        POSTAL REGULATORY COMMISSION
        39 CFR Part 3010
        [Docket No. RM2016-6; Order No. 3827]
        Motions Concerning Mail Preparation Changes

          AGENCY:
          Postal Regulatory Commission.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Commission is noticing the reinstatement of a proposed rulemaking. This notice informs the public of the docket's reinstatement, invites public comment, and takes other administrative steps.

          DATES:

            Comments are due on or before May 1, 2017.

          ADDRESSES:

          Submit comments electronically via the Commission's Filing Online system at http://www.prc.gov. Those who cannot submit comments electronically should contact the person identified in the FOR FURTHER INFORMATION CONTACT section by telephone for advice on filing alternatives.

          FOR FURTHER INFORMATION CONTACT:
          David A. Trissell, General Counsel, at 202-789-6820.

        SUPPLEMENTARY INFORMATION:

        Table of Contents

          I. Introduction
          II. Comments on Initial NPR
          III. Revised Proposed Rule
          IV. Comments Requested

        I. Introduction
        On January 22, 2016, the Commission published a notice of proposed rulemaking (initial NPR) which proposed procedural rules for motions concerning mail preparation changes that require compliance with the price cap rules.1
           The initial NPR was issued in conjunction with the Commission's order in Docket No. R2013-10R setting forth a standard to determine when mail preparation changes require compliance with § 3010.23(d)(2).2
           In the initial NPR, the Commission explained that the Postal Service has the affirmative burden to determine whether a mail preparation change requires compliance with § 3010.23(d)(2) under the Commission's standard in Order No. 3047.3
           The initial NPR proposed a procedural rule to permit interested parties to file a motion with the Commission where the Postal Service fails to recognize or account for a mail preparation change that has a rate effect under § 3010.23(d)(2).

            1 The initial NPR was published in the Federal Register on February 1, 2016. See 81 FR 5085 (Feb. 1, 2016).

            2 Order No. 3048, Notice of Proposed Rulemaking on Motions Concerning Mail Preparation Changes, January 22, 2016. The initial NPR was held in abeyance pending the Commission's resolution of the Postal Service's motion for reconsideration of Order No. 3047. See Order No. 3096, Order Holding Rulemaking in Abeyance, February 23, 2016. It was reinstated on July 27, 2016, and comments were received on September 2, 2016. See Notice Reinstating Rulemaking, July 27, 2016.

            3 Docket No. R2013-10R, Order Resolving Issues on Remand, January 22, 2016 (Order No. 3047).

        Specifically, the initial proposed rule § 3001.21(d) of this chapter required interested parties to file a motion with the Commission upon actual or constructive notice of a mail preparation change that had a rate effect requiring compliance with § 3010.23(d)(2). It also proposed a 30-day timeframe within which interested parties could file a motion concerning a mail preparation change, after which the Commission would either institute a proceeding or consider the motion within an ongoing matter.
        In response to comments received on the initial NPR, the Commission is issuing this revised notice of proposed rulemaking (revised NPR) that: (1) Withdraws the proposed procedural rule under § 3001.21(d) of this chapter for motions concerning mail preparation changes; and (2) requires the Postal Service to publish all mail preparation changes in a publicly-available single source and affirmatively designate whether or not a mail preparation change requires compliance with § 3010.23(d)(2). The revised NPR specifies that, if raised by the Commission or challenged by a mailer, the Postal Service must demonstrate by a preponderance of the evidence that a change does not require compliance with § 3010.23(d)(2). The revised NPR narrows the scope of the initial proposed rule and provides an opportunity for public comment on this new proposed approach to ensure that the Postal Service properly accounts for the rate effects of mail preparation changes under § 3010.23(d)(2) in accordance with the Commission's standard articulated in Order No. 3047.
        II. Comments on Initial NPR

        The Commission received comments in response to the initial NPR, of which three were from the mailing industry, one was from the Public Representative, and one was from the Postal Service. Most commenters do not oppose the proposed rule, but raise questions about whether it impacts the Commission's authority and responsibility to independently review mail preparation changes for compliance with the price cap rules, or whether mailers could raise issues concerning mail preparation changes in other proceedings before the Commission. Commenters provide input generally on the following issues: (1) The timing provisions and effect on the Commission's independent authority; (2) the multiple sources used by the Postal Service to provide notice of mail preparation changes; (3) the Postal Service's affirmative statement of whether a mail preparation change has a rate impact; and (4) the standard of proof/evidentiary burden.
        A. Comments on the Timing Provisions and Effect on the Commission's Independent Authority
        A major area of concern raised by the commenters is the proposed rule's effect on the Commission's independent authority to review mail preparation changes for price cap compliance. Commenters raise questions about the rule's effect on the right to use existing procedures available in rate, annual compliance, and complaint proceedings to challenge the Postal Service's compliance with the price cap.
        PostCom raises numerous issues with the proposed 30-day time limit and notice provisions set forth in the proposed rule.4

           PostCom notes that, absent a waiver of the 30-day timeframe in certain circumstances, the 30-day requirement for filing motions conflicts with the Commission's price cap authority and responsibilities under 39 U.S.C. 3662 to hear complaints. PostCom Comments at 5-9. PostCom contends that, although it makes sense to provide mailers with a set procedure to raise issues with mail preparation changes, the Commission “should review the Postal Service's mail preparation changes and act independently if it determines that a change may result in prices in excess of the cap.” Id. at 8. PostCom submits that the 30-day window for filing motions potentially conflicts with the complaint procedures under 39 U.S.C. 3662(a) and contends that the Commission should not foreclose the ability of parties to utilize the complaint process which ensures “that violations of the price cap that are not immediately apparent can still be challenged.” Id. at 9.

            4 Comments of the Association for Postal Commerce, September 2, 2016 (PostCom Comments).

        Valpak states that the proposed rule will not fulfill the goal of ensuring that the Postal Service properly accounts for the rate effects of mail preparation changes under the Commission's price cap rules.5

           Valpak views the 30-day timeframe and the potential foreclosure of “any other opportunity or method of raising such an issue in another forum or at a later time” as conflicting with the stated purpose of the rule. Valpak Comments at 2. Valpak notes that the structure of the proposed rule could be used by the Postal Service to argue that the “other avenues to request that the Commission require Postal Service compliance to the price cap rules, including filing comments in pricing dockets and annual compliance reviews, as well as filing a complaint” would be foreclosed if an interested party fails to file a motion under the proposed rule. Id. at 3. Valpak requests the Commission clarify that the proposed rule was not intended to be the exclusive remedy for issues regarding price cap compliance of mail preparation requirement changes. Id.

            5 Comments of Valpak Direct Marketing Systems, Inc. and the Valpak Franchise Association, Inc. on Proposed Rule on Motions Concerning Mail Preparation Changes, September 2, 2016, at 1-2 (Valpak Comments).

        The National Postal Policy Council, the National Association of Presort Mailers, and the Association for Mail Electronic Enhancement (Joint Commenters) submit that the proposed rule should not be the exclusive means to raise the issue of price cap compliance for mail preparation requirements as a procedural rule “cannot substitute for the Commission's and Postal Service's legal responsibilities to ensure that rates for market-dominant products comply with the price cap restrictions established by the Congress.” 6

           The Joint Commenters submit that the proposed rule “cannot shift to mailers the burden of proving that a mailing preparation change constitutes a classification change with cap implications merely by creating a procedural means of raising the issue.” Joint Comments at 12-13. Further, the Joint Commenters contend that a 30-day time period is insufficient to recognize the price cap implication of certain mail preparation changes and also prepare and file a motion within that timeframe. Id. at 7-8.

            6 Comments of the National Postal Policy Council, the National Association of Presort Mailers, and the Association for Mail Electronic Enhancement, September 2, 2016, at 3 (Joint Comments).

        The Public Representative questions the utility of a time limit on motions concerning mail preparation changes where such changes are made effective immediately or a short time after notice.7
           Additionally, he questions whether a time limit on filing motions would mean that the Postal Service would be able to potentially violate the price cap if a motion was untimely. PR Comments at 10. His main concern is that the proposed rule leaves open a gap in price cap compliance review, where

            7 Public Representatives Comments, September 2, 2016, at 10 (PR Comments).

          a rate impact resulting from [mail preparation] changes would not necessarily be discovered if the Postal Service is required only to notify the Commission when it finds deletion or redefinition will occur and files for a rate change, or where an interested person recognizes a potential rate change and is willing to undertake the effort to file a motion with the Commission.

