        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 200
        [Docket No. 150227193-5193-01]
        RIN 0648-BE92
        Establish a Single Small Business Size Standard for Commercial Fishing Businesses

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

          ACTION:
          Proposed rule; request for comment.

          SUMMARY:
          NMFS proposes to establish a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411), for Regulatory Flexibility Act (RFA) compliance purposes only. The proposed $11 million standard would be used in RFA analyses in place of the U.S. Small Business Administration's (SBA) current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry, respectively. Establishing a single size standard of $11 million for the commercial fishing industry would simplify the RFA analyses done in support of NMFS' rules, better meet the RFA's intent by more accurately representing expected disproportionate effects of NMFS' rules between small and large businesses, create a standard that more accurately reflects the size distribution of all businesses in the commercial fishing industry, and allow NMFS to determine when changes to the standard are necessary and appropriate.

          DATES:
          Comments must be received by October 19, 2015.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2015-0061, by either of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0061, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Send written comments to Mike Travis, NOAA Fisheries Service, Southeast Regional Office, 263 13th Ave. S., St. Petersburg, FL 33701.

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

          FOR FURTHER INFORMATION CONTACT:
          Mike Travis, Industry Economist, at (727) 209-5982.

        SUPPLEMENTARY INFORMATION:
        Background
        Prior to 2013, SBA had set the small business size standard for all sectors of the commercial fishing industry at the same amount. Since 2005, this standard had been $4 million in annual gross receipts (revenues). Effective July 22, 2013, SBA established significantly different and higher size standards for the three separate sectors of the industry (78 FR 37398, June 20, 2013): $19 million for commercial finfish fishing businesses (NAICS 114111), $5.0 million for commercial shellfish fishing businesses (NAICS 114112), and $7.0 million for other commercial marine fishing businesses (NAICS 114119). These standards were subsequently adjusted for inflation to $20.5 million, $5.5 million, and $7.5 million, respectively, via an interim final rule, effective July 14, 2014 (79 FR 33647, June 12, 2014). The Small Business Jobs Act of 2010 requires SBA to review all size standards every five years to account for changes in industry structure and market conditions. SBA is also required to assess the impact of inflation on its monetary-based size standards at least once every five years (13 CFR 121.102). However, as reflected by the timing of the two recent rulemakings adjusting the size standards, SBA is not required to conduct the reviews for these two purposes simultaneously. Thus, these size standards are likely to change on a regular basis.
        Under the RFA, an agency must prepare an initial and final regulatory flexibility analysis (IRFA/FRFA) for each proposed and final rule, respectively, unless it certifies that a rule will not have a significant economic impact on a substantial number of small entities. Agencies generally rely on the SBA size standards to identify small entities for RFA purposes. For NMFS, rulemaking activities that have been impacted by changes to the size standards for defining “small” businesses include, but are not limited to, regulatory actions and analyses undertaken pursuant to the Magnuson-Stevens Act (MSA), Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), and National Environmental Policy Act (NEPA). Between 2012 and 2014, NMFS published an average of 285 final rules per year, more than 40 percent of which required an RFA analysis, and a majority of those directly regulated commercial fishing businesses. Thus, NMFS' costs of complying with the RFA are significant even when the small business size standards are stable, and those costs increase substantially when the standards are changing on a recurring basis.

        NMFS and the Regional Fishery Management Councils (Councils) have encountered significant difficulties implementing and adjusting to the new standards because: (1) The change was from a single size standard for all commercial fishing businesses to three very different standards, (2) many commercial fishing businesses participate in both finfish and shellfish fishing activities, making it unclear which standard to apply in the RFA analyses, and (3) a number of rules simultaneously implement regulations under fishery management plans for both finfish and shellfish species (for e.g., 76 FR 82044, December 29, 2011; 76 FR 82414, December 30, 2011; 77 FR 15916, March 26, 2012; and 80 FR 41472, July 15, 2015), again making it unclear which standard to apply in the RFA analyses.
        Furthermore, one of the RFA's primary purposes is to determine if proposed regulations are expected to have disproportionate economic impacts on small businesses relative to large businesses and, if so, to consider alternatives that would minimize any significant adverse economic impacts on small businesses. Under SBA's current standards for commercial fishing businesses, practically all commercial fishing businesses, and particularly commercial finfish fishing businesses, would likely be determined to be small. Thus, in their RFA analyses, NMFS and the Councils would not be able to discern, consider, or address any disproportionate economic impacts that various regulatory alternatives might have on businesses NMFS and the Councils think are “small” in the commercial fishing industry. Such an outcome effectively precludes NMFS from fulfilling one of the RFA's primary purposes and thus is not desirable.

        Section 601(3) of the RFA provides that an agency, after consultation with SBA's Office of Advocacy and after an opportunity for public comment, may establish one or more definitions of “small business” which are appropriate to the activities of the agency and publish such definition(s) in the Federal Register. Further, 13 CFR 121.903(c) states that “where the agency head is developing a size standard for the sole purpose of performing a Regulatory Flexibility Analysis pursuant to section 601(3) of the Regulatory Flexibility Act, the department or agency may, after consultation with the SBA Office of Advocacy, establish a size standard different from SBA's which is more appropriate for such analysis.” NMFS and the Department of Commerce General Counsel's Office had preliminary discussions with SBA's Office of Advocacy about these provisions, and SBA was supportive of NMFS using RFA section 601(3) and 13 CFR 121.903(c) to establish its own size standard for the commercial fishing industry for purposes of RFA analyses only.
        SBA has also previously expressed support for the idea of creating a single size standard in instances where industries are closely related, as is the case for the commercial finfish and shellfish fishing industries. In its proposed rule to change the size standard for businesses in manufacturing industries (79 FR 54146, Sept. 10, 2014), SBA stated: “To simplify size standards and for other reasons, SBA may propose a common size standard for closely related industries. Although the size standard analysis may support a separate size standard for each industry, SBA believes that establishing different size standards for closely related industries may not always be appropriate. For example, in cases where many of the same businesses operate in the same multiple industries, a common size standard for those industries might better reflect the Federal marketplace. This might also make size standards among related industries more consistent than separate size standards for each of those industries.” (79 FR 54146, 54150, Sept. 10, 2014).

        NMFS has determined that the data used by SBA's Office of Size Standards to develop the new standards are incomplete and, as a result, not representative of all commercial fishing businesses. Specifically, the data used by SBA only account for commercial fishing businesses that have employees (i.e., employer firms), and thus do not include commercial fishing businesses that do not have employees (i.e., non-employer firms). Non-employer commercial fishing businesses typically pay their self-employed crew a percentage of the gross or net revenue on each commercial fishing trip rather than a standard wage or salary, and thus self-employed crew are not considered employees. Commercial fishing businesses with employees represent only about 3 percent of all commercial fishing businesses, while the other 97 percent are non-employer firms.
        Further, according to SBA, annual gross revenues for finfish and shellfish commercial fishing businesses with employees average $1.6 and $0.6 million, respectively. Conversely, NMFS determined the annual gross revenues for commercial fishing businesses without employees is only about $44,000 on average. Thus, NMFS concluded the exclusion of commercial fishing businesses without employees is primarily responsible for the magnitude of the size standard increases, particularly for finfish fishing businesses, and the standards would have been very different if SBA had used data for all commercial fishing businesses. Because the size standards apply to all commercial fishing businesses, not just those with employees, when used to analyze the economic impacts of management actions on directly regulated entities under the RFA, NMFS thinks it is more appropriate to have size standards for RFA purposes that are based on all commercial fishing businesses.

