        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 030210027-3027-01; I.D. 012103E]
        RIN 0648-AQ35
        Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 37 to the Northeast Multispecies Fishery Management Plan

          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 to implement measures contained in Framework Adjustment 37 (Framework 37) to the Northeast Multispecies Fishery Management Plan (FMP) to eliminate the Year-4 default measure for whiting in both stock areas; reinstate the Cultivator Shoal whiting fishery (CSWF)  season through October 31; eliminate the 10-percent restriction on red hake incidental catch in the CSWF; adjust the incidental catch allowances in Small Mesh Areas 1 and 2 so that they are consistent with those in the Cape Cod Bay raised footrope trawl fishery; clarify the transfer-at-sea provisions for small-mesh multispecies for use as bait; and slightly modify the Cape Cod Bay raised footrope trawl fishery area.

          DATES:
          Comments on this proposed rule must be received on or before March 27, 2003.

          ADDRESSES:

          Copies of the Framework 37 document, its Regulatory Impact Review (RIR), the  Initial Regulatory Flexibility Analysis (IRFA) and supplement to the IRFA prepared by NMFS , the Environmental Assessment, and other supporting documents for the framework adjustment are available from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA  01950.  These documents are also available online at http://www.nefmc.org.

          This action is also based upon analyses conducted in support of Amendment 12 to the FMP.  Copies of the Amendment 12 document, its RIR, IRFA and the July 1, 1999, supplement to the IRFA prepared by NMFS, the Final Supplemental Environmental Impact Statement (FSEIS), and other supporting documents for Amendment 12 are available from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA  01950.  The Final Regulatory Flexibility Analysis for Amendment 12 consisted of the IRFA, public comments and responses contained in the final rule implementing Amendment 12 (65 FR 16766, March 29, 2000), and the summary of impacts and alternatives in that final rule.
          Written comments on the proposed rule should be sent to Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA  01930.  Mark the outside of the envelope “Comments on Framework 37.”  Comments may also be sent via facsimile (fax) to (978) 281-9135.  Comments will not be accepted if submitted via e-mail or the Internet.

          FOR FURTHER INFORMATION CONTACT:
          E. Martin Jaffe, Fishery Policy Analyst, 978-281-9272.

        SUPPLEMENTARY INFORMATION:
        Amendment 12 was developed to address the overfished condition of red hake and the southern stock of whiting, to reduce fishing mortality on northern whiting, which was approaching an overfished condition, and to establish management measures for offshore hake.  The final rule implementing Amendment 12, which was partially approved by NMFS on behalf of the Secretary of Commerce on September 1, 1999, was published on March 29, 2000 (61 FR 16766), and became effective on April 28, 2000.  The New England Fishery Management Council (Council) intended for the measures in Amendment 12 to achieve the target fishing mortality rates (F) for whiting within 4 years of implementation and to rebuild whiting and red hake stocks within 10 years.
        Under Amendment 12, fishing with small mesh is regulated in the North Atlantic region through the establishment of three large “Regulated Mesh Areas.”  In the Gulf of Maine/Georges Bank (GOM/GB) Regulated Mesh Area, vessels may fish for whiting with nets that have less than the minimum mesh size of 6-inch (15.24-cm) diamond mesh or 6.5-inch (16.51-cm) square mesh when participating in certain exempted fisheries.  The GOM/GB exempted fisheries for whiting include:   The Small Mesh Northern Shrimp Fishery, the CSWF, the Small Mesh Area 1/Small Mesh Area 2 Exemptions, and the Raised Footrope Trawl Whiting Fishery.  The CSWF has a 3-inch (7.62-cm) minimum mesh size, and the Raised Footrope Trawl Whiting Fishery has a 2.5-inch (6.35-cm) minimum mesh size.  In the Southern New England Regulated Mesh Area, vessels are exempt from the minimum mesh size requirement throughout the area when fishing for exempted species, which include whiting and offshore hake.  Finally, in the Mid-Atlantic Regulated Mesh Area, vessels may fish for whiting and offshore hake with nets of mesh less than the minimum size when not fishing under a multispecies day-at-sea (DAS), provided that the vessel does not possess or land regulated multispecies.

