        DEPARTMENT OF THE INTERIOR
        Bureau of Land Management
        43 CFR Part 8360
        [LLCOF02000 L12200000.DU0000 16X]
        Notice of Proposed Supplementary Rules for Public Lands in Colorado: Cache Creek Placer Area

          AGENCY:
          Bureau of Land Management, Interior.

          ACTION:
          Notice of proposed supplementary rules.

          SUMMARY:
          The Bureau of Land Management (BLM) in Colorado is proposing supplementary rules for 2,160 acres of public lands addressed in the Cache Creek Placer Area Management Plan, approved on February 23, 2016. These proposed supplementary rules would apply to public lands administered by the BLM Royal Gorge Field Office in Chaffee County, Colorado. The proposed rules would implement decisions found in the Cache Creek Placer Area Management Plan relating to the collection of mineral materials within the Cache Creek parcel.

          DATES:
          Please send comments to the address below by December 13, 2016. Comments received or postmarked after this date may not be considered in the development of the final supplementary rules.

          ADDRESSES:

          You may send comments by the following methods: Mail or hand deliver to Kalem Lenard, Outdoor Recreation Planner, BLM Royal Gorge Field Office, 3028 E. Main Street, Cañon City, CO 81212. You may also send comments via email to rgfo_comments@blm.gov (include “Proposed Supplementary Rules” in the subject line).

          FOR FURTHER INFORMATION CONTACT:

          Kalem Lenard, Outdoor Recreation Planner, at the above address, by phone at 719-269-8538, or by email at jlenard@blm.gov. Persons who use a telecommunications device for the deaf may call the Federal Relay Service at 800-877-8339 to contact the above individual during normal business hours. The Service is available 24 hours a day, seven days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.

        SUPPLEMENTARY INFORMATION:
        I. Public Comment Procedures

        Written comments on the proposed supplementary rules should be specific, confined to issues pertinent to the proposed supplementary rules, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the rules that the comment is addressing. The BLM is not obligated to consider or include in the Administrative Record for the final rules comments that the BLM receives after the close of the comment period (see DATES), unless they are postmarked or electronically dated before the deadline, or comments delivered to an address other than one of the addresses listed above (see ADDRESSES). Comments, including names, street addresses and other contact information of respondents, will be available for public review at the BLM Royal Gorge Field Office, at the address above. Before including your address, phone number, email address or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
        II. Background
        Cache Creek Placer Area is located immediately west and south of the town of Granite, Colorado, and includes Cache Creek, which flows into the Arkansas River. It was the site of one of the first large mining communities in Colorado during the late 1800s. In January 2000, the BLM acquired 2,160 acres through which Cache Creek flows, extending from the San Isabel National Forest boundary to Highway 24. The BLM acquired the parcel through a grant from the Land and Water Conservation Fund, a Federal program that conserves irreplaceable lands and improves outdoor recreation opportunities throughout the nation. The BLM purchased it to help protect crucial elk and riparian habitat as well as to provide recreational opportunities. Recreational mineral collection is one of the activities occurring in the area. Collection methods include gold panning and hand sluicing. The 2,160-acre parcel is not open to the General Mining Law of 1872. The rising price of gold has increased the interest in mineral collection, therefore increasing use at Cache Creek. Due to the high volume of soil that recreational mineral collectors are processing, excessive levels of sediment have collected at the Cache Creek stream, impacting a recovering fishery. The increase in use has also led to user conflicts and human safety hazards, such as unstable holes and large trees. Conflicts with off-leash dogs disturbing other visitors as well as pet waste left in the wetland area are also a common occurrence.
        The Cache Creek parcel is not open to the General Mining Law. The parcel is regulated under 43 CFR 8365.1-5, which confines mineral extraction to only “recreational” mineral specimen collection. These regulations do not allow motorized or mechanical devices to aid in mineral specimen collection.
        In 2012, the BLM began the public input process for a management plan for the 2,160-acre Cache Creek parcel to manage the increasing impacts and conflicts related to increased recreational use. The management strategy allows hobby recreational placer activities to continue, while mitigating impacts to resources. The public process included presentations and site tours with the Front Range Resource Advisory Council and collaboration with stakeholders and user groups. On March 3, 2014, the BLM held a 30-day public scoping period requesting public input. Based on feedback received during this process, the BLM developed a proposed action and draft Environmental Assessment (EA), which was released for a 30-day public review on December 5, 2014. The BLM incorporated comments into the Final EA and corresponding Decision Record signed on February 23, 2016.
        The decision designated the Cache Creek parcel as a Special Area, defined as an area where the BLM “determines that the resources require special management and control measures for their protection” under 43 CFR 2932.5. The decision also provides that a Special Recreation Permit (SRP) will be required for recreational placer activities only. In addition, the decision requires a fee to obtain a permit from Memorial Day weekend to November 30.
        III. Discussion of Proposed Supplementary Rules
        The proposed supplementary rules would implement the Cache Creek Placer Area Management Plan as follows:
        In accordance with 43 CFR subpart 2932, an SRP would be required for recreational mineral collection activities related to placer mining activities. As authorized by 43 CFR 2932.31(d), persons 16 years of age and older would be required to pay a fee of $5 per day or $25 annually. Digging within the Cache Creek parcel would be limited to a designated area. The SRP would allow in-situ gold panning (but not digging) in the Cache Creek stream throughout the parcel and outside of the designated area. Dogs and other animals would be required to be on leashes within the designated area. Additional terms and conditions can be found in DOI-BLM-CO-200-2012-0038 DN.
        The planning area consists of approximately 2,160 acres of public lands within Chaffee County, Colorado, in the following described townships:

          Colorado, Sixth Principal Meridian
          T. 12 S., R. 80 W., Sections 1 and 2.
          T. 11 S., R. 80 W., Sections 34-36.
          T. 12 S., R. 79 W., Section 6.
          T. 11 S., R. 79 W., Section 31.

        The BLM has determined that these proposed supplementary rules are necessary to enhance public safety, protect natural and cultural resources, and reduce conflicts among public land users.
        IV. Procedural Matters
        Executive Order 12866, Regulatory Planning and Review

        The proposed supplementary rules are not a significant regulatory action and are not subject to review by the Office of Management and Budget under Executive Order 12866. The proposed supplementary rules would not have an effect of $100 million or more on the economy and would not adversely affect in a material way productivity; competition; jobs; the environment; public health or safety; or State, local or tribal governments or communities. The proposed supplementary rules would not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The proposed supplementary rules do not materially alter the budgetary effects of entitlements; grants; user fees or loan programs; or the rights or obligations of their recipients; nor do they raise novel legal or policy issues. These proposed supplementary rules would merely impose limitations on certain recreational activities on certain public lands to protect natural resources and human health and safety.
        National Environmental Policy Act

        These proposed supplementary rules implement key decisions in the Cache Creek Placer Area Management Plan. During the National Environmental Policy Act (NEPA) review for the Management Plan, the BLM fully analyzed the substance of these proposed supplementary rules in an EA (DOI-BLM-CO-200-2012-0069 EA). The BLM signed the Decision Record for the EA on February 23, 2016, and found the proposed supplementary rules implementing the plan decisions would not constitute a major Federal action significantly affecting the quality of the human environment under section 102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C). A detailed statement under NEPA is not required. The Cache Creek Placer Area Management Plan EA, Finding of No Significant Impact, and Decision Record are on file in the BLM Royal Gorge Field Office at the address specified in the ADDRESSES section.
        Regulatory Flexibility Act
        Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 601-612, to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. The proposed supplementary rules would have no effect on business entities of any size. The proposed supplementary rules would merely impose reasonable restrictions on certain recreational activities on certain public lands to protect natural resources and the environment and human health and safety. Therefore, the BLM certifies under the RFA that these proposed supplementary rules would not have a significant economic impact on a substantial number of small entities.
        Small Business Regulatory Enforcement Fairness Act
        These proposed supplementary rules are not a “major rule” as defined at 5 U.S.C. 804(2). These proposed supplementary rules would merely impose reasonable restrictions on certain recreational activities on certain public lands to protect natural resources, the environment and human health and safety. These proposed supplementary rules would not:
        (1) Have an annual effect on the economy of $100 million or more;
        (2) Cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local agencies, or geographic regions; or
        (3) Have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
        Unfunded Mandates Reform Act

