        DEPARTMENT OF INTERIOR
        Office of Surface Mining Reclamation and Enforcement
        30 CFR Part 935
        [OH-262-FOR; Docket ID: OSM-2019-0006 S1D1S SS08011000 SX064A000 190S180110; S2D2S SS08011000 SX064A000 19XS501520]
        Ohio Regulatory Program

          AGENCY:
          Office of Surface Mining Reclamation and Enforcement (OSMRE), Interior.

          ACTION:
          Proposed rule; public comment period and opportunity for public hearing.

          SUMMARY:
          We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are announcing receipt of a proposed amendment to the Ohio regulatory program, hereinafter the Ohio program, under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Ohio seeks to amend its program by revising a definition involving the transfer, assignment, or sale of permit rights. This document gives the times and locations that the Ohio program and this proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments, on the amendment and the procedures that we will follow for the public hearing, if one is requested.

          DATES:
          We will accept written comments on this request until 4:00 p.m., Eastern Standard Time (e.s.t.), October 7, 2019. If requested, we will hold a public hearing on the request on September 30, 2019. We will accept requests to speak at a hearing until 4:00 p.m., e.s.t. on September 20, 2019.

          ADDRESSES:
          You may submit comments, identified by SATS No. OH-262-FOR, Docket ID: OSM-2019-0006, by any of the following methods:
          • Mail/Hand Delivery: Mr. Ben Owens, Chief, Pittsburgh Field Division Office of Surface Mining Reclamation and Enforcement 3 Parkway Center, Pittsburgh, Pa 15220.

          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

            Instructions: All submissions received must include the agency name and docket number for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Comment Procedures” heading of the SUPPLEMENTARY INFORMATION section of this document.

            Docket: For access to the docket to review copies of the Ohio program, this request, a listing of any scheduled public hearings, and all written comments received in response to this document, you must go to the address listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the request by contacting OSMRE's Pittsburgh Field Division or the full text of the request is available for you to read at www.regulations.gov.

          Mr. Ben Owens, Chief, Pittsburgh Field Division, Office of Surface Mining Reclamation and Enforcement, 3 Parkway Center, Pittsburgh, PA 15220, Telephone: (412) 937-2827, Email: bowens@osmre.gov.

          In addition, you may review a copy of the request during regular business hours at the following location:

          Mr. Larry E. Erdos, Chief, Division of Mineral Resources Management, Ohio Department of Natural Resources, 2045 Morse Rd., Building H-2, Columbus, OH 43229-6693, Telephone: (614) 265-6633, Email: lanny.erdos@dnr.state.oh.us.

          FOR FURTHER INFORMATION CONTACT:

          Mr. Ben Owens, Chief, Pittsburgh Field Division, Office of Surface Mining Reclamation and Enforcement, 3 Parkway Center, Pittsburgh, PA 15220, Telephone: (412) 937-2827, Email: bowens@osmre.gov.

        SUPPLEMENTARY INFORMATION:

          I. Background on the Ohio Program
          II. Description of the Request
          III. Public Comment Procedures
          IV. Procedural Determinations

        I. Background on the Ohio Program

        Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Ohio program on August 16, 1982. You can find additional background information on the Ohio program, including the Secretary's findings, the disposition of comments, and conditions of approval in the August 10, 1982, Federal Register, 47 FR 34688. You can also find later actions concerning Ohio's program and program amendments at 30 CFR 935.11 and 935.15.
        II. Description of the Request

        By letter dated April 11, 2019, Ohio sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.) that involves the regulatory definition of “transfer, assignment, or sale of permit rights” related to coal mining operations (Administrative Record No. OH-2198). Ohio seeks to add regulatory language at Chapter 1501:13-1-02, Definitions, section (VVVVVV) of the Ohio Administrative Code, which currently defines the term as “a change of a permittee, including, but not limited to, any fundamental legal change in the structure or nature of a permittee, or a name change.” With this amendment, Ohio seeks to expand the definition to include a change in the ownership and operational control of a permittee to a person who has not held a permit issued under Chapter 1513, Coal Surface Mining, of the Ohio Revised Code (ORC) for a period of not less than five years where the existence and name of the permittee remain the same. Ohio states that this change is intended to prevent a person who is not eligible to participate in the bond pool under section 1513.08(C)(2) of the ORC from gaining access to the bond pool through a change of ownership and operational control that does not change the existence and name of the permittee. Ohio states that requiring such a person to apply for a transfer, assignment, or sale of permit rights will assure that all performance security requirements are met.

        The full text of the amendment is available for you to read at the locations listed above under ADDRESSES or at www.regulations.gov.
        III. Public Comment Procedures
        Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether this amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.
        Electronic or Written Comments
        If you submit written or electronic comments on the request during the 30-day comment period, they should be specific, confined to issues pertinent to the request, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence our decision will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.

        We cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than those listed (see ADDRESSES) will be included in the docket for this rulemaking and considered.
        Public Availability of Comments
        Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment including your personal identifying information, may be made publicly available at any time. 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.
        Public Hearing

        If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., e.s.t. on September 20, 2019. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

        To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak, and others present in the audience who wish to speak, have been heard.

        Public Meeting

        If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.
        IV. Procedural Determinations
        Executive Order 12866—Regulatory Planning and Review and Executive Order 13563—Improving Regulation and Regulatory Review
        Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993, the approval of State program amendments is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.
        Other Laws and Executive Orders Affecting Rulemaking

        When a State submits a program amendment to OSMRE for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule.

          List of Subjects in 30 CFR Part 935
          Intergovernmental relations, Surface mining, Underground mining.

          Dated: June 4, 2019.
          Thomas D. Shope,
          Regional Director, Appalachian Region.

      [FR Doc. 2019-19163 Filed 9-4-19; 8:45 am]
      BILLING CODE 4310-05-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [Docket No. 210415-0081]
        RIN 0648-BK34
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Gray Triggerfish Management Measures

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to implement management measures described in a framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico Fishery Management Council (Council). If implemented, this proposed rule would modify catch limits in the Gulf of Mexico (Gulf) exclusive economic zone (EEZ) for gray triggerfish. The purpose of this proposed rule and the framework action is to modify the catch limits, as applicable, consistent with the most recent interim analysis for gray triggerfish and to achieve optimum yield (OY) for the stock.

          DATES:
          Written comments must be received on or before May 21, 2021.

          ADDRESSES:
          You may submit comments on the proposed rule, identified by “NOAA-NMFS-2021-0030” by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter “NOAA-NMFS-2021-0030”, in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Kelli O'Donnell, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

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

          Electronic copies of the framework action, which includes an environmental assessment, a regulatory impact review, and a Regulatory Flexibility Act (RFA) analysis, may be obtained from the Southeast Regional Office website at https://www.fisheries.noaa.gov/action/framework-action-modification-gray-triggerfish-catch-limits.

