Streamlined Issuance of AD

The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and Federal Register requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products.

This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2007-0131-E, dated May 11, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for these French-certificated helicopters. The MCAI states:

Eurocopter has issued Emergency Alert Service Bulletin (ASB) No. 67.00.29, Revision 1, dated April 27, 2007. The actions described in the MCAI are intended to correct the same unsafe condition as that identified in the service information.

This product has been approved by the aviation authority of France, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. However, the requirements of this AD must be accomplished within 10 hours TIS after the effective date of this AD. The MCAI requires accomplishment before next flight. Additionally, this AD requires that components with bore diameters outside the tolerances specified in the ASB be replaced with airworthy components with bore diameters within the specified tolerances instead of contacting the manufacturer for a “suitable repair solution.”

These differences are highlighted in the “Differences Between the FAA AD and the MCAI” section in the AD.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because installation of an incompatible load compensator lever may result in restricted yaw control travel or increased control loads in the yaw control pedals and the incompatibility must be corrected within 10 hours TIS. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0043; Directorate Identifier 2007-SW-31-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

We estimate that this AD will affect about 36 products of U.S. registry. We also estimate that it will take about .25 work-hour to inspect the helicopter and 10 work-hours to replace a load compensator lever, if needed. The average labor rate is $80 per work-hour. Required parts will cost about $1,161 for a load compensator lever, P/N 355A27-0072-00, or $862 for a load compensator lever, P/N 355A27-0082-00. Based on these figures, we estimate the cost of this AD on U.S. operators to be $720 to inspect, or $20 per product, assuming no load compensation levers are replaced.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Background

The temporary regulations (TD 9369) that are the subject of the correction are under sections 11, 55, 1502, 1561 and 1563 of the Internal Revenue Code.

As published, temporary regulations (TD 9369) contain an error that may prove to be misleading and is in need of clarification.

We did not publish a notice of proposed rulemaking (NPRM) for this temporary rule. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. It would be contrary to the public interest to delay implementing this temporary rule, as any delay might result in damage or injury to the public, vessels, and facilities in the area of Molokini Crater. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register .

Although the Coast Guard has good cause to issue this temporary rule without first publishing a proposed rule, you are invited to submit post-promulgation comments and related material regarding this rule through February 8, 2008. All comments will be reviewed as they are received. Your comments will assist us in drafting future rules should they be necessary, and may cause us to change this temporary final rule before it expires.

All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided. We have an agreement with the Department of Transportation (DOT) for their Docket Management Facility to process online submissions to Coast Guard dockets. You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov.

During a cite survey on Molokini Crater, surveyors discovered three pieces of unexploded ordnance requiring disposal. The Coast Guard, in consultation with the U.S. Fish and Wildlife Service, the State of Hawaii, the City and County of Maui, the U.S. Navy, and the Federal Aviation Administration, has determined it is necessary to close the area in the vicinity of Molokini Crater in order to minimize the dangers that fragmentation, explosive arcs, and possible fires may present to persons and vessels. Should such an incident occur, or in the event that EOD personnel would require emergency assistance, rescuers must have immediate and unencumbered access to the area. Also, vessels operating in the area might otherwise distract EOD and rescue personnel. The Coast Guard, through this action, intends to promote the safety of personnel, vessels, and facilities in the area of Molokini Crater.

This temporary safety zone encompasses all waters up to and within one nautical mile of the shoreline of Molokini Crater, from the surface of the water to the ocean floor. It is effective from January 27, 2008 through February 8, 2008, but will be enforced for periods of ten hours or less on the effective dates. Unpredictable weather and sea states make a broad date and time range necessary to safely complete the EOD. Enforcement periods will be announced over marine band VHF channel 16 prior to enforcement to ensure ample public notification. In accordance with the general regulations in 33 CFR part 165, subpart C, no person or vessel is permitted to enter or remain in the zone except for support vessels/aircraft and support personnel, or other vessels authorized by the Captain of the Port or his designated representatives. Vessels, aircraft, or persons in violation of this rule are subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

This rule is not a “significant regulatory action” under § 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under § 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. This expectation is based on the limited duration of the zone and the limited geographic area affected by it.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. We expect that there will be little impact to small entities due to the narrowly tailored scope of this safety zone.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If this rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant (Junior Grade) Jasmin Parker, U.S. Coast Guard Sector Honolulu at (808) 842-2600. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and either preempts State law or imposes a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards is inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, under figure 2-1, paragraph (34)(g) of the Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. An “Environmental Analysis Checklist” and “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES.

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001 et seq. ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year, on FEMA's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

I. Background

This final rule adopts various updates and amendments to the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) based on PHMSA initiatives and petitions for rulemaking submitted in accordance with 49 CFR 106.95. Most of the amendments, as detailed below, are intended to provide relief to industry by eliminating, revising, clarifying, or relaxing regulatory requirements.

This final rule also adds a new entry to the Hazardous Materials Table (HMT) for ethanol and gasoline blends with more than 10 percent alcohol (e.g., E85). This new entry—“Ethanol and gasoline mixtures or Ethanol and motor spirit or Ethanol and petrol mixture, with more than 10% ethanol, 3, UN 3475, II,”—coupled with a revision to the entry—“Gasohol gasoline mixed with ethyl alcohol, with not more than 20 percent alcohol, 3, NA1203, II”—will enhance the effectiveness of hazard communication and response by aligning the classification scheme with emergency response protocols. Because these protocols vary based on the concentration of ethanol (or “ethyl alcohol”) in a gasoline mixture, differentiating in the classification of blends is critical to effective hazard communication. To minimize regulatory cost and burden, these requirements will not become effective for two years; however, voluntary compliance is permitted immediately.

In response to two petitions for rulemaking, we are adopting expanded small quantity exceptions for Packing Group II and III materials in Class 3, Division 4.1, Division 4.2, Division 4.3, Division 5.1, Division 6.1, Class 8, and Class 9. This exception is expected to yield annual savings of about $1 million, with no adverse safety impact.

Also in this final rule, we are:

(1) Updating provisions incorporating consensus standards issued by the Chlorine Institute and the Compressed Gas Association (see §§ 171.7, 173.301, 178.337-9, and 178.337-10).

(2) Adding a definition for “household wastes” to clarify the current exception in the HMR for transportation of such materials (see §§ 171.8, 173.12 and 173.134).

(3) Revising the HMT to harmonize certain entries with international standards (see § 172.101) by removing, adding, and revising certain proper shipping names.

(4) Revising certain hazard communication provisions to address shipping paper requirements for marine pollutants, marking requirements for limited quantities, proper shipping name markings on packages, and labeling of intermediate bulk containers (IBCs) (see §§ 172.203, 172.315, and 172.406).

(5) Clarifying requirements applicable to the transportation of dry ice on aircraft, detonator assemblies, and packagings authorized for the transportation of certain explosives (see §§ 173.24, 173.61, 173.62, 173.217, 175.30, and 175.900).

(6) Clarifying that a shipper must use a carrier with a safety permit to transport hazardous materials for which safety permits are required as specified under the Federal Motor Carrier Safety Regulations (see § 173.22).

(7) Clarifying segregation requirements for hazardous materials transported by motor carrier (see § 177.848).

We published a notice of proposed rulemaking (NPRM) under this docket on September 26, 2006 (71 FR 55757). The comment period for the NPRM closed on November 24, 2006. PHMSA received comments from the following individuals, companies, and organizations:

(1) Lawrence Laude (Laude; PHMSA-05-21812-3);

(2) Hydro-Test Products Inc. (Hydro-Test; PHMSA-05-21812-4);

(3) Henry Hsiu (Hsiu; PHMSA-05-21812-5);

(4) Archer Daniels Midland Company (ADM; PHMSA-05-21812-6);

(5) Regulatory Resources Inc. (RRI; PHMSA-05-21812-7);

(6) United Parcel Service (UPS; PHMSA-05-21812-8);

(7) Florida Power and Light Company (FPL; PHMSA-05-21812-9);

(8) Laboratory Corporation of America (LabCorp; PHMSA-05-21812-10);

(9) Krista Duncan (Duncan; PHMSA-05-21812-11);

(10) Petroleum Marketers Association of America (PMAA; PHMSA-05-21812-12);

(11) Health and Personal Care Logistics Conference, Inc. (H&PCLC; PHMSA-05-21812-13);

(12) Association of Hazmat Shippers, Inc. (AHS; PHMSA-05-21812-14);

(13) Veolia Environmental Services Technical Solutions L.L.P.C. (Veolia; PHMSA-05-21812-15);

(14) National Tank Truck Carriers (NTTC; PHMSA-05-21812-16);

(15) Renewable Fuels Association (RFA; PHMSA-05-21812-17);

(16) American Trucking Associations (ATA; PHMSA-05-21812-18);

(17) Petroleum Marketers and Convenience Stores of Iowa (PMCI; PHMSA-05-21812-19);

(18) Shell Chemical LP (Shell Chemical; PHMSA-05-21812-20); and

(19) BWXT Pantex, LLC (BWXT Pantex; PHMSA-05-21812-21).

Commenters were generally supportive of PHMSA's efforts to update, clarify, or provide relief from certain regulatory requirements. Many of the proposals in the NPRM were either fully supported by commenters or received no comment; these amendments are adopted as proposed. Each of the proposals, with corresponding comments, is discussed in more detail below.

Alternative fuels have been produced and used on a small scale for decades, driven by environmental, economic, and energy security concerns. The most common of these fuels, designated E85, is being used and transported in increasing volumes in the United States. A blend of 85 percent ethyl alcohol (ethanol) and 15 percent petroleum (gasoline), E85 poses unique hazards that must be communicated and understood immediately in the case of a transportation incident. E85 and other fuel blends with high ethanol concentration are polar/water-miscible flammable liquids (i.e., they mix with water) and will degrade the effectiveness of fire-fighting foam that is not alcohol-resistant.

The 2004 Emergency Response Guidebook (ERG2004) instructs emergency responders to use different fire extinguishing materials based on the relative concentration of ethanol in a blended fuel. ERG 2004 refers to Guide 127 (Flammable Liquids Polar/Water-Miscible), which specifies the use of alcohol resistant foam for response to incidents involving Alcohols, n.o.s., 3, UN1987, or Denatured alcohol, 3, NA1987. For incidents involving blends of gasoline and ethanol (typically transported under the shipping descriptions “Flammable liquid, n.o.s., (ethanol, gasoline), 3, UN1993”, and “Gasohol, 3, NA1203”), ERG 2004 refers to Guide 128 (Flammable Liquids Non-Polar/Water-Immiscible). Guide 128 specifies the use of regular foam but contains the following warning: “CAUTION: For mixtures containing a high percentage of an alcohol or polar solvent, alcohol-resistant foam may be more effective.”

To help emergency responders utilize the most effective emergency response procedures for incidents involving fuel blends composed of ethanol (or “ethyl alcohol”) and gasoline in various concentrations, we proposed in the NPRM to add a new proper shipping description, “Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol and petrol mixture, with more than 10% ethanol, 3, UN3475, II” to the HMT. This new HMT entry is consistent with a new shipping description adopted within the Fifteenth Revised Edition of the United Nations Recommendations on the Transport of Dangerous Goods (UN Recommendations).

In addition, we proposed to revise the hazard communication requirements for compartmented cargo tanks, tank cars, or cargo tanks that carry materials under this description. Currently, the HMR provide exceptions from the identification number marking requirements for each of the different liquid petroleum distillate fuels, including gasohol containing up to 20% ethanol, transported in a compartmented cargo tank or tank car if the identification number is displayed for the liquid petroleum distillate fuel having the lowest flash point. Because of this exception, emergency responders may not know that fires involving materials transported in a compartmented cargo tank or tank car should be handled with alcohol resistant foam. In the NPRM, we proposed to eliminate this exception for materials described under the proposed new HMT entry “Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol and petrol mixture, with more than 10% ethanol, 3, UN3475, II”. Thus, as proposed, display of the new UN identification number for ethanol fuel blends would be required to ensure that emergency responders understand the unique response measures applicable to such materials.

To facilitate compliance with the new provisions applicable to ethanol fuel blends, we proposed a two-year transition period. We asked commenters specifically to address the proposed transition period, including whether the transition period would provide sufficient time for shippers and carriers to incorporate the proposed new shipping name and UN identification number into shipping papers and package markings with minimal disruptions to normal business operations. We also asked if the proposed two-year transition period should be shortened to ensure that the new shipping name and UN identification number are utilized as quickly as possible. In addition, we requested comments on how to balance these two potentially competing goals.

Shell strongly supports the addition of the new proper shipping description, “Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol and petrol mixture, with more than 10% ethanol, 3, UN3475, II.” Shell contends the new description will provide more effective guidance to emergency responders. Shell also notes that ethanol content greater than 10 percent in motor fuel blends requires alcohol resistant foam to minimize blanket break down and vapor breakthrough and re-ignition.

Five commenters [ADM, PMAA, NTTC, RFA, and PMCI] suggest that the emergency response requirements cited in the NPRM could be satisfied through other, more effective or less costly means. PMCI suggests that adoption of the proposed amendments would increase confusion for persons attempting to determine the most appropriate shipping description for gasoline/alcohol fuel blends. NTTC and PMCI suggest using a uniform gasoline “UN1203” marking for both gasoline and gasoline/alcohol fuel blends, while revising the ERG to specify the use of alcohol resistant foam for any Class 3, Flammable liquid, rather than incorporating a new shipping description into the HMR. As an alternative to this approach, PMCI recommends authorizing the new shipping description for both gasoline and gasoline/alcohol fuel blends. Under this alternative, multiple compartmented cargo tanks transporting both gasoline and gasoline/alcohol fuel blends could display only one UN identification number rather than multiple UN identification numbers representing different types of fuel blends.

Several commenters addressed the potential cost impacts of our proposal to limit the applicability of the current exception that permits display of the UN identification number for the material having the lowest flashpoint on multi-compartmented cargo tank motor vehicles and rail tank cars transporting different liquid petroleum distillate fuels, including gasoline and gasohol. One commenter [PMAA] asserts that the proposed rule would impose significant costs for retrofitting trucks to display multiple UN identification numbers. In response to our request for specific comments regarding the costs for tank truck carriers to comply with the proposal, NTTC states that it is unable to quantify the total number of tank trucks in ethanol service. NTTC states that its members operate over 10,000 petroleum trailers and that these trailers are equipped to transport both ethanol and gasoline, although NTCC cannot confirm the extent to which trailers actually transport both materials. NTTC further asserts that due to the shortage of petroleum trailers currently in service, with the introduction of ultra-low sulfur diesel (ULSD) and other alternative fuels, it is not practical to “dedicate” these trailers exclusively to gasoline or ethanol service. As a result, NTTC suggests that trailers should be equipped to handle both. Regarding the identification marking provisions, NTTC states that the majority of cargo tank motor vehicles, most of which have multiple compartments, have Hazard Class 3, FLAMMABLE LIQUID placards with UN1203 “gasoline” markings permanently affixed to them. NTTC estimates costs approaching or equaling $600 per vehicle to convert the identification numbers and placards on a multi-compartmented cargo tank.

We believe that the new shipping description for gasoline/ethanol fuel blends will enhance emergency responders' ability to respond effectively to incidents involving these materials. A unique shipping description and UN identification number will enable emergency responders to quickly identify whether an ethanol fuel blend is present and minimize confusion as to appropriate response measures. The new shipping description will be incorporated into the 2008 edition of the ERG. Therefore, we are adopting the proposed new shipping description “Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture, with more than 10% ethanol, Class 3, UN3475, II.”

We disagree with the cost estimates from NTTC. As detailed in a May 1, 2006 letter of clarification (Reference Number 01-0082R; included in the docket for this rulemaking), the marking exception does not apply to multi-compartment cargo tanks or rail tank cars containing a fuel blend with more than 10 percent alcohol and various petroleum distillate fuels because the alcohol-fuel blend does not meet the definition for a petroleum distillate fuel. Therefore, a multi-compartment cargo tank or rail tank car containing an alcohol-fuel blend together with petroleum distillate fuels such as gasoline must be marked with the identification number applicable to the fuel blend, in addition to the identification number of the petroleum distillate fuel.

For example, under current requirements, a compartmented cargo tank containing Gasoline, UN1203; Diesel Fuel, UN1993; Flammable liquid, n.o.s. (E85), UN1993; and Denatured Alcohol, NA1987, must display identification numbers “1203,” “1993” (for the E85), and “1987.” After the effective date of this final rule, a compartmented cargo tank carrying the same materials will be required to display identification numbers “1203,” “3475” (for the E85), and “1987.” In this scenario, the only modification is replacement of the identification number “1993” (for the E85) with new identification number “3475” for gasoline and alcohol blends containing more than 10% alcohol. The cost to replace one identification number marking on up to 4 sides of the vehicle should be significantly less than the costs estimated by commenters.

Further, to minimize the cost of transitioning to the new UN3475 marking, we are permitting motor carriers to transport E85 in accordance with the most recent marking requirements in place prior to the publication of this rule for a period of two years following the effective date of this final rule. Specifically, we are permitting use of compartmented cargo tanks, tank cars, and cargo tanks displaying the current UN identification number marking of the distillate fuel having the lowest flashpoint in addition to the UN identification number marking of fuel blends containing more than 10 percent alcohol. We believe the two-year transition period will substantially reduce the financial burden on carriers affected by this amendment by allowing them to retain the current permanent markings on their tanks while transitioning to the new identification marking for UN3475. We did not receive any comments opposing the implementation of a two-year transition period.

Currently, the HMR references special provision 172 under the entries “Denatured alcohol, NA1987” and “Alcohols, n.o.s., UN1987.” Special provision 172 allows for the alcohols described under these entries to contain up to 5 percent petroleum products. The ethanol blend, E95, is an alcohol solution containing up to 5 percent petroleum product and may be described as either “Denatured alcohol, NA1987” or “Alcohols, n.o.s., UN1987.” Therefore, to maintain consistency with the current requirements and to further offset potential costs, we are allowing transportation of ethanol and gasoline blends containing no more than 5 percent petroleum product and described as “Denatured alcohol” or “Alcohols, n.os.” to be marked with the identification number “1987” instead of “3475.” This exception is consistent with a comment submitted by RFA noting that many ethanol-fuel blends such as E95 (containing 95% ethanol and 5% gasoline), are currently shipped in bulk packagings marked with the UN identification number “1987,” corresponding to the proper shipping names “Denatured alcohol” and “Alcohols, n.o.s.” Although we are not introducing a new shipping description that corresponds to the identification number “1987” as suggested by RFA, we agree that the proper shipping names “Alcohols, n.o.s., UN1987” and “Denatured alcohol, NA1987” are acceptable alternatives to the new proper shipping name “Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture, with more than 10% ethanol , UN3475” for ethanol and gasoline mixtures containing not more than 5 percent petroleum products.

In relation to adding the new proper shipping description, “Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol and petrol mixture, with more than 10% ethanol, 3, UN3475, II,” we proposed in the NPRM to add a new Special Provision 177 in § 172.102 to specify the proper applicability of this new description. We received no comments opposing this proposed amendment and are, therefore, adopting it as proposed.

To correspond with the new shipping description in this final rule, we are also revising the entry for “Gasohol gasoline mixed with ethyl alcohol, with not more than 20 percent alcohol, 3, NA1203, II” to limit this entry to gasoline blends with not more than 10 percent alcohol. The purpose of this revision is to make it explicitly clear that gasoline blends containing more than 10 percent ethanol should be described under the new shipping description “Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol and petrol mixture, with more than 10% ethanol, 3, UN3475, II.” To minimize the financial impact of this revision we are authorizing continued use of the entry “Gasohol gasoline mixed with ethyl alcohol, with not more than 20 percent alcohol, 3, NA1203, II” for two years following the effective date of this final rule.

In conjunction with the new description for gasoline and ethanol blends with more than 10 percent ethanol, Shell suggests removing the entry “Gasohol, NA1203” and revising the entry for “Gasoline, UN1203” to add a special provision that specifically communicates to shippers that the entry “Gasoline, UN1203” may be used for gasoline and ethanol blends with not more than 10 percent ethanol for use in spark-ignition engines. We agree that Shell's suggestion has merit. Although we are not removing the entry “Gasohol, NA1203” in this rule, we are revising the entry “Gasoline, UN1203” to allow for this description to be used for gasoline and ethanol blends with not more than 10 percent ethanol. We are revising the proper shipping name in column 2 of the HMT to include the allowance in italics following the name “Gasoline.” This will provide shippers with the flexibility to accurately describe gasoline containing small amounts of ethanol on their shipping documentation. The ever increasing amount of gasoline blends containing 10 percent or less ethanol makes this modification particularly important.

The following chart compares currently authorized proper shipping names and the proper shipping names authorized under this final rule for gasoline and gasoline-alcohol blends:

Marine pollutants are hazardous materials that present an environmental hazard to rivers, lakes, streams, oceans, and other marine habitats. Section 171.4 prohibits the transportation of materials meeting the definition of a marine pollutant except in accordance with HMR requirements. Marine pollutants transported in non-bulk packagings are excepted from HMR requirements, unless the transportation is by vessel.

The International Vessel Operators Hazardous Materials Association, Inc. (VOHMA) petitioned PHMSA (P-1465) to amend the HMR to clarify that the exception for non-bulk packages of marine pollutants transported by motor vehicle, rail car or aircraft does not apply to a marine pollutant “intended for transport” aboard a vessel. VOHMA states that the current language suggests the consignor who prepares the shipment and offers it in intermodal transportation has no obligation to declare the marine pollutant on the shipping paper if the initial transport is by motor vehicle or rail. As a result, a shipment intended for transportation by vessel and initially offered into transportation by highway, rail or air may be improperly described on the vessel shipping documents by a freight forwarder.

To address VOHMA's concerns, in the NPRM we proposed to clarify in § 171.4(c) that shipments for which all or part of the transportation is by vessel must conform to applicable HMR requirements, even if the initial transportation is by rail or highway. We also proposed to amend § 172.203(l), which addresses shipping paper requirements for shipments of marine pollutants, to clarify that marine pollutants in non-bulk packagings transported all or in part by vessel must be shown on the shipping paper with the words “Marine Pollutant” appearing in association with the basic description.

One commenter [Hsiu] supports the proposed clarification. Another commenter [Shell Chemical] expresses concern regarding our proposed clarification in § 172.203(l). Shell Chemical states that addressing marine pollutants only is not broad enough to address VOHMA's petition. Shell Chemical notes that the proposed amendment for marine pollutants would not address other shipping paper provisions specific to vessel shipments and the IMDG Code, which, while not required for U.S. domestic land transportation, are mandatory for vessel transportation. The commenter notes as an example the requirement for adding the minimum flashpoint to the shipping paper if the flashpoint is less than 60.5°C, which is required in § 172.203(i) for vessel transportation. The commenter also states that shippers who use computer systems may have a problem generating a single shipping description to meet all the requirements for vessel shipments where the initial carriage is by highway and subsequent carriage is by vessel. In this situation, according to Shell Chemical, the computer system normally generates two shipping documents: one for the highway portion of the shipment and another, which is sent to the shipper's port agent, covering the vessel portion and containing the IMDG Code description. To address these issues, Shell Chemical suggests revising only § 172.203(i) to require a shipper who offers a hazardous material by vessel either directly or indirectly to provide the initial carrier or port agent all information necessary for shipment in accordance with the IMDG Code and allow for the IMDG Code information to appear either on the initial carrier's shipping paper or on a separate document. We disagree. The addition of the language proposed by Shell Chemical would require all vessel shipments to conform to the IMDG Code, which is authorized but not required for domestic shipments. Further, because no provision of the HMR prohibits inclusion of additional information in a shipping paper, making express allowance for this in § 172.203(i) would be redundant and unnecessary. Therefore, we are adopting the amendments as proposed.

The “National Technology Transfer and Advancement Act of 1996” directs agencies to use voluntary consensus standards. According to the Office of Management and Budget (OMB), Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” government agencies must use voluntary consensus standards wherever practical in the development of regulations. Agency adoption of industry standards promotes productivity and efficiency in government and industry, expands opportunities for international trade, conserves resources, improves health and safety, and protects the environment.

To these ends, PHMSA actively participates in the development and updating of consensus standards through representation on more than 20 national consensus standards bodies. PHMSA regularly reviews updated consensus standards and considers their merit for inclusion in the HMR. Section 171.7 lists all standards incorporated by reference into the HMR.

In this case, we evaluated the following updated consensus standards pertaining to cargo tanks and compressed gas cylinders and determined that the revised standards provide an enhanced level of safety without imposing significant compliance burdens. These standards have a well-established and documented safety history; their adoption will maintain the high safety standard currently achieved under the HMR. We received no comments opposing our adoption of the consensus standards and informational materials proposed in the NPRM. Therefore, we are updating, revising, and adding the following reference materials in paragraphs (a)(3) and (b) of § 171.7:

• In response to a Chlorine Institute petition (P-1444), under the entry “Chlorine Institute,” we are updating “Type 1 1/2 JQ 225, Dwg., H51970, Revision D April 5, 1989; or Type 1 1/2 JQ 225, Dwg. H50155, Revision F, April 4, 1989” to Revisions F and H respectively.

• In response to a Chlorine Institute petition (P-1444), under the entry “Chlorine Institute,” we are updating “Section 3, Pamphlet 57, Emergency Shut-Off Systems for Bulk Transfer of Chlorine, 3rd Edition, October 1997” to the 4th Edition, October 2003.

• In response to a Chlorine Institute petition (P-1444), under the entry “Chlorine Institute,” we are adding a reference to “Section 3, Pamphlet 166 Angle Valve Guidelines for Chlorine Bulk Transportation, 1st Edition, October 2002.”

• In response to a Chlorine Institute petition (P-1444) and a Midland Manufacturing Corporation petition (P-1448), under the entry “Chlorine Institute,” we are adding a reference to “Typical Manway Arrangement Chlorine Cargo Tank, Dwg. 137-5, November 1996.”

• In response to a Chlorine Institute petition (P-1444), under the entry “Chlorine Institute,” we are removing the reference to “Standards for Housing and Manway Covers for Steel Cargo Tanks, Dwgs. 137-1 and 137-2, September 1, 1982.”

• In response to a Compressed Gas Association (CGA) petition (P-1482), we are updating “CGA Pamphlet C-5 Cylinder Service Life—Seamless Steel High Pressure Cylinders, 1991” to the reaffirmed 1995 Edition.

• In response to a CGA petition (P-1472), we are updating “CGA Pamphlet C-7, A Guide for the Preparation of Precautionary Markings of Compressed Gas Containers, appendix A, issued 1992 (6th Edition)” to the 2004 (Eighth) Edition. The updated pamphlet allows for hazard class numbers to be placed on subsidiary labels which is prohibited in the 1992 Edition.

• In response to a CGA petition (P-1440), we are authorizing the use of “S-1.1, Pressure Relief Device Standards—Part 1—Cylinders for Compressed Gases, 2005 (with the exception of paragraph 9.1.1.1), Twelfth Edition” for DOT specification cylinders and UN pressure receptacles. Consequently, we will be removing references to the Ninth Edition (1996) and Eleventh Edition (2003).

• In response to a CGA petition (P-1440), we are updating “CGA Pamphlet S-7, Method for Selecting Pressure Relief Devices for Compressed Gas Mixtures in Cylinders, 1996” to the 2005 Edition.

• We are updating “ISO 7225, Gas cylinders—Precautionary labels, First Edition, November 1994, (Corrected and reprinted August 1995), (E)” to the Second Edition, July 2005.

Paragraph (b) of this section contains a list of informational materials not requiring incorporation by reference. These materials are for informational purposes only and are not mandatory requirements. In the NPRM, we proposed to revise paragraph (b) of this section to add a reference to CGA publication, “C-1.1, Personnel Training and Certification Guidelines for Cylinder Requalification by the Volumetric Expansion, issued 2004 (1st Edition).” In addition we proposed to add a new paragraph (g)(6) to § 180.205 to indicate that the CGA publication is an example of materials that may be used to train personnel in requalifying cylinders using the volumetric expansion method.

One commenter [Hydro-Test] states that other commercially available guidelines concerning the requalification of cylinders may be overlooked if the CGA publication is specifically referenced in the HMR. We recognize that other satisfactory training materials are available or may be developed. It is not our intention to require the use of a particular set of training materials. Rather, as the rule text makes explicit, the referenced publication is cited only as an example of available training materials.

