Federal Register / Vol. 74, No. 48 / Friday, March 13, 2009 / Proposed Rules 10853 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This proposed rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

Environment 

We have analyzed this proposed rule 

under Department of Homeland 

Security Management Directive 0023.1 

and Commandant Instruction 

M16475.lD which guides the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have made a preliminary determination 

that this is one of a category of actions 

which do not individually or 

cumulatively have a significant effect on 

the human environment. Therefore, this 

rule is categorically excluded, under 

section 2.B.2. Figure 2–1, paragraph 

32(e), of the Instruction because it 

simply promulgates the operating 

regulations or procedures for 

drawbridges. We seek any comments or 

information that may lead to the 

discovery of a significant environmental 

impact from this proposed rule. 

List of Subjects in 33 CFR Part 117 

Bridges. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR Part 117 as follows: 

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS 

1. The authority citation for part 117 

continues to read as follows: 

Authority: 33 U.S.C. 499; 33 CFR 1.05–1; 

Department of Homeland Security Delegation 

No. 0170.1. 

2. Revise § 117.835 to read as follows: 

§ 117.835 Perquimans River 

The draw of the US17 Bridge, mile 

12.0, at Hertford, NC shall open on 

signal from 8 a.m. to 10 p.m. from May 

1 through September 30; and from 10 

a.m. to 8 p.m. from October 1 through 

April 30, if two hours notice is given. 

The draw need not be opened at all 

other times. 

Dated: February 17, 2009. 

Fred M. Rosa, Jr., 

Rear Admiral, U.S. Coast Guard, Commander, 

Fifth Coast Guard District. 

[FR Doc. E9–5408 Filed 3–12–09; 8:45 am] 

BILLING CODE 4910–15–P 

PRESIDIO TRUST 

36 CFR Part 1012 

Legal Process: Testimony by 

Employees and Production of Records 

AGENCY: Presidio Trust. 

ACTION: Proposed Rule. 

SUMMARY: The Presidio Trust proposes a 

regulation, limited to the Presidio 

Trust’s organization and management, 

governing access to Presidio Trust 

information and records in connection 

with legal proceedings in which neither 

the United States nor the Presidio Trust 

is a party. This proposed rule will 

establish guidelines for use in 

determining whether Presidio Trust 

employees (as defined in the proposed 

rule) will provide testimony or records 

relating to their official duties. It also 

will establish procedures for requesters 

to follow when making demands on or 

requests to a Presidio Trust employee 

for official documents or to provide 

testimony. This proposed rule will 

standardize the Presidio Trust’s 

practices, promote uniformity in 

decisions, conserve the ability of the 

Presidio Trust to conduct official 

business, preserve its employee 

resources, protect confidential 

information, provide guidance to 

requestors, minimize involvement in 

matters unrelated to the Presidio Trust’s 

mission and programs, avoid wasteful 

allocation of agency resources and avoid 

spending public time and money for 

private purpose. 

DATES: Submit written comments on or 

before April 20, 2009. 

ADDRESSES: Send written comments to 

Karen A. Cook, General Counsel, 

Presidio Trust, 34 Graham Street, P.O. 

Box 29052, San Francisco, CA 94129– 

0052. 

FOR FURTHER INFORMATION CONTACT: 

Karen A. Cook, General Counsel, 

Presidio Trust, 34 Graham Street, P.O. 

Box 29052, San Francisco, CA 94129– 

0052. Telephone: 415.561.5300. 

SUPPLEMENTARY INFORMATION: The 

Presidio Trust, a wholly-owned federal 

government corporation, on occasion 

receives subpoenas and other requests 

for documents and requests for Presidio 

Trust employees (as defined in the 

proposed rule) to provide testimony or 

evidence in judicial, legislative or 

administrative proceedings in which the 

Presidio Trust is not a party. Sometimes 

these subpoenas or requests are for 

Presidio Trust records that are exempt 

from disclosure under the Freedom of 

Information Act. The Presidio Trust also 

receives requests for Presidio Trust 

employees to appear as witnesses and to 

provide testimony relating to materials 

contained in the Presidio Trust’s official 

records or provide testimony or 

information acquired during the 

performance of the employees’ official 

duties. 