        In conjunction with its recent review of size standards, SBA developed a “Size Standards Methodology” for establishing, reviewing, and modifying size standards, where necessary. SBA included it as a supporting document in the electronic docket of the September 11, 2012, proposed rule to change the size standards for the three sectors of the commercial fishing industry (77 FR 55755) at www.regulations.gov. Application of this new methodology resulted in the significantly different size standards for the three separate sectors of the industry. NMFS referenced this document in developing the proposed size standard in this proposed rule. Consistent with that methodology, SBA used the following industry factors to establish the current size standards for NAICS Sector 11 (Agriculture, Forestry, Fishing, and Hunting): Average firm size, as measured by simple average receipts and weighted average receipts; average assets size; the four-firm concentration ratio (i.e., the percentage of receipts accounted for by the four largest firms in the industry); and the Gini coefficient, which measures the degree of inequality in the distribution of firms by receipts size class under SBA's approach.
        SBA's primary source of industry data used in the rule to establish the new size standards for the three sectors of the commercial fishing industry was a special tabulation of the 2007 County Business Patterns data from the U.S. Bureau of Census (Census Bureau). This special tabulation provided SBA with data on the number of employer firms, number of establishments, number of employees, annual payroll, and annual receipts of companies by U.S. industry (6-digit NAICS code). These data were arrayed by various classes of firms' size based on the overall number of employees and gross receipts of the entire enterprise (all establishments and affiliated firms) from all industries. These data allowed SBA to estimate average firm size, the four-firm concentration ratio, and the Gini coefficient.

        SBA's Office of Size Standards provided these data upon request to NMFS. NMFS subsequently requested and received from the Census Bureau comparable data for non-employer businesses. NMFS aggregated data to the industry level (i.e., NAICS 11411) for employer and non-employer businesses and then combined these data. Although data confidentiality was not an issue with the non-employer data, prior to aggregation NMFS had to estimate total gross receipts in certain receipts classes for employer firms where the Census Bureau determined the data were confidential and thus could not be released. The combined data provide a complete accounting of the distribution of businesses and receipts by receipt size class category for all commercial fishing businesses. NMFS used these data to generate estimates of certain industry factors needed to establish a single size standard for the commercial fishing businesses, consistent with SBA's methodology to the extent practicable.
        Specifically, NMFS used the data it received from SBA and the Census Bureau to generate estimates of simple average receipts, weighted average receipts, and the Gini coefficient. For simple average receipts, each firm's share of the industry's total receipts is weighted equally, whereas the shares of larger firms receive larger weights in estimating weighted average receipts. Weighted average receipts and the Gini coefficient were estimated using the equations provided in SBA's Size Standards Methodology document. NMFS generated the following estimates for the commercial fishing industry: $77,178 for simple average receipts, $12,322,365 for weighted average receipts, and 0.755 for the Gini coefficient. Based on the information in Table 2 of SBA's proposed rule to change the size standards for the finfish, shellfish, and other marine fishing sectors of the commercial fishing industry (77 FR 55755), these estimates support size standards of $5 million, $5 million, and $19 million, respectively.

        SBA also considers the average assets size of firms to be an important factor in establishing a size standard. NMFS does not possess and was not able to procure assets size data for non-employer businesses. SBA has such data for employer firms in the finfish and shellfish sectors, though not for employer firms in the other marine fishing sector because of the very small number of firms in that sector. The number of firms in the other marine fishing sector is very small because it includes firms primarily involved in the harvest of corals, sponges, reef associated plants (e.g., algae), and aquarium trade species, whose allowable harvest levels are very small. However, SBA had to purchase the assets size data for employer firms in the finfish and shellfish sectors from a private source and thus could not share the data with NMFS due to their proprietary nature. Therefore, NMFS created an estimate based on data that SBA published in its proposed rule, using the following approach.
        According to SBA's proposed rule, the average assets sizes for the finfish and shellfish commercial fishing sectors are $1.4 million and $0.4 million, respectively. Finfish fishing firms and shellfish fishing firms represent approximately 54 percent and 46 percent, respectively, of the 2,039 employer firms in those two sectors combined. Based on these percentages, the weighted average assets size of the combined finfish and shellfish commercial fishing sectors is approximately $0.94 million. Based on Table 2 in SBA's proposed rule, this estimate supports a $7 million size standard.

        SBA does not consider the average receipts of the four largest firms to be an important factor in establishing a size standard for industries where the four-firm concentration ratio is below 40 percent (i.e., receipts of the 4 largest firms account for less than 40 percent of the total receipts). According to the data SBA provided to NMFS, the four largest firms in the commercial fishing industry are commercial finfish fishing businesses. Within the finfish sector, these firms only account for 29 percent of total receipts within that sector. Therefore, within the larger commercial fishing industry as a whole, the percentage of receipts they account for must be less than 29 percent. Because the four largest firms account for less than 40 percent of the total receipts for the commercial fishing industry, consistent with SBA's methodology, NMFS did not use the four-firm concentration ratio in establishing a single size standard for the commercial fishing industry.
        According to SBA's methodology, all factors should be weighted equally. Therefore, NMFS averaged the standards supported by the simple average receipts ($5 million), weighted average receipts ($5 million), Gini coefficient ($19 million), and average assets size ($7 million) estimates, which results in a size standard of $9 million. However, SBA only allowed for eight size standards in its final rule (79 FR 54146, September 10, 2014): $5 million, $7 million, $10 million, $14 million, $19 million, $25.5 million, $30 million, and $35.5 million. When the estimated size standard is not equivalent to one of these eight standards, SBA rounds up to the next highest size standard. For NMFS' estimated $9 million size standard, the next highest size standard would be $10 million. If the average assets size factor is not included, because it is based on aggregated employer data only rather than a combination of employer and non-employer data, the average of the other 3 factors is $9.67 million. Thus, the next highest size standard would still be $10 million.
        NMFS is aware the Census Bureau has recently released the 2012 County Business Patterns data for employer firms. However, 2012 data for non-employer firms has not yet been released. As previously discussed, NMFS does not think it is prudent to propose a size standard based only on employer data because 97 percent of the commercial fishing businesses are non-employers. Further, even if the 2012 non-employer data is released and NMFS generates new estimates of the various industry factors, NMFS would still not be able to determine what standards are implied by the new estimates until SBA generates an updated version of Table 2 in its proposed rule to change the size standards for the finfish, shellfish, and other marine fishing sectors of the commercial fishing industry (77 FR 55755) using 2012 rather than 2007 data.
        As previously stated, SBA recently implemented a rule to adjust all of its receipts based size standards for inflation using the chain-type price index for the U.S. Gross Domestic Product (GDP price index) (79 FR 33647, June 12, 2014). According to that rule, for all industries with a non-inflation-adjusted size standard of $10 million, the new inflation-adjusted size standard is $11 million.
        Thus, this rule proposes to establish a small business size standard of $11 million for all businesses in the commercial fishing industry (NAICS 11411) for RFA compliance purposes only. This single size standard for commercial fishing businesses would be used in all RFA analyses conducted in support of NMFS' regulatory actions. Establishing this single size standard would simplify the RFA analyses done in support of NMFS' rules, better meet the RFA's intent by more accurately representing expected disproportionate effects of NMFS' rules between small and large commercial fishing businesses, create a standard that more accurately reflects the size distribution of all businesses in the commercial fishing industry, and allow NMFS to determine when changes to the standard are necessary and appropriate.
        Consistent with SBA's review requirements under the Small Business Jobs Act of 2010 and 13 CFR 121.102, NMFS also proposes to review this standard at least once every 5 years to determine if a change is warranted. A change may be warranted because of changes in industry structure, market conditions, inflation, or other relevant factors. The reviews for these potential reasons will be conducted simultaneously in order to minimize the frequency of changes to the standard and additional rulemakings.
        Consistent with the requirements in 13 CFR 121.903(c), NMFS will formally consult SBA's Office of Advocacy to ensure their concurrence with this proposed action.
        Classification
        Pursuant to section 601(3) of the RFA, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the RFA and other applicable law, subject to further consideration after public comment.
        This proposed rule has been determined by the Office of Management and Budget to be significant for purposes of Executive Order 12866 because it raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the SBA that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows.
        The purposes of the rule are to establish a single small business size standard of $11 million in annual gross receipts for the commercial fishing industry (NAICS 11411), for RFA compliance purposes only, and a requirement for NMFS to assess at least once every 5 years whether this size standard should be changed. The objectives of the rule are to simplify the RFA analyses done in support of NMFS' rules, better meet the RFA's intent by more accurately representing expected disproportionate effects of NMFS' rules between small and large businesses, create a standard that more accurately reflects the size distribution of all businesses in the commercial fishing industry, and allow NMFS to determine when changes to the standard are necessary and appropriate. The RFA and 13 CFR 121.903(c) serve as the legal basis for the rule.
        The actions in this rule are administrative in nature and thus would only potentially generate indirect economic effects on commercial fishing businesses. Specifically, the proposed size standard would only affect how NMFS and the Councils determine whether commercial fishing businesses directly regulated by future regulatory actions are small or large, whether and to what extent those actions have disproportionate economic impacts on those two classes of businesses, and when it is appropriate for NMFS to change the standard in the future. This rule would not impose any new requirements on commercial fishing businesses. Therefore, no small entities would be directly regulated by this rule. This rule would not be expected to affect the behavior or operations of commercial fishing businesses. As such, this rule is not expected to generate any direct economic effects on commercial fishing businesses.
        Based on the information above, a reduction in profits for a substantial number of small entities is not expected. Because this rule, if implemented, is not expected to have a significant economic impact on a substantial number of small entities, an IRFA is not required and none has been prepared.

