        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [Docket No. 110511280-1727-01]
        RIN 0648-BB10
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery Off the Southern Atlantic States; Snapper-Grouper Management Measures

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          NMFS publishes this proposed rule to implement a regulatory amendment (Regulatory Amendment 11) to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP), as prepared by the South Atlantic Fishery Management Council (Council). If implemented, this rule would remove the harvest and possession prohibition of six deep-water snapper-grouper species (snowy grouper, blueline tilefish, yellowedge grouper, misty grouper, queen snapper, and silk snapper) from depths greater than 240 ft (73 m) in the South Atlantic exclusive economic zone (EEZ). The intent of this rule is to reduce the socio-economic impacts to fishermen harvesting deep-water snapper-grouper as well as maintain the biological protection to speckled hind and warsaw grouper in the South Atlantic.

          DATES:
          Written comments on this proposed rule must be received on or before January 19, 2012.

          ADDRESSES:
          You may submit comments on the proposed rule identified by “NOAA-NMFS-2011-0209” by any of the following methods:
          • Electronic submissions: Submit electronic comments via the Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Mail: Rick DeVictor, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

            Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

          To submit comments through the Federal e-Rulemaking Portal: http://www.regulations.gov, click on “submit a comment,” then enter “NOAA-NMFS-2011-0209” in the keyword search and click on “search.” NMFS will accept anonymous comments (enter N/A in the required field if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
          Comments received through means not specified in this rule will not be considered.

          Electronic copies of documents supporting this proposed rule, which include an environmental assessment and a regulatory impact review (RIR), may be obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Rick DeVictor, telephone: (727) 824-5305, or email: Rick.DeVictor@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        The snapper-grouper fishery of the South Atlantic is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
        Background
        The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing of federally managed fish stocks, while minimizing bycatch and bycatch mortality to the extent practicable. These mandates are intended to ensure 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. To further this goal, the Magnuson-Stevens Act requires fishery managers to establish a mechanism of specifying Annual Catch Limits (ACLs) at a level that prevents overfishing and does not exceed the fishing level recommendation of the respective Council's Scientific and Statistical Committee (SSC) or other established peer review processes. An ACL is the level of annual catch of a stock or stock complex that is set to prevent overfishing from occurring.
        In the South Atlantic snapper-grouper fishery, speckled hind and warsaw grouper are currently undergoing overfishing and an ACL of zero was established through Amendment 17B to the FMP (December 30, 2010, 75 FR 82280). This ACL prohibits all harvest and possession of speckled hind and warsaw grouper in the South Atlantic regardless of the depth where they are caught. Despite a prohibition of the harvest and possession of speckled hind and warsaw grouper, bycatch mortality of these two species was anticipated to continue as a result of fishing effort for other deep-water snapper-grouper species. In order to reduce the bycatch mortality of speckled hind and warsaw grouper, Amendment 17B to the FMP prohibited all fishing for and possession of deep-water snapper-grouper species (snowy grouper, blueline tilefish, yellowedge grouper, misty grouper, queen snapper, and silk snapper) beyond a depth of 240 ft (73 m), beginning January 31, 2011.
        However, recent analysis of landings data (June 1, 2011, SERO-LAPP-2011-06 Report) indicate that speckled hind and warsaw grouper are rarely caught with snowy grouper, blueline tilefish, yellowedge grouper, misty grouper, queen snapper, or silk snapper. The low association between speckled hind and warsaw grouper landings and blueline tilefish may be attributable to the unique habitat preferences of speckled hind and warsaw grouper compared to blueline tilefish. Speckled hind and warsaw grouper generally prefer hard bottom structure with habitat features such as steep cliffs, notches, and rocky ledges of the continental shelf break. Blueline tilefish, which is targeted for harvest by the deep-water component of the snapper-grouper fishery, inhabit irregular bottoms composed of troughs and terraces inter-mingled with sand, mud, or shell hash bottom where they live in burrows. In addition, the majority of snowy grouper landings in the South Atlantic are from waters deeper than 500 ft (152 m), where landings of speckled hind and warsaw grouper are extremely rare. Based on this information, at its August 2011 meeting, the Council concluded that allowing the harvest of deep-water species, including blueline tilefish and snowy grouper, beyond a depth of 240 ft (73 m), would not likely result in significant increases in the bycatch mortality of speckled hind or warsaw grouper, although low levels of bycatch of these species might occur. Even though yellowedge grouper, misty grouper, queen snapper, and silk snapper primarily share the same hard bottom habitat preference as speckled hind and warsaw grouper, these four species are rarely encountered and are not targeted by commercial or recreational fishermen.
        The purpose of the removal of the deep-water snapper-grouper harvest and possession prohibition in Regulatory Amendment 11 is to reduce the socio-economic impacts expected from the Amendment 17B deep-water closure while maintaining the biological protection to speckled hind and warsaw grouper in the South Atlantic. At its August 2011 meeting, the Council voted to approve Regulatory Amendment 11 based upon the recent data analyses, to remove the deep-water snapper-grouper harvest and possession prohibition implemented through Amendment 17B.
        The speckled hind and warsaw grouper harvest and possession prohibition, implemented through Amendment 17B, is not being changed and is expected to reduce fishing mortality of these two species even without the additional deep-water snapper-grouper harvest and possession prohibition. Therefore, if implemented, Regulatory Amendment 11 would seek to prevent significant direct economic loss to snapper-grouper fishermen and continue to achieve optimum yield for the fishery, without subjecting the speckled hind and warsaw grouper resource to overfishing.
        The Council will continue to explore management alternatives to enhance the biological protections for speckled hind and warsaw grouper.
        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 Regulatory Amendment 11, 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 certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows:

        A description of the action, why it is being considered, and the objectives of, and legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. The Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified.
        This rule would directly affect businesses that fish for, possess, and retain snowy grouper, blueline tilefish, yellowedge grouper, misty grouper, queen snapper, and silk snapper in the South Atlantic EEZ. Under the North American Industry Classification System (NAICS), these businesses are in the finfish fishing (NAICS 11411) and charter fishing (NAICS 487210) industries. The Small Business Administration size standards for these businesses are $4.0 million and $7.0 million in annual receipts, respectively. NMFS estimates that from 890 to 944 businesses in the finfish fishing industry and up to 1,754 businesses in the charter fishing industry participate in the affected snapper-grouper fishery. All businesses expected to be directly affected by this rule are determined, for the purpose of this analysis, to be small entities.
        Since January 31, 2011, fishing for, possession, and retention of snowy grouper, blueline tilefish, yellowedge grouper, misty grouper, queen snapper, and silk snapper in the South Atlantic EEZ beyond a depth of 240 ft (73 m) has been prohibited. This rule would eliminate this prohibition and would be expected to result in a restoration of landings and associated ex-vessel revenue of approximately $348,000 annually, as detailed in the RIR contained in Regulatory Amendment 11 to the FMP.
        As a result, this rule would have a beneficial economic impact on small entities and would not result in a significant direct adverse economic impact on a substantial number of small entities.
        Because this rule, if implemented, is not expected to have a direct adverse economic impact on any small entities, an initial regulatory flexibility analysis is not required and none has been prepared.

          List of Subjects in 50 CFR Part 622
          Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.

          Dated: December 14, 2011.
          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, AND SOUTH ATLANTIC
          1. The authority citation for part 622 continues to read as follows:

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

            § 622.35
            [Amended]
            2. In § 622.35, paragraph (o) is removed and reserved.

      [FR Doc. 2011-32533 Filed 12-19-11; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AI20
        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Topeka Shiner

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; revisions to proposed critical habitat, reopening of comment period, notice of availability of draft economic analysis and draft environmental assessment, and announcement of public meeting.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service, announce the reopening of a 30-day public comment period for the proposed rule to designate critical habitat for the Topeka shiner (Notropis topeka) pursuant to the Endangered Species Act of 1973, as amended (Act). The proposed rule to designate critical habitat in the States of Iowa, Kansas, Minnesota, Nebraska, and South Dakota was published on August 21, 2002 (67 FR 54261). We herein propose critical habitat segments for Missouri and one additional segment for South Dakota, and discuss potential exclusions from critical habitat designation under the authority of section 4(b)(2). We also exclude habitat on the Fort Riley Military Installation in Kansas under authority of section 4(a)(3) of the Act. In addition, we announce the availability of the draft economic analysis and draft environmental assessment for the proposed designation, and announce a public meeting.

