        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R07-OAR-2021-0298; FRL-10023-53-Region 7]
        Air Plan Approval; Nebraska; Revisions to Title 129 of the Nebraska Administrative Code; General Conformity

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The Environmental Protection Agency (EPA) is proposing to approve revisions to the State Implementation Plan (SIP) submitted by the State of Nebraska on July 16, 2020. This proposed action will amend the SIP to revise title 129 of the Nebraska Administrative Code by removing a portion of the SIP that addresses general conformity. General Conformity ensures that the actions taken by federal agencies do not interfere with a state's plan to attain and maintain national standards for air quality. Since states are no longer required to include general conformity requirements in SIPs, these proposed revisions remove unnecessary language and do not substantively change any existing statutory or regulatory requirement. The proposed revisions do not impact the stringency of the SIP or air quality nor do they impact the State's ability to attain or maintain the National Ambient Air Quality Standards. The EPA's proposed approval of this rule revision is in accordance with the requirements of the Clean Air Act (CAA).

          DATES:
          Comments must be received on or before June 16, 2021.

          ADDRESSES:

          You may send comments, identified by Docket ID No. EPA-R07-OAR-2021-0298 to https://www.regulations.gov. Follow the online instructions for submitting comments.

            Instructions: All submissions received must include the Docket ID No. for this rulemaking. Comments received will be posted without change to https://www.regulations.gov/, including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “Written Comments” heading of the SUPPLEMENTARY INFORMATION section of this document.

          FOR FURTHER INFORMATION CONTACT:

          Allie Donohue, Environmental Protection Agency, Region 7 Office, Air Quality Planning Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913) 551-7986; email address: donohue.allie@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Throughout this document “we,” “us,” and “our” refer to the EPA.
        Table of Contents

          I. Written Comments
          II. What is being addressed in this document?
          III. Have the requirements for approval of a SIP revision been met?
          IV. What action is the EPA taking?
          V. Incorporation by Reference
          VI. Statutory and Executive Order Reviews

        I. Written Comments

        Submit your comments, identified by Docket ID No. EPA-R07-OAR-2021-0298, at https://www.regulations.gov. 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.

        II. What is being addressed in this document?
        The EPA is proposing to amend Nebraska's SIP to include revisions to title 129 of the Nebraska Administrative Code. The EPA is proposing to approve revisions to the Nebraska SIP submitted by the State of Nebraska on July 16, 2020. Specifically, the EPA is proposing to amend the Nebraska SIP by removing a portion of the SIP as follows: Title 129, Chapter 40. General Conformity. EPA is proposing approval of these revisions as they remove unnecessary language and do not substantively change any existing statutory or regulatory requirement.
        The EPA approved this rule into the Nebraska SIP in 1972. In August 2005, Congress passed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) which eliminated the requirement for states to adopt and submit General Conformity SIPs. Section 6011 of SAFETEA-LU revised the conformity requirements in section 176(c)of the CAA. Specifically, section 6011(f) revised section 176(c)(4)(A) of the CAA by deleting the requirement for the states to adopt and submit General Conformity SIPs.
        In 2010, EPA revised the General Conformity regulations to make the adoption and submittal of the General Conformity SIP optional for state and eligible federally-recognized tribal governments. See 75 FR 17253 (April 5, 2010). Since there is no longer a requirement for SIPs to include general conformity requirements, EPA finds that the proposed revisions will not impact the stringency of the SIP or air quality.
        States are no longer required to have their own general conformity rules. If a state does not have a conformity SIP, then federal agencies will conduct an evaluation under the requirements of 40 CFR 93.150-93.165. The SIP revision being proposed for approval by this action removes unnecessary language from the SIP and does not have an adverse effect on air quality in Nebraska.
        III. Have the requirements for approval of a SIP revision been met?

