        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 229
        [Docket No. 001011283-0283-01; I.D. 082200C]
        RIN 0648-AO30
        Taking of Marine Mammals Incidental to Commercial Fishing Operations; Harbor Porpoise Take Reduction Plan Regulations; Change to the List of Exempted Waters and Request for Comments

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

          ACTION:
           Notice of proposed rulemaking.

          SUMMARY:
          NMFS proposes to amend the Harbor Porpoise Take Reduction Plan (HPTRP) to include Delaware Bay, landward of the 72 COLREGS line (International Regulations for Preventing Collisions at Sea, 1972), in the list of exempted waters.  Members of the Mid-Atlantic Harbor Porpoise Take Reduction Team (MATRT) recommended by consensus that NMFS redefine the list of exempted waters because harbor porpoise stranding and observer data did not justify subjecting fishers in Delaware Bay to the HPTRP gear restrictions.  This proposed rule would exempt fishers operating in Delaware Bay from the HPTRP regulation.  NMFS also requests comments on a recommendation from the MATRT to change the definition of small mesh gillnet.

          DATES:

          Comments must be received at the appropriate address (see ADDRESSES) by November 27, 2000.

          ADDRESSES:
          Comments on this proposed rule should be sent to Chief, Marine Mammal Division, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.

          FOR FURTHER INFORMATION CONTACT:
           Gregg LaMontagne, NMFS, Northeast Region, 978-281-9291; Diane Borggaard, NMFS, Southeast Region, 727-570-5312; or Emily Hanson, NMFS Office of Protected Resources, 301-713-2322, ext. 101.

        SUPPLEMENTARY INFORMATION:
        On December 2, 1998, NMFS published a final rule (63 FR 66464) implementing the HPTRP.  Among other measures, the final rule identified those waters that are exempt from the HPTRP (50 CFR 229.34).

        Section 118(f)(9) of the Marine Mammal Protection Act (MMPA) allows NMFS to issue regulations to implement a take reduction plan or amendments to a take reduction plan that, among other things, restricts fishing by time or area.  In addition, NMFS’ regulations implementing the HPTRP allow the Assistant Administrator for Fisheries, NOAA to revise the requirements of the plan through notification published in the Federal Register if NMFS determines that the boundary of a closed area is not appropriate.
        The MATRT met on January 13 and 14, 2000, in Alexandria, Virginia. The MATRT recommended by consensus that the line defining the exempted waters of Delaware Bay be moved seaward from the published position of 39° 16.70'N 75° 14.6'W TO 39° 11.25'N 75° 23.90'W (southern point of Nantuxent Cove, NJ to the southern end of Kelly Island, Port Mahon, DE) and be redefined as a line from Cape May Canal to the Lewes Ferry Terminal.  The MATRT concluded that there was no compelling reason for the existing position of the line in Delaware Bay, compared to other large bays in the Mid-Atlantic region (e.g., Chesapeake Bay and Long Island Sound), which typically establish the exempted waters as landward of the mouth of an inlet or the 72 COLREGS line.  The MATRT believed that the existing line imposed unnecessary requirements on the Delaware Bay fishing community because harbor porpoise stranding data and observer data did not justify imposing HPTRP gear restrictions on the fishers in Delaware Bay.
        This proposed rule would redefine exempted waters for Delaware Bay to include all marine and tidal waters landward of the 72 COLREGS demarcation line, as depicted or noted on nautical charts published by NOAA (Coast Charts 1:80,000 scale), and as described in 33 CFR part 80. Using the COLREGS line is a slight deviation from the MATRT’s consensus recommendation.  The 72 COLREGS line was selected instead of the line recommended by the MATRT because the 72 COLREGS line is a well known and widely published line of demarcation. The actual difference between the COLREGS line and the MATRT recommended line is a seaward shift of approximately 1 nautical mile.
        NMFS used observer data and harbor porpoise stranding data for Delaware and New Jersey to analyze the MATRT’s consensus recommendation. Sea sampling observer data from inside the Delaware Bay for 1995 (23 observed hauls) and 1999 (12 observed hauls) were analyzed.  During these 35 observed hauls no harbor porpoise interactions occurred. There has been 1 documented take of a harbor porpoise in a shad gillnet as explained in the Environmental Assessment prepared on November 24, 1998.  Additional information was provided by a letter dated March 3, 2000, from the New Jersey Division of Fish and Wildlife, which stated that during 11 years of netting and tagging shad and striped bass in Delaware Bay there were no harbor porpoise interactions or sightings.

        Stranding data from 1992-1999 revealed a total of 21 stranded harbor porpoise, with 17 stranded on the Delaware side of Delaware Bay and four stranded on the New Jersey side of Delaware Bay.  The four New Jersey strandings exhibited no evidence of fishery interactions, although the animals were either emaciated or the cause of death could not be determined.  Six of the 17 Delaware strandings displayed evidence of fishery interactions.  The majority of the strandings occurred in the Lewes and Broadkill Beach areas near the mouth of Delaware Bay, suggesting that the strandings may have occurred as a result of interaction with dogfish and monkfish fishing activities outside of Delaware Bay, with the animals stranding inside the Bay after drifting with prevailing ocean currents or tides.
         Based on the analysis of observer and stranding data, no increase in harbor porpoise mortality is expected to occur as a result of moving the line delineating exempted waters seaward, and, therefore, NMFS concurs with the MATRT recommendation to include Delaware Bay in the exempted waters of the Mid-Atlantic component of the HPTRP.
        NMFS also requests comments on the consensus recommendation of the MATRT to change the definition of small mesh gillnet.  As defined in 50 CFR 229.2, small mesh gillnet is defined to mean a gillnet constructed with a mesh size of greater than 5 inches (12.7 cm) to less than 7 inches (17.78cm).  The MATRT recommended changing the definition of small mesh gillnet to mean a gillnet with a mesh size greater than 5.5 inches (13.97 cm) to less than 7 inches (17.78 cm) to provide regulatory relief to fishers utilizing the 5.0-5.5 mesh size gillnets throughout the range of the Massachusetts (MA) portion of the HPTRP.  The MATRT felt the bycatch data demonstrated very low harbor porpoise take rates for this mesh size range.  However, 1999-2000 sea sampling observer data from the Massachusetts reports 4 takes in 4.9-5.0 inch mesh size gillnet (reported by vessel captain) with shad as the primary species sought.  Given this information NMFS is particularly interested in comments regarding the impact of different mesh sizes on harbor porpoise and other marine mammals, the impact of different mesh size regulations on other species, including non-target fish, and the economic impact to the fishery.
        Classification
        This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.
        NMFS prepared an Environmental Assessment (EA) on the final rule (63 FR 231, Dec. 2, 1998) to implement the HPTRP.  This proposed action amends the HPTRP and NMFS prepared an Environmental Assessment for this proposed action and found that amending the HPTRP as described in this proposed action will not significantly affect the quality of the human environment.
        The Chief Counsel for Regulation for the Department of Commerce certified to the Chief Counsel for Advocacy for the Small Business Administration that this proposed rule would not have a significant economic impact on a substantial number of small entities as follows:

          The proposed rule would modify the Harbor Porpoise Take Reduction Plan (HPTRP) to redefine exempted waters for Delaware Bay to be all marine and tidal waters landward of the 72 COLREGS demarcation line.
          This proposed action would relieve restrictions on fishers operating in Delaware Bay.  At their most recent meeting, the Mid-Atlantic Harbor Porpoise Take Reduction Team (MATRT) concluded that harbor porpoise stranding and observer data did not justify imposing HPTRP gear restrictions on fishers operating in Delaware Bay.  The MATRT recommended by consensus that the line defining the exempted waters of Delaware Bay be moved seaward.  Based on NMFS’ analysis of stranding and observer data, no increase in harbor porpoise mortality is expected to occur as a result of moving the line, and therefore we propose to implement the MATRT’s consensus recommendation.
          The economic impacts of the proposed change is expected to be positive because it is lifting regulations on fishers operating in Delaware Bay.  State fisheries management personnel report that many of the gillnet fisheries operating in Delaware Bay that would benefit from the proposed change are conducted on vessels less than 50 feet in length.  These fisheries are typically seasonal, operate from local wharfs, and are not participants in federally managed fisheries.  All of the gillnet vessels analyzed in the Final Regulatory Flexibility Analysis (RFA) prepared on November 24, 1998, for the HPTRP qualified as small entities based on a threshold of $3 million in gross annual sales.  The RFA estimated that 176 vessels would be impacted by the regulations, either through area closures or gear modifications.
          New Jersey estimates that 28 fishermen qualified for the 2000 fishing year limited entry directed shad fishery inside Delaware Bay, and some of these fishers may be using small gillnet that is currently regulated by the HPTRP.  In 1998, Delaware issued 115 commercial gillnet permits in 1998 and it is reasonable to expect that some of these permit holders operate inside Delaware Bay  for some portion of the year and use gear subject to the HPTRP.  This proposed action would reduce the regulatory burden on those fishers operating in Delaware Bay and using gillnet regulated by the HPTRP.