        No duplicative, overlapping, or conflicting Federal rules have been identified. This rule would not establish any new reporting or record-keeping requirements.

          List of Subjects in 50 CFR Part 200
          Commercial fishing, Small businesses.

          Dated: September 14, 2015.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, NMFS proposes to add 50 CFR part 200 under subchapter A to read as follows:

          SUBCHAPTER A—GENERAL PROVISIONS

            PART 200—SMALL BUSINESS SIZE STANDARDS ESTABLISHED BY NMFS FOR REGULATORY FLEXIBILITY ACT COMPLIANCE PURPOSES ONLY

              Sec.
              200.1
              Purpose and scope.
              200.2
              Small business size standards and frequency of review.

              Authority:
               5 U.S.C. 601 et seq.

              § 200.1
              Purpose and scope.
              (a) This part sets forth the National Marine Fisheries Service (NMFS) small business size standards for NMFS to use in conducting Regulatory Flexibility Act (RFA) analyses for NMFS actions subject to the RFA. This part also sets forth the timeframe for NMFS to review its small business size standards.
              (b) NMFS has established the alternative size standards in this part, for RFA compliance purposes only, in order to simplify the RFA analyses done in support of NMFS' rules, better meet the RFA's intent by more accurately representing expected disproportionate effects of NMFS' rules between small and large businesses, create a standard that more accurately reflects the size distribution of all businesses in the industry, and allow NMFS to determine when changes to the standard are necessary and appropriate.

              § 200.2
              Small business size standards and frequency of review.
              (a) NMFS' small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing is $11 million in annual gross receipts. This standard applies to all businesses classified under North American Industry Classification System (NAICS) code 11411 for commercial fishing, including all businesses classified as commercial finfish fishing (NAICS 114111), commercial shellfish fishing (NAICS 114112), and other commercial marine fishing (NAICS 114119) businesses.
              (b) NMFS will review each of the small business size standards in paragraph (a) of this section at least once every 5 years to determine if a change is warranted. A change may be warranted because of changes in industry structure, market conditions, inflation, or other relevant factors.

      [FR Doc. 2015-23375 Filed 9-17-15; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 402
        [Docket No. FWS-HQ-ES-2020-0102; FXES1114090FEDR-201-FF09E30000; Docket No. 201231-0363]
        RIN 1018-BF17; 0648-BJ77
        Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation

          AGENCY:
          U.S. Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.

          ACTION:
          Proposed rule.

          SUMMARY:
          The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively referred to as the “Services” or “we”) propose to amend the Services' consultation regulations under the Endangered Species Act of 1973, as amended, pertaining to the U.S. Forest Service and Bureau of Land Management. The proposed revisions would clarify that reinitiation of consultation would not be required for these agencies' previously approved land management plans when new information reveals that effects of a plan may affect listed species or critical habitat in a manner or to an extent not previously considered, provided that any authorized actions for which the new information is relevant will be addressed through a separate action-specific consultation. The proposed revisions would also replace the existing regulation's temporary instructions concerning National Forest System lands with permanent instructions. The Services are proposing this change to improve and clarify the interagency cooperation procedures by making them more efficient and consistent.

          DATES:

          We will accept comments from all interested parties until February 11, 2021. Please note that if you are using the Federal eRulemaking Portal (see ADDRESSES below), the deadline for submitting an electronic comment is 11:59 p.m. Eastern Standard Time on this date.

          ADDRESSES:
          You may submit comments by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2012;2020-0102, which is the docket number for this rulemaking. Then in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”
          (2) By Hard Copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS-HQ-ES-2020-0102, U.S. Fish and Wildlife Service, MS:JAO/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803 or National Marine Fisheries Service, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910.

          We request that you send comments only by the methods described above. We will post all comments on https://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Gary Frazer, U.S. Fish and Wildlife Service, Department of the Interior, Washington, DC 20240, telephone 202/208-4646; or Samuel D. Rauch, III, National Marine Fisheries Service, Department of Commerce, 1315 East-West Highway, Silver Spring, MD 20910, telephone 301/427-8000. If you use a telecommunications device for the Deaf (TDD), call the Federal Relay Service at 800-877-8339.

        SUPPLEMENTARY INFORMATION:

        Background

        The purposes of the Endangered Species Act of 1973, as amended (“ESA” or “Act”; 16 U.S.C. 1531 et seq.), are to provide a means to conserve the ecosystems upon which listed species depend, to develop a program for the conservation of listed species, and to achieve the purposes of certain treaties and conventions. Moreover, the Act states that it is the policy of Congress that the Federal Government shall seek to conserve threatened and endangered species and use its authorities in furtherance of the purposes of the Act. The Lists of Endangered and Threatened Wildlife and Endangered and Threatened Plants (hereafter, “the Lists”) are in title 50 of the Code of Federal Regulations in part 17 (§ 17.11(h) and § 17.12(h)).
        Part 402 of title 50 of the Code of Federal Regulations establishes the procedural regulations governing interagency cooperation under section 7 of the Act, which requires Federal agencies, in consultation with and with the assistance of the Secretaries of the Interior and Commerce, to insure that any action authorized, funded, or carried out by such agencies is not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. The Secretary of the Interior and the Secretary of Agriculture, through the Bureau of Land Management (BLM) and the U.S. Forest Service (FS), respectively, are responsible for the administration, management, and protection of approximately 438 million surface acres of Federal lands. Congress has directed that both Departments develop land management plans that provide for management of these Federal lands in accordance with the concepts of multiple use and sustained yield.

        More specifically, the Federal Land Policy and Management Act of 1976 (FLPMA) and the National Forest Management Act (NFMA) require the Secretaries of the Interior and Agriculture, respectively, to “develop, maintain, and, as appropriate, revise” land management plans and to coordinate such planning with other Federal agencies. See 43 U.S.C. 1712(a), (c)(1)-(c)(9); 16 U.S.C. 1604(a); see also Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (SUWA); Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 728 (1998) (Ohio Forestry). The BLM and FS develop plans that provide standards and guidelines for land and resource management that reflect both economic and environmental considerations. Once a plan is adopted, the agencies' individual project decisions and associated permits, contracts, and other instruments regulating use and occupancy within a unit covered by the plan must be consistent with the plan. See 43 U.S.C. 1732(a); 16 U.S.C. 1604(i); 43 CFR 1601.0-5, 1610.5-3(a); 36 CFR 219.15.

        Land management plans are broad planning documents that guide long-term natural resource management. Unless it expressly states otherwise, a plan generally does not authorize any on-the-ground action such as road building or timber cutting. Ohio Forestry, 523 U.S. at 729-730; SUWA, 542 U.S. at 59, 69-70. Before authorizing a project in an area governed by an approved land management plan, the BLM and FS must ensure that the proposed project is consistent with the applicable plan, while also complying with other applicable laws, including section 7 of the ESA.