Although many other federal agencies 

currently have regulations in place to 

address these types of requests, and the 

Presidio Trust itself has rules governing 

requests for information under the 

Freedom of Information Act, the 

Presidio Trust has not adopted 

regulations governing subpoenas and 

other information requests for document 

production and testimony of Presidio 

Trust employees in judicial, legislative 

or administrative proceedings in which 

the Presidio Trust is not a party. Issues 

about such requests that have arisen in 

recent years warrant adoption of 

regulations governing their submission, 

evaluation and processing. Responding 

to these requests is not only 

burdensome, but may also result in a 

significant disruption of a Presidio Trust 

employee’s work schedule, involve the 

Presidio Trust in issues unrelated to its 

responsibilities and/or impede the 

Presidio Trust’s accomplishment of its 

budgetary goals. In order to resolve 

these issues, many agencies have issued 

regulations, similar to this proposed 

regulation, governing the circumstances 

and manner for responding to demands 

for testimony or for the production of 

documents. Establishing uniform 

procedures for submission, evaluation 

and response to such demands will 

ensure timely notice and promote 

centralized decision making. The 

United States Supreme Court upheld 

this type of regulation in United States 

ex rel. Touhy v. Ragen, 340 U.S. 462 

(1951). 

Briefly summarized, the proposed 

rule will prohibit disclosure of official 

records or testimony by the Presidio 

Trust’s employees unless there is 

compliance with the rule. The proposed 

rule sets out the information that 

requesters must provide and the factors 

that the Presidio Trust will consider in 

making determinations in response to 

requests for testimony or the production 

of documents. 

This proposed rule will ensure a more 

efficient use of the Presidio Trust’s 

resources, minimize the possibility of 

involving the Presidio Trust in issues 


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unrelated to its mission or 

responsibilities, promote uniformity in 

responding to such subpoenas and 

similar requests, and maintain the 

impartiality of the Presidio Trust in 

matters that are in dispute between 

other parties. It will also serve the 

Presidio Trust’s interest in protecting 

sensitive, confidential and privileged 

information and records that are 

generated in fulfillment of the Presidio 

Trust’s responsibilities. 

The proposed rule is internal and 

procedural rather than substantive. It 

will not create a right to obtain official 

records or the official testimony of a 

Presidio Trust employee nor will it 

create any additional right or privilege 

not already available to the Presidio 

Trust to deny any demand or request for 

testimony or documents. Failure to 

comply with the procedures set out in 

these proposed regulations would be a 

basis for denying a demand or request 

submitted to the Presidio Trust. 

This rulemaking is in compliance 

with the Administrative Procedure Act 

(5 U.S.C. 553) and allows for a 30-day 

comment period. Interested persons are 

invited to submit written comments to 

the Presidio Trust on this proposed 

regulation, to be received on or before 

April 20, 2009. Prior to issuing its final 

rule, the Presidio Trust will review all 

comments received and consider any 

modifications to this proposal that 

appear warranted. 

Executive Order 12866—Regulatory 

Planning and Review 

This proposed rule has been reviewed 

under Executive Order 12866 issued 

September 30, 1993 on Regulatory 

Planning and Review. This proposed 

rule will not have an annual effect of 

$100 million or more on the economy 

nor adversely affect productivity, 

competition, jobs, the environment, 

public health or safety, nor State or local 

governments. This proposed rule will 

neither interfere with an action taken or 

planned by another agency nor raise 

new legal or policy issues. This 

proposed rule will not alter the 

budgetary impact of entitlements, 

grants, user fees, or loan programs or the 

rights and obligations of recipients of 

such programs. Therefore, it has been 

determined that this is not an 

economically significant rule. 

Executive Order 12988—Civil Justice 

Reform 

This proposed rule has been drafted 

and reviewed in accordance with 

Executive Order 12988, Civil Justice 

Reform, and will not unduly burden the 

Federal court system. This proposed 

rule has been written so as to minimize 

litigation and provide a clear legal 

standard for affected conduct, and has 

been reviewed carefully to eliminate 

drafting errors and ambiguities. 

Additionally, the Presidio Trust has not 

identified any State or local laws or 

regulations that are in conflict with this 

regulation or that would impede full 

implementation of this proposed rule. 

Nonetheless, in the event that such a 

conflict was to be identified, the 

proposed rule would preempt State or 

local laws or regulations found to be in 

conflict. However, in that case, (1) no 

retroactive effect would be given to this 

proposed rule; and (2) the proposed rule 

does not require the use of 

administration proceedings before 

parties may file suit in court challenging 

its provisions. 

