On August 8, 2007, we published in the Federal Register (72 FR 44425-44433, Docket No. 03-002-4) a proposed rule  1 that would have amended the nursery stock regulations in 7 CFR part 319 to provide an option in which the postentry quarantine growing period for articles of Chrysanthemum spp., Leucanthemella serotina , and Nipponanthemum nipponicum that are imported from certain locations would have been reduced from 6 months to 2 months, provided that the grower of those plants implemented a systems approach in the country of origin to prevent the imported articles from being infected with chrysanthemum white rust. The proposed rule would also have amended the definition of from in § 319.37-1 to read: “An article is considered to be ‘from’ the country where it, or the plants from which the article was derived, was actively growing for at least 9 months immediately prior to export.”

We solicited comments concerning our proposal for 60 days ending on October 9, 2007. We reopened and extended the deadline for comments until November 26, 2007, in a document published in the Federal Register on October 26, 2007 (Docket No. 03-002-5, 72 FR 60790). We received 13 comments by that date. They were from producers, exporters, researchers, and representatives of local, State, and foreign governments.

While some commenters favored implementing the proposed option under which the postentry quarantine growing period for articles of Chrysanthemum spp., Leucanthemella serotina , and Nipponanthemum nipponicum that are imported from certain locations would have been reduced from 6 months to 2 months, others opposed it. Representatives of local and State governments stated that it would be difficult to conduct the required postentry quarantine inspection and produce the appropriate documentation within the 2-month timeframe. One commenter cited the difficulty of detecting the disease at low levels. One commenter stated that it would be difficult to keep shipments of cuttings of Chrysanthemum spp., Leucanthemella serotina , and Nipponanthemum nipponicum that arrive at different times segregated in a postentry quarantine facility. Two commenters stated that the proposed rule should apply only to the importation of breeder material, rather than production material. One commenter stated that it would be difficult to enforce the requirements of the proposed systems approach at foreign production facilities.

Two commenters referred to a separate risk assessment being prepared by the Plant Protection and Quarantine program's Center for Plant Health Science and Technology on the subject of chrysanthemum white rust, and suggested that we wait to take further action pending the completion of that assessment.

Four commenters on the proposed rule addressed the definition of from. All were opposed to the revised definition. Commenters raised issues regarding accounting for nursery stock production practices under which plants are shipped after growing periods of less than a 9-month growing cycle and pointed out inconsistency between the 9-month growing period we proposed to require for an article to be considered “from” a country and the typical 2-year postentry quarantine period required in § 319.37-7. One commenter urged us to adopt an incremental approach to revising the definition, rather than implementing it all at once.

After considering all the comments we received, we have concluded that it is necessary to reexamine the issues associated with the importation into the United States of articles of Chrysanthemum spp., Leucanthemella serotina , and Nipponanthemum nipponicum under the 2-month postentry quarantine period and the issues associated with revising the definition of from . Therefore, we are withdrawing the August 8, 2007, proposed rule referenced above. The concerns and recommendations of all the commenters will be considered if any new proposed regulations regarding the importation of articles of Chrysanthemum spp., Leucanthemella serotina , and Nipponanthemum nipponicum or the definition of from are developed.

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0497; Directorate Identifier 2007-NM-096-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed 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 proposed AD.

We have received reports of numerous cases of cracks found in the skin at the door jamb corners of forward and aft service doors, on certain McDonnell Douglas Model DC-8-61, DC-8-61F, DC-8-63, DC-8-63F, DC-8-71F, and DC-8-73F airplanes. Investigation revealed that cracks were caused by metal fatigue. Fatigue cracking of door jamb corners of the forward and aft service doors, if not detected and corrected, could adversely affect the structural integrity of the airplane.

We have reviewed Boeing Alert Service Bulletin DC8-53A082, dated February 6, 2007. For certain airplanes, the service bulletin describes doing initial non-destructive testing (NDT) to detect cracks of the door jamb corners of the forward and aft service doors, and doing applicable related investigative and corrective actions. The applicable related investigative actions include repeating the NDT or doing repetitive inspections of the repaired door jamb corners, as applicable. The corrective actions include repairing the door jamb corners, and contacting Boeing for certain instructions, as applicable. For certain other airplanes, the service bulletin describes procedures for contacting Boeing for repair or inspection instructions or replacing previously repaired door jamb corners with an applicable repair.

The service bulletin specifies the following compliance times:

• For the initial NDT: Within 2,000 landings or 3 years, whichever occurs first.

• For repetitive NDTs or inspections: Between 532 and 11,325 landings depending on the NDT/inspection method.

• For corrective actions: Before further flight or before the repeat interval for the inspection method depending on the repair condition.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and Service Bulletin.”

Although the service bulletin recommends that operators of airplanes identified as Group 1, Configuration 3, contact the manufacturer for repeat inspection instructions, this proposed AD would require operators to inspect and repair using a method approved by the FAA.

The service bulletin recommends that operators of airplanes identified as Group 1, Configuration 4, contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:

• Using a method that we approve; or

• Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings.

There are about 299 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 55 airplanes of U.S. registry. The proposed testing would take about 1 work-hour per airplane, at an average labor rate of $80 per work-hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $4,400, or $80 per airplane, per testing cycle.

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 have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 that the proposed regulation:

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 a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information that you have provided. We have an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.

If you submit a comment, please include the docket number for this rulemaking (USCG-2007-0074), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, please submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov at any time. Enter the docket number for this rulemaking (USCG-2007-0074) in the Search box, and click “Go >>.” You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or the Waterways Management Division, Coast Guard Sector New York, 212 Coast Guard Drive, Staten Island, NY 10305 between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). 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 .

We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

On September 11, 2001, three commercial aircraft were hijacked and flown into the World Trade Center in New York City, and the Pentagon, inflicting catastrophic human casualties and property damage. National security and intelligence officials warn that future terrorist attacks are likely. The President has continued the national emergencies he declared following the September 11, 2001 terrorist attacks. See, Continuation of the National Emergency with Respect to Certain Terrorist Attacks (72 FR 52465, September 13, 2007); Continuation of the National Emergency With Respect To Persons Who Commit, Threaten To Commit, Or Support Terrorism (72 FR 54205, September 21, 2007). The President also has found pursuant to law, including the Magnuson Act (50 U.S.C. 191 et seq. ), that the security of the United States is endangered by disturbances in international relations that have existed since the 2001 terrorist attacks and such disturbances continue to endanger such relations. Executive Order 13273 of August 21, 2002, Further Amending Executive Order 10173, as Amended, Prescribing Regulations Relating to the Safeguarding of Vessels, Harbors, Ports, and Waterfront Facilities of the United States (67 FR 56215, September 3, 2002).

Following the September 11th attacks, we published a temporary final rule (66 FR 51558, October 10, 2001) that established a temporary regulated navigation area, and safety and security zones in the New York Marine Inspection and Captain of the Port New York Zones. These measures were taken to safeguard human life, vessels and waterfront facilities from sabotage or terrorist acts. That temporary final rule was subsequently revised (67 FR 16016, April 4, 2002; 67 FR 53310, August 15, 2002) to extend its effective period through December 31, 2002.

On November 27, 2002, we published a notice of proposed rulemaking (NPRM) entitled “Safety and Security Zones; New York Marine Inspection Zone and Captain of the Port Zone” in the Federal Register (67 FR 70892). The NPRM proposed to revise safety and security zones around designated vessels to include specific regulations for Liquefied Hazardous Gas (LHG) vessels and Designated Vessels and to establish Safety and Security Zones at Indian Point Nuclear Power Station, U.S. Coast Guard Cutters and Shore Facilities, commercial waterfront facilities, Liberty and Ellis Islands, bridge piers and abutments, overhead power cable towers, tunnel ventilator and the New York City Passenger Ship Terminal, Hudson River, NY. We received no letters commenting on the proposed rule. No public hearing was requested and none was held. On January 22, 2003, we published a final rule entitled “Safety and Security Zones; New York Marine Inspection Zone and Captain of the Port Zone” in the Federal Register (68 FR 2886). That rule established permanent safety and security zones at the locations above.

The Coast Guard (USCG) proposes to make 11 distinct changes to current safety and security zone regulations in 33 CFR part 165 to improve maritime security and reduce unnecessary burdens imposed by current security zones.

Disestablishment of 33 CFR 165.160: Safety and security zones around LHG Vessels, LHG Facilities, and Designated Vessels are currently codified in 33 CFR 165.160. This proposed rule would revise and relocate each of these § 165.160 provisions to a single New York Marine Inspection Zone and Captain of the Port safety and security zone regulation found at 33 CFR 165.169, rendering the current regulations found at 33 CFR 165.160 unnecessary. This regulatory change is proposed to consolidate similar regulations for the benefit of enforcement authorities and the regulated public.

Commercial Waterfront Facilities: As discussed earlier in this preamble, the safety and security zones around commercial waterfront facilities were made permanent by publication of a final rule in the Federal Register on January 22, 2003. This measure provides safety and security zones for, “* * * all piers, wharves, docks and similar structures to which barge, ferry or other commercial vessels may be secured * * *” (33 CFR 165.169(a) (3)) These measures were deemed appropriate based on the threat and risk analyses available to the Captain of the Port at the time. The notice of proposed rulemaking for that regulatory action was published in the Federal Register on November 27, 2002 (67 FR 70892), in preparation for the expiration of the temporary safety and security zone regulations on December 31, 2002.

On November 25, 2002, President George W. Bush signed into effect Public Law 107-295, the Maritime Transportation Security Act (MTSA) of 2002, which required the Secretary of the Department in which the Coast Guard is operating to issue an interim rule as a temporary regulation to implement the Port Security Section of the Act. To meet this requirement, on July 1, 2003, the Coast Guard published six interim rules in the Federal Register (68 FR 39240, 39284, 39292, 39315, 39338, and 39353). To determine the applicability of these regulations to waterfront facilities, the Coast Guard conducted an exhaustive, multi-tiered risk analysis. The details of this assessment can be found in the “Applicability of National Maritime Security Initiatives” section of the interim rule titled “Implementation of National Maritime Security Initiatives” (68 FR 39240, July 1, 2003).

On October 22, 2003 the Coast Guard published a final rule, entitled “Facility Security” in the Federal Register (68 FR 60515), establishing permanent regulations for facility security at 33 CFR part 105. These MTSA regulations included specific measures for security at a particular group of waterfront facilities, based on the comprehensive risk-based assessment referenced above. Section 105.200 of 33 CFR requires owners or operators of these facilities to, among other things, designate Facility Security Officers (FSO) for facilities, develop Facility Security Plans (FSP) based on security assessments and surveys, implement security measures specific to the facility's operations, and comply with Maritime Security Levels. Additionally, 33 CFR 105.275 mandates that facilities subject to the MTSA must have the capability to continuously monitor, among other things, the facility's approaches on land and water, and vessels at the facility and areas surrounding the vessels.

A large number of areas that currently fall within the definition of Commercial Waterfront Facility under 33 CFR 165.169 and are thereby protected by a Coast Guard safety and security zone, are areas proposed for or currently designed to provide recreational and public waterway access. A great variety of piers, wharves, docks, and bulkheads, designed and utilized primarily as recreational areas are capable of accepting commercial vessels as currently defined in regulation, even though such operations rarely, if ever, occur. Safety and security zones in these areas unduly restrict the general public's access, cause confusion as to which areas are regulated, and create significant, unwarranted enforcement burdens on Coast Guard and local law enforcement resources. Furthermore, Resolution 05-01 of the U.S. Coast Guard Commandant's Navigation Safety Advisory Council (NAVSAC), contained in the September 2005 NAVSAC Meeting Summary (available online at http://homeport.uscg.mil ), recommended that the Coast Guard conduct a review of safety and security zones to ensure modification or removal of zones that unduly restrict commercial vessel operations or are no longer needed following enactment of the MTSA, 2002 regulations.

For these reasons, we propose to revise the language governing facility safety and security zones to remove the broad definition currently contained within the regulations, largely replacing it with the class of facilities determined to require additional security measures by the MTSA regulations developed for this purpose. This tailored class of commercial waterfront facilities would only include those facilities regulated by the MTSA facility security regulations codified in 33 CFR part 105 and those facilities designated as a “public access facility” under that definition in 33 CFR 101.105. For public identification purposes, all of these facilities are required to have signs posted along the shoreline, facing the water, indicating that there is a 25-yard waterfront security zone surrounding the facilities.

Liberty and Ellis Islands: The current 150-yard security zones around Liberty and Ellis Islands became effective on January 1, 2003, as enacted by a final rule entitled “Safety and Security Zones; New York Marine Inspection Zone and Captain of the Port Zone” published in the Federal Register (68 FR 2886, January 22, 2003). On October 1, 2003, the United States Department of the Interior's National Park Service requested the 150-yard security zones around Liberty and Ellis Islands, currently found in 33 CFR 165.169(a)(4), be expanded to 400 yards. Additionally, they requested that all recreational vessels and other watercraft be prohibited from anchoring in the area surrounding Liberty and Ellis Islands or at least be restricted to anchoring no closer than 1,000 yards from the islands. They reported that the high volume of boat traffic still authorized to operate in close proximity of the two islands made it difficult to provide a secure environment for these historic sites and the public that routinely visits them. This request was submitted via the U.S. Park Police (USPP) who is responsible for security at the two islands.

On November 25, 2003, the Coast Guard met representatives from the USPP to discuss their proposal. The Coast Guard and USPP agreed upon the following conditions for the proposed expansion of the boundary of the safety/security zone from 150 yards to 400 yards:

• Marine events that have normally been held within 400 yards of either island would be allowed to continue after the marine event application is approved by the Captain of the Port New York.

• No new marine events would be authorized without collaborative approval of both the USCG and USPP.

