        DEPARTMENT OF DEFENSE
        Defense Logistics Agency
        32 CFR Part 323
        [Defense Logistics Agency Regulation 5400.21]
        Defense Logistics Agency Privacy Program

          AGENCY:
           Defense Logistics Agency, DoD.

          ACTION:
          Proposed rule.

          SUMMARY:
          The Defense Logistics Agency (DLA) is proposing to amend its Privacy Act regulations. These changes consist of DLA office code changes and DLA publication name changes. DLA is also adding language to clarify the training requirements for its employees and military members who work with the news media or the public.

          DATES:
          Comments must be received on or before December 12, 2000 to be considered by this agency.

          ADDRESSES:
          Send comments to the Privacy Act Officer, Defense Logistics Agency, ATTN: CAAR, 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-6221.

          FOR FURTHER INFORMATION CONTACT:
          Ms. Susan Salus at (703) 767-6183.

        SUPPLEMENTARY INFORMATION:
        Executive Order 12866
        It has been determined that this Privacy Act rule for the Department of Defense does not constitute “significant regulatory action”. Analysis of the rule indicates that it does not have an annual effect on the economy of $100 million or more; does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; does not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; does not raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866.
        Regulatory Flexibility Act
        It has been determined that this Privacy Act rule for the Department of Defense does not have significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act systems of records within the Department of Defense.
        Paperwork Reduction Act
        It has been determined that this Privacy Act rule for the Department of Defense imposes no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act, and 44 U.S.C. Chapter 35.

          List of Subjects in 32 CFR Part 323
          Privacy.

        Accordingly, 32 CFR part 323 is proposed to be amended as follows:

          PART 323—DEFENSE LOGISTICS AGENCY PRIVACY PROGRAM
          1. The authority citation for 32 CFR Part 323 continues to read as follows:

            Authority:
            Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).

          2. 32 CFR part 323 is propose to be amended by revising footnotes 1 through 8 to read as follows:

            Copies may be obtained, if needed, from the Defense Logistics Agency, ATTN: DSS-CV, 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-6221.

          3. Section 323.2(e) is proposed to be revised to read as follows:

            § 323.2
            Policy.

            (e) Make reasonable efforts to ensure that records containing personal information are accurate, relevant, timely, and complete for the purposes for which they are being maintained before making them available to any recipients outside DoD, other than a Federal agency, unless the disclosure is made under DLAR 5400.14, DLA Freedom of Information Act Program (32 CFR part 1285).

            4. Section 323.4 is proposed to be amended as follows:
            a. By revising paragraph (a)(1) introductory text,
            b. Adding paragraph (a)(1)(v), and
            c. Revising paragraph (a)(2), introductory text, paragraphs (a)(3) and (b)(4). The revisions and addition read as follows:

            § 323.4
            Responsibilities.
            (a) * * *
            (1) The Staff Director, Corporate Communications, DLA Support Services (DSS-C) will:

            (v) Establish training programs for all individuals with public affairs duties, and all other personnel whose duties require access to or contact with systems of records affected by the Privacy Act. Initial training will be given to new employees and military members upon assignment. Refresher training will be provided annually or more frequently if conditions warrant.

            (2) The General Counsel, DLA (DLA-GC) will:

            (3) The DLA Chief Information Office (J-6) will formulate and implement protective standards for personal information maintained in automated data processing systems and facilities.
            (b) * * *
            (4) Establish training programs for all individuals with public affairs duties, and all other personnel whose duties require access to or contact with systems of records affected by the Privacy Act. Initial training will be given to new employees and military members upon assignment. Refresher training will be provided annually or more frequently if conditions warrant.
            5. Section 323.5 is proposed to be amended by revising, paragraphs (b)(3)(iv), (b)(4), (b)(5), (c)(5)(ii), (c)(6) introductory text, (c)(6)(i), (f)(3), introductory text, (h)(6), (i)(5)(ii), (j)(5), (k), (l)(1), (1)(2),  and (1)(3) and by removing paragraph (b)(3)(v) to read as follows:

            § 323.5
            Procedures.