        Amendment 12 includes three possession limits, depending upon the minimum mesh size used.  Vessels may possess and land up to a combined total of 3,500 lb (1,588 kg) of whiting and offshore hake when fishing with mesh less than 2.5 inches (6.35 cm).  Vessels may possess and land up to a combined total of 7,500 lb (3,402 kg) of whiting and offshore hake when fishing with mesh equal to or greater than 2.5 inches (6.35 cm) and less than 3.0 inches (7.62 cm). Vessels may possess and land up to a combined total of 30,000 lb (13,608 kg) of whiting and offshore hake when fishing with mesh equal to or greater than 3.0 inches (7.62 cm).  These possession limits were intended to provide an incentive for vessels to utilize the larger 3-inch (7.62-cm) mesh when fishing for whiting to minimize the catch of small whiting.  Because red hake is primarily an incidental species caught in whiting and other small-mesh fisheries, the measures to protect whiting are expected to simultaneously protect red hake.  Offshore hake, a species similar to whiting, was included in the management measures to provide basic protection for the species and to ensure that misidentification of offshore hake is accounted for.
        Amendment 12 established the Whiting Monitoring Committee (WMC) to review the effectiveness of management measures and to recommend adjustments.  Such reviews occur annually, beginning in 2001.  The Council expected that the measures in Years 1, 2, and 3 would reduce exploitation by at least 50 percent of the required amount and that annual adjustments would indicate whether further management measures were needed.  To ensure attainment of the FMP's mortality objectives, the default measures were developed for Year 4.  The Council expected, and Amendment 12 specified, that the WMC would meet during the third year to determine whether the Year 4 default measures would be necessary.  Furthermore, during the third year, and based upon the effectiveness of the first three years of management, the WMC was charged with considering and recommending, if appropriate, small-mesh multispecies measures for Year 4, other than the default measures, to achieve the F targets.
        The Year 4 default measures would prohibit vessels from using nets with mesh size less than 3 inches (7.62 cm) (square or diamond) in most fisheries operating within the three Regulated Mesh Areas in New England and Mid-Atlantic waters and impose a 10,000-lb (4,536-kg) combined possession limit in most fisheries on whiting and offshore hake.  In addition, the existing possession limit for whiting and offshore hake in the Small Mesh Northern Shrimp Fishery would be reduced from an amount equal to the total weight of shrimp on board (not to exceed 3,500 lb (1,588 kg)) to 100 lb (45.3 kg).  Under the regulations that implement Amendment 12, these measures would become effective May 1, 2003, unless superseded by revised measures.
        The analyses in Amendment 12 indicated that substantial negative economic and social impacts would be likely to result from implementing the Year-4 default measure.  The default measure would be expected to generate large losses of not only small-mesh multispecies, but also other small mesh species, such as squid.  Shinnecock, NY, would be projected to experience the largest reductions in landings of all species combined from the Year 4 default measure (39.4 percent), followed by Greenport, NY (36.7 percent), Point Judith, RI (32.8 percent), Montauk, NY (25.9 percent), Gloucester, MA (16.4 percent), Portland, ME (14.8 percent), Provincetown, MA (11.5 percent), Cape May, NJ (9.7 percent), Point Pleasant, NJ (8.0 percent), and Belford, NJ (7.2 percent).  Although Connecticut ports could not be analyzed due to data limitations, it is likely that the default measure would produce similar impacts in the ports of Stonington and New London.
        In September 2002, the WMC released the 2002 Stock Assessment and Fishery Evaluation (SAFE) Report for small-mesh multispecies, which represents the WMC's third year review and includes recommendations regarding the Year 4 default measure (see Appendix I to Framework 37).  The WMC determined that the fishing mortality objectives of Amendment 12 appear to have been achieved, based on the evaluation of relative exploitation indices as a proxy for fishing mortality.
        The northern stock of whiting (as well as the northern stock of red hake) is considered to be “rebuilt,” or above its target biomass level according to the Amendment 12 overfishing definition.  The relative exploitation of northern whiting is far below the target value that the WMC set as a proxy for FMSY, so overfishing is not thought to be occurring (see Table 19, p.31 of the SAFE Report).  The current relative exploitation index is only 11 percent of the WMC's FMSY proxy.  With respect to management thresholds, targets, and biological objectives, exploitation of the northern stock of whiting could be increased.  The WMC concluded, therefore, that the Year 4 default measure is not necessary to further reduce effort on the northern stock of whiting.
        The southern stock of whiting is not considered to be in an overfished condition, according to the Amendment 12 overfishing definition based on a 3-year moving average of the trawl survey index.  The 3-year moving average of the trawl survey index increased from 0.63 in 1998 to 1.27 in 2001.  Currently, the stock is at 71 percent of its biomass target.  The relative exploitation of southern whiting is below the target value that the WMC set as a proxy for a target fishing mortality rate (see Table 19, p.31 of the SAFE Report), so overfishing is not thought to be occurring on the southern stock.  The current relative exploitation index is 47 percent of the WMC's target for this stock.  While the information that the WMC evaluated suggests that exploitation could increase in the southern area, this stock has not yet rebuilt to its target level, so increases in exploitation are not recommended.   Perceptions about the current biomass status of the southern stock hinge on a very high autumn 2001 survey value, which increased the 3-year moving average above the overfishing definition biomass threshold.  It is too early to conclude whether the high survey value in autumn 2001 is a product of survey variability or a true indication of increasing biomass in the southern area.  Several additional survey points will be necessary to make such a determination.  Although the WMC does not support increasing whiting exploitation in the southern area, it agrees that the Year 4 default measure is not necessary to further reduce effort.
        Northeast multispecies regulations, including those for small-mesh multispecies, are such that Council action (through a framework adjustment or amendment) is required to prevent the Year 4 default measure from becoming effective on May 1, 2003, in both the northern and southern stock areas.  In preparation for the third year review by the WMC and in anticipation of an action to address the default measure, the Council approved the following motion at its March 19-20, 2002, meeting:

          That the Council initiate a framework adjustment process to develop a management strategy that responds to the Year 4 management measures contained in the whiting plan and allows for potential development of new whiting fishing areas.

        The WMC presented its findings and recommendations to the Council at the September 10-12, 2002, meeting, which was the first meeting for Framework 37.  (The WMC's findings and recommendations can be found in their entirety in Appendix I to the Framework 37 document.)

