither the petitioners, nor our files, provide information on the extent or magnitude of noxious weed invasion to indicate that listing A. debequaeus may be warranted due to the present or threatened destruction, modification, or curtailment of A. debequaeus' habitat or range.

          Information Provided in the Petition Regarding Roads—The petitioners state that existing and projected roads pose significant threats to Astragalus debequaeus. They cite the general proximity of roads to existing populations and the predicted increase in road networks that accompany oil and gas development as significant threats. They base this claim upon assertions of soil compaction, fine particle deposition on the plants, alterations in hydrologic flow above the plants, spread of invasive plants, increased ORV access and use, destabilization of the slopes where the plants are found, the limiting of plant dispersal, and damage to the plants during road maintenance and repairs.

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—In the BLM GSFO management area, several of the Anvil Points suboccurrences are within 0.40 kilometer (0.25 mile) of a road. Scheck (2006a) indicates that road disturbance in the form of destabilization of slopes, dust deposition and corridors for weed dispersal likely results in impacts to Astragalus debequaeus. However, there is no substantial information to suggest the magnitude of these impacts and whether they pose a threat to the species. None of the known occurrences are located on slopes below the roads, so there have been no impacts from sedimentation or changes in runoff patterns. Road maintenance and repair has contributed to the loss of a few individuals that are sloughing off the cut banks above the road (Scheck 2006a). However, sloughing at this site seems to be an isolated impact involving only a few plants. Although oil and gas development on BLM lands would include access roads, the BLM would evaluate proposed roads during project planning and they would be subject to applicable stipulations, including possible road relocation (BLM GSFO 1999a, p. 13). These measures should help to ensure that no substantial impacts result from road construction.

        It appears that the information provided in the petition addressed impacts to the species in only a few localized areas and does not speak to the magnitude or severity of impacts to the species. Further, the petitioners do not provide information on the extent or magnitude of existing and future roads and how road use, maintenance, or development may affect the species. On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing Astragalus debequaeus may be warranted due to the present or threatened destruction, modification, or curtailment of A. debequaeus' habitat or range due to road development.

          Information Provided in the Petition Regarding Livestock—Petitioners state that livestock pose a threat to Astragalus debequaeus, primarily through trampling, but also discuss secondary issues including the introduction of noxious weeds and other invasive plants as well as direct grazing. According to the petition, livestock pose a threat to the species because all known A. debequaeus occurrences are within BLM grazing allotments. They cite the Atwell Gulch occurrence in the Heely allotment, BLM GJFO management area, where over 20 percent of the total number of plants was heavily trampled in 1997. The petitioners found this compelling in that only 50 percent of plants were located in areas accessible to cattle. At the Pyramid Rock occurrence in the BLM GJFO management area, one occurrence was reported by CNHP to be somewhat overgrazed, with much cheatgrass, which petitioners cite as an indication that cattle were introducing noxious weeds. Petitioners state that as of 2004 there were no other available reports on the grazing status within any allotments.

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—Based on a review of information in our files, we have determined the information contained in the petition regarding the threat to Astragalus debequaeus from livestock impacts may not be accurate.

        The GJFO BLM manages the Heely grazing allotment, which lies within the Atwell Gulch occurrence of Astragalus debequaeus. These occurrences were surveyed in 1996 and 2006. In both surveys, trampling of individual plants by cattle was observed; however, the total estimated number of plants appeared to have increased by 610 plants at previously known locations, and 6 newly recorded sites, with an estimated 3,361 plants, were discovered. The BLM renewed the grazing lease in 2006 for only 3 years to allow for the collection of additional data before issuing a grazing decision, during which time it will continue to monitor the plants (Lincoln and Bridgman 2006, p. 5).
        In the BLM GJFO management area, the Pyramid Rock occurrence was ranked “AB” in 1996 (Spackman et al. 1997a, figure 11) and “A” in 2000 (CNHP 2005, p. 46). Because the quality of the site has improved and its subsequent CNHP ranking, we do not agree with the petitioner's claim that overgrazing is a threat at this site.

        In the BLM GSFO management area, only one grazing allotment contains known populations of the species. The BLM GSFO completed a grazing permit renewal Environmental Assessment for Webster Park allotment in the Anvil Points occurrence of Astragalus debequaeus that included a discussion of grazing impacts (or lack thereof) on the plants. The BLM stated that “there are several known populations of the BLM Sensitive plant, A. debequaeus, in the lower unit of the Webster Park allotment and in the adjacent Sharrard Park allotment. Monitoring of these populations in 2002 and 2003 found little evidence of livestock grazing or trampling. The reissuance of the grazing permit, as proposed, should have no effect on this plant species” (Scheck 2006a).

        The resilience of these plants over 10 years at Atwell Gulch and 19 years at Pyramid Rock indicates that the response of Astragalus debequaeus to grazing impacts under current management does not pose a significant threat to the species. The magnitude of grazing in known occupied A. debequaeus habitat is minor, and where it occurs, does not seem to be impacting the long-term viability of the species at the site.

        On the basis of our evaluation of the information on the extent or magnitude of livestock impacts contained in the petition, it is our determination that the petition does not present substantial information to indicate that listing Astragalus debequaeus may be warranted due to the present or threatened destruction, modification, or curtailment of A. debequaeus' habitat or range.

          Information Provided in the Petition Regarding Off-Road Vehicle (ORV) Use—The petitioners state that ORV use poses a significant threat and has been documented at an Astragalus debequaeus site. Petitioners state that ORV use is allowed in most areas where A. debequaeus is found, and that it is documented at the Area of Critical Environmental Concern (ACEC), which is closed to motorized vehicles. The petitioners also expect that increased ORV use will accompany increased access provided by new roads for oil and gas development.

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—The petition does not contain reliable information concerning the threat to Astragalus debequaeus from ORV use. While ORV use is allowed in most areas of BLM land where A. debequaeus is found, ORV tracks are documented only at the Pyramid Rock ACEC, which is closed to motorized vehicles. The BLM GSFO reports no ORV impacts to the Anvil Points populations, because legal public access to these sites is blocked by private land.

