        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AU22; 1018-AI48
        Endangered and Threatened Wildlife and Plants; Proposed Rule To Remove the Arizona Distinct Population Segment of the Cactus Ferruginous Pygmy-Owl From the Federal List of Endangered and Threatened Wildlife; Proposal To Withdraw the Proposed Rule To Designate Critical Habitat

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), under the authority of the Endangered Species Act of 1973 (Act), as amended, propose to remove the Arizona distinct population segment (DPS) of the cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum) (pygmy-owl) from the Federal List of Endangered and Threatened Wildlife and accordingly to eliminate its designated critical habitat. The Arizona DPS of the pygmy-owl was listed as endangered on March 10, 1997 (62 FR 10730), and critical habitat was designated on July 12, 1999 (64 FR 37419). On January 9, 2001, a coalition of plaintiffs filed a lawsuit with the District Court of Arizona challenging the validity of our listing of the pygmy-owl as a DPS and the designation of its critical habitat. After the District Court of Arizona remanded the designation of critical habitat (National Association of Home Builders et al. v. Norton, Civ.-00-0903-PHX-SRB), we proposed a new critical habitat designation on November 27, 2002 (67 FR 7102). Ultimately, as a result of this lawsuit, the United States Court of Appeals for the Ninth Circuit issued an opinion on August 19, 2003, stating that “the FWS acted arbitrarily and capriciously in designating the Arizona pygmy-owl population as a DPS under the DPS Policy” (National Association of Home Builders v. Norton, 340 F. 3d 835, 852 (9th Cir. 2003)). In light of the Ninth Circuit's opinion, we have reassessed the application of the DPS significance criteria to the Arizona pygmy-owl. Based on our assessment, we do not believe that the available information and science satisfy the criteria to indicate that pygmy-owls in Arizona are an entity that qualifies for listing under the Act. Accordingly, we propose to remove the Arizona population of pygmy-owls from the list in 50 CFR 17.11, remove the critical habitat designation for this population at 50 CFR 17.95, and withdraw our November 27, 2002, proposed rule to designate new critical habitat.

          DATES:
          We will accept comments until October 3, 2005. Public hearing requests must be received by September 19, 2005.

          ADDRESSES:
          Comments and materials concerning the proposed delisting of the Arizona DPS of the pygmy-owl should be sent to the Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, Arizona 85021-4951. Written comments may also be sent by facsimile to 602/242-2513. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

          FOR FURTHER INFORMATION CONTACT:
          Steve Spangle, Field Supervisor (see
            ADDRESSES) (telephone 602/242-0210; facsimile 602/242-2513).

        SUPPLEMENTARY INFORMATION:
        Public Comments Solicited
        We intend that any final action resulting from this proposal will be based on the best available information. We have gathered and evaluated new information related to the pygmy-owl that has become available since the 1997 listing and are seeking any other pygmy-owl information. We will continue to support surveys of pygmy-owls in Mexico to further elucidate the status of the species in Mexico, and to identify threats to the population.
        We are soliciting comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We are particularly interested in comments concerning:
        (1) Biological, genetic, and/or morphological data related to the taxonomic classification of the pygmy-owl throughout its current range;
        (2) The location and characteristics of any additional populations not considered in previous work that might have bearing on the current population status;
        (3) Additional information related to current versus historical range, current distribution, genetic diversity, and population sizes of the Arizona pygmy-owl population and its contribution to the taxon as a whole;
        (4) Status of the pygmy-owl in Mexico, particularly threats to populations or habitat; and
        (5) Information related to discreteness, significance, and conservation status of any potential pygmy-owl DPS.
        We will take into consideration the comments and any additional information received, and such communications may lead to a final determination that differs from this proposal.
        Background
        The cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum) (pygmy-owl) is in the order Strigiformes and the family Strigidae. It is a small bird, approximately 17 centimeters (cm) (6.75 inches (in)) long. Males average 62 grams (g) (2.2 ounces (oz)), and females average 75 g (2.6 oz). The pygmy-owl is reddish brown overall, with a cream-colored belly streaked with reddish brown. Color may vary, with some individuals being more grayish brown. The crown is lightly streaked, and a pair of black/dark brown spots outlined in white occur on the nape suggesting “eyes.” This species lacks ear tufts, and the eyes are yellow. The tail is relatively long for an owl and is colored reddish brown with darker brown bars (Proudfoot and Johnson 2000). The pygmy-owl is primarily diurnal (active during daylight) with crepuscular (active at dawn and dusk) tendencies. They can be heard making a long, monotonous series of short, repetitive notes, mostly during the breeding season (Proudfoot and Johnson 2000).
        The pygmy-owl is one of four subspecies of the ferruginous pygmy-owl. It occurs from lowland central Arizona south through western Mexico to the States of Colima and Michoacan, and from southern Texas south through the Mexican States of Tamaulipas and Nuevo Leon. Only the Arizona population of the pygmy-owl is listed as an endangered species (62 FR 10730; March 10, 1997).

        Historically, pygmy-owls were recorded in association with riparian woodlands in central and southern Arizona (Bendire 1892; Gilman 1909; Johnson et al. 1987). Plants present in these riparian communities included cottonwood (Populus fremontii), willow (Salix spp.), ash (Fraxinus velutina), and hackberry (Celtis spp.). However, recent records have documented that pygmy-owls are found in a variety of vegetation communities such as riparian woodlands, mesquite (Prosopis velutina and P. glandulosa) bosques (Spanish for woodlands), Sonoran desertscrub, semidesert grassland, and Sonoran savanna grassland communities (Monson and Phillips 1981; Johnson and Haight 1985; Proudfoot and Johnson 2000) (see Brown 1994 for a description of these vegetation communities). While native and nonnative plant species composition differs among these communities, there are certain unifying characteristics such as (1) the presence of vegetation in fairly dense thickets or woodlands, (2) the presence of trees, saguaros (Carnegiea giganteus), or organ pipe cactus (Stenocereus thurberi) large enough to support cavities for nesting, and (3) elevations below 1,200 meters (m) (4,000 feet (ft)) (Swarth 1914; Karalus and Eckert 1974; Monson and Phillips 1981; Johnsgard 1988; Enriquez-Rocha et al. 1993; Proudfoot and Johnson 2000). Large trees provide canopy cover and cavities used for nesting, while the density of mid- and lower-story vegetation provides foraging habitat and protection from predators and contributes to the occurrence of prey items (Wilcox et al. 2000).
        Previous Federal Action

        On May 26, 1992, a coalition of environmental organizations (Galvin et al. 1992) petitioned us to list the entire cactus ferruginous pygmy-owl subspecies as endangered under the Act. We published a finding that the petition presented substantial scientific or commercial information indicating that listing of the pygmy-owl may be warranted and commenced a status review of the subspecies (58 FR 13045; March 9, 1993). As a result of information collected and evaluated during the status review, including information collected during a public comment period, we proposed to list the pygmy-owl as endangered with critical habitat in Arizona and threatened in Texas (59 FR 63975; December 12, 1994). After a review of all comments received in response to the proposed rule, we published a final rule listing the pygmy-owl as endangered in Arizona (62 FR 10730; March 10, 1997). In that final rule, we determined that listing in Texas was not warranted and that critical habitat designation for the Arizona population was not prudent.

        On October 31, 1997, the Southwest Center for Biological Diversity filed a lawsuit in Federal District Court in Arizona against the Secretary of the Department of the Interior for failure to designate critical habitat for the pygmy-owl and a plant, Lilaeopsis schaffneriana var. recurva (Huachuca water umbel) (Southwest Center for Biological Diversity v. Babbitt, CIV 97-704 TUC ACM). On October 7, 1998, the District Court issued an order that, along with subsequent clarification from the Court, required proposal of critical habitat by December 25, 1998, followed by a final determination 6 months later.