          Id. at 8. He concludes that the Commission “should not abdicate its responsibility to administer the price cap rules by not ensuring consideration of whether rate cells are effectively deleted or redefined by such changes, whether noticed in the DMM or elsewhere.” Id. at 7.
        The Postal Service submits that the proposed rule should include a deadline for resolving motions, in addition to the 30-day timeframe for filing motions, as it seeks to know the “outcome of a mail-preparation motion before going forward with its pricing plans.” 8
           It proposes that the Commission be required to resolve any motions concerning mail preparation changes within 60 calendar days of their filing. Postal Service Comments at 8.

            8 United States Postal Service Comments on Proposed Rules for Motions Concerning Mail Preparation Changes, September 2, 2016, at 7-8 (Postal Service Comments).

        B. Comments on the Multiple Sources Used by the Postal Service To Provide Notice of Mail Preparation Changes
        In addition to issues with setting a 30-day timeframe for motions concerning mail preparation requirements, commenters submit that it is difficult to monitor the multiple sources used by the Postal Service to provide notice of mail preparation changes. Numerous commenters request that the Commission direct the Postal Service to identify a publication where all mail preparation changes will be published. Commenters submit that this requirement would allow mailers and the Commission to more easily monitor mail preparation changes for price cap compliance.

        PostCom asserts that the multiple sources used by the Postal Service to publish mail preparation changes, changes between draft and final mail preparation changes, and informal communications about proposed changes make it difficult to determine what would trigger the 30-day timeframe for motions under the proposed rule. PostCom Comments at 2-4. As a result of these difficulties, PostCom proposes directing “the Postal Service to identify a publication in which all mail preparation changes will be published.” Id. at 5. The Joint Commenters also submit that the Postal Service's practice of publishing mail preparation changes in multiple, overlapping sources, “has made it harder for mailers to know the current (or future) rules and, by extension, even more difficult to know whether the real effects of mail preparation changes affect the price cap.” Joint Comments at 5. The Public Representative also supports requiring the Postal Service to file notice of mail preparation changes in a single source. PR Comments at 6-7. He submits that, because the changes are not published in a single source, “the Commission is not in a position to review the effects of each mail preparation change” and this creates a gap in regulatory coverage. Id.

        C. Comments on the Postal Service's Affirmative Statement of Whether a Mail Preparation Change Has a Rate Impact
        A third issue raised by commenters is the utility of the proposed rule's requirement that the Postal Service only designate where mail preparation changes have a rate impact. PostCom submits that the Postal Service should provide an affirmative statement of no price impact, providing clarity for mailers and no additional burden on the Postal Service in light of their affirmative duty to make the initial determination. PostCom Comments at 7. The Public Representative contends that the proposed rule does not include a mechanism to ensure that the Postal Service will comply with its burden to review mail preparation changes for rate impacts and submits that the Postal Service should be required to affirmatively state whether a mail preparation change has a rate impact for every change. PR Comments at 6-8. The Joint Commenters submit that the Postal Service should also provide information concerning the effect of the change on rate categories and cells, numbers of mailpieces affected by the change, an affirmative statement of whether or not the change has a rate effect, and statement of why the change “will or will not constitute a classification change under the standard adopted in Order No. 3047 as affirmed in Order No. 3441.” Joint Comments at 8-11.
        D. Comments on the Standard of Proof/Evidentiary Burden
        Commenters also submit questions regarding the evidentiary record and standard of proof that would be required for motions concerning mail preparation requirements and whether it would differ from existing procedures.

        The Postal Service requests additional discovery procedures that would “allow for the development of an evidentiary record” under the proposed rule. Postal Service Comments at 4. First, it requests a requirement that mailers offer proof of costs and operational impact when filing a motion challenging the price cap impact of a mail preparation change. Id. at 5. Second, it submits that the proposed rule should include various discovery procedures to assist the Commission and the Postal Service “with evaluating whether the moving party has met its burden of demonstrating that the change imposes costs and burdens significant enough to require compliance with the price cap rules.” Id. at 6. In addition, the Postal Service suggests a meet and confer requirement prior to any motion practice over mail preparation changes under the proposed rule. Id. at 9.

        PostCom submits that although the proposed rule “correctly declines to specify what information a party must provide in support of its motion, as the type of information available will differ in individual circumstances,” it fails to set forth the standard of review the Commission will apply to determine whether a motion warrants further procedures. PostCom Comments at 6. PostCom suggests that the Commission apply a “standard similar to that employed in a motion to dismiss and determine whether the mail preparation change would have a price impact if the consequences alleged by the movant were to occur.” Id.

        III. Revised Proposed Rule
        The revised proposed rule would require the Postal Service to affirmatively designate whether or not a mail preparation requirement change implicates the price cap in a single, publicly available source. Further, if challenged by a mailer or raised by the Commission, the Postal Service would have to demonstrate by a preponderance of the evidence that a mail preparation change does not require compliance with § 3010.23(d)(2).
        As numerous commenters raised questions regarding standard of proof for issues regarding compliance with § 3010.23(d)(2) for mail preparation changes, the Commission clarifies that it is the Postal Service's burden to demonstrate, by a preponderance of the evidence, that a specific mail preparation change does not implicate the price cap. This burden is consistent with the Postal Service's obligation to evaluate changes to mail preparation requirements for compliance with § 3010.23(d)(2) in accordance with the Commission's standard set forth in Order No. 3047. For the deletion prong of the Commission's standard, the inquiry is limited to whether the mail preparation change causes the elimination of a rate, or the functional equivalent of an elimination of a rate.9
           For the redefinition prong, the Postal Service's showing does not require detailed analysis of mailer cost for a mail preparation change because the significance prong of the Commission's standard only requires a determination of whether the mail preparation change is large in magnitude. Order No. 3441 at 31.

            9 Order No. 3047 at 15-16; Docket No. R2013-10R, Order Resolving Motion for Reconsideration of Commission Order No. 3047, at 31, July 20, 2016 (Order No. 3441).

        As with the majority of proceedings before the Commission, the specific evidence presented will be largely fact dependent subject to the individual circumstances of the matter and the Postal Service's showing will be evaluated based on the evidence available at the time. Accordingly, in any proceeding where the price cap impact of a mail preparation change is being determined or challenged, the Postal Service must be able to show that the greater weight of the available evidence favors a finding that the change does not implicate § 3010.23(d)(2). In addition, as the Postal Service is in the best position to gather information on mailer costs and operational adjustments, in light of its abundant contact and consultation with the mailing industry, the Postal Service may submit such evidence and seek a determination from the Commission using the procedures set forth under § 3001.21 of this chapter prior to implementation of the change.
        Under the revised rule, the Postal Service may designate a single source of its choosing, so long as the source is published and publicly available. The Postal Service shall file notice with the Commission after it designates the source it will use. Proposed § 3010.23(d)(5) also directs the Postal Service to affirmatively state in the single source publication whether or not the change requires compliance with § 3010.23(d)(2). This flows from the Postal Service's obligation to properly evaluate its mail preparation changes for compliance with the price cap rules.

        Single source publication will allow the Commission to independently review mail preparation changes and will, in most circumstances, eliminate the need to have parties initiate motions to bring such changes to the Commission's attention. Accordingly, the revised proposed rule eliminates the separate procedural component for motions concerning mail preparation changes. This change was triggered by commenter concerns over a potentially duplicative procedural rule that would conflict with the Commission's existing procedures and authority to review mail preparation changes for compliance with the price cap rules. The Commission submits that the existing procedures available to interested parties should be sufficient to raise issues of price cap compliance for mail preparation changes. Mailers may notify the Commission using the general motion procedures set forth in § 3001.21 of this chapter if they disagree with the Postal Service's determination of compliance with § 3010.23(d)(2). The rules under § 3001.21 of this chapter require motions to “set forth with particularity the ruling or relief sought, the grounds and basis therefor, and the statutory or other authority relied upon . . .” Accordingly, any motions filed under § 3001.21 of this chapter concerning mail preparation changes shall provide all information the mailers have to rebut the Postal Service's determination, consistent with the Commission's standard set forth in Order No. 3047. The Commission shall weigh the available evidence and provide a determination as soon as practicable based on a preponderance of the evidence standard.
        The initial NPR was intended to create a streamlined process by which mailers could submit, and the Commission could review, challenges to the Postal Service's failure to designate a mail preparation requirement change as having a rate effect under § 3010.23(d)(2). However, as submitted by the commenters, the Commission's rules already provide numerous avenues for interested parties to raise issues relating to price cap compliance of mail preparation requirement changes, making an additional procedure redundant. The initial NPR would not foreclose any party from utilizing existing procedures and, as informed by the comments, would not be effective in practice as originally envisioned by the Commission. Accordingly, the Commission revises the proposed rule to better target the specific goal of ensuring that the Postal Service properly accounts for mail preparation requirement changes under § 3010.23(d)(2).
        IV. Comments Requested
        Interested persons are invited to provide written comments concerning the proposed rule. The Commission seeks comments on the revised rule, specifically the utility of (1) requiring the Postal Service to publish all mail preparation changes in a single source with an affirmative designation of whether or not the changes require price cap compliance; and (2) the elimination of a separate procedural rule for motions concerning mail preparation requirements.