• The USPP would provide unclassified information regarding their blast radius data and security information for public dissemination.

• The USPP would share technology links with the Coast Guard Vessel Traffic Center New York to enhance security.

• An additional meeting would be scheduled with annual event sponsors and sailing schools to discuss these issues and to provide alternative locations for their vessels and events.

On December 4, 2003, the Coast Guard met with the USPP, Manhattan Sailing Club, Manhattan Sailing School, and the Sandy Hook Bay Catamaran Club. The Jersey City Office of Cultural Affairs and the Liberty World Challenge sponsor were invited but could not attend. Over 50 marine events are held each year within the proposed expanded security zone. Six event sponsors hold most of these events and the majority of these are sponsored by the Manhattan Yacht Club in the form of weekly sailing regattas.

The USPP reiterated their request for the zone expansion to 400 yards due to a threat assessment conducted by the U.S. Department of Defense's Defense Threat Reduction Agency. The analysis concluded that an explosion from a vessel within close proximity to Liberty or Ellis Island would result in loss of life and injury to visitors and staff on the islands as well as severe structural damage to the Statue of Liberty and numerous historic buildings on Ellis Island. These include the American Family Immigration History Center containing manifests of 25 million immigrants, passengers, and crew members who entered New York Harbor between 1892 and 1924 and 30 other remaining buildings planned for reuse. The plan is available online at: http://parkplanning.nps.gov/projectHome.cfm?parkID=277&projectId=18591. Information from the Defense Threat Reduction Agency assessment is available in the docket available at the location under ADDRESSES . The proposed expanded security zone would greatly reduce the potential impacts of such a blast and improve the USPP's response capability to incursions of the security zone.

The Coast Guard and USPP agreed to the following conditions pending establishment of the proposed expanded security zone:

• Annual events would be authorized upon review, and approval of, the sponsor's marine event application. This review would additionally include a review of all personnel and equipment participating within the zone using the measures for granting security zone access at all other security zones within the Captain of the Port Zone.

• Only new events with a regional or national significance would be authorized and only after both the Coast Guard and USPP approve the request.

• The Statue of Liberty Race, sponsored by the Sandy Hook Bay Catamaran Club, would be required to place buoys at the site of the current 150-yard security zone to help participants maintain a distance of 150 yards from the Islands during the race.

At the December 4, 2003, meeting, and in a follow-up letter dated December 8, 2003, the Manhattan Sailing Club Commodore questioned the effectiveness of the proposed zone in a realistic threat situation. He believed the current 150-yard security zones were to be temporary measures and was adamantly opposed to their expansion. He stated that the protected cove north of Ellis Island is critical to all local sailing school operations as it provided the only waters in the harbor out of the commercial shipping lanes with enough depth and protection from the current. He stated that the proposed expanded zone would force recreational vessels into the shipping channels and “significantly impact the quality of life” of NYC recreational sailors. He also stated that security measures had been reduced at the Holland Tunnel and the AT&T Building while heavy barriers at the New York Stock Exchange had been replaced with attractive iron railings and that there had been no new justification to put forth any expansion of the security zones in New York Harbor. Additionally, he asked why there is any security zone around Ellis Island as it is not the same target threat and does not have the same security needs.

In a subsequent follow-up letter dated December 18, 2003, the Commodore stated that the sailing club held an emergency Board of Directors meeting on December 15, 2003. It was the Board's opinion that the security zones should not be increased as they had not seen any evidence why an increase would be in the best interests of the harbor. Along with the previously stated remarks they also stated the club had invested more than $500,000 in their mooring barge to the north of Ellis Island for club activities and that any expansion of the security zone or rescinding of the Federally Designated Anchorages would make it no longer feasible to moor their sailing barge in the cove and would jeopardize their ability to generate income to repay construction loans.

On December 29, 2003, the USCG responded to the two letters submitted by the Manhattan Sailing Club. The Coast Guard stated that the disestablishment of the current 150-yard security zones around Liberty and Ellis Islands were not feasible at that time and would likely remain in effect for an undetermined time.

On January 14, 2004, the USCG notified the USPP, in consultation with the First Coast Guard District Homeland Security Office, that the USCG would propose the security zones be expanded around Liberty and Ellis Islands out to 400-yards, with the exception that the northern boundary of Ellis Island would only extend 250 yards, being that from a maritime Homeland Security perspective Ellis Island is not as great a security risk as is the Statue of Liberty. The increase of 100 yards on the north side of Ellis Island would allow for the continued recreational use of the Manhattan Sailing Club barge by the sailing community.

On January 27, 2004, the USPP submitted a letter to the USCG reiterating their request for a 400-yard security zone around Liberty and Ellis Islands due to the Blast Analysis discussed above. The USPP also confirmed they would notify the USCG regarding special events that involve either Liberty or Ellis Island when additional ferries would be in use.

On February 24, 2004, the Coast Guard received another letter from the USPP. The letter stated that although the 400-yard zone around both islands was preferred, the USPP felt the 250-yard zone north of Ellis Island was acceptable and would hopefully satisfy the concerns of all interested parties. The USPP agreed to host a public meeting with interested members of the maritime community to discuss the security zone expansion around Liberty and Ellis Island, and provide the Coast Guard with final recommendations following that meeting. Subsequently, the USPP became involved in extensive shore side security improvements surrounding the reopening of Liberty Island to visitors, and the public meeting concerning waterside security enhancements was postponed pending final resolution of those more immediate security concerns.

In September 2005, presentations concerning proposed changes to the current security zones were given to the New York/New Jersey Area Maritime Security Committee and the Harbor Safety, Navigation and Operations Committee. Other stakeholders in the maritime community were also reengaged. Following a meeting between the Coast Guard, the USPP, and the Department of Defense (DoD) Threat Reduction Agency, new security zone dimensions were developed that balanced the security requirements of the USPP with the desires of the maritime community.

As an outcome of these discussions, the Coast Guard proposes to merge the existing Liberty and Ellis Island security zones, concurrent to an expansion of the Liberty Island Zone, in order to provide the minimum distances required to ensure the protection of these national monuments.

NYC Passenger Ship Terminal: The NYC Passenger Ship Terminal safety and security zones are currently codified at 33 CFR 165.169(a)(6). The area covered by the current safety and security zone extends over 250 yards from the facility. However, this zone is only enforced when cruise ships are present.

In the interest of protecting this high-interest facility, we propose to revise the regulation to make this zone subject to enforcement at all times. In so doing, and to provide for the safe use of the waterway by all parties, the dimensions of this permanent zone would be significantly reduced to reflect the current protection needs of the Passenger Ship Terminal.

The proposed revision will reduce the zone size to extend up to 150 yards into the waterway. The northern boundary of the proposed zone would move from Pier 96 south to approximately 50 yards north of Pier 92, opening a 50-yard band of waterway for public access to the south face of Pier 94. The southern boundary would be moved north from Pier 84 to include a 25-yard perimeter south of the Intrepid Sea, Air, and Space Museum, opening a 50-yard band of waterway for public access north of Pier 84.

A permanently activated zone in this area is necessary, in part, due to the varied mooring configurations of cruise ships parallel to and inside the Passenger Ship Terminal Piers. Vessels transiting on the Hudson River cannot always easily judge whether ships are berthed, and thereby whether the current safety and security zone is activated and therefore subject to enforcement. This fact also justifies the maintenance of a zone greater than the 25-yard MTSA Facility zone, sufficient for other cruise ship berthing facilities at times where no cruise ship is present. A permanent zone would also allow the FSO at the Passenger Ship Terminal to work with the Captain of the Port to remove suspicious vessels, even when no cruise ship is at berth.

LHG Vessels: Safety and security zones for LHG Vessels are currently codified in 33 CFR 165.160. For reasons discussed elsewhere in this preamble, we propose to move these regulations with revisions to the regulations found at 33 CFR 165.169. Revisions are also proposed to provide a detailed definition of “LHG Vessel,” and to ensure the regulation conforms to enforcement practices. The language regarding LHG Facilities will be removed, as these facilities will continue to be protected by safety and security zones contained in 33 CFR part 105 (MTSA, 2002 regulations).

Cruise Ships: Though no specific regulation exists within the New York Captain of the Port Zone for cruise ships, 33 CFR 165.160 does have provisions for Designated Vessels, among which are vessels with a passenger capacity of over 500. Following many other Captains of the Port throughout the Nation, we propose to incorporate specific language for the protection of the many cruise ships and high-capacity passenger vessels that visit the Port of New York and New Jersey.

The current Designated Vessel safety and security zones require the Captain of the Port to specifically designate a particular vessel to be covered by a Designated Vessel safety and security zone. This proposed rule would define the term “cruise ship” so as to include that class of vessel readily identifiable to the regulated public as such. This proposed rule would also render the safety and security zones activated and subject to enforcement at all times when such a vessel is within the navigable waters of the United States (see 33 CFR 2.36(a) to include the 12 NM territorial sea) in the New York Captain of the Port Zone (33 CFR 3.05-30). This safety and security zone is necessary to provide security protection for cruise ships at berth in locations where full, permanent security zones around the facilities would be overly restrictive when no cruise ship is present, and thereby not justified in the interest of the Port as a whole. This proposed change would decrease the size of the security zone around the NY Passenger Ship Terminal when passenger ships are not docked there as a reduced zone is sufficient to provide the necessary facility security. The reduced size of the zone allows for greater movement of vessels in a highly congested area. Similarly, the provision of a security zone around cruise ships within the New York Captain of the Port Zone removes the need to maintain a security zone around the Brooklyn Cruise Terminal on Buttermilk Channel when cruise ships are not present. Otherwise, to establish a similar permanent security zone around the Brooklyn Cruise Terminal on Buttermilk Channel would effectively close down 75 percent of the 500-foot-wide 40-foot project channel. This would force deeper draft vessels to transit between Governors Island and The Battery in Manhattan en route to facilities on the East River and create numerous close quarters passing situations between the ships and commuter ferry operations in the vicinity of The Battery. Additionally, vessels calling on the Red Hook Container Terminal, adjacent to the Brooklyn Cruise Terminal, would then need to navigate around Dimond Reef which is not considered a safe navigational practice for deep draft vessels by any federal or state licensed pilot organization.

Designated Vessels: Currently, under the regulations found at 33 CFR 165.160, the Captain of the Port may designate certain vessels to receive a 100-yard safety and security zone. For reasons discussed elsewhere in this preamble, we propose to revise these regulations and move them to 33 CFR 165.169(a)(15). The proposed regulation would limit the type of vessels that may be so designated to small passenger vessels (authorized to carry more than 400 passengers and less than 200 feet in length), vessels carrying foreign dignitaries or government officials requiring protection, vessels carrying petroleum products, chemicals or other hazardous cargo, including, but not limited to, cargo ships and barges carrying bridge spans and large shore side container cranes that significantly increase the length or beam of the vessel and decrease its maneuverability. We propose to remove the existing language regarding Designated Vessels as being certificated to carry 500 or more passengers as these types of vessels would be covered in the proposed regulation for Cruise Ships. These proposed Designated Vessels would be readily recognizable either by the large crane or bridge structures onboard or, for the vessels carrying flammable or hazardous cargo, by the flying of the Bravo flag (red international signal pennant) from the outermost halyard (above the pilot house) where it can most easily be seen. The Captain of the Port would also notify the maritime community of periods during which this zone would be enforced by methods in accordance with 33 CFR 165.7. Similar to the proposed rule for cruise ships, these safety and security zones would be activated and subject to enforcement at all times when such a vessel is within the navigable waters of the United States in the New York Captain of the Port Zone.

134th Street Pipeline Metering and Regulating Station: Although not specifically regulated under MTSA 2002, we propose to establish a 25-yard security zone surrounding the 134th Street Pipeline Metering and Regulating Station Pier. This security zone is currently established under a regulation for commercial waterfront facilities found in 33 CFR 165.169(a)(3). Under a change proposed to that regulation discussed earlier in this preamble, that coverage would be terminated as this pipeline station does not currently fall under the provisions of 33 CFR part 105 (MTSA Facilities). A security zone at this facility, which is primarily regulated by the Federal Energy Regulatory Commission, is necessary to ensure the continued safety and security of navigation and the large number of industrial, commercial, and residential customers that would be affected by damage to this pipeline.

The Captain of the Port will be assisted in monitoring the safety and security zone by the pipeline operating company and the New York City Police Department. The proposed security zone would establish unambiguous Federal regulation to allow the Captain of the Port to assist pipeline security personnel and NYPD in preventing unauthorized waterside access to this facility.

Naval Weapons Station Earle: The Coast Guard first established a Security Zone restriction in this location on July 1, 1972 (under 33 CFR 127.301, 37 FR 16675, Aug. 18, 1972). This regulation was subsequently re-designated by the Coast Guard on June 30, 1982 (33 CFR 165.301, 47 FR 29659, July 8, 1982) and, again on July 6, 1987 (52 FR 25216). This security zone is currently codified at 33 CFR 165.130.

On July 28, 2003, the United States Army Corps of Engineers created a Restricted Area around this Naval installation, published at 33 CFR 334.102 (68 FR 37970, June 26, 2003). The Army Corps of Engineers' Restricted Area covers a portion of the waterway slightly larger than the current Coast Guard Security Zone. We propose to modify the Coast Guard Security Zone found at 33 CFR 165.130 to align with that of the Army Corps of Engineers to provide unambiguous concurrent enforcement capability for both Coast Guard and DoD patrol craft.

Additional Consistency Modifications: We propose to tailor the scope of specific safety and security zones to optimize effective enforcement and to harmonize these zones with the assessment of facilities covered by 33 CFR part 105 (MTSA Regulations) that warrant increased security protection. In addition, the safety and security zones described in 33 CFR 165.160 would be revised and moved into 33 CFR 165.169 to consolidate similar safety and security zone-related regulations within one New York Marine Inspection and Captain of the Port Zone safety and security zone regulation. Once consolidated, the existing regulations in 33 CFR 165.160 would be removed.