        The proposed supplementary rules would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year; nor would they have a significant or unique effect on State, local, or tribal governments or the private sector. The proposed supplementary rules would merely impose reasonable restrictions on certain recreational activities on certain public lands to protect natural resources, the environment and human health and safety. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.).
        Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights (Takings)
        The proposed supplementary rules do not constitute a government action capable of interfering with constitutionally-protected property rights. The proposed supplementary rules would not address property rights in any form and would not cause the impairment of constitutionally-protected property rights. Therefore, the BLM has determined that these proposed supplementary rules would not cause a “taking” of private property or require further discussion of takings implications under this Executive Order.
        Executive Order 13132, Federalism
        The proposed supplementary rules would not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, the BLM has determined that these proposed supplementary rules do not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.
        Executive Order 12988, Civil Justice Reform
        Under Executive Order 12988, the BLM has determined that these proposed supplementary rules would not unduly burden the judicial system and that they meet the requirements of Sections 3(a) and 3(b)(2) of Executive Order 12988.
        Executive Order 13175, Consultation and Coordination With Indian Tribal Governments
        In accordance with Executive Order 13175, the BLM has found that these proposed supplementary rules do not include policies that have tribal implications and would have no bearing on trust lands or on lands for which title is held in fee status by Indian tribes or U.S. Government-owned lands managed by the Bureau of Indian Affairs.
        Information Quality Act
        In developing these proposed supplementary rules, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Section 515 of Pub. L. 106-554).
        Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
        These proposed supplementary rules do not comprise a significant energy action. These proposed supplementary rules would not have an adverse effect on energy supply, production or consumption and have no connection with energy policy.
        Executive Order 13352, Facilitation of Cooperative Conservation
        In accordance with Executive Order 13352, the BLM has determined that the proposed supplementary rules would not impede facilitating cooperative conservation; would take appropriate account of and consider the interests of persons with ownership or other legally recognized interests in land or other natural resources; would properly accommodate local participation in the Federal decision-making process; and would provide that the associated programs, projects and activities are consistent with protecting public health and safety.
        Paperwork Reduction Act

        In accordance with the Paperwork Reduction Act (44 U.S.C. 3501-3521), the Office of Management and Budget (OMB) has reviewed and approved the information collection requirements for special recreation permits. The relevant OMB control number is 1004-0119, which expires December 31, 2016. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.
        Proposed Supplementary Rules
        Author
        The principal author of these proposed supplementary rules is Kalem Lenard, Outdoor Recreation Planner, BLM, Royal Gorge Field Office.
        For the reasons stated in the preamble and under the authorities for supplementary rules found at 43 U.S.C. 1740, 43 U.S.C. 315a, and 43 CFR 8365.1-6, the BLM Colorado State Director proposes supplementary rules for public lands within the BLM Royal Gorge Field Office to read as follows:
        Supplementary Rules for the Cache Creek Placer Area Management Plan
        Definitions

          Cache Creek parcel is defined as the 2,160-acre parcel of public land in Chaffee County, Colorado within the 6th Principal Meridian T. 12 S., R. 80 W. Sections 1 and 2; T. 11 S., R. 80 W. Sections 34-36; T. 12 S., R. 79 W. Section 6; and T. 11 S., R. 79 W. Section 31.

          Cache Creek Placer Area is defined as the area directly south and adjacent to the BLM Cache Creek parking area and shown on maps provided by the BLM along with on the ground signing, where possible.
        Prohibited Acts
        Unless otherwise authorized, the following acts are prohibited on all public lands, roads, trails and waterways administered by the BLM within the Cache Creek parcel:
        1. No persons may collect minerals by any means within the Cache Creek parcel without a Special Recreation Permit (SRP).
        2. Persons 16 years of age and over must pay a fee of $5 per day or $25 annually to obtain an SRP.
        3. You must not violate terms and conditions of the SRP.
        4. You must not bring an animal into the Cache Creek Placer Area between Memorial Day Weekend and November 30 unless the animal is on a leash not longer than 6 feet and secured to a fixed object or under control of a person, or is otherwise physically restricted at all times.
        Exceptions
        The following persons are exempt from these supplementary rules: Any Federal, State, local government officer or employee acting within the scope of their duties; members of any organized law enforcement, rescue, or firefighting force in performance of an official duty; and any persons, agencies, municipalities or companies whose activities are authorized in writing by the BLM.
        Enforcement
        Any person who violates any of these supplementary rules may be tried before a United States Magistrate and fined in accordance with 18 U.S.C. 3571, imprisoned no more than 12 months under 43 U.S.C. 1733(a) and 43 CFR 8360.0-7, or both. In accordance with 43 CFR 8365.1-7, State or local officials may also impose penalties for violations of Colorado law.

          Ruth Welch,
          Bureau of Land Management, Colorado State Director.

      [FR Doc. 2016-24610 Filed 10-13-16; 8:45 am]
       BILLING CODE 4310-JB-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 21
        RIN 1018-AI97
        Migratory Bird Permits; Educational Use Permits

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Advance notice of proposed rulemaking.

          SUMMARY:
          We are soliciting public comments to help us develop permit regulations governing possession of live migratory birds and eagles for educational use.

          DATES:
          Written comments should be submitted by December 12, 2005, to the address below.

          ADDRESSES:

          You may mail or deliver comments to the Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, MBSP 4107, Arlington, Virginia 22203. You also may submit comments via the Internet to: MB_education@fws.gov. See SUPPLEMENTARY INFORMATION for file formats and other information about electronic filing.

          FOR FURTHER INFORMATION CONTACT:
          Brian Millsap, Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service; (703) 358-1714.

        SUPPLEMENTARY INFORMATION:
        Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include your name and return address in your Internet message. If you do not receive a confirmation that we have received your message, contact us directly at (703) 358-1714.
        Background
        This scoping notice is intended to help the U.S. Fish and Wildlife Service (the Service) gather information and suggestions about current practices and public views regarding educational use of live migratory birds and eagles, in anticipation of drafting new permit regulations for possession of migratory birds and eagles for educational purposes. Feedback from this notice will enable us to propose regulations that will already have benefited from input from the regulated community. (The proposed regulations will then be subject to the standard public notice and comment for purposes of crafting final regulations.)
        The Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq.) prohibits possession of any bird listed under treaties between the United States and Canada, Mexico, Japan, and Russia. Birds protected by the MBTA are referred to as “migratory birds.” In order to possess migratory birds or their parts or feathers for use in educational programs, you must obtain a permit from the Service (unless you are an institution exempted from the permit requirement under 50 CFR 21.12(b)). The Service issues such permits to authorize educational programs and exhibits that use nonreleasable or captive-bred migratory birds to teach people about migratory bird conservation and ecology. Permits are also required to possess migratory bird parts and feathers for educational use; however, at this time, we seek input only on issues pertaining to possession of live migratory birds and eagles for educational use.
        Currently, because no regulations pertain specifically to educational use permits, educational activities that involve migratory birds are authorized by issuance of a special purpose permit under 50 CFR 21.27. That miscellaneous permit category is used to authorize activities not specifically addressed in existing migratory bird permit regulations. In the absence of specific regulations addressing educational activities using migratory birds, the terms and requirements governing educational activities using migratory birds are currently promulgated via a list of standard conditions that are issued with each permit. Approximately 1200 permits for possession of live birds (including eagles) for educational use are currently active.
        In a future rulemaking, we intend to propose a new permit regulation that will incorporate many of the longstanding policies and practices that are the basis of the current special purpose—education permit conditions. However, those conditions have never been the subject of notice and comment and may benefit from revision as a result of public input. Also, the special purpose—education permit conditions are not specific enough to provide sufficient guidance to the Service or to permittees to address many of the issues that arise in the regulation of possession of migratory birds for educational purposes. By creating a new permit category specifically for this purpose, the Service hopes to bring specificity and clarity to this area of migratory bird use.
        As part of that same rulemaking, we intend to revise permit regulations governing exhibition of bald and golden eagles for educational purposes. Eagle permits are addressed through separate regulations from those governing educational use of other migratory birds because, in addition to the MBTA, eagles are further protected by the Bald and Golden Eagle Protection Act (BGEPA) (16 U.S.C. 668), which contains different, more restrictive provisions than the MBTA. We anticipate that the new proposed eagle exhibition regulations will incorporate by reference the regulations proposed for non-eagle migratory bird educational use, but with some variations that will be necessary to comply with the BGEPA.
        Despite the differences between the MBTA and the BGEPA, many of the same issues arise in developing educational use regulations for eagles as for other migratory birds. Most of the questions we pose in this scoping notice are not addressed directly by either the MBTA or the BGEPA. For this reason, we are soliciting input regarding both eagles and other migratory birds on each question, except where specifically noted.

