        POSTAL REGULATORY COMMISSION
        39 CFR Chapter III
        [Docket No. PI2021-2; Order No. 5930]
        Public Inquiry

          AGENCY:
          Postal Regulatory Commission.

          ACTION:
          Advanced notice of proposed rulemaking.

          SUMMARY:
          The Commission seeks further input from the public about what regulations promulgated by the Commission may be necessary to carry out the requirements of agency law. This document informs the public of this proceeding, invites public comment, and takes other administrative steps.

          DATES:

            Comments are due: August 26, 2021.

          ADDRESSES:

          Submit comments electronically via the Commission's Filing Online system at http://www.prc.gov. Those who cannot submit comments electronically should contact the person identified in the FOR FURTHER INFORMATION CONTACT section by telephone for advice on filing alternatives.

          FOR FURTHER INFORMATION CONTACT:
          David A. Trissell, General Counsel, at 202-789-6820.

        SUPPLEMENTARY INFORMATION:
        Table of Contents

          I. Introduction
          II. Background
          III. Discussion
          IV. Comments
          V. Ordering Paragraphs

        I. Introduction
        In this docket, the Commission seeks further input from the public about what regulations promulgated by the Commission may be necessary to carry out the requirements of 39 U.S.C. 601. Section 601 describes instances when letters may be carried out of the mail, or when the letter monopoly does not apply to a mailpiece. In particular, the Commission seeks to determine whether regulations promulgated by the Commission are needed to carry out those statutory exemptions.
        II. Background

        The Postal Service has exclusive rights in the carriage and delivery of letters under certain circumstances. This letter monopoly is codified in the Private Express Statutes (PES), which are a group of civil and criminal statutes that make it unlawful for any entity other than the Postal Service to send or carry letters. See 18 U.S.C. 1693-1699; 39 U.S.C. 601-606.1

            1 Although these provisions of the U.S. Code are customarily referred to collectively as the “Private Express Statutes,” they do not all relate to private expresses or prohibit carriage of letters out of the mails.

        Section 601 provides specific instances (exceptions) where letters may be carried out of the mail (i.e., not subject to the letter monopoly). Section 601(a) sets forth the conditions under which a letter may be carried out of the mail, which include requiring that the letter be enclosed in an envelope, that the proper amount of postage is affixed to the envelope, and that the postage is canceled. 39 U.S.C. 601(a).

        Section 601(b) provides additional exceptions such that the letter monopoly does not apply to letters charged more than six times the current rate for the first ounce of a Single-Piece First Class Letter or to letters weighing more than 12.5 ounces. See 39 U.S.C. 601(b)(1), (b)(2). The “grandfather clause” in Section 601(b)(3) references exceptions from prior Postal Service regulations that permitted private carriage as in effect on July 1, 2005. 39 U.S.C. 601(b)(3); see also 39 CFR 310.1 and 39 CFR 320.2-320.8 (2005).
        Section 601(c), which is the subject of this proceeding, directs the Commission (rather than the Postal Service) to promulgate any regulations necessary to carry out this section. 39 U.S.C. 601(c). This Public Inquiry seeks to answer how the Commission shall meet this statutory requirement.
        Prior to the Postal Accountability and Enhancement Act (PAEA) of 2006, the Postal Service issued regulations that purported to suspend the PES.2
           The PAEA included the term “purport” to describe the Postal Service's efforts to suspend the PES, reflecting some disagreement between the Postal Service and policymakers about the Postal Service's authority to promulgate such regulations prior to the PAEA.3

           Post-PAEA, the law clearly cedes such authority to the Commission. These regulations defined the term “letter” as “a message directed to a specific person or address and recorded in or on a tangible object,” subject to several provisions. 39 CFR 310.1(a) (2005). The regulations also described several statutory exceptions to the letter monopoly, such as when the letter accompanies and relates to cargo or when a special messenger is used. See 39 CFR 310.3 (2005). In addition, the regulations purported to establish administrative suspensions of the PES (39 CFR 310.1(a)(7) n.1, 320 (2005)), including suspensions for certain data processing materials or for extremely urgent letters. See 39 CFR 320.2, 320.6 (2005).

            2 See Postal Accountability and Enhancement Act, Public Law 109-435, 120 Stat. 3198 (2006); see also 39 CFR 310, 320 (2005).

            3 See H.R. Rep. No. 109-66, 109th Cong., 1st Sess., pt. 1, at 58 (2005) (H.R. Rep. No. 109-66).

        These regulations were originally promulgated by the Postal Service in 1974 and were amended several times prior to enactment of the PAEA.4
           In 2003, the President's Commission on the United States Postal Service recommended that the scope of the letter monopoly should be clarified and periodically reviewed by a Postal Regulatory Board.5
           In 2006, Congress passed the PAEA, which, inter alia, added new price and weight limits to the postal monopoly, repealed the Postal Service's purported authority to adopt administrative suspension of the monopoly, and repealed the Postal Service's authority to implement provisions of the criminal code defining the scope of the monopoly.6

            4 See Comprehensive Standards for Permissible Private Carriage, 39 FR 33211 (Sept. 16, 1974).

            5 Report of the President's Commission on the United States Postal Service, Embracing the Future: Making the Tough Choices to Preserve Universal Mail Service, July 31, 2003, at 71 (President's Commission). The President's Commission recommended “transforming the narrowly focused Postal Rate Commission [ ] into an independent Postal Regulatory Board.” Id. at XIII.

            6 See H.R. Rep. No. 109-66 at 57. Congress stated that “the bill clarifies the scope of the statutory monopoly that historically has been defined solely by the [Postal Service].” Id. at 58.

        In addition to adding price and weight limits as exceptions (Sections 601(b)(1), (b)(2)), Congress also added a “grandfather clause” in Section 601(b)(3) to authorize the continuation of private activities that the Postal Service had purportedly permitted by regulations to be carried out of the mail. The House Report on the PAEA explains that this paragraph protects mailers and private carriers who had relied upon the regulations adopted as of the date of the bill. See H.R. Rep. No. 109-66 at 58. Congress also eliminated the Postal Service's authority to adopt any regulations creating exceptions or defining the scope of the postal monopoly. See 39 U.S.C. 401(2), 404(a)(1), 601. Congress instead gave the Commission the authority to promulgate “[a]ny regulations necessary to carry out this section [601].” 7
           To date, the Commission has not promulgated any regulations pursuant to Section 601(c).

            7 39 U.S.C. 601(c). See Docket Nos. MC2012-14 and R2012-8, Order Approving Addition of Valassis Direct Mail, Inc. Negotiated Service Agreement to the Market Dominant Product List, August 23, 2012, at 6-7 (Order No. 1448) (citing Section 601(c) and stating that the Postal Service no longer has authority to issue regulations interpreting or defining the postal monopoly); see also Docket No. MC2012-13, Order Conditionally Granting Request to Transfer Parcel Post to the Competitive Product List, July 20, 2012, at 6-7 (Order No. 1411) (“As a result of the PAEA, the Postal Service no longer has authority to issue regulations interpreting or defining the postal monopoly. The Commission now has the authority to promulgate such regulations.”). Order No. 1411 at 7 n.13.

        In Docket No. RM2020-4, the Commission issued an advance notice of proposed rulemaking to seek input from the public about what regulations promulgated by the Commission may be necessary to carry out the requirements of 39 U.S.C. 601.8
           In particular, the Commission sought comments on fourteen issues, such as whether the statutory requirements of Section 601 are clear and concise, whether any terms in the statute required further definition, and whether consumers and competitors can easily determine when a mailpiece is subject to monopoly protections. Order No. 5422 at 7-8.

            8 See Docket No. RM2020-4, Advance Notice of Proposed Rulemaking to Consider Regulations to Carry Out the Statutory Requirements of 39 U.S.C. 601, February 7, 2020 (Order No. 5422).

        Prior to the comment deadline, the Commission issued two Chairman's Information Requests, regarding certain Postal Service regulations.9
           In its response, the Postal Service explained that it had not issued regulations or other administrative directives in connection with Sections 601(b)(1) and (2) since the effective date of amended Section 601(b).10
           The Postal Service also provided information regarding alternative payment agreements pursuant to 39 CFR 310.2(b).11
           In addition, the Postal Service provided information regarding advisory opinions pursuant to 39 CFR 310.6. Docket No. RM2020-4, Response to CHIR No. 1, question 2.

            9 Docket No. RM2020-4, Chairman's Information Request No. 1, March 4, 2020 (Docket No. RM2020-4, CHIR No. 1); Docket No. RM2020-4, Chairman's Information Request No. 2, April 1, 2020 (Docket No. RM2020-4, CHIR No. 2).