        This proposed rule is not likely to adversely affect endangered or threatened species.
        This proposed rule does not change the determination that the HPTRP will be implemented in a manner that is consistent to the maximum extent practicable with the approved coastal management programs of the Atlantic states.
        This proposed rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 12612.
        This proposed rule is promulgated in compliance with all procedural requirements established by the Administrative Procedure Act.

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

          Dated: October 22, 2000.
          Penelope D. Dalton,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

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

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

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

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

          2.  In § 229.34, paragraph (a)(2) is revised to read as follows:

            § 229.34
            Harbor Porpoise Take Reduction Plan-Mid-Atlantic.
            (a)***
            (2) Exempted waters. All waters landward of the first bridge over any embayment, harbor, or inlet will be exempted.  The regulations in this section do not apply to waters landward of the following lines:
            New York
            40° 45.70' N 72° 45.15' W TO 40° 45.72' N 72° 45.30' W (Moriches Bay Inlet)
            40° 37.32' N 73° 18.40' W TO 40° 38.00' N 73° 18.56' W (Fire Island Inlet)
            40° 34.40' N 73° 34.55' W TO 40° 35.08' N 73° 35.22' W (Jones Inlet)
            New Jersey/Delaware
            39° 45.90' N 74° 05.90' W TO 39° 45.15' N 74° 06.20' W (Barnegat Inlet)
            39° 30.70' N 74° 16.70' W TO 39° 26.30' N 74° 19.75' W (Beach Haven to Brigantine Inlet)
            38° 56.20' N 74° 51.70' W TO 38° 56.20' N 74° 51.90' W (Cape May Inlet)
            All marine and tidal waters landward of the 72 COLREGS demarcation line (International Regulations for Preventing Collisions at Sea, 1972), as depicted or noted on nautical charts published by NOAA (Coast Charts 1:80,000 scale), and as described in 33 CFR part 80. (Delaware Bay)
            Maryland/Virginia
            38° 19.48' N 75° 05.10' W TO 38° 19.35' N 75° 05.25' W (Ocean City Inlet)
            37° 52.' N 75° 24.30' W TO 37° 11.90' N 75° 48.30' W (Chincoteague to Ship Shoal Inlet)
            37° 11.10' N 75° 49.30' W TO 37° 10.65' N 75° 49.60' W (Little Inlet)
            37° 07.00' N 75° 53.75' W TO 37° 05.30' N 75° 56.' W (Smith Island Inlet)
            North Carolina
            All marine and tidal waters landward of the 72 COLREGS demarcation line (International Regulations for Preventing Collisions at Sea, 1972), as depicted or noted on nautical charts published by NOAA (Coast Charts 1:80,000 scale), and as described in 33 CFR part 80.

      [FR Doc. 00-27696 Filed  10-26-00; 8:45 am]
      BILLING CODE:  3510-22 -S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 223 and 224
        [Docket No. 070402074-7074-01; I.D. No. 032207B]
        Endangered and Threatened Wildlife and Plants: 90-Day Finding for a Petition to List Black Abalone as Threatened or Endangered under the Endangered Species Act

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

          ACTION:
          Proposed rule; petition finding; request for information.

          SUMMARY:

          We, the NMFS, have received a petition to list the black abalone (Haliotis cracherodii) as a threatened or endangered species and to designate critical habitat under the Endangered Species Act (ESA). We find that the petition presents substantial scientific information indicating that the petitioned action may be warranted. This finding normally initiates a formal status review, but as described below in the Background section (see SUPPLEMENTARY INFORMATION), in this case, we had already initiated a formal status review on October 17, 2006. To ensure that the review is comprehensive, we are soliciting information pertaining to this species, any potential critical habitat, and recommendations of qualified individuals to peer review the agency's black abalone status review report.

          DATES:
          Information and comments on this action must be received by June 12, 2007.

          ADDRESSES:
          You may submit information and/or comments by any of the following methods:
          • E-Mail: BlackAbalone.Comments@noaa.gov

          • Mail: Submit written comments to Chief, Protected Resources Division, Southwest Region, National Marine Fisheries Service, 501 West Ocean Blvd., Suite 4200, Long Beach, CA, 90802-4213.
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

          An electronic version of the petition can be obtained via the Internet at: http://www.nmfs.noaa.gov or by submitting a request to the Assistant Regional Administrator, Protected Resources Division, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.

          FOR FURTHER INFORMATION CONTACT:
          Melissa Neuman, NMFS, Southwest Region (562) 980-4115 or Lisa Manning, NMFS, Office of Protected Resources (301) 713-1401.

        SUPPLEMENTARY INFORMATION:
        Background

        Black abalone was added to NMFS' Candidate Species list on June 23, 1999 (64 FR 33466), transferred to NMFS' Species of Concern list on April 15, 2004 (69 FR 19975), and has since been considered for listing on the List of Endangered and Threatened Species under the ESA. The species is currently listed on the International Union for the Conservation of Nature and Natural Resources (IUCN) Red List of Threatened Species (Smith et al. 2003). We initiated an informal ESA status review of black abalone on July 15, 2003, and conducted biological scoping workshops on January 29-30, 2004 and July 31-August 1, 2006. We formally announced initiation of a black abalone status review on October 17, 2006 (71 FR 61021), and at that time solicited information from the public on the following topics: (1) long-term trends in abundance throughout the species' range; (2) potential factors for the species' decline throughout its range (e.g., overharvesting, natural predation, disease, habitat loss etc.); (3) status of the black abalone fishery in Mexico; (4) implication of low population size for black abalone conservation; (5) factors important for black abalone management; (6) current estimate of population size and available habitat; (7) knowledge of various life history parameters (size/age at maturity, fecundity, length of larval stage, larval dispersal dynamics, etc.); and (8) projections on population growth or decline and risk of extinction. On December 27, 2006, we received a petition from the Center for Biological Diversity (CBD) requesting that we list black abalone as either an endangered or threatened species under the ESA and designate critical habitat for the species concurrently with any listing determination.
        Section 4(b)(3)(A) of the ESA (16 U.S.C. 1531 et seq.) requires that we make a finding as to whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate that the petitioned action may be warranted. Our joint NMFS/U.S. Fish and Wildlife Service ESA implementing regulations (50 CFR 424.14) define “substantial information” as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In determining whether substantial information exists for a petition to list a species, we consider several factors, including information submitted with and referenced in the petition and all other information readily available in our files. To the maximum extent practicable, this finding is to be made within 90 days of the receipt of the petition, and the finding is to be published promptly in the Federal Register. If we find that a petition presents substantial information indicating that the requested action may be warranted, section 4(b)(3)(B) of the ESA requires the Secretary of Commerce (Secretary) to conduct a status review of the species and make a finding as to whether the petitioned action is warranted within 1 year of the receipt of the petition.

        Analysis of Petition
        Natural History

        Black abalone is a marine mollusc and a member of the family Haliotidae and the genus Haliotis. There is some debate regarding the historic range of black abalone. Based on museum specimen records examined by Geiger (1999), black abalone ranged historically from Crescent City (Del Norte County, California) to Cabo San Lucas (Southern Baja California). Most experts agree that the current range of black abalone extends from Point Arena (Mendocino County, California) to Northern Baja California, but are rare north of San Francisco (Morris et al., 1980) and south of Punta Eugenia (P. Raimondi, pers. comm.). Of the seven species of abalone found in California (Geiger, 1999), black abalone is a relatively shallow water species and is most abundant in rocky intertidal habitat (Morris et al., 1980), although they do occur from the high intertidal zone to 6 m depth. Average black abalone shell length is approximately 115 mm (Ault, 1985), however, maximum shell length may exceed 200 mm (Morris et al., 1980). The epipodium (the circular fringe of skin around the foot) and tentacles are black and the underside of the foot is pearly white. The outer surface of the shell is dark blue to black, smooth and has 5-9 open respiratory pores with edges that are flush with the shell surface (Haaker et al., 1986).