        The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice of this SIP revision from September 28, 2019 to November 6, 2019 and held a public hearing on November 7, 2019. In a letter to the state dated November 7, 2019, the EPA stated that the agency “has no comment on the proposed repeal of this regulation.” The SIP revision meets the substantive requirements of the CAA, including section 110 and implementing regulations.
        IV. What action is the EPA taking?
        The EPA is proposing to amend the Nebraska SIP by approving the state's request to remove Title 129 section 40. General Conformity. The removal of this portion of the SIP will remove unnecessary language and does not substantively change any existing statutory or regulatory requirement. The EPA has determined that these changes will not impact the stringency of the SIP or adversely impact air quality.
        The EPA is processing this as a proposed action because we are soliciting comments on this proposed action. Final rulemaking will occur after consideration of any comments.
        V. Incorporation by Reference
        In this document, the EPA is proposing to amend regulatory text that includes incorporation by reference. As described in the proposed amendments to 40 CFR part 52 set forth below, the EPA is proposing to remove provisions of the EPA-Approved Nebraska Regulations from the Nebraska State Implementation Plan, which is incorporated by reference in accordance with the requirements of 1 CFR part 51.
        VI. Statutory and Executive Order Reviews
        Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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 CAA. Accordingly, this 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 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 the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and
        • Does not provide 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 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the 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).

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations.

          Dated: May 7, 2021.
          Edward H. Chu,
          Acting Regional Administrator, Region 7.

        For the reasons stated in the preamble, the EPA proposes to amend 40 CFR part 52 as set forth below:

          PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

        1. The authority citation for part 52 continues to read as follows:

          Authority:
          42 U.S.C. 7401 et seq.

          Subpart CC—Nebraska

        2. In § 52.1420, the table in paragraph (c) is amended by removing the entry “129-40” under the heading “Title 129—Nebraska Air Quality Regulations”.

      [FR Doc. 2021-10123 Filed 5-14-21; 8:45 am]
      BILLING CODE 6560-50-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [DA 08-2324; MB Docket No. 08-176; RM-11483]
        Television Broadcasting Services; Atlantic City, NJ

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule; dismissal.

          SUMMARY:
          The Commission, at the request of petitioner ZGS Philadelphia, Inc. (“ZGS”), licensee of WWSI-DT, dismisses ZGS's pending Petition for Rulemaking to substitute DTV channel 10 for post-transition DTV channel 49 at Atlantic City, New Jersey.

          ADDRESSES:
          Federal Communications Commission, Office of the Secretary, 445 12th Street, SW., Washington, DC 20554.

          FOR FURTHER INFORMATION CONTACT:
          Joyce Bernstein, Media Bureau, (202) 418-1600.

        SUPPLEMENTARY INFORMATION:
        This is a synopsis of the Commission's Order, MB Docket No. 08-176, adopted October 20, 2008, and released October 21, 2008. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC 20554. This document will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-478-3160 or via e-mail http://www.BCPIWEB.com. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

        This document is not subject to the Congressional Review Act. (The Commission, is, therefore, not required to submit a copy of this Order to the Government Accountability Office, pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), since this proposed rule is dismissed, herein.)

          Federal Communications Commission.
          Clay C. Pendarvis,
          Associate Chief, Video Division, Media Bureau.

       [FR Doc. E8-26744 Filed 11-7-08; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AU58
        Endangered and Threatened Wildlife and Plants; Reinstated Proposed Rule to List the Flat-Tailed Horned Lizard as Threatened

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period for the reinstated proposed rule to list the flat-tailed horned lizard (Phrynosoma mcallii) as a threatened species pursuant to the Endangered Species Act of 1973, as amended (Act). On November 17, 2005, the U.S. District Court for the District of Arizona vacated the January 3, 2003, withdrawal of the proposed rule to list the flat-tailed horned lizard, remanded the matter to us for further consideration in accordance with its August 30, 2005, and November 17, 2005, orders, and ordered us to make a new listing decision.

          Pursuant to the Court's November 17, 2005, order, on remand we “need only address the matters on which the court's August 30, 2005, Order * * * found the January 3, 2003, Withdrawal unlawful, which may summarily be identified as whether the lizard's lost historical habitat renders the species in danger of extinction in a significant portion of its range.” To ensure our new final listing decision is based on the best scientific and commercial data currently available, we are reopening the public comment period on the 1993 proposed listing rule to solicit information and comment regarding the flat-tailed horned lizard's lost historical habitat.

          DATES:
          We will accept comments from all interested parties until May 8, 2006. Comments received after the closing date may not be considered in the final decision on this action.