        In September 1998, we appointed the Cactus Ferruginous Pygmy-owl Recovery Team (Recovery Team), comprised of biologists (pygmy-owl experts and raptor ecologists) and representatives from affected and interested parties (i.e., Federal and State agencies, local governments, the Tohono O'odham Nation, and private groups). On January 9, 2003, we published a notice of availability in the Federal Register (68 FR 1189) opening the public comment period for the draft pygmy-owl recovery plan until April 9, 2003. On April 30, 2003 (68 FR 23158), we reopened the public comment period on the recovery plan until June 30, 2003.
        On December 30, 1998, we proposed to designate critical habitat in Arizona for the pygmy-owl (63 FR 71820). On April 15, 1999, we released the draft economic analysis on proposed critical habitat and reopened the public comment period for 30 days (64 FR 18596). On July 12, 1999, we published our final critical habitat determination (64 FR 37419), essentially designating the same areas as were proposed.

        On January 9, 2001, a coalition of plaintiffs filed a lawsuit with the District Court of Arizona challenging the validity of the Service's listing of the Arizona population of the pygmy-owl as an endangered species and the designation of its critical habitat. On September 21, 2001, the Court upheld the listing of the pygmy-owl in Arizona but, at our request, and without otherwise ruling on the critical habitat issues, remanded the designation of critical habitat for preparation of a new analysis of the economic and other effects of the designation (National Association of Home Builders et al. v. Norton, Civ.-00-0903-PHX-SRB). The Court also vacated the critical habitat designation during the remand. Subsequently, the Court ordered that we submit the critical habitat proposed rule to the Federal Register on or before November 15, 2002. On November 27, 2002, we published the proposed rule to designate critical habitat for the pygmy-owl (67 FR 7102) and opened a public comment period on the proposed rule and the draft economic analysis until February 25, 2003. We extended the comment period on February 25, 2003, until April 25, 2003 (68 FR 8730). We then reopened the comment period on April 28, 2003, until June 27, 2003 (68 FR 22353). Due to a lack of funding, work on the final rule designating critical habitat for the pygmy-owl was suspended in April 2003.

        The plaintiffs appealed the District Court's ruling on the listing of the pygmy-owl as a distinct population segment. On August 19, 2003, the Ninth Circuit Court of Appeals upheld the Service's determination that the Arizona pygmy-owl population was discrete, but found that the Service did not articulate a rational basis for finding that the Arizona pygmy-owl population was significant to the taxon, as discussed in further detail below (National Association of Home Builders v. Norton, 340 F. 3d. at 852). The judgment of the District Court was reversed, and the case was remanded to the District Court for further proceedings consistent with the Ninth Circuit's opinion.
        The Ninth Circuit's opinion and the Service's lack of funding to complete work on the final critical habitat designation prompted us to file a declaration with the District Court of Arizona requesting to stay or modify the Court-ordered critical habitat completion deadline of September 29, 2003. On September 29, 2003, the Court granted a stay pending further order of the Court.
        On October 1, 2003, the interveners-appellees petitioned for a rehearing from the Ninth Circuit. That request was denied. On November 12, 2003, the plaintiffs filed a motion with the District Court seeking removal of the listing based on the Ninth Circuit's ruling. On December 10, 2003, the Service filed a response agreeing that removal of the listing was appropriate. The motion also indicated that the Service was undertaking an internal review of the current status of the pygmy-owl in the United States and Mexico and was engaged in ongoing surveys of the species. The interveners in the case opposed the plaintiffs' motion and disputed the contention that the listing rule should be removed.

        On June 25, 2004, the District Court for the District of Arizona (CV 00-0903 PHX-SRB) remanded the listing rule to the Service for reconsideration consistent with the Ninth Circuit's ruling and ordered that the pygmy-owl listing should remain in place for the duration of the Service's deliberations. On January 31, 2005, pursuant to the District Court's order, we filed a status report with the District Court regarding our reconsideration of the listing rule for the pygmy-owl. This proposed rule to delist the Arizona DPS of the pygmy-owl is the result of our evaluation of whether the DPS is a listable entity under the Act.
        Distinct Vertebrate Population Segment
        We must consider a species for listing under the Act if available information indicates that such an action might be warranted. “Species” is defined by the Act as including any species or subspecies of fish and wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). We, along with the National Marine Fisheries Service (National Oceanic and Atmospheric Administration—Fisheries), developed the Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DPS Policy) (61 FR 4722) to help us in determining what constitutes a DPS. Under this policy, we use three criteria to assess whether a population under consideration for listing may be recognized as a DPS: (1) Discreteness of the population in relation to the remainder of the species to which it belongs; (2) the significance of the population segment to the species to which it belongs; and (3) the population segment's conservation status in relation to the Act's standards for listing.

        A population segment may be considered discrete if it satisfies either one of the following conditions: (1) Marked separation from other populations of the same taxon (a group of organisms that form a unit of classification, e.g., a family, genus, species, subspecies) resulting from physical, physiological, ecological, or behavioral factors, including genetic discontinuity; or (2) populations delimited by international boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of 4(a)(1)(D) of the Act.
        If a population is considered discrete under one or more of the above conditions, its biological and ecological significance is assessed. Measures of significance may include, but are not limited to, the following: (1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of the taxon that may be more abundant elsewhere as an introduced population outside its historical range; and (4) evidence the discrete population segment differs markedly from other populations of the taxon in its genetic characteristics.
        If a population segment is discrete and significant, its evaluation for endangered or threatened status will be based on the Act's definitions of those terms and a review of the factors enumerated in section 4(a). Endangered means the species is in danger of extinction throughout all or a significant portion of its range. Threatened means the species is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.
        Delisting Analysis: Proposed Application of the Significance Criteria to the Pygmy-Owl in Arizona
        In the discussion below we provide our preliminary analysis of the significance of the Arizona DPS in light of our DPS policy and the Ninth Circuit's ruling in this case. In doing so we considered information known at the time of the listing of the pygmy-owl, as well as information obtained subsequently. This is consistent with the June 25, 2004, ruling by the District Court remanding the rule back to the Service for reconsideration, which held that once a rule has been declared arbitrary and capricious and it is remanded to the agency for further consideration, the agency may use all information available at the time of reconsideration. Prior to making a final determination we will consider any new information obtained during the public comment period and make any necessary revisions.
        (1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon.

        Approximately three quarters of the distribution of the pygmy-owl occurs within tropical and subtropical plant communities. This includes pygmy-owls of southern Texas south through the Mexican States of Tamaulipas and Nuevo Leon, which occupy mesquite forest, riparian forest, thorn forest, tropical deciduous forest, heavy riparian forest, and areas more tropical in nature, including cypress groves (Cartron et al. 2000b; Proudfoot and Johnson 2000; Leopold 1950). It also includes areas in southern Sonora, Sinaloa, and Nayarit where pygmy-owls occur within the tropical Sinaloan thornscrub and Sinaloan deciduous forest community types and associated riparian communities (Leopold 1950; Brown 1994; Phillips and Comus 2000).

        Approximately one quarter of the distribution of pygmy-owls falls within desert plant communities. This includes pygmy-owls in Arizona south through western Mexico into the State of Sonora. In Arizona, the pygmy-owl is found within Sonoran Desert scrub or semidesert grassland biotic communities and associated riparian and xeroriparian (dry washes) communities (Cartron et al. 2000b; Proudfoot and Johnson 2000). In northern Sonora, Mexico, the ecological setting in which the pygmy-owl is found exhibits similar ecological conditions to the range of the Arizona pygmy-owl with regard to vegetation, climate, soils, etc. (Leopold 1950; Brown 1994; Phillips and Comus 2000; http://mexico channel.net/maps).