        The purpose of this framework adjustment is to eliminate the Year 4 default measure in both whiting stock areas and to implement FMP adjustments to allow for moderate increases in effort on small-mesh multispecies in the northern stock area.  This adjustment is necessary because current regulations specify that the Year 4 default measure will become effective in both stock areas on May 1, 2003, unless a Council action modifies or eliminates it.
        This proposed rule would also reinstate the CSWF season through October 31; eliminate the 10-percent restriction on red hake incidental catch in the CSWF; adjust the incidental catch allowances in Small Mesh Areas 1 and 2 so that they are consistent with those in the Cape Cod Bay raised footrope trawl fishery; clarify the transfer-at-sea provisions for small-mesh multispecies for use as bait; and slightly modify the Cape Cod Bay raised footrope trawl fishery area.
        Prior to Amendment 12, the season for the CSWF was June 15-October 31.  Amendment 12 shortened the season to September 30 as an effort reduction measure.  This action would reinstate the month of October to the CSWF, which would provide increased economic opportunity for participating vessels.  Further discussion occurs in the Classification section, below.
        Currently, participants in the CSWF are limited in terms of their red hake landings to 10 percent by weight of all other fish on board.  According to the WMC, there is no biological reason to restrict the catch of red hake at this time.  The current restriction on red hake landings may cause discards in the CSWF.  Because of market limitations, it is unlikely that the proposed action would encourage directed fishing on red hake.  This action also would simplify and improve the consistency of regulations for exempted fisheries in the northern stock area since no other exempted small mesh fishery in the northern area includes such a restriction on red hake landings.
        Three of the four exempted whiting fisheries in the northern area currently require the use of a raised footrope trawl to minimize bycatch of groundfish.  However, the incidental catch allowances for these three fisheries are not consistent with each other.  The incidental catch allowances for the Cape Cod Bay raised footrope trawl fishery were established to discourage vessels from rigging their gear improperly and allowing it to fish on the ocean bottom.  As a result, bottom-dwelling species, such as lobster and monkfish, are prohibited in the Cape Cod Bay raised footrope trawl fishery.  Because Small Mesh Areas 1 and 2 require the raised footrope trawl, the Council felt it appropriate to allow the same incidental catch species for Small Mesh Areas 1 and 2 and to provide the same incentives for fishing the required gear properly.  Specifically, monkfish, lobster, ocean pout, and sculpin would no longer be allowed to be taken as incidental catch in Small Mesh Areas 1 and 2.  The following species would be the only allowable incidentally caught species in these areas:  Red hake, squid, butterfish, mackerel, dogfish, herring, and scup.
        Clarification of the transfer at sea provisions for small-mesh multispecies represents the status quo for vessels that are currently engaged in this activity.  Vessels would be allowed to transfer 500 lb (226.8 kg) of whiting and unlimited amounts of red hake at sea for use as bait.
        The slight area modification to the Cape Cod Bay raised footrope trawl fishery would provide Provincetown fishermen with improved access to this fishery in times of inclement and unpredictable weather, thereby promoting the safety of the Provincetown vessels, which tend to be smaller and older than vessels from other ports.  Specifically, the southern boundary of the area would move from the Loran 44100 line to the 42° N. latitude line, creating a “lee” by opening a triangle-shaped area totaling 5.5 square miles.
        Classification
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        The Council prepared an IRFA that describes the economic impact this proposed rule, if adopted, would have on small entities.  In addition, NMFS, in consultation with the Council,  prepared a supplement to the IRFA, which includes further information considered by the Council related to the decision on whether or not to propose a change to the CSWF possession limit.  A description of the reasons why this action is being considered, and the objectives of and legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble.  There are no new recordkeeping or reporting requirements proposed in this rule.  There are no relevant Federal rules that duplicate, overlap, or conflict with this rule.  All vessels impacted by this rulemaking are considered to be small entities; therefore, there are no impacts resulting from the effects of disproportionality between large and small entities.  A summary of the analysis follows:
        NMFS and the Council prepared an economic analysis for Amendment 12, which indicated that implementation of the amendment, including the restrictive Year 4 default measures, would have a significant economic impact on a substantial number of small entities.  Since costs of individual vessel operations were not available, gross revenues were used as a proxy for profitability   The analysis indicated that 1,156 participating small entities reported landings of one or more combined pounds of whiting, red hake, and offshore hake during the calendar years 1995 to 1997.   The management measures proposed for Years 1-3 were estimated to “substantially” reduce gross revenues from all species for 81 vessels.  If the default measures were to be implemented, 222 vessels would be likely to experience a substantial reduction in annual gross revenues.
        Framework adjustment 37 proposes to eliminate the Year 4 default measures for small-mesh multispecies in both the northern and southern whiting stock areas, and to adjust measures to allow increased opportunities to fish for small-mesh multispecies in the northern area.  A summary of the economic impacts of the measures to be substituted for the Year 4 default measures follow.
        Impacts of Reinstating the CSWF Season
        Adjustments to measures in the CSWF increase economic opportunities for affected entities.  An average of 16 vessels participated in the CSWF from 1995-2001; 25 vessels participated in the fishery during 2001.  Reinstating October to the CSWF season would have beneficial economic effects for vessels that had traditionally prosecuted the fishery during October and would increase economic opportunity for other vessels that are able to participate.   Maintaining the current CSWF season (through September 30) would result in fewer opportunities to harvest whiting and lost economic opportunities for fishermen who otherwise would participate in the CSWF.
        Impacts of Eliminating the Restriction on Red Hake Incidental Catch Allowance in the CSWF
        Landings data for red hake do not indicate that the current incidental catch allowance is a constraint to increased retention of red hake.  Elimination of the red hake incidental catch allowance in the CSWF would permit vessels to increase trip profits on the occasions where the current incidental catch allowance would be exceeded.  For this reason, removal of the incidental catch allowance would not be likely to result in any market effects but would permit vessels to increase trip income on the occasions where the current allowance would be exceeded.

        Impacts of Modifying Incidental Catch Allowances for Small Mesh Areas 1 and 2
        The proposed modifications to the incidental catch allowances in Small Mesh Areas 1 and 2 may have some negative economic impacts since monkfish and lobster would be prohibited (78 vessels fished in Small Mesh Areas 1 and 2 during 2000).  For the period 1998-2001,  the landed value of lobster and monkfish from these fisheries has averaged about $30,000 annually, based on an average of  1,800 trips per year.  Given the low level of revenues from these species in Small Mesh Areas 1 and 2, it is expected that this action will have only a minimal impact on vessel profitablity.  It is unlikely that the proposed change in catch allowances would have any substantial impact on gross revenues from all sources of fishing income for vessels participating in this fishery.  However, at a trip-level, there may be some occasions where revenues from monkfish or lobster could affect vessel profitability for a given trip.  In these cases, eliminating the incidental catch allowance would have a negative economic impact, as the trip may be abandoned.  This outcome is difficult to predict.
        Impacts of Clarifying the Transfer at Sea Provisions for Small-Mesh Multispecies
        Clarification of the transfer at sea provisions for small-mesh multispecies would allow vessels to transfer 500 lb (226.8 kg) of whiting and unlimited amounts of red hake at sea for use as bait and would represent the status quo for vessels that are currently engaged in this activity.  Minimal impacts would be expected.
        Impacts of Area Modification to the Cape Cod Bay Raised Footrope Trawl Fishery
        The southern boundary of the Cape Cod Bay Raised Footrope Trawl Fishery area would move from the Loran 44100 line to the 42° N. latitude line, creating a “lee” by opening a triangle-shaped area totaling 5.5 square miles.  This slight area modification would likely produce small but positive economic impacts to vessels prosecuting this fishery.
        Impacts of Retention of the 30,000 Possession Limit for the CSWF
        The Council concluded that the proposed retention of the status quo 30,000-lb (13.6 mt) possession limit for the CSWF would have no economic impact to present participants in the fishery since gross revenues are not expected to change under this trip limit.  The Council also considered but rejected four alternatives to the proposed possession limit including a default possession limit of 10,000 lb (4.5 mt) and three higher possession limits, ranging from 50,000 to 90,000 lb (22.7 to 40.8 mt).  The Council determined that the 10,000 lb (4.5 mt) default possession limit, which was previously analyzed in Amendment 12 to the FMP, would have substantially negative impacts resulting from an estimated 20,000 lb (9 mt) or 67 percent reduction in the possession limit.   Some fishing vessel owners believe that retention of the current 30,000 lb (13.6 mt) possession limit would continue to serve as a disincentive for them to participate in the CSWF by restricting their potential profitability.  However, the Council concluded that under higher possession limits, the majority of present participants in the fishery could suffer substantial decreases in gross revenues and resulting profitability due to disproportionate decreases in whiting prices when large amounts of product are introduced simultaneously into the market.  This was the case prior to the introduction of the possession limit in 2000.

