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Code · REGISTER · 2007-09-05 · National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce · Notices

Notices. Final rule

21,692 words·~99 min read·/register/2007/09/05/07-4286·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4910-59-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration
(NOAA)50 CFR Part 660 [Docket No. 070323069-7117-02; I.D. 031907A] RIN 0648-AV46 Pacific Coast Groundfish Fishery AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS issues a final rule to establish catch accounting requirements for persons who receive, buy, or accept Pacific whiting deliveries of 4,000 pounds
(lb)(1.18 mt) or more from vessels using midwater trawl gear during the Pacific whiting primary season for the shore-based sector. This action is intended to improve NMFS's ability to effectively monitor the Pacific whiting shoreside fishery such that catch of Pacific whiting and incidentally caught species, including overfished groundfish species, do not result in a species' optimum yield (OY), harvest guideline, allocations, or bycatch limits being exceeded. This action is also intended to provide for timely reporting of Chinook salmon take as specified in the Endangered Species Act
(ESA)Section 7 Biological Opinion for Chinook salmon catch in the Pacific groundfish fishery. This action is consistent with the conservation goals and objectives of the Pacific Coast Groundfish Fishery Management Plan (FMP). DATES: Effective October 5, 2007. ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA), Finding of No Significant Impact (FONSI), Initial Regulatory Flexibility Analysis (IRFA), Final Regulatory Flexibility Analysis (FRFA), and the Small Entity Compliance Guide are available from D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, phone: 206-526-6150. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, and by e-mail to *DavidRostker@omb.eop.gov* , or by fax to
(202)395-7285. FOR FURTHER INFORMATION CONTACT: Becky Renko, phone: 206-526-6110, fax: 206-526-6736, or e-mail: *becky.renko@noaa.gov* . SUPPLEMENTARY INFORMATION: Electronic Access This **Federal Register** document is also accessible via the internet at the website of the Office of the **Federal Register** : www.gpoaccess.gov/fr/index.html. Background This action establishes an electronic catch accounting system and other monitoring improvements for the shore-based sector of the Pacific whiting fishery. The shore-based Pacific whiting fishery needs to have a catch reporting system in place that: provides timely reporting of catch data so that Pacific whiting, overfished species and Chinook salmon can be adequately monitored and accounted for inseason; and, specifies catch sorting and weight requirements necessary to maintain the integrity of data used to manage groundfish species OYs, trip limits, and bycatch limits. This final rule applies to persons called “first receivers” (generally, first receivers are Pacific whiting shoreside processing facilities, but may also include entities that truck Pacific whiting to other facilities.) This final rule requires first receivers who receive, buy, or accept Pacific whiting deliveries of 4,000 lb (1.8 mt) or more from vessels using midwater trawl gear during the Pacific whiting primary season to have and use a NMFS-approved electronic fish ticket software or a NMFS-approved software that meets defined data export specifications, and to send catch reports to the Pacific States Marine Fish Commission (PSMFC) within 24 hours of when the catch is landed. Electronic fish ticket reports will be used to track catch allocations, bycatch limits and prohibited species catch. First receivers will provide the computer hardware, software, and internet access necessary to support the NMFS-approved software and provide for e-mail transmissions. The electronic fish tickets are used to collect information similar to information currently required by the States of Washington, Oregon and California on fish receiving tickets or landing receipts (state fish tickets). These Federal regulations will be in addition to the existing state fish ticket requirements and will not replace any state recordkeeping or reporting requirements. New sorting requirements are specified in this final rule for Pacific whiting catch received by first receivers, as deliveries may contain groundfish in excess of trip limits, unmarketable groundfish, prohibited species, and protected species that are not addressed by current groundfish regulations. In addition, Federal groundfish regulations are revised to require deliveries from vessels participating in the Pacific whiting shoreside fishery to be adequately sorted by species or species group, and the catch be weighed following offloading from the vessel and prior to transporting the catch. First receivers are required to report, on electronic fish tickets, actual and accurate weights derived from scales. If sorting and weighing requirements specified in Federal regulation are more stringent than state fish ticket requirements, the first receiver is required to follow Federal requirements for sorting, weighing, and reporting species or species groups on electronic fish ticket submissions. This final rule is part of an ongoing process to develop a maximized retention program for the Pacific whiting shoreside fishery. At its June 11-15, 2007, meeting in Foster City, California, the Council will consider recommending a rulemaking for 2008 and beyond for a related action titled “A Maximized Retention and Monitoring Program for the Pacific Whiting Shoreside Fishery.” Further detail on this action appears in the EA/RIR prepared by the NMFS for this action and in the proposed rule published on April 9, 2007 (72 FR 17469). NMFS requested public comment on the proposed rule through April 24, 2007. See the preamble to the proposed rule for additional background information on the fishery and on this rule. Comments and Responses NMFS received two e-mailed comments on the proposed rule: one email was received from a state government and the other email was from an industry organization. These comments are addressed here: *Comment 1:* The commentor indicated that a reference on page 17470 of the proposed rule preamble, regarding the Pacific Fishery Management Council discussion on further rulemaking “at its April 2007 meeting,” should be revised or eliminated because the discussion did not occur. *Response:* The preamble reference to Pacific Fishery Management Council discussion on further rulemaking has been revised in the final rule preamble to reference pending discussion at the June 11-15, 2007 Council meeting. *Comment 2:* The commentor believes that the reliance on Research Group publications from 2006 based on 2004 fishery data, referenced on page 17471 of the proposed rule preamble, is questionable given the age of the data and the fact that no peer review of the information has been done for this analysis. *Response:* NMFS recognizes that the Research Group publications are not peer reviewed documents. However, given the lack of available information on the West Coast seafood processing industry, NMFS must rely on various sorts of information to determine the classification of processing companies including determining whether various companies are “affiliated” according to Small Business Administration
(SBA)standards. As stated in the analysis, the information was based on a review of company websites, state employment websites, and newpaper articles. The discussion drew no hard conclusions because the Research Group publications use data from various sources and such data may be of various vintages. NMFS believes that the information from the Research Group publications, although not peer-reviewed is credible supporting information given its consistency with other data sources. These publications are the only publications available that describe West Coast fishing industry in a manner useful for assessing ownership relationships between companies. NMFS believes it has used these Research publications in a credible manner as this information was used in conjunction with NMFS's own review of company websites, state employment websites, and newspaper articles. Because of this NMFS independent reviews, without the use of the Research Group publications, the same conclusions about company size and affiliation would have been made. The basic conclusion was that there appears to be 13 major Pacific whiting processors that can be grouped into nine SBA businesses based on analysis of affiliates and that among these businesses are three large and six small SBA businesses based on SBA size standards. One purpose of the IRFA is to solicit comments on the economic analysis in the proposed rule and whether the basic conclusions are reasonable. This comment was the only one received on the economic analysis and it only questions the use of Research Group publications, but not the basic conclusions. The use of non-peer reviewed information in its conclusions is noted in the classifications section of this document. *Comment 3:* The commentor objects to the inclusion of the proposed § 660.306 (f)(6)(i), which prohibits a first receiver from receiving Pacific whiting from a vessel that does not have a properly functioning electronic monitoring system (EMS), unless a waiver for EMS coverage was granted by NMFS for that trip. The commentor believes that a first receiver on shore has no way of knowing whether a vessel's EMS is operating or not, or whether it was properly deployed while the vessel was harvesting Pacific whiting. The commentor suggests the language be modified to insert “knowingly” at the start of the sentence to enable enforcement action to be taken, but not lead to action against a processor who buys from a vessel in good faith. *Response:* NMFS has modified the proposed language in § 660.306 (f)(6)(i) so that an undue burden is not placed on the first receivers in 2007. In response to this comment, NMFS has removed the language in § 660.306 (f)(6)(i). Maintaining the integrity of catch data includes knowing that each delivery was properly monitored at-sea. Therefore, NMFS encourages processors to obtain verification from the vessel operator, that the EMS was working properly or that a waiver for EMS coverage was granted to the vessel for that trip. NMFS intends to address this issue in its entirety in a related action titled “A Maximized Retention and Monitoring Program for the Pacific Whiting Shoreside Fishery.” *Comment 4:* The commentor supports the language in § 660.373 (j)(1)(ii) indicating that first receivers have the choice of using either software supplied by the PSMFC or “NMFS-approved” software compatible with the software available from PSMFC. The commentor strongly supports having this choice, but believes it would be helpful to know what software is approved by NMFS and what format is considered compatible. *Response:* In response to the commentor, NMFS has added clarifying language to § 660.373 (j)(1)(ii) which identifies where a first receiver may obtain the specifications for NMFS-approved software other than the software supplied by the PSMFC. *Comment 5:* The commentor suggests that a definition be added for “Electronic fish tickets.” *Response:* NMFS has added a definition for electronic fish tickets. The term is defined as a software program or data files meeting data export specifications approved by NMFS that is used to send landing data to the Pacific States Marine Fisheries Commission. Electronic fish tickets are used to collect information similar to the information required in state fish receiving tickets or landing receipts, but do not replace or change any state requirements. *Comment 6:* The commentor suggests that the term “Pacific whiting shoreside vessel”, which has been defined in regulation, be used consistently throughout the regulations rather than using the terms “delivery vessel” and “catcher vessel” to describe the same group of vessels. *Response:* NMFS has made the appropriate changes to the regulatory language. Changes From the Proposed Rule In response to the comments that were received, the following changes were made from the proposed rule: A definition for the term “Electronic fish ticket” was added to the regulations in § 660.302 Definitions; References to “delivery vessel” and “catcher vessel” were changed to Pacific whiting shoreside vessel in § 660.303, reporting and recordkeeping, paragraph (e)(1)(iii) and (iv)(B), and in § 660.306, prohibitions, (f)(6)(iii); and, in § 660.373, Pacific whiting fishery management, paragraph (j)(1)(ii)(A)(3) contact information for obtaining NMFS-approved software was added, proposed language in § 660.306 (f)(6)(i) was removed, and in paragraph (j)(1)(ii)(C)(3) the term first receivers was added. Classification An environmental assessment was prepared for this action. NMFS finds that no significant impact on the human environment will result from its implementation and has signed the Finding of No Significant Impacts (FONSI). This final rule has been determined to be not significant for purposes of Executive Order 12866. A final regulatory flexibility analysis
(FRFA)was prepared. The FRFA incorporates the IRFA, and a summary of the analyses completed to support the action. A copy of this analysis is available from or NMFS (see ADDRESSES). A summary of the FRFA follows. The Pacific whiting shoreside fishery needs to have a catch reporting system in place to: adequately track the incidental take of Chinook salmon as required in the ESA Section 7 Biological Opinion for Chinook salmon catch in the Pacific whiting fishery; and to track the catch of target and overfished groundfish species such that the fishing industry is not unnecessarily constrained and that the sector allocation and bycatch limits are not exceeded. This action will allow NMFS to effectively manage the Pacific whiting fishery such that harvests of Pacific whiting and incidentally caught groundfish species, including overfished species, do not result in allocations, harvest guidelines, species' OY, or bycatch limits for overfished species being exceeded. One comment was received regarding the IRFA (see Comment 2 above). No changes to the proposed rule resulted from this comment. During 2006, 23 different processors/companies paid $17 million to fishers who delivered a combined 280 million lbs (127,002 mt) of Pacific whiting. A major processor is one that has purchased more than 1,000,000 lbs of Pacific whiting. There were 13 major Pacific whiting processors in 2006, with the remaining 10 processors all being minor processors, as their production levels ranged from 2 lbs to 7,000 lbs (3,175 kg). There were no processors in the 7,000 lb to 1,000,000 lb (4,536 kg) range. None of these minor processors were associated with a trawl landing that was greater than 4,000 lbs (1,814 kg) and so it is presumed they would be unaffected by these regulations. Note that not all minor entities are “processors” in the traditional sense since some of these entities may be fishers who directly sell their fish to a restaurant. These fishers, although they may be small businesses, are not affected because the direct sale of their landings would not be subject to this rule. The SBA has established size criteria for all major industry sectors in the U.S. including fish harvesting entities, for-hire entities, fish processing businesses, and fish dealers. A business involved in fish harvesting is a small business if it is independently owned and operated and not major in the field of operation (including its affiliates) and if it has combined annual receipts not in excess of $3.5 million for all its affiliated operations worldwide. For-hire vessels are considered small entities, if they have annual receipts not in excess of $6 million. A seafood processor is a small business if it is independently owned and operated, not major in its field of operation, and employs 500 or few persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations world wide. Finally, a wholesale business servicing the fishing industry (fish dealer) is a small business if it employs 100 or few persons on a full time, part-time, temporary, or other basis, at all its affiliated operations worldwide. Because of the lack of available information on the West Coast seafood processing industry, NMFS must rely on various sorts of information to determine the classification of processing companies including determining if various companies are “affiliated” according to SBA standards. Based on the SBA criteria and a review of company websites, state employment