        In northern Sonora, Mexico, millions of acres of Sonoran Desert and thornscrub are being converted to buffelgrass (Pennisetum ciliaris). This direct loss of habitat from the conversion to buffelgrass also results in an indirect loss of habitat because of invasion of buffelgrass into adjacent areas and increased fire frequency and intensity in buffelgrass savannas (Burquez-Montijo et al. 2002). Little is known about the direct effects of fire on pygmy-owl behavior or distribution. We have no research information at our disposal that follows the behavior of and impacts to owls before, during and following natural fire events. Flesch (2003) concluded that the conversion of native vegetation to buffelgrass savannas constitutes a serious threat to pygmy-owls by eliminating or suppressing regeneration of large columnar cacti in northern and central Sonora, especially in areas where saguaros are already uncommon (Flesch 2003). Buffelgrass areas have significantly lower species diversity and reduced structural complexity than the native desert scrub (Van Devender and Dimmit 2000). Pygmy-owls were found in or adjacent to buffelgrass clearings that formed a mosaic of artificial savannah and native vegetation (Flesch 2003). The conversion of native vegetation to buffelgrass and the associated direct and indirect effects on habitat are an ongoing threat to pygmy-owls in Mexico (Flesch 2003). Survey data indicate that pygmy-owls are patchily distributed in Sonora, Mexico (Flesch 2003). This conversion of native vegetation to buffelgrass may be serving to create an ecological setting that is very different than that occupied by Arizona pygmy-owls.
        Johnson et al. (2003) examined previous population and site locations for owls between 1872 and 1971. They found that, historically, the owl used riparian zones along streams and later transitioned to the more xeric habitat of cacti. They believed a direct correlation exists between the timeframe of the 1920s, when numerous water projects were constructed resulting in reduced stream flows, and a downward trend in population numbers as compared to 1880-1920. Thus, their work argues against a clear indication that more current events resulted in population reductions, or that there has been a precipitous decline since the changes that occurred just after the turn of the century.
        (2) Evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon.
        In the listing rule (March 10, 1997; 62 FR 10730), we found that the gap in the range of the taxon through loss of the Arizona pygmy-owls would be significant because it would: (a) Decrease the genetic variability of the taxon; (b) reduce the current range of the taxon; (c) reduce the historical range of the taxon; and (d) extirpate the western pygmy-owls from the United States.
        With regard to genetic variability, factor (a) above, in our listing rule we were able to determine genetic distinctness between western and eastern pygmy-owls; however, we did not have evidence of genetic differences between pygmy-owls in Arizona and northwestern Mexico. Proudfoot and Slack (2001) present the most current and extensive work on the genetics of the pygmy-owl. They found that there were distinct differences between pygmy-owls in Arizona and Texas. Their work also showed genetic differences between pygmy-owls in eastern and western Mexico. However, we have no evidence of a marked genetic difference between the Arizona pygmy-owls and those in the rest of the western range. Glenn Proudfoot, Texas A&M University, will shortly complete some additional pygmy-owl genetic analysis using a different methodology (S. Richardson, pers. comm., 2005). These analyses are expected to be available very soon and may be relevant to our final decision. We will review this information when it becomes available.
        Given the genetic and geographic separation between the eastern and western pygmy-owls and the habitat differences within the western population of desert and subtropical/tropical plant communities, Arizona pygmy-owls at the northern periphery of the western range represent a potential source of genetic diversity within the range of the taxon. Recent pygmy-owl genetic work, done by Proudfoot at Texas A&M, presents evidence that genetic divergence occurs in both Arizona and Sonora, Mexico. A distinct genetic clade exists in northwest Tucson and genetic separation exists between Sonora and Sinaloa indicating that separate groups of pygmy-owls, including Arizona, contribute to the overall genetic diversity of this subspecies (Proudfoot and Slack 2001, Proudfoot 2005). Genetic divergence tends to occur at the periphery of a species' range (Lesica and Allendorf 1995). The peripheral nature of the Arizona pygmy-owls may increase the potential for the population to diverge from populations in Sonora and Sinaloa, Mexico. Because peripheral populations may be isolated to some extent from core populations, peripheral populations may become genetically distinct because of genetic drift (random gene frequency changes in a small population due to chance alone) and divergent natural selection (the natural process by which organisms leave differentially more or fewer descendants than other individuals because they possess certain inherited advantages or disadvantages) (Lesica and Allendorf 1995). However, we have no evidence to suggest a marked genetic difference between the Arizona pygmy-owls and the rest of the western pygmy-owls.

        With regard to factor (b), a reduction in current range, the Ninth Circuit looked to other DPS rules and findings published by the Service. The Court stated that the Service had previously found two ways in which the loss of a discrete population could reduce the current range of its taxon. First, the Court concluded that a gap could be significant if the loss of the population would amount to a “substantial reduction” of the taxon's range. The Court noted the final listing rule for the pygmy-owl stated that the Arizona population represented only a small percentage of the total current range of western pygmy-owls, and the Service did not find that the loss of this “small percentage” would substantially curtail the current range. Second, “the loss of a discrete population that is numerous and constitutes a large percentage of the total number of taxon members could be considered a significant curtailment of a taxon's current range” (340 F.3d. at 845). The Court noted the Service did not find that the “20 to 40 individuals [in the Arizona population] would significantly curtail the western pygmy-owls' current range, which consists mostly of the more-numerous northwestern Mexico pygmy-owl population” (340 F.3d. at 845). In this case, the range of the taxon (Glaucidium brasilianum cactorum), includes both the western pygmy-owl population occurring from lowland central Arizona south through western Mexico to the States of Colima and Michoacan, and the eastern pygmy-owl population from southern Texas south through the Mexican States of Tamaulipas and Nuevo Leon. Taking into account our DPS policy, as well as the analysis of the Ninth Circuit, we conclude that the loss of the Arizona population would not result in a significant gap in the range of the taxon due to a reduction in the current range of the subspecies. Because this Arizona population occupies only a small percentage of the range of the subspecies, its loss would not amount to a substantial reduction of the range of the subspecies.
        With regard to factor (c) above, we found in our original listing rule that the gap would be significant because the loss of the Arizona pygmy-owls would reduce the historical range of the taxon. We determined this because the Arizona population is at the periphery of the western pygmy-owl's historical range, and that this peripheral population was always a stable portion of that range. The Ninth Circuit found that alone does not make Arizona a major geographical area in the western pygmy-owl's historic range. The Ninth Circuit found that, while Arizona pygmy-owls might possibly be significant to its taxon's historic range, the Service did not articulate a reasoned basis in the listing rule as to why that is so. The historic ranges of the Arizona population and of the whole subspecies are not precisely known. Based upon the best information available, the historic range in Arizona was considerably larger than the population's current range in Arizona. However, even the historic range in Arizona was only a small percentage of the historic range of the entire subspecies. We have no other information suggesting that the historic range of the Arizona population represents “a major geographical area” such that, given the ruling of the Ninth Circuit, the loss of the Arizona population would result in a significant gap in the range of the taxon.

        We do believe that protection and management of some peripheral populations may be important to the survival and evolution of certain species. Population members most distant from the species' core regularly demonstrate adaptations not often seen in core populations. This in and of itself, however, does not satisfy the question of significance. Maintaining genetic diversity within the western population and the taxon as a whole may be important in the face of land use changes, primarily impacts from a conversion of native vegetation to agricultural crops and buffelgrass pastures for livestock grazing in Mexico (Burquez and Yrizar 1997). Land use changes in Mexico may cause the reduction of the core pygmy-owl population in Mexico, and as such there might be an increased reliance on peripheral populations to maintain genetic adaptation and diversity. Peripheral populations often persist when core populations are extirpated (Channell and Lomolino 2000a, 2000b; Lomolino and Channell 1995). In the face of changing environmental conditions, what constitutes a peripheral population today could be the center of the species' range in the future (Nielsen et al. 2001). Peripheral populations survive more frequently than do core populations when species undergo dramatic reductions in their range (greater than 75 percent) (Channell and Lomolino 2000a). However, we do not have sufficient information to assess the likelihood of the Arizona peripheral population contributing to the long-term survival of the species. Additionally, as noted above, we do not have evidence to support a marked genetic difference between Arizona pygmy-owls and pygmy-owls in western Mexico.
        With regard to (d) above, we determined that a gap would be significant because it would deprive the United States of its portion of the western pygmy-owl's range. The Ninth Circuit Court rejected this argument as a misconstruction of this criterion. The Court found that in designating a DPS under the DPS policy, we must find that a discrete population is significant to the taxon as a whole, not to the United States. Therefore, we have determined, based on the information available to the Service, that loss of the Arizona population would not result in a significant gap in the range of the subspecies on the basis of the significance of the Arizona population to the subspecies' status as a whole.
        (3) Evidence that the discrete population segment represents the only surviving natural occurrence of the taxon that may be more abundant elsewhere as an introduced population outside its historical range.
        This criterion does not apply to the Arizona population of the pygmy-owl.
        (4) Evidence the discrete population segment differs markedly from other populations of the taxon in its genetic characteristics.
        As discussed above, we do not have evidence to support that there is a marked genetic difference between pygmy-owls in Arizona and the rest of the western population of pygmy-owls.
        On the basis of the discussion above, we believe that the Arizona population of the pygmy-owl does not meet the definition of a DPS in accordance with our 1996 DPS policy. As such, we are proposing to remove the Arizona DPS of the cactus ferruginous pygmy-owl from the Federal List of Endangered and Threatened Wildlife on the basis that the original classification data was in error. Accordingly, we are also proposing to remove the designation of critical habitat at 50 CFR 17.95(b) for the Arizona DPS of the pygmy-owl, and we are proposing to withdraw our proposed rule of November 27, 2002 (67 FR 71032) to set forth new critical habitat for this population.
        Effects of the Proposed Rule
        If the Arizona DPS of the pygmy-owl is delisted, the requirements under section 7 of the Act would no longer apply. Federal agencies would be relieved of the need to consult with us on their actions that may affect the pygmy-owl and to insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of the pygmy-owl. Federal agencies would also be relieved of their responsibilities under section 7(a)(1) of the Act to use their authorities to further the conservation of the pygmy-owl. Additionally, we would not finalize the designation of critical habitat proposed on November 2, 2002 (67 FR 71032) nor would we complete a final recovery plan.
        Permitted scientific take as a result of surveys and research would likely continue to be regulated by the State of Arizona, Arizona Game and Fish Department, and will be considered in the context of potential effects to population stability.
        Peer Review