        Comments are due no later than 30 days after the date of publication of this notice in the Federal Register. All comments and suggestions received will be available for review on the Commission's Web site, http://www.prc.gov.

          It is ordered:

        1. Interested persons may submit comments no later than 30 days from the date of the publication of this notice in the Federal Register.

        2. The Secretary shall arrange for publication of this order in the Federal Register.

          By the Commission.
          Stacy L. Ruble,
          Secretary.

          List of Subjects in 39 CFR Part 3010
          Administrative practice and procedure, Postal Service.

        For the reasons discussed in the preamble, the Commission proposes to amend chapter III of title 39 of the Code of Federal Regulations as follows:

          PART 3010—REGULATION OF RATES FOR MARKET DOMINANT PRODUCTS

        1. The authority citation of part 3010 continues to read as follows:

          Authority:
           39 U.S.C. 503; 3622.

        2. Amend § 3010.23 by adding paragraph (d)(5) to read as follows:

          § 3010.23
           Calculation of percentage change in rates.

          (d) * * *
          (5) Procedures for mail preparation changes. The Postal Service shall provide published notice of all mail preparation changes in a single, publicly available source. The Postal Service shall file notice with the Commission of the source it will use to provide published notice of all mail preparation changes. When providing notice of a mail preparation change, the Postal Service shall affirmatively state whether or not the change requires compliance with paragraph (d)(2) of this section. If raised by the Commission or challenged by a mailer, the Postal Service must demonstrate, by a preponderance of the evidence, that a mail preparation change does not require compliance with paragraph (d)(2) of this section in any proceeding where compliance is at issue.

      [FR Doc. 2017-06355 Filed 3-30-17; 8:45 am]
       BILLING CODE 7710-FW-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [MB Docket No. 21-178; RM-11905; DA 21-460; FR ID 23108]
        Television Broadcasting Services New Orleans, Louisiana

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          In this document, the Federal Communications Commission (Commission) has before it a petition for rulemaking filed by The Greater New Orleans Educational Television Foundation (Petitioner), the licensee of noncommercial educational PBS member station WYES-TV, channel *11, New Orleans, Louisiana. The Petitioner requests the substitution of channel *28 for channel *11 at New Orleans, Louisiana in the DTV Table of Allotments.

          DATES:
          Comments must be filed on or before June 2, 2021 and reply comments on or before June 17, 2021.

          ADDRESSES:
          You may submit comments, identified by MB Docket No. 21-178, by any of the following methods:
          • Federal Communications Commission's Website: http://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.
          • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.

          For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.
          In addition to filing comments with the FCC, interested parties should serve counsel for the Petitioner as follows: Margaret L. Miller, Esq., Gray Miller Persh, LLP, 2233 Wisconsin Avenue NW, Washington DC 20007.

          FOR FURTHER INFORMATION CONTACT:

          Joyce Bernstein, Media Bureau, at (202) 418-1647; or Joyce Bernstein, Media Bureau, at Joyce.Bernstein@fcc.gov.

        SUPPLEMENTARY INFORMATION:

        This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 21-178; RM-11905; DA 21-460, adopted and released on April 21, 2021. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

        In support of its channel substitution request, the Petitioner states that WYES-TV is the only station licensed to New Orleans operating on a VHF channel, and moving to a UHF channel would improve viewers' access to WYES-TV's PBS and other public television programming by improving indoor reception and resolving VHF reception issues. Petitioner further states that the Commission has recognized that VHF channels have certain propagation characteristics which may cause reception issues for some viewers, including allowing undesired signals and noise at relatively further distances, and the tendency of nearby electrical devices to emit noise in the VHF band that can cause interference to stations on VHF channels. In addition, the Petitioner submitted an analysis, using the Commission's TVStudy software analysis program, demonstrating that it will continue to serve all of the population located within the licensed channel *11 contour.

        Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
        • Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

        • Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
        • Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
        • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

        • Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.

        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 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, 5 U.S.C. 601-612, do not apply to this proceeding.
        Members of the public should note that all ex parte contacts are prohibited from the time a Notice of Proposed Rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in § 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a).
        See §§ 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

          List of Subjects in 47 CFR Part 73
          Television.

          Federal Communications Commission.
          Thomas Horan,
          Chief of Staff, Media Bureau.

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

          PART 73—RADIO BROADCAST SERVICE

        1. The authority citation for part 73 continues to read as follows:

          Authority:
           47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, 339.

        2. In § 73.622 paragraph (i), amend the Post-Transition Table of DTV Allotments under Louisiana by revising the entry for New Orleans to read as follows:

          § 73.622
          Digital television table of allotments.

          (i) * * *

              Community
              Channel No.

              *    *    *    *    *

                Louisiana

              *    *    *    *    *

              New Orleans
              15, 21, 26, * 28, 29, * 31, 36, 43, 50.

              *    *    *    *    *

      [FR Doc. 2021-09030 Filed 4-30-21; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 600 and 648
        [I.D. 032300D]
        Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permit (EFP) to Conduct Experimental Fishing

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

          ACTION:
          Notification of EFP proposal to conduct experimental fishing; request for comments.

          SUMMARY:
          NMFS announces that the Administrator, Northeast Region, NMFS (Regional Administrator), has made a preliminary determination to issue an EFP to that would allow a single vessel to conduct operations otherwise restricted by regulations governing the fisheries of the Northeastern United States. Mount Desert Oceanarium of Southwest Harbor, Maine, submitted a complete application for an EFP, which warrants further consideration. The experimental fishery would involve fishing for, retention of, and landing of small numbers of regulated multispecies and various unmanaged species for the purpose of public education. Regulations issued under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on the proposed EFP to conduct experimental fishing.

          DATES:

          Comments on this notification must be received at the appropriate address or fax number (See ADDRESSES) on or before 5:00 p.m., local time, on April 24, 2000.

          ADDRESSES:
          Written comments should be sent to Patricia Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1 Blackburn Drive, Gloucester, MA 01930. Mark on the outside of the envelope “Comments on Proposed EFP Proposal.” Comments also may be sent via facsimile (fax) to (978) 281-9135. Comments will not be accepted if submitted via e-mail or Internet.

          FOR FURTHER INFORMATION CONTACT:
          Tom Warren, Fishery Management Specialist, 978-281-9347.

        SUPPLEMENTARY INFORMATION:
        The Mount Desert Oceanarium, of Southwest Harbor, Maine, submitted an application for an EFP on February 15, 2000, to collect various species of animals for public education. A single chartered vessel will use a modified 50-ft (15.2-m) shrimp trawl to collect marine animals on 3 days during the time period from May 1, 2000, to May 20, 2000. The animals will be brought to shore, maintained in tanks for public display, and most will be returned to the sea in October 2000. Collection will be from the Small Mesh Northern Shrimp Fishery Exemption Area, off Maine. If the target species cannot be located in this area, collection will be farther east or southeast from the Gulf of Maine/Georges Bank Regulated Mesh Area. The target species will include dabs, blackback and yellowtail flounder, plaice, halibut, monkfish, eel pouts, sculpins, sea ravens, cod, wolfish, spiny dogfish, little skate, barndoor skate, and unidentified species of the Phyla Arthropoda and Echinodermata. The vessel will collect a maximum of six individuals per species, juvenile and adult, with the exception of halibut, which will be limited to a total of one individual, with a minimum total length of 36 inches (91.4 cm).
        EFPs are required to exempt the vessel from the possession prohibition, mesh size, minimum fish size, and days-at-sea restrictions of the Northeast Multispecies Fishery Management Plan.