        On the basis of our evaluation of information on the extent or magnitude of ORV use contained in the petition, it is our determination that the petition does not present substantial information to indicate that listing Astragalus debequaeus may be warranted due to the present or threatened destruction, modification, or curtailment of A. debequaeus' habitat or range. Our information indicates that the magnitude of ORV use in known occupied A. debequaeus areas is minor.

          Information Provided in the Petition Regarding Residential Development—The petitioners assert that increased housing development threatens Astragalus debequaeus. Petitioners cite the 1997 CNHP report that listed increased housing development between Rifle and Grand Junction as a threat to the habitat for the species (Spackman et al. 1997a, pp. 5, 44).

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—The petition provides no estimates of current or projected housing development within the habitat for Astragalus debequaeus to indicate that it represents a threat to the species. While housing development is known to be increasing within the range of this species, the potential direct impact of housing development on A. debequaeus is limited to the occurrences that are at least partly on private land. Information on the portion of occupied area and number of plants present on the private portion of these parcels is not available. However, private lands contribute only a small portion of the known occurrences of A. debequaeus. Even if all private lands were lost, the vast majority of occurrences and individuals would remain on BLM lands (see Table 1) not subject to residential development. On the basis of our evaluation of information on the extent or magnitude of residential development contained in the petition, it is our determination that the petition does not present substantial information to indicate that listing A. debequaeus may be warranted due to the present or threatened destruction, modification, or curtailment of A. debequaeus' habitat or range.
        B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

        The petitioners did not provide information regarding the overutilization of this Astragalus debequaeus for commercial, recreational, scientific, or educational purposes. We also have no available information on the overutilization of this plant species for commercial, recreational, educational, or scientific purposes. Therefore, we have determined that the petition does not provide substantial information that listing A. debequaeus may be warranted due to overutilization for commercial, recreational, scientific, or educational purposes.
        C. Disease or Predation

          Information Provided in the Petition—Petitioners state that the threat of herbivory (either natural or livestock related) could be significant given the small population sizes, scarcity of occurrences, and limited geographic range size of the species. They cite CNHP records from 2004 in which the plants were “somewhat overgrazed” at one occurrence in 1986, and two plants were browsed in another occurrence where there also was “some evidence of seed predation by an unknown predator.” Petitioners also state that cattle are believed to avoid grazing on Astragalus debequaeus, either because it is unpalatable or because the more palatable plants are found in other habitats.

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—The petition does not contain substantial information concerning the threat of herbivory. The report on seed predation and browsing appears anecdotal, and no evidence suggests that herbivory threatens Astragalus debequaeus. As the petition states, cattle appear to avoid grazing on A. debequaeus. As such, we have determined that the petition does not provide substantial information that listing A. debequaeus may be warranted due to herbivory. Livestock impacts are also discussed under Factor A above.
        D. Inadequacy of Existing Regulatory Mechanisms

        Petitioners state that Federal regulatory mechanisms are inadequate to protect the Astragalus debequaeus. The petition asserts that BLM fails to protect the species due to—(1) inadequate monitoring of occurrences; (2) inadequate avoidance of adverse impacts from oil and gas development, grazing, and ORV use; and (3) failure to designate or enforce ACECs. Finally, the petition asserts that there is a lack of State regulatory mechanisms protecting the species. As indicated in other portions of this finding, the petition failed to present substantial information indicating that oil and gas, grazing, and ORV use are a threat to A. debequaeus. Nevertheless, we evaluated the claims of the petition regarding each of these factors and the adequacy of the associated regulatory mechanisms below.

          Information Provided in the Petition Regarding Inadequate Monitoring—The Petitioners state that BLM fails to monitor the species, saying that several occurrences have not been revisited in over 18 years.

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—The petition does not provide reliable information that the BLM fails to monitor the species. The petitioners claim that several occurrences have not been revisited in over 18 years. However, CNHP (2005, pp. 12, 17, 123) records indicate that, with the exception of one small occurrence and two suboccurrences, all known occurrences have been surveyed since 1995. Petitioners list eight subocurrences that have been revisited within the last 8 years and four newly discovered suboccurrences. In the BLM GSFO management area, two suboccurrences in the Anvil Points area have been monitored for the past 3 years, and surveys have relocated one of four “missing” subocurrences that may have been inaccurately mapped (Scheck 2006b). In the BLM GJFO management area, eight known subocurrences were resurveyed, seven new subocurrences were found, and a monitoring plot was established in the Atwell Gulch occurrence in 2006 (Lincoln and Bridgman 2006, p. 5). Transplant research and monitoring (see Factor E below) were funded after BLM surveys located plants along the route for a new oil and gas pipeline. On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing Astragalus debequaeus may be warranted due to inadequate monitoring of occurrences.

          Information Provided in the Petition Regarding Inadequate Protection From Oil and Gas Development, Grazing, and ORV Use—The petitioners assert that the BLM fails to regulate oil and gas development, ORV use, and livestock grazing in a manner that would adequately protect Astragalus debequaeus. Petitioners assert that neither the 1987 Grand Junction Resource Management Plan nor the 1999 Glenwood Springs Resource Management Plan amendment adequately controls energy development impacts on the plants. They state that the standard lease provisions found in 43 CFR 1301.1-2 cannot be applied to leases issued prior to the promulgation of these regulations. They also state that neither of these Resource Management Plans stipulate there will be no surface occupancy at BLM sensitive plant sites.
        Regarding regulation of ORV use, the petitioners state that more than half of the occurrences and total number of plants are exposed to ORV traffic, and that several of the occurrences are in designated open ORV areas on BLM land.

        Regarding regulation of livestock grazing, petitioners cite the example of five Environmental Assessments written for grazing permit renewals in the BLM GJFO management area, in which BLM failed to consider grazing impacts to the plant.

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—The petition does not provide reliable information regarding the ability of the BLM to apply protections to already leased oil and gas areas. The provisions in 43 CFR 1301.1-2 apply to leases issued prior to the adoption of the regulations, because these provisions are considered “consistent with lease rights granted” and, therefore, are not a violation of existing lease rights (Scheck 2006b). While relocation of activities by up to 200 meters (656 feet) may not be adequate to avoid all impacts to large occurrences, it would protect the majority of individuals. Relocation of oil and gas activities also would suffice to avoid direct impacts to smaller occurrences, such as those at Anvil Points.