            (b) * * *
            (3) * * *
            (iv) Notice to the individual of his or her right to appeal the denial within 60 calendar days of the date of the denial letter and to file any such appeal with the HQ DLA Privacy Act Officer, Defense Logistics Agency (DSS-CA), 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-6221.
            (4) DLA will process all appeals within 30 days of receipt unless a fair and equitable review cannot be made within that period. The written appeal notification granting or denying access is the final DLA action on access.
            (5) The records in all systems of records maintained in accordance with the Office of Personnel Management (OPM) Government-wide system notices are technically only in the temporary custody of DLA. All requests for access to these records must be processed in accordance with the Federal Personnel Manual (5 CFR part 293, 294, 297 and 735) as well as this part. DLA-GC is responsible for the appellate review of denial of access to such records.
            (c) * * *
            (5) * * *
            (ii) Notification that he or she may seek further independent review of the decision by filing an appeal with the HQ DLA Privacy Act Officer, Defense Logistics Agency (DSS-CA), 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-6221, and including all supporting materials.
            (6) DLA will process all appeals within 30 days unless a fair review cannot be made within this time limit.
            (i) If the appeal is granted, DLA will promptly notify the requester and system manager of the decision. The system manager will amend the record(s) as directed and ensure that all prior known recipients of the records who are known to be retaining the record are notified of the decision and the specific nature of the amendment and that the requester is notified as to which DoD Components and Federal agencies have been told of the amendment.

            (f) * * *
            (3) All records must be disclosed if their release is required by the Freedom of Information Act. DLAR 5400.14, (32 CFR part 1285) requires that records be made available to the public unless exempted from disclosure by one of the nine exemptions found in the Freedom of Information Act. The standard for exempting most personal records, such as personnel records, medical records, and similar records, is found in DLAR 5400.14 (32 CFR part 1285). Under the exemption, release of personal information can only be denied when its release would be a “clearly unwarranted invasion of personal privacy.”

            (f) * * *
            (6) DLAI 5530.1, Publications, Forms, Printing, Duplicating, Micropublishing, Office Copying, and Automated Information Management Programs,2 provides guidance on administrative requirements for Privacy Act Statements used with DLA forms. Forms subject to the Privacy Act issued by other Federal agencies have a Privacy Act Statement attached or included. Always ensure that the statement prepared by the originating agency is adequate for the purpose for which the form will be used by the DoD activity. If the Privacy Act Statement provided is inadequate, the activity concerned will prepare a new statement of a supplement to the existing statement before using the form. Forms issued by agencies not subject to the Privacy Act (state, municipal, and other local agencies) do not contain Privacy Act statements. Before using a form prepared by such agencies to collect personal data subject to this part, an appropriate Privacy Act Statement must be added.

            (i) * * *
            (5) * * *
            (ii) Special administrative, physical, and technical procedures are required to protect data that are stored or being processed temporarily in an automated data processing (ADP) system or in a work processing activity to protect it against threats unique to those environments (see DLAR 5200.17, Security Requirements for Automated Information and Telecommunications System,3 and appendix D of this part).

            (j) * * *
            (5) Systems notices and reports of new and altered systems will be submitted to DLA Support Services (DSS-CA) as required.

            (k) Exemptions. The Director, DLA will designate the DLA records which are to be exempted from certain provision of the Privacy Act. DLA Support Services (DSS-CA) will publish in the Federal Register information specifying the name of each designated system, the specific provisions of the Privacy Act from which each system is to be exempted, the reasons for each exemption, and the reason for each exemption of the record system.
            (l) * * *
            (1) Forward all requests for matching programs to include necessary routine use amendments and analysis and proposed matching program reports to DLA Support Services. Changes to existing matching programs shall be processed in the same manner as a new matching program report.

