        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [Docket No.  011011249-1249-01; I.D. 092701A]
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Petition for Emergency Rulemaking for Red Snapper

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

          ACTION:
          Notice of agency decision; denial of a petition for emergency rulemaking.

          SUMMARY:
          NMFS announces the denial of a petition for emergency rulemaking for the red snapper fishery in the Gulf of Mexico that was filed with the U.S. Department of Commerce by the Texas Shrimp Association (TSA).  TSA's petition requested emergency rulemaking to reduce the 2001 total allowable catch (TAC) in the fishery and to shorten the associated recreational fishing season.

          FOR FURTHER INFORMATION CONTACT:
          Phil Steele, telephone 727-570-5305, fax 727-570-5583, e-mail Phil.Steele@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        TSA petitioned the U.S. Department of Commerce to promulgate an emergency rule to reduce the 2001 TAC in the directed fisheries for red snapper in the Gulf of Mexico from 9.12 million lb (MP)(4.14 million kg) to not more than 3 million lb (1.36 million kg) and to shorten the recreational fishing season as part of the TAC reduction.  The petition alleged that overfishing has been occurring in the fishery and will occur again in 2001 without the requested emergency rulemaking.  On April 19, 2001, NMFS published a notice of receipt of the TSA petition and requested public comments on the petition (66 FR 20129).  After thorough consideration of the petition and of all public comments received, NMFS has denied TSA's petition for emergency rulemaking.
        Basis for Denial of the Petition
        The TSA petition states that the following are causes of previous and continuing overfishing (NMFS responses are provided as appropriate):
        (1)  TSA asserts that the current definition of “optimum yield” (OY) in the Fishery Management Plan (FMP) for the Reef Fish Resources of the Gulf of Mexico (Reef Fish FMP) does not conform to the more rigorous definition of OY required by the Sustainable Fisheries Act (SFA) of 1996, which amended the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

          Response: The current definition of OY in the Reef Fish FMP is “any harvest level which maintains, or is expected to maintain, over time a survival rate or biomass into the stock of spawning age to achieve at least 20 percent spawning potential ratio (SPR).”  Additionally, the Reef Fish FMP currently requires that overfished red snapper stocks be restored to a level of 20 percent SPR by 2019.  However, the Magnuson-Stevens Act and NMFS’ National Standard Guidelines (NSG) (63 FR 24212; May 1, 1998) require that the Councils and NMFS develop new definitions of “overfishing” and “overfished” for managed stocks based on the ability of a stock to produce maximum sustainable yield (MSY) on a continuing basis.  While NMFS has approved proposed definitions of overfishing that are based on static SPR as a proxy for fishing mortality rate, definitions of overfished and stock rebuilding targets must be biomass-based, as required by the Magnuson-Stevens Act and the NSG.  For overfished stocks, the Magnuson-Stevens Act and the NSG  require that a recovery plan must be developed to restore overfished stocks to the biomass level capable of producing MSY on a continuing basis (BMSY).

        NMFS agrees that these Magnuson-Stevens Act (as amended by the SFA) and NSG requirements represent a more conservative fishery management approach than is reflected in the Reef Fish FMP’s current definition of overfishing (when a reef fish stock or stock complex is overfished, overfishing is defined as harvesting at a rate that is not consistent with a program established to rebuild the stock or stock complex to the 20 percent SPR level), which is estimated to be the minimal level needed to prevent future declines in the stock.  On November 17, 1999, NMFS disapproved the Gulf of Mexico Fishery Management Council's (Council) red snapper rebuilding targets, as proposed in its Generic Sustainable Fisheries Act (SFA) Amendment to the Council's FMPs (Generic SFA Amendment), because the Generic SFA Amendment specified a fishing mortality-based stock rebuilding target rather than the required biomass-based target.  Further, the Generic SFA Amendment did not estimate the time to rebuild in the absence of fishing mortality, as required by the Magnuson-Stevens Act and the NSG.  NMFS also disapproved the Generic SFA Amendment’s proposed SPRs as proxies for MSY, OY, and other stock status determination criteria.  In conjunction with these disapproval actions, NMFS informed the Council that it must submit a new red snapper rebuilding plan as soon as possible for agency review.
        In order to comply with the requirements of the Magnuson-Stevens Act, the Council has recently submitted to NMFS, for Secretarial review, a framework action under the Reef Fish FMP that provides for a revised red snapper rebuilding plan through 2032.  While a final agency decision on this proposal has not yet been made, the rebuilding plan does contain new biomass-based targets and thresholds, including a revised OY and recovery time-frame parameters that, upon preliminary review, appear consistent with the Magnuson-Stevens Act, as amended by the SFA, and the NSG.  The proposed action would institute a red snapper 31-year rebuilding plan with 5-year interim management goals.  The rebuilding plan would maintain the current TAC set at 9.12 MP under a constant catch scenario for the years 2001-2005, with existing bycatch reduction requirements.  Thereafter, the plan would shift to a constant fishing mortality rate strategy.  At that time, a reduction in the red snapper TAC is likely, unless other means of reducing bycatch and bycatch mortality are more effective than currently anticipated and the stock achieves a greater level of rebuilding than currently anticipated.  Under the constant fishing mortality rate strategy, TAC is set as a constant proportion of the stock that can be removed that would allow the stock to rebuild within the required time period.  As stock size increases, so can the TAC (i.e., as the stock size approaches BMSY, TAC will be approaching OY).  Because red snapper are such a long-lived species and the fishery is in need of stability in all sectors, the rebuilding plan aspires to make TAC adjustments, as necessary, at 5-year intervals.  Of course, section 304(e)(7) of the Magnuson-Stevens Act requires the Secretary of Commerce (Secretary) to review independently the stock rebuilding plan itself in no more than 2-year intervals to ensure adequate progress toward ending overfishing and rebuilding the affected stock.  The framework procedure under the Reef Fish FMP currently contemplates annual review of the status of managed fish stocks.  If the Secretary's independent review, pursuant to section 304(e)(7), results in a finding that the rebuilding plan is not making adequate progress, the Secretary is required to notify the Council immediately and recommend appropriate further conservation and management measures (see section 304(e)(7)(b) of the Magnuson-Stevens Act).  In light of the Council's recent proposal for a revised red snapper stock rebuilding plan, a reduction in TAC now, based on the current Reef Fish FMP’s OY definition, would be premature.
        (2)  TSA asserts that NMFS’ scientific studies indicate that bycatch reduction devices (BRDs) required in shrimp trawls in the Exclusive Economic Zone (EEZ) of the Gulf of Mexico west of Cape San Blas, Florida, have reduced juvenile red snapper mortality by 40 percent or less instead of the 50- to 60-percent reduction necessary as a basis for the present TAC of 9.12 MP.  Further, TSA asserts that NMFS and the Council have greatly exaggerated the importance (positive impact) of bycatch reduction for rebuilding the red snapper stock; and
        (3)  TSA asserts that recent scientific information presented to the Council's Reef Fish Stock Assessment Panel (RFSAP) (a Council scientific advisory committee) indicates that the overfished condition of the red snapper fishery is a result of excessive fishing pressure by the directed fisheries, in particular the recreational sector of the fishery, and not a result of bycatch mortality associated with shrimp harvest.