          16 U.S.C. 1801
          et
          seq.

          Dated: March 31, 2000.
          Bruce C. Morehead,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 00-8668 Filed 4-6-00; 8:45 am]
      BILLING CODE 3510-22-F


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AG26
        Endangered and Threatened Wildlife and Plants; Proposed Establishment of a Nonessential Experimental Population of Black-Footed Ferrets in North-Central South Dakota

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; availability of supplementary information.

          SUMMARY:

          We, the Fish and Wildlife Service (Service), in cooperation with the Cheyenne River Sioux Tribe, the U.S. Forest Service, and the Bureau of Indian Affairs, propose to reintroduce black-footed ferrets (Mustela nigripes) into north-central South Dakota on the Cheyenne River Sioux Reservation. We also announce the availability of the draft environmental assessment for this action. The purposes of this reintroduction are to implement actions required for recovery of the species and to evaluate and improve reintroduction techniques and management applications. If this rule is finalized, we will release surplus captive-raised black-footed ferrets in 2000, if possible, and release additional animals annually for several years thereafter until we establish a self-sustaining population. If this reintroduction program is successful, a wild population could be established in 5 years or less. The Cheyenne River Sioux Reservation population would be established as a nonessential experimental population in accordance with section 10(j) of the Endangered Species Act of 1973, as amended. We would manage this population under provisions of this proposed special rule.

          DATES:
          Comments on both the proposed rule and the draft environmental assessment must be received by August 17, 2000.

          ADDRESSES:
          Send your comments on this proposed rule or on the draft environmental assessment to Pete Gober, Field Supervisor, or Scott Larson, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service, Ecological Services Office, 420 South Garfield Avenue, Suite 400, Pierre, South Dakota 57501 or telephone 605/224-8693. We request that you identify whether you are commenting on the proposed rule or draft environmental assessment. Comments received will be available for public inspection, by appointment, during normal business hours at the above address. You may obtain copies of the draft environmental assessment from the above address or by calling 605/224-8693.

          FOR FURTHER INFORMATION CONTACT:
          Mike Lockhart at 307/721-8805.

        SUPPLEMENTARY INFORMATION:
        Background
        1. Legislative: Congress made significant changes to the Endangered Species Act of 1973 (Act), as amended, in 1984 with the addition of section 10(j) to allow for the designation of specific populations of listed species as “experimental populations.” Previously, we had authority to reintroduce populations into unoccupied portions of a listed species' historical range when doing so would foster the conservation and recovery of the species. However, local citizens often opposed these reintroductions because they were concerned about the placement of restrictions and prohibitions on Federal and private activities. Under section 10(j), the Secretary of the Department of the Interior can designate reintroduced populations established outside the species' current range but within its historical range as “experimental.” Based on the best available information, the Secretary will determine whether such populations are “essential,” or “nonessential,” to the continued existence of the species. Regulatory restrictions are considerably reduced under a nonessential experimental population (NEP) designation.
        Species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 and the requirements of section 7. Section 9 of the Act prohibits the take of a listed species. “Take” is defined by the Act as harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to engage in any such conduct. Section 7 of the Act outlines the procedures for Federal interagency cooperation to conserve federally listed species and designated critical habitats. It mandates all Federal agencies to determine how to use their existing authorities to further the purposes of the Act to aid in recovering listed species. It also states that Federal agencies will, in consultation with the Service, insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the Act does not affect activities undertaken on private lands unless they are authorized, funded, or carried out by a Federal agency.
        For the purposes of section 9 of the Act, a population designated as experimental is treated as threatened regardless of the species' designation elsewhere in its range. Through section 4(d) of the Act, threatened designation allows us greater discretion in devising management programs and special regulations for such a population. Section 4(d) of the Act allows us to adopt whatever regulations are necessary to provide for the conservation of a threatened species. In these situations, the general regulations applying most section 9 prohibitions to threatened species do not apply to that species, and the special 4(d) rule contains the prohibitions and exemptions necessary and appropriate to conserve that species. Regulations issued under section 4(d) for NEP's are usually more compatible with routine human activities in the reintroduction area.
        For the purposes of section 7 of the Act, we treat NEP's as if the population is proposed for listing, but we treat NEP's as threatened species when they are located within a National Wildlife Refuge or National Park. When NEP's occur outside of such refuges or parks, Federal agencies are required to confer with the Service, in accordance with section 7(a)(4) of the Act, on their actions that are likely to jeopardize the continued existence of a proposed species. The results of a conference are advisory in nature, and agencies are not restricted from committing resources to projects as a result of a conference.
        Individuals used to establish an experimental population may come from a donor population, provided their removal is not likely to jeopardize the continued existence of the species, and appropriate permits are issued in accordance with our regulations (50 CFR 17.22) prior to their removal. In this case, the donor ferret population is a captive-bred population, which was propagated with the intention of reestablishing wild populations to achieve recovery goals. In addition, wild progeny from other NEP areas (and which also originated from captive sources) may be directly translocated to the proposed reintroduction site.
        2. Biological: The black-footed ferret is a member of the Mustelid or weasel family; has a black facemask, black legs, and a black-tipped tail; is nearly 60 centimeters (2 feet) in length; and weighs up to 1.1 kilograms (2.5 pounds). It is the only ferret species native to North America. The historical range of the species, based on specimen collections, extends over 12 western States (Arizona, Colorado, Kansas, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah, and Wyoming) and the Canadian Provinces of Alberta and Saskatchewan. Prehistoric evidence indicates that ferrets once occurred from the Yukon Territory in Canada to Mexico and Texas (Anderson et al. 1986).

        Black-footed ferrets depend almost exclusively on prairie dog colonies for food, shelter, and denning (Henderson et al. 1969, Forrest et al. 1985). The range of the ferret coincides with that of prairie dogs (Anderson et al. 1986), and ferrets with young have been documented only in the vicinity of active prairie dog colonies. Historically, black-footed ferrets have been reported in association with black-tailed prairie dog (Cynomys ludovicianus), white-tailed prairie dog (Cynomys leucurus), and Gunnison's prairie dog (Cynomys gunnisoni) towns (Anderson et al. 1986).
        Significant reductions in both prairie dog numbers and distribution occurred during the last century due to widespread poisoning of prairie dogs, the conversion of native prairie to farmland, and outbreaks of sylvatic plague, particularly in the southern portions of several species of prairie dog ranges in North America. Sylvatic plague arrived from Asia in approximately 1900. It is an exotic disease foreign to the evolutionary history of prairie dogs, who have little or no immunity to it. Black-footed ferrets are also highly susceptible to sylvatic plague. This severe reduction in the availability of the ferret's principal prey species, in combination with other factors such as secondary poisoning from prairie dog toxicants, resulted in the near extinction of the black-footed ferret in the wild.
        In 1974, a remnant wild population of ferrets in South Dakota, originally discovered in 1964, abruptly disappeared. Afterwards, we believed the species to be extinct. However, in 1981, a small population of ferrets was discovered near Meeteetse, Wyoming. In 1985-1986, the Meeteetse population declined to only 18 animals due to outbreaks of sylvatic plague and canine distemper. Following this critical decline, the remaining individuals were taken into captivity in 1986-1987 to serve as founders for a captive propagation program. Since that time, captive breeding efforts have been highly successful and have facilitated ferret reintroductions in several areas of formerly occupied range. Today, the captive population of juveniles and adults fluctuates annually between 300 and 600 animals depending on the time of year, yearly reproductive success, and annual mortalities. The captive ferret population is currently divided among six captive breeding facilities throughout the United States and Canada, with a small number on display for educational purposes at several facilities. Also, 65 to 90 ferrets are located at several field-based captive breeding sites in Arizona, Colorado, New Mexico, and Montana.
        3. Recovery Goals/Objectives: The recovery plan for the black-footed ferret (U.S. Fish and Wildlife Service 1988) contains the following recovery objectives for reclassification:
        (a) Increasing the captive population of ferrets to 200 breeding adults by 1991 (which has been achieved);
        (b) Establishing a prebreeding population of 1,500 free-ranging breeding adults in 10 or more different populations, with no fewer than 30 breeding adults in each population by the year 2010 (not achieved); and,
        (c) Encouraging the widest possible distribution of reintroduced animals throughout their historical range. Although several reintroduction efforts have occurred throughout the ferret's range, populations may have become self-sufficient at only one site in South Dakota.
        We can reclassify the black-footed ferret to threatened status when the recovery objectives listed above have been achieved, assuming that the mortality rate of established populations remains at or below a rate at which new populations become established or increase. We have been successful in rearing black-footed ferrets in captivity, and in 1997 we reached captive breeding program objectives.