Executive Order 13132—Federalism 

This proposed rule conforms with the 

Federalism principles set out in 

Executive Order 13132 and would not 

impose any compliance costs on the 

States; and 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. Therefore, it has 

been determined that this proposed rule 

does not have federalism implications. 

Unfunded Mandates 

Pursuant to Title II of the Unfunded 

Mandates Reform Act of 1995 (2 U.S.C. 

1531–1538) as well as Executive Order 

12875, the Presidio Trust has assessed 

the effects of this proposed rule on 

State, local, and Tribal governments and 

the private sector. This proposed rule 

does not compel the expenditure of 

$100 million or more in any one year by 

any State, local, or Tribal governments 

or anyone in the private sector. 

Therefore, a statement under section 

202 of the Act is not required. 

Executive Order 13175—Consultation 

With Indian Tribal Governments 

Pursuant to Executive Order 13175 of 

November 6, 2000, the Presidio Trust 

has assessed the impact of this proposed 

rule on Indian Tribal governments and 

has determined that the proposed rule 

does not significantly or uniquely affect 

communities of Indian Tribal 

governments. The Presidio Trust has 

also determined that this proposed rule 

does not impose substantial direct 

compliance costs or Tribal implications 

on Indian tribal governments, and 

therefore advance consultation with 

Tribes is not required. 

Regulatory Flexibility Act and 

Executive Order 13272—Consideration 

of Small Entities 

This proposed rule has been 

considered in light of the Regulatory 

Flexibility Act (5 U.S.C. 602 et seq.) and 

Executive Order 13272 of August 13, 

2002. This proposed rule will not have 

a significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act and 

Executive Order 13272, because the 

proposed rule will not impose 

recordkeeping requirements on them; it 

will not affect their competitive position 

in relation to large entities; and it will 

not affect their cash flow, liquidity or 

ability to remain in the market. 

Certification 

The Presidio Trust certifies that this 

proposed rule is not expected to have a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act or 

Executive Order 13272. 

Congressional Review Act 

The Congressional Review Act (5 

U.S.C. 801 et seq.), as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. Because this 

proposed rule is a rule of agency 

organization, procedure or practice that 

does not substantially affect the rights or 

obligations of non-agency parties it is 

not a ‘‘rule’’ as defined by the 

Congressional Review Act (5 U.S.C. 

804(3)(C)) and is not subject to it. 

Executive Order 13211—Energy Effects 

This proposed rule is not a 

‘‘significant energy action’’ as defined in 

Executive Order 13211 of May 22, 2001, 

because it is not likely to have a 

significant adverse affect on the supply, 

distribution or use of energy. The 

Presidio Trust has determined that this 

proposed rule is not likely to have any 

adverse energy effects. 

The Paperwork Reduction Act of 1995 

This proposed rule contains no 

paperwork burdens or information 

collection requirements that are subject 

to review by the Office of Management 

and Budget under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3520). 

Analysis of Environmental Impact 

The Presidio Trust has analyzed this 

proposed rule in accordance with the 


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criteria of the National Environmental 

Policy Act of 1969 and determined that 

rule does not constitute a major Federal 

action significantly affecting the quality 

of the human environment. Therefore, 

neither an environmental assessment 

nor an environmental impact statement 

is required. 

Government Paperwork Elimination 

Act 

The Presidio Trust is committed to 

compliance with the Government 

Paperwork Elimination Act (GPEA), 

which requires Government agencies to 

provide the public the option of 

submitting information or transacting 

business electronically to the maximum 

extent possible. This proposed rule 

contains no paperwork burdens or 

information collection requirements, 

and is thus in compliance with the 

GPEA. 

Executive Order 12630—No Takings 

Implication 

This proposed rule has been analyzed 

in accordance with the principles of and 

criteria contained in Executive Order 

12630 issued March 15, 1988, and it has 

been determined that the proposed rule 

does not pose a risk of a taking of 

constitutionally protected private 

property. 

For the reasons set forth in the 

preamble, the Presidio Trust proposes to 

amend chapter X of title 36 of the Code 

of Federal Regulations by adding new 

part 1012 to read as follows: 

PART 1012—LEGAL PROCESS: 

TESTIMONY BY EMPLOYEES AND 

PRODUCTION OF RECORDS 

Sec. 

General Information 

1012.1 What does this part cover? 

1012.2 What is the Presidio Trust’s policy 

on granting requests for employee 

testimony or Presidio Trust records? 