            10 Docket No. RM2020-4, Responses of the United States Postal Service to Questions 1-3 of Chairman's Information Request No. 1, March 11, 2020, question 1 (Docket No. RM2020-4, Response to CHIR No. 1).

            11 Docket No. RM2020-4, Response to CHIR No. 1, question 3; see also Response of the United States Postal Service to Chairman's Information Request No. 2, April 3, 2020, question 1 (Docket No. RM2020-4, Response to CHIR No. 2).

        Comments were received from The Berkshire Company; Taxpayers Protection Alliance; American Consumer Institute Center for Citizen Research; United Parcel Service, Inc.; FedEx Corporation; Netflix, Inc.; Small Business & Entrepreneurship Council; the National Postal Policy Council and the National Association of Presort Mailers; the Association for Postal Commerce; the Postal Service; and the Public Representative.12
           Based on the comments received, the Commission found it necessary to gather more information from the public before promulgating regulations under Section 601 and therefore, that proceeding is held in abeyance until the conclusion of this inquiry.13

            12 Docket No. RM2020-4, Comments of The Berkshire Company in Response to Order No. 5442, April 6, 2020; Docket No. RM2020-4, Comments of Taxpayers Protection Alliance, April 6, 2020; Docket No. RM2020-4, Comments of American Consumer Institute Center for Citizen Research Regarding Docket No. RM2020-4 Submitted to the United States Postal Regulatory Commission, April 6, 2020; Docket No. RM2020-4, Comments of United Parcel Service, Inc. on Advance Notice of Proposed Rulemaking to Consider Regulations to Carry Out the Statutory Requirements of 39 U.S.C. 601, April 7, 2020; Docket No. RM2020-4, Comments of FedEx Corporation, April 7, 2020; Docket No. RM2020-4, Comments of Netflix, Inc., April 7, 2020; Docket No. RM2020-4, Comments of Small Business & Entrepreneurship Council, April 7, 2020; Docket No. RM2020-4, Comments of the National Postal Policy Council and the National Association of Presort Mailers, April 7, 2020; Docket No. RM2020-4, Comments of the Association for Postal Commerce, April 7, 2020; Docket No. RM2020-4, Comments of the United States Postal Service in Response to Order No. 5422, April 7, 2020; Docket No. RM2020-4, Public Representative Comments, April 7, 2020.

            13 Docket No. RM2020-4, Order Holding Rulemaking in Abeyance, July 2, 2021 (Order No. 5929).

        III. Discussion
        In this proceeding, the Commission seeks to focus its inquiry on the statutory exemptions in Sections 601(a) and (b), and what regulations under Section 601(c), if any, are needed to carry out those exemptions. In particular, the Commission limits this inquiry to two issues: (1) Whether Postal Service regulations administering current Sections 601(a), 601(b)(1), and 601(b)(2) should be adopted by the Commission; and (2) what private carrier services are within the scope of Section 601(b)(3).
        First, the Commission is interested in identifying Postal Service regulations that administer Sections 601(a), 601(b)(1), and 601(b)(2) and if the Commission should adopt them. Section 601(a) provides for the private carriage of letters when, among other things, the letter is in an envelope that is properly addressed, the proper amount of postage is affixed to the envelope, and the postage is canceled in ink by the sender. 39 U.S.C. 601(a). Sections 601(b)(1) and (b)(2) further provide that a letter must meet price and weight requirements in order to be carried out of the mail. 39 U.S.C. 601(b)(1), 601(b)(2).

        Prior to the PAEA, the Postal Service issued regulations concerning the restrictions on the private carriage of letters. Several of these regulations were modified and superseded by the adoption of the PAEA. For example, the PAEA supersedes a Postal Service regulation that allows private carriage if the amount paid is “at least three dollars or twice the applicable U.S. postage for First-Class Mail (including priority mail) whichever is greater.” 39 CFR 320.6(c). In addition, a Postal Service regulation closely tracks the language in Section 601(a) but also allows for alternative payment agreements in written agreements between customers and the Postal Service. 39 CFR 310.2(b). The Commission is specifically interested in whether certain Postal Service regulations implement the current statutory exemptions found in Sections 601(a), 601(b)(1), and 601(b)(2), and whether the Commission should adopt or revise these and other regulations to clarify the statutory exemptions.

        Second, the Commission is interested in identifying what private carrier services are within the scope of Section 601(b)(3). See 39 U.S.C. 601(b)(3). The “grandfather clause” in Section 601(b)(3) authorized the continuation of private activities that the Postal Service had purportedly permitted by regulations to be carried out of the mail. Specifically, it allows private carriage that is within the scope of specific purported suspensions to the letter monopoly. 39 CFR 310.1 (2005) included twelve putative exceptions to the definition of “letter” and/or purported suspensions of the letter monopoly. 39 CFR 320.2-8 (2005) provided seven additional purported suspensions of the PES, including for certain data processing materials, for certain letters of college and university organizations, and for certain international-ocean carrier-related documents. The Commission seeks comments on what services were “described by regulations of the United States Postal Service . . . that purport to permit private carriage by suspension of the operation of this section” as of July 1, 2005. See 39 U.S.C. 601(b)(3). Additionally, the Commission seeks suggestions regarding what regulations may be needed to enumerate in clear terms all instances where private carrier services are within the scope of Section 601(b)(3).
        For both issues, the goal of the Commission is to determine whether it is necessary to clarify the statutory exemptions regarding the letter monopoly. The Commission seeks information as to how best to resolve any ambiguities in the application of the exceptions. The Commission also inquires whether consolidating regulations and definitions under one section, rescinding redundant and/or conflicting sections, or standardizing the terminology used in the regulations would be helpful.
        IV. Comments
        The Commission invites interested persons to identify whether there are any Postal Service regulations that the Commission should adopt to carry out the requirements of Section 601 and if so, whether the Commission should revise those regulations. In addition, the Commission seeks comments that identify what private carrier services are within the scope of Section 601(b)(3) and whether regulations are needed to clearly enumerate those services. Commenters are encouraged to provide specific suggestions on revisions or recommend new regulations.
        The Commission recognizes that comments on these issues have been provided in Docket No. RM2020-4. However, given the length of time since those comments were received and the breadth of different topics covered by the previous advance notice of proposed rulemaking, the Commission finds it prudent to solicit updated comments to assist in focusing this proceeding on a few particular issues. Commenters who previously submitted comments in Docket No. RM2020-4 may provide updated comments in this proceeding. The Commission envisions that the comments provided in this proceeding will help inform any proposed rules that may be issued in Docket No. RM2020-4.

        Comments are due August 26, 2021. Material filed in this docket will be available for review on the Commission's website, http://www.prc.gov.

        Pursuant to 39 U.S.C. 505, Kenneth E. Richardson will serve as the officer of the Commission (Public Representative) to represent the interests of the general public in this docket.
        V. Ordering Paragraphs

          It is ordered:

        1. The Commission establishes Docket No. PI2021-2 for the purpose of considering potential regulations under 39 U.S.C. 601.
        2. Interested persons may submit written comments on potential regulations no later than August 26, 2021.
        3. Pursuant to 39 U.S.C. 505, Kenneth E. Richardson will serve as the officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.

        4. The Secretary shall arrange for publication of this Notice in the Federal Register.

          By the Commission.
          Erica A. Barker,
          Secretary.

      [FR Doc. 2021-14636 Filed 7-8-21; 8:45 am]
      BILLING CODE 7710-FW-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 051017269-5269-01; I.D. 100705C]
        RIN 0648-AT54
        Fisheries of the Exclusive Economic Zone Off Alaska; Cape Sarichef Research Restriction Area Opening for the Groundfish Fisheries of the Bering Sea and Aleutian Islands Management Area

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to open the Cape Sarichef Research Restriction Area in the Bering Sea and Aleutian Islands Management Area (BSAI) to directed fishing for groundfish using trawl, pot, and hook-and-line gear from March 15, 2006, through March 31, 2006. Because NMFS' Alaska Fisheries Science Center (AFSC) will not conduct research in this area in 2006, closure of the Cape Sarichef Research Restriction Area is not needed. This action is intended to relieve an unnecessary restriction on groundfish fisheries and allow the optimum utilization of fishery resources, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This proposed rule also would remove the regulations for the Cape Sarichef Research Restriction Area, as well as regulations for the Chiniak Gully Research Area because both research projects have ended.

          DATES:
          Comments on this proposed rule must be received by November 25, 2005.

