        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R8-ES-2011-0085; 4500030114]
        RIN 1018-AX39
        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Tidewater Goby

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service, announce the reopening of the public comment period on the October 19, 2011, proposed revised designation of critical habitat for the tidewater goby (Eucyclogobius newberryi) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of a draft economic analysis (DEA) of the proposed revised designation of critical habitat for tidewater goby and an amended required determinations section of the proposal. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed revised designation, the associated DEA, and the amended required determinations section. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rule.

          DATES:

          The comment period for the proposed rule published October 19, 2011 (76 FR 64996) is reopened. We will consider comments received on or before August 23, 2012. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date.

          ADDRESSES:

            Document availability: You may obtain copies of the proposed rule and the draft economic analysis on the Internet at http://www.regulations.gov at Docket Number FWS-R8-ES-2011-0085, or by mail from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

            Comment submission: You may submit written comments by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R8-ES-2010-0085, which is the docket number for this rulemaking. Then, on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document and submit a comment.
          (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R8-ES-2011-0085; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.

          We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Diane K. Noda, Field Supervisor, Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003; by telephone 805-644-1766; or by facsimile 805-644-3958. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:

        Public Comments

        We will accept written comments and information during this reopened comment period on our proposed revised designation of critical habitat for the tidewater goby that was published in the Federal Register on October 19, 2011 (76 FR 64996), our DEA of the proposed revised designation, and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

        (1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat is not prudent.
        (2) Specific information on:
        (a) The distribution of the tidewater goby;
        (b) The amount and distribution of tidewater goby habitat;
        (c) What areas within the geographical area occupied by the species at the time of listing that contain physical or biological features essential to the conservation of the species we should include in the designation and why; and
        (d) What areas outside the geographical area occupied at the time of listing are essential for the conservation of the species and why.
        (3) Land-use designations and current or planned activities in the subject areas and their possible effects on proposed revised critical habitat for tidewater goby.
        (4) Any foreseeable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.
        (5) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
        (6) Information on the extent to which the description of economic impacts in the DEA is complete and accurate.
        (7) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.
        If you submitted comments or information on the proposed revised rule (76 FR 64996) during the initial comment period from October 19, 2011, to December 19, 2011, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning revised critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments, we may, during the development of our final determination, find that areas proposed do not meet the definition of critical habitat, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

        You may submit your comments and materials concerning the proposed rule or DEA by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section.
        If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

        Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule and DEA, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R8-ES-2011-0085, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed revised rule and the DEA on the Internet at http://www.regulations.gov at Docket Number FWS-R8-ES-2011-0085, or by mail from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
        Background

        It is our intent to discuss only those topics directly relevant to the designation of critical habitat for tidewater goby in this document. For more information on previous Federal actions concerning the tidewater goby, refer to the proposed revised designation of critical habitat published in the Federal Register on October 19, 2011 (76 FR 64996). For more information on the tidewater goby or its habitat, refer to the final listing rule published in the Federal Register on February 4, 1994 (59 FR 5494); the first and second rules proposing critical habitat published in the Federal Register on August 3, 1999 (64 FR 42250) and November 28, 2006 (71 FR 68914), respectively; and the subsequent final critical habitat designations published in the Federal Register on November 20, 2000 (65 FR 69693) and January 31, 2008 (73 FR 5920), which are available at http://www.fws.gov/ventura or from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Additionally, more species information can be found in the Recovery Plan for the Tidewater Goby (Recovery Plan) (Service 2005), and in the Tidewater Goby 5-year review (Service 2007), which are available at http://www.fws.gov/endangered.
        Previous Federal Actions

        On April 15, 2009, Natural Resources Defense Council (NRDC) filed a lawsuit in the U.S. District Court for the Northern District of California challenging a portion of the January 31, 2008, final rule that designated 44 critical habitat units in Del Norte, Humboldt, Mendocino, Sonoma, Marin, San Mateo, Santa Cruz, Monterey, San Luis Obispo, Santa Barbara, Ventura, and Los Angeles Counties, California (73 FR 5920, January 31, 2008). In a consent decree dated December 11, 2009, the U.S. District Court: (1) Stated that the 44 critical habitat units should remain in effect, (2) stated that the final rule designating critical habitat was remanded in its entirety for reconsideration, and (3) directed the Service to promulgate a revised critical habitat rule that considers the entire geographic range of the tidewater goby and any currently unoccupied tidewater goby habitat. The consent decree requires that the Service submit a final revised rule to the Federal Register no later than November 27, 2012.
        Critical Habitat

        Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification (collectively referred to as “adverse modification”) of the designated critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions that may affect critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
        Consideration of Impacts Under Section 4(b)(2) of the Act
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
        When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat. In the case of tidewater goby, the benefits of critical habitat include public awareness of the presence of tidewater goby and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for tidewater goby due to protection from adverse modification of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken by Federal agencies.
        When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan.

