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List of Subjects in 50 CFR Part 17 ACTION: 90-day petition finding; request SUPPLEMENTARY INFORMATION: for comments, and initiation of a status Endangered and threatened species, Background Exports, Imports, Reporting and review. On September 7, 2010, we received a recordkeeping requirements, SUMMARY: We (NMFS and USFWS; also petition from WildEarth Guardians and Transportation. collectively referred to as the Services) Ms. Sarah Felsen to list the saltmarsh Proposed Regulation Promulgation announce a 90-day finding on a petition topminnow (Fundulus jenkinsi) as to list the saltmarsh topminnow For the reasons given in the preamble threatened or endangered under the (topminnow; Fundulus jenkinsi) as of the emergency rule listing the Miami ESA and to list the species under the threatened or endangered under the emergency listing provisions of the ESA blue butterfly (Cyclargus thomasi Endangered Species Act (ESA). We find bethunebakeri) as endangered and the (16 U.S.C. 1533(b)(7)) owing to that the petition presents substantial perceived threats from the Deepwater cassius blue butterfly (Leptotes cassius scientific information indicating that the theonus), ceraunus blue butterfly Horizon oil spill. Copies of this petition petitioned action may be warranted. We are available from us (see ADDRESSES, (Hemiargus ceraunus antibubastus), and will conduct a status review of the nickerbean blue butterfly (Cyclargus above). species to determine if the petitioned Since the petition was sent to both ammon) as threatened due to similarity action is warranted. To ensure that the NMFS and USFWS, and we both had of appearance, published concurrently status review is comprehensive, we are information in our files concerning the in the Rules and Regulations section of soliciting scientific and commercial data species, we are jointly responding to the this issue of the Federal Register, we on the species (see below). 90-day finding. The species’ salt marsh, propose to amend part 17, subchapter B DATES: Information and comments on estuarine habitat falls within an area of chapter I, title 50 of the Code of the subject action must be received by where both NMFS and FWS manage Federal Regulations, as set forth below: October 11, 2011. species. USFWS will be responsible for PART 17—[AMENDED] ADDRESSES: You may submit conducting the 12-month finding and information by one of the following determining if listing the saltmarsh 1. The authority citation for part 17 methods: topminnow is warranted and has agreed continues to read as follows: Federal eRulemaking Portal: http:// to assume sole jurisdiction from this Authority: 16 U.S.C. 1361–1407; 16 U.S.C. www.regulations.gov. In the box that point forward. 1531–1544; 16 U.S.C. 4201–4245; Public Law reads ‘‘Enter Keyword or ID,’’ enter the ESA Statutory, Regulatory, and Policy 99–625, 100 Stat. 3500; unless otherwise Docket number for this finding, which Provisions and Evaluation Framework noted. is 110110016–1039–01. Check the box 2. This document proposes to that reads ‘‘Open for Comment/ Section 4(b)(3)(A) of the ESA, as establish the provisions of the Submission,’’ and then click the Search amended (16 U.S.C. 1531 et seq.), emergency rule published elsewhere (in button. You should then see an icon that requires that, to the maximum extent this issue of the Federal Register) as a reads ‘‘Submit a Comment.’’ Please practicable, within 90 days of receipt of final rule. ensure that you have found the correct a petition to list a species as threatened rulemaking before submitting your or endangered the Services make a Dated: July 27, 2011. comment. finding on whether that petition Gregory E. Siekaniec, U.S. mail or hand-delivery: Public presents substantial scientific or Acting Director, U.S. Fish and Wildlife Comments Processing, Attn: commercial information indicating that Service. 110110016–1039–01; Division of Policy the petitioned action may be warranted, [FR Doc. 2011–19818 Filed 8–9–11; 8:45 am] and Directives Management; U.S. Fish and to promptly publish such finding in BILLING CODE 4310–55–P and Wildlife Service; 4401 N. Fairfax the Federal Register (16 U.S.C. Drive, MS 2042–PDM; Arlington, VA 1533(b)(3)(A)). When it is found that 22203. substantial scientific or commercial DEPARTMENT OF COMMERCE We will post all information we information in a petition indicates the receive on http://www.regulations.gov. petitioned action may be warranted (a National Oceanic and Atmospheric This generally means that we will post ‘‘positive 90-day finding’’), we are Administration any personal information you provide required to promptly commence a us. review of the status of the species DEPARTMENT OF THE INTERIOR Copies of the petition and related concerned during which we will materials are available upon request conduct a comprehensive review of the Fish and Wildlife Service from the Assistant Regional best available scientific and commercial Administrator, Protected Resources information. In such cases, we shall 50 CFR Parts 17 and 224 Division, Southeast Regional Office, conclude the review with a finding as to [Docket No. 110110016–1039–01] NMFS, 263 13th Avenue South, St. whether, in fact, the petitioned action is Petersburg, FL 33701; Project Leader, warranted. Because the