          ADDRESSES:
          Send written comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Lori Durall. Comments may be submitted by:
          • Hand delivery: 709 West 9th Street, Room 420A, Juneau, AK.
          • E-mail: 0648-at54-Sarichef@noaa.gov. Include in the subject line the following document identifier: Cape Sarichef RIN 0648-AT54. E-mail comments, with or without attachments, are limited to 5 megabytes.
          • Webform at the Federal eRulemaking Portal: www.regulations.gov. Follow the instructions at that site for submitting comments.
          • Fax: 907-586-7557.
          • Mail: P.O. Box 21668, Juneau, AK 99802-1668.

          Copies of the regulatory impact review (RIR), prepared for this action are available from NMFS at the above address or from the NMFS Alaska Region website at www.fakr.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Becky Carls, 907-586-7228 or becky.carls@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The groundfish fisheries in the exclusive economic zone of the BSAI and Gulf of Alaska (GOA) are managed by NMFS under the Fishery Management Plans (FMPs) for Groundfish of the BSAI and Groundfish of the GOA. The FMPs were prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMPs appear at 50 CFR parts 600 and 679.
        Background and Need for Action
        In October 2002, the Council adopted a regulatory amendment to implement a seasonal closure to directed fishing for groundfish by vessels using trawl, pot, or hook-and-line gear in a portion of the waters off Cape Sarichef just north of Unimak Pass in the Aleutians (68 FR 11004, March 7, 2003). The purpose of that action was to support an AFSC research project testing the hypothesis that commercial trawl fishing imposed localized depletion on stocks of Pacific cod. The results of the research project had the potential to provide information on the impacts of fishing on Pacific cod stocks, and on Steller sea lion forage resources. That research was scheduled to occur in each of four consecutive years (2003 through 2006) between March 15 and March 31. The closure of this area to pot, hook-and-line, and trawl gear users is applicable through March 31, 2006.

        In June 2005, AFSC staff reported to the Council that their research results over the first three years were so unambiguous and consistent that they were ending the study one year earlier than originally planned. The results of the Cape Sarichef study are available on the Internet at www.afsc.noaa.gov/Quarterly/amj2005/divrptsREFM6.htm. Because the study would not be conducted in 2006, AFSC staff indicated that the special closure of the study area for March 15-31, 2006, would not be needed. The Council recommended and NMFS is proposing to remove the closure specified in § 679.22(a)(11). Maintaining the closure in 2006 would unnecessarily restrict the groundfish fisheries because no research will be conducted in 2006. Removing the 2006 trawl, pot, and hook-and-line gear closure would allow vessels participating in groundfish fisheries to harvest their total allowable catch amounts without the operational constraints imposed by the closure.
        In addition, this regulatory amendment includes a housekeeping measure that would remove regulations for the Chiniak Gully Research Area off Kodiak Island, which were applicable through December 31, 2004.
        Proposed Changes to Regulations
        In § 679.22, NMFS proposes to remove and reserve paragraphs (a)(11) and (b)(3). Figure 21 to part 679, which shows the Cape Sarichef Research Restriction Area, also would be removed and reserved.
        Classification
        NMFS has determined that the proposed rule is consistent with the FMPs and preliminarily determined that the rule is consistent with the Magnuson-Stevens Act and other applicable laws.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:

          The Initial Regulatory Flexibility Analysis (IRFA) prepared to support the original Cape Sarichef closure found that in the years 1998 to 2001, between 36 and 67 entities had operated annually in the State of Alaska statistical area (655430) that includes the Cape Sarichef closure area. Smaller numbers had fished in the two most recent years. Between 21 and 56 of these appear to be small entities under the criteria used by the SBA to identify small fishing entities (annual gross revenues less than or equal to $3.5 million). The IRFA noted that affected operations could include vessels fishing with trawl gear, hook-and-line, and pots, and could include both catcher vessels and catcher processors. No entities are affected by removing the Chiniak Gully regulations because that closure is no longer applicable, and removal of the obsolete references to it in the regulations would be merely a housekeeping amendment.

          The IRFA noted that the original closure action had the potential to adversely affect the revenues and costs of directly regulated small entities. Expected impacts were reported likely to accrue due to reduced catch per unit effort in alternative “open” fishing areas, and possible crowding externalities (e.g., gear conflicts or displacement). In addition, by forcing operations to fish in different geographic and temporal patterns than they would otherwise have voluntarily chosen, the closure might be associated with some increased operating costs (e.g., longer running times and distances between port and remaining open fishing grounds). This action would rescind a fishing restriction that would otherwise continue to impose costs, but yield no further scientific benefit which was the offsetting factor that led to the original closure. The other aspect of this action simply excises obsolete language from the regulations pertaining to a fishing area closure that is no longer applicable. Therefore, the proposed action would cause no adverse economic impacts on small entities.

          In general, the IRFA for the original Cape Sarichef research closure found that the four-year duration of the action that was contemplated at the time would be associated with a very small potential for adverse impacts on small entities. The current action removes any further potential burden (i.e., costs) associated with the Cape Sarichef closure, but does so for only one of the four years initially evaluated. Because the currently closed area is closer to the ports where catcher vessels deliver their harvests than are the likely alternative fishing grounds, lifting the Cape Sarichef restriction would reduce running times, thus saving both time and fuel.

          In retrospect, the costs of the four year program appear to have been small based on the supporting analyses for the present action. The cost savings from relieving the Cape Sarichef restriction would be expected to be about one-fourth (one year's worth) of the impact of the original action. Therefore, the presently proposed action is not expected to have a significant impact on any small entities. Likewise, revocation of obsolete language for a closure that is no longer applicable would impose no discernable impacts, positive or negative, on small entities. This action would not place small entities at a competitive disadvantage to large entities.

        Because this proposed rule has no significant economic impacts on a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared.

          List of Subjects in 50 CFR Part 679
          Alaska, Fisheries.

          Dated: October 20, 2005.
          James W. Balsiger,
          Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:

          PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

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

          Authority:
          16 U.S.C. 773 et seq.; 1540(f); 1801 et seq.; 1851 note; 3631 et seq.

          § 679.22
          [Amended]
          2. In § 679.22, remove and reserve paragraphs (a)(11) and (b)(3).

          PART 679—
          [AMENDED]
          3. In part 679, remove and reserve Figure 21 to Part 679—Cape Sarichef Research Restriction Area (Applicable through March 31, 2006).

      [FR Doc. 05-21385 Filed 10-25-05; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 226
        [Docket No. 010501108-2202-02, I.D. 040502B]
        Endangered and Threatened Species; Final Determination on a Petition to Designate Critical Habitat for the Bering Sea Stock of Bowhead Whales

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

          ACTION:
          Notice of determination.

          SUMMARY:

          NMFS received a petition on February 22, 2000, requesting that portions of the U.S. Beaufort and Chukchi Seas be designated as critical habitat for the Western Arctic stock  (which is also referred to as the Bering-Chukchi-Beaufort stock, among other names) of bowhead whales, Balaena mysticetus, under the Endangered Species Act (ESA).  Under the ESA, the designation of critical habitat for species listed prior to 1978 is discretionary.  NMFS is not proposing designation of critical habitat for this population of bowhead whales for the following reasons:  (1) the decline and reason for listing the species was overexploitation by commercial whaling, and habitat issues were not a factor in the decline; (2) there is no indication that habitat degradation is having any negative impact on the increasing population in the present; (3) the population is abundant and increasing; and (4) existing laws and practices adequately protect the species and its habitat.

          ADDRESSES:
          Requests for copies of this determination should be addressed to the Chief, Marine Mammal Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.

          FOR FURTHER INFORMATION CONTACT:
          Bradley Smith, Alaska Regional Office, NMFS, Anchorage, Alaska, (907) 271-5006; Michael Payne, Alaska Regional Office, NMFS, Juneau, AK, (907) 586-7236, or Thomas Eagle, Office of Protected Resources, NMFS, Silver Spring, MD, (301) 713-2322, ext. 105.

        SUPPLEMENTARY INFORMATION:
        Background

          Listing Under the ESA: Bowhead whales were listed as endangered under the Endangered Species Conservation Act, the predecessor  to the ESA, on June 2, 1970 (35 FR 8495; codified at 50 CFR 17.11).  The species was then listed as endangered under the ESA in 1973.  The principal cause of the decline of bowhead whales, which prompted its listing, was commercial whaling.  Factors related to habitat have not been identified as a factor in the decline of the species.  Critical habitat has not been designated previously for bowhead whales.