          ADDRESSES:
          If you wish to comment on the specific issue identified by the District Court in its November 17, 2005, order for remand of the January 3, 2003, withdrawal of the proposed rule to list the flat-tailed horned lizard, you may submit your comments and materials by any one of several methods:
          1. You may submit written comments and information to Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (CFWO), 6010 Hidden Valley Road, Carlsbad, CA 92011.
          2. You may hand-deliver written comments to the CFWO, at the address given above.
          3. You may send comments by electronic mail (e-mail) to fw8CFWOcomments@fws.gov. Please see Public Comments Solicited section below for more information on submitting a comment by e-mail.
          4. You may fax your comments to 760/431-9624.
          Comments and materials received will be available for public inspection, by appointment, during normal business hours at the CFWO at the above address.

          FOR FURTHER INFORMATION CONTACT:
          Jim Bartel, Field Supervisor, at the CFWO (see ADDRESSES section), by telephone at 760/431-9440, or by facsimile at 760/431-9624.

        SUPPLEMENTARY INFORMATION:
        Public Comments Solicited
        To assist us in making a final listing determination based on the best scientific and commercial data available, we are reopening the public comment period on the proposed rule (58 FR 62624; November 29, 1993) to list the flat-tailed horned lizard to accept public comment on the specific issue identified in the District Court's November 17, 2005, order, namely whether the flat-tailed horned lizard's lost historical habitat renders the species likely to become in danger of extinction within the foreseeable future throughout all or a significant portion of its range.
        Comments relevant to the identified issue for consideration during the remand of the January 3, 2003, withdrawal of the proposed rule to list the flat-tailed horned lizard that were previously submitted during prior comment periods on the proposed rule need not be resubmitted as they have been incorporated into the public record and will be fully considered in preparation of the final determination.
        Please submit Internet comments in ASCII format and avoid the use of special characters or any form of encryption. Please also include “ATTN: Flat-Tailed Horned Lizard” in your e-mail subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly by calling our CFWO at phone number 760/431-9440. Please note that this Internet address will be closed at the termination of the public comment period.
        Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment, but you should be aware that the Service may be required to disclose your name and address pursuant to the Freedom of Information Act. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
        Previous Federal Actions

        On November 29, 1993, we published a proposed rule to list the flat-tailed horned lizard as a threatened species pursuant to the Act (58 FR 62624). On July 15, 1997, we withdrew the 1993 proposed rule (62 FR 37852). Defenders of Wildlife and other groups challenged the 1997 withdrawal decision. On June 16, 1999, the District Court for the Southern District of California granted summary judgment in our favor upholding our decision not to list the flat-tailed horned lizard. However, on July 31, 2001, the Ninth Circuit Court of Appeals reversed the lower court's ruling and directed the District Court to remand the matter back to us for further consideration in accordance with the legal standards outlined in its opinion (Defenders of Wildlife v. Norton, 258 F.3d 1136). On October 24, 2001, the District Court for the Southern District of California remanded the 1997 withdrawal. Consistent with the District Court's remand order, we published a reinstatement of the 1993 proposed listing of the flat-tailed horned lizard as threatened and opened a 120-day comment period (66 FR 66384; December 26, 2001). The District Court further ordered us to commence a 12-month schedule for a final listing decision in compliance with the Ninth Circuit Court's order. As a result, we published a withdrawal of the proposed rule to list the flat-tailed horned lizard on January 3, 2003 (68 FR 331). The Tucson Herpetological Society, and other environmental organizations and individuals, challenged this withdrawal decision in the United States District Court for the District of Arizona.