Although the HMR explicitly exempt shipments of “hazardous waste” (§ 173.134(b)(13)(i)), the term “hazardous waste” is not defined in the rules. In the NPRM, we proposed to include a new definition for “Household wastes” to mean “any solid waste (including garbage, trash, and sanitary waste from septic tanks) derived from households (including single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas).” We also proposed to clarify in § 173.12, which provides packaging exceptions for hazardous waste shipments, that household wastes are not subject to the HMR.

Three commenters [Duncan; Veolia; and RRI] oppose the amendments, suggesting that the proposed definition would allow unregulated transportation of household hazardous wastes to and from household waste collection centers. RRI also asserts the proposed definition could cause confusion because it would except all “household wastes,” without regard to hazards, quantities, or commercial or personal generation.

The commenters appear to have misunderstood our intent in proposing a definition for “household wastes.” The definition is intended to clarify a long-standing exception from regulation under the HMR for waste materials that are generated from households (including single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas). Such household wastes typically are picked up at curbside by municipal governments for disposal in accordance with applicable State or local government requirements.

In regard to collection centers, we note that the transportation of consolidated household waste material in a motor vehicle by a government employee, solely for noncommercial government purposes, is not “commercial” transportation for purposes of the HMR and, therefore, is not subject to the requirements of the HMR (see § 171.1(d)(5)). However, transportation of a consolidated hazardous waste shipment from a collection center by a commercial motor carrier under contract to a government entity is “commercial” transportation for purposes of the HMR and, therefore, is subject to all applicable HMR requirements.

RRI also questions the use of undefined terms within the proposed definition, such as “solid waste,” “sanitary waste,” “hotel,” and “motel.” RRI observes that the Environmental Protection Agency (EPA) uses similar terminology, but may define such terms differently, causing confusion regarding the applicability of these terms. We disagree. The term “solid waste” is meant to cover those items commonly found in household trash and garbage receptacles; the meaning of the terms “hotel,” “motel,” and “sanitary waste” should be evident from the way these terms are used in the definition. Further, although there are similarities in terminology between PHMSA's and EPA's requirements, PHMSA's definitions are intended to stand on their own for the purposes of transportation under the HMR.

For the reasons described above, in this final rule, we are adopting the definition and clarifications for “Household waste” as proposed in the NPRM.

Section 172.101 contains the HMT and explanations for each of the columns in the HMT. This final rule makes various amendments to the HMT. For the purpose of the Government Printing Office's publication procedures, changes to the HMT appear under three sections of the Table, “remove,” “add,” and “revise.”

In the NPRM, we proposed to harmonize certain proper shipping names in the HMR with the Fourteenth revised edition of the UN Recommendations, the 2007-2008 International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), and Amendment 33 to the International Maritime Organization Dangerous Goods Code (IMDG Code), and to correct other entries. One commenter [Laude] identified an error in the NPRM: The non-bulk packaging references for the HMT entry “Radioactive material, Type A package non-special form, non fissile or fissile excepted, Class 7, UN2915,” were incorrect. This error has been corrected in this final rule. We did not receive any comments opposing these proposed changes and are, therefore, adopting the amendments as proposed. In addition we are removing two entries for “Hydrazine aqueous solution, with more than 37% hydrazine, by mass, UN2030.” A duplicate entry was inadvertently added during the process of amending “Hydrazine aqueous solution, with more than 37% hydrazine, by mass, UN2030” under docket HM-244, which was published in the Federal Register on October 1, 2007 (72 FR 52578). Both of these entries contained errors. Therefore, we are removing both entries and adding the correct description for “Hydrazine aqueous solution, with more than 37% hydrazine, by mass, UN2030.”

Section 172.102 lists a number of special provisions applicable to the transportation of specific hazardous materials. Special provisions contain packaging provisions, prohibitions, and exceptions applicable to particular quantities or forms of hazardous materials. In the NPRM, we proposed to revise Special Provision B69 to clarify that metal covered hopper cars, covered motor vehicles, portable tanks, and non-specification bins must be sift-proof and weather-resistant and to remove the requirement for bins to be approved by the Associate Administrator. We received no comments on this proposal; therefore, we are adopting it without change in this final rule.

Except for transportation by aircraft, § 172.315 excepts limited quantity shipments of hazardous materials from the requirement for marking the proper shipping name of the material on the package when the identification number of the material is shown within a square-on-point configuration. In the NPRM, we proposed to revise § 172.315 to clarify that if a shipper identifies a limited quantity material which is also a hazardous substance, the shipper is required to mark the letters “RQ” on the package in association with the square-on-point configuration containing the identification number of the material.

We received two comments [Hsiu and RRI] supporting the proposed amendment. RRI suggests that, for increased visibility, this provision should be added to § 172.324, which contains the marking requirements for hazardous substances in non-bulk packagings. We agree; therefore, in this final rule, we are revising § 172.324 to add this clarification and adopting the amendment to § 172.315 as proposed.

We also invited comments on whether or not the name of the hazardous substance should also be included along with the letters “RQ,” even though the proper shipping name is not required. Hsiu recommends we remove all hazardous substance marking requirements for limited quantity shipments to expedite the movement of international shipments; international regulations do not require “RQ” markings. We disagree. It is important to identify packages containing a hazardous substance, regardless of the size of the package. This marking is necessary for emergency responders who respond to incidents involving packages containing hazardous substances and are required to implement EPA mandated procedures tied to the risk associated with reportable quantity amounts. Therefore, we are also revising § 172.324 to incorporate this provision.

Section 172.406 specifies the placement of labels on a package. Paragraph (e) of this section prescribes requirements for the duplicate labeling of packages based on size. Paragraph (e)(1) requires each package or overpack having a volume of 1.8 m 3 (64 cubic feet) or more to be labeled on at least two sides or two ends (other than the bottom of the package). In the NPRM, we proposed to add a new paragraph (e)(6) to clarify that IBCs having a volume of 1.8 m 3 (64 cubic feet) or more are required to be labeled on at least two sides or two ends. We received no comments on this proposal; therefore, we are adopting it without change in this final rule.

Section 173.4 establishes exceptions for small quantities of hazardous materials. In response to petitions from the Dangerous Goods Advisory Council (DGAC) (P-1454) and Pharmaceutical Research and Manufacturers of America (PhRMA) (P-1457), we proposed in the NPRM to except de minimis quantities (less than 1 gram for solids and less than 1 milliliter for liquids per inner packaging) of PG II and PG III materials of Class 3, Division 4.1, Division 4.2, Division 4.3, Division 5.1, Division 6.1, Class 8, and Class 9 materials. We proposed to require these materials to be transported in a combination packaging, with cushioning and absorbent material that would be capable of sustaining a drop test and a compressive load test.

We received five comments supporting this proposal [RRI, Hsiu, FPL, H&PCLC, and AHS). RRI suggests the performance-based criteria be removed from the packaging requirements in favor of a requirement for a strong, tight packaging in conformance with Part 173, Subpart B. Additionally, RRI suggests amending the gross mass packaging limits by removing the 64 pound gross weight limitation while retaining the net hazardous material mass provisions to allow for more packaging configurations. RRI believes these suggestions would generate more cost savings than the proposed rule. We disagree. The packaging performance standard proposed in the NPRM is consistent with the performance standard currently required for shipments of small quantities under § 173.4 and with the packaging standard recommended in the two petitions for rulemaking we received on this issue. The transportation history of the small quantity exception demonstrates that the packaging standard provides a high level of safety; moreover, the standard is measurable and enforceable. Therefore, we are adopting the packaging standard proposed in the NPRM.

Hsiu asks whether packaging tests and recordkeeping are mandatory. Packaging tests and recordkeeping are not mandatory. The performance standard proposed in the NPRM and adopted in this final rule is a capability standard. Capability may be demonstrated in a variety of different ways, such as engineering analysis, selective testing of similar packages, or actual testing of each specific design type.

Two commenters request we expand the small quantity exception proposed in the NPRM. Hsiu requests that explosives classed as Division 1.4S be included within the small quantity exception; FPL requests we authorize sample bottles containing up to 2 mL under the small quantity exception. Hsiu's and FPL's requests are beyond the scope of this rulemaking. A petition for rulemaking may be submitted to us in accordance with 49 CFR Part 106, Subpart B.

Therefore, in this final rule, we are adopting a new exception for small quantities—less than 1 gram for solids and less than 1 milliliter for liquids per inner packaging. When packaged for transportation as specified in accordance with the new paragraph (e), these materials are in amounts and forms that do not pose an unreasonable risk to health and safety or property.

Section 173.5 establishes the conditions under which agricultural products such as pesticides and fertilizers are excepted from HMR requirements. In order to utilize the exceptions provided, paragraph (b)(2) specifies limits for the amount of agricultural product that may be transported in a single vehicle. In the NPRM, we proposed to clarify this exception by replacing the term “vehicle” with “motor vehicle.” We received no comments on this proposal; therefore, we are adopting it without change in this final rule.

Section 173.12 provides packaging exceptions for shipments of hazardous waste materials. In a final rule published on January 24, 2005, under Docket No. RSPA 03-16370 (HM-233; 70 FR 3304), we added a new paragraph (e) to this section to authorize the storage, loading and transportation of waste cyanide and waste cyanide mixtures or solutions with Class 8 acids under certain conditions. In the NPRM, we proposed to revise paragraph (e) to authorize the transportation of waste cyanides and waste cyanide mixtures or solutions with not only Class 8 acids but all acids. We received no comments on this proposal; therefore, we are adopting it without change in this final rule.

Section 173.22 establishes a shipper's responsibility for complying with applicable HMR requirements. In the NPRM, we proposed, in response to a petition from NTTC (P-1469), to amend this section to require shippers who offer certain hazardous materials for transportation to use carriers holding a valid safety permit issued by the Federal Motor Carrier Safety Administration (FMCSA). FMCSA regulations (49 CFR Part 385, Subpart E) require motor carriers transporting certain types and amounts of hazardous materials to apply for a safety permit. To obtain a safety permit, a carrier must have a “satisfactory” safety rating and must meet certain other safety and security requirements. The safety permit requirements apply to motor carriers transporting: (1) A highway route-controlled quantity of a Class 7 (radioactive) material; (2) certain high explosives; (3) certain toxic inhalation hazard (TIH) materials; and (4) certain bulk shipments of liquefied methane gas and liquefied natural gas. A carrier may not transport any of the listed materials unless it has a valid safety permit.

We received one comment supporting this proposal [ATA]. We received four comments opposing this proposal [Hsiu, Veolia, Shell Chemical, and NTTC]. Hsiu states that this is against the precedent PHMSA established when it determined that shippers are not responsible for verifying hazardous materials endorsements on commercial driver licenses. Veolia notes that, currently, FMCSA has chosen to limit dispersal of the required information to only State and local law enforcement personnel due to security concerns. Shell notes that the obligation to secure and maintain a safety permit under 49 CFR 385.403 is the motor carrier's and not the shipper's. Shell is concerned that this proposal, if adopted, would establish the wrong precedent, placing shippers in an enforcement role for which they are ill equipped. We also received comments from the petitioner, NTTC, who opposes this amendment due to the lack of a publicly accessible and updated list of carriers who hold current safety permits.

We note that the proposal in the NPRM implements a statutory requirement in 49 U.S.C. 5109(f), which provides that a shipper offering a hazardous material for transportation in commerce may only offer that material to a motor carrier with a safety permit issued in accordance with 49 U.S.C. 5109. We do not agree that by incorporating this statutory provision into the HMR we are placing shippers in an “enforcement” role. Rather, we are asking shippers, consistent with statutory requirements, to exercise due diligence and responsible care with respect to selecting motor carriers. Therefore, we are adopting the proposal in this final rule.

In accordance with 49 CFR 385.417, “a motor carrier must provide the number of its safety permit to a person who offers a [covered hazardous material] for transportation in commerce.” FMCSA issues each motor carrier a paper copy of its safety permit. A shipper may request the carrier's safety permit number or a copy of its safety permit to verify that it is using a carrier holding a valid safety permit.

Section 173.24 establishes general requirements for packagings and packages. Paragraph (g) of this section addresses the venting of packages to reduce internal pressures that may develop by the evolution of gas from the contents during transportation. Currently, this paragraph specifies that a package containing a hazardous material and transported on board an aircraft must not vent. In the NPRM, we proposed to revise paragraph (g)(1) to specify that the venting of packagings containing carbon dioxide, solid (dry ice) would not be prohibited for air transportation. We received no comments opposing this proposed amendment. However, one commenter [UPS] notes that § 173.320(c) refers shippers of refrigerated and cryogenic liquids to ICAO Packing Instruction (PI) 202. ICAO PI 202 applies to Class 2 refrigerated liquefied gases in open and closed cryogenic receptacles authorized for air transportation that require venting. We agree with the commenter that cryogenic liquids as specified in § 173.320(c) should also be referenced in this section. Therefore, in this final rule, we are adopting the proposed amendment and adding a reference to ICAO PI 202.

Section 173.61 establishes requirements for transporting Class 1 (explosive) materials in the same outside packaging with other materials that could, under normal conditions of transportation, adversely affect the explosive or its packaging. Paragraph (c) of this section lists specific explosives that may not be transported in the same outside packaging as other Class 1 materials. In a final rule published May 6, 1997 (HM 215B; 62 FR 24708), we added a new entry to the HMT “Detonator, assemblies, non-electric for blasting, ” UN0500. This entry should have also been added to paragraph (c) to indicate that this material is not authorized to be packed together with other Class 1 explosives. In the NPRM, we proposed to correct this oversight by amending paragraph (c) to include UN 0500 “Detonator assemblies, non-electric for blasting. ” We received no comments on this proposal; therefore, we are adopting it without change in this final rule.

Section 173.62 establishes specific packaging requirements for Class 1 (explosive) materials. The Table of Packing Methods in paragraph (c) specifies the packing instructions assigned to each explosive. In the NPRM, we proposed to revise packing instruction (PI) 134 in the Table of Packing Methods to authorize the use of a specification 4H1 plastic box as an outer packaging for certain explosives. We received no comments on this proposal; therefore, we are adopting it without change in this final rule.

Section 173.217 establishes packaging requirements for dry ice (carbon dioxide, solid). In the NPRM, we proposed to revise this section for clarity and to harmonize the HMR with requirements in the ICAO Technical Instructions applicable to the transportation of dry ice by air. Currently under paragraph (d), the HMR require the shipper to have a specific and special written arrangement with the air carrier to transport more than 441 pounds of dry ice in a single compartment. The ICAO Technical Instructions no longer include this requirement. The United Parcel Service (UPS) petitioned PHMSA (P-1439) to amend this section for consistency with the most recent edition of the ICAO Technical Instructions. We agreed and proposed to revise the current paragraph (d) accordingly. In addition, we proposed to revise paragraph (d) to address air specific provisions such as ventilation safety procedures, net mass marking requirements, and quantity limit exceptions for dry ice used as a refrigerant for non-hazardous materials. Further, we proposed requirements for air carriers who transport dry ice in a proposed new § 175.900.

In the NPRM, we proposed to require shippers to mark the net mass of dry ice contained in the package on the outside of the package. Two commenters [LabCorp and UPS] request clarification regarding the proposed net mass marking requirements. LabCorp states that the NPRM is not clear as to whether the proposed net mass marking requirement specified in § 173.217(c)(1) is in addition to, rather than in place of, the standard requirement in § 172.301 to mark the package with the proper shipping name and UN number. We agree and are revising the language in paragraph (c)(1) to specify that the net mass marking requirement is in addition to the applicable marking requirements in Part 172, Subpart D. We are also adding a statement to clarify that each unit load device (ULD) when used as the packaging for dry ice would be subject to all the applicable marking requirements for dry ice. We are also adding clarification in § 175.900 to specify that if an operator adds dry ice to such a ULD, the net mass marking would need to be revised if the amount of dry ice exceeds the net mass quantity marked on the ULD. UPS also suggests the text should be clarified to specify that the quantity limits in columns (9A) and (9B) of the HMT are not applicable to dry ice that is used as a refrigerant for non-hazardous materials and is loaded in a unit load device or other type of pallet. We agree, and have revised § 173.217(c) accordingly.

UPS also suggests slight revisions to clarify the applicability of the marking requirements for packagings containing less than 5 pounds of dry ice. These proposed revisions would create redundancy and are therefore unnecessary. Accordingly, we are not incorporating these suggested revisions.

The HMR require a shipper to have a specific and special written arrangement with an air carrier to transport more than 441 pounds of dry ice in a single compartment. The ICAO Technical Instructions have been broadened by removing the 441 pound threshold of dry ice in a single compartment and the requirement for a specific and written arrangement with the carrier. In the NPRM, in response to a UPS petition (P-1439), we proposed to incorporate the ICAO Technical Instructions' provisions, which require the shipper of the dry ice and the carrier to make arrangements to ensure that proper ventilation procedures are followed. We received three comments on the proposed revisions [Hsiu, LabCorp, and UPS]. Both Hsiu and LabCorp question the interpretation of the phrase “arrangements between the shipper and the operator” and state the carrier requirements specified in Part 175 thoroughly address safety issues. Although we agree that the transportation of hazardous materials by aircraft is adequately addressed in Part 175, the intent of the proposed dry ice requirements is to notify the initial air carrier, through advance shipper-carrier arrangements, of the quantities of dry ice that will be aboard the aircraft. The stowage of dry ice is the responsibility of the aircraft operator and is based on the specific aircraft type, the number of air exchanges per hour in the cargo compartment, the method of packing and stowing, whether animals are carried in the compartment, and other factors. The shipper should provide notification of the amount of dry ice to be shipped to the carrier in advance to afford the carrier the opportunity to take into account these safety factors. To eliminate confusion, we are clarifying that it is the carrier's responsibility to comply with the dry ice transportation provision in § 175.900. Note that the arrangements required under this final rule need not be in writing.

The HMR provide an exception from the shipping paper and certification requirements for dry ice shipments prepared in accordance with applicable requirements, provided the package is marked “Carbon dioxide, solid” or “Dry ice” and includes an indication that the material being refrigerated is used for diagnostic or treatment purposes. To avoid confusion, we proposed to revise § 173.217(e) to specify that only dry ice actually used to refrigerate materials being shipped for diagnostic or treatment purposes may be transported under this exception. We did not receive any comments opposing this proposed revision; therefore, we are adopting it without change in this final rule.

Section 175.10 establishes exceptions for the transportation of certain hazardous materials by aircraft, including hazardous materials that may be carried by passengers or crew members in checked or carry-on baggage. In the NPRM, we proposed to revise paragraph (a)(10) to harmonize the HMR with the ICAO Technical Instructions applicable to the transportation of dry ice in checked or carry-on baggage by excepting from the HMR shipments of dry ice used to pack perishables in carry-on and checked baggage. In the NPRM, we indicated the net mass requirement would be 2.3 kg (5 pounds). The ICAO Technical Instructions allow 2.5 kg (5.5 pounds). To correct this inconsistency, we are amending the section to read “2.5 kg (5.5 pounds).” Likewise, we are amending § 173.217(c) to raise the limit from 2.3 kg to 2.5 kg for such packages when transported as cargo. Although the ICAO TI does not provide a cargo exception equivalent to that found in § 173.217(c), we believe that establishing a consistent limit for packages transported as cargo and packages transported by passengers or crew members will facilitate the transportation of such packages.

In response to a UPS petition (P-1439) and to harmonize with international standards, we proposed to add a new § 175.900 to incorporate the ICAO Technical Instructions aircraft loading requirements for carbon dioxide, solid (dry ice). The proposed amendment would provide guidelines to the aircraft operator for handling dry ice shipments based on the aircraft type, the aircraft ventilation rates, the method of packing and stowing, the presence of animals on the flight. In addition, the proposed amendment would require the aircraft operator to ensure that the ground staff is informed of the presence of dry ice, and provide the Pilot-in-Command with information to reflect any quantity change of dry ice.

We received one comment [UPS] supporting this proposal. We did not receive any comments opposing the proposed amendment; therefore, we are adopting it without change in this final rule. UPS also suggested including text in either this section or in § 175.33 (Shipping paper and notification of pilot-in-command provisions) to adopt DOT-E 12378, which allows for dry ice loaded on an aircraft to be shown as aggregate mass (in kg) quantity per loading position, rather than a net mass (in kg) quantity per package. Because this additional requirement was not proposed in the NPRM, it is beyond the scope of this rulemaking. However, we agree that there may be some merit in adopting the provision in DOT-E 12378, which allows for dry ice loaded on an aircraft to be shown as an aggregate quantity per loading position, rather than a net quantity per package; we will consider this issue in a future rulemaking.

Section 173.301 establishes general requirements for the transportation of compressed gases in cylinders and spherical pressure vessels. Paragraph (f) of this section addresses pressure relief devices (PRDs), and paragraph (g) addresses manifolded cylinders in transportation. Paragraphs (f) and (g) require pressure relief devices to conform to the applicable provisions specified in CGA S-1.1 and CGA S-7. In response to a CGA petition (P-1440), we proposed in the NPRM to update the incorporation by reference of CGA publications S-1.1 and S-7. We did not receive any comments opposing this proposed revision; therefore, we are adopting it without change in this final rule. In addition, paragraph (c) is revised to incorporate the updated CGA S-1.1 and CGA S-7 publications specified above.

Section 173.304a specifies additional requirements for shipments of liquefied compressed gases in specification cylinders. Paragraph (e)(1)(ii) is revised to incorporate the updated revision to CGA Pamphlet S-1.1 as specified in the preamble language for § 171.7.

Section 173.306 establishes transportation requirements for limited quantities of compressed gases. We are reprinting paragraphs (i), (j), and (k) to correct the paragraph designations.

Section 173.335 establishes requirements for the transportation of gas generator assemblies. This entry was initially added in a December 21, 1990 (55 FR 52402; HM-181) rulemaking to harmonize the HMR with various international standards such as the ICAO Technical Instructions, IMDG Code, and UN Recommendations. However, ICAO removed this entry in the 2003-2004 edition of the ICAO Technical Instructions. In the NPRM, we proposed to remove this section in its entirety to harmonize with ICAO. We did not receive any comments opposing this deletion; therefore, we are removing it from the HMR in this final rule.

Section 177.848 addresses segregation requirements for hazardous materials transported by motor carrier. Currrently, in paragraph (a)(1), the segregation requirements apply to hazardous materials in packages that are required to be labeled. However, the current requirements do not specify whether these segregation provisions apply to hazardous materials in packages which require placarding. In the NPRM, we proposed to revise paragraph (a)(1) to specify that the segregation requirements for hazardous materials would be applicable to packages that require placarding. We did not receive any comments opposing this amendment; therefore, we are adopting it as proposed.

Section 178.274 establishes design and manufacturing requirements for UN portable tanks. Currently, paragraph (b)(1) specifies that the design temperature range for the shell of a UN portable tank must be −40 ° C to −50 ° C (−40 ° F to 122 ° F). The temperature range “−0 ° C to −50 ° C” should be specified as “−40 ° C to 50 ° C.” In the NPRM, we proposed to revise paragraph (b)(1) to correct this error. We did not receive any comments opposing this amendment; therefore, we are adopting it as proposed.

Section 178.337-9 establishes requirements for pressure relief devices, piping, valves, hoses, and fittings on MC 331 specification cargo tanks. Paragraph (b)(8) requires angle valves used on cargo tanks intended for chlorine service to conform to the Chlorine Institute Dwg. 104-8. In response to petitions for rulemaking from the Chlorine Institute (P-1444) and Midland Manufacturing Corporation (P-1448), we proposed, in the NPRM, to revise paragraph (b)(8) to incorporate the Chlorine Institute's “Section 3, Pamphlet 166 Angle Valve Guidelines for Chlorine Bulk Transportation, 1st Edition,” dated October 2002, to authorize the use of an alternative angle valve for cargo tanks that transport chlorine. We did not receive any comments opposing this amendment; therefore, we are adopting it as proposed.

Section 178.337-10 establishes accident damage protection requirements for MC 331 specification cargo tanks. The Chlorine Institute petitioned PHMSA (P-1444) to update the references to the Chlorine Institute's drawings 137-1 and 137-2 entitled “Standards for Housing and Manway Covers for Steel Cargo Tanks,” dated September 1, 1982, by replacing them with the Chlorine Institute's drawing 137-5 entitled “Typical Manway Arrangement Chlorine Cargo Tank,” dated November 1996. In the NPRM, we proposed to revise paragraph (d) to remove the Chlorine Institute's drawings 137-1 and 137-2, and replace them with the Chlorine Institute's updated drawing 137-5. We did not receive any comments opposing this amendment; therefore, we are adopting it as proposed.

Section 107.305 specifies the authority of the PHMSA Office of Hazardous Materials Enforcement (OHME) to initiate and conduct investigations. This section also details the authority of each OHME inspector in relation to the process of conducting investigations and inspections. For clarity, we are revising several paragraphs in this section to replace the term “inspector” with the term “investigator.” This will help reduce confusion since the term “inspector” is used in other areas of the HMR with a different meaning.

In § 172.704, at paragraph (a)(2)(ii), a reference to obsolete “§§ 171.11 and 171.12” is corrected to read “§§ 171.22 through 171.25.”

In the NPRM, we requested comments on whether certain amendments should be tied to a sunset provision. We received two comments (Hsiu and Shell Chemical) opposing inclusion of a sunset provision. We agree that such a provision is not appropriate for this rulemaking and, accordingly, are not including a sunset provision in this final rule.

This final rule is published under authority of Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.). Section 5103(b) of Federal hazmat law authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce.

This final rule is not considered a significant regulatory action under section 3(f) Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget (OMB). The final rule is not considered a significant rule under the Regulatory Policies and Procedures order issued by the U.S. Department of Transportation (44 FR 11034).

In this final rule, we are amending the HMR to clarify and relax overly burdensome requirements. We are also responding to requests from industry associations, including the Chlorine Institute and Compressed Gas Association, to add references and update standards that are incorporated in the HMR. PHMSA believes the final rule will yield net economic benefits by enhancing the clarity of the HMR, thereby increasing compliance while reducing compliance costs. Further, the creation of an exception to the HMR for small quantities of certain hazardous materials (less than 1 gram for solids and less than 1 milliliter for liquids), and clarification that household wastes are not subject to the HMR, will reduce packaging and compliance costs to the regulated community. This final rule also updates the HMR to incorporate the most recent editions of industry consensus standards. Incorporation by reference of recognized standards and materials reduces the regulatory burden on persons who offer or transport hazardous materials in commerce.

The major implementation cost associated with adoption of this final rule relates to our addition of a new shipping name and UN number for fuel blends composed of ethanol (“ethyl alcohol”) and gasoline in various concentrations. For these materials, we are adding a new entry “Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol and petrol mixture, with more than 10% ethanol, 3, UN3475, II” to the HMT. The new shipping name and UN number will help emergency responders utilize the most effective procedures for incidents involving ethanol/gasoline blends.

Ethanol/gasoline blends currently are transported primarily by motor vehicle. Adoption of the new shipping name and ID number will necessitate remarking of cargo tank motor vehicles used to transport ethanol/gasoline fuel blends. Commenters to the NPRM suggested that these costs could amount to $600 per cargo tank for a multi-compartmented vehicle. As discussed in detail above, we believe that commenters have over-stated potential compliance costs associated with remarking cargo tank motor vehicles. However, to minimize the cost of transitioning to the new shipping name and UN number, we are providing a two-year transition period, during which the currently authorized shipping name and UN number for ethanol/gasoline fuel blends may continue to be used. This extended transition period will provide companies with sufficient time to plan for and implement the changes in an orderly and deliberate fashion.

To further offset potential costs, we are allowing for ethanol and gasoline blends with not more than 5 percent petroleum products and described as “Denatured alcohol” or “Alcohols, n.o.s.” to continue to be marked with the identification number “1987” instead of “3475.” Thus, shippers and carriers of these ethanol/gasoline blends will incur no compliance costs associated with adoption of this final rule.

We estimate that the costs associated with remarking cargo tanks used to transport ethanol/fuel blends will range from $4 to $15 per cargo tank motor vehicle. There are approximately 30,000 cargo tank motor vehicles used to transport gasoline and related products. Assuming that half of these vehicles will need to be remarked with the UN identification number for ethanol/gasoline blends, the total costs to the affected industry will range from $60,000 (15,000 vehicles x $4) to $225,000 (15,000 vehicles x $15). We believe that these costs will be more than offset by the public safety benefits of more effective and efficient emergency response to transportation incidents involving ethanol/gasoline shipments. As explained above, use of the new name and ID number will facilitate rapid deployment of emergency response measures and materials best suited to these incidents.