          FOR FURTHER INFORMATION CONTACT:

          Kelli O'Donnell, Southeast Regional Office, NMFS, telephone: 727-824-5305, email: Kelli.ODonnell@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        The Gulf reef fish fishery, which includes gray triggerfish, is managed under the FMP. The FMP was prepared by the Council and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Steven Act).
        Background
        The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and to achieve, on a continuing basis, the OY from federally managed fish stocks to ensure that fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems.
        Gray triggerfish in the Gulf EEZ are managed using both commercial and recreational sector measures with each sector having its own annual catch limit (ACL) and annual catch target (ACT). The sector allocation of the stock ACL, which equals the acceptable biological catch (ABC), is 21 percent commercial and 79 percent recreational and was implemented in 2008 through Amendment 30A to the FMP (73 FR 38139; July 3, 2008). Inseason accountability measures (AMs) for gray triggerfish specify that if commercial and/or recreational landings meet or are projected to meet the respective sector's ACT, that sector will close for the remainder of the fishing year. For the commercial sector, the post-season AM specifies that if the commercial ACL is exceeded despite the quota closure, then the following fishing year's commercial ACL and ACT (commercial quota) will be reduced by the amount of the prior-year's commercial ACL overage. For the recreational sector, if the recreational ACL is exceeded and gray triggerfish are overfished then in the following fishing year the recreational ACL and ACT would be reduced by the amount of the ACL overage in the prior fishing year. The current gray triggerfish ACLs, ACTs (set at 5 percent and 10 percent less than the commercial and recreational sector ACLs, respectively), and inseason AMs for both sectors and the post season AM for the recreational sector, were established in 2013, through Amendment 37 to the FMP (78 FR 27084; May 9, 2013). The postseason AM for the commercial sector was established in 2008, through Amendment 30A to the FMP (73 FR 38139).

        The most recent Southeast Data, Assessment, and Review (SEDAR) stock assessment for gray triggerfish was completed and reviewed by the Council's Scientific and Statistical Committee (SSC) in October 2015 (SEDAR 43). SEDAR 43 indicated that the gray triggerfish stock was not experiencing overfishing but remained overfished and would not be rebuilt by the end of 2017 as previously projected. As a result of SEDAR 43, the Council's SSC made recommendations for an increased overfishing limit (OFL) based on a fixed maximum fishing mortality threshold, which is independent of rebuilding, and ABCs based on an 8, 9, or 10-year rebuilding timeline. Because of the stock not rebuilding as anticipated, the Council decided not to change the ABC, sector ACLs, and sector ACTs set by Amendment 37 but to change the rebuilding timeline to rebuild the stock by 2025. Amendment 46 implicitly adopted the SSC's recommendations for an increased OFL by including alternatives with an ABC that was higher than the status quo OFL. Amendment 44 to the FMP, implemented in 2017 (82 FR 61488; December 28, 2017), updated the stock status to not overfished but did not revise the sector ACLs or ACTs.

        Between 2012 and 2019, the commercial sector has exceeded its ACL of 64,100 lb (29,075 kg), round weight, two times, in both 2012 and 2018. During that same time frame, the recreational sector has exceeded its ACL of 241,200 lb (109,406 kg), round weight, five times, in 2012, 2013, 2016, 2018, and 2019.

        At its September 2020 meeting, the Council's SSC accepted a 2020 gray triggerfish interim analysis conducted by the NMFS Southeast Fisheries Science Center (SEFSC). Unlike full SEDAR stock assessments, interim analyses are designed to occur between regular SEDAR assessments to determine trends in stock condition and project future catch advice. While interim analyses take less time to complete, they cannot be used to determine if a stock is making progress towards rebuilding. Based on the interim analysis, abundance trends of the Gulf gray triggerfish stock suggest an increase in biomass that could support additional removals. The Council's SSC determined the interim analysis was suitable for providing ABC catch advice through 2023. From the interim analysis, the Council's SSC recommended the gray triggerfish stock ABC be increased to 456,900 lb (207,246 kg), round weight, for 2021 and subsequent fishing years, with the request that another interim analysis be completed in 2023. The Council's SSC previously recommended an increased OFL (1,220,000 lb (553,383 kg), round weight) that was implicitly adopted by Amendment 46 and was not examined by this interim analysis.
        In January 2021, the Council took final action on this framework action, consistent with the most recent interim analysis for gray triggerfish, and recommendations from the Council's SSC, the SEFSC, and the Council's Reef Fish Advisory Panel (Reef Fish AP) to increase the commercial and recreational catch limits for Gulf gray triggerfish, in order to achieve OY consistent with the requirements of the Magnuson-Stevens Act.
        Management Measures Contained in This Proposed Rule
        This proposed rule would revise the commercial and recreational ACLs and ACTs consistent with the interim analysis and the Council's SSC, SEFSC, and the Council's Reef Fish AP recommendations.
        Commercial ACL and ACT
        If implemented, this proposed rule would increase the Gulf gray triggerfish commercial ACL from 64,100 lb (29,075 kg), round weight, to 95,949 lb (43,522 kg), round weight, for the 2021, and subsequent fishing years based on the current ACL sector allocation of 21 percent commercial. To determine the new ACT, the Council used its ACL/ACT control rule to determine the buffer to be applied to the commercial ACL to account for updated information. Application of the control rule indicated that an 8 percent buffer is appropriate between the commercial ACL and ACT. This is an increase from the current buffer of 5 percent. Using a more recent time series, the control rule yielded a larger buffer due to the number of times sector landings exceeded the commercial ACL during the time series, current stock status (the stock is rebuilding), and the precision of landings data. The 8 percent buffer applied to the proposed commercial ACL, revises the commercial ACT (commercial quota) from 60,900 lb (27,624 kg), round weight to 88,273 lb (40,040 kg), round weight, for the 2021, and subsequent fishing years. The increased buffer between the commercial ACL and ACT is expected to reduce the risk of the commercial sector exceeding its ACL as well as reduce the likelihood of overfishing the gray triggerfish stock. NMFS notes that the commercial sector has never exceeded the commercial ACL that is proposed in this rule.
        Recreational ACL and ACT
        If implemented, this proposed rule would increase the Gulf gray triggerfish recreational ACL from 241,200 lb (109,406 kg), round weight, to 360,951 lb (163,725 kg), round weight, for the 2021, and subsequent fishing years based on the ACL sector allocation of 79 percent recreational. To determine the new recreational ACT, the ACL/ACT control rule was applied to determine the buffer using updated information. The control rule yielded a 24 percent buffer between the recreational ACL and ACT. This is an increase from the current 10 percent buffer. The reason for the buffer increase was the result of past ACL overages, the stock is rebuilding, a more recent time series being applied, and the precision of landings data. When the buffer is applied to the proposed recreational ACL, the ACT would be increased from 217,100 lb (98,475 kg), round weight, to 274,323 lb (124,431 kg), round weight, for the 2021, and subsequent fishing years.
        NMFS notes that recreational landings in the 2013, 2016, and 2018 fishing years, have exceeded the recreational ACL proposed in this rule. The increased buffers between the recreational ACL and ACT are expected to reduce the risk of the recreational sector exceeding its ACL.
        Measure in the Framework Action but not Codified in This Proposed Rule
        In addition to the other measures contained in this proposed rule, the framework action would also revise the Gulf gray triggerfish stock ABC. As a result of the gray triggerfish interim analysis, and the recommendation of the Council's SSC, the framework action would increase the Gulf gray triggerfish stock ABC from 305,300 lb (138,482 kg), round weight, to 456,900 lb (207,246 kg), round weight. The stock ACL would remain equal to the stock ABC. A buffer between the stock ABC and ACL was not recommended by the Council's Reef Fish AP as a result of wanting to retain the management approach currently in use for gray triggerfish by the Council of setting the stock ACL equal to the ABC. In addition, the increased ABC is 37.5 percent of the OFL (1,220,000 lb (553,383 kg), round weight). This large difference between the ABC and OFL reduces the risk of overfishing of the gray triggerfish stock.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the framework action, the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination follows.
        A description of this proposed rule, why it is being considered, and the objectives of this proposed rule are contained in the preamble. The Magnuson-Stevens Act provides the statutory basis for this proposed rule.