        On August 30, 2005, the District Court for the District of Arizona issued an order granting plaintiffs' motion for summary judgment “on the ground that the Secretary's withdrawal of the proposed rule violated the Endangered Species Act and the Ninth Circuit's remand order by failing to evaluate the lizard's lost habitat and whether that habitat was a significant portion of the range.” The Service's failure to make this specific determination was the only violation cited by the District Court. The court upheld all other aspects of the January 3, 2003, withdrawal decision. On November 17, 2005, the District Court issued a subsequent order, consistent with its August 30, 2005, order, vacating the 2003 withdrawal and remanding the matter to us for further consideration. The District Court reinstated the 1993 proposed rule to list the flat-tailed horned lizard as a threatened species for the duration of the remand, and ordered us to make a new listing decision by April 30, 2006, stating that, “on remand the agency need only address the matters on which the court's August 30, 2005, Order * * * found the January 3, 2003, Withdrawal unlawful, which may summarily be identified as whether the lizard's lost historical habitat renders the species in danger of extinction in a significant portion of its range.” The order indicates that, while the Court believes this determination is required by the Ninth Circuit's opinion, “the Secretary has wide discretion in delineating a significant portion of the lizard's range,” including in defining the “range” of the species (which the Court states must include some lost habitat) and in choosing the point in time at which to examine the range. On December 7, 2005, we published a document (70 FR 72776) reinstating the November 29, 1993, proposed rule to list the flat-tailed horned lizard as a threatened species. On March 2, 2006, we published a document announcing the reopening of a 14-day public comment period on the proposed rule to list the flat-tailed horned lizard under the Act (71 FR 10631). To ensure the public is provided with an adequate opportunity to comment on the matters identified by the Court, the parties filed a Joint Stipulation with the Court on March 28, 2006, to allow for an additional public comment period. On March 29, 2006, the Court granted our request for an extension of the April 30, 2006, deadline, and ordered us to submit the new final listing determination for the flat-tailed horned lizard to the Federal Register on or before the date six weeks after the close of this additional public comment period. For the reasons outlined in this document, we are now reopening the comment period on the proposed rule for an additional 16 days.
        For your convenience, here is a list of the primary Federal Register documents pertaining to the proposed listing of the flat-tailed horned lizard as threatened:

            Action
            Date
            FR citation

            Proposed rule to list the flat-tailed horned lizard as threatened
            November 29, 1993
            58 FR 62624.

            Withdrawal of proposed rule
            July 15, 1997
            62 FR 37852.

            Reinstatement of proposed rule; reopening of comment period
            December 26, 2001
            66 FR 66384.

            Withdrawal of proposed rule
            January 3, 2003
            68 FR 331.

            Reinstatement of proposed rule
            December 7, 2005
            70 FR 72776.

            Reopening of comment period
            March 2, 2006
            71 FR 10631.

        Background
        The flat-tailed horned lizard (Phrynosoma mcallii) is a small, cryptically colored, phrynosomatid lizard that reaches a maximum adult body length (excluding the tail) of approximately 87 millimeters (3.4 inches). The lizard has a flattened body, short tail, and dagger-like head spines like other horned lizards. It is distinguished from other horned lizards in its range by a dark vertebral stripe, two slender elongated occipital spines, and the absence of external ear openings. The dorsal surface of the flat-tailed horned lizard is pale gray to light rusty brown. The ventral side is white and unmarked, with the exception of a prominent umbilical scar.
        The flat-tailed horned lizard is endemic (restricted) to the Sonoran Desert in southern California, Arizona, and northwestern Mexico. The species is documented in the Coachella Valley in Riverside County, California; the Imperial and Borrego Valleys in Imperial and eastern San Diego Counties, California; south of the Gila River and west of the Gila and Butler Mountains in Yuma County, Arizona; east of the Sierra de Juarez in the Laguna Salada and Yuha Basins in northeastern Baja California Norte, Mexico; and north and west of Bahia de San Jorge to the delta of the Colorado River in northwestern Sonora, Mexico (Grismer 2002; Rodriguez 2002). The flat-tailed horned lizard occurs at elevations up to 800 meters (2,600 feet) above sea level, but most populations are below 300 meters (980 feet) elevation. Various descriptions and estimates of the historical and current ranges of the flat-tailed horned lizard are described in the November 29, 2003, proposed rule (58 FR 62624); July 15, 1997, withdrawal of the 1993 proposed rule (62 FR 37822); and January 3, 2003, withdrawal of the 1993 proposed rule (68 FR 331).