This final rule was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule preempts State, local and Indian tribe requirements but does not implement any regulation that has substantial direct effects on the States, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

The Federal hazmat law (49 U.S.C. 5125(b)) expressly preempts State, local, and Indian tribe requirements on certain covered subjects. Covered subjects are:

(i) The designation, description, and classification of hazardous materials;

(ii) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;

(iii) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, content, and placement of those documents;

(iv) The written notification, recording, and reporting of the unintentional release in transportation of hazardous materials; or

(v) The design, manufacture, fabrication, marking, maintenance, reconditioning, repair, or testing of a packaging or container which is represented, marked, certified, or sold as qualified for use in the transport of hazardous materials.

This final rule concerns the classification, packaging, marking, labeling, and handling of hazardous materials, among other covered subjects. This final rule preempts any State, local, or Indian tribe requirements concerning these subjects unless the non-Federal requirements are “substantively the same” (see 49 CFR 107.202(d)) as the Federal requirements.

Federal hazmat law provides that if PHMSA issues a regulation concerning any of the covered subjects, PHMSA must determine and publish in the Federal Register the effective date of Federal preemption (49 U.S.C. 5125(b)(2)). That effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. The effective date of Federal preemption is 90 days from publication of this final rule.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this rule does not have tribal implications, does not impose substantial direct compliance costs on Indian tribal governments, and does not preempt tribal law, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires an agency to review regulations to assess their impact on small entities. An agency must conduct a regulatory flexibility analysis unless it determines and certifies that a rule is not expected to have a significant impact on a substantial number of small entities. This final rule amends provisions in the HMR based on petitions for rulemaking and PHMSA initiatives. These amendments are intended to update, clarify or provide relief from certain regulatory requirements. While maintaining safety, it relaxes certain requirements that are overly burdensome and updates references to consensus standards that are incorporated in the HMR. The changes are generally intended to provide relief to shippers, carriers, and packaging manufacturers, including small entities. The major implementation cost associated with adoption of this final rule relates to our addition of a new shipping name and UN number for fuel blends composed of ethanol (“ethyl alcohol”) and gasoline in various concentrations. For these materials, we are adding a new entry “Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol and petrol mixture, with more than 10% ethanol, 3, UN3475, II” to the HMT. The new shipping name and UN number will help emergency responders utilize the most effective procedures for incidents involving ethanol/gasoline blends.

Ethanol/gasoline blends currently are transported primarily by motor vehicle. Adoption of the new shipping name and ID number will necessitate remarking of cargo tank motor vehicles used to transport ethanol/gasoline fuel blends. Commenters to the NPRM suggested that these costs could amount to $600 per cargo tank for a multi-compartmented vehicle. As discussed in detail above, we believe that commenters have over-stated potential compliance costs associated with remarking cargo tank motor vehicles. However, to minimize the cost of transitioning to the new shipping name and UN number, we are providing a two-year transition period, during which the currently authorized shipping name and UN number for ethanol/gasoline fuel blends may continue to be used. This extended transition period will provide companies with sufficient time to plan for and implement the changes in an orderly and deliberate fashion.

To further offset potential costs, we are allowing for ethanol and gasoline blends with not more than 5 percent petroleum products and described as “Denatured alcohol” or “Alcohols, n.o.s.” to continue to be marked with the identification number “1987” instead of “3475.” Thus, shippers and carriers of these ethanol/gasoline blends will incur no compliance costs associated with adoption of this final rule.

We estimate that the costs associated with remarking cargo tanks used to transport ethanol/fuel blends will range from $4 to $15 per cargo tank motor vehicle. There are approximately 30,000 cargo tank motor vehicles used to transport gasoline and related products. Assuming that half of these vehicles will need to be remarked with the UN identification number for ethanol/gasoline blends, the total costs to the industry associated with this provision of the final rule will range from $60,000 (15,000 vehicles × $4) to $225,000 (15,000 vehicles × $15). We believe that these costs will be more than offset by the emergency response benefits that will result from adoption of the new shipping name and UN number. As indicated above, the new name and ID number will help emergency responders utilize the most effective response procedures for incidents involving ethanol/gasoline blends. More effective emergency response techniques reduce the time required to handle an incident and, thus, the costs associated with the incident.

This final rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of rules on small entities are properly considered.

This proposed rule does not impose any new information collection requirements.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. §§ 1532-1538). It does not result in costs of $120.7 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.

The National Environmental Policy Act (42 U.S.C. §§ 4321-4375) requires that Federal agencies analyze proposed actions to determine whether the action will have a significant impact on the human environment. The Counsel on Environmental Quality (CEQ) regulations order Federal agencies to conduct an environmental review considering (1) the need for the proposed action (2) alternatives to the proposed action (3) probable environmental impacts of the proposed action and alternatives and (4) the agencies and persons consulted during the consideration process. 40 CFR 1508.9(b).

PHMSA is making miscellaneous amendments to the HMR based on petitions for rulemaking and PHMSA's own initiatives. The amendments are intended to update, clarify, or provide relief from certain existing regulatory requirements to promote safer transportation practices; eliminate unnecessary regulatory requirements; resolve outstanding petitions for rulemaking; facilitate international commerce; and make these requirements easier to understand.

In developing this proposed rule, we considered two alternatives:

(1) Do nothing.

(2) Propose revisions to the HMR based on petitions for rulemaking and PHMSA initiatives.

Because our goal is to facilitate uniformity, compliance, commerce and safety in the transportation of hazardous materials, we rejected this alternative.

Many of the industry standards currently incorporated by reference have been revised and updated to incorporate new technology and methodology. Proposed changes would relax requirements in certain instances while still ensuring safety, clarify regulatory requirements, and make the regulatory provisions more consistent—all in furtherance of the safe transportation of hazardous materials in commerce.

Hazardous materials are transported by aircraft, vessel, rail, and highway. The potential for environmental damage or contamination exists when packages of hazardous materials are involved in accidents or en route incidents resulting from cargo shifts, valve failures, package failures, or loading, unloading, or handling problems. The ecosystems that could be affected by a release include air, water, soil, and ecological resources (for example, wildlife habitats). The adverse environmental impacts associated with releases of most hazardous materials are short-term impacts that can be greatly reduced or eliminated through prompt clean up of the accident scene. Most hazardous materials are not transported in quantities sufficient to cause significant, long-term environmental damage if they are released.

The hazardous material regulatory system is a risk management system that is prevention-oriented and focused on identifying a hazard and reducing the probability and quantity of a hazardous material release. Making the regulatory provisions in the HMR clearer and more consistent with international transportation and industry standards will promote compliance and thereby enhance the safe transportation of hazardous materials and the protection of the environment. Updating the references to industry standards enhances safety an environmental protection by recognizing the use of new technologies. Our proposal to relax certain regulatory requirements is based on PHMSA's experience, review, and determination that the changes are consistent with safety. Neither the “do nothing” alternative nor the action alternative would result in any significant impacts on the environment.

Various modal agencies, including FAA, FMCSA, FRA, and the USCG were consulted and participated in the notice and comment process. A listing of the commenters is specified in the SUPPLEMENTARY INFORMATION section under “Background.” No commenters addressed the potential environmental impacts of the proposals in the NPRM.

PHMSA finds that the selected alternative will not have a significant impact on the human environment.

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

In 1974, four subspecies of gray wolf were listed as endangered, including the NRM gray wolf ( Canis lupus irremotus ), the eastern timber wolf ( C. l. lycaon ) in the northern Great Lakes region, the Mexican wolf ( C. l. baileyi ) in Mexico and the southwestern United States, and the Texas gray wolf ( C. l. monstrabilis ) of Texas and Mexico (50 CFR 17.11(h)). In 1978, we relisted the gray wolf as endangered at the species level ( C. lupus ) throughout the conterminous 48 States and Mexico, except for Minnesota where it was reclassified as threatened (50 CFR 17.11(h)). In 2007, we delisted the Western Great Lakes distinct population segment of wolves that includes all of Minnesota, Wisconsin, Michigan, and parts of North and South Dakota, Iowa, Illinois, Indiana, and Ohio (72 FR 6051, February 8, 2007). The Northern Rocky Mountain Wolf Recovery Plan was approved in 1980 (U.S. Fish and Wildlife Service 1980, p. i) and revised in 1987 (U.S. Fish and Wildlife Service 1987, p. i).

On November 22, 1994, we designated unoccupied portions of Idaho, Montana, and Wyoming as two nonessential experimental population (NEP) areas for the gray wolf under section 10(j) of the Endangered Species Act of 1973, as amended (Act) (50 CFR 17.84(i)). One area is the Greater Yellowstone Area experimental population, which includes all of Wyoming and parts of southern Montana and eastern Idaho. The other is the central Idaho experimental population area, which includes most of Idaho and parts of southwestern Montana. In 1995 and 1996, we reintroduced wolves from southwestern Canada into these areas (Bangs and Fritts 1996, pp. 407-409; Fritts, et al. 1997, p. 7; Bangs, et al. 1998, pp. 785-786). These reintroductions and accompanying management programs greatly expanded the numbers and distribution of wolves in the northern Rocky Mountains (NRM). At the end of 2000, the NRM population first met its numerical and distributional recovery goal of a minimum of 30 breeding pairs and more than 300 wolves well-distributed among Idaho, Montana, and Wyoming (68 FR 15804, April 1, 2003; Service, et al. 2001, Table 4). This minimum recovery goal has been exceeded annually through 2007 (Service, et al. 2002-2006, Table 4, Service, et al. 2007, p.1).

On January 6, 2005, we published a revised NEP special rule increasing management flexibility of these recovered populations for those States and Tribes with Service-approved wolf management plans (50 CFR 17.84(n)). For additional detailed information on previous Federal actions, see the 1994 and 2005 NEP special rules (59 FR 60252, November 22, 1994; 59 FR 60266, November 22, 1994; 70 FR 1286, January 6, 2005), the 2003 reclassification rule (68 FR 15804, April 1, 2003), the advanced notice of proposed rulemaking to designate the NRM gray wolf population as a distinct population segment and remove the Act's protections for this population (71 FR 6634, February 8, 2006), and the 2007 proposal to designate the NRM gray wolf population as a distinct population segment and remove the Act's protections for this population (i.e., delist) (72 FR 6106, February 8, 2007).

Addressing Unacceptable Impacts on Wild Ungulate Populations —Both the 1994 Environmental Impact Statement for wolf reintroduction (Service 1994, pp. 6, 8) and the 1994 NEP special rules addressed the potential impact of wolf restoration on State and Tribal objectives for wild ungulate management. The 1994 NEP special rules allowed, under certain conditions, States and Tribes to translocate wolves causing unacceptable impacts to ungulate populations (50 CFR 17.84(i)).

On January 6, 2005, we published a new NEP special rule that allowed greater management flexibility for managing a recovered wolf population in the experimental population areas in the NRM for States and Tribes that had Service-approved wolf management plans (50 CFR 17.84(n)). The 2005 NEP special rule allowed those States and Tribes to lethally control wolves to address unacceptable impacts to ungulate populations, under certain conditions. The 2005 NEP special rule also required that a State or Tribal proposal to control wolves describe data indicating the ungulate herd is below management objectives, data indicating impact of wolf predation on the herd, why wolf removal is warranted, the level and duration of wolf removal, how the ungulate response would be measured, and other remedies and conservation measures. The State or Tribe also had to provide an opportunity for peer review and public comment before submitting the proposal for Service approval. Before we could approve such proposals, we had to determine that the proposed wolf control was scientifically based and would not reduce the wolf population below recovery levels.

The 2005 NEP special rule authorized lethal take because we recognized that the wolf population had exceeded its recovery goals, extra management flexibility was required to address conflicts given the recovered status of the population, most of the suitable wolf habitat in Idaho, Montana, and Wyoming was occupied by resident wolf packs, and wolf translocations were likely to fail because no unoccupied suitable habitat remained (70 FR 1294, January 6, 2005; Bradley, et al. 2005, p. 1506).

The 2005 NEP special rule's definition of “unacceptable impact” was a “State or Tribally-determined decline in a wild ungulate population or herd, primarily caused by wolf predation, so that the population or herd is not meeting established State or Tribal management goals. The State or Tribal determination must be peer-reviewed and made available for review and comment by the public, prior to a final determination by the Service that an unacceptable impact has occurred, and that wolf removal is not likely to impede wolf recovery” (50 CFR 17.84(n)(3)). This definition set a threshold that we have found over time did not provide the intended flexibility to allow States and Tribes to resolve conflicts between wolves and ungulate populations. Current information indicates that wolf predation alone is unlikely to be the primary cause of a reduction of any ungulate herd or population in Idaho, Montana, or Wyoming (Bangs, et al. 2004, pp. 89-100). No populations of wild ungulates occur in Montana, Idaho, or Wyoming where wolves are the sole predator. Wolf predation is unlikely to impact ungulate population trends substantially unless other factors contribute, such as declines in habitat quality and quantity (National Research Council 1997, pp. 185-186; Mech and Peterson 2003, p. 159), other predators (Barber, et al. 2005, p. 42-43; Smith, et al. 2006, p. vii), high harvest by hunters (Vucetich, et al. 2005, p. 259; White and Garrott 2005, p. 942; Evans, et al. 2006, p. 1372; Hamlin 2006, p. 27-32), weather (Mech and Peterson 2003, pp. 138-139), and other factors (Pletscher, et al. 1991, pp. 545-548; Garrott, et al. 2005, p. 1245; Smith, et al. 2006, pp. 246-250). However, in combination with any of these factors, wolf predation can have a substantial impact to some wild ungulate herds (National Research Council 1997, p. 183; Mech and Peterson 2003, pp. 155-157; Evans, et al. 2006, p. 1377) with the potential of reducing them below State and Tribal herd management objectives.

The unattainable nature of the threshold set in the 2005 NEP special rule became apparent soon after its completion. In 2006, the State of Idaho submitted a proposal to the Service that indicated wolf predation was impacting the survival of adult cow elk in the Clearwater area of central Idaho and that some elk populations in the Lolo and Selway zones in this area were below State management objectives (Idaho Department of Fish and Game 2006 pp. 11-12, Figures 1, 2, and 3). In the Clearwater proposal, the State of Idaho and the peer reviewers clearly concluded that wolf predation was not “primarily” the cause of the elk populations' decline, but was one of the major factors maintaining the elk populations' status below State management objectives. Declining habitat quality due to forest maturation was the primary factor affecting the populations' status, but black bear predation on elk calves, mountain lion predation on adults, and the harsh winter of 1996-1997 also were major factors. Data also clearly indicated that wolf predation was one of the major causes of mortality of adult female elk, which contributed to the elk populations remaining below State management objectives. After discussions with the Service, Idaho put their proposal on hold because the proposal did not meet the regulatory standard for unacceptable ungulate impacts set by the 2005 special rule.

In this NEP special rule, we have modified the definition of “Unacceptable impact” in order to achieve the management flexibility intended by the 2005 NEP special rule. Specifically, we now define “Unacceptable impact” as “Impact to a wild ungulate population or herd where a State or Tribe has determined that wolves are one of the major causes of the population or herd not meeting established State or Tribal population or herd management goals.” This definition expands the potential impacts for which wolf removal might be warranted beyond direct predation or those causing immediate population declines. It would, in certain circumstances, allow removal of wolves when they are a major cause of the inability of ungulate populations or herds to meet established State or Tribal population or herd management goals. Management goals or their indicators might include population or herd numbers, calf/cow ratios, movements, use of key feeding areas, survival rates, behavior, nutrition, and other biological factors.

Under this NEP special rule, as was the case in the 2005 NEP special rule, proposals for wolf control from a State or Tribe with a Service-approved wolf management plan will have to undergo both public and peer review. Based on that peer review and public comment, the State or Tribe will finalize the proposal and submit it to the Service for a final determination. This NEP special rule requires the following to be described in the proposal: (1) The basis of ungulate population or herd management objectives; (2) what data indicate that the ungulate herd is below management objectives; (3) what data indicate that wolves are a major cause of the unacceptable impact to the ungulate population; (4) why wolf removal is a warranted solution to help restore the ungulate herd to management objectives; (5) the level and duration of wolf removal being proposed; (6) how ungulate population response to wolf removal will be measured and control actions adjusted for effectiveness; and (7) demonstration that attempts were and are being made to address other identified major causes of ungulate herd or population declines or of State or Tribal government commitment to implement possible remedies or conservation measures in addition to wolf removal. Before wolf removals can be authorized, the Service must determine (1) if the State or Tribe followed the rule's procedures for submitting a proposal to remove wolves in response to unacceptable impacts; (2) if an unacceptable impact has occurred; (3) if the data and other information presented in the proposal support the recommended action; and (4) that the proposed removal would not contribute to the wolf population in the State below 20 breeding pairs and 200 wolves or impede recovery of the NRM wolf population.

The NRM wolf population is a metapopulation comprised of three primary population segments: central Idaho, northwest Montana, and the greater Yellowstone area (GYA). These population segments are spatially separated but are not completely isolated from each other. Each population segment is comprised of a varying number of packs and individuals that disperse within segments and to other segments. Exchange of individuals from these segments also occurs with nearby wolf packs in Canada. The population segments in central Idaho, GYA, and to a lesser extent northwestern Montana, include core refugia, which are areas of relatively high concentrations of wolves on protected public lands (National Parks or Wilderness areas) or habitats with very few human-caused impacts. These refugia are primary sources for a continual supply of dispersing wolves. In this document, the term “NRM wolf population” will mean this metapopulation, and the term “wolf population(s)” will mean the segments within the NRM wolf population.

The minimum recovery goal for the NRM wolf population requires at least 30 breeding pairs and at least 300 wolves equally distributed in Idaho, Montana, and Wyoming (62 FR 15804). To ensure this goal is achieved, each of these States has committed to manage for at least 15 breeding pairs in mid-winter (ILWOC 2002, p. 18; MWMAC 2003, App.1; WGFD 2007a, p. 4). This objective would provide a reasonable cushion to ensure each State's share of the wolf population does not risk falling below the minimum recovery goal of 10 breeding pairs and 100 wolves.

Because this NEP special rule will likely result in more wolf control than is currently occurring, we have established safeguards to ensure that wolf control for ungulate management purposes would not undermine the objectives in the States' wolf management plans. Specifically, before any lethal control of wolves is authorized under this NEP special rule, we must determine that such actions will not contribute to reducing the wolf population in the State below 20 breeding pairs and 200 wolves. This safety margin provides a buffer against unforeseen mortality events that might occur after such removal, and ensures that each State's ability to manage for 15 breeding pairs would not be compromised. This limit is a necessary and advisable precaution while wolves remain listed to ensure the conservation of the species given the additional take that might be authorized pursuant to this rule.

Providing this revision to the NEP special rule for additional management flexibility is appropriate because the NRM wolf population has met all its numerical, temporal, and distributional recovery goals (62 FR 15804). By middle of 2007, the NRM wolf population was estimated to contain 1,545 wolves in 105 breeding pairs (over 3 times the minimum numeric recovery goal for breeding pairs and more than 5 times the minimum population goal), and will exceed the minimum recovery levels for the 7th consecutive year. Montana had an estimated 394 wolves in 37 breeding pairs, Idaho had 788 wolves in 41 breeding pairs, and Wyoming had 362 wolves in 27 breeding pairs.

We do not expect this NEP special rule to adversely affect the species because wolf biology allows for rapid recovery from severe disruptions. After severe declines, wolf populations can more than double in just 2 years if mortality is reduced and adequate food is available (Fuller, et al. 2003, pp. 181-183). Increases of nearly 100 percent per year have been documented in low-density suitable habitat (U.S. Fish and Wildlife Service, et al. 2007, Table 4). The literature suggests that in some situations wolf populations can remain stable despite annual human-caused mortality rates ranging from about 30 to 50 percent (Keith 1983, p. 66; Fuller, et al. 2003, pp. 182-184). Given abundant prey availability, wolf populations can sustain such high levels of human-caused mortality due to their high reproductive potential and replacement of losses by dispersing wolves from nearby populations (Fuller, et al. 2003, pp. 183-185).

Total mortality of adults in the NRM wolf population was nearly 26 percent per year from 1994 to 2006, and the human-caused mortality was about 20 percent per year (Smith 2007). However, the NRM wolf population still continued to expand at about 24 percent annually (Service, et al. 2007, p. Table 4). These data indicate that the current annual human-caused mortality rate of about 20 percent in the adult portion of the NRM wolf population could be increased to some extent without causing the NRM wolf population to decline. Wolf populations and packs within the NRM wolf population are expected to be quite resilient to regulated mortality because adequate food supplies are available and core refugia provide a constant source of dispersers to replenish breeding vacancies in packs.

Wolf populations within the portion of the NRM where this rule applies are characterized by robust size, high productivity, closely neighboring packs, and many dispersers (Service, et al. 2007, Figure 1; Jimenez, et al. in prep.). Wolf populations now occupy most of the suitable wolf habitat in the NRM (Service, et al. 2007, Figure 1). These populations are unlikely to expand their current distributions because little unoccupied suitable habitat is available (Bradley, et al. 2005, p. 1506; Service, et al. 2007, Figure 1). Because suitable habitat is nearly saturated, core refugia within these populations will continue to produce a large number of “surplus” wolves which will either fill in social vacancies within the core refugia, die, or disperse out of the core refugia. Therefore, the core refugia would have an abundant supply of wolves ready to fill any vacancies caused by agency control for unacceptable ungulate impacts. Even when entire packs are removed, new packs are likely to form. During wolf control for livestock depredation in Wyoming, the Daniel, Green River, Carter Mountain, and Owl Creek packs all reformed after they were entirely or almost entirely removed (Jimenez, et al. in prep, pp. 198-200). Bradley, et al. (in press, pp. 8-13) found that, following the removal of wolves for livestock depredation in the NRM wolf population, the breeding status of packs was not greatly affected, regardless of breeding status of individuals or proportion of a pack removed.

Furthermore, many ungulate herds and populations in Idaho, Montana, and Wyoming are at or above State management objectives and most of those below management objectives are most affected by factors other than wolves. Of the 78 elk game management units (GMU) in Idaho, 3 GMUs were identified to be below management objectives with wolves being one of the major causes of decline between 2003 and 2006 (IDFG 2006, pp. 11-12, Figures 1, 2, and 3). Of the 35 elk herds in Wyoming, wolf packs were present in the area used by 7 herds. Wyoming Game and Fish Commission identified 3 of those 7 herds as either below management objectives or having calf/cow ratios indicating that the herd was likely to fall below management objectives soon (Wyoming Governor and Wyoming Game and Fish Commission 2005, pp. 5-6). Because nearly all suitable wolf habitat is now occupied in the NRM (Bradley, et al. 2005, p. 1506; Service, et al. 2007, Figure 1), the current wolf distribution is unlikely to significantly expand and wolves are not likely to begin affecting elk in many new areas. On the other hand, increasing wolf density within already occupied wolf habitat in some areas may cause increased impacts to those elk herds or other wild ungulate herds. Therefore, we expect the need for wolf control to be relatively confined to existing areas of wolf-ungulate impacts, although the need for control in those areas may increase as wolf density increases.

Given the resilience of wolf populations, the current status of the NRM wolf population, and the number and location of ungulate populations or herds identified as below management objectives with wolves as one of the major causes, we determined that any increased mortality from wolf control actions under this rule would not affect the recovered status of the NRM wolf population in Idaho, Montana, or Wyoming.

Addressing Take To Protect Stock Animals and Dogs —The 1994 NEP special rules stated that any livestock producers on their private land may take (including to kill or injure) a wolf in the act of killing, wounding, or biting livestock (defined as cattle, sheep, horses, and mules) (50 CFR 17.84(i)). Similar provisions applied to livestock producers on public land if they obtained a permit from the Service (50 CFR 17.84(i)).

The 2005 NEP special rule expanded this provision to allow landowners in States with Service-approved wolf management plans to lethally take wolves that were “in the act of attacking” their livestock and any kind of dog on private land, where “in the act of attacking” was defined as “the actual biting, wounding, grasping, or killing of livestock or dogs, or chasing, molesting, or harassing by wolves that would indicate to a reasonable person that such biting, wounding, grasping, or killing of livestock or dogs is likely to occur at any moment.” (50 CFR 17.84(n)(3)). The expanded definition in the 2005 NEP special rule also provided Federal land permittees the ability to take wolves in the act of attacking livestock on active public grazing allotments or special-use areas. The definition of “Livestock” was expanded in 50 CFR 17.84(n)(3) as “Cattle, sheep, horses, mules, goats, domestic bison, and herding and guarding animals (llamas, donkeys, and certain breeds of dogs commonly used for herding or guarding livestock). Livestock excludes dogs that are not being used for livestock guarding or herding.”

The 1994 and 2005 NEP special rules did not cover some circumstances for potential damage of private property by wolves. For instance, landowners could lethally take wolves in the act of attacking dogs on their own private land, but could not do the same when on public lands unless the dogs were certain breeds of dogs being used for herding or guarding livestock and were being used for work on Federal lands under an active permit. Recreationists also could not lethally take wolves in the act of attacking stock animals used to transport people or their possessions.

This NEP special rule adds a new provision for lethal take of wolves in States with Service-approved wolf management plans when in defense of “stock animals” (defined as “a horse, mule, donkey, llama, or goat used to transport people or their possessions”) or any kind of dog. Specifically, this modified NEP special rule states that “any legally present person on private or public land except land administered by the National Park Service may immediately take a wolf that is in the act of attacking the individual's stock animal or dog, provided there is no evidence of intentional baiting, feeding, or deliberate attractants of wolves. The person must be able to provide evidence that taken wolves were recently (less than 24 hours) in the act of attacking stock animals or dogs, and we or our designated agents must be able to confirm that the wolves were in the act of attacking stock animals or dogs. To preserve evidence that the take of a wolf was conducted according to this rule, the carcass of the wolf and the area surrounding should not be disturbed. The take of any wolf without such evidence of a direct and immediate threat may be referred to the appropriate authorities for prosecution.”

Since 1995, only 60 wolves (about 9 percent of the 672 wolves legally removed in agency-authorized control actions) have been legally killed by persons in defense of their private property in the NRM. Wolf depredations on stock animals accompanied by their owners have not been documented in the past 12 years, but a few instances of stock animals being spooked by wolves have been reported. Two wolves have been taken by Federal land permittees as wolves chased and harassed horses in corrals or on pickets. While this revision provides additional opportunity for persons to protect their private property, these instances are likely to be rare. Therefore, we expect no impacts on the recovered status of the NRM wolf population from this additional flexibility in the rule.

Reports confirm that 101 dogs have been killed by wolves from 1987 to 2007 (Service, et al. 2007, Table 5, Service 2008, p. 1), but no wolves are known to have been killed solely to protect dogs. We know of one credible and one unconfirmed report of wolves killing pet dogs while humans have been nearby (USDA 2007, p. 1). Wolves have killed at least 35 hunting hounds, primarily on public land. In only a few of those instances, the hounds' owners were close enough that they might have been able to better protect their dogs by shooting at the wolves involved. Although we expect that take of wolves involved in conflicts with pet dogs or hunting hounds would be rare, these reports indicate that such instances could occur. This modification would allow persons in States with Service-approved wolf management plans to protect their dogs from wolf attacks.

Dispersing wolves would quickly fill vacancies created by any take of wolves to protect stock animals and dogs. Because such take of wolves is expected to be extremely low, cumulative impacts of this take combined with agency control for ungulate impacts would be negligible.

In accordance with our joint policy published in the Federal Register on July 1, 1994 (59 FR 34270), and the Office of Management and Budget's (OMB) Final Information Quality Bulletin for Peer Review, dated December 16, 2004, we solicited independent review of the science in the proposed NEP special rule from ten experts on wolves, ungulates, or predator-prey relationships. The purpose of such review was to ensure that our decisions on the proposed revisions to the 10(j) special regulations were based on scientifically sound data, assumptions, analyses, and conclusions. All ten peer reviewers submitted comments on the proposed rule. We considered their comments and recommendations as we made our final decision on the proposed revisions. Substantive peer reviewer comments are summarized in the remaining paragraphs of this section as well as discussed in greater detail in the appropriate Issue/Response sections that follow.