        In accordance with our policy published on July 1, 1994 (59 FR 34270), we will solicit the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure that our proposal is based on scientifically sound data, assumptions, and analyses. We will send these peer reviewers copies of this proposed rule immediately following publication in the Federal Register. We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding this proposal. We will consider all comments and information received during the 60-day comment period on this proposed rule as we prepare our final rulemaking.
        Public Hearings

        Section 4(b)(5)(E) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days of the date of publication of the proposal in the Federal Register. Such requests must be made in writing and be addressed to the Field Supervisor (see
          ADDRESSES section). We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings in the Federal Register and local newspapers at least 15 days prior to the first hearing.
        Clarity of the Rule

        Executive Order 12866 requires each Federal agency to write regulations that are easy to understand. We invite your comments on how to make this proposal easier to understand including answers to questions such as the following: (1) Is the discussion in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the proposal? (2) Does the proposal contain technical language or jargon that interferes with its clarity? (3) Does the format of the proposal (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce clarity? What else could we do to make the proposal easier to understand?

        Send a copy of comments that concern how we could make this proposal easier to understand to Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also send comments by e-mail to Exsec@ios.doi.gov.

        Required Determinations
        Paperwork Reduction Act

        OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), require that Federal agencies obtain approval from OMB before collecting information from the public. Implementation of this proposal does not include any collections of information that require approval by OMB under the Paperwork Reduction Act.
        National Environmental Policy Act (NEPA)

        We have determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act of 1973, as amended. A notice outlining our reasons for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244).

        References Cited

        A complete list of all references cited in this proposed rule is available upon request from the Arizona Ecological Services Field Office (see
          ADDRESSES section).

          List of Subjects in 50 CFR Part 17
          Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

        Proposed Regulation Promulgation
        Accordingly, we hereby propose to amend part 17, subchapter B of Chapter I, title 50 of the Code of Federal Regulations, as set forth below:

          PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS
          1. The authority citation for part 17 continues to read as follows:

            Authority:
            16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

            § 17.11
            [Amended]
            2. Amend § 17.11(h) by removing the entry for “Pygmy-owl, cactus ferruginous” under BIRDS from the List of Endangered and Threatened Wildlife.

            § 17.95
            [Amended]

            3. Amend § 17.95(b) by removing the entry for “Cactus Ferruginous Pygmy-owl (Glaucidium brasilianum cactorum).”

            Dated: July 27, 2005.
            Marshall P. Jones, Jr.,
            Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. 05-15302 Filed 8-2-05; 8:45 am]
      BILLING CODE 4310-55-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Parts 1, 80 and 95
        [WT Docket No. 14-36; FCC 14-20]
        Maritime Radio Equipment and Related Matters

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:

          In this document, the Federal Communications Commission (Commission or FCC) invites comment on issues regarding updating rules and requirements for technologies used to locate and rescue distressed ships and individuals in distress at sea or on land to provide better and more accurate data to rescue personnel. The Commission also invites comments on rules regarding radar equipment, the use of portable marine Very High Frequency (VHF) transmitters by persons on shore; permitting VHF digital small message service (VDSMS); and allowing assignment or transfer of control of ship station licenses.
          These rules will enable the maritime radio services to better protect lives and property at sea, as well as support improved day-to-day operations. New technologies will be used to locate and rescue distressed ships and individuals in distress at sea or on land to provide better and more accurate data to rescue personnel.

          DATES:
          Submit comments on or before June 2, 2014, and reply comments are due on or before June 30, 2014.

          ADDRESSES:
          You may submit comments, identified by WT Docket No. 14-36, FCC 14-20, by any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
          • Mail: Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.

          • People With Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: FCC504@fcc.gov or phone 202-418-0530 or TTY: 202-418-0432.

          For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

          FOR FURTHER INFORMATION CONTACT:
          James Shaffer, James.Shaffer@FCC.gov, Wireless Telecommunications Bureau, (202) 418-0687, or TTY (202) 418-7233.

        SUPPLEMENTARY INFORMATION:
        This is a summary of the Commission's Notice of Proposed Rulemaking (“NPRM”) in WT Docket No. 14-36, FCC 14-20, adopted on February 27, 2014, and released on February 28, 2014. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by sending an email to fcc504@fcc.gov or by calling the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
        1. In this NPRM the Commission invites comment on whether to amend Parts 80 and 95 of our rules to: (1) Require emergency position indicating radio beacons (EPIRBs) to be capable of broadcasting position data when activated, which will improve the ability of rescue personnel to locate distressed ships; (2) update the equipment standards for Personal Locator Beacons (PLBs) to ensure that PLBs meet updated functional and technical parameters; (3) authorize equipment certification and use of Satellite Emergency Notification Devices (SENDs) that comply with RTCM standards, providing for the use of additional technologies for safety of life and rescue scenarios; (4) permit equipment certification and use of Maritime Survivor Locating Devices (MSLDs) that comply with RTCM standards, in order to enhance maritime safety; (5) provide for equipment certification and use of Automatic Identification System Search and Rescue Transmitters (AIS-SARTs) that comply with international standards, which will contribute to maritime safety; (6) clarify the rules regarding radar equipment; (7) permit the use of portable marine VHF radio transmitters by persons on shore; (8) permit VHF digital small message services (VDSMS) on certain maritime VHF channels; (9) allow assignment or transfer of control of ship station licenses, removing a regulatory hurdle to secondary market transactions; and (10) correct certain typographical errors.
        I. Procedural Matters
        Paperwork Reduction Analysis
        2. This NPRM does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain a proposed new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
        Ex Parte Presentations
        3. This is a permit-but-disclose notice and comment in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must: (1) List all persons attending or otherwise participating in the meeting at which the ex parte presentation was made; and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b). In proceedings governed by § 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.
        Comment Dates and Filing Procedures

        4. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR §§ 1.415, 1.419, interested parties may file comments on or before June 2, 2014 and reply comments on or before June 30, 2014. All filings related to the NPRM should refer to WT Docket No. 14-36.

        5. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS), the Federal Government's eRulemaking Portal, or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

        6. Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers should follow the instructions provided on the Web site for submitting comments.

        7. For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet email. To get filing instructions, filers should send an email to ecfs@fcc.gov, and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.
        8. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
        9. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
        10. The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
        11. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
        12. U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street SW., Washington, DC 20554.

        13. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. Parties shall also serve one copy with the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, or via email to fcc@bcpiweb.com.

