        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [PA203-4217b; FRL-7588-2]

        Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; NOX RACT Determinations for Hercules Cement Company

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:

          EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania to establish and require reasonably available control technology (RACT) for Hercules Cement Company, a major source of nitrogen oxides (NOX) located in Northampton County, Pennsylvania. In the Final Rules section of this Federal Register, EPA is approving the Pennsylvania's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

          DATES:
          Comments must be received in writing by December 24, 2003.

          ADDRESSES:

          Comments may be submitted either by mail or electronically. Written comments should be mailed to Makeba Morris, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Electronic comments should be sent either to morris.makeba@epa.gov or to http://www.regulations.gov, which is an alternative method for submitting electronic comments to EPA. To submit comments, please follow the detailed instructions described in the Supplementary Information section. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; and Pennsylvania Department of Environmental Resources Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

          FOR FURTHER INFORMATION CONTACT:
          Rose Quinto at (215) 814-2182, or by e-mail at quinto.rose@epa.gov.

        SUPPLEMENTARY INFORMATION:

        For further information, please see the information provided in the direct final action, Pennsylvania's Approval of NOX RACT Determinations for Hercules Cement Company, that is located in the “Rules and Regulations” section of this Federal Register publication.
        You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number PA203-4217 in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.
        1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
        i. E-mail. Comments may be sent by electronic mail (e-mail) to morris.makeba@epa.gov, attention: PA203-4217. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.
        ii. Regulations.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, then select “Environmental Protection Agency” at the top of the page and use the “go” button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.
        iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in the ADDRESSES section of this document. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.
        2. By Mail. Written comments should be addressed to the EPA Regional office listed in the ADDRESSES section of this document.

        For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.
        Submittal of CBI Comments
        Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

        In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.
        Considerations When Preparing Comments to EPA
        You may find the following suggestions helpful for preparing your comments:
        1. Explain your views as clearly as possible.
        2. Describe any assumptions that you used.
        3. Provide any technical information and/or data you used that support your views.
        4. If you estimate potential burden or costs, explain how you arrived at your estimate.
        5. Provide specific examples to illustrate your concerns.
        6. Offer alternatives.
        7. Make sure to submit your comments by the comment period deadline identified.

        8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

          Dated: November 10, 2003.
          Donald S. Welsh,
          Regional Administrator, Region III.

      [FR Doc. 03-29175 Filed 11-21-03; 8:45 am]
      BILLING CODE 6560-50-P


        GENERAL SERVICES ADMINISTRATION
        41 CFR Part 105-57
        [GSPMR Case 2003-105-2]
        RIN 3090-AH85
        Administrative Wage Garnishment

          AGENCY:
          Office of Finance, General Services Administration (GSA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The General Services Administration (GSA) is proposing to amend its regulations to implement the administrative wage garnishment provisions contained in the Debt Collection Improvement Act of 1996 (DCIA). Wage garnishment is a process whereby an employer withholds amounts from an employee's wages and pays those amounts to the employee's creditor in satisfaction of a withholding order. The DCIA authorizes Federal agencies to administratively garnish the disposable pay of an individual to collect delinquent non-tax debts owed to the United States in accordance with regulations issued by the Secretary of the Treasury.
          This part was previously titled Collection of Debts by Tax Refund Offset. Effective January 1, 1999, the Department of Treasury started to conduct the tax refund offset program as part of the centralized offset program, known as the Treasury Offset Program (TOP), operated by the Financial Management Service (FMS), a bureau of the Department of Treasury. Since GSA has a cross-servicing agreement with FMS, which includes the TOP, the collection of debts by tax refund offset is no longer valid and is rescinded and replaced with the new part regarding administrative wage garnishment.

          DATES:
          Interested parties should submit comments in writing on or before September 9, 2003 to be considered in the formulation of a final rule.

          ADDRESSES:

          Submit written comments to: General Services Administration, Office of the Chief Financial Officer (BCD), 1800 F Street, NW., Room 3121, ATTN: Michael J. Kosar, Washington, DC 20405. Submit electronic comments via the Internet to: mike.kosar@gsa.gov Please submit comments only and cite GSPMR Case 2003-105-2 in all correspondence related to this case.

          FOR FURTHER INFORMATION CONTACT:
          The Regulatory Secretariat, Room 4035, GS Building, Washington, DC 20405, at (202) 501-4755 for information pertaining to status or publication schedules. For clarification of content, contact Mr. Michael J. Kosar, (202) 501-2029. Please cite GSPMR case 2003-105-2.

        SUPPLEMENTARY INFORMATION:

        A. Background
        This rule is proposed to implement the wage garnishment provision in section 31001(o) of the Debt Collection Improvement Act of 1996 (DCIA), Pub. L. 104-134, 110 Stat. 1321-358 (Apr. 26, 1996), codified at 31 U.S.C. 3720D. Wage garnishment is a process whereby an employer withholds amounts from an employee's wages and pays those amounts to the employee's creditor in satisfaction of a withholding order. The DCIA authorizes Federal agencies to administratively garnish up to 15% of the disposable pay of a debtor to satisfy delinquent non-tax debt owed to the United States. Prior to the enactment of the DCIA, agencies were required to obtain a court judgment before garnishing the wages of non-Federal employees. Section 31001(o) of the DCIA pre-empts State laws that prohibit wage garnishment or otherwise govern wage garnishment procedures.
        As authorized by the DCIA, a Federal agency collecting delinquent non-tax debt may administratively garnish a delinquent debtor's wages in accordance with regulations promulgated by the Secretary of the Treasury. The Financial Management Service (FMS), a bureau of the Department of the Treasury, is responsible for promulgating the regulations implementing this and other debt collection tools established by the DCIA.
        In accordance with the requirements of the DCIA, this proposed rule establishes the following rules and procedures:
        1. Notice
        At least 30 days before GSA initiates garnishment proceedings, the Agency will give the debtor written notice informing him or her of the nature and amount of the debt, the intention of GSA to collect the debt through deductions from pay, and an explanation of the debtor's rights regarding the proposed action.
        2. Rights of the Debtor
        GSA will provide the debtor with an opportunity to inspect and copy records related to the debt, to establish a repayment agreement, and to receive a hearing concerning the existence and/or amount of the debt and/or the terms of a repayment schedule. A hearing will be held prior to the issuance of a withholding order if the debtor's request is received timely. For hearing requests that are not received in the specified time frame, GSA will not delay issuance of the withholding order prior to conducting a hearing. GSA will not garnish the wages of a debtor who has been involuntarily separated from employment until that individual has been reemployed continuously for at least 12 months. The debtor bears the burden of informing GSA of the circumstances surrounding an involuntary separation from employment.
        3. Employer's Responsibilities
        GSA will send to the employer of a delinquent debtor a wage garnishment order directing that the employer pay a portion of the debtor's wages to GSA. This proposed rule requires the debtor's employer to certify certain payment information about the debtor. Employers will not be required to vary their normal pay cycles in order to comply with the garnishment order.
        The DCIA prohibits employers from taking disciplinary actions against the debtor based on the fact that the debtor's wages are subject to administrative garnishment. In addition, the DCIA authorizes GSA to sue an employer for amounts not properly withheld from the wages payable to the debtor.
        B. Executive Order 12866

        This rule is not a significant regulatory action as defined in Executive Order 12866. It is hereby certified this regulation, including the certification referenced in this proposed rule (see § 105-57.007 of this part), will not have a significant economic impact on a substantial number of small entities. Although a substantial number of small entities will be subject to this regulation and to the certification requirement in this rule, the requirements will not have a significant economic impact on these entities. Employers of delinquent debtors must certify certain information about the debtor such as the debtor's employment status and earnings. This information is contained in the employer's payroll records. Therefore, it will not take a significant amount of time or result in a significant cost for an employer to complete the certification form. Even if an employer is served withholding orders on several employees over the course of a year, the cost imposed on the employer to complete the certifications would not have a significant economic impact on that entity. Employers are not required to vary their normal pay cycles in order to comply with a withholding order issued pursuant to this rule.
        C. Regulatory Flexibility Act
        It is hereby certified this regulation will not have a significant economic impact on a substantial number of small entities because the regulation either (1) results in greater flexibility for GSA to streamline debt collection regulations, or (2) reflects the statutory language contained in the DCIA. Accordingly, a Regulatory Flexibility Analysis is not required.
        D. Executive Order 13132
        This regulation will not have a substantial direct effect on the states, on the relationship between the national government and the states, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined this regulation does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
        E. Unfunded Mandates Reform Act of 1995
        This regulation will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one (1) year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
        F. Small Business Regulatory Enforcement Fairness Act of 1996
        This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic or export markets.
        G. Paperwork Reduction Act

        This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act, 44 U.S.C. 3507 et seq.