Waterfront Heliports: Additionally, although not specifically regulated under MTSA 2002, we propose to establish 25-yard security zones surrounding the four waterfront heliports currently operating at Manhattan Island and Jersey City, New Jersey by creating a separate regulation for these heliports in 33 CFR 165.169(a)(17). These security zones are currently covered under regulations for commercial waterfront facilities in 33 CFR 165.169(a)(3). However, under the proposed changes to that regulation discussed above, the coverage would inadvertently be terminated because not all heliports currently fall under the provisions of 33 CFR part 105 (MTSA Facilities). Therefore, this proposed section is necessary to ensure security zones for these facilities remain in place as although the waterfront heliports are primarily regulated by the Transportation Security Administration, the security zones are necessary to ensure the continued safety and security of both general aviation as well as recently-approved and planned commuter flight services.

The Captain of the Port will be assisted in monitoring the safety and security zones around these heliports by the FSO or other person responsible for security at each facility. The proposed security zone would establish unambiguous Federal regulation to allow the Captain of the Port to assist facility security personnel in preventing unauthorized waterside access to these facilities.

We have discussed the nature of the proposed rule above in our discussion of the background and purpose section. This section describes the specific revisions that would be made by the proposed regulatory text that appears at the end of this document.

Disestablishment of 33 CFR 165.160: The Liquefied Hazardous Gas vessel or LHG facility, and Designated Vessels regulations in 33 CFR 165.160 would be revised and modified and moved into 33 CFR 165.169(a)(13) through (a)(15). The specific changes to be reflected in the new proposed regulations are discussed in the LHG Vessels, Cruise ships, and Designated vessels sections below.

Commercial Waterfront Facilities: Under this proposed regulation, we would revise 33 CFR 165.169(a)(3) to allow certain vessels to enter the security zones around Commercial Waterfront Facilities with the authorization of the Facility Security Officer (FSO). Such authorization from the FSO would allow entry into the security zone without requiring express Captain of the Port approval. Active participation in authorized vessel-to-facility transfer operations, authorized vessel docking or undocking operations, authorized vessel to vessel transfer operations, and other routine waterfront operations specified in the Captain of the Port approved Facility Security Plan would all be permitted without individual vetting and approval of the Captain of the Port. It would be a violation of this safety and security zone regulation for any of these activities to occur within the safety and security zone without FSO authorization. For all other activities that vessels or personnel would require access to the safety and security zone, the Captain of the Port would require confirmation from the FSO that the personnel and vessels intending to occupy the safety and security zone have been screened according to the previously established measures for granting facility access. Such measures for granting facility access must be approved by the Coast Guard as part of the facility's Facility Security Plan (FSP) and be appropriate to the given Maritime Security Level.

Liberty and Ellis Islands: Liberty and Ellis Island are currently provided a safety and security zone extending 150 yards around each island in 33 CFR 165.169(a)(4). We propose to revise that regulation and merge the two separate zones into a single zone while expanding the size of the security zone around Liberty Island. The resultant security zone would maintain current boundaries north and east of Ellis Island and increase the security zone size east and south of Liberty Island, to include: waters up to 400 yards east of Liberty Island; the connecting waters between Ellis and Liberty Island; all waters north of the National Dock Channel; and all waters between Liberty and Ellis Islands and Liberty State Park, New Jersey.

The proposed safety and security zone is necessary to protect each Island, the bridge between Liberty State Park and Ellis Island, authorized sightseeing vessels operating at each island, others in the maritime community, and the surrounding communities from subversive or terrorist attack against the islands that could potentially cause serious negative impact to vessels, the port, or the environment. Annual marine events and fireworks displays within approved firework zones will continue to be permitted through the Coast Guard marine event permitting process, however all event participants and equipment will be subject to Captain of the Port and or U. S. Park Police review for security zone access. New events for which access to this area is necessary will be considered in consultation with the USPP, and an application for a Coast Guard marine event permit may be denied for security reasons as a result of such consultation. Vessels would not be precluded from mooring at or getting underway from commercial or recreational piers in the vicinity, but outside of the zone.

NYC Passenger Ship Terminal: Currently, the Passenger Ship Terminal safety and security zone found at 33 CFR 165.169(a)(6) extends approximately 280 yards into the Hudson River from Pier 96 to Pier 84 and is activated only when a cruise ship is present at berth or when the Intrepid Sea, Air and Space Museum is being utilized as an Emergency Operations Center. To eliminate undue restrictions on commercial and recreational navigation, we propose to reduce the zone to extend to only a maximum of 150 yards into the Hudson River from approximately 50 yards north of Pier 92 south to approximately 50 yards south of Pier 86, including a 25 yard perimeter around the Intrepid Sea, Air, and Space Museum. We further propose removing the activation criteria so that the zone is permanently enforceable. This change is proposed to offer an unchanging zone, which would enhance compliance by the regulated public and eliminate ambiguity for enforcement personnel.

LHG Vessels: Safety and security zone regulations for LHG Vessels and Facilities are currently found at 33 CFR 165.160. We propose to relocate these regulations to 33 CFR 165.169(a)(13). Additionally, the current regulation establishes a 200-yard security zone around all LHG Vessels and Facilities. This proposed revision would limit the security zone around moored LHG Vessels to 100-yards due to the constraints on vessel traffic movement around such facilities, and in keeping with current enforcement practice. Language incorporating the LHG facility itself will be removed, as these facilities will be protected when no LHG Vessel is present, by the MTSA Facility safety and security zone discussed earlier in this preamble.

The enforcement period for the proposed revised regulation would be at all times while the LHG vessel is within the navigable waters of the United States (see 33 CFR 2.36(a) to include the 12 NM territorial sea) in the New York Captain of the Port Zone (33 CFR 3.05-30), and notice will continue to be made in accordance with 33 CFR 165.7. These tank vessels are readily identifiable to the public by the requirement that they fly the Bravo flag (red international signal pennant) from an outermost halyard above the pilothouse where it can most easily be seen.

Cruise Ships: There is currently no specific regulation in the New York Captain of the Port Zone for safety and security around cruise ships. Current safety and security zone regulations for Designated Vessels in 33 CFR 165.160 include vessels certificated to carry 500 or more passengers. We propose to create specific regulations for cruise ships, to fall under 33 CFR 165.169.

We propose to define a “cruise ship” as a passenger vessel (as defined in 46 U.S.C. 2101(22)) that is authorized to carry more than 400 passengers for hire and is 200 feet or more in length. This definition of “cruise ship” will include ferries (as defined in 46 CFR 2.10-25) that are authorized to carry more than 400 passengers for hire and are 200 feet or more in length. Similar to the LHG Vessel zone, this proposed zone would be activated and subject to enforcement at all times a cruise ship is underway, anchored or moored within the navigable waters of the United States in the New York Captain of the Port Zone.

Designated Vessels: Safety and security zone regulations for Designated Vessels are currently found in 33 CFR 165.160. We propose to revise and relocate these regulations to 33 CFR 165.169(a)(15). The current regulation limits the application of Designated Vessel status to vessels certificated to carry 500 or more passengers; vessels carrying government officials or dignitaries requiring protection by the U.S. Secret Service, or other Federal, State or local law enforcement agency; and barges or ships carrying petroleum products, chemicals, or other hazardous cargo. The proposed changes to this regulation would remove the language regarding vessels certificated to carry 500 or more passengers as this would be covered elsewhere in the regulations for Cruise Ships, and add passenger vessels authorized to carry more than 400 passengers and are less than 200 feet in length. In addition, the proposed change would clarify that ships and barges carrying petroleum products, chemicals or other hazardous cargo would be identifiable to the public by the requirement that the vessel fly the Bravo flag (red international signal pennant) from an outermost halyard above the pilot house where it can most easily be seen. Vessels carrying government officials, dignitaries requiring protection, or passenger vessels as defined in 46 U.S.C. 2101(22), that are authorized to carry more than 400 passengers and are less than 200 feet in length, will be recognizable to the public as the vessel will be escorted by a federal, state or local law enforcement vessel identifiable by flashing light, siren, special markings or other means that identify the vessel as engaged in law enforcement or security operations.

134th Street Pipeline Metering and Regulating Station: Although not specifically regulated under MTSA 2002, we propose to retain the 25-yard security zone surrounding the 134th Street Pipeline Metering and Regulating Station Pier. This security zone is currently covered under regulation pertaining to commercial waterfront facilities found in 33 CFR 165.169(a)(3). Under a change proposed to that regulation discussed earlier in this preamble, that coverage would be terminated because this pipeline station does not currently fall under the provisions of 33 CFR part 105 (MTSA Facilities). A security zone at this facility, which is primarily regulated by the Federal Energy Regulatory Commission, is necessary to ensure the continued safety and security of navigation and the large number of industrial, commercial, and residential customers that would be affected by an attack on this pipeline.

The Captain of the Port will be assisted in monitoring the safety and security zone by the pipeline operating company and the New York City Police Department. The proposed security zone would establish unambiguous Federal regulation to allow the Captain of the Port to assist pipeline security personnel and NYPD in preventing unauthorized waterside access to this facility.

Naval Weapons Station Earle: Modifications to the security zone found at 33 CFR 165.130(a) are necessary to align that zone's dimensions with those of the Restricted Area Regulations found in 33 CFR 334.102. This alignment would provide unambiguous concurrent enforcement capability for both Coast Guard and Department of Defense (DoD) patrol craft assigned waterside security responsibilities in this area. Specifically the boundaries of the security zone would be altered to include all navigable waters of Sandy Hook Bay within 750 yards of all Naval Weapons Station Earle piers and within Terminal Channel leading to the pier at Naval Weapons Station Earle, New Jersey.

Additional Consistency Modifications Within 33 CFR 165.169: We propose to make certain changes to increase the clarity of 33 CFR 165.169. Paragraph (b)(3) of that section applies solely to the safety and security zone codified in 33 CFR 165.169(a)(3). Paragraph (b)(3) would be removed in light of the proposed revisions to paragraph (a)(3). Paragraphs (b)(4) and (b)(5) of 33 CFR 165.169, both of which apply solely to the safety and security zone codified at 33 CFR 165.169(a)(12), would become part of paragraph (a)(12). Paragraph 165.169(c) would similarly be moved to become part of 33 CFR 165.169(a)(12).

Waterfront Heliports: Finally, although not specifically regulated under MTSA 2002, we propose to retain the 25-yard security zones surrounding the four waterfront heliports currently operating at Manhattan Island and Jersey City, New Jersey. These security zones are currently covered under regulation pertaining to commercial waterfront facilities found in 33 CFR 165.169(a)(3). Security zones at these facilities, which are primarily regulated by the Transportation Security Administration, are necessary to ensure the continued safety and security of both general aviation as well as recently-approved and currently-considered commuter flight services. Consultation with the Transportation Security Administration and the Port Authority of New York and New Jersey indicated that retention of the current 25-yard security zones is warranted.

The Captain of the Port will be assisted in monitoring the safety and security zones around these heliports by the FSO or other person responsible for security at each facility. The proposed security zone would establish unambiguous Federal regulation to allow the Captain of the Port to assist facility security personnel in preventing unauthorized waterside access to these facilities.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analysis based on 13 of these statutes or executive orders.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. This finding is based on the following facts. Access to all zones modified within the proposed regulation may be granted through coordination with the Captain of the Port. With regard to the changes to the Commercial Waterfront Facilities, this proposed rule would reduce the number of safety and security zones around commercial waterfront facilities, thereby reducing the level of regulatory impact. With regard to the expansion of the zone at Liberty and Ellis Islands, this proposed rule would not infringe on any Federal channel and procedures would be enacted to provide regulated public access to those areas. With regard to the changes proposed for the New York City Passenger Ship Terminal safety and security zone, the proposed rule would reduce the size of the regulated area. With regard to the changes proposed for the inclusion of LHG Vessels, the proposed regulation would substitute less restrictive regulations for those currently in effect. With regard to the addition of regulations relating to cruise ships, the proposed rule would in effect move the current regulation regarding cruise ships currently contained in 33 CFR part 169.160 to the new section with modifications to the definition. In effect, the rule does not create a new type of security zone, rather, it moves an existing regulation to another section of the code, thereby creating no significant change to the security zone requirements. With regard to the changes proposed for the inclusion of the 134th Street Pipeline Metering and Regulating Station pier, vessels will be able to transit around the zone. With regard to the changes proposed for the modification to the Security Zone at Naval Weapons Station Earle, Sandy Hook Bay, New Jersey, this regulation proposes only to align restrictions applying to a portion of the waterway already restricted by other Federal regulation.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would 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 proposed rule would not have a significant economic impact on a substantial number of small entities.

This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in portions of the New York Captain of the Port Zone deemed by the Captain of the Port to present an unacceptable level of risk to the safety and security of the general public. However, these safety and security zones would not have a significant economic impact on a substantial number of small entities for the reasons discussed in the Regulatory Evaluation section above.

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 the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Commander M. McBrady, Waterways Management Division, Coast Guard Sector New York (718) 354-2353. 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 proposed rule would call for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other, similar actions. The title and description of the information collections, a description of those who must collect the information, and an estimate of the total annual burden follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection.

Title: Safety and Security Zones: New York Marine Inspection Zone and Captain of the Port Zone.

Summary of the Collection of Information: This information collection provides the basis for the Captain of the Port to asses the security risks posed by allowing a vessel to enter the security zones established for the Part 105 Facilities, New York City Passenger Ship Terminal, the 134th Street Pipeline Metering and Regulation Station and the Waterfront Heliports. This risk assessment guides the COTP in deciding whether or not to authorize entry to the requesting person or vessel.