        This proposed rule would apply to all federally-permitted commercial vessels and recreational anglers that fish for or harvest gray triggerfish in Federal waters of the Gulf. It would not directly apply to or regulate charter vessels and headboats (for-hire vessels). For-hire vessels sell fishing services to recreational anglers. The proposed changes to the gray triggerfish management measures would not directly alter the services sold by these vessels. Any change in demand for these fishing services, and associated economic effects, as a result of this proposed rule would be a consequence of a behavioral change by anglers, secondary to any direct effect on anglers and, therefore, an indirect effect of the proposed rule. Because the effects on for-hire vessels would be indirect, they fall outside the scope of the RFA. Furthermore, for-hire captains and crew are allowed to retain gray triggerfish under the recreational bag limit; however, they are not allowed to sell these fish. As such, for-hire captains and crew would be directly affected only as recreational anglers. Recreational anglers who would be directly affected by this proposed rule are not considered small entities under the RFA, and are, therefore, outside the scope of this analysis. 5 U.S.C. 603. Small entities include “small businesses,” “small organizations,” and “small governmental jurisdictions.” 5 U.S.C. 601(6) and 601(3)-(5). Recreational anglers are not businesses, organizations, or governmental jurisdictions. In summary, only the impacts on commercial vessels will be further discussed.
        As of December 8, 2020, there were 831 vessels with Federal limited access valid or renewable Gulf reef fish permits, 62 of which had longline endorsements. On average from 2015 through 2019, there were 263 federally permitted commercial vessels each year with reported landings of gray triggerfish in the Gulf. Their average annual vessel-level gross revenue from all species for 2015 through 2019 was approximately $158,000 (2019 dollars) and gray triggerfish accounted for less than 0.3 percent of this revenue. The maximum annual revenue from all species reported by a single one of the commercial vessels that landed Gulf gray triggerfish from 2015 through 2019 was approximately $2.37 million (2019 dollars).
        For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. All of the commercial fishing businesses directly regulated by this proposed rule are believed to be small entities based on the NMFS size standard. No other small entities that would be directly affected by this rule have been identified.
        This proposed rule would modify the commercial and recreational ACLs and ACTs for gray triggerfish consistent with the most recent interim analysis for gray triggerfish, and recommendations from the Council's SSC, the SEFSC, and the Council's Reef Fish AP. Under the proposed rule, the commercial ACT would increase by 27,373 lb (12,416 kg), round weight, which if harvested in full, would correspond to an estimated increase in annual ex-vessel revenue of $56,115 (2019 dollars). Divided by the average number of commercial vessels with reported landings of gray triggerfish from 2015 through 2019, this would be an annual increase of approximately $213 per vessel. Economic benefits to each vessel may vary based on individual fishing practices. However, such distributional effects cannot be quantified with available data. If annual commercial landings are less than the proposed new ACT, the positive economic effects associated with this rule would be reduced accordingly.
        The information provided above supports a determination that this proposed rule would not have a significant adverse economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.
        No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this proposed rule. This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

          List of Subjects in 50 CFR Part 622
          Annual catch limit, Fisheries, Fishing, Gray triggerfish, Gulf, Quota, Reef fish.

          Dated: April 16, 2021.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

          PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC

        1. The authority citation for part 622 continues to read as follows:

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

        2. In § 622.39, revise paragraph (a)(1)(vi) to read as follows:

          § 622.39
          Quotas.

          (a) * * *
          (1) * * *
          (vi) Gray triggerfish—88,273 lb (40,040 kg), round weight.

        3. In § 622.41, revise the last sentence of paragraph (b)(1) and revise paragraph (b)(2)(iii) to read as follows:

          § 622.41
          Annual catch limits (ACLs), annual catch targets (ACTs), and accountability measures (AMs).

          (b) * * *
          (1) * * * The commercial ACL is 95,949 lb (43,522 kg), round weight.
          (2) * * *
          (iii) The recreational ACL for gray triggerfish is 360,951 lb (163,725 kg), round weight. The recreational ACT for gray triggerfish is 274,323 lb (124,431 kg), round weight.

      [FR Doc. 2021-08248 Filed 4-20-21; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 020508114-2114-01; I.D. 030702C]
        RIN 0648-AM97
        Fisheries Off West Coast States and in the Western Pacific; Coral Reef Ecosystems Fishery Management Plan for the Western Pacific; Correction

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

          ACTION:
          Corrections to a proposed rule.

          SUMMARY:
          This document corrects the phone number for the U.S. Fish and Wildlife Service (USFWS) that was listed in the proposed rule that was published on September 24, 2002.  It also removes Secretary of Commerce and replaces it with Secretary of the Interior.

          DATES:
          Effective October 22, 2002.

        SUPPLEMENTARY INFORMATION:
        Background

        On September 24, 2002 (67 FR 59813), NMFS published a proposed rule in the Federal Register that would implement those parts of the Fishery Management Plan for Coral Reef Ecosystems of the Western Pacific Region that were approved by the Secretary of Commerce.  The deadline for comments on the proposed rule is October 24, 2002.  The interested public was directed to call the USFWS for more information concerning fishing within national wildlife refuges and their boundaries, but the phone number published for the USFWS was incorrect.
        In that same issue, the phrase Secretary of Commerce was used instead of Secretary of the Interior and that is also incorrect.
        Corrections
        In the proposed rule FR Doc. 02-24013, in the issue of September 24, 2002, (67 FR 59813), make the following corrections:
        1.  On page 59814, in the second paragraph, in the second column, under Relation to Other Laws, remove the phone number for the USFWS and replace it with the following phone number:
        “808-541-1201.”

          § 660.601
          [Corrected]
          2.  On page 58919, in the first paragraph, in the second column, under  § 660.601, remove “Secretary of Commerce” and replace it with “Secretary of the Interior.”

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

          Dated: October 17, 2002.
          Rebecca Lent,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 02-26870 Filed 10-21-02; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 571
        [Docket No. NHTSA 00-8633]
        RIN 2127-AH96
        Federal Motor Vehicle Safety Standards—Motor Vehicle Brake Fluids

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

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:

          This document proposes technical modifications in two of the tests included in our standard on brake fluid, i.e., the evaporation test and the corrosion test. The purpose of the modifications would be to improve the repeatability and reproducibility of the tests. This document also requests comments concerning retention of the evaporation test. A committee of the Society of Automotive Engineers, which originally developed the test, recently voted to delete the test from its standard on brake fluid. While we have tentatively concluded that the test should remain in our standard, we are requesting comments on that issue.

          DATES:
          Comments must be received by March 19, 2001.

          ADDRESSES:
          You should mention the docket number of this document in your comments and submit your comments in writing to: Docket Management, Room PL-401, 400 Seventh Street, SW., Washington, DC, 20590. Alternatively, you may submit your comments to the docket electronically by logging onto the Dockets Management System website at http://dms.dot.gov. Click on “Help & Information” or “Help/Info” to obtain instructions for filing the document electronically. (This website also enables you to view the materials in the docket for this rulemaking.) You may call Docket Management at 202-366-9324. You may visit the Docket from 10 a.m. to 5 p.m., Monday through Friday.

          FOR FURTHER INFORMATION CONTACT:

            For legal issues: Edward Glancy, Office of the Chief Counsel, National Highway Traffic Safety Administration, 400 Seventh Street, SW, Washington, DC 20590 (202-366-2992).

            For other issues: Sam Daniel, Office of Crash Avoidance Standards, National Highway Traffic Safety Administration, 400 Seventh Street, SW, Washington, DC 20590 (202-366-4921).