        In 2019, the Services revised 50 CFR 402.16 to address issues arising under the Ninth Circuit's decision in Cottonwood Environmental Law Center v. U.S. Forest Service, 789 F.3d 1075 (9th Cir. 2015), cert. denied, 137 S. Ct. 293 (2016), which held that the FS must reinitiate consultation on its existing programmatic forest plan when the FWS designated critical habitat for the Canada lynx. See 84 FR 44976-45018 (August 27, 2019). We added a new paragraph (b) to 50 CFR 402.16 to clarify that the duty to reinitiate consultation does not apply to an approved land management plan prepared pursuant to FLPMA or NFMA when a species is added to the Lists or new critical habitat is designated, in certain specific circumstances, provided that any authorized actions that may affect the newly listed species or designated critical habitat will be addressed through a separate action-specific consultation. Consistent with the Wildfire Suppression Funding and Forest Management Activities Act, H.R. 1625, Division O, section 208, which was included in the Omnibus Appropriations bill for fiscal year 2018 (codified at 16 U.S.C. 1604(d)(2)(B)), we noted that this statutory exception to reinitiation of consultation does not apply to those land management plans prepared pursuant to 16 U.S.C. 1604 if (1) 15 years have passed since the date the agency adopted the land management plan and (2) 5 years have passed since the enactment of Public Law 115-141 [March 23, 2018] or the date of the listing of a species or the designation of critical habitat, whichever is later. These statutory timing provisions are discussed in greater detail below.
        We aligned the application of § 402.16(a)(4) to exclude from reinitiation of consultation approved land management plans (including approved amendments and revisions) prepared pursuant to the FLPMA or the NFMA that have no immediate on-the-ground effects, but rather are frameworks for future actions. Those excluded approved plans contrast with specific on-the-ground actions that are subject to their own section 7 consultations if those on-the-ground actions may affect listed species or critical habitat. Thus, the 2019 revised regulation also noted that a previously approved land management plan prepared pursuant to FLPMA or NFMA does not require reinitiation of consultation upon the new listing of species or new designation of critical habitat, if any effects on newly listed species or newly designated critical habitat (to the extent there are any) will be analyzed in a separate section 7 consultation on a subsequent authorized action taken under the plan.
        Proposed Regulatory Revisions Concerning New Information

        We now propose to further amend our regulations to address a closely related issue that also arose in Cottonwood by revising § 402.16 (b) to clarify that the duty to reinitiate does not apply to an approved land management plan prepared pursuant to FLPMA, 43 U.S.C. 1701, or NFMA, 16 U.S.C. 1604, if new information reveals effects of the plan on listed species or critical habitat in a manner or to an extent not previously considered, provided that any subsequent actions taken pursuant to the plan will be subject to a separate section 7 consultation if those actions may affect listed species or critical habitat. Generally, ground-disturbing actions would be authorized subsequent to approval of the plan and addressed through a subsequent action-specific consultation. However, there are actions in some BLM land management plans that allow ground-disturbing action upon approval. For example, BLM plans may include off-highway vehicle (OHV) “open areas” that do not require subsequent approval. If the plan directly authorizes the action (e.g., OHV open areas), then this proposed exemption from reinitiation does not apply if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered with respect to those activities under the plan (e.g., OHV use in an open area) that would not be subject to future action-specific consultation.
        This proposed regulatory revision would improve the efficiency of the consultation process while ensuring consideration of new information prior to the implementation of actions that may affect listed species or critical habitat. Unless they expressly state otherwise, completed land management plans do not result in any immediate on-the-ground effects, and relevant new information would be considered during a separate section 7 consultation on a subsequent action taken in conformance with the approved land management plan if those actions may affect listed species or critical habitat. As discussed in greater detail below, this is consistent with the government's longstanding legal position that the duty to consult under section 7 is limited to affirmative agency actions, which include prospective or ongoing actions authorized, funded, or carried out by Federal agencies—but not to completed actions or agency inaction.

        Land management plans prepared pursuant to NFMA or FLPMA do not differ significantly in overall structure and generally contain a framework for desired conditions, objectives, and guidance for project and activity decision-making in the plan area. Plans do not generally grant, withhold, or modify any contract, permit, or other legal instrument or create any legal rights. As courts have noted, “a statement in a plan that BLM “will” take this, that, or the other action” is not a legally binding commitment enforceable under the [Administrative Procedure Act.]' ” Forest Guardians v. Forsgren, 478 F.3d 1149, 1156 n. 9 (10th Cir. 2007) (quoting SUWA, 542 U.S. at 72).
        The proposed revision appropriately relies on the proposition that a land management plan prepared pursuant to NFMA or FLPMA establishes a framework for the development of specific future action(s) but does not normally authorize future action(s). Land management plans do not generally fund, authorize, or carry out ground-disturbing actions. However, as described above, there are actions in some BLM land management plans that are directly authorized by the plan itself and will not be reviewed in a separate ESA section 7 consultation. Thus, to the extent that new information reveals effects to listed species or critical habitat from these actions directly authorized by the plan and that were not previously considered, this proposed exemption from reinitiation of consultation would not apply.

        The proposed revisions to the regulations are consistent with the statutory purposes of section 7 of the ESA. New information regarding effects not previously considered in the programmatic biological opinion would be evaluated in a separate consultation in which more site-specific details would be available to better assess any impacts on listed species or critical habitat. In addition, to the maximum extent that doing so is consistent with the agencies' responsibilities under the ESA, the process of updating or revisiting programmatic consultations on land management plans is usually best conducted in conjunction with the amendment and revision process set forth in the planning statutes rather than on an ad hoc basis. Thus, the proposed revision to the regulations would make the consultation process more efficient and consistent, while ensuring that species and the habitats upon which they depend are conserved. Specifically, we propose to revise paragraph (b) of § 402.16 by moving some of the existing language to new paragraph (b)(1) and adding a new paragraph (b)(2), which includes language pertaining to land management plans for which new information reveals that effects of the action may affect listed species or critical habitat in a manner or to an extent not previously considered.
        Congress did not address land management plans prepared pursuant to FLPMA in the 2018 Omnibus Act, except for grant lands under the Oregon and California Revested Lands Act, 39 Stat. 218, and the Coos Bay Wagon Road Reconveyed Lands Act, 40 Stat. 1179. No expiration date was attached to these provisions. Accordingly, like the 2019 regulatory exemption from reinitiation on the basis of newly listed species or designated critical habitat, this proposal would exclude from the reinitiation requirement any completed land management plan prepared pursuant to FLPMA from reinitiation of consultation on the basis of new information on effects of the plan, as long as any action taken pursuant to the plan will be subject to an action-specific section 7 consultation if that action may affect a listed species or critical habitat. For the same reasons set forth below as to National Forest System lands, the Services conclude that these instructions may be established on a permanent basis.