Need for Information: In accordance with 33 U.S.C. 1226, the U.S. Coast Guard may establish security and safety zones and control access to such zones. The information collection allows the Captain of the Port to assess security risks of allowing persons or vessels to access an established zone.

Proposed Use of Information: The information collection will be used to monitor what vessels and numbers of individuals are within an established security zone.

Description of the Respondents: Respondents will be vessel owners or operators, and contractors.

Number of Respondents: Eighty.

Frequency of Response: Two times per week.

Burden of Response: Approximately 5 minutes per response. Vessel owners or operators and contractors report that they are entering the security zone to Coast Guard Sector New York by VHF Marine Radio or telephone at the beginning of their project. The information collected includes name of caller and contact information, name and description of vessel, location of the security zone, number of persons entering the security zone, reason for entering the security zone, and the expected amount of time within the security zone. There is no instruction review necessary for this report. Gathering and maintaining data would be conducted by the reporting source on the way to the security zone. It is expected that gathering this information would require minimal effort and no extra financial resources.

Estimate of Total Annual Burden: Nine hours.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted a copy of this proposed rule to the Office of Management and Budget (OMB) for its review of the collection of information.

We ask for public comment on the proposed collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection.

If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under ADDRESSES , by the date under DATES .

You need not respond to a collection of information unless it displays a currently valid control number from OMB. Before the requirements for this collection of information become effective, we will publish notice in the Federal Register of OMB's decision to approve, modify, or disapprove the collection.

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

This proposed 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 proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed 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 invite your comments on how this proposed rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

We have analyzed this proposed 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 would be 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed 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 made a preliminary determination that this action is not likely to have a significant effect on the human environment. A preliminary “Environmental Analysis Check List” supporting this preliminary determination is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery or a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [USCG-2008-0326], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Commander, Coast Guard Sector Buffalo at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on accidents that have occurred in other Captain of the Port zones, and the explosive hazards of fireworks, the Captain of the Port Buffalo has determined fireworks launches in close proximity to watercraft pose significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks.

The proposed rule is necessary to ensure the safety of vessels and people during the Rochester Harborfest Fireworks. The proposed safety zone is described in subparagraphs (1) of this regulation. The proposed safety zone will be enforced only immediately before and during the event which poses hazard to the public and only upon notice by the Captain of the Port. The Captain of the Port Buffalo will cause notice of enforcement of the safety zone established by this section to be made by all appropriate means to the affected segments of the public including publication in the Federal Register in accordance with 33 CFR 165.7(a). Such means of notification may also include, but are not limited to, Broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port will issue a Broadcast Notice to Mariners notifying the public when enforcement of the safety zone established by this section is suspended.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary.

The Coast Guard's use of this safety zone will be of short duration and designed to minimize the impact on navigable waters. This safety zone will only be enforced immediately before and during the time the event occurs. Furthermore, this safety zone has been designed to allow vessels to transit unrestricted to portions of the waterway not affected by the safety zone. The Coast Guard expects insignificant adverse impact to mariners from the activation of this safety zone.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would 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 proposed rule would not have a significant economic impact on a substantial number of small entities.

This proposed rule would affect the following entities, some of which might be small entities: the owners of operators of vessels intending to transit or anchor in the area designated as the safety zone in subparagraph (1) during the date and time the safety zone is being enforced. This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. The safety zone in this proposed rule will be in effect only for a short period of time. The safety zone has been designed to allow traffic to pass safely around the zone whenever possible and vessels will be allowed to pass through the zone with the permission of the Captain of the Port.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed 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 the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Tracy Wirth, Prevention Department, Coast Guard Sector Buffalo, Buffalo, NY at (716) 843-9573. 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 would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed 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 proposed rule will not result in such expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.

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

This proposed 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 proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed 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.

The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these special local regulations and fishing rights protection need not be incompatible. We have also determined that this Proposed Rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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. Nevertheless, Indian Tribes that have questions concerning the provisions of this Proposed Rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT .

We have analyzed this proposed 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 would be 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant impact on the human environment. A preliminary “Environmental Analysis Check List” is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from the proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [USCG-2008-0328], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Commander, Coast Guard Sector Buffalo at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

Temporary safety zones are necessary to ensure the safety of vessels and spectators from the hazards associated with powerboat races. Based on recent accidents that have occurred in other Captain of the Port zones, the Captain of the Port Buffalo, has determined powerboat races pose significant risks to public safety and property. The likely combination of large numbers of recreational vessels, congested waterways, and alcohol use, could easily result in serious injuries or fatalities.

The proposed rule and associated safety zones are necessary to ensure the safety of vessels and people during events in the Captain of the Port Buffalo area of responsibility that may pose a hazard to the public. The proposed safety zone is described in subparagraph (1) of this regulation. The proposed safety zone will be enforced only immediately before and during the event which poses hazard to the public and only upon notice by the Captain of the Port. The Captain of the Port Buffalo will cause notice of enforcement of the safety zone established by this section to be made by all appropriate means to the affected segments of the public including publication in the Federal Register in accordance with 33 CFR 165.7(a). Such means of notification may also include, but are not limited to, Broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port will issue a Broadcast Notice to Mariners notifying the public when enforcement of the safety zone established by this section is suspended.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary.

The Coast Guard's use of this safety zone will be periodic in nature, of short duration, and designed to minimize the impact on navigable waters. This safety zone will only be enforced immediately before and during the time the event occurs. Furthermore, this safety zone has been designed to allow vessels to transit unrestricted to portions of the waterway not affected by the safety zone. The Coast Guard expects insignificant adverse impact to mariners from the activation of this safety zone.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would 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 proposed rule would not have a significant economic impact on a substantial number of small entities.

This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the area designated as the safety zone in subparagraph (1) during the date and time the safety zone is being enforced. This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. The safety zone in this proposed rule would be in effect for short periods of time and only once per year. The safety zone has been designed to allow traffic to pass safely around the zone whenever possible and vessels will be allowed to pass through the zone with the permission of the Captain of the Port.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed 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 the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Tracy Wirth, Prevention Department, Coast Guard Sector Buffalo, Buffalo, NY at (716) 843-9573. 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 would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed 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 proposed rule will not result in such expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.

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

This proposed 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 proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed 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.

The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these special local regulations and fishing rights protection need not be incompatible. We have also determined that this Proposed Rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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. Nevertheless, Indian Tribes that have questions concerning the provisions of this Proposed Rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT .

We have analyzed this proposed 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 would be 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to leave a significant impact on the human environment. A preliminary “Environmental Analysis Check List” is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

We encourage you to participate in this rulemaking by submitting comments and related materials. 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) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.

If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0092), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov at any time. Enter the docket number for this rulemaking (USCG-2008-0092) in the Search box, and click “Go >>.” You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue, SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or the Coast Guard Sector St. Petersburg, Prevention Department, 155 Columbia Drive, Tampa, Florida 33606-3598 between 7:30 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). 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.

We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

Downtown Tampa Attractions Association is sponsoring weekly summer fireworks displays at Channelside in Tampa, FL. The Fireworks display will be launched from a barge located within the Ybor Turning Basin beginning on the Sunday prior to Memorial Day, every Friday from June 6th until the last Friday of August, and concluding on the Sunday prior to Labor Day. The fireworks event is scheduled to commence at 9 p.m. local and will last approximately fifteen minutes. This proposed rule is needed to protect participant and spectator craft in the vicinity of the fireworks presentation from the hazards associated with the launching of fireworks. This safety zone is being established to ensure safety of life during the fireworks display.

The proposed safety zone will encompass the following: All waters from surface to bottom, within a 350-foot radius around the fireworks barge, within the Ybor Turning Basin, located in approximate position: 27°56′29″ N, 082° 26′ 43″ W. Vessels would be prohibited from anchoring, mooring, or transiting within the safety zone, unless authorized by the Captain of the Port St. Petersburg or a designated representative. The safety zone will be effective from 8:30 p.m. through 9:45 p.m. on May 25, August 31, and every Friday from June 6 through August 29, 2008. The safety zone will commence approximately thirty minutes prior to the transit of the fireworks barge from Gulf Marine to the Ybor Turning Basin. This thirty minute period will enable Coast Guard and/or local law enforcement vessels to conduct a sweep of the zone to ensure that it is clear prior to the transit of the barge. The zone will be effective during the transit of the barge to the turning basin during the fireworks display and will conclude when the barge is moored at Gulf Marine. An additional thirty minute period has been added to account for possible delays of the fireworks display.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary.

The rule will only be effective for one hour and fifteen minutes during a time when vessel traffic is expected to be minimal. Moreover, vessels may still enter the safety zone with the express permission of the Captain of the port Sector St. Petersburg or a designated representative.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would 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 proposed rule would not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit Ybor Turning Basin. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will be enforced for a limited time when marine traffic is expected to be minimal; additionally traffic will be allowed to enter the zone with the permission of the Captain of the Port Sector St. Petersburg or his designated representative.

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 the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the office listed under FOR FURTHER INFORMATION CONTACT . 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 proposed rule would call 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 would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

This proposed 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 proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

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

We have analyzed this proposed rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34) (g) of the Instruction, from further environmental documentation. A preliminary “Environmental Analysis Check List” is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Pursuant to 49 U.S.C. 33112, Insurer reports and information , NHTSA requires certain passenger motor vehicle insurers to file an annual report with the agency. Each insurer's report includes information about thefts and recoveries of motor vehicles, the rating rules used by the insurer to establish premiums for comprehensive coverage, the actions taken by the insurer to reduce such premiums, and the actions taken by the insurer to reduce or deter theft. Under the agency's regulation, 49 CFR Part 544, the following insurers are subject to the reporting requirements:

(1) issuers of motor vehicle insurance policies whose total premiums account for 1 percent or more of the total premiums of motor vehicle insurance issued within the United States;

(2) issuers of motor vehicle insurance policies whose premiums account for 10 percent or more of total premiums written within any one state; and

(3) rental and leasing companies with a fleet of 20 or more vehicles not covered by theft insurance policies issued by insurers of motor vehicles, other than any governmental entity.

Pursuant to its statutory exemption authority, the agency exempted certain passenger motor vehicle insurers from the reporting requirements.

Section 33112(f)(2) provides that the agency shall exempt small insurers of passenger motor vehicles if NHTSA finds that such exemptions will not significantly affect the validity or usefulness of the information in the reports, either nationally or on a state-by-state basis. The term “small insurer” is defined, in Section 33112(f)(1)(A) and (B), as an insurer whose premiums for motor vehicle insurance issued directly or through an affiliate, including pooling arrangements established under state law or regulation for the issuance of motor vehicle insurance, account for less than 1 percent of the total premiums for all forms of motor vehicle insurance issued by insurers within the United States. However, that section also stipulates that if an insurance company satisfies this definition of a “small insurer,” but accounts for 10 percent or more of the total premiums for all motor vehicle insurance issued in a particular state, the insurer must report about its operations in that state.

In the final rule establishing the insurer reports requirement (52 FR 59; January 2, 1987), 49 CFR Part 544, NHTSA exercised its exemption authority by listing in Appendix A each insurer that must report because it had at least 1 percent of the motor vehicle insurance premiums nationally. Listing the insurers subject to reporting, instead of each insurer exempted from reporting because it had less than 1 percent of the premiums nationally, is administratively simpler since the former group is much smaller than the latter. In Appendix B, NHTSA lists those insurers required to report for particular states because each insurer had a 10 percent or greater market share of motor vehicle premiums in those states. In the January 1987 final rule, the agency stated that it would update Appendices A and B annually. NHTSA updates the appendices based on data voluntarily provided by insurance companies to A.M. Best 1 A.M. Best publishes in its State/Line Report each spring. The agency uses the data to determine the insurers' market shares nationally and in each state.

In addition, upon making certain determinations, NHTSA grants exemptions to self-insurers, i.e., any person who has a fleet of 20 or more motor vehicles (other than any governmental entity) used for rental or lease whose vehicles are not covered by theft insurance policies issued by insurers of passenger motor vehicles, 49 U.S.C. 33112(b)(1) and (f). Under 49 U.S.C. 33112(e)(1) and (2), NHTSA may exempt a self-insurer from reporting, if the agency determines:

(1) the cost of preparing and furnishing such reports is excessive in relation to the size of the business of the insurer; and 33112(e)(1) and (2),

(2) the insurer's report will not significantly contribute to carrying out the purposes of Chapter 331.

In a final rule published June 22, 1990 (55 FR 25606), the agency granted a class exemption to all companies that rent or lease fewer than 50,000 vehicles, because it believed that the largest companies' reports sufficiently represent the theft experience of rental and leasing companies. NHTSA concluded that smaller rental and leasing companies' reports do not significantly contribute to carrying out NHTSA's statutory obligations and that exempting such companies will relieve an unnecessary burden on them. As a result of the June 1990 final rule, the agency added Appendix C, consisting of an annually updated list of the self-insurers subject to Part 544. Following the same approach as in Appendix A, NHTSA included, in Appendix C, each of the self-insurers subject to reporting instead of the self-insurers which are exempted.

NHTSA updates Appendix C based primarily on information from Automotive Fleet Magazine and Auto Rental News . 2

Under Part 544, as long as an insurer is listed, it must file reports on or before October 25 of each year. Thus, any insurer listed in the appendices must file a report before October 25, and by each succeeding October 25, absent an amendment removing the insurer's name from the appendices.

Appendix A lists insurers that must report because each had 1 percent of the motor vehicle insurance premiums on a national basis. The list was last amended in a final rule published on August 30, 2007 (72 FR 50077). Based on the 2005 calendar year data market shares from A.M. Best, NHTSA proposes to remove CNA Insurance Companies and add Auto Club Southern California Group and California State Auto Group to Appendix A.