          List of Subjects in 50 CFR Part 648
          Fishing, Fisheries, Reporting and recordkeeping requirements.

          Dated:  February 14, 2003.
          Rebecca Lent,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

            PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

          2.  In § 648.13, paragraph (b)(2) introductory text is revised to read as follows:

            § 648.13
            Transfers at sea.

            (b) * * *
            (2) Vessels issued a Federal multispecies permit under § 648.4(a)(1) may transfer from one vessel to another, for use as bait, up to 500 lb (226.8 kg) of silver hake and unlimited amounts of red hake, per trip, provided:

            § 648.14 [Amended]

          3. In § 648.14, paragraph (z)(2) is removed and reserved.

          4.  In § 648.80,
          a.  Revise paragraphs (a)(5)(i), (a)(6)(i), (a)(8)(i) and (a)(8)(ii), (a)(9)(i) and (a)(9)(ii) introductory text, (a)(10)(i)(D), and (a)(15) introductory text and (a)(15)(i)(B).  Paragraph (a)(15)(i)(C) is removed and reserved.
          b.  Revise paragraph (b)(3)(i) to read as follows:

            § 648.80
            Multispecies regulated mesh areas and restrictions on gear and methods of fishing.

            (a) * * *
            (5) * * *
            (i) Restrictions on fishing for, possessing, or landing fish other than shrimp. An owner or operator of a vessel fishing in the northern shrimp fishery under the exemption described in this paragraph (a)(5) may not fish for, possess on board, or land any species of fish other than shrimp, except for the following, with the restrictions noted, as allowable incidental species:   Longhorn sculpin; combined silver hake and offshore hake—up to an amount equal to the total weight of shrimp possessed on board or landed, not to exceed 3,500 lb (1,588 kg); and American lobster—up to 10 percent, by weight, of all other species on board or 200 lobsters, whichever is less, unless otherwise restricted by landing limits specified in § 697.17 of this chapter.  Silver hake and offshore hake on board a vessel subject to this possession limit must be separated from other species of fish and stored so as to be readily available for inspection.

            (6) * * *
            (i) Requirements. (A) A vessel fishing in the Cultivator Shoal Whiting Fishery Exemption Area under this exemption must have on board a valid letter of authorization issued by the Regional Administrator.
            (B) An owner or operator of a vessel fishing in this area may not fish for, possess on board, or land any species of fish other than whiting and offshore hake combined—up to a maximum of 30,000 lb (13,608 kg), except for the following, with the restrictions noted, as allowable incidental species:   Herring; longhorn sculpin; squid; butterfish; Atlantic mackerel; dogfish; red hake; monkfish and monkfish parts—up to 10 percent, by weight, of all other species on board or up to 50 lb (23 kg) tail-weight/166 lb (75 kg) whole-weight of monkfish per trip, as specified in § 648.94(c)(4), whichever is less; and American lobster—up to 10 percent, by weight, of all other species on board or 200 lobsters, whichever is less, unless otherwise restricted by landing limits specified in § 697.17 of this chapter.

            (C) Counting from the terminus of the net, all nets must have a minimum mesh size of 3-inch (7.6-cm) square or diamond mesh applied to the first 100 meshes (200 bars in the case of square mesh) for vessels greater than 60 ft (18.28 m) in length applied to and the first 50 meshes (100 bars in the case of square mesh) for vessels less than or equal to 60 ft (18.3 m) in length.

            (D) Fishing is confined to a season of June 15 through October 31, unless otherwise specified by notification in the Federal Register.
            (E) When a vessel is transiting through the GOM or GB Regulated Mesh Areas specified under paragraphs (a)(1) and (a)(2) of this section, any nets with a mesh size smaller than the minimum mesh specified in paragraphs (a)(3) or (a)(4) of this section must be stowed in accordance with one of the methods specified in § 648.23(b), unless the vessel is fishing for small-mesh multispecies under another exempted fishery specified in this paragraph (a).
            (F) A vessel fishing in the Cultivator Shoal Whiting Fishery Exemption Area may fish for small-mesh multispecies in exempted fisheries outside of the Cultivator Shoal Whiting Fishery Exemption Area, provided that the vessel complies with the requirements specified in this paragraph (a)(6)(i) for the entire trip.

            (8) * * *
            (i) Regulated multispecies. An exemption may be added in an existing fishery for which there are sufficient data or information to ascertain the amount of regulated species bycatch, if the Regional Administrator, after consultation with the NEFMC, determines that the percentage of regulated species caught as bycatch is, or can be reduced to, less than 5 percent, by weight, of total catch and that such exemption will not jeopardize fishing mortality objectives.  In determining whether exempting a fishery may jeopardize meeting fishing mortality objectives, the Regional Administrator may take into consideration various factors including, but not limited to, juvenile mortality.  A fishery can be defined, restricted, or allowed by area, gear, season, or other means determined to be appropriate to reduce bycatch of regulated species.  An existing exemption may be deleted or modified if the Regional Administrator determines that the catch of regulated species is equal to or greater than 5 percent, by weight, of total catch, or that continuing the exemption may jeopardize meeting fishing mortality objectives.  Notification of additions, deletions or modifications will be made through issuance of a rule in the Federal Register.
            (ii) The NEFMC may recommend to the Regional Administrator, through the framework procedure specified in § 648.90(b), additions or deletions to exemptions for fisheries, either existing or proposed, for which there may be insufficient data or information for the Regional Administrator to determine, without public comment, percentage catch of regulated species.