        After decades of experience cooperating with action agencies across the Federal Government, we have gained expertise with respect to when reinitiation of consultation is most effective in meeting the overall goals of the Act. As a legal matter, as the Department of Justice correctly argued in Cottonwood, the duty to reinitiate consultation does not apply to completed land and resource management plans. See, e.g., Forest Guardians v. Forsgren, 478 F.3d at 1158-59 (disagreeing with Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994)). Independently of any such legal considerations, as a policy matter, similar to reinitiating consultation on a land management plan when new species are listed or critical habitat designated, reinitiation of consultation on those plans based on new information on effects of the plan does little to further the goals of the Act. Both the BLM and the FS periodically update their land management plans, at which time they would consider any new information during consultation on effects of the plan. The BLM periodically evaluates and revises resource management plans (see 43 CFR subpart 1610), and the interval between reevaluations should not exceed 5 years (see BLM Handbook H-1601-1 at p. 34). FS is required to revise their land management plans at least every 15 years (see 36 CFR 219.7). In addition to periodically revising their land management plans, both BLM and FS are required to consult on any specific actions if those actions may affect listed species or critical habitat.
        We propose, therefore, to expand § 402.16(b) to apply likewise to the receipt of new information revealing effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered. Requiring reinitiation on these completed plans based on new information of effects of the existing plans often results in impractical and disruptive burdens while resulting in little benefit to listed species or critical habitat. Generally, specific on-the-ground actions taken in conformance with the approved land management plan are subject to their own action-specific section 7 consultations if those actions may affect listed species or critical habitat, and relevant new information would be analyzed at that time. In these cases, focusing on these action-specific consultations would allow the affected agencies to direct their limited resources to those actions that cause on-the-ground effects to listed species or designated critical habitats and ensure that the FS and the BLM fulfill their obligations under section 7, while avoiding unnecessary reinitiation at the plan level.
        For example, if new information revealed a higher density of a listed species in a plan area than was known during the consultation on the land management plan, that new information would be considered and incorporated in future consultations on specific authorized actions that may affect that species and/or its critical habitat. As another example, if, after completion of consultation on a land management plan, it was learned that a technique or practice that was anticipated to be used during subsequent projects is reasonably certain to have a greater impact on the environment than that analyzed in the consultation on the land management plan, that new information would also be considered and incorporated in future consultations on specific authorized actions that may affect listed species and/or critical habitat. Each consultation builds on past consultations no matter whether the action being consulted on relates to a plan or to a specific action.

        At the early stage and broad scale of plan consultation, the agencies lack specific information on whether and how actual projects and activities will occur. As discussed, plans are programmatic documents that set broad goals and guidelines for land management, but typically do not authorize ground-disturbing activities. See Ohio Forestry, 523 U.S. at 733-34. The number, type, timing, location, and other details for any activities that may occur in the plan area mostly are unknown to the action and consulting agencies at the time of consultation on a plan.

        By contrast, in the context of project consultations, the consulting agency knows specifically where and when the actions are to occur and the details about the types of activities proposed that were unknown at the time of the consultation on the plan. Moreover, as part of the environmental baseline, the consulting agency knows how other Federal, State, and private actions have affected the species and its critical habitat and analyzes those impacts during the project consultations. See 50 CFR 402.02. Significantly, the project consultations are not narrowly limited to the effects of the individual action on the species or its critical habitat but include “all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action [that] . . . would not occur but for the proposed action and it is reasonably certain to occur.” Id. § 402.02. These include effects that may occur later in time or outside the immediate area involved in the action. Id.; see also § 402.17. Thus, each section 7 consultation builds on the consultations for previous actions.

        This proposed revision to the regulations would not change the approach for subsequent consultations on specific authorized actions. During consultation, the Services and the action agency are required to use the best scientific and commercial data available, and this requirement necessarily encompasses considering new relevant information.

        Proposed Regulatory Revisions Concerning Permanent Rulemaking as to National Forest System Lands
        The proposed revisions would remove the existing regulation's timing limitations concerning National Forest System lands. To be sure, the 2018 Act's instructions will remain in force for the time specified by the statute itself. But while Congress' legislative solution has proven to be protective of species' interests and workable for all of the agencies involved, it is only a temporary fix. Therefore, we have decided to invoke our general authority under section 7 concerning inter-agency consultation and issue permanent consultation instructions for FS planning efforts, just as we did for the BLM in 2019.

        As previously noted, in 2018 Congress statutorily intervened to temporarily resolve the effects of the Cottonwood ruling regarding ESA reinitiation requirements following critical habitat designations. The Omnibus Act created a temporary, safe harbor exempting the FS from reinitiating consultation for approved land management plans when a new species is listed or new critical habitat designation occurs. The Omnibus Act also established a permanent exemption from reinitiation for certain lands managed by the BLM. To recognize these instructions, the Services amended the reinitiation regulations at 50 CFR 402.16 to incorporate the Omnibus Act's instructions that reinitiation of consultation shall not be required for land management plans upon listing of a new species or designation of new critical habitat, subject to the time limitations on this safe-harbor relief that were specified in the Omnibus Act (84 FR 45017, August 27, 2019). The regulatory provisions applicable to National Forest System lands reflected the Omnibus Act's rolling sunset of the safe-harbor exemptions from reinitiation of consultation. For a National Forest System plan that is outside the time limitations that apply to the relief afforded by the Omnibus Act, reinitiation of consultation is governed by standard ESA statutory and regulatory requirements and is not subject to the safe harbor afforded by the Act.

        While the Omnibus Act set specific temporal timeframes for its temporary safe-harbor exemption of NFS lands, the Services retain their general ESA section 7 authority to establish procedures governing inter-agency cooperation. Congress' negotiated outcome of a temporary safe-harbor solution to the problems created by Cottonwood leaves intact the Services' authority to establish a permanent administrative remedy to such problems.

        First, the ESA sets forth a general duty to consult on agency action and broadly authorizes the Services to determine the manner in which that duty is carried out. See Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687, 708 (1995) (“When it enacted the ESA, Congress delegated broad administrative and interpretive power to the Secretary.”); 16 U.S.C. 1533(b)(8) (authorizing “publication in the Federal Register of any proposed or final regulation which is necessary or appropriate to carry out the purposes of this Act”). We also note that while section 7 was enacted in 1973 and initial ESA regulations were issued in 1978, no reinitiation regulation was issued until 1986. Agencies routinely revisit their regulations seeking improvement and resolving ambiguities. See Nat'l Cable & Telecomm. Ass'n v. Brand X internet Servs., 545 U.S. 967, 982-83 (2005). The Services' authority to clarify and adjust the consultation procedures is well-supported in the ESA's text and case law and is necessary to ensure the ESA's proper administration. A permanent solution to resolve conflicting judicial interpretations of administrative regulations is entirely appropriate and within the Service's authority.

        Second, the fact that Congress already has enacted a narrow, temporary fix does not preclude a permanent administrative solution. Nothing in the Omnibus Act's text suggests a broad preemptive effect as to the Services' general rulemaking authority. More specifically, while 16 U.S.C. 1604(d)(2)(B) provides that the protection afforded by subparagraph (A) “shall not apply” if certain temporal limits have been exceeded, subparagraph (A) provides that “notwithstanding any other provision of law, the Secretary shall not be required to engage in consultation under this section or any other provision of law (including section 7 of Public Law 93-205 (16 U.S.C. 1536) and § 402.16 of title 50, Code of Federal Regulations (or a successor regulation)) with respect to” species listings and critical habitat designations. That “notwithstanding any other provision of law” provision does not change the meaning of the underlying law, and therefore does not disturb the preexisting ESA authorities outside its specific instructions. The Omnibus Act's “notwithstanding” language disavows other provisions of law to create an independent, self-executing limitation that is self-contained and not preemptive of the Service's general authority under the ESA. The Act's “notwithstanding” language signifies that no matter how a court may read the ESA or section 7 requirements in general, no consultation is required on forest plans in the circumstances specifically addressed by the legislation. The Act therefore does not preclude the broader administrative adjustment of the underlying regulations proposed here, particularly given the sweeping delegation of rulemaking authority that the ESA affords to the Services as a general matter. See Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. at 708 (“When Congress has entrusted the Secretary with broad discretion, we are especially reluctant to substitute our views of wise policy for his.”).

        Viewing the Omnibus Act through the familiar rules of statutory construction, it is clear that nothing is to be added to what the Omnibus Act's text states or reasonably implies (casus omissus pro omisso habendus est). That is, a matter not covered is to be treated as not covered. As the Fifth Circuit said with respect to similar safe-harbor amendments to the Migratory Bird Treaty Act, “[w]hether Congress deliberately avoided more broadly changing the [statute] or simply chose to address a discrete problem, the most that can be said is that Congress did no more than the plain text of the amendment means.” United States v. Citgo, 801 F.3d 477, 491 (5th Cir. 2015); see id. (“A single carve-out from the law cannot mean that the entire coverage of the MBTA was implicitly and hugely expanded.”).