        Regarding what the educational use permits will or will not authorize, some longstanding Service positions are well-established, based on traditional and/or existing precedents, while other issues are less settled. For example, the Service's current and historical policy is that birds protected by the MBTA, including eagles, may not be taken from the wild for educational purposes. (We distinguish between educational purposes and scientific purposes. We issue permits for take of migratory birds for scientific purposes, under 50 CFR 21.23 (migratory birds) and 50 CFR 22.21 (eagles).) Migratory birds held under educational use permits must be either captive-bred or nonreleasable. In this context, nonreleasable designates a bird that was taken from the wild because of injury, illness, or some other factor that rendered the bird unlikely, even after appropriate rehabilitative treatment, to survive in the wild should it be released. Because sufficient numbers of nonreleasable and captive-bred migratory birds are available to meet the needs of educators, we do not believe that allowing birds to be taken from the wild for this purpose would be consistent with the MBTA's objective to conserve wild populations of birds.
        Another established Service policy concerning educational use of migratory birds is the requirement that any program, exhibition, or display using those birds must include a substantive ecological, biological, and/or conservation message. Migratory bird possession must be consistent with the mission to conserve and protect wild populations of migratory birds. Thus, exhibition of such birds must be accompanied by a public message that explains the wild nature of birds, their ecological needs and/or conservation status, and their status as a public trust resource. Absent such messages, the public may assume that birds can be kept for personal use or entertainment. Demand for such birds would likely grow—with potentially negative consequences for wild populations, including black market trade, pressure to change regulations to authorize take from the wild, and a degraded status through the public's growing perception of them as pets, rather than wildlife.
        Commercial trade was a large factor in the decline of the nation's migratory bird resource and the subsequent enactment of the MBTA in 1918. Subsequently, we have prohibited most commercial use of birds. Today, we authorize some commercial use, including propagation and sale of captive-bred raptors, waterfowl, and game birds. And, we have permitted a number of for-profit educational migratory bird programs that include ecological and or conservation education as a meaningful component of their programs. However, the use of eagles in educational formats has been limited by law to nonprofit entities because the BGEPA restricts eagle exhibition permits to certain “public” (nonprofit) institutions (see #9 below).
        Product endorsement is prohibited under the current special purpose permit. We believe that endorsement of commercial products or services is not an acceptable use of migratory birds because such endorsement tends to obscure or even negate any educational component, compromising the Service's mission to protect migratory birds as wildlife.
        Within the framework discussed above, the regulation of migratory bird possession for educational use entails a number of unresolved and/or novel issues on which we seek input from the public. Comments are particularly sought concerning the following issues:
        (1) Facilities. We seek suggestions regarding criteria for housing birds under an educational use permit. We wish to adopt standards that ensure humane treatment of the birds but which are flexible enough to reasonably accommodate different circumstances. Should caging dimensions be based on whether birds are flighted or non-flighted? Among flighted birds, should the rule require different caging dimensions based on whether the birds are regularly trained or exercised outside of their enclosures, or not? Should the regulation stipulate that certain materials be used or avoided in constructing enclosures?
        (2) Adequate experience. What level of experience should an applicant be required to have in order to qualify a permit to hold live birds for educational use? The Service is considering establishing a minimal hourly requirement for hands-on experience with the type(s) of species that the educator will be using in his or her programs. What type(s) of hand-on experience should count towards this requirement (e.g., conducting educational programs as a subpermittee under another's permit, working as a migratory bird rehabilitator, working in a zoo)? How many hours of hands-on experience should be adequate to qualify for a permit? Need the applicant have worked with each specific species that he or she intends to use for their programs? What kind of certification should be required to demonstrate that the applicant has met this requirement?
        Should the regulation set forth different qualifying criteria between those who work with flighted and non-flighted birds? Or is it more important to develop criteria based on whether birds will be held on the glove during programs versus displayed in enclosures?
        What type and amount of experience should a person be required to have to qualify to hold a live eagle under an eagle exhibition permit? Permits to possess eagles for education/exhibition are limited to certain types of public institutions (see Item #9). As with other migratory birds, however, additional criteria must be met in order to obtain a permit to possess eagles for education, including the requirement that the applicant have sufficient experience handling and presenting programs with the type of species that will be held under the permit. Eagles are distinct from other raptors because of their size, strength, and temperament. Combined, these characteristics would appear to demand a greater degree of expertise from their handlers in order to ensure the safety of the handler, the public and the birds themselves. How much and what type(s) of additional experience should be required before a person qualifies to hold a live eagle under an eagle exhibition permit?
        (3) Audience Contact. How should the regulations address audience contact with migratory birds and eagles? In November 2000, the Service published a Request for Comments on a variety of issues related to falconry education facilities (65 FR 69726). Based on the response to that notice, and on other information, it is our current policy to allow members of the public without permits to hold trained, captive-bred falconry birds on the glove in falconry education programs that adhere to certain conditions developed to ensure that the birds are safely handled (i.e., the programs are conducted by a permitted general or master class falconer, the birds are held under educational use (as opposed to falconry) permits, sufficient instruction is provided regarding safety, activities are conducted at a designated locations, among other conditions). How should we treat audience contact with birds in more typical educational settings where fewer institutional safeguards are in place? Outside of situations where the facility meets qualifications to allow individuals to hold falconry birds on the glove (as noted above), should all audience contact with live migratory birds be prohibited by this regulation?
        (4) Free-flying Birds. The current special purpose—education permit is silent as to whether birds may be free-flown at open-area venues. A number of avian exhibitors now engage in this practice, sometimes using bald and golden eagles. We are soliciting public opinion on whether this activity should be permitted under the new regulations. How significant are the safety issues inherent in free-flying birds, both for the birds themselves, and for the audience? Can such venues adequately convey the required conservation or ecological message? Is the educational component lost, or is concern for conservation enhanced by the experience of observing free-flying birds? Are alternative techniques available that may be less risky which avian trainers could employ to fly birds in open settings?
        (5) Commercial Venues. Educators may charge money for programs, but may not use migratory birds to endorse any product. Should permittees be prohibited from conducting programs at businesses and other primarily commercial venues, even if the message is about conservation, wildlife biology, and/or ecology and not about product endorsement?
        (6) What Constitutes Conservation Education? Must the presentation be strictly about conservation, wildlife biology, and/or ecology? If not, how much discussion of conservation education is sufficient to justify possession and exhibition? For example, would a 2-minute trailer addressing the decline of a species in the wild justify authorizing the use of a bird in a 2-hour film about the adventures of a clever magpie that performs tricks for children? What criteria should the Service use to evaluate whether a permittee's presentation (or film or other medium) incorporates sufficient conservation education to legitimately provide a conservation benefit? Should migratory birds be permitted to be used for entertainment or other purposes as long as conservation education requirements also are met?
        (7) Effect on Nonprofit Conservation Education. Will the opportunity to make a profit using migratory birds result in fewer educators taking their programs to schools and other nonprofit venues, with the result that fewer children and other nonpaying audiences will be exposed to migratory birds through conservation education? Since migratory birds are a public resource, should all permittees be required to conduct a minimum number of not-for-profit educational programs?
        (8) Limit on Number of Birds. Should the regulations establish a numerical limit on the birds an educator may hold? A fixed limit would prevent permittees from collecting live birds that they do not use in educational programs. However, some larger facilities may be able to accommodate greater numbers of birds than others, while continuing to use the birds in public programs. For the Service to select a single number of birds that would be appropriate for all facilities and venues would be difficult. Any maximum number we establish would probably be inappropriately large for individual educators with smaller facilities. If the regulation does not establish a fixed limit on educational birds, then the number of birds a permittee may possess will be set on an individual case-by-case basis. What criteria should the Service use to determine whether an educator may acquire additional birds? Whether we establish an across-the-board limit on how many birds a permittee may possess, or we provide for the number to be established on a case-by-case basis, how should the permit regulation address birds that were formerly used in educational programs, but are no longer suitable because of age or other conditions?
        (9) Who should qualify as “public” under the Bald and Golden Eagle Protection Act? This question pertains solely to the regulation of eagles. The BGEPA provides that—other than Native Americans, who may possess bald and golden eagles for religious use, and falconers—the only entities who may be granted permits for eagle possession are: “public museums, scientific societies, and zoological parks.” The Service has never established regulatory definitions of those terms. Instead, we have relied on the regulatory definition of “public” found in 50 CFR part 10, which applies to all the Service's permit programs, not just to migratory bird and/or eagle permit regulations. That definition reads as follows:

          Public as used in referring to museums, zoological parks, and scientific or educational institutions, refers to such as are open to the general public, and are either established, maintained, and operated as a governmental service or are privately endowed and organized but not operated for profit.