All eight peer reviewers who specifically stated an opinion on the soundness of our proposed revisions regarding management of wolves for impacts to ungulates confirmed that our approach was reasonable. Seven of them provided additional considerations and recommendations. The remaining two peer reviewers raised some concerns and recommendations described below, but did not explicitly express opposition or support to the proposed revisions.

In general, the peer reviewers agreed with our conclusion that wolf predation is never the primary cause of ungulate population impacts but can be among major contributing factors. They also generally confirmed that the proposed safeguards are appropriate for ensuring that wolf control under the revised special regulations would not compromise wolf recovery in the NEP areas of the NRM. While none of the peer reviewers expressed concern that such wolf control would adversely impact wolf recovery, four reviewers questioned a claim in the proposal regarding the level of mortality wolf populations could sustain while maintaining positive growth. Four peer reviewers believed the proposed safety margin of 20 breeding pairs and 200 wolves and other safeguards were adequate to prevent impacts to wolf recovery, while two questioned the necessity of the additional safety margin given the resilience of wolf populations to relatively high mortality.

Two peer reviewers expressly stated that the proposed criteria, required in the NEP special rule, for Service approval of State or Tribal wolf control proposals were adequate or “sufficiently rigorous.” Three others indicated that the standards should be made more specific. One reviewer thought the proposed NEP special rule did not clearly identify criteria for assessing whether a wolf control program will result in ungulate population recovery. Their suggestions for improving the standards included requiring effectiveness monitoring and that we suggest the kind of data to be used for determining wolf predation impacts and ungulate population vigor.

Three reviewers raised a concern for a potential lack of biological validity of ungulate management objectives set by a State or Tribe. Their concerns included objectives that may be based on historical ungulate population levels in the absence of wolves, desired hunter harvest, or without consideration for the inverse relationship between density and productivity in ungulate populations.

Two peer reviewers indicated that the NEP special rule should explicitly require States and Tribes to address other major factors affecting ungulate populations along with wolf control. Two peer reviewers recommended that we define “major” for the purpose of determining when wolves may be one of the major causes of unacceptable ungulate impacts.

Two peer reviewers agreed that the proposed revised NEP special rule provided an appropriate, transparent review process to ensure science-based decisions, but another reviewer warned that, due to the complexities of predator-prey relationships and other influencing factors, trusting the peer review process to catch and identify all interactions that should be considered in a control program may be difficult.

One peer reviewer expressed a preference that hunting and trapping be used as methods of wolf control over aerial gunning or poisoning for more public acceptance of control programs. He did not make a recommendation that the preferred methods be required. None of the other peer reviewers offered opinions on control methods.

The six peer reviewers who specifically addressed the revisions addressing lethal take of wolves for the protection of stock animals and dogs stated that our approach was reasonable. There was general agreement that this additional protection was not likely to result in a level of take that would affect wolf populations. One reviewer agreed with our opinion that it might increase public tolerance of wolves.

One peer reviewer asked what kind of evidence would support a claim of “harassment” where physical evidence may be lacking. He acknowledged that such specifics need not be incorporated into the rule, but cautioned that the Service develop sound procedures addressing this issue to prevent abuse.

In our July 6, 2007, proposed rule (72 FR 36942), we requested that all interested parties submit comments or information that might aid in our decisions or otherwise contribute to the development of this final rule. We also contacted the appropriate Federal, State, and local agencies, Tribes, and scientific and other interested parties and organizations and invited them to comment on the proposed rule. We conducted numerous press interviews to promote wide coverage of our proposed rule in the media. We published legal notices in many newspapers announcing the proposal and hearings and invited comment. We posted the proposal and numerous background documents on our Web site, and we provided them upon request by mail or e-mail and at our hearings and informational meetings. We established several avenues for interested parties to provide comments and other information, including verbally or in writing at public hearings, by letter, e-mail, or facsimile transmission.

The initial comment period was open from July 6, 2007, through August 6, 2007. During that period, we publicized and conducted public hearings on the proposed revised special rule in Cody, Wyoming, on July 17, 2007; in Helena, Montana, on July 18, 2007; and in Boise, Idaho, on July 19, 2007. We also held general public meetings on the same day of each hearing to provide additional information and explain our proposal. At these meetings, we also offered the public opportunity to ask questions and provide input.

A second comment period was opened from September 11, 2007, through October 11, 2007, to provide the public additional opportunity to review and comment on the proposal concurrent with a public comment period on the draft environmental assessment (EA) of the proposed revisions.

At the three hearings, 54 people testified, and we received 19 written comments. During the first comment period, we received more than 176,000 comments by e-mail. During the second comment period, we received about 86,000 additional comments by e-mail. We received a total of approximately 450 mailed and faxed comments. Comments were submitted by a wide array of parties, including the general public, environmental organizations, hunting and outfitter's groups, Tribes, agricultural agencies and organizations, and Federal, State, and local government agencies. Comments originated from throughout the country and even from people in a few other nations.

The Wyoming Game and Fish Department submitted a letter commenting on the proposed NEP special rule on August 3, 2007 (WGFD 2007b). On October 22, 2007, the Wyoming Governor issued a letter (Wyoming Governor 2007) describing how several stipulations in Wyoming law related to delisting and management of the gray wolf are being resolved. One of these stipulations included modifications to the NEP special rule. The Wyoming Governor stated that in light of the resolution of this stipulation, the comments submitted on the proposed NEP special rule are now superseded and do not require our response. Therefore, we do not respond to the comments from the Wyoming Game and Fish Department in this document. However, we have responded to similar comments if they were raised by other parties.

Substantive comments and new information received from peer reviewers and the public during the comment period have either been addressed below or incorporated directly into this final rule. Related comments (referred to as “Issues”) are grouped together below and are followed by our responses. In addition to the following discussion, refer to the “Changes From the Proposed Rule” section for more details. We received thousands of messages supporting and protesting the proposed revisions that did not include substantive comments or new information. Although we reviewed these messages, the number of opinions was not part of the basis of our decisions on the final rule.

Issue 1 —Peer reviewers and commenters provided editorial suggestions, information updates, and corrections to literature citations. Some peer reviewers thought we misstated conclusions from the Oakleaf, et al. (2006, pp. 554-559) study. One peer reviewer asked if we could provide any published citations besides the personal communication (Smith 2005) regarding a 26 percent mortality rate in the NRM wolf population.

Response 1 —We corrected and updated numbers and other data where appropriate. We edited the preamble to the rule to make its intent and purpose clearer.

The reference year for the Oakleaf, et al. (2006, p. 556) wolf pack home range analysis was 2000. The study indicated that at that time relatively large tracts of suitable wolf habitat remain unoccupied in the Rocky Mountains (Oakleaf, et al. 2006, p. 554). Since then, the wolf population continued to grow, as the study predicted, to 1,545 wolves in summer 2007 (Service 2008, p. 1), and most habitat predicted by Oakleaf, et al. (2006, Figure 2) as suitable is now occupied (Service, et al. 2007, Figure 1). We have corrected the citations and text in the rule's preamble to reflect this information.

The data on wolf survival and mortality in the NRM has not been published yet, but Smith (2007) is currently preparing it for publication. We have determined that the data, although not yet published, constitutes the best scientific data available on wolf survival and mortality in the NRM. This information was gathered and compiled by State, Tribal, and Federal members of the Interagency Wolf Recovery Team and entails data from over 900 radio-collared wolves in the NRM population since 1994.

Issue 2 —A few commenters expressed confusion over the difference between the 1994 and 2005 rules and the revised rule because we did not include the entire 50 CFR 17.84(n) regulations in the Federal Register notice for the proposed rule. Some thought we would now have four different 10(j) rules in place.

Response 2 —In 1994 we promulgated special regulations at 50 CFR 17.84(i) for the reintroduction of two NEPs of the wolf in the NRM. In 2005, we modified the NEP special rule, 50 CFR 17.84(n), and we are doing so again in this rule. This approach does not result in multiple sets of these regulations. The regulations in 50 CFR 17.84(i), which apply to States and Tribes without wolf management plans, will remain the same, and the revised regulations in 50 CFR 17.84(n), which apply to States and Tribes with wolf management plans, will supersede the 2005 edition. We have included additional explanation in this rule's preamble to ensure clarity of the changes.

Issue 3 —Some peer reviewers questioned the claim in the proposed rule that the literature indicates that wolf populations could sustain an annual human-caused mortality of 30 percent or more. One peer reviewer pointed out that this statement does not provide an upper bound on mortality rate and, therefore, could be misleading. Another did not recommend that such a high rate of mortality be allowed, but acknowledged that the rule's safeguards would preclude this concern.

Response 3 —We corrected the rule's preamble to indicate that the literature indicates that some wolf populations could remain stable at mortality rates of around 30 to 50 percent.

Issue 4 —Several commenters questioned the need for the proposed revisions because they believed that the 2005 special regulation already allows for control of wolves because of ungulate impacts. Many expressed the concern that the biology and current ungulate herd and population numbers do not justify a need for increasing flexibility for wolf control. A few commenters did not think increasing flexibility to control wolves to protect stock animals was necessary because the current special regulations already allow wolf control to protect livestock or because there is no evidence that wolves attack stock animals.

Response 4 —As explained in the proposed rule and the preamble of this final rule, the 2005 NEP special regulations did not provide States and Tribes the intended flexibility to control wolves causing unacceptable impacts to ungulate herds or populations because such impacts have never been shown to be “primarily caused by wolf predation.” Thus, the wording in the definition of “unacceptable impact” to a wild ungulate population or herd in the 2005 special regulation set an unattainable standard for approval of wolf control and no State or Tribe was able to use the special rule for that purpose. The revision of the definition of “unacceptable impact” to include wolves as “one of the major causes” now provides the intended flexibility for wolf management by States and Tribes.

We acknowledged in the preamble of the revised rule and final EA that many ungulate populations and herds currently are at or above States' management objectives. However, we also are aware of a few instances where herds are not meeting or soon may not meet those objectives, and evidence indicates that wolves are one of the major causes of the failure to maintain those objectives (Wyoming Governor and Wyoming Game and Fish Commission 2005, pp. 5-6; IDFG 2006, pp. 11-12, Figures 1, 2, and 3). The intention of this revision is to provide States and Tribes the flexibility to control wolves in such localized situations. We expect that such situations will continue to be few, and, along with the safeguards in the revised NEP special rule, resulting take of wolves would not have a meaningful impact on wolf populations and would not affect recovery of the NRM wolf population.

The terms “livestock” and “stock animals” were confusing to some commenters who thought the revision to increase wolf control flexibility for the latter is unnecessary. Although the animals listed in “livestock” overlap with some “stock animals” (e.g., horse, mule, donkey, llama), the latter refers to animals used for transport of people or their possessions. The revision does not supplant the definition of livestock with that of stock animals. The 2005 special regulation did not allow any person on public land, who was legally present but did not have a land-use permit to graze livestock or operate an outfitter or guiding business, to kill wolves in defense of these animals. For example, an individual using a llama to pack-in gear while recreating on public lands for his or her enjoyment was not allowed to lethally take a wolf to protect that llama under the 2005 special regulation. The revised special regulation now allows anyone legally present on private or public land, except land administered by the National Park Service, to lethally take wolves in defense of horses, mules, donkeys, llamas or goats that are being used to transport people or their possessions. The 2005 rule also did not allow outfitters and guides or the public on public land to take wolves to protect hunting dogs. The revised rule now allows anyone legally present on private or public land, except land administered by the National Park Service, to take wolves in defense of any dog.

While there have been no reports of wolves depredating stock animals accompanied by their owners in recent years, some reports indicate that wolves have been close enough to spook stock animals. Two wolves have been taken by Federal land permittees as wolves chased and harassed horses in corrals or on pickets. This demonstrates that wolves may occasionally attack stock animals. The increased flexibility in the revised special regulation will allow owners to protect their private property in the few instances when this type of situation may occur.

Issue 5 —A large proportion of commenters were alarmed because they believed that the revisions to the 2005 NEP special rule would allow States and Tribes to kill wolves in large numbers, reduce populations to the minimum recovery numbers, or even reduce them below recovery levels. Others thought that the safety margin of 20 breeding pairs and 200 wolves per State was not adequate based on population viability analysis theories. Some stated that the constraints in the rule on wolf control are not adequate to prevent abuse of the increased management flexibility and that wolves could be killed for reasons other than those described. Others thought the rule would allow “open season” or public hunting of wolves. On the other hand, some supporters of the revised rule expressed belief that a wolf population explosion has decimated elk and moose populations. They advocated killing as many wolves as possible by any means necessary.

Response 5 —The minimum numerical and distributional recovery goal for the NRM wolf population is at least 10 breeding pairs and at least 100 wolves in each of the States of Idaho, Montana, and Wyoming (62 FR 151804). Under this modified special rule, a State cannot be authorized to control wolves for ungulate population impacts if such control would contribute to reducing wolves to below 20 breeding pairs and 200 wolves in that State. These numbers are twice the minimum recovery goals. Therefore, this NEP special rule should not result in the reduction of the NRM wolf population to minimum recovery numbers. Furthermore, this NEP special rule's restriction preventing wolf control below 20 breeding pairs and 200 wolves does not mean that States and Tribes will be allowed to eliminate all wolves above those levels. This is only one of many prerequisites. As in the 2005 special rule, this modified NEP special rule requires States and Tribes to address specific criteria in their proposals for wolf control and follow rigorous peer review, public comment, and Service approval processes before control can be authorized. The State or Tribe proposing to control wolves would have to demonstrate that an ungulate herd or population cannot meet management objectives and wolves are one of the major causes. They also have to scientifically demonstrate that wolf control is warranted and the proposed level and duration of wolf control is appropriate for addressing the impacts to ungulates.

As explained in the preamble, many of the elk populations in the NEP areas are currently at or above State management objectives and only a few elk herds or other ungulate populations are considered to be declining or low due to wolf predation. We also explain in the preamble that core refugia in the NRM would supply a constant source of dispersers to fill in vacancies created by agency control. Because agency control of wolves is likely to occur in only a few discrete areas, the movement of dispersers between packs and populations, and thus connectivity, would not be disrupted.

This rule applies only to wolves in the two NRM NEP areas in States with Service-approved wolf management plans. Control of wolves in national parks and other lands administered by the National Park Service, as well as wolves listed as endangered, is not authorized by this rule.

Furthermore, the standards in this NEP special rule for approving a wolf control proposal would not allow wolves to be killed for just any reason. In their proposal, the State or Tribe must describe impacts from wolves on the ungulate herd or populations and demonstrate in the proposal that wolf control is warranted for relieving unacceptable impacts to ungulate herds or populations. If effects to ungulates by wolves are not among the major causes of the inability to achieve management objectives, wolf control would not be appropriate.

Based on records of wolf threats or attacks on dogs and stock animals, the number of incidents in which wolves might be taken under the modified special rule for these purposes is expected to be very small. Furthermore, when one wolf out of an attacking group is shot, the rest of the wolves almost invariably flee. Fleeing wolves could no longer be “in the act of attacking” and taking of such wolves would be in violation of the law. Therefore, we fully expect that abuse of the law and taking of more than one wolf during each incident to be unlikely.

This modified NEP special rule does not authorize open public hunting nor would it allow States or Tribes to use public hunting as a method for controlling wolves causing unacceptable impacts to ungulates. A State or Tribe may choose to enlist persons as designated agents of that agency to conduct highly controlled damage hunts on private property for controlling wolves, but this method would need to be included in their proposal and subject to all the NEP special rule's criteria and procedural requirements for our approval.

Evidence does not support the belief that wolves are decimating ungulate populations in the NRM. Currently many elk populations are at or above management objectives in Idaho, Montana, and Wyoming. Some populations of other ungulates, such as mule deer, bighorn sheep, and moose are depressed in some areas, but this is mostly due to causes other than wolf predation, such as disease and poor habitat quality. The need for wolf control to help restore ungulate herds or populations to State or Tribal management objectives is not pervasive, and uncontrolled removal of wolves is not necessary, appropriate, or allowable under this NEP special rule.

We agree that wolf populations tend to be resilient to regulated human-caused mortality. However, because we anticipated that the revised NEP special rule may result in more killing of wolves than is currently occurring, we established measures to ensure that wolf control for ungulate management purposes would not undermine wolf recovery goals or the States' ability to manage for 15 breeding pairs as obligated by their Service-approved wolf management plans. Most peer reviewers noted that the rule's safeguards and safety margins were adequate to prevent abuse and that the revisions would result in little impact to the recovered wolf population. No peer reviewer expressed concern that the revisions would result in significant impacts to the recovered NRM wolf population or that the rule's safety margin is inadequate. Two peer reviewers questioned the necessity of the additional safety margin of 20 breeding pairs and 200 wolves in consideration of the resilience of wolves to take and the current recovery level safety margin of 15 breeding pairs required by the States' Service-approved wolf management plans. The additional safety margin of 5 breeding pairs above the 15 breeding pairs the States will manage for is the same size of the safety margin over the 10 breeding pairs necessary for delisting. This buffer is intended to prevent the compromise of State wolf management objectives from unforeseen events that may cause wolf declines in combination with the additional mortality from wolf control.

Issue 6 —We received a number of comments, including from two peer reviewers, that the term “major causes” in the proposed revised definition of “unacceptable impacts” be further defined. One of the peer reviewers suggested some criteria to consider. Some commenters said that long-term studies would be necessary to show that wolves are one of the major causes of ungulate declines.

Response 6 —Consideration of whether wolves are one of the major causes of ungulate population declines would require comparing the significance of the wolf impact with that of the other causes. Because the relationship between wolf predation and ungulate populations is very complex (Mech and Peterson 2003, pp. 146) and because a host of other interconnected local factors can influence how it might affect ungulate populations (Garrott, et al. 2005, pp. 1245), we could not predict all the specifics in each way wolves could be one of the major causes of ungulate impacts. If we attempted to develop a specific list of required criteria, we may unintentionally exclude other valid conditions. Furthermore, even the suggested criteria from the peer reviewer included some level of subjectivity (e.g., “high proportion,” “strong evidence,” “excessive”) that would require further definition. Therefore, we believe that the validity of a State's claim that wolves are a major cause of ungulate impacts would be better determined on a case-by-case basis, where such a determination will depend upon the adequacy of the data and science describing the conditions, and their relative importance, contributing to ungulate herd or population declines. We would rely on professional evaluation and judgment inherent in the required peer reviews and our approval process to ensure that such determinations are appropriate.

Due to the complexity of wolf-ungulate interactions, it may be difficult to unequivocally prove that wolves are one of the major causes of ungulate decline. However, reasonable inferences can sometimes be made by comparing ungulate herds or populations with similar environmental conditions where wolves are absent, are present in much smaller numbers, and are present in similar or larger numbers. We would consider this information along with other data required by the NEP special rule and the soundness of the science presented in the proposal.

Issue 7 —We received several suggestions that the States should be required to demonstrate that they are addressing other major causes of ungulate herd or population declines in concert with wolf control. These suggestions were in response to an interpretation that the rule requires the States or Tribes merely to describe the other major causes in their proposals. We also received a comment that the State may not have control over all other major causes, such as climate change.

Response 7 —Our intent was that States or Tribes would need to demonstrate that they have attempted to address other major causes or that they are committed to do so in concert with wolf control. We have refined the wording in the rule so that it more clearly expresses that intent (see Changes From the Proposed Rule section). We would not disapprove a proposal merely because the State or Tribe has no power to address certain other causes of ungulate declines. However, we would expect the proposal to describe why the State or Tribe does not have control over those issues and how they otherwise might be addressed.

Issue 8 —Some commenters stated that social effects to wolf packs from killing alpha males and females (i.e., breeders) were not considered, nor were effects to pack structure and productivity from killing subadults and pups. Others thought removing entire packs would fragment populations and prevent genetic exchange.

Response 8 —As explained in the preamble, wolf packs and populations are known to be very resilient to a number of causes of mortality, including human-caused, as long as there is adequate food and a surrounding population with dispersing individuals to provide replacements. Ultimately, the population's productivity in terms of recruitment and immigration is what allows it to persist under human harvest (Fuller, et al. 2003, pp. 184-185). Populations with average or high productivity can withstand higher levels of take, especially if populations that can provide replacements are nearby (Fuller, et al. 2003, pp. 184-185). Population size, proximity of other wolf packs, and the number of dispersing wolves influence the frequency with which alpha males and females will be replaced (Brainerd , et al. in press, pp. 15-16). Wolf populations in the NRM where this rule applies are characterized by robust size, high productivity, and closely neighboring packs, and have many dispersers (Jimenez, et al. in prep). Therefore, social vacancies, whether from loss of breeders or nonbreeders, in these areas are likely to be quickly filled by dispersing wolves or other wolves within the pack. Often subadults and pups are the first to be removed in wolf control programs because they tend to be naive and, therefore, more vulnerable to take. Vacancies from loss of subadults and pups, like other age-class vacancies, are likely to be readily filled by dispersers or new offspring, given the ready supply of dispersers from core refugia in the NRM. If an entire pack is removed, a new pack is likely to form for the same reasons as described earlier in this preamble. Therefore, gaps that would fragment populations and disrupt genetic exchange are not likely to occur in the NRM wolf population.

Issue 9 —Some commenters stated that localized wolf control would create population sinks that deplete nearby source populations. Others thought wolf control to relieve unacceptable ungulate impacts would be futile because wolves would constantly fill in vacancies created by control actions.

Response 9 —We agree that the vacancies created by wolf control (or other forms of wolf mortality) are likely to be filled with wolves from other packs. However, in the NRM this situation is not likely to constitute a population sink that depletes or affects stability of source populations ( core refugia ). Wolves disperse from their natal packs regardless of human-caused mortality elsewhere. Wolf populations and packs routinely turn over members (Mech 2007). Vacancies created by wolf control are most likely to be filled by young adult dispersers that leave their packs because they are unable to breed or as an evolutionary strategy to avoid inbreeding (VonHoldt, et al. 2007), because they are attempting to increase access to food (Mech and Boitani 2003, p. 12), or due to social tensions in their natal pack (Mech and Boitani 2003, p. 13). Such individuals would not have directly contributed, through breeding, to the productivity of the packs they left. Although some of these dispersers may have filled other vacancies within the source population and had the potential to breed there, those vacancies will be quickly filled by other dispersing wolves or wolves within those packs (Fuller, et al. 2003, p. 181 and 183). As described earlier in this preamble, core refugia in the NRM wolf population provide a constant source of dispersers. While removing a pack may draw another pack into that area, approved wolf removal under this rule will not be at a rate and level (see preamble) that would create a void large and long enough in the core refugia to impact the stability of the wolf populations in the NRM.

While vacancies created by wolf control are likely to be filled, wolf density in the control area could be temporarily lowered to the extent that would allow the ungulate herd or population to respond, depending on the proposed level and duration of control. For example, control on an annual basis for 3 to 5 years may decrease predation and relieve impacts to the herd or population enough to allow the population to return to management objective levels. As long as other major causes of ungulate population impacts have been addressed, the lowered post-control wolf density should allow the ungulate herd or population to remain at management objectives. Wolf removal as envisioned under this rule is limited in time until the ungulate herd meets its management objectives or until it is evident that wolf removal is not having a positive effect on the herd's status. If the required monitoring shows that the desired results are not achieved under the terms of the approved proposal, we would expect the State or Tribe to reevaluate whether continued control is warranted. If wolf densities and ungulate depredation return to levels that cause the ungulate herd or population to decline below management objectives again, the State or Tribe would need to submit another proposal under the processes required by this rule.

Issue 10 —Commenters provided several reasons why they believe the NEP special rule was inappropriate, such as: (1) Wolves keep ungulate herds healthy by culling the sick and weak; (2) it allows killing of wolves for preying on their natural prey; (3) wolves are keystone predators that play an important role in the ecosystem; and (4) wolves decrease impacts of ungulate herds on riparian vegetation.

Response 10 —Although wolves often prey on the less fit individuals of a prey population, they can also kill healthy animals resulting in additive mortality that can contribute to failure to sustain State or Tribal ungulate management objectives. We agree that ungulates are part of wolves' natural prey base and that wolves can play an important role in ecosystem function, as do other large predators. However, the anticipated levels of wolf removal under this NEP special rule would not result in disruption of ecosystem functions or meaningful impacts on other species that benefit from wolf presence. The most dramatic improvement of riparian vegetation after the return of wolves appeared to reduce elk browsing pressure is in Yellowstone National Park, where this rule does not apply and wolf control would not be allowed. However, the magnitude of cascading ecological effects from wolves is under some debate (Ripple and Beschta 2004, p. 755), and a number of biotic and abiotic factors are believed to affect woody browse conditions along with changes in ungulate behavior due to wolf presence (Smith, et al. 2003, pp. 338-339). Given observations in Yellowstone National Park and depending on a variety of conditions, removal of wolves to meet State or Tribal ungulate management objectives for a particular herd or population may result in increased browsing pressure in those localized areas. However, balancing management of ungulate populations with that of plant communities and habitats outside Federal lands is under the purview of State and Tribal natural resource agencies, not the Act.

Issue 11 —Some commenters were concerned that wolf control would prevent wolves from re-establishing in neighboring States that do not currently have wolf populations.

Response 11 —Given the levels and extent of anticipated control of wolves for unacceptable ungulate impacts, we do not expect wolf numbers to be reduced enough to cause a meaningful reduction in the probability of dispersers reaching other States.

Issue 12 —Some commenters believed that we improperly considered economic, political, or other factors in developing the proposed rule. Some believed we were influenced by special interests and State politicians, while others thought we favored environmental interests and the public outside the affected region. Several commenters believed that we neglected to address economic impacts to the tourist industry in the Yellowstone area and provided a citation on the economic benefits of wolves (Duffield, et al. 2006, p. 51). Others expressed that wolf predation on ungulates has negatively affected local economies by reducing clients for outfitters and guides and causing elk to move from feed grounds into areas where they cause damage and transmit disease to livestock.

Response 12 —The Act requires that the decision to list a species as threatened or endangered be based on the best available science, and this prohibits economic considerations when making that decision. However, no similar prohibition is applicable to the promulgation of a 10(j) rule, and economic and other factors, including the effects on other wildlife populations, are appropriate for consideration. In promulgating this regulation, we have fully complied with the requirements of the Administrative Procedures Act. Moreover, we have addressed the various benefits and costs associated with this rulemaking as required by the Regulatory Flexibility Act and the Small Business Regulatory Enforcement Fairness Act (SBREFA) (see Required Determinations section). In particular, the expected level of wolf control resulting from this rule and the fact that this rule does not apply within Yellowstone National Park, where most of the public now goes to view wolves, will not affect wolf numbers and distribution in a manner that will significantly alter the opportunities for the public to observe and enjoy wolves in the wild. Therefore, we do not expect wolf-based tourism and dependent economies to be materially affected. We also acknowledge that in some situations this rule may result in economic benefits for guides and outfitters, and possibly other associated businesses, if wolf control results in higher ungulate populations that allow higher rates of hunter harvest.

Issue 13 —Some commenters believed that we are promoting public intolerance by allowing killing of wolves for natural predation and others questioned the basis of our statement that the revision to the NEP special rule may increase public tolerance and decrease illegal take. Others suggested that public education should be used to reduce anti-wolf sentiments instead of controlling wolves.

Response 13 —Because wolves are currently at population levels much higher than recovery goals, we believe it is appropriate to provide increased management flexibility to address conflicts between wolves and human uses. It is not unreasonable to assume that incentives for illegal take of wolves would be diminished by providing a legal and responsible mechanism for addressing those issues that are part of the basis for intolerance of wolves. However, because data are not available to support or disclaim this premise, we have removed this claim from the EA. State and Federal agencies, such as the National Park Service (NPS), and numerous conservation organizations continue to provide the public extensive information about wolf biology, ecology, and behavior.

Issue 14 —Some, including one peer reviewer, questioned how we would be able to determine that a killed wolf had been chasing or harassing a dog or stock animal, when such activities would not result in physical signs on the subject of the attack.