        14. Availability of documents. The public may view the documents filed in this proceeding during regular business hours in the FCC Reference Information Center, Federal Communications Commission, 445 12th Street SW., Room CY-A257, Washington, DC 20554, and on the Commission's Internet Home Page: <http://www.fcc.gov>. Copies of comments and reply comments are also available through the Commission's duplicating contractor: Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160, may be reached by email at fcc@bcpiweb.com or via BCPI's Web site at <WWW.BCPIWEB.COM>. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to <fcc504@fcc.gov> or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
        II. Initial Regulatory Flexibility Analysis

        15. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in the Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided in this NPRM The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, NPRM and IRFA (or summaries thereof) will be published in the Federal Register.
        Need for, and Objectives of, the Proposed Rules
        16. In the NPRM, we seek comment on rule amendments that are intended to enhance maritime safety and promote the efficient use of maritime radio spectrum. We also seek to conform the Commission's part 80 rules with international standards where doing so will not undermine domestic regulatory objectives.
        17. In the NPRM, we first request comment on whether to require emergency position indicating radio beacons (EPIRBs) be capable of broadcasting GPS data when activated. EPIRBs are carried on board ships to alert others of a distress situation, and to assist search and rescue units in locating those in distress. EPIRBs that transmit GPS coordinates enable search and rescue authorities to determine an accurate location significantly faster than traditional EPIRBs, which rely on satellite Doppler shift to identify the distress location. Second, we invite comments on whether to update the equipment standards for Personal Locator Beacons (PLBs). Like EPIRBs, PLBs send distress signals that are detected by satellite and relayed to search and rescue authorities. Incorporation of the most recent standards will ensure that PLBs meet current functional and technical parameters. Third, we ask commenters to consider whether we should amend the rules to authorize equipment certification and use of Satellite Emergency Notification Devices (SENDs) under Part 95 of the Commission's Rules, or continue to authorize them under Part 25. SENDs also send distress signals, but they typically are subscription services that utilize commercial mobile satellite service systems. Fourth, we ask whether to permit equipment certification and use of Maritime Survivor Locating Devices (MSLDs). MSLDs are intended for use by persons at risk of falling into the water such as mariners and workers on marine installations or docks. Fifth, we ask whether to provide for equipment certification and use of Automatic Identification System Search and Rescue Transmitters (AIS-SARTs) devices that comply with international standards. Like EPIRBs, SARTs are carried on board ships to alert others of a distress situation, and to assist search and rescue units in locating those in distress. Unlike traditional 9 GHz SARTs, AIS-SARTs a unique identification code and GPS coordinates to all AIS-equipped vessels within VHF radio range. Sixth, we solicit comment of clarifying certain radar equipment standards that must be met by voluntary and compulsory vessels. The standards currently incorporated in the rules impose unnecessary burdens on voluntary vessels. Seventh, we ask commenters to consider whether we should permit the use of portable marine VHF radio transmitters by persons on shore. Eighth, we invite comment on whether to permit VHF digital small message service (VDSMS) on certain maritime VHF channels to promote flexibility and efficiency in the use of marine communications. Finally, we request comment of whether to allow applications of assignment or transfer control of ship licenses.
        Legal Basis
        18. Authority for issuance of this item is contained in sections 4(i), 303(r), and 332(a)(2) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 332(a)(2).
        Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

        19. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
        20. Marine Radio Services. Small businesses in the aviation and marine radio services use a marine very high frequency (VHF), medium frequency (MF), or high frequency (HF) radio, any type of emergency position indicating radio beacon (EPIRB) and/or radar, an aircraft radio, and/or any type of emergency locator transmitter (ELT). The Commission has not developed a definition of small entities specifically applicable to these small businesses. For purposes of this analysis, the Commission uses the SBA small business size standard for the category Wireless Telecommunications Carriers (except satellite),” which is 1,500 or fewer employees. For this category, census data for 2007 show that there were 11,163 establishments that operated for the entire year. Of this total, 10,791 establishments had employment of 999 or fewer employees and 372 had employment of 1000 employees or more. Thus under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities that may be affected by our proposed action.
        21. Wireless Service Providers. The proposed rules would affect licensees using VHF Public Coast spectrum. In the Third Report and Order in PR Docket No. 92-257, the Commission defined the term “small entity” specifically applicable to public coast station licensees as any entity employing less than 1,500 persons, based on the definition under the Small Business Administration rules applicable to radiotelephone service providers. See Amendment of the Commission's Rules Concerning Maritime Communications, Third Report and Order and Memorandum Opinion and Order, PR Docket No. 92-257, 13 FCC Rcd 19853, 19893 (1998) (citing 13 CFR 121.201, Standard Industrial Classification (SIC) Code 4812). Below, we provide the economic census category and data for wireless entities, which encompasses public coast stations.
        22. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small.
        23. Radio Equipment Manufacturers. Some of the rules proposed herein may also affect small businesses that manufacture marine radio equipment and radiobeacon equipment designed for distress alerting and location. The Census Bureau does not have a category specific to these equipment manufacturers. The appropriate category is that for wireless communications equipment manufacturers. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is all such firms having 750 or fewer employees. According to Census bureau data for 2007, there were a total of 939 firms in this category that operated that year. Of this total, 912 had fewer than 500 employees and 27 had 500 or more employees. Thus, under this size standard, the majority of firms can be considered small.
        Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

        24. We invite interested parties to address the economic impact of these possible rule changes on small vessel operators, small marine radio equipment manufacturers and other small businesses that may be subject to the new requirements. We seek information on whether the compliance costs may outweigh the safety benefits of these rule changes, and whether there are alternative means of securing the safety benefits of these requirements through means that are less burdensome to regulatees. We do not believe any of the matters discussed in the NPRM would have a direct, significant economic impact on a substantial number of small entities. We note that most of the proposals would not require the replacement of any equipment. Only EPIRBs (which only commercial vessels are required to carry) and PLBs (which no vessel is required to carry) might be subject to a requirement to stop using existing models after a certain date. The NPRM seeks comment on whether, and if so, when, to phase out existing EPIRBs and PLBs. However, any commenters that disagree with that tentative conclusion are asked to explain the basis of that disagreement.
        Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered
        25. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives, among others: (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
        26. In the NPRM, we ask that commenters provide information on economic impact to manufacturers and consumers if the Commission were to adopt various standards to accommodate VDSMS, MSLDs, SENDs, and AIS-SARTs. The proposed requirements for the equipment generally take the form of performance standards rather than design standards, and therefore confer on smaller entities the flexibility to select the most economical design that can achieve the required performance. For example, the RTCM standards for VDSMS, MSLDs and SENDs equipment that we propose to incorporate in 47 CFR Parts 80 and 95 mandate certain functionality for the equipment but do not mandate that manufacturers design their equipment in any particular way in order to achieve that functionality.
        27. In the NPRM, we also seek comment on whether the Commission should require that EPIRBs be capable of broadcasting GPS data when activated. Notwithstanding the important safety benefits that would accrue from imposing such a requirement, we request that interested parties to address the cost to comply with the requirement and whether the costs of such a requirement would outweigh the safety benefits. Commenters are asked to suggest any alternatives or supplementary measures that can be taken to facilitate search and rescue efforts. Commenters are asked to address measures to reduce the compliance burden of such a requirement on small entities.
        Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rules
        28. None.

          List of Subjects in 47 CFR Parts 1, 80, and 95
          Communications equipment, Incorporation by reference, Radio.

          Federal Communications Commission.
          Marlene H. Dortch,
          Secretary.

        Proposed Rules
        For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 1, 80 and 95 as follows:

          PART 1—PRACTICE AND PROCEDURE

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

           Authority:
          15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 227, 303(r), 309, 1403, 1404, and 1451.

        2. Section 1.948 is amended by revising paragraph (b)(5) to read as follows:

          § 1.948
          Assignment of authorization or transfer of control, notification of consummation.

          (b)  * * *
          (5) Licenses, permits, and authorizations for stations in the Amateur, Commercial Operator and Personal Radio Services (except 218-219 MHz Service) may not be assigned or transferred, unless otherwise stated.

          PART 80—STATIONS IN THE MARITIME SERVICES

        3. The authority citation for part 80 continues to read as follows:

          Authority:
          Secs. 4, 303, 307(e), 309, and 332, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303, 307(e), 309, and 332, unless otherwise noted. Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47 U.S.C. 151-155, 301-609; 3 UST 3450, 3 UST 4726, 12 UST 2377.

        4. Section 80.7 is amended by:
        a. Revising paragraphs (b)(28), (d)(5), (d)(8) and (d)(12);
        b. Removing paragraph (d)(17);
        c. Re-designating paragraphs (d)(14) through (d)(16) as (d)(15) through (d)(17);
        d. Adding new paragraph (d)(14);
        e. Revising paragraphs (f)(2) and (f)(3) and adding paragraph (f)(4);
        f. Removing paragraph (g).
        The additions and revisions to read as follows:

          § 80.7
          Incorporation by reference.