        SUPPLEMENTARY INFORMATION:

          Table of Contents
          I. Background
          II. Proposal
          A. Evaporation Test
          B. Corrosion Test
          III. Effective Date
          IV. Rulemaking Analyses and Notices
          A. Executive Order 12866 and DOT Regulatory Policies and Procedures
          B. Regulatory Flexibility Act
          C. National Environmental Policy Act
          D. Executive Order 13132 (Federalism)
          E. Unfunded Mandates Act
          F. Executive Order 12778 (Civil Justice Reform)
          G. Paperwork Reduction Act
          H. Regulation Identifier Number (RIN)
          I. Plain Language
          J. Executive Order 13045
          K. National Technology Transfer and Advancement Act
          V. Submission of Comments

        I. Background
        Safety Standard No. 116, Motor Vehicle Brake Fluids, specifies requirements for fluids for use in hydraulic brake systems of motor vehicles, containers for these fluids, and labeling of the containers. The purpose of the standard is to reduce failures in the hydraulic braking systems of motor vehicles which may occur because of the manufacture or use of improper or contaminated fluid.
        Among the requirements of Standard No. 116 are ones addressing the evaporation and corrosiveness of brake fluid. Both of these characteristics of brake fluid are important for the safe and effective operation of vehicles equipped with hydraulic brake systems. For example, if brake fluid evaporates, fluid volume is reduced, “vapor locking” can occur, and reduced braking performance or brake failure can occur. Similarly, if brake fluid causes corrosion of brake system components, brake fluid leaks can result, with effects similar to that of evaporation.
        In administering Standard No. 116, we have identified several modifications in the standard's evaporation and corrosion tests that we believe would improve repeatability and reproducibility.1
           Those modifications, which we are proposing to incorporate in the standard, are discussed in the sections which follow.

            1 In order for a test to have good repeatability, there must not be undue variability in results when the same test is replicated at the same site. In order for a test to have good reproducibility, there must not be undue variability in results when the same test is replicated at different sites.

        II. Proposal
        A. Evaporation Test
        Standard No. 116 specifies various performance requirements relating to evaporation that must be met when brake fluid is tested according to a specified procedure that involves heating the brake fluid in an oven for an extended period of time. Among other things, the loss by evaporation must not exceed 80 percent by weight. See S5.1.8 and S6.8 of the standard.
        For a number of years, the agency has been concerned that the evaporation test may allow too much variability in test results. Because of this, we sponsored a study titled “Evaporation Test Variability Study,” which was published in May 1993. The study sought to identify and evaluate parameters of the brake fluid evaporation test procedure of Standard No. 116 that influence the high variability of results between laboratories. It also sought to develop procedural improvements to increase the precision and reproducibility of brake fluid evaporation measurements. This included validating procedural modifications by an interlaboratory round robin program using four designated brake fluids.
        The study identified four means by which test result variability could be reduced: (1) Using a rotating shelf in the oven with a 6 rpm sample rotation, (2) specifying the location of the shelf supporting the sample within the oven, (3) controlling the oven temperature monitoring point, and (4) using oven calibration fluid for purposes of oven standardization. We are placing a copy of the study in the docket.
        After we published the study, the Society of Automotive Engineers (SAE) committee on brake fluids initiated work to consider revising its evaporation test procedure to address these points. The SAE evaporation test procedure is set forth as part of Motor Vehicle Brake Fluid-SAE J1703 JAN95. The SAE committee developed a draft procedure that uses a rotating shelf oven, defines shelf placement, and includes temperature monitoring. The committee did not reach agreement on an oven calibration fluid because of concerns about lot variability.
        More recently, however, the SAE committee voted to eliminate the evaporation test from its standard. Members of the committee believed that the requirement is outdated. The test was developed at a time when brake fluids did not have as good resistance to evaporation as today's brake fluids, and vehicle brake fluid systems were not sealed. Members of the committee also believed that the evaporation test is redundant with the boiling point test, which evaluates similar brake fluid properties.
        Particularly given that the evaporation test included in Standard No. 116 was originally developed by SAE, we have considered, in light of SAE's action to delete the test from its standard, whether the test should be retained in our standard. We have tentatively concluded that the evaporation test should be retained in Standard No. 116. We are concerned that even though today's brake fluids may well have better resistance to evaporation than those in use when the test was originally developed, deletion of the test from Standard No. 116 could permit the introduction of inferior brake fluids into the United States market. Even if current brake fluid manufacturers would be unlikely to introduce such products, such introduction could come from new market entrants. Accordingly, we have tentatively decided to retain the evaporation test in Standard No. 116. We are, however, requesting comments on this issue.
        Assuming that the evaporation test is retained in Standard No. 116, we believe it is appropriate to improve the repeatability and reproducibility of the test. While we believe there are unresolved technical issues concerning oven calibration fluid, we believe that the repeatability and reproducibility of the evaporation test can be improved by adopting the other means for reducing test result variability that were identified by the NHTSA-sponsored report and included in the SAE committee draft procedure. Accordingly, we are proposing to amend the test procedure to specify use of a rotating shelf oven, define shelf placement, and specify temperature monitoring.
        We request comments on whether there are any other modifications to the evaporation test that would improve repeatability and reproducibility. Depending on the comments, we may, in the final rule, adopt additional modifications to the current test procedure and/or make changes in the specific modifications we are proposing.
        B. Corrosion Test

        Standard No. 116's corrosion test involves placing six metal strips (steel, tinned iron, cast iron, aluminum, brass and copper) in a standard brake wheel cylinder cup in a test jar, immersing the entire assembly in the brake fluid being tested, and then heating the fluid for an extended period of time. The metal strips and wheel cylinder cup represent the materials that comprise brake system components that are in contact with brake fluid (master cylinders, brake lines, caliper pistons, wheel cylinders, etc.).
        A variety of performance requirements must be met at the end of the corrosion test procedure. Among other things, the metal strips are examined for weight change, which must not exceed specified percentages. See S5.1.6 and S6.6 of the standard.
        While we do not have as much information concerning variability of the corrosion test as we do for the evaporation test, we have identified a change in the specification concerning how the metal strips are prepared prior to testing that we believe would improve repeatability and reproducibility. The standard currently specifies that each of the strips, other than the tinned iron strips, is to be abraded with wetted silicon carbide paper grit No. 320A until all surface scratches, cuts and pits are removed, and then polished with grade 00 steel wool.2
           We believe that less variability would result if the strips were further abraded with wetted silicon carbide paper grit No. 1200 instead of being polished with grade 00 steel wool, and if a visual acuity requirement for evaluating the presence of surface scratches, cuts and pits were specified.

            2 Tinned iron strips are not abraded or polished during preparation for corrosion testing because the tin coating is very thin and the test strips are highly polished to begin with.