        Third, a permanent resolution also aligns with the government's longstanding position that the duty to consult under section 7 is limited to affirmative agency actions and is not applicable to completed actions or agency inaction. The United States' 2016 Petition for Certiorari in Cottonwood clearly and unequivocally stated that “the Ninth Circuit's holding that federal agencies must reinitiate consultation pursuant to section 7 of the ESA on a completed agency action at the programmatic level because the agency retains discretion to authorize site-specific projects governed by the programmatic action has no basis in the ESA or its implementing regulations.” Petition for Writ of Certiorari, United States Forest Service v. Cottonwood Environmental Law Center, No. 15-1387 (June 2016). As previously noted, unless expressly stated otherwise, completed land management plans do not result in any immediate on-the-ground effects, and all relevant information is considered during the separate section 7 consultations that occur for subsequent project activities if those actions may affect listed species or critical habitat. The Forest Service's current planning regulations confirm that “[a] plan does not authorize projects or activities or commit the Forest Service to take action.” 36 CFR 219.2(b)(2).

        Further, plan level consultation will of course continue to occur when the FS proposes to amend or revise a plan. Cyclical or periodic consultation aligns with other Ninth Circuit caselaw such as California Sportfishing Protection Alliance v. FERC, 472 F.3d 593, 595, 598 (9th Cir. 2006), where the Circuit reviewed a challenge to the Federal Energy Regulatory Commission's decision not to initiate consultation over the ongoing operation of a private hydroelectric plant operated under a 30-year license. In that case, FERC had the discretion to institute proceedings to amend an existing license, but the court emphasized, that “[t]he ESA and the applicable regulations . . . mandate consultation with [the consulting agency] only before an agency takes some affirmative agency action, such as issuing a license.” The court concluded that “the agency action of granting a permit is complete,” and that the mere unexercised discretion to modify the license for the benefit of listed species did not constitute “action” triggering a duty to initiate consultation.
        A permanent rule addressing programmatic plan consultation will promote predictability for agencies and the public and allow the FS and BLM to efficiently accomplish their species conservation objectives and land management missions.
        Public Comments
        The proposed amendments would adjust reinitiation practices addressing new information supplementing the Services' rulemaking governing reinitiation for critical habitat designations and species listings which was the subject of both legislation and administrative rulemaking. These proposed procedural adjustments provide clarity and transparency about how the Secretaries intend to exercise their discretion regarding evaluation of new information concerning land management plans under section 7(a)(2) of the ESA. As the ESA does not provide a specific public comment period for issuance of inter-agency consultation regulations, generally speaking, any otherwise applicable notice requirement will be satisfied if it affords interested persons a reasonable and meaningful opportunity to participate in the rulemaking process. The 30-day comment period provides such an opportunity given the proposed rule's limited scope and the other recent rulemaking pertaining to reinitiation practices.

        You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES. Comments must be submitted to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified in DATES. We will not consider mailed comments that are not postmarked by the date specified in DATES.

        We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov.

        Required Determinations
        Regulatory Planning and Review—Executive Orders 12866 and 13563
        Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is significant.
        Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. This proposed rule is consistent with Executive Order 13563, and in particular with the requirement of retrospective analysis of existing rules, designed “to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.”
        Executive Order 13771
        This proposed rule is an Executive Order 13771 “other” action.
        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, or his designee, 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 certify that, if adopted as proposed, this proposed rule would not have a significant economic effect on a substantial number of small entities. Because this rulemaking action specifically affects only Federal agencies, no external entities, including any small businesses, small organizations, or small governments, will experience any economic impacts from this rule.
        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.):

        (a) On the basis of information contained in the Regulatory Flexibility Act section above, this proposed rule would not “significantly or uniquely” affect small governments. This proposed rule applies exclusively to Federal agencies. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this rule would 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 rule would not place additional requirements on any city, county, or other local municipalities.

        (b) This proposed rule would not produce a Federal mandate on State, local, or Tribal governments or the private sector of $100 million or greater in any year; that is, this proposed rule is not a “significant regulatory action”' under the Unfunded Mandates Reform Act. This proposed rule would impose no obligations on State, local, or Tribal governments.
        Takings (E.O. 12630)
        In accordance with Executive Order 12630, this proposed rule would not have significant takings implications. This proposed rule would not pertain to “taking” of private property interests, nor would it directly affect private property. A takings implication assessment is not required because this proposed rule (1) would not effectively compel a property owner to suffer a physical invasion of property and (2) would not deny all economically beneficial or productive use of the land or aquatic resources. This proposed rule 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 would have significant federalism effects and have determined that a federalism summary impact statement is not required. This proposed rule pertains only to factors concerning reinitiation of consultation for Federal agencies under the Endangered Species Act and 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.
        Civil Justice Reform (E.O. 12988)
        This proposed rule would clarify responsibilities for reinitiation of consultation under the Endangered Species Act. This proposed rule would not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988.
        Government-to-Government Relationship With Tribes

        In accordance with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” the Department of the Interior's manual at 512 DM 2, and the Department of Commerce (DOC) Tribal Consultation and Coordination Policy (May 21, 2013), DOC Departmental Administrative Order (DAO) 218-8 (April 2012), and NOAA Administrative Order (NAO) 218-8 (April 2012), we are considering possible effects of this proposed rule on federally recognized Indian Tribes. The Services have reached a preliminary conclusion that the proposed changes to these implementing regulations are general in nature and do not directly affect specific species or Tribal lands. These proposed regulations clarify the processes for reinitiation of consultation and directly affect only the Services and Federal land-managing agencies. Therefore, we conclude that these regulations do not have “Tribal implications” under section 1(a) of E.O. 13175, and, formal government-to-government consultation is not required by the Executive Order and related policies of the Departments of the Interior and Commerce. We will continue to collaborate with Tribes on issues related to federally listed species and their habitats and work with them as we implement the provisions of the Act. See Joint Secretarial Order 3206 (“American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act”, June 5, 1997).
        Paperwork Reduction Act
        This proposed rule does not contain any new collections of information that require approval by the OMB under the Paperwork Reduction Act. This proposed rule will not impose recordkeeping or reporting requirements on State, local, or Tribal governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
        National Environmental Policy Act
        We are analyzing this proposed regulation in accordance with the criteria of the National Environmental Policy Act (NEPA), the Department of the Interior regulations on Implementation of the National Environmental Policy Act (43 CFR 46.10-46.450), the Department of the Interior Manual (516 DM 8), the NOAA Administrative Order 216-6A, and the NOAA Companion Manual (CM), “Policy and Procedures for Compliance with the National Environmental Policy Act and Related Authorities” (effective January 13, 2017).
        As a result, we anticipate that the categorical exclusion found at 43 CFR 46.210(i) applies to the proposed regulation changes. At 43 CFR 46.210(i), the Department of the Interior has found that the following categories of actions would not individually or cumulatively have a significant effect on the human environment and are, therefore, categorically excluded from the requirement for completion of an environmental assessment or environmental impact statement: “Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature.” NOAA's NEPA procedures include a similar categorical exclusion for “preparation of policy directives, rules, regulations, and guidelines of an administrative, financial, legal, technical, or procedural nature.” (Categorical Exclusion G7, at CM Appendix E).
        We are continuing to consider the extent to which this proposed regulation may have a significant impact on the human environment or fall within one of the categorical exclusions. We invite the public to comment on these or any other aspects of NEPA compliance that may be needed for these revisions. We will comply with NEPA before finalizing this regulation.
        Energy Supply, Distribution or Use (E.O. 13211)
        Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The proposed revised regulations are not expected to affect energy supplies, distribution, and use, and the Administrator of OIRA has not otherwise designated it as a significant energy action. Accordingly, no Statement of Energy Effects is required.
        Clarity of the Rule
        We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
        (1) Be logically organized;
        (2) Use the active voice to address readers directly;
        (3) Use clear language rather than jargon;
        (4) Be divided into short sections and sentences; and
        (5) Use lists and tables wherever possible.

        If you believe that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs of the rule that are not clearly written, which sections or sentences are too long, the sections where you believe lists or tables would be useful, etc.