        The vacillatory nature of rocky intertidal habitat dictates that black abalone tolerate a wide range of environmental conditions (e.g. temperature, salinity, dessication, and wave action). For example, water temperatures may range between 7-24 °C (45-75 °F) (Howorth, 1978) in rocky intertidal areas throughout their range. In the absence of anthropogenic influences (e.g., harvest and spread of disease (Friedman and Finley, 2003)), a combination of black abalone life history, ecology, and behavior and these widely ranging environmental variables is what controls the species' spatial distribution. Black abalone are often found in a clumped distribution, with smaller abalone (<90 mm) exhibiting cryptic behavior and tending to stay within the protective confines of crevices, under rocks, and in boulder fields (Blecha et al., 1992; Tissot, 1995; Ault, 1985). Individuals larger than 90 mm often occupy more exposed rocks and surge channels in areas where sea otters are absent, but tend to reside in cracks and crevices in areas where sea otters are present (Morris et al., 1980; Lowry and Pearse, 1973; Hines and Pearse, 1982; Blecha et al., 1992).

        Black abalone exhibit separate sexes and are thought to reach sexual maturity between 40-50 mm shell length in California. Sperm or eggs are broadcast into the water sometime between late spring and late summer (Webber and Giese, 1969; CDFG, 2005). This type of spawning strategy depends on densely aggregated adults to achieve the high gamete densities needed for successful fertilization (Davis, 1996). The free-swimming larval phase for this species may range from 5 to 14 days depending on water temperature (Ault, 1985). This relatively short dispersive phase combined with hydrodynamic conditions during the time of spawning may limit dispersal distances. Analysis of the genetic structure of black abalone populations on the central California coast indicates that these black abalone populations are composed predominantly of individuals that were spawned locally (Hamm and Burton, 2000). Patterns in recruitment of juveniles to central coastal populations provide additional evidence that black abalone larvae do not tend to travel very far along the coast and, therefore, populations are relatively closed (Raimondi et al., 2002). In Southern California, results of a drift card study at San Nicolas Island suggest that black abalone larvae are locally retained with occasional migrants dispersing over long distances (> 10 km; Chambers et al., 2006).

        Larval black abalone tend to settle into areas characterized by bare rock and coralline red algae (Douros, 1985; Miner et al., 2006). Once settled onto rocky substrata, black abalone juveniles consume rock-encrusting coralline algae and diatom and bacterial films (Haaker et al., 1986). Adult black abalone feed primarily on pieces of algae drifting with the surge or current, such as giant kelp, bull kelp, and feather boa kelp (Haaker et al., 1986). Growth rates can vary depending on food availability, water temperature, and other environmental factors (CDFG, 2005). Abalone are long-lived (30+ years) and it takes approximately 20 years for black abalone to reach their maximum length (Blecha et al., 1992). Black abalone are preyed upon by a wide variety of marine predators including sea stars, fishes, octopus, the southern sea otter, and striped shore crab.
        Abundance

        Historically, sea otter predation and hunting by Native Americans were two primary sources of mortality for large black abalone. The elimination or relocation of Native American coastal settlements during the 1700s and 1800s and sea otter (a primary predator on black abalone) hunting by Russian fur traders resulted in high densities (< 40 individuals per m2) of black abalone in many places throughout their range (Howorth, 1978; Douros, 1993; Richards and Davis, 1993). Chinese immigrants began harvesting abalone from dense intertidal beds in central and southern California and Baja California in the mid-1800s and annual harvest reached a peak of 1,814 metric tons (mt) in 1879 (Howorth, 1978; Rogers-Bennett et al., 2002). Commercial harvest was banned in the early 1900s, during which time black abalone populations expanded slightly. However, in 1968 commercial harvest of black abalone resumed. The commercial harvest was greatest around the islands off southern California, particularly San Miguel, San Clemente and San Nicolas Islands (California Department of Fish and Game (CDFG), unpublished data). The average annual harvest declined from 290 mt in the 1970s, with a peak occurring in 1973 (868 mt; Rogers-Bennett et al., 2002), to 175 mt in the 1980s, to 14 mt in the 1990s. By the mid-1980s overharvesting, as evidenced by declining trends in fishery-dependent data and eventual closure of the commercial fishery (B. Tissot, unpublished data), and possibly other factors such as pollution (Miller and Lawrenze-Miller, 1993), reduced southern California coastal populations of black abalone considerably. Remnant populations persisted primarily on offshore islands and inaccessible sections of the coast north of Santa Barbara. Commercial harvesting was prohibited again in 1993.

        In the mid- and late-1980s, black abalone on the Channel Islands suffered massive local die-offs (generally >90 percent losses) from a disease known as Withering Syndrome (WS) (Haaker et al., 1992; Richards and Davis, 1993; Lafferty and Kuris, 1993). The cause of WS is unknown, but has been attributed to a Rickettsiales-like pathogen (Friedman et al., 2000). The disease is manifested by severe weight loss, loss of appetite, followed by detachment from the substrate and eventual mortality (Tissot, 1991; Haaker et al., 1992; Steinbeck et al., 1992). There is also strong evidence that the intensity of mortality from this disease increases with increasing water temperature (Tissot, 1995; Steinbeck et al., 1992; Alstatt et al., 1996; Raimondi et al., 2002). Prior to 1992, the only mainland site where a WS-related die-off had been observed was in Diablo Cove, the site of the discharge for the Diablo Canyon Power Plant (Steinbeck et al., 1992). However, in 1992 a massive die-off began at a mainland site, Government Point, near Point Conception (Alstatt et al., 1996). Subsequent monitoring of sites along the central California coast has detected a pattern of mortality suggesting that WS is progressing northward up the coast, but at a variable rate (Altstatt et al., 1996; Raimondi et al., 2002; Miner et al., 2006).
        Fishery-independent data obtained from long-term monitoring studies (1975-present) were examined to detect trends in abundance from 32 sampling locations throughout California (B. Tissot, unpublished data). Percent changes in abundance were calculated by comparing mean densities prior to the onset of WS and after the onset of WS at each sampling location. Preliminary results suggest that black abalone have gone locally extinct or declined between 90-99 percent at 50 percent of the sampling locations and have declined between 80-89 percent at another 16 percent of the sampling locations. Thus, significant declines (>80 percent) have occurred at over 50 percent of the locations sampled in California (Brian Tissot, unpublished data).
        Although abundance data for black abalone populations in Mexico are scant, existing fishery-dependent data suggest declines similar to those exhibited in California. Based on the data published in Hobday and Tegner (2000), the catch of black abalone declined from a high of 28 mt in 1990, to <1 mt in 1998, an overall decline of >95 percent.
        Summation

        The principal cause of black abalone population decline in southern and central California has been attributed to over-harvesting (Karpov et al., 2000) and/or the onset of WS in southern California in the 1980s (Lafferty and Kuris, 1993) and the disease's northward progression. Black abalone populations have declined by over 99 percent (Brian Tissot, unpublished data) in southern California (except for San Nicolas and San Miguel Islands). In many locations recruitment rates are low, and in areas where remnant healthy populations are producing recruits, these recruits are retained locally and are not recolonizing historically populated areas only tens of kilometers away (Miller and Lawrenze-Miller, 1993; Raimondi et al., 2002; Miner et al., 2006). Miner et al. (2006) hypothesize that the causes of low (or no) recruitment at sites with low adult density include: (1) local adult densities too low for successful fertilization; (2) limited dispersal ability of larval abalone limiting the supply of larvae from healthy adjacent populations; (3) suitable larval settlement habitat overgrown in the absence of adult abalone; and (4) newly recruited juvenile abalone killed by WS before they can be observed and counted by researchers.
        Petition Finding
        Given documented declines in abundance within the range of the species and the potential negative effects of ongoing and future threats posed primarily by the northward spread of WS, as described in the petition and in the information in our files, we have determined that the petition presents substantial information and that listing black abalone under the ESA may be warranted. We have supported efforts to learn more about the factors that have contributed to the decline of this species and encouraged Federal agencies and other appropriate parties to conserve and protect surviving black abalone throughout its range from Fort Bragg, California to southern Baja California. Despite these efforts, including closure of the fishery in southern California in 1993, the species continues to decline along the mainland coast of southern California and the northern Channel Islands. In compliance with section 4(b)(3)(B) of the ESA, the Secretary will make his determination whether the petitioned action is warranted within 12 months from the date the petition was received (December 27, 2006) following completion of an ESA status review.
        Listing Factors and Basis for Determination
        Section 4(a)(1) of the ESA requires the Secretary to determine whether any species is a threatened or an endangered species because of any of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continuing existence. Listing determinations are based solely on the best available scientific and commercial data after taking into account any efforts being made by any state or foreign nation to protect the species.
        Information Solicited
        To ensure that the black abalone status review is complete and is based on the best available scientific and commercial data, we reiterate our previous solicitation for information on this species. We specifically request the following information: (1) long-term trends in abundance throughout the species' range; (2) potential factors for the species' decline throughout its range (e.g., overharvesting, natural predation, disease, habitat loss etc.); (3) historic and current range, distribution and habitat use of this species; (4) status of the black abalone populations in Baja California, Mexico; (5) historic and current estimates of population size and available habitat; (6) knowledge of various life history parameters (size/age at maturity, fecundity, length of larval stage, larval dispersal dynamics, etc.); (7) projections on population growth or decline and risk of extinction; and (8) efforts being made to protect black abalone throughout their range.
        Critical Habitat
        We are also requesting information on areas that may qualify as critical habitat for black abalone, such as identification of areas that include the physical and biological features essential to the conservation of the species. Essential features include, but are not limited to: (1) space for individual and population growth and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for reproduction and development of offspring; and (5) habitats that are protected from disturbance or are representative of the historical, geographical and ecological distributions of the species (50 CFR 424.12). For areas potentially qualifying as critical habitat, we request information describing: (1) the activities that affect the areas or could be affected by the designation, and (2) the economic or other costs and benefits of additional management measures likely to result from a designation.
        Peer Review