            (9) * * *
            (i) Description. (A) Unless otherwise prohibited in § 648.81, a vessel subject to the minimum mesh size restrictions specified in paragraphs (a)(3) or (a)(4) of this section may fish with or possess nets with a mesh size smaller than the minimum size, provided the vessel complies with the requirements of paragraphs (a)(5)(ii), or (a)(9)(ii) of this section and of § 648.86(d), from July 15 through November 15, when fishing in Small Mesh Area 1, and from January 1 through June 30, when fishing in Small Mesh Area 2.  While lawfully fishing in these areas with mesh smaller than the minimum size, an owner or operator of any vessel may not fish for, possess on board, or land any species of fish other than:   Silver hake and offshore hake--up to the amounts specified in § 648.86(d); butterfish; dogfish; herring; Atlantic mackerel; scup; squid; and red hake.
            (B) Small-mesh areas 1 and 2 are defined by straight lines connecting the following points in the order stated (copies of a chart depicting these areas are available from the Regional Administrator upon request (see Table 1 to § 600.502 of this chapter)):
            Small Mesh Area I
            Point            N. Lat.            W. Long.
            SM1  43°03′     70°27′
            SM2  42°57′     70°22′
            SM3  42°47′     70°32′
            SM4  42°45′     70°29′
            SM5  42°43′     70°32′
            SM6  42°44′     70°39′
            SM7  42°49′     70°43′
            SM8  42°50′     70°41′
            SM9  42°53′     70°43′
            SM10 42°55′     70°40′
            SM11 42°59′     70°32′
            SM1  43°03′     70°27′
            Small Mesh Area II
            Point   N. Lat.    W. Long.
            SM13 43°05.6′ 69°55′
            SM14 43°10.1′ 69°43.3′
            SM15 42°49.5′ 69°40′
            SM16 42°41.5′ 69°40′
            SM17 42°36.6′ 69°55′
            SM13 43°05.6′ 69°55′
            (ii) Raised footrope trawl. Vessels fishing with trawl gear must configure it in such a way that, when towed, the gear is not in contact with the ocean bottom.  Vessels are presumed to be fishing in such a manner if their trawl gear is designed as specified in paragraphs (a)(9)(ii)(A) through (D) of this section and is towed so that it does not come into contact with the ocean bottom.

            (10) * * *
            (i) * * *
            (D) Incidental species provisions. The following species may be possessed and landed, with the restrictions noted, as allowable incidental species in the Nantucket Shoals Dogfish Fishery Exemption Area:   Longhorn sculpin; silver hake—up to 200 lb (90.7 kg); monkfish and monkfish parts—up to 10 percent, by weight, of all other species on board or up to 50 lb (23 kg) tail-weight/166 lb (75 kg) whole-weight of monkfish per trip, as specified in § 648.94(c)(4), whichever is less; American lobster—up to 10 percent, by weight, of all other species on board or 200 lobsters, whichever is less, unless otherwise restricted by landing limits specified in § 697.17 of this chapter; and skate or skate parts—up to 10 percent, by weight, of all other species on board.

            (15) Raised Footrope Trawl Exempted Whiting Fishery. Vessels subject to the minimum mesh size restrictions specified in paragraphs (a)(3) or (a)(4) of this section may fish with, use, or possess nets in the Raised Footrope Trawl Whiting Fishery area with a mesh s ze smaller than the minimum size specified, if the vessel complies with the requirements specified in paragraph (a)(15)(i) of this section.  This exemption does not apply to the Cashes Ledge Closure Areas or the Western GOM Area Closure specified in § 648.81(h) and (i).  The Raised Footrope Trawl Whiting Fishery Area (copies of a chart depicting the area are available from the Regional Administrator upon request) is defined by straight lines connecting the following points in the order stated:
            RAISED FOOTROPE TRAWL WHITING FISHERY EXEMPTION AREA
            (September 1 through November 20)
            Point      N. Lat.     W. Long.
            RF1 42°14.05′  70°08.8′
            RF2 42°09.2′   69°47.8′
            RF3 41°54.85′  69°35.2′
            RF4 41°41.5′   69°32.85′
            RF5 41°39′     69°44.3′
            RF6 41°45.6′   69°51.8′
            RF7 41°52.3′   69°52.55′
            RF8 41°55.5′   69°53.45′

            RF9 42°08.35′  70°04.05′
            RF10 42°04.75′ 70°16.95′
            RF11 42°00′    70°13.2′
            RF12 42°00′    70°24.1′
            RF13 42°07.85′  70°30.1′
            RF1 42°14.05′  70°08.8′
            RAISED FOOTROPE TRAWL WHITING FISHERY EXEMPTION AREA
            (November 21 through December 31)
            Point  N. Lat.  W. Long.
            RF1 42°14.05′  70°08.8′
            RF2 42°09.2′   69°47.8′
            RF3 41°54.85′  69°35.2′
            RF4 41°41.5′   69°32.85′
            RF5 41°39′     6°44.3′
            RF6 41°45.6′   69°51.8′
            R7F 41°52.3′   69°52.55′
            RF8 41°55.5′   69°53.45′
            RF9 42°08.35′  70°04.05′
            RF1 42°14.05′  70°08.8′
            (i) * * *
            (B) All nets must be no smaller than a minimum mesh size of 2.5-inch (6.35-cm) square or diamond mesh, subject to the restrictions as specified in paragraph (a)(14)(i)(D) of this section.  An owner or operator of a vessel enrolled in the raised footrope whiting fishery may not fish for, possess on board, or land any species of fish other than whiting and offshore hake subject to the applicable possession limits as specified in § 648.86, except for the following allowable incidental species:   Red hake; butterfish; dogfish; herring; mackerel; scup; and squid.
            (b) * * *
            (3) Exemptions—(i) Species exemptions. Owners and operators of vessels subject to the minimum mesh size restrictions specified in paragraphs (a)(4) and (b)(2) of this section, may fish for, harvest, possess, or land butterfish, dogfish (trawl only), herring, Atlantic mackerel, ocean pout, scup, shrimp, squid, summer flounder, silver hake and offshore hake, and weakfish with nets of a mesh size smaller than the minimum size specified in the GB and SNE Regulated Mesh Areas when fishing in the SNE Exemption Area defined in paragraph (b)(10) of this section, provided such vessels comply with requirements specified in paragraph (b)(3)(ii) of this section and with the mesh size and possession limit restrictions specified under § 648.86(d).