        We are not currently considering any areas for exclusion from critical habitat. However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation (DEA), which is available for review and comment (see ADDRESSES).
        Draft Economic Analysis
        The purpose of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for the tidewater goby. The DEA separates conservation measures into two distinct categories according to “without critical habitat” and “with critical habitat” scenarios. The “without critical habitat” scenario represents the baseline for the analysis, considering protections otherwise afforded to the tidewater goby (e.g., under the Federal listing and other Federal, State, and local regulations). The “with critical habitat” scenario describes the incremental impacts specifically due to designation of critical habitat for the species. In other words, these incremental conservation measures and associated economic impacts would not occur but for the designation. Conservation measures implemented under the baseline (without critical habitat) scenario are described qualitatively within the DEA, but economic impacts associated with these measures are not quantified. Economic impacts are only quantified for conservation measures implemented specifically due to the designation of critical habitat (i.e., incremental impacts). For a further description of the methodology of the analysis, see Chapter 2, “Framework for the Analysis,” of the DEA (Industrial Economics Incorporated (IEc) 2012).
        The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for the tidewater goby over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information is available for most activities to forecast activity levels for projects beyond a 20-year timeframe. It identifies potential incremental costs as a result of the proposed revised critical habitat designation; these are those costs attributed to critical habitat over and above those baseline costs attributed to listing. The DEA quantifies economic impacts of tidewater goby conservation efforts associated with the following categories of activity: (1) Water management; (2) cattle grazing; (3) transportation (roads, highways, bridges); (4) utilities (oil and gas pipelines); (5) residential, commercial, and industrial development; and (6) natural resource management.

        Baseline protections for the tidewater goby address a broad range of habitat threats within a significant portion of the proposed critical habitat area. A key consideration in the incremental analysis is that, where tidewater goby critical habitat overlaps with steelhead (Oncorhynchus mykiss) critical habitat, steelhead conservation measures would be sufficiently protective for tidewater goby critical habitat as well. As a result, few incremental project modification costs are anticipated in these areas. Across the designation, incremental costs primarily include costs of administrative efforts associated with new and reinitiated consultations to consider adverse modification of critical habitat for tidewater goby. In addition, some minor incremental project modification costs are forecast to result from critical habitat. This result is attributed to the following key findings: (1) Baseline protections exist for tidewater goby; (2) steelhead critical habitat overlaps with a large portion of the unoccupied units; and (3) minimal economic activity occurs on private lands in the study area.
        In total, the incremental impacts to all economic activities are estimated to be $558,000 over the 20-year timeframe, or $49,300 on an annualized basis (assuming a 7 percent discount rate). Approximately 98 percent of these incremental costs result from administrative costs of considering adverse modification in section 7 consultations.
        Incremental conservation efforts are estimated to be $11,500 over the 20-year timeframe or $1,090 on an annualized basis (both assuming a 7 percent discount rate). These include the costs of adding the tidewater goby to the environmental impact reports (EIR) required for projects that are being proposed in critical habitat unit MAR-5 Bolinas Lagoon and SLO-12 Oso Flaco Lake, as well as additional surveying for tidewater goby in Oso Flaco Lake.

        As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
        Changes to Proposed Revised Critical Habitat

        In this document, we are making a revision to the proposed revised critical habitat as identified and described in the proposed rule that we published in the Federal Register on October 19, 2011 (76 FR 64996). In the proposed rule we stated that, “We also are proposing to designate specific areas outside the geographical area occupied by the species at the time of listing that were historically occupied, but are presently unoccupied, because such areas are essential for the conservation of the species” (76 FR 65004). However, we did not intend to limit the proposal to only specific areas outside the geographical area occupied by the species at the time of listing that were historically occupied. Our intent was to consider all areas that are essential for the conservation of the species and not only those that were known to be historically occupied, and we were in error when we included “that were historically occupied, but are presently unoccupied” in the proposed revised rule. In the proposed revised rule, we proposed to designate 6 units that are outside the geographical area occupied by the species at the time of listing where tidewater gobies have not been detected. These units are: SM-2 Pomponio Creek, MAR-5 Bolinas Lagoon, SLO-1 Arroyo de la Cruz, SLO-12 Oso Flaco Lake, LA-1 Arroyo Sequit, and LA-2 Zuma Canyon. These units are essential for the conservation of the tidewater goby because translocation to new locations within developing metapopulations is anticipated to enhance or accelerate the rangewide recovery effort as described in the recovery plan (Service 2005). Moreover, the recovery strategy in the recovery plan states that as subpopulations of tidewater gobies become isolated, recolonization rates decrease, local extirpations become permanent, and entire metapopulations can move incrementally toward extinction. Thus, these units are essential for the conservation of the species because they could be used to minimize the chance of local extirpations resulting in extinction of the broader metapopulations and resultant loss of their unique genetic traits either by introducing tidewater goby in these units or by the natural colonization of these units.
        Required Determinations—Amended

        In our October 19, 2011, proposed revised rule (76 FR 64996), we indicated that we would defer our determination of compliance with several statutes and executive orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have now made use of the DEA data to make these determinations. In this document, we affirm the information in our proposed revised rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the DEA data, we are amending our required determination concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of our final rulemaking.
        According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