        In 1988, we divided the single captive population into three subpopulations to avoid the possibility of a catastrophic event eliminating the entire captive population (e.g., contagious disease). Additional breeding centers were added later, and presently there are six separate subpopulations in captivity. Current recovery priorities emphasize the reintroduction of animals back into the wild from the captive source stock. Surplus individuals produced in captivity are now available for use on reintroduction areas.
        4. Reintroduction Sites: The Service, in cooperation with western State and Federal agencies, Tribal representatives, and conservation groups, evaluates potential black-footed ferret reintroduction sites and has previously initiated ferret reintroduction projects at several sites within the historical range of the black-footed ferret. The first reintroduction project occurred in Wyoming in 1991, and subsequent efforts have taken place in South Dakota and Montana in 1994, in Arizona in 1996, a second effort in Montana in 1997, and in Colorado/Utah in 1999. The Service and the Black-footed Ferret Recovery Implementation Team (composed of 27 State and Federal agencies, Indian Tribes, and conservation organizations) have identified the Cheyenne River Sioux Reservation (Reservation) as a priority black-footed ferret reintroduction site due to its extensive black-tailed prairie dog habitat and the absence of sylvatic plaque.
        (a) Cheyenne River Sioux Reservation Experimental Population Reintroduction Area: The area designated as the Cheyenne River Sioux Reservation, Black-footed Ferret Experimental Population Area (Experimental Population Area) overlays all of Dewey and Ziebach Counties in South Dakota. The boundaries of these Counties are also the boundaries of the Reservation. Within the Experimental Population Area, the proposed primary reintroduction area will be in large black-tailed prairie dog complexes located along the Moreau River. The approximate center of the Experimental Population Area is the town of Eagle Butte, the location of Cheyenne River Sioux Tribal offices. Eagle Butte is approximately 160 kilometers (100 miles) northwest of Pierre, the capital of South Dakota.
        The Experimental Population Area supports two large complexes of black-tailed prairie dog colonies located within the two-county area. These two Counties encompass approximately 1,141,558 hectares (2,820,751 acres). Approximately half or 574,752 hectares (1,420,193 acres) of the Experimental Population Area is Tribal Trust and Allotted lands. The majority of this Tribal Trust and Allotted land, approximately 90 percent or 505,875 hectares (1,250,000 acres), is native rangeland, which is used for grazing.
        Some lands within the Experimental Population Area are owned by private landowners (approximately 50 percent, although much less in the primary reintroduction area). No ferrets will be released on private lands. The Tribe and other Cooperators have agreed that if any ferrets disperse onto private lands they will capture and translocate them to Tribal lands if requested by the landowner or if necessary for the protection of the ferrets.

        Black-footed ferret dispersal to and occupation of areas outside of the Experimental Population Area is unlikely due to the large size of the Experimental Population Area, the absence of suitable nearby habitat (few if any prairie dogs can be found to the south and west), cropland barriers (e.g., expansive cultivation over the northern portion of the Experimental Population Area), and physical barriers (e.g., the Missouri River to the east). The Tribe estimates a total of approximately 8,408 hectares (20,777 acres) of black-tailed prairie dog colonies are potentially available to black-footed ferrets in the Experimental Population Area and could support over 200 ferret families (characterized as an adult female, three kits, and one-half an adult male; i.e., one adult male for every two adult females). Large, contiguous prairie dog colonies and the absence of physical barriers between prairie dog colonies along the Moreau River (the primary ferret release area) should facilitate ferret distribution throughout the Moreau River reintroduction area.
        (b) Primary Reintroduction Areas: In the early 1990s, the Tribe began development of a Prairie Management Plan as a framework for managing the natural resources of 574,752 hectares (1,420,193 acres) of Tribal and Allotted lands within the Reservation boundaries (Cheyenne River Sioux Tribe 1992). The Prairie Management Plan included development of prairie dog and black-footed ferret management strategies. Phase I of the Prairie Management Plan accomplished initial prairie dog surveys along the Moreau River in areas believed to be well-suited for ferret reintroduction. Follow up Phase II surveys confirmed that prairie dog colonies along the Moreau River are highly suitable for ferret releases due to the number and size of prairie dog colonies, the spatial relationships of prairie dog towns to each other, their location on Tribal and Allotted Trust lands, their remoteness, and their distance from human settlements (Cheyenne River Sioux Tribe 1999). Recent surveys revealed 5,739 hectares (14,156 acres) of prairie dog colonies within the Moreau River complex. In addition to the Moreau River prairie dog complex, a secondary black-footed ferret release area was identified to the south in the Southeast Parade Management Area, an area that supports 2,280 hectares (6,621 acres) of black-tailed prairie dog towns. This area requires further research to ensure appropriate conditions exist prior to conducting future reintroductions of black-footed ferrets. The Tribe selected the Moreau River prairie dog complex as the primary ferret reintroduction area because of its location within the historical range of the black-footed ferret, our determination that ferrets are no longer present, the abundance of suitable ferret habitat (lands containing active prairie dog colonies), the extensive amount of land managed by the Tribe, and the area's isolation from human activities.
        The primary reintroduction area within the Experimental Population Area generally includes lands along the Moreau River in Dewey and Ziebach Counties in north-central South Dakota. Extensive ferret surveys were conducted in this area in the 1980s and 1990s, but no evidence of ferrets was found. There are no confirmed records of ferrets occurring within the boundaries of the Experimental Population Area since the early 1960s.
        Black-footed ferrets will be released only if biological conditions are suitable and meet the management framework developed by the Tribe, in cooperation with the Bureau of Indian Affairs, the Service, private landowners, and Federal and State land managers. The Service will reevaluate ferret reintroduction efforts in the Experimental Population Area should any of the following conditions occur:
        (i) Failure to maintain sufficient habitat on specific reintroduction areas to support at least 30 breeding adults after 5 years.
        (ii) Failure to maintain suitable prairie dog habitat that was available on specific reintroduction areas in 1999.
        (iii) A wild ferret population is found within the Experimental Population Area following the initial reintroduction and prior to the first breeding season. The only black-footed ferrets currently occurring in the wild result from reintroductions in Wyoming, Montana, South Dakota, Arizona, and Utah/Colorado. Consequently, the discovery of a black-footed ferret at the proposed experimental population area prior to the reintroduction would confirm the presence of a new population, which would prevent the designation of an experimental population in the area.
        (iv) Discovery of an active case of canine distemper or other disease contagious to black-footed ferrets on or near the reintroduction area prior to the scheduled release.
        (v) Less than 20 captive black-footed ferrets are available for the first release.
        (vi) Funding is not available to implement the reintroduction phase of the project on the Cheyenne River Sioux Reservation.
        (vii) Land ownership changes significantly, or cooperators withdraw from the project.
        All of the above conditions will be based on information routinely collected by us or the Tribe.
        5. Reintroduction procedures: The standard reintroduction protocol calls for the release of 20 or more captive-raised, or wild-translocated black-footed ferrets in the Experimental Population Area in the first year of the program, and 20 or more animals released annually for the next 2 to 4 years. However, if the proposal is finalized, biologists expect to release 50 or more ferrets in the first year and believe a self-sustaining wild population could be established on the Reservation within 5 years. Released ferrets will be excess to the needs of the captive breeding program, and their use will not affect the genetic diversity of the captive ferret population (ferrets used for reintroduction efforts can be replaced through captive breeding). In the future, it may be necessary to interchange ferrets from established, reintroduced populations to enhance the genetic diversity of the population on the Experimental Population Area.
        Recent studies (Biggins et al. 1998, Vargas et al. 1998) have documented the importance of outdoor “preconditioning” experience on captive-reared ferrets prior to release in the wild. Ferrets exposed to natural prairie dog burrows in outdoor pens and natural prey prior to release survive in the wild at significantly higher rates than do cage-reared, non-preconditioned ferrets. The U.S. Forest Service will participate in the reestablishment of ferrets on the Cheyenne River Sioux Reservation by preconditioning captive-raised ferrets in large open-air pens on the Conata Basin District of the Buffalo Gap National Grasslands in southwestern South Dakota. In these pens, young ferrets are exposed to live prairie dogs, burrows, and other natural stimuli. In addition, biologists may translocate up to 25 ferrets born in the wild on the Buffalo Gap National Grasslands to the Reservation (if annual production levels of wild ferrets on Conata Basin are sufficient to allow translocation of excess young).
        The Tribe will develop specific reintroduction plans and submit them in a proposal to the Service as part of an established, annual black-footed ferret allocation process. Ferret reintroduction cooperators submit proposals by mid-March of each year, and the Service makes preliminary allocation decisions (numbers of ferrets provided to specific projects) by May. Proposals submitted to the Service include updated information on habitat, disease, project/ferret status, proposed reintroduction and monitoring methods, and predator management. In this manner, the Service and reintroduction cooperators evaluate the success of prior year efforts and apply current knowledge to various aspects of reintroduction efforts, thereby providing greater assurance of long-range reintroduction success.