          DATES:
          The public meeting will be held from 7 to 9 p.m. central standard time on April 13, 2004, in Boonville, Missouri.
          The comment period is hereby reopened until April 16, 2004. We will consider comments from all interested parties on the proposed rule of August 21, 2002 (67 FR 54261), the additional information provided herein, the draft economic analysis, and the draft environmental assessment. We must receive all comments by the closing date. Any comments that we receive after the closing date will not be considered in the final decision on this proposal.

          ADDRESSES:
          The public meeting will be held at the Boonville High School, 1690 Ashley Rd., Boonville, Missouri.
          Written comments and materials concerning the proposed rule and amendments, proposed exclusions, draft economic analysis, and draft environmental assessment may be submitted to us at the hearing, or directly by any one of several methods:
          (1) You may submit written comments and information to the Kansas Ecological Services Field Office, U.S. Fish and Wildlife Service, 315 Houston Street, Suite E, Manhattan, Kansas 66502.
          (2) You may hand-deliver comments and information to the Kansas Ecological Services Field Office, at the above address, or send comments via facsimile to (785) 539-8567.

          (3) You may send comments via electronic mail (e-mail) to fw6_tshiner@fws.gov. For directions on how to submit comments electronically, see the “Public Comments Solicited” section.

          The complete file for this notice and the proposed rule are available for public inspection, by appointment, during normal business hours at the above address. Copies of the proposed rule, draft economic analysis, and draft environmental assessment are available by writing to the above address or by connecting to the Service Internet Web site at http://mountain-prairie.fws.gov/topekashiner/ch.

          FOR FURTHER INFORMATION CONTACT:

          Vernon Tabor, Kansas Ecological Services Field Office, at the above address (telephone: (785) 539-3474, extension 110; facsimile: (785) 539-8567; e-mail: fw6_tshiner@fws.gov).

        SUPPLEMENTARY INFORMATION:

        Public Comments Solicited
        We intend for any final action resulting from this reopened proposal to be as accurate and effective as possible. Therefore, we are soliciting comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, landowners, or any other interested party regarding the revisions to the proposed rule, the draft economic analysis, and the draft environmental assessment. In addition, we are requesting any further comments regarding our August 21, 2002, proposed rule (67 FR 54261), pertaining to the designation of critical habitat in the remainder of the Topeka shiner's range, which includes portions of Iowa, Kansas (not including Fort Riley), Minnesota, Nebraska, and South Dakota. We particularly seek comments concerning:

        (1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of designation will outweigh any threats to the species resulting from designation;
        (2) Specific information on the amount and distribution of Topeka shiner and its habitat, and which habitat is essential to the conservation of this species and why;
        (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;
        (4) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families;
        (5) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments;
        (6) Whether the economic analysis identifies all State and local costs. If not, what other costs are overlooked;
        (7) Whether the economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat;
        (8) Whether the economic analysis appropriately identifies land and water use regulatory controls that will likely result from the designation;
        (9) Whether the economic analysis appropriately identifies all costs that could result from the designation;
        (10) Whether the economic analysis correctly assesses the effect on regional costs associated with land use controls that derive from the designation;
        (11) Whether the designation will result in disproportionate economic impacts to specific areas that should be evaluated for possible exclusion from the final designation;
        (12) The economic analysis should identify all costs related to the designation of critical habitat for the Topeka shiner which was intended to take place at the time the species was listed. As a result, the assumption is the economic analysis should be consistent with the Service's listing regulations. Does this analysis achieve that consistency?
        (13) Whether our characterization of existing regulatory protections in the listing document is consistent with the costs of the regulation imposed as a result of this critical habitat determination.

        All previous comments and information submitted during the initial comment period need not be resubmitted. Refer to the ADDRESSES section for information on how to submit written comments and information. Please submit electronic comments in an ASCII file format and avoid the use of special characters and encryption. Please also include “Attn: RIN 1018-AI20” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, please contact us directly at our Kansas Ecological Services Field Office (see ADDRESSES section and FOR FURTHER INFORMATION CONTACT).
        Our practice is to make comments that we receive on this rulemaking, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. In some circumstances, we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this request prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, including the individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
        Designation of Critical Habitat Provides Little Additional Protection to Species
        In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. The Service's present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.
        Role of Critical Habitat in Actual Practice of Administering and Implementing the Act
        While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, “Because the Act can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.” Currently, only 306 species or 25 percent of the 1,211 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat. We address the habitat needs of all 1,211 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, and the section 10 incidental take permit process. The Service believes that it is these measures that may make the difference between extinction and survival for many species.
        Procedural and Resource Difficulties in Designating Critical Habitat
        We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.
        The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.

        The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially-imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species.
        The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with NEPA all are part of the cost of critical habitat designation. None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.
        Background
        The Topeka shiner is a small, stout minnow. It has a dorsal (back) side that is olive-green, a distinct dark stripe preceding the dorsal fin, and a dusky stripe running along the entire longitudinal length of the lateral line. The Topeka shiner is found in small-to mid-size prairie streams of the central prairie regions of the United States with relatively high water quality and cool to moderate temperatures. Many of these streams exhibit perennial flow, although some become intermittent during summer or periods of prolonged drought. The Topeka shiner's historic range includes portions of Iowa, Kansas, Minnesota, Missouri, Nebraska, and South Dakota. The species continues to exist in these States, but in most areas, its range is greatly reduced.
        We published a final rule in the Federal Register on December 15, 1998, designating the Topeka shiner as an endangered species; we also determined that designation of critical habitat for the species was not prudent (63 FR 69008). In an April 4, 2001, court settlement of the case, Biodiversity Legal Foundation et al. v. Ralph Morgenweck et al. (C00-D-1180), we agreed to reconsider our prudency determination and, if prudent, to propose critical habitat for the shiner by August 13, 2002, and to finalize our designation of critical habitat by August 13, 2003. On August 21, 2002, we published a proposed rule in the Federal Register (67 FR 54261) for the designation of Topeka shiner critical habitat. The proposed designation included 3,766 kilometers (km) (2,340 miles (mi)) of stream in the States of Iowa, Kansas, Minnesota, Nebraska, and South Dakota as critical habitat. We also proposed not to include Topeka shiner habitat in the State of Missouri and on the Fort Riley Military Installation, Kansas, under the authority of section 3(5)(A) of the Act. Following publication of the proposed rule, we opened a 60-day public comment period. We also held one public meeting in each of the six affected States during September 2002. Due to budgetary constraints, we did not finalize the designation of critical habitat by August 13, 2003. We petitioned the court to extend this deadline until July 17, 2004, and, in an order dated February 10, 2004, the court granted us this extension.

        In the August 2002 proposed rule for designation of critical habitat for the Topeka shiner, we indicated our intention not to include critical habitat in Missouri and on Ft. Riley, Kansas, in the critical habitat designation. This was based upon our interpretation of the definition of critical habitat found in section 3(5)(A) of the Act. Section 3(5)(A)(i) of the Act, as amended (16 U.S.C. 1531 et seq.), defines critical habitat as areas on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection. In order to give meaning to the last clause of the definition, we have considered that if an area was already adequately managed, there would be no requirement for special management considerations or protection. A management plan is considered adequate when it meets the following three criteria: (1) The plan provides a conservation benefit to the species (i.e., the plan must maintain or provide for an increase in the species' population, or the enhancement or restoration of its habitat within the area covered by the plan); (2) the plan provides assurances that it will be implemented (i.e., those responsible for implementing the management plan are capable of accomplishing the objectives, have an implementation schedule, and/or adequate funding for the management plan); and (3) the plan provides assurances the management plan will be effective (i.e., it identifies biological goals, has provisions for reporting progress, and is of a duration sufficient to implement the plan and achieve the plan's goals and objectives).