websites, newspaper articles, personal communications, and non-peered review research documents, it appears that the 13 major Pacific whiting processors can be grouped into nine SBA businesses based on analysis of affiliates. Within these nine SBA businesses, there appears to be three “large” businesses, each of which generated at least $500 million in sales in 2003 and employ over over 500 employees each. In addition, there are six “small” businesses that participated in the shorebased Pacific whiting processing sector in 2006. Annual sales information for these “small” businesses is unavailable, but total ex-vessel revenues (the value of the fish purchased from fisherman) is available. In 2006, these six businesses purchased approximately $40 million in hake and other fish and shellfish from west coast fishermen. This compares to the $60 million in hake and other fish and shellfish purchased by the three large businesses. These regulations would require Pacific whiting shoreside processors to have and use a NMFS approved electronic fish ticket program to send daily catch reports. The electronic fish tickets are based on information currently required in state fish receiving tickets or landing receipts (fish tickets). In the States of Washington and California, processors would continue to complete and submit the required paper fish tickets on forms provided by the state and then transfer the same information to the electronic fish ticket for submission. In the State of Oregon, processors could either complete paper fish ticket forms provided by the state, or as is allowed by state law, they could submit a printed and signed copy of the electronic fish tickets. The majority of the companies affected appear to be small businesses. Given the relatively small numbers of applicants, separate requirements based on size of business were not developed. To the extent possible, however, this final rule builds on existing state reporting requirements or on equipment that the companies typically already have. Therefore, implementation of these rules will require firms to bear minimal costs in reporting data electronically that they already are required to report on paper to the states. In terms of equipment purchases, it is expected that there will be few if any instances where processors have to purchase computers or software because this is equipment that most business already have. It is also not expected that processors will need to purchase scale equipment as the presumption about this final rule is that it enhances existing state regulations that already require processors to use scales in conducting their businesses but may not specifically require the use of scale weights in reporting fisheries data to state agencies. There may be some interest by a few small processors to weigh and count fish at locations other than the point of first landing, but these instances appear to be few. Additional measures were taken to minimize the costs of the catch accounting requirements by providing:
(1)fish ticket software at no cost;
(2)fish ticket software that used a standard operating system and common software already owned by most businesses;
(3)fish ticket software that is compatible with the existing fish ticket requirements in each of the three states; and,
(4)software that can be used to print a paper copy for submission to the state, when state law allows. Because the information is already being gathered by the processors there is no requirement that additional data be gathered. Only the minimum data required to meet the objectives are requested from all applicants. There were no other alternatives to the proposed rule that accomplish the stated objectives. Under Status Quo, general catch sorting requirements and prohibited actions would continue to be specified for limited entry trawl vessel; each state would continue to specify requirements for landing reports. This alternative was rejected because it does not meet the defined need for accurate catch accounting. Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a public notice that also serves as small entity compliance guide (the guide) was prepared. The guide and final rule will be sent to all of the Pacific whiting shoreside processors that have been designated by the states of Washington, Oregon, or California as participants in the 2007 fishery. Copies of this final rule and the guide are available from the NMFS Northwest Regional Office (see ADDRESSES ) and are available on our website at *www.nwr.noaa.gov* (Click on “Groundfish Fishery Management,” then on either “Public Notices” or “Whiting management”). This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act
(PRA)and which has been approved by OMB under control number 0648-0563. Public reporting burden for preparing and submitting electronic fish tickets is estimated to average ten minutes per individual response for Pacific whiting shoreside processors/first receivers in the states of California and Washington, and two minutes per individual response for Pacific whiting shoreside processors/first receivers in the State of Oregon, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collected information. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ) and by e-mail to *David_Rostker@omb.eop.gov* , or fax to 202-395-7285. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. Pursuant to Executive Order 13175, this final rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. At the Council=s September and November 2006 meetings, NMFS informed the Council, which includes a tribal representative, of the intent to evaluate and implement catch accounting requirements for Pacific whiting shoreside processors. This action does not alter the treaty allocation of Pacific whiting, nor does it affect the prosecution of the tribal fishery. List of Subjects in 50 CFR Part 660 Fisheries, Fishing, Indian fisheries. Dated: August 29, 2007. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 660 is 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.* 2. In § 660.302, the definitions for “Electronic Fish Ticket”,“Electronic Monitoring System,” “Pacific whiting shoreside or shore-based fishery,” “Pacific whiting shoreside first receiver,” and “Pacific whiting shoreside vessel” are added to read as follows: § 660.302 Definitions. *Electronic fish ticket* means a software program or data files meeting data export specifications approved by NMFS that is used to send landing data to the Pacific States Marine Fisheries Commission. Electronic fish tickets are used to collect information similar to the information required in state fish receiving tickets or landing receipts, but do not replace or change any state requirements. *Electronic Monitoring System (EMS)* means a data collection tool that uses a software operating system connected to an assortment of electronic components, including video recorders, to create a collection of data on vessel activities. *Pacific whiting shoreside or shore-based fishery* means Pacific whiting shoreside vessels and Pacific whiting shoreside first receivers. *Pacific whiting shoreside first receivers* means persons who receive, purchase, or take custody, control, or possession of Pacific whiting onshore directly from a Pacific whiting shoreside vessel. *Pacific whiting shoreside vessel* means any vessel that fishes using midwater trawl gear to take, retain, possess and land 4,000 lb (1,814 kg) or more of Pacific whiting per fishing trip from the Pacific whiting shore-based sector allocation for delivery to a Pacific whiting shoreside first receiver during the primary season. 3. In § 660.303, paragraph
(a)is revised and paragraph
(e)is added to read as follows: § 660.303 Reporting and recordkeeping.
(a)This subpart recognizes that catch and effort data necessary for implementing the PCGFMP are collected by the States of Washington, Oregon, and California under existing state data collection requirements.
(e)*Participants in the Pacific whiting shoreside fishery.* Reporting requirements defined in the following section are in addition to reporting requirements under applicable state law and requirements described at § 660.303(b).
(1)*Reporting requirements for any Pacific whiting shoreside first receiver* —(i) *Responsibility for compliance.* The Pacific whiting shoreside first receiver is responsible for compliance with all reporting requirements described in this paragraph.
(ii)*General requirements.* All records or reports required by this paragraph must: be maintained in English, be accurate, be legible, be based on local time, and be submitted in a timely manner as required in paragraph (e)(1)(iv) of this section.
(iii)*Required information.* All Pacific whiting shoreside first receivers must provide the following types of information: date of landing, Pacific whiting shoreside vessel that made the delivery, gear type used, first receiver, round weights of species landed listed by species or species group including species with no value, number of salmon by species, number of Pacific halibut, and any other information deemed necessary by the Regional Administrator as specified on the appropriate electronic fish ticket form.
(iv)*Electronic fish ticket submissions.* The Pacific whiting shoreside first receiver must:
(A)Sort all fish, prior to first weighing, by species or species groups as specified at § 660.370 (h)(6)(iii).
(B)Include as part of each electronic fish ticket submission, the actual scale weight for each groundfish species as specified by requirements at § 660.373 (j)(2)(i) and the Pacific whiting shoreside vessel identification number.
(C)Use for the purpose of submitting electronic fish tickets, and maintain in good working order, computer equipment as specified at § 660.373 (j)(2)(ii)(A);
(D)Install, use, and update as necessary, any NMFS-approved software described at § 660.373 (j)(2)(ii)(B);
(E)Submit a completed electronic fish ticket for every landing that includes 4,000 lb (1,814 kg) or more of Pacific whiting (round weight equivalent) no later than 24 hours after the date the fish are received, unless a waiver of this requirement has been granted under provisions specified at paragraph (e)(1)
(vii)of this section.
(v)*Revising a submitted electronic fish ticket submission.* In the event that a data error is found, electronic fish ticket submissions may be revised by resubmitting the revised form. Electronic fish tickets are to be used for the submission of final data. Preliminary data, including estimates of fish weights or species composition, shall not be submitted on electronic fish tickets.
(vi)*Retention of records.* [Reserved]
(vii)*Waivers for submission of electronic fish tickets upon written request.* On a case-by-case basis, a temporary written waiver of the requirement to submit electronic fish tickets may be granted by the Assistant Regional Administrator or designee if he/she determines that circumstances beyond the control of a Pacific whiting shoreside first receiver would result in inadequate data submissions using the electronic fish ticket system. The duration of the waiver will be determined on a case-by-case basis.
(viii)*Reporting requirements when a temporary waiver has been granted.* Pacific whiting shoreside first receivers that have been granted a temporary waiver from the requirement to submit electronic fish tickets must submit on paper the same data as is required on electronic fish tickets within 24 hours of the date received during the period that the waiver is in effect. Paper fish tickets must be sent by facsimile to NMFS, Northwest Region, Sustainable Fisheries Division, 206-526-6736 or by delivering it in person to 7600 Sand Point Way NE, Seattle, WA 98115. The requirements for submissions of paper tickets in this paragraph are separate from, and in addition to existing state requirements for landing receipts or fish receiving tickets.
(2)[Reserved] 4. In § 660.306, paragraphs (f)(6) is redesignated as (f)(7), and paragraph(b)(4) and a new (f)(6) are added to read as follows: § 660.306 Prohibitions.
(b)* * *
(4)Fail to comply with all requirements at § 660.303 (d); including failure to submit information, submission of inaccurate information, or intentionally submitting false information on any report required at § 660.303
(d)when participating in the Pacific whiting shoreside fishery.
(f)* * *
(6)*Pacific whiting shoreside first receivers.*
(i)[Reserved]
(ii)Fail to sort fish received from a Pacific whiting shoreside vessel prior to first weighing after offloading as specified at § 660.370 (h)(6)(iii) for the Pacific whiting fishery.
(iii)Process, sell, or discard any groundfish received from a Pacific whiting shoreside vessel that has not been weighed on a scale that is in compliance with requirements at § 660.373 (j)(1)(i) and accounted for on an electronic fish ticket with the identification number for the Pacific whiting shoreside vessel that delivered the fish.
(iv)Fail to weigh fish landed from a Pacific whiting shoreside vessel prior to transporting any fish from that landing away from the point of landing. 5. In § 660.370, paragraph (h)(6)(iii) is added to read as follows: § 660.370 Specifications and management measures.
(h)* * *
(6)* * *
(iii)*Sorting requirements for the Pacific whiting shoreside fishery.* Fish delivered to Pacific whiting shoreside first receivers (including shoreside processing facilities and buying stations that intend to transport catch for processing elsewhere) must be sorted, prior to first weighing after offloading from the vessel and prior to transport away from the point of landing, to the species groups specified in paragraph (h)(6)(i)(A) of this section for vessels with limited entry permits. Prohibited species must be sorted according to the following species groups: Dungeness crab, Pacific halibut, Chinook salmon, Other salmon. Non-groundfish species must be sorted as required by the state of landing. 6. In § 660.373, paragraph
(j)is redesignated as (k), and a new paragraph
(j)is added to read as follows: § 660.373 Pacific whiting (whiting) fishery management.
(j)*Additional requirements for participants in the Pacific Whiting Shoreside fishery* —(1) *Pacific whiting shoreside first receiver responsibilities* —(i) *Weights and measures.* All groundfish weights reported on fish tickets must be recorded from scales with appropriate weighing capacity that ensures accuracy for the amount of fish being weighed. For example: amounts of fish less than 1,000 lb (454 kg) should not be weighed on scales that have an accuracy range of 1,000 lb-7,000 lb (454 - 3,175 kg) and are therefore not capable of accurately weighing amounts less than 1,000 lb (454 kg).
(ii)*Electronic fish tickets* —(A) *Hardware and software requirements.* First receivers using the electronic fish ticket software provided by Pacific States Marine Fish Commission are required to meet the hardware and software requirements below. Those whiting first receivers who have NMFS-approved software compatible with the standards specified by Pacific States Marine Fish Commission for electronic fish tickets are not subject to any specific hardware or software requirements. ( *1* ) A personal computer with Pentium 75-MHz or higher. Random Access Memory
(RAM)must have sufficient megabyte
(MB)space to run the operating system, plus an additional 8 MB for the software application and available hard disk space of 217 MB or greater. A CD-ROM drive with a Video Graphics Adapter(VGA) or higher resolution monitor (super VGA is recommended). ( *2* ) Microsoft Windows 2000 (64 MB or greater RAM required), Windows XP (128 MB or greater RAM required) or later operating system. ( *3* ) Microsoft Access 2003 or newer for: ( *i* ) *NMFS Approved Software Standards and Internet Access.* The Pacific whiting shoreside first receiver is responsible for obtaining, installing and updating electronic fish tickets software either provided by Pacific States Marine Fish Commission, or compatible with the data export specifications specified by Pacific States Marine Fish Commission and for maintaining internet access sufficient to transmit data files via email. Requests for data export specifications can be submitted to: Attn: Frank Lockhart, National Marine Fisheries Service, Northwest Region Sustainable Fisheries Division, 7600 Sand Point Way NE, Seattle, WA 98115, or via email to *frank.lockhart@noaa.gov* . ( *ii* ) *Maintenance.* The Pacific whiting shoreside first receiver is responsible for ensuring that all hardware and software required under this subsection are fully operational and functional whenever the Pacific whiting primary season deliveries are accepted.
