        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [FWS-R8-ES-2008-0014; 92210-1117-0000-B4]
        RIN 1018-AV05
        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Sierra Nevada Bighorn Sheep (Ovis canadensis californiana) and Proposed Taxonomic Revision

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period, notice of availability of draft economic analysis, and amended required determinations.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the proposed designation of critical habitat for the Sierra Nevada bighorn sheep (Ovis canadensis californiana) and proposed taxonomic revision under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of the draft economic analysis (DEA) of the proposed critical habitat designation, and an amended required determinations section of the proposal. The DEA provides information about the pre-designation costs and forecasts post-designation costs associated with conservation efforts for Sierra Nevada bighorn sheep. The DEA estimates potential future costs due to conservation efforts (baseline costs) to be approximately $26.7 million and costs associated solely with the designation of critical habitat (incremental costs) to be approximately $135,000 in undiscounted dollars over a 20-year period in areas proposed as critical habitat. The amended required determinations section provides our determination concerning compliance with applicable statutes and Executive Orders that we have deferred until the information from the DEA of the proposal was available. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed rule, the associated DEA, and the amended required determinations section. Comments submitted during the initial comment period from July 25 to September 24, 2007, on the proposed rule (72 FR 40956), or from October 9 to November 23, 2007, during the reopened comment period on the proposed rule (72 FR 57276) have been incorporated into the supporting for this rulemaking and need not be resubmitted. We will incorporate all comments into the supporting record as part of this comment period, and we will fully consider them when preparing our final determination.

          DATES:
          We will accept public comments until March 6, 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: FWS-R8-ES-2008-0014, 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 section below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Robert D. Williams, Field Supervisor, U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office, 1340 Financial Blvd., Suite 234, Reno, NV 89502-7147; telephone 775-861-6300; or facsimile 775-861-6301. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Public Comments

        We will accept written comments and information during this reopened comment period on our proposed critical habitat designation for the Sierra Nevada bighorn sheep and proposed taxonomic revision published in the Federal Register on July 25, 2007 (72 FR 40956), our draft economic analysis (DEA) of the proposed designation, and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

        (1) The reasons why we should or should not designate habitat as critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether the benefits of designation would outweigh threats to the species caused by the designation, such that the designation of critical habitat is prudent.
        (2) Specific information on:
        • The amount and distribution of Sierra Nevada bighorn sheep habitat,
        • What areas occupied at the time of listing that contain features essential to the conservation of the species we should include in the designation and why, and
        • What areas not occupied at the time of listing are essential for the conservation of the species and why.
        (3) Land-use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
        (4) Information on the extent to which any State and local environmental protection measures we reference in the DEA may have been adopted largely as a result of the listing of the Sierra Nevada bighorn sheep.
        (5) Information on whether the DEA identifies all State and local costs and benefits attributable to the proposed critical habitat designation, and information on any costs or benefits that we have overlooked.
        (6) Information on whether the DEA makes appropriate assumptions regarding current practices and any regulatory changes likely if we designate critical habitat.
        (7) Information on whether the DEA identifies all costs that could result from the designation and whether you agree with the analysis.
        (8) Information on whether the DEA correctly assesses the effect on regional costs associated with any land use controls that may result from the critical habitat designation.
        (9) Information on areas that the critical habitat designation could potentially impact to a disproportionate degree.
        (10) Economic data on the incremental costs of designating any particular area as critical habitat.
        (11) Information on any quantifiable economic benefits of the designation of critical habitat.
        (12) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities, and the benefits of including or excluding areas that exhibit these impacts.
        (13) Whether the benefit of excluding any particular area outweigh the benefits of including that area under section 4(b)(2) of the Act.
        (14) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

        Comments submitted during the initial comment period from July 25 to September 24, 2007, on the proposed rule (72 FR 40956), or from October 9 to November 23, 2007, during the reopened comment period on the proposed rule (72 FR 57276) have been incorporated into the supporting for this rulemaking and need not be resubmitted. We will incorporate them into the supporting record as part of this comment period, and we will fully consider them in preparation of our final determination. If you wish to comment, you may send your comments and materials concerning our proposed rule, DEA, or amended required determinations by one of the methods listed in the ADDRESSES section. Our final determination concerning critical habitat will take into consideration all written comments and any additional information we receive during the comment periods. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

        You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will no longer accept comments you send by e-mail or fax. Please note that we will consider comments we receive after the date specified in the DATES section in our final determination.

        Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that we will post your entire comment—including your personal identifying information—on http://www.regulations.gov. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

        Comments and materials we receive, as well as supporting documentation we used in preparation of the proposal to designate critical habitat, will be available for public inspection on http://www.regulations.gov, or by appointment during normal business hours, at the Nevada Fish and Wildlife Office, 1340 Financial Boulevard, Suite 234, Reno, NV 89502-7147; telephone 775-861-6300. You may obtain copies of the proposed critical habitat rule and the DEA by mail from the Nevada Fish and Wildlife Office or by visiting our Web site at http://www.fws.gov/nevada.

        Background

        On December 8, 2005, the Center for Biological Diversity filed a complaint based on the Service's failure to designate critical habitat for this subspecies within the time mandated under the Act (Center for Biological Diversity v. U.S. Fish and Wildlife Service,
          et al. Case No. 2:05-CB-02492-DFL-KJM). On June 6, 2006, the Service entered into a settlement agreement with the Center for Biological Diversity to submit a proposed critical habitat designation for this subspecies for publication in the Federal Register by July 17, 2007, and to submit a final determination on the proposed critical habitat designation for publication by July 17, 2008. On July 25, 2007, we published a proposed rule to designate critical habitat for the Sierra Nevada bighorn sheep (72 FR 40956), identifying a total of approximately 417,577 acres (168,992 hectares) of land in Tuolumne, Mono, Fresno, Inyo, and Tulare counties, California. In that proposal, we also proposed a taxonomic revision of the listed entity from a distinct population segment to a subspecies (Ovis Canadensis sierrae) based on recent published information.
        Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, in accordance with section 7(a)(2) of the Act.
        Under section 4(b)(2) of the Act, we may exclude an area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of including that particular area as critical habitat, unless failure to designate that specific area as critical habitat will result in the extinction of the species. We may exclude an area from designated critical habitat based on economic impacts, national security, or any other relevant impact.
        Draft Economic Analysis
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. Based on the July 25, 2007, proposed rule to designate critical habitat for the Sierra Nevada bighorn sheep (72 FR 40956), we have prepared a DEA of the proposed critical habitat designation.
        The intent of the DEA is to quantify the economic impacts of all potential conservation efforts for the Sierra Nevada bighorn sheep; some of these costs will likely be incurred regardless of whether we designate critical habitat. The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation (incremental impacts) and other conservation-related actions (baseline impacts) for this species over the next 20 years. It also considers past costs associated with conservation of the species from the time it was listed in 2000 (65 FR 20, January 3, 2000), until the year the proposed critical habitat rule was published (72 FR 40956, July 25, 2007).

        Activities associated with the conservation of the Sierra Nevada bighorn sheep are likely to primarily impact future domestic sheep grazing, recreation management, and habitat management. Pre-designation (2000 to 2007) impacts associated with species conservation activities in areas proposed for designation are estimated at $11.1 million in 2007 dollars. The DEA forecasts baseline economic impacts in the areas proposed for designation to be approximately $26.7 million (undiscounted dollars) over the next 20 years. The present value of these impacts, applying a 3 percent discount rate, is $20.4 million ($1,370,000 annualized), or $15.1 million ($1,430,000 annualized) using a 7 percent discount rate. The DEA forecasts incremental economic impacts to be approximately $135,000 (undiscounted) over the next 20 years. The present value of these impacts, applying a 3 percent discount rate, is $106,000 ($7,090 annualized), or $80,300 ($7,580 annualized) using a 7 percent discount rate. The cost estimates are based on the proposed designation of critical habitat published in the Federal Register on July 25, 2007 (72 FR 40956).
        The DEA considers the potential economic effects of actions relating to the conservation of the Sierra Nevada bighorn sheep, including costs associated with sections 4, 7, and 10 of the Act, as well as costs attributable to the designation of critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for the Sierra Nevada bighorn sheep in areas containing features essential to the conservation of the species. The DEA considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (such as lost economic opportunities associated with restrictions on land use).

