        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R4-ES-2010-0003]
        [MO 92210-0-0009-B4]
        RIN 1018-AW55

        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Carex lutea (Golden Sedge)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Revised proposed rule; reopening of comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on our March 10, 2010 (75 FR 11080), proposed rule to designate critical habitat for Carex lutea (golden sedge) under the Endangered Species Act of 1973, as amended (Act).  We also announce the availability of the draft economic analysis (DEA) associated with the proposed rule.  In addition, in this document, we propose to enlarge two previously proposed subunits of critical habitat because we discovered that Carex lutea occupies an area at these two subunits that is greater than what we believed when we were preparing the March 10, 2010 proposed rule.  We are reopening the comment period on the proposal for an additional 30 days to allow interested parties an opportunity to comment simultaneously on the revised proposed critical habitat designation, the associated DEA, and our amended required determinations section.  Comments previously submitted need not be resubmitted and will be fully considered in preparation of the final rule.

          DATES:

          We will consider public comments received or postmarked on or before September 2, 2010.   Please note that if you are using the Federal eRulemaking Portal (see ADDRESSES section, below) the deadline for submitting an electronic comment is 11:59 p.m. Eastern Daylight Savings Time on this date.

          ADDRESSES:
          You may submit comments by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov.  Follow the instructions for submitting comments to Docket No. FWS-R4-ES-2010-0003.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R4-ES-2010-0003; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.
          We will post all comments on http://www.regulations.gov.  This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Pete Benjamin, Field Supervisor, U.S. Fish and Wildlife Service, Raleigh Fish and Wildlife Office, P.O. Box 33726, Raleigh, NC 27636-3726; by telephone 919-856-4520; or by facsimile 919-856-4556.  Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Public Comments

        We will accept written comments and information during this reopened comment period on the proposed designation of critical habitat for Carex lutea that we published in the Federal Register on March 10, 2010 (75 FR 11080), the two expanded subunits proposed as critical habitat and our amended required determinations section provided in this document, and the draft economic analysis (DEA) of the proposed designation of critical habitat for Carex lutea. We will consider information and recommendations from all interested parties.  We are particularly interested in comments concerning:

        (1) The reasons why we should or should not designate areas as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to Carex lutea from human activity, the degree of which can be expected to increase due to the designation, and whether the benefit of designation would outweigh threats to the species caused by the designation, such that the designation of critical habitat is prudent.
        (2) Specific information on:
        • The amount and distribution of Carex lutea;
        • What areas containing features essential to the conservation of the species should be included in the designation and why;

        • Special management considerations or protections for the physical and biological features essential to Carex lutea conservation that have been identified in the proposed rule that may be  needed, including managing for the potential effects of climate change; and
        • What areas not currently occupied by the species are essential to the conservation of the species and why.
        (3) Specific information on Carex lutea and the habitat components (physical and biological features) essential to the conservation of this species.
        (4) Any information on the biological or ecological requirements of this species.
        (5) Land-use designations and current or planned activities in areas occupied by the species, and their possible impacts on the species and the proposed critical habitat.
        (6) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities and the benefits of including or excluding areas that are subject to these impacts.
        (7)  Whether the benefits of excluding any particular area from critical habitat outweigh the benefits of including that area as critical habitat under section 4(b)(2) of the Act, after considering the potential impacts and benefits of the proposed critical habitat designation.
        (8) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
        (9) Information on the extent to which the description of potential economic impacts in the DEA is complete and accurate.

        You may submit your comments and materials concerning the proposed rule, this document, or the DEA by one of the methods listed in the ADDRESSES section.

        If you submitted comments or information on the proposed critical habitat rule for Carex lutea that we published on March 10, 2010 (75 FR 11080), you do not have to resubmit them.  Your comments are included in the public record for this rulemaking, and we will fully consider them in the preparation of our final determination.
        If you submit a comment via http://www.regulations.gov, your entire comment—including your personal identifying information—will be posted on the website.  We will post all hardcopy comments on http://www.regulations.gov as well.  If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review.  However, we cannot guarantee that we will be able to do so.  Please include sufficient information with your comments to allow us to verify any scientific or commercial information you include.

        Comments and materials we receive, as well as supporting documentation used in preparing the proposed rule and DEA, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service's Raleigh Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).  You may obtain copies of the proposed rule and the DEA on the Internet at http://www.regulations.gov at Docket Number: FWS-R4-ES-2010-0003, or by mail from the Raleigh Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
        Background
        Species Information

          Carex lutea is a perennial member of the sedge family (Cyperaceae). The species is endemic to the Black River section of the Coastal Plain Province of North Carolina. The North Carolina Natural Heritage Program (NCNHP) recognizes eight populations, all within a 16-by-5-mile (26-by-8-kilometer) area, extending southwest from the community of Maple Hill.

          Carex lutea occurs in the Pine Savanna (Very Wet Clay Variant) natural community type characterized by an open to sparse canopy dominated by pond pine (Pinus serotina), and usually with some longleaf pine (P. palustris) and pond cypress (Taxodium ascendens).

          Carex lutea is threatened by fire suppression; habitat alteration, such as land conversion for residential, commercial, or industrial development; mining; drainage for silviculture and agriculture; highway expansion; and herbicide use along utility and highway rights-of-way.
        Previous Federal Actions
        We listed Carex lutea as an endangered species on January 23, 2002 (67 FR 3120).  We found that the designation of critical habitat was not prudent in the proposed listing rule (64 FR 44470, August 16, 1999).  Upon reconsideration, we found that a critical habitat designation was prudent in the final listing rule (67 FR 3120, January 23, 2002); however, at that time, we deferred proposal of critical habitat due to budgetary and workload constraints.

        On December 19, 2007, the Center for Biological Diversity filed a complaint for declaratory and injunctive relief challenging the Service's continuing failure to timely designate critical habitat for this species as well as three other plant species (Center for Biological Diversity v. Kempthorne, C-04-3240 JL (N. D. Cal.)).  In a settlement agreement dated April 11, 2008, the Service agreed to submit for publication in the Federal Register a proposed designation of critical habitat, if prudent and determinable, on or before February 28, 2010, and a final determination by February 28, 2011.  The Service determined that critical habitat was prudent for Carex lutea and published a proposed critical habitat designation on March 10, 2010 (75 FR 11080).
        In total, approximately 189 acres (ac) (76 hectares (ha)) of land in Onslow and Pender Counties, North Carolina, fall within the areas that we proposed as critical habitat for this species on March 10, 2010.
        Proposed Critical Habitat Designation—Amended
        Additional field surveys at two extant Carex lutea subpopulations indicate that the extent of the golden sedge at those sites is actually greater than what was originally believed (Suiter 2010, pers. obs.).    These two areas contain all of the primary consitutent elements that were identified in our previously published critical habitat designation for Carex lutea.  Therefore, we propose the following changes to units 5 and 8.
        Proposed Changes to Unit 5, Onslow County, North Carolina
        Additional Carex lutea plants were found on the north side of the private sand road immediately adjacent to the area previously defined as subunit 5D (Sandy Run Savannas) in Onslow County, North Carolina.  Due to their close proximity to each other, these plants are considered an extension of the subpopulation at subunit 5D.  Although not discovered until 2010, it is extremely likely that this subpopulation was present at the time of listing.  The area where the additional plants were found has been fire suppressed for several years, and it is believed that recent prescribed fires in the winter of 2010 opened this area to sunlight, allowing the Carex lutea plants to flourish.  The fire also removed some thick, woody vegetation and allowed easy access for Service biologists to conduct surveys.  This remnant pine savanna contains all of the primary constituent elements (PCEs) identified for Carex lutea.
        Excluding the roadbed, subunit 5D, which was 0.3 ac (0.1 ha) in our March 10, 2010, proposed rule (75 FR 11080), would increase by 4.6 ac (1.9 ha) to a total of 4.9 ac (2.0 ha) in size. Based on this new information and the adjustment to our previously proposed critical habitat areas, Unit 5, all of which is owned by the N.C. Division of Parks and Recreation and managed as the Sandy Run Savannas State Natural Area, would increase from 20.6 ac (8.3 ha) to 25.2 ac (10.2 ha) of proposed critical habitat.
        Proposed Changes to Unit 8, Pender County, North Carolina