        Subsequent to publication of the proposed rule, two issues arose. The first issue is a January 2003 court ruling on a separate case not pertaining to the Topeka shiner (Center for Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB, D. Ariz., Jan. 13, 2003). In that ruling, a Federal District Court in Arizona disagreed with our application of the definition of critical habitat as it pertains to section 3(5)(A) of the Act. The court stated that “whether habitat does or does not require special management is not determinative on whether the habitat is ‘critical’ to a threatened or endangered species.” The court affirmed the Secretary's authority to exclude areas from critical habitat designation pursuant to section 4(b)(2) of the Act.
        The second issue is that section 318 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136, adopted November 24, 2003) amended the Endangered Species Act by adding new language to section 4(a)(3), which prohibits the Service from designating as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an Integrated Natural Resources Management Plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary of the Interior determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. The Sikes Act Improvement Act of 1997 requires each military installation that includes land and water suitable for the conservation and management of natural resources to complete an INRMP. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found there. Each INRMP includes an assessment of the ecological needs on the installation, including needs to provide for the conservation of listed species; a statement of goals and priorities; a detailed description of management actions to be implemented to provide for these ecological needs; and a monitoring and adaptive management plan. The Service consults with the military on the development and implementation of INRMPs for installations with listed species.

        Because of the court's decision and the amendment to the Act, we decided to clarify the basis for proposed exclusions to critical habitat for the Topeka shiner. In the following paragraphs we address our consideration of Fort Riley, Kansas under section 4(a)(3), followed by our clarification of the basis for our proposed exclusion of the State of Missouri. In addition, we are proposing to designate one additional stream segment in South Dakota as critical habitat, based on information received since the proposed rule was published in 2002.

        Fort Riley, Kansas
        We previously proposed not to include stream segments on the Fort Riley Military Installation, Kansas, in critical habitat, on the basis of our interpretation of section 3(5)(A) of the Act. Because of the court's decision and the amendment to the Act, we know clarify the basis for not proposing stream segments on Fort Riley. Section 4(a)(3) of the Act now allows the Secretary of the Department of the Interior to exempt defense sites from critical habitat designations if an adequate INRMP is in place. The law says the Secretary “shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense * * * that are subject to an integrated natural resources management plan * * * if the secretary determines in writing that such a plan provides a benefit to the species for which critical habitat is proposed for designation.”

        We consider an INRMP adequate under section 4(a)(3) for military installations when it meets the same three criteria we consider under section 3(5)(A) of the Act: (1) The plan provides a conservation benefit to the species (i.e., the plan must maintain or provide for an increase in the species' population, or the enhancement or restoration of its habitat within the area covered by the plan); (2) the plan provides assurances that it will be implemented (i.e., those responsible for implementing the management plan are capable of accomplishing the objectives, have an implementation schedule, and/or adequate funding for the management plan); and (3) the plan provides assurances the management plan will be effective (i.e., it identifies biological goals, has provisions for reporting progress, and is of a duration sufficient to implement the plan and achieve the plan's goals and objectives).
        The Topeka shiner has been a focal species for planning and conservation efforts on Fort Riley since the early 1990s, with numerous stream surveys occurring from this time to the present. Fort Riley initiated development of management guidelines for the species in 1994. The first Endangered Species Management Plan for Topeka Shiner on Fort Riley was formalized in 1997. This management plan was revised and incorporated into Fort Riley's INRMP 2001-2005, which was formalized July 30, 2001 (Keating, Ft. Riley Natural Resources Division, pers. comm. 2002). This management plan outlines and describes conservation goals; management prescriptions and actions; a monitoring plan; estimates of time, cost, and personnel needed; a checklist of tasks; and an annual report (Department of the Army 2001).
        We evaluated the Fort Riley Endangered Species Management Plan for Topeka Shiner and the Fort's associated Topeka shiner conservation actions that have been completed, ongoing, or planned, against our three criteria used to determine whether the requirements of section 4(a)(3) are being satisfied. This management plan provides conservation benefits to the species; the plan provides assurances that conservation efforts will be implemented; and the plan and efforts of the Army will be effective since they include biological goals, restoration objectives, and monitoring consistent with the draft Recovery Plan.
        The primary benefit of proposing critical habitat is to identify lands essential to the conservation of the species, which, if designated as critical habitat, would require consultation with the Service to ensure that activities would not adversely modify critical habitat. As previously discussed, Fort Riley has a completed final INRMP that provides for sufficient conservation management and protection for the Topeka shiner. Moreover, this INRMP has already undergone section 7 consultation with the Service prior to its final approval. Further, activities authorized, funded, or carried out by the military or Federal agencies in these areas that may affect the Topeka shiner will still require consultation under section 7 of the Act, based on the requirement that Federal agencies ensure that such activities not jeopardize the continued existence of listed species. This requirement applies even without critical habitat designation on these lands.
        Based on the foregoing discussion, we believe that the requirements of section 4(a)(3) of the Act are satisfied in relation to Topeka shiner habitat on Fort Riley. We, therefore, do not include these stream segments in the proposed critical habitat for Topeka shiner.
        Missouri
        We previously proposed not to include stream segments in the State of Missouri in proposed critical habitat, based on our interpretation of section 3(5)(A) of the Act. We determined that adequate special management or protection would be provided by a legally operative plan that addresses the maintenance and improvement of essential habitat elements and that provides for the long-term conservation of the species. We further determined that a plan is adequate when it meets the three criteria listed in a previous paragraph of this preamble.

        In the proposed rule for designation of critical habitat for the Topeka shiner, we evaluated Missouri's State Action Plan for the Topeka Shiner (Action Plan) and associated Topeka shiner conservation actions that have been completed, ongoing, or planned in Missouri against the three criteria to determine whether lands require “special management considerations or protections.” The Action Plan clearly provides conservation benefits to the species; the Action Plan provides assurances that conservation efforts will be implemented because MDC has authority to implement the plan, has put in place the funding and staffing necessary to implement the Plan, and has completed or begun work on many significant elements of the Plan; and the Action Plan and efforts of MDC will be effective because they include biological goals, restoration objectives, and monitoring consistent with a Service preliminary draft Recovery Plan. We continue to believe that the Missouri Action Plan provides for special management of the Topeka shiner under the definition of critical habitat in section 3(5)(A) of the Act. However, as a consequence of the court's decision in Center for Biological Diversity v. Norton, we now propose the previously-excluded segments in Missouri, and also clarify the basis for proposing to exclude these areas from the critical habitat designation for Topeka shiner.
        The 12 stream segments, representing 148 km (92 mi) of stream, described below, constitute our best assessment of areas in Missouri needed for the conservation of the Topeka shiner, based on the best scientific and commercial information available. These areas are: (1) Currently considered occupied by the Topeka shiner or provide critical links or corridors between occupied habitats and/or potentially occupied habitats; (2) provide all or some of the primary constituent elements essential to the conservation of the species as described in our proposed rule; and (3) may require special management considerations or protection. A more detailed description of the stream segments follows (see “Proposed Regulation Promulgation” section of this document for legal descriptions and maps of these stream segments).

          1. Sugar Creek Complex (three stream segments), Daviess and Harrison Counties, Missouri. The stream segments proposed in this complex provide the primary constituent elements necessary for designation as critical habitat, including natural stream morphology and in-stream habitat. Stream habitat within this complex can be characterized as moderate in quality, with the watershed draining a mosaic of cropland and pastureland. This complex includes portions of the mainstem of Sugar Creek, Tombstone Creek, and an unnamed tributary to Sugar Creek. A downstream portion of Sugar Creek has been severely altered by channelization, and does not provide the primary constituent elements.

          2. Moniteau Creek Complex (four stream segments), Cooper and Moniteau Counties, Missouri. Stream habitat within this complex can be characterized as moderate to good in quality, with the watershed draining a mosaic of cropland, woodlands, and pastureland. Riparian areas are mostly wooded and appear stable. This complex includes portions of Moniteau Creek, an unnamed tributary to Moniteau Creek, Smiley Creek, and Pisgah Creek.