        Authority

        We issue this proposed rule under the authority of the Endangered Species Act, as amended (16 U.S.C. 1531 et seq.).

          List of Subjects in 50 CFR Part 402
          Endangered and threatened species.

        Proposed Regulation Promulgation
        For the reasons set out in the preamble, we propose to amend subpart B of part 402, subchapter A of chapter IV, title 50 of the Code of Federal Regulations, as set forth below:

          PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED

        1. The authority citation for part 402 continues to read as follows:

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

        2. Amend §  402.16 by revising paragraph (b) to read as follows:

          § 402.16
          Reinitiation of consultation.

          (b) After an agency approves a land management plan prepared pursuant to 43 U.S.C. 1712 or 16 U.S.C. 1604, the agency need not reinitiate consultation on that plan upon:
          (1) The listing of a new species or designation of new critical habitat, provided that any authorized actions that may affect the newly listed species or designated critical habitat will be addressed through a separate action-specific consultation; or
          (2) The receipt of new information revealing effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered, provided that any authorized actions for which the new information is relevant will be addressed through a separate action-specific consultation.

          George Wallace,
          Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior.
          Christopher Wayne Oliver,
          Assistant Administrator for Fisheries, National Marine Fisheries Service, National Oceanic and Atmospheric Administration.

      [FR Doc. 2021-00366 Filed 1-11-21; 8:45 am]
      BILLING CODE 4333-15-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 070711313-7637-03]
        RIN 0648-AV62
        Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish, Crab, Salmon, and Scallop Fisheries of the Bering Sea and Aleutian Islands Management Area

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS issues a proposed rule that would implement Amendment 88 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area. This amendment, if approved, would revise the Aleutian Islands Habitat Conservation Area (AIHCA) boundary to allow nonpelagic trawling in an area historically fished and to prohibit nonpelagic trawling in an area of known coral and sponge occurrence. This action is necessary to ensure the AIHCA protects areas of coral and sponge habitat from the potential effects of nonpelagic trawling and allow nonpelagic trawling in areas historically fished and without evidence of coral and sponge occurrence.

          DATES:
          Written comments must be received by January 7, 2008.

          ADDRESSES:
          You may submit comments, identified by 0648-AV62, by any one of the following methods:

          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov;
          • Mail: Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802; Attn: Ellen Sebastian, Records Officer;
          • Hand delivery: 709 West 9th Street, Room 420A, Juneau, AK; or
          • Fax: 907-586-7557, Attention: Sue Salveson.

          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. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

          Copies of the map of the AIHCA and the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) for this action may be obtained from the addresses stated above or from the Alaska Region NMFS website at http://www.fakr.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Melanie Brown, 907-586-7228 or email at melanie.brown@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        The groundfish, crab, scallop, and salmon fisheries in the exclusive economic zone (EEZ) off Alaska are managed under their respective fishery management plans (FMPs). The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations implementing the FMPs appear at 50 CFR parts 679 and 680. General regulations governing U.S. fisheries also appear at 50 CFR part 600. The groundfish fishery restrictions for the AIHCA described in the groundfish FMP are implemented by regulations at 50 CFR part 679. Revisions to the AIHCA also are described in the proposed Amendment 23 to the FMP for BSAI King and Tanner Crabs, Amendment 12 to the FMP for Scallop Fisheries off Alaska, and Amendment 9 to the FMP for Salmon Fisheries in the Exclusive Economic Zone off the Coast of Alaska. No regulatory amendments are needed for implementing these FMP amendments due to a prohibition on using nonpelagic trawl gear in the crab, scallop, and salmon fisheries.

        The Council has submitted the amendments for the AIHCA revision for review by the Secretary of Commerce, and a Notice of Availability of the amendments was published in the Federal Register on November 13, 2007 (72 FR 63871), with comments on the amendments invited through January 14, 2008. Comments may address the FMP amendments, the proposed rule, or both, but must be received by January 7, 2008, to be considered in the approval/disapproval decision on the FMP amendments. All comments received by that time, whether specifically directed to the FMP amendments or to the proposed rule, will be considered in the approval/disapproval decision on the FMP amendments.
        Background

        In 2006, NMFS implemented essential fish habitat (EFH) protection measures for the Aleutian Islands subarea and adjacent State of Alaska (State) waters (71 FR 36694, June 28, 2006, and corrected at 72 FR 63500, November 9, 2007). The background on the development of the EFH protection measures is available in the proposed rule for that action (71 FR 14470, March 22, 2006). The EFH protection measures prohibited nonpelagic trawling within the AIHCA. The AIHCA is the Aleutian Islands subarea and adjacent State waters except for specific sites that remain open to nonpelagic trawling. Locations open to nonpelagic trawling in the AIHCA included areas without known occurrences of coral and sponge habitat and where nonpelagic trawling previously occurred. A map of the AIHCA is available from the NMFS Alaska Region website at http://www.fakr.noaa.gov/habitat/efh/aihca.pdf.
        In March 2007, the Council recommended two revisions to the boundaries of the AIHCA. These revisions were developed in response to corrections provided by the nonpelagic trawl industry regarding fishing locations and additional information on coral and sponge occurrence in the Aleutian Islands.
        The two revisions would revise the AIHCA boundaries near Agattu Island and Buldir Island (see figure below). The proposed rule would prohibit nonpelagic trawling in an area west of Buldir Island and would permit nonpelagic trawling in an area north of Agattu Island.

          EP21NO07.005

        NMFS is proposing to open the area near Agattu Island to nonpelagic trawling because no evidence of coral or sponge habitat exists in this area, and nonpelagic trawling historically has occurred in this location. NMFS is proposing to close the area near Buldir Island because NMFS surveys show corals and sponges occur in this area. Anecdotal information also indicated that nonpelagic trawlers avoid the proposed Buldir Island closure area to protect fishing gear from damage by bottom structures. Details of the fishing history and biological features of these sites are available in the EA/RIR/IRFA for this action (see ADDRESSES).
        The proposed rule would revise the coordinates for the boundaries of the AIHCA near Agattu Island and Buldir Island. Table 24 to 50 CFR part 679 contains coordinates for sites where nonpelagic trawling is permitted in the AIHCA. Table 24 would be revised to specify the coordinates near Agattu and Buldir Islands to adjust the boundaries of the AIHCA to allow for nonpelagic trawling near Agattu Island and prohibit nonpelagic trawling near Buldir Island, as shown in the figure above. The proposed rule would modify the coordinates for the Buldir and Semichi areas listed on Table 24. The Semichi area includes the waters near Agattu Island proposed to be opened to nonpelagic trawling. Because the proposed rule would divide the Buldir Island open area into two areas to allow for the closure area, the proposed rule would add the West Buldir site to Table 24. The proposed rule also would remove the site number for each site because the site number serves no additional purpose in the identification of the site beyond that provided by the site name. The proposed rule also would remove from Table 24 two redundant sets of coordinates for the Buldir site because they are not necessary to accurately describe the boundaries.
        Classification

        Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 88 to the FMP for Groundfish of the BSAI, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.