Responsibilities of Requesters 

1012.3 How can I obtain employee 

testimony or Presidio Trust records? 

1012.4 If I serve a subpoena duces tecum, 

must I also submit a Touhy Request? 

1012.5 What information must I put in my 

Touhy Request? 

1012.6 How much will I be charged? 

1012.7 Can I get an authenticated copy of a 

Presidio Trust record? 

Responsibilities of the Presidio Trust 

1012.8 How will the Presidio Trust process 

my Touhy Request? 

1012.9 What criteria will the Presidio Trust 

consider in responding to my Touhy 

Request? 

Responsibilities of Employees 

1012.10 What must I, as an employee, do 

upon receiving a request? 

1012.11 Must I get approval before 

testifying as an expert witness other than 

on behalf of the United States in a 

Federal proceeding in which the United 

States is a party or has a direct and 

substantial interest? 

Authority: 16 U.S.C. 460bb appendix; 40 

U.S.C. 102; 44 U.S.C. 2901 and 3102. 

General Information 

§ 1012.1 What does this part cover? 

(a) This part describes how the 

Presidio Trust responds to requests or 

subpoenas for: 

(1) Testimony by employees in State, 

territorial or Tribal judicial, legislative 

or administrative proceedings 

concerning information acquired while 

performing official duties or because of 

an employee’s official status; 

(2) Testimony by employees in 

Federal court civil proceedings in which 

the United States or the Presidio Trust 

is not a party concerning information 

acquired while performing official 

duties or because of an employee’s 

official status; 

(3) Testimony by employees in any 

judicial or administrative proceeding in 

which the United States or the Presidio 

Trust, while not a party, has a direct and 

substantial interest; 

(4) Official records or certification of 

such records for use in Federal, State, 

territorial or Tribal judicial, legislative 

or administrative proceedings. 

(b) In this part, ‘‘employee’’ means a 

current or former Presidio Trust 

employee, or Board member, including 

a contractor or special government 

employee, except as the Presidio Trust 

may otherwise determine in a particular 

case. 

(c) This part does not apply to: 

(1) Congressional requests or 

subpoenas for testimony or records; 

(2) Federal court civil proceedings in 

which the United States or the Presidio 

Trust is a party; 

(3) Federal administrative 

proceedings; 

(4) Federal, State, and Tribal criminal 

court proceedings; 

(5) Employees who voluntarily testify, 

while on their own time or in approved 

leave status, as private citizens as to 

facts or events that are not related to the 

official business of the Presidio Trust. 

The employee must state for the record 

that the testimony represents the 

employee’s own views and is not 

necessarily the official position of the 

Presidio Trust. See 5 CFR 2635.702(b), 

2635.807(b). 

(6) Testimony by employees as expert 

witnesses on subjects outside their 

official duties, except that they must 

obtain prior approval if required by 

§ 1012.11. 

(d) This part does not affect the rights 

of any individual or the procedures for 

obtaining records under the Freedom of 

Information Act (FOIA), Privacy Act, or 

statutes governing the certification of 

official records. The Presidio Trust 

FOIA and Privacy Act regulations are 

found at parts 1007 and 1008 of this 

chapter. 

(e) Nothing in this part is intended to 

impede the appropriate disclosure 

under applicable laws of Presidio Trust 

information to Federal, State, territorial, 

Tribal, or foreign law enforcement, 

prosecutorial, or regulatory agencies. 

(f) This part only provides guidance 

for the internal operations of the 

Presidio Trust, and neither creates nor 

is intended to create any enforceable 

right or benefit against the United States 

or the Presidio Trust. 

§ 1012.2 What is the Presidio Trust’s 

policy on granting requests for employee 

testimony or Presidio Trust records? 

(a) Except for proceedings covered by 

§ 1012.1(c) and (d), it is the Presidio 

Trust’s general policy not to allow its 

employees to testify or to produce 

Presidio Trust records either upon 

request or by subpoena. However, if the 

party seeking such testimony or records 

requests in writing, the Presidio Trust 

will consider whether to allow 

testimony or production of records 

under this part. The Presidio Trust’s 

policy ensures the orderly execution of 

its mission and programs while not 

impeding any proceeding 

inappropriately. 

(b) No Presidio Trust employee may 

testify or produce records in any 

proceeding to which this part applies 

unless authorized by the Presidio Trust 

under §§ 1012.1 through 1012.11. 