        The DEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private business, and individuals. The DEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on water management and transportation projects, Federal lands, small entities, and the energy industry. Decision-makers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the DEA looks retrospectively at costs that have been incurred since the date Sierra Nevada bighorn sheep was listed as endangered (65 FR 20, January 3, 2000) and considers those costs that may occur in the 20 years following the designation of critical habitat. Forecasts of economic conditions and other factors beyond this point would be speculative.
        As stated earlier, we solicit data and comments from the public on the DEA, as well as on all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or its supporting documents to incorporate or address new information we receive during this comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided the exclusion will not result in the extinction of the species.
        Required Determinations—Amended
        In our July 25, 2007, proposed rule (72 FR 40956), we indicated that we would defer our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders was available in the DEA. We have now made use of the DEA to make these determinations. In this document we affirm the information in our proposed rule concerning Executive Order (E.O.) 13132; E.O. 12988; the Paperwork Reduction Act; the National Environmental Policy Act; and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments (59 FR 22951). However, based on the DEA data, we revise our required determinations concerning E.O. 12866; the Regulatory Flexibility Act, including the Small Business Regulatory Enforcement Fairness Act; E.O. 13211 (Energy, Supply, Distribution, and Use); E.O. 12630 (Takings); and the Unfunded Mandates Reform Act.
        Regulatory Planning and Review
        In accordance with Executive Order 12866 (E.O. 12866), we evaluate four parameters in determining whether a rule is significant. The four parameters that would result in a designation of significant under E.O. 12866 are:
        (a) The rule would have an annual economic effect of $100 million or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
        (b) The rule would create inconsistencies with other Federal agencies' actions.
        (c) The rule would materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
        (d) The rule would raise novel legal or policy issues.

        If OMB requests to informally review a rule designating critical habitat for a species, we consider that rule to raise novel legal and policy issues. Because no other Federal agencies designate critical habitat, the designation of critical habitat will not create inconsistencies with other agencies' actions. We use the economic analysis of the critical habitat designation to evaluate the potential effects related to the other parameters of E.O. 12866 and to make a determination as to whether the regulation may be significant under parameter (a) or (c) listed above.
        Based on the economic analysis of the critical habitat designation, we have determined that the designation of critical habitat for the Sierra Nevada bighorn sheep will not result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Based on previous critical habitat designations and the economic analysis, we believe this rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. OMB has requested to informally review this rule, and thus this action may raise novel legal or policy issues. In accordance with the provisions of E.O. 12866, this rule is considered significant.
        Further, E.O. 12866 directs Federal agencies issuing regulations to evaluate regulatory alternatives (OMB Circular A-4, September 17, 2003). Under Circular A-4, once an agency determines that a regulatory action is appropriate, the agency needs to consider alternative regulatory approaches. Since the designation of critical habitat is a statutory requirement under the Act, we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat.
        In developing our critical habitat designations, we consider economic impacts, impacts to national security, and other relevant impacts under section 4(b)(2) of the Act. Based on the discretion section 4(b)(2) allows, we may exclude any particular area from the critical habitat designation as long as the benefits of such exclusion outweigh the benefits of specifying the area as critical habitat, and as long as the exclusion will not result in the species' extinction. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or a combination, in a critical habitat designation constitutes our regulatory alternative analysis.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) (5 U.S.C. 802(2)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of our final rulemaking.