            (2) No time limits are set by the OMB guidelines. However, in order to establish a new routine use for a matching program, the amended system notice must have been published in the Federal Register at least 30 days before implementation. Submit the documentation required above to DLA Support Services (DSS-CA) at least 60 days before the proposed initiation date of the matching program. Waivers to the 60 days' deadline may be granted for good cause shown. Requests for waivers will be in writing a fully justified.
            (3) For the purpose of the OMB guidelines, DoD and all DoD Components are considered a single agency. Before initiating a matching program using only the records of two or more DoD activities, notify DLA Support Services (DSS-CA) that the match is to occur. Further information may be requested from the activity proposing the match.

            6. Section 323.6 is proposed to be revised to read as follows:

            § 323.6
            Forms and reports.

            DLA activities may be required to provide data under reporting requirements established by the Defense Privacy Office and DLA Support Services (DSS-CA). Any report established shall be assigned Report Control Symbol DD-DA&M(A)1379.
            Appendix A to Part 323 [Amended]
            7. Appendix A to part 323 is proposed to be amended by revising paragraphs C.2., F.2., I.4., revised to read as follows:

              C. * * *
              2. When multiple locations are identified by type of organization, the system location may indicate that official mailing addresses are contained in an address directory published as an appendix to DLAH 5400.1.

              F. * * *
              2. For administrative housekeeping records, cite the directive establishing DLA as well as the Secretary of Defense authority to issue the directive. For example, ‘Pursuant to the authority contained in the National Security Act of 1947, as amended (10 U.S.C. 133d), the Secretary of Defense has issued DoD Directive 5105.22 (32 CFR part 398), Defense Logistics Agency (DLA), the charter of the Defense Logistics Agency (DLA) as a separate agency of the Department of Defense under his control. Therein, the Director, DLA, is charged with the responsibility of maintaining all necessary and appropriate records.’
              I. * * *
              4. Retention and disposal. Indicate how long the record is retained. When appropriate, state the length of time the records are maintained by the activity, when they are transferred to a Federal Records Center, length of retention at the Records Center and when they are transferred to the National Archives or are destroyed. A reference to DLAI 5015.1,8 DLA Records Management Procedures and Records Schedules, or other issuance without further detailed information is insufficient.

            Appendix B to Part 323 [Amended]
            8. Appendix B to part 323 is proposed to be amended by revising paragraphs C. and F.1 introductory text to read as follows:

              C. Reports of new and altered systems. Submit a report of a new or altered system to DLA Support  Service (DSS-CA) before collecting information and for using a new system or altering an existing system.

              F. * * *
              11. The OMB may authorize a Federal agency to begin operation of a system of records before the expiration of time limits described above. When seeking such a waiver, include in the letter of transmittal to DLA Support Services (CA) an explanation why a delay of 60 days in establishing the system of records would not be in the public interest. The transmittal must include:

            Dated: October 6, 2000.
            L.M. Bynum,
            Alternate OSD Federal Register Liaison Officer, Department of Defense.

      [FR Doc. 00-26254  Filed 10-12-00; 8:45 am]
      BILLING CODE 5001-10-M


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AU49

        Endangered and Threatened Wildlife and Plants; Proposed Threatened Status for Penstemon grahamii (Graham's beardtongue) With Critical Habitat

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of public comment period and notice of public hearing.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the proposed rule to determine threatened status and to designate critical habitat for Penstemon grahamii (Graham's beardtongue) under the Endangered Species Act of 1973 as amended (Act). Reopening the public comment period will allow an additional opportunity for interested parties to comment on the proposed rule. Comments previously submitted on the proposed rule need not be resubmitted as they have already been incorporated into the public record and will be fully considered in any final decision. We will also hold a public hearing on the proposed rule.

          DATES:

            Comments: We will accept written comments on the proposed rule until May 19, 2006. Any comments received after the closing date may not be considered in the final determination on the proposal. Public Hearing: The public hearing will be held on Wednesday, April 26, 2006, from 7 p.m. to 9 p.m.