        The joint NMFS/U.S. Fish and Wildlife Service peer review policy for review of scientific data was published on July 1, 1994 (59 FR 34270), and on January 14, 2005, the Office of Management and Budget (OMB) published its Final Information Quality Bulletin for Peer Review (70 FR 2664). The purpose of the peer review policy and the OMB Information Quality Bulletin is to ensure that listings are based on the best scientific and commercial data available. We are soliciting the names of recognized experts in the field that could take part in the peer review process for this status review. Independent peer reviewers will be selected from the academic and scientific community, Federal and state agencies, the private sector, and public interest groups.
        References

        A complete list of all references cited herein is available upon request (see ADDRESSES section).

          Authority:
          16 U.S.C. 1531 et seq.

          Dated: April 6, 2007.
          William T. Hogarth,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. E7-6966 Filed 4-12-07; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 697
        [I.D. 112100A]
        American Lobster Fishery Management

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

          ACTION:
          Notice of public meetings; request for comments.

          SUMMARY:
          NMFS has prepared a draft supplemental environmental impact statement (DSEIS) which identifies several preferred management actions and alternatives for the American lobster fishery in Federal waters.  These measures are based upon recommendations in Addendum 1 to Amendment 3 of the Interstate Fishery Management Plan for American Lobster (ISFMP) made by the Atlantic States Marine Fisheries Commission (Commission) for management of the American lobster resource in Federal waters.  NMFS will hold public meetings to receive comments on the biological, economic, and social impacts addressed in the DSEIS.

          DATES:

          Written comments on the preferred lobster management measures and alternatives discussed in the DSEIS must be received at the appropriate address or facsimile (fax) number (see ADDRESSES), no later than 5 p.m., eastern standard time, on Tuesday, January 9, 2001.  Also, verbal comments may be presented at public meetings which are scheduled to be held from Tuesday, December 12 through Friday, December 15, 2000, in Maine, Rhode Island, New York and New Jersey.  See SUPPLEMENTARY INFORMATION for times and locations of the meetings and special accommodations.

          ADDRESSES:

        Written comments and direct requests for copies of the lobster public meeting document and DSEIS should be sent to the State, Federal and Constituent Programs Office, National Marine Fisheries Service, Northeast Region, One Blackburn Drive, Gloucester, MA 01930-2298.  Comments may also be sent via fax to (978) 281-9117.  Comments submitted via email or Internet will not be accepted.

          FOR FURTHER INFORMATION CONTACT:
          Peter Burns, NMFS, Northeast Region, telephone (978) 281-9144, fax (978) 281-9117.

        SUPPLEMENTARY INFORMATION:
        NMFS is considering several new management measures for the American lobster fishery in Federal waters in response to the Commission’s recommendations in Addendum 1 to Amendment 3 of the ISFMP.  Specifically, NMFS is considering a preferred alternative to control fishing effort in the lobster trap fishery in LCMAs 3, 4 and 5 by limiting access to only those Federal permit holders who can substantiate a history of trap fishing in these areas.  The eligibility criteria for access to these management areas would be based upon industry advice developed by the ISFMP’s lobster conservation management teams.  In LCMA 3, eligible permit holders would have to meet all of the following criteria:
        1. Possession of a current Federal limited access lobster permit.
        2. Provision of documentation to demonstrate a history of 2 consecutive calendar-months of active lobster trap fishing in LCMA 3 in any calendar year during the March 25, 1991 through September 1, 1999 qualification period (qualification period).  A history of active trap fishing is defined as the fishing of at least 200 traps set in LCMA 3 for the duration of the 2-month qualifying period.  Documentation may include copies of vessel logbooks, state or Federal Fishing Trip Reports, permit applications, or any other form of certification that denotes area fished and harvest information.
        3. Provision of sales receipts or records showing the landing of at least 25,000 lb (11,370 km) of lobster from any area throughout the range of the resource during the year used as the qualifying year referenced in the preceding paragraph (Criterion number 2).
        Under the preferred alternative Federal permit holders who qualify for participation in LCMA 3 based on the preceding criteria would be required to submit a signed affidavit to NMFS certifying the number of traps they have historically fished in LCMA 3.  Qualifying permit holders would be restricted to the number of traps they have historically fished in that area, but limited to no more than 3,250 traps, and would be required to comply with annual trap reductions over a 5-year period.
        In LCMA 4 and LCMA 5, the preferred alternative would require eligible permit holders to meet all of the following criteria to participate in the trap fishery in either of these areas:
        1. Possession of a current Federal limited access lobster permit.

        2. Provision of documentation to demonstrate a history of 2 consecutive calendar-months of active lobster trap fishing in LCMA 4 and/or LCMA 5 in any calendar year during the qualification period.  A history of active trap fishing is defined as the fishing of at least 200 traps set for the duration of the 2-month qualifying period.  Documentation may include copies of vessel logbooks, state or Federal Fishing Trip Reports, permit applications, or any other form of certification that denotes area fished and harvest information.
        As with LCMA 3, permit holders who qualify for participation in LCMA 4 or LCMA 5 would be required to provide NMFS with a signed affidavit of the number of traps they have historically fished in the elected area(s) during the qualification period.  Trap allocations for each qualifying permit holder would be based on the number of traps designated in the signed affidavit.  Unlike the preferred alternative’s provisions for LCMA 3, there would be no maximum trap limit or annual trap reduction schedule for LCMA 4 or LCMA 5.
        Alternatives to this action include: (1) maintaining the current management scenario requiring lobster trap fishers to designate specific LCMAs for trap fishing and abide by either the nearshore area trap limit of 800 if LCMA 4 or LCMA 5 is selected exclusively or in combination with any other LCMA, or the offshore area trap limit of 1,800 if LCMA 3 is selected exclusive of any other management area; (2) implementing limited access in LCMAs 3, 4 and 5 based on historical participation, but retaining the current trap limits; and (3) implementing the historical participation regime but establishing a 1,440 maximum trap limit for vessels qualifying for LCMA 4 or LCMA 5.
        The DSEIS also analyzes the impacts of a measure allowing Federal lobster permit holders who also hold full commercial New Hampshire state lobster licenses to fish an additional 400 traps in New Hampshire State waters.  The alternative to this option would maintain the status quo.  Specifically, it would require dual Federal and New Hampshire commercial lobster licensees to abide by the more restrictive Federal trap limit of 800 traps in state and Federal waters.  It would also require those dual licensees who elect to fish more than the Federal trap limit in New Hampshire State waters to forfeit their Federal lobster permit.
        The third measure analyzed in the DSEIS would adjust the boundary lines for LCMA 1, LCMA 2, and the Outer Cape LCMA to maintain consistency with the ISFMP.  The alternative to this preferred option would maintain the boundary lines for these LCMAs as they currently exist.
        In publishing this document, NMFS announces four public meetings to discuss the preferred lobster management measures and alternatives.  The dates, times, and locations of the meetings are scheduled as follows:
        Meeting Dates and Times
        1.  Tuesday, December 12, 2000, 3 p.m.--Narragansett Town Hall Assembly Room, 25 Fifth Street, Narragansett, RI.
        2.  Wednesday, December 13, 2000, 3 p.m.--Holiday Inn by the Bay, 88 Spring Street, Portland, ME.
        3.  Thursday, December 14, 2000, 4:30 p.m.--Riverhead Town Board Room at Town Hall, 200 Howell Ave, Riverhead, NY.
        4.  Friday, December 15, 2000, 1 p.m.--Community Room at the Toms River Municipal Complex, 33 Washington Street, Toms River, NJ.
        Electronic Access

        The lobster public meeting document and DSEIS are also accessible via the Internet at www.nero.nmfs.gov/ro/doc/nr.htm.
        Special Accommodations

        These meetings are physically accessible to people with disabilities.  Requests for sign language interpretation or other auxiliary aids should be directed to Peter Burns (see ADDRESSES) at least 5 days prior to the meeting date.