        The steel wool may produce slight surface irregularities due to interaction with dissimilar metals that the No. 1200 silicon carbide paper would not. The visual acuity requirement would ensure removal of all surface scratches, cuts and pits that are visible to an observer having corrected visual acuity of 20/40 (Snellen ratio) at a distance of 300 mm (11.8 inches).
        III. Effective Date

        We are proposing to make the amendments proposed in this document effective one year after publication of a final rule in the Federal Register.
        IV. Rulemaking Analyses and Notices
        A. Executive Order 12866 and DOT Regulatory Policies and Procedures
        NHTSA has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document is not economically significant. It was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.”
        The proposed amendments would not affect the stringency of Standard No. 116, but would instead improve the repeatability and reproducibility of the standard's evaporation and corrosion tests. This would facilitate both the manufacturers' efforts in certifying their brake fluid and the agency's efforts in enforcing the standard.
        The costs of the proposed amendments would be minimal. We estimate that there are five to 10 brake fluid manufacturers that provide brake fluid for the United States market, including OEM and aftermarket brake fluid, and a somewhat larger number of packagers of brake fluid. There are also as many as five independent organizations with brake fluid testing capability.
        Each manufacturer, packager and organization that tested brake fluid would likely need to upgrade at least one oven so that it has a rotating shelf. We estimate the cost of modifying an existing oven at approximately $200. The cost of a new oven, which has a life expectancy of 10 to 20 years, is approximately $3,000.
        Any change in cost of conducting an evaporation test or corrosion test would be so minimal as to be nonquantifiable. Therefore, the proposed rule is unlikely to result in any change in the cost of brake fluid.
        B. Regulatory Flexibility Act

        We have considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. § 601 et seq.) I hereby certify that the proposed rule would not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis is not required for this action.
        As discussed above, the proposed amendments would not affect the stringency of Standard No. 116, but would instead make technical modifications in the standard's evaporation test and corrosion test to improve repeatability and reproducibility. Any change in cost of conducting an evaporation test or corrosion test would be so minimal as to be nonquantifiable, and the proposed rule is unlikely to result in any change in the cost of brake fluid. Therefore, the proposed amendments would not have any significant economic impacts on small businesses, small organizations or small governmental jurisdictions.
        C. National Environmental Policy Act
        NHTSA has analyzed this proposed amendment for the purposes of the National Environmental Policy Act and determined that it would not have any significant impact on the quality of the human environment.
        D. Executive Order 13132 (Federalism)
        The agency has analyzed this proposal in accordance with the principles and criteria set forth in Executive Order 13132 and has determined that it does not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The proposed rule would have no substantial effects on the States, or on the current Federalism-State relationship, or on the current distribution of power and responsibilities among the various local officials.
        E. Unfunded Mandates Act
        The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). The proposed rule would not result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually.
        F. Executive Order 12778 (Civil Justice Reform)
        This proposed rule would not have any retroactive effect. Under section 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a state may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.
        G. Paperwork Reduction Act

        This rulemaking action does not include any collections of information.

        H. Regulation Identifier Number (RIN)
        The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
        I. Plain Language
        Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
        —Have we organized the material to suit the public's needs?
        —Are the requirements in the rule clearly stated?
        —Does the rule contain technical language or jargon that is not clear?
        —Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
        —Would more (but shorter) sections be better?
        —Could we improve clarity by adding tables, lists, or diagrams?
        —What else could we do to make the rule easier to understand?
        If you have any responses to these questions, please include them in your comments on this NPRM.
        J. Executive Order 13045
        Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. This regulatory action does not meet either of those criteria.
        K. National Technology Transfer and Advancement Act
        Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards 3

           in its regulatory activities unless doing so would be inconsistent with applicable law (e.g., the statutory provisions regarding NHTSA's vehicle safety authority) or otherwise impractical. We note that the current evaporation and corrosion tests of Standard No. 116 are based on an SAE recommended practice. The proposed amendments, which would make modifications in those tests, are based on a draft procedure developed by an SAE committee.

            3 Voluntary consensus standards are technical standards developed or adopted by voluntary consensus standards bodies. Technical standards are defined by the NTTAA as “performance-based or design-specific technical specifications and related management systems practices.” They pertain to “products and processes, such as size, strength, or technical performance of a product, process or material.”

        V. Submission of Comments
        How Do I Prepare and Submit Comments?
        Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.
        Your comments must not be more than 15 pages long. (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

        Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESS.
        Comments may also be submitted to the docket electronically by logging onto the Dockets Management System website at http://dms.dot.gov. Click on “Help & Information” or “Help/Info” to obtain instructions for filing the document electronically.
        How Can I Be Sure That my Comments Were Received?
        If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
        How Do I Submit Confidential Business Information?

        If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR Part 512.)
        Will the Agency Consider Late Comments?

        We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider it in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.
        How Can I Read the Comments Submitted by Other People?

        You may read the comments received by Docket Management at the address given above under ADDRESSES. The hours of the Docket are indicated above in the same location.
        You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:
        (1) Go to the Docket Management System (DMS) Web page of the Department of Transportation (http://dms.dot.gov/).
        (2) On that page, click on “search.”
        (3) On the next page (http://dms.dot.gov/search/), type in the four-digit docket number shown at the beginning of this document. Example: If the docket number were “NHTSA-1998-1234,” you would type “1234.” After typing the docket number, click on “search.”
        (4) On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments.
        Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.

          List of Subjects in 49 CFR Part 571
          Imports, Motor vehicle safety, Motor vehicles.

        In consideration of the foregoing, we propose to amend 49 CFR Part 571 as set forth below.

        1. The authority citation for Part 571 would continue to read as follows:

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

        2. Section 571.116 would be amended by:
        a. revising S6.6.3(e);
        b. in S6.6.4(a), revising the first and third sentences;
        c. revising S6.8.2(b); and
        d. in S6.8.3, revising the fourth sentence and adding three new sentences after the fourth sentence.
        The revised and added paragraphs would read as follows:

          § 571.116
          Standard No. 116; Motor vehicle brake fluids.

          S6.6.3 * * *

          (e) Supplies for polishing strips. Waterproof silicon carbide paper, grit No. 320A and grit 1200; lint-free polishing cloth.

          S6.6.4 * * *
          (a) * * * Except for the tinned iron strips, abrade corrosion test strips on all surface areas with 320A silicon carbide paper wet with ethanol (isopropanol when testing DOT 5 SBBF fluids) until all surface scratches, cuts and pits visible to an observer having corrected visual acuity of 20/40 (Snellen ratio) at a distance of 300 mm (11.8 inches) are removed. * * * Except for the tinned iron strips, further abrade the test strips on all surface areas with 1200 silicon carbide paper wet with ethanol (isopropanol when testing DOT 5 SBBF fluids), again using a new piece of paper for each different type of metal. * * *

          S6.8.2 * * *

          (b) Oven. A top-vented gravity-convection oven equipped with a 6 rpm rotating shelf and capable of maintaining a temperature of 100° ± 2° C. (212° ± 4° F.). The center of the top surface of the rotating shelf coincides with the center of the oven.

          S6.8.3 * * *
          Level the oven and place the four petri dishes, each inside its inverted cover, on the rotating shelf in the oven at 100° ± 2° C. (212° ± 4° F.) for 46 ± 2 hours. The thermometer for monitoring oven temperature is placed 25 mm ± 5 mm (1 inch ± 0.2 inch) above the rotating oven shelf containing the petri dishes. The 100° C. mark on the thermometer is either outside the oven or the thermometer is capable of being read from outside the oven without opening the oven door. The oven door is not opened to read the thermometer during the test. * * *

          Issued on: January 8, 2001.
          Stephen R. Kratzke,
          Associate Administrator for Safety Performance Standards.

      [FR Doc. 01-1219 Filed 1-12-01; 8:45 am]
      BILLING CODE 4910-59-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 216
        [Docket No. 031003245-3245-01;I.D. 122702A]
        RIN 0648-AR14
        Designating the AT1 Group of Transient Killer Whales as a Depleted Stock Under the Marine Mammal Protection Act (MMPA)

          AGENCY:
          National Marine Fisheries Service (NMFS), NOAA, Commerce.