(2)Pacific whiting shoreside first receivers and processors that receive groundfish species other than Pacific whiting in excess of trip limits from Pacific whiting shoreside vessels fishing under an EFP issued by the Assistant Regional Administrator are authorized to possess the catch.
(3)Vessel owners and operators, first receivers, or shoreside processor owners, or managers may contact NMFS in writing to request assistance in improving data quality and resolving monitoring issues. Requests may be submitted to: Attn: Frank Lockhart, National Marine Fisheries Service, Northwest Region Sustainable Fisheries Division, 7600 Sand Point Way NE, Seattle, WA 98115, or via email to *frank.lockhart@noaa.gov* . [FR Doc. E7-17523 Filed 9-4-07; 8:45 am] BILLING CODE 3510-22-S 72 171 Wednesday, September 5, 2007 Proposed Rules DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Chapter VII [Docket No. 070827486-7487-01] Effects of Foreign Policy-Based Export Controls AGENCY: Bureau of Industry and Security, Commerce. ACTION: Request for Comments on Foreign Policy-based Export Controls. SUMMARY: The Bureau of Industry and Security
(BIS)is reviewing the foreign policy-based export controls in the Export Administration Regulations to determine whether they should be modified, rescinded or extended. To help make these determinations, BIS is seeking comments on how existing foreign policy-based export controls have affected exporters and the general public. DATES: Comments must be received by October 5, 2007. ADDRESSES: Written comments may be sent by e-mail to *publiccomments@bis.doc.gov.* Include “FPBEC” in the subject line of the message. Written comments (three copies) may be submitted by mail or hand delivery to Jeffery Lynch, Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, 14th Street & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230. FOR FURTHER INFORMATION CONTACT: Joan Roberts, Foreign Policy Division, Office of Nonproliferation and Treaty Compliance, Bureau of Industry and Security, Telephone:
(202)482-4252. Copies of the current Annual Foreign Policy Report to the Congress are available at *http://www.bis.doc.gov/PoliciesAndRegulations/07ForPolControls/index.htm* and copies may also be requested by calling the Office of Nonproliferation and Treaty Compliance at the number listed above. SUPPLEMENTARY INFORMATION: Foreign policy-based controls in the Export Administration Regulations
(EAR)are implemented pursuant to Section 6 of the Export Administration Act of 1979, as amended. The current foreign policy-based export controls maintained by the Bureau of Industry and Security
(BIS)are set forth in the EAR, including in parts 742 (CCL Based Controls), 744 (End-User and End-Use Based Controls) and 746 (Embargoes and Special Country Controls). These controls apply to a range of countries, items, activities and persons, including: Certain general purpose microprocessors for `military end-uses' and `military end-users' (§ 744.17); significant items (SI): Hot section technology for the development, production, or overhaul of commercial aircraft engines, components, and systems (§ 742.14); encryption items (§§ 742.15 and 744.9); crime control and detection commodities (§ 742.7); specially designed implements of torture (§ 742.11); certain firearms included within the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (§ 742.17); regional stability items (§ 742.6); equipment and related technical data used in the design, development, production, or use of certain rocket systems and unmanned air vehicles (§§ 742.5 and 744.3); chemical precursors and biological agents, associated equipment, technical data, and software related to the production of chemical and biological agents (§§ 742.2 and 744.4) and various chemicals included in those controlled pursuant to the Chemical Weapons Convention (§ 742.18); nuclear propulsion (§ 744.5); aircraft and vessels (§ 744.7); communication intercepting devices (software and technology) (§ 742.13); embargoed countries (part 746); countries designated as supporters of acts of international terrorism (§§ 742.8, 742.9, 742.10, 742.19, 746.2, 746.4, 746.7, and 746.9); certain entities in Russia (§ 744.10); individual terrorists and terrorist organizations (§§ 744.12, 744.13 and 744.14); certain persons designated by Executive Order 13315 (“Blocking Property of the Former Iraqi Regime, Its Senior Officials and Their Family Members”) (§ 744.18); and certain sanctioned entities (§ 744.20). Attention is also given in this context to the controls on nuclear-related commodities and technology (§§ 742.3 and 744.2), which are, in part, implemented under section 309(c) of the Nuclear Non Proliferation Act. Under the provisions of section 6 of the Export Administration Act of 1979, as amended (50 U.S.C. app. §§ 2401-2420 (2000)) (EAA), export controls maintained for foreign policy purposes require annual extension. Section 6 of the EAA requires a report to Congress when foreign policy-based export controls are extended. The EAA expired on August 20, 2001. Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2007 (72 FR 46137, August 16, 2007), continues the EAR and, to the extent permitted by law, the provisions of the EAA, in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706 (2000)). The Department of Commerce, insofar as appropriate, is following the provisions of section 6 in reviewing foreign policy-based export controls, requesting public comments on such controls, and submitting a report to Congress. In January 2007, the Secretary of Commerce, on the recommendation of the Secretary of State, extended for one year all foreign policy-based export controls then in effect. To assure maximum public participation in the review process, comments are solicited on the extension or revision of the existing foreign policy-based export controls for another year. Among the criteria considered in determining whether to continue or revise U.S. foreign policy-based export controls are the following: 1. The likelihood that such controls will achieve the intended foreign policy purpose, in light of other factors, including the availability from other countries of the goods, software or technology proposed for such controls; 2. Whether the foreign policy purpose of such controls can be achieved through negotiations or other alternative means; 3. The compatibility of the controls with the foreign policy objectives of the United States and with overall United States policy toward the country subject to the controls; 4. Whether reaction of other countries to the extension of such controls by the United States is not likely to render the controls ineffective in achieving the intended foreign policy purpose or be counterproductive to United States foreign policy interests; 5. The comparative benefits to U.S. foreign policy objectives versus the effect of the controls on the export performance of the United States, the competitive position of the United States in the international economy, the international reputation of the United States as a supplier of goods and technology; and 6. The ability of the United States to enforce the controls effectively. BIS is particularly interested in receiving comments on the economic impact of proliferation controls. BIS is also interested in industry information relating to the following: 1. Information on the effect of foreign policy-based export controls on sales of U.S. products to third countries (i.e., those countries not targeted by sanctions), including the views of foreign purchasers or prospective customers regarding U.S. foreign policy-based export controls. 2. Information on controls maintained by U.S. trade partners. For example, to what extent do they have similar controls on goods and technology on a worldwide basis or to specific destinations? 3. Information on licensing policies or practices by our foreign trade partners which are similar to U.S. foreign policy-based export controls, including license review criteria, use of conditions, requirements for pre and post shipment verifications (preferably supported by examples of approvals, denials and foreign regulations). 4. Suggestions for revisions to foreign policy-based export controls that would bring them more into line with multilateral practice. 5. Comments or suggestions as to actions that would make multilateral controls more effective. 6. Information that illustrates the effect of foreign policy-based export controls on trade or acquisitions by intended targets of the controls. 7. Data or other information as to the effect of foreign policy-based export controls on overall trade at the level of individual industrial sectors. 8. Suggestions as to how to measure the effect of foreign policy-based export controls on trade. 9. Information on the use of foreign policy-based export controls on targeted countries, entities, or individuals. BIS is also interested in comments relating generally to the extension or revision of existing foreign policy-based export controls. Parties submitting comments are asked to be as specific as possible. All comments received before the close of the comment period will be considered by BIS in reviewing the controls and developing the report to Congress. All information relating to the notice will be a matter of public record and will be available for public inspection and copying. In the interest of accuracy and completeness, BIS requires written comments. Oral comments must be followed by written memoranda, which will also be a matter of public record and will be available for public review and copying. The Office of Administration, Bureau of Industry and Security, U.S. Department of Commerce, displays these public comments on BIS's Freedom of Information Act
(FOIA)Web site at *http://www.bis.doc.gov/foia.* This office does not maintain a separate public inspection facility. If you have technical difficulties accessing this Web site, please call BIS's Office of Administration at
(202)482-0637 for assistance. Dated: August 29, 2007. Christopher A. Padilla, Assistant Secretary for Export Administration. [FR Doc. E7-17525 Filed 9-4-07; 8:45 am] BILLING CODE 3510-33-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R07-OAR-2007-0655; FRL-8462-8] Approval and Promulgation of State Plans for Designated Facilities and Pollutants; Iowa; Clean Air Mercury Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve the State Plan submitted by Iowa on August 15, 2006, and revisions submitted on April 26, 2007. The plan addresses the requirements of EPA's Clean Air Mercury Rule (CAMR), promulgated on May 18, 2005, and subsequently revised on June 9, 2006. EPA is proposing to determine that the submitted State Plan fully meets the CAMR requirements for Iowa. CAMR requires States to regulate emissions of mercury
(Hg)from large coal-fired electric generating units (EGUs). CAMR establishes State budgets for annual EGU Hg emissions and requires States to submit State Plans to ensure that annual EGU Hg emissions will not exceed the applicable State budget. States have the flexibility to choose which control measures to adopt to achieve the budgets, including participating in the EPA-administered CAMR cap-and-trade program. In the State Plan that EPA is proposing to approve Iowa would meet CAMR requirements by participating in the EPA trading program. DATES: Comments must be received on or before October 5, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-OAR-2007-0655, by one of the following methods: 1. *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail: jay.michael@epa.gov.* 3. *Mail:* Michael Jay, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. 4. *Hand Delivery or Courier:* Deliver your comments to: Michael Jay, Environmental Protection Agency, 901 North 5th Street, Kansas City, Kansas 66101. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R07-OAR-2007-0655. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit through *http://www.regulations.gov* or e-mail, information that you consider to be CBI or otherwise protected. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters and any form of encryption and should be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Michael Jay at
(913)551-7460 or by e-mail at *jay.michael@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. What Action Is EPA Proposing to Take? II. What Is the Regulatory History of CAMR? III. What Are the General Requirements of CAMR State Plans? IV. How Can States Comply With CAMR? V. Analysis of Iowa's CAMR State Plan Submittal A. State Budgets B. CAMR State Plan VI. Statutory and Executive Order Reviews I. What Action Is EPA Proposing to Take? EPA is proposing to approve Iowa's State Plan, submitted on August 15, 2006, and April 26, 2007. In its State Plan, Iowa would meet CAMR by requiring certain coal-fired EGUs to participate in the EPA-administered cap-and-trade program addressing Hg emissions. EPA is proposing to determine that the State Plan meets the applicable requirements of CAMR. II. What Is the Regulatory History of CAMR? CAMR was published by EPA on May 18, 2005 (70 FR 28606, “Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units; Final Rule”). In this rule, acting pursuant to its authority under section 111(d) of the Clean Air Act (CAA), 42 U.S.C. 7411(d), EPA required that all States and the District of Columbia (all of which are referred to herein as States) meet Statewide annual budgets limiting Hg emissions from coal-fired EGUs (as defined in 40 CFR 60.24(h)(8)) under CAA section 111(d). EPA required all States to submit State Plans with control measures that ensure that total, annual Hg emissions from the coal-fired EGUs located in the respective States do not exceed the applicable statewide annual EGU mercury budget. Under CAMR, States may implement and enforce these reduction requirements by participating in the EPA-administered cap-and-trade program or by adopting any other effective and enforceable control measures. CAA section 111(d) requires States, and along with CAA section 301(d) and the Tribal Air Rule (40 CFR part 49) allows Tribes granted treatment as States (TAS), to submit State Plans to EPA that implement and enforce the standards of performance. CAMR explains what must be included in State Plans to address the requirements of CAA section 111(d). The State Plans were due to EPA by November 17, 2006. Under 40 CFR 60.27(b), the Administrator will approve or disapprove the State Plans. III. What Are the General Requirements of CAMR State Plans? CAMR establishes Statewide annual EGU Hg emission budgets and is to be implemented in two phases. The first phase of reductions starts in 2010 and continues through 2017. The second phase of reductions starts in 2018 and continues thereafter. CAMR requires States to implement the budgets by either:
(1)Requiring coal-fired EGUs to participate in the EPA-administered cap-and-trade program; or