          List of Subjects 41 CFR Part 105-57
          Claims, Government public contracts and property management, income taxes.

          Dated: July 2, 2003.
          Kathleen M Turco,
          Chief Financial Officer, Office of the Chief Financial Officer.

        For the reasons set out in the preamble, GSA proposes to amend 41 CFR part 105-57 as follows:

          CHAPTER 105 [Amended]

        1. Revise part 105-57 to read as follows:

          PART 105-57—ADMINISTRATIVE WAGE GARNISHMENT

            Sec.
            105-57.001
            Purpose, authority and scope.
            105-57.002
            Definitions.
            105-57.003
            General rule.
            105-57.004
            Notice requirements.
            105-57.005
            Hearing.
            105-57.006
            Wage garnishment order.
            105-57.007
            Certification by employer.
            105-57.008
            Amounts withheld.
            105-57.009
            Exclusions from garnishment.
            105-57.010
            Financial hardship.
            105-57.011
            Ending garnishment.
            105-57.012
            Actions prohibited by the employer.
            105-57.013
            Refunds.
            105-57.014
            Right of action.

            Authority:
            5 U.S.C. §§ 552-553, 31 U.S.C. 3720D, 31 CFR part 285.11.

            § 105-57.001
            Purpose, authority and scope.
            (a) This part provides standards and procedures for GSA to collect money from a debtor's disposable pay by means of administrative wage garnishment to satisfy delinquent non-tax debt owed to the United States.
            (b) These standards and procedures are authorized under the wage garnishment provisions of the Debt Collection Improvement Act of 1996, codified at 31 U.S.C. 3720D, and Department of Treasury Wage Garnishment Regulations at 31 CFR 285.11.
            (c) Scope. (1) This part applies to any GSA program that gives rise to a delinquent non-tax debt owed to the United States and that pursues recovery of such debt.
            (2) This part will apply notwithstanding any provision of State law.
            (3) Nothing in this part precludes the compromise of a debt or the suspension or termination of collection action in accordance with applicable law. See, for example, the Federal Claims Collection Standards (FCCS), 31 CFR parts 900 through 904.
            (4) The receipt of payments pursuant to this part does not preclude GSA from pursuing other debt collection remedies, including the offset of Federal payments to satisfy delinquent non-tax debt owed to the United States. GSA may pursue such debt collection remedies separately or in conjunction with administrative wage garnishment.
            (5) This part does not apply to the collection of delinquent non-tax debt owed to the United States from the wages of Federal employees from their Federal employment. Federal pay is subject to the Federal salary offset procedures set forth in 5 U.S.C. 5514 and other applicable laws. GSA standards and procedures for offsetting Federal wage payments are stated in 41 CFR part 105-56.
            (6) Nothing in this part requires GSA to duplicate notices or administrative proceedings required by contract or other laws or regulations.

            § 105-57.002
            Definitions.
            (a) Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means withholding funds payable by the United States (including funds payable by the United States on behalf of a State government) to, or held by the United States for, a person to satisfy a claim.
            (b) Business day means Monday through Friday, excluding Federal legal holidays. For purposes of computation, the last day of the period will be included unless it is a Federal legal holiday.
            (c) Day means calendar day. For purposes of computation, the last day of the period will be included unless it is a Saturday, a Sunday, or a Federal legal holiday.
            (d) Debtor means an individual who owes a delinquent non-tax debt to the United States.
            (e) “Delinquent” or “past-due ” non-tax debt means any non-tax debt that has not been paid by the date specified in GSA's initial written demand for payment or applicable agreement or instrument (including a post-delinquency payment agreement), unless other satisfactory payment arrangements have been made.
            (f) Disposable pay means that part of the debtor's compensation (including, but not limited to, salary, bonuses, commissions, and vacation pay) from an employer remaining after the deduction of health insurance premiums and any amounts required by law to be withheld. For purposes of this part, “amounts required by law to be withheld” include amounts for deductions such as social security taxes and withholding taxes, but do not include any amount withheld pursuant to a court order.
            (g) Employer means a person or entity that employs the services of others and that pays their wages or salaries. The term employer includes, but is not limited to, State and local Governments, but does not include an agency of the Federal Government as defined by 31 CFR Part 285.11(c).
            (h) Evidence of service means information retained by GSA indicating the nature of the document to which it pertains, the date of submission of the document, and to whom the document is being submitted. Evidence of service may be retained electronically or otherwise, so long as the manner of retention is sufficient for evidentiary purposes.
            (i) Financial hardship means an inability to meet basic living expenses for goods and services necessary for the survival of the debtor and his or her spouse and dependents. See § 105-57.010 of this part.
            (j) For the purposes of the standards in this part, unless otherwise stated, the term “Administrator” refers to the Administrator of General Services or the Administrator's delegate.
            (k) For the purposes of the standards in this part, the terms “claim” and “debt” are synonymous and interchangeable. They refer to an amount of money, funds, or property that has been determined by GSA to be due the United States from any person, organization, or entity, except another Federal agency, from sources which include loans insured or guaranteed by the United States and all other amounts due the United States from fees, leases, rents, royalties, services, sales of real or personal property, overpayments, penalties, damages, interest, fines and forfeitures and all other similar sources, including debt administered by a third party as an agent for the Federal Government. For the purposes of administrative offset under 31 U.S.C. 3716, the terms “claim” and “debt” include an amount of money, funds, or property owed by a person to a State (including past-due support being enforced by a State), the District of Columbia, American Samoa, Guam, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, or the Commonwealth of Puerto Rico.
            (l) For the purposes of the standards in this part, unless otherwise stated, the terms “GSA” and “Agency” are synonymous and interchangeable.
            (m) For the purposes of the standards in this part, unless otherwise stated, “Secretary” means the Secretary of the Treasury or the Secretary's delegate.
            (n) Garnishment means the process of withholding amounts from an employee's disposable pay and the paying of those amounts to GSA in satisfaction of a withholding order.
            (o) Hearing means a review of the documentary evidence concerning the existence and/or amount of a debt, and/or the terms of a repayment schedule, provided such repayment schedule is established other than by a written agreement entered into pursuant to this part. If the hearing official determines that the issues in dispute cannot be resolved solely by review of the written record, such as when the validity of the debt turns on the issue of credibility or veracity, an oral hearing may be provided.
            (p) Hearing official means a Board Judge of the GSA Board of Contract Appeals.
            (q) Withholding order means “Wage Garnishment Order (SF 329B)”, issued by GSA. For purposes of this part, the terms “'wage garnishment order”' and “garnishment order”' have the same meaning as “withholding order.”
            (r) In this part, words in the plural form shall include the singular and vice versa, and words signifying the masculine gender shall include the feminine and vice versa. The terms “includes” and “including” do not exclude matters not listed but do include matters that are in the same general class.

            § 105-57.003
            General rule.
            Whenever GSA determines a delinquent debt is owed by an individual, the Agency may initiate administrative proceedings to garnish the wages of the delinquent debtor.

            § 105-57.004
            Notice requirements.
            (a) At least 30 days before the initiation of garnishment proceedings, GSA will send, by first class mail, overnight delivery service, or hand delivery to the debtor's last known address a written notice informing the debtor of—
            (1) The nature and amount of the debt;
            (2) The intention of GSA to initiate proceedings to collect the debt through deductions from pay until the debt and all accumulated interest, penalties and administrative costs are paid in full; and
            (3) The debtor's rights, including those set forth in paragraph (b) of this section, and the time frame within which the debtor may exercise his or her rights.
            (b) The debtor will be afforded the opportunity:
            (1) To inspect and copy Agency records related to the debt;
            (2) To enter into a written repayment agreement with GSA under terms agreeable to the Agency; and
            (3) To request a hearing in accordance with § 105-57.005 of this part concerning the existence and/or amount of the debt, and/or the terms of the proposed repayment schedule under the garnishment order. However, the debtor is not entitled to a hearing concerning the terms of the proposed repayment schedule if these terms have been established by written agreement under paragraph (b)(2) of this section.
            (c) The notice required by this section may be included with GSA's demand letter required by 41 CFR 105-55.010.
            (d) GSA will keep a copy of the evidence of service indicating the date of submission of the notice. The evidence of service may be retained electronically so long as the manner of retention is sufficient for evidentiary purposes.