          Response: The RFSAP again endorsed the red snapper stock rebuilding plan under consideration by the Council and currently under review by NMFS.  The RFSAP did not alter its long-standing opinion that bycatch reduction in the shrimp fishery is necessary to rebuild the red snapper stock.  The combined effects of excessive fishing mortality in the directed fishery and bycatch mortality of juvenile red snappers in the shrimp fishery have all contributed to the overfished status of red snapper in the Gulf of Mexico.  Red snapper stock assessments reviewed by the RFSAP, dating back to 1990, as well as the Congressionally Mandated Red Snapper Peer Review (1997), have not only indicated that fishing mortality in the directed fishery must be reduced, but also that the Gulf red snapper stock will not recover from its overfished condition without a significant reduction in bycatch mortality of juvenile red snappers associated with shrimp trawling.  In fact, the magnitude of the shrimp fishery’s bycatch of juvenile red snappers far outweighs the impacts of TAC adjustments on rebuilding the red snapper stock.  The best available scientific information, as represented by continuing scientific stock assessments and various scientific peer reviews over recent years during which the 9.12 MP TAC has been in place, consistently demonstrates that even if the red snapper TAC were set at zero, BRDs and other measures to address bycatch mortality of juvenile red snappers in the shrimp fishery would still be required in order to rebuild this fish stock.   As described earlier, NMFS is currently reviewing the Council’s stock rebuilding plan, which will likely result in future reductions in the red snapper TAC.  However, it appears that an immediate TAC reduction would achieve only limited short-term conservation benefits not justified in the face of resulting significant and immediate adverse impacts on the red snapper fishery.

        A 40-percent reduction in juvenile red snapper bycatch mortality in the Gulf shrimp fishery has been achieved, as substantiated by data that NMFS submitted to the Council (Nichols, 1990; Nichols & Pellegrin, 1992), and that the RFSAP reviewed.  Further, NMFS biologist Dr. Scott Nichols, at the September 20-24, 1999, RFSAP meeting, and at the October 27, 1999, meeting of the Council’s Scientific and Statistical Committee, stated that, excluding the now illegal configuration of a fisheye BRD covered by the trawl net's elephant ear, fisheye BRDs are currently attaining a 40-percent reduction in fishing mortality of juvenile red snappers and that a 50-percent reduction appears feasible.  Additionally, NMFS biologist Dr. John Watson, in statements to the Council at its November 8-12, 1999, and November 13-16, 2000, meetings, indicated that a 50-percent bycatch reduction could be achieved from fisheye BRDs.  NMFS believes that further reductions are possible with improved BRD technology.  Tests conducted by NMFS have already demonstrated that prototype BRDs can reduce bycatch mortality of red snapper in shrimp trawls by as much as 70 percent.
        BRDs have significantly reduced shrimp trawl bycatch mortality of red snapper and other species in the western Gulf.  However, National Standard 9 requires that bycatch be reduced to the extent practicable and the Council must continue to review possible measures that would achieve higher levels of bycatch reduction and minimize bycatch mortality.  NMFS has encouraged the Council to take additional actions throughout the Gulf to reduce shrimp trawl bycatch.  Such actions could include extending the requirement for BRDs into Federal waters east of Cape San Blas, FL; effort reduction in the shrimp fishery; closed areas; or seasonal closures.  Additionally, monitoring of bycatch in the shrimp fishery must be improved.  This could be accomplished with vessel permits (as proposed under Amendment 11 to the FMP for the Shrimp Fishery of the Gulf of Mexico (Shrimp FMP)), mandatory observers, and mandatory logbooks.
        Consultants for TSA presented scientific information regarding the preceding TSA assertion (No. 3) at the RFSAP meeting held at the NMFS Southeast Fisheries Science Center (SEFSC) on September 28-October 1, 2000.  The RFSAP considered three presentations in the context of the proposed revised red snapper rebuilding plan:  Two were by the TSA consultants, Mr. Gazey and Dr. Gallaway, and one was by Dr. Shipp.  The RFSAP concluded that “the presentations by Mr. Gazey, Dr. Gallaway, and Dr. Shipp do not affect our previous endorsement of the rebuilding plan.”
        (4)  TSA asserts that the recreational sector of the directed fishery continues to exceed its annual quota under the present season opening and closing dates.

          Response: While NMFS recognizes that quota overruns in the recreational fishery have occurred in the past, the Council and NMFS have taken steps to rectify this situation.  In December 1999, at the Council's request, NMFS issued an interim rule to implement management measure changes for the red snapper fishery to address quota overages in the recreational sector and, thus, reduce overfishing (64 FR 71056).  The interim rule established a Federal recreational season from April 21 through October 31.  Also, the rule reduced fishing effort that would have occurred in state waters after the closure of the Federal season under the regulations in effect prior to implementation of the interim rule.  These actions appear to have been successful, as preliminary data for the 2000 fishing year indicate that the recreational red snapper harvest was approximately 320,000 pounds under the allowable quota (4.47 MP).  The interim rule measures were implemented on a permanent basis under an approved regulatory amendment, pursuant to the Reef Fish FMP’s framework procedure, through a final rule issued August 17, 2000 (65 FR 50158).  NMFS' goal is to continue monitoring the recreational fishery quota and to take additional action as warranted.  Further discussion of NMFS and Council efforts to structure a red snapper recreational fishing season that best prevents recreational fishery quota overruns is contained in the response to public comment number 2 (see below).
        (5)  TSA asserts that NMFS is significantly underestimating fishing effort in the recreational sector, which allows that sector to harvest red snapper in excess of its share of the TAC;  and
        (6)  TSA asserts that NMFS has failed to make a reduction in the recreational sector's share of the TAC to account for these excessive harvests.

          Response: The best scientific information available indicates that effort in the red snapper charter vessel sector, the largest component of the recreational fishery, has not been underestimated, and that charter vessels currently account for approximately 42 percent of the total annual recreational harvest of red snapper in the Gulf of Mexico.  NMFS has recently adopted new and more precise and accurate methodologies for estimating the recreational red snapper harvest that were developed cooperatively by NMFS and the Gulf States Marine Fisheries Commission.  This is part of a continuing effort by NMFS to improve data collection for the recreational sector.  There is no evidence to suggest that recreational landings have been underestimated.
        Comments and Responses
        NMFS received 1, 567 comments addressing this petition.  They are summarized and responded to here:

          Comment 1: Fifteen hundred and sixty three comments were received that opposed the petition for emergency rulemaking submitted by TSA including any reduction in the TAC or shortening of the 2001 recreational fishing season.

          Response: The best available scientific information indicates that the 9.12 MP (4.14 million kg) TAC for 2001 may slow the recovery in the early part of any stock rebuilding program but would not jeopardize recovery of the stock consistent with the rebuilding requirements of the Magnuson-Stevens Act, particularly if greater reductions in bycatch mortality are achieved, as expected.  However, an immediate reduction in TAC or shortening of the recreational fishing season for red snapper would have serious adverse economic effects upon participants in the fishery.

          Comment 2: Included in the group of comments opposed to the TSA petition was a comment from an environmental group expressing its concerns regarding NMFS’ regulation of the red snapper recreational fishing season and the history of TAC overruns in this fishery.  Further, this group requested that NMFS close the recreational and commercial red snapper fisheries, once their allocations are met, based on available real-time data.