          ADDRESSES:

            Comments: If you wish to comment, you may submit your comments and materials by any one of several methods:
          1. You may submit written comments and information by mail or hand-delivery to Field Supervisor, U.S. Fish and Wildlife Service, Utah Field Office, 2369 West Orton Circle, Suite 50, West Valley City, Utah 84119.
          2. You may fax your comments to Field Supervisor, U.S. Fish and Wildlife Service, Utah Field Office at 801-975-3331.
          3. You may send comments by electronic mail (e-mail) to fw6_penstemongrahamii@fws.gov. Please see the Public Comments Solicited section below for file format and other information about electronic filing.
          All comments and materials received, as well as supporting documentation used in preparation of the proposed rule, will be available for public inspection, by appointment, during normal business hours at the Utah Field Office.

            Public Hearing: The public hearing will be held at the Uintah County Building, 152 East 100 North, Vernal, Utah.

          FOR FURTHER INFORMATION CONTACT:
          John L. England, Utah Field Office (address above), telephone 801-975-3330, extension 138.

        SUPPLEMENTARY INFORMATION:
        Public Comments Solicited
        We expect any final rule resulting from the proposal to be as accurate and effective as possible. Therefore, we are soliciting comments from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning the proposed rule. Comments particularly are sought concerning:
        Critical Habitat
        We seek specific information on:
        (1) Biological, commercial trade, or other relevant data concerning any threat (or lack thereof) to this species;
        (2) Additional information concerning the range, distribution, and population size of this species, including the locations of any additional populations of this species;
        (3) Current or planned activities in the subject area and their possible impacts on this species;
        (4) Reasons why any habitat should or should not be determined to be critical habitat for this species pursuant to section 4 of the Act; and
        (5) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat.

        It is our practice to make all comments, including names and addresses of respondents who provide that information, available for public review following the conclusion of the rulemaking process. Individuals may request that we withhold their name and/or address from public disclosure. If you wish to do this, you must state this prominently at the beginning of your comment. We will honor such requests to the extent allowable by law, but you should be aware that we may still be required to disclose your name and address pursuant to the Freedom of Information Act (5 U.S.C. 552). We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours (see ADDRESSES).
        All previous comments and information submitted during the initial comment period on the proposed rule need not be resubmitted. Please submit electronic comments in ASCII file format, and avoid the use of any special characters or any form of encryption. Also, please include “Attn: RIN 1018-AU49” in the subject line, and your name and return address in your e-mail message.
        Background
        On January 19, 2006, we published a proposed rule in the Federal Register (71 FR 3158) to determine Penstemon grahamii (Graham's beardtongue), a plant species from Colorado and Utah, to be a threatened species under the Act (16 U.S.C. 1531 et seq.). We further proposed to designate critical habitat for this plant. We accepted public comments on the proposed rule for 60 days, ending March 20, 2006.

          Penstemon grahamii is an herbaceous perennial plant that exists in a series of small populations that extend in a narrow band from Raven Ridge west of the town of Rangely in Rio Blanco County, Colorado, westward to the vicinity of Sand Wash near the point where Carbon, Duchesne, and Uintah Counties meet in Utah's Uinta Basin. The species' habitat is a discontinuous series of exposed raw shale knolls and slopes derived from the Parachute Creek and Evacuation Creek members of the geologic Green River Formation. Most populations are associated with the surface exposure of the petroleum bearing oil shale Mahogany ledge.
        Threats to the species may include degradation of the species' habitat by oil and gas exploration, drilling and field development, and tar sand and oil shale mining. Off-road vehicle use, overutilization by domestic and wild grazers, and overutilization for horticultural use also may affect some populations. These threats, in combination with small population sizes and limited distribution, could result in species' vulnerability to natural and human-caused stochastic events. The proposal, if made final, would determine threatened status for this plant and implement Federal protection under the Act.

        In addition, we proposed to designate 2,102 hectares (3,504 acres) as critical habitat for P. grahamii in five units in Rio Blanco County, Colorado, and Duchesne and Uintah Counties, Utah.
        Public Hearing

        We will conduct a public hearing on the date and at the address described in the DATES and ADDRESSES sections above.