Response 14 —Making such a determination may be difficult in some cases, especially if the incident is not reported quickly because such evidence is generally temporary in nature. The requirement for reporting within 24 hours of take of the wolf will help ensure that the evidence is available upon investigation. If no actual biting, wounding, grasping, or killing has occurred, evidence must be available that a reasonable person would have believed that it was likely to occur at any moment. In such cases, we expect that the wolf carcass would be in very close proximity to the stock animal or dog or evidence that the stock animal or dog was chased, molested, or harassed by wolves. Evidence to indicate this activity may include photographs of stock animals or dogs, pickets, temporary livestock corrals or camps, the wolf carcass, and the surrounding area immediately following the taking of the wolf, and/or tracks of the stock animal or dog and wolf, hairs, damaged vegetation, or trampled ground. Since the 2005 special rule went into effect, 27 wolves have been killed while in the act of attacking livestock and, based on the evidence, the resulting investigations resulted in determinations that most of these wolves had been chasing, molesting, or harassing livestock. In two additional incidents where wolves were killed, one person was charged and convicted for violating the law and a second person is under investigation because the evidence did not indicate that wolves were in the act of attacking livestock. Thus, staff from State and Federal agencies involved with livestock depredations have developed expertise in determining wolf activities from field evidence and in most cases can make a reasonable determination whether that evidence indicates that a wolf was in the act of attacking the stock animal or dog.

Issue 15 —The Wildlife Services division of the U.S. Department of Agriculture's Animal and Plant Health Inspection Service indicated that language in the proposed rule implied that dogs are safe from wolf attack if they are near humans and provided information on some reports of wolves killing pet, herding, and guarding dogs with humans nearby (USDA 2007, p. 1).

Response 15 —Although wolf attacks on dogs in the presence of humans are extremely rare, we acknowledge that the possibility exists. Hence, the revision to the NEP special rule to provide individuals the additional flexibility to defend their dogs against wolf attacks. We have added the information on reported attacks in the preamble of this final rule.

Issue 16 —Several commenters were concerned that wolves would be killed when attracted to dogs used for hunting, or when protecting pups.

Response 16 —The rule prohibits killing of wolves with the use of intentional baiting, feeding, or deliberate attractants of wolves. For example, it would be unlawful to knowingly approach a wolf den or rendezvous site with a dog and then attempt to shoot those wolves. Anyone who uses dogs to deliberately attract wolves to kill them while in the guise of hunting would also be in violation of the law. On the other hand, the rule is intended to allow hunters to protect their hunting dogs from wolves that are in the act of attacking their dogs, if the hunter did not knowingly attract those wolves to the dogs.

Issue 17 —One peer reviewer thought we should clarify what take this NEP special rule would allow in national parks and asked for clarification of what the “legally present” requirement means.

Response 17 —This NEP special rule does not authorize any take of wolves on lands administered by the National Park Service. “Legally present” means that the person is (1) on their own property, (2) not trespassing and has the landowner's permission to bring their stock animal or dog on the property, or (3) abiding by regulations governing legal presence on public lands. As a means of clarification we have included this definition in this NEP special rule (see Changes From the Proposed Rule section).

Issue 18 —We received requests that goats be added to the definition of stock animals in the revised NEP special rule, because goats are used as pack animals in areas of the NRM where wolves could be a threat.

Response 18 —We revised the definition of stock animals to add goats to the list (see Changes From the Proposed Rule section).

Issue 19 —Questions arose from commenters and peer reviewers regarding how approvals of proposals to control wolves could be scientifically based, as required by the NEP special rule, should State or Tribal management objectives for ungulate populations or herds have no biological basis. Some feared that management objectives would be deliberately inflated as an excuse to kill wolves. Others, including two peer reviewers, were concerned that management objectives may be set on carrying capacity for ungulates without consideration of the presence of wolves and thus unattainable with wolves in the system. Another peer reviewer stressed that ungulate populations at high densities relative to available resources will have low productivity regardless of wolf predation. This peer reviewer suggested that we provide a list of potential morphological indices of population vigor related to resource availability (such as antler size, hind leg length, and newborn calf weight) that States and Tribes could consider in the development of management objectives.

Response 19 —We agree that determining the scientific validity of a proposal to control wolves to restore ungulate herd or population management objectives would be difficult without a clear picture of the basis of those objectives. However, because the States and Tribes are experts in management of their ungulate populations, and management objectives may need to be determined by a number of complex factors and can change depending on conditions, we have elected not to direct specific factors the States and Tribes should consider in the establishment of their management objectives. Instead, we have added a requirement that the basis of the State or Tribal management objectives for the affected ungulate herd or population be described in the proposals for wolf control (see Changes From the Proposed Rule section). The NEP special rule also requires any such proposal for wolf control to include a description of the data indicating that the ungulate herd or population is below management objectives and why wolf control is a warranted solution to restore the herd or population to management objective levels. If management objectives are not being met because ungulate productivity is affected by its population density, the State or Tribe will still have to demonstrate in the proposal that the removal of wolves will help restore the ungulate herd or population to management objectives because wolves are a major factor in the decline of the herd or population. We believe that inclusion of such information in the proposal, combined with the required peer review and public comment processes, will enable us to make a sound science-based determination on whether the proposed wolf control is appropriate.

Issue 20 —We received requests to include a trigger in the rule to allow wolf control when calf/cow ratios in elk populations drop below 30 calves per 100 cows.

Response 20 —As explained in Response 19, we will rely on the States and Tribes to provide in their proposals specific information indicating that ungulate herd or population objectives cannot be met. With respect to this comment, the proposal will need to demonstrate that a specific calf/cow ratio indicates that the herd or population will be unable to meet the established management objectives that wolves are a primary cause of the inability to meet management objectives, and that wolf control will resolve this problem.

Issue 21 —Some commenters wanted the definition of unacceptable impacts to include effects caused by wolves at key ungulate feeding areas or feed grounds. Others expressed disapproval that wolf control would be allowed for merely causing ungulate herds or populations to move from normal feeding areas.

Response 21 —As explained in Response 19, we do not specify factors that the State or Tribe must consider in the establishment of their ungulate management objectives. If the State or Tribe proposes to control wolves because they are affecting ungulates at key feeding areas, we will expect the proposal to include information that demonstrates that management objectives cannot be met because wolves are disrupting ungulate feeding patterns and behavior. The proposal should provide support linking wolf activities at the feeding areas with disruption of ungulate feeding, poor nutrition in ungulates, and effects to survival and recruitment of ungulates as a consequence.

Issue 22 —Some commenters thought that the Service, rather than the State or Tribe, should select peer reviewers or at a minimum have the option to reject peer reviews of proposals to control wolves for unacceptable ungulate impacts. Others recommended that we drop the requirement for peer and public review altogether so that wolf control actions would not be delayed when critically needed.

Response 22 —Independent peer review plays an important role in maximizing the quality, objectivity, utility, and integrity of the information upon which we will base our decisions. Peer review will help ensure that such information is the best scientific and commercial information available. Because the relationships between ungulate populations and wolves and other factors affecting such populations are highly complex, peer review from those with expertise in these relationships is even more critical in evaluating whether proposed wolf control is appropriate. Through their extensive level of experience with ungulate conservation, State and Tribal game and fish agencies have access to experts on predator-prey relationships in the academic and scientific communities. Assigning the responsibility to conduct peer reviews to each State and Tribe proposing to control wolves will result in a more efficient process.

In this final NEP special rule, we clarify that the States and Tribes will be required to follow the OMB Final Information Quality Bulletin for Peer Review (70 FR 2664, January 14, 2005), which provides the professional standards that the Service uses in soliciting peer review from independent experts who have demonstrated expertise and specialized knowledge on the relevant issues. We also added details to the NEP special rule to clarify the requirements for peer review of wolf control proposals. Specifically, before submitting a wolf control proposal to us for approval, the State or Tribe will need to obtain five independent peer reviews of the proposal. To avoid a potential appearance of conflict of interest, those peer reviews must be obtained from experts other than staff of State, Tribal, or Federal agencies directly or indirectly involved in predator control or ungulate management in Montana, Idaho, or Wyoming. The State or Tribe also must explain in their proposal how the standards of the OMB peer review bulletin were considered and satisfied (see Changes From the Proposed Rule section).

Wolf predation significantly impacting ungulate populations is known to occur only in combination with a number of other causes of population declines. The relationships between these other factors, wolves, and prey populations are very complex and rarely result in a sudden precipitous decline requiring response in less than the normal time to conduct peer reviews and a public comment process.

Issue 23 —A number of commenters objected to approval of any State or Tribal programmatic proposal for wolf control because they feared such an approach would allow the States or Tribes to rely on claims of broad-based ungulate impacts rather than providing evidence of localized impacts to a particular herd or population. Some commenters were also concerned that peer reviewers would not be able to predict the significance of the role of wolf predation in future ungulate impacts given the complex nature of interrelated factors affecting ungulate populations. Some also believed that programmatic proposals would limit the ability of the public to comment on issues related to local conditions and specific actions that would not be evident at the time of public review of the programmatic proposal. A commenter asked what the consequences would be if a control project was not consistent with an approved programmatic proposal. On the other hand, some promoted acceptance of programmatic proposals because such an approach would allow States and Tribes to expeditiously address wolf impacts without delay associated with peer and public review on each individual control action.

Response 23 —The NEP special rule does not discuss programmatic proposals per se. A programmatic proposal could be approved if it adequately addresses all the criteria required by the NEP special rule to show that the science supports the need for the proposed wolf control and has undergone all the procedural requirements for submission to the Service. We expect a programmatic proposal to clearly delineate specific conditions that would warrant wolf control for the period of time and geographic area covered by the proposal. Furthermore, before we could approve a programmatic proposal, we would have to be able to determine that control under such a proposal would not contribute to reducing the wolf population in the State below 20 breeding pairs and 200 wolves.

A programmatic proposal must undergo the same peer and public review processes as would a specific proposal. As stated above, a programmatic proposal would need to contain enough details to show that the required criteria for approving wolf control have been met. During review, peer reviewers and the public would have the opportunity to provide input on whether the details are sufficient or appropriate in such a programmatic proposal.

If a specific control action is not consistent with the approved programmatic plan, it would be subject to enforcement of the Act's existing regulations governing NEPs of the gray wolf.

As explained in our response to Issue 22, typical times for peer review and public comment processes are not expected to affect the timeliness of control actions.

Issue 24 —Some commenters wanted the regulations to include and describe an appeal process for the approval or disapproval of a proposal to control wolves for ungulate impacts. We also received requests that the regulations require specific means for public review of proposals, such as posting proposals on the Internet and providing 60-day comment periods. Others asked how we would rescind an approval if a State or Tribe continued to control wolves if the State's population dropped below the special rule's safety margin of 20 breeding pairs and 200 wolves.

Response 24 —We encourage States and Tribes to work closely with us while developing their proposals to ensure that all the required criteria in the regulations will be met. Based on expected coordination with the States and Tribes, we do not believe an appeal process for disapproved proposals is necessary. We believe that transparency of the peer review and public comment processes, the NEP special rule's criteria for an approvable proposal, and our standards for the use of the best scientific and commercial information available preclude the need for an appeal process. Furthermore, should we disapprove a proposal, we would explain the reasons for the disapproval, and the State or Tribe may revise the proposal and resubmit it for further consideration.

In the NEP special rule, we intend to allow for a transparent process for review of wolf control proposals by requiring the State or Tribe to implement peer reviews and a public comment period. The methods and processes for providing adequate and reasonable public review and input will be determined by the State or Tribe submitting a wolf control proposal.

Monitoring of wolf populations (see Response 26) will provide a feedback loop that would inform the State or Tribe if the control actions are no longer appropriate or in danger of noncompliance with the regulations. If a State or Tribe continued to take wolves after the State's wolf population dropped below the rule's safety margin, the State or Tribe will be in violation of the law and subject to an investigation and further action by the Service's Division of Law Enforcement.

Issue 25 —We received thousands of comments asking to prohibit aerial gunning as part of wolf control actions and some suggesting that the proposed revisions to the NEP special rule would violate the Airborne Hunting Act. Other commenters asked for prohibitions on a variety of methods, including but not limited to hunting, trapping, poisoning, and killing with motorized vehicles. One peer reviewer expressed a preference for hunting and trapping over aerial gunning and poisoning to gain more public acceptance of control measures. Some commenters objected to the use of trapping and poisoning on public property. Some commenters suggested using various forms of nonlethal control before resorting to killing wolves.

Response 25 —The States will likely use shooting from the ground and air as the primary method of control of wolves for ungulate impacts. These methods are considered the most efficient and humane of those available. Based on the experience and expertise of State agency staff, we believe the States should be allowed the flexibility to determine the appropriate methods of control within the confines of existing laws and regulations. This NEP special rule does not supersede or invalidate any other Federal, State, or Tribal laws and regulations, including the Airborne Hunting Act. All management activities under this NEP special rule must be conducted in compliance with all other applicable laws and regulations. Furthermore, if control methods result in take of wolves exceeding the level in an approved proposal under this NEP special rule, the control actions must cease and will be subject to enforcement under the Act.

We and our partners in wolf recovery continue to investigate and implement a variety of nonlethal methods of wolf management. While preventative and nonlethal control methods can be useful in some situations, they are not consistently reliable, so lethal control remains a primary tool for managing wolves affecting ungulate populations, livestock, and domestic animals.

Issue 26 —Some commenters, including two peer reviewers, said that the rule should include a requirement for monitoring to determine effectiveness of wolf control actions and a process for adaptive management. Some questioned how monitoring by the States or Tribes would be funded or urged us to provide such funding.

Response 26 —In the NEP special rule's requirement for wolf control proposals to include a description of how ungulate population responses to wolf removal will be measured, we now specify that the proposal must describe how control actions will be adjusted to maintain their effectiveness. While the wolf is listed, Idaho and Montana receive Federal funding to conduct wolf population monitoring, and we provide staff to conduct monitoring in Wyoming. Wolf control for livestock depredation is reported informally on a weekly basis and officially in annual reports. The annual reports include comprehensive information on control actions, wolf population status, and analyses of the effectiveness of wolf control for livestock depredation. This reporting mechanism will be used for wolf control actions for unacceptable ungulate impacts under this rule. We expect the annual reports to include an evaluation of the effectiveness of wolf control and other measures in relieving unacceptable impacts to ungulate herds or populations just as is done for wolf control for livestock depredation. An adaptive management framework for wolf control for unacceptable ungulate impacts may entail slight modifications to the approved control actions. However, any necessary changes that would increase level and duration of take of wolves or impacts to wolf populations that were not considered for the approval of the control actions will require submission of a new proposal and must comply with the rule's criteria and procedures for approval. The Idaho Department of Fish and Game's proposal for wolf control, submitted in 2006 (Idaho Department of Fish and Game 2006, pp. 20-21), provides an example of the type of information on proposed monitoring that should be included.

Wolf populations in the NRM have been and will continue to be intensively monitored. This monitoring is conducted by the Service, NPS, Nez Perce Tribe, and the States of Idaho, Montana, and Wyoming and will help provide information on any effects to wolf populations from wolf control actions. Currently, Idaho and Montana receive Federal funding for wolf management and monitoring. Such funding is likely to continue at least until the wolf is delisted. While the wolf is listed, the Service provides funding and staff to conduct wolf management and monitoring in Wyoming outside the national parks. The NPS covers funding for monitoring in the national parks, but wolf control under this rule will not occur there.

Issue 27 —A couple of commenters claimed that the proposed rule is arbitrary and capricious because (1) the post-delisting wolf management plans, required for a State or Tribe to be eligible to use the NEP special rule, would be implemented only after delisting, yet we could approve wolf control before then, and (2) the Act provides no basis for allowing wolf control before delisting based on how a State or Tribe might manage wolves after delisting.

Response 27 —The requirement for approved post-delisting management plans for a State or Tribe to be eligible to apply the revised NEP special rule is not based on the specifics of wolf management after delisting, when the NEP special rule will no longer exist. Development of a wolf management plan demonstrates that the State or Tribe has undertaken a formal process that commits it to a management strategy for sustaining wolf recovery. This commitment assures that any proposal to remove wolves will be in alignment with long-term wolf conservation and not based solely on a goal to benefit ungulate populations. In addition, adoption of the wolf management plan will demonstrate that the wildlife agency has received the necessary local political and administrative support within the State or Tribe for implementing the plan and approved wolf control.

Issue 28 —We received requests, including from a State agency, to increase the required reporting period after a wolf is killed from 24 to 72 hours to accommodate instances where the take occurred in remote areas.

Response 28 —In recognition of the need for a greater reporting time in certain situations, 50 CFR 17.84(n)(6) already allows for reasonable additional time for reporting if access to a site is limited. We believe this existing provision appropriately addresses the concern raised by the commenter and that no modification is needed.

Issue 29 —One commenter recommended that the NEP special rule specifically prohibit trapping of wolves in primary conservation areas for grizzly bears.

Response 29 —Only two grizzly bears have been accidently trapped since trapping wolves for monitoring and livestock control purposes began in 1986. The type of trap in one incident is now used by State or Federal agency staff only when grizzly bears are hibernating. In the other incident in Glacier National Park, a trapped bear was killed by another bear. Currrently, several measures are implemented to minimize accidental trapping and safety issues for nontarget species and agency staff (unintentional trapping of bears is much more dangerous to agency staff than it is to the bears). Some of these measures include the use of transmitters on traps to detect sprung traps, careful placement of traps, and use of less odorous bait to minimize attracting bears. If a bear is accidentally trapped, agency staff dart and release it. Therefore, wolf control authorized by this NEP special rule is highly unlikely to compromise grizzly bear conservation.

Issue 30 —Some commenters requested additional time for public comment. Some believed that we did not advertise the hearings and public comment periods sufficiently. Some objected that hearings were not held in major population areas such as Denver, Colorado, or Portland, Oregon.

Response 30 —We provided a total of 60 days in two separate 30-day periods for public comment. We announced information on the comment period and hearings in the Federal Register notice of the proposed rule, our national Web site, and regional Web sites in the two affected regions. We also provided legal notices of the comment period and hearings for publication in 11 major and local newspapers in Idaho, Montana, and Wyoming. We sent out press releases to print and broadcast media; members of Congress; relevant State, Tribal, Federal, and local agencies; and hundreds of interested parties in Idaho, Montana, Wyoming, Utah, Colorado, North Dakota, South Dakota, Nebraska, and Kansas. We also sent information on the opportunity for public comment to two major national environmental organizations that distributed the information to their membership, on their Web sites, and to other organizations that made similar efforts. Given that we received more than 260,000 comments from throughout the country, we believe sufficient notice and time was provided for widespread public comment. In selecting hearing locations, we believe that we achieved a balance between proximity to the most affected public in the three States where the rule would apply and the public's accessibility to the hearing locations.

Issue 31 —The proposed revised special rule is not in compliance with section 2 of the Act nor does it conform to the purposes of section 10(j) because it does not further the conservation of the species. The proposed revisions are tantamount to delisting and in violation of Section 4 of the Act by allowing take as if the species was not listed.

Response 31 —The regulations under the Act relating to establishment of experimental populations specifically recognize the creation of special rules containing both prohibitions and exceptions for those populations (50 CFR 17.82). Under section 10(j), such exceptions are intended to allow management practices to address potential negative impacts or concerns from reintroductions. The 10(j) special regulations of 1994 and 2005 for the NEP of the gray wolf in the NRM include provisions for managing wolf populations impacting livestock and ungulate populations. Such provisions are necessary for the continued enhancement and conservation of wolf populations because they foster local tolerance of introduced wolves. However, these revisions do not alter the protected status of the gray wolf in the NRM provided under section 4 of the Act. The reintroduction of the gray wolf into Central Idaho, Southwestern Montana, and Yellowstone National Park under the 10(j) provisions clearly furthered the conservation of the species. Since 1995, when the reintroductions first occurred, wolf populations expanded in size and distribution and reached the minimum recovery goals in 2000 and have exceeded those goals every year since then. As described above, our modifications to the provisions of the 2005 special rule do not compromise the continued conservation of these populations in this remarkable recovery success story.

Issue 32 —One commenter thought that we should prepare an environmental impact statement rather than an EA to comply with the National Environmental Policy Act (NEPA) because the rule would allow the killing of nearly 1,000 wolves, constituting a major Federal action significantly affecting the quality of the human environment.

Response 32 —As a result of the analysis in the EA, we made a finding of no significant impact because we concluded, among other reasons, that the likely amount of take of wolves that the rule would authorize would be relatively low and would not compromise recovery of the NRM wolf population. Based on the current available information where wolves may be causing unacceptable impacts to ungulate populations, it is our expectation that the total number of wolves taken would be well below 1,000.

Issue 33 —The State of Montana supported all aspects of the revisions to the 10(j) special rule, but did not want efforts to finalize it to take priority over, and thus delay, finalizing the delisting rule.

Response 33 —The Service remains committed to finalizing both the 10(j) rule and its decision on the proposed delisting rule in early 2008. The revised 10(j) special rule is intended to provide flexibility for wolf management in the NEP areas (including in Montana) in case the final determination on the delisting is delayed or concludes the wolf should remain listed.

Some comments went beyond the scope of this rulemaking, or beyond the authority of the Service or the Act. Since these issues do not relate to the action we proposed, they are not addressed here. These comments included support or opposition for future delisting, assertions that wolf reintroduction was illegal and/or usurped States' rights, and that the type of wolf that currently lives in Montana, Idaho, and Wyoming is a nonnative wolf. Many of these types of comments were discussed in the reclassification rule (68 FR 15804, April 1, 2003). We also received comments expressing support for, and opposition to wolf recovery efforts and the proposal (or parts of it) without further explanation.

As a result of comments and additional information received during the comment period, and additional analysis, we made several changes to the special rule as proposed on July 6, 2007 (72 FR 36942). We describe the specific changes below. Discussion of the basis for these changes are in our responses to the relevant comments where indicated below.

1. Proposed —Among the criteria States or Tribes would be required to address in a proposal to control wolves for unacceptable impacts to ungulate herds or populations was “Identifies possible remedies or conservation measures in addition to wolf removal.”

1. Final —The requirement is changed to “Demonstrates that attempts were and are being made to address other identified major causes of ungulate herd or population declines or the State or Tribal government commitment to implement possible remedies or conservation measures in addition to wolf removal; * * *.” See Response 7 in Summary of Comments and Recommendations.

2. Proposed —Defined “stock animal” as a “horse, mule, donkey, or llama used to transport people or their possessions.”

2. Final —The definition of “stock animal” is changed to “a horse, mule, donkey, llama, or goat used to transport people or their possessions.” See Response 18 in Summary of Comments and Recommendations.

3. Proposed —Required States and Tribes to describe data showing that ungulate herds or populations are below management objectives, but did not require a description of the basis of the management objectives.

3. Final —In proposals for wolf control to address unacceptable ungulate impacts, in addition to other criteria States and Tribes must meet, the basis of the ungulate management objectives must be described. See Response 19 in Summary of Comments and Recommendations.

4. Proposed —Required States and Tribes to conduct peer review of wolf control proposals before submission to the Service for approval, but did not provide details of peer review requirements.

4. Final —The rule now specifies that the State or Tribe must conduct the peer review process in conformance with the OMB's Final Information Quality Bulletin for Peer Review and obtain five peer reviews from experts on the related issues, other than those employed by State, Tribal, or Federal agencies directly or indirectly involved in predator control or ungulate management. See Response 22 in Summary of Comments and Recommendations.

5. Proposed —Required State or Tribal proposals to control wolves for unacceptable ungulate impacts to include a description of how ungulate population responses to wolf control would be measured, but did not address adaptive management.

5. Final —The rule now includes a requirement that the proposal describe how control actions will be adjusted for effectiveness. See Response 26 in Summary of Comments and Recommendations.

6. Proposed —Referred to the individuals to whom the take provisions in this rule would apply as “citizens”.

6. Final —To be consistent with the language in the Act, the rule now substitutes the word “person” for “citizen”.

7. Proposed —Specified that individuals must be “legally present” on private or public land in order to lethally take wolves in defense of their stock animals and dogs, but did not provide a description of what we meant by “legally present”.

7. Final —As a means of clarification this rule now includes a definition of when a person is “Legally present”. See Response 17 in Summary of Comments and Recommendations.

Regulatory Planning and Review —In accordance with the criteria in Executive Order 12866, this rule is a significant regulatory action and subject to Office of Management and Budget (OMB) review. An economic analysis is not required because this rule will result in only minor and positive economic effects on a small percentage of people in Idaho, Montana, and Wyoming.

(a) This regulation will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A brief assessment to clarify the costs and benefits associated with this rule follows:

Costs Incurred —Under this rule, management of wolves by States or Tribes with wolf management plans is voluntary. Therefore, associated costs to States and Tribes for control of wolves causing unacceptable impacts to ungulate herds or populations are discretionary. While we do not quantify expected expenditures, these costs may consist of staff time and salary as well as transportation and equipment necessary to control wolves. Costs to the Service would include those associated with staff time and salary coordinating with States and Tribes during development of wolf control proposals and review and determination of approval of proposals.

We have funded State and Tribal wolf monitoring, research, and management efforts for gray wolves in Montana, Idaho, and Wyoming, and intend to continue to do so as long as wolves are listed in these States. For the past several years Congress has specifically provided funding for wolf management to Montana, Idaho, and Wyoming, and the Nez Perce. In addition, Federal grant programs are available that fund or partially fund wildlife management programs by the States and Tribes.

Benefits Accrued —The objectives of the proposed rule change are (1) to provide a means for States and Tribes with Service-approved wolf management plans to address the unacceptable impacts of a recovered wolf population to ungulate populations and herds, and (2) to allow persons in the boundaries of the NEP areas within any States or Tribal lands that has a Service-approved wolf management plan other than on lands administered by NPS to take wolves that are in the act of attacking their stock animals or dogs. Allowing wolf removal in response to unacceptable impacts will help maintain ungulate populations or herds at or above State or Tribal objectives. As a result, hunters and associated businesses, including guides, outfitters, and the hunting retail industry, may benefit from increased hunting opportunities. Increased hunting opportunities provide States with additional revenue which is used for wildlife management and habitat restoration, protection, and enhancement.

Allowing take of wolves in the act of attacking stock animals or dogs would have a beneficial economic impact to the affected individuals by allowing them to protect such private property, as well as avoid the need for persons to unnecessarily replace and retrain these animals.

(b) This regulation does not create inconsistencies with other agencies' actions. Agency responsibilities for section 7 of the Act are the same for this rule as the previous NEP special rules. This rule reflects the continuing success in recovering the gray wolf through long-standing cooperative and complementary programs by a number of Federal, State, and Tribal agencies. Implementation of Service-approved State or Tribal wolf management plans supports these existing partnerships.

(c) This rule will not alter the budgetary effects or entitlements, grants, user fees, or loan programs, or the rights and obligations of their recipients, because we do not foresee, as a result of this rule, any new impacts or restrictions to existing human uses of lands in Idaho, Montana, Wyoming, or any Tribal reservations that remain under the 1994 NEP special rules.

(d) OMB has determined that this rule could raise novel legal or policy issues.

Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq. , as amended by the SBREFA of 1996), whenever a Federal 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 Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. The SBREFA also amended the Regulatory Flexibility Act to require a certification statement. Based on the information that is available to us at this time, we certify that this regulation will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale.

The revisions in this rule relax some of the previous restrictions on take of wolves and do not increase restrictions. For a discussion of how small entities may benefit from this increased flexibility see the Benefits Accrued section in the Required Determinations section above. One study indicated that the return of wolves to the NRM infused approximately $35.5 million to local economies from increased tourism to observe wolves in the wild (Duffield, et al. 2006, p.51). The expected level of wolf control resulting from this rule and the fact that this rule does not apply within Yellowstone National Park, where most of the public goes to view wolves, will not affect wolf numbers and distribution in a manner that would significantly alter the opportunities for the public to observe and enjoy wolves in the wild. Therefore, local small entities benefiting from tourism associated with wolf-viewing are not likely to see decreases in business as the result of the revisions to this rule.

This regulation is not a major rule under 5 U.S.C. 801, et seq. , the SBREFA.

(a) This regulation will not have an annual effect on the economy of $100 million or more and is fully expected to have no significant economic impacts. The proposed regulation further reduces the effect that wolves will have on a few persons by increasing the opportunity for them to protect their stock animals and dogs. Since there are so few small businesses impacted by this regulation, the combined economic effects are minimal.

(b) This regulation will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions and will impose no additional regulatory restraints in addition to those already in operation.

(c) This regulation will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises. Based on the analysis of identified factors, we have determined that no individual industries within the United States will be significantly affected and that no changes in the demography of populations are anticipated. The intent of this special rule is to facilitate and continue existing commercial activities while providing for the conservation of species by better addressing the concerns of affected landowners and the impacts of a recovered wolf population.