          3. Bonne Femme Creek Complex (five stream segments), Boone County, Missouri. The Bonne Femme Creek complex is comprised of four tributary streams, including Turkey Creek, Bass Creek, and two unnamed tributary streams to Bass Creek, as well as a portion of mainstem Bonne Femme Creek. Extensive watershed modification is occurring throughout this basin as the growth of Columbia, Missouri, rapidly spreads through this watershed from the north. There have been no documented collections of Topeka shiners from the streams of the Bonne Femme Creek watershed since 1997. However, it has yet to be determined if the species has been completely eliminated from the watershed or is still present in very reduced numbers. The stream segments in this complex provide the primary constituent elements, including natural stream morphology and in-stream habitat.
        Section 4(b)(2) of the Act requires that we take into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. We may exclude areas from critical habitat designation if we determine that the benefits of such exclusion outweigh the benefits of including the areas within critical habitat, unless we determine, based on the best scientific and commercial data available, that the failure to designate such areas as critical habitat will result in the extinction of the species. For the areas of Missouri that were not included in the proposed designation pursuant to the definition of critical habitat, we believe that the benefits of excluding those areas from the final designation outweigh the benefits of including them. If we determine that the benefits of exclusion are greater than those of designation, critical habitat will be excluded from the final designation pursuant to section 4(b)(2).
        For our evaluation of potential critical habitat sites in Missouri, we have conducted an analysis of the economic impacts and other relevant impacts of designating critical habitat. Economic factors include: (1) Costs to us and Federal action agencies from increased workload to conduct consultations under section 7 of the Act and technical assistance associated with critical habitat; (2) costs of modifying projects, activities, or land uses resulting from consultations involving critical habitat; (3) costs of delays from increased consultations involving critical habitat; (4) costs of reduced property values or income resulting from increased regulation of critical habitat designation; (5) potential offsetting economic benefits associated with critical habitat, including educational benefits.
        Other relevant impacts include: (1) The willingness of landowners and land managers to work with natural resource agencies and participate in voluntary conservation activities that directly benefit the Topeka shiner and other threatened or endangered species, including such cooperative partnerships as Safe Harbor Agreements; (2) the implementation of various cooperative conservation measures agreed to through various State and local partnerships, such as those outlined in Missouri's State Action Plan or through similar collaborative efforts; (3) management or regulatory flexibility, such as the establishment of nonessential experimental populations under section 10(j) of the Act, to recover Topeka shiners through reintroductions; and (4) opportunities and interest of landowners to participate in various incentive and assistance programs offered by the Service and other Federal, State, and local agencies that restore habitats and improve water quality in watersheds containing Topeka shiners.
        Benefits of designating critical habitat include: (1) Focusing conservation activities for listed species by identifying areas essential to conserve the species; (2) increasing awareness by the public and land management agencies of the importance of these areas for conservation of the species; and (3) assisting Federal, State, and local agencies in prioritizing landowner incentive programs, developing agreements with private landowners, and implementing other conservation and land management programs.
        We are herein providing notice of availability of an analysis of the economic impacts of designating these areas as critical habitat, along with an opportunity for the public to formally comment on this analysis. This economic analysis along with the analysis of other relevant beneficial and detrimental impacts will serve as the basis of our analysis under section 4(b)(2), and our determination of any exclusions from critical habitat finalized in our future final rule. The final rule will contain our analysis of economic factors and other relevant impacts of designating critical habitat in Missouri, and our consideration of comments received during the public comment period. As a result, we may identify certain areas that will be excluded from the final critical habitat designation, and if so, the final critical habitat determination may exclude or reduce in extent the areas described in this proposal.
        In Missouri, the Topeka shiner historically occurred in small, headwater streams in northern portions of the State, within the Missouri/Grand River Watershed. The Topeka shiner has been a focal species for planning and conservation efforts in the State since the mid-1990s. In 1995, the Missouri Department of Conservation (MDC) established a 5-member Topeka Shiner Working Group, and a 16-member Advisory Group to direct, implement, and facilitate Topeka shiner recovery actions in Missouri. In 1996, the MDC, with approval of the Conservation Commission of Missouri (Conservation Commission), listed the Topeka shiner as an endangered species under the State's Wildlife Code (Conservation Commission 2001).
        In 1999, the Conservation Commission established the Private Lands Services Division within the MDC. Eighty-three MDC staff were redirected to private land conservation throughout the State, including a minimum of 16 Private Lands Services personnel with responsibility for the counties with Topeka shiner habitat. Duties of personnel within this division include the facilitation of conservation efforts on private property throughout Missouri for all federally listed species, including the Topeka shiner. Additionally, there are at least 86 fisheries, forestry, natural history, protection, and wildlife staff delivering services to private landowners as a routine aspect of their job within the Missouri/Grand River Watershed.

        In January 1999, MDC adopted and approved an Action Plan for the Topeka shiner in Missouri (MDC 1999). The Action Plan identifies comprehensive conservation measures and programs necessary to achieve recovery of the Topeka shiner in Missouri. Implementation of recovery efforts for the Topeka shiner in Missouri, as outlined in this plan, is ongoing. The current status of tasks in the Action Plan is described in Table 1 below:

          Table 1.—Status of Tasks in the Missouri State Action Plan for the Topeka Shiner

            Item
            Status

            Establishment of the Missouri Topeka Shiner Working Group
            Complete & Ongoing.

            Development & ongoing implementation of the Action Plan
            Complete (1999) & Ongoing.

            Establishment of permanent sampling sites & standardized monitoring of Missouri's Topeka shiner populations & completion of recent Statewide survey for the species
            Annual Monitoring—Ongoing/Initiated (began in 2000) Statewide Surveying-Complete & Ongoing.

            Initiation of artificial propagation of Topeka shiners, including the development & refinement of captive rearing techniques
            Complete & Ongoing.

            Completion of genetic analysis of different populations of Topeka shiners in Missouri
            Complete.

            Incorporation of Topeka shiner recovery & conservation efforts in State strategic planning documents on several different levels
            Complete & Ongoing.

            Development & dissemination of public outreach & education materials throughout Missouri & elsewhere
            Complete & Ongoing.

            Completion & dissemination of several ecological & life history studies involving Topeka shiner
            Ongoing/Initiated.

            Securing matching funds from the Service to conduct surveys & ecological studies, & for various habitat restoration & enhancement activities
            Complete & Ongoing.

            Revision of the Action Plan that will include actions not yet completed since 1999 & those uncompleted actions identified in the Service's preliminary draft Recovery Plan
            Planned.

            Implementation of a landowner incentive program & completion of a study on the potential impacts of Confined Animal Feeding Operations (CAFO) within the Moniteau Creek Watershed
            Completed (CAFO study). Ongoing/Initiated (landowner incentive program).

            Development of 10-year fish monitoring plans for Moniteau, Bonne Femme, & Sugar Creek Watersheds
            Complete—Plan developed with initial sampling conducted in 2000 & annual sampling since.

            Development & implementation of Sugar Creek subbasin management plan.
            Complete & Ongoing.

            Development & implementation of a Three Creeks Conservation Area management plan
            Complete & Ongoing.

            Protection & management of Bonne Femme Creek by establishing these watersheds as Missouri Department of Natural Resources' Non-point Source Pollution Special Area Land Treatment watersheds
            Complete & Ongoing.

            Reestablishment or restoration of riparian corridors through tree plantings, natural regeneration, fencing to restrict livestock use of stream banks, creation of alternative livestock watering sources, establishment of warm season grass buffer strips, stream bank stabilization activities, & actions outlined in grazing plan developed for private landowners within the Bonne Femme, Moniteau, & Sugar Creek Watersheds
            Initiated/Ongoing.

        Assurances that the Action Plan will be implemented and conservation of the Topeka shiner will be achieved in Missouri is demonstrated by the following actions. Between January 1999 and December 31, 2003, at least $351,100 was spent on recovery actions for the Topeka shiner in Missouri, and that total is likely to increase to at least $600,000 within the next 10 years. Eighty percent (i.e., 12 of 15) of the priority 1 tasks (i.e., those actions deemed necessary to prevent extinction of the species) identified and outlined in the implementation schedule of a Service preliminary draft Recovery Plan have either been completed or are currently being implemented (this includes 20 percent of tasks that are 100 percent completed, 47 percent of tasks that are 50 percent or greater completed, and 33 percent of tasks that are 25 percent or less completed) by the MDC in cooperation with us, the Topeka Shiner Recovery Team, and other Federal, State, and private entities. The Private Land Services Division within MDC greatly facilitates the implementation of recovery actions on private property where the species currently exists or where the species may be reintroduced. The planned expansion of our Partners for Fish and Wildlife Program within Topeka shiner-occupied habitat will benefit an additional 10-15 landowners at an estimated cost of $100,000 within the next 5 years (Kelly Srigley Werner, Missouri Private Lands Coordinator, pers. comm.). MDC Fisheries and Natural History Division staffs have committed to help coordinate and implement Topeka shiner recovery efforts between the MDC and Federal, State, and private entities, and MDC's Topeka Shiner Recovery Coordinator. The MDC is actively participating in the Topeka Shiner Recovery Team. MDC's revisions to the Action Plan, scheduled for completion in 2004, will focus on incorporating any of the recovery actions outlined in a Service preliminary draft Recovery Plan that are currently not addressed. The scientific soundness of the MDC's Action Plan was further validated by us and the Recovery Team when the Action Plan's monitoring protocol and recommendations for reducing and eliminating threats to the Topeka shiner were incorporated, in part, into a Service preliminary draft Recovery Plan. In addition, the MDC, in implementing the Action Plan, has established cooperative working relationships with private landowners. These relationships have allowed for the implementation of conservation programs for the benefit of the Topeka shiner.
        We provide the following preliminary 4(b)(2) analysis of the benefits of inclusion and the benefits of exclusion in assessing the potential exclusion of critical habitat in Missouri.
        (1) Benefits of Inclusion

        Federal actions that adversely affect critical habitat must undergo consultation under section 7 of the Act. Consultations on Federal actions involving critical habitat ensure that habitat needed for the survival and recovery of a species is not destroyed or adversely modified. However, if adequate protections are provided in another manner (e.g., implementation of MDC's State Action Plan), there is no benefit due to designation of critical habitat.