          Authority:
          16 U.S.C. 1851 et. seq.

          Dated: November 21, 2000.
          Bruce C. Morehead,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 00-30310 Filed 11-27-00; 8:45 am]
      BILLING CODE 3510-22-S -------                 -


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Parts 271 and 272
        [EPA-R06-RCRA-2016-0680; FRL-9966-54-Region 6]
        Arkansas: Final Authorization of State-Initiated Changes and Incorporation by Reference of State Hazardous Waste Management Program

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:

          During a review of Arkansas' regulations, the Environmental Protection Agency (EPA) identified a variety of State-initiated changes to Arkansas' hazardous waste program under the Resource Conservation and Recovery Act (RCRA), as amended. The EPA proposes to authorize the State for the program changes. In addition, the EPA proposes to codify in the regulations entitled “Approved State Hazardous Waste Management Programs”, Arkansas' authorized hazardous waste program. The EPA will incorporate by reference into the Code of Federal Regulations (CFR) those provisions of the State regulations that are authorized and that the EPA will enforce under RCRA. The purpose of this Federal Register document is to codify Arkansas' base hazardous waste management program and its revisions to that program.

          DATES:
          Send written comments by October 16, 2017.

          ADDRESSES:
          Submit any comments identified by Docket ID No. EPA-R06-RCRA-2016-0680 by one of the following methods:
          1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
          2. Email: patterson.alima@epa.gov.

          3. Mail: Alima Patterson, Region 6, Regional Authorization Coordinator, RCRA Permit Section (RPM), Multimedia Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733.
          4. Hand Delivery or Courier: Deliver your comments to Alima Patterson, Region 6, Regional Authorization Coordinator, RCRA Permit Section (RPM), Multimedia Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733.

            Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-2016-0680. EPA's policy is that all comments received will be included in the public docket without change and may be available online at http://www.regulations.gov, 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 Confidential Business Information (CBI) or otherwise protected through http://www.regulations.gov or email. The Federal http://www.regulations.gov Web site is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through http://www.regulations.gov, your email 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, the 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 the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the 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. You can view and copy the documents that form the basis for this authorization and codification and associated publicly available materials from 8:30 a.m. to 4:00 p.m. Monday through Friday at the following location: EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, phone number: (214) 665-8533. Interested persons wanting to examine these documents should make an appointment with the office at least two weeks in advance.

          FOR FURTHER INFORMATION CONTACT:

          Alima Patterson, Region 6, Regional Authorization Coordinator, RCRA Permit Section (6MM-RP), Multimedia Division, EPA Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733, phone number: (214) 665-8533, mail address: patterson.alima@epa.gov.

        SUPPLEMENTARY INFORMATION:

        The EPA has already provided notices and opportunity for comments on the Agency's decisions to codify the Arkansas program, and the EPA is not now reopening the decisions, nor requesting comments, on the Arkansas authorization program. In the “Rules and Regulations” section of this Federal Register, the EPA is authorizing the State-initiated changes to the Arkansas program, in addition to codifying and incorporating by reference the State's hazardous waste program as a direct final rule because we believe these actions are not controversial and do not expect comments that oppose them. We have explained the reasons for this authorization and incorporation by reference in the preamble to the direct final rule. Unless we receive written comments which oppose the authorization in this codification document during the comment period, the direct final rule will become effective 60 days after publication and we will not take further action on this proposal. If we receive comments that oppose the authorization, we will withdraw the direct final rule and it will not take effect. We will then respond to public comments in a later final rule based on this proposal. You may not have another opportunity for comment. If you want to comment on this action, you must do so at this time.

        For additional information, please see the direct final rule published in the “Rules and Regulations” section of this Federal Register.

          Authority:
           This rule is issued under the authority of Sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).

          Dated: July 27, 2017.
          Samuel Coleman,
          Acting Regional Administrator, Region 6.

      [FR Doc. 2017-18875 Filed 9-13-17; 8:45 am]
       BILLING CODE 6560-50-P


        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 571
        Federal Motor Vehicle Safety Standards; Child Restraint Systems; Denial of Petition for Rulemaking

          AGENCY:
          National Highway Traffic Safety Administration (NHTSA), Department of Transportation.

          ACTION:
          Denial of petition for rulemaking.

          SUMMARY:
          This document denies a petition for rulemaking from Xportation Safety Concepts, Incorporated, requesting that NHTSA amend an air bag warning label requirement in the Federal motor vehicle safety standard for child restraints. The standard requires that each child restraint that can be used rear-facing bear a label directing caregivers not to place the child restraint on the front seat with an air bag, and provides other related warnings. The petitioner suggests that if a rear-facing child restraint is able to limit forces imposed on a test dummy by a deploying air bag, the child restraint should be excluded from the warning label requirement. The petitioner believes that its rear-facing child restraint is such a restraint.
          NHTSA is denying the petition because the petitioner's suggested methodology for testing the capability of rear-facing child restraints to protect against air bag forces does not adequately assess the safety risks that air bags pose to children. Further, there is no other available test that assures that a child restraint will perform well with the myriad of air bag systems in current and future vehicles. The agency reaffirms the merits of urging parents to place infants in a rear-facing child restraint in a rear seating position because a child is safer there than in a front passenger seating position. This document also presents other reasons for denying the petition.

          FOR FURTHER INFORMATION CONTACT:
          For non-legal issues, you may call Mike Huntley of the NHTSA Office of Crashworthiness Standards, at 202-366-0029.
          For legal issues, you may call Deirdre Fujita of the NHTSA Office of Chief Counsel at 202-366-2992.
          You may send mail to both of these officials at the National Highway Traffic Safety Administration, 400 Seventh St., SW., Washington, DC., 20590.

        SUPPLEMENTARY INFORMATION:
        Background
        To prevent or mitigate the effects of a crash, Federal Motor Vehicle Safety Standard No. 208 requires that vehicles be equipped with seat belts and, for front seat occupants, air bags that provide protection in frontal crashes. Lap/shoulder belts, when used properly, are highly effective in reducing the risk of fatal and moderate-to-critical injury. Frontal air bags are also highly effective in reducing fatalities. Between 1986 and July 1, 2002, air bags saved an estimated 9,325 front seat occupants (7,786 drivers: 2,180 belted and 5,606 unbelted; and 1,539 front-right passengers: 431 belted and 1,108 unbelted). The number of lives saved annually by air bags is continuing to increase as the percentage of air bag-equipped vehicles on the road increases.
        However, while air bags are saving an increasing number of people each year in moderate and high speed crashes, some air bags, particularly those installed in vehicles manufactured prior to model year (MY) 1998, have also caused fatalities, especially to unrestrained, out-of-position children, in relatively low speed crashes. As of October 1, 2002, NHTSA's Special Crash Investigation (SCI) program has confirmed a total of 221 fatalities induced by the deployment of an air bag. Of that total, 137 were children, 74 were adult drivers, and 10 were adult passengers. The number of air bag-related fatalities generally increased from 1990 (1) to 1997 (53), and decreased from 1997 to 2001 (6 confirmed 1
          ) and 2002 (2 confirmed). The following table sets forth the number of confirmed air bag-related fatalities by crash year.