          Status and Distribution: Five stocks of bowhead whales occur in Arctic and subarctic waters of the northern hemisphere.  The Western Arctic stock of bowhead whales is the largest of these stocks, and occurs in the Bering, Chukchi, and Beaufort Seas.  This stock was reduced by commercial whaling in the late 19th and early 20th centuries from an estimated original population size of 10,400-23,000 whales to only several thousand whales by 1910.  The best available population estimate for this stock is 8,200 animals and is based upon a survey in 1996.  The annual rate of population increase is estimated to be 3.2 percent.  A comprehensive survey of the Western Arctic stock of bowhead whales was conducted in the spring of 2001 near Barrow, AK.  While the analyses from this survey are not yet completed, preliminary information indicates that their abundance has continued to increase.
        Bowhead whales are seasonal residents in the Chukchi and Beaufort Seas.  The summer habitat for this stock occurs primarily in Canadian waters off the McKenzie River Delta.  They migrate from west to east in spring, and return in fall.  Most of the stock is believed to winter in the central and western Bering Sea along the ice front and in irregular areas of open water within the ice called polynyas.
        Mating is believed to take place in late winter and spring, perhaps continuing through the spring migration.  Each year calving occurs as early as March and as late as August; however, most calving occurs from April through early June during the period of migration.

        Bowhead whales feed almost exclusively on zooplankton.  Bowhead whales feed in summer in the Canadian Beaufort Sea and the Amundsen Gulf area.  Foraging also occurs during the fall migration throughout the Alaskan Beaufort Sea.  Feeding locations may vary between years. The majority of whales harvested during fall at Barrow, AK, have food in their stomachs.  In September 1998 bowhead whales were observed feeding along the Alaskan coastline near and east of Kaktovik.  Most bowhead whales harvested at Kaktovik have food in their stomachs.  Studies in the eastern Beaufort Sea indicate that whales also forage over the inner continental shelf.  Local knowledge has also shown that the waters around the barrier islands along the Beaufort Sea coast are an important foraging area for bowhead whales.  Several sources of man-induced activities impact, or may impact, bowhead whale populations.  Bowhead whales are harvested by Alaskan Natives in the Beaufort, Bering, and Chukchi Seas.  Annual subsistence take levels averaged 37 whales per year from 1990-2000.  In addition to the subsistence harvest, other human activities may contribute to the total mortality.  Commercial fishing occurs in the Bering Sea and elsewhere throughout the range of this stock.  Interactions between bowhead whales and fishing gear is not thought to be common, however, bowhead whales with ropes caught in their baleen or around their peduncle, and with scarring caused by rope entanglement, have been reported from the animals taken in the subsistence harvests.  The North Slope Borough has also documented three confirmed ship strike injuries among 236 bowhead whales taken in the subsistence hunts.
        Noise in the marine environment is also increasing with increased industrialization of the Alaskan Arctic, and may effect these whales to an unknown degree.  However, there is insufficient evidence at this time to indicate any cumulative or long-term affect on bowhead whales as a result of anthropogenic noises in their Arctic environment. Further NMFS is unaware of any evidence that habitat alteration has had any impact on the recovery of this stock.

          The Petition: On February 22, 2000, the Center for Biological Diversity and the Marine Biodiversity Protection Center petitioned NMFS to designate critical habitat for the Western Arctic stock of bowhead whales.  The petition requested that the designation include waters of the Chukchi Sea east of 158 degrees W. Long. and the Beaufort Sea between Point Barrow, AK, and the Canadian border, from mean high tide to approximately 170km offshore.
        Critical habitat is defined in the ESA (16 U.S.C. 1532(5)) as the specific areas on which are found the physical or biological features (1) essential to the conservation of the species and (2) which may require special management considerations or protection.  The 1978 amendments to the ESA established the current criteria for designating critical habitat, which provide, “Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established...” (16 U.S.C. 1532(5)(B)). Therefore, designating critical habitat for species listed prior to 1978 is a discretionary action for NMFS.
        Under the Administrative Procedure Act, 5 U.S.C. 553(e) provides, “Each agency shall give an interested person the right to petition for the issuance, amendment or repeal of a rule.” NMFS regulations in 50 CFR 424.14(d) address petitions to designate critical habitat: “Upon receiving a petition to designate critical habitat... the Secretary shall promptly conduct a review in accordance with the Administrative Procedure Act (5 U.S.C. 553) and applicable Departmental regulations and take appropriate action.”   NMFS found that the petition contained substantial scientific information indicating that the petitioned action may be warranted and published a notice requesting comments on May 22, 2001 (66 FR 28141).
        Response to Comments
        NMFS received comments from the following organizations during the 90 day comment period: British Petroleum Exploration-Alaska, the Alaska Eskimo Whaling Commission (AEWC), the Inupiat Community of the Arctic Slope, LGL Ltd. Environmental Research Associated, the Alaska Oil and Gas Association, Phillips Petroleum-Alaska, Incorporated, the Minerals Management Service (MMS), and the Center for Biological Diversity.  NMFS also received comments on the petition from several individuals.  Following is a  summary of the comments received and NMFS‘ response.

          Comment 1:  Several commenters suggested that the petitioned action is not warranted for the following reasons: The U.S. Beaufort Sea is no more important to the bowhead whale than other areas throughout its range; the Bering/Chukchi stock of bowhead whales is large and increasing in number; loss of habitat is neither contributing to any decline in the bowhead whale population nor limiting their recovery; and existing regulations and management agreements provide adequate protection for this habitat.
        Other comments emphasized the growing abundance of the stock, the lack of impact to the whales or their habitat from development, and the significant array of existing laws and regulations which already protect the bowhead whale and its habitat.  They also said that any benefits to the bowhead by designation of critical habitat would be outweighed by economic costs.

          Response:  Few data exist describing the distribution and behavior of bowhead whales outside the Beaufort Sea.  It is known that bowhead whales migrate each fall into Bering Sea waters of the U.S. and off the Kamchatka Peninsula.  They are presumed to winter in the Bering Sea near the ice edge and within polynyas around St. Lawrence Island. The foraging habitat of bowhead whales appears to be highly dynamic, following changes in species composition of prey and oceanography.  Feeding is known to be the principal activity of bowhead whales in the Canadian Beaufort Sea off the McKenzie River Delta, and bowheads continue to feed during their fall migration into the U.S. Beaufort, as well as  during the spring migration.   Inupiat Eskimos have regularly reported whale feeding behavior in the U.S. Beaufort Sea.   The relative importance of foraging habitat within the U.S. Bering Sea to the bowhead whale is difficult to assess.  Stable-isotope research has indicated that the Bering Sea provides a substantial portion of the annual food requirements for these animals.  Feeding behavior has been observed also among bowhead whales seen off the Siberian coast in late fall.
        Breeding locations and periods are not precisely known, but are most likely to occur within the Bering Sea in winter or during spring migrations into the Chukchi and Beaufort Seas.  Calving is likely to occur in the months of April, May, and June.  This period also coincides with the spring migration.
        The loss or degradation of habitat does not appear to be limiting the population growth of bowhead whales at this time.  The Beaufort Sea contains large tracts of valuable mineral resources, particularly oil and gas deposits and, as a result, it has been extensively explored for the presence of oil and gas during the past few decades.  Both the State of Alaska and the U.S. Department of the Interior are conducting lease sales in the Beaufort Sea.  The Northstar Project began production in 2000 and is the first offshore oil production facility in the Beaufort Sea.  A second major offshore production facility, Liberty, will be developed in 2003.  Oil and gas exploration activities (seismic surveys and drilling) also occur in the Beaufort Sea.
        The National Outer Continental Shelf leasing program of the MMS will occur in only two areas during the 5-year planning period 2003-2007, the Gulf of Mexico and Alaska (including the U.S. Beaufort Sea).  The occurrence of the bowhead whale and the intensive exploratory and developmental activities of the oil and gas industry that occur in the habitat of the whale has generated significant amounts of attention for many years at every governmental level.  Noise in the marine environment is a major habitat issue with respect to offshore development and bowhead whales, and certain noise sources have been shown to cause behavioral changes in individual whales.  Current trends in this industry have been to further minimize or eliminate the introduction of any pollutants into the Beaufort Sea.  Protective measures such as spill contingency plans and prevention measures, wastewater treatment, shore-based disposal of garbage and drill cuttings, and re-injection of drilling muds and production waters have been implemented to protect the environment.