        Ten of the 13 suboccurrences in the Anvil Points occurrence are found on leases issued in May 1999, following the completion of the Glenwood Springs 1999 Oil and Gas Leasing and Development Record of Decision and Resource Management Plan Amendment (Scheck 2006b). These leases are covered by a Controlled Surface Use stipulation (CSU-3) to protect populations of sensitive plants (BLM GSFO 1999b, p. 12). Each time a new Application for Permit to Drill is received or a Geographic Area Plan is proposed, BLM GSFO requires surveys in areas of potential habitat for special status plants, including Astragalus debequaeus. If populations or individuals are found in the project area, the proposed action is modified, if deemed necessary, to mitigate impacts (Scheck 2006b). When seismic activities were proposed for the Anvil Points area in 2001, surveys were conducted beforehand and all occurrences of A. debequaeus were avoided (Scheck 2006a).

        In the BLM GJFO management area where 13 of the 17 occurrences are located, the standard lease stipulation (43 CFR 1301.1-2) is included in 19 of the 30 leases in the area (see Table 1). The earlier leases also are subject to the same provisions, which are consistent with lease rights granted. Conditions of approval for new Applications for Permits to Drill include surveys of potential habitat for special status plants, including Astragalus debequaeus, and mitigation measures to avoid impacting occupied habitat.
        Regarding regulation of livestock grazing, four of the Environmental Assessments cited by petitioners that were available for review support the petitioner's claim that no specific measures were included for protection of the plant (BLM GJFO 2000, pp. 8-9; BLM GJFO 2001, pp. 7-8; BLM GJFO 2003a, pp. 7-8, 13; BLM GJFO 2003b, p. 6). However, seasoned field biologists, with extensive knowledge of the species and years of site visits to these allotments, signed these assessments after determining that the species was not likely to be adversely affected by the grazing activities. In two of these Environmental Assessments (BLM GJFO 2000, p. 9; BLM GJFO 2001, p. 8), BLM recommended scheduled range monitoring for a subset of the relevant population.

        Regarding ORV use regulation, petitioners assert that few restrictions exist within the range of Astragalus debequaeus. They do not show, nor do we have additional information to indicate, that the level of ORV use in the area presents a need for a higher level of regulation.

        On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing Astragalus debequaeus may be warranted due to the lack of regulation by BLM on oil and gas development, livestock use, or ORV use. Our files show that the BLM routinely considers impacts of its actions on A. debequaeus, and avoids the majority of individual plants and occurrences.

          Information Provided in the Petition Regarding Failure to Designate Areas of Critical Environmental Concern—Petitioners state that BLM has failed to designate additional ACECs to protect this species, and that the existing ACEC does not protect the plants from grazing and ORV activities and impacts, based on one illegal ORV track and permitted grazing.

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—Through the Roan Plateau Resource Management Plan/Final Environmental Impact Statement, the BLM has proposed an ACEC at Anvil Points that would increase protection for the species (BLM GSFO 2006, p. 3-111). This ACEC will be finalized after the Record of Decision is published. The ACEC would protect about 14 percent of the plants in the Anvil Points occurrence (Scheck 2006b; CNHP 2005, pp. 38, 73).

        The Pyramid Rock ACEC in the BLM GJFO management area is being evaluated for grazing and ORV impacts to Astragalus debequaeus and three other species because some habitat damage has occurred (Lincoln and Bridgman 2006, p. 9). This ACEC has been withheld from oil and gas lease offerings.

        On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing Astragalus debequaeus may be warranted due to the lack of protection by BLM through the designation and enforcement of ACECs. The BLM has created the Pyramid Rock ACEC that protects about 150 individuals (CNHP 2005, p. 2). Furthermore, the petition and our files do not contain any evidence that the species requires ACECs to sustain it.

          Information Contained in the Petition Regarding Lack of State Regulatory Mechanisms—Petitioners state that Colorado has no State regulatory mechanisms for protecting rare plant species, and that the Colorado Natural Areas Program is insufficient to protect and provide recovery for Astragalus debequaeus.

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—The Colorado Natural Areas Program collects information on rare plant species, but does not have regulatory authority over habitat development. However, they are working with the BLM GJFO to determine whether fencing would be appropriate for the Pyramid Rock Natural Area (Kurzel 2006). Voluntary conservation agreements for a State Natural Area are most effective on private land, which is a very small percentage of the habitat for this species.

        While we agree that Colorado does not have State regulatory mechanisms for protecting rare plant species, the petitioners and currently available information do not provide information that the species requires any additional regulatory mechanisms to sustain it. On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing Astragalus debequaeus may be warranted due to the inadequacy of existing regulatory mechanisms.
        E. Other Natural or Manmade Factors Affecting the Continued Existence of the Species

          Information Provided in the Petition Regarding Population Size and Range—Petitioners state that limited range, small number of plants, and small number of populations make Astragalus debequaeus vulnerable to anthropogenic impacts, environmental and genetic stochasticity, and climate change. They cite 44 occurrences of the species at 8 sites over a range of 40 to 48 kilometers (25 to 30 miles).

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—We disagree with the assertion that population size, range, and number of populations are so limited that other natural or manmade factors would substantially impact the species. In a 2006 Global Ranking report from CNHP, the occurrence numbers have been revised to 32 documented occurrences, 15 of which are suboccurrences; therefore, 17 (primary) occurrences are currently known to be extant (CNHP 2006, p. 2). The difference in the number of occurrences is based on an update of occurrence delineation protocols, plus the addition of four new occurrences that were added to the CNHP database in 2005 (see Table 1). The total number of plants estimated in 1996 was 68,000. Four new occurrences and a net of 1,205 new plants have been documented by CNHP (2005, pp. 7, 36, 47, 80, 137). In 2006, which had a very dry spring, 6 new suboccurrences containing 3,361 plants were recorded in Atwell Gulch (Lincoln and Bridgman 2006, p. 1). The total estimated number of plants has changed from 68,000 in 1996 to 64,617 in 2006. The difference appears to be due to the method of summarizing the rough estimates from 1996 records. There are no recounts that can be used to precisely compare population sizes and determine whether there has been an actual downward trend in the number of plants. The area of currently known occupied habitat for the 17 occurrences is an estimated 573 hectares (1,417 acres) (CNHP 2006, p. 2). Spackman et al. (1997a, p. 8) concluded that the species occupies most of its available suitable habitat and historical range.