        NMFS prepared an initial regulatory flexibility analysis (IRFA), as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. Descriptions of the action, the reasons it is under consideration, and its objectives and legal basis, are contained earlier in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).
        Vessels were considered small, according to the Small Business Administration (SBA) criteria, if they had estimated 2004 gross revenues less than or equal to $4 million, and were not known to be affiliated with other firms whose combined receipts exceeded $4 million.
        Ten vessels that qualify as small entities under SBA criteria are directly regulated by this action. Six of these vessels are catcher vessels, and four are catcher/processors. Average gross revenues in 2005 were about $1,400,000 for the catcher vessels and about $2,200,000 for the catcher/processors.
        This regulation does not impose new recordkeeping and reporting requirements on the regulated small entities.
        The IRFA did not reveal any Federal rules that duplicate, overlap, or conflict with the proposed action.
        The Council considered one alternative (Alternative 1, no action) to the preferred alternative for this action. The boundaries of the opened and closed areas were based on information provided by the fishing industry regarding historical fishing activity and on NMFS survey information regarding coral and sponge location. This is the method of boundary identification used in the original EFH rule for the AIHCA. Because this is a correction to that rule, the identification of boundaries for the opened and closed areas for this action is based on the same method. No other alternatives were identified because the action is an adjustment to the AIHCA boundaries based on corrected fishing information and NMFS survey information, and no additional information regarding adjustments to the AIHCA was available. No other boundaries of the opened or closed areas for the AIHCA were considered because no additional information was available to support other boundary alternatives.
        The status quo condition of the fishery should be based on the 2006 fishery because of the recent implementation of the EFH protection measures (71 FR 36694, June 28, 2006), but 2006 data were not yet available for the analysis. Therefore, 2001 through 2005 data were used as a proxy for status quo. Vessel monitoring system (VMS) and NMFS inseason catch data were used to analyze the catches in the proposed Agattu and Buldir Islands opened and closed areas. These types of data allowed for determining the fine scale location of fishing activities in combination with the estimated harvest from the proposed opened and closed areas.
        The no action alternative would not meet the objectives of this action. The status quo alternative would allow fishing in an area of known coral and sponge occurrence and would prohibit fishing in an area that had historical fishing activity. This would not meet the intent of the Council for the AIHCA and does not meet the objectives of the action to provide continued fishing where historical fishing activity has occurred and to prohibit fishing where coral and sponges occur. Moreover, the IRFA did not identify discernable adverse impacts to small entities from this action. In fact, as noted in the preamble, this action may have positive benefits for small entities because more historical fishing activity occurred in the area to be opened by this action, than in the area to be closed. Vessels that are not small entities will likely experience the same benefits as small entities by being allowed to fish in an area historically fished, and no adverse impacts are expected for these vessels.

          List of Subjects in 50 CFR Part 679
          Alaska, Fisheries, Recordkeeping and reporting requirements.

          Dated: November 16, 2007.
          Samuel D. Rauch III
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 as follows:

          PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

        1. The authority citation for part 679 continues to read as follows:

          Authority:
          16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Pub. L. 108-447

        2. Revise Table 24 to part 679 to read as follows:
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      [FR Doc. 07-5774  Filed 11-20-07; 8:45 am]
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        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [I.D. 112803A]
        RIN 0648-AR74
        Fisheries of the Exclusive Economic Zone Off Alaska; Rebuilding Overfished Fisheries

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

          ACTION:
          Notice of availability; request for comments.

          SUMMARY:

          The North Pacific Fishery Management Council (Council) has submitted for Secretarial review Amendment 17 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (FMP).  This amendment would implement a rebuilding plan for the overfished stock of Pribilof Islands blue king crab.  This action is intended to ensure that conservation and management measures continue to be based on the best scientific information available and enhance the Council's ability to achieve, on a continuing basis, optimum yield from fisheries under its authority.

          DATES:
          Comments on the amendment must be submitted on or before February 17, 2004.

          ADDRESSES:
          Comments may be submitted to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK  99802-1668, Attn:   Lori Durall.  Comments also may be sent via facsimile (fax) to 907-586-7465.  Comments will not be accepted if submitted via e-mail or Internet.  Courier or hand delivery of comments may be made to NMFS in the Federal Building, Room 420, Juneau, AK  99801.
        Copies of Amendment 17 to the FMP, and the Environmental Assessment (EA) prepared for the amendment are available from the above address.
          FOR FURTHER INFORMATION CONTACT:
          Gretchen Harrington, 907-586-7228 or gretchen.harrington@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        NMFS declared the Pribilof Islands stock of blue king crab (Paralithodes platypus) overfished because the spawning stock biomass was below the minimum stock size threshold defined in Amendment 7 to the FMP.  Amendment 7 specified objective and measurable criteria for identifying when any of the crab fisheries covered by the FMP are overfished or when overfishing is occurring (64 FR 11390, March 9, 1999).
        On September 23, 2002, NMFS notified the Council that the Pribilof Islands blue king crab stock was overfished (67 FR 62212, October 4, 2002).  The Council then took action to develop a rebuilding plan within 1 year of notification as required by section 304(e)(3) of the Magnuson-Stevens Fishery Conservation and Management Act  (Magnuson-Stevens Act).  In October 2003, the Council adopted Amendment 17, the rebuilding plan, to accomplish the purposes outlined in the national standard guidelines to rebuild the overfished stock.
        Amendment 17 specifies a time period for rebuilding the stock intended to satisfy the requirements of the Magnuson-Stevens Act.  Under the rebuilding plan, the Pribilof Islands blue king crab stock is estimated to rebuild, with a 50-percent probability, within 10 years.  The stock will be considered “rebuilt” when it reaches the maximum sustainable yield stock size level in 2 consecutive years.  This rebuilding time period is as short a possible and takes into account the status and biology of the stock, the needs of fishing communities, and the interaction of the overfished stock within the marine ecosystem, as required by the Magnuson-Stevens Act in section 304(e)(4)(A)(i).
        The rebuilding plan consists of a framework that references the State of Alaska's harvest strategy.  Section 8.3 of the FMP defers to the State of Alaska the authority to develop and implement harvest strategies, with oversight by NMFS and the Council.  The rebuilding harvest strategy, and alternative harvest strategies, were developed and analyzed by the Alaska Department of Fish and Game and reviewed and adopted by the Alaska Board of Fisheries.  The rebuilding harvest strategy, and detailed alternatives analysis, were reviewed by the Council, its Scientific and Statistical Committee, and Crab Plan Team for consistency with the FMP, Magnuson-Stevens Act, and the National Standard guidelines.  The analysis prepared for the rebuilding harvest strategy is contained in the EA prepared for this action.
        The rebuilding harvest strategy, which closes the directed fishery until the stock is rebuilt, should result in more spawning biomass than allowing a fishery during rebuilding, because more large male crab would be conserved and fewer juveniles and females would die due to incidental catch and discard mortality.  More spawning biomass would be expected to produce larger year-classes when environmental conditions are favorable.
        This conservative rebuilding plan is warranted at this time for this stock given the concerns regarding the rebuilding potential of this stock, the potential vulnerability to overfishing, and the poor precision of survey estimates.  The other alternatives under consideration, which would allow fishing prior to stock rebuilding, would not provide sufficient safeguards for this vulnerable stock.  The preferred alternative, while forgoing harvest in the short-term, is the strongest guarantee that the stock will be healthy and support a fishery in the long term.  Once rebuilt, fishing communities would once again have expanded opportunities (both fishing and processing) in this potentially lucrative fishery.  As this rebuilding plan applies the same restrictions to all participants, the plan allocates the fishery restrictions fairly and equitably among sectors of the fishery. Likewise, the plan allocates all recovery benefits fairly and equitably among sectors of the fishery.
        No additional habitat or bycatch measures are part of this rebuilding plan because neither habitat nor bycatch measures are expected to have a measurable impact in rebuilding.  Habitat is protected from fishing impacts by the existing Pribilof Islands Habitat Conservation Zone, which encompasses the majority of blue king crab habitat.  Bycatch of blue king crab in both crab and groundfish fisheries is a negligible proportion of the total population abundance.

        An EA was prepared for Amendment 17 that describes the management background, the purpose and need for action, the management alternatives, and the environmental and socio-economic impacts of the alternatives.  A copy of the EA can be obtained from NMFS (see ADDRESSES).

        The Magnuson-Stevens Act requires that each regional fishery management council submit each FMP or FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval.  The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP or FMP amendment, immediately publish a notification in the Federal Register that the amendment is available for public review and comment.  This action constitutes such notice for FMP Amendment 17.  NMFS will consider public comments received during the comment period in determining whether to approve this FMP amendment.  To be considered, a comment must be received by close of business by the last day of the comment period (see DATES), regardless of the comment's postmark or transmission date.

          Dated:  December 12, 2003.
          Bruce C. Morehead,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 03-31226 Filed 12-17-03; 8:45 am]
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