      [FR Doc. 03-4332 Filed 2-24-03; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AU81

        Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Tidewater Goby (Eucyclogobius newberryi)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period, notice of availability of draft economic analysis, and amended Required Determinations.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on the 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 the draft economic analysis of the proposed revised critical habitat designation and an amended Required Determinations section of the proposal.

          The draft economic analysis estimates post-designation costs associated with conservation efforts for the tidewater goby to be approximately $25 million (undiscounted) over the next 20 years (2007 to 2026) as a result of the proposed designation of critical habitat. Discounted future costs are estimated to be approximately $22 million ($1.5 million annualized) at a 3 percent discount rate or approximately $20 million ($1.8 million annualized) at a 7 percent discount rate. Potential cost savings in Unit VEN-2 associated with tidewater goby conservation efforts range from approximately $35 million to $90 million (undiscounted dollars). By combining these savings with the estimated costs of conservation efforts, an overall net cost savings of approximately $10 million to $65 million (undiscounted) could be realized over the next 20 years. In present value terms, net cost savings range from approximately $9.8 million to $60 million (assuming a 3 percent discount rate) or approximately $9.1 million to $54.0 million (assuming a 7 percent discount rate).
          We are reopening the comment period for the proposed rule to allow all interested parties an opportunity to comment simultaneously on the proposed rule, the associated draft economic analysis, and the amended Required Determinations section. Comments previously submitted need not be resubmitted as they will be incorporated into the public record as part of this comment period, and will be fully considered in preparation of the final designation.

          DATES:
          We will accept public comments until October 10, 2007.

          ADDRESSES:
          You may submit comments and materials to us by any one of the following methods:
          (1) You may mail or hand-deliver written comments and information to the Field Supervisor, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003.
          (2) You may fax your comments to 805/644-3958.

          (3) You may send comments by electronic mail (e-mail) to: fw8gobydea@fws.gov. For instructions on how to file comments electronically, see the “Public Comments Solicited” section below. In the event that our Internet connection is not functional, please submit your comments by one of the alternate methods listed in this section.

          (4) You may submit your comments via the Federal eRulemaking Portal at http://www.regulations.gov. Follow the instructions for submitting comments.

          FOR FURTHER INFORMATION CONTACT:

          Chris Dellith, Biologist, or Michael McCrary, Listing and Recovery Coordinator, Ventura Fish and Wildlife Office, at the street address listed in ADDRESSES (telephone 805/644-1766; 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 Solicited
        During this reopened comment period, we solicit comments on the proposed revised critical habitat designation (71 FR 68914; November 28, 2006), our draft economic analysis 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 the designation can be expected to result in an increase in threats to the species from human activity that outweighs the benefit of designation to the species such that the designation of critical habitat is not prudent.
        (2) Specific information on the amount and distribution of tidewater goby habitat; what habitat or habitat features are essential to the conservation of this species and why, which areas occupied at the time of listing containing these features should be included in the critical habitat designation and why, and which areas not occupied at the time of listing are essential to the conservation of the species and should be included in the designation and why.
        (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed revised critical habitat.
        (4) 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.
        (5) Whether our general approach to determine which localities to include in proposed revised critical habitat (44 of the 106 localities that are currently occupied by tidewater gobies) could be improved or modified.
        (6) Specifically with reference to those State Park lands under the jurisdiction of the California Department of Parks and Recreation (CDPR) that are proposed for designation, information on any areas covered by conservation or management plans that we should consider for exclusion from the designation under section 4(b)(2) of the Act.
        (7) Any additional proposed critical habitat areas covered by conservation or management plans that we should consider for exclusion from the designation under section 4(b)(2) of the Act. We specifically request any information on any operative or draft habitat conservation plans for the tidewater goby that have been prepared under section 10(a)(1)(B) of the Act, or any other management or other conservation plan or agreement that benefits the goby or its primary constituent elements.
        (8) Any information concerning Tribal lands or trust resources that may be impacted by this proposed revision to critical habitat.
        (9) Information on whether the draft economic analysis should include the voluntary cost of land acquisition by The Nature Conservancy and Trust for Public Lands in Ventura County. These organizations have and will continue to acquire lands in Ventura County to prevent structured flood control (e.g., channelization), which may threaten many species, including the tidewater goby.
        (10) Information on whether the draft economic analysis identifies all State and local costs and benefits attributable to the proposed revised critical habitat designation, and information on any costs or benefits that have been inadvertently overlooked.
        (11) Information on whether the draft economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes that would be imposed as a result of the revised designation of critical habitat.
        (12) Information on whether the draft economic analysis correctly assesses the effect on regional costs associated with any land use controls that may derive from the revised designation of critical habitat.
        (13) Information on areas that could potentially be disproportionately impacted by the revised designation of tidewater goby critical habitat. The draft economic analysis indicates the potential economic effects of undertaking conservation efforts for this species in California. Based on this information, we may consider excluding portions of these areas from the final revised designation per our discretion under section 4(b)(2) of the Act.

        (14) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities, and the benefits of including or excluding areas that exhibit these impacts; the reasons why our conclusion that the proposed designation of critical habitat would not result in a disproportionate effect on small businesses should or should not warrant further consideration; and other information that would indicate that the designation of critical habitat would or would not have any impacts on small entities.
        (15) Information on whether the draft economic analysis appropriately identifies all costs that could result from the revised designation.
        (16) Information on whether there are any additional quantifiable economic benefits that could result from the revised designation;
        (17) Whether the benefit of excluding any particular area from the critical habitat designation under section 4(b)(2) of the Act outweighs the benefit of including the area in the designation.
        (18) Economic data on the incremental effects that would result from designating any particular area as revised critical habitat, since it is our intent to include the incremental costs attributed to the revised critical habitat designation in the final economic analysis.
        The Secretary shall designate critical habitat on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. Under section 4(b)(2) of the Act, an area may be excluded from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of including a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. We may exclude an area from designated critical habitat based on economic impacts, national security, or any other relevant impact.