United States ex rel. Touhy v. Ragen, 

340 U.S. 462 (1951). 

Responsibilities of Requesters 

§ 1012.3 How can I obtain employee 

testimony or Presidio Trust records? 

(a) To obtain employee testimony, you 

must submit: 

(1) A written request (hereafter a 

‘‘Touhy Request;’’ see § 1012.5 and 

United States ex rel. Touhy v. Ragen, 

340 U.S. 462 (1951)); and 

(2) A statement that you will submit 

a valid check for costs to the Presidio 

Trust, in accordance with § 1012.6, if 

your Touhy Request is granted. 

(b) To obtain official Presidio Trust 

records, you must submit: 

(1) A Touhy Request; and 

(2) A statement that you agree to pay 

the costs of search and/or duplication in 

accordance with the provisions 

governing requests under the Freedom 

of Information Act in part 1007 of this 


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chapter, if your Touhy Request is 

granted. 

(c) You must send your Touhy 

Request to both: 

(1) The employee; and 

(2) The General Counsel of the 

Presidio Trust. 

(d) The address of Presidio Trust 

employees and the General Counsel is: 

Presidio Trust, 34 Graham Street, P.O. 

Box 29052, San Francisco, CA 94129– 

0052. 

§ 1012.4 If I serve a subpoena duces 

tecum, must I also submit a Touhy request? 

Yes. If you serve a subpoena for 

employee testimony or if you serve a 

subpoena duces tecum for records in the 

possession of the Presidio Trust, you 

also must submit a Touhy Request. 

§ 1012.5 What information must I put in my 

Touhy Request? 

Your Touhy Request must: 

(a) Identify the employee or record; 

(b) Describe the relevance of the 

desired testimony or records to your 

proceeding and provide a copy of the 

pleadings underlying your request; 

(c) Identify the parties to your 

proceeding and any known 

relationships they have with the 

Presidio Trust or to its mission or 

programs; 

(d) Show that the desired testimony or 

records are not reasonably available 

from any other source; 

(e) Show that no record could be 

provided and used in lieu of employee 

testimony; 

(f) Provide the substance of the 

testimony expected of the employee; 

and 

(g) Explain why you believe your 

Touhy Request meets the criteria 

specified in § 1012.9. 

§ 1012.6 How much will I be charged? 

We will charge you the costs, 

including travel expenses, for 

employees to testify under the relevant 

substantive and procedural laws and 

regulations. You must pay costs for 

record production in accordance with 

the provisions governing requests under 

the Freedom of Information Act in part 

1007 of this chapter. Estimated Costs 

must be paid in advance by check or 

money order payable to the Presidio 

Trust. Upon determination of the 

precise costs, the Presidio Trust will 

either reimburse you for any 

overpayment, or charge you for any 

underpayment, which charges must be 

paid within 10 business days by check 

or money order payable to the Presidio 

Trust. 

§ 1012.7 Can I get an authenticated copy 

of a Presidio Trust record? 

Yes. We may provide an 

authenticated copy of a Presidio Trust 

record, for purposes of admissibility 

under Federal, State or Tribal law. We 

will do this only if the record has been 

officially released or would otherwise 

be released under parts 1007 or 1008 of 

this chapter, or this part. 

Responsibilities of the Presidio Trust 

§ 1012.8 How will the Presidio Trust 

process my Touhy Request? 

(a) The Executive Director will decide 

whether to grant or deny your Touhy 

Request. The Presidio Trust’s General 

Counsel, or his or her agent, may 

negotiate with you or your attorney to 

refine or limit both the timing and 

content of your Touhy Request. When 

necessary, the General Counsel also will 

coordinate with the Department of 

Justice to file appropriate motions, 

including motions to remove the matter 

to Federal court, to quash, or to obtain 

a protective order. 

(b) We will limit the Presidio Trust’s 

decision to allow employee testimony to 

the scope of your Touhy Request. 

(c) If you fail to follow the 

requirements of this part, we will not 

allow the testimony or produce the 

records. 

(d) If your Touhy Request is complete, 

we will consider the request under 

§ 1012.9. 

§ 1012.9 What criteria will the Presidio 

Trust consider in responding to my Touhy 

Request? 