Each of the 19 insurers listed in Appendix A are required to file a report before October 25, 2008, setting forth the information required by Part 544 for each State in which it did business in the 2005 calendar year. As long as these 19 insurers remain listed, they will be required to submit reports by each subsequent October 25 for the calendar year ending slightly less than 3 years before.

Appendix B lists insurers required to report for particular States for calendar year 2005, because each insurer had a 10 percent or greater market share of motor vehicle premiums in those States. Based on the 2005 calendar year data for market shares from A.M. Best, we propose to make no changes.

The nine insurers listed in Appendix B are required to report on their calendar year 2005 activities in every State where they had a 10 percent or greater market share. These reports must be filed by October 25, 2008, and set forth the information required by Part 544. As long as these nine insurers remain listed, they would be required to submit reports on or before each subsequent October 25 for the calendar year ending slightly less than 3 years before.

Appendix C lists rental and leasing companies required to file reports. However, subsequent to publishing the final rule (See 71 FR 52292), the agency was informed by Enterprise Rent-A-Car Company (Enterprise) on behalf of its subsidiary, Enterprise Fleet Services (EFS), that when EFS offers vehicles for lease, it also includes as a condition of its lease agreement that lessees purchase and maintain its own motor vehicle insurance. Enterprise also submitted a copy of EFS' lease agreement showing that insurance was required as a condition of the lease. Enterprise further stated that EFS' lessees are also given the option of contractually waiving (“self-insuring”) the physical damage, including theft, of the leased vehicle by the Enterprise entity but states that the total number of self-insured vehicles in EFS' fleet is well under the 50,000 exemption threshold. Therefore, Enterprise Rent-A-Car has requested that Enterprise Fleet Services be removed from the list of insurers required to meet the insurer reporting requirements. Since Enterprise Fleet Services requires its lessees to provide the insurance for its vehicles or does not self-insure 50,000 or more of its vehicles in its leasing fleet, it does not meet the criteria the agency uses to determine that an insurer should be included in Appendix C. Therefore, NHTSA proposes to remove Enterprise Fleet Services from the list of insurers required to meet the reporting requirements.

Each of the seven companies (including franchisees and licensees) listed in Appendix C would be required to file reports for calendar year 2005 no later than October 25, 2008, and set forth the information required by Part 544. As long as those seven companies remain listed, they would be required to submit reports before each subsequent October 25 for the calendar year ending slightly less than 3 years before.

This notice has not been reviewed under Executive Order 12866. NHTSA has considered the impact of this proposed rule and determined that the action is not “significant” within the meaning of the Department of Transportation's regulatory policies and procedures. This proposed rule implements the agency's policy of ensuring that all insurance companies that are statutorily eligible for exemption from the insurer reporting requirements are in fact exempted from those requirements. Only those companies that are not statutorily eligible for an exemption are required to file reports.

NHTSA does not believe that this proposed rule, reflecting current data, affects the impacts described in the final regulatory evaluation prepared for the final rule establishing Part 544 (52 FR 59; January 2, 1987). Accordingly, a separate regulatory evaluation has not been prepared for this rulemaking action. Using the Bureau of Labor Statistics Consumer Price Index for 2007 (see http://www.bls.gov/cpi ), the cost estimates in the 1987 final regulatory evaluation were adjusted for inflation. The agency estimates that the cost of compliance is $103,671 for any insurer added to Appendix A, $41,468 for any insurer added to Appendix B, and $11,964 for any insurer added to Appendix C. If this proposed rule is made final, for Appendix A, the agency would propose to remove one company and add two companies; for Appendix B, the agency would propose that no changes be made; and for Appendix C, the agency would propose to remove one company. The agency estimates that the net effect of this proposal, if made final, would be a cost of approximately $91,707 to insurers as a group.

Interested persons may wish to examine the 1987 final regulatory evaluation. Copies of that evaluation were placed in Docket No. T86-01; Notice 2. Any interested person may obtain a copy of this evaluation by writing to NHTSA, Technical Reference Division, 1201 New Jersey Avenue, SE., East Building, Ground Floor, Room E12-100, Washington, DC 20590, or by calling (202) 366-2588.

The information collection requirements in this proposed rule were submitted and approved by the Office of Management and Budget (OMB) pursuant to the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ). This collection of information is assigned OMB Control Number 2127-0547 (“Insurer Reporting Requirements”), is approved for use through August 31, 2009, and the agency will seek to extend the approval afterwards.

The agency also considered the effects of this rulemaking under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ). I certify that this proposed rule will not have a significant economic impact on a substantial number of small entities. The rationale for the certification is that none of the companies proposed for Appendices A, B, or C are construed to be a small entity within the definition of the RFA. “Small insurer” is defined, in part under 49 U.S.C. 33112, as any insurer whose premiums for all forms of motor vehicle insurance account for less than 1 percent of the total premiums for all forms of motor vehicle insurance issued by insurers within the United States, or any insurer whose premiums within any State, account for less than 10 percent of the total premiums for all forms of motor vehicle insurance issued by insurers within the State. This notice would exempt all insurers meeting those criteria. Any insurer too large to meet those criteria is not a small entity. In addition, in this rulemaking, the agency proposes to exempt all “self insured rental and leasing companies” that have fleets of fewer than 50,000 vehicles. Any self-insured rental and leasing company too large to meet that criterion is not a small entity.

This action has been analyzed according to the principles and criteria contained in Executive Order 12612, and it has been determined that the proposed rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

In accordance with the National Environmental Policy Act, NHTSA has considered the environmental impacts of this proposed rule and determined that it would not have a significant impact on the quality of the human environment.

The Department of Transportation assigns a regulation identifier number (RIN) 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. You may use the RIN contained in the heading, at the beginning, of this document to find this action in the Unified Agenda.

Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

• Have we organized the material to suit the public's needs?

• Are the requirements in the proposal clearly stated?

• Does the proposal contain technical language or jargon that is not clear?

• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?

• Would more (but shorter) sections be better?

• Could we improve clarity by adding tables, lists, or diagrams?

• What else could we do to make the proposal easier to understand?

a. Mail: Rosalind Proctor, Office of International Policy, Fuel Economy and Consumer Programs, NHTSA, 1200 New Jersey Avenue, SE., (West Building) Washington, DC 20590;

b. E-mail: rosalind.proctor@dot.gov; or

c. Fax: (202) 493-0073.

In developing our rules, NHTSA tries to address the concerns of all our stakeholders. Your comments will help us improve this rule. We invite you to provide views on our proposal, new data, a discussion of the effects of this proposal on you, or other relevant information. We welcome your views on all aspects of this proposed rule. Your comments will be most effective if you follow the suggestions below:

• Explain your views and reasoning clearly.

• Provide solid technical and cost data to support your views.

• If you estimate potential costs, explain how you derived the estimate.

• Provide specific examples to illustrate your concerns.

• Offer specific alternatives.

• Include the name, date, and docket number with your comments.

Your comments must be written in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.

Your comments must not exceed 15 pages long (49 CFR 553.21). We established this limit to encourage you to write your primary comments concisely. You may attach necessary documents to your comments. We have no limit on the attachments' length.

Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES .

Comments may also be submitted to the docket electronically by logging onto the Federal eRulemaking Portal Web site at http://www.regulations.gov . Follow the online instructions for submitting comments.

If you wish Docket Management to notify you, upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will mail the postcard.

If you wish to submit any information under a confidentiality claim, you should submit three copies of your complete submission, including the information you claim as confidential business information, to the Chief Counsel, Office of Chief Counsel, NHTSA, 1200 New Jersey Avenue, SE., West Building, Washington, DC 20590. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES . When you send a comment containing information claimed to be confidential business information, you should include a cover letter addressing the information specified in our confidential business information regulation (49 CFR Part 512).

NHTSA will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES . To the extent possible, we will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider, in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.

You may read the comments received by Docket Management at the address given above under ADDRESSES . The hours of the Docket are indicated above, in the same location. You may also see the comments on the Internet. To read the comments on the Internet, log onto the Federal eRulemaking Portal at http://www.regulations.gov .

Based on the foregoing, we are proposing to amend Appendices A and C of 49 CFR 544, Insurer Reporting Requirements. We are also amending § 544.5 to revise the example given the recent update to the reporting requirements.

In consideration of the foregoing, 49 CFR Part 544 is proposed to be amended as follows:

Information Solicited

To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information concerning the status of the white-tailed prairie dog. We request information from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties. We are opening a 60-day comment period to allow all interested parties an opportunity to provide information on the status of the white-tailed prairie dog throughout its range, including:

(1) Information regarding the species' historical and current population status, distribution, and trends; its biology and ecology; and habitat selection;

(2) Information on the effects of potential threat factors that are the basis for a species' listing determination under section 4 (a) of the Act (16 U.S.C. 1531 et seq .), which are:

(a) Present or threatened destruction, modification, or curtailment of the species' habitat or range;

(b) Overutilization for commercial, recreational, scientific, or educational purposes;

(c) Disease or predation;

(d) Inadequacy of existing regulatory mechanisms; and

(e) Other natural or manmade factors affecting its continued existence.

(3) Information on management programs for the conservation of the white-tailed prairie dog.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, because section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will issue a new 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act.

You may submit your information concerning this status review by one of the methods listed in the ADDRESSES section. We will not consider submissions sent by e-mail or fax or to an address not listed in the ADDRESSES section.

If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Information and materials we receive, as well as supporting documentation we used in preparing this finding, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service's Utah Field Office, 2369 West Orton Circle, Suite 50, West Valley City, Utah 84119, telephone (801) 975-3330.

On July 15, 2002, we received a petition from the Center for Native Ecosystems, Forest Guardians, Biodiversity Conservation Alliance, and Terry Tempest Williams requesting that we list the white-tailed prairie dog ( Cynomys leucurus ) as threatened or endangered across its entire range.

Section 4(b)(3)(B) of the Act requires that for any petition to revise the Lists of Threatened and Endangered Wildlife and Plants, to the maximum extent practicable, within 90 days after receiving the petition, we make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. In addition, within 12 months of the date of the receipt of the petition, we make a finding on whether the petitioned action is: (a) Not warranted, (b) warranted, or (c) warranted but precluded by other pending proposals. Such 12-month findings are to be published promptly in the Federal Register .

On November 9, 2004, we announced our 90-day finding (69 FR 64889) that the petition did not present substantial scientific or commercial information indicating that listing may be warranted. On July 12, 2007, in a Director's memorandum, the Service announced that we would review the November 9, 2004, finding after questions were raised about the integrity of scientific information used and whether the decision made was consistent with the appropriate legal standards. We received a lawsuit from the Center for Native Ecosystems, and three other entities, on November 27, 2007, regarding our not substantial 90-day finding. On February 22, 2008, based on our review of the petition and the previous finding, we agreed, in a stipulated settlement agreement, to submit a notice initiating a 12-month finding for the white-tailed prairie dog to the Federal Register on or before May 1, 2008, and to submit a 12-month finding for the white-tailed prairie dog to the Federal Register on or before June 1, 2010. This notice initiates the 12-month finding for the white-tailed prairie dog. The lawsuit was dismissed February 26, 2008.

At this time, we are soliciting new information on the status and potential threats to the white-tailed prairie dog. We will base our 12-month finding on a review of the best scientific and commercial information available, including all information received as a result of this notice. For more information on the biology, habitat, and range of the white-tailed prairie dog, please refer to our 90-day finding published in the Federal Register on November 9, 2004 (69 FR 64889).

We request any new information concerning the status of the white-tailed prairie dog. If you submit information, support it with documentation such as maps, bibliographic references, methods used to gather and analyze the data, or copies of any pertinent publications, reports, or letters by knowledgeable sources.

The primary authors of this document are staff of U.S. Fish and Wildlife Service, Utah Field Office.

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

Information Solicited

When we make a finding that a petition presents substantial information to indicate that listing a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information concerning the status of the longfin smelt. We request any additional information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning the status of the longfin smelt, including:

(1) Information on taxonomy, genetics (especially regarding distinct population segments), distribution, habitat selection, food habits, population density and trends, habitat trends, and effects of management on longfin smelt;

(2) Information on the effects of climate change, sea level change, and change in water temperatures on the distribution and abundance of longfin smelt and their principal prey over the short and long term;

(3) Information on the effects of other potential threat factors, including water diversions in the Sacramento-San Joaquin River Delta (Delta), contaminants, invasive species, and changes of the distribution and abundance of longfin smelt and their principal prey over the short and long term;

(4) Information on management programs for longfin smelt conservation, including mitigation measures related to water diversions and development, habitat conservation programs, invasive species control programs, and any other private, tribal, or governmental conservation programs which benefit longfin smelt; and

(5) Information relevant to whether the San Francisco Bay-Delta population of the species may qualify as a distinct population segment (DPS).

You may submit your information concerning this finding by one of the methods listed in the ADDRESSES section. We will not consider submissions sent by email or fax or to an address not listed in the addresses section.

If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public view. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Information and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq. ), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the determination. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of this finding promptly in the Federal Register .

Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information was presented, we are required to promptly commence a review of the status of the species.

We base this finding on information provided by the petitioner that we determined to be reliable after reviewing sources referenced in the petition and information available in our files at the time of the petition review. We evaluated that information in accordance with 50 CFR 424.14(b). Our process for making this 90-day finding under section 4(b)(3)(A) of the Act and section 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold.

On August 8, 2007, we received a petition from the Bay Institute, Center for Biological Diversity, and Natural Resources Defense Council to list the longfin smelt as endangered within the San Francisco Bay-Delta estuary in California, and to designate critical habitat concurrently with the listing. The petition clearly identified itself as a petition and included the identification information required in 50 CFR 424.14(a). The petition contained detailed information on the natural history and biology of the longfin smelt, and the current status and distribution of the species. It also contained information on what the petitioners reported as potential threats to the species. In response to the petition, we sent a letter to the petitioners dated September 25, 2007, stating that we had secured funding and that we would begin evaluation of the petition on October 1, 2007. We also concluded in our September 25, 2007, letter that emergency listing of the longfin smelt was not warranted at the time, based on the imminence of threats and because we would be working on the finding within the timeframe of routine listing processes.