          (b)  * * *
          (28) IMO Resolution MSC.246(83), (“IMO Resolution MSC.246(83)”) “Adoption of Performance Standards for Survival Craft AIS Search and Rescue Transmitters (AIS-SART) for Use in Search and Rescue Operations.” IBR approved for § 80.233.

          (d)  * * *
          (5) IEC 61097-3:1994 (“IEC 61097-3”), First edition, 1994-06, “Global maritime distress and safety system (GMDSS)—Part 3: Digital selective calling (DSC) equipment—Operational and performance requirements, methods of testing and required testing results,” with Annexes, IBR approved for § 80.1101.

          (8) IEC 61097-7:1996 (“IEC 61097-7”), First edition, 1996-10, “Global maritime distress and safety system (GMDSS)—Part 7: Shipborne VHF radiotelephone transmitter and receiver—Operational and performance requirements, methods of testing and required test results,” IBR approved for § 80.1101.

          (12) IEC 61097-12:1996(E) (“IEC 61097-12”), First edition, 1996-11, “Global maritime distress and safety system (GMDSS)—Part 12: Survival craft portable two-way VHF radiotelephone apparatus—Operational and performance requirements, methods of testing and required test results,” IBR approved for § 80.1101.

          (14) IEC 61097-14 Ed. 1 (“IEC 61097-14”), “Global maritime distress and safety system (GMDSS)—Part 14: AIS search and rescue transmitter (AIS-SART)—Operational and performance requirements, methods of testing and required test results.” ED 1.0 (2010-02), IRB approved for § 80.233.

          (f)  * * *
          (2) RTCM Standard 11000.3 (“RTCM 11000”), “RTCM Standard 11000.3 for 406 MHz Satellite Emergency Position-Indicating Radiobeacons (EPIRBs),” June 12, 2012, IBR approved for § 80.1061.
          (3) RTCM Standard 11020.1 (“RTCM 11020”), “RTCM Standard 11020.1, Ship Security Alert Systems (SSAS) Using the Cospas-Sarsat System,” October 9, 2009, IBR approved for § 80.277.
          (4) RTCM Standard 12301.1 (“RTCM 12301”), VHF-FM Digital Small Message Services, July 10, 2009, IBR approved for § 80.361.

        5. Section 80.157 is revised to read as follows:

          § 80.157
          Radio officer defined.
          A radio officer means a person holding a First Class Radiotelegraph Operator's Certificate, Second Class Radiotelegraph Operator's Certificate, or Radiotelegraph Operator License issued by the Commission, who is employed to operate a ship radio station in compliance with Part II of Title III of the Communications Act. Such a person is also required to be licensed as a radio officer by the U.S. Coast Guard when employed to operate a ship radiotelegraph station.

        6. Section 80.159 is amended by revising paragraph (b) as follows:

          § 80.159
          Operator requirements of Title III of the Communications Act and the Safety Convention.

          (b) Each cargo ship equipped with a radiotelegraph station in accordance with Part II of Title III of the Communications Act and which has a radiotelegraph auto alarm must carry a radio officer holding a First Class Radiotelegraph Operator's Certificate, Second Class Radiotelegraph Operator's Certificate, or Radiotelegraph Operator License who has had at least six months service as a radio officer on board U.S. ships. If the radiotelegraph station does not have an auto alarm, a second radio officer who holds a First Class Radiotelegraph Operator's Certificate, Second Class Radiotelegraph Operator's Certificate, or Radiotelegraph Operator License must be carried.

        7. Section 80.203 is amended by adding paragraphs (b)(3)(i) through-(iv) to read as follows:

          § 80.203
          Authorization of transmitters for licensing.

          (b)  * * *
          (3)  * * *
          (i) Internal adjustments of the transmitter;
          (ii) Use of controls normally inaccessible to the station operator;
          (iii) Use of external devices or equipment modules made available only to service and maintenance personnel through a service company; and
          (iv) Copying of a channel selection program directly from another transmitter (cloning) using devices and procedures made available only to service and maintenance personnel through a service company.

        8. Section 80.231 is amended by revising paragraph (c) introductory text to read as follows:

          § 80.231
          Technical requirements for Class B Automatic Identification System equipment.

          (c) Prior to submitting a certification application for a Class B AIS device, the following information must be submitted in duplicate to the Commandant CG-ENG, U.S. Coast Guard Headquarters, 2100 2nd Street SW., Stop 7126, Washington, DC 20593-7126:

        9. Section 80.233 is added to read as follows:

          § 80.233
          Technical requirements for Automatic Identification System Search and Rescue Transmitters (AIS-SART) equipment.

          (a) Automatic Identification System Search and Rescue Transmitter (AIS-SART) equipment must meet the technical requirements of IEC 61097-14 and IMO Resolution MSC.246(83) (incorporated by reference, see § 80.7(b)).
          (b) Prior to submitting a certification application for an AIS-SART device, the following information must be submitted in duplicate to the Commandant CG-ENG, U.S. Coast Guard Headquarters, 2100 Second Street SW. Stop 7126, Washington, DC 20593-7126:
          (1) The name of the manufacturer or grantee and the model number of the AIS-SART device; and
          (2) Copies of the test report and test data obtained from the test facility showing that the device complies with the environmental and operational requirements identified in IEC 61097-14.
          (c) After reviewing the information described in this paragraph (the U.S. Coast Guard will issue a letter stating whether the AIS-SART device satisfies all of the requirements specified in IEC 61097-14.
          (d) A certification application for an AIS-SART device submitted to the Commission must contain a copy of the U.S. Coast Guard letter stating that the device satisfies all of the requirements specified in IEC 61097-14, a copy of the technical test data, and the instruction manual(s).

        10. Section 80.273 is amended by removing paragraph (b), re-designating paragraphs (c) and (d) as paragraphs (b) and (c), and revising newly re-designated paragraph (b) to read as follows:

          § 80.273
          Radar standards.

          (b) For any ship of 10,000 tons gross tonnage and upwards or that is otherwise required to be equipped with two radar systems, each of the two radar systems must be capable of operating independently and must comply with the specifications, standards and general requirements set forth on paragraph (a) of this section. One of the systems must provide a display with an effective diameter of not less than 340 millimeters (13.4 inches), (16-inch cathode ray tube). The other system must provide a display with an effective diameter of not less than 250 millimeters (9.8 inches), (12-inch cathode ray tube).

        11. Section 80.277 is amended by revising paragraph (a)(1) to read as follows:

          § 80.277
          Ship Security Alert System (SSAS).
          (a)  * * *
          (1) Equipment that complies with RTCM 11020 (incorporated by reference, §§ 80.7); or

        12. In part 80, subpart H revise the undesignated center heading to read “RADIOTELEGRAPHY AND DATA”.
        13. Revise § 80.351 to read as follows:

          § 80.351
          Scope.
          The following sections describe the carrier frequencies and general uses of radiotelegraphy and data transmission with respect to the following:
          (a) Distress, urgency, safety, call and reply.
          (b) Working.
          (c) Digital selective calling (DSC).
          (d) Narrow-band direct-printing (NB-DP).
          (e) Facsimile.
          (f) VHF-FM digital small message services (VDSMS).

        14. Section 80.364 is added under the undesignated center heading for “Radiotelegraphy and Data” to read as follows:

          § 80.364
          Frequencies for VHF digital small message services (VDSMS).

          (a) Except as set forth in paragraph (b) of this section, frequencies in the 156-162 MHz band may be used for VHF digital small message services (VDSMS) complying with RTCM 12301 (incorporated by reference, see § 80.7).
          (b)(1) The following table designates VHF-FM channels not available for digital small message service.

              Channel
              Frequency (MHz)

              06
              156.300

              67
              156.375

              70
              156.525

              13
              156.650

              15
              156.750

              75
              156.775

              16
              156.800

              76
              156.825

              17
              156.850

              22A
              157.100

              AIS 1/2
              161.975/162.025

          (2) Unless authorized by the United States Coast Guard, VDSMS is also prohibited in designated U.S. Coast Guard Vessel Traffic Service areas on frequencies reserved for those services under § 80.373(f).