This rule defines a process for voluntary and cooperative transfer of management responsibilities for a listed species back to the States. Therefore, in accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, et seq. ):

(a) This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required.

(b) This rule will not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. This rule is not expected to have any significant economic impacts nor will it impose any unfunded mandates on other Federal, State, or local government agencies to carry out specific activities.

In accordance with Executive Order 12630, this rule will not have significant implications concerning taking of private property by the Federal Government. This rule will substantially advance a legitimate government interest (conservation and recovery of listed species) and will not present a bar to all reasonable and expected beneficial use of private property. Because this proposed rule change pertains only to the relaxation of restrictions on lethal removal of wolves, it will not result in any takings of private property.

This rule maintains the existing relationship between the States and the Federal Government. The State of Wyoming requested that we undertake this rulemaking in order to assist the States in reducing conflicts with local landowners and returning wolf management to the States or Tribes. We have cooperated with the States in preparation of this rule. Maintaining the recovery goals for these wolves will contribute to their eventual delisting and their return to State management. It is a voluntary decision whether to undertake Programs and actions to take wolves under this rule. This rule will not have substantial direct effects on the States, on the relationship between the States and the Federal Government, or on the distribution of power and responsibilities among the various levels of government. No intrusion on State policy or administration is expected; roles or responsibilities of Federal or State governments will not change; and fiscal capacity will not be substantially directly affected. Therefore, this rule does not have significant Federalism effects or implications to warrant the preparation of a Federalism Assessment pursuant to the provisions of Executive Order 13132.

In accordance with Executive Order 12988, the Department of the Interior has determined that this rule does not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of the order.

Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501, et seq. ) require that Federal agencies obtain approval from OMB before collecting information from the public. A Federal agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. This rule does not contain any new collections of information that would require us to obtain OMB approval. OMB approval is required if information will be collected from 10 or more persons (5 CFR 1320.3). “Ten or more persons” refers to the persons to whom a collection of information is addressed by the agency within any 12-month period, and to any independent entities to which the initial addressee may reasonably be expected to transmit the collection of information during that period, including independent State, territorial, Tribal, or local entities and separately incorporated subsidiaries or affiliates. For the purposes of this definition, “persons” does not include employees of the respondent acting within the scope of their employment, contractors engaged by a respondent for the purpose of complying with the collection of information, or current employees of the Federal government when acting within the scope of their employment, but it does include former Federal employees. This rule includes a requirement that a State or Tribe requesting approval to control wolves for unacceptable ungulate impacts submit a proposal to us. However, as these proposals will only be submitted by States or Tribes with Service-approved wolf management plans, we do not anticipate that it will affect 10 or more persons, as defined above. Therefore, OMB approval and a control number are not needed for information collections associated with these proposals. Existing information collections already approved under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. include permit application forms, assigned OMB control number 1018-0094, and the notification requirements in our experimental population regulations under 50 CFR 17.84, assigned OMB control number 1018-0095.

We have prepared an environmental analysis and finding of no significant impact, as defined under the authority of the NEPA of 1969. These documents are available from the Office of the Western Gray Wolf Recovery Coordinator (see ADDRESSES section) or from our Web site at http://westerngraywolf.fws.gov/ .

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have coordinated with affected Tribes within the experimental population areas of Idaho, Montana, and Wyoming on this rule. We have fully considered all comments on the proposed special regulations that were submitted by Tribes and Tribal members during the public comment period and have attempted to address those concerns, new data, and new information where appropriate.

On May 18, 2001, the President issued Executive Order 13211 requiring agencies to prepare Statements of Energy Effects when undertaking certain actions that significantly affect energy supply, distribution, and use. This rule is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

A complete list of all references cited in this rulemaking is available upon request from our Helena office (see ADDRESSES section).

This final rule implements approved management measures contained in the Northeast Region Omnibus SBRM Amendment, which was approved by NMFS on behalf of the Secretary of Commerce (Secretary) on October 22, 2007. A proposed rule for this action was published on August 21, 2007 (72 FR 46588), with public comments accepted through September 20, 2007. A subsequent publication extended this comment period through September 24, 2007 (72 FR 53751).

Section 303(a)(11) of the Magnuson-Stevens Act requires that all FMPs “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery.” In 2004, several conservation organizations challenged the approval of two major amendments to Northeast Region FMPs. In ruling on these suits, the U.S. District Court for the District of Columbia found that the FMPs did not clearly establish an SBRM as required under the relevant section of the Magnuson-Stevens Act and remanded the amendments back to the agency to fully develop and establish the required SBRM [See, Oceana, Inc ., v. Evans , 2005, WL 555416 (D.D.C. Mar 9, 2005)(Oceana I); and Oceana, Inc. , v. Evans , 384 F. Supp 2d 203 (D.D.C. 2005)(Oceana II)]. In particular, the Court found that the amendments (1) failed to fully evaluate reporting methodologies to assess bycatch, (2) did not mandate an SBRM, and (3) failed to respond to potentially important scientific evidence.

In response, the Councils, working closely with NMFS, undertook development of a remedy that would address all Northeast Region FMPs. In January 2006, development began on the Northeast Region Omnibus SBRM Amendment. This amendment covers 13 FMPs, 39 managed species, and 14 types of fishing gear. The purpose of the amendment is to: Explain the methods and processes by which bycatch is currently monitored and assessed for Northeast Region fisheries; determine whether these methods and processes need to be modified and/or supplemented; establish standards of precision for bycatch estimation for all Northeast Region fisheries; and, thereby, document the SBRM established for all fisheries managed through the FMPs of the Northeast Region. The amendment also responds to the “potentially important scientific evidence” cited by the Court in the two decisions referenced above.

The Northeast Region SBRM Amendment establishes an SBRM comprised of seven elements: (1) The methods by which data and information on discards are collected and obtained; (2) the methods by which the data obtained through the mechanisms identified in element 1 are analyzed and utilized to determine the appropriate allocation of at-sea observers; (3) a performance measure by which the effectiveness of the Northeast Region SBRM can be measured, tracked, and utilized to effectively allocate the appropriate number of observer sea days; (4) a process to provide the Councils with periodic reports on discards occurring in Northeast Region fisheries and on the effectiveness of the SBRM; (5) a measure to enable the Councils to make changes to the SBRM through framework adjustments and/or annual specification packages rather than full FMP amendments; (6) a process to provide the Councils and the public with an opportunity to consider, and provide input into, the decisions regarding prioritization of at-sea observer coverage allocations; and (7) to implement consistent, cross-cutting observer service provider approval and certification procedures and to enable the Councils to implement either a requirement for industry-funded observers or an observer set-aside program through a framework adjustment rather than an FMP amendment.

The amendment maintains the status quo methods by which data and information on discards occurring in Northeast Region fisheries are collected and obtained. The Northeast Region SBRM will employ sampling designs developed to minimize bias to the maximum extent practicable. The Northeast Fisheries Observer Program (NEFOP) continues to serve as the primary mechanism to obtain data on discards in all Northeast Region commercial fisheries managed under one or more of the subject FMPs. All subject FMPs will continue to require vessels permitted to participate in said fisheries to carry an at-sea observer upon request, and all data obtained by the NEFOP under this SBRM will be collected according to the techniques and protocols established and detailed in the Fisheries Observer Program Manual and the Biological Sampling Manual. Data collected by the NEFOP include, but are not limited to, the following items: Vessel name; date/time sailed; date/time landed; steam time; crew size; home port; port landed; dealer name; fishing vessel trip report (FVTR) serial number; gear type(s) used; number/amount of gear; number of hauls; weather; location of each haul (beginning and ending latitude and longitude); species caught; disposition (kept/discarded); reason for discards; and weight of catch. These data are collected on all species of biological organisms caught by the fishing vessel and brought on board, including species managed under the subject FMPs, but also including species of non-managed fish, invertebrates, and marine plants. To obtain information on discards occurring in recreational fisheries subject to a Northeast Region FMP, the Northeast Region SBRM fully will incorporate, to the extent practicable and appropriate for the Region, all surveys and data collection mechanisms implemented by NMFS and affected states as a result of the agency-wide redesign of the Marine Recreational Fisheries Statistics Survey (MRFSS) Program.

The amendment substantially expands and refines the status quo methods by which the data obtained through the mechanisms included above are analyzed and utilized to determine the appropriate allocation of at-sea observers to fully incorporate all managed species and all relevant fishing gear types in the Northeast Region. At-sea fisheries observers will, to the maximum extent possible and subject to available resources, be allocated and assigned to fishing vessels according to the procedures established through the amendment. All appropriate filters identified in the amendment will be applied to the results of the analysis to determine the observer coverage levels needed to achieve the objectives of the SBRM.

The amendment is intended to ensure that the data collected under the Northeast Region SBRM are sufficient to produce a coefficient of variation (CV) of the discard estimate of no more than 30 percent, in order to ensure that the effectiveness of the Northeast Region SBRM can be measured, tracked, and utilized to effectively allocate the appropriate number of observer sea days. Each year, the Regional Administrator and the Science and Research Director will, subject to any external operational constraints, allocate at-sea observer coverage to the applicable fisheries of the Northeast Region sufficient to achieve a level of precision (measured as the CV) no greater than 30 percent for each applicable species and/or species group, subject to the use of the filters noted above.

The amendment requires an annual report on discards occurring in Northeast Region fisheries to be prepared by NMFS and provided to the Councils, and a report every 3 years that evaluates the effectiveness of the Northeast Region SBRM. Every 3 years, the Regional Administrator and the Science and Research Director will appoint appropriate staff to work with staff appointed by the Executive Directors of the Councils to obtain and review available data on discards and to prepare a report assessing the effectiveness of the Northeast Region SBRM. This report will include, at a minimum: (1) A review of the recent levels of observer coverage in each applicable fishery; (2) a review of recent observed encounters with each species in each fishery, and a summary of observed discards by weight; a review of the CV of the discard information collected for each fishery; (4) an estimate of the total discards associated with each fishery; (5) an evaluation of the effectiveness of the SBRM at meeting the performance standard for each fishery; (6) a description of the methods used to calculate the reported CVs and to determine observer coverage levels, if those methods are different from those described and evaluated in the SBRM Amendment; (7) an updated assessment of potential sources of bias in the sampling program and analyses of accuracy; and (8) an evaluation of the implications for management of the discard information collected under the SBRM, for any cases in which the evaluation performed for item 5 indicates that the performance standard is not met. Once each year, the Science and Research Director will present to the Councils a report on catch and discards occurring in Northeast Region fisheries, as reported to the NEFOP by at-sea fisheries observers. This annual discard report will include: (1) The number of observer sea days scheduled for each fishery, by area and gear type, in each quarter; (2) the percent of total trips observed, by gear type, in each quarter; (3) the distribution of sea sampling trips by gear type and statistical area in each fishery; (4) the observed catch and discards of each species, by gear type and fishery, in each quarter; and (5) the observed catch and discards of each species, by gear type and fishery, in each statistical area.

The amendment enables the Councils to make changes to certain elements of the SBRM through framework adjustments and/or annual specification packages rather than full FMP amendments. All subject FMPs provide for an efficient process to modify aspects of the Northeast Region SBRM, as relates to each specific FMP, should the need arise and the appropriate Council determine that a change to the SBRM is warranted and needed to address a contemporary management or scientific issue. Depending on the provisions of each FMP, changes to the SBRM may be effected either through a framework adjustment to the FMP or through annual or periodic specifications. Such changes to the SBRM may include modifications to the CV-based performance standard, the means by which discard data are collected/obtained in the fishery, reporting on discards or the SBRM, or the stratification (modes) used as the basis for SBRM-related analyses. Such changes may also include the establishment of a requirement for industry-funded observers and/or observer set-aside provisions.

The amendment establishes a process to provide the Councils and the public with an opportunity to consider, and provide input into, the decisions regarding prioritization of at-sea observer coverage allocations, if the expected resources necessary may not be available. In any year in which external operational constraints would prevent NMFS from fully implementing the required at-sea observer coverage levels, the Regional Administrator and Science and Research Director will consult with the Councils to determine the most appropriate prioritization for how the available resources should be allocated. In order to facilitate this consultation, in these years, the Regional Administrator and the Science and Research Director will provide the Councils, at the earliest practicable opportunity: (1) The at-sea observer coverage levels required to attain the SBRM performance standard in each applicable fishery; (2) the coverage levels that would be available if the resource shortfall were allocated proportionately across all applicable fisheries; (3) the coverage levels that incorporate the recommended prioritization; and (4) the rationale for the recommended prioritization. The recommended prioritization should be based on: Meeting the data needs of upcoming stock assessments; legal mandates of the agency under other applicable laws, such as the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA); meeting the data needs of upcoming fishery management actions, taking into account the status of each fishery resource; improving the quality of discard data across all fishing modes; and/or any other criteria identified by NMFS and/or the Councils. The Councils may choose to accept the proposed observer coverage allocation or to recommend revisions or additional considerations for the prioritized observer allocations ultimately adopted and implemented by the Regional Administrator and the Science and Research Director.

The amendment implements consistent, cross-cutting observer service provider approval and certification procedures and enables the Councils to implement either a requirement for industry-funded observers and/or an observer set-aside program through a framework adjustment, rather than an FMP amendment.

A total of 11 individual comment letters were received on the proposed rule and the amendment.

Comment 1: A letter by representatives of a professional association for at-sea fisheries observers raised concerns regarding the provision of the SBRM Amendment that establishes observer certification and approval procedures to allow a multiple service delivery model under an industry-funded observer program. The commenters specifically focused on concerns related to the contractual relationship that would be established between the observer service provider and the fishing vessel, rather than between the observer service provider and NMFS. The commenters refer to experience with a similar model utilized in Alaska under the North Pacific Groundfish Observer Program. The commenters cautioned that, in their opinion, such a contractual relationship may reduce the reliability of the data collected by the at-sea observers due to the potential for bias and conflict of interest. The commenters also cited concerns over quality control of the data due to the lack of direct oversight by the agency. To remedy the potential problems they identified, the commenters suggested that NMFS evaluate the performance of approved observer service providers on an annual basis, increase Federal funding for observers contracted by and paid for by NMFS, and/or utilize an independent non-profit organization (either an existing organization such as the Atlantic States Marine Fisheries Commission or an organization created specifically for this purpose) to provide an “arms-length” relationship between the fishing industry, NMFS, and observer service providers.

Response: NMFS acknowledges that a perceived conflict of interest could be a potential issue for some types of industry-funded observer programs. Rigorous data quality assurance and control standards, observer training and certification programs, and frequent reviews and oversight of the observer data collection programs are all means to address these concerns. NMFS acknowledges that some of the issues raised by the commenter regarding the North Pacific Groundfish Observer Program have been previously identified as potential concerns with that model, but notes that there are significant differences between the North Pacific program and the single industry-funded program that is currently in place in the Northeast Region. These differences include the observer set-aside that is an important component of the Northeast sea scallop observer program and serves to mitigate the conflict of interest concerns by providing a mechanism to offset the added cost to sea scallop fishing vessels of carrying an observer. Also, to minimize the likelihood that an observer would develop ties to a vessel owner/operator and/or feel pressure by a vessel owner/operator to misreport, the regulations prohibit observer service providers from consecutively deploying the same observer on the same vessel and from deploying an observer on the same vessel more than twice per month.

While NMFS shares some of the concerns identified by the commenters relative to the need to ensure that there is no real or perceived conflict of interest between the at-sea observers and the fishing vessels, and to ensure reliable, high quality data are collected and reported, none of these concerns are immediately applicable to this rulemaking. The regulatory changes implemented in this final rule merely establish the procedures that potential observer service providers must follow to be considered for approval, and the standards that they must meet on a continuing basis to maintain their certification to serve in the Northeast Region. However, excepting the sea scallop observer program that was formally implemented under a separate rulemaking (72 FR 32549, June 13, 2007), no other fisheries in the Northeast Region are operating under an industry-funded observer requirement that would utilize these regulations. This action makes no changes to the regulations or procedures established under Amendment 13 to the Sea Scallop FMP, other than to generalize the observer certification procedures to apply more broadly than for the sea scallop fishery alone. The intent of this action was to create a more efficient process for the Councils to develop future industry-funded programs, should the need arise in any fishery. Actual implementation of an industry-funded observer program that would enable fishing vessels to select from a list of approved observer service providers would require the appropriate Council to initiate, develop, and have approved such a program for each particular fishery.

The development of future Council fishery management actions to implement any additional industry-funded observer programs provides the appropriate opportunity to ensure that the programs fully address the data quality concerns and limitations noted by the commenters. NMFS is committed to ensuring that data collected and provided by at-sea fisheries observers are of the highest-possible quality and meet all applicable standards for reliability, precision, and accuracy. Any proposal by a Council to implement a future industry-funded observer program, such as is currently in place for the sea scallop fishery, would be reviewed to ensure it fully explains and justifies how the data to be obtained through the program meet all appropriate quality standards.

Comment 2: One member of the public endorsed the comments of the observers' professional association, voicing his concern over industry-funded observer programs as exist in Alaska under the North Pacific Groundfish Observer Program. The commenter added, however, that his concerns do not refer to the sea scallop observer program that is linked to an observer set-aside program to offset the costs to the vessels of carrying an observer. The commenter is most concerned with the perceptions of conflict of interest that can arise under situations where the observer service provider is contractually linked, and dependent on, the fishing vessels rather than NMFS.

Response: The response above to comment 1 addresses the majority of the points raised by the commenter. As noted by the commenter, observer set-aside programs, such as the Northeast sea scallop program, mitigate many of these concerns by providing a mechanism to offset the added cost to the vessel of carrying an observer. While there is no requirement to do so, NMFS fully anticipates that any program developed by a Council to implement an industry-funded observer program would be directly associated with an observer set-aside program that offsets the additional costs to the vessels. No such program is currently proposed or under development by either Council, but the SBRM Amendment provides a mechanism for the Councils to develop and propose a set-aside program that uses quota, days-at-sea, increased trip limits, or other means to compensate fishing vessels that carry observers.

Comment 3: The comments submitted by a public interest environmental organization were very similar to those of the observers' professional association. The commenters oppose changing the NEFOP to a model based on the North Pacific Groundfish Observer Program, in which the industry finances the observer program through independent contracts with observer service providers. The commenters raised concerns regarding the appearance of a conflict of interest between the fishing vessels and the observer service providers, a threat of bias in the data collection, creating an economic incentive to avoid observation, less transparency of observer data, and a lack of control on harassment of an interference with observers. The comment letter also expressed concern that the SBRM would discourage monitoring for marine mammals and other non-bycatch related monitoring.

Response: Although the commenters in this case appear to have misunderstood the intent of the SBRM Amendment, NMFS takes their concerns seriously. The response above to comment 1 addresses the majority of the concerns raised by the commenters, but NMFS points out that the commenters claim that the SBRM Amendment effects a “conversion” of the NEFOP from one controlled by NMFS to an industry-funded program. This is not the case. The SBRM Amendment provides a mechanism for the Councils to develop and propose industry-funded observer programs that would serve to supplement the existing NMFS-funded observer program, but this action neither implements nor requires such a program. Currently, the Councils are free to develop and propose such a system (as was done in Amendment 13 to the Sea Scallop FMP); the SBRM Amendment allows the Councils to use the framework adjustment process to propose a similar program instead of requiring a full FMP amendment. NMFS fully anticipates that any such program would include an observer set-aside mechanism, such as exists for the sea scallop fishery. As noted above and by other commenters, such a mechanism mitigates many of the concerns raised by the commenters.

NMFS disagrees with the commenter that such a system, should one be proposed by a Council and implemented by NMFS, would result in industry “control” of the observer program. The regulations at 50 CFR 648.11(h) and (i) provide extensive and detailed procedures that must be followed by all observer service providers in order to obtain and maintain NMFS certification as valid service providers. These regulations specifically address the issues of potential conflicts of interest (§ 648.11(h)(6)), harassment of or interference with observers (§ 648.11(h)(5)(vii)(F)), and data transparency (§ 648.11(h)(5)(vii)(A)). Regarding the concerns raised about the availability of the “raw” observer data, the regulations at § 648.11(h)(5)(vii)(A) require that, in addition to providing summary data within 12 hours of landing, that the observer service providers “provide the raw (unedited) data collected by the observer to NMFS within 72 hours of the trip landing.” Regarding the commenters' opinion that the plan creates an economic incentive to evade observation, this claim does not take into account that observer set-aside programs in many ways may actually create an incentive to be observed, as a set-aside program would grant a vessel extra quota, trips, DAS, or increased possession limits in exchange for carrying an observer.

The commenters are also incorrect that the plan “discourages” marine mammal monitoring. NMFS acknowledges in the SBRM Amendment the importance of its mandate under other applicable laws, such as the MMPA and the Migratory Bird Act, but the focus of the SBRM is on those living marine resources defined as fish and bycatch under the Magnuson-Stevens Act. Only the Magnuson-Stevens Act requires an SBRM to be established, and the Magnuson-Stevens Act specifically excludes certain types of organisms, specifically marine mammals and birds, from the definitions.

The commenters are mistaken to conclude that the “SBRM is based on a flawed model.” The actual SBRM established as a result of this action is wholly severable from the provision that authorizes the Councils to develop and propose an industry-funded observer program through a framework adjustment rather than an amendment to an FMP. The SBRM does not implement, require, or rely upon any industry-funded observer programs that may be developed and proposed by a Council in the future.

Comment 4: An organization representing a coalition of fishing interests involved in the Atlantic herring fishery submitted comments critical of the field sampling protocols and procedures used by at-sea observers to monitor bycatch occurring in fisheries that pump their catch directly from the codend into the vessel hold. The commenters asserted that the current observer protocols for the herring fishery contain loopholes that were not addressed in the SBRM Amendment, due to the potential for unobserved catch to be released from the net without being brought on board the vessel for the observer to monitor. The commenters expressed concern regarding the lack of mandated observer coverage on at-sea processing vessels, which transfer catch from the codend of catcher vessels to the hold of the processor vessel and about how pair trawls are treated if an observer is aboard only one of the paired vessels. The commenters also expressed concern that the filtering procedures described in the SBRM Amendment would result in exclusion of certain fishing modes (such as mid-water trawls) from observer coverage due to low levels of coverage in the past (“the SBRM ensures that [the mid-water trawl] mode will be unobserved in perpetuity”).

Response: All fishing vessels permitted by NMFS to operate in the Northeast Region under one or more of the FMPs subject to the SBRM Amendment are currently obligated to carry a NMFS-certified observer on any trip for which they are requested by the Regional Administrator to do so (at § 648(a), (b), (c) , and (d)). This requirement does not change, and is, in fact, reinforced in section 1.7 of the amendment. This requirement, by definition, applies to herring at-sea processors. The commenters incorrectly claim that the SBRM excludes some fishing modes from observer coverage; in fact, according to the results of the importance filter adopted in the amendment, the coverage allocated to the New England mid-water trawl fishing mode, cited by the commenters as “unobserved in perpetuity,” would be 316 days, nearly twice the coverage level in 2004 and would represent 11.5 percent of trips taken in 2004. The commenters appear to misunderstand the function of the importance filters, which is to eliminate certain species (those for which the total discards in a fishing mode is a negligible proportion of either the total discards of that species across all fishing modes, or for which the total discards of that species is a negligible proportion of total fishing-related mortality of that species) from the calculation of the observer coverage allocation within a fishing mode (the allocation being no less than the highest coverage level of all species remaining after the importance filter is applied). Under no circumstances do the importance filters eliminate any fishing modes from the observer allocation process. This can be seen in Appendix C of the amendment in a table illustrating the results of applying the SBRM to the 2004 dataset. There is some level of observer coverage assigned to each of the 39 fishing modes addressed in the SBRM Amendment. In addition, the commenters asserted that the SBRM Amendment did not address the field sampling protocols to be used in collecting data by at-sea fisheries observers. This is incorrect. Section 1.7 of the SBRM Amendment stipulates that “The NEFOP shall serve as the primary mechanism to obtain data on discards in all Northeast Region commercial fisheries managed under one or more of the subject FMPs,” and that “all data obtained by the NEFOP under this SBRM shall be collected according to the techniques and protocols established and detailed in the Fisheries Observer Program Manual (NEFOP 2006a) and the Biological Sampling Manual (NEFOP 2006b).” This section of the SBRM Amendment goes on to identify the minimum data fields to be collected by Northeast Region observers. The Fisheries Observer Program Manual and the Biological Sampling Manual provide general as well as specific instructions for at-sea observers operating on mid-water trawl, purse seine, and pair trawl vessels; these instructions and sampling priorities explicitly account, to the extent practicable, for the contingencies identified by the commenters (including pair trawls with only one vessel observed, pumped fish, loss of fish in the net, etc.).

Comment 5: A letter from an organization representing commercial fishermen from Cape Cod expressed concern with how the SBRM would perform in monitoring hard TACs (total allowable catch) and fishery sectors. The commenters acknowledged that at least some of the changes under the SBRM Amendment will improve the region's bycatch reporting, and characterized the importance filter process as “crucial for prioritizing observer coverage.” However, the commenters stressed three primary recommendations for improving the SBRM Amendment: (1) Ensuring that the SBRM provides a means to accurately and precisely quantify discards for all stocks across all stock areas; (2) identifying levels of monitoring coverage for sectors necessary for TAC management; and (3) providing a real-time, publicly-accessible, and transparent reporting methodology that allows for enforcement of accountability measures.

Response: The commenters imply that the SBRM Amendment should have addressed the new requirement included in the Magnuson-Stevens Reauthorization Act of 2007 (MSRA) for all FMPs to include “Annual Catch Limits” (ACLs) and “Accountability Measures” (AMs) and indicate how the SBRM would perform in the face of these new requirements. However, the MSRA does not require ACLs and AMs be developed and implemented for any fishery until at least 2010 (for fisheries experiencing overfishing) or 2011 (for all other fisheries). Also, the new MSRA provision related to ACLs and AMs, by its very definition, applies to all catch, not just bycatch, and is a requirement much broader in scope than the requirement to establish an SBRM, which remains a separate requirement under the Magnuson-Stevens Act and was not modified by the MSRA. Section 1.2 of the SBRM Amendment acknowledges the changes promulgated through the MSRA, but explains that no changes to the amendment are necessary as a result. This action remains necessary primarily to correct deficiencies identified by the Court in Amendment 13 to the Northeast Multispecies FMP and Amendment 10 to the Sea Scallop FMP in order to bring the Northeast Region FMPs into compliance with the requirement to establish an SBRM as specified as section 303(a)(11) of the Magnuson-Stevens Act. As the Councils embark on fishery management actions to bring the FMPs into compliance with the new requirements of the MSRA, changes to the SBRM established herein may be necessary to accommodate the specific attributes of the ACLs and AMs that will be developed, but such changes would address specific management needs that go beyond the mandate of section 303(a)(11) to establish an SBRM to assess the amount and type of bycatch, which is the focus of this action. Because it is impossible at this time to foresee all the particular attributes of the various ACL and AM programs that may be developed and adopted by the two Councils for all 13 FMPs, and how the SBRM may need to change to accommodate those programs, it would be premature to attempt to craft an SBRM that could accommodate all possible ACL and AM outcomes, without resulting in an SBRM so vague and generalized as to be ineffectual at meeting its current objectives.

Regarding the specific points raised by the commenter, NMFS asserts that the Northeast Region SBRM is wholly sufficient to quantify discards for all stocks across all stock areas. Data collected by at-sea fisheries observers provide sufficient information to determine the specific stocks of fish discarded, and the stock areas in which the discard event occurred. These data can be used to apportion the collected discard estimates across all stocks and stock areas. This is illustrated in Appendix F and Appendix G of the amendment, which provide example data queries and analyses based on the data collected by at-sea observers and a sample format for the information requested by the Councils to be provided in annual discard reports. In both cases, discard data are summarized by stock and statistical area, which is a finer scale even than stock area (i.e., stock areas are composed of multiple statistical areas).