            1 Confirmed means that the Special Crash Investigation has been completed.

          Counts for Confirmed* Air Bag Related Fatalities By Crash Year
          [Through 10/01/02]

            Fatals by Year
            Children in rear-facing child safety seat (RFCSS)

            Children not in RFCSS
            Adult drivers
            Adult passengers
            Totals by year (confirmed)
            Females 62″ or less (confirmed)

            1990
             0
             0
             1
             0
             1
            1

            1991
             0
             0
             4
             0
             4
            1

            1992
             0
             0
             3
             0
             3
            2

            1993
             0
             1
             4
             0
             5
            2

            1994
             0
             5
             8
             0
             13
            1

            1995
             3
             5
             5
             0
             13
            4

            1996
             6
             19
             7
             2
             34
            2

            1997
             4
             27
             18
             4
             53
            4

            1998
             5
             27
             13
             2
             47
            6

            1999
             3
             18
             3
             0
             24
            2

            2000
             0
             8
             6
             2
             16
            3

            2001
             1
             3
             2
             0
             6
            0

            2002
             0
             2
             0
             0
             2
            0

            2003
             0
             0
             0
             0
             0
            0

            Total
             22
             115
             74
             10
             221
            28

          *Confirmed cases are those where the air bag has been confirmed to be the injury mechanism.

        Infants in rear-facing child restraints have been killed by air bags primarily because their riding position places them close to the air bag. A rear-facing infant seat that is installed in the front seat of a vehicle with a passenger air bag will almost always position the infant's head very close to that air bag. Closeness is a problem because, in order for an air bag to cushion an occupant's head, neck, chest and abdomen and keep the occupant from hitting the steering wheel, windshield or instrument panel, the air bag must move into place quickly. The force of a deploying air bag is typically greatest close to the air bag module as the air bag begins to inflate. If occupants are very close to or in contact with the cover of an air bag, they can be hit with enough force to cause serious injury or death when the air bag begins to inflate. Twenty-two fatally-injured infants were close to the air bag because they were in rear-facing infant seats installed directly in front of a passenger air bag.

        In recent years, significant changes have occurred that have reduced the number of persons killed by air bags. As a result of public education programs, improved labeling, and media coverage, the public is much more aware of the dangers air bags pose to children in the front seat and is taking steps to reduce those dangers. Children are riding in the back seat more regularly. In cars with passenger air bags, the percentage of toddlers and infants riding in the back seat increased from about 70 percent in 1995 to about 90 percent in 1999. Technological changes in the design of air bag systems have also reduced the risk posed by air bags. These changes include reducing the air bag outputs (i.e., pressure rise rate and the peak pressure), relocating the air bag modules farther away from the driver and passenger, and changes to features of air bags. Additional technological changes will be made in the future. NHTSA has amended Standard No. 208 by adding a wide variety of new requirements, test procedures, and injury criteria to require that future air bags be designed to create less risk of serious injury than current air bags, particularly for small women and young children. 65 FR 30680, May 12, 2000; as amended 66 FR 65376, December 18, 2001.
        Petition for Rulemaking
        Today's document responds to a December 3, 2001 petition for rulemaking from a child restraint manufacturer that seeks to amend Federal Motor Vehicle Safety Standard No. 213, “Child Restraint Systems” (49 CFR 571.213), to implement changes that the petitioner believes would aid the sale of its restraints. The petitioner, Xportation Safety Concepts, Inc. (Xportation), believes it has developed an “air bag resistant, rear-facing infant restraint.” The petitioner further believes that it has identified a test procedure that can be used to demonstrate the compatibility of its infant restraints with an air bag. Xportation asks that the test procedure be added to Standard No. 213, and that child restraints shown, when tested in accordance with that test procedure, to be able to limit sufficiently the forces that are imposed on a test dummy restrained in the child restraint be excluded from the requirement to bear the air bag warning label specified in S5.5.2(k)(4) and Figure 10 of the standard. The label, which is required to be a permanent and prominent part of rear-facing restraints, is intended to provide greater assurance that caregivers are aware of the dangers posed by passenger air bags to children in rear-facing restraints.
        Xportation's very brief petition did not discuss in any level of detail the suggested test procedure, the test devices, or the injury criteria. It did not provide any test data regarding its child restraint. Instead, Xportation stated that the standard should be amended because: (a) The agency indicated in a rulemaking document (59 FR 7643; February 16, 1994) that it would consider a test procedure then under development by the Society of Automotive Engineers (SAE) for testing child restraints with air bags for incorporation into Standard No. 213; and, (b) in the petitioner's view, since the SAE-developed test procedure was completed, the agency should now proceed to incorporate the work of SAE and others into the standard to facilitate the manufacture of “air bag resistant infant restraints.” Xportation did not discuss the merits of the work, but attached a bibliography to its petition and referred to documents referenced in the bibliography.
        The following constitutes the bulk of the petition:

          The [SAE] task force completed the aforementioned guidelines, which were published by the Society of Automotive Engineers as a Surface Vehicle Information Report (Reference 1). Section 7 of the document discusses dynamic test procedures, and section 10 describes the test fixture. The seating portion of the fixture resembles that of the FMVSS 213 test fixture, and it is likely that its features could be incorporated into that fixture.
          At the request of the CRABI 2
             Task Force, the SAE Infant Dummy Task Force developed specifications for the 6 Month Old and 12 Month Old CRABI Dummies, and they are now readily available (Reference 2). Further, a member of the CRABI Task Force has developed the appropriate injury assessment values for the 6 Month Old Dummy (Reference 3).

              2 CRABI: Child Restraint Air Bag Interaction. (Footnote not in quoted text.)

          NHTSA, in its early efforts to determine the interaction of child restraints and passenger air bags, conducted a number of impact simulations using a HYGE sled. The study was reported in Reference 4. In the report, it is noted that the test buck is similar to the buck design in the CRABI Task Force Information Report, and that it used the Standard 213 seat. The report further notes that the Standard 213 seat was modified to have the same seat cushion and seat back attitudes as the seat in the CRABI buck.
          We submit that there are now a test procedure, a test buck, dummies, and injury assessment values, all of the elements necessary to allow the agency to proceed with rulemaking to accommodate air bag resistant, rear-facing infant restraints. The rulemaking will, of course, include the incorporation of the CRABI dummies into 49 CFR part 572.3

            3 “Reference 1” in petitioner's bibliography was “Guidelines For Evaluating Child Restraint System Interactions With Deploying Airbags.” SAE J2189 (March 1993); Reference 2 was “FTSS Product Catalog: CRABI 6 Month Older Infant Dummy 910420-000; 12 Month Old Child Dummy 921022-000;” Reference 3 was “Injury Assessment Values for the CRABI 6-Month Infant Dummy in a Rear-Facing Infant Restraint With Airbag Development. SAE 950872,” J.W. Melvin, 1995; and Reference 4 was “Child Restraint/Passenger Air Bag Interaction Analysis. Final Report, HS 808 004,” L.K. Sullivan, 1992. (Footnote not in quoted text.)

        Discussion
        Previous Rulemaking

        In 1994, before there were any injuries or fatalities to infants in rear-facing restraints caused by an air bag, NHTSA issued a final rule that required these restraints to have a warning label against using the restraint in any vehicle seating position equipped with an air bag (59 FR 7643). Public comments on the notice of proposed rulemaking (NPRM) preceding the rule expressed concerns that the rule would restrict child restraint design in the face of what was then only a theoretical risk posed to children. In response, the agency stated that it “[did] not intend for this rule to impede the development of rear-facing restraints that are compatible with an air bag.” The agency explained that it was monitoring the work of a task force on Child Restraint and Air Bag Interaction (CRABI) formed by the Society of Automotive Engineers (SAE), particularly the work on test procedures that could evaluate the performance of an infant restraint when used with a passenger air bag. NHTSA stated that if the CRABI task force were to develop a test procedure from its guidelines, NHTSA would evaluate it to determine whether the procedure is appropriate for Standard No. 213. “Among other things,” the agency stated, “the procedure would have to be suitable for testing all types of infant restraints, and be able to provide test results that assess the performance of the restraint in the real world.” The agency also stated that it “will consider a test procedure for incorporation into Standard 213 as soon as a suitable one is developed” (59 FR 7646).
        We do not agree with Xportation that the CRABI test procedure merits adoption into the Federal safety standard or that child restraints tested to the procedure need not be labeled with the air bag warning label that all rear-facing restraints must now bear. The agency's knowledge of air bags has changed tremendously since 1994, when NHTSA undertook the rulemaking that first required an air bag warning label. We undertook the air bag warning rulemaking after finding in NHTSA laboratory sled tests with top- and mid-mounted air bags that the air bags produced substantial increases in the values for the head injury criterion (HIC) and chest acceleration of dummies seated in rear-facing restraints, compared to the values for dummies in rear-facing restraints tested with no air bag. There had not yet been any deaths or injuries caused by an air bag at that time. At that time, the agency was guardedly optimistic about the possibility that a suitable test procedure could develop out of the CRABI task force work that would obviate the need for requiring all rear-facing restraints to have an air bag warning label.
        Beginning in 1994, however, the risk posed by passenger air bags to infants in rear-facing restraints began to manifest itself in real-world deaths and injuries. Three air bag-related fatalities were children in rear-facing restraints in 1995, 6 in 1996, 4 in 1997, 5 in 1998, and 3 in 1999.4
           NHTSA developed various strategies to counter the rising number of fatally-injured children in rear-facing child restraints, including amending Standard No. 213 to make the warning label more direct in its warning and much more conspicuous (61 FR 60206; November 27, 1996). The agency, together with the automobile industry and child passenger advocates, also began a vigorous and successful consumer information campaign to get children seated in the back seat rather than in the front passenger seat.