finding at the RIN 0648–XA144 USFWS, Panama City Ecological 12-month stage is based on a more Services Office, 1601 Balboa Ave., thorough review of the available Endangered and Threatened Wildlife; Panama City, FL 32405; or online at: 90-Day Finding on a Petition To List information, as compared to the narrow http://www.nmfs.noaa.gov/pr/species/ scope of review at the 90-day stage, a the Saltmarsh Topminnow as esa/other.htm Threatened or Endangered Under the ‘‘may be warranted’’ finding does not FOR FURTHER INFORMATION CONTACT: Endangered Species Act prejudge the outcome of the status Jason Rueter, NMFS Southeast Region, review. AGENCY: National Marine Fisheries (727) 824–5312, Dwayne Meadows, Under the ESA, a listing Service (NMFS), National Oceanic and NMFS Office of Protected Resources, determination may address a ‘‘species,’’ Atmospheric Administration (NOAA), (301) 713–1401, or Catherine Phillips, which is defined to also include Commerce; United States Fish and FWS, Panama City Ecological Services subspecies and, for any vertebrate Wildlife Service (USFWS), Interior. Office, (850) 769–0552. species, any distinct population

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segment (DPS) that interbreeds when We evaluate the petitioner’s request impacts and threats identified in section mature (16 U.S.C. 1532(16)). A species, based upon the information in the 4(a)(1). subspecies, or DPS is ‘‘endangered’’ if it petition including its references, and the Information presented on impacts or is in danger of extinction throughout all information readily available in our threats should be specific to the species or a significant portion of its range, and files. We do not conduct additional and should reasonably suggest that one ‘‘threatened’’ if it is likely to become research, and we do not solicit or more of these factors may be endangered within the foreseeable information from parties outside the operative threats that act or have acted future throughout all or a significant agency to help us in evaluating the on the species to the point that it may portion of its range (ESA sections 3(6) petition. We will accept the petitioner’s warrant protection under the ESA. and 3(20), respectively, 16 U.S.C. sources and characterizations of the Broad statements about generalized 1532(6) and (20)). Pursuant to the ESA information presented, if they appear to threats to the species, or identification and our implementing regulations, we be based on accepted scientific of factors that could negatively impact determine whether species are principles, unless we have specific a species, do not constitute substantial threatened or endangered because of information in our files that indicates information that listing may be any one or a combination of the the petition’s information is incorrect, warranted. We look for information following five section 4(a)(1) factors: (1) unreliable, obsolete, or otherwise indicating that not only is the particular The present or threatened destruction, irrelevant to the requested action. species exposed to a factor, but that the modification, or curtailment of habitat Information that is susceptible to more species may be responding in a negative or range; (2) overutilization for than one interpretation or that is fashion; then we assess the potential commercial, recreational, scientific, or contradicted by other available significance of that negative response. educational purposes; (3) disease or information will not be dismissed at the Many petitions identify risk predation; (4) inadequacy of existing 90-day finding stage, so long as it is classifications made by other regulatory mechanisms; and/or (5) any reliable and a reasonable person would organizations or agencies, as evidence of other natural or manmade factors conclude it supports the petitioner’s extinction risk for a species. Risk affecting the species’ existence (16 assertions. In other words, conclusive classifications of the petitioned species U.S.C. 1533(a)(1), 50 CFR 424.11(c)). information indicating the species may by other organizations or made under ESA-implementing regulations issued meet the ESA’s requirements for listing other Federal or state statutes may be jointly by NMFS and the USFWS (50 is not required to make a positive 90- informative, but the classification alone CFR 424.14(b)) define ‘‘substantial day finding. We will not conclude that may not provide the rationale for a information’’ in the context of reviewing a lack of specific information alone positive 90-day finding under the ESA. a petition to list, delist, or reclassify a negates a positive 90-day finding, if a For example, as explained by NatureServe, a non-profit conservation species as the amount of information reasonable person would conclude that organization spun-off from state natural that would lead a reasonable person to the unknown information itself suggests heritage programs and The Nature believe that the measure proposed in the an extinction risk of concern for the Conservancy that provides scientific petition may be warranted. In evaluating species at issue. whether substantial information is status rankings and assessments for at- contained in a petition, the Secretary To make a 90-day finding on a risk species, its assessments of a species’ must consider whether the