        In 2003, the Flat-tailed Horned Lizard Interagency Coordinating Committee released a revised version of the 1997 Flat-tailed Horned Lizard Rangewide Management Strategy (Flat-tailed Horned Lizard Interagency Coordinating Committee 2003). The 2003 Rangewide Management Strategy includes a map of the approximate historical and current range boundaries of the flat-tailed horned lizard. Using the geographic information system shape files used to develop the range map, we calculated the area of the historical and current ranges of the flat-tailed horned lizard in the United States and Mexico. Based on this information, we estimated the historical range (United States and Mexico) to be approximately 6,183,647 acres (2,502,433 hectares), which with the exclusion of the historic Lake Cahuilla would be reduced to approximately 4,874,238 ac (1,972,534 ha), and the current range (United States and Mexico) to be approximately 3,962,543 acres (1,603,884 hectares). A copy of this report can be viewed on the Carlsbad Fish and Wildlife Office's Web site at http://www.fws.gov/carlsbad/.

        For additional background information and previous Federal actions related to the listing determinations for the flat-tailed horned lizard, please refer to the January 3, 2003, Federal Register notice (68 FR 331).
        Author

        The primary author of this notice is the Carlsbad Fish and Wildlife Office (see ADDRESSES section).

          Authority:

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

          Dated: April 7, 2006.
          Marshall Jones, Jr.,
          Deputy Director, U.S. Fish and Wildlife Service.

       [FR Doc. E6-5895 Filed 4-20-06; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 226
        [Docket No. 021108270-2270-01; I.D. 102802C]
        RIN 0648-AQ53
        Endangered and Threatened Species; Finding for a Petition To Revise Critical Habitat for Northern Right Whales

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

          ACTION:
          Notice of 90-day finding.

          SUMMARY:

          NMFS announces the receipt of a petition to revise critical habitat for the endangered western North Atlantic right whales, Eubalaena glacialis, (right whales).  NMFS finds that the petition presents substantial scientific information indicating that this action may be warranted and is soliciting public comment and information on the petition.  NMFS will determine how to proceed with the petitioned action within 12 months after receiving the petition.

          DATES:
          Comments on this action must be postmarked or transmitted by facsimile by January 21, 2003.  Comments transmitted via e-mail or the Internet will not be accepted.

          ADDRESSES:
          Comments concerning this action may be submitted to Mary Colligan, Assistant Regional Administrator for Protected Resources, Protected Resources Division, NMFS, One Blackburn Drive, Gloucester, MA 01930.

          FOR FURTHER INFORMATION CONTACT:

          Mary Colligan, Northeast Region, telephone 978-281-9116, fax 978-281-9394; Kathy Wang, Southeast Region, telephone 727-570-5312, fax 727-570-5517; or Patricia Lawson, telephone 301-713-2322, fax 301-713-0376.

        SUPPLEMENTARY INFORMATION:
        Background
        On July 11, 2002, NMFS received a petition dated July 9, 2002, from The Ocean Conservancy requesting that NMFS revise and expand the current critical habitat designation for right whales.  The petitioner requested that NMFS expand the existing Southeast critical habitat designation to the following coordinates:  31° 30′ N to 29 40′ N from the shoreline out to 30 nautical miles (55.6 km2); 29° 4′' N to 28 °00′ N from the shoreline out to 10 nautical miles (18.5 km2).  The petitioned area would add approximately 2,700 nm2 (5,003.6 km2) to the current critical habitat coverage.  The petitioner also requested that NMFS expand and combine both the existing Northeast critical habitat designations  (Cape Cod Bay and Great South Channel) into one critical habitat area bounded by the following coordinates:  41° 41.2′N/69° 58.2′ W; 41° 00.0′ N/69° 05.0′ W; 41° 00.0′ N/68° 13.0′ W; 42° 12.0′ N/68° 13.0′ W; 42° 12.0′ N/70° 30.0′ W; 41° 46.8′ N/70° 30.0′ W; and on the southwest corner by the shoreline of Cape Cod, MA.

