Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Proposed Rules 72099 

Commercial Boilers, steam Generators, 

and Process Heaters(Adopted 5/13/94) 

Rule 1146.2—Emissions of Oxides of 

Nitrogen from Large Water Heaters and 

Small Boilers (Amended 1/17/05) 

Rule 1148—Thermally Enhanced Oil 

Recovery Wells (Adopted 11/5/82) 

Rule 1149—Storage Tank Degassing 

(Adopted 7/14/95) 

Rule 1162—Polyester Resin Operations 

(Amended 7/9/04) 

Rule 1168—Adhesive and Sealant 

Applications (Amended 1/7/05) 

Rule 1171—Solvent Cleaning Operations 

(Amended 5/6/05) 

Rule 1173—Fugitive Emissions of Volatile 

Organic Compounds (Adopted 12/06/02) 

Rule 1176—VOC Emissions from Wastewater 

Systems (Adopted 9/13/96) 

Rule 1178—Further Reductions of VOC 

Emissions from Storage Tanks at 

Petroleum Facilities (Adopted 12/21/01) 

Rule 1301—General (Adopted 12/7/95) 

Rule 1302—Definitions (Adopted 12/06/02) 

Rule 1303—Requirements (Adopted 12/06/ 

02) 

Rule 1304—Exemptions (Adopted 6/14/96) 

Rule 1306—Emission Calculations (Adopted 

12/06/02) 

Rule 1313—Permits to Operate (Adopted 12/ 

7/95) 

Rule 1403—Asbestos Emissions from 

Demolition/Renovation Activities 

(Adopted 4/8/94) 

Rule 1470—Requirements for Stationary 

Diesel-Fueled Internal Combustion and 

Other Compression Ignition Engines 

(Adopted 3/4/05) 

Rule 1605—Credits for the Voluntary Repair 

of On-Road Vehicles Identified Through 

Remote Sensing Devices (Adopted 10/ 

11/96) 

Rule 1610—Old-Vehicle Scrapping (Adopted 

2/12/99) 

Rule 1612—Credits for Clean On-Road 

Vehicles (Adopted 7/10/98) 

Rule 1612.1—Mobile Source Credit 

Generation Pilot Program (Adopted 3/16/ 

01) 

Rule 1620—Credits for Clean Off-Road 

Mobile Equipment (Adopted 7/10/98) 

Rule 1701—General (Adopted 8/13/99) 

Rule 1702—Definitions (Adopted 8/13/99) 

Rule 1703—PSD Analysis (Adopted 10/7/88) 

Rule 1704—Exemptions (Adopted 8/13/99) 

Rule 1706—Emission Calculations (Adopted 

8/13/99) 

Rule 1713—Source Obligation (Adopted 10/ 

7/88) 

Regulation XVII—Appendix (effective 1977) 

Rule 1901—General Conformity (Adopted 9/ 

9/94) 

Rule 2000—General (Amended 5/6/05) 

Rule 2001—Applicability (Amended 5/6/05) 

Rule 2002—Allocations for Oxides of 

Nitrogen (NOX) and Oxides of Sulfur 

(SOX) Emissions (Amended 1/7/05) 

Rule 2004—Requirements (Adopted 5/11/01) 

except (l) 

Rule 2005—New Source Review for 

RECLAIM (Amended 4/20/01) except (i) 

Rule 2006—Permits (Adopted 5/11/01) 

Rule 2007—Trading Requirements (Amended 

5/6/05) 

Rule 2008—Mobile Source Credits (Adopted 

10/15/93) 

Rule 2009—Compliance Plan for Power 

Producing Facilities (Adopted 1/7/05) 

Rule 2010—Administrative Remedies and 

Sanctions (Amended 1/7/05) 

Rule 2011—Requirements for Monitoring, 

Reporting, and Recordkeeping for Oxides 

of Sulfur (SOX) Emissions (Amended 5/ 

6/05) 

Appendix A Volume IV—(Protocol for oxides 

of sulfur) (Adopted 5/6/05) 

Rule 2012—Requirements for Monitoring, 

Reporting, and Recordkeeping for Oxides 

of Nitrogen (NOX) Emissions (Amended 

5/6/05) 

Appendix A Volume V—(Protocol for oxides 

of nitrogen) (Adopted 5/6/05) 

Rule 2015—Backstop Provisions (Amended 

6/4/04) except (b)(1)(G) and (b)(3)(B) 

Rule 2020—RECLAIM Reserve (Adopted 5/ 

11/01) 

Rule 2100—Registration of Portable 

Equipment (Adopted 7/11/97) 

Rule 2506—Area Source Credits for NOX and 

SOX (Adopted 12/10/99) 

XXX—Title V Permits 

Rule 3000—General (Adopted 11/14/97) 

Rule 3001—Applicability (Adopted 11/14/ 

97) 