On November 5, 1992, we received a petition from Mr. Gregory A. Thomas of the Natural Heritage Institute to add the Sacramento splittail ( Pogonichthys macrolepidotus ) and longfin smelt to the List of Endangered and Threatened Wildlife and designate critical habitat for each species. On July 6, 1993, we published a 90-day finding in the Federal Register that the petition contained substantial information indicating that the requested action may be warranted, and that we would proceed with a status review of both species. On January 4, 1994, we published a notice of a 12-month finding on a petition to list the longfin smelt. We determined that the petitioned action was not warranted, based on the lack of population trend data for estuaries in Oregon and Washington, although the southernmost populations were found to be declining. Furthermore, we found the listing of a Sacramento-San Joaquin River estuary DPS was also not warranted because we determined that the population was not biologically significant to the species as a whole, and did not appear to be sufficiently reproductively isolated.

The longfin smelt ( Spirinchus thaleichthys ), a member of the true smelt family Osmeridae, can be distinguished from other smelts occurring in California by its weak or absent striations on the operculum (bony plates which supports the gill cover), incomplete lateral line, low number of lateral line scales, and long maxillary bones (McAllister 1963, p. 10; Moyle 2002, pp. 234-235). The pectoral fins often extend as far as the base of the pelvic fins, and the maxillary bones reach underneath the eyes. This fish, which often reaches 6 inches (in) (15 centimeters (cm)) in length, has translucent silver sides and an olive to iridescent pink back.

The longfin smelt is one of three species in its genus; the night smelt ( Spirinchus starksi ) occurs in California, and the shishamo ( S. lanceolatus ) occurs in northern Japan (McAllister 1963, pp. 10 and 15). Because of its distinctive characteristics, the Delta population of longfin smelt was once described as a species separate from more northern populations (Moyle 2002, p. 235). McAllister (1963, p. 12) merged the two species because differences in characteristics represented a north-south gradient of variation in these characteristics rather than a discrete set; subsequent studies showed that populations from Washington State and the San Francisco Bay-Delta are similar genetically (Stanley et al. 1995, p. 390). However, the San Francisco Bay population is geographically distant from the nearest northern sustainable population and differs in gene frequencies from populations in Washington State (Stanley et al. 1995, p. 390). As presently described, this species' range extends from the San Francisco Bay-Delta, California, to Prince William Sound, Alaska (Moyle 2002, pp. 235-236).

The longfin smelt is an anadromous euryhaline species (i.e., tolerant to a wide range of salinities, from freshwater to pure sea water), with a 2-year life cycle (Moyle 2002, p. 236). Spawning occurs in freshwater over sandy-gravel substrate, rocks, or aquatic plants. Spawning may take place as early as November and extend into June, although the peak spawning period is from February to April. Eggs adhere to the bottom substrate, but the larvae inhabit open ocean. Once hatched, the larvae are transported by flows from spawning areas to nursery habitat. The principal nursery habitats for larvae are the productive waters of Suisun and San Pablo Bays, where freshwater outflow and saltwater mixes. Adults are found mainly in Suisun, San Pablo, and San Francisco Bays, although their distribution is shifted upstream in years of low river outflows. Sacramento-San Joaquin River outflow into the bays has been positively correlated with longfin smelt recruitment; the possible mechanism behind this relationship is unclear (Stevens and Miller 1983, p. 432; Kimmerer 2002a, p. 48; Kimmerer 2002b, pp. 1275 and 1283).

The petition cites the California Department of Fish and Game (CDFG) Fall Midwater Trawl (FMWT) survey as a measure of longfin smelt abundance. The average abundance index from 1967 to 1986 was 17,616, and 17,485 from 1980 to 1986. However, the petition reports that the average abundance index declined to 537 from 1987 to 1994, possibly as a result of extended drought conditions and increased water exports. During the following 5 years (1995 to 2000), the average abundance index increased to 4,343, and from 2001 to 2006 the average abundance index declined to 569. The petition states the average abundance index from 2001 to 2006 is 87 percent lower than the average abundance index from 1995 to 2000.

We consider a species for listing under the Act if available information indicates such an action might be warranted. “Species” is defined in section 3 of the Act to include any subspecies of fish, wildlife, or plant, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532 (16)). Along with the National Marine Fisheries Service (now the National Oceanic and Atmospheric Administration—Fisheries), we developed the Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DPS Policy) (February 7, 1996; 61 FR 4722) to help determine what constitutes a DPS. The policy identifies three elements that we are to consider in making a DPS determination. These elements include: (1) The discreteness of the population segment in relation to the remainder of the species to which it belongs; (2) the significance of the population segment to the species to which it belongs; and (3) the population segment's conservation status in relation to the Act's standards for listing. If we determine that a population segment meets the discreteness and significance standards, then the level of threat to that population segment is evaluated based on the five listing factors established by the Act to determine whether listing the DPS as either threatened or endangered is warranted.

Citing the Services' DPS policy (61 FR 4722), the August 2007 petition asserts that the San Francisco Bay-Delta population of the longfin smelt qualifies as a DPS based on discreteness. The DPS policy states that a population may be considered discrete if it satisfies either one of the following conditions:

(1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.

(2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.

The petitioners claim the San Francisco Bay-Delta population of longfin smelt is discrete based on the first criterion, because there is no evidence that large numbers of longfin smelt migrate between populations within their range in the eastern Pacific or along the California coast. Additionally, they cite survey data indicating longfin smelt populations within several hundred miles of the San Francisco Bay-Delta are small and possibly declining, which leads the petitioners to conclude that it is unlikely that longfin smelt in the San Francisco Bay-Delta are supplemented by immigration from other areas. The petitioners cite Stanley et al. (1995, p. 395), who concluded from gene frequency analysis and reproductive and behavioral analysis that the San Francisco Bay-Delta longfin smelt population and the Humboldt Bay population (the nearest possible reproducing population) differ significantly and that gene flow between the two populations is restricted. Additionally, the petitioners cite Moyle (2002, p. 235) who concluded that the longfin smelt in the San Francisco Bay-Delta are reproductively isolated from other population units.

The Services' DPS policy requires that only one of the discreteness criteria be satisfied in order for a population of a vertebrate species to be considered discrete. After reviewing the information provided in the petition, we believe the petition presents substantial information that the San Francisco Bay-Delta longfin smelt population may be physically isolated from other longfin smelt populations and may be genetically distinct; therefore, we find that there is substantial information indicating the longfin smelt population in the San Francisco Bay-Delta may satisfy the discreteness element of the DPS policy.

If we determine that a population meets the DPS discreteness element, we then consider if it also meets the DPS significance element. The DPS policy (61 FR 4722) states that if a population segment is considered discrete under one or more of the discreteness criteria, its biological and ecological significance will be considered in light of Congressional guidance that the authority to list DPSs be used “sparingly” while encouraging the conservation of genetic diversity. In making this determination, we consider available scientific evidence of the discrete population's importance to the taxon to which it belongs. Since precise circumstances are likely to vary considerably from case to case, the DPS policy does not describe all the classes of information that might be used in determining the biological and ecological importance of a discrete population. However, the DPS policy does provide four possible reasons why a discrete population may be significant. As specified in the DPS policy (61 FR 4722), this consideration of the significance may include, but is not limited to, the following:

(1) Persistence of the discrete population segment in an ecological setting unusual or unique to the taxon;

(2) Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon;

(3) Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; or

(4) Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.

The petitioners claim the San Francisco Bay-Delta population of longfin smelt is significant because: (1) It inhabits an ecological setting unique relative to other longfin smelt populations; (2) it represents the southernmost spawning population of longfin smelt, and loss of this population would result in a significant gap in the range of the species; (3) Stanley et al. (1995, p. 395) found significant differences in gene frequency between populations in Washington State and the San Francisco Bay-Delta, leading them to conclude the San Francisco Bay-Delta population of longfin smelt are genetically distinct; (4) the San Francisco Bay-Delta contains a suite of predators and competitors not found in other populations, and this may have resulted in unique evolutionary characteristics; and (5) it is an indicator of the health of the San Francisco Bay-Delta and important component of the food web.

After reviewing the information provided in the petition, we believe the petition presents substantial information to indicate that the San Francisco Bay-Delta longfin smelt population may be significant. We have made this determination because of (1) The species occurs in a unique ecological setting; (2) the San Francisco Bay-Delta represents the southernmost spawning population for the species, and the loss of the population may result in a significant gap in the range of the species; and (3) the genetic characteristics of the species may be unique from other populations of longfin smelt, and the loss of this population may result in the loss of potential unique adaptive or genetic characteristics of the species. Therefore, we find that there is substantial information indicating the San Francisco Bay-Delta population of longfin smelt may satisfy the significance element of the DPS policy.

We have reviewed the information presented in the petition, and have evaluated the information in accordance with 50 CFR 424.14(b). In a 90-day finding, the question is whether a petition presents substantial information that the petitioned action may be warranted. We do not make final determinations regarding DPSs at this stage; rather, we determine whether a petition presents substantial information that a population may be a DPS. Based on our review, we find that the August 2007 petition presents substantial scientific or commercial information to indicate that the San Francisco Bay-Delta population of longfin smelt may be a DPS based on its separation from other populations of longfin smelt, the unique setting in which it occurs, and potential genetic differences between the San Francisco Bay-Delta population and other longfin smelt populations (Stanley et al. 1995, p. 395), which may meet both the discreteness and significance criteria of the DPS policy, and thus may be a listable entity under the Act. To meet the third element of the DPS policy, we evaluate the level of threat to the DPS based on the five listing factors established by the Act. We thus proceeded with an evaluation of information presented in the petition to determine whether there is substantial scientific or commercial information indicating that listing this population may be warranted.

The petition and supporting information describes a variety of factors affecting the Delta ecosystem that have led to the decline of the San Francisco Bay-Delta population of the longfin smelt. Principal among these factors are the altered hydraulics and reduced outflow of the Delta caused by export of freshwater from the Sacramento and San Joaquin Rivers by the Federal and State water diversions (Factor A). Additional threats to the species include entrainment at other water diversions within the Delta (Factor A); lethal and sub-lethal effects of toxic chemicals (Factor E); direct and indirect impacts of non-native species on the longfin smelt food supply and habitat (Factors A and C); physical disturbance of spawning substrate and the habitat of their prey species from instream activities such as dredging (Factor A); mortality, injury, and disruption of normal behavior caused by pile driving (Factor A); and warming of estuary waters (Factor E). The petition also discussed existing regulatory mechanisms and their perceived inadequacy (Factor D).

The petition and supporting information have identified numerous factors affecting the San Francisco Bay-Delta population of the longfin smelt and the Delta ecosystem, including: Water diversions; entrainment of fish in pumping facilities; toxic chemicals; non-native species competition and predation; disturbance of spawning habitat through dredging or pile driving; and lack of regulatory mechanisms protecting the species and its habitat.

The export of freshwater from the Sacramento and San Joaquin Rivers by the Federal and State water diversions (Factor A) alters the hydraulics and saline conditions of the Delta estuary and reduces outflow through San Francisco Bay, thereby affecting the habitat conditions the species requires. Entrainment at water diversion facilities within the Delta (Factor A) may lead to direct loss of the species. The effects of toxic chemicals (Factor E) within the San Francisco Bay-Delta may be a factor influencing habitat availability and quality, reproduction success, and food availability for the species. Non-native fish species may be causing higher levels of predation of the species (Factors A and C) and affecting the species' food supply. Habitat disturbance of longfin spawning substrate and the habitat of their prey species caused by instream activities such as dredging and pile driving (Factor A) may be a factor affecting the species. The warming of estuary waters (Factor E) may be affecting the species by altering habitat condition for spawning and influencing water supply conditions for the species. The petition also discussed existing regulatory mechanisms and their perceived inadequacy (Factor D). The effects of all these factors may be causing the San Francisco Bay-Delta population of the longfin smelt to decline. According to recent fish survey information collected by CDFG, the average catch from 2001 to 2006 was 84 to 87 percent lower than the average catch from 1995 to 2000 (CDFG 2008, pp.1-4).

Our process for making this 90-day finding under section 4(b)(3)(A) of the Act and 50 CFR 424.14(b) of our regulations is limited to the determination of whether information meets the “substantial scientific and commercial information” threshold, which is interpreted in our regulations as “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14). On the basis of information provided in the petition and other information readily available to us, we have determined that the petition presents substantial scientific or commercial information that the San Francisco Bay-Delta longfin smelt population may be a distinct population segment and that listing the San Francisco Bay-Delta longfin smelt population as endangered may be warranted. Therefore, we are initiating a status review to determine if listing the species is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial data and other information regarding this species.

It is important to note that the “substantial information” standard for a 90-day finding is in contrast to the Act's “best scientific and commercial data” standard that applies to a 12-month finding as to whether a petitioned action is warranted. A 90-day finding is not a status assessment of the species and does not constitute a status review under the Act. Our final determination as to whether a petitioned action is warranted is not made until we have completed a thorough status review of the species, which is conducted following a 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a positive 90-day finding does not mean that the 12-month finding will also be positive.

The petitioners also requested that critical habitat be designated for this species. We always consider the need for critical habitat designation when listing species. If we determine in our 12-month finding that listing the longfin smelt is warranted, we will address the designation of critical habitat in a subsequent proposed rule.