        Section 4(b)(3)(D) of the Endangered Species Act (ESA), as amended (16 U.S.C. 1533(b)(3)(D)), requires that NMFS make a finding on whether a petition to revise a designation of critical habitat presents substantial scientific information to demonstrate that the petitioned action may be warranted.  NMFS' ESA implementing regulations at 50 CFR 424.14 define “substantial information” as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.  In making this finding, NMFS must consider the information that is presented by the petitioner and any new unassessed information on habitat that was added to NMFS' file regarding the species after critical habitat was designated but before NMFS received the petition to revise it.  To the maximum extent practicable, this finding is to be made within 90 days of the petition, and the finding is to be published promptly in the Federal Register.  Within 12 months after receiving a petition that NMFS has found to present substantial information indicating that the revision may be warranted, NMFS must determine how it intends to proceed with the requested revision and promptly publish notice of such intention in the Federal Register.
        Critical habitat is defined in section 3(5)(A) of the ESA as (i) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection and; (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.  Conservation is defined in section 3 of the ESA as “... 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 [the ESA] are no longer necessary.”
        In determining what areas are critical habitat, NMFS must consider the physical and biological features that are essential to the conservation of the species and that may require special management considerations.  Physical and biological features essential to the conservation of the species include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distribution of a species.
        Special management considerations or protections mean any methods or procedures useful in protecting the physical and biological features of the environment for the conservation of the listed species (50 CFR 424.02(j)).
        Section 4(b)(2) of the ESA requires NMFS to take into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat.  NMFS may exclude areas from critical habitat designation when the benefits of exclusion outweigh the benefits of including the areas within critical habitat, provided the exclusion will not result in extinction of the species.

        The right whale was listed as endangered under the Endangered Species Conservation Act, the precursor to the ESA, on June 2, 1970 (35 FR 8495; codified at 50 CFR 17.11).  NMFS was petitioned by the Right Whale Recovery Team to designate critical habitat for right whales on May 18, 1990.  A document was published in the Federal Register on July 12, 1990 (55 FR 28670), requesting information and comments on the petition.  The proposed rule was published on May 19, 1993 (58 FR 29186), and the final rule was published on June 3, 1994, (59 FR 28793; codified at 50 CFR 226.203).  The designation identified habitat with features essential to the conservation of the species, such as foraging, calving, and nursing.  Specifically, this designation includes portions of Cape Cod Bay and Stellwagen Bank, the Great South Channel (each off the coast of Massachusetts), and waters adjacent to the coasts of Georgia and the east coast of Florida.
        In general, the petitioner stated that since the 1994 designation of right whale critical habitat, knowledge regarding distribution and mortality of the North Atlantic right whale has increased substantially, indicating that critical habitat boundaries need to be revised and expanded to provide proper protection for right whales.
        Specifically, the petitioner stated that 10 years of new data regarding right whale distribution and causes of mortality along the east coast of the United States show that the current critical habitat designation is not sufficient to protect right whales from further anthropogenic mortality.  The petitioner stated that the proposed critical habitat expansion contains several features essential to the conservation of the right whale in the western North Atlantic and proposed that these features require specific protection or management considerations to ensure the survival and recovery of the species.  The petitioner stated that the areas proposed for expanded critical habitat experience high levels of human disturbance in the form of shipping activities, fisheries, military activities, dredging operations, increased pollution, and general habitat disturbance.  The essential features associated with the proposed critical habitat cited by the petitioner include the following:  space for individual and population growth and for normal behavior; food, water, air, light, minerals or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of species.

        The petitioner acknowledged that some areas in the northeastern U.S. have already received special management attention in the form of fishing regulations, but maintains that essential right whale habitat along the eastern seaboard lacks protection from ship strikes.  In addition, the petitioner noted that when several habitats, each satisfying the requirements for designation as critical habitat, are located in proximity to one another, an inclusive area may be designated as critical habitat.  The petitioner stated that the continued high mortality of North Atlantic right whales from ship strikes indicates the immediate need for management actions to reduce ship strikes and maintains that accurately designated critical habitat boundaries will facilitate the management process.  In addition, the petitioner stated that since the time critical habitat was originally designated in the southeastern U.S., extensive and expansive survey efforts have shown that right whales occur further offshore than originally known.  The petitioner contended that the importance of this area as the only known calving ground for right whales warrants the revision of critical habitat to protect the animals within this region.
        Petition Finding

        NMFS has reviewed the petition and other available information.  On the basis of that information, NMFS finds that the petition presents substantial scientific information indicating that the requested action may be warranted.  Within 1 year of the receipt of the petition, NMFS will determine how it intends to proceed with the requested revision and promptly publish notice of such intention in the Federal Register.

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

          Dated:   November 13, 2002.
          Rebecca Lent,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 02-29360 Filed 11-18-02; 8:45 am]
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