        We have the opportunity to establish regulatory definitions for “public museum,” “public scientific society,” and “public zoological park.” We are not seeking to redefine the definition of public found at 50 CFR part 10 because that undertaking would require a joint rulemaking process involving all the Service programs to which part 10 applies. Rather, we seek to define the three terms “public museum,” “public scientific society,” and “public zoological park” as part of the eagle permit regulations in 50 CFR part 22. The new definitions would apply only to eagle permitting regulations. Because an executive agency may never establish regulations that conflict with the statute or statutes that provide the authority for the agency's actions, the new definitions must be in accordance with the BGEPA's intent to protect wild populations of eagles. At the same time, to the extent possible, we would like to make the definitions as broad as possible within that intent so that the maximum number of otherwise qualified individuals are able to use nonreleasable bald and golden eagles for conservation education.
        We need to consider that the lawmakers who enacted the BGEPA and limited eagle permits to public museums, public scientific societies, and public zoological parks likely envisioned that the eagles in question would be taken from the wild, as opposed to being nonreleasable birds that are already removed from wild populations. While the Service cannot revise the BGEPA, we can attempt to define the terms “public museum,” “public scientific society,” and “public zoological park” in a manner that reasonably accommodates today's circumstances without conflicting with the BGEPA's spirit and intent.
        The requirement in the 50 CFR part 10 definition of “public” that an institution must be privately endowed serves as a form of insurance. If an institution were suddenly to suffer from a loss of financial support, the endowment would help to insulate the museum's collection—including its live birds—from neglect, disposal, or abandonment. However well meaning this concept may be, we question whether it should remain a requirement for obtaining permits to keep eagles for purposes of education, in light of the fact that the eagles in question cannot humanely be released to the wild and may not otherwise be placed.
        To help us define “public museum,” “public scientific society,” and “public zoological park,” we seek public input on the following issues:
        9a. Should endowment be a required condition for qualifying as a public museum, public scientific society, or public zoological park under the BGEPA?
        9b. Should museums, scientific societies, and zoological parks be nonprofit in order to be considered “public” for purposes of obtaining an eagle exhibition permit?
        9c. How many hours should an institution be open to the public in order to be considered “public” for purposes of obtaining an eagle exhibition permit?

        9d. Should accreditation by a respected accrediting body be a requirement for public museums, scientific societies, and zoological parks, for purposes of obtaining an eagle exhibition permit?

        We welcome comments on the issues described above and encourage the submission of new ideas and suggestions.
        Public Comments Solicited
        Interested persons are invited to submit comments on issues related to permitting possession and use of migratory birds for educational purposes. We request suggestions, materials, recommendations, and arguments from the public; permitted educators; avian trainers, ornithological organizations; environmental organizations; corporations; local, State, Tribal, and Federal agencies; and any other interested party. Please ensure that any comments submitted in response to this request for comments pertain to issues presented in this notice.
        Our practice is to make comments, including names and home addresses of respondents, available for public review by appointment during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

          Authority:
          The authorities for this notice are the Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. 703-712), and the Bald and Golden Eagle Protection Act (16 U.S.C. 668a).

          Dated: October 3, 2005.
          Craig Manson,
          Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 05-20593 Filed 10-11-05; 12:36 pm]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 100122041-0118-01]
        RIN 0648-AY59
        Magnuson-Stevens Act Provisions; Fisheries off West Coast States; Pacific Coast Groundfish Fishery; 2010 Tribal Fishery for Pacific Whiting

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

          ACTION:
           Proposed rule; request for comments.

          SUMMARY:

           This proposed rule is issued consistent with a regulatory framework that was established in 1996 to implement the Washington coastal treaty Indian tribes' rights to harvest Pacific Coast groundfish. Washington coastal treaty Indian tribes mean the Hoh, Makah, and Quileute Indian Tribes and the Quinault Indian Nation. The Makah and Quileute Tribes have expressed their intent to participate in the 2010 Pacific whiting fishery. This proposed rule establishes an interim formula for setting the tribal allocation of Pacific whiting for the 2010 season only, based on discussions with the Makah and Quileute tribes regarding their fishing plans.

          DATES:
          Comments on this proposed rule must be received no later than 5 p.m., local time on April 2, 2010.

          ADDRESSES:
          You may submit comments, identified by RIN 0648-AY59 by any one of the following methods:

          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.
          • Fax: 206-526-6736, Attn: Kevin C. Duffy
          • Mail: Barry A. Thom, Acting Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Kevin C. Duffy.

          Instructions: No comments will be posted for public viewing until after the comment period has closed. 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 (enter N/A in the required fields if you with to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

          FOR FURTHER INFORMATION CONTACT:
          Kevin C. Duffy (Northwest Region, NMFS), phone: 206-526-4743, fax: 206-526-6736 and e-mail: kevin.duffy@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Electronic Access

        This proposed rule is accessible via the Internet at the Office of the Federal Register's Website at http://www.gpoaccess.gov/fr/index.html. Background information and documents are available at the Pacific Fishery Management Council's website at http://www.pcouncil.org/.
        Background
        The regulations at 50 CFR 660.324(d) establish the process by which the tribes with treaty fishing rights in the area covered by the Pacific Coast Groundfish Fishery Management Plan (FMP) can request new allocations or regulations specific to the tribes during the biennial harvest specifications and management measures process. These requests must be made in writing. The regulations also state “the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.” These procedures employed by NOAA in implementing tribal treaty rights under the FMP, in place since May 31, 1996, were designed to provide a framework process by which NOAA Fisheries can accommodate tribal treaty rights by setting aside appropriate amounts of fish in conjunction with the Pacific Fishery Management Council's (Council) process for determining harvest specifications and management measures. The Council's groundfish fisheries require a high degree of coordination among the tribal, state, and federal co-managers in order to rebuild overfished species and prevent overfishing, while allowing fishermen opportunities to sustainably harvest over 90 species of groundfish managed under the FMP.
        Since 1996, NMFS has been allocating a portion of the U.S. Optimum Yield (OY) of Pacific whiting to the tribal fishery following the process established in 50 CFR 660.324(d). The tribal allocation is subtracted from the total U.S. whiting OY before it is allocated to the non-tribal sectors.
        To date, only the Makah Tribe has prosecuted a tribal fishery for Pacific whiting. The Makah Tribe has annually harvested a whiting allocation since 1996 using midwater trawl gear. Since 1999, the tribal allocation has been based on a statement of need for their tribal fishery. In recent years, the specific tribal amount has been determined using a sliding scale relative to the U.S. whiting OY of between 14 and 17.5 percent, depending on the specific OY determined by the Council. In general, years with a relatively low OY result in a tribal allocation closer to 17.5 percent, and years with a relatively high OY result in a tribal allocation closer to 13 percent.
        Allocations of Pacific whiting to treaty Indian tribes on the coast of Washington have varied between 25,000 mt and 35,000 mt for the years 2000-2005. In 2000, with a U.S. OY of 232,000 mt, 32,500 mt of whiting was set aside for treaty Indian tribes on the coast of Washington State. In 2001 and 2002, the U.S. OY declined to 190,400 mt and 129,600 mt, respectively, and the tribal allocations for those years were also lower: 27,500 mt and 22,680 mt, respectively. In 2003, with a U.S. OY of 148,200 mt, the tribal allocation was 25,000 mt. In 2004, the U.S. OY was 250,000 mt with a tribal allocation of 32,500 mt. In 2005, the U.S. OY of 269,069 had a corresponding tribal allocation of 35,000 mt. In 2006, the U.S. OY of 269,069 mt resulted in a tribal allocation of 32,500 mt. In 2007, the U.S. OY of 242,591 mt had a corresponding tribal allocation of 35,000 mt. In 2008, the U.S. OY of 269,545 mt resulted in a tribal allocation of 35,000 mt.
        For the 2009-2010 harvest specification biennial cycle, three of the four coastal tribes indicated their intent to participate in the whiting fishery at some point during this two-year period. The Quinault Nation indicated their intent to start fishing in 2010, and both the Quileute and Makah Tribes indicated they intended to fish in both 2009 and 2010. All three tribes notified NOAA Fisheries of their intent to participate in the whiting fishery during the November 2007 Council meeting, and subsequently followed up with written requests for allocations pursuant to 50 CFR 660.324(d) prior to the March 8-14, 2008 Council meeting.
        After the initial tribal requests were received, several meetings and discussions took place between the tribal, state, and federal co-managers. These meetings resulted in an understanding by NOAA and the State of Washington that a tribal allocation of 50,000 mt in 2009 would satisfy the needs expressed by the Quileute and the Makah. This allocation was based on the separate requests of the Quileute for up to 8,000 mt in 2009, and the Makah for up to 42,000 mt in 2009, for a total of 50,000 mt.
        Based on the requests received from the Tribes during the schedule specified in 50 CFR 660.324, the Council recommended a tribal set-aside of 50,000 mt for 2009 only, with the Makah Tribe to manage 42,000 mt, including the bycatch amounts associated with this portion of the set-aside, and the Quileute Tribe to manage 8,000 mt, including the bycatch amounts associated with this portion of the set-aside. The Council also requested that NOAA Fisheries convene the co-managers, including the states of Oregon and Washington, and the Washington coastal treaty tribes, in government to government discussions to develop a proposal for 2010 and beyond for tribal set-asides of Pacific Whiting.