            § 105-57.005
            Hearing.
            (a) GSA will provide a hearing, which at the hearing official's option may be oral or written, if within fifteen (15) business days of submission of the notice by GSA, the debtor submits a signed and dated written request for a hearing, to the official named in the notice, concerning the existence and/or amount of the debt, and/or the terms of the repayment schedule (for repayment schedules established other than by written agreement under § 105-57.004(b)(2) of this part). A copy of the request for a hearing must also be sent to the GSA Board of Contract Appeals at the address indicated in paragraph (b)(2) of this section.
            (b) Types of hearing or review.

            (1) For purposes of this section, whenever GSA is required to afford a debtor a hearing, the hearing official will provide the debtor with a reasonable opportunity for an oral hearing when he/she determines that the issues in dispute cannot be resolved by review of the documentary evidence, for example, when the validity of the claim turns on the issue of credibility or veracity.
            (2) If the hearing official determines that an oral hearing is appropriate, he/she will establish the time and location of the hearing. An oral hearing may, at the debtor's option, be conducted either in-person or by telephone conference. In-person hearings will be conducted in the hearing officials office located at GSA Central Office, 1800 F St., NW., Washington, DC 20405, or at another location designated by the hearing official. All personal and travel expenses incurred by the debtor in connection with an in-person hearing will be borne by the debtor. All telephonic charges incurred during a hearing will be the responsibility of GSA.
            (3) The debtor may represent himself or herself or may be represented by another person of his or her choice at the hearing. GSA will not compensate the debtor for representation expenses, including hourly fees for attorneys, travel expenses, or costs for reproducing documents.
            (4) In those cases when an oral hearing is not required by this section, the hearing official will nevertheless conduct a “paper hearing”, that is, the hearing official will decide the issues in dispute based upon a review of the written record. The hearing official will establish a reasonable deadline for the submission of evidence.
            (c) Subject to paragraph (k) of this section, if the debtor's written request is received by GSA on or before the 15th business day after the submission of the notice described in § 105-57.004(a) of this part, the Agency will not issue a withholding order under § 105-57.006 of this part until the debtor has been provided the requested hearing and a decision in accordance with paragraphs (h) and (i) of this section has been rendered.
            (d) If the debtor's written request for a hearing is received by GSA after the 15th business day following the mailing of the notice described in § 105-57.004(a) of this part, GSA may consider the request timely filed and provide a hearing if the debtor can show that the delay was because of circumstances beyond his or her control. However, GSA will not delay issuance of a withholding order unless the Agency determines that the delay in filing the request was caused by factors over which the debtor had no control, or GSA receives information that the Agency believes justifies a delay or cancellation of the withholding order.
            (e) After the debtor requests a hearing, the hearing official will notify the debtor of:
            (1) The date and time of a telephonic hearing;
            (2) The date, time, and location of an in-person oral hearing; or
            (3) The deadline for the submission of evidence for a written hearing.
            (f) Burden of proof. (1) GSA will have the burden of establishing the existence and/or amount of the debt.
            (2) Thereafter, if the debtor disputes the existence and/or amount of the debt, the debtor must prove by a preponderance of the evidence that no debt exists or that the amount of the debt is incorrect. In addition, the debtor may present evidence that the terms of the repayment schedule are unlawful, would cause a financial hardship to the debtor, or that collection of the debt may not be pursued due to operation of law.
            (g) The hearing official will maintain a written transcript of any hearing provided under this section. The transcript will be made available to either party in the event of an appeal under the Administrative Procedure Act, 5 U.S.C. 701-706. A hearing is not required to be a formal evidentiary-type hearing, however, witnesses who testify in oral hearings will do so under oath or affirmation.
            (h) The hearing official will issue a written opinion stating his or her decision, as soon as practicable, but not later than sixty (60) days after the date on which the request for such hearing was received by GSA. If the hearing official is unable to provide the debtor with a hearing and render a decision within 60 days after the receipt of the request for such hearing—
            (1) GSA will not issue a withholding order until the hearing is held and a decision rendered; or
            (2) If GSA had previously issued a withholding order to the debtor's employer, the Agency will suspend the withholding order beginning on the 61st day after the receipt of the hearing request and continuing until a hearing is held and a decision is rendered.
            (i) The written decision will include—
            (1) A summary of the facts presented;
            (2) The hearing official's findings, analysis and conclusions; and
            (3) The terms of any repayment schedules, if applicable.

            (j) The hearing official's decision will be the final Agency action for the purposes of judicial review under the Administrative Procedure Act (5 U.S.C. 701 et seq.).
            (k) In the absence of good cause shown, a debtor who fails to appear at a hearing scheduled pursuant to paragraph (e) of this section, or to provide written submissions within the time set by the hearing official, will be deemed to have waived his or her right to appear and present evidence.

            § 105-57.006
            Wage garnishment order.
            (a) Unless GSA receives information it believes justifies a delay or cancellation of the withholding order, the Agency will send, by first class mail, overnight delivery service or hand delivery, a SF 329A (Letter to Employer & Important Notice to Employer), a SF 329B (Wage Garnishment Order), a SF 329C (Wage Garnishment Worksheet), and a SF 329D (Employer Certification), to the debtor's employer—

            (1) Within 30 days after the debtor fails to make a timely request for a hearing (i.e., within 15 business days after the mailing of the notice described in § 105-57.004(a) of this part), or
            (2) If a timely request for a hearing is made by the debtor, within 30 days after a final decision is made by the hearing official to proceed with garnishment.
            (b) The withholding order sent to the employer under paragraph (a) of this section will contain the signature of, or the image of the signature of, the Administrator or his or her delegate. The order will contain only the information necessary for the employer to comply with the withholding order. Such information includes the debtor's name, address, and social security number, as well as instructions for withholding and information as to where payments are to be sent.
            (c) GSA will retain a copy of the evidence of service indicating the date of submission of the order. The evidence of service may be retained electronically so long as the manner of retention is sufficient for evidentiary purposes.

            § 105-57.007
            Certification by employer.
            The employer must complete and return the SF 329D (Employer Certification) to GSA within the time-frame prescribed in the instructions to the form. The certification will address matters such as information about the debtor's employment status and disposable pay available for withholding.

            § 105-57.008
            Amounts withheld.

            (a) After receipt of the garnishment order issued under this part, the employer shall deduct from all disposable pay paid to the applicable debtor during each pay period the amount of garnishment described in paragraph (b) of this section. The employer may use the SF 329C (Wage Garnishment Worksheet) to calculate the amount to be deducted from the debtor's disposable pay.

            (b) Subject to the provisions of paragraphs (c) and (d) of this section, the amount of garnishment will be the lesser of—
            (1) The amount indicated on the garnishment order up to 15% of the debtor's disposable pay; or

            (2) The amount set forth in 15 U.S.C. 1673(a)(2) (Restriction on Garnishment), which is the amount by which a debtor's disposable pay exceeds an amount equivalent to thirty times the minimum wage. See 29 CFR 870.10.
            (c) When a debtor's pay is subject to withholding orders with priority, the following will apply:
            (1) Unless otherwise provided by Federal law, withholding orders issued under this part will be paid in the amounts set forth under paragraph (b) of this section and will have priority over other withholding orders which are served later in time. Notwithstanding the foregoing, withholding orders for family support will have priority over withholding orders issued under this part.
            (2) If amounts are being withheld from a debtor's pay pursuant to a withholding order served on an employer before a withholding order issued pursuant to this part, or if a withholding order for family support is served on an employer at any time, the amounts withheld pursuant to the withholding order issued under this part will be the lesser of—
            (i) The amount calculated under paragraph (b) of this section, or
            (ii) An amount equal to 25% of the debtor's disposable pay less the amount(s) withheld under the withholding order(s) with priority.
            (3) If a debtor owes more than one debt to GSA, the Agency may issue multiple withholding orders provided the total amount garnished from the debtor's pay for such orders does not exceed the amount set forth in paragraph (b) of this section.
            (d) An amount greater than that set forth in paragraphs (b) and (c) of this section may be withheld upon the written consent of the debtor.
            (e) The employer shall promptly pay to GSA all amounts withheld in accordance with the withholding order issued pursuant to this part.
            (f) An employer will not be required to vary its normal pay and disbursement cycles in order to comply with the withholding order.
            (g) Any assignment or allotment by an employee of his or her earnings will be void to the extent it interferes with or prohibits execution of the withholding order issued under this part, except for any assignment or allotment made pursuant to a family support judgment or order.
            (h) The employer will withhold the appropriate amount from the debtor's wages for each pay period until the employer receives notification from GSA to discontinue wage withholding. The garnishment order will indicate a reasonable period of time within which the employer is required to commence wage withholding, usually the first payday after the employer receives the order. However, if the first payday is within ten (10) days after the receipt of the garnishment order, the employer may begin deductions on the second payday.
            (i) Payments received through a wage garnishment order will be applied in the following order:
            (1) To outstanding penalties.
            (2) To administrative costs incurred by GSA to collect the debt.
            (3) To interest accrued on the debt at the rate established by the terms of the obligation under which it arose or by applicable law.
            (4) To outstanding principal.