Rule 3002—Requirements (Adopted 11/14/ 

97) 

Rule 3003—Applications (Adopted 3/16/01) 

Rule 3004—Permit Types and Content 

(Adopted 12/12/97) 

Rule 3005—Permit Revisions (Adopted 3/16/ 

01) 

Rule 3006—Public Participation (Adopted 

11/14/97) 

Rule 3007—Effect of Permit (Adopted 10/8/ 

93) 

Rule 3008—Potential To Emit Limitations (3/ 

16/01) 

XXXI—Acid Rain Permit Program (Adopted 

2/10/95) 

* * * * * 

[FR Doc. 05–23275 Filed 11–30–05; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 223 

[I.D. 111805A] 

Sea Turtle Requirements; Petition for 

Rulemaking 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of decision on petition. 

SUMMARY: The National Marine 

Fisheries Service (NMFS), National 

Oceanic and Atmospheric 

Administration (NOAA), Department of 

Commerce, announces its denial of a 

petition for rulemaking submitted by 

Oceana. Oceana failed to request 

specific and discrete actions that are 

properly within the scope of a 

rulemaking petition pursuant to the 

Administrative Procedure Act (APA); 

instead the petitioner challenged the 

agency’s general pattern, practice, or 

policy. NMFS is denying the petition 

because the agency is already 

addressing aspects of the petition and 

has determined that additional 

regulations dictating the choice of 

method used to achieve agency goals are 

unwarranted at this time. 

FOR FURTHER INFORMATION CONTACT: 

Barbara Schroeder (ph. 301–713–1401, 

fax 301–713–0376, e-mail 

barbara.schroeder@noaa.gov). 

SUPPLEMENTARY INFORMATION: 

Petition Request 

On August 4, 2005, Oceana submitted 

a petition requesting NMFS to 

promulgate the following regulations: 

(1) Conduct in-water population level 

assessments. The petition requests that 

NMFS use in-water survey techniques, 

such as trawl or aerial surveys to obtain 

supplemental population assessment 

information for those species for which 

nesting beach survey data are available 

among other things, Oceana cites the 

Turtle Expert Working Group (TEWG 

2000) recommendations to improve 

datasets and data-gathering methods in 

order to support its petition; 

(2) Increase observer coverage to 

obtain accurate information on the 

number of sea turtles caught in all 

fisheries. The petition requests that 

NMFS promulgate regulations that 

increase coverage. The petition cites the 

TEWG statement that observer coverage 

over a statistically valid portion of the 

fishing effort throughout the range of sea 

turtles is necessary to accurately 

estimate catch and mortality; and 

(3) Establish a quantitative method for 

determining take limits for biological 

opinions. The petition claims that 

NMFS fails to provide a quantitative 

rationale for incidental take specified in 

its biological opinions. The petition 

mentions several NMFS’ evaluations of 

quantitative models for sea turtles, 

including the Potential Biological 

Removal (PBR) model used for marine 

mammals. Finally, the petition refers to 

the August 2004 workshop convened by 

NMFS to develop an analytical 

framework for conducting jeopardy 

analyses under the Endangered Species 

Act (ESA) and identify options for 

assessing species’ risk when data are 

limited. The petition requests that 

NMFS adopt regulations immediately to 

insure that biological opinions use a 

standardized method to make decisions. 

72100 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Proposed Rules 

Analysis of Petition and Decision 

NMFS carefully considered the 

information contained in the petition 

and supporting documents, and made 

the final determinations for each portion 

of the petition as follows. 

Petition Component (1): Conduct Inwater Population Level Assessments 

The petition fails to provide any new 

information that justifies the need for 

regulations that would change the 

agency’s general pattern or practice 

regarding data collection and analytical 

methodologies. NMFS is aware of the 

TEWG’s assessments of the current 

datasets and is already working to 

improve the empirical data that define 

where, how many, and at what life stage 

and condition sea turtles may be 

encountered. NMFS is also conducting 

and supporting in-water research in 

many Atlantic states, as well as 

conducting aerial surveys in the midAtlantic to better assess sea turtle 

distribution and abundance. NMFS has 

built upon the TEWG recommendations 

by developing a requirements plan 

(NOAA 2004) to improve our 

understanding of the status of U.S. sea 

turtle populations. The requirements 

plan reviews the current sea turtle 

population assessment program in terms 

of present research capability and 

capacity, and delineates the resources 

necessary to acquire reliable assessment 

information to fully address identified 

data requirements. NMFS has 

addressed, and will continue to address, 

both the substance of this petitioned 

action and the TEWG recommendations 

through existing research planning 

documents and programs. Improvement 

of NMFS’ research program is a matter 

left to the agency’s discretion; it is not 

a specific and discrete action that is 

properly within the scope of a petition 

for rulemaking pursuant to APA 5 

U.S.C. 553(e). Accordingly, NMFS 

denies this component of the petition. 