The Petitioner seeks to list the entire San Francisco Bay-Delta longfin smelt population. During our status review we will evaluate whether the information provided and in our files supports listing and whether there may be a portion of the longfin smelt's range that may be significant. As a result we will leave our analysis and determination of issues of significant portion of range to the 12-month finding.

A complete list of all references cited herein is available, upon request, from the Sacramento Fish and Wildlife Office (see ADDRESSES section).

The primary authors of this notice are staff of the Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, Sacramento, CA 95825.

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

Information Solicited

When we make a finding that a petition presents substantial information to indicate that listing a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information concerning the status of the Lake Sammamish kokanee. We are seeking information regarding the species' historical and current status and distribution, its biology and ecology, ongoing conservation measures for the species and its habitat, and threats to the species and its habitat. We request any additional information, comments, and suggestions from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, agricultural and forestry groups, conservation groups, or any other interested parties concerning the status of the Lake Sammamish kokanee.

If we determine that listing the Lake Sammamish kokanee is warranted, it is our intent to propose critical habitat to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, with regard to areas within the geographical area currently occupied by the species, we also request data and information on what may constitute physical or biological features essential to the conservation of the species, where these features are currently found, and whether any of these features may require special management considerations or protection. Please provide specific comments and information as to what, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the requirements of the Act.

Please note that submissions merely stating support or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determination as to whether any species is a threatened or endangered species shall be made “solely on the basis of the best scientific and commercial data available.” Based on the status review, we will issue the 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act.

You may submit your information concerning this status review by one of the methods listed in the ADDRESSES section. We will not consider submissions sent by e-mail or fax or to an address not listed in the ADDRESSES section.

If you submit information via http://www.regulations.gov , your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov .

Information and materials we receive will be available for public inspection on http://www.regulations.gov , or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).

Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq. ) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the determination. To the maximum extent practicable, we are to make the finding within 90 days of our receipt of the petition and publish our notice of this finding promptly in the Federal Register .

Our standard for “substantial information,” as defined in the Code of Federal Regulations at 50 CFR 424.14(b), with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.” If we find that substantial information was presented, we are required to promptly commence a status review of the species. We base this finding on information provided by the petitioner that we determined to be reliable after reviewing sources referenced in the petition and available in our files. We evaluated that information in accordance with 50 CFR 424.14(b). Our process for making this 90-day finding under section 4(b)(3)(A) of the Act is limited to a determination of whether the information in the petition meets the “substantial information” threshold.

It is important to note that the “substantial information” standard for a 90-day finding is in contrast to the Act's “best scientific and commercial data” standard that applies to a 12-month finding as to whether a petitioned action is warranted. A 90-day finding is not a status assessment of the species and does not constitute a status review under the Act. Our final determination as to whether a petitioned action is warranted is not made until we have completed a thorough status review of the species, which is conducted following a positive 90-day finding. Because the Act's standards for 90-day and 12-month finding are different, as described above, a positive 90-day finding does not mean that the 12-month finding will also be positive.

On July 9, 2007, we received a formal petition from Trout Unlimited; the City of Issaquah, Washington; King County, Washington; People for Puget Sound; Save Lake Sammamish; the Snoqualmie Tribe; and the Wild Fish Conservancy, requesting that we list all wild, indigenous, naturally-spawned kokanee ( Oncorhynchus nerka ) in Lake Sammamish, Washington, as a threatened or endangered species under the Endangered Species Act, because of their declining numbers, reduced productivity, a decline in the quantity and quality of their habitat, and narrowing temporal, spatial, and genetic diversity. The petition clearly identified itself as a petition and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). The petition contained information on kokanee biology and distribution. The petition also contained information that may indicate the uniqueness of Lake Sammamish kokanee: The discreteness and significance of this population; population viability, abundance, and productivity; distribution; and genetic diversity. Potential threats discussed in the petition include the present and ongoing destruction, modification, and curtailment of habitat; the lack of effective regulatory measures; and other natural or manmade factors affecting the species' continued existence.

On September 24, 2007, we notified the petitioners that our initial review of the petition for Lake Sammamish kokanee concluded that an emergency listing was not warranted, and that we anticipated making an initial finding within 90 days as to whether the petition contains substantial information indicating that the action may be warranted. This finding addresses the petition.

The kokanee and the sockeye salmon are two forms of the same species, Oncorhynchus nerka (Order Salmoniformes, Family Salmonidae), that are native to watersheds in the north Pacific from southern Kamchatka to Japan in the western Pacific, and from Alaska to the Columbia River in North America (Page and Burr 1991, p. 52; Taylor et al. 1996, pp. 402-403). Adult kokanee resemble sockeye salmon, but are generally smaller in size at maturity because they are confined to freshwater environments, which are less productive than the ocean (Gustafson et al. 1997, p. 29). Both kokanee and anadromous sockeye turn from silver to bright red during maturation, while the head is olive green and the fins are blackish red (Craig and Foote 2001, p. 381). Typically, resident sockeye (progeny of anadromous sockeye that do not migrate to sea) turn from silver to green (Foote et al. 2004, p. 70).

Sockeye salmon are anadromous, migrating to the Pacific Ocean following hatching and rearing in fresh water. They spend 2 to 3 years in marine waters before returning to freshwater environments to spawn. Kokanee are non-anadromous, spending their entire lives in freshwater habitats (Meehan and Bjorn 1991, pp. 56-57). Kokanee young are spawned in freshwater streams and subsequently migrate to a nursery lake (Burgner 1991, pp. 35-37), where they remain until maturity. When mature, they return to natal freshwater streams to spawn and die, typically around age four.

Taylor et al. (1996, pp. 411-414) found multiple episodes of independent divergence between sockeye and kokanee throughout their current range. As ancestral sockeye populations expanded to new river systems, those that could not access the marine environment on a regular basis evolved into the non-anadromous kokanee form. This rapid adaptive evolution occurred multiple times, resulting in native kokanee populations being genetically more similar to their sympatric (occupying the same geographic area without interbreeding) sockeye populations than kokanee in other river systems (Taylor et al. 1996, pp. 401, 413-414).

Kokanee have been widely introduced in North America in areas outside their larger geographic distribution, and further inland in States and provinces where they occur naturally ( e.g. , Maine, California, Montana, Colorado, Connecticut, New York, Pennsylvania, Vermont, North Dakota, Nevada, Utah, Wyoming, Alberta, Saskatchewan, Manitoba, Ontario) (Scott and Crossman 1973, p. 167). Native populations of kokanee are likely present over most of the range of sockeye salmon. The Lake Washington-Sammamish watershed is one of five watersheds in Washington that support native populations of resident kokanee (Pfeifer 1995 in Jackson 2006, p. 1). In western Washington, native populations of kokanee occur in Lake Whatcom (Lake Washington watershed), Lake Washington-Lake Sammamish watershed, and Baker Lake (Baker River watershed) (Jackson 2006, p. 1). It is thought that the Baker Lake kokanee population became established after the native sockeye population spawning migration was affected by the construction of Lower Baker Dam and the creation of Lake Shannon, followed by the construction of Upper Baker Dam (FERC and USACOE 2006, p. 100). Therefore, these individuals are most likely “residual” sockeye and not true kokanee. Native kokanee populations may exist in Ozette Lake, Lake Pleasant (Quillayute River watershed), and Quinault Lake (Quinault River watershed); however there is uncertainty regarding the origin of these stocks (Gustafson et al. 1997, pp. 120-123).

Kokanee historically spawned in tributaries located throughout Lake Washington; however, their current spawning distribution in the Lake Washington Basin appears to be limited to the Sammamish River/Lake Sammamish drainages, and Cedar River (Walsh Lake) drainages (Gustafson et al. 1997, p. 123; Berge and Higgins 2003, p. 3). Surface water discharge from Lake Sammamish is through the Sammamish River at the north end of the lake, which ultimately flows into Lake Washington. The major tributary to Lake Sammamish is Issaquah Creek, which enters at the south end of the lake and contributes approximately 70 percent of the inflow to the lake (Kerwin 2001, p. 425). There are also several smaller tributaries used for spawning by native kokanee, including Ebright Creek, Pine Lake Creek, Laughing Jacobs Creek, and Lewis Creek (Berge and Higgins 2003, p. 5). The four major tributaries that discharge into the Sammamish River are Swamp Creek, North Creek, Little Bear Creek, and Big Bear Creek.

Although unconfirmed, it is likely that the kokanee that currently spawn in the Sammamish River and its major tributaries rear in Lake Washington, since if they were to rear in Lake Sammamish, the fry would have to migrate upstream to reach the lake. Individuals of what appear to be resident O. nerka (sockeye that originate from at least one sea-going parent but spend their entire life in fresh water) are still occasionally collected in Lake Washington (Berge and Higgins 2003, pp. 3-4). The origin of kokanee in Walsh Lake in the southern part of the Lake Washington Basin is uncertain given that they were first documented in 1997, and were not previously observed in surveys conducted by the University of Washington in 1977 (Connor et al. 2000, p. 22). More recent genetic analysis of the Walsh Lake population suggests that this population is introduced, since it genetically more closely resembles sockeye from the Baker Lake system in the Skagit River watershed than native O. nerka stocks within the basin (Berge and Higgins 2003).

Kokanee in the Sammamish River/Lake Sammamish watershed (referred to by the petitioners as the Lake Sammamish population) are separated into three groups: (1) Summer/early-run, (2) fall/middle-run, and (3) winter/late-run, based on spawn timing and location (Berge and Higgins 2003, p. 3; Young et al. 2004, p. 66). Summer/early-run kokanee spawn during late summer (August through September) in Issaquah Creek, and are the only run of kokanee known to spawn in that creek, although introduced sockeye salmon spawn there in October. Fall/middle-run kokanee spawn in late September through November, primarily in larger Sammamish River tributaries, including Swamp Creek, North Creek, Bear Creek, Little Bear Creek, and Cottage Lake Creek (Trout Unlimited 2007, p. 9). Winter/late-run kokanee spawn from late fall into winter (October through January) in tributaries of Lake Sammamish, including Lewis Creek, Ebright Creek, and Laughing Jacobs Creek, with some spawners recorded in Vasa Creek, Pine Lake, Sammamish River, and East Fork Issaquah Creek (Trout Unlimited et al. 2007, p. 9).

Berggren (1974, p. 9) and Pfeifer (1995, pp. 8-9 and 21-22) report escapements (the number of fish arriving at a natal stream or river to spawn) of summer/early-run Issaquah Creek kokanee numbering in the thousands during the 1970s, but since 1980, the escapement of early-run kokanee in Issaquah Creek has “plummeted dramatically” (Berge and Higgins 2003, p. 18). Between 1998 and 2001, only three summer/early-run kokanee redds (gravel nests of fish eggs) were observed in Issaquah Creek. In July 2001 and 2002, the Washington Department of Fish and Wildlife installed a fish weir across Issaquah Creek in an attempt to capture all migrating summer/early-run kokanee and spawn them in a hatchery for a supplementation program. However, no kokanee were observed or captured during either of those two years (WDFW 2002, pp. 5-7), nor were kokanee observed during spawner surveys conducted in 2003 (Washington Trout 2004, p. 2), leading biologists to conclude that the summer/early-run is functionally extinct (Berge and Higgins 2003, p. 33; Jackson 2006, p. 1).

The fall/middle-run kokanee was estimated to have at least 6,000 and as many as 30,000 spawners in the 1940s in Big Bear Creek, a tributary to the Sammamish River (Connor et al. 2000, pp. 13-14), although these numbers are confounded by the high numbers of out-of-basin and in-basin kokanee introductions during this time period (Gustafson et al. 1997, p. 113). However, by the 1970s the fall/middle-run was considered extinct by Washington Department of Game biologists (Connor et al. 2000, p. 15).

The winter/late-run kokanee have had highly variable spawner returns over the past 11 years (1996-2006), with returns as high as 4,702 in 2003, and as low as 64 in 1997 (Trout Unlimited et al. 2007, p. 18). Annual returns averaged 946 fish, with a median return of 594 fish during this period (Trout Unlimited et al. 2007, p. 16). During a 3-year period from 2004 to 2006, the average spawner return was 568 fish, although in two of the four spawning streams currently used by the winter/late-run (Laughing Jacobs Creek and Pine Lake Creek), there were fewer than 70 fish counted annually in each stream (Trout Unlimited et al. 2007, p. 18). The longest accessible spawning stream for the winter/late-run is 0.75 mile (mi) (1.2 kilometers (km)), and the total spawning area of the core spawning streams (Lewis Creek, Laughing Jacobs Creek, and Ebright Creek) is less than 1.0 mile (1.6 km) (Jackson 2006, p. 4).

Because of the complicated relationships between sockeye and kokanee populations, we will continue to work with National Oceanic and Atmospheric Administration-Fisheries regarding species or life forms under the jurisdiction of each agency.

We consider a species for listing under the Act if available information indicates such an action might be warranted. “Species” is defined in section 3 of the Act to include any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C. 1532 (16)). We, along with the National Marine Fisheries Service (now the National Oceanic and Atmospheric Administration-Fisheries), developed the Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DPS Policy) (February 7, 1996; 61 FR 4722) to help us in determining what constitutes a distinct vertebrate population segment (DPS). The policy identifies three elements that we are to consider in making a DPS determination. These elements include: (1) The discreteness of the population segment in relation to the remainder of the species to which it belongs; (2) the significance of the population segment to the species to which it belongs; and (3) the population segment's conservation status in relation to the Act's standards for listing. If we determine that a population segment meets the discreteness and significance standards, then the level of threat to that population segment is evaluated based on the five listing factors established by the Act to determine whether listing the DPS as either threatened or endangered is warranted.