            § 105-57.009
            Exclusions from garnishment.
            GSA will not garnish the wages of a debtor who it knows has been involuntarily separated from employment until the debtor has been reemployed continuously for at least 12 months. The debtor has the burden of informing GSA of the circumstances surrounding an involuntary separation from employment.

            § 105-57.010
            Financial hardship.
            (a) A debtor whose wages are subject to a wage withholding order under this part, may, at any time, request a review by GSA of the amount garnished, based on materially changed circumstances such as disability, divorce, or catastrophic illness which result in financial hardship.
            (b) A debtor requesting a review under paragraph (a) of this section shall submit the basis for claiming the current amount of garnishment results in a financial hardship to the debtor, along with supporting documentation.
            (c) If a financial hardship is found, GSA will downwardly adjust, by an amount and for a period of time agreeable to the Agency, the amount garnished to reflect the debtor's financial condition. GSA will notify the employer of any adjustments to the amounts to be withheld.

            § 105-57.011
            Ending garnishment.
            (a) Once GSA has fully recovered the amounts owed by the debtor, including interest, penalties, and administrative costs consistent with the FCCS, the Agency will send the debtor's employer notification to discontinue wage withholding.
            (b) At least annually, GSA will review its debtors' accounts to ensure that garnishment has been terminated for accounts that have been paid in full.

            § 105-57.012
            Actions prohibited by the employer.
            An employer may not discharge, refuse to employ, or take disciplinary action against the debtor due to the issuance of a withholding order under this part. See 31 U.S.C. 3720D(e).

            § 105-57.013
            Refunds.
            (a) If a hearing official, at a hearing held pursuant to § 105-57.005 of this part, determines that a debt is not legally due and owing to the United States, GSA will promptly refund any amount collected by means of administrative wage garnishment.
            (b) Unless required by Federal law or contract, refunds under this part will not bear interest.

            § 105-57.014
            Right of action.
            GSA may sue any employer for any amount that the employer fails to withhold from wages owed and payable to an employee in accordance with §§ 105-057.006 and 105-57.008 of this part, plus attorney's fees, costs, and if applicable, punitive damages. However, a suit may not be filed before the termination of the collection action involving a particular debtor, unless earlier filing is necessary to avoid expiration of any applicable statute of limitations period. For purposes of this part, “termination of the collection action” occurs when GSA has terminated collection action in accordance with the FCCS or other applicable standards. In any event, termination of the collection action will have been deemed to occur if GSA has not received any payments to satisfy the debt from the particular debtor whose wages were subject to garnishment, in whole or in part, for a period of one (1) year.

      [FR Doc. 03-17400 Filed 7-10-03; 8:45 am]
      BILLING CODE 6820-34-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 226
        [Docket No. 0809161218-9950-02]
        RIN 0648-AX23
        Endangered and Threatened Species: 12-Month Finding for a Petition to Revise Critical Habitat for Hawaiian Monk Seal

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

          ACTION:
          Notice of 12-month finding.

          SUMMARY:

           On July 9, 2008, we (NMFS) received a petition dated July 2, 2008, requesting that we revise the present critical habitat designation for the Hawaiian monk seal (Monachus schauinslandi) under the Endangered Species Act (ESA) by expanding the current critical habitat in the Northwestern Hawaiian Islands, and by designating additional critical habitat in the main Hawaiian Islands. We have reviewed, and here provide a summary of the best available information regarding Hawaiian monk seal biology and habitat use. Based on our review, we intend to revise the monk seal's critical habitat, and we are providing our initial thoughts on the habitat features that are essential to the conservation of this species and describing how we intend to proceed with the requested critical habitat revision.

          ADDRESSES:
          Requests for copies of this determination should be addressed to the Assistant Regional Administrator, Protected Resources Division, NMFS, 1601 Kapiolani Blvd, Honolulu, HI 96814.

          FOR FURTHER INFORMATION CONTACT:
           Lance Smith at (808) 944-2258, e-mail lance.smith@noaa.gov; Krista Graham at (808) 944-2238, e-mail krista.graham@noaa.gov; or Marta Nammack, (301) 713-1401.

        SUPPLEMENTARY INFORMATION:

        Background documents on the biology of the Hawaiian monk seal, the July 2, 2008, petition requesting revision of its critical habitat, and documents explaining the critical habitat designation process, can be downloaded from http://www.fpir.noaa.gov/PRD/prd_index.html, or requested by phone or e-mail from the NMFS staff in Honolulu (area code 808) listed under “FOR FURTHER INFORMATION CONTACT”. The October 3, 2008, 90-day finding in response to the petition and the information received in response to the 90-day finding can be viewed at www.regulations.gov by searching for docket number “NOAA-NMFS-2008-0290”.
        Background

        On July 9, 2008, we received a petition dated July 2, 2008, from the Center for Biological Diversity, Kahea, and the Ocean Conservancy (Petitioners) to revise the Hawaiian monk seal critical habitat designation (Center for Biological Diversity et al., 2008) under the ESA. Currently designated critical habitat is described below in “Listing Status and Existing Critical Habitat Under the ESA.” The Petitioners seek to revise critical habitat by adding the following areas in the main Hawaiian Islands (MHI): key beach areas, sand spits and islets, including all beach crest vegetation to its deepest extent inland, lagoon waters, inner reef waters, and ocean waters out to a depth of 200 meters. In addition, The Petitioners request that currently designated critical habitat in the Northwestern Hawaiian Islands (NWHI) be extended to include Sand Island at Midway, as well as ocean waters out to a depth of 500 meters (Center for Biological Diversity et al., 2008).
        On October 3, 2008, we published a 90-day finding in response to the petition, finding that the petition presented substantial scientific information indicating that a revision to the current critical habitat designation may be warranted (73 FR 57583; October 3, 2008). The 90-day finding requested that the public submit information by December 2, 2008, to help us determine whether a revision of critical habitat is warranted for the Hawaiian monk seal. The purpose of this 12-month finding is to announce that we intend to proceed with a revision of critical habitat for the monk seal and to provide details on the revision process.
        In the following sections, we provide information on the Hawaiian monk seal's listing status and existing critical habitat under the ESA, population status and trend, Hawaiian monk seal biology, summary of the information received from the public in response to our 90-day finding (73 FR 57583; October 3, 2008), our determination that we will proceed with a revision of critical habitat, and the criteria we intend to use for the revision.
        Listing Status and Existing Critical Habitat Under the ESA
        The Hawaiian monk seal (Monachus schauinslandi) was listed as endangered under the ESA in 1976 (41 FR 33922; November 23, 1976). This species occurs throughout the Hawaiian Archipelago and on Johnston Atoll, and has been sighted at other atolls and islands to the south of Hawaii. In 1986, critical habitat was designated for all beach areas, sand spits and islets, including all beach crest vegetation to its deepest extent inland, lagoon waters, inner reef waters, and ocean waters out to a depth of 10 fathoms (18.3 m) around Kure Atoll, Midway Islands (except Sand Island), Pearl & Hermes Reef, Lisianski Island, Laysan Island, Gardner Pinnacles, French Frigate Shoals, Necker Island, and Nihoa Island in the NWHI (51 FR 16047; April 30, 1986). In 1988, critical habitat was extended to include Maro Reef and waters around previously recommended areas out to the 20 fathom (36.6 m) isobath (53 FR 18988; May 26, 1988). A recovery plan was completed in 1983 (NMFS, 1983) and revised in 2007 (NMFS, 2007a). The species is endemic (found nowhere else) to the Hawaiian Archipelago, and is one of the most endangered marine mammals in the United States (NMFS, 2007a).
        Hawaiian Monk Seal Biology