        On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing of Astragalus debequaeus may be warranted due to impacts from other natural or manmade factors.

          Information Provided in the Petition Regarding Transplanting Success—Petitioners state that Astragalus debequaeus does not respond well to transplanting. They cite one unsuccessful attempt to transplant three plants (Trappett 2005).

          Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—The petition provides reliable information regarding the lack of success of transplantation as a mitigation measure in Trappett (2005). We also know of one additional attempt at transplantation. In 2005, 12 individuals were transplanted from a pipeline right-of-way. Two of the transplants died, some flowered in 2006, with none being as robust as undisturbed plants in the vicinity (Alward 2006). Because so few individuals were involved, information from these two transplant attempts does not provide substantial evidence to indicate whether transplanting can be successful in minimizing disturbance effects on the species.

        Although the two known attempts have been of limited or uncertain success, few individuals are subject to transplantation. The BLM prefers impact avoidance over transplantation as a conservation measure. Neither the petitioners nor our files provide substantial information that listing Astragalus debequaeus may be warranted due to the lack of success of transplantation attempts.
        Finding

        We have reviewed the petition and literature cited in the petition and evaluated that information in relation to information available to us. After this review and evaluation, we find that the petition does not present substantial scientific information to indicate that listing Astragalus debequaeus (DeBeque milkvetch) may be warranted at this time.
        Petitioners state that nearly all occurrences are—within oil and gas leases, some with approved permits to drill; on active grazing allotments; open to ORVs; and often near roads and pipelines. However, there are only a very limited number of instances where impacts to the plants have resulted from any documented or potential threats. Further, there is insufficient information in the petition regarding the magnitude of these impacts and no information that suggests that these impacts may have population-level effects.
        The petition is based primarily on claims regarding Factors A and D, both of which are primarily tied to oil and gas development. Since the petition was submitted in 2004, the BLM has taken additional measures to conserve the species in areas within potential oil and gas development areas. They have withheld the Pyramid Rock ACEC from oil and gas leasing, conducted new surveys during the Application for Permit to Drill and grazing allotment renewal reviews, and added standard lease stipulations and controlled use stipulations to new oil and gas leases in the course of developing appropriate management strategies. Monitoring is being implemented to assess the effectiveness of these measures in minimizing impacts to the species as additional development occurs within its habitat.

        Our review of the available information indicated that the species appears to be maintaining its presence in known locations throughout its range. Despite several potential threat factors, the petition and the information in our files do not present substantial information indicating that any factor, nor a combination of factors, suggests the petitioned action, listing as threatened or endangered with critical habitat, may be warranted for Astragalus debequaeus.

        Although we will not commence a status review in response to this petition, we will continue to monitor the Astragalus debequaeus population status and trends, potential threats, and ongoing management actions that might be important with regard to the conservation of the A. debequaeus across its range. We encourage interested parties to continue to gather data that will assist with the conservation of the species. If you wish to provide information regarding A. debequaeus, you may submit your information or materials to the Field Supervisor, Western Colorado Ecological Services Office, U.S. Fish and Wildlife Service (see ADDRESSES section).
        References Cited

        A complete list of all references cited herein is available upon request from the Western Colorado Ecological Services Field Office (see ADDRESSES section).
        Author

        The primary author of this document is Ellen Mayo, U.S. Fish and Wildlife Service, Western Colorado Ecological Services Field Office (see ADDRESSES section).
        Authority

        The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: February 6, 2007.
          Kenneth Stansell,
          Acting Director, Fish and Wildlife Service.

      [FR Doc. E7-2445 Filed 2-13-07; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        RIN 0648-BF42
        Fisheries of the Exclusive Economic Zone Off Alaska; Gulf of Alaska Management Area; Amendment 101

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

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

          SUMMARY:
          The North Pacific Fishery Management Council has submitted Amendment 101 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) to the Secretary of Commerce for review. Amendment 101 to the FMP would authorize the use of longline pot gear in the sablefish individual fishing quota (IFQ) fishery in the Gulf of Alaska (GOA). Amendment 101 is necessary to improve efficiency and provide economic benefits for the sablefish IFQ fleet and minimize potential fishery interactions with whales and seabirds. Amendment 101 is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable laws.

          DATES:
          Submit comments on or before October 7, 2016.

          ADDRESSES:

          You may submit comments on this document, identified by NOAA-NMFS-2015-0126, by any one of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0126, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802.

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

          Electronic copies of Amendment 101 to the FMP, the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis prepared for this action (collectively, Analysis), and the Finding of No Significant Impact prepared for this action may be obtained from http://www.regulations.gov or from the NMFS Alaska Region Web site at http://www.alaskafisheries/noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Rachel Baker, 907-586-7228.

        SUPPLEMENTARY INFORMATION:

        NMFS manages the groundfish fisheries in the Exclusive Economic Zone of the GOA under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.). Regulations implementing the FMP appear at 50 CFR part 679.