        There has been an increase in the underwater noise levels in the Beaufort Sea as a result of activities such as shipping, ice-breaking, dredging, construction, drilling, and geophysical exploration (seismic).  Monitoring studies in the nearshore Beaufort Sea during 1996-1998 demonstrated that nearly all bowhead whales avoid an area within 20 km of an active seismic source and avoidance or deflection by bowhead whales may begin at distances up to 35 km from the noise source.  Although NMFS is aware that increases in the levels of noise may potentially have an adverse impact on bowhead whales,  NMFS is unaware of any evidence that noise has altered the habitat to the point that it has had any significant impact on the recovery of this population.

          Comment 2:  One of the commenters stated that an assessment of economic impacts should be incorporated into our response to the petition.

          Response:  The ESA requires that, when designating an area as critical habitat, the Secretary of Commerce shall consider the probable economic and other impacts of the designation upon proposed or ongoing activities and may exclude areas from the designation based on the analysis.  Because NMFS is not proposing to designate critical habitat, NMFS is not required to conduct an analysis of the economic impacts.

          Comment 3:  One of the commenters stated that a National Environmental Policy Act (NEPA) document (e.g. an Environmental Assessment or an Environmental Impact Statement) is necessary to document and assess those impacts not otherwise accounted for in the ESA process of designating critical habitat.

          Response:  NMFS is not proposing to designate critical habitat at this time; therefore, NMFS will not be preparing a NEPA document.

          Comment 4:  Another commenter also stated that the designation of the Beaufort Sea as critical habitat for bowhead whales is not warranted because courts have found that NMFS is not required to designate critical habitat for species listed under the ESA prior to 1978, and that NMFS should avoid unnecessary or duplicative regulations.  The commenter noted that this population of bowhead whales is increasing in numbers despite subsistence harvest removals, and there is no evidence that efforts to conserve the population has been affected by a loss or degradation of habitat.

          Response:  NMFS agrees with the commenter's statement that he number of bowhead whales is increasing.  The current population abundance estimate for this population of bowhead whales is estimated at 8,200 individuals and it is increasing at a rate of 3.2 percent per year.  There is no indication that degradation of habitat is having any negative impact on the current population.  In addition, as provided in response to comment 1, the loss or degradation of habitat does not appear to be limiting the population growth of bowhead whales at this time.  NMFS recognizes that the ESA gives the Service discretion in designating critical habitat for species listed prior to the 1978 amendments and has taken into consideration this factor, as well as the others mentioned by the commenter, in making its determination on this petition.

          Comment 5:  Several commenters supported the designation of critical habitat for the Western Arctic population of bowhead whales.  They noted that bowhead whales may be present in the U.S. Beaufort Sea for up to 4 months during any given year, that calving occurs in these waters during the spring and open water seasons, and that the Beaufort Sea is known to whalers as an important bowhead whale feeding area during both spring and fall migrations.  The commenters stated that these features of the area are essential to the conservation of the bowhead whale.  They also stated that the Beaufort Sea is becoming increasingly developed, largely for oil and gas extraction and these actions have resulted in documented behavioral effects to bowhead whales.  They anticipate future adverse effects due to the continued development and the possibility of oil spills.  They further stated that the spring and fall migratory corridors, and waters landward, represent the minimum extent of critical habitat, and recommended that NMFS also consider a similar designation for the spring lead system of the Chukchi Sea.  Finally, the commenters stated that NMFS must prepare a recovery plan for the bowhead whale.
        Another commenter specifically mentioned the potential for impact from oil spills and nois e on these whales, and the potential adverse consequences to the Inupiat Eskimo culture.  They requested that NMFS honor tribal sovereignty by respecting their request to prohibit oil and gas development in the Beaufort Sea.

          Response:  NMFS is aware that bowheads use portions of the Beaufort Sea for calving, migration, and feeding, recognizes that these areas are important for bowhead whales, and understands that these areas are being used for energy exploration and development.  However,  NMFS maintains that these areas are protected adequately by existing laws and regulations and do not need additional special management consideration or protection under the ESA.
        NMFS reviewed the need for a recovery plan for the bowhead whale, and determined (Memorandum dated June 16, 1998) that a recovery plan was unnecessary due largely to the status of the stock and an agreement between NOAA and the AEWC to manage subsistence harvest of the population.  This agreement and the IWC’s Whaling Convention and Aboriginal Harvest Plan cover harvest management, research and enforcement.
        NMFS recognizes its responsibilities to consult on a government to government basis with the affected tribal entities of the North Slope in this matter and the importance of local knowledge in our discussions with tribal entities.  Much of the applied research associated with oil and gas activities is based on science developed through coordinated study planning, which supplements the scientific method with traditional knowledge and observations of the Inupiat Eskimos.  Research plans and reports are often subject to peer review, and Native participation is normally sought when conducting this research.

          Comment 6:  One commenter challenged the Petitioner’s statements as to the scope and adequacy of scientific research on the Western Arctic population of bowhead whales.  The commenter stated that much is known about these whales, and that research has been directed to those activities with the greatest potential to impact the population.  The commenter also stated that any assessment of this issue should consider that these bowhead whales encounter human interaction in other areas of their range; that members of the population spend most of their time outside of the U.S. Beaufort Sea, and that while feeding, sexual activity, and rearing occur in these waters, the U.S. Beaufort Sea is not the part of the bowhead’s range in which these activities are most common.

          Response:  NMFS agrees that much is now known regarding this population of bowhead whales, particularly in the U.S. Beaufort Sea.  NMFS considered the factors identified by the commenter in making its determination on this petition.

          Comment 7:  Another commenter stated that the Western Arctic population of bowhead whales has grown for many years, and may, in fact, now be considered recovered.  They recommended that NMFS delay its determination on this petition until the final reports from the 2001 whale census and the bowhead whale feeding study are completed.  The commenter further stated that a recovered stock obviates any need to designate critical habitat necessary for their recovery and conservation.  They note that Incidental Harassment Authorizations (IHAs)  issued under the MMPA by NMFS have indicated that offshore oil and gas activities could result in behavioral changes to whales that would result in no more than a negligible impact to the whales.  The commenter further stated that the IHA process has proven effective in protecting these whales from human-related activities in the petitioned area.  Finally, the commenter stated that NMFS must comply with Executive Order 13211 entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” by preparing a statement of energy effects which describes any actions which may have any adverse effects on energy supply.

          Response:  NMFS agrees that the Western Arctic population of bowhead whales is increasing.  The total visual count of 3,295 bowhead whales during the 2001 survey is encouraging, and provides some additional support that the stock  may be recovering.  Peer review of the results of the 2001 survey has not been completed; therefore, those results are still preliminary.
        The bowhead whale receives protection under both the ESA and the MMPA.  Both acts prohibit the unauthorized taking of a bowhead whale.  The IHA process is an effective tool in protecting the bowhead whale and, particularly, in mitigating the effects of human-induced noise in the marine environment on the whales.  Authorizations of small-take under the MMPA (usually in the form of an IHA) are routinely applied to any oil and gas activities in the Beaufort Sea which may adversely affect bowhead whales or their habitat.  The required conditions and monitoring attached to these authorizations focus on anthropogenic noise and are designed to minimize behavioral disruption to bowhead whales.
        Because NMFS is not proposing to designate critical habitat, compliance with Executive Order 13211 is not required.

          Comment 8:  This comment focused on a recent court decision (Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001)) as further support for the need to designate critical habitat for bowhead whales.  The court found that the definition of  “destruction or adverse modification” under 50 CFR 402.02 related to consultation under ESA section 7 is invalid.  Therefore, the court found that a decision not to designate critical habitat, which relied on the invalid definition, was in error.  The commenter stated that the results of the on-going bowhead whale feeding study, while desirable, are not necessary in any determination of critical habitat.  They reminded NMFS that oil activities can cause behavioral effects to bowhead whales, and that continued exploration and drilling off the coast of Alaska will exacerbate climate change (i.e., global warming).  They noted the failure of industry to demonstrate their capability to recover spilled oil, and pointed to the precautionary principle in guiding any determination on whether to designate critical habitat.

          Response:  NMFS agrees that the results of the feeding study are not essential to a determination of this issue and recognizes the potential adverse effects of offshore development to bowhead whales.  However, NMFS maintains that the combination of existing protections are adequate to protect this stock and its habitat and that the petitioned action is not necessary given existing management measures.
        NMFS recognizes the benefits of applying a precautionary approach when faced with uncertainties.  However,  the information available concerning the biology of the bowhead whale and the effects of oil exploration development on these animals, allow NMFS to develop a reasoned and informed approach to manage and conserve this population.  Many factors have the potential to adversely affect these whales; however,  this population has shown continued  growth even with annual subsistence removals and increased industrial activity within their range.  NMFS is satisfied that the management measures currently in place control the potential effects of these activities and others.