        Anyone wishing to make an oral statement for the record is encouraged to provide a written copy of their statement and present it to us at the hearing. In the even there is a large attendance, the time allotted for oral statements may be limited. Oral and written statements receive equal consideration. There are no limits on the length of written comments submitted to us. If you have any questions concerning the public hearing, please contact the Utah Field Office (see ADDRESSES).
        Persons needing reasonable accommodations in order to attend and participate in the public hearings should contact the Utah Field Office at 801-975-3330 as soon as possible. In order to allow sufficient time to process requests, please call no later than one week before the hearing date.
        Authority

        The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

          Dated: April 7, 2006.
          Matt Hogan,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 06-3578 Filed 4-11-06; 10:06 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 229
        [Docket No. 130703586-3586-01]
        RIN 0648-BD43
        Taking of Marine Mammals Incidental to Commercial Fishing Operations; Harbor Porpoise Take Reduction Plan Regulations

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS hereby proposes to amend the regulations implementing the Harbor Porpoise Take Reduction Plan (Plan). This proposed rule would revise the Plan by eliminating the consequence closure strategy enacted in 2010 based on deliberations by the Harbor Porpoise Take Reduction Team. This action is necessary to prevent the improper triggering of consequence closure areas based on target harbor porpoise bycatch rates that no longer accurately reflect actual bycatch in New England sink gillnets due to fishery-wide changes in fishing practices.

          DATES:
          Submit comments on or before September 10, 2013.

          ADDRESSES:
          You may submit comments on this document, identified by RIN 0648-BD43, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal at www.regulations.gov.

          • Mail: Submit written comments to Mary Colligan, Assistant Regional Administrator for Protected Resources, NMFS Northeast Region, 55 Great Republic Dr., Gloucester, MA 01930, Attn: Harbor Porpoise Proposed Rule.
          • Fax: 978-281-9394 Attn: Harbor Porpoise Proposed Rule

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

          FOR FURTHER INFORMATION CONTACT:
          Kate Swails, NMFS, Northeast Region, 978-282-8482, Kate.Swails@noaa.gov; Kristy Long, NMFS Office of Protected Resources, 301-427-8440, Kristy.Long@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        Electronic Access

        Several of the background documents for the Plan and the take reduction planning process can be downloaded from the Plan Web site at http://www.nero.noaa.gov/hptrp/. Copies of the draft Environmental Assessment for this action can be found on the Plan's Web site. The complete text of the regulations implementing the Plan can be found either in the Code of Federal Regulations (CFR) at 50 CFR 229.33 or downloaded from the Web site, along with a guide to the regulations.
        Background
        The Harbor Porpoise Take Reduction Plan (Plan) was implemented in late 1998 pursuant to section 118(f) of the Marine Mammal Protection Act (MMPA) to reduce the level of serious injury and mortality of the Gulf of Maine/Bay of Fundy (GOM/BOF) stock of harbor porpoises (63 FR 66464, December 2, 1998). NMFS amended the Plan in 2010 (75 FR 7383, February 19, 2010) to address increased mortalities of harbor porpoises in New England and Mid-Atlantic commercial gillnet fisheries due to non-compliance with the Plan requirements and observed interactions occurring outside of existing management areas.
        The 2010 amendments, based largely on consensus recommendations from the Team, included the expansion of seasonal and temporal requirements within the Plan's management areas, the incorporation of additional management areas, and the creation of a consequence closure strategy in which three closure areas off the coast of New England would prohibit the use of gillnet gear if target rates of harbor porpoise bycatch were exceeded.