        In accordance with this recommendation, NOAA Fisheries established an overall Tribal set-aside of 50,000 mt for 2009, on March 6, 2009 (74 FR 9874). Further, NOAA Fisheries established interim individual Tribal set-asides for the Quileute and Makah Tribes in the amounts of 8,000 mt and 42,000 mt, respectively, which represented the amounts requested or agreed upon at the time the shares of the 2009 fishery were being established by the Council in accordance with the procedures set forth in 50 CFR 660.324. These interim individual Tribal set-asides for 2009 only were not in any manner to be considered a determination of treaty rights to the harvest of Pacific whiting for use in future fishing seasons, nor did they set precedent for individual Tribal allocations of the Pacific whiting resource. Rather, the amounts set aside for each tribe for 2009 were based on the timely requests from the tribes at the June Council meeting. Only the Makah engaged in a tribal whiting fishery in 2009.
        Following the Council's direction, in 2008 NMFS and the co-managers also began the process to determine the long-term tribal allocation for whiting. At the September 2008 Council meeting, NOAA, the states and the Quinault, Quileute, and Makah tribes met and agreed on a process in which NOAA would pull together the current information regarding whiting, circulate it among the co-managers, seek comment on the information and possible analyses, and then prepare analyses of the information to be used by the co-managers in developing a tribal allocation for use in 2010 and beyond. The goal was agreement among the co-managers on a total tribal allocation for incorporation into the Council's planning process for the 2010 season. An additional goal was to provide the tribes sufficient time and information to develop an inter-tribal allocation or other necessary management agreement. This process has been moving forward. In 2009, NMFS shared a preliminary report summarizing scientific information available on the migration and distribution of Pacific whiting on the west coast. The co-managers have met to discuss this information and plan further meetings. However, due to the detailed nature of this evaluation of the scientific information, and the need to negotiate a long-term tribal allocation following completion of the evaluation, the process was not completed in time for the 2010 Pacific whiting fishery.
        Tribal Allocation for 2010
        Both the Makah and Quileute have stated their intent to participate in the whiting fishery in 2010. The Quinault Nation has indicated that they plan to participate in the 2011 fishery, but not the 2010 fishery. Because the development of scientific information needed by the co-managers to negotiate a long term tribal allocation is not yet complete, NOAA Fisheries is moving forward with this proposed rule as an interim measure to address the allocation for and management of the 2010 tribal Pacific whiting fishery. As with the 2009 allocation, this proposed rule is not intended to establish any precedent for future whiting seasons or for the long-term tribal allocation of whiting.

        The proposed rule would be implemented under authority of section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 1801 et seq, which makes the Secretary responsible for “carrying out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act.” With this proposed rule, NMFS, acting on behalf of the Secretary, would ensure that the FMP is implemented in a manner consistent with treaty rights of four Northwest tribes to fish in their “usual and accustomed grounds and stations” in common with non-tribal citizens. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 674 (1979).
        NMFS' proposed formula for determining the 2010 tribal allocation of whiting is based on discussions with the Makah and Quileute Tribes regarding their intent and needs for the 2010 fishing season, and on NMFS' preliminary review of the range of potential total tribal allocation suggested by current scientific information. The specific tribal allocation depends on the amount of the U.S. OY, which will be determined by the Pacific Fishery Management Council at their March 2010 meeting, based on an updated stock assessment. To accommodate the possibility that the U.S. OY of whiting might be different than in 2009, NMFS is proposing an approach for determining the 2010 tribal allocation that can account for a range of potential OYs. The Makah Tribe has requested the opportunity to harvest up to 17.5 percent of the U.S. OY of whiting in 2010. The Quileute Tribe has stated that it plans to have two boats participating in the 2010 fishery, and that it believes that 8,000 mt of whiting are necessary to ensure the economic viability of one boat. NMFS therefore proposes that the tribal allocation for 2010 be [17.5 percent * (U.S. OY)] + 16,000 mt. Assuming an OY similar to the 2009 OY, the tribal allocation under this approach would be 39,789 mt (29 percent of the OY). The highest OY in the last five years was 269,545 mt. At this level, the tribal allocation would be 63,170 mt (23 percent of the OY).
        In its proposed rule regarding the 2009 tribal whiting allocation, NOAA Fisheries stated that it believed the 50,000 mt interim set aside for that year, although higher than the prior tribal set asides, is still clearly within the tribal treaty right to Pacific whiting. As described above, while further review of scientific information will occur in 2010, NMFS believes that current knowledge on the distribution and abundance of the coastal Pacific whiting stock reveals that the range of percentages of the OY proposed here lies within the range of tribal treaty rights to Pacific whiting.
        Reapportionment
        In addition to discussing the overall tribal allocation for the 2010 tribal whiting fishery, NMFS and the tribes discussed the issue of reapportionment of whiting from the tribal fishery to the non-tribal fishery. In this proposed rule, NMFS reasserts its regulatory authority to reapportion whiting from the tribal to the non-tribal fishery, consistent with 50 CFR 660 323(c).
        NMFS currently has the authority to reapportion whiting between the non-tribal and tribal fisheries on an annual basis. This authority has been used in two instances: January 11, 2001 (66 FR 48370); and May 5, 2009 (74 FR 20620). However, during discussion between the tribes in 2009, the tribes lacked a consensus position on this issue. The Quileute and Quinault tribal fishery managers stated their belief that NMFS does not have authority to reapportion whiting to the non-tribal fishery, while the Makah tribal fishery managers stated their belief that NMFS does have the authority to do so. NMFS had hoped to come to consensus on this issue in advance of the March 2010 Council meeting, but was unable to do so. NMFS maintains that it currently has the regulatory authority to reapportion Pacific whiting, consistent with 50 CFR 660.323(c).
        For 2010, the Regional Administrator will coordinate with the affected tribe(s) before any decisions are made on reapportionment of any portion of the tribal allocation of whiting.
        Classification

        At this time, NMFS has preliminarily determined that the management measures for the 2010 Pacific whiting tribal fishery are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. In making the final determination, NMFS will take into account the data, views, and comments received during the comment period.
        NMFS has initially determined that this proposed rule is not significant for purposes of Executive Order 12866.