            4 There were 0 in 2000 and 1 in 2001.

        We also became much more knowledgeable about air bags. In December 1997, to better understand air bag design and performance characteristics, NHTSA sent an information request to nine automobile manufacturers requesting detailed technical information on then-current industry practices on air bag technologies and how design and performance had evolved through the 1990s. The agency analyzed the responses and identified numerous trends in air bag design both on the driver side and the passenger side. The information showed that manufacturers have made many changes to air bag design. “Air Bag Technology In Light Passenger Vehicles,” Hinch et al., October 26, 1999 (see Docket 2814-47).
        This information has led us to evaluate the CRABI procedure in a better informed, more critical light. While at one point we were somewhat optimistic about the CRABI procedure, we now do not believe that it or any other procedure adequately assesses the safety risks to rear-facing children from an air bag.
        Review of the SAE procedure
        The CRABI procedure is set forth in the SAE's Surface Vehicle Information Report SAE J2189, “Guidelines for Evaluating Child Restraint System Interactions With Deploying Airbags,” March 1993. As noted by the SAE in that document, there are many uncertainties associated with the procedure. The SAE explained that the document is styled an “information report,” as opposed to a “recommended practice,” “because of the general inexperience in testing the interaction between child restraint systems and deploying air bags and the lack of real-world accident data.” The explanation continues:

          This document describes dummies, procedures, and configurations that can be used for investigating the interactions that occur between a deploying airbag and a CRS [child restraint system]. Static tests may be used to sort CRS/airbag interaction on a comparative basis in either an actual or a simulated vehicle environment. Systems that appear to warrant further testing may be subjected to an appropriate dynamic test at a speed near that needed to deploy an airbag or at a higher speed commonly used to evaluate CRS performance. No test matrix is specified at this time for evaluating either a CRS or an airbag during interaction with each other. Instead, engineering judgment based on prior experience with CRS and/or airbag testing should be used in selecting the tests to be conducted with each individual system. Such tests may be aimed not only at producing interactions with the most severe results but also at identifying those conditions that produce the least interaction and/or satisfactory CRS performance results. Baseline tests to indicate the performance of a CRS in the absence of airbag deployment are also recommended for comparison purposes.

        The CRABI test procedure could be an acceptable starting point in evaluating the performance of particular child restraints with specific air bag systems. However, NHTSA believes that the procedure alone would not be able to provide test results that sufficiently assess the performance of a restraint in the real world. J2189 does not specify a test matrix, but relies on the tester's engineering judgment as to the test configurations and conditions that should be used. Xportation provides no explanation or discussion as to which configurations and conditions it believes need or need not be specified that would assure the safe performance of a child restraint with the air bags in existing and future model year vehicles.

        Perhaps the reason that Xportation did not do so is because it is virtually impossible to do so. J2189 is predicated on the tester's being able to tune the air bag system to simulate a specific air bag system. If J2189 were incorporated into Standard No. 213, a very limited type of air bag system would be simulated by the standard. Yet, NHTSA's survey data (Hinch et al., supra) show great variation in air bag system characteristics and performance. Moreover, air bag systems have changed significantly in recent years. Some of the changes reduced the aggressivity of air bags, such as by reducing air bag outputs in the most recent model year vehicles compared to the earlier generation vehicles. Some of the changes involved changes in inflator characteristics, new air bag shapes, sizes, fabrics, venting systems and venting levels, occupant size and location sensors, seat position sensors, belt use sensors, and crash severity sensors, as well as computation algorithms that use the information in making air bag deployment decisions. Manufacturers also seem to be on the threshold of making a significant leap in introduction of sophisticated technologies to improve air bag performance. In short, a test procedure that only replicates one or a few types of air bag systems does not assure that a child restraint that meets performance criteria tested to that procedure will perform adequately with the myriad of air bag designs currently on the road and those that will be installed in future vehicles.

        The safety risk posed to infants in rear-facing child restraints by deploying air bags is so great that a test procedure used to assess the performance of the child restraint must carefully evaluate that risk. For example, if an “air bag-resistant” child restraint fails to work, an infant in that restraint is almost certain to be injured when the air bag deploys. Xportation has not provided data showing that a child would not be injured by a type of air bag system that was not simulated by the J2189 procedure, or that the child would be protected if the restraint were misused.5
           Nor did Xportation provide data showing that the test dummies could satisfactorily evaluate the harm resulting from a deploying air bag. In the absence of such data, we conclude that the suggested amendment would subject rear-facing infants to too high a risk of injury from an air bag.

            5 The SAE explains in J2189 that the information report “addresses only the effects of the interactions between deploying airbags and child restraint systems that would have been considered properly installed and used in the right and center front passenger positions before the advent of passenger airbags and may be properly installed there in the future. Child restraint misuse is not otherwise addressed in this document.”

        As a practical matter, NHTSA cannot test products in every configuration or circumstance they could be used. However, this limitation is generally acceptable since test procedures simulating a relatively narrow set of real world circumstances generally have a positive impact on individuals in a broader range of circumstances. However, in this particular case, testing to a test procedure of one sort could have severe consequences to a child in a broad range of circumstances. Thus, we deem the requirements and test procedures to be too narrow and not adequately representative of types of air bag systems not simulated by the J2189 procedure.
        The agency will not attempt to develop a suitable test procedure in response to the petition. Developing a suitable test procedure (assuming that it would be practicable to do so) would use agency resources that are better spent on areas that would result in definite safety benefits. Moreover, for the reasons stated above, we believe that no procedure could adequately assure the overall safety of children. There is a risk of injury associated with the forces imposed by the air bag on a rear-facing infant.6
           There are no such risks when the child is in the back seat. Even in vehicles without air bags, infants, as well as other occupants, are 26 percent safer against fatality when seated in the rear seat than in the front seat. Thus, even if air bag risks could be completely controlled, overall safety would be diminished if some infants were restrained in the front seat instead of in the rear seat, which would occur if petitioner's suggested amendment was adopted. Keeping infants restrained in the rear seat instead of in the front seat assures that a more injurious event would not be substituted for a less injurious one.7

            6 Limits on the force levels imposed on the dummy indicate an injury risk assessment above which the risk of injury is unacceptably high. The risk of injury of force levels below the threshold, while lower, still exists.

            7 For vehicles with either (a) no rear seats, or (b) rear seats that are too small to accommodate rear-facing child restraints in accordance with the provision of S4.5.4.1(b) of FMVSS No. 208, vehicle manufacturers may install a device (an on/off switch) that deactivates the air bag at the front passenger position. In addition, under appropriate circumstances, owners of all vehicles may obtain an on/off switch (see 49 CFR part 595).

        Xportation has argued that placing children in the back increases the risk for crashes because of the possibility of distraction due to parents' having to turn to attend to them. Based on a review of 2000 Fatal Analysis Reporting System (FARS) data 8
          , a total of 3,946 drivers (or 6.9 percent of all drivers involved in fatal crashes) were determined to be inattentive. However, the 2000 FARS database does not distinguish between various causes of inattentiveness, such as talking, eating, cell phone use, or attending to a child in either the front or rear seat. As such, the agency is unable to definitively ascertain from this data whether children are more or less of a distraction in the front seat as compared to the rear seat. However, placing children in rear seats does significantly increase the chances that the child will survive a crash should one occur as noted in the preceding paragraph.