        The Plan was projected to reduce harbor porpoise bycatch below the potential biological removal (PBR) level without the implementation of the consequence closures. Consequence closures were intended only as a backstop measure to ensure compliance with pinger requirements. The intent of implementing the consequence closure strategy was to provide an incentive for the gillnet fishing industry to comply with pinger requirements in areas with historically high harbor porpoise bycatch levels resulting from relatively low levels of compliance. It was anticipated that the consequence closures would further reduce harbor porpoise mortalities by virtue of the times and areas chosen for their implementation in areas with poor pinger compliance.
        Consequence Closure Strategy
        The consequence closure strategy closes specific areas to gillnet gear during certain times of the year if observed average bycatch rates exceed specified target bycatch rates over two consecutive management seasons. Once triggered, Plan regulations state that the consequence closures will remain in place until the Plan achieves the Marine Mammal Protection Act's zero mortality rate goal (ZMRG) for harbor porpoises or until the Team recommends modifications to the Plan.
        Three areas of historically high harbor porpoise bycatch were chosen by NMFS and the Team to close if observed bycatch rates exceeded the target rates: The Coastal Gulf of Maine, Eastern Cape Cod, and Cape Cod South Expansion Consequence Closure Areas. NMFS and the Team established the target bycatch rates for these three Plan management areas by examining the bycatch rates (number of observed harbor porpoises taken per observed amount of landings) that were recorded from observed gillnet hauls from 1999-2007 that had the correct number of pingers on their net.
        The Coastal Gulf of Maine Closure Area would be triggered if the observed average bycatch rates of harbor porpoises in the Mid-Coast, Stellwagen Bank, and Massachusetts Bay Management Areas (combined) exceed the target bycatch rate of 0.031 harbor porpoise takes/metric tons of fish landed (takes/mtons) (equal to 1 harbor porpoise taken per 71,117 pounds of fish landed) after two consecutive management seasons. This area would prohibit the use of gillnet gear during the months of October and November, which historically have been the months with the highest amount of observed harbor porpoise bycatch. When this area is not closed, the seasonal requirements of the three overlapping management areas would remain in effect, including the March gillnet closure in the Massachusetts Bay Management Area.
        The Cape Cod South Expansion and Eastern Cape Cod Closure Areas would be triggered if the observed average bycatch rate of harbor porpoises in the Southern New England Management Area exceeded the target bycatch rate of 0.023 takes/mtons (equal to 1 harbor porpoise taken per 95,853 pounds of fish landed) after two consecutive management seasons. Both areas would prohibit the use of gillnet gear annually from February 1 through April 30. When the consequence closure areas are not closed, the seasonal pinger requirements of the overlapping Southern New England Management Area would remain in effect.
        Consequence Closure Area Monitoring
        Consequence closure area monitoring began with the start of first full management season after implementation of the 2010 amendments. The first monitoring season occurred from September 15, 2010, through May 31, 2011, and the second occurred from September 15, 2011, through May 31, 2012. During this time, the two-year average observed harbor porpoise bycatch rate for the areas associated with the Coastal Gulf of Maine Closure Area exceeded the target bycatch rate, triggering the implementation of the Coastal Gulf of Maine Closure Area (Figure 1). During management seasons two and three (September 15, 2011, through May 31, 2012, and September 15, 2012, through May 31, 2013, respectively), the two-year average observed harbor porpoise bycatch rate for the area associated with the Cape Cod South Expansion and Eastern Cape Cod Closure Areas exceeded the target bycatch rate, triggering the implementation of these two closures to start on February 1, 2014.

          EP26AU13.000

        Review of the Appropriateness of the Consequence Closure Strategy

        In April 2012, NMFS sent letters to gillnet fishermen notifying them of the implementation of the Coastal Gulf of Maine Closure Area beginning October 1, 2012. Following that notification, in August 2012 NMFS received a letter from a fishing industry representative requesting that the agency review harbor porpoise bycatch and fishing effort information in the coastal Gulf of Maine area after the 2010 implementation of the amendments to the Plan and New England Multispecies Fishery Management Plan Amendment 16, which implemented sector management and greatly modified the way New England groundfish fishermen could fish. The letter specifically requested that the timing of the closure be shifted from October and November to mid-February through March. This request suggested that a conservation benefit to harbor porpoises would occur by shifting the timing, as would an economic benefit to the fishing industry by allowing them to fish in the area during October and November. In considering this request, NMFS examined available harbor porpoise bycatch and fishing information from 2010 through 2012. Within the boundaries of the Coastal Gulf of Maine Closure Area, harbor porpoise bycatch data for that period indicated that a higher number of observed takes occurred during the spring, particularly in February and March, than in the fall (October and November), equating to a higher estimated total bycatch in the spring. Additionally, the bycatch rate during the spring was higher than in the fall. As a result, NMFS published a notice in the Federal Register on October 3, 2012 (77 FR 60319), that shifted the effective period of the Coastal Gulf of Maine Closure Area from October 1 through November 30, 2012, to February 1 through March 31, 2013.
        Identifying a Need for Modifications