        The Magnuson-Stevens Act requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce (Secretary). The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a document in the Federal Register announcing that the amendment is available for public review and comment. This document announces that proposed Amendment 101 to the FMP is available for public review and comment.
        Amendment 101 to the FMP would revise the IFQ Program for sablefish fisheries in the GOA. The IFQ Program for the fixed-gear commercial fisheries for sablefish and halibut in waters in and off Alaska is a limited access privilege program implemented in 1995 (58 FR 59375, November 9, 1993). The IFQ Program limits access to the sablefish and halibut fisheries to those persons holding quota share in specific management areas. The amount of halibut and sablefish that each quota share holder may harvest is calculated annually and is issued as IFQ in pounds.
        The IFQ Program for Pacific halibut is implemented under the authority of the Northern Pacific Halibut Act of 1982. The Council does not have a halibut fishery management plan.
        Amendment 101 would apply to catcher vessels and catcher/processors fishing for sablefish IFQ in the GOA. The sablefish regulatory areas defined for sablefish in the GOA are the Southeast Outside District of the GOA, West Yakutat District of the GOA, Central GOA, and Western GOA. The sablefish regulatory areas are defined and shown in Figure 14 to part 679.
        The FMP currently authorizes only longline gear for the GOA sablefish IFQ fishery. Longline gear includes hook-and-line, jig, troll, and handline gear. Fishery participants have used longline hook-and-line gear (hook-and-line gear) to harvest sablefish IFQ in the GOA because it is more efficient than jig, troll, or handline gear. However, various species of whales can remove or damage sablefish caught on hook-and-line gear (depredation). Depredation occurs with hook-and-line gear because sablefish are captured on hooks that lie on the ocean floor. Whales can completely remove or damage sablefish captured on these hooks before the gear is retrieved. Longline pot gear is an efficient gear and prevents depredation because whales cannot remove or damage sablefish enclosed in a pot.
        Longline pot gear was historically used to harvest sablefish in the GOA. However, under the open access management program race for fish that existed prior to the implementation of the IFQ Program, some vessel operators deployed hook-and-line gear, while other vessel operators deployed pot gear in the same fishing areas. This resulted in gear conflicts and loss of gear on the fishing grounds. The longline pot groundline is heavier and stronger than the groundline used to attach the series of hooks on hook-and-line gear. If longline pot gear is set over previously deployed hook-and-line gear, the weaker hook-and-line gear can be damaged or lost as it is being retrieved. The Council and NMFS have not received reports of gear conflicts between hook-and-line gear. In 1986, NMFS implemented a phased-in prohibition of pot gear in the GOA sablefish fishery (50 FR 43193, October 24, 1985) to minimize potential gear conflicts that occurred during the open access management fishery and prior to the implementation of the IFQ Program.
        Beginning in 2009, the Council and NMFS received reports from sablefish IFQ fisherman that depredation on hook-and-line gear was adversely impacting the sablefish IFQ fleet. Depredation can result in lost catch, additional time waiting for whales to leave fishing grounds before hauling gear, and additional time and fuel spent relocating gear to avoid whales. Depredation also has negative consequences for whales through increased risk of vessel strike, gear entanglement, and altered foraging strategies. While depredation events are difficult to observe because they take place on the ocean floor in deep water, fishery participants have testified to the Council that depredation continues to be a major cost to the GOA sablefish IFQ fishery, and appears to be occurring more frequently.
        Industry groups have tested a variety of methods to deter whales from preying on fish caught on hook-and-line gear, such as gear modifications and acoustic decoys, but these methods have not substantially reduced the problem of depredation in the GOA sablefish IFQ fishery.
        In April 2015, the Council recommended Amendment 101 to authorize longline pot gear for use in the sablefish IFQ fishery in the GOA. Amendment 101 would amend Sections 3.2.3.4.3.3.1, 3.4.1, 3.4.2, 3.6.2, 3.7.1.1, 3.7.1.7, and 4.1.2.3 of the FMP to authorize longline pot gear to harvest sablefish in the GOA sablefish IFQ fishery. Amendment 101 would make minor editorial revisions to the Executive Summary and Appendix A of the FMP to list and describe Amendment 101.

        Amendment 101 would authorize, but not require, a harvester to use longline pot gear in the GOA sablefish IFQ fishery. Providing fishermen with the opportunity to use longline pot gear would reduce the adverse impacts of depredation for fishermen who choose to use longline pot gear.

        Amendment 101 is necessary to (1) improve efficiency in harvesting sablefish IFQ and reduce adverse economic impacts on harvesters that occur from depredation, and (2) reduce sablefish IFQ fishery interactions with whales and seabirds.
        Amendment 101 would reduce the adverse impacts of depredation for those harvesters who choose to switch to longline pot gear from hook-and-line gear. These harvesters would benefit from reduced operating costs and reduced fishing time needed to harvest sablefish IFQ. Amendment 101 would provide individual harvesters with the option to use longline pot gear if they determine it is appropriate for their fishing operation. Amendment 101 would reduce the associated risks to whales including vessel strikes, gear entanglement, and altered foraging strategies. The Analysis for Amendment 101 indicates that authorizing longline pot gear is expected to have a positive effect on killer whales and sperm whales from reduced interactions with fishing gear.
        In recommending Amendment 101, the Council recognized that pot gear had previously been authorized in the GOA sablefish fishery, but its use was prohibited prior to implementation of the IFQ Program due to conflicts between hook-and-line and pot gear on the fishing grounds. The Council and NMFS agree that authorizing longline pot gear in the GOA sablefish IFQ fishery under Amendment 101 is appropriate because the fishery is managed under the IFQ Program. The IFQ Program provides fishermen with substantially more flexibility on when and where to harvest sablefish compared to the open access management program prior to implementation of the IFQ Program. The IFQ Program makes it unlikely that hook-and-line and longline pot gear conflicts would occur or that fishing grounds would be preempted for extended periods in the same manner previously analyzed by the Council and NMFS.
        Amendment 101 would reduce fishing interactions with seabirds. Fishing interactions can result in direct mortality for seabirds if they become entangled in fishing gear or strike the vessel or fishing gear while flying. Hook-and-line gear has the greatest impact on seabirds relative to other fishing gear. Although seabird mortality in the GOA sablefish IFQ fishery makes up a very small portion of total estimated seabird mortality from fisheries in Alaska, the Analysis determined that Amendment 101 would reduce incidental catch of seabirds in the GOA sablefish IFQ fishery. Amendment 101 would provide vessel operators with the opportunity to use longline pot gear, which has a lower rate of incidental catch of seabirds than hook-and-line gear.