(2)adopting other coal-fired EGU control measures of the respective State's choosing and demonstrating that such control measures will result in compliance with the applicable State annual EGU Hg budget. Each State Plan must require coal-fired EGUs to comply with the monitoring, recordkeeping, and reporting provisions of 40 CFR part 75 concerning Hg mass emissions. Each State Plan must also show that the State has the legal authority to adopt emission standards and compliance schedules necessary for attainment and maintenance of the State's annual EGU Hg budget and to require the owners and operators of coal-fired EGUs in the State to meet the monitoring, recordkeeping, and reporting requirements of 40 CFR part 75. IV. How Can States Comply With CAMR? Each State Plan must impose control requirements that the State demonstrates will limit Statewide annual Hg emissions from new and existing coal-fired EGUs to the amount of the State's applicable annual EGU Hg budget. States have the flexibility to choose the type of EGU control measures they will use to meet the requirements of CAMR. EPA anticipates that many States will choose to meet the CAMR requirements by selecting an option that requires EGUs to participate in the EPA-administered CAMR cap-and-trade program. EPA also anticipates that many States may chose to control Statewide annual Hg emissions for new and existing coal-fired EGUs through an alternative mechanism other than the EPA-administered CAMR cap-and-trade program. Each State that chooses an alternative mechanism must include with its plan a demonstration that the State Plan will ensure that the State will meet its assigned State annual EGU Hg emission budget. A State submitting a State Plan that requires coal-fired EGUs to participate in the EPA-administered CAMR cap-and-trade program may either adopt regulations that are substantively identical to the EPA model Hg trading rule (40 CFR part 60, subpart HHHH) or incorporate by reference the model rule. CAMR provides that States may only make limited changes to the model rule if the States want to participate in the EPA-administered trading program. A State Plan may change the model rule only by altering the allowance allocation provisions to provide for State-specific allocation of Hg allowances using a methodology chosen by the State. A State's alternative allowance allocation provisions must meet certain allocation timing requirements and must ensure that total allocations for each calendar year will not exceed the State's annual EGU Hg budget for that year. V. Analysis of Iowa's CAMR State Plan Submittal A. State Budgets In this action, EPA is proposing to approve Iowa's State Plan that adopts the annual EGU Hg budgets established for the State in CAMR, i.e., 0.727 tons for EGU Hg emissions in 2010-2017 and 0.287 tons for EGU Hg emissions in 2018 and thereafter. Iowa's State Plan sets these budgets as the total amount of allowances available for allocation for each year under the EPA-administered CAMR cap-and-trade program. B. CAMR State Plan The Iowa State Plan requires coal-fired EGUs to participate in the EPA-administered CAMR cap-and-trade program. The State Plan incorporates by reference the EPA model Hg trading rule but has adopted an alternative allowance allocation methodology. Under the Hg allowance allocation methodology in the model rule, Hg allowances are allocated to units that have operated for 5 years, based on heat input data from a 3-year period that are adjusted for coal rank by using coal factors of 3.0 for the lignite combusted by the unit, 1.25 for the subbituminous combusted by the unit, and 1 for other coal ranks combusted by the unit. The model rule also provides a new unit set-aside from which units without 5 years of operation are allocated allowances based on the units' prior year emissions. States may establish in their State Plan submissions a different Hg allowance allocation methodology that will be used to allocate allowances to sources in the States if certain requirements are met concerning the timing of submission of units' allocations to the Administrator for recordation and the total amount of allowances allocated for each control period. In adopting alternative Hg allowance allocation methodologies, States have flexibility with regard to: 1. The cost to recipients of the allowances, which may be distributed for free or auctioned; 2. The frequency of allocations; 3. The basis for allocating allowances, which may be distributed, for example, based on historical heat input or electric and thermal output; and 4. The use of allowance set-asides and, if used, their size. In Iowa's alternative allowance methodology, Iowa has modified the portion of the model rule relating to the basis for allocating allowances to new units commencing operation on or after January 1, 2001. In Iowa's rule 567-34.304, the State has limited the timeframe within which a unit can meet the requirements to apply for allowances under the new unit set-aside to units that commence operation on or after January 1, 2001, and commence construction before January 1, 2006. As a result, one facility meets this criterion and is provided the full allocation under the new source set-aside for both phases amounting to 5 percent of the State's budget for phase I and 3 percent for phase II. Also in the section relating to new units, in the event a generator is served by two or more units, the nameplate capacity will be attributed to each unit in equal fraction of the total nameplate capacity multiplied by 7900 British Thermal Units per Kilowatt Hour for the determination of heat input for each unit. Iowa's State Plan requires coal-fired EGUs to comply with the monitoring, recordkeeping, and reporting provisions of 40 CFR part 75 concerning Hg mass emissions. Iowa's State Plan also demonstrates that the State has the legal authority to adopt emission standards and compliance schedules necessary for attainment and maintenance of the State's annual EGU Hg budget and to require the owners and operators of coal-fired EGUs in the State to meet the monitoring, recordkeeping, and reporting requirements of 40 CFR part 75. Iowa cites Section 455B.133 of the Iowa Code, which contains the broad enabling authority for Iowa's air pollution control regulations, as containing the legal authority for the Iowa Environmental Protection Commission to adopt the State's rule that allows for Iowa's participation in the nationwide cap and trade program for mercury. Iowa has committed to revise a definition in its rule to fully ensure allowances can be traded among all sources participating in the EPA-administered cap-and-trade program for mercury as intended. EPA discovered after review of other States' rules, but after Iowa had adopted its Clean Air Interstate Rule
(CAIR)and CAMR rules, an issue related to the definition of “permitting authority” when it is revised to refer to a specific State's permitting authority. In Iowa's rule designed to meet CAMR, the EPA model trading rule was revised to limit all references to “permitting authority” to refer to the Iowa Department of Natural Resources. This change is acceptable in most, but not all, instances under the current model rule. In certain definitions in the model rule incorporated by Iowa (i.e., “allocate” or “allocation,” and “Hg allowance”), it is important that the term “permitting authority” cover permitting authorities in all States that choose to participate in the respective EPA-administered trading program. This is necessary to ensure that all allowances issued in the EPA-administered trading program are fungible and can be traded and used for compliance with the allowance-holding requirement in any State in the program. On February 17, 2007, EPA provided a letter to Iowa that requested and outlined necessary definition revisions for all rules intended to meet CAIR and CAMR. EPA received a letter from Iowa on February 28, 2007, that provided a commitment to make the EPA suggested rule revisions as soon as is practicable upon publication of the final rule concerning the proposed Clean Air Mercury Rule
(CAMR)Federal plan. The CAMR Federal plan was proposed on December 22, 2006, and the rulemaking also included changes to the CAMR model rule to integrate it with the proposed Federal plan. Any final changes will need to be incorporated in State rules, and Iowa prefers to wait and make one set of amendments to its State rule to address both the above-referenced definition changes and any final changes to the CAMR model rule reflecting the final Federal plan. On April 11, 2007, EPA received an electronic correspondence from Iowa stating that Iowa will, in any event, complete these rule revisions before January 1, 2008. The State will be able to simultaneously revise the “permitting authority” definition in all cap-and-trade rules for both CAIR and CAMR, and properly update the State's rule as necessary to meet the requirements of the EPA-administered cap-and-trade-program for mercury. The final rule concerning the CAMR Federal plan is expected to be published before the earliest, major deadline for compliance with requirements for source owners and operators under the CAIR trading programs, i.e., the January 1, 2008, deadline for emissions monitoring requirements under the CAIR Annual Trading Program. EPA expects that, by timing adoption of the EPA requested rule revisions to both Iowa's CAIR and CAMR rules to be soon after the publication of the final rule concerning the CAMR Federal plan, the State will ensure the revisions to the definition of “permitting authority” will be completed prior to any of the major compliance deadlines for source owners and operators under the CAIR trading programs. Even if the final rule concerning the CAMR Federal plan is not published in the expected timeframe, the State will still need to ensure the necessary State rule revisions are completed and submitted to EPA in advance of January 1, 2008. VI. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve State law as meeting Federal requirements and would impose no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action proposes to approve pre-existing requirements under State law and would not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposal also does not have Tribal implications because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed action also does not have Federalism implications because it would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a State rule implementing a Federal standard. It does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it proposes to approve a State rule implementing a Federal standard. Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” requires Federal agencies to consider the impact of programs, policies, and activities on minority populations and low-income populations. EPA guidance 1 states that EPA is to assess whether minority or low-income populations face risk or a rate of exposure to hazards that is significant and that “appreciably exceed[s] or is likely to appreciably exceed the risk or rate to the general population or to the appropriate comparison group.” (EPA, 1998) Because this rule merely proposes to approve a state rule implementing the Federal standard established by CAMR, EPA lacks the discretionary authority to modify today's regulatory decision on the basis of environmental justice considerations. However, EPA has already considered the impact of CAMR, including this Federal standard, on minority and low-income populations. In the context of EPA's CAMR published in the **Federal Register** on May 18, 2005, in accordance with Executive Order 12898, the Agency has considered whether CAMR may have disproportionate negative impacts on minority or low income populations and determined it would not. 1 U.S. Environmental Protection Agency, 1998. Guidance for Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses. Office of Federal Activities, Washington, DC, April, 1998. In reviewing State Plan submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State Plan for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a State Plan submission, to use VCS in place of a State Plan submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in Part 62 Environmental protection, Air pollution control, Electric utilities, Intergovernmental relations, Mercury, Reporting and recordkeeping requirements. Dated: August 23, 2007. John B. Askew, Regional Administrator, Region 7. [FR Doc. E7-17414 Filed 9-4-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HOMELAND SECURITY Transportation Security Administration 49 CFR Parts 1540, 1544, and 1560 [Docket No. TSA-2007-28572] RIN 1652-ZA15 Public Meeting: Secure Flight Program AGENCY: Transportation Security Administration, DHS. ACTION: Notice of public meeting and request for comments. SUMMARY: This notice provides the time and location of the public meeting which will be held by the Transportation Security Administration
(TSA)regarding the Notice of Proposed Rulemaking
(NPRM)entitled “Secure Flight Program,” which was published in the **Federal Register** on August 23, 2007 (72 FR 48356). DATES: The public meeting will be on September 20, 2007, in Washington, DC. The meeting will begin at 9 am. Persons not able to attend the meeting are invited to provide written comments, which must be received by October 22, 2007. ADDRESSES: The public meeting will be held at the Grand Hyatt Washington, 1000 H Street, NW., Washington, DC 20001. Participants should check in with Secure Flight staff. Persons unable to attend the meeting may submit comments, identified by the TSA docket number to this rulemaking, using any one of the following methods: *Comments Filed Electronically:* You may submit comments through the docket Web site at *http://dms.dot.gov.* You also may submit comments through the Federal eRulemaking portal at *http://www.regulations.gov.* *Comments Submitted by Mail, Fax, or In Person:* Address or deliver your written, signed comments to the Docket Management System at: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590; Fax: 202-493-2251. See SUPPLEMENTARY INFORMATION for format and other information about comment submissions. FOR FURTHER INFORMATION CONTACT: Kevin Knott, Policy Manager, Secure Flight, Office of Transportation Threat Assessment and Credentialing, TSA-19, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220; Telephone