petition: (1) petition to list a species, we evaluate conservation status do ‘‘not constitute a Clearly indicates the administrative whether the petition presents recommendation by NatureServe for measure recommended and gives the substantial scientific or commercial listing under the U.S. Endangered scientific and any common name of the information indicating the subject Species Act’’ because NatureServe species involved; (2) contains detailed species may be either threatened or assessments ‘‘have different criteria, narrative justification for the endangered, as defined by the ESA. First evidence requirements, purposes and recommended measure, describing, we evaluate whether the information taxonomic coverage than government based on available information, past and presented in the petition, along with the lists of endangered and threatened present numbers and distribution of the information readily available in our species, and therefore these two types of species involved and any threats faced files, indicates that the petitioned entity lists should not be expected to by the species; (3) provides information constitutes a ‘‘species’’ eligible for coincide.’’ (http://www.natureserve.org/ regarding the status of the species over listing under the ESA. Next, we evaluate prodServices/statusAssessment.jsp). all or a significant portion of its range; whether the information indicates that Thus, when a petition cites such and (4) is accompanied by the the species at issue faces extinction risk classifications, we will evaluate the appropriate supporting documentation that is cause for concern; this may be source information upon which the in the form of bibliographic references, indicated in information expressly classification is based in light of the reprints of pertinent publications, discussing the species’ status and standards on extinction risk and copies of reports or letters from trends, or in information describing impacts or threats discussed above. authorities, and maps (50 CFR impacts and threats to the species. We Distribution and Life History of 424.14(b)(2)). evaluate any information on specific Court decisions have clarified the demographic factors pertinent to Saltmarsh Topminnow appropriate scope and limitations of the evaluating extinction risk for the species The saltmarsh topminnow is one of Services’ review of petitions at the 90- at issue (e.g., population abundance and the smallest members of the Fundulidae day finding stage, in making a trends, productivity, spatial structure, family; individuals are typically smaller determination that a petitioned action age structure, sex ratio, diversity, than 45 mm long. The topminnow has ‘‘may be’’ warranted. As noted in the current and historical range, habitat cross-hatching on its back and sides that discussion of 12-month findings above, integrity or fragmentation), and the may be gray-green. Most individuals these decisions hold that a petition need potential contribution of identified have 12 to13 dark round spots arranged not establish a ‘‘strong likelihood’’ or a demographic risks to extinction risk for in rows along their sides from above the ‘‘high probability’’ that a species is the species. We then evaluate the pectoral fin to the base of the caudal fin. either threatened or endangered to potential links between these Sexual dimorphism amongst support a positive 90-day finding. demographic risks and the causative topminnows includes a longer median

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fin length in males and a lemon-yellow topminnow’s endangerment is habitat Florida, claiming the State’s protective color on the anterior base of the male’s degradation. The petition also asserts measures are insufficient to protect the anal fin. The male’s dorsal fin develops that the species’ biological constraints, species as a whole. Mississippi lists the a deep orange over the entire fin, a such as small population size and its species as a Species of Greatest slight orange tint to the caudal fin, and reproductive traits, increase its risk of Conservation Need in its ‘‘Estuarine a bright yellow on the pelvic fins. extinction. The petition cites coastal Bays, Lakes, and Tidal Streams’’ habitat Mature females have a sheath on the development, levee and canal subtype. The state identifies five high anterior base of the anal fin used to construction, and pollution as the and five medium level threats to this position eggs during spawning. There is threats cumulatively leading to the habitat subtype. However, this listing no chromatic coloring in females decline of saltmarsh habitat. According provides no legal protection to the (Thompson, 1980; 1999). to the petition, at least three of the five species. Finally, Louisiana also lists the Topminnows’ average lifespan is only causal factors in section 4(a)(1) of the saltmarsh topminnow as a Species of 1 to 2 years. Individuals are relatively ESA are, in combination, adversely Greatest Conservation Need, though this isolated and live their lives in a small affecting the continued existence of the too offers no legal protection. physical area. The reproductive biology saltmarsh topminnow, as follows: (A) NatureServe classifies saltmarsh of the topminnow is not well studied, present or threatened destruction, topminnow as ‘‘vulnerable’’. but current research shows the modification, or curtailment of its NatureServe’s ‘‘vulnerable’’ topminnow to be in reproductive habitat or range; (D) inadequacy of classification category is given to condition from March through August, existing regulatory mechanisms; and (E) species that are ‘‘at moderate risk of but spawning may also occur earlier other natural or manmade factors, extinction or elimination due to a (Peterson and Lopez, 2008). Spawning particularly the fish’s low reproductive restricted range, relatively few probably occurs only once in an rate. populations, recent and widespread individual’s lifetime, but females declines, or other factors.’’ NatureServe produce several hundred eggs during Information on Extinction Risk and specifically cites ‘‘patchy distribution that reproductive cycle (Thompson, Status within a small range along the coast of 1999). The petition cites classifications made the Gulf of Mexico; may be declining The topminnow prefers the brackish by NMFS, the states of Florida, due to pollution and habitat destruction; environment of Spartina alterniflora Louisiana, and Mississippi, and and local populations are relatively and Juncus roemerianus saltmarsh NatureServe to support its assertion that vulnerable to extirpation with a reduced habitats. The fish are most common in the saltmarsh topminnow is imperiled. capacity for re-colonization,’’ as reasons small, shallow tidal meanders of the In 1991, NMFS added the saltmarsh for its vulnerable classification of the saltmarsh with salinities of 1–4 parts topminnow to our Candidate Species saltmarsh topminnow. per thousand (ppt); while marsh List. In 2004, NMFS created the Species The petition also describes habitats that appear appropriate, but of Concern list (69 FR 19975; April 15, demographic factors specific to the had mean salinities of 17 ppt did not 2004) to encompass species for which saltmarsh topminnow that could be contain topminnows (Thompson, 1980; we have some concerns regarding their indicative of its extinction risk, for Peterson et al., 2003). In addition to status and threats, but for which which the petition provides supporting salinity, water depth, bank slope, and insufficient information is available to information. These include a declining plant stem density may influence indicate a need to list the species under population trend with sparse distribution of the topminnow. the ESA. Twenty-five candidate species, individuals in some locations and a Topminnows are found in this type of including the saltmarsh topminnow, contraction of the historical range. The saltmarsh habitat along the northern were transferred to the Species of petition also asserts that small sizes of Gulf of Mexico from the Escambia River Concern list at that time because they adult populations of the saltmarsh (Florida) to Galveston Bay (Texas) were not being considered for ESA topminnow are contributing to the (Gilbert and Relyea, 1992). listing and were better suited for species’ extinction risk, citing Species of Concern status due to some information on the species rarity or Analysis of the Petition concerns and uncertainty regarding absence in reports of most fish studies We evaluated whether the petition their biological status and threats. The of the northern Gulf of Mexico. The presented the information indicated in Species of Concern status does not carry petition references the generally 50 CFR 424.14(b)(2). The petition states any procedural or substantive understood natural rarity of the species the administrative measures protections under the ESA. Our (e.g., citing Lee et al., 1980). However, recommended, and provides the rationale for including the saltmarsh rarity alone is not an indication that the scientific and common name of the topminnow on the species of concern saltmarsh topminnow faces an species. The petition includes a detailed list included a potential population extinction risk that is cause for concern. narrative justification for the decline and threats from habitat A species’ rarity could be cause for recommended measure, including some alteration, dredging, and marsh erosion. concern if the species was distributed in information on numbers of the species, The state of Florida lists the saltmarsh small, isolated populations, or had a historical geographic occurrences of the topminnow on its species of special very restricted geographic range and species, and threats faced by the concern list, recognizing that the was subject to specific habitat species. The petition provides saltmarsh topminnow is particularly degradation. Both of these conditions information relevant to the status of the vulnerable ‘‘to habitat modification, appear to be applicable to the saltmarsh species as well as supporting references environmental alteration, human topminnow. Peterson et al. (2003) cite and documentation. The saltmarsh disturbance, or human exploitation the low relative abundance and patchy topminnow is taxonomically a species which, in the foreseeable future, may distribution of the species along with and thus is an eligible entity for listing result in its becoming a threatened increased development pressure as under the ESA. The petition states that species unless appropriate or protective reasons to quantify the habitat the saltmarsh topminnow is imperiled, management techniques are initiated or characteristics of the species. Rarity extremely rare, and that the primary maintained.’’ However, the petition could also subject a species to threat contributing to the saltmarsh cites the species’ rarity in the waters of heightened extinction risk if specific