        The area we identified in our March 10, 2010, proposed rule (75 FR 11080), as subunit 8C (McLean Savanna) in Pender County, North Carolina, is owned by The Nature Conservancy (TNC) and a private company; however, TNC anticipates acquiring the privately owned section in the next 12 months.  The Carex lutea plants in subunit 8C occupy an area larger than what was originally known (Suiter 2010, pers. obs.).  Based on what we know about the biology of the species, we believe that the additional plants have been present for many years, but they were not discovered until May 2010, when the Service first thoroughly surveyed the site.  Accordingly, the Service has expanded the area of proposed subunit 8C from 1.6 ac (0.6 ha) to 9.8 ac (4.0 ha), for an increase of 8.2 ac (3.3 ha).  The revised proposed critical habitat area contains all of the PCEs identified for Carex lutea.  Unit 8 would increase from 44.4 ac (17.9 ha) to 52.6 ac (21.3 ha) of proposed critical habitat.

        With the inclusion of these additional areas, the Service is now proposing 8 units (21 subunits) totaling approximately 201.8 ac (81.7 ha) in Onslow and Pender Counties, North Carolina, as critical habitat for Carex lutea.

        Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.  If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency.  Federal agencies proposing actions affecting critical habitat are required to consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
        Possible Exclusions from Critical Habitat and Draft Economic Analysis

        Section 4(b)(2) of the Act requires that we designate critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat.  We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.  We have not proposed to exclude any areas from critical habitat for Carex lutea.  However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation.  Accordingly, we have prepared a DEA concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES).

        The intent of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for Carex lutea that we published in the Federal Register on March 10, 2010 (75 FR 11080) and the two additional areas proposed in this document.  The DEA quantifies the economic impacts of all potential conservation efforts for Carex lutea, some of which will likely be incurred whether or not we designate critical habitat.  The economic impact of the proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.”  The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations).  The baseline, therefore, represents the costs incurred regardless of whether we designate critical habitat.  The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species.  The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species.  In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs; these are the costs we may consider in the final designation of critical habitat when evaluating the benefits of excluding particular areas under section 4(b)(2) of the Act.  The analysis forecasts both baseline and incremental impacts likely to occur if we finalize the proposed designation of critical habitat.
        The DEA describes economic impacts of Carex lutea conservation efforts associated with the following categories of activity:  (1) Residential development, (2) silviculture activities, and (3) transportation and utilities projects.  The DEA estimates that no economic impacts are likely to result from the designation of critical habitat for Carex lutea.  This determination is based on the fact that more than 80 percent of the proposed critical habitat is already subject to conservation measures that benefit the plant.  Economic impacts are unlikely in the remaining 20 percent, given the limited potential for future economic activity and the low probability of a Federal nexus that would require consultation with the Service.

        The DEA also discusses the potential benefits associated with the designation of critical habitat.  The primary intended benefit of critical habitat is to support the conservation of endangered and threatened species, such as Carex lutea.  Quantification and monetization of species conservation benefits requires information on the incremental change in the probability of Carex lutea conservation that is expected to result from the designation.  As described in the DEA, modifications to future projects are unlikely given the extensive baseline protections already provided to Carex lutea habitat and the lack of anticipated economic activity and a Federal nexus on privately-owned, unprotected parcels.
        Required Determinations—Amended

        In our March 10, 2010, proposed rule (75 FR 11080), we indicated that we would defer our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA.  We have now made use of the DEA data in making this determination.  In this document, we affirm the information in our proposed rule concerning: Regulatory Planning and Review (E.O. 12866), E.O. 12630 (Takings), Executive Order (E.O.) 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the Paperwork Reduction Act, the National Environmental Policy Act, and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951).  However, based on the DEA data, we are updating our required determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), and E.O. 13211 (Energy Supply, Distribution, or Use).
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions), as described below. However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on the DEA of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities.  Based on comments we receive, we may revise this determination as part of a final rulemaking.

        According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

        To determine if the proposed designation of critical habitat for Carex lutea would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as residential and commercial development. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies.

        If we finalize this proposed critical habitat designation, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. In areas where Carex lutea is present, Federal agencies would also be required to consult with us under section 7 of the Act, due to the endangered status of the species. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the same consultation process.

        In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for Carex lutea.  The DEA estimates that no economic impacts are likely to result from the designation of critical habitat for Carex lutea.  This determination is based on the fact that more than 80 percent of the proposed critical habitat is already subject to conservation measures that benefit the plant.  Economic impacts are unlikely in the remaining 20 percent, given the limited potential for future economic activity and the low probability of a Federal nexus that would require consultation with the Service.  Based on that analysis, no impacts to small entities are expected as a result of the proposed critical habitat designation. Please refer to Appendix A of the DEA of the proposed critical habitat designation for a more detailed discussion of our analysis.
        In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities.  Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service.  For the reasons discussed above, and based on currently available information, we certify that if promulgated, the proposed designation would not have a significant economic impact on a substantial number of small business entities.  Therefore, an initial regulatory flexibility analysis is not required.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:
        (a)  This revised rule would not produce a Federal mandate.  In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.”  These terms are defined in 2 U.S.C. 658(5)-(7).  “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions.  It excludes “a condition of Federal assistance.”  It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly.  At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.  “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
        The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties.  Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not jeopardize the continued existence of the species, or destroy or adversely modify critical habitat under section 7.  While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.  Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

        (b)  As discussed in the DEA of the proposed designation of critical habitat for Carex lutea, we do not believe that this rule would significantly or uniquely affect small governments because it would not produce a federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Refrom Act .  The lands being proposed for critical habitat designation are owned by private individuals, The Nature Conservancy and the State of North Carolina (Division of Parks and Recreation, Department of Transportation and Wildlife Resources Commission).  None of these government entities fit the definition of “small governmental jurisdiction.”  The DEA also identified no cost resulting from the critical habitat designation.  Because no incremental costs are anticipated, no small entities are expected to be affected by the rule.  Therefore, a Small Government Agency Plan is not required.