        NMFS is soliciting public comments on proposed Amendment 101 through the end of the comment period (see DATES). NMFS intends to publish in the Federal Register and seek public comment on a proposed rule that implements Amendment 101 following NMFS' evaluation of the proposed rule under the Magnuson-Stevens Act. NMFS will consider all comments received by the end of the comment period on Amendment 101, whether specifically directed to the FMP amendment or its implementing proposed rule, in the approval/disapproval decision on Amendment 101. NMFS will not consider comments received after that date in the approval/disapproval decision on the amendment. To be considered, comments must be received, not just postmarked or otherwise transmitted, by the close of business on the last day of the comment period.

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

          Dated: August 3, 2016.
          Emily H. Menashes,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2016-18745 Filed 8-5-16; 8:45 am]
       BILLING CODE 3510-22-P


        DEPARTMENT OF TRANSPORTATION
        Surface Transportation Board
        49 CFR Part 1137
        [STB Ex Parte No. 637 (Sub-No. 1)]
        Removal of Divisions of Revenue Regulations

          AGENCY:
          Surface Transportation Board, DOT.

          ACTION:
          Notice of proposed rulemaking; correction of prior document.

          SUMMARY:

          The Surface Transportation Board (Board) is correcting its prior document by adding an ADDRESSES caption.

          DATES:
          Comments are due June 5, 2003.

          ADDRESSES:
          Send an original and 10 copies of comments referring to “Ex Parte No. 637 (Sub-No. 1)” to: Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001.

          FOR FURTHER INFORMATION CONTACT:
          John Sado, (202) 565-1661. [Federal Information Relay Service for the hearing impaired: 1-800-877-8339.]

        SUPPLEMENTARY INFORMATION:

        On May 6, 2003, at 68 FR 23947-23948, the Board published a notice of proposed rulemaking in this proceeding seeking comments but inadvertently omitting the ADDRESSES caption. The Board is here correcting that omission by including the relevant address information.

          Dated: May 8, 2003.

          By the Board, Vernon A. Williams, Secretary.
          Vernon A. Williams,
           Secretary.

      [FR Doc. 03-12001 Filed 5-13-03; 8:45 am]
      BILLING CODE 4915-00-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 171023999-8015-01]
        RIN 0648-BH31
        Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2018 Tribal Fishery for Pacific Whiting

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS issues this proposed rule for the 2018 Pacific whiting fishery under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP), the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and the Pacific Whiting Act of 2006. This proposed rule would allocate 17.5 percent of the U.S. Total Allowable Catch (TAC) of Pacific whiting for 2018 to Pacific Coast Indian tribes that have a Treaty right to harvest groundfish.

          DATES:
          Comments on this proposed rule must be received no later than February 23, 2018.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2017-0160, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0160, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Barry A. Thom., Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Frank Lockhart.

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

          Additional background information and documents are available at the NMFS West Coast Region website at http://www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html and at the Pacific Fishery Management Council's website at http://www.pcouncil.org/. Comments from the public may be viewed on Regulations.gov.

          FOR FURTHER INFORMATION CONTACT:
          Frank Lockhart, phone: 206-526-6142, and email: Frank.Lockhart@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        Background
        The regulations at 50 CFR 660.50(d) outline the procedures for implementing the treaty rights that Pacific Coast treaty Indian tribes have to harvest groundfish in their usual and accustomed fishing areas in U.S. waters. Section 660.50(d) establishes the process by which the tribes with treaty fishing rights in the area covered by the FMP request allocations, set-asides, or regulations specific to the tribes, in writing, during the biennial harvest specifications and management measures process. The regulations state that the Secretary will develop tribal allocations and regulations in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus. The procedures NMFS employs in implementing tribal treaty rights under the FMP were designed to provide a framework process by which NMFS can accommodate tribal treaty rights by setting aside appropriate amounts of fish in conjunction with the Pacific Fishery Management Council process for determining harvest specifications and management measures.
        Since the FMP has been in place, NMFS has been allocating a portion of the U.S. TAC (called Optimum Yield (OY) or Annual Catch Limit (ACL) prior to 2012) of Pacific whiting to the tribal fishery, following the process established in 50 CFR 660.50(d). The tribal allocation is subtracted from the U.S. Pacific whiting TAC before allocation to the non-tribal sectors.

        There are four tribes that can participate in the tribal Pacific whiting fishery: The Hoh Tribe, the Makah Tribe, the Quileute Tribe and the Quinault Indian Nation (collectively, the “Treaty Tribes”). The Hoh Tribe has not expressed an interest in participating to date. The Quileute Tribe and Quinault Indian Nation have expressed interest in commencing participation in the Pacific whiting fishery. However, to date, only the Makah Tribe has prosecuted a tribal fishery for Pacific whiting. They have harvested Pacific whiting since 1996 using midwater trawl gear. Tribal allocations have been based on discussions with the Tribes regarding their intent for those fishing years. Table 1 below provides a history of U.S. TACs and annual tribal allocation in metric tons (mt).

          Table 1—U.S. Total Allowable Catch and Annual Tribal Allocation in Metric Tons (mt)

            Year
            U.S. TAC 1

            Tribalallocation

            2007
            242,591 mt
            35,000 mt.

            2008
            269,545 mt
            35,000 mt.

            2009
            135,939 mt
            50,000 mt.

            2010
            193,935 mt
            49,939 mt.

            2011
            290,903 mt
            66,908 mt.

            2012
            186,037 mt
            48,556 mt.

            2013
            269,745 mt
            63,205 mt.

            2014
            316,206 mt
            55,336 mt.

            2015
            325,072 mt
            56,888 mt.

            2016
            367,553 mt
            64,322 mt.

            2017
            441,433 mt
            77,251 mt.

            1 Beginning in 2012, the United States started using the term Total Allowable Catch, or TAC, based on the Agreement between the Government of the United States of America and the Government of Canada on Pacific Hake/Whiting. Prior to 2012, the terms Optimal Yield (OY) and Annual Catch Limit (ACL) were used.