Petition Component (2): Increase 

Observer Coverage to Obtain Accurate 

Information on the Number of Sea 

Turtles Caught in All Fisheries 

Oceana has previously petitioned 

NMFS to develop and implement a 

workplan for placing observers on 

enough fishing trips to provide 

statistically reliable bycatch estimates in 

all fisheries (67 FR 19154; April 18, 

2002). In its response to that petition, 

NMFS explained that even though 

observers are effective in many fisheries, 

they may not be appropriate for all 

fisheries (68 FR 11501, March 11, 2003). 

NMFS is continuing to expand and 

modernize observer programs for 

Federal commercial fisheries. NMFS 

recognizes that improving monitoring 

programs should increase our 

understanding of sea turtle interactions, 

but constraints on agency resources and 

logistical difficulties (e.g., small boats) 

make it difficult to monitor the extent of 

sea turtle interactions in state-managed 

and recreational fisheries. NMFS is 

exploring various observer options that 

could allow for more comprehensive, 

longer term monitoring of sea turtlefishery interactions across fishing 

sectors and jurisdictional boundaries, 

but this on going effort is still in its 

early stages. Options may include 

placing observers in fisheries of concern 

pursuant to authority under the 

Endangered Species Act (ESA). In light 

of NMFS’ previous denial of a 

substantially similar petitioned action 

and the agency’s ongoing efforts to 

improve observer coverage, granting this 

petitioned action is unwarranted at this 

time. 

Petition Component (3): Establish a 

New, Uniform Quantitative Method for 

Determining Take Limits for Biological 

Opinions 

NMFS is interested in maintaining 

consist ESA section 7 jeopardy analyses 

in its biological opinions, while taking 

into account the wide variability in 

listed species’ biology, as well as the 

wide variability in available information 

on them. To this end, NMFS convened 

a workshop in August 2004 as a first 

step in vetting the ESA section 7 

biological opinion assessment 

framework. NMFS is still in the process 

of adding features such as identifying a 

suite of quantitative and qualitative 

methods for use in both data-sparse and 

data-rich situations, as well as testing 

and refining the applicability of the 

methods using information typical to 

section 7 consultations. 

Any structured decision approach 

adopted by NMFS must, in the overall 

jeopardy evaluation, weigh such 

qualitative factors as severity of injury, 

significance of behavioral responses, 

and extent and severity of habitat 

disturbance. Approaches for evaluating 

take levels for biological opinions 

should contain options suitable to the 

varied species, available data sets, and 

actions under consideration. Use of any 

particular quantitative model such as 

PBR for every evaluation is 

inappropriate. Moreover, section 7 of 

the ESA and its implementing 

regulations do not require NMFS to 

estimate incidental take quantitatively. 

When promulgating the section 7 

regulations in 1986, NMFS and the U.S. 

Fish and Wildlife Service explicitly 

declined to endorse the use of 

numerical estimates of incidental take 

in all cases. In many biological 

opinions, a description of the extent of 

take is used because the loss of habitat 

resulting in death or injury of 

individuals may have more significant 

adverse consequences than the direct 

loss of a certain number of individuals 

(51 FR 19953, June 3, 1986). Where 

Federal actions ’take’ threatened or 

endangered species by altering the 

species’ habitat, it is often impossible to 

translate the habitat lost into numerical 

estimates of the number of individuals 

taken. Consequently, numerical 

estimates are not appropriate to every 

consultation, and requiring them 

through rulemaking could reduce the 

protections listed species currently 

receive. 

The analytical framework for 

evaluating take levels in biological 

opinions is not yet completed and has 

not been fully tested. NMFS has 

determined that it is premature to 

consider rulemaking to adopt the 

framework, or any other uniform 

decision approach, at this time. Thus, 

NMFS denies this component of the 

petition. 

References Cited 

Turtle Expert Working Group. 2000. 

Assessment update for the Kemp’s 

ridley and loggerhead sea turtle 

populations in the western North 

Atlantic. U.S. Dep. Commer. NOAA 

Tech. Mem. NMFS-SEFSC–444, 115 pp. 

NOAA Fisheries National Task Force 

for Improving Marine Mammal and 

Turtles Stock Assessment. September 

2004. A Requirements Plan for 

Improving Understanding of the Status 

of U.S. Protected Species. 

Authority: 16 U.S.C. 1531 et seq. 

Dated: November 28, 2005. 

Donna Wieting, 

Deputy Director, Office of Protected 

Resources, National Marine Fisheries Service. 

[FR Doc. 05–23537 Filed 11–30–05; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[Docket No. 051104291–5291–01; I.D. 

100405F] 

50 CFR Part 648 

RIN 0648–AT29 

Fisheries of the Northeastern United 

States; Spiny Dogfish; Framework 

Adjustment 1 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.