        Energy Supply, Distribution, or Use

        On May 18, 2001, the President issued an Executive Order (E.O. 13211; Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) on regulations that significantly affect energy supply, distribution, and use.  E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions.  The OMB's guidance for implementing this Executive Order outlines nine outcomes that may constitute “a significant adverse effect” when compared to no regulatory action.  As discussed in Appendix A, the DEA finds that none of these criteria are relevant to this analysis.  The DEA concludes that since no modifications are anticipated to result from the designation of critical habitat, energy-related impacts are not expected.  Since no incremental impacts are forecast associated specifically with this rulemaking on the production, distribution, or use of energy, designation of critical habitat for Carex lueta is not expected to lead to any adverse outcomes (such as a reduction in electricity production or an increase in the cost of energy production or distribution).  A Statement of Energy Effects is not required.
        Authors

        The primary authors of this document are the staff members of the Raleigh Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

          List of Subjects in 50 CFR Part 17
          Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation
        .Proposed Regulation Promulgation
        Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended at 75 FR 11080 (March 10, 2010), as follows:

          PART 17—[AMENDED]

        1.  The authority citation for part 17 continues to read as follows:

          Authority:
          16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

        2.  Critical habitat for Carex lutea (golden sedge) in § 17.96, which was proposed to be added to paragraph (a) on March 10, 2010, at 75 FR 11080, is proposed to be amended by revising the maps in paragraphs (5), (10)(vi), and (13)(iv), to read as follows:

          § 17.96
          Critical habitat—plants.

         (a)  Flowering plants.

        Family Cyperaceae: Carex lutea (golden sedge)

        (5) Note: Index Map (Map 1) follows:

          EP03au10.956

        (10)  *   *   *
        (vi)  Map of Unit 5 (Sandy Run Savannas) follows:

          EP03au10.957

        (13) *    *    *
        (iv)  Map of Unit 8 (McLean Savanna) follows:

          EP03au10.958

          Dated: July 20, 2010
          Thomas L. Strickland
          Assistant Secretary for Fish and Wildlife and Parks

      [FR Doc.  2010-18760 Filed 8-2-10; 8:45 am]
      BILLING CODE 4310-55-S


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        Endangered and Threatened Wildlife and Plants; Status Review for the Westslope Cutthroat Trout

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Reopening of public comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service, announce the reopening of the public comment period for a new status review for the westslope cutthroat trout (Oncorhynchus clarki lewisi) in the United States, pursuant to a recent Court order and the Endangered Species Act of 1973, as amended.  We request additional data, information, technical critiques, and relevant comments that may be available for this subspecies of fish, as previously described in the Federal Register (67 FR 56257; September 3, 2002).

          DATES:
          The reopened comment period closes on February 15, 2003. Any comments that are received after the closing date will not be considered in the status review.

          ADDRESSES:

          Comments should be submitted to Westslope Cutthroat Comments, U.S. Fish and Wildlife Service, 2900 4th Avenue North, Room 301, Billings, MT 59102. Comments also may be submitted electronically to <fw6_westslope@fws.gov>.

          FOR FURTHER INFORMATION CONTACT:
          Lynn R. Kaeding at e-mail <lynn_kaeding@fws.gov> or telephone (406) 582-0717.

        SUPPLEMENTARY INFORMATION:
        Background
        A September 3, 2002, Federal Register notice (67 FR 56257) announced the opening of a 60-day public comment period for a new status review for the westslope cutthroat trout in the United States, pursuant to a recent Court order and the Endangered Species Act of 1973, as amended. During that comment period, we received written requests for an extension of the comment period from the game and fish departments of the States of Washington, Oregon, Idaho, and Montana, as well as the Kalispel Tribe of Indians and the Earthjustice Legal Foundation. In their letters, those entities indicated that they were assembling or awaiting important information relevant to the status of westslope cutthroat trout and that those entities wanted to make such information available to us for use in the status review. The present action satisfies those requests.
        Author
        The primary author of this document is Lynn R. Kaeding, Chief, Branch of Native Fishes Management, Montana Fish and Wildlife Management Assistance Office, U.S. Fish and Wildlife Service, 4052 Bridger Canyon Road, Bozeman, MT 59715.
        Authority

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

          Dated: December 4, 2002.
          Marshall P. Jones, Jr.,
          Director, Fish and Wildlife Service.

      [FR Doc. 02-31875 Filed 12-17-02; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 229
        [Docket No. 201123-0312]
        RIN 0648-BF90
        Taking of Marine Mammals Incidental to Commercial Fishing Operations; Amendment to the Atlantic Pelagic Longline Take Reduction Plan

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          NMFS proposes to amend the regulations implementing the Atlantic Pelagic Longline Take Reduction Plan (hereinafter called the PLTRP or the Plan) to reduce mortalities and serious injuries of short-finned pilot whales incidental to the Atlantic pelagic longline fishery to meet the long-term goal of the Plan as required by the Marine Mammal Protection Act (MMPA). The PLTRP currently contains both regulatory and non-regulatory management measures to reduce mortality and serious injury of pilot whales (Globicephala spp.) and Risso's dolphins (Grampus griseus), in the Atlantic portion of the Category I Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery (hereinafter called Atlantic pelagic longline fishery). The proposed amendments to the PLTRP are based on consensus recommendations submitted by the Atlantic Pelagic Longline Take Reduction Team (hereinafter called the PLTRT or the Team) and include: Removing the Cape Hatteras Special Research Area and the associated special observer and research participation requirements for fishermen operating in that area, modifying the mainline length restrictions for pelagic longline sets in the U.S. exclusive economic zone (EEZ) portion of the Mid-Atlantic Bight, and implementing required hook and gangion modifications in the EEZ portion of the Florida East Coast, South Atlantic Bight, Mid-Atlantic Bight and Northeast Coastal fishing areas. Furthermore, NMFS is removing Risso's dolphins and long-finned pilot whales from the Plan's scope.

          DATES:
          Written comments on the proposed rule must be received no later than 5 p.m. eastern time on February 16, 2021.

          ADDRESSES:
          You may submit comments on this proposed rule, identified by 0648-BF90, by any of the following methods:
          • Federal eRulemaking Portal: Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0105, click the “Comment Now!' icon, complete the required fields, and enter or attach your comments.
          • Mail: Erin Fougères, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

            Instructions: NMFS may not consider comments if they are sent by any other method, to any other address or individual, or received after the comment period ends. All comments received are a part of the public record and NMFS will generally post for public viewing on to www.regulations.gov without change. All personal identifying information (for example, name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender is publicly accessible. NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

          The draft Environmental Assessment, Regulatory Impact Review, Regulatory Flexibility Act Analysis, and references for the Proposed rule, can be found in the Federal eRulemaking Portal as supplementary document. Background documents for the PLTRP can be downloaded from the Take Reduction website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/pelagic-longline-take-reduction-plan, or by submitting a request to the Team coordinator, Erin Fougères, 727-824-5312.

          FOR FURTHER INFORMATION CONTACT:
          Erin Fougères, NMFS, Southeast Region, 727-824-5312, or Kristy Long, NMFS, Office of Protected Resources, 206-526-4792. Individuals who use telecommunications devices for the deaf (TDD) may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. eastern time, Monday through Friday, excluding Federal holidays.