        In 2009, NMFS, the states of Washington and Oregon, and the Treaty Tribes started a process to determine the long-term tribal allocation for Pacific whiting; however, no long-term allocation has been determined. In order to ensure Treaty Tribes continue to receive allocations, this rule proposes the 2018 tribal allocation of Pacific whiting. This allocation is not intended to set precedent for allocations in future years.
        Tribal Allocation for 2018
        In exchanges between NMFS and the Treaty Tribes during 2017, the Makah Tribe indicated their intent to participate in the tribal Pacific whiting fishery in 2018, and requested 17.5 percent of the U.S. TAC. The Quinault Indian Nation informed the Region that they will not participate in the 2018 fishery. Quileute Indian Tribe has not responded to inquiries about their whiting fishing intent for 2018, and has not pursued a whiting fishery to date. The Hoh Indian Tribe has in previous years indicated in conversation with Frank Lockhart, Groundfish & Coastal Pelagic Species Senior Policy Advisor at NMFS, that they have no plans to fish for whiting in the foreseeable future and will contact NMFS if that changes. NMFS will again contact the tribes during the proposed rule comment period to refine, if necessary, the 2017 allocation before a final decision is made. NMFS proposes a tribal allocation that accommodates the Makah request, specifically 17.5 percent of the U.S. TAC. NMFS believes that the current scientific information regarding the distribution and abundance of the coastal Pacific whiting stock suggests that the 17.5 percent is within the range of the tribal treaty right to Pacific whiting.
        The Joint Management Committee, which was established pursuant to the Agreement between the United States and Canada on Pacific Hake/Whiting (the Agreement), is anticipated to recommend the coastwide and corresponding U.S./Canada TACs no later than March 25, 2018. The U.S. TAC is 73.88 percent of the coastwide TAC. Until this TAC is set, NMFS cannot propose a specific amount for the tribal allocation. The Pacific whiting fishery typically begins in May, and the final rule establishing the Pacific whiting specifications for 2018 is anticipated to be published by early May. Therefore, in order to provide for public input on the tribal allocation, NMFS is issuing this proposed rule without the final 2018 TAC. However, to provide a basis for public input, NMFS is describing a range of potential tribal allocations in this proposed rule, applying the proposed approach to determining the tribal allocation to a range of potential TACs derived from past harvest levels.
        In order to project a range of potential tribal allocations for 2018, NMFS is applying its proposed approach to determining the tribal allocation to the range of U.S. TACs over the last 10 years, 2008 through 2017 (plus or minus 25 percent to capture variability in stock abundance). The range of U.S. TACs in that time period was 135,939 mt (2009) to 441,433 mt (2017). Applying the 25 percent variability results in a range of potential TACs of 101,954 mt to 551,791 mt for 2018. Therefore, using the proposed allocation rate of 17.5 percent, the potential range of the tribal allocation for 2018 would between 17,842 and 96,563 mt.

        This proposed rule would be implemented under authority of section 305(d) of the Magnuson-Stevens Act, which gives the Secretary responsibility to “carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act.” With this proposed rule, NMFS, acting on behalf of the Secretary, would ensure that the FMP is implemented in a manner consistent with treaty rights of four Treaty Tribes to fish in their “usual and accustomed grounds and stations” in common with non-tribal citizens. United States v. Washington, 384 F. Supp. 313 (W.D. 1974).
        Classification
        NMFS has preliminarily determined that the management measures for the 2018 Pacific whiting tribal fishery are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. In making the final determination, NMFS will take into account the data, views, and comments received during the comment period.
        The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866. This proposed rule is not expected to be an Executive Order 13771 regulatory action because this proposed rule is not significant under Executive Order 12866.
        As required by section 603 of the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was prepared. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS.
        Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. A small organization is any nonprofit enterprise that is independently owned and operated and is not dominant in its field. Small governmental jurisdictions such as governments of cities, counties, towns, townships, villages, school districts, or special districts are considered small jurisdictions if their populations are less than 50,000. The Small Business Administration has established size criteria for entities involved in the fishing industry that qualify as small businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates) and if it has combined annual receipts, not in excess of $11 million for all its affiliated operations worldwide (see 80 FR 81194, December 29, 2015). A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 750 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide. For purposes of rulemaking, NMFS is also applying the seafood processor standard to catcher processors because Pacific whiting Catcher-Processors (C/Ps) earn the majority of the revenue from processed seafood product.