          Response: The Magnuson-Stevens Act requires that the Gulf of Mexico red snapper recreational fishery be closed when its quota is reached.  To comply with this requirement, NMFS works jointly with the Council to implement management measures and establish closure dates that, based upon the best available scientific information, are likely to result in annual catches that approximate the quota,  within the margin of error of the harvest projections.  NMFS uses a computer simulation model to assess the future status of the red snapper stock.  The model integrates estimates of stock abundance with fishing effort to project how many fish will be caught for various time periods.  This projection assumes that the current year's fishing effort will be similar to that of previous years.  In-season data are not used to establish or adjust closure dates; instead, a closure date is based entirely on projections of the model used.  This is the only practicable method of setting closure dates because the NMFS Marine Recreational Fishery Statistics Survey (MRFSS) is not designed for real-time quota monitoring.  MRFSS data are available in 2-month blocks, referred to as waves, and landings are not available until 5 weeks after the end of a wave.  Thus, there is a time lag of at least 3 months before even preliminary MRFSS landings data can be evaluated; consequently, NMFS cannot determine the closure date based on real-time fishery data.  In projecting recreational fishery harvest rates and closure dates, NMFS attempts to approximate the quota in the long term, while recognizing that annual variations in the catch are inevitable.  Based on the last two years' monitoring, the projections appear accurate since no overruns occurred.

          Comment 3: Four comments were received in support of the petition, including two from TSA that requested an immediate reduction in TAC to no more than 3 MP (1.36 million kg) and a shortening of the 2001 recreational fishing season.

          Response: NMFS has reviewed the administrative records and court decisions from prior litigation on the issue of the red snapper TAC.  NMFS has also reviewed more recent information regarding the conduct of the red snapper fishery, as discussed above, including the petition received on behalf of TSA and the public comments received on the petition.  NMFS disagrees with TSA that the law or the present circumstances in the red snapper fishery require an immediate reduction in TAC.  As described below, this is because (a) the Council’s proposed red snapper stock rebuilding plan appears to comply with the Magnuson-Stevens Act requirements to end overfishing; (b) the deployment of BRDs in the shrimp fishery appears to be more effective than TAC adjustments in rebuilding the red snapper stock; (c) NMFS believes that greater than current levels of reduction in bycatch mortality of juvenile red snapper in shrimp trawls are attainable; and (d) the shrimp fishery does not appear to be subject to any disproportionate regulatory impacts compared to the directed red snapper fisheries.

        For these reasons, NMFS disagrees with TSA's assertions, the majority of which have been raised previously by TSA and refuted by NMFS (see Florida Wildlife Federation, et al. v. Daley, Case No. 4:98cv101RH (N. D. Fla.); affirmed Case No. 99-14747c (11th Circuit Court of Appeals); Texas Shrimp Association v. Daley, Case No. 4:000v20RH (N. D. Fla,); affirmed Case No. 00-12328 (11th  Circuit Court of Appeals).  As TSA, through its legal counsel, recently noted, “nothing in the petition raised any novel questions” (see July 11, 2001, letter from TSA Counsel to Dr. William T. Hogarth).  Rather, TSA asserts that the agency is making decisions based on political pressure rather than on scientific information and the Magnuson-Stevens Act (id.).

        The best available scientific information affirms that the status quo TAC of 9.12 MP (4.14 million kg) is compatible with the stock rebuilding requirements of the Magnuson-Stevens Act, provided that expected bycatch reduction levels are met, that harvests will not exceed quotas, and that future recruitment, on average, will increase as spawning stock biomass increases.  Additionally, the Council has submitted a framework action under the Reef Fish FMP to NMFS for approval and implementation that would establish a revised red snapper rebuilding plan through 2032.  The plan contains new biomass-based targets and thresholds, including a revised OY and recovery time-frame parameters that are consistent with the Magnuson-Stevens Act, as amended by the SFA, and the NSG.  The proposed action would institute a red snapper 31-year rebuilding plan with 5-year interim management goals.  The rebuilding plan would maintain the current TAC set at 9.12 MP under a constant catch scenario for the years 2001-2005, with existing bycatch reduction requirements.  Thereafter, the plan would shift to a constant fishing mortality rate strategy, and the status of the stock would be reviewed every 5 years to evaluate the need for additional bycatch reductions or adjustments in TAC.  Under the constant fishing mortality rate strategy, TAC is set as a constant proportion of the stock that can be removed that would allow the stock to rebuild within the required time period.  As stock size increases, so can the TAC (i.e., as the stock size approaches BMSY, TAC will be approaching OY).
        The best available scientific information, as represented by continuing scientific stock assessments and various scientific peer reviews over the recent years during which the 9.12 MP TAC has prevailed, consistently demonstrates that even if the red snapper TAC were set at zero, BRDs and other measures to address bycatch mortality of juvenile red snappers in the shrimp fishery would still be required in order to rebuild this stock.  Although the Court in the BRD litigation held that a sufficient nexus  existed between the need for BRDs and the red snapper TAC for purposes of conferring legal standing upon the shrimp industry so they could challenge the BRD requirement, elsewhere in the opinion, as noted above, the Court acknowledged that shrimp trawlers' severe effects upon the red snapper population is beyond dispute (Order Denying Petitions Challenging Regulations, at 7, 41).  The magnitude of the impacts of the shrimp fishery’s bycatch of juvenile red snappers far outweighs the impacts of TAC adjustments on rebuilding the red snapper stock.  However, the current and foreseeable future regulatory burden for the shrimpers is far less than that of the red snapper fishery participants.
        Section 304(e)(4)(A) of the Magnuson-Stevens Act explicitly states that, in pertinent part, fishery management plans, plan amendments, or proposed regulations for an overfished fishery shall “specify a time period for ending overfishing.”  The Council’s proposed red snapper stock rebuilding plan, inter alia, would do just that, while maintaining stability in the fishery.  As Judge Hinkel noted in the decision upholding the BRD requirement, which was affirmed on appeal, rejecting one viewpoint in favor of another, when weighing competing scientific opinions and making policy determinations, is not an abuse of discretion (see Order Denying Petitions Challenging Regulations, Case No. 4:98cv101-RH, N. D. Fla, at 22).  Further, the Court noted that uncertain scientific evidence does not preclude making a decision based, in part, upon reasonable expectations (id. at 43).
        NMFS believes that greater reductions in bycatch mortality of juvenile red snapper in shrimp trawls are attainable, and further believes that this expectation is reasonable based upon the following considerations.  First, the Jones-Davis BRD already by far exceeds the necessary level of bycatch reduction, demonstrating concretely that, in fact, such reduction is attainable.  Although the Jones-Davis BRD is not widely used, due in large part to greater shrimp loss rates, given its outstanding performance at reducing bycatch mortality, it may be practicable to expand its usage, particularly if shrimp loss rates can be reduced.  Second, the level of reduction in bycatch mortality for the more widely used BRD designs has steadily improved since the BRD requirement became effective.  Initially, reduction levels among those BRDs measured 27 percent, but current levels are between 40 percent and 50 percent.  Some of this improvement has resulted from minor modifications to the gear arising from actual use, such as adjusting the “elephant ear” flap in the shrimp trawls.  Finally, NMFS is in the process of revising its BRD certification protocol following its experience since the original protocol was implemented several years ago.  Information from BRD users as well as the Gulf and South Atlantic Fisheries Foundation has indicated the need for greater flexibility in the provisions of the BRD certification protocol.  NMFS expects that once these revisions are effected, more efficient and better performing BRD designs will be developed and certified, resulting in greater reductions of bycatch and bycatch mortality of red snapper.