          Comment 9: Several other commenters supported the designation of critical habitat only if it can be certain not to impact subsistence hunting practices or harvest quotas.

          Response: NMFS appreciates the comment and recognizes that this would be an issue of concern to a number of constituents.  However,  given the reasons provided earlier in this notice NMFS is not proposing to designate critical habitat.  Therefore, concerns about possibly restricting subsistence hunting practices or harvest quotas do not apply.
        Determination on the Petition
        The biological and natural history information presented in the petition is largely factual and represents an adequate review of existing data.  The petition bases its recommendations for critical habitat designation on the following points: The petitioned area contains physical and biological features essential to the conservation of the bowhead whale because these animals migrate, calve, feed, and possibly breed in these waters; and the petitioned area may require special management considerations in view of various threats including oil and gas development, pollution, and vessel activity.
        In evaluating the petition, NMFS first considered the requirements of the ESA.  In this case, designating critical habitat for bowhead whales is discretionary because the species was listed under the ESA prior to 1978.  Consequently, NMFS considered the petition under provisions of the APA (5 U.S.C. 553(e)), which provide, among other things, that agencies must give interested persons the right to petition for the issuance of a rule.
        NMFS recognizes that this area is used by bowhead whales.  However, these areas,  especially the U.S. Beaufort Sea, do not require special management considerations or protection through the designation of critical habitat.   This area is currently managed through a combination of the ESA, the Marine Mammal Protection Act and the  Fish and Wildlife Coordination Act (FWCA).  In addition to managing the incidental taking of bowhead whales, the MMPA includes provisions that can be used to protect the habitat of certain marine mammals, including bowhead whales (e.g., 16 U.S.C. 1382(e)).
        Federal activities in the petitioned region generally concern offshore oil and gas exploration and development.  Under the ESA and the FWCA, NMFS consults with the Minerals Management Service, the Army Corps of Engineers (Corps), and the Environmental Protection Agency (EPA) regarding the effects of such development on the Outer Continental Shelf (OCS) or other waters through intensive consultation processes.  NMFS reviews actions permitted by the Corps and EPA and regularly conditions associated permits through its consultative role under the FWCA.

        Formal ESA consultation has occurred for every offshore development project on the OCS.  NMFS completed a comprehensive ESA Section 7 consultation in 2000 on the effects of the offshore oil and gas leasing and exploration on the bowhead whale.  The resulting biological opinion concluded that those actions were not likely to jeopardize the continued existence of the bowhead whale.  Although NMFS does not treat the criteria for evaluating the destruction or adverse modification of designated critical habitat and jeopardy as the same, these ESA consultations in conjunction with protective measures under the MMPA and FWCA provide the means to protect the habitat of this population of bowhead whales.
        All actions, including non-Federal activities, which may kill, injure, or harm a bowhead whale are in violation of Federal law unless specifically authorized.  NMFS routinely considers applications for authorizations under the MMPA for the incidental taking of bowhead whales by harassment, largely due to noise.  The authorization process for these permits is comprehensive, involving close coordination with affected subsistence users and Native governments, preparation of scientific monitoring studies, and peer-review of results.  Further, these authorizations require that an activity have no more than a negligible impact to the stock, and the activity cannot have an unmitigable adverse effect on the availability of the marine mammal to subsistence users.  These standards provide further assurance that the activities do not have significant consequence to bowhead whales and their habitat.
        Existing laws and practices provide the means to adequately protect the habitat of the bowhead whale within the U.S. Beaufort Sea.  They also provide a legal framework by which any future needs for such protection could be met.
        NMFS considered the known, anticipated or potential effects of development on bowhead whale habitat in the review of this petition.  NMFS has no data to indicate that the physical alteration of the Chukchi or Beaufort Seas has affected the conservation of bowhead whales.  In-water noise has increased with an increase in offshore development and vessel traffic.  However,  NMFS will continue to work with the permitting Federal agencies and with industry through the MMPA small-take authorization process to monitor the effect of noise on bowhead whales.  This monitoring is intended to identify changes in whale behavior and distribution.  As a result of the many informal and formal ESA section 7 consultations, as well as the other management measures and processes discussed, the provisions contained in authorizations of project activities during project planning have mitigated potential effects to the bowhead whales and their habitat.
        NMFS also has considered the status and health of the Western Arctic population of bowhead whales in making this determination.  The Western Arctic population of bowhead whales appears to be recovering and has demonstrated that it is capable of recovering from the effects of commercial whaling.  The current best estimate for the stock abundance is 8,200 animals with an estimated annual population growth rate of 3.2 percent.  While this 1996 estimate is rather dated, recent, preliminary information from the 2001 survey indicates that the abundance has continued to increase.  NMFS intends to initiate a formal ESA status review after peer review of the results of the 2001 survey.
        In making its determination on whether to designate critical habitat for bowhead whales, NMFS assessed the current status of the population,  all of the factors known to affect the habitat of bowhead whales, and whether existing management measures are adequate to protect that habitat.  Based on this assessment,  NMFS is exercising its discretion not to propose designation of critical habitat for this population of bowhead whales for the following reasons: (1) the decline and reason for listing the species was overexploitation by commercial whaling, and habitat issues were not a factor in the decline; (2) there is no indication that habitat degradation is having any negative impact on the increasing population in the present; (3) the population is abundant and increasing; and (4) existing laws and practices adequately protect the species and its habitat.
        NMFS will continue to monitor this stock and protect the bowhead whale and its habitat under existing authorities and agency actions, as described in this notice.  NMFS will continue to review the appropriateness of designating critical habitat during all subsequent reviews of the status of this species.  These reviews will also consider whether there is a need for any  additional management measures in order to conserve the Western Arctic stock of bowhead whales.

          Authority:
          16 U.S.C. 1513, et seq.

          Dated: August 26, 2002.
          William T. Hogarth,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 02-22259 Filed 8-29-02; 8:45 am]
      BILLING CODE  3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 040115020-4020-01; I.D. 010204B]
        RIN 0648-AR07
        Individual Fishing Quota (IFQ) Program for Pacific Halibut and Sablefish; Groundfish fisheries of the Exclusive Economic Zone (EEZ) off the coast of Alaska; Recordkeeping and Reporting

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

          ACTION:
          Proposed rule.

          SUMMARY:
          NMFS proposes to revise port codes (Tables 14a and 14b) used in data collection for the Federal groundfish fisheries in the EEZ off the coast of Alaska and the Individual Fishing Quota (IFQ) Program. This revision would remove unnecessary or potentially conflicting regulations, facilitate enforcement efforts, and standardize collection of port-of-landing information. The action is necessary to standardize collection and analysis of port information. This action is intended to meet the conservation and management requirements of the Northern Pacific Halibut Act of 1982 (Halibut Act) with respect to halibut and of the Magnuson-Stevens Fishery Conservation and Management Act, (Magnuson-Stevens Act) with respect to groundfish and to further the goals and objectives of the Alaska groundfish fishery management plans.

          DATES:
          Comments must be received by March 1, 2004.

          ADDRESSES:
          Comments may be mailed to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802 1668, Attn: Lori Durall. Hand delivery or courier delivery of comments may be sent to NMFS, 709 West 9th Street, Room 420, Juneau, AK 99801. Comments may also be sent via facsimile to 907 586 7557. As an agency pilot test for accepting comments electronically, the Alaska Region, NMFS, will accept e-mail comments on this proposed rule. The mailbox address for providing e-mail comments on this proposed rule is RPC-0648-AR07@noaa.gov.

          Copies of the Regulatory Impact Review (RIR) prepared for this proposed regulatory action are available from NMFS at Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802 1668, Attn: Lori Durall, or by calling the Alaska Region, NMFS, at (907) 586 7228. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS, Alaska Region, and by e-mail to David_Rostker@omb.eop.gov, or fax to (202) 395-7285.

          FOR FURTHER INFORMATION CONTACT:
          Patsy A. Bearden, 907-586-7008.