        Comments and information submitted during the initial comment period on the November 28, 2006, proposed rule (71 FR 68914) need not be resubmitted. If you wish to comment, you may submit your comments and materials concerning the proposed rule, draft economic analysis, or the amended Required Determinations provided in this document by any one of several methods (see ADDRESSES). Our final designation of critical habitat will take into consideration all comments and any additional information we receive during both comment periods. On the basis of information provided during the public comment periods on the revised critical habitat proposal and the draft economic analysis, and on the basis of the final economic analysis, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

        You may submit your comments and material concerning the above actions by any one of several methods (see ADDRESSES). If you use e-mail to submit your comments, please include “Attn: RIN 1018-AU81” in your e-mail subject header, preferably with your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your e-mail, contact us directly by calling our Ventura Fish and Wildlife Office at 805-644-1766.

        Before including your address, phone number, e-mail address, or other personal identifying information in your comments, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold from public view your personal identifying information, we cannot guarantee that we will be able to do so. Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate revised critical habitat, will be available for public inspection, by appointment during normal business hours, at the Ventura Fish and Wildlife Office at the street address listed under ADDRESSES.

        You may obtain copies of the proposed rule and draft economic analysis by mail from the Ventura Fish and Wildlife Office (see ADDRESSES), or by calling 805-644-1766 extension 301, or by visiting our Web site at http://www.fws.gov/ventura/.
        Background

        Under the terms of a December 21, 2004, settlement agreement, we agreed to submit for publication in the Federal Register a proposed revised critical habitat designation for the tidewater goby by November 15, 2006. We published a proposed rule to revise critical habitat for the tidewater goby on November 28, 2006 (71 FR 68914). The proposed revised critical habitat includes approximately 10,003 acres (ac) (4,050 hectares (ha)) for the tidewater goby in Del Norte, Humboldt, Mendocino, Sonoma, Marin, San Mateo, Santa Cruz, Monterey, San Luis Obispo, Santa Barbara, Ventura, and Los Angeles Counties, California.
        Critical habitat is defined in section 3 of the Act 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 of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, in accordance with section 7(a)(2) of the Act.
        Draft Economic Analysis
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial 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. Based on the November 28, 2006, proposed rule to designate revised critical habitat for the tidewater goby (71 FR 68914), we have prepared a draft economic analysis of the proposed revised critical habitat designation for the tidewater goby.
        The draft economic analysis is intended to quantify the economic impacts of all potential conservation efforts for the tidewater goby; some of these costs will likely be incurred regardless of whether critical habitat is designated. The draft economic analysis considers past costs associated with the conservation of the species from the time it was listed (February 4, 1994; 59 FR 5494), as well as costs of conservation-related measures that are likely to be associated with future economic activities that may adversely affect the habitat within the proposed boundaries over a 20-year period. For a further description of the methodology of the analysis, see section 1.3 (Approach to Estimating Economic Impacts) of the draft economic analysis.

        The draft economic analysis describes economic impacts of tidewater goby conservation efforts associated with 5 categories of activities: (1) Water management; (2) grazing; (3) transportation; (4) natural resource management; and (5) oil and gas pipeline construction and maintenance. The draft economic analysis estimates pre-designation costs associated with the conservation of the species to be approximately $11.3 million (undiscounted). Discounted costs are estimated to be approximately $13.1 million at a 3 percent discount rate or approximately $16.3 million at a 7 percent discount rate. The draft economic analysis estimates post-designation costs associated with conservation efforts for the tidewater goby to be approximately $25 million (undiscounted) over the next 20 years (2007 to 2026). Discounted future costs are estimated to be approximately $22 million ($1.5 million annualized) at a 3 percent discount rate or approximately $20 million ($1.8 million annualized) at a 7 percent discount rate.
        In critical habitat Unit VEN-2, the City of Ventura's Water Reclamation Facility (VWRF) discharges effluent into the Santa Clara River, sustaining water levels in tidewater goby habitat. Existing water quality control regulations have the potential to require VWRF to cease discharge of effluent into the estuary, which would force the City of Ventura to build a new ocean outfall facility for the effluent. The Service has recommended that the discharge be continued to protect sensitive species, including tidewater goby, for the discharge simulates a more natural environment by maintaining water levels. Potential cost savings to VWRF of installing tertiary treatment and constructing new facilities, rather than moving to an ocean outfall, ranges from $35 million to $90 million (undiscounted).
        The cost savings to VWRF are factored into the analysis of economic impacts associated with tidewater goby conservation. By combining these savings with the estimated post-designation costs of conservation efforts described above ($25 million), an overall net cost savings of approximately $10 million to $65 million (undiscounted) could be realized over the next 20 years. In present value terms, potential net cost savings from the designation of critical habitat for the tidewater goby range from approximately $9.8 million to $60 million (assuming a 3 percent discount rate) or approximately $9.1 million to $54.0 million (assuming a 7 percent discount rate).
        The draft economic analysis considers the potential economic effects of actions relating to the conservation of the tidewater goby, including costs associated with sections 4, 7, and 10 of the Act, and including those attributable to designating critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for the tidewater goby in areas containing features essential to the conservation of the species. The draft analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (e.g., lost economic opportunities associated with restrictions on land use).
        The draft analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the draft analysis looks retrospectively at costs that have been incurred since the date the tidewater goby was listed as endangered (February 4, 1994; 59 FR 5494) and considers those costs that may occur in the 20 years following a designation of critical habitat. Forecasts of economic conditions and other factors beyond this point would be speculative.
        As stated earlier, we solicit data and comments from the public on the draft economic analysis, as well as on all aspects of the proposal. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the 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 as critical habitat, provided such exclusion would not result in the extinction of the species.
        Required Determinations—Amended
        In our November 28, 2006, proposed rule (71 FR 68914), we indicated that we would be deferring 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 was available in the draft economic analysis. Those data are now available for our use in making these determinations. In this notice we are affirming the information contained in the proposed rule concerning Executive Order (E.O.) 13132; E.O. 12988; the Paperwork Reduction Act; and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). Based on the information made available to us in the draft economic analysis, we are amending our Required Determinations, as provided below, concerning E.O. 12866 and the Regulatory Flexibility Act, E.O. 13211, E.O. 12630, and the Unfunded Mandates Reform Act.
        Regulatory Planning and Review
        In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. Based on our draft economic analysis of the proposed revised designation of critical habitat for the tidewater goby, post-designation costs associated with conservation efforts for the tidewater goby (as described above) are estimated to be approximately $25 million (undiscounted) over the next 20 years (2007 to 2026). Discounted future costs are estimated to be approximately $22 million ($1.5 million annualized) at a 3 percent discount rate or approximately $20 million ($1.8 million annualized) at a 7 percent discount rate. In addition, potential cost savings in Unit VEN-2 associated with VWRF's continued maintenance of adequate water flows for the tidewater goby range from approximately $35 million to $90 million (undiscounted dollars). By combining these savings with the estimated post-designation costs of conservation efforts described above ($25 million), an overall net cost savings of approximately $10 million to $65 million (undiscounted) could be realized over the next 20 years. In present value terms, net cost savings from the designation range from approximately $9.8 million to $60 million (assuming a 3 percent discount rate) or approximately $9.1 million to $54.0 million (assuming a 7 percent discount rate).