        These developments show that reductions in red snapper bycatch mortality based on technology are feasible and likely.  However, technological advances are not the only means under consideration for reducing red snapper bycatch in the shrimp fishery.  In addition to technological considerations, the Council is developing Amendment 10 to its Shrimp FMP to further address general bycatch issues.  Among the alternative actions included in Amendment 10 are those that would require the use of BRDs east of Cape San Blas, FL.  Although the original BRD requirement exempted this area because of minimal red snapper occurrence in that area, more recent information (Schirripa & Legault, 1999) demonstrates a significantly increased occurrence of red snapper there.  The objective of Amendment 10 is not limited to reducing bycatch and bycatch mortality of red snapper, but it now appears that red snapper bycatch mortality would be reduced somewhat, along with that of other species, if such a geographic expansion in the use of BRDs were implemented.  Amendment 10 also contains other action alternatives, such as those based on seasonal and areal adjustments that, in the course of addressing bycatch issues in a general sense, will clearly effect some level of reduction in red snapper bycatch mortality.
        In addition to Amendment 10, further regulation of the Gulf shrimp fishery to address red snapper issues may become necessary.  For example, the Council has proposed, under its Reef Fish FMP’s framework action, a 31-year rebuilding program for red snapper.  A fundamental element of that proposal is the achievement of greater reductions in red snapper bycatch mortality; however, the plan also provides for the contingency of not achieving that goal.  It seems clear that without greater red snapper bycatch mortality reductions, both a future reduction in the red snapper TAC and further regulation of the shrimp fishery in the EEZ are likely.  The latter possibility appears to form the basis for TSA's assertions that the Council's and NMFS' management of the red snapper fishery is somehow unfair to shrimpers.  These claims were addressed in prior litigation, and the Court then wrote that although the BRD requirement placed serious costs on the shrimp industry, the directed red snapper fishery had for years been subject to numerous restrictions, including increased minimum fish size limits, TAC limits, and reduced bag limits and trip limits.  The judge also noted that the shrimp industry had, until recently, not only been required to do very little to address bycatch, but actually enjoyed a statutory prohibition against regulations addressing the bycatch  issue.  In an earlier footnote within that Court opinion, the Court stated that the specific and severe effects upon the red snapper population from shrimp trawlers is “beyond dispute.”  The judge concluded that imposing the BRD requirement and attendant costs, even with a TAC at 9.12 MP, was not only not an abuse of agency discretion or inequitable, but “perhaps required” (Order Denying Petitions Challenging Regulations, Case No. 4:98cv101-RH, at 7, 23, 24, 25, 43-46).
        These conclusions are still applicable today.  The Council has submitted Amendment 11 to the Shrimp FMP, which would establish mandatory Federal permits for the shrimp fishery, for Secretarial review, approval, and implementation.  However, this is the only additional regulation currently proposed for the shrimp fishery.  The Gulf shrimp fishery is the only federally managed fishery in the southeastern United States not subject to a permit requirement.  The Federal shrimp permit would be available without any qualifying criteria, and the permit requirement would constitute only a minimal burden on shrimp fishermen.  The red snapper commercial and recreational fisheries, however, are now and have long been subject to a much more complex and burdensome regulatory program.  In particular, since entry of the legal opinion referred to above, the recreational red snapper fishing season has been significantly reduced in order to comply with the statutory quota provisions enacted under the SFA in 1996.  While TSA seems to overlook this development, one benefit is that the quota appears to have eliminated the recreational overruns about which TSA complains.  If approved and implemented, Shrimp FMP Amendment 10, discussed above, is likely to result in additional regulations for the Gulf shrimp fishery.  However, even if the most restrictive of the amendment’s alternative actions under consideration were implemented, they would not necessarily produce an inequitable result for shrimp fishermen.
        The NSG make clear that under National Standard 4 an allocation of fishing privileges may impose a hardship upon one group if it is outweighed by the total benefits received by another group or groups (50 CFR 600.325 (c)(3)(i)).  Although this guidance generally applies to a single fishery, in this instance, the red snapper stock is more significantly affected by the shrimp fishery than by the directed red snapper fishery.  The situation is clearly analogous to an allocation of fishing privileges within a single fishery.
        In light of the foregoing, it appears that additional regulation of the shrimp fishery would not result in a disproportionate regulatory impact upon shrimpers.  Further, rebuilding the red snapper stock and minimizing shrimp fishery bycatch is mandated by law.  Clearly, reductions in shrimp trawl bycatch mortality would benefit red snapper fishery participants.  However, even with additional shrimp regulations and maintenance of a 9.12 MP TAC for red snapper, the overall result would not leave the shrimp fishery with a greater regulatory burden than the red snapper fishery.
        Even if the shrimp fishery does incur additional regulatory burdens, any hardships for the shrimpers will likely be far outweighed by the overall benefits of ending overfishing of red snapper and restoring the red snapper fishery.  Conversely, immediately lowering the red snapper TAC, as suggested by TSA, would not result in any apparent benefit to the shrimp industry.
        Based on the discussion above, since lowering the red snapper TAC would not relieve either the biological need nor the legal requirement to address the bycatch and bycatch mortality of juvenile red snappers in shrimp trawls, and since such a TAC change would severely disrupt and adversely impact the red snapper fishery, the National Marine Fisheries Service has denied the TSA petition.

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

          Dated: October 16, 2001.
          John Oliver,
          Acting Assistant Administrator  for Fisheries,  National Marine Fisheries Service.

      [FR Doc. 01-26678 Filed 10-18-01; 1:37 pm]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 200331-0094]
        RIN 0648-BI28
        Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Removal of Regulations Implementing the Closed Area I Hook Gear Haddock Special Access Program

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          We propose to remove regulations that implement the Closed Area I Hook Gear Haddock Special Access Program. The Omnibus Essential Fish Habitat Amendment 2 eliminated the year-round Closed Area I, rendering the Closed Area I Hook Gear Haddock Special Access Program unnecessary. Eliminating the Closed Area I Hook Gear Haddock Special Access Program would reduce confusion and inconsistency with other regulations.

          DATES:
          Written comments must be received on or before May 6, 2020.

          ADDRESSES:
          You may submit comments, identified by NOAA-NMFS-2019-0104, by either of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal eRulemaking Portal.
          1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-0026;

          2. Click the “Comment Now!” icon and complete the required fields; and
          3. Enter or attach your comments.
          • Mail: Submit written comments to Michael Pentony, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on the Closed Area I Hook Gear Haddock SAP.”

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

          FOR FURTHER INFORMATION CONTACT:

          Spencer Talmage, Fishery Management Specialist, phone: (978) 281-9232; email: Spencer.Talmage@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        Background
        NMFS published an interim final rule (69 FR 67779; November 19, 2004), implementing measures approved under Framework Adjustment 40-A to the Northeast Multispecies Fishery Management Plan (FMP). Among other measures, Framework 40-A created the Closed Area I Hook Gear Haddock Special Access Program (CAI HGH SAP) to provide vessels with additional opportunities in Closed Area I to target healthy stocks. The CAI HGH SAP allowed vessels to access the groundfish year-round Closed Area I if they followed certain gear and other restrictions.
        The Omnibus Essential Fish Habitat Amendment 2 (83 FR 15240, April 9, 2018) eliminated the year-round closure of Closed Area I. The area once covered by Closed Area I is now open to vessels fishing with hook gear, with the exception of the Georges Bank Dedicated Habitat Research Area and the seasonal Closed Area I North Closure (February 1—April 15). The CAI HGH SAP does not overlap with either the Georges Bank Dedicated Habitat Research Area or Closed Area I North Closure, and as such does not allow any activity otherwise prohibited by these areas. As a result, the CAI HGH SAP is now unnecessary, redundant, and inconsistent with the changes made by the Omnibus Essential Fish Habitat Amendment 2 because the program provides special access to an area that is already open to the groundfish fleet in the time that the SAP is effective.
        Under section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act, the Regional Administrator is authorized to make changes to regulations that are necessary to carry out any fishery management plan or amendment. We are proposing to amend the regulations in § 648.14, § 648.81, § 648.82, and § 648.85 to remove references to the CAI HGH SAP and to make a minor correction to a cross-reference.
        This action would not change the allocation to the Incidental Catch Total Allowable Catch (TAC) defined in § 648.85(b)(5)(ii). Such a change would require a substantive change to prior New England Fishery Management Council allocation decisions, and it is more appropriate for the New England Fishery Management Council to consider these changes in a future action. During the biennial specifications process, 2 percent of the Georges Bank (GB) cod sub-Annual Catch Limit for the common pool is designated as the Incidental Catch TAC. The Incidental Catch TAC is split between the Regular B Day-at-Sea Program, the Eastern United States/Canada Haddock SAP, and the CAI HGH SAP. The Incidental Catch TAC is a cap on catch of GB Cod in these programs, and does not affect the overall amount of GB cod available to vessels fishing outside of these programs in the common pool.
        Because no changes are being made to this process, 16 percent of the Incidental Catch TAC will continue to be allocated to the CAI HGH SAP during each biennial specifications process. This does not affect the quota available to the common pool groundfish fishery. The New England Fishery Management Council may choose to take further action on the allocation of the Incidental Catch TAC.
        On December 17, 2019, NMFS published a final rule (84 FR 68798) prohibiting gillnet fishing in the Nantucket Lightship and Closed Area I Closure Areas, in order to comply with a Federal Court order. That rule only affects vessels fishing with gillnet gear, and vessels fishing with hook gear may still fish in Closed Area I without declaring into the CAI HGH SAP. This action to eliminate the CAI HGH SAP was not affected by the prohibition of gillnet fishing in Closed Area I.
        Classification

        The National Marine Fisheries Service (NMFS) Assistant Administrator has made a preliminary determination that this proposed rule is consistent with section 305(d) and other provisions of the Magnuson-Stevens Act, and other applicable law. In making the final determination, we will consider the data, views, and comments received during the public comment period, subject to further consideration after public comment.

        This proposed rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866. This proposed rule is expected to be an Executive Order 13771 deregulatory action.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual determination for this determination follows.
        For purposes of the Regulatory Flexibility Act, NMFS established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. The determination of whether the entity is large or small is based on the average annual revenue for the most recent 3 years for which data are available (in this case, from 2016 through 2018).
        To participate in the CAI HGH SAP, vessels must possess a limited access multispecies permit (categories A, D, E, or F). Therefore, entities holding one or more limited access multispecies permits are the entities that have the potential to be directly impacted by this action. According to the commercial database, there were 557 entities that had at least one of the relevant limited access permits during 2018, the last year for which affiliation information is available. Of these entities, 81 did not have revenues. There were 476 entities that reported revenues during 2018. Of these, 6 were classified as large and 470 were classified as small businesses.
        A vessel that declares into the CAI HGH SAP is subject to additional notification, reporting requirements and gear modification requirements, but with the elimination of Closed Area I on April 19, 2018, the CAI HGH SAP no longer provides special access to any closed areas. There is no longer a beneficial reason to participate in the program, and no vessels participated in fishing year 2018. As a result, the proposed elimination of the CAI HGH SAP would not have a significant economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.
        This proposed rule contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the PRA. This requirement has been submitted to OMB for approval under Control Number 0648-0202.

          List of Subjects in 50 CFR Part 648
          Fisheries, Fishing, Recordkeeping and reporting requirements.

          Dated: March 31, 2020.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons stated in the preamble, 50 CFR part 648 is proposed to be amended as follows:

          PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

        1. The authority citation for part 648 continues to read as follows:

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

        2. In § 648.14:
        a. Revise paragraphs (k)(6)(ii)(B), (11)(i)(A)(4), (11)(vi), (12)(i)(B), and paragraph (12)(ii);
        b. Remove paragraph (k)(12)(vi); and
        c. Redesignate paragraph (k)(12)(vii) as (vi).
        The revisions read as follows:

          § 648.14
          Prohibitions.

          (k) * * *
          (6) * * *
          (ii) * * *
          (B) Hook gear. Fail to comply with the restrictions on fishing and gear specified in § 648.80(a)(3)(v), (a)(4)(v), (b)(2)(v), and (c)(2)(iv) if the vessel has been issued a limited access NE multispecies permit and fishes with hook gear in areas specified in § 648.80(a), (b), or (c).

          (11) * * *
          (i) * * *
          (A) * * *
          (4) If fishing both outside and inside of the areas specified for a SAP under § 648.85(b)(3) and (7), under a NE multispecies DAS in the Eastern U.S./Canada Area specified in § 648.85(a)(1), fail to abide by the DAS and possession restrictions under § 648.85(b)(7)(v)(A)(2) through (4).

          (vi) Closure of the U.S./Canada Area for all persons. If fishing under a NE multispecies DAS or on a sector trip, declare into, enter, or fish in the Eastern U.S./Canada Area specified in § 648.85(a)(1) if the area is closed under the authority of the Regional Administrator as described in § 648.85(a)(3)(iv)(D) or (E), unless fishing in the Closed Area II Yellowtail Flounder/Haddock SAP specified in § 648.85(b)(3) or the Eastern U.S./Canada Haddock SAP Program specified in § 648.85(b)(7).
          (12) * * *
          (i) * * *
          (B) If a vessel is fishing under a Category B DAS in the Closed Area II Yellowtail Flounder SAP specified in § 648.85(b)(3), the Regular B DAS Program specified in § 648.85(b)(6), or the Eastern U.S./Canada Haddock SAP specified in § 648.85(b)(7), remove any fish caught with any gear, including dumping the contents of a net, except on board the vessel.
          (ii) General restrictions for vessel and operator permit holders. Discard legal-sized NE regulated multispecies, ocean pout, or Atlantic halibut while fishing under a SAP, as described in §§ 648.85(b)(3)(xi) or 648.85(b)(7)(v)(I).

        3. In § 648.81, revise paragraph (a)(5)(ii)(C) to read as follows:

          § 648.81
          NE multispecies year-round and seasonal closed areas.
          (a) * * *
          (5) * * *
          (ii) * * *
          (C) Fishing in the CA II Yellowtail Flounder/Haddock SAP or the Eastern U.S./Canada Haddock SAP Program as specified in § 648.85(b)(3)(ii) or (b)(7)(ii), respectively.

        4. In § 648.82, by revise paragraph (e)(3) to read as follows:

          § 648.82
          Effort-control program for NE multispecies limited access vessels.