        As noted above, the target bycatch rates are based on the number of observed harbor porpoises caught per metric tons of fish landed between 1999 and 2007 within the areas subject to a consequence closure. Since the advent of sectors, the overall effort generally remained the same and the number of harbor porpoise caught actually decreased and is below PBR (Table 1). However, because fish landings also decreased, the observed bycatch rates increased above the closure area target bycatch rates resulting in the triggering of the closures. As stated previously, the bycatch rate trigger was intended to function such that the triggering of it meant that the overall bycatch of harbor porpoise was above PBR. Given the overall reductions in fish landings, however, this calculation no longer holds true.
        Preliminary data indicate that the annual 2010-2012 harbor porpoise bycatch estimates are below PBR and that the 5-year averages from 2011-2012 are also below PBR.

          Table 1—Recent Harbor Porpoise Population Abundance, PBR, and Bycatch Estimates

            Year
            2009 1

            2010 2

            2011 3

            2012 3

            Population Abundance (coefficient of variance)
            89,054 (CV = 0.47)

            79,883 (CV = 0.32)

            79,883 (CV = 0.32)

            79,883 (CV = 0.32)

            Potential Biological Removal
            701
            706
            706
            706

            Annual U.S. Gillnet Bycatch
            792
            644
            447
            249

            5-Year Average U.S. Gillnet Bycatch
            877
            786
            671
            630

            1 Waring et al. 2012.

            2 Waring et al. 2013.

            3 Presented as part of meeting materials during the May 2013 Team meeting.

        NMFS convened the Team for meetings to discuss potential amendments to the Plan in November 2012, February 2013, April 2013 (workgroup), May 2013, and June 2013. During those meetings the Team discussed the appropriateness of the consequence closure strategy and discussed potential replacement management measures.