        We will transport ferrets to identified reintroduction areas within the Experimental Population Area and release them directly from transport cages into prairie dog holes. Depending on the availability of suitable vaccine, we will vaccinate released animals against certain diseases (especially canine distemper) and take appropriate measures to reduce predation from coyotes, badgers, and raptors, where warranted. All ferrets we release will be marked with passive integrated transponder tags (PIT tags), and we may promote use of radio-telemetry studies to document ferret behavior and movements. Other monitoring will include spotlight surveys, snow tracking surveys, and visual surveillance.
        Since captive-born ferrets are more susceptible to predation, starvation, and environmental conditions than wild animals, up to 90 percent of the released ferrets could die during the first year of release. Mortality is usually highest during the first month following release. In the first year of the program, a realistic goal is to have at least 25 percent of the animals survive the first winter.
        The goal of the Cheyenne River Sioux Reservation reintroduction project is to establish a free-ranging population of at least 30 adults within the Experimental Population Area within 5 years of release. At the release site, population demographics and potential sources of mortality will be monitored on an annual basis (for up to 5 years). We do not intend to change the nonessential designation for this experimental population unless we deem this reintroduction a failure or the black-footed ferret is recovered in the wild.
        6. Status of Reintroduced Population: We determine this reintroduction to be nonessential to the continued existence of the species for the following reasons:
        (a) The captive population (founder population of the species) is protected against the threat of extinction from a single catastrophic event by housing ferrets in six separate subpopulations. As a result, any loss of an experimental population in the wild will not threaten the survival of the species as a whole.
        (b) The primary repository of genetic diversity for the species is 240 adult ferrets maintained in the captive breeding population. Animals selected for reintroduction purposes are surplus to the captive population. Hence, any use of animals for reintroduction efforts will not affect the overall genetic diversity of the species.
        (c) Captive breeding can replace any ferrets lost during this reintroduction attempt. Juvenile ferrets produced in excess of the numbers needed to maintain the captive breeding population are available for reintroduction.
        The proposed reintroduction would be the seventh release of ferrets back into the wild in six experimental population areas. The other experimental populations occur in Wyoming, southwestern South Dakota, north-central Montana (with two separate reintroduction efforts), Arizona, and Colorado/Utah (a single reintroduction area that overlays both States). Reintroductions are necessary to further the recovery of this species. The NEP designation alleviates landowner concerns about possible land use restrictions. This nonessential designation provides a flexible management framework for protecting and recovering black-footed ferrets while ensuring that the daily activities of landowners are unaffected.
        7. Location of Reintroduced Population: Section 10(j) of the Act requires that an experimental population be geographically separate from other wild populations of the same species. Since the mid 1980s, BIA and the Tribe conducted black-footed ferret surveys in the Experimental Population Area. In addition to these surveys, they spent many hours surveying prairie dog colonies at the proposed reintroduction site. No ferrets or ferret sign (skulls, feces, trenches) were located. Therefore, we conclude that wild ferrets are no longer present on the Experimental Population Area, and that this reintroduction will not overlap with any wild population.
        All released ferrets and their offspring are expected to remain in the Experimental Population Area due to the presence of prime habitat (lands occupied by prairie dog colonies) and surrounding geographic barriers. We will capture any ferret that leaves the Experimental Population Area (in an attempt to identify its origin) and will either return it to the release site, translocate it to another site, or place it in captivity. If a ferret leaves the reintroduction area, but remains within the Experimental Population Area, and occupies private property, the landowner can request its removal. Ferrets will remain on private lands only when the landowner does not object to their presence there.

        We will mark all released ferrets and will attempt to determine the source of any unmarked animals found. Any ferret found outside the Experimental Population Area is considered endangered, as provided under the Act. We will undertake efforts to confirm whether any ferret found outside the Experimental Population Area originated from captive stock. If the animal is unrelated to members of this or other experimental populations (i.e., it is from non-captive stock), we will place it in captivity as part of the breeding population to improve the overall genetic diversity of the captive population. Existing contingency plans allow for the capture and retention of up to nine ferrets that are not from any captive stock. In the highly unlikely event that a ferret from captive stock is found outside the Experimental Population Area, we will move the ferret back to habitats that would support the primary population(s) of ferrets.
        8. Management: This reintroduction will be undertaken in cooperation with the Cheyenne River Sioux Tribe, the Bureau of Indian Affairs, and the U.S. Forest Service in accordance with the “Cooperative Management Plan for Black-footed Ferrets, Moreau River or Southeast Parade Reintroduction Areas”—Cheyenne River Sioux Reservation. Copies of the Cooperative Management Plan may be obtained from the Prairie Management Program Coordinator, P.O. Box 590, Eagle Butte, South Dakota 57625. In the future, we will evaluate whether additional black-footed ferret reintroductions are feasible within the Experimental Population Area (over 45,000 total acres of occupied prairie dog habitat exist within the Experimental Population Area). Cooperating agencies and private landowners would be involved in the selection of any additional sites. Management considerations of the proposed reintroduction project include:

        (a) Monitoring: Several monitoring efforts will occur during the first 5 years of the program. We will annually monitor prairie dog distribution and numbers, and test for the occurrence of sylvatic plague. Testing resident carnivores (e.g., coyotes) for canine distemper will begin prior to the first ferret release and continue each year. We will monitor released ferrets and their offspring annually using spotlight surveys, snowtracking, other visual survey techniques, and possibly radio-telemetry on some individuals. The surveys will incorporate methods to monitor breeding success and long-term survival rates.

        Through public outreach programs, we will inform the public and other appropriate State and Federal agencies about the presence of ferrets in the Experimental Population Area and the handling of any sick or injured animals. To meet our responsibilities to treat the Tribe on a Government to Government basis, we will request that the Tribe inform Tribal members of the presence of ferrets on Reservation lands, and the proper handling of any sick or injured ferrets that are found. The Tribe will serve as the primary point of contact to report any injured or dead ferrets. Reports of injured or dead ferrets must also be provided to the Service Field Supervisor (see ADDRESSES section). It is important that we determine the cause of death for any ferret carcass found. Therefore, we request that discovered ferret carcasses not be disturbed, but reported as soon as possible to appropriate Tribal and Service offices.

        (b) Disease: The presence of canine distemper in any mammal on or near the reintroduction site will cause us to reevaluate the reintroduction program. Prior to releasing ferrets, we will establish the presence or absence of canine distemper in the release area by collecting at least 20 coyotes (and possibly other carnivores). Sampled predators will be tested for canine distemper and other diseases.
        We will attempt to limit the spread of distemper by discouraging people from bringing unvaccinated pets into core ferret release areas. Any dead mammal or any unusual behavior observed in animals found within the area should be reported to us. Efforts are under way to develop an effective canine distemper vaccine for black-footed ferrets. Routine sampling for sylvatic plague in prairie dog towns will take place before and during the reintroduction effort, and annually thereafter.
        (c) Genetics: Ferrets selected for reintroduction are excess to the needs of the captive population. Experimental populations of ferrets are usually less genetically diverse than overall captive populations. Selecting and reestablishing breeding ferrets that compensate for any genetic biases in earlier releases can correct this disparity. The ultimate goal is to establish wild ferret populations with the maximum genetic diversity that is possible from founder ferrets. The eventual interchange of ferrets between established populations found elsewhere in the western United States will ensure that genetic diversity is maintained to the maximum extent possible.
        (d) Prairie Dog Management: We will work with the Tribe, affected landowners, and other Federal and State agencies to resolve any management conflicts in order to: (1) Maintain sufficient prairie dog acreage and density to support no less than 30 adult black-footed ferrets; and (2) maintain suitable prairie dog habitat on core release areas at or above 1999 survey levels.
        (e) Mortality: We will reintroduce only ferrets that are surplus to the captive breeding program. Predator control, prairie dog management, vaccination, ferret preconditioning, and improved release methods should reduce mortality. Public education will help reduce potential sources of human-caused mortality.