            8 “Traffic Safety Facts 2000: A Compilation of Motor Vehicle Crash Data From the Fatal Analysis Reporting System and the General Estimates System,” National Highway Traffic Safety Administration, National Center for Statistic and Analysis, December 2001.

        In conclusion, NHTSA has evaluated the test procedure suggested by the petitioner for incorporation into the Federal standard. We conclude that the procedure does not go far enough in assessing the injury risk posed by air bags to infants in rear-facing restraints. Further, we affirm the continuing merit of urging parents to place infants in rear-facing restraints in a rear seating position, since the infants are safer there than in a front passenger seating position. This message saves lives.
        In accordance with 49 CFR part 552, this completes the agency's review of the petition. The agency has concluded that there is no reasonable possibility that the amendment requested by the petitioner would be issued at the conclusion of the rulemaking proceeding. Accordingly, the petition is denied.

          Authority:
          49 U.S.C. 322, 30111, 30115, 30117 and 30166; delegation of authority at 49 CFR 1.50.

          Issued on January 9, 2003.
          Stephen R. Kratzke,
          Associate Administrator for Rulemaking.

      [FR Doc. 03-821 Filed 1-14-03; 8:45 am]
      BILLING CODE 4910-59-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AF79

        Endangered and Threatened Wildlife and Plants; Notice of Proposed Critical Habitat Determination for the Plant Silene spaldingii (Spalding's Catchfly) and Reopening of Comment Period

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; notice of critical habitat determination and reopening of comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service, propose a critical habitat determination for Silene spaldingii (Spalding's catchfly) pursuant to the Endangered Species Act of 1973, as amended (Act) and reopen the comment period on the proposed rule to list this species. On December 3, 1999, we proposed to list S. spaldingii as a threatened species. The proposed rule stated that we would publish a critical habitat determination for S. spaldingii in the Federal Register subsequent to the proposed rule. We now propose that designation of critical habitat is prudent for S. spaldingii. We request comments on this proposed prudency determination and reopen the comment period for the proposed listing. We will make the final prudency determination with the final listing determination for S. spaldingii. If this final determination is that a critical habitat designation is prudent, we will develop a proposal to designate critical habitat for S. spaldingii as soon as feasible, considering our workload priorities and budgetary capabilities.

          DATES:
          Comments from all interested parties must be received by June 23, 2000. Public hearing requests must be received by June 8, 2000.

          ADDRESSES:

          Comments and materials concerning this proposal should be sent to the Supervisor, Snake River Basin Office, U.S. Fish and Wildlife Service, 1387 S. Vinnell Way, Room 368, Boise, Idaho 83709. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

          FOR FURTHER INFORMATION CONTACT:
          Robert Ruesink, Supervisor, at the above address (telephone 208/378-5243; facsimile 208/378-5262).

        SUPPLEMENTARY INFORMATION:
        Background

          Silene spaldingii is a long-lived perennial herb currently known from a total of 52 populations that are primarily restricted to mesic (neither extremely wet nor extremely dry) grasslands (prairie or steppe vegetation) that make up the Palouse region (a Pacific Northwest bunchgrass habitat type). Seven populations occur in west-central Idaho; 7, in northeastern Oregon; 9, in western Montana; 28, in eastern Washington; and 1, in adjacent British Columbia, Canada. This taxon is threatened by a variety of factors including habitat destruction and fragmentation from agricultural and urban development, grazing and trampling by domestic livestock and native herbivores, herbicide treatment, and competition from nonnative plant species.
        Critical habitat is defined in section 3 of the Act as: (i) 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 (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic 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. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the Act is no longer necessary.
        Critical habitat designation, by definition, directly affects only Federal agency actions through consultation under section 7(a)(2) of the Act. Section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat.
        Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist—(1) the species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species.

        In the December 3, 1999, proposed rule, we did not propose a critical habitat determination for Silene spaldingii. We stated that we would publish a critical habitat determination for S. spaldingii in the Federal Register subsequent to the proposed rule. The Final Listing Priority Guidance for FY 1999/2000 (64 FR 57114) states that the processing of critical habitat determinations (prudency and determinability decisions) and proposed or final designations of critical habitat “will no longer be subject to prioritization under the Listing Priority Guidance. Critical habitat determinations, which were previously included in final listing rules published in the Federal Register, may now be processed separately, in which case stand-alone critical habitat determinations will be published as notices in the Federal Register. We will undertake critical habitat determinations and designations during FY 2000 as conservation efforts demand and in light of resource constraints.” As explained in detail in the Listing Priority Guidance, our listing budget is currently insufficient to allow us to immediately complete all of the listing actions required by the Act.

        We now propose that designation of critical habitat is prudent for Silene spaldingii. In the last few years, a series of court decisions have overturned Service determinations regarding a variety of species that designation of critical habitat would not be prudent (e.g., Natural Resources Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards applied in those judicial opinions, we believe that designation of critical habitat would be prudent for S. spaldingii.
        Due to the small number of populations, Silene spaldingii is vulnerable to unrestricted collection, vandalism, or other disturbance. We are concerned that these threats might be exacerbated by the publication of critical habitat maps and further dissemination of locational information. However, at this time we do not have specific evidence for S. spaldingii of taking, vandalism, collection, or trade of this species or any similarly situated species. Consequently, consistent with applicable regulations (50 CFR 424.12(a)(1)(i)) and recent case law, we believe that the identification of critical habitat is unlikely to increase the degree of threat to this species of taking or other human activity.

        In the absence of a finding that identification of critical habitat would increase threats to a species, if any benefits would result from a critical habitat designation, then a prudent finding is warranted. In the case of this species, designation of critical habitat may provide some benefits. The primary regulatory effect of critical habitat is the section 7 requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat. While a critical habitat designation for habitat currently occupied by this species would not be likely to change the section 7 consultation outcome because an action that destroys or adversely modifies such critical habitat would also be likely to result in jeopardy to the species, in certain instances, section 7 consultation might be triggered only if critical habitat is designated. Examples could include unoccupied habitat or occupied habitat that may become unoccupied in the future. Designating critical habitat may also provide some educational or informational benefits. Therefore, we propose that designation of critical habitat is prudent for Silene spaldingii. However, deferral of a critical habitat designation for S. spaldingii would allow us to concentrate our limited resources on higher priority critical habitat and other listing actions, without delaying the final listing decision. We anticipate in FY 2000 and beyond giving higher priority to critical habitat designation, including designations deferred pursuant to the Listing Priority Guidance, such as the designation for this species, than we have in recent fiscal years.

        We plan to employ a priority system for deciding which outstanding critical habitat designations should be addressed first. We will focus our efforts on those designations that will provide the most conservation benefit, taking into consideration the efficacy of critical habitat designation in addressing the threats to the species, and the magnitude and immediacy of those threats. We will make the final critical habitat determination with the final listing determination for Silene spaldingii. If this final critical habitat determination is that designation of critical habitat is prudent, we will develop a proposal to designate critical habitat for S. spaldingii as soon as feasible, considering our workload priorities and budgetary capabilities. Unfortunately, for the immediate future, most of Region 1's listing budget must be directed to complying with numerous court orders and settlement agreements, as well as due and overdue final listing determinations.
        Public Comments Solicited

        We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we are soliciting comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed prudency determination and the proposed listing of Silene spaldingii as threatened. We are particularly seeking comments concerning:
        (1) Biological, commercial trade, or other relevant data concerning any threat (or lack thereof) to this species;
        (2) The location of any additional populations of this species and the reasons why any habitat should or should not be determined to be critical habitat pursuant to section 4 of the Act;
        (3) Additional information concerning the range, distribution, and population size of this species; and
        (4) Current or planned activities in the subject area and their possible impacts on this species.
        We will take into consideration for any decision on this proposal the comments and additional information we receive, and such communications may lead to a final regulation that differs from this proposal.
        National Environmental Policy Act

        We have determined that an environmental assessment and environmental impact statement, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).
        Required Determinations

        This rule does not contain any information collection requirements for which Office of Management and Budget (OMB) approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is required. An information collection related to the rule pertaining to permits for endangered and threatened species has OMB approval and is assigned clearance number 1018-0094. This rule does not alter that information collection requirement. For additional information concerning permits and associated requirements for threatened plants, see 50 CFR 17.72.
        Authority

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

          Dated: April 5, 2000.
          Jamie Rappaport Clark,
          Director, U.S. Fish and Wildlife Service.

      [FR Doc. 00-10049 Filed 4-21-00; 8:45 am]
      BILLING CODE 4310-55-P