        Therefore, based on our draft economic analysis, we have determined that the proposed revised designation of critical habitat for the tidewater goby will not result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the Federal Register, the Office of Management and Budget (OMB) did not formally review the proposed rule.

        Further, Executive Order 12866 directs Federal Agencies promulgating regulations to evaluate regulatory alternatives (Office of Management and Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it has been determined that the Federal regulatory action is appropriate, the agency will then need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement under the Act, we must evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat.
        In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat provided the benefits of such exclusion outweigh the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as  amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)) (SBREFA), 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 effect 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 an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based upon our draft economic analysis 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 received, this determination is subject to revision as part of the final rulemaking.
        According to the Small Business Administration (SBA), 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 revised 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. We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies; non-Federal activities are not affected by the designation.
        If this proposed revised critical habitat designation is made final, Federal agencies must consult with us under section 7(a)(2) of the Act if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
        In our draft economic analysis of the proposed revised critical habitat designation, we evaluate the potential economic effects on small business entities resulting from conservation actions related to the listing of the tidewater goby and proposed designation of critical habitat. Small entities were evaluated within the following types of economic activities: Water management, grazing, transportation, natural resource management, and oil and gas pipeline construction and maintenance. Based on the results of the analysis, only small entities conducting water management activities and small entities holding cattle grazing permits have the potential to be affected.
        The majority of water management activities are large-scale projects involving entities that are not considered small. The primary water management impacts are for expected land purchases to allow flooding and for expected flood control activities. Future conservation enabling land purchases that allow flooding to occur unimpeded are expected from the California Department of Fish and Game (CDFG), The Nature Conservancy, the Trust for Public Land, and the California Coastal Conservancy. The California Coastal Conservancy and CDFG are public agencies, and part of the government of the State of California; they are therefore not considered to be small entities. Both the Trust for Public Land and the Nature Conservancy are national organizations that are dominant in their fields and are not considered small entities.
        There are multiple planned flood control mitigation measures by the U.S. Army Corps of Engineers, various California State departments (e.g., Department of Fish and Game, California Coastal Commission), and by several California County governments. Del Norte County is the only County that contains proposed revised critical habitat that meets the definition of small (population less than 50,000); Del Norte County had a population of 27,507 in 2000. Expected water management impacts to Del Norte County are estimated to be $4,000 per year. Del Norte County had annual gross revenues of $51 million in 2004. Thus, impacts to Del Norte County resulting from tidewater goby conservation efforts are considered negligible (less than 0.01 percent of yearly gross revenues).
        Impacts to grazing activities include costs associated with fence construction and the value of lost forage. The costs of constructing fences are expected to be borne by the public agencies that manage the lands. These agencies (primarily the CDFG) are not considered small entities. Lost forage value is expected to be borne by the private ranchers that hold permits for grazing on State lands in the study area. However, because the amount of State lands available for grazing within the study area is relatively small, the impacts of lost forage value are also relatively minor. The percentage impact per small grazing entity is expected to be negligible unless all impacts are borne by a single entity.

        In summary, we have considered whether this proposed revised designation would result in a significant economic impact on a substantial number of small business entities. For the above reasons and based on currently available information, we certify that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis is not required.

          Executive Order 13211

        On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. According to the draft economic analysis, the estimated impacts of tidewater goby conservation efforts on Venoco, Inc. for planned oil and gas pipeline construction and maintenance are $145,000 (undiscounted). The operating expenses for oil and natural gas production for Venoco, Inc. were $87.5 million in 2006. Thus, the impacts of tidewater goby conservation efforts are only 0.2 percent of oil and gas production expenses for Venoco, Inc. These impacts are negligible when compared with the cost of energy production and distribution. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

          Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:
        (a) This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, Tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or Tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) A condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”
        The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities who receive Federal funding, assistance, permits or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
        (b) As discussed in the draft economic analysis of the proposed designation of critical habitat for the tidewater goby, the impacts on small governments is expected to be small. As stated above, expected water management impacts to Del Norte County are estimated to be $4,000 per year. Del Norte County had annual gross revenues of $51 million in 2004. Therefore impacts to Del Norte County for water management are expected to be less than 0.01 percent of yearly gross revenues. Consequently, we do not believe that the designation of critical habitat for the tidewater goby would significantly or uniquely affect these small governmental entities. As such, a Small Government Agency Plan is not required.

          Executive Order 12630

        In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing revised critical habitat for the tidewater goby in a takings implications assessment. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that this proposed designation of revised critical habitat for the tidewater goby does not pose significant takings implications.
        References Cited

        A complete list of all references cited in this rulemaking is available upon request from the Field Supervisor, Ventura Fish and Wildlife Office (see ADDRESSES).
        Author
        The primary author of this notice is the staff of the Ventura Fish and Wildlife Office.
        Authority

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

          Dated: September 14, 2007.
          David M. Verhey,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

       [FR Doc. E7-18632 Filed 9-24-07; 8:45 am]
      BILLING CODE 4310-55-P