        According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.
        To determine if the proposed designation of critical habitat for the Sierra Nevada bighorn sheep would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as residential and commercial development. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat affects activities conducted, funded, or authorized by Federal agencies.
        If we finalize the proposed critical habitat designation, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
        In our DEA of the proposed critical habitat designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of the Sierra Nevada bighorn sheep and the proposed designation of critical habitat. The analysis is based on the estimated impacts associated with the proposed rulemaking as described in Chapters 2 through 4 and Appendix A of the DEA and evaluates the potential for economic impacts related to three categories: Grazing, recreation management, and habitat management.
        The DEA identified one domestic sheep grazing permittee operating in the Humboldt-Toiyabe National Forest, and two resorts and unidentified outdoor pack companies operating in the Humboldt-Toiyabe and the Inyo National Forests that qualify as small businesses that could be impacted due to their activities within areas proposed as critical habitat.
        For the one grazing permittee, the DEA estimates a cost of $13,000 associated with conservation activities for the Sierra Nevada bighorn sheep over the next 20 years at a 3 percent discounted rate ($875 annualized). For the two resorts and unidentified outdoor pack companies, the DEA estimates a cost of $2,730 associated with conservation activities for the Sierra Nevada bighorn sheep over the next 20 years at a 3 percent discounted rate ($183 annualized). Incremental impacts are expected only to occur in proposed critical habitat Units 1 and 2. This number of small business entities is not considered a substantial number.
        The U.S. Forest Service (USFS) is expected to incur incremental costs as a result of this designation, but it is not considered a small entity by the SBA.
        In summary, we have considered whether the proposed rule would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed rule will not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
        Executive Order 13211—Energy Supply, Distribution, and Use
        On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB's guidance for implementing this Executive Order outlines nine outcomes that may constitute “a significant adverse effect” when compared to no regulatory action. The DEA finds none of these criteria relevant to this analysis. Thus, based on the information in the DEA, we do not expect Sierra Nevada bighorn sheep conservation activities within proposed critical habitat to lead to energy-related impacts. As such, we do not expect the proposed designation of critical habitat to significantly affect energy supplies, distribution, or use, and a Statement of Energy Effects is not required.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
        In accordance with the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.), we make the following findings:
        (a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments,” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or Tribal governments “lack authority” to adjust accordingly. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except as (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”
        Critical habitat designation does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Designation of critical habitat may indirectly impact non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.

        (b) We do not believe that this rule would significantly or uniquely affect small governments. As discussed in the DEA, approximately 99 percent of the lands proposed as critical habitat are comprised of lands managed by the Federal government (e.g., USFS, National Park Service (NPS), and Bureau of Land Management (BLM)), which does not qualify as a small government. The Federal government is not considered a small governmental jurisdiction or entity by the Small Business Administration because it services a population exceeding the criteria for a “small entity.” Consequently, we do not believe that critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
        Executive Order 12630—Takings
        In accordance with E.O. 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for the Sierra Nevada bighorn sheep in a takings implications assessment. Our takings implications assessment concludes that this proposed designation of critical habitat for the Sierra Nevada bighorn sheep does not pose significant takings implications.
        References Cited

        A complete list of all references cited in the proposed rule is available on http://www.regulations.gov.

        Author

        The primary author of this notice is the staff of the Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
        Authority
        The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: January 24, 2008.
          David M. Verhey,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. E8-1805 Filed 2-4-08; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 223
        [Docket No. 210414-0079]
        RIN 0648-BK49
        Potential New Turtle Exclusion Device Requirements for Skimmer Trawl Vessels Less Than 40 Feet (12.2 Meters) in Length

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

          ACTION:
          Advance notice of proposed rulemaking.

          SUMMARY:
          NMFS hereby publishes an advance notice of proposed rulemaking to solicit comments on the possibility of modifying the turtle excluder device (TED) related requirements for skimmer trawl vessels less than 40 feet (12.2 meters) in length operating in the southeast U.S. shrimp fisheries. NMFS is requesting comments on this possible action.

          DATES:
          Information related to this document must be received by close of business on May 20, 2021.

          ADDRESSES:

          You may submit comments via the Federal e-rulemaking Portal at www.regulations.gov identified by docket number 210414-0079, or by mail to Michael Barnette, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701. 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 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 other 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).