        The Hawaiian monk seal is a mammal in the Order Carnivora, Family Phocidae, Genus Monachus. Only two other species occur in this genus, the recently extinct Caribbean monk seal (M. tropicalis) and the critically endangered Mediterranean monk seal (M. monachus). Following is an overview of the Hawaiian monk seal's biology, including Range, Population Status and Trends, Natural History, Habitat, and Northwestern Hawaiian Islands vs. Main Hawaiian Islands (a description of differences in monk seal habitat between these two areas).
        Range
        Hawaiian monk seals are found throughout the Hawaiian Archipelago and on Johnston Atoll. The six main reproductive sites for the species are in the NWHI: Kure Atoll, Midway Islands, Pearl and Hermes Reef, Lisianski Island, Laysan Island, and French Frigate Shoals. Smaller reproductive sites also occur on Necker Island and Nihoa Island, and monk seals have been observed at Gardner Pinnacles and Maro Reef. Monk seals are found throughout the MHI, where births have been documented on most of the major islands (NMFS, 2001, 2007a). In 1994, we relocated 21 adult male monk seals from the NWHI to the MHI in order to reduce male aggression and female deaths at Laysan Island, where males greatly outnumbered females at the time. We have relocated three female monk seals (a juvenile in 1981, a pup in 1991, and an adult in 2009) from the MHI to the NWHI. Thus, we have relocated 21 males from the NWHI to the MHI, and three females from the MHI to the NWHI.
        At Johnston Atoll, a tagged yearling male monk seal from Laysan Island was first seen in July 1968 (Schreiber and Kilder, 1969) and remained until at least August 1972. In January 1969, an untagged adult female monk seal arrived on Sand Island, a secondary island within Johnston Atoll, and gave birth to a female pup. The mother-pup pair remained on or near the pupping beach until March 1969, when the pup was weaned and the mother disappeared. The pup remained until 1971 when it died from a deep flesh wound, probably from a shark attack (Amerson and Shelton, 1976). In July 1999, a tagged adult female from French Frigate Shoals arrived at Johnston Atoll and remained there for about a year (NMFS, 2001).

        In addition to the above reported natural occurrences of monk seals at Johnston Atoll, a 12 male monk seals have been relocated there from the Hawaiian Archipelago. In 1984, nine adult males were relocated from the NWHI to Johnston Atoll, because of attacks on adult females and immature seals. At least three of these males were still at Johnston Atoll the following year, and at least one male was still there in 1986. In 1989, two adult males were relocated from the NWHI to Johnston Atoll because they were drowning pups. In 2003, an adult male was relocated from the MHI to Johnston Atoll because it was habituated to humans and exhibiting dangerous behavior. No sighting history is available for the latter three monk seals (NMFS unpublished data).

        Unconfirmed but probable sightings of Hawaiian monk seals outside the Hawaiian Archipelago and Johnston Atoll have been reported from Palmyra Atoll (1,800 km south of NWHI) and Wake Island (2,000 km southwest of NWHI); two seals were sighted on Palmyra Atoll in 1990, a seal was sighted on Wake Island in early summer 1966, and a tagged seal was sighted on Wake Island in February 1987 (Westlake and Gilmartin, 1990, NMFS unpublished data). Other more poorly-documented sightings have also been reported from Bikini Atoll and Mejit Island in the Marshall Islands (2,400 km southwest of NWHI, NMFS unpublished data).
        Population Status and Trends
        The best estimate of Hawaiian monk seal total population size is 1,208 seals in 2006 (1,125 in the NWHI, 83 in the MHI; NMFS, 2008a). Additional population information can be found in the annual Stock Assessment Reports (e.g., NMFS, 2006, 2007b, 2008a). The first rangewide beach count surveys of Hawaiian monk seals were conducted in the late 1950s. Beach counts of juveniles and adults (i.e., all seals except pups) declined by 66 percent between the years 1958 and 2006 (Figure I.C.6 in NMFS, 2007a). More recently, beach counts declined rapidly from 1985 to 1993, and then became relatively stable until the current decline began in 2001. Total abundance at the six primary NWHI sites (French Frigate Shoals, Laysan, Lisianski, Pearl and Hermes, Midway, and Kure) is declining at a rate of about four percent per year (NMFS 2007a, 2007b, 2008a).
        Since 2000, many sites have shown indications of decline in abundance, apparently due to low juvenile survival. The decline at French Frigate Shoals is of particular consequence to the welfare of the overall population because this site once accounted for over 50 percent of the total non-pup beach counts in the NWHI. While that proportion has now dropped to approximately 25 percent of its observed peak, there are still more seals at French Frigate Shoals than any other island or atoll. More detail on Hawaiian monk seal population status and trends in the NWHI is provided in the recovery plan (NMFS, 2007a). As noted above, in 1994, we relocated 21 adult male monk seals from the NWHI to the MHI in order to reduce male aggression and female deaths at Laysan Island, where males greatly outnumbered females at the time. All female monk seals in the MHI occur there naturally. In 2008, only five of the 21 relocated male monk seals remained in the MHI.
        Although monk seals historically occurred throughout the Hawaiian Archipelago, the majority of the population now occurs in the NWHI. Human settlement appears to have largely excluded monk seals from the MHI, although seal bones have been found at archeological sites dating from 1400 - 1700 (Rosendahl, 1994). In 1900, Hilo residents reported that solitary monk seals were seen in the area about once every 10 years (Bailey, 1952). From 1928 to 1956, seven monk seal sightings were documented in the MHI (Kenyon and Rice, 1959), and Niihau residents reported that seals appeared there in the 1970s. By 1994 there was a small naturally-occurring population of male and female monk seals in the MHI. This population appeared to be growing, and at least six pups had been born (one in 1962, and five between 1988 and 1993). Since the mid-1990s, an increasing number of documented sightings and annual births of monk seal pups have occurred in the MHI. Combined aerial and ground surveys in the MHI counted 45 hauled-out monk seals in 2000, and 52 in 2001 (Baker and Johanos, 2004). Sightings in the MHI tallied 77 individually identifiable monk seals in 2005 (NMFS, 2007b), and 83 in 2006 (NMFS, 2008a). Together, these observations suggest that monk seals are recolonizing the MHI.
        Natural History

        Hawaiian monk seals are wide-ranging, air-breathing predators that forage underwater, preying primarily on small benthic fishes, cephalopods (e.g., octopus), and crustaceans (Goodman-Lowe, 1998). They spend the majority of their time in the ocean, where they are highly mobile and may have very large home ranges (Antonelis et al., 2006). Monk seals are typical large predators, in that they can rapidly cover large areas in search of food. Individuals may travel hundreds of miles in a few days (Littnan et al., 2007) and dive to 500 m (1,600 ft; Parrish et al., 2002). Monk seals haul out on land to rest, molt, pup (give birth), and nurse. Resting may also occur at sea or in shallow, submerged caves. Monk seals are often solitary, both on land and in the water, but may congregate in favorable haul-out areas (Antonelis et al., 2006). Adult monk seals reach a length of 2.3 m (7.5 ft) and weigh up to 273 kg (600 lb). Unlike most other pinnipeds, monk seals completely molt, whereby the entire layer of pelage (skin and hair) is shed annually. The old pelage strips away, leaving a dark grey coat underneath. Pups are black until first molt, and mostly grey thereafter, although coloration varies by individual and with age. When monk seals stay at sea for an extensive period, they may develop a red or green tinge from algal growth on their pelage (Kenyon and Rice, 1959).

        It is thought that Hawaiian monk seals have a lifespan of up to 30 years. Females reach breeding age at about 6 to 11 years of age, depending on their condition, and give birth no more than once annually. Mating occurs at sea, and gestation is thought to be approximately 11 months. Monk seal births are most common between February and August, peaking in March and April at Laysan Island. Females give birth to a single pup and nurse it for about 6 weeks, followed by an abrupt weaning, when the mother abandons the pup (Johanos et al., 1994). At least several months are required for the pup to learn to forage successfully on its own, during which time it survives on fat stores built up during nursing, resulting in considerable weight loss. Juveniles (up to 3 years old) are typically longer but thinner than recently-weaned pups, and juveniles in the NWHI typically do not regain their weaning weight until approximately 2 years of age (Johanos et al., 1994). Male aggression, in which a single male or multiple males repeatedly attempt to mount and mate with a female or immature seal, is most common where males outnumber females, and sometimes results in death or severe injury to the targeted seal. Individual adult males sometimes attack pups in the same manner, also sometimes killing the pup (Hiruki et al., 1993).
        Habitat

        While Hawaiian monk seals spend most of their time in the water, they frequently haul out on land to rest, molt, pup (give birth), and nurse. Monk seals may remain at sea for several days or more at a time, but resting on land is necessary to conserve energy. Resting is commonly on sandy beaches, but may also occur on rocky shores, rock ledges, emergent reefs, and even shipwrecks (Antonelis et al., 2006). Monk seals may take shelter from wind and rain under shoreline vegetation. Resting on land is typically done for a few hours to several days at a time, after which the monk seal returns to the water to continue foraging. When ocean conditions are rough, monk seals may spend a greater proportion of time resting on land. Hauling-out on land is also required for molting, when old pelage is shed. Molting is an annual process taking 1 to 2 weeks, during which time the monk seal usually remains on land (Kenyon and Rice, 1959).