        SUPPLEMENTARY INFORMATION:
        Background
        Section 118(f) of the MMPA requires NMFS to develop and implement take reduction plans to assist in the recovery of, or prevent the depletion of, each strategic marine mammal stock that interacts with Category I or II fisheries. Category I fisheries are fisheries that have frequent incidental mortality and serious injury of marine mammals, and Category II fisheries are fisheries that have occasional incidental mortality and serious injury of marine mammals. The MMPA also provides NMFS discretion to develop and implement a take reduction plan for any other marine mammal stocks that interact with a Category I fishery, which the agency determines, after notice and opportunity for public comment, has a high level of mortality and serious injury across a number of such marine mammal stocks.
        The MMPA defines a strategic stock as a marine mammal stock: (1) For which the level of direct human-caused mortality exceeds the potential biological removal (PBR) level; (2) which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the Endangered Species Act (ESA) in the foreseeable future; or (3) which is listed as threatened or endangered under the ESA, or is designated as a depleted species under the MMPA (16 U.S.C. 1362(19)). The PBR level is the maximum number of animals, not including natural mortalities, which can be removed annually from a stock, while allowing that stock to reach or maintain its optimum sustainable population level (50 CFR 229.2).

        In accordance with section 118(f) of the MMPA (16 U.S.C 1387), the immediate goal of a take reduction plan is to reduce, within six months of its implementation, the incidental mortality or serious injury of marine mammals taken in the course of commercial fishing operations to levels less than the PBR level for the stock. The long-term goal of a take reduction plan is to reduce, within 5 years of its implementation, the incidental mortality or serious injury of marine mammals taken in the course of commercial fishing to insignificant levels approaching a zero mortality and serious injury rate (i.e., insignificance threshold or zero mortality rate goal), which is 10 percent of the PBR level for a marine mammal stock (69 FR 43338, July 20, 2004). The long-term goal takes into account the economics of the fishery, the availability of existing technology, and existing state or regional fishery management plans. The MMPA also requires NMFS to amend take reduction plans and implementing regulations as needed to meet these requirements and goals.
        History of the PLTRT

        The impetus for the PLTRP was a 2003 settlement agreement between NMFS and the Center for Biological Diversity that required convening a Take Reduction Team (the PLTRT or the Team) under the MMPA by June 30, 2005, to address mortality and serious injury of Western North Atlantic pilot whales (Globicephala spp.) and common dolphins (Delphinus delphis delphis) in the Atlantic pelagic longline fishery, which was then, and currently still is, listed as a Category I fishery. At the time of the settlement agreement, the western North Atlantic stocks of these species were identified as strategic stocks.

        However, as the Plan was being developed, long-finned pilot whales (Globicephala melas melas) and short-finned pilot whales (Globicephala macrorhynchus) and common dolphins were all reclassified as non-strategic stocks (Waring et al. 2006). Because incidental mortality and serious injury of short-finned and long-finned pilot whales in the Atlantic pelagic longline fishery continued to exceed the insignificance threshold (although not the PBR level) for the stocks, these species were included under the PLTRP. Common dolphins, even though included in the settlement agreement, were not considered in the PLTRP because there had been no recent observed mortalities or serious injuries. Risso's dolphins, on the other hand, were considered within the scope of the PLTRP, even though the species was not included in the settlement agreement and was not a strategic stock at the time, because mortalities and serious injuries incidental to the Atlantic pelagic longline fishery exceeded the insignificance threshold (although not the PBR level) for the stock, similar to short-finned and long-finned pilot whales.

        In accordance with the MMPA and the settlement agreement, NMFS convened the PLTRT in June 2005. NMFS announced the establishment of the PLTRT on June 22, 2005, in the Federal Register (70 FR 36120). NMFS selected team members according to guidance provided in section 118(f)(6)(C) of the MMPA. Members of the PLTRT include commercial fishermen and representatives of the Atlantic Pelagic Longline Fishing industry, environmental groups, marine mammal biologists, fisheries biologists, and representatives of the Mid-Atlantic Fishery Management Council, the Marine Mammal Commission, and NMFS.
        The incidental mortality and serious injury for both pilot whales and Risso's dolphins exceeded the insignificance threshold, yet remained below the PBR level, and were considered non-strategic stocks that interact with a Category I fishery. Therefore, in accordance with the long-term goal of section 118(f)(2) of the MMPA, NMFS directed the PLTRT to develop and submit a draft Take Reduction Plan to the agency within 11 months that focused on reducing incidental mortalities and serious injuries of pilot whales and Risso's dolphins to a level approaching the insignificance threshold within five years of implementation of the Plan.
        Four professionally-facilitated meetings and two full-team conference calls were held between June 2005 and May 2006. The PLTRT reached consensus at the May 2006 meeting, and on June 8, 2006, submitted to NMFS a Draft PLTRP, including recommendations for take reduction measures, as well as research needs and other non-regulatory measures (PLTRT, 2006). Based on the Draft PLTRP, NMFS published a proposed rule (73 FR 35623, June 24, 2008) and a final rule (74 FR 23349, May 19, 2009) implementing the PLTRP, which became effective on June 18, 2009 (50 CFR 229.36). Since implementation of the PLTRP, the Team has continued to monitor the effectiveness of the Plan and review recent research relevant to the PLTRT and new scientific information on updated estimates of abundance and mortality and serious injury for pilot whales and Risso's dolphins.
        Western North Atlantic Pilot Whales

        The distribution of the western North Atlantic stock of short-finned pilot whale overlaps in some areas with that of the western North Atlantic long-finned pilot whale stock. The area of overlap between the western North Atlantic stocks of short-finned and long-finned pilot whales occurs primarily along the shelf break between 38°N and 40°N latitude (Garrison and Rosel 2017). The full latitudinal range of each species remains uncertain; however, south of Cape Hatteras, NC, most pilot whale sightings are expected to be short-finned pilot whales, while north of ~42°N most pilot whale sightings are expected to be long-finned pilot whales (Garrison and Rosel 2017). Additionally, these species are difficult to differentiate at sea and cannot be reliably visually identified during either abundance surveys or observations of fishery mortality without high-quality photographs (Rone and Pace 2012). Therefore, the ability to separately assess the two species in U.S. Atlantic waters is complex and requires additional information on seasonal spatial distribution (Hayes et al. 2019).

        All estimated mortalities and serious injuries of pilot whales incidental to the Atlantic pelagic longline fishery from 2010 to 2013 were assigned exclusively to short-finned pilot whales (Hayes et al. 2019). From 2014 to 2016, pilot whale estimated mortalities and serious injuries incidental to the Atlantic pelagic longline fishery were apportioned between the short-finned and long-finned pilot whale stocks according to a logistic regression model (Garrison and Rosel 2017). Short-finned pilot whales made up the majority of the apportioned estimated mortality and serious injury, with only 1 percent and 4 percent of the estimated mortalities and serious injuries between 2014 and 2016 being apportioned to long-finned pilot whales (Hayes et al. 2019).

        The minimum population estimate for short-finned pilot whales in the western North Atlantic is 23,637 (Hayes et al. 2019). Based on the years 2012 through 2016, the short-finned pilot whale PBR level was 236 and the estimated mean annual mortality and serious injury incidental to pelagic longline fishing was 168 short-finned pilot whales (Coefficient of Variation, or CV=0.13; Hayes et al., 2019). Thus, the average annual mortality and serious injury of the western North Atlantic stock of short-finned pilot whales incidental to the Atlantic pelagic longline fishery is approaching the PBR level (71 percent of the PBR level).