          FOR FURTHER INFORMATION CONTACT:
          Michael Barnette, 727-551-5794, michael.barnette@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Background

        Under the Endangered Species Act (ESA) and its implementing regulations, taking (e.g., harassing, injuring or killing) sea turtles is prohibited, except as identified in 50 CFR 223.206, in compliance with the terms and conditions of a biological opinion issued under section 7 of the ESA, or in accordance with an incidental take permit issued under section 10 of the ESA. Incidental takes of threatened and endangered sea turtles during shrimp trawling are exempt from the taking prohibition of section 9 of the ESA so long as the conservation measures specified in the sea turtle conservation regulations (50 CFR 223.206; 50 CFR 224.104) are followed.
        On December 16, 2016 (81 FR 91097), NMFS published a proposed rule that would withdraw the tow time restriction and require TEDs designed to exclude small sea turtles in all skimmer trawls, pusher-head trawls, and wing nets (butterfly trawls) rigged for fishing, with the exception of vessels participating in the Biscayne Bay wing net fishery prosecuted in Miami-Dade County, Florida. NMFS ultimately published a final rule on December 20, 2019 (84 FR 70048), requiring skimmer trawl vessels 40 feet (12.2 meters) and greater in length to use TEDs designed to exclude small sea turtles in their nets effective on April 1, 2021. On March 31, 2021 (86 FR 16676), NMFS delayed the effective date of this final rule until August 1, 2021, due to safety and travel restrictions related to the COVID-19 pandemic that prevented necessary training and outreach for fishers. The changes between the proposed and final rules were due to potential economic impacts of the proposed rule, performance and safety issues with TED use on smaller vessels, and lack of testing data with gear types other than skimmer trawls. Analyses for all considered alternatives were included in a final environmental impact statement (FEIS), the notice of availability of which was published on November 15, 2019 (EIS No. 20190270; 84 FR 62530; 11/15/2019).
        NMFS has conducted additional testing that has produced TED designs that are effective on skimmer trawl vessels less than 40 feet (12.2 meters) in length. Therefore, NMFS is soliciting public comment on the potential expansion of TED requirements for skimmer trawl vessels less than 40 feet (12.2 meters) in length. NMFS is seeking input from the public on the feasibility of employing these TEDs on smaller length vessels, input on the associated costs of any new TED requirements, and other potential environmental impacts.
        Request for Comments
        NMFS requests comments on potential impacts from a potential expansion of TED requirements to other skimmer trawl vessels, as well as other initiatives to reduce fishery bycatch of threatened and endangered sea turtles in the southeast U.S. shrimp fisheries.

          Authority:
          16 U.S.C. 1531-1543.

          Dated: April 15, 2021.
          Samuel D. Rauch, III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2021-08108 Filed 4-19-21; 8:45 am]
      BILLING CODE 3510-22-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 63
        [OAR-2005-0085; FRL-7918-5]
        Petition to Remove 4,4′-Methylene Diphenyl Diisocyanate From the List of Hazardous Air Pollutants

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Notice of receipt of a complete petition to delist 4,4′-methylene diphenyl diisocyanate from the list of hazardous air pollutants.

          SUMMARY:
          The EPA is announcing the receipt of a complete petition from the Diisocyanates Panel of the American Chemistry Council (ACC) requesting EPA to remove the chemical 4,4′-methylene diphenyl diisocyanate (MDI)(Chemical Abstract Service No. 101-68-8) from the list of hazardous air pollutants (HAP) contained in section 112(b)(1) of the Clean Air Act (CAA). We have determined that the ACC's original petition dated December 23, 2002, and the addenda provided by the ACC through March 7, 2005, will support an assessment of the human health impacts associated with people living in the vicinity of facilities emitting MDI. In addition, the data submitted by the ACC will support an assessment of the environmental impacts associated with emissions of MDI to the ambient air and deposited onto soil or water. Consequently, we have concluded that ACC's petition is complete as of March 7, 2005, the date that the last addendum was received, and is ready for public comment and the technical review phase of our delisting procedure.
          The EPA invites the public to comment on the petition and to provide additional data, beyond that filed in the petition, on sources, emissions, exposure, health effects and environmental impacts associated with MDI that may be relevant to our technical review. The petition is available through Docket ID OAR-2005-0085.

          DATES:
          Written comments must be received on or before June 27, 2005.