        At the May 2013 meeting, the Team agreed that the consequence area target bycatch rates no longer accurately reflect compliant bycatch rates in New England. As described above, although the target bycatch rates for the consequence closure areas have been exceeded, the number of coastwide harbor porpoises caught has declined below the stock's PBR level and harbor porpoise stock abundance is stable. At the conclusion of the May 2013 meeting, the Team did not agree on whether a replacement was needed for the consequence strategy or what that replacement might be. However, a majority of the Team recommended eliminating the current consequence closure strategy from the Plan and continuing Team discussions on what other actions should be taken in lieu of the consequence closure to ensure compliance with the pinger requirements. The Team also recommended that NMFS modify § 229.32(f), Other Special Measures, of the Plan to require a consultation with the Team before action is taken to amend the Plan using this provision. Any input received by Team members would be considered before exercising the Other Special Measures provision of the Plan. These recommendations formed the basis of this proposed rule.
        At its June 2013 meeting, the Team continued discussions on what other actions should be taken to ensure compliance with pinger requirements. In particular, the Team discussed increasing enforcement efforts to ensure compliance with pinger requirements in New England. Based on the Team's recommendation, as a mechanism for increasing compliance with pinger requirements in New England, NMFS will examine data collected by fisheries observers regarding pingers on observed hauls, and will provide that data to NOAA's Office of Law Enforcement(OLE). To facilitate enforcement efforts, that data will include the time and area of fishing activity of observed gillnet vessels along with other relevant information, including vessel homeport, registration number etc. NMFS will work with OLE to evaluate any potential enforcement efforts, which may include at-sea operations in collaboration with state joint enforcement agreement partners and the U.S. Coast Guard as well as dockside activities. If as a result of these increased monitoring and enforcement efforts NMFS determines that bycatch is exceeding the PBR level, the Assistant Administrator (after consultation with the Team) may take action to address the situation.
        Moving forward, NMFS will continue working with the Team to consider what additional management measures may be necessary to ensure compliance with the pinger requirements. Thus far, NMFS and the Team have formed Monitoring and Enforcement Workgroups to facilitate these discussions.
        Classification
        The Office of Management and Budget (OMB) has determined that this action is not significant for the purposes of Executive Order 12866.
        All of the entities (fishing vessels) affected by this action are considered small entities under the SBA size standards for small fishing businesses. The fisheries affected by this proposed rule are the Northeast sink gillnet and Mid-Atlantic gillnet fisheries. The population of vessels that are affected by this proposed action includes commercial gillnet vessels fishing in state and federal waters from Maine to New York.
        The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. Economic impacts for this action were evaluated as part of the 2009 Final Environmental Assessment (EA) that supported the most recent Plan amendment published as a final rule on February 19, 2010 (75 FR 7383). Although changes to the fishery have occurred since the final rule, this analysis is used to illustrate the difference in economic impacts between the preferred action and the status quo. Although overall commercial landings have changed since 2009, the number of vessels and level of overall fishing effort have remained relatively constant. Therefore, NMFS believes that these data provide a basis for concluding that the proposed action, removing the consequence closures, will not have a significant impact on a substantial number of small entities.

        The 2009 EA estimated economic impacts of the preferred alternative (which was adopted in the final rule) before and after triggering the three consequence closure areas. The EA estimated that triggering the three closures (now the status quo) would impact 29.7% (290 vessels) of the total gillnet fleet. Revenues for the affected vessels were also estimated to be reduced by 2-28% ($2,600-$26,400) and 1-25% ($1,500-$15,300) for small (<40ft) and large (>40ft) vessels, respectively. By removing the regulations implementing these consequence closure areas from the Plan, the proposed action would prevent this loss of revenue from occurring. As a result, an initial regulatory flexibility analysis is not required and has not been prepared.
        References

          Waring GT, Josephson E, Maze-Foley K, Rosel, PE, editors. 2012. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments—2011. NOAA Tech Memo NMFS NE 221; 319 p.
          Waring GT, Josephson E, Maze-Foley K, Rosel, PE, editors. 2013. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments—2012. NOAA Tech Memo NMFS NE 223; 419 p.

          List of Subjects in 50 CFR Part 229
          Administrative practice and procedure, Confidential business information, Fisheries, Marine mammals, Reporting and recordkeeping requirements.

          Dated: August 21, 2013.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons stated in the preamble, 50 CFR part 229 is proposed to be amended as follows:

          PART 229—AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE MAMMAL PROTECTION ACT OF 1972

        1. The authority citation for 50 CFR part 229 continues to read as follows:

          Authority:
          16 U.S.C. 1361 et seq.

        2. In § 229.33, paragraphs (a)(2)(iii), (a)(3)(iii), (a)(4)(iii), (a)(5)(iii), (a)(6)(iii), and (d) are removed, and paragraph (f) is revised to read as follows:

          § 229.33
          Harbor Porpoise Take Reduction Plan Implementing Regulations—Gulf of Maine.

          (f) Other special measures. The Assistant Administrator may, after consultation with the Take Reduction Team, revise the requirements of this section through notification published in the Federal Register if:
          (1) NMFS determines that pinger operating effectiveness in the commercial fishery is inadequate to reduce bycatch below the stock's PBR level.
          (2) NMFS determines that the boundary or timing of a closed area is inappropriate, or that gear modifications (including pingers) are not reducing bycatch to below the PBR level.

      [FR Doc. 2013-20759 Filed 8-21-13; 4:15 pm]
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