        Pupping and nursing areas are usually sandy beaches adjacent to shallow protected water (Westlake and Gilmartin, 1990). Individual females appear to favor certain pupping locations, returning to them year after year. Pregnant females come ashore a few days before giving birth to a pup weighing approximately 16 kg (35 lb). Pups nurse for 5 to 6 weeks (Johanos et al., 1994), and weigh 50 - 100 kg (110 - 220 lb) at weaning. During nursing, the mother-pup pair remain close to each other, and the mother is protective of her pup. Although the pup is able to swim at birth, nursing is done on land, and the mother-pup pair usually remain on land for the first few days after the pup is born. The mother gradually begins swimming with her pup in the shallows, returning to the general area around the pupping site. As weaning approaches, the mother-pup pair spend more time in the water, venturing further away from the pupping site. After weaning, pups typically remain in the shallows near their nursing areas for several weeks before venturing into deeper foraging areas (Kenyon and Rice, 1959; Henderson and Johanos, 1988).

        Monk seals are generalists that forage primarily over low-relief substrates such as sand and talus. Live fish are generally the preferred prey, and over 150 fish species have been recorded in the monk seal diet (Iverson et al., 2006). NWHI camera studies have shown that adult male monk seals forage mainly on sand terraces and talus slopes 50 - 100 m (160 - 325 ft) deep around their home atoll and nearby seamounts (Parrish and Littnan, 2008). Premium adult foraging habitat is comprised of large, loose talus fragments, which the seals move to reach the hiding prey underneath (Parrish et al., 2000). Studies in the NWHI (Parrish et al., 2002; Stewart et al., 2006) have shown that adult monk seals may forage at 300 - 500 m (1,000 - 1,600 ft), sometimes visiting patches of deep corals (Parrish et al., 2002). Recent surveys of deep fish assemblages across seamounts of the NWHI show a pattern of reduced fish biomass at sites close to colonies of monk seals (Parrish, 2009). Juvenile monk seals (1 - 3 years old) forage both within shallow atoll lagoons 10 - 30 m (30 - 100 ft) and on deep reef slopes (50 - 100 m/160 - 325 ft), usually over sand rather than talus. Juvenile seals likely do not yet have the size or experience to engage in the large talus-foraging behavior exhibited by adults (Parrish et al., 2005).

        Although much less information is available for monk seals in the MHI, 11 juvenile and adult monk seals were tracked there in 2005 using satellite-linked radio transmitters showing location but not depth. This study indicated that seals usually remained in nearshore waters within the 200 m (650 ft) isobath. As in the NWHI, this study suggested that monk seals in the MHI forage mainly in deeper, low-relief (talus, sand) areas, commuting over shallower, high-relief (coral reefs, rock outcrops) without foraging (Littnan et al., 2007). However, as in the NWHI, shallow areas adjacent to pupping areas are important for pups to develop foraging behavior. Otherwise, coral reefs and other high-relief shallows are not usually primary monk seal foraging habitat. Generally, juvenile and adult monk seals bypass these shallow high-relief substrates in transit to their primary foraging areas over low-relief substrates in deeper water, sometimes making no attempt to hunt the same fish species in the shallows that they were actively hunting in the deep (Parrish and Littnan, 2008).
        In summary, the physical and biological habitat features that support resting, reproduction, and foraging are essential for the conservation of this species. For the Hawaiian monk seal, essential habitat includes terrestrial and marine areas. Terrestrial areas include both resting and reproductive habitat. Resting habitat consists of nearshore or emergent surfaces where monk seals can haul out, whereas reproductive habitat consists of a subset of resting habitat on sandy beaches that are also suitable for pupping and nursing. Marine areas include foraging habitat for pups, juveniles, and adults. Pup foraging habitat consists of shallow areas adjacent to pupping beaches where pups become accustomed to the marine environment and begin learning to forage on their own. Juveniles and adults forage widely, primarily in deeper areas.
        Northwestern Hawaiian Islands vs. Main Hawaiian Islands

        The Hawaiian monk seal consists of one population distributed throughout the Hawaiian Archipelago. That is, there is no evidence that monk seals occurring in any part of the archipelago are genetically distinct from those elsewhere in the archipelago (Schultz et al., 2008). This suggests that the population is genetically well-mixed, with individual seals sometimes moving between the NWHI and the MHI, which has been confirmed with resightings of flipper-tagged or otherwise identifiable (e.g., scar patterns; Littnan et al., 2007). However, monk seals in the MHI are typically in better physical condition than those in the NWHI. For example, weaned pups in the MHI are larger and fatter than those in the NWHI, which is thought to reflect better foraging conditions in the MHI (Baker and Johanos, 2004; Baker et al., 2006). Although the NWHI is one of the largest and best-protected natural areas in the world, and the MHI are populated by over a million people, the latter appears to currently provide superior monk seal foraging conditions.

        Despite its large human population, the MHI may currently provide better monk seal foraging conditions than the NWHI because: (1) There are only about one-tenth the number of seals in the MHI than in the NWHI, thus the availability of prey may be higher per seal in the MHI than the NWHI (Baker and Johanos, 2004); and (2) Large sharks, jacks and other demersal fish compete directly with monk seals, but are much less abundant in the MHI than the NWHI (Parrish et al., 2008). Competition is limited between humans and monk seals in the MHI because seals prefer small (usually < 20 cm/8 in) eels, wrasses, and other benthic species not commonly sought by fishermen, (Parrish et al., 2000). However, while foraging conditions are currently better in the MHI than the NWHI for monk seals, pollution and runoff pose health hazards to the species in the MHI not found in the NWHI (Littnan et al., 2007).
        As described above in Population Status and Trends, since 1990, the total number of Hawaiian monk seals has decreased, while simultaneously the number of monk seals in the MHI appear to have increased (NMFS, 2006, 2007b, 2008a). As described in the above paragraph, foraging conditions currently appear better in the MHI than in the NWHI (Parrish et el., 2000, 2008), likely resulting in better physical condition and higher survival of seals in the MHI than in the NWHI (Baker and Johanos; 2004; NMFS, 2007a). In addition, sea level rise may reduce or eliminate monk seal haul-out habitat more rapidly in the low-lying NWHI than the MHI (Baker et al., 2006). Given the overall downward trend of the species (see Population Status and Trends above), generally poor physical condition and survival of seals in the NWHI, and proportionally greater sea level effects on the NWHI than the MHI, the MHI appears essential for the survival and recovery of this species.
        Summary of Information Received

        In our 90-day finding (73 FR 5l7583; October 3, 2008) in response to the petition (Center for Biological Diversity et al., 2008), we solicited information from the public pertaining to the Hawaiian monk seal's essential habitat needs. The 90-day finding, and the information we received in response to it, can be viewed at www.regulations.gov by searching for docket number “NOAA-NMFS-2008-0290”. The great majority of the monk seal habitat-related information received was based on programs and studies conducted, funded, or supported by NMFS; therefore, we did not receive any new information on the monk seal's essential habitat needs. The information received is summarized below.

          Comment 1: Over 100 comments argued that the MHI provide essential habitat for the Hawaiian monk seal because: (1) the MHI component of the monk seal population has increased in recent years while simultaneously the overall population has decreased; (2) monk seals in the MHI are in better physical condition than those in the NWHI; and (3) monk seal habitat loss is likely to be much more rapid in the NWHI than in the MHI in the near future due to sea level rise.

          Response: We concur that the MHI component of the monk seal population appears to have increased in recent years while simultaneously the overall population has decreased (see “Population Size and Trends” above), that monk seals in the MHI are in better physical condition than those in the NWHI, and that monk seal haul-out habitat loss is likely to be more rapid in the NWHI than in the MHI in the future due to sea level rise (see “Northwestern Hawaiian Islands vs. Main Hawaiian Islands” above). For these three reasons, and also because of the current precarious state of the Hawaiian monk seal, we agree that monk seal habitat within the MHI is essential for the survival and recovery of the species.

          Comment 2: Several comments argued that the MHI do not provide essential habitat for the Hawaiian monk seal, because: (1) monk seals are not indigenous to the MHI; and (2) various human threats to monk seals in the MHI outweigh benefits to the species of MHI habitat.