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to designate the AT1 group of transient killer whales as a depleted stock of marine mammals pursuant to the MMPA.  This action is being taken pursuant to a status review conducted by NMFS in response to a petition to designate a group of transient killer whales in Alaska (known as the AT1 group). The biological evidence indicates that the group is a population stock as defined by the MMPA, and the stock is depleted as defined by the MMPA.

          DATES:
          Comments and information must be received by January 22, 2004.

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

          FOR FURTHER INFORMATION CONTACT:
          Kaja Brix NOAA/NMFS, Alaska Region, (907) 586-7235.

        SUPPLEMENTARY INFORMATION:
        Electronic Access

        Information related to the petition and the status of the AT1 group of killer whales is available on the Internet at the following address: http://www.fakr.noaa.gov/protectedresources/whales/default.htm.

        NMFS guidelines for preparing stock assessment reports, which contain guidance for identifying population stocks of marine mammals, may be found on the Internet at the following address: http://nmml.afsc.noaa.gov/library/gammsrep/gammsrep.htm.
        Background
        NMFS received a petition on November 13, 2002, from the National Wildlife Federation, on behalf of itself, Alaska Center for the Environment, Alaska Community Action on Toxics, Center for Biological Diversity, Coastal Coalition, Defenders of Wildlife, and Eyak Preservation Council, to designate the AT1 group of transient killer whales as a depleted population stock under the MMPA.  NMFS published a notice that the petition was available (67 FR 70407, November 22, 2002).  After evaluating the petition, NMFS determined that the petition contained substantial information indicating that the petitioned action may be warranted (68 FR 3483, January 24, 2003).  Following its determination that the petitioned action may be warranted, NMFS conducted a status review to evaluate whether the AT1 group is a population stock and, if so, whether that stock is depleted.  This proposed rule is based upon that status review.
        Killer whales in the Pacific Northwest and Alaska are classified into three distinct forms:  “Residents,” “transients,” and “offshores.”  All three forms occur in Prince William Sound and the Kenai Fjords region of Alaska

        The core of the resident killer whale social structure is the matrilineal group, or matriline.  A matrilineal group, which may be as small as two animals, consists of a female and all her offspring of both sexes.  Permanent associations of matrilines are termed “pods”.  Resident pods of killer whales usually contain 3-52 individuals; emigration or immigration occurs only by birth or death (Saulitis, 2000; Matkin and Saulitis, 1994; Matkin et al., 1999).  Breeding by resident killer whales typically does not occur within pods but between whales from distantly related pods (Barrett-Lennard, 2001).  A number of associating and potentially interbreeding resident pods may form a “population,” the largest social division.  A resident population may number in the hundreds and may be distinguished from other populations on the basis of genetic or acoustic analysis and association patterns.
        The social structure of transient killer whales is not as well understood as that of resident killer whales.  Some movement of individuals occurs between groups within a population and thus there is a lack of clearly defined pods.  However, at the population level the same separations based on genetic and acoustic analysis and association patterns can be made for transients as for residents.
        A definitive characteristic of transient killer whales is that they prey on other marine mammals, unlike resident killer whales which subsist on fish. Other documented differences between transient and resident killer whales include differences in morphology, group size (transient groups tend to have fewer whales), social organization, and acoustic calls.  Transients and residents avoid one another and do not interbreed, although rare interactions between transients and residents have been observed.  Thus, a very small transient group may exist among a much larger resident population and remain demographically isolated.

        Recent genetics analysis by Barrett-Lennard (2000) indicate that there are three distinct transient killer whale groups present in the eastern North Pacific:   The West Coast (WC) transients, the Gulf of Alaska (GOA) transients and the AT1 transients.  These three groups are genetically separate but their geographic ranges overlap  (Barrett-Lennard, 2000).  The GOA transient group and the AT1 transient group exclusively inhabit Alaskan waters.  GOA transients are found in the waters west of Glacier Bay (as far as Kodiak Island), and occasionally enter Prince William Sound.  The AT1 transients appear to have a more limited range and have only been seen year-round in Prince William Sound and the Kenai Fjords region of Alaska (Saulitas et al. 2000).  Consequently, most members of the AT1 group are resighted every year or two.  Interactions between members of the different transient killer whale groups have not been observed.  Genetic evidence indicates they have been separate for thousands of years (Barrett-Lennard, 2000) although, given the small size of the AT1 group, observed genetic differences could have arisen within a few killer whale generations.
        The AT1 Group of Transient Killer Whales

        AT1 killer whales have been recognized in Prince William Sound since at least 1978 (Leatherwood et al. 1984a, Saulitas 1993).  Three AT1 whales (AT7, AT15, AT16) were first photographed in 1978; other animals were likely not photographed due to the low level of research effort in Prince William Sound at that time.  In the 1980s, the AT1 transient group was one of the most frequently encountered killer whale groups in Prince William Sound (Matkin et al. 1999).  Once a major research effort began in Prince William Sound, 20 individuals were identified in 1984 (though 2 others were known to be present), 17 in 1985, and 21 in 1986.   All individuals identified prior to 1984 (from 1978-1983) were seen alive in 1984.

        The AT1 transient group has been sighted year-round in Prince William Sound, as well as in Resurrection and Aialik Bays of adjacent Kenai Fjords (Saulitis, 2000).  While the group is known to have once had as many as 22 members, the number of AT1 transient killer whales has been reduced by more than half since the 1989 Exxon Valdez oil spill (Matkin et al., 1999).  Only 11 members of the AT1 group have been seen since 1992 and the missing 11 members are either known or presumed to be dead (Matkin et al. 2000).  Two additional males from this group have been confirmed dead within the past few summers.  The deaths of these two whales reduced the known AT1 group to nine individuals.  Of the remaining nine members, four are female.  No new calves have been observed since the AT1 group was first recognized in 1984.
        Identifying a “Population Stock” or “Stock” Under the MMPA
        To designate the AT1 group of killer whales as a depleted stock under the MMPA, it must be a “population stock” or “stock”.  Section 3(11) of the MMPA defines “population stock” or “stock” as a group of marine mammals of the same species or smaller taxon, in a common spatial arrangement, that interbreeds when mature.  Under the MMPA, population stocks must be identified and stock assessment reports must be prepared on the basis of the best scientific information available.
        To interpret this definition fully, the objectives of the MMPA must be considered.  Section 2(2) of the MMPA (16 U.S.C. 1361(2)(2)) states that species and population stocks of marine mammals “should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem in which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population.”  Further, section 2(6) provides that “the primary objective of their management should be to maintain the health and stability of the marine ecosystem.  Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population, keeping in mind the carrying capacity of the habitat.”  Stocks must be identified in such a way that is consistent with these goals.
        In interpreting the MMPA's guidance to identify stocks of marine mammals, NMFS reviewed legislative guidance related to population stocks and consequences for making incorrect decisions in its guidelines for preparing marine mammal stock assessment reports (see Electronic Access).  In these guidelines, NMFS states, “For the purposes of management under the MMPA, a stock is recognized as being a management unit that identifies a demographically isolated biological population.  It is recognized that in practice, defined stocks may fall short of this ideal because of a lack of information, or for other reasons.”  The guidelines further stated, “Many types of information can be used to identify stocks of a species:   distribution and movements, population trends, morphological differences, genetic differences, contaminants and natural isotope loads, parasite differences, and oceanographic habitat differences.  Evidence of morphological or genetic differences in animals from different geographic regions indicates that these populations are reproductively isolated.  Reproductive isolation is proof of demographic isolation, and thus separate management is appropriate when such differences are found.”  NMFS considered the following lines of evidence regarding the AT1 group of killer whales in proposing this stock determination:   association information, acoustic and dialect differences, and genetic differences between AT1 and other groups of transient killer whales.
        Association Information