        SUPPLEMENTARY INFORMATION:
        NMFS manages the groundfish fisheries of the Gulf of Alaska (GOA) and the Bering Sea/Aleutian Islands Management Area (BSAI) in the exclusive economic zone (EEZ) according to the Fishery Management Plan for Groundfish of the Gulf of Alaska and the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMPs) prepared by the North Pacific Fishery Management Council (Council) and approved by the Secretary of Commerce (Secretary) under authority of the Magnuson-Stevens Act. The FMPs are implemented by regulations at 50 CFR part 679. NMFS manages the IFQ Halibut Program under the Northern Pacific Halibut Act of 1982 (Halibut Act); implementing regulations are at 50 CFR part 300.60 through 300.65. General provisions governing fishing by U.S. vessels in accordance with the FMPs appear at subpart H of 50 CFR part 600.
        Tables 14a and 14b to Part 679 provide lists of ports in Alaska, California, Oregon, Washington, and Canada at which IFQ landings and Federal groundfish landings may be made. Two distinct coding systems are presented. These two systems identify the same ports using different codes. The codes were developed separately, one at NMFS and the other at the State of Alaska Department of Fish and Game (ADF&G).
        The numerical codes identify ports where IFQ landings are made and are entered by participants when filing an IFQ prior notice of landing (PNOL) and when electronically reporting an IFQ landing (see 50 CFR part 679.5(l)). The alphabetical codes identify ports where groundfish landings are made. Alphabetical codes are entered by participants completing an ADF&G fish ticket and also by shoreside processor participants entering data into the NMFS' groundfish shoreside processor electronic logbook report (SPELR) (see 50 CFR part 679.5(c)).
        Tables 14a and 14b would be revised as follows: (1) numerical codes that are no longer used for IFQ landings and that do not have a corresponding alphabetical code would be removed and (2) numerical codes for ports that are geographically close enough to be reported as one port would be combined.
        By removing codes for ports that are not used by the fishing industry for IFQ landings, NMFS would create a more accurate list of viable port codes. This action also would reconcile port codes for both NMFS and ADF&G fishery documentation.
        The proposed revisions to Tables 14a and 14b are shown in the following table:

            Existing Port Information
            Port Name
            OLD Numerical Code

            OLD Alpha
              Code

            Proposed Port Information
            Action
            NEW Numerical Code

            NEW Alpha Code

            Anchor Point
            104
            none
            Remove 104
            none
            none

            Auke Bay
            108
            none
            Remove 108; combine into Juneau
            136
            JNU

            Baranof Warm Springs
            109
            none
            Remove 109
            none
            none

            Beaver Inlet
            110
            none
            Remove 110; combine Beaver Inlet into Dutch Harbor/ Unalaska
            119
            DUT

            Bellevue (Washington)
            701
            none
            Remove 701
            none
            none

            Blaine (Washington)
            none
            BLA
            Add 717
            717
            BLA

            Captains Bay
            112
            none
            Remove 112; combine Captains Bay into Dutch Harbor/ Unalaska
            119
            DUT

            Chinitna Bay
            114
            none
            Remove 114
            none
            none

            Douglas
            118
            none
            remove 118; combine into Juneau
            136
            JNU

            Edmonds (Washington)
            703
            none
            Remove 703
            none
            none

            Edna Bay
            121
            none
            Remove 121
            none
            none

            Fort Bragg(California)
            501
            none
            Remove 501
            none
            none

            Fox Island (Washington)
            706
            none
            Remove 706
            none
            none

            Hollis
            131
            none
            Remove 131
            none
            none

            Hooper Bay
            188
            none
            Remove 188
            none
            none

            Ikatan Bay
            135
            none
            Remove 135
            none
            none

            Ilwaco (Washington)
            707
            none
            Remove 707
            none
            none

            Kenai River
            140
            none
            Remove 140; combine Kenai River into Kenai
            139
            KEN

            Lincoln City (Oregon)
            602
            none
            Remove 602
            none
            none

            Mercer Island (Washington)
            709
            none
            Remove 709
            none
            none

            Nagai Island (Washington)
            710
            none
            Remove 710
            none
            none

            Point Baker
            157
            none
            Remove 157
            none
            none

            Port Angeles (Washington)
            711
            none
            Remove 711
            none
            none

            Port Edward (CANADA)
            800
            none
            Remove 800; combine Port Edward into Prince Rupert
            802
            PRU

            Port Hardy (CANADA)
            801
            none
            Remove 801
            none
            none

            Port Orchard (Washington)
            712
            none
            Remove 712
            none
            none

            Port Townsend (Washington)
            713
            none
            Remove 713
            none
            none

            Portage Bay
            162
            none
            Remove 162
            none
            none

            Rainier (Washington)
            714
            none
            Remove 714
            none
            none

            Resurrection Bay
            163
            none
            Remove 163
            none
            none

            St. Lawrence
            171
            none
            Remove 171
            none
            none

            Tee Harbor
            173
            none
            Remove 173; combinr into Juneau
            136
            JNU

            Thorne Bay
            175
            none
            Remove 175
            none
            none

            Ugadaga Bay
            179
            none
            Remove 179
            none
            none

            Vancouver (CANADA)
            803
            none
            Remove 803
            none
            none

            West Anchor Cove
            182
            none
            Remove 182
            none
            none

        The need, justification, and economic impacts for the actions in this proposed rule, as well as impacts of the alternatives considered, were analyzed in the RIR prepared for this action (see ADDRESSES). A summary appears below.
        Prior notice of landing. The objective of the PNOL is to provide the International Pacific Halibut Commission (IPHC) monitoring personnel and NOAA Fisheries Office for Law Enforcement (OLE) personnel advance notice of vessel IFQ landings. Prior to making an IFQ landing, the operator of any vessel intending to make a landing of IFQ halibut, CDQ halibut, or IFQ sablefish must submit a PNOL to OLE. The PNOL allows OLE time to scan the IFQ database to verify the vessel and quota share (QS) information and to schedule monitoring personnel to observe the offload. The PNOL is submitted to OLE, Juneau, AK by toll-free telephone or the marine operator, unless an administrative waiver is granted by a clearing officer. Regulations at 50 CFR part 679 authorize exemptions from submittal of the PNOL for fishermen landing less than 500 lb of halibut incidentally with legal landings of lingcod harvested with dinglebar gear or legal landings of salmon. A landing completed without a PNOL would be investigated by OLE. An estimated 1,042 catcher vessels annually submit a PNOL resulting in an estimated annual total personnel cost of $52,100. The proposed action does not increase or decrease these costs because only the codes are changing, not the procedure.
        The IFQ cardholder must initiate a landing report of IFQ sablefish or IFQ halibut and a CDQ halibut cardholder must submit a landing report of CDQ halibut landed upon arrival at the dock. An estimated 1,042 catcher vessels annually submit an IFQ landing report resulting in an estimated annual total personnel cost of $117,225 and estimated annual total miscellaneous cost of $93,780. The proposed action does not increase or decrease these costs because only the codes are changing, not the procedure.
        Classification
        At this time, NMFS has not determined whether the amendment that this proposed rule would implement is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        The Chief Counsel for Regulation of the Department of Commerce 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. This proposed rule would have no effect on any small entities because there is no effect on fishing activity. It does not impose any financial obligations on small entities. As a result, an initial regulatory flexibility analysis was not prepared. Vessel operators would be required to use the new, consolidated list of port codes when they file PNOL reports. However, the impact of this requirement would be to shorten the list of port codes in Tables 14a and 14b used in landings data collection for the Federal groundfish fisheries in the EEZ off the coast of Alaska and in the IFQ Program and would make it easier to use these tables. This action would not change reporting requirements and would remove unnecessary or potentially conflicting regulations.
        This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by OMB. Under control number 0648-0272, public reporting burden for the PNOL is estimated to average 12 minutes per response; for the IFQ landing report, estimated 18 minutes per response. Under control number 0648-0401, public reporting burden for the Shoreside Processor Electronic Logbook Report (SPELR) is estimated 30 minutes per response.

        These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSEES) and by e-mail to David_Rostker@omb.eop.gov, or fax to (202) 395-7285.
        Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
        This proposed rule does not duplicate, overlap, or conflict with other Federal regulations.

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

          Dated: January 23, 2004.
          Rebecca Lent,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:

          PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

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

          Authority:
          16 U.S.C. 773 et seq., 1801 et seq.; 3631 et seq.; Title II of Division C, Pub. L. 105-277; Sec 3027, Pub. L. 106-31; 113 Stat. 57; 16 U.S.C. 1540(f); and Sec. 209, Pub. L. 106-554.