          (e) * * *
          (3) Regular B DAS Program 24-hr clock. For a vessel electing to fish in the Regular B DAS Program, as specified at § 648.85(b)(6), that remains fishing under a Regular B DAS for the entire fishing trip (without a DAS flip), DAS shall accrue at the rate of 1 full DAS for each calendar day, or part of a calendar day fished. For example, a vessel that fished on 1 calendar day from 6 a.m. to 10 p.m. would be charged 24 hr of Regular B DAS, not 16 hr; a vessel that left on a trip at 11 p.m. on the first calendar day and returned at 10 p.m. on the second calendar day would be charged 48 hr of Regular B DAS instead of 23 hr, because the fishing trip would have spanned 2 calendar days. For the purpose of calculating trip limits specified under § 648.86, the amount of DAS deducted from a vessel's DAS allocation shall determine the amount of fish the vessel can land legally. For a vessel electing to fish in the Regular B DAS Program, as specified at § 648.85(b)(6), while also fishing in an area subject to differential DAS counting pursuant to paragraph (n)(1)(i) of this section, Category B DAS shall accrue at the rate described in this paragraph (e)(3), unless the vessel flips to a Category A DAS, in which case the vessel is subject to the pertinent DAS accrual restrictions of paragraph (n)(1) of this section for the entire trip. For vessels electing to fish in both the Regular B DAS Program, as specified in § 648.85(b)(6), and in the Eastern U.S./Canada Area, as specified in § 648.85(a), DAS counting will begin and end according to the DAS rules specified in § 648.10(e)(5)(iv).

          § 648.85
          [Amended]

        5. Amend § 648.85 by:
        a. Remove paragraph (b)(7); and
        b. Redesignate paragraph (b)(8) as (b)(7).

      [FR Doc. 2020-07070 Filed 4-3-20; 8:45 am]
       BILLING CODE 3510-22-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AF67
        Endangered and Threatened Wildlife and Plants; Reopening of Comment Period on the Proposed Rule To Remove the Northern Populations of the Tidewater Goby From the List of Endangered and Threatened Wildlife

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:

          The U.S. Fish and Wildlife Service (Service) gives notice of the reopening of the comment period for the proposed removal of the northern populations of the tidewater goby (Eucyclogobius newberryi) from the list of endangered and threatened wildlife. The new comment period will allow all interested parties another opportunity to submit comments on our assertions, as clarified in this notice, that the original listing rule exaggerated the risk of extinction by overestimating the rate of local population extinction, and that the northern populations of the tidewater goby are not presently in danger of extinction or likely to become in danger of extinction within the foreseeable future. We are re-opening the comment period to clarify some points in our proposal and to solicit further public and peer-review comment.

          DATES:
          The comment period for this proposal closes on February 2, 2001. Comments on the proposed delisting must be received by the closing date.

          ADDRESSES:
          Written comments should be sent to the Regional Director, Regional Office, U.S. Fish and Wildlife Service, 911 NE 11th Avenue, Portland, Oregon 97232-4181. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above Service address.

          FOR FURTHER INFORMATION CONTACT:
          Catrina Martin or Steve Morey at the above address; telephone 503/231-6131; facsimile 503/231-6243.

        SUPPLEMENTARY INFORMATION:
        Background
        Shortly after the tidewater goby was listed as endangered in 1994, the Service initiated the recovery planning process. A contractor was hired to write a draft recovery plan and the product was a draft commonly referred to as the Swift 1995 version. This version was revised slightly in response to internal review and a revision under the authorship of Ballard and Swift was circulated among various experts and the applicable Service field offices in June 1996. Finally, in late September, 1996, a revised draft, authored by Ballard was forwarded to the Regional Office for review. In the 31 months since the listing, the Service had, in the process of drafting the recovery plan, compiled a fairly up-to-date record of what was known about the status of the goby. The goby seemed particularly responsive to climatic cycles, and the trend to extinction had not played out as projected in the 1994 listing. A number of estuaries cited in the listing rule as lacking gobies, symptomatic of the presumed range-wide decline, were in fact, inhabited by gobies. There seemed to be little actual evidence that the distribution and abundance, or overall risk of extinction had changed appreciably since 1982 when the tidewater goby was designated a category 2 candidate (47 FR 58454). Did the goby need a recovery plan, or was the original concern about extinction exaggerated? In order to decide whether to proceed with a recovery plan or to delist, a review of the merits of the original listing, and the current status of the species was initiated. The 1999 proposal to delist the goby summarizes the results of that review and concludes that delisting the tidewater goby north of Orange County is the most appropriate action.
        On June 24, 1999, we published a proposed rule to remove from the list of endangered and threatened wildlife those populations of tidewater goby that occur north of Orange County, California, and to retain a distinct population segment of tidewater goby in Orange and San Diego counties as an endangered species (64 FR 33816). We proposed to delist the northern populations because our original conclusions about population trends and were either in error or not adequately supported by the best available biological information. We believe that the original listing rule (59 FR 5954) overestimated the risk of extinction and the tidewater goby may have been mistakenly listed as endangered.

        The 1994 rule that listed the tidewater goby as endangered painted a picture of rapid local disappearances leading to extinction. The decline of the goby was considered to be so precipitous and the threats so severe that the conclusion of the summary of factors affecting the species was: “The tidewater goby is in imminent danger of extinction throughout its range and requires the full protection of listing as endangered under the Act to survive” (59 FR 5954). Our 1999 delisting proposal explains that the original listing inappropriately combined older permanent extinctions with temporary, drought-related extinctions to give an exaggerated impression of the rate of decline. The proposed delisting rule also argues that the original listing mistakenly assumes that because of reduced opportunities for gobies to naturally recolonize via dispersal, the species was headed toward extinction or listing under the Act. The relationship between extinction and dispersal is illustrated in the original listing with the following statement: “The number of extirpated localities of gobies has left the remaining populations so widely separated throughout most of the species' range that recolonization is unlikely.” The delisting proposal explains that gobies are now present in the majority of the approximately twenty estuaries where they were reported as lost between 1984 and 1990. In most places, gobies reappeared as might have been expected, shortly after the end of drought conditions. These recolonizations confirm that the goby's well-established pattern of local extinction and reappearance still exists.

        Other than habitat destruction, drought, and the disruption of population dynamics, the original rule listed a number of threats to explain the rapid rate of population extinction. These included: (1) Indirect losses due to changes in salinity; (2) surface water and groundwater diversions; (3) discharge of agricultural and sewage effluents; (4) siltation; (5) cattle grazing and feral pig activity; (6) non-native predators and competitors; and (7) river flooding and heavy rainfall. The delisting proposal discusses the strengths and weaknesses of the links that were drawn in the original listing rule between these threats and the presumed systematic decline of the goby and concludes that there is not a defensible link between the threats, either singly or in combination, and a systematic decline of the tidewater goby.
        The most important argument in the delisting proposal is that extinction is not imminent, nor was it at the time of listing. The threats in the original listing are environmental perturbations that, at high levels throughout the range, either singly or in combination, could lead to systematic declines of the goby and extinction. However, the proposed delisting rule presents evidence that there is no systematic decline of gobies suggesting their extinction, and that the link drawn between the presumed threats and the extinction of the goby in the original listing is unsupported.