        15. Section 80.1005 is revised to read as follows:

          § 80.1005
          Inspection of station.

          The bridge-to-bridge radiotelephone station will be inspected on vessels subject to regular inspections pursuant to the requirements of Parts II and III of Title III of the Communications Act, the Safety Convention or the Great Lakes Agreement at the time of the regular inspection. If after such inspection, the Commission determines that the Bridge-to-Bridge Act, the rules of the Commission and the station license are met, an endorsement will be made on the appropriate document. The validity of the endorsement will run concurrently with the period of the regular inspection. Each vessel must carry a certificate with a valid endorsement while subject to the Bridge-to-Bridge Act. All other bridge-to-bridge stations will be inspected from time to time. An inspection of the bridge-to-bridge station on a Great Lakes Agreement vessel must normally be made at the same time as the Great Lakes Agreement inspection is conducted by a technician holding one of the following: a General Radiotelephone Operator License, a GMDSS Radio Maintainer's License, a Radiotelegraph Operator License, a Second Class Radiotelegraph Operator's Certificate, or a First Class Radiotelegraph Operator's Certificate. Additionally, the technician must not be the vessel's owner, operator, master, or an employee of any of them. Ships subject to the Bridge-to-Bridge Act may, in lieu of an endorsed certificate, certify compliance in the station log required by § 80.409(f).

        16. Section 80.1053 is revised to read as follows:

          § 80.1053
          Prohibition on certification, manufacture, importation, sale or use of Class A, Class B, Class S, and INMARSAT-E EPIRBs.
          The manufacture, importation, sale or use of Class A, Class B, Class S, or INMARSAT-E EPIRBs is prohibited. New Class A, Class B, Class S, or INMARSAT-E EPIRBs will no longer be certified by the Commission.

        17. Section 80.1061 is amended by revising paragraphs (a), (c) introductory text, (c)(1), and (c)(1)(ii) to read as follows:

          § 80.1061
          Special requirements for 406.0-406.1 MHz EPIRB stations.

          (a) Notwithstanding the provisions in paragraph (b) of this section, 406.0-406.1 MHz EPIRBs must meet all the technical and performance standards contained in RTCM 11000 (incorporated by reference, see § 80.7), and must also comply with the standards specified in § 80.1101(c)(5).

          (c) Prior to submitting a certification application for a 406.0-406.1 MHz radiobeacon, the radiobeacon must be certified by a test facility recognized by one of the COSPAS-SARSAT Partners that the equipment satisfies the design characteristics associated with the measurement methods incorporated in RTCM Standard 11000 (incorporated by reference, see § 80.7). Additionally, the radiobeacon must be subjected to the environmental and operational tests associated with the test procedures described in Appendix A of RTCM Standard 11000 (incorporated by reference, see § 80.7), by a test facility accepted by the U.S. Coast Guard for this purpose. Information regarding accepted test facilities may be obtained from Commandant CG-ENG-4, US Coast Guard Headquarters, 2100 Second Street SW., Stop 7126, Washington, DC 20593-7126, http://cgmix.uscg.mil/EQLabs/EQLabsSearch.aspx.
          (1) After a 406.0-406.1 MHz EPIRB has been certified by the recognized test facilities the following information must be submitted in duplicate to the Commandant CG-ENG, U.S. Coast Guard Headquarters, 2100 2nd Street SW., Stop 7126, Washington, DC 20593-1726:

          (ii) Copies of the certificate and test data obtained from the test facility recognized by a COSPAS/SARSAT Partner showing that the radiobeacon complies with the COSPAS-SARSAT design characteristics associated with the measurement methods described in the COSPAS/SARSAT Standard C/S T.001 and COSPAS-SARSAT Standard C/S T.007, and RTCM 11000 (all incorporated by reference, see § 80.7);

        18. Section 80.1085 is amended by revising paragraph (a)(3) to read as follows:

          § 80.1085
          Ship radio equipment—General.

          (a)  * * *
          (3) A radar transponder capable of operating in the 9 GHz band or an AIS-SART, which must be stowed so that it is easily utilized (this device may be one of those required by § 80.1095(b) for survival craft);

        19. Section 80.1095 is amended by revising paragraph (b) to read as follows:

          § 80.1095
          Survival craft equipment.

          (b) At least one radar transponder (or AIS-SART) must be carried on each side of every passenger ship and every cargo ship of 500 tons gross tonnage and upwards. At least one radar transponder (or AIS-SART) must be carried on every cargo ship of 300 tons gross tonnage and upwards but less than 500 tons gross tonnage. Such radar transponders (or AIS-SARTs) must conform to performance standards as specified in § 80.233 or § 80.1101. The radar transponders (or AIS-SARTs) must be stowed in such locations that they can be rapidly placed in any survival craft other than life rafts required on cargo ships in forward and aft areas (see Regulation III/26.1.4 of the SOLAS Convention). Alternatively, one radar transponder (or AIS-SART) must be stowed in each survival craft other than those required by Regulation III/26.1.4 of the SOLAS Convention. One of these radar transponders (or AIS-SARTs) may be the radar transponder (or AIS-SART) required by § 80.1085(a)(3).

          PART 95—PERSONAL RADIO SERVICES

        20. The authority citation for part 95 continues to read as follows:

          Authority:
          Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303.

        21. In part 95, subpart K is amended by revising the subpart heading to read as follows:

          Subpart K —Personal Locator Beacons (PLB) and Maritime Survivor Locating Devices (MSLD)

        22. Section 95.1400 is revised to read as follows:

          § 95.1400
          Basis and purpose.
          The rules in this subpart are intended to provide individuals in the water or in remote areas a means to alert others of an emergency situation and to aid search and rescue personnel in locating those in distress.

        23. Section 95.1402 is amended by revising paragraph (a) to read as follows:

          § 95.1402
          Special requirements for 406 MHz PLBs.

          (a) All 406 MHz PLBs must meet all the technical and performance standards contained in the Radio Technical Commission for Maritime (RTCM) Service document “RTCM Standard 11010.2 for 406 MHz Satellite Personal Locator Beacons (PLBs),” with Amendment 1, and with Amendment 2, dated June 8, 2012. This RTCM document is incorporated by reference in accordance with 5 U.S.C. 552(a), and 1 CFR part 51. Copies of the document are available and may be obtained from the Radio Technical Commission for Maritime Services, 1611 N. Kent Street, Suite 605, Arlington, Virginia 22209. The document is available for inspection at Commission headquarters at 445 12th Street SW., Washington, DC 20554. Copies may also be inspected at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

        24. Section 95.1403 is added to read as follows:

          § 95.1043
          Special requirements for Maritime Survivor Locating Devices.

          (a) Maritime Survivor Locating Devices (MSLDs) are devices intended to aid in the location of persons in the water. Use on land is not authorized.

          (b) Every MSLD sold in the United States after [INSERT DATE ONE YEAR AFTER EFFECTIVE DATE] that provides the functions described in this section, must meet all the technical and performance standards contained in RTCM document “RTCM Standard 11901.1 for Maritime Survivor Locating Devices (MSLD), dated June 4, 2012.” This RTCM document is incorporated by reference in accordance with 5 U.S.C. 552(a), and 1 CFR part 51. Copies of the document are available and may be obtained from the Radio Technical Commission for Maritime Services, 1611 N. Kent Street, Suite 605, Arlington, Virginia 22209. The document is available for inspection at Commission headquarters at 445 12th Street SW., Washington, DC 20554. Copies may also be inspected at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
          (c) All MSLDs must:
          (1) Transmit on at least one of the following frequencies: 121.5 MHz, 156.525 MHz, 156.750 MHz, 156.800 MHz, 156.850 MHz, 161.975 MHz, 162.025 MHz; or
          (2) Include a function intended to send a distress message directly to the U.S. Coast Guard or any other search and rescue organization.
          (d) No device may be marketed or sold in the United States as a “MSLD” or “Maritime Survivor Locating Device” unless it is compliant with the requirements in this section.
          (e) Before an MSLD certification application is submitted to the Commission, the applicant must have obtained test report from a test laboratory which shows that the MSLD complies with the electrical and environmental standards associated with RTCM 11901.1. The test laboratory must be accredited to ISO/IEC 17025 with a scope covering the applicable requirements and test procedures.