          Response: Little evidence has been found that monk seals occurred in the MHI before the arrival of humans approximately 2,000 years ago, or during pre-European times before the late 1700s. However, before the arrival of humans, monk seal remains would typically have occurred on or near coastlines where wave action and erosion likely would have prevented preservation of remains. After the arrival of humans, monk seals may have been consumed by humans, in which case monk seal bones would likely occur in middens. However, if the seals were quickly extirpated after the arrival of humans, this would reduce the likelihood of finding bone fragment evidence in middens. An archeological dig of a midden on the Big Island identified monk seal bones, and estimated that the bones were deposited during the years 1400 to 1700 (Rosendahl, 1994). Furthermore, monk seals commonly travel long distances between atolls or islands, and even between the NWHI and MHI (Littnan et al., 2007). Thus, before the arrival of humans, it is highly unlikely that monk seals occurred only in the NWHI, while the MHI were vacant of both monk seals and humans. Finally, large, easily-hunted animals such as seals are typically extirpated or driven to extinction when humans arrive in an area for the first time (Grayson, 2001). Arrival of humans in Hawaii likely resulted in a rapid reduction in monk seal numbers in the MHI, such that the species was mostly restricted to the NWHI until recently (Baker and Johanos, 2004). For these reasons, we believe that the Hawaiian monk seal commonly occurred in the MHI before the arrival of humans, and that this species is indigenous to at least the entire Hawaiian Archipelago.

        We agree that the Hawaiian monk seal faces a multitude of human threats in the MHI. The recovery plan identifies the most serious human threats to monk seals in the MHI as infectious diseases, fisheries interactions, habitat loss, and human interactions (NMFS, 2007a). In the MHI, monk seals forage near shore, and they haul out on beaches near sources of pathogens associated with human population centers, sewage spills, and stream mouths. Of 12 dead monk seals that were thoroughly necropsied in the MHI between 1996 and 2006, four appeared to have died of infectious disease (Littnan et al., 2007). In the MHI from 1989 to 2007, 44 monk seals were confirmed to be hooked by fishing gear (one of which died, possibly from the hooking), another five entangled in lay gillnets (three of which drowned in the gillnets), and one seal hooked and entangled (but survived). Many hooks are removed from monk seals by the monk seal response program, most often resulting in healing of the wound and recovery of the monk seal. However, entanglement in lay gillnets often results in the drowning of the monk seal (NMFS, 2008b). Monk seal haul-out beaches in the MHI are being degraded or lost by development adjacent to the beaches, and increasing human activity on the beaches. The high and ever-increasing human use of MHI beaches and coastlines results in humans frequently interacting with monk seals, both unintentionally and intentionally (NMFS, 2007a). However, despite the numerous anthropogenic threats to monk seals in the MHI, the MHI component of the monk seal population appears to have increased in recent years, and monk seals in the MHI are generally in good physical condition. In contrast, the NWHI component of the monk seal population continues to decrease, and monk seals in the NWHI are often in poor physical condition (see “Population Size and Trends” and “Northwestern Hawaiian Islands vs. Main Hawaiian Islands” above). Thus, although monk seals are more often exposed to infectious diseases in the MHI than in the NWHI, the MHI appear to currently provide a favorable environment for monk seals. In addition, the loss of monk seal haul-out habitat is likely to occur more rapidly in the NWHI than the MHI due to sea level rise (see “Northwestern Hawaiian Islands vs. Main Hawaiian Islands” above). For these reasons, we believe that the benefits of MHI habitat to the monk seal outweigh the various human threats to monk seals in the MHI.

          Comment 3: Over 100 comments argued that areas out to a depth of 500 m (1,625 ft) in the NWHI provide essential foraging habitat for the Hawaiian monk seal.

          Response: As discussed above in “Habitat,” studies in the NWHI have documented adult monk seal foraging to a maximum depth of approximately 500 m (1,600 ft; Parrish et al., 2002; Stewart et al., 2006). The relative importance of these deep foraging areas, compared to more frequently-used shallower areas, is currently unknown.

          Comment 4: Several comments did not provide any information about habitat use by the Hawaiian monk seal, but rather expressed opinions about the effects of revising monk seal critical habitat on various human activities, such as beach use, fishing, economics, national security, and natural resource management.

          Response: The economic, national security, and other effects of revising monk seal critical habitat will be addressed in the forthcoming proposed rule.
        12-Month Determination on Revision of Critical Habitat

        Since critical habitat for the Hawaiian monk seal was designated in 1986 (51 FR 16047; April 30, 1986) and revised in 1988 (53 FR 18988; May 26, 1988), a great deal of new information has become available regarding habitat use by this species, such as the literature cited in the petition (Center for Biological Diversity et al., 2008) and in the Recovery Plan (NMFS, 2007a). For example, studies of monk seal foraging made possible by new technology (e.g., Parrish et al. 2000, 2002, 2005, 2008; Littnan et al., 2007) have resulted in substantial progress since 1988 in understanding how this species uses foraging habitat (Parrish and Littnan, 2008). Also, since critical habitat was designated in 1988, monk seals appear to have begun recolonizing the MHI (Baker and Johanos, 2004; Baker et al., 2006; NMFS, 2007a). Other information has also become available about other aspects of monk seal life history and habitat use (summarized in NMFS, 2007a). Because of this new information regarding habitat use by the Hawaiian monk seal that has become available since critical habitat for the species was revised in 1988 (53 FR 18988; May 26, 1988), we will proceed with a revision of critical habitat for the species.
        How Does NMFS Intend To Proceed?
        We intend to undertake rulemaking to revise critical habitat for the Hawaiian monk seal. Critical habitat is defined by section 3 of the ESA as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, 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; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species.” Further, our critical habitat regulations (50 CFR 424.12(c)) state that critical habitat will be defined by specific limits using reference points and lines on standard topographic maps of the area. Finally, section 4(b)(2) of the ESA requires that we consider economic, national security, and other impacts of designating critical habitat before designating critical habitat.
        Based on the above definition and guidance, the following steps will be followed to propose the revision of designated critical habitat for the Hawaiian monk seal: (1) Determine the geographical area occupied by the species at the time of listing; (2) Identify the physical or biological features essential to the conservation of the species; (3) Delineate areas within the geographical area occupied by the species that contain these features, and that may require special management considerations or protections; (4) Delineate any areas outside of the geographical area occupied by the species that are essential for the conservation of the species; and (5) Conduct economic, national security, and other analyses to determine if any areas identified in steps 3 and 4 could be excluded from critical habitat consideration under section 4(b)(2) of the ESA. Steps 1 and 2 above are included in this 12-month finding, as described below. Steps 3 - 5 will be completed in the forthcoming proposed rule.

          Step 1: Determine Geographical Area Occupied by the Species at the Time of Listing: The final rule listing the Hawaiian monk seal as endangered, published on November 23, 1976 (41 FR 51611), stated that the “Hawaiian monk seal is found throughout the Hawaiian Archipelago,” with no mention of areas outside the archipelago. For reasons described above in “Range,” in 2001, we determined that Johnston Atoll is within the range of the Hawaiian monk seal (NMFS, 2001). Therefore, the geographical area occupied by the Hawaiian monk seal at the time of listing (1976) is considered to be the Hawaiian Archipelago and Johnston Atoll.
        Step 2: Identify Physical or Biological Features Essential to Conservation: In this step, the physical and biological features essential to conservation are identified (hereafter referred to as “essential features”). Section 3 of the ESA (16 U.S.C. 1532(3)) defines the terms “conserve,” “conserving,” and “conservation” to mean: “to use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” Our critical habitat regulations (50 CFR 424.12(b)) state that essential features “include, but are not limited to the following: (1) Space for individual and population growth, and for normal behavior; (2) Food, water, air, light, minerals or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally; (5) Habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.”
        The regulations also instruct us to “focus on the principal biological or physical constituent elements within the defined area that are essential to the conservation of the species. Known primary constituent elements shall be listed with the critical habitat description” (50 CFR 424.12(b)). Thus, the essential features will be defined here in terms of primary constituent elements (PCEs). The PCEs can include sites used by the listed species for resting, reproduction, and feeding (examples given in the regulations include “nesting grounds, spawning sites, feeding sites”), and physical features of the species' habitat (examples given in the regulations include “geological formation, vegetation type, tide, and specific soil types”; 50 CFR 424.12(b)).
        As described above in “Habitat,” the physical and biological habitat features that support resting, molting, reproduction, and foraging are essential for the conservation of this species. For the Hawaiian monk seal, essential habitat includes terrestrial and marine areas. Terrestrial areas include resting, molting, and reproductive habitat. Resting and molting habitat consists of nearshore or emergent surfaces where monk seals can haul out, whereas reproductive habitat consists of a subset of resting and molting habitat (i.e., sandy beaches suitable for pupping and nursing). Marine areas include foraging habitat for pups, juveniles, and adults. Pup foraging habitat consists of shallow areas adjacent to pupping beaches where pups become accustomed to the marine environment and begin learning to forage on their own. Juveniles and adults forage widely, primarily in deeper areas. Thus, at this time, we believe that the following PCEs constitute the physical and biological features essential to conservation of the Hawaiian monk seal: (1) sandy beaches preferred by monk seals for pupping and nursing; (2) marine areas less than 20 m depth adjacent to pupping and nursing beaches where young pups learn to forage; (3) marine areas approximately 20 - 200 m depth in the MHI, and approximately 20-500 m depth in the NWHI, preferred by juvenile and adult monk seals for foraging; (4) low levels of unnatural disturbance; and (5) high prey quantity and quality.