        The minimum population estimate for long-finned pilot whales in the western North Atlantic is 3,464 (Hayes et al. 2019). Based on the years 2012 through 2016, the long-finned pilot whale PBR level was 35 and the estimated mean annual mortality and serious injury incidental to pelagic longline fishing was 2.6 long-finned pilot whales (CV=0.34; Hayes et al. 2019). Thus, the average annual mortality and serious injury of the western North Atlantic stock of long-finned pilot whales incidental to the Atlantic pelagic longline fishery is 7.4 percent of the PBR level, which is below the insignificance threshold of 10 percent of the PBR level.
        Western North Atlantic Risso's Dolphins

        Risso's dolphins occur worldwide in warm temperate and tropical waters, and in the Northwest Atlantic occur from Florida to eastern Newfoundland and in general, in the U.S. Atlantic EEZ, the population occupies the mid-Atlantic continental shelf edge year round, and is rarely seen in the Gulf of Maine (Hayes et al. 2019). The minimum population estimate for the western North Atlantic stock of Risso's dolphin is 12,619 (Hayes et al., 2019). Based on the years 2012 through 2016, the Risso's dolphin PBR level for the western North Atlantic stock was 126 and average annual mortality and serious injury incidental to pelagic longline fishing was 9.8 (CV=0.41; Hayes et al., 2019). Thus, the average annual mortality and serious injury of the western North Atlantic stock of Risso's dolphins incidental to the Atlantic pelagic longline fishery is 7.8 percent of the PBR level, which is below the insignificance threshold of 10 percent of the PBR level.
        Removing Long-Finned Pilot Whales and Risso's Dolphins From the PLTRP Scope

        At the time the PLTRT was established (70 FR 36120; June 22, 2005) both long-finned and short-finned pilot whales were included in the Plan because the abundance estimate was combined for both species and separate mortality and serious injury estimates incidental to the Atlantic pelagic longline fishery were unknown. However, since the Plan's implementation, abundance estimates for each species have been developed (Waring et al., 2011). Additionally, mortality and serious injury estimates for the two species incidental to the Atlantic pelagic longline fishery have been calculated (Waring et al., 2014). More recent information has revealed that the long-finned pilot whale's mortality and serious injury incidental to the Atlantic pelagic longline fishery (Hayes et al. 2019) has been below that stock's insignificance threshold. Therefore, although the initial PLTRP addressed both short-finned and long-finned pilot whales, NMFS is proposing to remove long-finned pilot whales from consideration under the Plan.
        Similarly, the Team originally expanded the scope of the PLTRP to include Risso's dolphins because the estimated mortality and serious injury levels were exceeding the insignificance threshold for the stock (PLTRP, 2006). Since the Plan was implemented in 2009, the level of mortality and serious injury for Risso's dolphins incidental to the Atlantic pelagic longline fishery has been below the stock's insignificance threshold. Therefore, NMFS is proposing to remove Risso's dolphin from consideration under the PLTRP.
        Amending the PLTRP

        Since implementation of the PLTRP in June 2009, NMFS convened two professionally-facilitated in-person meetings (August 2012 and December 2015) and six webinars/conference calls (September 2010, June 2014, March 2015, September 2016, October 2016, and September 2019) of the PLTRT. During the 2015 in-person meeting of the Team, best available data indicated that the Atlantic pelagic longline fishery had exceeded the insignificance threshold for the incidental takes of short-finned pilot whales since the implementation of the Plan and was expected to continue to exceed the insignificance threshold indicating that the PLTRP had not been effective in meeting the long-term goal of section 118(f)(2) of the MMPA (i.e., to reduce incidental mortalities and serious injuries of short-finned pilot whales to a level approaching the stock's insignificance threshold). As a result, the Team developed a suite of consensus non-regulatory and regulatory recommendations to amend the Plan (PLTRP, 2015; PLTRP, 2016). For more details on these recommended measures, please see the ADDRESSES section for where to request the December 2015, September 2016, and October 2016 meeting summaries.
        Compliance and Enforcement Monitoring

        The PLTRP Monitoring Strategy (NMFS, 2013) is a comprehensive plan that describes the methods for monitoring regulatory compliance and the effectiveness of the PLTRP. Compliance monitoring includes enforcement activities, research, collection of observer data, evaluation of self-reported fishing information, and education and outreach efforts. Effectiveness monitoring examines whether the long-term statutory goals described in the MMPA (i.e., to reduce incidental mortalities and serious injuries of short-finned pilot whales to a level approaching the stock's insignificance threshold) are being achieved. NMFS intends to update the monitoring strategy to reflect the new regulatory and non-regulatory components of the PLTRP.
        Proposed Non-Regulatory Changes to the PLTRP
        The non-regulatory changes to the PLTRP recommended by the PLTRT that NMFS proposes to implement include:
        1. Convene a safe handling and release work group to develop potential updates to the current safe handling and release protocols for marine mammal interactions in the Atlantic pelagic longline fishery. The work group would include PLTRT members, commercial fishermen, marine mammal health and disentanglement experts, and others with expertise and knowledge related to handling marine mammals and/or pelagic longline fishing practices.
        2. Update observer protocols and fishery observer forms to increase information collected from marine mammal interaction and depredation events in the Atlantic pelagic longline fishery.
        Proposed Regulatory Changes to the PLTRP

        Although not currently exceeding the PBR level, estimated mean annual mortality and serious injury of short-finned pilot whales incidental to the Atlantic pelagic longline fishery remains high at roughly 71 percent of the PBR level (Hayes et al. 2019). Consequently, mortality and serious injury of short-finned pilot whales incidental to the Atlantic pelagic longline fishery remains above the insignificance threshold of 10 percent of the PBR level, and the long-term goal of the PLTRP is not being met. Therefore, NMFS proposes to implement the PLTRT's December 2015 and October 2016 consensus recommendations to amend the regulations for the Atlantic pelagic longline fishery. NMFS believes these measures are necessary to remove ineffective regulations and to implement new regulations to reduce mortality and serious injury of the western North Atlantic stock of short-finned pilot whales incidental to the Atlantic pelagic longline fishery. The implementing regulations for the PLTRP are at 50 CFR 229.36, and related definitions are at 50 CFR 229.2.
        The regulatory changes recommended by the PLTRT that NMFS proposes to implement include:

          1. Remove the Cape Hatteras Special Research Area, along with the special observer and research participation requirements for fishermen operating in that area (50 CFR 229.36(d)).

        When the Plan was developed, the area just north of Cape Hatteras, which became the Cape Hatteras Special Research Area (CHSRA), was a “hot-spot” for pilot whale interactions (PLTRT, 2006). Because of this, the Team thought that it was an important area for research on both pilot whale spatial distribution and interactions with the pelagic longline fishery. Based on the Team's recommendations, NMFS created the CHSRA and its special observer and research participation requirements for fishermen operating in that area with the goal of encouraging partnerships between fishermen and researchers in that area. However, NMFS has not used the special observer and research participation requirements to place an observer on a vessel in the CHSRA since the regulations were implemented. Instead, researchers and fishermen have partnered independent of the regulations for research in that area. Thus, the Team recommended that NMFS remove the CHSRA, and the associated special observer and research participation requirement, which also requires vessels to provide at least 48 hours advance notice before fishing with pelagic longline gear in that area, because it is no longer needed (PLTRT, 2015).