        The association data, which includes information on the movements and distribution of transient killer whales, support the conclusion that the AT1 group is discrete from other transient killer whales in Alaska.  Although the distributions of AT1 killer whales and other transient killer whales have limited overlap, the AT1 group of transient killer whales does has never been seen moving in association with sympatric resident killer whale pods or with other transient groups that occasionally use Prince William Sound (Matkin et al. 1999a).
        Matkin and Saulitis (1994) reported that seven different groups of GOA transients have been seen using Prince William Sound, that most of the whales in these seven groups were photographed only once, and that whales from the GOA transients were usually seen only once in a season.  The AT1 group is regularly encountered in Prince William Sound and has been seen only in Prince William Sound and the Kenai Fjords.  Matkin and Saulitis (1994) also reported that other transient whales were never seen mixing with the AT1 group.
        Acoustic Differences

        Acoustic analysis of the calls made by transient killer whales in Alaska provides further support for the discreteness of the AT1 group.Like many species of dolphins, killer whales have developed and depend on a complex system of communication and echolocation.  Scientists have been able to distinguish different populations of killer whales by their vocal repertoire, and dialects of some killer whale groups have remained constant for more than 25 years (Ford et al., 2000).

        The AT1 group has a vocal dialect distinct from that of any resident pod or other transient group in the eastern North Pacific  (Saulitis et al.,1993; Matkin et al., 1999).  Researchers have identified 14 discrete pulsed calls for the AT1 group in addition to echolocation clicks, and only one call produced by the AT1 group is similar to any other call used by transient groups between southeast Alaska and California (Saulitis, 1993).  Under the assumption that the acoustic repertoire is learned at a young age and is thought to be relatively fixed for life, then the AT1 group has been separate for at least a period longer than the oldest individual in the group.
        Genetic Relationships
        At this time, NMFS recognizes one stock of transient killer whales, the eastern North Pacific stock.  However, recent genetic analyses indicate that a finer structure exists and that the eastern North Pacific stock may consist of up to three stocks.

        The population structure of transients in the North Pacific has been investigated by Barrett-Lennard (2000), who identified three groups of mammal-eating killer whales using genetics:   WC transients, GOA transients, and the AT1 transients.  Mitochondrial DNA (mtDNA) and nuclear DNA analyses indicate that the AT1 group is genetically isolated from the other killer whales within the currently defined eastern North Pacific transient stock (Barrett-Lennard, 2000; Matkin et al., 1999).

          mtDNA: Until recently, the mtDNA haplotype, which is inherited only from the mother, found in the AT1 whales has not been found in killer whales from other populations (Barrett-Lennard, 2000).  The “AT1 haplotype” has recently been found in 4 whales from the Bering Sea area, which might suggest that there are individuals closely related to the AT1 group that frequent other parts of the North Pacific.  However, mtDNA haplotypes are often of limited use in determining whether a particular individual is a member of a particular population.  In contrast, mtDNA haplotype frequencies are very useful in describing population structure.  Since all members of the AT1 group have the so-called AT1 haplotype, and only a few individuals in the Bering Sea have been found to have this haplotype, it is clear that the frequencies are quite different, which strongly suggests they are separate populations.  Preliminary analysis of photographs of the Bering Sea whales recently found to have the AT1 haplotype conclusively indicate that they are not the “missing” whales from the AT1 group.

          Nuclear DNA: Barrett-Lennard (2000) found significant genetic differences in nuclear (microsatellite) DNA, which is inherited from both parents, among AT1s, GOA transients, and WC transients.  In particular, the AT1 group sample was found to be the most divergent in its microsatellite allele frequencies because they were more divergent from the nearby GOA Transients and WC Transients than those groups were from each other.  The differences between the AT1 group and the other groups would be considered “large” by most population geneticists.
        In the case of the AT1 group, the high level of divergence from other transient killer whale groups might be related to the group's very small size.  The average level of heterozygosity in the AT1 group is approximately 60 percent that of the other transient groups, which is consistent with the AT1 group being a small population.  For a small population the level of genetic difference seen between AT1 killer whales and other transient groups could occur relatively quickly (perhaps within a few generations; one killer whale generation is 50-100 years).  Regardless of how many generations it took to generate, the degree of difference in microsatellite DNA is consistent with current demographic isolation between the AT1 group and GOA and WC transients.

          New genetic samples from the northern Gulf of Alaska: Since the analyses documented in Barrett-Lennard (2000), the number of biopsy samples of transient killer whales from the Gulf of Alaska to the Bering Sea has increased substantially.  A preliminary analysis of those new data (in combination with existing data) was undertaken to clarify the relationship between the AT1 group and other transient killer whales in Alaska, and these preliminary results were described in the report of NMFS' status review on AT1 killer whales  The analysis indicated that the Umnak killer whale with the AT1 haplotype is not a member of the AT1 group nor a member of a closely-related population.  Furthermore, there was no clear evidence that any of the other transient whales sampled in the Gulf of Alaska are closely related to the AT1 group.
        Alternatives to Explain the Genetic Differences
        The AT1 group is currently considered part of the eastern North Pacific transient killer whale stock, the only currently identified “stock” of transient killer whales in the North Pacific.  However, the new information described above indicates that the stock structure of transient killer whales should be reviewed, and that the AT1 group is genetically separate from other transient killer whales.
        There are at least three possible scenarios that might lead to the genetic differences that are seen between AT1 and other transient groups, though the three scenarios are not necessarily equally plausible given the available information.  An assumption that is made when speculating about these scenarios is that a very small population (circa 22 animals) could not persist as an independent population for a very long time.
        The first scenario is that the AT1 group represents a remnant of a previously larger population.  In this situation, there would have been two separate populations of transient killer whales in Alaska that were genetically and demographically isolated.  One of these populations declined in population size, and its remainder is now known as the AT1 group.
        The second scenario is that the AT1 group separated from another transient population relatively recently and has never been particularly large.  Genetic drift may occur rapidly in a small population so the observed genetic differences could have arisen fairly recently.  A small unit like the AT1 group would likely not have had a high probability of persisting as a separate population over a long time period.  In other words, if the AT1 group arose from another transient population and was never large in size, it may have been doomed to extinction since its beginning.  One problem with evaluating the importance of this possible scenario is that the terms “relatively recent” and “long time” are hard to define.  A third scenario is that the AT1 group is part of a larger population of transient killer whales that have not yet been sampled for genetics analysis.
        Although the population structure of transient killer whales in the Aleutians, Bering Sea, and in the western North Pacific is not yet fully understood, it is possible to eliminate some of the scenarios above from consideration.  The data available are reasonably consistent with the first two scenarios and will be discussed below.  However, at this time, there is no evidence to support the third scenario (that the AT1 group are part of a more widespread Alaska transient population that is largely sympatric with the GOA transients from Prince William Sound to the Bering Sea).  Substantial sampling along the Alaska Peninsula, the Aleutian Islands, and in the Bering Sea has failed to find killer whales that are closely-related, genetically, to the AT1 group.  Although four individuals have been found with the same mtDNA haplotype as found in the AT1 group, the one individual for which a complete microsatellite analysis was available was strongly assigned to GOA transient whales, rather than the AT1 group.
        As stated above, the available data are consistent with the scenario where the AT1 group may be a remnant of a much larger population that has been separate for a long time and are also consistent with the scenario where the AT1 group may consist of a very small number of animals that split off from a larger group in the recent past.  Genetic data alone are insufficient to distinguish between these two scenarios.  The AT1 group has less genetic diversity than other North Pacific transients, but more genetic diversity than would be expected if they had been at a very small population size for a long time.
        In its status review of AT1 killer whales, NMFS included literature on genetic relationships in other species of mammals that live in highly structured societies (e.g., monkeys, lions, wild dogs).  Results from the review of 17 studies indicated that strong genetic differentiation between social groups of terrestrial mammals appears relatively rare, occurring in only one of the 17 studies reviewed.  The status review cautioned against making strong conclusions based on these other studies because these terrestrial mammals and resident and transient killer whales do not exhibit identical social behavior.
        The Depleted Determination
        The AT1 Group as a Stock