The commenters also suggest that the SBRM must identify observer coverage levels for fishery sectors authorized under an FMP to provide for a specific level of certainty in future TAC management programs. The commenters appear to assume that a one-size-fits-all approach would be appropriate for all potential future instances of sector management. Sectors are unique and temporary fishery management provisions that authorize a collective of similar fishing vessels (e.g., hook vessels operating out of Cape Cod) to be granted a portion of a TAC for 1 year in exchange for abiding by the specific provisions and limitations identified in the sector management plan. Currently, there are two approved sectors operating in New England waters; both are authorized under the sector management provisions of Amendment 13 to the Northeast Multispecies FMP. As many as 19 additional multispecies sectors are under development, and the New England Council is considering adopting similar sector provisions in upcoming amendments to the other New England FMPs. The sector provisions of the Northeast Multispecies FMP require that the vessels interested in forming a sector prepare and submit annually a sector proposal that includes, among other things, “detailed plans for the monitoring and reporting of landings and discards” (at § 648.87(b)(2)(vi)). Under the sector provisions of the FMP, it is the responsibility of the sector proponents to propose how discards will be monitored and reported, while the Council and NMFS retain the authority to determine if the proposed plans are sufficient. Sector proposals developed by members of the fishing industry are submitted to and reviewed by the New England Council. Those approved by the Council are incorporated into framework adjustments to the Northeast Multispecies FMP and submitted to NMFS for review. At that time, NMFS considers the specific provisions of the proposed sector plan to ensure it would meet all requirements of the FMP and be consistent with the provisions of the Magnuson-Stevens Act and other applicable law. Given the variety of sector proposals currently under development, and the expectation of additional sector provisions included in the other New England FMPs, it would not be practicable to stipulate in this amendment the specific levels of observer coverage that would be necessary for each sector, as this would depend on the number of vessels participating, the area(s) to be fished, the target and likely incidental species, fishing gear(s) used, and the other reporting mechanisms required under each sector plan. This action is focused on the requirement at section 303(a)(11) of the Magnuson-Stevens Act to develop a methodology to assess the amount and type of bycatch and provides a framework for modifications to the overarching methodology to address specific future management needs. The Councils recognized the need for the SBRM Amendment to be flexible enough to adapt to such changes, noting in section 6.9.5 of the amendment that because new sector programs may be implemented through a framework adjustment, the same framework action could be used to “modify the SBRM to ensure sufficient data are collected” on discards.

The commenters asserted that the SBRM must establish a “real-time, publicly-accessible, and transparent reporting methodology.” NMFS disagrees with the commenters on this point. The Magnuson-Stevens Act requires simply that an SBRM be established; it imposes no minimum legal requirements on whether this system provide data in real time, or the degree to which the data are publicly accessible. A “real-time” reporting system, as requested by the commenters, would require that data be presented in a publicly accessible medium as the discards are observed and documented by the at-sea fisheries observer. This would provide no time for the fishing trip to end, for the observer to submit the data to NMFS, and for NMFS to review, edit, and audit the data prior to publishing the data. This would severely reduce the quality of the data and, in so doing, diminish the usefulness and reliability of the discard data. Data reduction and summaries are necessary in order to prevent the release of sensitive and proprietary data that is protected under the Magnuson-Stevens Act and other Federal statutes. NMFS concludes that it is more appropriate to engage a full data quality control and assurance program, as summarized in Appendix D of the SBRM Amendment, in order to ensure the resulting data are of the highest possible quality before they are released to the public or used in management.

Comment 6: A conservation organization submitted extensive comments on the SBRM Amendment and its proposed rule, urging that NMFS not approve the amendment. The comments addressed several elements of the SBRM Amendment, and include references to the results of a technical review of the amendment conducted under contract to another conservation organization. The responses to the comments identified in the technical review are addressed separately under comment 10. All other points raised in the comment letter are addressed in this response.

The commenters, while acknowledging that the SBRM Amendment “dramatically” improves upon prior documents by specifying a monitoring and reporting system that could be implemented, expressed concern that the amendment fails to actually establish this system because it vests NMFS with discretion as to the allocation of observer coverage if there are external constraints (such as an insufficient budget) that prevent full implementation. The commenters suggested that the amendment could have adopted a formal decision procedure that would stipulate how observers are to be allocated if there is a budget shortfall, such as requiring that the budget allocations be cut pro rata across all fishing modes, or to rank fishing modes according to a standard of priority and fully allocating observer coverage across priority modes until funding is exhausted.

The commenters claim that the SBRM Amendment fails to mandate that data be reported in a rational manner useful for fisheries management, and that the amendment fails to establish a reporting requirement that provides information on the amount, type, and disposition of bycatch. The commenters also claim that the amendment fails to recognize the fishery management needs of the Councils and the needs of the public.

The commenters claim that the amendment fails to establish an SBRM because it provides for framework adjustment provisions to enable the Councils to develop and propose changes to the SBRM. The commenters also claim that the SBRM Amendment fails to consider the bycatch of species that are not targeted under Northeast Region FMPs, including failing to consider alternatives for including “non-managed” species in the SBRM.

The commenters claim that NMFS “locked” the public and Fishery Management Councils out of the decision-making process to develop the SBRM Amendment. The commenters also claim that the SBRM Amendment violates NEPA because an environmental impact statement (EIS) was not prepared. Regarding the environmental assessment's (EA) compliance with NEPA, the commenters raised the following concerns: The EA fails to adequately discuss the purpose, need, and scope of the amendment; the EA fails to consider a reasonable range of alternatives, including performance standards other than 30 percent, different reporting formats or frequencies, or different ways to assess accuracy; the EA fails to consider cumulative environmental impacts; and the EA fails to adequately address protected resources.

Response: NMFS disagrees with the commenters' assertion that the amendment fails to establish an SBRM because it vests NMFS with some degree of discretion in cases where external operational constraints prevent full implementation of the resulting at-sea observer allocations. The SBRM Amendment establishes an extensive and detailed methodology to utilize available observer data on discards occurring across all relevant Northeast Region fisheries, assess the degree to which those data meet the established performance standard, allocate observer coverage levels across all relevant fisheries to achieve said performance standard, and provide reports to the Fishery Management Councils on the discards that are occurring and on the effectiveness of the SBRM itself at meeting its objectives. The prioritization process is one component of the overall program that explicitly recognizes that external operational constraints (such as Congressional budget allocations) may occasionally prevent the full implementation of the SBRM. The process establishes a rigorous review and consultation process to engage the Councils and the public in determining the most appropriate approach to prioritize observer coverage on these occasions that reflects the needs and priorities of the agency and Councils at the time.

The commenters suggested that the amendment could have implemented a requirement to apportion any budget allocations pro rata across all fishing modes, or could have ranked fishing modes according to a specific standard of priority and require that observers be fully allocated to the highest priority modes in descending order until the available budget is exhausted. NMFS notes that several options such as these are described in section 6.6 of the amendment, but that the Councils recognized the importance of retaining sufficient flexibility in the SBRM to adapt to changing conditions and priorities in the fisheries. The approach suggested by the commenters would leave the Councils and NMFS with a rigid system that would require an FMP amendment to modify the priority allocation of resources. NMFS also notes that retaining some level of discretion in allocating resources is necessary for the agency to adequately meet its obligations under other laws in addition to the Magnuson-Stevens Act, such as the ESA and MMPA. Lastly, the commenters appeared to have misconstrued the instructions from the Court. Instead of requiring that the SBRM Amendment stipulate the precise areas where observers must be concentrated, the Court, in Oceana II , clarified that it “only requires that the FMP establish some method for determining observer concentration instead of leaving all decisions to the Regional Administrator's discretion” [See, Oceana II at p. 234 (footnote 41)]. The SBRM Amendment establishes a very specific method for determining observer allocations across all relevant fisheries, and does not leave “all decisions” to the Regional Administrator. Rather, only in years in which external operational constraints prevent full implementation would NMFS have any discretion to adapt the results of the SBRM, and only then following a review and consultation with the Councils in a public forum. NMFS asserts that this approach is consistent with both the intent of the SBRM provisions of the Magnuson-Stevens Act and the guidance provided by the Court.

NMFS rejects the commenters' claim that the SBRM Amendment fails to mandate that data be reported in a rational manner useful for fisheries management, and that the amendment fails to establish a reporting requirement that provides information on the amount, type, and disposition of bycatch. Section 6.4 of the SBRM Amendment describes the alternatives considered regarding potential reporting procedures, and section 1.7 of the amendment establishes the requirements for two types of reports to be prepared at different time intervals. The amendment requires an annual report be provided to the Councils to provide the data they requested on the current status of observer coverage and discard information, along with an additional report provided every 3 years that assesses the SBRM in a more comprehensive manner. The amendment, in sections 1.7 and 6.4, identifies the specific data elements to be provided in the reports, including the amount, species, location, and gear types involved. The information to be reported, the frequency, and the format for the reports was proposed and adopted by both Councils as their preferred alternative approach to obtaining SBRM reports on a routine basis. NMFS asserts that the Councils are in the best position to determine their needs as to SBRM reports, and, as such, the SBRM Amendment clearly reflects the needs of the Councils for this information.

NMFS disagrees with the commenters that the SBRM Amendment fails to actually establish an SBRM simply because it provides a procedure for the Councils to make changes to certain provisions of the SBRM through the use of framework adjustments rather than full FMP amendments. The intent of this provision of the amendment is to facilitate an efficient and timely process for the Councils to develop and submit proposed changes to the SBRM, limited within certain constraints. Nothing in this provision diminishes or abrogates the agency's obligation to carefully review any framework adjustment proposed by a Council to ensure that the proposed changes are consistent with the Magnuson-Stevens Act, other applicable law, and do not undermine or contravene the parent FMP. The amendment clearly stipulates that intent, as at section 6.5.2, which provides that “the intent of this [framework] provision is to provide an efficient means for the Council to change the performance standard in certain circumstances when a higher level of precision (i.e., reducing the CV to less than 30 percent) is desired for a particular fishery or management program [emphasis added].” Providing this mechanism to modify certain elements of the SBRM is considered important because several provisions of the parent FMPs already establish framework adjustment protocols for items such as creating new special access programs (SAPs) or new fishery sectors. As these changes are developed through a framework adjustment process, changes to the SBRM may be necessary in order to ensure sufficient discard reporting in the new SAP or sector. Without the ability to effect the necessary changes to the SBRM through the framework adjustment implementing the SAP or sector, the Council would have to defer implementation of each such framework until an accompanying amendment could be developed to implement the changes to the SBRM. This delay would directly contravene the intent of the parent FMPs.

NMFS also disagrees with the commenters that the amendment failed to consider the bycatch of species that are not targeted under the Northeast Region FMPs. This issue is addressed in several sections of the amendment. First, section 1.7 of the amendment clearly stipulates that the data collected by at-sea fisheries observers “shall be collected on all species of biological organisms caught by the fishing vessel and brought on board, including species managed under the subject FMPs but also including species on non-managed fish, invertebrates, and marine plants.” This section of the amendment continues to stipulate, in a footnote, that a complete list of the species for which the listed data elements are to be collected can be found in Appendix A and Appendix R of the Fisheries Observer Program Manual. These lists include more than 500 distinct species and species codes that must be accounted for by observers in their catch and discard reports. This provision of the SBRM requires that information regarding the discards of all species be reported by at-sea observers and reported to NMFS. The same information collected on species managed under a subject Northeast Region FMP would also be available, at the same level of detail, on all other species. The SBRM, however, is specifically crafted around the species managed under a subject FMP, and it is these species, with the addition of threatened and endangered sea turtles, that drive the allocation of observers across the subject fishing modes. Contrary to the claim of the commenters, the Councils explicitly considered expanding this aspect of the SBRM calculations to include all non-managed species. This is described in section 6.8.1 of the amendment document and includes the Councils' rationale for not so expanding the SBRM.

NMFS rejects the claim by the commenters that the agency “locked” the public and Councils out of the decision-making process to develop the SBRM Amendment. The process to development the amendment included numerous and varied opportunities for the public and the Councils to fully engage and provide valued input, fulfilling the letter and spirit of NEPA. The commenters correctly pointed out that the primary analyses and technical materials were developed by a Fishery Management Action Team (FMAT) that was chaired by a NMFS staff member, but claim that this represents a “flawed” approach. The choice of a NMFS staff member to serve as chair of this technical group was suggested by the Councils as a way to help with staffing resource concerns shared by the Councils. However, in all respects other than the position of the group's chair, the membership of the FMAT reflected the standard operating procedures for Plan Development Teams (PDTs), as used by the New England Council, as well as FMATs as used by the Mid-Atlantic Council. The SBRM FMAT included staff from both Councils, the Northeast Fisheries Science Center, NOAA General Counsel, and the Northeast Regional Office, all with the requisite expertise and background in the subject matter.

All activities, analyses, and recommendations of the FMAT were reported to a Joint Oversight Committee composed of voting member of both Councils, and all such meetings of the SBRM Committee were held in public fora with advance notice to the public. Throughout the development of the amendment, the SBRM Committee held six public meetings ranging in location from Virginia Beach, VA, to Peabody, MA. All decisions of the Councils with regards to establishing the range of alternatives to be considered in the amendment, selecting the preferred alternatives, approval of the draft amendment for release to the public, reviewing the results of the analyses and information provided by the FMAT, assessing the comments submitted by the public on the draft amendment and the changes proposed to address those comments were first vetted through the SBRM Committee in public meetings. In addition to the six meetings of the SBRM Committee, the Councils met publicly a total of 13 times to receive reports on the progress of the SBRM Amendment, to review the decisions and recommendations of the SBRM Committee, and to formally approve and adopt the amendment for release to the public and, later, to submit for Secretarial review. There was also a public meeting at which members of both Councils' SSCs conducted a formal peer-review of the technical components of the SBRM Amendment, and two public hearings were held to provide ample opportunity for interested members of the public to provide comments on the draft amendment.

Lastly, NMFS disagrees with the assertion by the commenters that the SBRM Amendment violates NEPA because an EIS was not prepared. Consistent with NEPA, Council for Environmental Quality (CEQ) regulations, and NOAA administrative policy, NMFS and the Councils collaborated to prepare an EA to evaluate the significance of the environmental impacts expected as a result of the actions considered in the SBRM Amendment. The results of this assessment are provided in section 8.9.2 of the amendment, which supports the finding of no significant impacts (FONSI) signed by the agency on October 16, 2007. The commenters provided no evidence, nor even any claims, that the conclusions in the FONSI are not supported by the facts presented in the EA for this finding. Contrary to the claim of the commenters, NMFS asserts that the EA considers a sufficient range of alternatives to satisfy the requirements of NEPA. As described throughout the amendment (the Executive Summary and chapters 6, 7, and 8), the alternatives considered by the Councils were structured around seven specific elements that together comprise the Northeast Region SBRM. Multiple alternatives were developed and considered for each element and, in some cases, various sub-options were also developed and considered. As noted in Appendix E of the amendment, in response to a similar comment received on the draft amendment, the available permutations of the various alternatives considered in this action exceeds 1,400 if the sub-options are not counted. Accounting for the sub-options, the number of possible outcomes exceeds 2,100 distinct sets of management alternatives. In addition to the sets of alternatives expressly analyzed in the EA, the Councils considered, but ultimately rejected from detailed analysis, an additional four distinct alternatives. These additional alternatives are described in section 6.8 of the amendment, and, contrary to the claim of the commenters, include alternatives that specifically addresses setting alternate CV levels and different intervals for the SBRM reports.

NMFS disagrees with the commenters that the EA fails to adequately discuss the purpose, need, and scope of the amendment. All of these elements are specifically identified and are fully described in chapter 1 of the amendment. The commenters assert that the EA fails to consider cumulative environmental impacts. NMFS rejects this claim, as section 7.3 of the amendment explicitly provides a discussion of the expected cumulative effects associated with the action. NMFS asserts that this treatment of cumulative effects is consistent with CEQ regulations and current NOAA policy. Regarding protected resources, several elements of sections 7.1 and 7.2 of the amendment address the potential impacts of the actions on protected resources, and NMFS considers this treatment, along with sections 8.3 and 8.8 of the amendment, to be adequate under all applicable law. Endangered sea turtles are explicitly addressed in the SBRM (see chapters 5 and 6), and are afforded a priority superior to all other fish species by “trumping” the second and third level importance filters (i.e., if the results of the second and third level importance filters would result in an observer allocation to a fishing mode that is less than the number of sea days calculated to adequately observe sea turtles, then the higher sea turtle allocation is applied). As noted throughout the amendment document, the Magnuson-Stevens Act specifically excludes marine mammals and birds from the definitions of fish and bycatch and, therefore, the SBRM (because it exists solely as a Magnuson-Stevens Act construct) need not expressly account for marine mammals or birds. Therefore, NMFS considers the SBRM Amendment to adequately address protected resources.

Comment 7: A comment letter written on behalf of four conservation organizations raised many of the same concerns as the conservation organization noted above. In particular, the commenters frequently referred to the results of the technical review described below. The responses to the comments identified in the technical review are addressed separately under comment 10. All other points raised in the comment letter are addressed in this response.

The commenters claim that the SBRM Amendment fails to achieve the purpose of the action or meet the related requirements of the Magnuson-Stevens Act and the prior Court orders because it fails to explain the methods and processes by which bycatch is currently monitored, fails to determine whether these methods and process should be modified and/or supplemented, and fails to document the SBRM established for all Northeast Region FMP fisheries. The commenters claim that the SBRM Amendment does not explain the methods by which data and information on discards are obtained by observers. The commenters reiterated the claim made in comment 4 that the SBRM Amendment “conclude[s] that observer coverage is not warranted” in the mid-water trawl fishery.

The commenters claim that the SBRM Amendment fails to specify levels of observer coverage required for each FMP, citing concern that the “mere performance targets” leave the actual level of observer coverage entirely up to the agency. The commenters also claim that the SBRM fails to adequately cover “non-managed” bycatch species.

The commenters claim that NMFS “prevented” the New England and Mid-Atlantic Councils and the public from meaningfully participating in the development of the SBRM Amendment. Similar to the previous commenter, the commenters claim that an EIS should have been prepared, rather than the EA, and that the document therefore does not comply with NEPA. In particular, the commenters claim that the lack of an EIS: Limited the opportunities for public participation and stymied the involvement of the Councils; failed to consider a range of alternatives; and failed to ensure that decision-makers and the public are well informed about the potential environmental impacts of the action. The commenters suggested that the amendment should have been presented in a more accessible format, claiming that the SBRM is a “nearly incoherent document.” The commenters claim that the FMAT formed to prepare the technical materials for the Councils was a “failure” and failed to engage the Councils. The commenters further claim that the SBRM Amendment was “carefully steered around the avoidance of the public participation requirements of NEPA,” and that opportunities for public participation, including the two public hearings, were limited to Council meetings with short agenda items and “little or no” opportunity for public comment. The commenters also criticized the amount of time available to review and comment on the amendment, claiming that much of the document was not available “in any form” until shortly before the Councils approved the document in June 2007. The commenters concluded by criticizing the 60-day comment period on the amendment, claiming that this amount of time was insufficient.

The commenters suggested that NMFS engage independent and objective scientific expertise, along with the public, and prepare an EIS in support of a “significantly revised” SBRM Amendment. The commenters claim that the SBRM was never peer reviewed by independent reviewers at any stage of its development. The commenters recognized that the document was reviewed by members of the Councils' SSCs, but claim that these reviewers “lacked the highly specialized expertise necessary to conduct a review of this nature,” and that the reviewers cannot be considered as independent and objective because they serve as members of the Councils' SSCs.

Response: NMFS disagrees that the amendment fails to explain the methods and processes by which bycatch is currently monitored or that the amendment fails to evaluate whether these methods should be modified and/or supplemented, noting that chapter 4 addresses these specific issues. Additional information about the current bycatch data collection programs is provided in chapter 5 of the amendment and in associated reference documents that are clearly identified throughout the amendment. As noted above in response to comments on this issue, it is incorrect to conclude that the SBRM Amendment in any way suggests that observer coverage “is not warranted” in any fishing mode, including the New England mid-water trawl mode, which the amendment indicates would be allocated 316 observer sea days based on the 2004 observer data, a two-fold increase over the actual coverage in this fishing mode in 2004.

NMFS disagrees with the commenters' implication that the SBRM Amendment was intended to specify levels of observer coverage required for each FMP. Nothing in the Magnuson-Stevens Act, or in either relevant Court order described above, requires that an SBRM include specific observer coverage levels to be identified for each FMP. Rather, the intent of the Magnuson-Stevens Act SBRM provision, supported by the Court, was to establish procedures to determine the appropriate levels of coverage [See, Oceana II at p. 233 (footnote 38), where the Court states that “ Oceana I did not require that an FMP mandate a specific level of observer coverage”]. The amendment clearly establishes the procedures to be used to make these determinations and requires that the agency utilize these procedures (“Each year, the Regional Administrator and the Science and Research Director shall allocate sufficient at-sea observer coverage to the applicable fisheries of the Northeast Region in order to achieve a level of precision . . . no greater than 30 percent for each applicable species and/or species group” SBRM Amendment at section 1.7).

The commenters' claim that the agency “prevented” the Councils from participating in a meaningful way in the development of the amendment is patently false. As described earlier in response to previous comments, the development of the SBRM Amendment was conducted under the oversight of a joint Council committee that included members from both Councils. All decisions regarding the development of the amendment were made by the Councils and were based on the recommendations of the SBRM Oversight Committee. Contrary to the claim of the commenters, the evidence clearly indicates that both Councils were fully engaged in the development of this amendment, and there were no actions taken on the part of the agency to “prevent” such engagement.

NMFS considers the SBRM Amendment and associated EA to comply fully with the requirements of NEPA, the CEQ regulations, and NOAA Administrative Order 216-6, and, therefore, rejects the assertion by the commenters that an EIS should have been prepared. According to the CEQ regulations, and all available guidance on the subject, an EIS need only be prepared when an EA or other related analysis identifies significant effects on the environment or if the facts available to the action agency cannot support the conclusions required in order to make a FONSI. The EA associated with the SBRM Amendment fully evaluated the expected direct, indirect, and cumulative impacts likely to result from implementation of the action. The EA, in both form and scope, followed all agency guidelines for an EA associated with an FMP amendment. As noted in response to previous comments, a full range of reasonable alternatives was considered by the Councils during the development of the amendment, and all relevant effects of the action, and its alternatives, were identified and made available to the relevant decision-makers. In response to the claim that the amendment document is “nearly incoherent,” NMFS notes that at no stage in the development of the amendment did anyone else raise such a comment. NMFS considers this amendment to be an organized, well-written, and approachable document that includes each element required by NEPA and all applicable laws. The inclusion in the amendment of highly technical concepts and methodologies was necessary in order to treat the statistical analyses and modeling elements inherent in the development of an SBRM in a complete and transparent manner. Great care was taken to present this information clearly, to organize the amendment in a logical manner, and to use clear prose to the extent possible.

NMFS disagrees with the claim that the FMAT process was a failure. The FMAT members included representatives from both Councils' staffs, and the FMAT reported to the Councils' SBRM Oversight Committee at each step in the process to develop the amendment. The FMAT produced a draft amendment 8 months after the first FMAT meeting, at which time it was accepted by both Councils and released for public review. Following the public comment period on the draft amendment and draft EA, the FMAT prepared revisions to several sections of the amendment and presented all revisions to the Committee less than 4 months after the end of the comment period. NMFS considers the FMAT process to be a success by all accepted standards and practices for Council actions. Regarding the claim that the development of the amendment was intended to avoid public participation, as noted above in response to the previous comment on this issue, public participation was encouraged and multiple opportunities for public participation were provided throughout the development process. Both public hearings held on the draft amendment were noticed well in advance of the hearings, both were held in public venues in conjunction with, but not during, public meetings of the New England and Mid-Atlantic Councils. Both hearings were relatively well attended (32 individuals attended the first hearing in Gloucester, MA, and 16 individuals attended the second hearing in New York, NY), and both hearings remained open until all in the audience who wished to provide comment had done so. No time limits were placed on any commenter, and no one was precluded from speaking. As a result of the discussions of the Councils and comments from the public, several changes to the SBRM Amendment were made throughout its development, including the revisions to the importance filter process, the inclusion of multiple reporting procedures, and the incorporation of an external peer review of the underlying analyses conducted by the Councils' SSCs.

NMFS disagrees with the claim of the commenters that the document was not available “in any form” until shortly before the Councils approved the document in June 2007. Drafts of the amendment and EA were available prior to the Council meetings in September and October 2006 at which the draft amendment was approved for release to the public for public hearings. The public hearing draft of the amendment and EA was posted to the Internet and made available on November 1, 2006, initiating a 60-day comment period. Copies of the public hearing draft were available by mail for anyone who requested one, and copies were available at both public hearings. The public hearing draft of the amendment and EA remained available on the Internet until it was replaced by a revised draft in mid-2007. In advance of the April 2007 meeting of the SBRM Oversight Committee, errata sheets reflecting the sections of the draft amendment that had been revised to address public comments were made available on the New England Council's Internet page. Copies of these revised sections of the amendment were also made available at the April 2007 meeting. Following the April 2007 meeting of the Committee, these revised sections were integrated into the draft amendment, and a final draft of the amendment was posted to the Internet in early June.

Regarding the criticism that the 60-day comment period on the amendment (72 FR 41047) was insufficient, NMFS notes that this 60-day time period for public review of FMPs and amendments is stipulated in section 304 of the Magnuson-Stevens Act (“Upon transmittal by the Council to the Secretary of a fishery management plan or plan amendment, the Secretary shall . . . immediately publish in the Federal Register a notice stating that the plan or amendment is available and that written information, views, or comments of interested persons on the plan or amendment may be submitted to the Secretary during the 60-day period beginning on the date the notice is published.”).

NMFS asserts that it is unnecessary to engage additional expertise, and finds no reason to disapprove and revise the SBRM Amendment. NMFS disputes the commenters' claim that the SBRM was not peer reviewed by independent reviewers, noting that both Councils solicited their respective SSCs for members with the expertise to conduct a formal peer review of the technical components of the SBRM Amendment. Four reviewers, two from each Council's SSC, with all the requisite expertise and background to conduct such a review, met in August 2006 in a public forum to assess the SBRM. The results of the peer review were made publicly available in September 2006 and were fully addressed in revisions to the initial draft of the SBRM Amendment and all comments and suggestions made by the SSC members were incorporated.

Comment 8: A comment letter by the chief scientist for a conservation organization asserted that the analyses and preferred options in the SBRM Amendment represent improvements over previous versions. The commenter stressed that the selected alternative for the importance filter is “much better” than the non-preferred alternative, and that it is “appropriate” to concentrate observer sampling effort on fishing modes that cause a high fraction of the discard mortality and a high fraction of the total fishing mortality for each harvested species. The commenter also stated that the preferred alternative precision standard (a CV of 30 percent) for bycatch estimates for each managed species and fishing mode is “appropriate.” In addition, the commenter concurred with one of the conclusions of the McAllister report (see below) that simulation testing should be done to evaluate the precision and potential biases of each proposed estimator.

Response: NMFS agrees with the commenter that the SBRM represents an improvement over previous versions, that the importance filter is a sound and appropriate approach to concentrate observer coverage, and that the performance standard of a 30 percent CV is appropriate for discard estimates. The response to the comment concurring with the McAllister report on simulation testing is addressed below in response to comment 10.

Comment 9: A comment letter written by attorneys representing an association of full-time, limited access scallop fishermen in New England and the Mid-Atlantic endorsed the SBRM Amendment, noting that, in their opinion, the SBRM Amendment addresses all relevant legal requirements. The commenters claim that the amendment establishes an appropriately flexible system to meet unknown future demands on the observer system. The commenters assert that the amendment appears to have achieved a reasonable and practicable balance in the scope of the SBRM and the approach taken to allocate observer coverage across the subject fishing modes. The commenters support the use of the importance filters by focusing limited resources on the areas of greatest concern to management. The commenters also support the provisions of the rule that allows the Councils to develop an observer set-aside program through a framework adjustment to the FMP, rather than a full amendment. In addition, the commenters support the establishment of standards for certifying additional observer service providers.

Response: NMFS agrees with the comments.

Comment 10: A comment letter from a conservation organization included a detailed technical review of the scientific analyses and methodology underlying the SBRM Amendment. A technical review was submitted by Dr. Murdoch McAllister of the University of British Columbia. Although the McAllister report found the importance filters to be “scientifically sound,” “well-founded,” and “sensible from a scientific point of view” and to be effective at reducing the amount of observer effort required without compromising the quality of data required for bycatch estimation, the McAllister report raised several issues related to the analysis conducted in support of the SBRM Amendment. The McAllister report claims to have identified a number of flaws in the estimation method chosen to be applied in the SBRM, and that the observer coverage levels that result from the application of this estimator could potentially lead to “wastage” of government resources because “unnecessarily high” or “unacceptably low” numbers of observer sea days could be specified by the SBRM. The McAllister report claims that the SBRM Amendment failed to adequately evaluate the statistical properties of the six alternative bycatch estimation methods considered, and raised concerns that the key assumptions of the preferred statistical method do not hold, such that the SBRM Amendment utilizes a statistical method that is inferior to others that might have been selected. The report notes that an alternative statistical method that was considered, but not selected, may have resulted in lower CVs in bycatch estimates than the other methods. The McAllister report recommends that simulation testing of the candidate bycatch estimation methods be conducted to evaluate the potential bias and precision in the methods prior to selecting one for implementation.