          2. Modify the current 20 nm mainline length restrictions at 50 CFR 229.36(e) so that vessels in the EEZ portion of the Mid-Atlantic Bight may set no more than one mainline set in the water at any one time, not to exceed 32 nm (59.26 km). There may be no more than 30 nm (55.56 km) total of active gear (gear with leaders or hooks) deployed along the mainline set. A single length of active gear may not exceed 20 nm (37.04 km) and must be separated from other active gear along the mainline set by a gap without leaders or hooks (i.e., hookless line “interrupt”) of at least one nm (1.85 km).

        The 20 nm mainline length restriction in the EEZ portion of the Mid-Atlantic Bight was originally developed because, at the time, data suggested that pilot whale interaction rates were twice as high in pelagic longline sets with total mainline lengths greater than 20 nm than for pelagic longline sets with total mainline lengths less than 20 nm. Operators of individual fishing vessels are allowed to fish multiple mainline sets at one time to “compensate” for the reduction of hooks due to the reduced maximum mainline length of 20 nautical miles (PLTRT, 2006). NMFS initially presumed, based on Team discussions, that there would be minimal compensation by fishing vessels (less than 50 percent); however, beginning in 2013, fishing vessels in the Mid-Atlantic Bight shifted from setting mostly single mainline sets to also setting sets with multiple mainline (hereinafter also referred to as “multi-sets”) (PLTRT, 2015). From 1992 to 2012, multiple mainlines set as part of a multi-set represented 1 percent of all mainlines observed on pelagic longline fishing vessels in the Mid-Atlantic Bight, but increased to 47 percent from 2013 to 2015 (PLTRT, 2015). A multi-set was defined, for analytical purposes, as a pelagic longline set with two mainlines, where the second mainline begins setting 30 minutes or less after the first mainline has finished setting. Analyses showed that the rate of pilot whales interactions were higher in multi-sets compared to single mainline sets and that pelagic longline multi-sets had longer soak durations than a similar length single mainline set (PLTRT, 2015). In light of this information, the Team recommended that NMFS increase the maximum mainline length from 20 nm to 32 nm, but limit vessels to a single mainline set and only 30 nm of active gear (mainline with leaders or hooks attached) in an effort to limit the total length of active gear in the water and reduce soak duration by eliminating the time it takes to set and haul the second mainline associated with multi-sets (PLTRT, 2016). Additionally, the Team recommended a new measure—the hookless line “interrupt”—a gap along the single mainline set of at least 1 nm with no active gear, which the Team believed had the potential to reduce mortalities and serious injuries of marine mammals (PLTRT, 2016).

          3. Implement terminal gear requirements for the EEZ portion of the Florida East Coast, South Atlantic Bight, Mid-Atlantic Bight, and Northeast Coastal fishing areas with the goal of making the hooks the weakest part of the terminal gear. These terminal gear requirements include requirements for circle hooks with a round wire diameter not to exceed 4.05mm if 16/0 and 4.40mm if 18/0 and a straightening force not to exceed 300 lb, and a minimum diameter of 1.8 mm and a breaking strength of at least 300 lb for monofilament leaders and branch lines (i.e., gangions).

        Though not included in the original plan, the Team recommended that NMFS implement terminal gear requirements in order to enable hooks to straighten before leaders break, because interactions with marine mammals are less likely to result in a serious injury when straightened hooks are returned from a hooking event (NMFS, 2014). If the gangions (i.e., leaders and branch lines) are strong relative to the hook strength during a marine mammal hooking or entanglement, tension could be placed on the line (without the line breaking) to allow the hook to straighten, or the animal could be brought close to the vessel for disentanglement and/or dehooking attempts. Therefore, by limiting wire diameter and the straightening force of hooks, and increasing gangion size and strength, the proposed regulation aims to reduce line breaks and, in the event of lines breaks, increase the likelihood that the hook would straighten beforehand, thereby avoiding serious injury.
        Public Comments Solicited
        NMFS is soliciting comments on this proposed rule. Specifically, because the intention behind implementing the terminal gear requirements is to ensure that a hook caught on a short-finned pilot whale will straighten before the gangion breaks, NMFS is requesting comments regarding whether the proposed strength for gangions (at least 300 lb, based on manufacturer specifications when new) is sufficient for ensuring that the proposed hooks (with a straightening force not to exceed 300 lb based on manufacturer's specifications when new and a diameter not to exceed 4.05 mm if 16/0 or 4.4 mm if 18/0) will straighten before the gangion breaks. NMFS will consider these comments and the need to make changes in the final rule. Additionally, NMFS will be considering a delayed implementation of the proposed terminal gear requirements. Therefore, NMFS is also requesting comments concerning the length of time necessary for hook manufacturers to produce and supply hooks that meet the new specifications as well as the length of time the industry would need to implement the use of hooks and gangions that meet new specifications in the fishery.
        Lastly, the proposed rule defines four fishing areas: Northeast Coast (NEC), Mid-Atlantic Bight (MAB), South Atlantic Bight (SAB), and Florida East Coast (FEC). The proposed definitions are modeled after an existing regulatory definition of the MAB in the Atlantic Highly Migratory Species regulations, 50 CFR 635.2. NMFS is seeking comment on whether it would be helpful to the regulated community to further clarify these definitions in the final rule by providing more specific references to the latitude and longitude coordinates reflected on the charts in the draft Environmental Assessment. NMFS is not proposing changing the geographic areas, but is requesting comments regarding the clarity of the manner in which the areas are defined as well as the consistency of the definitions.
        Classifications
        A draft Environmental Assessment has been prepared, analyzing the impacts on the human environment that would result from this action and determining that the action will not have significant environmental impacts upon implementation of the action.
        Pursuant to section 307 of the Coastal Zone Management Act, NMFS has determined that this proposed rule is consistent with the enforceable policies of the approved coastal management programs of Florida, Georgia, South Carolina, North Carolina, Virginia, Maryland, Delaware, New Jersey, New York, Connecticut, Rhode Island, New Hampshire, Massachusetts, and Maine. This determination has been submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act.
        This proposed rule does not contain policies with federalism implications under Executive Order 13132. The proposed rule would apply in the Exclusive Economic Zone beyond state jurisdiction.
        This proposed rule does not contain any new collection-of-information requirements for the purposes of the Paperwork Reduction Act.
        This rule has been determined to be not significant for purposes of Executive Order 12866. This proposed rule is not expected to be an E.O. 13771 regulatory action because this proposed rule is not significant under E.O. 12866.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is as follows.
        This rulemaking would directly apply to commercial fishing businesses (NAICS 11411) that operate vessels that use pelagic longline gear to harvest Atlantic HMS species within four specific areas of the EEZ. Any business with a vessel that uses pelagic longline to harvest tuna or swordfish must have an Atlantic tuna longline permit, a shark (directed or incidental) permit, and a swordfish (directed or incidental) permit.
        The number of Category I Atlantic Ocean, Caribbean, Gulf of Mexico large pelagic longline fishery vessels in the Gulf of Mexico and the Atlantic, with annual landings of HMS is substantially less than the number of vessels permitted to do so. In 2016, 85 (33.7 percent) of 252 pelagic longline vessels were active, and in 2017, 88 (34.8 percent) of 253 pelagic longline vessels were active. This analysis uses the 2017 figure of 88 active vessels, which can be found in the Regulatory Flexibility Analysis done for Amendment 11 to the 2006 Consolidated Highly Migratory Fishery Management Plan. NMFS estimates that 76 businesses operate the 88 active vessels.
        For Regulatory Flexibility Act purposes only, NMFS has established a small business size standard for businesses, including their affiliated operations, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing 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. The maximum annual revenue for any pelagic longline vessel between 2006 and 2016 was less than $1.9 million, well below the $11 million small business size standard for commercial fishing businesses established by NMFS. Therefore, 76 small commercial fishing businesses operate the 88 pelagic longline fishing vessels that could be directly affected by the rulemaking.