        This proposed rule would affect how Pacific whiting is allocated to the following sectors/programs: Tribal, Shorebased Individual Fishing Quota (IFQ) Program Trawl Fishery, Mothership (MS) Coop Program—Whiting At-sea Trawl Fishery, and C/P Coop Program—Whiting At-sea Trawl Fishery. The amount of Pacific whiting allocated to these sectors is based on the U.S. TAC.
        Currently, the Shorebased IFQ Program is composed of 180 Quota Share permits/accounts, 154 vessel accounts, and 47 first receivers, only a portion of which participate in the Pacific whiting fishery, listed below. These regulations also directly affect participants in the MS Coop Program, a general term to describe the limited access program that applies to eligible harvesters and processors in the MS sector of the Pacific whiting at-sea trawl fishery. This program currently consists of six MS processor permits, and a catcher vessel fleet currently composed of a single coop, with 34 Mothership/Catcher Vessel (MS/CV) endorsed permits (with three permits each having two catch history assignments). These regulations also directly affect the C/P Coop Program, composed of 10 C/P endorsed permits owned by three companies that have formed a single coop. These co-ops are considered large entities from several perspectives; they have participants that are large entities, and have in total more than 750 employees worldwide including affiliates. Although there are three non-tribal sectors, many companies participate in two sectors and some participate in all three sectors. As part of the permit application processes for the non-tribal fisheries, based on a review of the Small Business Administration size criteria, permit applicants are asked if they considered themselves a “small” business, and they are asked to provide detailed ownership information. After accounting for cross participation, multiple QS account holders, and affiliation through ownership, NMFS estimates that there are 103 non-tribal entities directly affected by these proposed regulations, 89 of which are considered “small” businesses. We also expect one tribal entity to fish in 2018. Tribes are not considered small entities for the purposes of RFA.
        This rule will allocate fish between tribal and non-tribal harvesters (a mixture of small and large businesses). Tribal fisheries consist of a mixture of fishing activities that are similar to the activities that non-tribal fisheries undertake. Tribal harvests are delivered to both shoreside plants and motherships for processing. These processing facilities also process fish harvested by non-tribal fisheries. The effect of the tribal allocation on non-tribal fisheries will depend on the level of tribal harvests relative to their allocation and the reapportionment process. If the tribes do not harvest their entire allocation, there are opportunities during the year to reapportion unharvested tribal amounts to the non-tribal fleets. For example, in 2017 NMFS reapportioned 41,000 mt of the original 77,251 mt tribal allocation. This reapportionment was based on conversations with the tribes and the best information available at the time, which indicated that this amount would not limit tribal harvest opportunities for the remainder of the year. In 2017, the tribal Pacific whiting catch was approximately 6,000 mt in a fishery that spanned early August to December and delivered to a shoreside processing plant. This reapportioning process allows unharvested tribal allocations of Pacific whiting to be fished by the non-tribal fleets, benefitting both large and small entities. The revised Pacific whiting allocations for 2017 following the reapportionment were: Tribal 36,251 mt, C/P Coop 137,252 mt; MS Coop 96,884 mt; and Shorebased IFQ Program 169,547 mt.
        The prices for Pacific whiting are largely determined by the world market because most of the Pacific whiting harvested in the U.S. is exported. The U.S. Pacific whiting TAC is highly variable, as have subsequent harvests and ex-vessel revenues. For the years 2011 to 2016, the total Pacific whiting fishery (tribal and non-tribal) averaged harvests of approximately 292,000 mt annually. As of October 23, 2017, the U.S. fishery had an unprecedentedly high catch of almost 320,000 mt from the all-time high TAC of 441,433 mt.
        In 2015, the MS whiting fleet had $6.8 million in revenue, generated $19.1 million in income, and supported 461 jobs on the West Coast. The C/P fleet generated $7.1 million in revenue, driving $88.8 million in income and supporting 1,670 jobs. However, in 2015, bycatch constraints, anomalous ocean conditions, and a Russian import ban contributed to atypically low harvests and revenues and a historic low attainment of a high TAC. With similarly high (and increasing) TACs, attainment remained at average levels in 2014, 2016, and 2017. Thus, economic results from the 2015 season, the last year for which detailed economic data are available, are not a reasonable forecast of the 2018 season.
        Until 2016 economic data are available, this makes the 2014 season the last representative year for which detailed economic information is available. In 2014, the MS fleet had $46.4 million in wholesale revenue, and generated $42 million in income and supported 926 jobs on the west coast from Pacific whiting (2014 Economic Data Collection (EDC) Mothership Report). The C/P fleet, which had $99.2 million in wholesale revenue in 2014, generated $142 million in income and supported 1,895 jobs on the west coast from Pacific whiting (2014 Economic Data Collection (EDC) C/P Report). In 2014, eight shoreside Pacific whiting companies processed 61,000 mt of Pacific whiting, for a wholesale revenue of $71 million. The number of companies processing shoreside did not change in 2015.
        Impacts to Makah catcher vessels who elect to participate in the tribal fishery are measured with an estimate of ex-vessel revenue. In lieu of more complete information on tribal deliveries, total ex-vessel revenue is estimated with the 2016 average IFQ ex-vessel price of Pacific whiting, which was $165 per mt. At that price, the proposed 2018 Tribal allocation (potentially 17,842-96,563 mt) would have an ex-vessel value between $2.9 million and $15.9 million.
        NMFS considered two alternatives for this action: The “No-Action” and the “Proposed Action.” NMFS did not consider a broader range of alternatives to the proposed allocation because the tribal allocation is based primarily on the requests of the tribes, and these requests reflect the level of participation in the fishery that will allow them to exercise their treaty right to fish for Pacific whiting. Consideration of a percentage lower than the tribal request of 17.5 percent is not appropriate in this instance. As a matter of policy, NMFS has historically supported the harvest levels requested by the tribes. Based on the information available to NMFS, the tribal request is within their tribal treaty rights. A higher percentage would arguably also be within the scope of the treaty right. However, a higher percentage would unnecessarily limit the non-tribal fishery.
        Under the Proposed Action alternative, NMFS proposes to set the tribal allocation percentage at 17.5 percent, as requested by the tribes. This would yield a tribal allocation of between 17,842 and 96,563 mt for 2018.

        Under the no-action alternative, NMFS would not make an allocation to the tribal sector. This alternative was considered, but the regulatory framework provides for a tribal allocation on an annual basis only. Therefore, the no-action alternative would result in no allocation of Pacific whiting to the tribal sector in 2018, which would be inconsistent with NMFS' responsibility to manage the fishery consistent with the tribes' treaty rights. Given that there is a tribal request for allocation in 2018, this alternative received no further consideration.

        NMFS believes this proposed rule would not adversely affect small entities. The reapportioning process allows unharvested tribal allocations of Pacific whiting, fished by small entities, to be fished by the non-tribal fleets, benefitting both large and small entities. NMFS has prepared an IRFA and is requesting comments on this conclusion. See ADDRESSES.
        There are no reporting, recordkeeping or other compliance requirements in the proposed rule.
        No Federal rules have been identified that duplicate, overlap, or conflict with this action.
        Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Consistent with the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, NMFS has coordinated specifically with the tribes interested in the Pacific whiting fishery regarding the issues addressed by this rule.

          List of Subjects in 50 CFR Part 660
          Fisheries, Fishing, Indian fisheries.

          Dated: January 18, 2018.
          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 660 is proposed to be amended as follows:

          PART 660—FISHERIES OFF WEST COAST STATES

        1. The authority citation for part 660 continues to read as follows:

          Authority:
           16 U.S.C. 1801 et seq. and 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

        2. In § 660.50, revise paragraph (f)(4) to read as follows:

          § 660.50
           Pacific Coast treaty Indian fisheries.

          (f) * * *
          (4) Pacific whiting. The tribal allocation for 2018 will be 17.5 percent of the U.S. TAC.

      [FR Doc. 2018-01182 Filed 1-23-18; 8:45 am]
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