        Table 14 to Part 679 [Amended]
        2. Tables 14a and 14b to Part 679 are revised as follows:
        BILLING CODE 3510-22-S

          EP29JA04.000

          EP29JA04.001

          EP29JA04.002

      [FR Doc. 04-1938 Filed 1-27-04; 8:45 am]
      BILLING CODE 3510-22-C


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [FWS-R2-ES-2008-0031; 92220-1113-0000-C3]
        RIN 1018-AU68
        Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Rio Grande Silvery Minnow in the Big Bend Reach of the Rio Grande in Texas

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; notice of availability of draft environmental assessment; reopening of public comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the proposed rule and draft environmental assessment regarding our proposal to establish a nonessential experimental population of Rio Grande silvery minnow (Hybognathus amarus), a Federally listed endangered fish, into its historic habitat in the Big Bend reach of the Rio Grande in Presidio, Brewster, and Terrell counties, Texas.
          Comments previously submitted on the proposed rule or draft EA need not be resubmitted as they have been incorporated into the public record and will be fully considered in preparation of the final rule and final environmental assessment.

          DATES:
          We will accept public comments received or postmarked on or before March 10, 2008.

          ADDRESSES:
          You may submit comments by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: RIN 1018-AU68; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

          We will not accept e-mail or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments Solicited section below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Adam Zerrenner, Field Supervisor, Austin Ecological Services Field Office, 10711 Burnet Road, Suite 200, Austin, TX 78758; telephone 512/490-0057; facsimile 512/490-0974. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:

        Background and Additional Information

        We propose to reestablish the Rio Grande silvery minnow under section 10(j) of the Endangered Species Act of 1973, as amended (Act), and to classify it as a nonessential experimental population (NEP) (72 FR 50918). On the Rio Grande, the geographic boundaries of the NEP would extend from Little Box Canyon downstream of Fort Quitman, Hudspeth County, Texas, through Big Bend National Park and the Rio Grande Wild and Scenic River, to Amistad Dam and the nearby railroad bridge (Big Bend reach of the Rio Grande). On the Pecos River, the geographic boundaries of the NEP would extend from the river's confluence with Independence Creek to its confluence with the Rio Grande. This proposed reestablishment is part of the recovery actions that the Service, Federal and State agencies, and other partners are conducting throughout the species' historic range. The proposed rule provides a plan for establishing the NEP and provides for limited allowable legal taking of Rio Grande silvery minnows within the defined NEP area. A draft environmental assessment (EA) has been prepared on this proposed action and is available for comment (see ADDRESSES section below).

        For background and other information on the proposed rule and draft EA, refer to our notice published in the Federal Register on September 5, 2007 (72 FR 50918).
        Public Comments Solicited

        On September 5, 2007, we published a proposed rule, notice of availability of a draft environmental assessment, and notice of a public hearing regarding our proposal to establish a nonessential experimental population of the Rio Grande silvery minnow in the Big Bend reach of the Rio Grande in Texas (72 FR 50918). We accepted public comments regarding the proposed rule and draft environmental assessment for 60 days, ending November 5, 2007. During the comment period, we held a public hearing on October 10, 2007, in Alpine, Texas. In response to requests from interested parties, we are reopening the comment period for an additional 15 days (see DATES) to offer all interested parties an opportunity to submit data and information to be considered in developing a final rule and final EA.
        We want the final rule to be as effective as possible and the final EA on the proposed action to evaluate all potential issues associated with this action. Therefore, we invite the public, Tribal and government agencies, the scientific community, industry, and other interested parties to submit comments or recommendations not previously submitted concerning any aspect of the proposed rule and the draft EA. Comments should be as specific as possible.
        To issue a final rule to implement this proposed action and to determine whether to prepare a finding of no significant impact or an environmental impact statement, we will take into consideration all comments and any additional information we receive. Such communications may lead to a final rule that differs from this proposal.

        You may submit your comments and materials concerning the proposed rule and draft EA by one of the methods listed in the ADDRESSES section. We will not accept comments sent by e-mail or fax or to an address not listed in the ADDRESSES section. We will not accept anonymous comments; your comments must include your first and last name, city, State, country, and postal (zip) code. Finally, we will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked by the date specified in the DATES section. Comments must be submitted to http://www.regulations.gov before midnight (Eastern Standard Time) on the date specified in the DATES section.

        We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you provide personal identifying information in addition to the required items specified on the previous paragraph, such as your street address, phone number, or e-mail address, you may request at the top of your document we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

        Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Austin Ecological Services Field Office, 10711 Burnet Road, Suite 200, Austin, TX 78758; telephone 512/490-0057.

        You may obtain copies of the original proposed rule and the draft EA from the Austin Ecological Services Field Office at the address listed above or by visiting our Web site at http://www.fws.gov/southwest/es/AustinTexas/.
        Author
        The primary author of this notice is the staff of the U.S. Fish and Wildlife Service's Austin Ecological Services Field Office.
        Authority

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

           Dated: February 14, 2008.
          Kenneth Stansell,
          Acting Director,U.S. Fish and Wildlife Service.

      [FR Doc. E8-3385 Filed 2-21-08; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        RIN 0648-AV61

        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Spiny Lobster (Panulirus argus) Resources of the Caribbean, Gulf of Mexico, and South Atlantic; Minimum Conservation Standards for Imported Spiny Lobster

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

          ACTION:
          Announcement of availability of fishery management plan amendments; request for comments.

          SUMMARY:
          NMFS announces the availability of Amendment 4 to the Spiny Lobster Fishery Management Plan (FMP) of Puerto Rico and the U.S. Virgin Islands and Amendment 8 to the Joint Spiny Lobster FMP of the Gulf of Mexico and South Atlantic prepared by the Caribbean, South Atlantic, and Gulf of Mexico Fishery Management Councils (Councils). Amendments 4 and 8 would establish minimum conservation standards for imported spiny lobster. The intended effect of Amendments 4 and 8 is to eliminate the primary market for lobster that do not meet the minimum size limit or mean size at sexual maturity, which is expected to result in a reduction in the foreign harvest of these undersized animals and increase the spawning stock biomass and long-term potential yield within the pan-Caribbean spiny lobster fishery.

          DATES:
          Written comments must be received no later than 5 p.m., eastern time, on December 15, 2008.

          ADDRESSES:
          You may submit comments by any of the following methods:
          • E-mail: 0648-AV61.NOA@noaa.gov. Include in the subject line the following document identifier: 0648-AV61-NOA.
          • Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Mail: Jason Rueter, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
          • Fax: 727-824-5308, Attention: Jason Rueter.

          Copies of Amendments 4 and 8, which include an Environmental Impact Statement, a Regulatory Impact Review (RIR), and an Initial Regulatory Flexibility Analysis are available from NMFS Southeast Regional Office, 263 13th Avenue South, St Petersburg, FL 33701; e-mail: jason.rueter@noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Jason Rueter, 727-824-5305; fax 727-824-5308; e-mail: jason.rueter@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        The United States is a major importer of spiny lobster, importing over 88,000 tons (over 194 million lbs) over the past 10 years, worth an estimated $2.27 billion dollars. The United States imports over 90 percent of the spiny lobster harvested in South and Central America and the Caribbean countries. Some of the exporting countries have minimum size limits, but other countries do not. As a result, some of the imported product is legally harvested, but the majority of the undersized product is illegally harvested in the exporting countries. The major exporters to the United States are the Bahamas, Brazil, Honduras, and Nicaragua. All of these exporting countries have some form of minimum size requirement, but the requirements are variable and enforcement is severely lacking. Therefore, NOAA Fisheries Service in coordination with the Caribbean, South Atlantic, and Gulf of Mexico Fishery Management Councils is considering minimum conservation standards on imports to curtail the flow of imported undersized lobster harvested in foreign countries. The pan-Caribbean spiny lobster stock is considered to be fully exploited or over-exploited in much of its range. Therefore, additional restrictions on the harvest of animals below the mean size at sexual maturity (i.e., undersized animals) would greatly benefit the stock. Eliminating the primary market for undersized lobster is expected to result in a reduction in the foreign harvest of undersized animals and increase the spawning stock biomass and long-term potential yield within the pan-Caribbean spiny lobster fishery.

        A proposed rule that would implement the measures outlined in Amendments 4 and 8 has been received from the Councils. In accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS is evaluating the proposed rule to determine whether it is consistent with the FMPs, the Magnuson-Stevens Act, and other applicable law. If that determination is affirmative, NMFS will publish the proposed rule in the Federal Register for public review and comment.

        Comments received by December 15, 2008 whether specifically directed to the Amendments 4 and 8 or the proposed rule, will be considered by NMFS in its decision to approve, disapprove, or partially approve the amendments. Comments received after that date will not be considered by NMFS in this decision. All comments received by NMFS on the amendments 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: October 9, 2008.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. E8-24484 Filed 10-14-08; 8:45 am]
      BILLING CODE 3510-22-S