(240)568-5611. SUPPLEMENTARY INFORMATION: Comments Invited TSA invites interested persons to participate in the public meeting by submitting written comments, data, or views. We invite comments relating to any aspect of the Secure Flight Program. The areas in particular in which TSA seeks information and comment at the public meeting are listed below in the “Specific Issues for Discussion” section. See ADDRESSES above for information on where to submit comments. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from this rulemaking action. See ADDRESSES above for information on where to submit comments. With each comment, please include your name and address, identify the docket number at the beginning of your comments, and give the reason for each comment. The most helpful comments reference a specific topic, explain the reason for any recommendation, and include supporting data. You may submit comments and material electronically, in person, by mail, or fax as provided under ADDRESSES , but please submit your comments and material by only one means. If you submit comments by mail or delivery, submit them in two copies, in an unbound format, no larger than 8.5 by 11 inches, suitable for copying and electronic filing. If you want TSA to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you. TSA will file in the public docket all comments received by TSA, except for comments containing confidential information and sensitive security information (SSI), 1 TSA will consider all comments received on or before the closing date for comments and will consider comments filed late to the extent practicable. The docket is available for public inspection before and after the comment closing date. 1 “Sensitive Security Information” or “SSI” is information obtained or developed in the conduct of security activities, the disclosure of which would constitute an unwarranted invasion of privacy, reveal trade secrets or privileged or confidential information, or be detrimental to the security of transportation. The protection of SSI is governed by 49 CFR part 1520. Handling of Confidential or Proprietary Information and Sensitive Security Information
(SSI)Submitted in Public Comments Do not submit comments that include trade secrets, confidential commercial or financial information, or SSI to the public regulatory docket. Please submit such comments separately from other comments on the rulemaking. Comments containing this type of information should be appropriately marked as containing such information and submitted by mail to the address listed in FOR FURTHER INFORMATION CONTACT section. Upon receipt of such comments, TSA will not place the comments in the public docket and will handle them in accordance with applicable safeguards and restrictions on access. TSA will hold them in a separate file to which the public does not have access, and place a note in the public docket that TSA has received such materials from the commenter. If TSA receives a request to examine or copy this information, TSA will treat it as any other request under the Freedom of Information Act
(FOIA)(5 U.S.C. 552) and the Department of Homeland Security's (DHS's) FOIA regulation found in 6 CFR part 5. Reviewing Comments in the Docket Please be aware that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the applicable Privacy Act Statement published in the **Federal Register** on April 11, 2000 (65 FR 19477), or you may visit *http://dms.dot.gov.* You may review the comments in the public docket by visiting the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Dockets Office is located in the West Building Ground Floor, Room W12-140, at the Department of Transportation address, previously provided under ADDRESSES . Also, you may review public dockets on the Internet at *http://dms.dot.gov.* Availability of Document You can get an electronic copy using the Internet by—
(1)Searching the Department of Transportation's electronic Docket Management System
(DMS)Web page ( *http://dms.dot.gov/search* ); or
(2)Visiting TSA's Security Regulations Web page at *http://www.tsa.gov* and accessing the link for “Research Center” at the top of the page. In addition, copies are available by writing or calling the individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to identify the docket number of this action. Background TSA performs passenger and baggage screening at the Nation's commercial airports. 2 Aircraft operators currently supplement this security screening by performing passenger watch list matching using the Federal No Fly and Selectee Lists, as required under security directives that TSA issued following the terrorist attacks of September 11, 2001. Aircraft operators also conduct this watch list matching process for non-traveling individuals 3 authorized to enter the sterile area 4 of an airport in order to escort a passenger or for some other purpose approved by TSA. 2 See the Aviation and Transportation Security Act
(ATSA)(Pub. L. 107-71, 115 Stat. 597, Nov. 19, 2001). 3 “Non-traveling individual” is defined in the NPRM for the Secure Flight Program as an individual to whom a covered aircraft operator or covered airport operator seeks to issue an authorization to enter the sterile area of an airport in order to escort a minor or a passenger with disabilities or for some other purpose permitted by TSA. It would not include employees or agents of airport or aircraft operators or other individuals whose access to a sterile area is governed by another TSA regulation or security directive. Proposed 49 CFR 1560.3. 4 “Sterile area” is defined in 49 CFR 1520.5 as “a portion of an airport defined in the airport security program that provides passengers access to boarding aircraft and to which the access generally is controlled by TSA, or by an aircraft operator under part 1544 of this chapter or a foreign air carrier under part 1546 of this chapter, through the screening of persons and property.” The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) requires TSA to assume from air carriers the comparison of passenger information to the automatic Selectee and No Fly Lists and to utilize all appropriate records in the consolidated and integrated watch list that the Federal Government maintains. 5 The final report of the National Commission on Terrorist Attacks Upon the United States (9/11 Commission Report) recommends that the watch list matching function “should be performed by TSA and it should utilize the larger set of watch lists maintained by the Federal Government.” See 9/11 Commission Report at 393. 5 Pub. L. 108-458, 118 Stat. 3638, Dec. 17, 2004. On August 23, 2007, TSA published in the **Federal Register** (72 FR 48356) the NPRM for the Secure Flight Program describing TSA's proposal for assuming the responsibility for passenger watch list matching from covered aircraft operators. 6 TSA seeks comment on the proposal described in the NPRM. TSA intends to analyze the public comments and issue a final rule. 6 TSA proposes to define a “covered aircraft operator” as a U.S. aircraft operator that is required to have a full program under 49 CFR 1544.101(a) or a foreign air carrier that is required to have a security program under 49 CFR 1546.101(a) or (b). Proposed § 1560.3. Specific Issues for Discussion There are several areas in particular in which TSA seeks information and comment from the industry at the public meeting, listed below. These key issues are intended to help focus public comments on subjects that TSA must explore in order to complete its review of the proposed Secure Flight program. The comments at the meeting need not be limited to these issues, and TSA invites comments on any other aspect of the proposed Secure Flight program. These are:
(1)Proposed data elements.
(2)Proposed data retention schedule.
(3)Proposed 72-hour data transmission requirement.
(4)Proposed watch list matching procedures for overflights.
(5)Proposed watch list matching procedures for international 2-leg boarding pass issuance.
(6)Proposed requirement for placing a code, such as a bar code, on boarding passes.
(7)Proposed privacy notice requirement.
(8)Proposed compliance schedule and estimated compliance costs. Participation at the Meeting The meeting is expected to begin at 9 a.m. Following an introduction by TSA, members of the public will be invited to ask clarifying questions or present their views. Anyone wishing to present an oral statement at the meeting must register to present comments between 8 and 9:30 a.m. on the day of the meeting, and provide his or her name and affiliation. Such requests will be met on a first-come, first-served basis. Speakers should keep comments brief and plan to speak for no more than five minutes when presenting comments. Public Meeting Procedures TSA will use the following procedures to facilitate the meeting:
(1)There will be no admission fee or other charge to attend or to participate in the meeting. The meeting will be open to all persons. All persons who wish to present an oral statement must register to present comments between 8 and 9:30 a.m. on the day of the meeting. TSA will make every effort to accommodate all persons who wish to participate, but admission will be subject to availability of space in the meeting room. The meeting may adjourn early if scheduled speakers complete their statements or questions in less time than is scheduled for the meeting.
(2)An individual, whether speaking in a personal or a representative capacity on behalf of an organization, will be limited to a five-minute statement and scheduled on a first-come, first-served basis.
(3)Any speaker prevented by time constraints from speaking will be encouraged to submit written remarks, which will be made part of the record.
(4)For information on facilities or services for individuals with disabilities or to request assistance at the meeting, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above before September 13, 2007.
(5)Representatives of TSA will preside over the meeting.
(6)The meeting will be recorded by a court reporter. Any person who is interested in purchasing a copy of the transcript should contact the court reporter directly.
(7)Statements made by TSA representatives are intended to facilitate discussion of the issues or to clarify issues. Any statement made during the meeting by a TSA representative is not intended to be, and should not be construed as, a position of TSA.
(8)The meeting is designed to invite public views and gather additional information. No individual will be subject to cross-examination by any other participant; however, TSA representatives may ask questions to clarify a statement. Issued in Arlington, Virginia, on August 31, 2007. Stephanie Rowe, Assistant Administrator for Transportation Threat Assessment & Credentialing. [FR Doc. E7-17607 Filed 9-4-07; 8:45 am] BILLING CODE 9110-05-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018-AU68 Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Rio Grande Silvery Minnow in the Big Bend Reach of the Rio Grande in Texas AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule; notice of availability of draft environmental assessment; notice of public hearing. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), in cooperation with the National Park Service, and the United States Section of the International Boundary and Water Commission, propose to reestablish the Rio Grande silvery minnow ( *Hybognathus amarus* ), a Federally listed endangered fish, into its historic habitat in the Big Bend reach of the Rio Grande in Presidio, Brewster, and Terrell counties, Texas. We propose to reestablish the Rio Grande silvery minnow under section 10(j) of the Endangered Species Act of 1973, as amended (ESA), and to classify it as a nonessential experimental population (NEP). On the Rio Grande, the geographic boundaries of the NEP would extend from Little Box Canyon downstream of Ft. Quitman, Hudspeth County, Texas, through Big Bend National Park and the Rio Grande Wild and Scenic River, to Amistad Dam and the nearby railroad bridge (Big Bend reach of the Rio Grande). On the Pecos River, the geographic boundaries of the NEP would extend from the river's confluence with Independence Creek to its confluence with the Rio Grande. This proposed reestablishment is part of the recovery actions that the Service, Federal and State agencies, and other partners are conducting throughout the species' historic range. This proposed rule provides a plan for establishing the NEP and provides for limited allowable legal taking of Rio Grande silvery minnows within the defined NEP area. A draft environmental assessment
(EA)has been prepared on this proposed action and is available for comment (see ADDRESSES section below). DATES: We request that comments on this proposal be submitted by the close of business on November 5, 2007. We will also hold one public hearing on this proposed rule on October 10, 2007, at 7 p.m. ADDRESSES: Written Comments. You may submit written comments and other information by any of the following methods (please see “Public Comments Solicited” section below for additional guidance): 1. *Mail or hand delivery:* Field Supervisor, Austin Ecological Services Field Office, 107011 Burnet Road, Suite 200, Austin, TX 78758. 2. *Fax:*
(512)490-0974. 3. *E-mail: Aimee_Roberson@fws.gov.* Obtaining information from the Service. You may obtain copies of the proposed rule and the draft EA from the street address given above or by calling
(512)490-0057. The proposed rule and draft EA are also available from our Web site at *http://www.fws.gov/southwest/es/Library/.* The supporting file for this proposed rule will be available for public inspection, by appointment, during normal business hours, at the New Mexico Ecological Services Field Office, 2105 Osuna Road NE., Albuquerque, New Mexico 87113 and at the Fish and Wildlife Service's office at 500 West Avenue H, Suite 104F, Alpine, Texas 79830. Public Hearing The public hearing will be held October 10, 2007, at Sul Ross State University, Gallego Center, Room 129, Alpine, Texas. The hearing will begin at 7 p.m. and last until 8:45 p.m., with an informal question and answer session beginning at 6 p.m. FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, Austin Ecological Services Field Office, telephone (512)-490-0057 (see ADDRESSES above). SUPPLEMENTARY INFORMATION: Public Comments Solicited We want the final rule to be as effective as possible and the final EA on the proposed action to evaluate all potential issues associated with this action. Therefore, we invite the public, Tribal and government agencies, the scientific community, industry, and other interested parties to submit comments or recommendations concerning any aspect of this proposed rule and the draft EA. Comments should be as specific as possible. To issue a final rule to implement this proposed action and to determine whether to prepare a finding of no significant impact or an environmental impact statement, we will take into consideration all comments and any additional information we receive. Such communications may lead to a final rule that differs from this proposal. All comments, including commenters' names and addresses, if provided to us, will become part of the supporting record. If you wish to provide comments and/or information, you may submit your comments and materials by any one of several methods (see ADDRESSES section). Comments submitted electronically should be in the body of the e-mail message itself or attached as a text file (ASCII), and should not use special characters or encryption. Please also include “Attn: RGSM Proposed 10(j) Designation,” in your e-mail message. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Background Legislative The ESA provides that species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 and the requirements of section 7. Section 9 of the ESA, among other things, prohibits the take of endangered wildlife. “Take” is defined by the ESA as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. Service regulations (50 CFR 17.31) generally extend the prohibitions of take to threatened wildlife. Section 7 of the ESA outlines the procedures for Federal interagency cooperation to conserve federally listed species and protect designated critical habitat. It mandates that all Federal agencies use their existing authorities to further the purposes of the ESA by carrying out programs for the conservation of listed species. It also states that Federal agencies will, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the ESA does not affect activities undertaken on private land unless they are authorized, funded, or carried out by a Federal agency. Under section 10(j) of the ESA, the Secretary of the Department of the Interior can designate reintroduced populations established outside the species' current range, but within its historic range, as “experimental.” With the experimental population designation, the relevant population is treated as threatened for purposes of section 9 of the ESA, regardless of the species' designation elsewhere in its range. Threatened designation allows us greater discretion in devising management programs and special regulations for such a population. Section 4(d) of the ESA allows us to adopt whatever regulations are necessary and advisable to provide for the conservation of a threatened species. In these situations, the general regulations that extend most section 9 prohibitions to threatened species do not apply to that species, and the 10(j) rule contains the prohibitions and exemptions necessary and appropriate to conserve that species. Based on the best scientific and commercial data available, we must determine whether the experimental population is *essential* or *nonessential* to the continued existence of the species. The regulations (50 CFR 17.80b) state that an experimental population is considered essential if its loss would be likely to appreciably reduce the likelihood of survival of that species in the wild. All other populations are considered nonessential. We have determined that this experimental population would not be essential to the continued existence of the species in the wild. Therefore, the Service is proposing to designate a nonessential experimental population
(NEP)for the species in this area. For the purposes of section 7 of the ESA, we treat an NEP as a threatened species when the NEP is located within a National Wildlife Refuge or National Park, and section 7(a)(1) and the consultation requirements of section 7(a)(2) of the ESA apply. Section 7(a)(1) requires all Federal agencies to use their authorities to carry out programs for the conservation of listed species. Section 7(a)(2) requires that Federal agencies, in consultation with the Service, insure that any action authorized, funded, or carried out is not likely to jeopardize the continued existence of a listed species or adversely modify its critical habitat. When NEPs are located outside a National Wildlife Refuge or National Park, we treat the population as proposed for listing, and only two provisions of section 7 apply—section 7(a)(1) and section 7(a)(4). In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. The results of a conference are in the form of conservation recommendations that are optional as the agencies carry out, fund, or authorize activities. Activities that are not carried out, funded, or authorized by Federal agencies, and are not on Federal lands are not affected by a NEP designation. Rio Grande silvery minnows that are used to establish an experimental population may come from a donor population, provided their removal will not create adverse impacts upon the parent population, and provided appropriate permits are issued in accordance with our regulations (50 CFR 17.22) prior to their removal. In the case of the Rio Grande silvery minnow, the donor population is a captive-bred population that was propagated with the intention of re-establishing wild populations to achieve recovery goals. In addition, it is possible that stock raised from wild eggs could also be released into the NEP area. Rio Grande silvery minnow eggs are collected from the wild population in New Mexico each year and are raised in captivity to provide individuals for captive propagation and augmentation of the wild population. Critical habitat has been designated for the Rio Grande silvery minnow in New Mexico (68 FR 8088-8135; February 19, 2003), and the designated critical habitat does not include this NEP area. Section 10(j)(2)(C)(ii) of the ESA states that critical habitat shall not be designated for any experimental population that is determined to be nonessential. Accordingly, we cannot designate critical habitat in areas where we have already established an NEP. Biological The Rio Grande silvery minnow is one of seven species in the genus *Hybognathus* found in the United States (Pflieger 1980, p. 177). The species was first described by Girard (1856 in Service 1999, p. 38) from specimens taken from the Rio Grande near Fort Brown, Cameron County, Texas. It is a stout silvery minnow with moderately small eyes and a small, slightly oblique mouth. Adults may reach 5 inches
(in)(125 millimeters (mm)) in total length (Remshardt 2006b). Its dorsal fin is distinctly pointed with the front of it located slightly closer to the tip of the snout than to the base of the tail. The fish is silver with emerald reflections. Its belly is silvery white, its fins are plain, and barbels are absent (Sublette *et al.* 1990, pp. 129-130). This species was historically one of the most abundant and widespread fishes in the Rio Grande Basin, occurring from Española, New Mexico, to the Gulf of Mexico (Bestgen and Platania 1991, p. 225). It was also found in, but is now absent from, the Pecos River, a major tributary of the Rio Grande, from Santa Rosa, New Mexico, downstream to its confluence with the Rio Grande (Pflieger 1980, p. 177). The Rio Grande silvery minnow is extirpated from the Pecos River and also from the Rio Grande downstream of Elephant Butte Reservoir and upstream of Cochiti Reservoir (Bestgen and Platania 1991, pp. 226-229). The current distribution of the Rio Grande silvery minnow is limited to the Rio Grande between Cochiti Dam and Elephant Butte Reservoir in New Mexico, which is only about 5 percent of its historic range (Bestgen and Platania 1991, pp. 226-229). Throughout much of its historic range, the decline of the Rio Grande silvery minnow has been attributed to modification of the flow regime (hydrological pattern of flows that vary seasonally in magnitude and duration, depending on annual precipitation patterns such as runoff from snowmelt), channel drying, reservoirs and dams, stream channelization, and perhaps interactions with nonnative fish and decreasing water quality (Cook *et al.* 1992, p. 42; Bestgen and Platania 1991, pp. 229-230; Service 1999, pp. 1-2). Development of agriculture and the growth of cities within the historic range of the Rio Grande silvery minnow resulted in a decrease in the quality of river water caused by municipal and agricultural runoff (i.e., sewage and pesticides) that may have also adversely affected the range and distribution of the Rio Grande silvery minnow (Service 1999, p. 2). The various life history stages of the Rio Grande silvery minnow require low velocity habitats with a sandy and silty substrate that is generally associated with a meandering river that includes side channels, oxbows, and backwaters (Bestgen and Platania 1991, pp. 227-228). Although the Rio Grande silvery minnow is a hardy fish, capable of withstanding many of the natural stresses of the desert aquatic environment, its maximum documented longevity in the wild is about 25 months, and very few survive more than 13 months. However, it is not uncommon for Rio Grande silvery minnows in captivity to live beyond 2 years (Service 2007, p. 8). Thus, a successful annual spawn is key to the survival of the species (Service 1999, p. 20; Dudley and Platania 2001, pp. 16-21; Dudley and Platania 2002, p. 3). More information about the life history and decline of the Rio Grande silvery minnow can be found in the final designation of critical habitat for the species (February 19, 2003; 68 FR 8088-8090) and in the Rio Grande Silvery Minnow Recovery Plan (Recovery Plan; Service 1999, pp. 1-38). The Rio Grande silvery minnow is extirpated from the Big Bend reach of the Rio Grande (Service 2007). Natural repopulation is not possible without human assistance due to extensive reaches of river with no Rio Grande silvery minnow habitat (including large reservoirs, where this species cannot survive) between where the species currently exists in the wild in New Mexico and the Big Bend reach. Reasons for the species' extirpation in the Rio Grande in Texas are uncertain, but are believed to have been due to a combination of low flows caused by drought and diversions and of water pollution in the 1950s (Edwards 2005, p. 3). The last documentation of a Rio Grande silvery minnow in the Big Bend reach of the Rio Grande was in 1960 (Bestgen and Platania 1991, p. 229). However, the Big Bend reach has not experienced extensive drying since the drought of the 1950s, and the continuing presence of members of the pelagic spawning guild with life history requirements similar to the Rio Grande Silvery minnow are evidence that the Big Bend reach of the Rio Grande may support reestablishment of Rio Grande silvery minnow (Edwards 2005, pp. 37-38). Water quality in the Big Bend reach appears to be generally improving over time, and we do not believe it is a primary determinant of the survivability of the Rio Grande silvery minnow in this reach (Edwards 2005). In addition, most of the Rio Grande in the Big Bend Reach on both sides of the river is designated as a conservation area and managed for habitat protection and improvement by the State of Texas, the National Park Service, and governmental agencies and private organizations in Mexico (Edwards 2005, p. 11). The Service contracted a study examining the suitability of the habitat in the Big Bend reach of the Rio Grande for the Rio Grande silvery minnow. The completed study indicates that there is a reasonable likelihood that Rio Grande silvery minnows will survive in this portion of the Rio Grande. It also identifies the need for habitat restoration projects, with an emphasis on the removal of invasive, nonnative species, such as salt cedar ( *Tamarix chinensis* ) and giant river cane (also known as giant reed; *Arundo donax* ), which can prevent sediment from entering the river in amounts that are needed to form Rio Grande silvery minnow habitat (Edwards 2005, pp. 43-44). We anticipate working with land managers and other interested parties, on a voluntary basis, to develop plans to further guide and accomplish habitat management and restoration activities, including removal and control of invasive, nonnative species, such as salt cedar and giant river cane. Recovery Efforts We published the final rule to federally list the Rio Grande silvery minnow on July 20, 1994 (59 FR 36988). Restoring an endangered or threatened species to the point where it is recovered is a primary goal of our endangered species program. Thus, on July 1, 1994, the Rio Grande Silvery Minnow Recovery Team (Recovery Team) was established under section 4(f)(2) of the ESA and our cooperative policy on recovery plan participation, a policy intended to involve stakeholders in recovery planning (July 1, 1994; 59 FR 34272). Numerous individuals, agencies, and affected parties were involved in the development of the Recovery Plan or otherwise provided assistance and review (Service 1999, pp. 63-67). On July 8, 1999, we finalized the Recovery Plan (Service 1999, 71 pp.). The Recovery Plan has been updated and revised, and a draft revised Recovery Plan (Service 2007) was released for public comment on January 18, 2007 (72 FR 2301). The draft revised Recovery Plan describes recovery goals for the Rio Grande silvery minnow (Service 2007, pp. 66-73) and actions for their completion (Service 2007, pp. 74-109). The three goals identified for the recovery and delisting of the Rio Grande silvery minnow are:
(1)Prevent the extinction of the Rio Grande silvery minnow in the middle Rio Grande of New Mexico;
(2)Recover the Rio Grande silvery minnow to an extent sufficient to change its status on the List of Endangered and Threatened Wildlife from endangered to threatened (downlisting). This may be considered when three populations (including at least two that are self-sustaining) of the species have been established within the historic range of the species and have been maintained for at least 5 years; and
(3)Recover the Rio Grande silvery minnow to an extent sufficient to remove it from the List of Endangered and Threatened Wildlife (delisting). This may be considered when three self-sustaining populations have been established within the historic range of the species, and they have been maintained for at least 10 years (Service 2007, p. 66). The Rio Grande silvery minnow's range has been so greatly restricted that the species is extremely vulnerable to catastrophic events, such as a prolonged period of low or no flow in its habitat in the middle Rio Grande in New Mexico (i.e., the loss of all surface water) (Dudley and Platania 2001, p. 21). Reestablishment of the Rio Grande silvery minnow into other areas of its historic range will assist in the species' recovery and long-term survival in part because it is unlikely that any single event would simultaneously eliminate the Rio Grande silvery minnow from three geographic areas (Service 1999, pp. 57-61). The Recovery Team developed a reach-by-reach analysis of the Rio Grande and Pecos River basins to identify the salient hydrological, chemical, and biological features of each reach. This analysis addressed the threats to the Rio Grande silvery minnow and considered the suitability of each reach for potential reestablishment (Service 2007). The Recovery Team's reach-by-reach analysis considered:
(1)The reasons for the species' extirpation from the selected reach;
(2)the presence of other members of the reproductive guild (pelagic spawner; non-adhesive, semibuoyant eggs);
(3)habitat conditions (including susceptibility to river drying and presence of diversion structures); and
(4)the presence of congeners (i.e., other species of *Hybognathus* ). After completing their analysis, the Recovery Team identified the Big Bend reach of the Rio Grande as the first priority for reestablishment efforts (Service 2007, p. 160) (see “Reestablishment Area'' below for more details). In accordance with the Recovery Plan, we have initiated a captive propagation program for the Rio Grande silvery minnow (Service 1999, pp. 60-61). We currently have Rio Grande silvery minnows housed at:
(1)The Service's Dexter National Fish Hatchery and Technology Center, Dexter, New Mexico;