        Even though we concluded that the original listing rule was in error, the southern populations in Orange and San Diego counties were concurrently proposed as an endangered DPS. Three criteria had to be met by the southern gobies to be recognized as endangered. First, they had to be markedly separated from other tidewater gobies. Second, they had to be to significant to the rest of the species. Finally, they had to meet the Act's standards for listing a species as endangered. The first and second criteria were met on genetic and geographic grounds (see 64 FR 33819). The third criterion, the endangered status of the southern gobies, was met because so few southern populations exist that the risk of chance extinction is high. Under the best of conditions (e.g., the current wet cycle), only eight fluctuating populations exist, and all but one of these has declined to the point of local extinction in the recent past. Thus, chance demographic effects, a variety of natural or human-caused threats to habitat quality, or chance combinations of these make the extinction of gobies in Orange and San Diego counties a very real, and not altogether remote, possibility. This argument about extinction risk hinges on the small number of populations in the south. It cannot be applied in the north, where many or all of the same threats exist (see 64 FR 33820-33824), but where the larger number of populations makes the risk of chance extinction vanishingly small.
        We solicited comments from the public during two comment periods, June 24 to August 23, 1999 and February 15 to March 31, 2000. We solicited review of the delisting proposal from four outside reviewers, according to our policy on peer review (59 FR 34270), but received only one response. We also solicited comments from the California Department of Fish and Game pursuant to section 4(b)(5)(A)(ii) of the Endangered Species Act, but they did not comment. We believe, as explained below, that clarification of the proposal and a reopening of the comment period is warranted to provide the public with a meaningful opportunity to comment, and, because of the importance of peer review and the State's input, we are taking this opportunity to solicit comments from them again.
        The main reaction expressed in the public comment letters on the proposed delisting was that the Service, armed with little new information was, in its delisting proposal, making an unexplainable reversal of position on the status of the goby. The public comment letters also expressed concern that the delisting proposal was arguing that the goby was in less danger of extinction now than in 1994. We believe that this concern is not warranted because the delisting proposal argues instead that the goby was in fact not in danger of extinction in 1994 and is not now. We may have inadequately conveyed the basis for the proposed delisting when we failed to specifically ask for comments on the facts, arguments, interpretations, and conclusions in the original listing. Instead, using standard language for listing actions, we asked specifically for comments concerning (1) threats; (2) range, distribution, and population size; and (3) current or planned activities that could impact the species.
        Following this lead, the public observed that there is little new information since the 1994 listing on risk of extinction, nor has there been appreciable recovery. The public comments were detailed and uniform. The major themes are briefly summarized as follows: (1) It is misleading to characterize status simply in terms of numbers of populations—populations vary in size, and contribute in different ways to long-term persistence; (2) the proposal does not apply metapopulation dynamics to the tidewater goby metapopulation; (3) the potential for recolonization is inappropriately extrapolated beyond the observational base and undue emphasis was placed on the ability to recolonize; (4) regional genetic subdivisions are ignored; (5) the proposal confuses lack of evidence with lack of effect; (6) threats in the north are treated lightly while in the south they are treated seriously; (7) effects from alien fishes are underestimated; (8) the proposal incorrectly supposes that existing regulatory mechanisms are adequate; (9) combined effects of threats are ignored; (10) the proposal ignores the certainty that drought will return to the California coast. These comments represent a reasoned and informed set of suggestions for improving our analysis of current risk of extinction, and they will be considered in the final agency decision. However, none of the comments we received from the public addressed the basis of our proposed delisting: that the 1994 listing rule misinterpreted the risk of extinction so seriously that the goby was mistakenly listed as endangered.
        The review of this delisting proposal is incomplete because objective scientific review was limited to a single response, the State did not comment, and the public commented only on a portion of the determination to delist the northern populations. With this notice we clarify our proposal to delist the tidewater goby and reopen the public comment period. Reopening the comment period gives the public a more meaningful opportunity to comment by providing an additional opportunity to comment on any aspect of the proposal, but particularly on the assertion that the original listing was in error. This will also provide us the opportunity to obtain additional scientific review, and a review from the California Department of Fish and Game.

        It is our intent that the final action resulting from the proposal to delist the northern populations of the tidewater goby from the list of endangered and threatened wildlife, and to recognize an endangered population in Orange and San Diego Counties, be as accurate and effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party. We have already accepted comments on a wide range of topics in the proposal during two previous comment periods. However, as explained above, we are hoping to generate comments on some additional aspects of the proposed delisting rule, especially: (1) Our assertion that the original listing rule exaggerated the risk of extinction by overestimating the rate of local population extinction; (2) any information either supporting or contradicting the information in the delisting rule that suggests that the tidewater goby was not, in 1994 when it was listed, nor is now, in danger of extinction due to a high rate of local extinctions; and (3) any new information that suggests a reasonable causal link between any of the threats, or combination of threats and a high risk of extinction of the tidewater goby.

        The final decision on the current proposed rule for the tidewater goby will take into consideration the comments and any additional information we receive, and such communications may lead to a final regulation that differs from the current proposal. 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 address 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. 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. The comment period on this proposal closes on February 2, 2001. Written comments should be submitted to the Service office listed in the ADDRESSES section.

          Author: The primary author of this notice is Steve Morey (see ADDRESSES section).

          Authority:

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

          Dated: December 27, 2000.
          David L. McMullen,
          Acting Regional Director, Region 1, Fish and Wildlife Service.

      [FR Doc. 01-66 Filed 1-2-01; 8:45 am]
      BILLING CODE 4310-55-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [DA 09-2026; MB Docket No. 09-162; RM-11559]
        Television Broadcasting Services; Opelika, AL

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          The Commission has before it a petition for rulemaking filed by Pappas Telecasting of Opelika, L.P. (“Pappas”), licensee of station WLGA(TV), channel 47, Opelika, Alabama. Pappas requests the substitution of channel 30 for its allotted post-transition channel 47 at Opelika and to make related changes to its technical parameters.

          DATES:
          Comments must be filed on or before October 2, 2009, and reply comments on or before October 13, 2009.

          ADDRESSES:
          Federal Communications Commission, Office of the Secretary, 445 12th Street, SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for petitioner as follows: Lee G. Petro, Esq., Fletcher, Heald & Hildreth, PLC, 1300 North 17th Street, 11th Floor, Arlington, Virginia 22209.

          FOR FURTHER INFORMATION CONTACT:
          David J. Brown, david.brown@fcc.gov, Media Bureau, (202) 418-1600.

        SUPPLEMENTARY INFORMATION:

        This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 09-162, adopted September 2, 2009, and released September 9, 2009. 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 proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed 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. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

        For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

          List of Subjects in 47 CFR Part 73
          Television, Television broadcasting.

        For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

          PART 73—RADIO BROADCAST SERVICES
          1. The authority citation for part 73 continues to read as follows:

            Authority:
            47 U.S.C. 154, 303, 334, 336.

            § 73.622
            [Amended]
            2. Section 73.622(i), the Post-Transition Table of DTV Allotments Under Alabama, is amended by adding DTV channel 30 and removing DTV channel 47 at Opelika.

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

      [FR Doc. E9-22402 Filed 9-16-09; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF TRANSPORTATION
        Federal Railroad Administration
        49 CFR Chapter II
        [Docket No. FRA-2011-0025]
        Study on Protection of Certain Railroad Risk Reduction Data From Discovery or Use in Litigation

          AGENCY:
          Federal Railroad Administration (FRA), Department of Transportation (DOT).

          ACTION:
          Notice and request for public comment.

          SUMMARY:
          In accordance with section 109 of the Rail Safety Improvement Act of 2008 (RSIA), FRA is soliciting public comment on the issue of whether it is in the public interest, including public safety and the legal rights of persons injured in railroad accidents, to withhold from discovery or use in litigation in a Federal or State court proceeding for damages involving personal injury or wrongful death against a carrier any report, survey, schedule, list, or data compiled or collected for the purpose of evaluating, planning, or implementing a railroad safety risk reduction program required under the RSIA, including a railroad carrier's analysis of its safety risks and its statement of the mitigation measures with which it will address those risks.

          DATES:
          Comments should be received on or before July 8, 2011. Late-filed comments will be considered to the extent practicable.