        To determine if the proposed designation of critical habitat for the tidewater goby would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as: (1) Water management; (2) cattle grazing; (3) transportation (roads, highways, bridges); (4) utilities (oil and gas pipelines); (5) residential, commercial, and industrial development; and (6) natural resource management. In order to determine whether it is appropriate for us to certify that this proposed rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the tidewater goby is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize the proposed critical habitat designation, consultations to avoid the adverse modification of critical habitat would be incorporated into the existing consultation process.
        In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for the tidewater goby. The analysis is based on estimated impacts associated with the proposed rulemaking as described in Chapters 4 and 5, and Appendix A, of the DEA, and evaluates the potential for economic impacts related to activity categories including development, natural resource management, transportation, utilities, water management, and recreation.
        As described in Chapters 4 and 5 of the DEA, estimated incremental impacts consist primarily of administrative costs and time delays associated with section 7 consultation. The Service and the action agency are the only entities with direct compliance costs associated with this proposed critical habitat designation, although small entities may participate in section 7 consultation as a third party. It is therefore possible that the small entities may spend additional time considering critical habitat during section 7 consultation for the tidewater goby. The DEA indicates that the incremental impacts potentially incurred by small entities are limited to development, natural resource management, transportation, utilities, and water management activities.
        Chapter 5 of the DEA discusses the potential for proposed revised critical habitat to affect development through additional costs of section 7 consultation. These costs are borne by developers and existing landowners, depending on whether developers are able to pass all or a portion of their costs back to landowners in the form of lower prices paid for undeveloped land. Of the total number of entities engaged in land subdivision and residential, commercial, industrial and institutional construction, nearly 99 percent are small entities.
        Whether individual developers are affected depends on the specific characteristics of a particular land parcel as well as the availability of land within the affected region. If land is not scarce, the price of a specific parcel will likely incorporate any regulatory restrictions on that parcel. Therefore, any costs associated with conservation efforts for tidewater goby will likely be reflected in the price paid for the parcel. In this case, the costs of conservation efforts are ultimately borne by the current landowner in the form of reduced land values. Many of these landowners may be individuals or families that are not legally considered to be businesses.
        If, however, land in the affected region is scarce, or the characteristics of the specific parcel are unique, the price of a parcel may not incorporate regulatory restrictions associated with that parcel. In this case, the project developer may be required to incur the additional costs associated with the section 7 consultation process. To understand the potential impacts on small entities, we conservatively assume that all of the private owners of developable lands affected by proposed revised critical habitat designation are developers.
        In Chapter 5 of the DEA, we estimate that a total of 20 formal, informal, and technical assistance consultations, plus one re-initiation, may require additional effort to consider adverse modification of revised critical habitat. Assuming that each consultation is undertaken by a separate entity, we estimate that 21 developers may be affected by the designation. For purposes of this analysis, and because nearly 99 percent of developers in the study area are small, we assume that all 21 are small entities. These developers represent less than 0.1 percent of small developers in the study area.
        Excluding costs borne by Federal agencies, costs per consultation range from $260 for technical assistance to $1,800 for re-initiation of a formal consultation. Because we are unable to identify the specific entities affected, the impact relative to those entities' annual revenues or profits is unknown. However, assuming the average small entity has annual revenues of approximately $5.1 million, this maximum annualized impact of $1,800 represents less than 0.1 percent of annual revenues.
        The consultation history for natural resource management projects suggests that these projects are generally undertaken by Federal and State agencies, or County departments. The DEA estimates incremental administrative costs for section 7 consultation on natural resource management in every County except Orange County. Only one of these entities, Del Norte County, meets the threshold for small governmental jurisdiction. Del Norte County is anticipated to incur administrative costs associated with addressing adverse modification in approximately three consultations, including one re-initiation. Even if all consultations occur in the same year, total impacts to Del Norte County will be less than 1 percent of the County's annual revenue.
        The consultation history for tidewater goby includes several consultations regarding utilities and oil and gas development. In Chapter 5 of the DEA, we estimate that 24 consultations involving utility activities will occur during the 20-year period. Based on the overall percentage of all small entities in the study area (56 percent), we estimate that 14 of the 24 total entities that will be affected over the 20-year period are small entities. Excluding costs to Federal agencies, the cost per entity of addressing adverse modification in a section 7 consultation ranges from $260 for technical assistance to $880 for a formal consultation (no re-initiations are predicted for utility activities). Because we are unable to identify the specific entities affected, the impact relative to those entities' annual revenues or profits is unknown. However, assuming the average small entity in this industry has annual revenues of approximately $9.3 million, this maximum annualized impact of $880 represents less than 0.01 percent of annual revenues.
        Chapter 5 of the DEA also discusses the potential for water management activities to be affected by the designation. Over the 20-year period, we estimate that 125 consultations involving water management activities, including re-initiations, will occur. Based on the overall percentage of all small entities in the study area (83 percent), we estimate that 104 of the 125 total entities that will be affected over the 20-year period are small entities. Excluding costs to Federal agencies, the cost per entity of addressing adverse modification in a section 7 consultation ranges from $260 for technical assistance to $1,800 for re-initiation of a formal consultation. Because we are unable to identify the specific entities affected, the impact relative to those entities' annual revenues or profits is unknown. However, assuming the average small entity in this industry has annual revenues of approximately $5.0 million, this maximum annualized impact of $1,800 represents less than 0.1 percent of annual revenues.

        The DEA also concludes that none of the government entities with which we might consult on tidewater goby for transportation or recreation meet the definitions of small as defined by the Small Business Act (SBE) (IEC 2012, p. A-6); therefore, impacts to small government entities due to transportation and recreation are not anticipated. A review of the consultation history for tidewater goby suggests future section 7 consultations on livestock grazing (for example, ranching operations) are unlikely, and as a result are not anticipated to be affected by the proposed rule (IEC 2012, p. 5-13). Please refer to the DEA of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.
        In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and our files. We have identified 161 small entities that may be impacted by the proposed critical habitat designation. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
        Authors
        The primary authors of this notice are the staff members of the Ventura Fish and Wildlife Office, Pacific Southwest Region, U.S. Fish and Wildlife Service.
        Authority

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

          Dated: July 12, 2012.
          Michael Bean,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2012-17939 Filed 7-23-12; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF TRANSPORTATION
        Surface Transportation Board
        49 CFR Part 1244
        [STB Ex Parte No. 385 (Sub-No. 6)]
        Waybill Sample

          AGENCY:
          Surface Transportation Board, DOT.

          ACTION:
          Proposed rule.

          SUMMARY:
          The Board is proposing to require all carriers that submit carload-waybill-sample information (Waybill Sample) under 49 CFR part 1244 to report fuel surcharge revenue in a separate waybill field created by the Board for that purpose, commencing with the Waybill Sample filed for January 2009. The Board will revise the waybill-file-record layout to reflect this change.