        The Act defines “incidental take” as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. A person may take a ferret within the Experimental Population Area provided that the take is unavoidable, unintentional, and was not due to negligent conduct. Such conduct will not constitute “knowing take,” and we will not pursue legal action. However, when we have evidence of knowing (i.e., intentional) take of a ferret, we will refer matters to the appropriate authorities for prosecution. Any take of a black-footed ferret, whether incidental or not, must be reported to the local Service Field Supervisor (see ADDRESSES section). We expect a low level of incidental take since the reintroduction is compatible with existing land use practices for the area.
        Based on studies of wild black-footed ferrets at Meeteetse, Wyoming, black-footed ferrets can be killed by motor vehicles and dogs. We expect a rate of mortality similar to what was documented at Meeteetse, and, therefore, we estimate a human-related annual mortality rate of about 12 percent of all reintroduced ferrets and their offspring, annually. If this level is exceeded in any given year, we will develop and implement measures to reduce the level of mortality.
        (f) Special Handling: Service employees and authorized agents acting on their behalf may handle black-footed ferrets for scientific purposes; to relocate ferrets to avoid conflict with human activities; for recovery purposes; to relocate ferrets to other reintroduction sites; to aid sick, injured, and orphaned ferrets; and salvage dead ferrets. We will return to captivity any ferret we determine to be unfit to remain in the wild. We also will determine the disposition of all sick, injured, orphaned, and dead ferrets.
        (g) Coordination With Landowners and Land Managers: The Service and cooperators identified issues and concerns associated with the proposed ferret reintroduction before preparing this proposed rule. The proposed reintroduction also has been discussed with potentially affected State agencies and landowners within the proposed release area. Affected State agencies, landowners, and land managers have indicated support for the reintroduction, if ferrets released in the Experimental Population Area are an NEP, and if land use activities in the Experimental Population Area are not constrained without the consent of affected landowners.
        (h) Potential for Conflict With Grazing and Recreational Activities: We do not expect conflicts between livestock grazing and ferret management. Grazing and prairie dog management on private lands within the Experimental Population Area will continue without additional restriction during implementation of the ferret recovery activities. With proper management, we do not expect adverse impacts to ferrets from hunting, prairie dog shooting, prairie dog control, and trapping of furbearers or predators in the Experimental Population Area. If proposed prairie dog shooting or control locally affect ferret prey base within a specific area, State, Tribal, and Federal biologists will determine whether ferrets could be impacted and, if necessary, take steps to avoid such impacts. If private activities impede the establishment of ferrets, we will work closely with the Tribe and landowners to develop appropriate procedures to minimize conflicts.
        (i) Protection of Black-footed Ferrets: We will release ferrets in a manner that provides short-term protection from natural (predators, disease, lack of prey base) and human-related sources of mortality. Improved release methods, vaccination, predator control, and management of prairie dog populations should help reduce natural mortality. Releasing ferrets in areas with little human activity and development will minimize human-related sources of mortality. We will work with the Tribe and landowners to help avoid certain activities that could impair ferret recovery.
        (j) Public Awareness and Cooperation: We will inform the general public of the importance of this reintroduction project in the overall recovery of the black-footed ferret.
        The designation of the NEP on the Cheyenne River Sioux Reservation would provide greater flexibility in the management of the reintroduced ferrets. The NEP designation is necessary to secure needed cooperation of the Tribe, landowners, agencies, and recreational interests in the affected area. Based on the above information, and using the best scientific and commercial data available (in accordance with 50 CFR 17.81), the Service finds that releasing black-footed ferrets into the Experimental Population Area will further the conservation of the species.
        Public Comments Solicited

        Black-footed ferret kits targeted for wild release are introduced into preconditioning pens at 40-90 days of age and released at about 120 to 140 days. It is imperative that ferrets kits are preconditioned and released at proper developmental ages to enhance their survival in the wild. Because of earlier than usual ferret production at captive breeding centers in the United States and Canada (as of early June 2000), it has become urgent to expedite this nonessential, experimental rulemaking process in order to ensure that an adequate number of ferrets can be released at proper ages and with adequate preconditioning experience on the Cheyenne River Sioux Experimental Population Area. Consequently, we are proposing a 30-day public comment period for the proposed rule instead of the standard 60 days.
        The Service wishes to ensure that this proposed rulemaking to designate the Cheyenne River Sioux Reservation black-footed ferret population as an NEP and the draft environmental assessment on the proposed action effectively evaluate all potential issues associated with this action. Therefore, we request comments or recommendations concerning any aspect of this proposed rule and the draft environmental assessment from the public, as well as Tribal, local, State, and Federal government agencies, the scientific community, industry, or any other interested party. Comments should be as specific as possible. To promulgate a final rule to implement this proposed action and to determine whether to prepare a finding of no significant impact or an environmental impact statement, we will take into consideration all comments and any additional information received. Such information may lead to a final rule that differs from this 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. In some circumstances, we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this request prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, available for public inspection in their entirety.
        Public Hearings

        You may request a public hearing on this proposal. Your request for a hearing must be made in writing and filed within 20 days of the date of publication of the proposal in the Federal Register. Such requests for a hearing must be made in writing and addressed to the South Dakota State Field Supervisor for the Fish and Wildlife Service in Pierre, South Dakota (see ADDRESSES section).
        Required Determinations
        1. Regulatory Planning and Review
        In accordance with the criteria in Executive Order 12866, the proposed rule to designate NEP status for the black-footed ferret reintroduction into north-central South Dakota is not a significant regulatory action subject to Office of Management and Budget review. This rule will not have an annual economic effect of $100 million and will not have an adverse effect upon any economic sector, productivity, jobs, the environment, or other units of government. Therefore, a cost-benefit and economic analysis is not required.
        All the lands within the NEP area are within the Cheyenne River Sioux Reservation, and the specific lands where ferrets will actually be released are Tribal Trust allotted lands. Other public areas in the NEP include South Dakota school lands, South Dakota Department of Game, Fish and Parks lands, and U.S. Army Corps of Engineers lands. Most of the prairie dogs within the NEP area occur on Tribal Trust lands, and those occurring on other lands are not needed for a successful ferret release. Land uses on private, Tribal, and State school lands will not be hindered by the proposal, and only voluntary participation by private landowners will occur.

        This rule will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. Federal agencies most interested in this rulemaking are primarily other Department of the Interior bureaus (i.e., Bureau of Land Management) and the Department of Agriculture (Forest Service). The action proposed by this rulemaking is consistent with the policies and guidelines of the other Interior bureaus. Because of the substantial regulatory relief provided by the NEP designation, we believe the reintroduction of the black-footed ferret in the areas described will not conflict with existing human activities or hinder public utilization of the area.
        This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This rule will not raise novel legal or policy issues. The Service has previously designated experimental populations of black-footed ferrets at five other locations (in Colorado/Utah, Montana, South Dakota, Arizona, and Wyoming) and for other species at numerous locations throughout the nation.
        2. Regulatory Flexibility Act

        The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The area affected by this rule consists of Dewey and Ziebach Counties, South Dakota. A majority of the area affected by this rule is within the Cheyenne River Sioux Reservation, which is administered by the Tribe. Reintroduction of ferrets allowed by this rule will not have any significant effect on recreational activities in the experimental area. We do not expect any closures of roads, trails, or other recreational areas. Suspension of prairie dog shooting for ferret management purposes will be localized and prescribed by the Tribe. We do not expect ferret reintroduction activities to affect grazing operations, resource development actions, or the status of any other plants or animal species within the release area. Because only voluntary participation in ferret reintroduction by private landowners is proposed, this rulemaking is not expected to have any significant impact on private activities in the affected area. The designation of an NEP in this rule will significantly reduce the regulatory requirements regarding the reintroduction of these ferrets, will not create inconsistencies with other agency actions, and will not conflict with existing or proposed human activity, or Tribal and public use of the land.
        3. Small Business Regulatory Enforcement Fairness Act (SBREFA)
        This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule will not have an annual effect on the economy of $100 million or more for reasons outlined above. It will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The rule does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
        4. Unfunded Mandates Reform Act