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stressors are negatively affecting its and Thompson and Peterson’s (2003) Additionally, the petition states status and trends. Therefore, we must statement that ‘‘coastal Louisiana is ‘‘scientists consider the topminnows evaluate whether information indicates presently in the erosional phase of delta that live off the western Florida the saltmarsh topminnow’s population cycling, being accelerated, unfortunately panhandle to be ‘threatened,’ ’’ citing has declined or continues to decline, in some areas, by many of man’s Gilbert and Relyea (1992). and if so whether this suggests activities in the coastal region.’’ Thus, Levee and canal construction is cited extinction risk that is cause for concern. information about the threats to the as an impediment to the topminnow Population decline can result in species’ habitat and inferences made gaining access to the vegetated, flooded extinction risk that is cause for concern about the species because of the marsh surface during high tide. The in certain circumstances, for instance if alteration of its habitat may be petition provides examples and notes the decline is rapid and/or below a indicators of the species’ status and that Federal and state governments have critical minimum population threshold extinction risk. This is particularly true worked to remedy this situation by and the species has low resilience for given the saltmarsh topminnow’s restoring natural water flows in a recovery from a decline (Musick, 1999). preference for shallow water of low to number of large river deltas with Information discussed above shows that moderate salinity saltmarsh functional success being accomplished. decline for these species is possible, environments, which in some cases has Although functional success was given the evidence of loss of its lost 40 percent of known acreage by accomplished in the petition’s cited narrowly preferred habitat, though it is conversion to developed land over a restoration projects, the petitioners unclear how rapid or severe this decline four decade time span (1950–1992; claim ‘‘mixed success’’ because of has been. Peterson et al. 2003). political controversy, not scientific In summary, the petition and its The species’ reliance on an apparently feasibility. Despite these restoration supporting documentation provide narrow range of habitat conditions projects, overall marsh loss is information on the status of the species makes it vulnerable to alterations and continuing as described above. and its extinction risk especially in light changes in marsh habitat. The petition A further factor affecting salt marsh of population demographic states that coastal development, levee habitat loss is the dock-side gaming characteristics that suggests the species and canal construction, pollution, and industry of Mississippi and Louisiana. may meet the ESA’s requirements for other threats cumulatively imperil The success of the gaming industry in listing. saltmarsh habitat, and consequently, the attracting tourists has led developers to saltmarsh topminnow. Coastal Information on Threats to the Species create larger offshore casinos that drain development, levee and canal The petition states that impacts and wetlands. The amount of development construction, pollution, and other threats corresponding with three factors has led to a situation where further threats may provide inferences about in section 4(a)(1) of the ESA are construction cannot be undertaken the status of marsh habitat and thus impacting the saltmarsh topminnow. without impacting wetlands. population status and trends of the Specifically, the petition states that Compounding this problem is the saltmarsh topminnow, though such losses of and threats to the species’ human waste from these casinos inferences may not be reliable in the saltmarsh habitat, inadequacy of polluting the water in remaining absence of information regarding the mechanisms to protect the fish or its wetlands (NOAA CSC, 1999). level or distribution of marsh habitat habitat, and the species’ biological Another threat to the topminnow’s over time, changes in development and parameters including low rate of habitat identified by the petition is oil construction practices, or changes in reproduction and limited individual and gas refining and the byproducts sampling design for the species that may ranges, are individually and from such activities. The petition cites affect abundance estimates independent synergistically causing imperilment of the Deepwater Horizon oil spill as a of changes in a species’ habitat and the saltmarsh topminnow. threat to habitat, and cites Cowan’s (NY population. Wetland and marsh loss Times, 2010) concern for the spill’s data described in the petition include The Present or Threatened Destruction, threat to the ‘‘brackish water’’ of the NMFS’ recent proposed ESA listing of Modification, or Curtailment of Its saltmarsh, in particular. Data are largetooth sawfish (75 FR 25174): Habitat or Range provided in the petition on the extent of ‘‘Wetland losses in the Gulf of Mexico The petition states ‘‘the curtailment of damage caused by this unprecedented region of the U.S. averages annual net its historic habitat range, and the threats event to the marsh habitat of the losses of 60,000 acres (242.8 km2) of to its current habitat * * * make the topminnow, and on the estimated range coastal and freshwater habitats from saltmarsh topminnow especially impacted by the spill. The petition also 1998 to 2004 (Stedman et al., 2008). vulnerable to extinction.’’ The petition discusses the long-term pollution that Although wetland restoration activities acknowledges the general parameters of the oil industry causes to wetlands in are ongoing in this region of the U.S., the historical range still apply (from general and to salt marshes in the losses significantly outweigh the Galveston Bay, TX to Escambia Bay, FL), particular. The petition cites the Federal gains (Stedman et al., 2008). These but goes on to assert that this range has government and the state of Texas’ losses have been attributed to become spotty, stating scientists can no acknowledgement that long-term oil commercial and residential longer locate the species between refining activities have significantly development, port construction Galveston Bay and southeastern polluted the coastal land straddling the (dredging, blasting, and filling Louisiana. Texas-Louisiana border, particularly the activities), construction of water control The petition also cites a number of Port Arthur, Texas area. structures, modification to freshwater reports on marsh loss in the Gulf of A final threat to the species identified inflows (Rio Grande River in Texas), Mexico over varying periods of time by the petition is land subsidence and and gas and oil related activities.’’ Other ranging from the 1950s to future sea level rise caused by petroleum citations include the Environmental projections to 2050. Loss of marsh development and climate change effects. Protection Agency’s estimate that ‘‘by habitat ranges from 13 to 40 percent We have no information in our files to 2050 one third of coastal Louisiana will depending on time frame, expected contradict any of these above-listed have vanished into the Gulf of Mexico,’’ future impacts, and area of the report. threats.

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In summary, the petition and its Other Natural or Manmade Factors a combination of three of the section references present substantial The petition suggests that the 4(a)(1) factors: the present or threatened information that indicates the present or saltmarsh topminnow is naturally destruction, modification or curtailment threatened destruction, modification, or vulnerable to increased risk of of habitat, inadequate regulatory curtailment of habitat or range may be extinction, particularly because of some mechanisms, and other natural or causing or contributing to an extinction biological constraints such as small manmade factors, may be causing or risk for the saltmarsh topminnow that is population size and reproductive traits. contributing to extinction risk for the cause for concern. The petition argues that the saltmarsh saltmarsh topminnow. Inadequacy of Existing Regulatory topminnow is characterized by a very Petition Finding Mechanisms low rate of reproduction and limited After reviewing the information range of individuals, which limits inter- contained in the petition, as well as The petition argues that listing is population mixing. We have no warranted due to the inadequacy of information readily available in our information to refute these claims. The files, we conclude the petition presents existing regulatory mechanisms, stating petition references the USFWS that ‘‘state and federal regulatory substantial scientific information recognition that small population size indicating the petitioned action of mechanisms have failed to protect the increases extinction risk, and topminnow and its habitat.’’ The listing the saltmarsh topminnow as specifically referenced a candidate threatened or endangered may be petition cites the listing of the species assessment for the Langford tree snail in under Louisiana, Florida, and warranted. Therefore, in accordance support (http://ecos.fws.gov/docs/ with section 4(b)(3)(B) of the ESA and Mississippi state programs, but states _ _ candforms pdf/r1/G0AI I01.pdf). The the Service’s implementing regulations that due to the paucity of the species in assessment for the Langford tree snail Florida, its listing and protection there (50 CFR 424.14(b)(2)), USFWS will included a population estimate to commence a review of the status of the does not afford the species as a whole support the conclusions made on the significant protection, while Louisiana species and make a determination species small population size; however, within 12 months of receiving the and Mississippi listings carry no legal no population estimate is given for the protections. Further, the Species of petition as to whether the petitioned saltmarsh topminnow. Thus, it is listing is warranted. If listing the species Concern listing by NMFS, while unclear whether the saltmarsh recognizing the potential for is found to be warranted, we will topminnow is susceptible