        As discussed above, NMFS' guidelines for identifying population stocks of marine mammals state that many different types of information can be used to identify stocks, reproductive isolation is proof of demographic isolation, and demographically isolated groups of marine mammals should be identified as separate stocks.  These guidelines were based upon the MMPA's definition of population stock and with the purposes and polices of the MMPA.  The biological information discussed above, particularly molecular genetics and associations (distribution and movements), supports a determination that AT1 killer whales are demographically isolated from other groups of killer whales.  Therefore, based upon the best available scientific information, NMFS proposes to determine that the AT1 group of transient killer whales is a population stock.
        Status of the Stock
        Section 3(1)(A) of the MMPA (16 U.S.C. 1362(1)(A)) defines the term, “depletion” or “depleted”, as any case in which “the Secretary, after consultation with the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals * * * determines that a species or population stock is below its optimum sustainable population [(OSP)].”  Section 3(9) of the MMPA defines OSP ”* * * with respect to any population stock, [as] the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity [(K)] of the habitat and the health of the ecosystem of which they form a constituent element.”  NMFS' regulations at 50 CFR 216.3 clarify the definition of OSP as a population size which falls within a  range from the population level of a given species or stock that is the largest supportable within the ecosystem (carrying capacity [K]) to the population level that results in the maximum net productivity level (MNPL).  MNPL is the greatest net annual increment (increase) in population numbers resulting from additions due to reproduction less losses due to natural mortality.
        A population stock below its MNPL is, by definition, below OSP and, thus, would be considered depleted under the MMPA.  Historically, the estimated MNPL has been expressed as a range of values, generally 50 to 70 percent of K (42 FR 12010, March 1, 1977).  In 1977, the midpoint of this range (60 percent of K) was used to determine whether dolphin stocks in the eastern tropical Pacific Ocean were depleted under the MMPA (42 FR 64548, December 27, 1977).  The 60-percent-of-K value was used in the final rule governing the taking of marine mammals incidental to commercial tuna purse seine fishing in the eastern tropical Pacific Ocean (45 FR 72178, October 31, 1980) and has been used since that time for other status reviews under the MMPA.  For stocks of marine mammals, including killer whales, K is generally unknown.  NMFS, therefore, has used the best estimate available of maximum historical abundance as a proxy for K.
        As required by the MMPA, NMFS initiated consultation with the Marine Mammal Commission related to the petition to designate the AT1 group of killer whales as a depleted population stock.  In a letter dated December 23, 2002, the Commission noted that there were uncertainties regarding the relationships of the AT1 group to other killer whales in the North Pacific.  The Commission recommended as a precautionary approach that, until these uncertainties are resolved, NMFS should designate the AT1 group of transient killer whales as a depleted stock.
        There is no information on population trends or historical abundance of the Eastern North Pacific transient stock of killer whales, which is the population stock in which the AT1 group is currently recognized.  Similarly there is insufficient historical data on Alaska transients to provide information on trends in abundance in Alaska.  The AT1 group is the only group of transient whales whose recent history is known.
        As discussed above, the available information supports the conclusion that the AT1 group is a population stock of marine mammals.  The genetics data suggest that the group size was larger than 22 animals prior to 1984.  However, the abundance of this group prior to 1984 is unknown.  Consequently, there is no estimate for the maximum historical abundance.  In 1984, the group had 22 members, and its current abundance has been reduced to nine or fewer whales.  The current abundance is less than 60 percent of the known abundance in 1984; therefore, the group is below its MNPL or the lower limit of its OSP.  Consequently, the group meets the statutory definition of a depleted stock.  Based on the best scientific information available, NMFS proposes to designate the AT1 group of transient killer whales in Alaska as a depleted population stock under the MMPA.
        Public Comments Solicited
        NMFS is soliciting comments on this proposed rule for the designation of this stock as depleted under the MMPA from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party.
        References
        References are available upon request (See
          FOR FURTHER INFORMATION CONTACT).
        Classification
        This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.  Depletion designations under the MMPA are similar to ESA listing decisions, which are exempt from the requirement to prepare an environmental assessment or environmental impact statement under the National Environmental Policy Act.  See NOAA Administrative Order 216-6.03(e)(1).  Thus, NMFS has determined that the proposed depletion designation of this stock under the MMPA is exempt from the requirements of the National Environmental Policy Act of 1969, and an Environmental Assessment or Environmental Impact Statement is not required.

        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:   The MMPA imposes a general moratorium on the taking of marine mammals.  This proposed rule would designate a group of transient killer whales in Alaska (known as the AT1 group) as depleted; however, this designation would not, by itself, place any additional restrictions on the public.  A stock that is designated as depleted meets the definition of a strategic stock under the MMPA.  Under provisions of the MMPA, a take reduction team must be established and a take reduction plan developed and implemented within certain time frames if a strategic stock of marine mammals interacts with a Category I or II commercial fishery.  However, NMFS has not identified any interactions between commercial fisheries and this group of killer whales that would result in such a requirement.  In addition, under the MMPA, if NMFS determines that impacts on areas of ecological significance to marine mammals may be causing the decline or impeding the recovery of a strategic stock, it may develop and implement conservation or management measures to alleviate those impacts.  However, NMFS has not identified information sufficient to make any such determination for this group of killer whales.  Finally, the MMPA requires NMFS to prepare a conservation plan to conserve and restore any stock designated as depleted to its optimum sustainable population, unless NMFS determines that such a plan would not promote the conservation of the stock.  However, NMFS has not prepared any such plan, and the plan is not self-executing.  Any measures identified in the plan to conserve and restore the stock would require separate action before the action could be implemented. Any subsequent restrictions placed on the public to protect these whales would be included in separate regulations, and appropriate analyses under the Regulatory Flexibility Act would be conducted during those rulemaking procedures.  Hence, implementation of this proposed rule would not have a significant economic impact on a substantial number of small entities.  As a result, no regulatory flexibility analysis for this proposed rule has been prepared.
        This proposed rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act of 1980.  This proposed rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132.

          List of Subjects in 50 CFR Part 216
          Administrative practice and procedure, Exports, Imports, Marine mammals, Transportation.

          Dated:   October 20, 2003.
          William T. Hogarth,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 216 is proposed to be amended as follows:

          PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS

        1.  The authority citation for part 216 continues to read as follows:

          Authority:
          16 U.S.C. 1361 et seq. unless otherwise noted.

        2.  In § 216.15,a new paragraph (i) is added to read as follows:

          § 216.15
          Depleted species.

          (i) AT1 stock of killer whales (Orcinus orca).  The stock includes all killer whales belonging to the AT1 group of transient killer whales occurring primarily in waters of Prince William Sound, Resurrection Bay and the Kenai Fjords region of Alaska.

      [FR Doc. 03-26931 Filed 10-23-03; 8:45 am]
      BILLING CODE 3510-22-S