(2)the City of Albuquerque's Biological Park, Albuquerque, New Mexico; and
(3)the New Mexico State University, Las Cruces, New Mexico. These facilities are actively propagating and rearing Rio Grande silvery minnows. Offspring of these fish are being used to augment the Rio Grande silvery minnow population in the middle Rio Grande, New Mexico. Ongoing recovery efforts involving the release of captive-bred Rio Grande silvery minnows for augmentation of the population in the middle Rio Grande of New Mexico have demonstrated the potential viability of reestablishment as a tool for Rio Grande silvery minnow conservation. In 2000, the Service initiated captive propagation as a strategy to assist in the recovery of the Rio Grande silvery minnow. Captive propagation is conducted in a manner that will, to the maximum extent possible, preserve the genetic and ecological distinctiveness of the Rio Grande silvery minnow and minimize risks to existing wild populations. Since 2000, approximately one million silvery minnows have been propagated (using both adult wild silvery minnows and wild-caught eggs) and then released into the wild in New Mexico. Wild gravid adults are successfully spawned in captivity at the City of Albuquerque's propagation facilities. Eggs left in the wild have a very low survivorship and spawning in captivity ensures that an adequate number of spawning adults are present to repopulate the river each year. While hatcheries continue to successfully spawn silvery minnows, wild eggs are collected to ensure genetic diversity within the remaining population. This program is carefully monitored so that it will not have an adverse effect on the wild population of Rio Grande silvery minnows in New Mexico. Direct and indirect evidence from the Rio Grande silvery minnow monitoring program indicates that augmentation efforts in the Rio Grande near Albuquerque, New Mexico, are contributing to an increase in catch ( *i.e.* , during seining) rates of Rio Grande silvery minnows. The success of this augmentation effort indicates that hatchery-raised individuals can be released back to the wild with adequate retention in or near original release sites, can experience survival of at least 2 years after release, and ultimately can contribute to future spawning efforts (Remshardt 2006, pp. 11-12). The source of Rio Grande silvery minnows for releases in the Big Bend reach will likely be from the Service's Dexter National Fish Hatchery and Technology Center, or another Service facility set up to provide fish specifically for this purpose. Expanding the Rio Grande silvery minnow's propagation program for potential releases into the Big Bend reach will result in more fish being produced overall and will not negatively impact the current program, which is producing Rio Grande silvery minnows for augmentation of the population in New Mexico. Reestablishment Area The primary factors resulting in the determination by the Recovery Team that the Rio Grande reach from Presidio to Amistad Reservoir is the most suitable for reintroduction efforts are water quality and quantity; the presence of suitable habitat; a lack of barriers to fish movement; a lack of ongoing activities that are likely to adversely affect the Rio Grande silvery minnow; and that most of the Rio Grande in the Big Bend Reach on both sides of the river is designated as a conservation area and managed for habitat protection and improvement by the State of Texas, the National Park Service, and governmental agencies and private organizations in Mexico (Edwards 2005, p. 11). The Big Bend reach is generally perennial with a base flow of approximately 400 cubic feet per second (cfs). Severe flow reductions only occurred during the severest droughts in the 1950s. A period of intermittent drying did occur in 2003. However, this drying event appears to have been brief and occurred in a small area. In addition, this reach is not levied and has small rock dam weirs, all but one of which (Foster's weir, at the end of the reach deemed suitable) does not appear to be a barrier to fish movement. The substrate ranges from silt to cobble and boulder depending on local conditions. Almost half of this reach is in canyons, including the Big Bend National Park. The lower canyons reach has spring input resulting in improved water quality and quantity. Outside the canyon reaches, the river is braided in some sections with a moderate gradient, providing areas of suitable habitat for Rio Grande silvery minnows. In addition, there are no regular channel maintenance activities in this reach. Based on the above information, we believe that the Rio Grande, from Mulato Dam (near the western border of Big Bend Ranch State Park) to Foster's Weir, east of the Terrell/Val Verde county line, contains suitable habitat for the Rio Grande silvery minnow and that it is likely the species can be successfully reestablished in the Big Bend reach. Establishment of a viable population of Rio Grande silvery minnows in the Big Bend reach of the Rio Grande under this proposed NEP designation would help achieve one of the primary recovery goals for downlisting and eventually delisting this species (see “Recovery Efforts'' section above for more information). However, it would take several years of monitoring to fully evaluate if Rio Grande silvery minnows have become established and remain viable in this river reach. Therefore, we are proposing to release the Rio Grande silvery minnow into its historic habitat in this area. The NEP area, which encompasses all potential release sites, will be located
(1)in the Rio Grande, from Little Box Canyon downstream of Ft. Quitman, Hudspeth County, Texas, through Big Bend National Park and the Rio Grande Wild and Scenic River, to Amistad Dam and the nearby railroad bridge; and
(2)in the Pecos River, from its confluence with Independence Creek to its confluence with the Rio Grande. Section 10(j) of the ESA requires that an experimental population be geographically separate from other wild populations of the same species. This NEP area is totally isolated from existing populations of this species by large reservoirs, and this fish is not known to move through large reservoirs. Therefore, the reservoirs would act as barriers to the species' downstream movement in the Rio Grande below Amistad Reservoir, and would ensure that this NEP remains geographically isolated and easily distinguishable from existing upstream wild populations in New Mexico. Based on the habitat requirements of the Rio Grande silvery minnow, we do not expect them to become established outside the NEP. The geographic extent being proposed for NEP designation is larger than needed as only portions of this proposed NEP area contain suitable habitat. However, this area represents what we believe to be the maximum geographic extent to which the fish could move if released in the Big Bend reach of the Rio Grande. We believe including this additional area provides a more effective recovery strategy by eliminating changing regulatory requirements in case Rio Grande silvery minnows unexpectedly move beyond the expected establishment area. If any of the released Rio Grande silvery minnows, or their offspring, move outside the designated NEP area, then the Service would consider these fish to have come from the NEP area, and we would propose to amend this 10(j) rule to enlarge the boundaries of the NEP area to include the entire range of the expanded populations. Release Procedures The exact dates for releases have not been determined at this time. However, an implementation plan, including information about potential release sites, methods, and the number of individuals to be released, is appended to the draft EA and is also available for public comment. As part of the Rio Grande silvery minnow augmentation program in New Mexico, the Service evaluated different release strategies such as time of year, time of day, specific release habitats, and various hatchery environments (natural outdoor ponds versus indoor facilities). All of this information adds to our knowledge of the species and will assist us in future recovery actions, such as providing release procedures and monitoring strategies for the proposed reestablishment of Rio Grande silvery minnows in the Big Bend reach (Remshardt 2006, pp. v, 13-15). Status of Reestablished Population As stated earlier, we have determined that this reintroduced population is nonessential. This determination has been made for the following reasons:
(a)An established population of Rio Grande silvery minnows exists in the middle Rio Grande, New Mexico;
(b)Captive propagation facilities maintain a captive population and provide adequate numbers of Rio Grande silvery minnows to maintain the wild New Mexico population at current levels;
(c)The additional number of silvery minnows needed for reestablishment would not inhibit the augmentation efforts to maintain the established population in the middle Rio Grande, New Mexico; and
(d)The possible failure of this proposed action would not appreciably reduce the likelihood of survival of the species in the wild. If this proposal is adopted, we would ensure, through our section 10 permitting authority and the section 7 consultation process, that the use of Rio Grande silvery minnows from any donor population for releases in the Big Bend reach is not likely to jeopardize the continued existence of the species in the wild. Reestablishment of populations within the Rio Grande silvery minnow's historic range is necessary to further the recovery of this species (Service 2007, p. 67). We believe that incidental take of members of the NEP associated with otherwise lawful activities would not pose a substantial threat to Rio Grande silvery minnow recovery, as activities that currently occur in the NEP area are compatible with Rio Grande silvery minnow recovery. For example, there are no major dams or diversions in the Big Bend reach, which are the primary threats to the species within its current range in the Rio Grande in New Mexico. Also, most of the portion of the Big Bend reach in which we expect Rio Grande silvery minnows to become established is protected and managed for fish and wildlife and other natural resources by State and Federal agencies in both the United States and Mexico. Thus, the more stringent legal protections provided under an essential experimental population are unnecessary. The anticipated success of this reestablishment would enhance the conservation and recovery potential of this species by extending its present range into currently unoccupied historic habitat (Service 2007, pp. 159-171). Management The aquatic resources in the reestablishment area are managed by the National Park Service, the International Boundary and Water Commission, the State of Texas, and private landowners. Multiple-use management of these waters would not change as a result of the experimental population designation. Agricultural, recreational, and other activities by private landowners within and near the NEP area would not be affected by this rule and the subsequent release of the Rio Grande silvery minnow. Because of the exceptions provided by NEP designation, we do not believe the reestablishment of Rio Grande silvery minnows would conflict with existing human activities or hinder public use of the area. The Service, the National Park Service, the International Boundary and Water Commission, and Texas Parks and Wildlife Department employees would plan and manage the reestablishment of Rio Grande silvery minnows. This group would closely coordinate on releases, monitoring, coordination with landowners and land managers, and public awareness, among other tasks necessary to ensure successful reestablishment of the species. The Service has also convened a Technical Team comprised of representatives from these agencies and other experts. This Technical Team assisted in the development of the Implementation and Monitoring Plan that is appended to the draft EA.
(a)*Mortality:* The regulations implementing the ESA define “incidental take” as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity (50 CFR 17.3) such as recreation (e.g., fishing, boating, wading, trapping or swimming), forestry, agriculture, and other activities that are in accordance with Federal, Tribal, State, and local laws and regulations. If this 10(j) rule is finalized, take of a Rio Grande silvery minnows within the experimental population area would be allowed provided that the take is unintentional and is not due to negligent conduct. However, if there is evidence of intentional take of a Rio Grande silvery minnow within the experimental population area, we would refer the matter to the appropriate entities for investigation. We expect levels of incidental take to be low since the reestablishment is compatible with existing human use activities and practices for the area. More specific information regarding take can be found in the Proposed Regulation Promulgation section of this proposed rule.
(b)*Special handling:* In accordance with 50 CFR 17.21(c)(3), any employee or agent of the Service, any other Federal land management agency, or State personnel, designated for such purposes, may, in the course of their official duties, handle Rio Grande silvery minnows for scientific purposes; relocate Rio Grande silvery minnows to avoid conflict with human activities; relocate Rio Grande silvery minnows to other release sites for recovery purposes; aid sick or injured Rio Grande silvery minnows; and, salvage dead Rio Grande silvery minnows. However, non-Service personnel and their agents would need to acquire permits from the Service for these activities.
(c)*Coordination with landowners and land managers:* The Service and cooperators have identified issues and concerns associated with the proposed Rio Grande silvery minnow reestablishment through the National Environmental Policy Act
(NEPA)(42 U.S.C. 4321 *et seq.* ) scoping comment period. The proposed reestablishment also has been discussed with potentially affected State agencies and private landowners. Affected State agencies, landowners, and land managers have indicated support for the proposed reestablishment, provided a NEP is designated and land and water use activities in the proposed NEP area are not constrained.
(d)*Monitoring:* After the initial release of Rio Grande silvery minnows, we would monitor their presence or absence at least annually and document any spawning behavior or young-of-year fish that might be present. Depending on available resources, monitoring may occur more frequently, especially during the first few years of reestablishment efforts. This monitoring would be conducted primarily by seining and would be accomplished by Service, National Park Service, or State employees or by contracting with the appropriate species experts. Annual reports would be produced detailing stocking and monitoring activities that took place during the previous year. We would also fully evaluate these reestablishment efforts every 5 years to determine whether to continue or terminate them.