          DATES:
          Comments are due by July 18, 2008.

          ADDRESSES:

          Comments may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should comply with the instructions at the E-FILING link on the Board's Web site, at http://www.stb.dot.gov. Any person submitting a filing in the traditional paper format should send an original and 10 copies to: Surface Transportation Board, Attn: STB Ex Parte No. 385 (Sub-No. 6), 395 E Street, SW., Washington, DC 20423-0001.

          Copies of written comments received by the Board will be posted to the Board's Web site at http://www.stb.dot.gov and will be available for viewing and self-copying in the Board's Public Docket Room, Suite 131, 395 E Street, SW., Washington, DC. Copies of the comments will also be available (for a fee) by contacting the Board's Chief Records Officer at (202) 245-0235 or 395 E Street, SW., Washington, DC 20423-0001.

          FOR FURTHER INFORMATION, CONTACT:
          Mac Frampton, (202) 245-0317 or mac.frampton@stb.dot.gov. [Federal Information Relay Service (FIRS) for the hearing impaired: 1-800-877-8339.]

        SUPPLEMENTARY INFORMATION:
        The Board is proposing to require rail carriers to submit waybill information about fuel surcharge revenue as a separate item within the Waybill Sample.
        A carload waybill is a document describing the characteristics of an individual rail shipment: originating and terminating freight stations, the names of all railroads participating in the movement, the points of all railroad interchanges, the number of cars, the car types, movement weight in hundredweight, the commodity, and the freight revenue. Under 49 CFR part 1244, a railroad is required to file a Waybill Sample for all line-haul revenue waybills terminating on its lines if, in any of the three preceding years, the railroad terminated 4500 or more carloads, or it terminated at least 5% of the total revenue carloads that terminate in a particular state.
        The Waybill Sample is the Board's primary source of information about freight rail shipments terminated in the United States. Of particular importance, the Board relies on the data in the “Freight Revenue” field to compute its “Revenue Shortfall Allocation Method” (RSAM) benchmarks.

        In the last few years, questions have been raised about how railroads reported fuel surcharge revenue in the Waybill Sample. The Board sought to address those questions, and to provide for consistency in the reporting of fuel surcharge revenue in the Waybill Sample, by clarifying that all railroads that are required to submit a Waybill Sample under 49 CFR part 1244 should report fuel surcharge revenue in the “Freight Revenue” field (columns 83-91) in the waybill-file-record layout. Waybill Sample, STB Ex Parte No. 385 (Sub-No. 6) (Clarification) (published at 72 FR 72000 on December 19, 2007).

        In a request for reconsideration filed on December 31, 2007, the National Industrial Transportation League (NITL) argued that the Board's Clarification made it more difficult to identify fuel surcharge revenue in the Waybill Sample and, therefore, did not promote transparency as to the use of fuel surcharges by rail carriers. NITL, with the support of several other shippers, shipping groups, and other interests, asked the Board to require all carriers that submit a Waybill Sample to report fuel surcharge revenue separately in a Waybill Sample field established for that purpose. No rail carrier objected to, or even responded to, NITL's petition.
        As explained in more detail in the Board's decision served on June 16, 2008, reporting fuel surcharge revenue in a separate field in the Waybill Sample will increase transparency about the use of fuel surcharges by rail carriers without detracting from the Board's ability to obtain consistent results for the purposes of including such revenue in its RSAM calculations. Therefore, the Board proposes to revise the waybill-file-record layout to create a new field for the purpose of reporting fuel surcharge revenue.

        The Board's June 16, 2008 decision in this proceeding is available on the Board's Web site at www.stb.dot.gov. Copies of the decision will also be available for viewing and self-copying in the Board's Public Docket Room, Suite 131, 395 E Street, SW., Washington, DC, or (for a fee) by contacting the Board's Chief Records Officer at (202) 245-0235 or 395 E Street, SW., Washington, DC 20423-0001.

        The Board will request incorporation by reference approval from the Director of the Federal Register pursuant to 1 CFR part 51 for the January 2009 edition of Statement No. 81-1, Procedures for Sampling Waybill Records by Computer.
        Pursuant to 5 U.S.C. 605(b), the Board certifies that this action will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.
        This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

          List of Subjects in 49 CFR Part 1244
          Freight, Railroads, Reporting and recordkeeping.

          Authority:
          49 U.S.C. 11144, 49 U.S.C. 11145.

          Decided: June 12, 2008.

          By the Board, Chairman Nottingham, Vice Chairman Mulvey, and Commissioner Buttrey.
          Anne K. Quinlan,
          Acting Secretary.

      [FR Doc. E8-13677 Filed 6-25-08; 8:45 am]
      BILLING CODE 4915-01-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 20
        Migratory Bird Hunting; Application for Approval of Tungsten-Bronze-Iron as a Nontoxic Shot Material for Waterfowl Hunting

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of application.

          SUMMARY:
          The U.S. Fish and Wildlife Service (Service) hereby provides public notice that International Nontoxic Composites Corporation of Ontario, Canada, has applied for approval of Tungsten-Bronze-Iron shot as nontoxic for waterfowl hunting in the United States. The Service has initiated review of the shot under the criteria set out in Tier 1 of the nontoxic shot approval procedures given at 50 CFR 20.134.

          DATES:
          A comprehensive review of the Tier 1 information is to be concluded by January 20, 2004.