The McAllister report also raises concern regarding the degree to which evidence of bias in the observer data is acknowledged in the analyses supporting the SBRM Amendment, suggesting that there is evidence of bias in the data where none was reported. This concern is extended to include the use of the FVTR as a source of kept biomass, which may have more bias than described in the amendment. The report concludes with the claim that the SBRM is “unlikely” to provide reliable discard estimates or prescriptions for observer coverage, noting that this is “largely due” to the issues previously raised regarding the ratio bycatch estimator that was selected.

In spite of the concerns raised, the McAllister report concedes that “the observer data on bycatch appear to be the best available data on bycatch by species and fishing fleet type.” Dr. McAllister notes that “no other data exist with the extent of coverage of bycatch species, landed species, and fishing mode,” and that there is a relatively small proportion of the various potential combinations of species and fishing mode for which observer coverage is too low to permit estimation of bycatch. The report acknowledges that there are sufficient data in the “vast majority” of fishing mode and species combinations to enable computation of a bycatch value and a standard error for the estimate, and that “no other type of data collected comes close to providing the high level of coverage offered by the existing observer dataset.” The McAllister report also acknowledges that the high proportion of the estimates of bycatch presented in the SBRM with CVs of 30 percent or less indicate that the “existing observer database has potential to provide bycatch estimates with the desired level of precision.”

In addition to the concerns described above, the McAllister report also raises a concern regarding the selection of a 30 percent CV of the discard estimate as an appropriate performance standard for the SBRM, noting that in commonly applied stock assessment models, the desired CV of the catch estimate would be 10 percent or less, not 30 percent.

Response: Dr. Murdoch McAllister makes a number of important comments on the SBRM Amendment. His thorough review on behalf of Lenfest Ocean Program highlights a number of important issues for discard estimation and suggests some useful approaches for improving the estimators currently employed. NMFS considered his comments, but, despite the issues raised by Dr. McAllister, contends the SBRM is consistent with all legal and statutory requirements, and is based upon the best available science. The SBRM incorporates not only the sampling design but also the infrastructure to collect auxiliary data, the methods of estimation and the properties of the estimators, and approaches to improve the allocation of observer coverage to the diverse fishing fleets of the Northeast Region. The SBRM is fully consistent with the limitations of the data necessary to support estimation of discards across a wide range of species and fisheries.

Improvements can always be made to statistical models and techniques to derive bycatch estimates. By reviewing observer coverage annually and instituting optimal allocation procedures, the SBRM is designed to continuously improve the underlying data. Ultimately, the utility of any statistical model depends more on the quality of the data than the sophistication of the model. Nonetheless, the SBRM is designed to collect data that will support many different types of statistical estimators. In order to achieve this goal, the information in the observed samples must be sufficient for inference about the unobserved fraction of the fishery. The basis for the program rests on the quality of the discard data collected at sea by fisheries observers and the ability to extrapolate estimates of total discards from the observed fraction of the fleets to the unobserved fractions. Any estimator of total discards requires that the observed rate of discards in a sample can be expanded to a total. An estimator based on discards per trip requires an estimate of total trips; an estimator based on discards per day absent requires an estimate of total days absent. Estimators that compute discard rates as a function of some set of environmental conditions or vessel attributes must have the ability to apply those same characteristics for the unobserved set.

The remarks of Dr. McAllister appear to indicate some confusion regarding the estimators that are applied for the purpose of initializing the SBRM and those which will be used in stock assessments. NMFS acknowledges that these estimators do not necessarily have to be the same. In fact, one would expect that improved discard estimates can be derived after the data are collected because more information about the fishing trip, and the nature of the discards, is available. Possible refinements to the data and the resulting discard estimates include various post-stratification approaches, incorporation of other auxiliary variables, and intensive investigation of regulatory effects (e.g., size limits, trip limits, overall quotas, closed area effects, permit restrictions etc.). The ability to implement these changes is governed ultimately by the quality of the statistical sampling design. On that point, the SBRM is on firm ground: while the McAllister report provides a number of instances where further research efforts can be directed, it does not alter our conclusion that the SBRM is a scientifically-sound process for implementing a continuously improving process of bycatch estimation.

The SBRM addresses discarding issues for the entire range of fishing activities in the Northeast. This synoptic approach requires careful attention to the limitations and availability of data to estimate discards and provides a representative methodology to apply consistently across all Northeast Region fisheries. The inclusion of all species and all fisheries precluded a detailed case-by-case treatment of the best estimators in favor of a standardized approach to provide reasonable results across the full range of Northeast Region fisheries. The SBRM incorporates objective approaches to reduce the estimation problem to a subset of cells that are biologically important.

Dr. McAllister did not comment on the procedures for collecting data on trips or the observer training program. As this was not in his terms of reference, it is assumed that neither the Lenfest Ocean Program nor Dr. McAllister had any serious concerns about observer training or quality assurance procedures. The ability to extrapolate from the observed fishing trips to the unobserved fraction rests in part on the overall sampling design. On this topic, Dr. McAllister states “In my view the sampling program proposed for obtaining bycatch estimates has a few issues regarding accuracy but largely appears to be the best available sampling program for bycatch estimation.”

It is noted that, in spite of the concerns raised, the McAllister report concedes that “the observer data on bycatch appear to be the best available data on bycatch by species and fishing fleet type.” The author notes that “no other data exist with the extent of coverage of bycatch species, landed species, and fishing mode,” and that there is a relatively small proportion of the various potential combinations of species and fishing mode for which observer coverage is too low to permit estimation of bycatch. His report acknowledges that there are sufficient data in the “vast majority” of fishing mode and species combinations to enable computation of a bycatch value and a standard error for the estimate, and that “no other type of data collected comes close to providing the high level of coverage offered by the existing observer dataset.” The McAllister report also acknowledges that the high proportion of the estimates of bycatch presented in the SBRM with CVs of 30 percent or less indicate that the “existing observer database has potential to provide bycatch estimates with the desired level of precision.”

Dr. McAllister criticizes the selection of the ratio estimator as the appropriate model for estimation. NMFS acknowledges that the ratio estimator is not uniformly supported across all 2,700 cells (45 fleets and 60 species groups). In some instances, the trip-based estimator (average discards per trip multiplied by total trips) may in fact have greater precision. In effect, all of the discard estimation methods considered in the SBRM are stratified ratio estimators. The simple expansion method preferred by Dr. McAllister uses total trips as a measure of effort. Implicitly, this means that the stratification variables used in the SBRM are sufficient to define strata with a low degree of within-stratum variability and high degree of between stratum variability. The incorporation of “days absent” as a measure of fishing effort recognizes that residual variation in trip length may be important for characterizing bycatch; however, the measure of days absent does not account for variations in transit time to fishing grounds or search activities (i.e., there could be significant differences in actual fishing time true effort if transit time is accounted for). The use of total landings addresses this weakness and provides at least one performance-based measure of fishing effort, wherein variation in fishing power can be addressed. Because catch is the product of effort and abundance, total landings per trip can be viewed conceptually as a surrogate for effective fishing effort, if average abundance within a year does not change too greatly.

The SBRM proposes the use of a stratified ratio estimator as a general measure of the total bycatch by species. The estimator incorporates two complementary components to improve the precision of the estimates. Stratification by “fleets” reduces the variability within non-overlapping sets. For some species, it would be possible to develop more refined stratifications, particularly after the sample has been collected. Some fleets are strongly associated with a particular species, such as the scallop dredge fleet and the hydraulic dredge fleet for clams. However, for most fleets, the target species is not identifiable in advance. Some vessels will change net types during a cruise to shift among species groups (e.g., gadoids vs. flatfish).

Contrary to the comments of Dr. McAllister, the estimators used in the SBRM are consistent with the many peer-reviewed published studies of discard estimation. For example, Pikitch et al. (1998) 1 estimated total bycatch for Pacific halibut as the product of a bycatch ratio of discard per hour fished (stratified by fleet, season, and depth) and total hours fished. Total hours fished were assumed to have negligible error because, in the words of the authors, “the states of Oregon, Washington, and California collect logbooks for the majority of fishing trips (70-90 percent in Oregon, nearly 100 percent in Washington, and about 80 percent in California).” In their paper, the authors concluded that logbook records, which McAllister claims are “notoriously inaccurate,” were sufficient to estimate hours fished even when they are known to be incomplete.

Stratoudakis et al. (1999) 2 recognized the bias in small sample ratio estimators and recommended an alternative method based on collapsed stratification. The authors examined a wide range of ratio estimators, similar to the procedures used in the SBRM. They recommended the use of a “partially collapsed estimator” that used total gadoid landings or total demersal species landings as the auxiliary variable in the ratio estimator. They recommended pooling across strata to estimate the discard ratio. In the SBRM, the discard ratio for the “combined” estimator was in fact a “partially collapsed estimator” over quarters. Their comparisons of ratio estimators with the stratified sample mean estimator suggested improved performance for most but not all species. They concluded the partially collapsed ratio estimator, with gadoid or total landings as the auxiliary variable, offers a sensible method for estimating total species discards within Scottish waters. Another advantage cited by these investigators was the decreased reliance on ad hoc decisions that arise when single species discard/kept ratios are employed.

In a comprehensive evaluation of discarding in the multispecies and multi-country fisheries of the Northwest Atlantic, Watson et al. (2000) 3 also estimated total discards by species using the ratio of discard to total kept. Previous studies of discarding have also relied extensively on discard to kept ratios, and have typically required pooling of information across fisheries. Clarke et al. (2002) 4 used a discard to kept ratio to estimate discards of a squalid shark off the northern coast of Ireland. They noted that this ratio “enabled the estimation of the total weight discarded by raising the overall discard rate to the reported landings of the target species.” Harrington et al. (2005) 5 and Zeller and Pauly (2005) 6 also reported a number of discard estimates based on discard to kept ratios.

Allain et al. (2003) 7 considered two methods for estimating the total weights of fish discarded by the French grenadier fleet. Extrapolations of total landings using effort based ratios, as suggested by McAllister, resulted in differences between observed and predicted between -67 and +52 percent per quarter. They noted that real effort is difficult to estimate owing to different fractions of time actually spent on fishing grounds. Instead, they favored a target species (grenadier) approach as the denominator of a discard to kept ratio because “it was the target species of the fishery, it was the only species both landed and discarded, and it was the most common species in the catches of deepwater commercial trawlers.” Borges et al. (2005) 8 also analyzed discards at the trip level and considered four ratio estimators. The authors concluded that expansions based on total trips or total landings were most appropriate. Their studies suggested that no single approach may be appropriate for all fishery strata and that the performance of the discard to total kept estimator was sometimes inferior to a simple discard per trip estimator.

The Food and Agricultural Organization of the United Nations has sponsored two of the most comprehensive estimates of worldwide discards. The first, by Alverson et al. (1994), 9 estimated total discards by using ratios of discards to kept of the same species. The second major paper, by Kelleher (2005) 10 , updated the Alverson et al. review using total landings in the fleet as the primary raising factor. The SBRM uses an approach similar to Kelleher. The focus is on fisheries rather than target species. Kelleher argues that the relationship between landings and discard of a species is influenced by many different factors and does not constitute an a priori basis for estimation of total discards.

Many attempts in the literature to model bycatch have been based on regression trees and Generalized Additive Models that partition the data into multiple categories (see Stratoudakis et al. 1999 11 , Allen et al. 2002 12 , Borges et al. 2005 13 ). These partitions have been based on post hoc analyses of single species and have been valuable approaches for improving the utility of discard estimates. However, it is not clear how such approaches could be easily applied in the context of multivariate responses. The partitioning of fleets into sectors based on properties observable before the trip is taken is a major attribute of the current NEFOP sampling program (e.g., Cotter et al. 2002 14 , Allen et al. 2002). The ability to post-stratify the trips into improved strata after the trip is taken is a responsibility of the individual assessment analyst. The SBRM allows for this process by ensuring that whatever assessment methodology is used, one must consider the total scope of potential discards across all fleets.

NMFS acknowledges that all measures of accuracy based on observations are incomplete, since the “truth” (or its approximation) is unknown. However, the multiple lines of evidence used in the SBRM suggest that potential biases in the NEFOP observer data do not negate the utility of all estimates. Several of the data validation issues highlighted by Dr. McAllister were examined as part of a recent Groundfish Assessment Review Meeting (GARM) held in the fall of 2007. This particular meeting of the GARM dealt with the catch, survey, and environmental data that will be used to assess 19 Northeast groundfish stocks in 2008. The review panel, including its chair, included eight independent, external scientists with relevant experience.

In addition to the methods described in the SBRM, another validation approach was presented at the GARM that included a comparison of total landings by species estimated from the observed fraction of the fleet with the actual landings enumerated in the VTR data. In other words, an estimate of the average landings of a single species per total landings in the observer data was multiplied by the total landings of all species in each fleet. If the observer data are a representative sample, the confidence interval for estimated total landings should encompass the true value. Liggens et al. (1997) 15 used a similar approach for estimating observer bias by comparing average catch rates and length frequencies between observed and unobserved vessels. The results of this exercise supported the conclusions presented in the SBRM Amendment, and confirm that the method and underlying data provide sound estimates of discards. For many species and species groups, the estimated landings based on NEFOP data compared favorably to the VTR landings, with the 95 percent confidence interval of the estimated landings encompassing the VTR landings.

The GARM considered this evidence and concluded that the combined ratio method was validated by comparing estimated landings using expanded kept portion of the catch in the observer data to the actual report landing. The estimated landings appear to be in line with the reported total landings. Using kept weight of all species in the denominator of the combined ratio ensures that all the catch data are used in estimating discards. The GARM review panel also concluded that the SBRM documents a number of estimators of discarding and validation of the combined ratio method was provided using the 2005 observer data set by a follow-up analysis. VTR data were used as a surrogate for Dealer data to expand the NEFOP discard ratios to total discards. In most cases (95 percent), there was good correspondence between VTR and Dealer landings, adding confidence to the use of these data, although there were patterns in the data for some species (e.g., surfclam/quahog, hakes) that require further exploration. The GARM concluded that, overall, the technique was synoptic, reasonably well validated, and exhibited little evidence of bias.

Contrary to Dr. McAllister's comments, simulation tests of alternative estimators have been conducted for several species. These results were reviewed as part of the GARM described above. NMFS has also conducted studies to estimate total landings from the observed sample data and have found good agreement for the methods used in the SBRM. Scientists at the Northeast Fisheries Science Center conducted a simulation study of the behavior of six different estimators of total discards, including the combined ratio (discard to kept) and the sample mean estimator (discard to trip) as described in the SBRM Amendment. Results supported the use of the discard to total kept ratio and the simple expansion method. The independent GARM reviewers considered this additional analysis and concluded that the analysis provided a comprehensive simulation study to test the overall performance of a number of discard estimation techniques with respect to bias and precision. Two methods were clearly superior to the other four techniques: The SBRM's combined ratio estimator (ratio of sums) and the direct estimator, based on mean discard per trip scaled up to all trips in the simulation datasets. The latter had been advocated by McAllister for the estimation of discards, and would be the preferred approach if there is no correlation between the numerator and denominator of the estimate (i.e., there is no correlation between discard weight and kept weight). However, the GARM reviewers concluded that McAllister's preferred method only provides unbiased estimates of total discards if the total number of trips is known, which is often not the case in the New England fisheries. Total landings estimates are considered more reliable than those of the total number of trips, and so the GARM reviewers concluded that the SBRM's combined ratio estimator of mean discard based on observed trips has the advantage that it can be combined with known landings data to estimate total discards. They considered this to be a pragmatic solution to data deficiencies, and noted that the SBRM appears to provide estimates with similar precision as the direct estimator. The bias in the combined ratio estimator depends on the sample size (number of observed trips) and was negligible for the data being assessed in the simulation study.

Regarding the assertion that a CV of 30 percent is an insufficient precision standard for the SBRM, the commenter identifies, as a suggested alternative, a CV of 10 percent for catch estimates used in stock assessments. However, NMFS points out that estimates of bycatch, which are the focus of this action, are but one aspect of overall catch, which includes all commercial and recreational landings as well as discards. As illustrated in Appendix C to the SBRM Amendment, for most species, discards represent a very small proportion of total catch. Therefore, the CV of the landings estimates contributes much more significantly to the CV of the overall catch than does the CV of the discard estimate. Also, as explained earlier, the data generated through the SBRM are utilized in different ways in individual stock assessments, and that post-stratification techniques available at the individual stock assessment level provide an opportunity to refine estimates as Dr. McAllister suggests. While NMFS agrees that higher precision is always a laudable goal, it notes that the Councils' SSC reviewers, as well as another independent scientist commenting on the SBRM Amendment (see comment 8), all concluded that the proposed standard of a CV of 30 percent is appropriate for its stated purpose.

In sum, NMFS has carefully considered the comments and suggestions made by Dr. McAllister, in some cases conducting additional analyses which have been subjected to an additional level of independent external peer review through the GARM, and found that none of the comments undermine NMFS's findings regarding the adequacy of the Northeast Region SBRM.

Comment 11: One member of the public expressed concern over whether the agency may be unduly swayed in the actions it takes due to political interference. The commenter suggested that all fishing quotas be cut by 50 percent, but no evidence or analysis was provided to support such a reduction.

Response: This comment letter did not address the specific provisions of the SBRM Amendment or its proposed rule, and the comments have no bearing on the agency's decision relative to this action.

The Administrator, Northeast Region, NMFS, determined that the Northeast Region SBRM Omnibus Amendment is necessary for the conservation and management of Northeast Region fisheries and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

Regulations governing the GB yellowtail flounder landing limit within the U.S./Canada Management Area are found at § 648.85(a)(3)(iv)(C) and (D). The regulations authorize vessels issued a valid Federal limited access NE multispecies permit and fishing under a NE multispecies DAS to fish in the U.S./Canada Management Area, as defined at § 648.85(a)(1), under specific conditions. The TAC for GB yellowtail flounder for the 2007 fishing year is 900 mt. The regulations at § 648.85(a)(3)(iv)(D) authorize the Regional Administrator to increase or decrease the trip limit in the U.S./Canada Management Area to prevent over-harvesting or under-harvesting the TAC allocation . The regulations at § 648.85(a)(3)(iv)(C)( 3 ) require the Regional Administrator to prohibit the harvesting, possession, and the landing of GB yellowtail flounder by all federally permitted vessels within the entire U.S./Canada Management Area and close the Eastern U.S./Canada Area to all limited access NE multispecies DAS vessels for the remainder of the 2007 fishing year when 100 percent of the GB yellowtail flounder TAC is projected to be caught.

Based upon the reduced 2007 TAC for GB yellowtail flounder (a 43-percent reduction from 2006), the GB yellowtail flounder trip limit was initially set at 3,000 lb (1,361 kg) per trip to prevent over-harvest during the 2007 fishing year, and to prevent a premature closure of the Eastern U.S./Canada Area, which could result in reduced opportunities to fish for GB cod and GB haddock in the Eastern U.S./Canada Area. On November 27, 2007, the GB yellowtail flounder trip limit was increased to 7,500 lb (3,402 kg) because the 3,000-lb trip (1,361-kg) limit was projected to result in under-harvest of the TAC. The 7,500-lb (3,402-kg) trip limit resulted in an unpredicted high rate of GB yellowtail flounder landings, markedly different from the historical fishing patterns that formed the basis of the projection. On January 10, 2008, the GB yellowtail flounder trip limit was decreased to 1,500 lb (680 kg) from 7,500 lb (3,402 kg) because the rapid catch rate observed since implementing the 7,500-lb (3,402-kg) GB yellowtail flounder trip limit (33 percent of the TAC was caught between December 6, 2007, and January 3, 2008) was projected to result in the TAC being achieved on January 23, 2008.

Based on Vessel Monitoring System data and other available information, as of January 17, 2008, 100 percent of the GB yellowtail flounder TAC has been caught. Based on this information, the Regional Administrator, in accordance with the regulations at § 648.85(a)(3)(iv)(C)( 3 ), is prohibiting the harvesting, possession, and the landing of GB yellowtail flounder by all federally permitted vessels within the entire U.S./Canada Management Area, and closes the Eastern U.S./Canada Area to all limited access NE multispecies DAS vessels for the remainder of the 2007 fishing year effective 0001 hours local time January 24, 2008, through April 30, 2008.

This action is authorized by 50 CFR part 648 and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(3)(B) and (d)(3), there is good cause to waive prior notice and opportunity for public comment, as well as the delayed effectiveness for this action, because prior notice and comment, and a delayed effectiveness, would be impracticable and contrary to the public interest. This action prohibits the harvest, possession, and landing of GB yellowtail flounder by all federally permitted vessels within the entire U.S./Canada Management Area and closes the Eastern U.S./Canada Area to limited access NE multispecies DAS vessels for the remainder of the 2007 fishing year (through April 30, 2008). This action is being taken to prevent the GB yellowtail flounder TAC from being exceeded during the 2007 fishing year. This action is required by the regulations at 50 CFR 648.85(a)(3)(iv)(C)( 3 ) and is non-discretionary. Since 100 percent of the GB yellowtail flounder TAC is projected to have been harvested as of January 17, 2008, there is insufficient time to allow for public notice, comment, and delayed effectiveness before the TAC will be exceeded.

It was not possible to take this action earlier to provide more time for public comment because of the rapidly increasing GB yellowtail flounder harvest rate, the reduced GB yellowtail flounder TAC, and the ability of NMFS to monitor the harvest (the estimate that 100 percent of the GB yellowtail flounder TAC had been harvested was not available until January 17, 2008). Exceeding the 2007 TAC for GB yellowtail flounder would increase mortality of this overfished stock beyond that evaluated during the development of Amendment 13 to the FMP, resulting in decreased revenue for the NE multispecies fishery, increased economic impacts to vessels operating in the U.S./Canada Management Area, a reduced chance of achieving optimum yield in the groundfish fishery, and unnecessary delays to the rebuilding of this overfished stock.

The potential of prohibiting the harvest, possession, and landing of GB yellowtail flounder by all federally permitted vessels within the entire U.S./Canada Management Area, and closure of the Eastern U.S./Canada Area to limited access NE multispecies DAS vessels, for the remainder of the 2007 fishing year was announced to the public when the 1,500-lb (680-kg) trip limit was implemented on January 10, 2008. The public is able to obtain information on the rate of harvest of the GB yellowtail flounder TAC via the Northeast Regional Office website (http://www.nero.noaa.gov), which provides at least some advanced notice of a potential action to prevent the TAC for GB yellowtail flounder from being exceeded during the 2007 fishing year. Further, the Regional Administrator's authority to prohibit the harvest, possession, and landing of GB yellowtail flounder by all federally permitted vessels within the entire U.S./Canada Management Area, and close the Eastern U.S./Canada Area to limited access NE multispecies DAS vessels for the remainder of the 2007 fishing year, to ensure the shared U.S./Canada stocks of fish are not exceeded was considered and open to public comment during the development of Amendment 13 and Framework 42 to the FMP. Therefore, any negative effect the waiving of public comment and delayed effectiveness may have on the public is mitigated by these factors.

This final rule is accessible via the Internet at the Office of the Federal Register 's Website at http://www.gpoaccess.gov/fr/index.html . Background information and documents are available at the Pacific Fishery Management Council's (Council's) website at http://www.pcouncil.org/ .

A final rule to expand the Pacific Coast groundfish fishery vessel monitoring system (VMS) program to include the open access and non-groundfish trawl fisheries was published in the Federal Register on December 7, 2007 (72 FR 69162). The final rule contained an error that needs to be corrected. The final rule, which becomes effective on February 4, 2008, requires all vessels fishing pursuant to the harvest guidelines, quotas, and other management measures governing the open access groundfish fishery and all non-groundfish trawl vessels to provide declaration reports and to activate and use a VMS transceiver while fishing in the exclusive economic zone (EEZ) off the coasts of Washington, Oregon and California.

In the drafting of the rule language an incorrect cross reference at § 660.312 (d)(4)(iv) to § 660.312 (b)(2) results in a substantive change in the regulatory requirements. The inclusion of the incorrect cross reference would allow vessels using non-groundfish trawl gear to request and receive an exemption to the VMS program hourly reporting requirements if they do not retain groundfish from the EEZ. This exemption is inconsistent with the structure and purpose of the VMS program. The VMS program requires vessels using non-groundfish trawl gear to have and use VMS if they fish in the EEZ whether or not groundfish are retained. The VMS program is intended to provide for monitoring of compliance with essential fish habitat conservation (EFH) areas where the use of bottom trawl gear is prohibited regardless of whether groundfish are retained in order to protect the bottom habitat. The attached correction is needed so the regulatory language implements the action recommended by the Council and analyzed in the environmental assessment.

The Assistant Administrator (AA) for Fisheries, NOAA, finds good cause to waive the requirement to provide prior notice and opportunity for public comment on this action pursuant to 5 U.S.C. 553(b)(B), because providing prior notice and opportunity for comment would be impracticable and contrary to the public interest. NMFS had mis-published this exemption allowance in its final rule (72 FR 69162, December 7, 2008). If this correction were not made promptly, some non-groundfish trawl vessels may operate in the EEZ without VMS and NMFS would be unable to monitor fishing relative to Essential Fish Habitat (EFH) conservation areas where trawling is prohibited in order to protect groundfish habitat. Because a notice and comment rulemaking may take several months to implement it would likely not be effective until after the start of the pink shrimp trawl fishery, a major non-groundfish trawl fishery. In addition, several smaller non-groundfish trawl fisheries may also be currently operating. If purchase of a VMS unit is delayed, reimbursement funds for the purchase of a VMS unit may be unavailable. If reimbursement funds are not available, individual vessel owners would incur the cost of purchasing VMS units. Therefore, it is impracticable and contrary to the public interest to provide prior notice and an opportunity for public comment on this correction.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The first seasonal apportionment of the 2008 Pacific halibut PSC limit specified for the shallow-water species fishery by Amendment 80 vessels subject to sideboard limits in the GOA is 10 metric tons as established by the 2007 and 2008 harvest specifications for groundfish of the GOA (72 FR 9676, March 5, 2007) and revision (72 FR 71802, December 19, 2007), for the period 1200 hrs, A.l.t., January 20, 2008, through 1200 hrs, A.l.t., April 1, 2008.

In accordance with § 679.20(d)(1)(vi)(C)( 2 ), the Administrator, Alaska Region, NMFS, has determined that the first seasonal apportionment of the 2008 Pacific halibut PSC limit specified for the shallow-water species fishery by Amendment 80 vessels subject to sideboard limits in the GOA has been reached. Consequently, NMFS is prohibiting directed fishing for the shallow-water species fishery by Amendment 80 vessels subject to sideboard limits in the GOA. The species and species groups that comprise the shallow-water species fishery are pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, skates and “other species.”

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of the shallow-water species fishery by Amendment 80 vessels subject to sideboard limits using trawl gear in the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 18, 2008.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.21 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season allowance of the 2008 Pacific cod TAC allocated to vessels participating in the Amendment 80 limited access fishery in the BSAI is 1,839 metric tons as established by the 2007 and 2008 final harvest specifications for groundfish in the BSAI (72 FR 9451, March 2, 2007) and revision (72 FR 71802, December 19, 2007). See §§ 679.20(a)(7)(ii)(A), 679.20(a)(7)(iv)(A), and 679.91(c)(4).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the entire A season allowance of the 2008 Pacific cod TAC allocated to vessels participating in the Amendment 80 limited access fishery in the BSAI will be caught as incidental catch in directed fisheries for other groundfish fisheries. Therefore, the Regional Administrator is establishing a directed fishing allowance of 0 mt and is setting aside the remaining 1,839 mt as incidental catch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels participating in the Amendment 80 limited access fishery in the BSAI.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by vessels participating in the Amendment 80 limited access fishery in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 22, 2008.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and § 679.91 and is exempt from review under Executive Order 12866.