to the same publish a proposed rule and solicit imperilment, provides no legal reproductive limitations inherent with a public comments before developing and protection either. small population size like the Langford publishing a final rule. The petition cites numerous holes in tree snail. In summary, there is no Finally, we conclude that the petition protection of the saltmarsh topminnow’s scientific or commercial information provides no justification for us to habitat. These include the limitations of available that suggests that low rate of exercise our discretion to list the species the Coastal Wetlands Planning, reproduction in the saltmarsh under the emergency listing provisions Protection, and Restoration Act, 16 topminnow may contribute to the of the ESA. While the BP Deepwater U.S.C. 3951 et seq., in slowing large- species’ risk of extinction, alone or in Horizon oil spill likely has impacted the scale wetlands degradation; and the U.S. combination with other factors. saltmarsh topminnow or its habitat, Army Corps of Engineers The petition also discusses human petitioners failed to provide sufficient acknowledgement that the statute was population growth as a factor that evidence or information to support a not a broad enough approach to increases the saltmarsh topminnow’s finding that the event caused or is wetlands restoration to reverse the risk of extinction. The petition uses two continuing to cause a change in the breakdown of a (wetland) ecosystem. references which estimate the expected species’ status or habitat that requires Further, the petition notes the failure of increase in population along the coastal immediate listing under the ESA to the 1999 Louisiana Coastal Area area of the Gulf of Mexico and cites address a significant risk to the Ecosystem Restoration Study to Waddell and Clarke (2008) as support saltmarsh topminnow’s well-being. implement a comprehensive solution to for its assertion that expanded human Information Solicited wetland loss. The petition also cites the population growth will affect the failure of the Federal and state saltmarsh habitat and thus the species, To ensure the status review is based governments to regulate the dock-side ‘‘as the global population continues to on the best available scientific and gaming industry. Wallis (2008) shows increase and demographic shifts toward commercial data, we are soliciting that economic considerations are often coastal areas persist, even greater information on whether the saltmarsh weighted heavily compared to pressures will be placed on nearshore topminnow is endangered or threatened environmental concerns in analyzing resources to satisfy human desires for (see DATES and ADDRESSES sections impacts of the dock-side gaming food, culture, tourism, recreation, and above). Specifically, we are soliciting industry by Mississippi’s coastal profit.’’ The potential consequences of information in the following areas: (1) programs. Finally, the petition cites the threats to the topminnow’s preferred Historical and current distribution and inadequacy of the Clean Water Act in habitat are discussed above. Finally, the abundance of the species throughout its protecting wetlands from hypoxia petition cites the cumulative and range; (2) historical and current inducing agricultural run-off pollution, synergistic effects of the loss of habitat, population trends; (3) information on due to its categorization as a non-point low reproductive rates, and population life history, (4) information related to source, which exempts it from many isolation as factors contributing to the taxonomy of the species and closely permitting requirements. imperilment of the saltmarsh related forms; (5) information on any In summary, the petition presents topminnow. current or planned activities that may substantial scientific or commercial adversely impact the species; (6) information indicating existing Summary of Section 4(a)(1) Factors ongoing efforts to protect and restore the regulatory mechanisms may be We conclude that the petition species and its habitat, and (7) inadequate to address threats of presents substantial scientific or management, regulatory, and extinction to the saltmarsh topminnow. commercial information indicating that enforcement information. We request

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that all information be accompanied by: DEPARTMENT OF COMMERCE may be publicly accessible. Do not (1) Supporting documentation such as submit Confidential Business maps, bibliographic references, or National Oceanic and Atmospheric Information or otherwise sensitive or reprints of pertinent publications; and Administration protected information. (2) the submitter’s name, address, and NMFS will accept anonymous any association, institution, or business 50 CFR Part 679 comments (enter N/A in required fields that the person represents. [Docket No. 100819383–0386–01] if you wish to remain anonymous). Attachments to electronic comments If, after the status review, we RIN 0648–BA18 determine that listing the saltmarsh will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe portable topminnow is warranted, we will Fisheries of the Exclusive Economic document file (pdf) formats only. propose critical habitat (see definition Zone Off Alaska; Bering Sea and in section 3(5)(A) of