          ADDRESSES:

          The International Nontoxic Composite Corporation application may be reviewed in Room 4091 at the Fish and Wildlife Service, Division of Migratory Bird Management, 4501 N. Fairfax Drive, Arlington, Virginia, 22203-1610. Comments on this notice may be submitted to the Division of Migratory Bird Management at 4401 North Fairfax Drive, MS MBSP-4107, Arlington, VA 22203-1610. Comments will become part of the Administrative Record for the review of the application. The public may review the record at the Division of Migratory Bird Management, Room 4091, 4501 North Fairfax Drive, Arlington, Virginia, 22203-1610.

          FOR FURTHER INFORMATION CONTACT:
          Brian Millsap, Chief, Division of Migratory Bird Management, (703) 358-1714, or George T. Allen, Wildlife Biologist, Division of Migratory Bird Management, (703) 358-1825.

        SUPPLEMENTARY INFORMATION:
        The Migratory Bird Treaty Act of 1918 (Act) (16 U.S.C. 703-712 and 16 U.S.C. 742 a-j) implements migratory bird treaties between the United States and Great Britain for Canada (1916 and 1996 as amended), Mexico (1936 and 1972 as amended), Japan (1972 and 1974 as amended), and Russia (then the Soviet Union, 1978). These treaties protect certain migratory birds from take, except as permitted under the Act. The Act authorizes the Secretary of the Interior to regulate take of migratory birds in the United States. Under this authority, the Fish and Wildlife Service controls the hunting of migratory game birds through regulations in 50 CFR part 20.
        Since the mid-1970s, the Service has sought to identify types of shot for waterfowling that are not toxic to migratory birds or other wildlife when ingested. We have approved several types of shot as nontoxic and added them to the migratory bird hunting regulations in 50 CFR 20.21. We believe that compliance with the use of nontoxic shot will continue to increase with the approval and availability of other nontoxic shot types. Therefore, we continue to review all shot types submitted for approval as nontoxic.
        International Nontoxic Composites has submitted its application with the counsel that it contained all of the information specified in 50 CAR 20.134 for a complete Tier 1 submittal, and has requested unconditional approval pursuant to the Tier 1 time frame. The Service has determined that the application is complete, and has initiated a comprehensive review of the Tier 1 information. After the review, the Service will either publish a Notice of Review to inform the public that the Tier 1 test results are inconclusive or publish a proposed rule for approval of the candidate shot. If the Tier 1 tests are inconclusive, the Notice of Review will indicate what other tests will be required before approval of the Tungsten-Bronze-Iron shot as nontoxic is again considered. If the Tier 1 data review results in a preliminary determination that the candidate material does not pose a significant hazard to migratory birds, other wildlife, or their habitats, the Service will commence with a rulemaking proposing to approve the candidate shot.

          Dated: November 4, 2003.
          Matt Hogan,
          Director, U.S. Fish and Wildlife Service.

      [FR Doc. 03-28688 Filed 11-17-03; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 131119977-4143-01]
        RIN 0648-BD75
        Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2014 Tribal Fishery for Pacific Whiting

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS issues this proposed rule for the 2014 Pacific whiting fishery under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP), the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and the Pacific Whiting Act of 2006. This proposed rule would allocate 17.5 percent of the U.S. Total Allowable Catch of Pacific whiting for 2014 to Pacific Coast Indian tribes that have a Treaty right to harvest groundfish.

          DATES:
          Comments on this proposed rule must be received no later than March 31, 2014.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2014-0020, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0020, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: William W. Stelle, Jr., Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070, Attn: Kevin C. Duffy.

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

          FOR FURTHER INFORMATION CONTACT:

          Kevin C. Duffy (Northwest Region, NMFS), phone: 206-526-4743, and email: kevin.duffy@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Electronic Access

        This proposed rule is accessible via the Internet at the Office of the Federal Register Web site at https://www.federalregister.gov. Background information and documents are available at the NMFS West Coast Region Web site at http://www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html and at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/.
        Background
        The regulations at 50 CFR 660.50(d) establish the process by which the tribes with treaty fishing rights in the area covered by the FMP request new allocations or regulations specific to the tribes, in writing, during the biennial harvest specifications and management measures process. The regulations state that “the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.” The procedures NOAA employs in implementing tribal treaty rights under the FMP, in place since May 31, 1996, were designed to provide a framework process by which NOAA Fisheries can accommodate tribal treaty rights by setting aside appropriate amounts of fish in conjunction with the Pacific Fishery Management Council (Council) process for determining harvest specifications and management measures. The Council's groundfish fisheries require a high degree of coordination among the tribal, state, and federal co-managers in order to rebuild overfished species and prevent overfishing, while allowing fishermen opportunities to sustainably harvest over 90 species of groundfish managed under the FMP.
        Since 1996, NMFS has been allocating a portion of the U.S. total allowable catch (TAC) (called Optimum Yield (OY) or Annual Catch Limit (ACL) prior to 2012) of Pacific whiting to the tribal fishery, following the process established in 50 CFR 660.50(d). The tribal allocation is subtracted from the U.S. Pacific whiting TAC before allocation to the non-tribal sectors.
        To date, only the Makah Tribe has prosecuted a tribal fishery for Pacific whiting. The Makah Tribe has annually harvested a whiting allocation every year since 1996 using midwater trawl gear. Since 1999, the tribal allocation has been made in consideration of their participation in the fishery. In 2008 the Quileute Tribe and Quinault Indian Nation expressed an interest in commencing participation in the whiting fishery. Tribal allocations for 2009-2013 were based on discussions with all three tribes regarding their intent for those fishing years. The table below provides a history of U.S. OYs/ACLs and the annual tribal allocation in metric tons (mt).