        An Initial Regulatory Flexibility Analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).
        Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. The Small Business Administration has established size criteria for all major industry sectors in the US, including fish harvesting and fish processing businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates), and if it has combined annual receipts not in excess of $4.0 million for all its affiliated operations worldwide. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. A business involved in both the harvesting and processing of seafood products is a small business if it meets the $4.0 million criterion for fish harvesting operations. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. For marinas and charter/party boats, a small business is one with annual receipts not in excess of $7.0 million. The RFA defines “small organizations” as any nonprofit enterprise that is independently owned and operated and is not dominant in its field. The RFA defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or special districts with populations of less than 50,000.
        In recent years the number of participants engaged in the Pacific whiting fishery has varied with changes in the whiting OY and economic conditions. Pacific whiting shoreside vessels (26 to 29), mothership processors (4 to 6), mothership catcher vessels (11 20), catcher/processors (5 to 9), Pacific whiting shoreside first receivers (8 16), and four tribal trawlers are the major units of this fishery. For 2010, an additional two tribal trawlers are expected to enter the fishery.
        NMFS' records suggest the gross annual revenue for each of the catcher/processor and mothership operations operating off the coasts of Washington, Oregon, and California exceeds $4,000,000. Therefore, they are not considered small businesses. NMFS' records also show that 10 43 catcher vessels have taken part in the mothership fishery yearly since 1994. These companies are all assumed to be small businesses (although some of these vessels may be affiliated to larger processing companies). Since 1994, 26 31 catcher vessels participated in the shoreside fishery annually. These companies are all assumed to be small businesses (although some of these vessels may be affiliated to larger processing companies). Tribal trawlers are presumed to be small entities whereas the Tribes are presumed to be small government jurisdictions.
        Pacific whiting has grown in importance, especially in recent years. Through the 1990s, the volume of Pacific whiting landed in the fishery increased. In 2002 and 2003, landings of Pacific whiting declined due to information showing the stock was depleted and the subsequent regulations that restricted harvest in order to rebuild the species. Over the years 2003 2007 estimated Pacific whiting ex-vessel values averaged about $29 million. In 2008, these participants harvested about 248,000 mt of whiting worth about $63 million in ex-vessel value based on shoreside ex-vessel prices of $254 per ton the highest ex-vessel revenues and prices on record. In comparison, the 2007 fishery harvested about 224,000 mt worth $36 million at an average ex-vessel price of about $160 per mt. Preliminary estimates of the 2009 fishery indicate that the tribal and non-tribal fleets harvested about 120,000 tons of whiting worth about $15 million. During 2009, ex-vessel prices declined to about $119 per mt, presumably due to the worldwide recession.
        Relative to the 2009 allocation of 50,000 mt, the proposed Pacific whiting allocation for treaty Indian tribes ranges from a decrease of 10,211 mt (50,000 mt minus 39,789 mt) to an increase of 13,170 mt (63,170 mt minus 50,000 mt). In terms of the average 2009 ex-vessel price of $119 per mt, the proposed allocation of whiting to tribes ranges from a decrease of $1.2 million to an increase of $1.6 million with the 2009 initial allocation of 50,000 mt. Compared to the actual 2009 harvest of 20,446 mt and estimated ex-vessel tribal revenue of $2.4 million, on the low end, if the tribal allocation of 37,789 mt is harvested, tribal revenues would reach $4.5 million, or an increase of $2.3 million. On the high end, if the tribal allocation of 63,170 mt is harvested, tribal revenues would reach $7.5 million, an increase of $5.1 million.
        Tribal fisheries are a mixture of the similar activities that non-tribal fisheries undertake as the tribal harvest will go shoreside for processing or to a mothership for at-sea processing. The processing facilities that the tribes use also process fish harvested by non-tribal fisheries. This rule directly regulates what entities can harvest whiting. Increased allocations to tribal harvesters (harvest vessels are small entities, tribes are small jurisdictions) implies decreased allocations to non-tribal harvesters (a mixture of small and large businesses). Note that in the instance where, by September 15, it is determined that some proportion of the whiting allocation to the tribal fishery is projected not to be harvested, the Regional Administrator may reapportion to the non-tribal whiting fishery.
        There are no reporting, recordkeeping or other compliance requirements in the proposed rule.
        No Federal rules have been identified that duplicate, overlap, or conflict with this action. This rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132.

        NMFS issued Biological Opinions under the Endangered Species Act (ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999, pertaining to the effects of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the FMP for the Pacific Coast groundfish fishery is not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.
        In 2005 NMFS reinitiated a formal section 7 consultation under the ESA for both the Pacific whiting midwater trawl fishery and the groundfish bottom trawl fishery. The December 19, 1999, Biological Opinion had defined an 11,000 Chinook incidental take threshold for the Pacific whiting fishery. During the 2005 Pacific whiting season, the 11,000 fish Chinook incidental take threshold was exceeded, triggering re-initiation. Also in 2005, new data from the West Coast Groundfish Observer Program became available, allowing NMFS to complete an analysis of salmon take in the bottom trawl fishery.
        NMFS prepared a Supplemental Biological Opinion dated March 11, 2006, which addressed salmon take in both the Pacific whiting midwater trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental Biological Opinion, NMFS concluded that catch rates of salmon in the 2005 whiting fishery were consistent with expectations considered during prior consultations. Chinook bycatch has averaged about 7,300 fish over the last 15 years and has only occasionally exceeded the reinitiation trigger of 11,000 fish.
        Since 1999, when NMFS issued its previous opinion establishing the 11,000 fish threshold, annual Chinook bycatch has averaged about 8,450 fish. The Chinook Environmentally Significant Units (ESUs) most likely affected by the whiting fishery have generally improved in status since the 1999 Section 7 consultation. Although these species remain at risk, as indicated by their ESA listing, NMFS concluded that the higher observed bycatch in 2005 does not require a reconsideration of its prior “no jeopardy” conclusion with respect to the fishery. For the groundfish bottom trawl fishery, NMFS concluded that incidental take in the groundfish fisheries is within the overall limits articulated in the Incidental Take Statement of the 1999 Biological Opinion. The groundfish bottom trawl limit from that opinion was 9,000 fish annually. NMFS will continue to monitor and collect data to analyze take levels. NMFS also reaffirmed its prior determination that implementation of the Groundfish FMP is not likely to jeopardize the continued existence of any of the affected ESUs.
        Lower Columbia River coho (70 FR 37160, June 28, 2005) were recently listed and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion for salmonids concluded that the bycatch of these species in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead. The Southern Distinct Population Segment (DPS) of green sturgeon (71 FR 17757, April 7, 2006) were also recently listed as threatened under the ESA. As a consequence, NMFS has reinitiated its section 7 consultation on the Council's Groundfish FMP.
        After reviewing the available information, NMFS concluded that, in keeping with sections 7(a) (2) and 7(d) of the ESA, the proposed action would not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.
        With regard to marine mammals, sea turtles, and seabirds, NMFS is reviewing the available data on fishery interactions and have entered into pre-consultation with the United States Fish and Wildlife Service, NMFS and other Federal agencies. In addition, NMFS has begun discussions with Council staff on the process to address the concerns, if any, that arise from our review of the data.
        Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Under the Magnuson-Stevens Act, 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction.

          List of Subjects in 50 CFR Part 660
          Fisheries, Fishing, Indian Fisheries.

          Dated: March 9, 2010.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:

          PART 660—FISHERIES OFF WEST COAST STATES

        1. The authority citation for part 660 is revised to read as follows:

          Authority:
          16 U.S.C. 1801 et seq. and 16 U.S.C. 773 et seq.

          2. In § 660.385 paragraph (e) is revised to read as follows:

          § 660.385
          Washington coastal tribal fisheries management measures.
          (e) Pacific whiting. The tribal allocation for 2010 will be calculated using the following formula: total tribal allocation = [17.5 percent * (U.S. OY)] + 16,000 mt.

      [FR Doc. 2010-5479 Filed 3-11-10; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 571
        [Docket No. NHTSA 2006-25017]
        RIN 2127-AG41
        Federal Motor Vehicle Safety Standards; Rearview Mirrors

          AGENCY:
          National Highway Traffic Safety Administration (NHTSA), DOT.

          ACTION:
          Withdrawal of rulemaking.

          SUMMARY:
          In response to a petition for rulemaking, in 2005 the National Highway Traffic Safety Administration (NHTSA) proposed to amend Federal Motor Vehicle Safety Standard No. 111, “Rearview Mirrors” to require straight trucks with a gross vehicle weight rating (GVWR) of between 4,536 kilograms (10,000 pounds) and 11,793 kilograms (26,000 pounds) to be equipped with a system capable of providing drivers with a view of objects directly behind the vehicle. More refined data generated since the 2005 NPRM shows that the sub-population of mid-sized trucks accounts for only four of the estimated 183 fatalities per year due to back-over accidents. In addition, the recently signed Cameron Gulbranson Kids Transportation Safety Act of 2007 1
             (K.T. Safety Act of 2007) requires NHTSA to revise the Federal standard for rearward visibility, specifically to reduce backing crashes involving children and disabled people. Considering these developments, the agency believes it more appropriate to address backing safety of straight trucks as part of the comprehensive effort to address backing safety generally, and that solutions should be formulated after the completion and review of ongoing research and data gathering on backing safety. We are therefore withdrawing this rulemaking at this time.

              1 Public Law 110-189, February 28, 2008.

          FOR FURTHER INFORMATION CONTACT:
          For non-legal issues, you may contact Mr. Clarke Harper, Office of Crash Avoidance Standards (NVS-120), NHTSA, 1200 New Jersey Avenue, SE., Washington, DC 20590 (Telephone: 202-366-1740) (Fax: 202-366-5930).
          For legal issues, you may contact Mr. Ari Scott, (NCC-112), Office of the Chief Counsel, NHTSA, 1200 New Jersey Avenue, SE., Washington, DC 20590 (Telephone: 202-366-2992) (FAX: 202-366-3820).