      [FR Doc. 2014-07140 Filed 3-31-14; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        RIN 0648-BI11
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic; Amendment 13

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

          ACTION:
          Notice of availability; request for comments.

          SUMMARY:
          The Gulf of Mexico (Gulf) and South Atlantic Fishery Management Councils (Councils) have submitted Amendment 13 to the Fishery Management Plan for Spiny Lobster in the Gulf of Mexico and South Atlantic (FMP), for review, approval, and implementation by NMFS. Amendment 13 would modify the applicable Federal regulations for the harvest of spiny lobster in the exclusive economic zone (EEZ) off Florida to be compatible with Florida regulations, and would re-establish a procedure for an enhanced cooperative management with Florida. The purpose of Amendment 13 is to more effectively manage and enforce the harvest of spiny lobster.

          DATES:
          Written comments on Amendment 13 must be received on or before June 3, 2019.

          ADDRESSES:
          You may submit comments on Amendment 13, identified by “NOAA-NMFS-2018-0088” by either of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0088, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Susan Gerhart, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
          • Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          Electronic copies of Amendment 13 may be obtained from the Southeast Regional Office website at https://www.fisheries.noaa.gov/action/amendment-13-modifications-spiny-lobster-gear-requirements-and-cooperative-management. Amendment 13 includes an environmental assessment, a fishery impact statement, a Regulatory Flexibility Act (RFA) analysis, and a regulatory impact review.

          FOR FURTHER INFORMATION CONTACT:

          Susan Gerhart, Southeast Regional Office, NMFS, telephone: 727-824-5305; email: Susan.Gerhart@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires each regional fishery management council to submit any FMP or amendment to NMFS for review and approval, partial approval, or disapproval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP or amendment, publish an announcement in the Federal Register notifying the public that the FMP or amendment is available for review and comment.
        The FMP being revised by Amendment 13 was prepared by the Councils and implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Act.
        Background
        In the Gulf and South Atlantic, spiny lobster are harvested primarily off the coast of Florida. The original FMP, implemented in 1982, largely complemented Florida's management regime and provided protection for the fishery throughout its range in the Gulf and the South Atlantic (47 FR 29202; July 2, 1982). The FMP adopted many of the management measures implemented by Florida to achieve its conservation and management objectives and effectively coordinate management with Florida. However, it was difficult to keep Federal regulations consistent with changing state regulations because Florida can adjust its management measures more quickly than the Councils and NMFS can change Federal regulations. As a result, NMFS and the Councils developed Amendment 2 to the FMP (54 FR 48059; November 20, 1989), which established a procedure to allow Florida to directly propose to NMFS its state spiny lobster regulations for subsequent implementation in the EEZ off Florida. That procedure was developed to provide a more timely regulatory mechanism to implement compatible regulations and a more formal process for state and Federal coordination.
        In 2017, representatives from the Florida Fish and Wildlife Conservation Commission contacted the NMFS Southeast Regional Office requesting that Federal regulations be aligned with Florida state regulations concerning requirements for spiny lobster bully net gear and for daily commercial possession limits of spiny lobster harvested by bully net or diving. However, NMFS determined that the previously established cooperative management procedure for the spiny lobster protocol established in Amendment 2 was removed in Amendment 10 to the FMP (76 FR 75488; December 2, 2011). Consequently, there is no procedure to implement regulations proposed by Florida without a plan amendment or framework to the FMP developed by the Council. These more lengthy processes are inconsistent with promoting compatible regulations for the fishery off Florida.
        Actions Contained in Amendment 13
        Amendment 13 includes measures to modify the Federal regulations for the harvest of spiny lobster that apply in the EEZ off Florida to be compatible with Florida regulations concerning bully net gear requirements and commercial daily possession limits when using bully nets or diving. These changes include updating the incorporations by reference to the Florida regulations, as appropriate. Amendment 13 would also re-establish a procedure for an enhanced cooperative management system to provide the state of Florida with a mechanism to propose spiny lobster regulations directly to NMFS for implementation, without a full amendment or framework action to the FMP.
        Florida Bully Net Permit and Gear Marking Requirements and Prohibitions

        In 2017, Florida implemented a bully net permit, gear marking requirements, and gear prohibitions. There is limited information as to how much spiny lobster bully netting effort occurs in the Federal waters off Florida. However, stakeholders have expressed concerns that spiny lobster bully net vessels are used to disguise unlawful activities and that there are growing conflicts between recreational bully netters and commercial bully netters. Amendment 13 proposes to align Federal and Florida regulations to address these concerns. In addition, consistency between Florida and Federal regulations is expected to improve enforcement and reduce potential confusion among fishers.
        Amendment 13 would require commercial bully net vessels in the EEZ off Florida to have a bully net permit from Florida, require that the vessel be marked with the harvester's Florida bully net permit number using reflective paint or other reflective material, prohibit commercial bully net vessels from having trap pullers onboard, and prohibit the simultaneous possession of a bully net and any underwater breathing apparatus (not including dive masks or snorkels) onboard a vessel used to harvest or transport spiny lobster for commercial purposes.
        Commercial Spiny Lobster Bully Net and Diving Trip Limits
        The Federal regulations do not include an express commercial daily vessel harvest and possession limit for spiny lobster harvested by bully net or diving. However, current Federal regulations require commercial spiny lobster harvesters in the EEZ off Florida to have the licenses and certificates specified to be a “commercial harvester,” as defined in Florida's regulations as of 2008. The 2008 version of “commercial harvester” included a person holding the appropriate licenses and certificates for traps and dive gear.
        Amendment 13 would incorporate by reference the most recent Florida regulations, which define a commercial harvester as a person who holds a valid saltwater products license with a restricted species endorsement issued by the Florida Fish and Wildlife Conservation Commission (FWC) and (1) a valid crawfish license or trap number and lobster trap certificates, if traps are used to harvest spiny lobster; (2) a valid commercial dive permit if harvest is by diving; or (3) a valid bully net permit if harvest is by bully net. Under Florida's regulations, commercial harvesters are restricted to the commercial harvest limits when bully net gear or dive gear is used. Therefore, bully net and dive fishermen would be restricted to the state bag limit regardless where the spiny lobster are harvested. However, to make the requirements in the EEZ off Florida more clear, Amendment 13 would add an express commercial vessel limit of 250 spiny lobster per vessel per day for spiny lobster harvested by bully net off all Florida counties and harvested by diving off Broward, Dade, Monroe, Collier, and Lee Counties, Florida.
        Establish an Enhanced Cooperative Management Procedure for Federal and Florida State Agencies
        The procedure for the protocol, as last modified in Amendment 2 to the FMP, provided NMFS the flexibility to respond quickly to changes in the spiny lobster fishery by allowing Florida to propose its spiny lobster regulations directly to NMFS for implementation in the EEZ off Florida. The procedure was removed in 2012 when Amendment 10 to the FMP established a new framework procedure (76 FR 75488; December 2, 2011). Without the procedure, Florida cannot propose rules directly to NMFS, limiting the ability to implement consistent regulations in a timely manner.
        Amendment 13 would re-establish a procedure for an enhanced cooperative management system to provide Florida with a mechanism to propose regulations concerning spiny lobster directly to NMFS for implementation.
        Proposed Rule for Amendment 13

        A proposed rule that would implement Amendment 13 has been drafted. In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable laws. If that determination is affirmative, NMFS will publish the proposed rule in the Federal Register for public review and comment.
        Consideration of Public Comments
        The Councils have submitted Amendment 13 for Secretarial review, approval, and implementation. Comments on Amendment 13 must be received by June 3, 2019. Comments received during the respective comment periods, whether specifically directed to Amendment 13 or the proposed rule, will be considered by NMFS in its decision to approve, partially approve, or disapprove Amendment 13. Comments received after the comment periods will not be considered by NMFS in this decision. All comments received by NMFS on Amendment 13 or the proposed rule during their respective comment periods will be addressed in the final rule.

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

          Dated: March 25, 2019.
          Jennifer M. Wallace,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2019-05969 Filed 4-1-19; 8:45 am]
       BILLING CODE 3510-22-P