          ADDRESSES:
          Submit your comments, identified by Docket ID OAR-2005-0085, by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
          • Agency Web site: http://www.epa.gov/edocket. EDOCKET, EPA's electronic public docket and comment system, is EPA's preferred method for receiving comments. Follow the on-line instructions for submitting comments.
          • Mail: Air and Radiation Docket and Information Center (Mail Code 6102T), Room B108, 1200 Pennsylvania Ave., NW., Washington, DC 20460].
          • Hand Delivery: Air and Radiation Docket and Information Center (Mail Code 6102T), Room B102, U.S. EPA, 1301 Constitution Avenue, NW., Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. OAR-2005-0085. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.epa.gov/edocket, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through EDOCKET, regulations.gov, or e-mail. The EPA EDOCKET and the Federal regulations.gov Web sites are “anonymous access” systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through EDOCKET or regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to the SUPPLEMENTARY INFORMATION section of this document.

            Docket: All documents in the docket are listed in the EDOCKET index at http://www.epa.gov/edocket. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other information, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in EDOCKET or in hard copy form at the Air and Radiation Docket, Docket ID No. 2005-0085, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket is (202) 566-1742.

          FOR FURTHER INFORMATION CONTACT:

          Dr. Scott Jenkins, Office of Air Quality Planning and Standards, Emission Standards Division (Mailcode C404-01), EPA, Research Triangle Park, NC 27711; telephone number: (919) 541-1167; fax number: (919) 541-0840; e-mail address: jenkins.scott@epa.gov.

        SUPPLEMENTARY INFORMATION:

        I. General Information
        A. What Should I Consider as I Prepare My Comments for EPA?
        1. Submitting CBI. Do not submit this information to EPA through EDOCKET, regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
        2. Tips for Preparing Your Comments. When submitting comments, remember to:

        • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
        • Follow directions—The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
        • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
        • Describe any assumptions and provide any technical information and/or data that you used.
        • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
        • Provide specific examples to illustrate your concerns, and suggest alternatives.
        • Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
        • Make sure to submit your comments by the comment period deadline identified.
        II. Petitions To Delist a Hazardous Air Pollutant
        A. What Is the List of Hazardous Air Pollutants?
        The list of HAP includes a wide variety of organic and inorganic substances released from large and small industrial operations, fossil fuel combustion, gasoline and diesel-powered vehicles, and many other sources. The HAP have been associated with a wide variety of adverse health effects, including cancer, neurological effects, reproductive effects, and developmental effects. The health effects associated with the various HAP may differ depending upon the toxicity of the individual HAP and the particular circumstances of exposure, such as the amount of chemical present, the length of time a person is exposed, and the stage in life of the person when the exposure occurs. The list of HAP, which includes MDI, can be found in section 112(b)(1) of the CAA. The HAP list provides the basis for research, regulation, and other related EPA activities under the CAA.
        B. What Is a Delisting Petition?
        A delisting petition is a formal request to EPA from an individual or group to remove a specific HAP from the HAP list. The removal of a HAP from the list eliminates it from consideration in EPA's program to promulgate national, technology-based emissions control standards. This technology-based standards program is commonly referred to as the maximum achievable control technology (MACT) program.
        Petitions to add or delete chemicals from the HAP list are allowed under section 112(b)(3)(A) of the CAA. The CAA specifies that any person may petition the Administrator to modify, by addition or deletion, the list of HAP. The EPA Administrator is required under section 112(b)(3)(A) of the CAA to either grant or deny a petition to delist a specific HAP within 18 months of the receipt of a complete petition.
        To delete a substance from the HAP list, CAA section 112(b)(3)(C) requires that the petitioner must provide adequate data on the health and environmental effects of the substance to determine that emissions, ambient concentrations, bio-accumulation or deposition of the substance may not reasonably be anticipated to cause any adverse effects to human health or adverse environmental effects.
        C. How Does EPA Review a Petition To Delist a HAP?

        The petition review process proceeds in two phases: A completeness determination and a technical review. During the completeness determination, we conduct a broad review of the petition to determine whether all of the necessary subject areas are addressed. In addition, we determine if adequate data, analyses, and evaluation are included for each subject area. Once the petition is determined to be complete, we place a notice of receipt of a complete petition in the Federal Register. That notice announces a public comment period on the petition and starts the technical review phase of our decision-making process. The technical review determines whether the petition has satisfied the necessary requirements and can support a decision to delist the HAP. All comments and data submitted during the public comment period are considered during the technical review.
        D. How Is the Decision To Delist a HAP Made?