        Other possible benefits of critical habitat include educating the public regarding the conservation value of an area, focusing conservation activities on these essential areas, and assisting other parties in conservation and land management programs. In Missouri, the educational benefits that may be afforded by a critical habitat designation are already provided through implementation of the Action Plan.
        (2) Benefits of Exclusion
        The benefits of excluding Missouri from designated critical habitat would include: Maintenance of effective working partnerships to promote the conservation of the Topeka shiner and its habitat; establishment of new partnerships; providing benefits from the Action Plan to the Topeka shiner and its habitat which exceed those that would be provided by the designation of critical habitat; avoiding added administrative costs to the Service, Federal agencies, and applicants; and future regulatory flexibility for the Service and landowners by maintaining the ability to reintroduce the shiner to formerly occupied streams in Missouri by experimental populations under section 10(j) of the Act.
        Recovery of listed species is often achieved through partnerships and voluntary actions. Through the Action Plan, the MDC has gained the cooperation of landowners and has been successful in developing voluntary conservation partnerships with these landowners. Cooperators, with the assistance of MDC, are implementing conservation measures for the Topeka shiner and its habitat in accordance with management objectives outlined in the Action Plan. These actions range from allowing access to private lands for surveys and site visits to rehabilitation of habitat and implementation of measures to control erosion and sedimentation. The partners have committed to conservation measures benefiting the Topeka shiner that are greater than the benefits of designating critical habitat. It is likely that many current and potential partners will not assume the cost and work associated with implementing voluntary management and protection if critical habitat is designated regardless of their desire to contribute to the conservation of the species. The MDC has advised us that the support of voluntary conservation actions of private landowners that benefit Topeka shiner recovery in the State could be withdrawn if critical habitat is designated.
        In the draft Economic Analysis of Critical Habitat Designation for the Topeka Shiner, Industrial Economics, Inc. (2003) determined that two of the three proposed areas in Missouri (Bon Femme and Moniteau Creeks) would have significantly higher costs for consultation under section 7 of the Act than most areas proposed as Topeka shiner critical habitat. This is despite the fact that minimal project modifications requiring consultation under section 7 of the Act are projected for activities conducted within these two watersheds. Consequently, Industrial Economics, Inc. estimates that consultations conducted within these two watersheds would be administratively and economically burdensome to local communities (Jessica Sargent-Michaud, Industrial Economics, Inc., pers. comm.).
        In summary, we view the continued implementation of the Action Plan and the cooperative conservation partnerships with landowners to be essential for the conservation of the Topeka shiner in Missouri. We believe that the benefits of including critical habitat in Missouri are small due to the successful implementation of conservation actions, as identified in the Action Plan, through multiple partnerships. We believe the benefits of excluding Missouri areas from critical habitat greatly exceed the limited benefits of including them. Furthermore, we believe that exclusion from critical habitat in this State will not result in the extinction of the Topeka shiner. In accordance with 4(b)(2) of the Act, we believe that the benefits of excluding critical habitat in Missouri outweigh the benefits of designating critical habitat, and are proposing to exclude areas in Missouri containing primary constituent elements from the critical habitat designation.
        In making our final decision with regard to areas in Missouri containing primary constituent elements, we will consider several factors, including the benefits provided to the Topeka shiner from the Missouri Action Plan for the Topeka Shiner, as described in the August 2002 proposal. You may request a copy of the Action Plan by contacting the Field Supervisor, U.S. Fish and Wildlife Service, 101 Park DeVille Dr., Suite A, Columbia, MO 65203.
        South Dakota
        In our proposal to designate critical habitat for Topeka shiner published on August 21, 2002 (67 FR 54262), we proposed to designate 40 stream segments in South Dakota totaling 1,475 km (917 mi) of stream channel. In the Big Sioux River basin of South Dakota and Minnesota, we also proposed off-channel/side-channel pool habitat for designation. After the publication of the August 2002 proposal, we received information on additional Topeka shiner habitat in South Dakota. In examining this information, we concluded that habitat within Stray Horse Creek, Hamlin County, South Dakota, contains the necessary elements for proposal as critical habitat. We are proposing one additional 24-km (15-mi) long stream segment in South Dakota, based on information received since the proposed rule was published in 2002 (see “Proposed Regulation Promulgation” section of this document for legal description and map of this stream segment). Off-channel and side-channel habitat, as well as main-channel habitat, also is proposed for this additional stream.
        1. Stray Horse Creek (one stream segment), Big Sioux River Watershed, Hamlin County, South Dakota. The stream reach proposed for designation runs upstream from the confluence with the Big Sioux River, including adjacent off-channel pool habitat.
        We are giving consideration to exempting South Dakota from critical habitat designation under section 4(b)(2) of the Act. Since the listing of the Topeka shiner in 1998, additional surveys conducted for this species in South Dakota have located extensive occupied habitat that was unknown at the time of listing. These demonstrate that the entire historical range of the Topeka shiner continues to be occupied in South Dakota. Furthermore, these surveys have considerably increased the known number of occupied streams in South Dakota. South Dakota has also completed a State Management Plan for the Topeka shiner. We will continue to evaluate whether listing of areas in South Dakota as critical habitat will appreciably benefit the Topeka shiner beyond the protection already afforded the species under the Act and that afforded by the State Management Plan.
        Kansas
        We are giving consideration to exempting Kansas from critical habitat designation under section 4(b)(2) of the Act. The Topeka shiner is a State-listed threatened species in Kansas under the Kansas Nongame and Endangered Species Conservation Act. The State has also designated its own critical habitat for the Topeka shiner. We will continue to evaluate whether listing of areas in Kansas as critical habitat will appreciably benefit the Topeka shiner beyond the protection already afforded the species under the Act and State laws and regulations.
        Land Ownership

        The majority of stream segments containing primary constituent elements in Missouri and South Dakota are in private ownership and are primarily used for grazing and crop production. Additionally, a portion of the Charles Green State Wildlife Management Area, owned by the State of Missouri and managed by the MDC, is within the Bonne Femme Creek Complex of Missouri.
        Economic Analysis
        The draft economic analysis estimates the foreseeable economic impacts of the critical habitat designation on government agencies and private businesses and individuals. The Service will make its final decisions about exclusions based on economic impact, when it has obtained public comments on the economic analysis and produced an addendum to the economic analysis containing its final conclusions. The Service is interested in comments from the public on the draft economic analysis, on whether any of the areas identified in the economic analysis as having economic effects should be excluded for economic reasons, and whether those or any other areas should be excluded for other reasons.
        The Act requires us to designate critical habitat on the basis of the best scientific and commercial information available, and to consider the economic and other relevant impacts of designating these areas as critical habitat. We may exclude areas from critical habitat upon a determination that the benefits of such exclusions outweigh the benefits of designating these areas as critical habitat. We cannot exclude areas from critical habitat when the exclusion will result in the extinction of the species. The draft economic analysis serves as the basis of our economic analysis under section 4(b)(2), and of any recommended exclusions made in this document for Missouri. Since the economic analysis supplement will not be completed until after we receive comments from the public on the draft economic analysis, we cannot identify final exclusions from critical habitat designation under section 4(b)(2) in this document. However, we have identified and recommended areas in Missouri that we believe, at this time, qualify for exclusion under section 4(b)(2). Upon completion of the economic analysis supplement, we will analyze the supplement, public comments on the draft economic analysis, and this proposal, and the benefits of designating areas as critical habitat in Missouri. At that time, we will make a final determination whether certain areas containing primary constituent elements should be excluded from the final critical habitat designation, provided these exclusions will not result in the extinction of the species. As a result, the final critical habitat determination may differ from the proposal.
        Public Meeting
        The Act provides for one or more public hearings or meetings on critical habitat proposals, if requested. Previously, following the publication of the initial proposed rule on August 21, 2002 (67 FR 54261), we held six public meetings across the species' range concerning the designation of critical habitat for the Topeka shiner. Due to the reopening of the comment period, and the changes herein to the proposed designation of critical, we have scheduled an additional public meeting.
        The public meeting will be held at Boonville High School, 1690 Ashley Rd., Boonville, Missouri, on April 13, 2004, from 7 p.m. to 9 p.m.
        Author