        SUPPLEMENTARY INFORMATION:

          Table of Contents
          I. Background
          II. Summary of Comments to the NPRM
          III. Agency Activities Since the NPRM
          IV. Legislative Actions Since the NPRM
          V. Agency Decision to Withdraw the Rulemaking

        I. Background
        In March 1995, Mr. Dee Norton, an individual, submitted a petition for rulemaking seeking to amend Federal Motor Vehicle Safety Standard (FMVSS) No. 111, “Rearview Mirrors,” to require convex, cross-view mirrors on the rear of the cargo box of stepvans and walk-in style delivery and service trucks. The requested rule was intended to prevent future tragedies similar to one that befell Mr. Norton's grandson, who was killed when he was struck and backed over by a delivery truck in an apartment complex parking lot.

        The agency granted Mr. Norton's petition. However, because Mr. Norton's solution was only one of many at that time, and the agency had no performance specification for cross-view mirrors, NHTSA published a request for comments in the Federal Register on June 17, 1996. The agency sought specific information on cross-view mirrors such as costs and performance specifications, and any other alternatives with costs similar to the mirrors described by Mr. Norton (61 FR 30586).2
           The agency received six comments in response to that notice. In general, commenters urged the agency to consider both visual systems such as cameras and mirrors and non-visual systems such as sonar or radar, to address the safety issue. Additionally, truck manufacturers suggested that mirrors would not address the safety problem and that there were several types of straight trucks for which cameras would not be an effective solution. In addition to the analysis of comments, NHTSA performed additional studies related to this rulemaking. A program was initiated to determine the size of the safety problem, that is, determine the number of people being backed over by a motor vehicle of any size. Using a combination of our own Fatality Analysis Reporting System (FARS) and National Center for Health Statistics data, the agency was able to estimate the number of non-traffic crashes, including backover accidents. Next, the agency performed research on state-of-the-art and prototype rear cross-view mirror designs.

            2 This Request for Comments and the comments subsequently received are available in hard copy in Docket No. NHTSA-96-53. However, for ease of reference, the Request for Comments also has been included in the electronic docket located at http://www.regulations.gov, Docket No. NHTSA-2000-7967-25.

        On November 27, 2000, NHTSA published an advance notice of proposed rulemaking (ANPRM) (65 FR 70681).3
           In addition to a request for general comments, the ANPRM posed twenty specific questions regarding rear cross-view mirrors, rear video systems, and rear object detection systems.

            3 Docket No. NHTSA-2000-7967-1.

        NHTSA received fourteen comments in response to the ANPRM, including submissions from trade associations, automobile and rear object detection system manufacturers, fleet operators, organized labor, a State agency, and individuals. Although the commenters were generally supportive of efforts to improve backing safety, many expressed concerns about a regulatory requirement in this area. In addition to responding to the questions posed in the ANPRM, commenters also raised a variety of issues, including scope of the regulatory requirement, potential exclusions, alternatives to regulation, maintenance and training requirements, and preemption.
        Using the information obtained from these two previous notices, the agency then published a Notice of Proposed Rulemaking (NPRM) on September 12, 2005 (70 FR 53753).4
           To address the identified problem of backing-related deaths and injuries associated with straight trucks, NHTSA proposed to amend FMVSS No. 111, to require medium straight trucks with a GVWR of between 4,536 kg (10,000 pounds) and 11,793 kg (26,000 pounds) to be equipped with either a cross-view mirror or rear video system in order to provide the driver with a visual image of a 3 meters by 3 meters area immediately behind the vehicle. The NPRM set out proposed requirements for each of these two compliance options, as well as test procedures suitable for each option. However, in light of concerns regarding the feasibility of attaching rear object detection systems on certain types of trucks, we also requested comments on categories of vehicles that the agency should consider excluding from the requirements of a final rule.

            4 Docket No. NHTSA-2004-19239-1.

        II. Summary of Comments to the NPRM
        The agency received 55 comments pursuant to our September 12, 2005, NPRM. Comments were received from a variety of interested parties, including consumers, a consumer advocacy group, fleet operators, equipment manufacturers, vehicle manufacturers, trade associations, the National Institute of Occupational Safety and Health (NIOSH), and two members of Congress, Representative Marsha Blackburn and Representative Nathan Deal. These comments are available in Docket No. NHTSA-2004-19239, and are generally summarized as follows.
        Comments from consumers were generally in favor of rear object detection systems, with several commenters urging the agency to expand the scope of the rulemaking to include all vehicles (including passenger vehicles). The consumer advocacy group recommended expansion of the proposal's applicability to passenger vehicles and larger trucks, recommended that the rule require a combination of cameras and non-visual systems, and recommended requiring retrofitting the systems onto existing vehicles. Conversely, one consumer suggested that we not regulate in this area and leave the decision to install a rear object detection system up to the purchaser of the vehicle.

        Fleet operators expressed divergent opinions regarding the agency's proposal. Some delivery companies were generally supportive of the proposal and enthusiastic about rear object detection systems. However, fleets involved in construction suggested that we exclude construction service trucks from the proposed requirements because of the potential for ongoing maintenance problems associated with repairing systems subject to continuous damage in rugged environments such as construction sites. Fleets in the category of leasing companies (e.g., self-move companies) were also opposed to mandatory regulation, again due to the potential maintenance burden and questionable system effectiveness, caused in part by the equipment being used by non-professional drivers who might substitute reliance on such systems for the recommended “spotter” system,5
           which they say has proven highly effective in practice for such users.

            5 A spotter is a person who stands outside a vehicle to aid the driver in backing and alert the driver of an object or person behind the vehicle, to ensure nothing or no one is in the way.

        Equipment manufacturers were supportive of the intent of the proposal, and manufacturers of mirrors and camera systems had minor technical suggestions.
        However, non-visual system equipment (e.g., sonar or radar-based) manufacturers and Representatives Blackburn and Deal urged us to alter the rulemaking proposal to adopt broader criteria which would allow non-visual systems to be used to comply with the standard's requirement.
        Vehicle manufacturers asked for changes to the proposal or exclusions for certain vehicles specific to their market. Several manufacturers of traditional straight delivery trucks had specific technical suggestions. Manufacturers of specialty trucks suggested their vehicles should be excluded from the proposed requirements because of the lack of any apparent safety need, difficulty in installing systems based on certain vehicle configurations, and durability problems associated with systems subject to excessive environmental abuse. The cited specialty vehicles included ambulances, buses, concrete trucks, refuse trucks, fire trucks, small volume equipment trucks, and sport utility vehicles (SUVs) with a GVWR of over 10,000 pounds.

        Various associations also offered positions. The National Association of State Directors of Pupil Transportation Services requested that NHTSA not include a rear object detection requirement for school buses. The Truck Manufacturers Association questioned the appropriateness of a mandatory regulation, although it suggested that an equipment standard might be useful if this equipment is voluntarily installed. The National Truck Equipment Association, which represents multistage manufacturers, argued that the proposed requirements may not be practical for certain types of vehicles, and that there could be problems with continual maintenance for construction-type vehicles. The Alliance of Automobile Manufacturers suggested the rulemaking was premature and should await completion of an assessment of rear object detection systems required under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).6
           The Truck Renting and Leasing Association urged us to adopt less restrictive requirements and to delay the rule until a more accurate cost-benefit analysis could be conducted. The Truck Trailer Manufacturers Association urged the agency not to extend the proposed requirements to combination truck trailers, arguing that such systems would be impractical and of little benefit.

            6 Pub. L. 109-59, 119 Stat. 1144 (2005).

        NIOSH provided insight into the scope of the backing problem in occupational settings and studies into potential solutions. Specifically, NIOSH provided data concerning backing accidents at highway construction sites and field experience studies concerning durability problems with rear video systems. Furthermore, NIOSH noted that a system whereby workers wear a device that can alert both the wearer and the driver of a vehicle when the wearer is in a danger zone offers some promise in addressing backing accidents involving heavy trucks.
        III. Agency Activities Since the NPRM
        As noted above, in 2005, Congress passed related mandates for the agency as part of its SAFETEA-LU legislation, specifically, requiring two actions by NHTSA related to backing incidents. In Section 10304, Congress mandated NHTSA to “conduct a study of effective methods for reducing the incidence of injury and death outside of parked passenger motor vehicles with a gross weight rating of not more than 10,000 pounds attributable to movement of such vehicles.” That provision of the Act further stipulated that the study shall, “(1) Include an analysis of backover prevention technology; (2) identify, evaluate, and compare the available technologies for detecting people or objects behind a motor vehicle with a gross vehicle weight rating of not more than 10,000 pounds for their accuracy, effectiveness, cost, and feasibility for installation; and (3) provide an estimate of cost saving that would result from widespread use of backover prevention devices and technologies in motor vehicles with a gross vehicle weight rating of not more than 10,000 pounds, including savings attributable to the prevention of (A) injuries and fatalities; and (B) damage to bumpers and other motor vehicle parts and damage to other objects.”
        Under section 10305 of the Act, Congress directed the agency as follows: “(a) In General.—In conjunction with the study required in section 10304, the National Highway Traffic Safety Administration shall establish a method to collect and maintain data on the number and types of injuries and deaths involving motor vehicles with a gross vehicle weight rating of not more than 10,000 pounds in non-traffic incidents” and “(b) data collection and publication.—The Secretary of Transportation shall publish the data collected under subsection (a) no less frequently than biennially.”