In deciding whether to grant your 

Touhy Request, the Executive Director 

will consider: 

(a) Your ability to obtain the 

testimony or records from another 

source; 

(b) The appropriateness of the 

employee testimony and record 

production under the relevant 

regulations of procedure and 

substantive law, including the FOIA or 

the Privacy Act; and 

(c) The Presidio Trust’s ability to: 

(1) Conduct its official business 

unimpeded; 

(2) Maintain impartiality in 

conducting its business; 

(3) Minimize the possibility that the 

Presidio Trust will become involved in 

issues that are not related to its mission 

or programs; 

(4) Avoid spending public employees’ 

time for private purposes; 

(5) Avoid any negative cumulative 

effect of granting similar requests; 

(6) Ensure that privileged or protected 

matters remain confidential; and 

(7) Avoid undue burden on the 

Presidio Trust. 

Responsibilities of Employees 

§ 1012.10 What must I, as an employee, do 

upon receiving a request? 

(a) If you receive a request or 

subpoena that does not include a Touhy 

Request, you must immediately notify 

your supervisor and the Presidio Trust’s 

General Counsel for assistance in 

issuing the proper response. 

(b) If you receive a Touhy Request, 

you must promptly notify your 

supervisor and forward the request to 

the General Counsel. After consulting 

with the General Counsel, the Executive 

Director will decide whether to grant 

the Touhy Request under § 1012.9. 

(c) All decisions granting or denying 

a Touhy Request must be in writing. The 

Executive Director must ask the General 

Counsel for advice when preparing the 

decision. 

(d) Under 28 U.S.C. 1733, Federal 

Rule of Civil Procedure 44(a)(1), or 

comparable State or Tribal law, a 

request for an authenticated copy of a 

Presidio Trust record may be granted by 

the person having the legal custody of 

the record. If you believe that you have 

custody of a record: 

(1) Consult the General Counsel to 

determine if you can grant a request for 

authentication of records; and 

(2) Consult the General Counsel 

concerning the proper form of the 

authentication (as authentication 

requirements may vary by jurisdiction). 

§ 1012.11 Must I get approval before 

testifying as an expert witness other than 

on behalf of the United States in a Federal 

proceeding in which the United States is a 

party or has a direct and substantial 

interest? 

(a) You must comply with 5 CFR 

2635.805(c), which details the 

authorization procedure for an 

employee to testify as an expert witness, 

not on behalf of the United States, in 

any proceeding before a court or agency 

of the United States in which the United 

States is a party or has a direct and 

substantial interest. This procedure 

means: 

(1) You must obtain the written 

approval of the Presidio Trust’s General 

Counsel; 

(2) You must be in an approved leave 

status if you testify during duty hours; 

and 

(3) You must state for the record that 

you are appearing as a private 

individual and that your testimony does 

not represent the official views of the 

Presidio Trust. 

(b) If you testify as an expert witness 

on a matter outside the scope of your 

official duties, and which is not covered 

by paragraph (a) of this section, you 

must comply with 5 CFR 2635.802. 


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Dated: March 9, 2009. 

Karen A. Cook, 

General Counsel. 

[FR Doc. E9–5446 Filed 3–12–09; 8:45 am] 

BILLING CODE 4310–4R–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 223 

[Docket No. 080229343–81352–02] 

RIN 0648–XF87 

Endangered and Threatened Wildlife 

and Plants: Proposed Threatened 

Status for Southern Distinct 

Population Segment of Eulachon 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; 12–month 

petition finding; request for comments. 

SUMMARY: We, the NMFS, have 

completed a review of the status of the 

Pacific eulachon (Thaleichthys 

pacificus; hereafter ‘‘eulachon’’) under 

the Endangered Species Act (ESA) in 

response to a petition submitted by the 

Cowlitz Indian Tribe to list eulachon as 

a threatened or endangered species. 

After reviewing the best scientific and 

commercial information available, we 

have determined that the species is 

comprised of two or more distinct 

population segments (DPSs) that qualify 

as species under the ESA. Moreover, 

after evaluating threats facing the 

species, and considering efforts being 

made to protect eulachon, we have 

determined that the southern DPS is 

likely to become endangered within the 

foreseeable future throughout all of its 

range. We propose to list it as 

threatened under the ESA. The southern 

DPS of eulachon consists of populations 

spawning in rivers south of the Nass 

River in British Columbia, Canada, to, 

and including, the Mad River in 

California. Within the range of the 

southern DPS, major production areas or 

‘‘core populations’’ for this species 

include the Columbia and Fraser rivers 

and may have historically included the 

Klamath River. We solicit information to 

inform the development of the final 

listing rule. 