        The decision to either grant or deny a petition is made after a comprehensive technical review of both the petition and the information received from the public to determine whether the petition satisfies the requirements of section 112(b)(3)(C) of the CAA. If the Administrator decides to grant a petition, a proposal will be published in the Federal Register announcing that decision and the opportunity for public comment. That notice would propose a modification of the HAP list and present the reasoning for doing so. However, if the Administrator decides to deny a petition, a notice setting forth an explanation of the reasons for denial will be published instead. A notice of denial constitutes final Agency action of nationwide scope and applicability and is subject to judicial review as provided in section 307(b) of the CAA.
        III. Completeness Determination and Request for Public Comment

        On December 23, 2002, we received a petition from the ACC's Diisocyanates Panel to remove MDI from the HAP list. Because of incomplete documentation of emissions information and modeling procedures, EPA determined that the petition was incomplete and requested that the petitioner provide additional information. The petitioner submitted an addendum on September 2, 2004, addressing EPA's concerns regarding the completeness of the petition. We identified a need for additional information supporting the MDI emissions estimates and the modeling performed. The petitioner submitted a second addendum dated February 28, 2005, to address these issues. We received one of the appendices to this addendum, in the form of a CD-ROM, on March 7, 2005.
        After reviewing the original petition and the addenda, we have determined that all of the necessary subject areas for a human health and environmental risk assessment have been addressed. Therefore, the petition is complete and ready for technical review. The ACC's last submission, received March 7, 2005, marked the start of the 18-month technical review and decision period. Today's notice initiates our comprehensive technical review of the petition and invites public comment on the substance of the petition as described above.
        IV. Description of Petition
        The original petition and addenda provided by the ACC contain the following information:
        • Background data on MDI including chemical properties, physical properties, production data, and use data;
        • Identification and location of facilities that emit MDI;
        • Estimated emission rates of MDI for each facility;
        • Toxicological data describing the human health and environmental effects of MDI;
        • Atmospheric dispersion modeling that provide estimates of MDI concentrations adjacent to facilities that emit it;
        • Environmental effects data characterizing the fate of MDI emitted to the atmosphere; and
        • Characterization of risks to human health and the environment due to emissions of MDI.

        The petitioners revised the estimates of MDI emissions contained in the 1996 National Emissions Inventory (NEI) using a method described by William Robert and colleagues in the article titled, “Developing a National Emissions Inventory for MDI,” (Environmental Manager, October, 2001). Many of these changes were incorporated into the 1999 NEI. The petitioners have continued to revise emissions estimates for MDI since the 1999 NEI. The petition presents their revised MDI emissions inventory which, according to the petitioners, represents an improvement over the 1999 NEI. These revisions resulted in a 400 percent increase in the number of facilities that emit MDI and a 75 percent decrease in national MDI emissions.
        Based on the chemical and physical properties of MDI, the petitioner claims that inhalation is the only significant route of human exposure to MDI emissions. Using their revised MDI emissions inventory and some site-specific data as input for air dispersion modeling, the petition develops estimates of the maximum annual and 24-hour concentrations anticipated to occur at the boundaries of facilities that emit MDI. The petition compares modeling output to available health data and concludes that, given the low concentrations anticipated to occur at facility boundaries, MDI emissions cannot reasonably be anticipated to cause chronic or acute adverse health impacts in people living near MEI-emitting facilities.
        The petition also claims that MDI is not expected to adversely impact the environment. Work supporting MDI's low environmental toxicity, lack of environmental persistence, and its low potential for bioaccumulation is presented.
        We invite the public to comment on the technical merits of this petition and to submit any information that may impact EPA's ultimate decision to grant or deny the petitioner's request.

          Dated: May 18, 2005.
          Robert Brenner,
          Acting Assistant Administrator for Air and Radiation.

      [FR Doc. 05-10579 Filed 5-25-05; 8:45 am]
      BILLING CODE 6560-50-P