        The primary author of this proposed rule is Vernon Tabor, Kansas Ecological Services Field Office (see ADDRESSES).
        Authority

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

        For the reasons stated in the preamble, we propose to amend the proposed amendments to part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as published in the Federal Register of August 21, 2002, starting on page 54262, 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. In §17.95, as proposed to be amended by 67 FR 54262:
          a. Revise paragraph (e)(1);
          b. Redesignating paragraphs (e)(15) through (e)(18) as paragraphs (e)(16) through (e)(19) and adding a new paragraph (e)(15);
          c. Adding Map 10a and related text after the new paragraph (e)(15); and
          d. Adding new paragraphs (e)(20) through (e)(22), including maps and legal descriptions:

            § 17.95
            Critical habitat—fish and wildlife.

            (e) Fishes. * * *

            Topeka Shiner (Notropis topeka)
            (1) Critical habitat is depicted for Calhoun, Carroll, Dallas, Greene, Hamilton, Lyon, Osceola, Sac, Webster, and Wright Counties, Iowa; Butler, Chase, Dickinson, Geary, Greenwood, Marion, Marshall, Morris, Pottawatomie, Riley, Shawnee, Wabaunsee, and Wallace Counties, Kansas; Lincoln, Murray, Nobles, Pipestone, and Rock Counties, Minnesota; Boone, Cooper, Daviess, Harrison, and Moniteau Counties, Missouri; Madison County, Nebraska; Aurora, Beadle, Brookings, Clay, Davison, Deuel, Hamlin, Hanson, Hutchinson, Lincoln, McCook, Miner, Minnehaha, Moody, and Turner Counties, South Dakota, on the maps and as described below.

            (15) Map 10a follows:

            BILLING CODE 4310-55-P

              EP17MR04.010

            Stray Horse Creek—Hamlin County, South Dakota
            20. Stray Horse Creek from its confluence with the Big Sioux River (T114N, R51W, Sec. 7), upstream through T115N, R51W, Sec. 3.

            (20) Map 15 follows:

              EP17MR04.011

            Sugar Creek Complex
            1a. Sugar Creek from its confluence with Tombstone Creek (T62N, R26W, Sec. 25), upstream through T64N, R27W, Sec. 35.
            1b. Unnamed tributary to Sugar Creek from its confluence with Sugar Creek (T62N, R26W, Sec. 8), upstream through T62N, R27W, Sec. 14.
            1c. Tombstone Creek from its confluence with Sugar Creek (T62N, R26W, Sec. 25), upstream through T62N, R26W, Sec. 29.
            (21) Map 16 follows:

              EP17MR04.012

            Moniteau Creek Complex
            2a. Moniteau Creek from its confluence with Pisgah Creek (T46N, R15W, Sec. 19), upstream through T45N, R17W, Sec. 17.
            2b. Pisgah Creek from its confluence with Moniteau Creek (T46N, R15W, Sec. 19), upstream through T47N, R16W, Sec. 36.
            2c. Smiley Creek from its confluence with Moniteau Creek (T46N, R17W, Sec. 24), upstream through T46N, R17W, Sec. 36.
            2d. Unnamed tributary to Moniteau Creek from its confluence with Moniteau Creek (T46N, R17W, Sec. 21), upstream through T46N, R17W, Sec. 19.
            (22) Map 17 follows:

              EP17MR04.013

            Bonne Femme Creek Complex
            3a. Bonne Femme Creek from its confluence with Turkey Creek (T47N, R12W, Sec. 20), upstream through T47N, R12W, Sec. 12.
            3b. Turkey Creek from its confluence with Bonne Femme Creek (T47N, R12W, Sec. 20), upstream to U.S. Highway 63 (T47N, R12W, Sec. 15).

            3c. Bass Creek from its confluence with Turkey Creek (T47N, R12W, Sec. 20), upstream through T47N, R12W, Sec. 35.

            3d. Unnamed tributary to Bass Creek from its confluence with Bass Creek (T47N, R12W, Sec. 27), upstream through T46N, R12W, Sec. 4.
            3e. Unnamed tributary to Bass Creek from its confluence with Bass Creek (T47N, R12W, Sec. 27), upstream through T46N, R12W, Sec. 3.

            Dated: March 5, 2004.
            Craig Manson,
            Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 04-5926 Filed 3-16-04; 8:45 am]
      BILLING CODE 4310-55-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R10-OAR-2019-0574, FRL-8814-01-R10]
        Approval and Promulgation of Air Quality Implementation Plans; Washington; Low Emission Vehicle Program

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The Environmental Protection Agency (EPA) is proposing to approve a revision to the Washington State Implementation Plan (SIP) pertaining to adoption by reference of a Low Emission Vehicle (LEV) program by the State of Washington. The Clean Air Act (CAA) grants authority to the EPA to adopt federal standards relating to the control of emissions from new motor vehicles, and generally preempts states from doing so. However, the CAA provides California the ability to adopt and enforce its own new motor vehicle emission standards, as long as the EPA approves California's standards via a preemption waiver. The CAA also allows other states to adopt California's new motor vehicle emission standards for which the EPA has granted such a waiver providing other relevant criteria are met. Washington adopted California's LEV emission standards in 2005, effective with new vehicles sold in model year 2009. Washington subsequently amended its new motor vehicle emissions program to incorporate California's LEV updates to its program. The purpose of this SIP revision is to implement programs to reduce vehicle emissions that contribute to formation of ground level ozone and fine particulate matter. Washington did not submit provisions related to greenhouse gas emissions from new motor vehicles or zero-emission vehicles requirements for inclusion in the SIP. The EPA is proposing to approve Washington's LEV SIP revision, as it relates to criteria pollutants, in accordance with the requirements of the CAA.

          DATES:
          Comments must be received on or before September 17, 2021.

          ADDRESSES:

          Submit your comments, identified by Docket ID No. EPA-R10-OAR-2019-0574 at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

          FOR FURTHER INFORMATION CONTACT:

          Jeff Hunt, EPA Region 10, 1200 Sixth Avenue—Suite 155, Seattle, WA 98101, at (206) 553-0256, or hunt.jeff@epa.gov.

        SUPPLEMENTARY INFORMATION:
         Throughout this document whenever “we,” “us,” or “our” is used, it is intended to refer to the EPA.
        Table of Contents

          I. Background
          A. What action is the EPA proposing?
          B. Washington's Air Quality With Respect to the Federal National Ambient Air Quality Standards for Ozone and Fine Particulate Matter
          1. Washington Ozone Attainment Status
          2. Washington Fine Particulate Matter Attainment Status
          C. Federal Motor Vehicle Emission Standards
          D. California LEV Program
          E. Washington LEV Program
          II. Summary of the September 2019 Washington LEV SIP Revision
          III. The EPA's Proposed Action
          IV. Incorporation by Reference
          V. Statutory and Executive Order Reviews

        I. Background
        A. What action is the EPA proposing?
        The EPA is proposing to approve a SIP revision submitted by Washington on September 30, 2019 requesting inclusion of the state's adopted and implemented California LEV standards as part of the Washington SIP. None of Washington's LEV rules are currently in the SIP. Under section 177 of the CAA, states with plan provisions approved under CAA part D (such attainment or maintenance plans for ozone and particulate matter described below) and other criteria in section 177 are met, may adopt California's standards in lieu of otherwise applicable federal new motor vehicle emission standards.
        Washington's LEV rules are applicable to subject, new motor vehicles sold or titled in Washington beginning with model year 2009. Subject vehicles include passenger cars, light duty trucks, and medium duty passenger vehicles.1
           Washington first adopted California LEV standards as state regulation, Chapter 173-423 Washington Administrative Code (WAC), in 2005 effective with the sale and titling of new vehicles beginning in model year 2009. Washington did not submit a request to the EPA to incorporate the program as a SIP revision at the time. However, to strengthen the SIP particularly with respect to ozone control, Washington formally submitted the state's LEV program regulations to the EPA on September 30, 2019 for approval and inclusion in the SIP. Further detail on Washington's LEV program is provided in section I.E. of this preamble. We are proposing to approve Washington's SIP revision because it will update the SIP with the current Washington LEV rules, and because such LEV rules satisfy the criteria under section 177 of the CAA.