(e)*Public awareness and cooperation:* On August 9, 2005, we mailed letters to potentially affected Congressional offices, Federal and State agencies, local governments, landowners, and interested parties to notify them that we were considering proposing NEP status in the Rio Grande and Pecos River for the Rio Grande silvery minnow. We received a total of 10 responses during the September 2005 scoping meetings and comment period. The comments received are listed in the EA and have been considered in the formulation of alternatives considered in the NEPA process. Public Hearings The ESA provides for one or more public hearings on this proposed rule, if requested. Given the likelihood of a request, we have scheduled one public hearing. We will hold a public hearing as specified above in the DATES and ADDRESSES section above. Announcements for the public hearing will be made in local newspapers. Appropriate County and State officials, as well as Mexican officials, will be notified. Public hearings are designed to gather relevant information that the public may have and that we should consider in our rulemaking. During the hearing, we will present information about the proposed action. We invite the public to submit information and comments at the hearing or in writing during the open public comment period. We encourage persons wishing to comment at the hearing to provide a written copy of their statement at the start of the hearing. This notice and public hearing will allow all interested parties to submit comments on the proposed NEP rule for the Rio Grande silvery minnow. We are seeking comments from the public, other concerned governmental agencies, Tribes, the scientific community, industry, or any other interested parties concerning the proposal. Persons may send written comments to the Austin Ecological Services Field Office (see ADDRESSES section) at any time during the open comment period (See DATES section). We will give equal consideration to oral and written comments. Peer Review In accordance with our policy on peer review, published on July 1, 1994 (59 FR 34270), we will provide copies of this proposed rule to three appropriate and independent specialists in order to solicit comments on the scientific data and assumptions relating to the supportive biological and ecological information for this proposed NEP designation. The purpose of such review is to ensure that the proposed NEP designation is based on the best scientific information available. We will invite these peer reviewers to comment during the public comment period and will consider their comments and information on this proposed rule during preparation of a final determination. Required Determinations Regulatory Planning and Review (E.O. 12866) In accordance with the criteria in Executive Order 12866, this proposed rule to designate NEP status for the Rio Grande silvery minnow in the Big Bend reach of the Rio Grande, Texas, is not a significant regulatory action subject to Office of Management and Budget review. This rule will not have an annual economic effect of $100 million or more on the economy and will not have an adverse effect on any economic sector, productivity, competition, jobs, the environment, or other units of government. Therefore, a cost-benefit and economic analysis is not required. We do not expect this rule to have significant impacts to existing human activities (e.g., agricultural activities, ranching, grazing, salt cedar and giant river cane control, forestry, fishing, boating, wading, swimming, trapping) in the watershed. The reestablishment of this federally listed species, which will be accomplished under NEP status with its associated regulatory relief, is not expected to impact Federal agency actions. Because of the substantial regulatory relief, we do not believe the proposed reestablishment of this species would conflict with existing or proposed human activities or hinder public use of the Big Bend reach of the Rio Grande or its tributaries. This rule will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. Federal agencies most interested in this rulemaking are primarily the National Park Service and the International Boundary and Water Commission. Both Federal agencies support the reestablishment. Because of the substantial regulatory relief provided by the NEP designation, we believe the reestablishment of the Rio Grande silvery minnow in the areas described would not conflict with existing human activities or hinder public utilization of the area. This rule will not materially affect entitlements, grants, user fees, or loan programs, or the rights and obligations of their recipients. Because there are no expected impacts or restrictions to existing human uses of the Big Bend reach of the Rio Grande or its tributaries as a result of this rule, no entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients are expected to occur. This rule does not raise novel legal or policy issues. Since 1984, we have promulgated section 10(j) rules for many other species in various localities. Regulatory Flexibility Act Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 601 *et seq.* , whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We are certifying that this rule will not have a significant economic effect on a substantial number of small entities. The following discussion explains our rationale. The area that would be affected if this proposed rule is adopted includes the Big Bend reach of the Rio Grande in Texas. Because of the substantial regulatory relief provided by NEP designations, we do not expect this rule to have any significant effect on recreational, agricultural, or development activities within the NEP area. In addition, when NEPs are located outside a National Wildlife Refuge or unit of the National Park System, we treat the population as proposed for listing and only two provisions of section 7 would apply: section 7(a)(1) and section 7(a)(4). In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(1) requires Federal agencies to use their authorities to carry out programs to further the conservation of listed species. Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a proposed species. The results of a conference are advisory in nature and do not restrict agencies from carrying out, funding, or authorizing activities. If finalized, this rule would authorize incidental take of Rio Grande silvery minnows within the NEP area. The regulations implementing the Act define “incidental take” as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity such as military training, livestock grazing, recreation, and other activities that are in accordance with Federal, Tribal, State, and local laws and regulations. Intentional take for purposes other than authorized data collection would not be permitted. Intentional take for research or educational purposes would require a section 10 recovery permit under the ESA. This action would not affect recreational fishing or conservation actions, including removal of nonnative vegetation along the Rio Grande, such as salt cedar and giant river cane. The principal activities on private property near the NEP are agriculture, ranching, and recreation. We believe the presence of the Rio Grande silvery minnow would not affect the use of lands for these purposes because there would be no new or additional economic or regulatory restrictions imposed upon States, non-federal entities, or members of the public due to the presence of the Rio Grande silvery minnow and Federal agencies would only have to comply with sections 7(a)(2) and 7(a)(4) of the ESA. Therefore, this rulemaking is not expected to have any significant adverse impacts to recreation, agriculture, or any development activities. Unfunded Mandates Reform Act (2 U.S.C. 1501 *et seq.* ) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 *et seq.* ): 1. On the basis of information contained in the “Required Determinations” section above, this rule will not “significantly or uniquely” affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 *et seq.* , that this proposed rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities. A Small Government Agency Plan is not required. As explained above, small governments would not be affected because the proposed NEP designation will not place additional requirements on any city, county, or other local municipalities. 2. This rule will not produce a Federal mandate of $100 million or greater in any year (i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act). This proposed NEP designation for the Rio Grande silvery minnow would not impose any additional management or protection requirements on the States or other entities. Takings (E.O. 12630) In accordance with Executive Order 12630, the proposed rule does not have significant takings implications. When reestablished populations of federally listed species are designated as NEPs, the ESA's regulatory requirements regarding the reestablished listed species within the NEP are significantly reduced. Section 10(j) of the ESA can provide regulatory relief with regard to the taking of reestablished species within an NEP area. For example, this rule would allow for the taking of reestablished Rio Grande silvery minnows when such take is incidental to an otherwise legal activity, such as recreation (e.g., fishing, boating, wading, trapping, swimming), forestry, agriculture, salt cedar and giant river cane control, and other activities that are in accordance with Federal, State, and local laws and regulations. Because of the substantial regulatory relief provided by NEP designations, we do not believe the reestablishment of this fish would conflict with existing or proposed human activities or hinder public use of the Big Bend reach of the Rio Grande and its tributaries. A takings implication assessment is not required because this rule
(1)will not effectively compel a property owner to suffer a physical invasion of property and
(2)will not deny all economically beneficial or productive use of the land or aquatic resources. This rule would substantially advance a legitimate government interest (conservation and recovery of a listed fish species) and would not present a barrier to all reasonable and expected beneficial use of private property. Federalism (E.O. 13132) In accordance with Executive Order 13132, we have considered whether this proposed rule has significant Federalism effects and have determined that a Federalism assessment is not required. This rule would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. In keeping with Department of the Interior policy, we requested information from and coordinated development of this proposed rule with the affected resource agencies in Texas. Achieving the recovery goals for this species would contribute to its eventual delisting and its return to State management. No intrusion on State policy or administration is expected; roles or responsibilities of Federal or State governments would not change; and fiscal capacity would not be substantially directly affected. The special rule operates to maintain the existing relationship between the State and the Federal Government and is being undertaken in coordination with the State of Texas. Therefore, this rule does not have significant Federalism effects or implications to warrant the preparation of a Federalism Assessment under the provisions of Executive Order 13132. Civil Justice Reform (E.O. 12988) In accordance with Executive Order 12988 (February 7, 1996; 61 FR 4729), the Office of the Solicitor has determined that this rule would not unduly burden the judicial system and would meet the requirements of sections (3)(a) and (3)(b)(2) of the Order. Paperwork Reduction Act Office of Management and Budget
(OMB)regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ), require that Federal agencies obtain approval from OMB before collecting information from the public. The Office of Management and Budget has approved our collection of information associated with reporting the taking of experimental populations (50 CFR 17.84(p)(6)) and assigned control number 1018-0095. We may not collect or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act We have prepared a draft EA as defined under the authority of the National Environmental Policy Act of 1969. It is available from the Austin Ecological Services Field Office (see ADDRESSES section) and from our Web site at *http://www.fws.gov/southwest/es/Library/.* We published a notice of intent to prepare an EA and a notice of public scoping meetings in the August 3, 2005, **Federal Register** (70 FR 44681). Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior Manual Chapter 512 DM 2, we have evaluated possible effects on federally recognized Indian tribes and have determined that there are no effects because there is no tribal land within the NEP. Energy Supply, Distribution or Use (E.O. 13211) On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, and use. Because this action is not a significant energy action, no Statement of Energy Effects is required. Clarity of This Regulation (E.O. 12866) Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this proposed rule easier to understand including answers to questions such as the following:
(1)Are the requirements in the proposed rule clearly stated?
(2)Does the proposed rule contain technical language or jargon that interferes with its clarity?
(3)Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?
(4)Would the proposed rule be easier to understand if it were divided into more (but shorter) sections?
(5)Is the description of the proposed rule in the Supplementary Information section of the preamble helpful in understanding the proposed rule? What else could we do to make the proposed rule easier to understand? Send your comments concerning how we could make this proposed rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail your comments to: *Exsec@ios.doi.gov.* References Cited A complete list of all references cited in this proposed rule is available upon request from the Austin Ecological Services Field Office (see ADDRESSES section). Authors The primary authors of this proposed rule are staff of the Austin Ecological Services Field Office (see ADDRESSES section). List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted. 2. Amend § 17.11(h) by revising the entry for “Minnow, Rio Grande silvery” under “FISHES” in the List of Endangered and Threatened Wildlife to read as follows: 17.11 Endangered and threatened wildlife.
(h)* * * Species Common name Scientific name Historic range Vertebrate population where endangered or threatened Status When listed Critical habitat Special rules * * * * * * * **Fishes** * * * * * * * Minnow, Rio Grande silvery *Hybognathus amarus* U.S.A. (NM, TX), Mexico Entire, except where listed as an experimental population E 543 17.95(e) NA Minnow, Rio Grande silvery *Hybognathus amarus* U.S.A. (NM, TX), Mexico Rio Grande, from Little Box Canyon (approximately 10.4 river miles downstream of Ft. Quitman, TX) to Amistad Dam and the nearby railroad bridge; and on the Pecos River, from its confluence with Independence Creek to its confluence with the Rio Grande XN NA 17.84(u) * * * * * * * 3. Amend § 17.84 by adding a new paragraph
(u)to read as follows: § 17.84 Special rules—vertebrates.
(u)Rio Grande silvery minnow ( *Hybognathus amarus* ).
(1)*Where are populations of this fish designated as nonessential experimental populations (NEP)?*
(i)The NEP area for the Rio Grande silvery minnow is within the species' historic range and is defined as follows: Rio Grande, from Little Box Canyon downstream of Ft. Quitman, Hudspeth County, Texas, through Big Bend National Park and the Rio Grande Wild and Scenic River, to Amistad Dam and the nearby railroad bridge; and on the Pecos River, from its confluence with Independence Creek to its confluence with the Rio Grande.
(ii)The Rio Grande silvery minnow is not currently known to exist in the Rio Grande or Pecos River in Texas. Based on the habitat requirements of this fish, we do not expect it to become established outside the NEP area. However, if any individuals of this species move upstream or downstream or into tributaries outside the designated NEP area, we would presume that they came from the reestablished populations. We would then amend paragraph (u)(1)(i) of this section to enlarge the boundaries of the NEP to include the entire range of the expanded population.
(iii)We do not intend to change the NEP designation to “essential experimental,” “threatened,” or “endangered” within the NEP area. Additionally, we will not designate critical habitat for this NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(2)*What take is allowed of this species in the NEP area?*
(i)A Rio Grande silvery minnow may be taken within the NEP area, provided that such take is not willful, knowing, or due to negligence, or is incidental to and not the purpose of the carrying out of an otherwise lawful activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming), agriculture, and other activities that are in accordance with Federal, State, and local laws and regulations; and provided that such taking is reported within 24 hours, as provided under paragraph (u)(2)(iii) of this section.
(ii)Any person with a valid permit issued by the U.S. Fish and Wildlife Service (Service) under 50 CFR 17.32 may take Rio Grande silvery minnows for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Endangered Species Act (ESA);
(iii)Any taking pursuant to paragraph (u)(2)(i) or
(ii)of this section must be reported within 24 hours by contacting the Service, Austin Ecological Services Field Office, 107011 Burnet Road, Suite 200, Austin, TX 78758;
(512)490-0057. Once the Service is contacted, a determination will be made as to the disposition of any live or dead specimens.
(3)*What take of this species is not allowed in the NEP area?*
(i)Except as expressly allowed in paragraph (u)(2) of this section, all the provisions of 50 CFR 17.31(a) and
(b)apply to the fish identified in paragraph (u)(1) of this section.
(ii)Any manner of take not described under paragraph (u)(2) of this section is prohibited in the NEP area.
(iii)You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (u)(3) of this section or in violation of the applicable State or local fish and wildlife laws or regulations or the ESA.
(iv)You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (u)(3) of this section.
(4)*How will the effectiveness of the re-establishment be monitored?* After the initial stocking of this fish, we will monitor their presence or absence at least annually and document any spawning behavior or young-of-year fish that might be present. Depending on available resources, monitoring may occur more frequently, especially during the first few years of re-establishment efforts. This monitoring will be conducted primarily by seining and will be accomplished by Service, National Park Service, or State employees or by contracting with the appropriate species experts. Annual reports will be produced detailing stocking and monitoring activities that took place during the previous year.
(5)The Service will also fully evaluate these re-establishment efforts every 5 years to determine whether to continue or terminate them.
(6)Note: Map of the proposed NEP area for the Rio Grande silvery minnow in Texas: BILLING CODE 4310-55-P EP05SE07.013 Dated: August 15, 2007. Mitchell Butler, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 07-4286 Filed 9-4-07; 8:45 am]
Connectionstraces to 21
31 references not yet in our index
  • 50 CFR 660
  • 50 USC 1701-1706
  • 40 CFR 62
  • 40 CFR 49
  • 40 CFR 75
  • 40 CFR 60
  • Pub. L. 104-4
  • 49 CFR 1520
  • 6 CFR 5
  • Pub. L. 107-71
  • 49 CFR 1560.3
  • 49 CFR 1520.5
  • Pub. L. 108-458
  • 118 Stat. 3638
  • 49 CFR 1544.101(a)
  • 49 CFR 1546.101(a)
  • 50 CFR 17
  • 50 CFR 17.31
  • 50 CFR 17.80
  • 50 CFR 17.22
  • 50 CFR 17.3
  • 50 CFR 17.21(c)(3)
  • 5 CFR 1320
  • 50 CFR 17.84(p)(6)
  • 16 USC 1361-1407
  • 16 USC 1531-1544
  • 16 USC 4201-4245
  • Pub. L. 99-625
  • 100 Stat. 3500
  • 50 CFR 17.32
  • 50 CFR 17.31(a)
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U.S.C.§ 1801
Fed. Reg.Presidential Documents
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U.S.C.§ 7411
C.F.R.§ 60.24
C.F.R.§ 60.27
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Cite50 CFR 660
Cite50 USC 1701-1706
Cite40 CFR 62
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