            Year
            U.S. OY
            Tribal allocation

            2000
            232,000 mt
            32,500 mt

            2001
            190,400 mt
            27,500 mt

            2002
            129,600 mt
            22,680 mt

            2003
            148,200 mt
            25,000 mt

            2004
            250,000 mt
            32,500 mt

            2005
            269,069 mt
            35,000 mt

            2006
            269,069 mt
            32,500 mt

            2007
            242,591 mt
            35,000 mt

            2008
            269,545 mt
            35,000 mt

            2009
            135,939 mt
            50,000 mt

            2010
            193,935 mt
            49,939 mt

            2011
            290,903 mt
            66,908 mt

            2012

              1 186,037 mt TAC
            48,556 mt

            2013
            269,745 mt TAC
            63,205 mt

            1 Beginning in 2012, the United States started using the term Total Allowable Catch, based on the Agreement between the Government of the United States of America and the Government of Canada on Pacific Hake/Whiting.

        For the past five years, NMFS and the co-managers, including the States of Washington and Oregon, as well as the Treaty tribes, have been involved in a process designed to determine the long-term tribal allocation for Pacific whiting. In 2009, NMFS shared a preliminary report summarizing scientific information available on the migration and distribution of Pacific whiting on the west coast. The co-managers met in 2009 and discussed this preliminary information.
        In 2010, NMFS finalized the report summarizing scientific information available on the migration and distribution of Pacific whiting on the West Coast. In addition, NMFS responded in writing to requests from the tribes for clarification on the paper and requests for additional information. NMFS also met with each of the tribes in the fall of 2010 to discuss the report and to discuss a process for negotiation of the long-term tribal allocation of Pacific whiting.
        In 2011, NMFS again met individually with the Makah, Quileute, and Quinault tribes to discuss these matters. Due to the detailed nature of the evaluation of the scientific information, and the need to negotiate a long-term tribal allocation following completion of the evaluation, the process continued in 2012. No additional meetings were held on these matters in 2013. The 2014 tribal allocation of Pacific whiting will not reflect a negotiated long-term tribal allocation. Instead, it is an interim allocation not intended to set precedent for future allocations.
        Tribal Allocation for 2014
        In exchanges between NMFS and the tribes during November and December of 2013, the Makah tribe indicated their intent to participate in the tribal whiting fishery in 2014. The Makah tribe has requested 17.5% of the U.S. TAC. The Quileute tribe and the Quinault Indian Nation indicated that they are not planning to participate in 2014. The Hoh tribe has not expressed an interest in participating to date. NMFS proposes a tribal allocation that accommodates the Makah request, specifically 17.5% of the U.S. TAC. NMFS believes that the current scientific information regarding the distribution and abundance of the coastal Pacific whiting stock suggests that the 17.5% is within the range of the tribal treaty right to Pacific whiting.
        NMFS cannot at this time propose a specific amount for the tribal allocation because this amount depends on the amount of the U.S. TAC of whiting, which will not be determined until late March. Because the whiting fishery typically begins in May, the final rule establishing the whiting specifications for 2014 must be published by early April. Therefore, in order to provide for public input on the tribal allocation, NMFS is issuing this proposed rule without knowledge of the 2014 TAC. However, to provide a basis for public input, NMFS is describing a range of potential tribal allocations in this proposed rule, applying the proposed approach to determining the tribal allocation to a range of potential TACs derived from historical experience. The Joint Management Committee (JMC), which was established pursuant to the Agreement between the Government of the United States of America and the Government of Canada on Pacific Hake/Whiting (the Agreement), is anticipated to recommend the coastwide and corresponding U.S./Canada TACs no later than March 25, 2014. The U.S. TAC is 73.88% of the coastwide TAC.
        As mentioned above, NMFS is applying its proposed approach to determining the tribal allocation to the range of U.S. TACs over the last ten years, 2004 through 2013 (plus or minus 25% to capture variability in stock abundance) in order to project a range of potential tribal allocations for 2014. The range of TACs is 135,939 mt (2009) to 290,903 mt (2011). Applying the 25% variability results in a range of potential TACs from 101,954 mt to 363,629 mt for 2014.
        Application of the 17.5% requested by the Makah Tribe to the above modified range of U.S. TACs over the last ten years results in a tribal allocation of between 17,842 and 67,271 mt for 2014.
        As described earlier, NOAA Fisheries proposes this rule as an interim allocation for the 2014 tribal Pacific whiting fishery. As with past allocations, this proposed rule is not intended to establish any precedent for future whiting seasons or for the long-term tribal allocation of whiting.

        The rule would be implemented under authority of Section 305(d) of the Magnuson-Stevens Act, which gives the Secretary responsibility to “carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act.” With this proposed rule, NMFS, acting on behalf of the Secretary, would ensure that the FMP is implemented in a manner consistent with treaty rights of four Northwest tribes to fish in their “usual and accustomed grounds and stations” in common with non-tribal citizens. United States v. Washington, 384 F. Supp. 313 (W.D. 1974).
        Classification
        NMFS has preliminarily determined that the management measures for the 2014 Pacific whiting tribal fishery are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. In making the final determination, NMFS will take into account the data, views, and comments received during the comment period.
        The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.

        An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS and is published on the NMFS Web site under Groundfish Management (see ADDRESSES).
        This proposed rule would allocate 17.5 percent of the U.S. Total Allowable Catch of Pacific whiting for 2014 to Pacific Coast Indian tribes that have a Treaty right to harvest groundfish. The entities that this rule impacts are catcher vessels in the tribal fishery, and the following in the non-tribal fishery: Catcher vessels delivering to shoreside facilities; catcher vessels delivering to mothership vessels at sea; and catcher/processor vessels.

        Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. The Small Business Administration has established size criteria for all different industry sectors in the US, including fish harvesting and fish processing businesses. On June 20, 2013, the SBA issued a final rule revising the small business size standards for several industries effective July 22, 2013 (78 FR 37398; June 20, 2013). This change affects the classification of vessels that harvest groundfish under this program. The rule increased the size standard for Finfish Fishing from $4.0 to 19.0 million, Shellfish Fishing from $4.0 to 5.0 million, and Other Marine Fishing from $4.0 to 7.0 million (Id. at 37400—Table 1). Prior to SBA's recent changes to the size standards for commercial harvesters, a business involved in both the harvesting and processing of seafood products, also referred to as a catcher/processor (C/P), was considered a small business if it met the $4.0 million criterion for commercial fish harvesting operations. Prior NMFS policy was to apply the $4 million Finfish Harvest standard to C/Ps. For purposes of this proposed rulemaking, NMFS is applying the $19 million standard because whiting C/Ps are involved in the commercial harvest of finfish. The size standards for entities that process were not changed. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide.
        This rule proposes to allocate fish to tribal harvesters. There are four tribes that can participate in the tribal whiting fishery: The Hoh, Makah, Quileute, and Quinault. The current tribal fleet is composed of 5 trawlers that either deliver to a shoreside plant or to a contracted mothership. Based on groundfish ex-vessel revenues and on tribal enrollments (the population size of each tribe), the four tribes and their fleets are considered “small” entities.
        This rule would impact vessels in the non-tribal fishery that fish for Pacific whiting. Currently, there are three non-tribal sectors in the Pacific whiting fishery: Shorebased Individual Fishing Quota (IFQ) Program—Trawl Fishery; Mothership Coop (MS) Program—Whiting At-sea Trawl Fishery; and C/P Coop Program—Whiting At-sea Trawl Fishery.
        The Shorebased IFQ Program is composed of 138 Quota Share permits/accounts, 136 vessel accounts, and 42 first receivers. The MS Coop fishery is currently composed of a single coop, with six mothership processor permits, and 36 Mothership/Catcher-Vessel (MS/CV) endorsed permits, with one permit having two catch history assignments endorsed to it. The C/P Coop Program is composed of 10 C/P permits owned by three companies.
        Although there are three non-tribal sectors, many companies participate in two or more of these sectors. All mothership catcher-vessel participants participate in the shorebased IFQ sector, while two of the three catcher-processor companies also participate in both the shorebased IFQ sector and in the MS sector. Many companies own several QS accounts. After accounting for cross participation, multiple QS account holders, and for affiliation through ownership, there are 95 entities directly affected by these proposed regulations, 82 of which are considered to be “small” businesses.
        For the years 2008 to 2012, the total whiting fishery (tribal and non-tribal) has averaged harvests of 186,000 mt annually, worth $40 million in terms of ex-vessel revenues. As the U.S. TAC has been highly variable during this time, so have harvests. During this period, harvests have ranged from 121,000 mt (2009) to 248,000 mt (2008). In 2012, the harvest was approximately 160,000 mt. Ex-vessel revenues have also varied. Annual ex-vessel revenues have ranged from $14 million (2009) to $58 million (2008). Ex-vessel revenues in 2012 were about $47 million, with an average shorebased ex-vessel price of $295 per mt. Total whiting harvest in 2013 was approximately 233,000 mt worth $61 million, at an ex-vessel price of $262 per mt. The prices for whiting are largely determined by the world market for groundfish, because most of the whiting harvested is exported. Note that the use of ex-vessel values does not take into account the wholesale or export value of the fishery or the costs of harvesting and processing whiting into a finished product. NMFS does not have sufficient information to make a complete assessment of these values.
        The Pacific whiting fishery harvests almost exclusively Pacific whiting. While bycatch of other species occurs, the fishery is constrained by bycatch limits on key overfished species. This is a high-volume fishery with low ex-vessel prices per pound. This fishery also has seasonal aspects based on the distribution of whiting off the west coast.
        Since 1996, there has been a tribal allocation of the U.S. whiting TAC. Tribal fisheries undertake a mixture of fishing activities that are similar to the activities that non-tribal fisheries undertake. Tribal harvests are delivered to both shoreside plants and motherships for processing. These processing facilities also process fish harvested by non-tribal fisheries.
        This proposed rule would allocate 17.5 percent of Pacific whiting to the tribal fishery, and would ultimately determine how much is left for allocation to the non-tribal sectors, which are the Shorebased IFQ Program—Trawl Fishery; Mothership Coop (MS) Program—Whiting At-sea Trawl Fishery; and C/P Coop Program—Whiting At-sea Trawl Fishery. The amount of whiting allocated to both the tribal and non-tribal sectors is based on the U.S. TAC. From the U.S. TAC, small amounts of whiting that account for research catch and for bycatch in other fisheries are deducted. The amount of the tribal allocation is also deducted directly from the TAC. After accounting for these deductions, the remainder is the commercial harvest guideline. This guideline is then allocated among the other three sectors as follows: 34 percent for the C/P Coop Program; 24 percent for the MS Coop Program; and 42 percent for the Shorebased IFQ Program.
        The effect of the tribal allocation on non-tribal fisheries will depend on the level of tribal harvests relative to their allocation and the reapportioning process. Total whiting harvest in 2013 was approximately 233,000 mt worth $61 million, at an ex-vessel price of $262 per mt. Assuming a similar harvest level and ex-vessel price in 2014, if the tribe were to harvest 17.5%, the approximate value of that harvest would be $10.7 million. If the tribes do not harvest their entire allocation, there are opportunities during the year to reapportion unharvested tribal amounts to the non-tribal fleets. For example, last year, NMFS did such a reapportionment. On, September 18, 2013, NMFS announced: “The best available information on September 16, 2013, indicates that at least 30,000 mt of the tribal allocation of 63,205 mt for the 2013 tribal Pacific whiting fishery will not be used by December 31, 2013. Recent conversations with tribal fishery managers indicate that reapportioning 30,000 mt, leaving a tribal allocation of 33,205 mt, will not limit tribal harvest opportunities for the remainder of year. Tribal harvests to date amount to approximately 3,000 mt.”