            1 Effective June 11, 2020, the Washington State Legislature modified the LEV program to include all medium duty vehicles beginning with model year 2025 and adopted California's zero emission vehicle standards. See Revised Code of Washington 70A.30.010. However, these recent statutory changes are not part of the 2019 rule package submitted for approval at this time.

        B. Washington's Air Quality With Respect to the Federal National Ambient Air Quality Standards for Ozone and Fine Particulate Matter
        1. Washington Ozone Attainment Status

        The CAA, as amended in 1990, requires the EPA to set National Ambient Air Quality Standards (NAAQS) for ambient air pollutants considered harmful to public health and the environment. The EPA establishes NAAQS for six principal air pollutants, or “criteria” pollutants, which include: Ozone, carbon monoxide, lead, nitrogen dioxide, particulate matter, and sulfur dioxide (SO2). The CAA establishes two types of NAAQS. Primary standards provide public health protection, including protecting the health of sensitive populations such as asthmatics, children, and the elderly. Secondary standards protect public welfare, including protection against decreased visibility and damage to animals, crops, vegetation, and buildings. The CAA also requires the EPA to periodically review the standards to ensure that they provide adequate health and environmental protection, and to update those standards as necessary.

        Ozone is formed in the atmosphere by photochemical reactions between ozone precursor pollutants, including volatile organic compounds (VOCs) and nitrogen oxides (NOX) in the presence of sunlight. In order to reduce ozone concentrations in the ambient air, the CAA directs areas designated as nonattainment to apply controls on VOC and NOX emission sources to reduce the formation of ozone.
        On November 6, 1991 (56 FR 56694), the EPA designated the Portland-Vancouver area and the Seattle-Tacoma area as marginal nonattainment under the 1979 1-hour ozone NAAQS. For the 1-hour ozone NAAQS, attainment is defined when the expected number of days per calendar year, with maximum hourly average concentration greater than 0.12 parts per million (ppm) is equal to or less than 1. The EPA approved the state's CAA section 175A maintenance plan for the Portland-Vancouver area and redesignated the area to attainment on May 19, 1997 (62 FR 27204). Similarly, the EPA approved the state's CAA section 175A maintenance plan for the Seattle-Tacoma area and redesignated the area to attainment on September 26, 1996 (61 FR 50438). The EPA later revoked the 1-hour ozone NAAQS effective June 15, 2005 (70 FR 44470).
        The EPA did not designate any nonattainment areas in Washington for subsequent updates to the ozone NAAQS, specifically designations for the 1997 8-hour ozone NAAQS (84 FR 23857, April 30, 2004), the 2008 revision to the 8-hour ozone NAAQS (77 FR 30088, May 21, 2012), and the 2015 revision to the 8-hour ozone NAAQS (82 FR 54232, November 16, 2017). While there were no new ozone nonattainment areas designated in the state, Washington generally adopts pro-active measures to prevent nonattainment.
        2. Washington Fine Particulate Matter Attainment Status
        Fine particulate matter (PM2.5) can be emitted directly or formed secondarily in the atmosphere. The main precursors of secondary PM2.5 are SO2, NOX, ammonia, and VOCs. Sulfates are a type of secondary particle formed from SO2 emissions of power plants and industrial facilities. Nitrates, another common type of secondary particle, are formed from NOX emissions of power plants, automobiles, and other combustion sources.

        On July 18, 1997, the EPA promulgated the first air quality standards for PM2.5 (62 FR 38652). The EPA promulgated primary and secondary annual standards at a level of 15 micrograms per cubic meter (μg/m3), based on a 3-year average of annual mean PM2.5 concentrations. In the same rulemaking, EPA promulgated primary and secondary 24-hour standards of 65 μg/m3, based on a 3-year average of the 98th percentile of 24-hour concentrations. All areas in Washington met the 1997 PM2.5 standards, with all counties classified as unclassifiable/attainment.
        On October 17, 2006 (71 FR 61144), the EPA revised the PM2.5 NAAQS, retaining the annual average NAAQS at 15 μg/m3 but revising the 24-hour NAAQS to 35 μg/m3. On November 13, 2009 (74 FR 58688), the EPA designated the Tacoma area as nonattainment for the 24-hour PM2.5 NAAQS. On February 10, 2015 (80 FR 7347), the EPA approved the CAA section 175A maintenance plan for the Tacoma area and redesignated the area to attainment. Attainment was achieved primarily through wood stove emission reduction measures. However, projected declines in mobile source precursor emissions from ongoing vehicle fleet turnover also played a role in demonstrating continued attainment of the NAAQS.

        Lastly, on January 15, 2013, the EPA promulgated a revised primary annual PM2.5 NAAQS (78 FR 3086), strengthening the standard from 15 µg/m3 to 12 µg/m3. Nonattainment area designations for the 2012 primary annual PM2.5 standard were published on January 15, 2015 (80 FR 2206), with all counties in Washington classified as unclassifiable/attainment.
        C. Federal Motor Vehicle Emission Standards

        To reduce air pollution from motor vehicles, which contribute to higher levels of ambient air pollution such as ozone and PM2.5, motor vehicles sold in the United States are required by the CAA to be certified to meet federal motor vehicle emission standards. States are generally prohibited from adopting vehicle standards, except for California, which was granted an exception by the CAA to continue to issue its own vehicle emission standards. Section 209 of the CAA requires that, among other criteria for a waiver of preemption, California must demonstrate to the EPA that its newly adopted standards will be in the aggregate, at least as protective of public health and welfare as applicable federal standards.
        The CAA also authorizes other states to adopt California emission standards for which the EPA has granted California such a waiver of preemption. Under section 177 of the CAA, states with CAA part D attainment or maintenance plans are authorized to adopt California's standards in lieu of federal vehicle standards, provided they do so with at least two model years lead time prior to the effective date of the standards, and provided that the EPA has issued a waiver of preemption to California for such standards.
        D. California LEV Program
        In 1990, California's Air Resources Board (CARB) adopted LEV standards applicable to light and medium duty vehicles and phased in beginning with model year 1994 vehicles. In 1999, California adopted a second generation of LEV standards, known as LEV II, which were phased in beginning model year 2004. The EPA waived federal preemption for California's LEV II program on April 22, 2003 (68 FR 19811).
        In 2012, California approved a new, more stringent LEV program called the Advanced Clean Cars Program, or the LEV III program. California codified the LEV III requirements for criteria pollutant control in Title 13 of the California Code of Regulations, Division 3, section 1961.2. The program was phased in beginning with vehicles certified in model year 2015 and applied to light duty vehicles, light duty trucks, and medium duty passenger vehicles. On June 9, 2013 (78 FR 2112), the EPA granted a federal preemption waiver for California's Advanced Clean Cars Program.2

            2 We note that California's LEV III requirements for greenhouse gas exhaust emission standards codified in sections 1961.1 and 1961.3 were not submitted for approval as part of Washington's adoption by reference of the California LEV rules, nor were provisions related to zero emission vehicles (ZEV).

        E. Washington LEV Program
        In 2005, the Washington Legislature first adopted California's LEV program under Revised Code of Washington (RCW) 70A.30.010. Washington's adoption in 2005 applied to passenger cars, light duty trucks, and medium duty passenger vehicles, excluding other medium duty vehicles and California's ZEV requirements.3
           The legislature directed the Washington Department of Ecology (Ecology) to develop regulations implementing the adoption of California's LEV program, which Ecology codified in Chapter 173-423 Washington Administrative Code (WAC). Chapter 173-423 WAC became effective December 31, 2005 and applied to all 2009 and subsequent model years.4
           However, Washington did not submit the 2005 version of its LEV program regulations as a SIP revision request to EPA at that time. Ecology subsequently amended its LEV program regulations to incorporate by reference updates to the applicable California's LEV program requirements codified in California Code of Regulations Title 13, Division 3.5

            3 Effective June 11, 2020, the Washington State Legislature modified the LEV program to include all medium duty vehicles beginning with model year 2025 and adopted California's zero emission vehicle standards. However, these recent statutory changes are not part of the 2019 rule package submitted for approval at this time.