        Currently, a pelagic longline fishing vessel cannot fish in the CHSRA if it does not or cannot accommodate an observer assigned under the special observer requirements (50 CFR 229.36(d)). Additionally, fishermen must call NMFS SEFSC at least 48 hours (and no more than 96 hours) prior to embarking on their fishing trip to provide sufficient notice and time to arrange for special observers, who may conduct scientific research aboard the fishing vessel. If upon calling in, the vessel is assigned an observer, it must take the observer during that fishing trip. If the vessel does not take the observer, it is prohibited from deploying or fishing with pelagic longline gear in the CHSRA for that trip. The proposed rule removes the CHSRA and its associated special observer and research participation requirements, including the advance notice requirements, which would give the small commercial fishing businesses flexibility to fish in those waters at times more effective for them. Therefore, the removal of the CHSRA is expected to have no adverse, and slightly beneficial, economic impacts on any of the small businesses that operate the 88 pelagic longline fishing vessels.

        Operators of Atlantic pelagic longline fishing vessels are currently allowed to deploy sets with multiple mainlines at one time, but each mainline length must not exceed 20 nm (37.04 km) in the EEZ portion of the MAB (50 CFR 229.36(e). That has allowed pelagic longline fishing vessels to use longer lengths of active gear (leaders and hooks in the water) across sets with multiple mainlines. Consequently, there have been pelagic longline fishing vessels deploying pelagic longline fishing sets with two mainline and more than 20 nm of active gear. The proposed rule would, in the MAB, prohibit pelagic longline sets with more than one mainline in the water at a time. It would also increase both the maximum length of a single mainline set from 20 nm (37.04 km) to 32 nm (59.26 km) and maximum length of active gear from 20 nm (37.04 km) to 30 nm (55.56 km), but require that any active gear in excess of 20 nm (37.04 km) be separated from other active gear by a gap of at least 1 nm with no active gear. The proposed rule is expected to have an adverse impact on 101 reported multiple mainline sets deployed in the MAB by reducing the length of active gear by 4 nm per mainline set (because these mainline sets are currently deployed two at a time and collectively have more than 30 nm of active gear). The combined 404 nm reduction represents a reduction of total active gear in the MAB by 1.4 percent. If there is a one-to-one correspondence between the length of active gear and dockside revenue from HMS harvested by that gear, there would be a corresponding 1.4 percent decrease in dockside revenue annually from HMS harvested within the MAB. When mainline sets and landings from outside the MAB are included, that percentage declines significantly. The proposed rule would also affect 1,200 reported single mainline sets deployed in the MAB by increasing the active gear from 1 nm up to a maximum of 10 nm per mainline set. Those increases would result in an increase in total active gear deployed in the MAB by those 1,200 reported single mainline sets ranging from 180 to 1,800 nm, and those increases represent a range from 0.6 percent to 6.2 percent of total annual active gear deployed in the MAB, and potentially 0.6 percent to 6.2 percent increases in dockside revenue from HMS landed from the pelagic longline sets. When all 1,573 average reported pelagic longline sets in the MAB are combined, the proposed rule would result in a change in the amount of active gear deployed in the MAB by the 88 pelagic longline fishing vessels ranging from a reduction of 0.7 percent to a gain of 4.8 percent. When pelagic longline sets and active gear deployed outside the MAB by these vessels are included in the total from all areas, these percentages decline significantly.
        The proposed rule would implement terminal gear requirements for leaders and hooks designed to make the hook the weakest part of the terminal gear in the EEZ portion of the FEC, MAB, NEC, and SAB areas. Hooks used in these areas would be required to meet the following criteria: To (i) 16/0 or 18/0 circle hooks with hook shanks containing round wire that can be measured with a caliper or other appropriate gauge, with a wire diameter not to exceed 4.05 mm if 16/0 or 4.4 mm if 18/0; and (ii) a straightening force not to exceed 300 lb, based on manufacturer's specifications. The proposed action would affect the small businesses with pelagic longline fishing vessels that presently use hooks in the FEC, MAB, NEC and SAB that do not meet the additional specifications. Currently manufactured hooks that meet the additional specifications include the Mustad 39960D 16/0, Mustad 39988D 16/0, and Eagle-Claw L2048LM 16/0. NMFS assumes that none of the sets deployed in the four areas use hooks that meet the proposed criteria, although 25 percent or more may be a more likely figure. The price of a box or pack of 1,000 of the new hooks is estimated to range from $450 to $550 per box and is expected to be, on average, $20 to $25 more than a box of 1,000 of the currently used hooks. The average number of hooks per set in each of the four areas (FEC, MAB, NEC, and SAB) is much less than 1,000: 671 (FEC), 622 (MAB), 905 (NEC), and 808 (SAB). Thus, NMFS expects that one box of hooks is sufficient to equip a pelagic longline fishing vessel for its first trip with the new hooks. The combined additional annual cost to 88 pelagic longline fishing vessels would be $1,760 to $2,200 (2018 $) for the first boxes of new hooks. Hooks are lost or damaged during a trip and need replacement. NMFS estimates that the difference in the costs of replacing the new hooks versus replacing the currently used hooks is approximately equivalent to the cost of purchasing a box of the new hooks every sixth to seventh trip, which is $20 to $25 (2018 $) more per sixth or seventh trip. An annual average of 937 trips are made in the combined areas, and NMFS estimates that each of the 88 pelagic longline fishing vessels makes 10 to 11 trips in the areas annually. Hence, the average pelagic longline fishing vessel has to buy an additional two boxes to replace hooks that are lost or damaged a year. The component of the proposed rule to require hooks meeting new specifications is expected to result in increased annual costs ranging from 0.07 percent to 0.09 percent per vessel.
        Currently, pelagic longline fishing vessels that fish in the EEZ portion of the FEC, MAB, NEC and SAB can use monofilament nylon leaders of unspecified diameters, which can result in leaders being the weakest component of active gear. The proposed rule would require the pelagic longline fishing vessels in the EEZ portion of the FEC, MAB, NEC and SAB to use monofilament nylon leaders and/or branch lines that all have a diameter of 1.8 mm or larger (certified by the manufacturer to at least 300 lb test strength when new) in those areas. No other line material could be used, but crimps and chafing gear would be allowed. NMFS expects that almost all to all of the pelagic longline fishing vessels that fish in the four areas use monofilament nylon leaders with diameters and a breaking force of at least 300 lb. Consequently, this component of the proposed rule is expected to have little to no additional economic effects.