        In response to section 10304 of SAFETEA-LU, a report of the agency's study of technologies with possible application to reducing deaths and injuries from backing passenger vehicles was submitted to Congress in November 2006. That report is titled, “Vehicle Backover Avoidance Technology Study,” and is available in the Department of Transportation docket at http://www.regulations.gov, Docket NHTSA-25579-0003.
        In this Report to Congress, NHTSA reported on several systems currently available as original equipment on vehicles or as aftermarket products to evaluate their performance and potential effectiveness in mitigating backover crashes. The backover prevention technologies that are currently offered by vehicle manufacturers are marketed as “parking aids,” which are designed to assist attentive drivers in performing low speed parking maneuvers. Some aftermarket systems using similar technologies are being marketed as safety devices. NHTSA testing that predated SAFETEA-LU showed that the performance of sensor-based (ultrasonic and radar) parking aids in detecting child pedestrians behind the vehicle was typically poor, sporadic and limited in range. Based on calculation of the distance required to stop from a typical backing speed, detection ranges exhibited by the systems tested were not sufficient to prevent collisions with pedestrians or other objects. Of the technologies tested for their potential to reduce backover incidents, the camera-based system may have the greatest potential to provide drivers with reliable assistance in identifying people in the path of the vehicle when backing. However, the agency is concerned that the human factors issues surrounding camera systems are not well understood, issues such as: Will drivers use cameras if they are installed? Will they be relied on too much, to the exclusion of actually looking to the rear of a vehicle and checking rear view mirrors? Will new patterns of driver behavior that emerge if cameras are in place enhance the safe operation of vehicles?
        In support of this rulemaking, NHTSA conducted research specifically aimed at evaluating the performance of various mirror, sensor and video systems for medium trucks. All the systems were purchased in the aftermarket. The systems evaluated include three sensor systems, one sensor/rear video combination system, one rear video system, and one rear cross-view mirror system. The results indicated that sensor-based systems were poor, sporadic, and limited in range with regards to their ability to consistently detect child pedestrians and objects. Additionally, the mirror system image was insufficient to allow drivers to see a small object behind a vehicle and would not be a very effective means of allowing drivers to see behind vehicles. Video systems provided excellent images but only under well-lit, good-weather conditions. The agency has conducted similar research involving light vehicles with similar results.

        At this time, the agency does not know whether drivers would use the information from the video displays of rear object detection systems and if they did whether they would do so in enough time to prevent back-over incidents. Agency research involving driver use of rearward visual images in passenger vehicles is underway. This research will examine drivers' use of rearview video systems during backing maneuvers to assess their potential to reduce the incidence of collisions with rear obstacles and pedestrians. While performance testing of sensor-based backing systems and field of view measurement for rearview video systems give data to quantify their likelihood to “perceive” an obstacle behind a vehicle, only examining drivers'  use of the systems can provide a sense of the potential effectiveness of the systems in preventing crashes. The main purpose of the study is to determine (1) whether drivers of vehicles equipped with camera systems look at the display prior to and/or during backing and (2) whether use of the system affects backing performance (i.e., obstacle avoidance success). We expect to complete the testing portion of this research in 2008 and believe that the findings of this study will apply to the performance of typical drivers of all straight trucks.
        During the preparation of the Report to Congress, the agency also developed more refined non-traffic crash data than was reported in the 2005 NPRM.7
           The agency estimated in the Report to Congress, that there is an average of 183 fatalities annually for all backover crashes, which is below what was estimated in the NPRM. Our more recent data analysis focusing on trucks of the sort that were addressed in the original petition, is indicating that this a sub-population of straight trucks (those less than 20 feet in length), accounts for 2 of the estimated 183 fatalities per year due to back-over accidents. Similarly, when all straight trucks from 10,000 to 26,000 pounds GVWR (including those less-than-20-feet) are included, the number of fatalities from backovers accounts for only 4 fatalities per year.8

            7 See “Regulatory Evaluation, FMVSS No. 111, Rear Detection System for Single Unit Trucks” in Docket No. 25017.

            8 “Estimation of Backover Fatalities” at http://www.regulation.gov, Docket NHTA-25579.

        In response to sections 2012 and 10305 of SAFETEA-LU, the agency's National Center for Statistics and Analysis is currently exploring expanded approaches to gathering both injury and fatality data on non-traffic incidents, which include non-traffic backing crashes that occur on private property, in driveways, and in parking facilities. The primary issues facing NHTSA in the collection of data on non-traffic crashes are the collection of fatality and injury counts and the detailed data at the event level needed to fully understand the circumstances surrounding the crash. The agency conducted a review of existing systems within NHTSA, surveillance systems in other Federal agencies, and non-Federal sources to determine the feasibility for collecting non-traffic fatality and injury counts and detailed crash data. The review suggested possible expansion of NHTSA's existing crash databases and the use of other Federal agencies, especially the National Center for Health Statistics and the Consumer Product Safety Commission, which operate surveillance systems that may provide some useful information in arriving at a better estimate of the backover safety problem. However, the review of the non-Federal sources including hospital systems, emergency medical services systems, insurance company data, and news media databases found that they were generally incomplete or lacked the detail needed by NHTSA to understand the circumstances surrounding backing incidents.
        Based upon this review, efforts to collect both the fatality and injury data and detailed collision data are underway. The agency is currently using the existing Fatality Analysis Reporting System (FARS) infrastructure to collect information about non-traffic crash fatalities and the National Automotive Sampling System (NASS) infrastructure for non-traffic injuries. Similarly, the agency's Special Crash Investigation team is conducting detailed investigations of backovers involving light passenger vehicles.
        IV. Legislative Actions Since the NPRM
        On February 28, 2008, the President signed the K.T. Safety Act of 2007. Section 2(b) of this law requires that within 12 months of the President's signing the bill, NHTSA must initiate rulemaking to expand the required driver's field of view behind vehicles to reduce deaths and injuries from backing crashes, especially crashes involving small children and disabled people. NHTSA must issue a final rule no later than three years after the President signs the bill. Section 2(c)(1) of this law requires that the expanded rear visibility requirements be phased-in. Section 2(c)(2) requires NHTSA to consider whether the phase-in should give priority to particular types of motor vehicles if NHTSA finds that there are any differences in the frequency with which individual types are involved in backing crashes.
        The new law does not specifically influence the straight trucks at issue in this rulemaking. The K.T. Safety Act of 2007 is applicable only to motor vehicles with a GVWR of 10,000 pounds or less (see section 2(e)). However, as explained above, the agency believes that additional data on backovers collected by the agency, with regard to all vehicles, will allow us to address this problem in a more comprehensive manner.
        V. Agency Decision To Withdraw the Rulemaking
        The agency is charged by the new law to take a comprehensive look at backing safety for all types of motor vehicles. As described above, the agency has a great deal of research and data gathering currently underway that will allow us to develop appropriate and effective improvements to backing safety. The agency needs to better understand the effectiveness of the video-based systems. We believe the results of NHTSA's current study that will be completed in 2008 will substantially improve our understanding of how video systems are used by drivers and therefore their potential to reduce the backover risk. Given this, the agency believes that efforts to address medium truck backing safety by itself should held in abeyance pending the research and data gathering, and that this problem should be addressed as a part of the agency's comprehensive approach to backing safety.
        Accordingly, we have decided to withdraw this rulemaking and incorporate medium trucks into consideration of a possible broad based approach, including passenger vehicles, to addressing the backing safety problem.

          Authority:
          49 U.S.C. 30162; delegations of authority at 49 CFR 1.50 and 49 CFR 501.8.

          Issued: July 15, 2008.
          Stephen R. Kratzke,
          Associate Administrator for Rulemaking.

      [FR Doc. E8-16530 Filed 7-18-08; 8:45 am]
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