          ADDRESSES:
          You may submit comments to Docket No. FRA-2011-0025 by any of the following methods:
          • Federal e-Rulemaking Portal: Go to http://www.regulations.gov and follow the instructions for sending your comments electronically.
          • Mail: Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed envelope or postcard.
          • Hand Delivery or Courier: West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
          • Fax: 202-493-2251

          To avoid duplication, please use only one of these four methods. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you provide.

            Docket: To read background documents or comments received, go to http://www.regulations.gov and click on the “read comments” box in the upper right hand side of the screen. Then, in the “Keyword” box, insert “FRA-2011-0025” and click “Search.” Next, click the “Open Docket Folder” in the “Actions” column. Finally, in the “Title” column, click on the document you would like to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

          FOR FURTHER INFORMATION CONTACT:

          Roberta Stewart, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Room W33-411, Mail Stop 10, Washington, DC 20590 (telephone 202-493-6027), roberta.stewart@dot.gov.

        SUPPLEMENTARY INFORMATION:

        The Railroad Safety Improvement Act of 2008
        Pursuant to section 103 of the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, Div. A, or “RSIA”) (codified at 49 U.S.C. 20156) and a delegation from the Secretary (49 CFR 1.49(oo) 1
          ), FRA is conducting rulemakings to issue rules by October 16, 2012 that would require the establishment of risk reduction programs by certain passenger and freight railroads. As part of these risk reduction programs, railroads would have to produce detailed analyses of the hazards and risks present in the railroad working environment in order to develop processes to eliminate these hazards and risks. In section 109 of the RSIA (codified at 49 U.S.C. 20118-20119), Congress determined that for these programs to be effective, the risk analyses must, subject to a few exceptions, be shielded from production in response to Freedom of Information Act (FOIA) requests.2

          See 49 U.S.C. 20118.

            1 “The Federal Railroad Administrator is delegated authority to: *  * * (oo) Carry out the functions and exercise the authority vested in the Secretary by the Rail Safety Improvement Act of 2008 (Pub. L. 110-431, Div. A, 122 Stat. 4848).”

            2 If the information is “necessary for the Secretary of Transportation or another Federal agency to enforce or carry out any provision of Federal law” it may be disclosed. The Secretary may also disclose “any part of any record comprised of facts otherwise available to the public if * * * the Secretary determines that disclosure would be consistent with the confidentiality needed for that safety risk reduction or pilot program.”

        In lieu of including a statutory provision that would shield the risk analysis information from production and use in litigation, Congress mandated a study. In Section 109 of the RSIA, codified at 49 U.S.C. 20119, Congress directed FRA to evaluate whether it is in the public interest (including public safety and the legal rights of persons injured in railroad accidents) to withhold from discovery or admission into evidence in a Federal or State court proceeding for damages against a railroad carrier certain information compiled or collected for a safety risk reduction program required by FRA. 49 U.S.C. 20119(a). In conducting this study, FRA is required to solicit input from railroads, railroad non-profit employee labor organizations, railroad accident victims and their families, and the general public.
        The Secretary has delegated the responsibility to carry out this provision to the Administrator of FRA. 49 CFR 1.49(oo). In accordance with section 109 of the RSIA, FRA is therefore issuing this notice to solicit public comments on whether it is in the public interest to protect railroad risk reduction information from production and use in litigation. Once the mandated study is completed, FRA may, if it is in the public interest, prescribe a rule to address the results of the study. Any such final rule would not become effective until one year after its adoption.

        Section 109 of the RSIA specifically refers to public safety as a component of the public interest to be evaluated in the study. Comments received by FRA in response to its advance notice of proposed rulemaking (ANPRM) on a risk reduction program indicate that railroads are reluctant to participate in the development of a statutorily mandated risk reduction program rule and to provide comprehensive risk analyses that might be used against them in litigation. See 49 U.S.C. 20156 and 75 FR 76345 (December 8, 2010), Docket No. FRA-2009-0038. The purpose of shielding sensitive risk information from production in private litigation would be to encourage a railroad to describe its safety vulnerabilities, including its security vulnerabilities, and the mitigation measures it has identified with which it will address those risks, in documents that are not simply recitations of platitudes or pamphlets suitable for public relations campaigns but instead serious, comprehensive, and in-depth analyses. In other words, because railroads have indicated that they would be reluctant to produce comprehensive risk reduction analyses if they may be released in response to discovery requests or used in litigation, safety may be enhanced by prohibiting their release.
        In addition to the public interest in railroad safety, section 109 of the RSIA also mentions specifically the legal rights and interests of persons injured in railroad accidents. There are numerous lawsuits each year against railroads that involve matters such as passenger train accidents, rail-highway grade crossing accidents, and railroad employee injuries. If the risk reduction information that would be generated and collected by the railroads under FRA's risk reduction programs were protected from discovery and use in these types of private lawsuits, another important question is whether private litigants would be disadvantaged by that protection.
        Accordingly, FRA is soliciting comments on the following issues:
        • Whether and how railroad safety and railroad risk reduction programs would be impacted if risk reduction information collected for these programs were discoverable and could be used in litigation; and
        • Whether and how the legal rights of persons injured in railroad accidents would be impacted if railroad risk reduction program information were protected from discovery and use in litigation.
        These specific questions are not intended to limit the comments; if there are other issues applicable to the protection of railroad risk information from use in litigation that commenters believe should be addressed, FRA invites a discussion of those issues.
        Once the comment period has closed, FRA will evaluate, digest and summarize the comments. The public comments will then be used as part of a final study report to fulfill the requirements of 49 U.S.C. 20119 in determining whether it is in the public interest to protect railroad risk reduction information from discovery and use in litigation. If, based on the final study report, FRA were to conclude that it would be in the overall public interest to protect such information, FRA would then prepare and issue a notice of proposed rulemaking requesting public comment on draft regulations regarding limitations on the use of railroad risk information in litigation. The final study report will be made available to the public.
        Supplemental Materials
        To assist commenters in evaluating and discussing the issues at hand, FRA will place several items in the public docket for review.
        First, FRA will put in the docket copies of the applicable statutes relating to the establishment of railroad risk reduction programs, the statutory protection of railroad risk reduction information from FOIA, and the statutory requirement for the study on the protection of railroad risk reduction information from discovery and use in litigation.

        Second, FRA will put in the docket a copy of a report (produced by FRA's contractor for the study) that discusses existing Federal government programs, both within and outside of DOT, that protect similar types of risk information from use in litigation, and the mechanisms by which that information is protected. The report provides an overview of the legal means by which certain types of information provided to the Federal government are protected from disclosure. Part II of the report identifies certain existing legal principles applicable to disclosure of information held by the Federal government, focusing on FOIA and the discovery process in Federal and State court litigation. Part III summarizes the RSIA's statutory requirements regarding the establishment of risk reduction programs, and summarizes FRA's actions to date to implement the RSIA's requirements. Parts IV and V provide an overview of a number of statutes and regulations that limit access to information submitted to DOT and other Federal government agencies. Within each Part, the report describes programs under which disclosure of safety-related information has been specifically limited by statute or regulation. The report also discusses programs that provide various degrees of protection for certain types of non-safety-related information.
        Regulatory Notices

          Privacy Act: Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70, pages 19477-78) or online at http://www.dot.gov/privacy.html.

          Issued in Washington, DC, on May 3, 2011.
          Joseph C. Szabo,
          Administrator, Federal Railroad Administration.

      [FR Doc. 2011-11141 Filed 5-6-11; 8:45 am]
      BILLING CODE 4910-06-P