        NMFS considered two alternatives for this action: The “No-Action” vs. the “Proposed Action.” NMFS did not consider a broader range of alternatives to the proposed allocation. The tribal allocation is based primarily on the requests of the tribes. These requests reflect the level of participation in the fishery that will allow them to exercise their treaty right to fish for whiting. Under the Proposed Action alternative, NMFS proposes to set the tribal allocation percentage at 17.5%, as requested by the tribes. This would yield a tribal allocation of between 17,842 and 67,271 mt for 2014. Consideration of a percentage lower than the tribal request of 17.5% is not appropriate in this instance. As a matter of policy, NMFS has historically supported the harvest levels requested by the tribes. Based on the information available to NMFS, the tribal request is within their tribal treaty rights. A higher percentage would, arguably, also be within the scope of the treaty right. However, a higher percentage would unnecessarily limit the non-tribal fishery.
        A no-action alternative was considered, but the regulatory framework provides for a tribal allocation on an annual basis only. Therefore, no action would result in no allocation of Pacific whiting to the tribal sector in 2014, which would be inconsistent with NMFS' responsibility to manage the fishery consistent with the tribes' treaty rights. Given that there is a tribal request for allocation in 2014, this alternative received no further consideration.

        NMFS believes this proposed rule would not adversely affect small entities. This reapportioning process allows unharvested tribal allocations of whiting, fished by small entities, to be fished by the non-tribal fleets, benefitting both large and small entities. Nonetheless, NMFS has prepared this IRFA and is requesting comments on this conclusion. See ADDRESSES.
        There are no reporting, recordkeeping or other compliance requirements in the proposed rule.
        No Federal rules have been identified that duplicate, overlap, or conflict with this action.
        NMFS issued Biological Opinions under the ESA on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the FMP for the Pacific Coast groundfish fishery was not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.
        NMFS issued a Supplemental Biological Opinion on March 11, 2006, concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior “no jeopardy” conclusion. NMFS also reaffirmed its prior determination that implementation of the Groundfish PCGFMP is not likely to jeopardize the continued existence of any of the affected ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.
        On December 7, 2012, NMFS completed a biological opinion concluding that the groundfish fishery is not likely to jeopardize non-salmonid marine species including listed eulachon, green sturgeon, humpback whales, Steller sea lions, and leatherback sea turtles. The opinion also concludes that the fishery is not likely to adversely modify critical habitat for green sturgeon and leatherback sea turtles. An analysis included in the same document as the opinion concludes that the fishery is not likely to adversely affect green sea turtles, olive ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific right whales, blue whales, fin whales, sperm whales, Southern Resident killer whales, Guadalupe fur seals, or the critical habitat for Steller sea lions.
        Steller sea lions and humpback whales are protected under the Marine Mammal Protection Act (MMPA). Impacts resulting from fishing activities proposed in this rule are discussed in the FEIS for the 2013-2014 groundfish fishery specifications and management measures. West coast pot fisheries for sablefish are considered Category II fisheries under the MMPA's List of Fisheries, indicating occasional interactions. All other west coast groundfish fisheries, including the trawl fishery, are considered Category III fisheries under the MMPA, indicating a remote likelihood of or no known serious injuries or mortalities to marine mammals. MMPA section 101(a)(5)(E) requires that NMFS authorize the taking of ESA-listed marine mammals incidental to U.S. commercial fisheries if it makes the requisite findings, including a finding that the incidental mortality and serious injury from commercial fisheries will have negligible impact on the affected species or stock. As noted above, NMFS concluded in its biological opinion for the groundfish fisheries that these fisheries were not likely to jeopardize Steller sea lions or humpback whales. The eastern distinct population segment of Steller sea lions was delisted under the ESA on November 4, 2013 (78 FR 66140). On September 4, 2013, based on its negligible impact determination dated August 28, 2013, NMFS issued a permit for three years to authorize the incidental taking of humpback whales by the sablefish pot fishery (78 FR 54553).
        On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) issued a biological opinion concluding that the groundfish fishery will not jeopardize the continued existence of the short-tailed albatross. The FWS also concurred that the fishery is not likely to adversely affect the marbled murrelet, California least tern, southern sea otter, bull trout, nor bull trout critical habitat.
        Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Consistent with the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, NMFS has coordinated specifically with the tribes interested in the whiting fishery regarding the issues addressed by this rule.

          List of Subjects in 50 CFR Part 660
          Fisheries, Fishing, Indian fisheries.

          Dated: February 24, 2014.
          Samuel D. Rauch III,
          Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:

          PART 660--FISHERIES OFF WEST COAST STATES

        1. The authority citation for part 660 is amended to read as follows:

          Authority:
          16 U.S.C. 1801 et seq. and 16 U.S.C. 773 et seq.

        2. In § 660.50, paragraph (f)(4) is revised to read as follows:

          § 660.50
          Pacific Coast treaty Indian fisheries.

          (f) * * *
          (4) Pacific whiting. The tribal allocation for 2014 will be 17.5 percent of the U.S. TAC.

      [FR Doc. 2014-04375 Filed 2-27-14; 8:45 am]
      BILLING CODE 3510-22-P