        In summary, an estimated 88 pelagic longline fishing vessels owned by 76 small businesses would be directly affected by this proposed rule, and they represent approximately 36 percent of the 248 permitted vessels and 214 small businesses in the pelagic longline fleet. The elimination of the CHSRA and associated requirements and the monofilament leader and/or branch line requirement, combined, are expected to have little to no additional economic impacts. The changes to mainline length restrictions would cause a change in the amount of active gear deployed within the MAB ranging from a 0.7 percent decrease to a 4.8 percent increase. Assuming a constant one-to-one correspondence between the length of active gear and dockside revenue, a corresponding change in dockside revenue from HMS harvested from the MAB would range from a 0.7 percent reduction to a 4.8 percent increase. When dockside revenues from HMS harvested from outside the MAB are included, however, the percentages of the net reduction or net gain decline significantly. Implementing the hook requirements could increase the annual hook cost of 88 pelagic longline vessels that fish in the FEC, MAB, NEC, and SAB by $60 to $75 per vessel, which represents from 0.07 percent to 0.08 percent of annual trip costs. Combined, the actions are expected to have a net benefit for the affected small businesses. Therefore, the proposed rule would not have a significant economic impact on a substantial number of small entities.
        References

        A complete list of all references cited in this proposed rule, along with other supporting documents can be found in the Federal eRulemaking Portal at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0105 and is available upon request from the NMFS Southeast Regional Office in St. Petersburg, FL (see ADDRESSES).

          List of Subjects in 50 CFR Part 229
          Administrative practice and procedure; Fisheries; Marine mammals; Pelagic Longline.

          Dated: November 23, 2020.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, NOAA proposes to amend 50 CFR part 229 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 § 229.3, revise paragraph (t)(2) and paragraph (u) to read as follows:

          § 229.3
           Prohibitions.

          (t) * * *
          (2) Complies with the requirements specified in § 229.36(d) and (e).
          (u) It is prohibited to deploy or fish with pelagic longline gear in the Northeast Coastal, South Atlantic Bight, or Florida East Coast fishing areas unless the vessel:
          (1) Complies with the placard posting requirement specified in § 229.36(c); and
          (2) Complies with the requirements specified in § 229.36(d).

        3. In § 229.36:
        a. Revise paragraph (a);
        b. Revise paragraphs (b)(1) through (b)(4);
        c. Add paragraph (b)(5);
        d. Revise paragraphs (d) and (e).
        The additions and revisions read as follows:

          § 229.36
           Atlantic Pelagic Longline Take Reduction Plan (PLTRP).
          (a) Purpose and scope. The purpose of this section is to implement the PLTRP to reduce incidental mortality and serious injury of short-finned pilot whales in the Atlantic pelagic longline fishery off the U.S. East Coast, a component of the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery. The requirements in this section apply to the owner or operator of any vessel that has been issued or is required to be issued an Atlantic HMS tunas, swordfish, or shark permit under § 635.4 of this title and that has onboard pelagic longline gear as defined at § 635.2 of this title in the EEZ (as defined in § 600.10 of this title).
          (b) * * *
          (1) Northeast Coastal (NEC) means the area bounded by straight lines connecting the northeast states' internal waters extending between 71° W long. and 60° W long. and between 35° N lat. and 45° N lat. It also includes the box described by straight lines connecting 65° W long. and 60° W long. and between 45° N lat. and 50° N lat.
          (2) Mid-Atlantic Bight (MAB) means the area bounded by straight lines connecting the mid-Atlantic states' internal waters and extending to 71° W long. Between 35° N lat. and 43° N lat.
          (3) South Atlantic Bight (SAB) means the area bounded by straight lines connecting the south-Atlantic states' internal waters and extending to 71° W long. between 30° N lat. and 35° N lat.
          (4) Florida East Coast (FEC) means the area bounded by straight lines connecting Florida's internal waters and between 82° W long. and 71° W long. and between 22° N lat. and 30° N lat.
          (5) Active Gear means mainline in the water with gangions or hooks attached.

          (d) Hook and gangion requirements. Vessels operating in the EEZ (as defined in § 600.10 of this title) portion of the NEC, MAB, SAB and FEC areas can only possess, use, and deploy hooks and gangions that meet the following specifications:
          (1) Hooks. The hook shank must be constructed of corrodible round wire stock that can be measured with a caliper or other appropriate gauge and meet the following specifications:
          (i) The round wire stock of a 16/0 circle hook must not exceed 4.05 mm (0.159 in) in diameter and straighten with a force not to exceed 300 lb, based on manufacturer specifications when new.
          (ii) The round wire stock of a 18/0 circle hook must not exceed 4.40 mm (0.173 in) in diameter and straighten with a force not to exceed 300 lb, based on manufacturer specifications when new.
          (2) Gangions. Any gangion, as defined at 50 CFR 635.2, must meet all of the following specifications:
          (i) Made of monofilament nylon. No other line material (e.g., wire) may be used; however, crimps and chafing gear are allowed.
          (ii) Have a diameter of 1.8 mm or larger.
          (iii) Have a breaking strength of at least 300 lb, based on manufacturer specifications when new.
          (3) Exception for transit. If pelagic longline gear is appropriately stowed, a vessel may transit through the NEC, MAB, SAB, and FEC without meeting the gear requirements specified in this paragraph. For the purpose of this paragraph, transit means non-stop progression through an area without any fishing activity occurring. Longline gear is stowed appropriately if all gangions and hooks are disconnected from the mainline and are stowed on or below deck, hooks are not baited, and all buoys and weights are disconnected from the mainline and drum (buoys may remain on deck).
          (4) Exception for research. No person may possess, use, or deploy hooks other than what is described in this section unless they have a written letter of authorization on board from the Southeast Regional Administrator to conduct scientific or gear research for reducing the bycatch in the pelagic longline fishery. In order to obtain a written letter of authorization, the research must be consistent with the regulations at 50 CFR part 635 and be designed to advance the long-term goal of reducing mortalities and serious injuries of short-finned pilot whales in the Atlantic pelagic longline fishery to insignificant levels approaching a zero mortality and serious injury rate, or reduce the bycatch of other listed, threatened, or protected species in the Atlantic pelagic longline fishery.
          (e) Mainline gear restrictions. Vessels operating in the EEZ (as defined in § 600.10 of this title) portion of the MAB may not deploy pelagic longline gear unless the gear meets the following mainline specifications:
          (1) There can only be one piece of mainline in the water at any time. If the gear breaks or parts after setting, the vessel owner or operator must make every effort to remove the additional portions of the gear as soon as possible.
          (2) Mainline length cannot exceed 32 nm.
          (3) There can be no more than 30 nm of active gear.
          (4) A section of active gear cannot exceed 20 nm.

          (5) Between any two parts of active gear, there must be a gap of at least 1 nm.

      [FR Doc. 2020-26288 Filed 12-14-20; 8:45 am]
      BILLING CODE 3510-22-P