            4 See Washington State Register (WSR) 05-24-044 included in the docket for this action.

            5 See WSR 09-03-077, 12-24-033, 16-12-099, and 19-02-056 included in the docket.

        II. Summary of the September 2019 Washington LEV SIP Revision
        On September 30, 2019, Washington submitted a SIP revision requesting that the EPA amend the SIP to incorporate the state LEV requirements under Chapter 173-423 WAC. Washington's LEV program includes California's LEV III standards for criteria pollutant control, which Ecology first incorporated by reference on November 28, 2012, effective December 29, 2012.6
           Under section 177 of the CAA, states with CAA Part D attainment or maintenance plans, such as Washington, may adopt California's standards in lieu of federal vehicle standards, provided they do so with at least two model years lead time prior to the effective date of the standards, and provided that the EPA has issued a waiver of preemption to California for such standards. As noted above, Washington adopted the California LEV standards in 2005 applying to model year 2009 vehicles, meeting the two-year lead time requirement under section 177 of the CAA. As discussed above, the California LEV II standards adopted by Washington in 2005 had already received an EPA federal preemption waiver in 2003. Therefore, Washington met all CAA section 177 requirements for initial adoption of the California LEV standards. Subsequent updates, such as adoption of California's LEV III, which also received a federal preemption waiver, also met the two-model year lead time requirement. Since the adoption of California's LEV III program in 2012, there have been no major changes to Washington's LEV program for criteria pollutants; however, Ecology has periodically updated the incorporation by reference in Chapter 173-423 WAC to maintain consistency with the California motor vehicle emission standards.

            6 See WSR 12-24-033 included in the docket.

        Washington submitted, and the EPA is proposing to approve and incorporate by reference into the SIP, Chapter 173-423 Low Emission Vehicles with one important caveat. Washington did not submit provisions related to California's greenhouse gas motor vehicle emission standards.7
           A strikeout version of Chapter 173-423 WAC with the greenhouse gas provisions excluded from our proposed approval is included in the docket for this action.8
           These exclusions are also noted in the table of regulations proposed for approval in section III. of this preamble. Lastly, as discussed in section I.E. of this preamble, Chapter 173-423 WAC does not include California's zero emission vehicle requirements.9

            7 See National Ambient Air Quality Standards: Infrastructure State Implementation Plan for 2015 Ozone and 2010 Sulfur Dioxide, Appendix B.

            8 See 301_proposed IBR_Chapter 173-423 WAC_strike through.pdf.

            9 On May 10, 2021, Ecology announced intent to start rulemaking to revise Chapter 173-423 WAC to include zero emission vehicles for passenger cars, light duty trucks, and medium duty vehicles; zero emission vehicles for medium and heavy duty trucks (Advanced Clean Trucks); and low emission vehicle requirements for medium duty vehicles.

        III. The EPA's Proposed Action
        As previously noted, under section 177 of the CAA, states with CAA part D attainment or maintenance plans, such as Washington, are authorized to adopt California's standards in lieu of federal vehicle standards. Washington first adopted the California standards effective December 31, 2005; however, the state did not submit the LEV rules for approval in the SIP at the time. In 2019, Washington submitted the LEV rules to strengthen the SIP with respect to ozone control statewide, including current maintenance areas.10

           We are proposing to approve Washington's request because it meets the requirements of section 177 of the CAA. Specifically, the EPA is proposing to approve and incorporate by reference into the Washington SIP at 40 CFR 52.2470(c), Table 1—Regulations Approved Statewide, the regulations listed in the table below.

            10 See 102_state submittal_2018 ISIP for 2015 03 and 2010 S02 NAAQS included in the docket for this action.

          Washington Administrative Code, Chapter 173-423—Low Emission Vehicles

            State citation
            Title/subject
            Stateeffective
              date

            Explanation

            173-423-010
            Purpose
            12/29/12

            173-423-020
            Applicability
            12/31/05

            173-423-025
            Effective Date
            12/31/05

            173-423-030
            Incorporation by Reference
            12/31/05

            173-423-040
            Definitions and Abbreviations
            12/29/12
            Except 173-423-040(3).

            173-423-050
            Requirement to Meet California Vehicle Emission Standards
            12/29/12
            Except 173-423-050(2)(g).

            173-423-060
            Exemptions
            12/29/12

            173-423-070
            Emission Standards, Warranty, Recall and Other California Provisions Adopted by Reference
            1/27/19
            Except the incorporation by reference of California code sections 1961.1 and 1961.3.

            173-423-080

            Fleet Average Nonmethane Organic Gas (NMOG) and NMOG Plus NOX Exhaust Emission Requirements, Reporting and Compliance.
            12/29/12

            173-423-100
            Manufacturer Delivery Reporting Requirements
            12/29/12

            173-423-110
            Warranty Requirements
            12/29/12

            173-423-120
            Recalls
            12/29/12

            173-423-130
            Surveillance
            12/31/05

            173-423-140
            Enforcement
            12/31/05

            173-423-150
            Severability
            12/31/05

        IV. Incorporation by Reference

        In this document, the EPA is proposing to include in a final rule, regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the regulations shown in section III of this preamble. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).
        V. Statutory and Executive Order Reviews
        Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
        • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

        • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

        • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
        • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
        • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
        • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

        • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

        • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of the requirements would be inconsistent with the Clean Air Act; and
        • Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

        The SIP is not approved to apply on any Indian reservation land in Washington except as specifically noted below and is also not approved to apply in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Washington's SIP is approved to apply on non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area. Consistent with EPA policy, the EPA provided a consultation opportunity to the Puyallup Tribe, and other tribes located in Washington, in a letter dated July 15, 2019.

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

          Dated: August 12, 2021.
          Michelle L. Pirzadeh,
          Acting Regional Administrator, Region 10.

      [FR Doc. 2021-17734 Filed 8-17-21; 8:45 am]
      BILLING CODE 6560-50-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [DA 01-1393; MM Docket No. 01-123, RM-10139; MM Docket No. 01-124; RM-10140]
        Radio Broadcasting Services; Darien, GA; and Pearsall, TX

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          This document proposes two allotments. The Commission requests comments on a petition filed by Bernice P. Hedrick proposing the allotment of Channel 262A at Darien, Georgia, as the community's second local FM transmission service. Channel 262A can be allotted to Darien in compliance with the Commission's minimum distance separation requirements with a site restriction of 9.8 kilometers (6.1 miles) northeast to avoid a short-spacing to the licensed site of Station WOBB(FM), Channel 262C, Tifton, Georgia. The coordinates for Channel 262A at Darien are 31-26-32 North Latitude and 81-22-32 West Longitude. The Commission requests comments on a petition filed by Charles Crawford proposing the allotment of Channel 227A at Pearsall, Texas, as the community's third local FM transmission service. Channel 227A can be allotted to Pearsall in compliance with the Commission's minimum distance separation requirements with a site restriction of 12 kilometers (7.4 miles) west of the community. The coordinates for Channel 227A at Pearsall are 28-54-16 North Latitude and 99-12-59 West Longitude.

          DATES:
          Comments must be filed on or before July 30, 2001, and reply comments on or before August 14, 2001.

          ADDRESSES:
          Federal Communications Commission, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner, his counsel, or consultant, as follows: H. David Hedrick, P.O. Box 27, Gray, Georgia 31032 (Consultant for Bernice P. Hedrick); and Charles Crawford, 4553 Bordeaux Ave., Dallas, Texas 75205 (Petitioner for Pearsall, Texas).

          FOR FURTHER INFORMATION CONTACT:
          Sharon P. McDonald, Mass Media Bureau, (202) 418-2180.

        SUPPLEMENTARY INFORMATION:
        This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-123 and MM Docket No. 01-124, adopted May 30, 2001, and released June 8, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

        The Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.
        For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

          Federal Communications Commission.
          John A. Karousos,
          Chief, Allocations Branch, Policy and Rules Division, Mass Media Bureau.

      [FR Doc. 01-15976  Filed 6-25-01; 8:45 am]
      BILLING CODE 6712-01-P