        The nonessential experimental population designation will not place any additional requirements on any city, county, or other local municipalities. The site designated for release of the experimental population is predominantly Cheyenne River Sioux Tribal Trust land administered by the Cheyenne River Sioux Tribe, who support this project. Some South Dakota State school lands may also be affected. The State of South Dakota has expressed support for accomplishing the reintroduction through a nonessential experimental designation. Accordingly, this rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Because this rulemaking does not require any action be taken by local or State government or private entities, we have determined and certify pursuant to the Unfunded Mandates Reform Act, 2, U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities (i.e., it is not a “significant regulatory action” under the Act).
        5. Takings

        In accordance with Executive Order 12630, the rule does not have significant takings implications. Designating reintroduced populations of federally listed species as NEPs significantly reduces the Act's regulatory requirements with respect to the reintroduced listed species within the NEP. Under NEP designations, the Act requires a Federal agency to confer with the Service if the agency determines its action within the NEP is likely to jeopardize the continued existence of the reintroduced species. However, even if an agency action totally eliminated a reintroduced species from an NEP and jeopardized the species' continued existence, the Act does not compel a Federal agency to stop a project, deny issuing a permit, or cease any activity. Additionally, regulatory relief can be provided regarding take of reintroduced species within NEP areas, and a special rule has been developed stipulating that unavoidable and unintentional take (including killing or injuring) of the reintroduced black-footed ferrets would not be a violation of the Act, when such take is nonnegligent and incidental to a legal activity (e.g., livestock management, mineral development) and the activity is in accordance with State laws and regulations.
        Most of the lands within the Experimental Population Area are administered by the Cheyenne River Sioux Tribe. Multiple-use management of these lands by industry and recreation interests will not change as a result of the experimental designation. Private landowners within the Experimental Population Area will still be allowed to conduct lawful control of prairie dogs, and may elect to have black-footed ferrets removed from their land should ferrets move to private lands.
        Because of the substantial regulatory relief provided by NEP designations, we do not believe the reintroduction of ferrets would conflict with existing human activities or hinder public use of the area. The South Dakota Department of Game, Fish and Parks has endorsed the ferret reintroduction under an NEP designation. The NEP designation will not require the South Dakota Department of Game, Fish and Parks to specifically manage for reintroduced ferrets. A takings implication assessment is not required.
        6. Federalism
        In accordance with Executive Order 13132, the rule does not have significant Federalism implications to warrant the preparation of a Federalism Assessment. As stated above, most of the lands within the Experimental Population Area are Tribal Trust lands, and multiple-use management of these lands will not change to accommodate black-footed ferrets. The designation will not impose any new restrictions on the State of South Dakota. The Service has coordinated extensively with the Tribe and State of South Dakota, and they endorse the NEP designation as the only feasible way to pursue ferret recovery in the area. A Federalism Assessment is not required.
        7. Civil Justice Reform
        In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
        8. Paperwork Reduction Act

        This regulation contains information collection requirements under the Paperwork Reduction Act (and approval by the Office of Management and Budget) under 44 U.S.C. 3501 et seq. Authorization for this information collection has been approved by OMB and has been assigned OMB control number 1018-0095. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a current valid OMB control number. OMB has up to 60 days to approve or disapprove the information collection but may respond after 30 days. Therefore, to ensure maximum consideration, you must send your comments to OMB by the above referenced date.
        9. National Environmental Policy Act

        The Service has prepared a draft environmental assessment as defined under authority of the National Environmental Policy Act of 1969. It is available from Service offices identified in the ADDRESSES section.
        10. Clarity of This Regulation
        Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping or order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the rule in the “”Supplementary Information” section of the preamble helpful in understanding the proposed rule? What else could we do to make the rule easier to understand?
        Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street NW, Washington, DC 20240. You may also e-mail the comments to this address: Execsec@ios.doi.gov
        References Cited

        Anderson E., S.C. Forrest, T.W. Clark, and L. Richardson. 1986. Paleobiology, biogeography, and systematics of the black-footed ferret Mustela nigripes (Audubon and Bachman), 1851. Great Basin Naturalist Memoirs 8:11-62.
        Biggins, D.E., J.L. Godbey, L.R. Hanebury, B. Luce, P.E. Marinari, M.R. Matchett, A. Vargas. 1998. The effects of rearing methods on survival of reintroduced black-footed ferrets. Journal of Wildlife Management 62:643-653.
        Cheyenne River Sioux Tribe. 1992. Prairie Management Plan for the Cheyenne River Sioux Reservation. 54 pages.
        Cheyenne River Sioux Tribe. 1999. Prairie Management Plan: Phase II for the Cheyenne River Sioux Reservation. 37 pages.
        Forrest, S.C., T.W. Clark, L. Richardson, and T.M. Campbell III. 1985. Black-footed ferret habitat: some management and reintroduction considerations. Wyoming Bureau of Land Management, Wildlife Technical Bulletin, No. 2. 49 pages.

        Henderson, F.R., P.F. Springer, and R. Adrian. 1969. The black-footed ferret in South Dakota. South Dakota Department of Game, Fish and Parks, Technical Bulletin 4:1-36.
        U.S. Fish and Wildlife Service. 1988. Black-footed ferret recovery plan. U.S. Fish and Wildlife Service, Denver, Colorado. 154 pages.

        Vargas, A., M. Lockhart, P. Marinari, and P. Gober. 1998. Preparing captive-raised black-footed ferrets (Mustela nigripes) for survival after release. Jersey Wildlife Preservation Trust 34:76-83.
        Authors

        The primary authors of this rule are Mike Lockhart and Scott Larson (see ADDRESSES section).

          List of Subjects in 50 CFR Part 17
          Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

        Proposed Regulations Promulgation
        Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the U.S. Code of Federal Regulations, as set forth below:

          PART 17—[AMENDED]
          1. The authority citation for part 17 continues to read as follows:

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

          2. Amend section 17.11(h) by revising the existing entry for “Ferret, black-footed” under “MAMMALS” to read as follows:

            § 17.11
            Endangered and threatened wildlife.

            (h) * * *

                Species
                Common name
                Scientific name
                Historic range
                Vertebrate population where endangered or threatened
                Status
                When listed
                Critical habitat

                Special rules

                  Mammals

                *         *         *         *         *         *         *

                Ferret, black-footed

                  Mustela nigripes

                Western U.S.A., western Canada
                Entire, except where listed as an experimental population
                E
                1, 3, 343, 433, 545, 546, 582, 646, __
                NA
                NA

                Do
                .....do
                .....do
                U.S.A. (specific portions of AZ, CO, MT, SD, UT, and WY, see 17.84(g)(9))
                XN
                433, 545, 546, 582, 646, __
                NA
                17.84(g)

                *         *         *         *         *         *         *

            3. Amend § 17.84 as follows:  Revise the text of paragraph (g)(1) and add paragraphs (g)(6)(vi), (g)(9)(vi), and a new map to follow the five existing maps at the end of paragraph (g):

            § 17.84
            Special rules—vertebrates.
            (g) Black-footed ferret (Mustela nigripes).
            (1) The black-footed ferret populations identified in paragraphs (g)(9)(i) through (vi) of this section are nonessential experimental populations. We will manage each of these populations in accordance with their respective management plans.

            (6) * * *
            (vi) Report such taking in the Cheyenne River Sioux Tribe Experimental Population Area to the Field Supervisor, Ecological Services, U.S. Fish and Wildlife Service, Pierre, South Dakota (telephone: 605/224-8693).

            (9) * * *

            (vi) The Cheyenne River Sioux Tribe Reintroduction Area is shown on the map of north-central South Dakota at the end of paragraph (g) of this section. The boundaries of the nonessential experimental population area are the exterior boundaries of the Cheyenne River Indian Reservation which includes all of Dewey and Ziebach Counties, South Dakota. Any black-footed ferret found in the wild within these Counties will be considered part of the nonessential experimental population after the first breeding season following the first year of black-footed ferret release. A black-footed ferret occurring outside the Experimental Population Area in north-central South Dakota would initially be considered as endangered but may be captured for genetic testing. When a ferret is found outside the Experimental Population Area, the following may occur:
            (A) If an animal is genetically determined to have originated from the experimental population, we may return it to the reintroduction area or to a captive-breeding facility.
            (B) If an animal is determined to be genetically unrelated to the experimental population, we will place it in captivity under an existing contingency plan. Up to nine black-footed ferrets may be taken for use in the captive-breeding program.

            BILLING CODE 4310-55-P

              EP18JY00.016

            Dated: June 29, 2000.
            Donald J. Barry,
            Assistant Secretary, Fish, Wildlife, and Parks.

      [FR Doc. 00-18123 Filed 7-17-00; 8:45 am]
      BILLING CODE 4310-55-C