          Steps 3 - 5: Steps 3 - 5 of the critical habitat proposed revision process will be completed in the forthcoming proposed rule. In the proposed rule, the PCEs could differ slightly from the PCEs identified above, but these identified PCEs will give the public an idea of what we are considering. When we publish our proposed rule, we will solicit public comments on it and incorporate comments as appropriate.
        References Cited

        Amerson, A.B., Jr., and P.C. Shelton. 1976. The natural history of Johnston Atoll, Central Pacific Ocean: Hawaiian Monk Seal. Atoll Research Bulletin 192: 384.

        Antonelis, G.A., J.D. Baker, T.C. Johanos, R.C. Braun, and A.L. Harting. 2006. Hawaiian monk seal ((Monachus schauinslandi): Status and conservation issues. Atoll Research Bulletin 543:75-101.
        Bailey, A.M. 1952. The Hawaiian monk seal. Denver Museum of Natural History, Museum Pictorial 7:1-32.
        Baker, J.D., and T.C. Johanos. 2004. Abundance of the Hawaiian monk seal in the main Hawaiian Islands. Biological Conservation 116: 103-110.
        Baker, J.D., C.L. Littnan, and D.W. Johnston. 2006. Potential effects of sea level rise on the terrestrial habitats of endangered and endemic megafauna in the Northwestern Hawaiian Islands. Endangered Species Research 2:21-30.

        Center for Biological Diversity, Kahea, and Ocean Conservancy. 2008. Petition to revise critical habitat for the Hawaiian monk seal (Monachus schauinslandi) under the Endangered Species Act. 41 pp. Available at: http://www.fpir.noaa.gov/Library/PRD/Critical%20Habitat/Petition-Monk-Seal-CH-07-02-08.pdf

        Goodman-Lowe, G.D. 1998. Diet of the Hawaiian monk seal (Monachus schauinslandi) from the Northwestern Hawaiian Islands during 1991-1994. Marine Biology 132:535-546.
        Grayson, D.K. 2001. The archaeological record of human impacts on animal populations. Journal of World Prehistory 15:1-68.
        Henderson, J.R. and Johanos T.C. 1988. Effects of tagging on weaned Hawaiian monk seal pups. Wildlife Society Bulletin 16:312-317.

        Hiruki, L.M., W.G. Gilmartin, B.L. Becker, and I. Stirling. 1993. Wounding in Hawaiian monk seals (Monachus schauinslandi). Canadian Journal of Zoology 71:458-468.
        Iverson, S., J. Piche, and W. Blanchard. 2006. Hawaiian monk seals and their prey in the Northwestern Hawaiian Islands: Assessing characteristics of prey species fatty acid signatures and consequences for estimating monk seal diets using quantitative fatty acid signature analysis (QFASA). Unpublished report. Pacific Islands Fisheries Science Center, Honolulu, HI. 134 p.

        Johanos, T.C., B.L. Becker, and T.J. Ragen. 1994. Annual reproductive cycle of the female Hawaiian monk seal (Monachus schauinslandi). Marine Mammal Science 10:13-30.
        Kenyon, K.W. and D.W. Rice. 1959. Life history of the Hawaiian monk seal. Pacific Science 13:215-252.
        Littnan, C.L., B.S. Stewart, P.K. Yochem, and R. Braun. 2007. Survey of selected pathogens and evaluation of disease risk factors for endangered Hawaiian monk seals in the main Hawaiian Islands. EcoHealth 3:232-244.

        National Marine Fisheries Service (NMFS). 1983. Recovery Plan for the Hawaiian Monk Seal (Monachus schauinslandi). NMFS, Silver Spring, MD.
        National Marine Fisheries Service (NMFS). 2001. May 31, 2001, letter from Rebecca Lent, Regional Administrator, Southwest Region, and attachment “Johnston Atoll and Range of the Hawaiian Monk Seal”, 8 p.

        National Marine Fisheries Service (NMFS). 2006. 2006 Stock Assessment Report for the Hawaiian Monk Seal (Monachus schauinslandi). Revised 12/15/2006. NMFS, Silver Spring, MD. Available at: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2006sehm-hi.pdf

        National Marine Fisheries Service (NMFS). 2007a. Recovery Plan for the Hawaiian Monk Seal (Monachus schauinslandi). Revision. NMFS, Silver Spring, MD. 165 pp. Available at: http://www.nmfs.noaa.gov/pr/pdfs/recovery/hawaiianmonkseal.pdf

        National Marine Fisheries Service (NMFS). 2007b. 2007 Stock Assessment Report for the Hawaiian Monk Seal (Monachus schauinslandi). Revised 10/30/2007. NMFS, Silver Spring, MD. Available at: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2007sehm-hi.pdf

        National Marine Fisheries Service (NMFS). 2008a. 2008 Stock Assessment Report for the Hawaiian Monk Seal (Monachus schauinslandi). Revised 12/15/2008. NMFS, Silver Spring, MD.
        National Marine Fisheries Service (NMFS). 2008b. March 18, 2008, biological opinion on effects of Implementation of Bottomfish Fishing Regulations within Federal Waters of the Main Hawaiian Islands on ESA-listed marine species. Pacific Islands Regional Office, 35 p.
        Parrish, F.A., M.P. Craig, T.J. Ragen, G.J. Marshall, and B.M. Buhleier. 2000. Identifying diurnal foraging habitat of endangered Hawaiian monk seals using a seal-mounted video camera. Marine Mammal Science 16:392-412.

        Parrish, F.A., K. Abernathy, G.J. Marshall, and B.M. Buhleier. 2002. Hawaiian monk seals (Monachus schauinslandi) foraging in deepwater coral beds. Marine Mammal Science 18:244 258.
        Parrish, F.A., G.J. Marshall, C.L. Littnan, M. Heithaus, S. Canja, B.L. Becker, R.C. Braun, and G.A. Antonelis. 2005. Foraging of juvenile monk seals at French Frigate Shoals, Hawaii. Marine Mammal Science. 21:93-107.
        Parrish, F.A., G.J. Marshall, B. Buhleier, and G.A. Antonelis. 2008. Foraging interaction between monk seals and large predatory fish in the Northwestern Hawaiian Islands. Endangered Species Research 4:299-3078.
        Parrish, F.A. and C.L. Littnan. 2008. Changing perspectives in Hawaiian monk seal research using animal-borne imaging. Marine Technology Society Journal 41:30-34.
        Parrish, F.A. 2009. Do monk seals exert top-down pressure in subphotic ecosystems? Marine Mammal Science 25:91-106.
        Rosendahl, P.H. 1994. Aboriginal Hawaiian structural remains and settlement patterns in the upland archeological zone at Lapakahi, Island of Hawaii. Journal of Hawaiian Archeology (3): 14 - 70.

        Schreiber, R.W. and E. Kridler. 1969. Occurrence of an Hawaiian monk seal (Monachus schauinslandi) at Johnston Atoll, Pacific Ocean. Journal of Mammalogy 50:841-842.
        Schultz, J.K., J.D. Baker, R.J. Toonen, and B.W. Bowen. 2008. Extremely low genetic diversity in the endangered Hawaiian monk seal (Monachus schauinslandi). Journal of Heredity doi:10.1093/jhered/esn077.
        Stewart, B.S., G.A. Antonelis, J.D. Baker, and P.K.Yochem. 2006. Foraging biogeography of Hawaiian monk seals in the Northwestern Hawaiian Islands. Atoll Research Bulletin 543:131-146.
        Westlake, R.L. and W.G. Gilmartin. 1990. Hawaiian monk seal pupping locations in the Northwestern Hawaiian Islands. Pacific Science 44:366-383.
        All references are available upon request (see FOR FURTHER INFORMATION CONTACT).

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

          Dated: June 8, 2009.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. E9-13880 Filed 6-11-09; 8:45 am]
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