Any protective regulations 

determined to be necessary and 

advisable for the conservation of the 

southern DPS of eulachon under ESA 

section 4(d) will be proposed in a 

subsequent Federal Register notice. We 

solicit information to inform the 

development of proposed protective 

regulations and designation of critical 

habitat in the event the DPS is listed. If 

the proposed listing is finalized, a 

recovery plan will also be prepared and 

implemented for the southern DPS. 

DATES: Comments on this proposal must 

be received by May 12, 2009. A public 

hearing will be held promptly if any 

person so requests by April 27, 2009. 

Notice of the location and time of any 

such hearing will be published in the 

Federal Register not less than 15 days 

before the hearing is held. 

ADDRESSES: You may submit comments 

identified by 0648–XF87 by any of the 

following methods: 

• Electronic Submissions: Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Submit written comments to 

Chief, Protected Resources Division, 

Northwest Region, National Marine 

Fisheries Service, 1201 NE Lloyd Blvd., 

Suite 1100, Portland, OR 97232. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. We will accept 

anonymous comments (enter ‘‘N/A’’ in 

the required fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. The eulachon 

petition, status review, and other 

reference materials regarding this 

determination can be obtained via the 

Internet at: http://www.nwr.noaa.gov/ or 

by submitting a request to the Assistant 

Regional Administrator, Protected 

Resources Division, Northwest Region, 

NMFS, 1201 NE Lloyd Blvd., Suite 

1100, Portland, OR 97232. 

FOR FURTHER INFORMATION CONTACT: Eric 

Murray, NMFS, Northwest Region (503) 

231–2378; or Dwayne Meadows, NMFS, 

Office of Protected Resources (301) 713– 

1401. 

SUPPLEMENTARY INFORMATION: 

Background 

On July 16, 1999, we received a 

petition from Mr. Sam Wright of 

Olympia, Washington, to list and 

designate critical habitat for Columbia 

River populations of eulachon. On 

November 29, 1999, we determined that, 

while the petition indicated that 

eulachon catches had recently declined 

in the Columbia River basin, it did not 

present substantial scientific 

information indicating that the 

petitioned action may be warranted (64 

FR 66601). That finding was based on 

observations that the species is likely 

more abundant than commercial 

landings indicate and, based on life 

history attributes (e.g., the species’ high 

fecundity and short life span) and 

assumptions from catch data and 

anecdotal reports, has a demonstrated 

ability to rebound from periods of low 

abundance. Additionally, the petition 

did not provide sufficient information 

regarding the distinctness of eulachon 

populations in the Columbia River 

relative to the other populations in the 

species’ range. 

On November 8, 2007, we received a 

petition from the Cowlitz Indian Tribe 

requesting that we list the eulachon that 

spawn south of the U.S./WashingtonCanada border as threatened or 

endangered under the ESA. In contrast 

to our 1999 review, we concluded there 

was sufficient information showing that 

eulachon may warrant delineation into 

DPSs and that eulachon in the 

petitioned portion of the species’ range 

had substantially declined in 

abundance. On March 12, 2008, we 

determined that the petition presented 

substantial information indicating that 

the petitioned action may be warranted, 

and we requested information to assist 

with a status review to determine if 

eulachon warranted listing under the 

ESA (73 FR 13185). 

ESA Statutory Provisions 

The ESA defines species to include 

subspecies or a DPS of any vertebrate 

species which interbreeds when mature 

(16 U.S.C. 1532(16)). The U.S. Fish and 

Wildlife Service (FWS) and NMFS have 

adopted a joint policy describing what 

constitutes a DPS of a taxonomic species 

(61 FR 4722; February 7, 1996). The 

joint DPS policy identifies two criteria 

for making DPS determinations: (1) the 

population must be discrete in relation 

to the remainder of the taxon (species or 

subspecies) to which it belongs; and (2) 

the population must be significant to the 

remainder of the taxon to which it 

belongs. 

A population segment of a vertebrate 

species may be considered discrete if it 

satisfies either one of the following 

conditions: (1) ‘‘it is markedly separated 

from other populations of the same 

taxon as a consequence of physical, 

physiological, ecological, or behavioral 

factors. Quantitative measures of genetic 

or morphological discontinuity may 

provide evidence of this separation’’; or 

(2) ‘‘it is delimited by international 


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