the ESA), under Aleutian Islands Management Area; Copies of Amendment 93, the section 4 of the ESA, to the maximum Limited Access Privilege Program Environmental Assessment (EA), extent prudent and determinable at the Regulatory Impact Review (RIR), and the AGENCY: National Marine Fisheries Initial Regulatory Flexibility Analysis same time we propose to list the Service (NMFS), National Oceanic and (IRFA)—collectively known as the species. Therefore, within the Atmospheric Administration (NOAA), Analysis—for this action are available geographical range currently occupied Commerce. from the Alaska Region Web site at by the saltmarsh topminnow, we request ACTION: Proposed rule; request for http://alaskafisheries.noaa.gov. data and information on: comments. FOR FURTHER INFORMATION CONTACT: (1) What may constitute ‘‘physical or Gwen Herrewig, (907) 586–7091. biological features essential to the SUMMARY: NMFS proposes regulations conservation of the species’’; that would implement Amendment 93 SUPPLEMENTARY INFORMATION: The to the Fishery Management Plan for groundfish fisheries in the exclusive (2) Where such physical and Groundfish of the Bering Sea and economic zone off Alaska are managed biological features are currently found; Aleutian Islands Management Area under the Fishery Management Plan for and (FMP). This proposed rule would Groundfish of the Bering Sea and (3) Whether any of these features may amend the Bering Sea and Aleutian Aleutian Islands Management Area require special management Islands Amendment 80 Program to (BSAI FMP). The FMP was prepared by considerations or protection. modify the criteria for forming and the North Pacific Fishery Management participating in a harvesting In addition, we request data and Council (Council) under the Magnuson- cooperative. This action is necessary to information on ‘‘specific areas outside Stevens Fishery Conservation and encourage greater participation in Management Act (MSA). Amendment the geographical area occupied by the harvesting cooperatives, which enable 80 to the BSAI FMP implemented the species’’ that are ‘‘essential to the members to more efficiently target Amendment 80 Program. Regulations conservation of the species.’’ Please species, avoid areas with undesirable implementing Amendment 80 were provide specific comments and bycatch, and improve the quality of published on September 14, 2007 (72 FR information as to what, if any, critical products produced. This action is 52668). These regulations are located at habitat you think we should propose for intended to promote the goals and 50 CFR part 679. designation if the species is proposed objectives of the Magnuson-Stevens for listing, and why such habitat meets Fishery Conservation and Management Background the requirements of section 4 of the Act, the Fishery Management Plan, and The Amendment 80 program is ESA. other applicable law. commonly known as a limited access References Cited DATES: Comments must be received no privilege program (LAPP). Eligible later than September 9, 2011. fishery participants may receive A complete list of all references is ADDRESSES: Send comments to James W. exclusive access to specific fishery available upon request from the Balsiger, Ph.D., Administrator, Alaska resources if certain conditions are met. Protected Resources Division of the Region, NMFS, Attn: Ellen Sebastian. Under the Amendment 80 Program, NMFS Southeast Regional Office or the You may submit comments, identified NMFS issues a quota share (QS) permit USFWS Panama City Ecological Office by RIN 0648–BA18, by any one of the to a person holding the catch history of (see ADDRESSES). following methods: an original qualifying non-American • Electronic Submissions: Submit all Fisheries Act (AFA) trawl catcher/ Authority: The authority for this action is electronic public comments via the processor that met specific criteria the Endangered Species Act of 1973, as Federal eRulemaking Portal at http:// designated by Congress under the amended (16 U.S.C. 1531 et seq.). www.regulations.gov. Capacity Reduction Program (CRP) (Pub. Dated: July 21, 2011. • Fax: (907) 586–7557, Attn: Ellen L. 108–447). NMFS determined that 28 Gregory E. Siekaniec, Sebastian. vessels met the criteria specified in the • Acting Director, U.S. Fish and Wildlife Mail: P.O. Box 21668, Juneau, AK CRP. These vessels comprise the Service. 99802. originally qualifying Amendment 80 • Hand Delivery to the Federal vessels. NMFS determined the amount Dated: August 5, 2011. Building: 709 West 9th Street, Room of QS issued based on the catch history Samuel D. Rauch III, 420A, Juneau, AK. of six Amendment 80 species (Atka Deputy Assistant Administrator for All comments received are a part of mackerel, Aleutian Islands Pacific ocean Regulatoru Programs, National Marine the public record and will generally be perch, flathead sole, Pacific cod, rock Fisheries Service. posted to http://www.regulations.gov sole, and yellowfin sole) in the Bering [FR Doc. 2011–20335 Filed 8–9–11; 8:45 am] without change. All Personal Identifying Sea and Aleutian Islands Management BILLING CODE 3510–22–P; 4310–55–P Information (e.g., name, address) Area (BSAI), from 1998 through 2004, voluntarily submitted by the commenter derived from the 28 originally

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