The petition asserts that the native summer/early-run and fall/middle-run kokanee are considered functionally extinct, and that the native winter/late-run represents the last remaining population in Lake Sammamish (Trout Unlimited et al. 2007, p. 17). However, the native summer/early-run and fall/middle-run of kokanee were included in the petitioned action because there may be remnants of those populations, which are critically important to the recovery of Lake Sammamish kokanee (Trout Unlimited et al. 2007, p. 10).

The petition discusses each of the three elements listed above. Following is our evaluation of whether the petition presents substantial information that the petitioned entity, the Lake Sammamish kokanee, may be a DPS.

Discreteness refers to the separation of a population segment from other members of the taxon based on either: (1) Physical, physiological, ecological, or behavioral factors; or (2) international boundaries within which significant differences in control of exploitation, habitat management, conservation status, or regulatory mechanisms exist in light of section 4(a)(1)(D) of the Act.

Data contained in the petition, referenced in the petition, and otherwise available in our files suggest that Lake Sammamish population may be genetically and ecologically discrete from other populations of kokanee. Kokanee in the Lake Sammamish system appear to be reproductively isolated from other kokanee and sockeye populations (Young et al. 2004, pp. 72-73), and ecologically unique in that three run-timings have historically been exhibited by this population (Berge and Higgins 2003, pp. 3-7), although only the winter/late run-timing appears to remain expressed. The petitioners assert that not only are Lake Sammamish kokanee significantly different genetically from other kokanee populations, they are uniquely adapted to this system, given that introductions of wild and artificially produced kokanee from other watersheds were unable to persist in the Lake Sammamish system (Trout Unlimited et al. 2007, p. 14). The petition also states that each of the three run-timings exhibit different average fish lengths that correspond to their unique ecological settings and life histories. Based on the physical and behavioral factors identified in the petition, we find that there is substantial information indicating that Lake Sammamish kokanee may meet the discreteness element of our DPS policy.

If we determine that a population meets the DPS discreteness element, we then consider whether it also meets the DPS significance element. The DPS policy (61 FR 4722) states that if a population segment is considered discrete under one or more of the discreteness criteria, its biological and ecological significance will be considered in light of Congressional guidance that the authority to list DPSs be used “sparingly” while encouraging the conservation of genetic diversity. In making this determination, we consider available scientific evidence of the discrete population's importance to the taxon to which it belongs. Since precise circumstances are likely to vary considerably from case to case, the DPS policy does not describe all the classes of information that might be used in determining the biological and ecological importance of a discrete population. However, the DPS policy does provide four possible reasons why a discrete population may be significant. As specified in the DPS policy (61 FR 4722), this consideration of the significance may include, but is not limited to, the following:

(1) Persistence of the discrete population segment in a unique or unusual ecological setting;

(2) Evidence that loss of the discrete segment would result in a significant gap in the range of the taxon;

(3) Evidence that the discrete population segment represents the only surviving natural occurrence of the taxon that may be more abundant elsewhere as an introduced population outside of its historic range; or

(4) Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics (USFWS 1996).

The petitioners assert that the Lake Sammamish population is significant because it is native to the Sammamish Basin and genetically unique among native kokanee and sockeye populations in the western United States. They point to several studies demonstrating that this population is genetically distinguishable from a number of other kokanee and sockeye populations across the west. The petition states that: (1) Genetic data highlights the unique genetic structure of the runs relative to other kokanee and sockeye across the west; (2) a genetic difference exists within the kokanee in Lake Sammamish; and (3) artificially-produced kokanee from other watersheds were unable to persist in Lake Sammamish, as evident by the lack of a genetic signal from those introduced populations (Trout Unlimited et al. 2007, p. 14).

Information provided by the petitioners, in combination with information available in our files, indicates that this population may occur in a unique or unusual ecological setting, which suggests that the loss of Lake Sammamish kokanee may result in a significant gap in the natural range of the taxon. The petition states that the presence of three distinct kokanee populations separated both by run timing and distribution within the basin is a reflection of the unique ecosystems in the different regions of the basin and the kokanee's natural selection within those ecosystems (Trout Unlimited et al. 2007, p. 19). Therefore, information presented in the petition, in combination with information available in our files suggests that the Lake Sammamish kokanee may meet the significance criteria of our DPS policy.

We have reviewed the information presented in the petition, and have evaluated the information in accordance with 50 CFR 424.14(b). In a 90-day finding, the question is whether a petition presents substantial information that the petitioned action may be warranted. We do not make final determinations regarding DPSs at this stage; rather, we determine whether a petition presents substantial information that a population may be a DPS. Based on our review, we find that the July 9, 2007, petition does present substantial scientific or commercial information to indicate that the Lake Sammamish kokanee population may be a DPS based on genetic and ecological discreteness from other populations and representation of a significant gap in the natural range of the taxon. Therefore, the Lake Sammamish kokanee population may be a listable entity under the Act.

To meet the third element of the DPS policy, we evaluate the level of threat to the DPS based on the five listing factors established by the Act. We thus proceeded with an evaluation of information presented in the petition, as well as information in our files, to determine whether there is substantial scientific or commercial information indicating that listing of the Lake Sammamish kokanee population may be warranted. Our threats analysis and conclusion follow.

Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) Present or threatened destruction, modification, or curtailment of habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) Inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. In making this finding, we evaluated whether information on threats to Lake Sammamish kokanee presented in the petition and other information available in our files at the time of the petition review reasonably indicate that listing the species may be warranted. Our evaluation of this information is presented below.

The petitioners state that present or threatened destruction, modification, or curtailment of the habitat or range of the Lake Sammamish kokanee threatens this population such that listing may be warranted. The petition describes significant alterations that have occurred to the Lake Sammamish watershed, including: (1) The loss or degradation of available kokanee habitat resulting from the channelization of the Sammamish River for flood control; (2) the degradation of stream and lake water quality resulting from past point-source pollution and ongoing urbanization; (3) the alteration of stream hydrology due to increasing urbanization; and (4) the elimination of access to upstream habitats by kokanee because of manmade fish passage barriers (Trout Unlimited et al. 2007, pp. 22-25). Each of these potential threats are discussed below.

(1) The petition describes how the channelization of the Sammamish River for flood control resulted in the significant and continuing degradation of the available habitat for kokanee within the Sammamish River (Trout Unlimited et al. 2007, p. 22), and states that alteration of the channel and banks has resulted in significant sedimentation and flood scour. The petition states that lake stratification during summer likely affects the distribution and survival of kokanee because of temperature and pollutants (Trout Unlimited et al. 2007, p. 19). Information in our files indicates that the Sammamish River system has been highly altered, and converted from a meandering 28-mile (45-km) river into a 14-mile (22.5-km) narrow, steep-sided, and largely straight channel (Kerwin 2001, p. 28). The deepening of the channel and hardening of stream banks has significantly decreased its connectivity to the floodplain, reduced off-channel and side-channel habitats, and disconnected most of the smaller streams from the river, resulting in a loss of salmonid refugia and foraging habitat (Kerwin 2001, p. 392). Kerwin (2001, pp. 425-449) documented losses of stream channel and lake shore complexity and connectivity caused by bank hardening, riparian removal, and residential encroachment within Lake Sammamish and its tributaries. Jackson (2006, p. 4) states that as a result of decreased stream channel complexity, periodic flood events are now directed through the modified stream channels of Lake Sammamish tributaries, rather than dissipating over their floodplains, creating significant scour in the channels during the period when winter/late-run kokanee are staging to spawn or are spawning.

(2) The petition describes the degradation of water quality in Lake Sammamish from effluent discharges into Issaquah Creek (the largest tributary to Lake Sammamish) in the 1960s by a wastewater treatment plant, milk processing plant, fish hatchery, and mining operations (Trout Unlimited et al. 2007, pp. 22-23). The petitioners describe ongoing water quality impacts to Lake Sammamish and its tributaries from non-point source pollutants related to increased urbanization and highway runoff. They also state that water withdrawals in conjunction with urbanization have altered stream flows during the dry season, and that land use activities in King County, Washington, have resulted in increased stream temperatures and reduced dissolved oxygen levels (Trout Unlimited et al. 2007, p. 25). Information in our files indicates poor water quality related to urbanization has been identified as a habitat limiting factor for salmonids in Lake Sammamish and a number of its tributaries (Kerwin 2001, pp. 423-445).

(3) The petition describes the alteration of hydrology in kokanee spawning streams due to an increase in the percentage of impervious surfaces ( e.g. , sidewalks, roads, parking lots, roof tops), as a result of urbanization (Trout Unlimited et al. 2007, p. 23). The petitioners describe how increased stormwater runoff during the rainy season has increased pollutants and led to more intensive flash flood events, which scour stream channels, erode stream banks, cause turbidity in spawning tributaries, and contribute significant sediment pulses into Lake Sammamish. Water withdrawals in conjunction with land cover changes associated with urbanization have reduced summer base flows in the system and may prevent upstream migration of summer/early-run kokanee. However, low base flows are unlikely to impede the return of fall and winter-run kokanee adults due to their later migration timing. Information in our files indicates that urbanization and the conversion of the landscape from a forested watershed to one dominated by impervious surfaces has long been known to harm aquatic systems, principally through hydrologic changes (Booth et al. 2002, pp. 835-836). Modifications of the land surface through urbanization results in dramatic changes in stream flow patterns, significantly degrading instream habitats for fish and other aquatic biota. Kerwin (2001, pp. 438, 446) noted that impervious surface areas within the watersheds of two of the four major spawning tributaries for winter/late-run kokanee currently exceed 20 percent (Lewis Creek subbasin), or are projected to exceed 20 percent (Laughing Jacobs subbasin) under expected development levels, which is double the percentage determined to have demonstrable degradation to stream channels in this region (Booth et al. 2002, p. 842). Booth et al. (2002, p. 838) state that “imperviousness,” although an imperfect measure of human influence, is clearly associated with stream-system decline.

(4) The petition describes how past and present manmade fish passage barriers have prevented kokanee from accessing upstream tributary habitats. It states that the Interstate-90 culvert restricts winter/late-run kokanee to 0.75 mile (1.2 km) of spawning habitat on Lewis Creek (Trout Unlimited et al. 2007, p. 25), and that remnants of a weir constructed by property owners on Ebright Creek may have continued to block upstream passage for winter/late-run kokanee a number of years after its removal. The petitioners also claim that the State of Washington Issaquah Creek Hatchery blocks 32 miles (51.5 km) of potential summer/early-run kokanee spawning habitat on Issaquah Creek (Trout Unlimited et al. 2007, p. 25). Information in our files shows that winter/late-run kokanee that spawn in Lewis, Laughing Jacobs, and Ebright creeks only have access to less than one mile of stream. Most notable of the three tributaries is Lewis Creek, where kokanee have access to 0.75 mile (1.2 km) of stream (the longest of the three spawning tributaries) until they reach the Interstate-90 culvert that blocks passage to approximately 0.49 acres (0.2 hectares) of spawning habitat (Jackson 2006, p. 4). Winter/late-run kokanee were able to access Ebright Creek at least into the 1930s (Connor et al. 2000, p. 11), although passage was blocked by the construction of a barrier by property owners for an undetermined period of time prior to 1973. Conner et al. (2000, p. 28) noted that after this barrier was removed in 1973, Ebright Creek may have once again been blocked in the late 1980s by the remnants of an old fish weir and the roots of a cottonwood tree. There is no information in either the petition or our files that indicates kokanee passage into Ebright Creek remained blocked after the 1980s. The Washington Department of Game identified the Issaquah Creek Hatchery weir as a major factor in the decline of kokanee in this stream (Pfeifer 1982, as cited in Connor et al. 2000, p. 29).

The petition identifies numerous potential factors that may be affecting the Lake Sammamish kokanee, including: (1) The loss of stream channel and lake shore complexity and connectivity; (2) the degradation of stream and lake water quality; (3) the alteration of stream hydrology; and (4) the elimination of access to upstream habitats. Information in our files also indicates these factors may be affecting the population. We therefore conclude that the petition presents substantial information to indicate that the present or threatened destruction or modification of habitat or range may present a threat to Lake Sammamish kokanee.

The petitioners claim that past kokanee egg collections in the Lake Sammamish system for transport outside the system had significant impact on abundance and productivity of the kokanee population (Trout Unlimited et al. 2007, p. 20). Information in our files indicates that although kokanee egg collections took place within both the Lake Washington and Lake Sammamish watersheds, the eggs collected were largely used for hatchery supplementation of the natural production of various stream systems within these basins (Pfeifer 1992, pp. 9, 68-69). The removal of as many as 14 million eggs from the Bear Creek (fall/middle-run) kokanee population in the 1940s (Berge and Higgins 2003, p. 6) may have contributed significantly to the eventual loss of this segment of the population. However, since 1979, Lake Washington and Lake Sammamish have been managed for wild kokanee production, and there have been no introductions of hatchery broodstocks or nonnative stocks to these systems (Pfeifer 1992, p. 9).

The petitioners provided little information on the impact of recreational fisheries to Lake Sammamish kokanee. However, they do state that kokanee were an important sport fish in the past. Information in our files indicates sport fishing may have contributed to initial declines in the population, although there currently is no intentional fishery for kokanee in Lake Sammamish, and a harvest ban has been in place since 1986 (Pfeifer 1995, p. 12). Nevertheless, some kokanee (albeit in low numbers and of unknown stock) are harvested illegally (Pfeifer 1995, p. 33), and incidental catch of kokanee through other fisheries may occur (Coyle et al. 2001, p. 22).

The petition identifies egg collections and sport fishing as potential factors affecting Lake Sammamish kokanee. Although information in the petition indicates that overutilization for commercial, recreational, scientific or educational purposes likely contributed to the population's initial decline, information in our files suggests this is no longer a threat to the Lake Sammamish kokanee. Therefore, we find that the petition does not present substantial information indicating that the overutilization for commercial, recreational, scientific or educational purposes may present a threat to Lake Sammamish kokanee.

Neither the petition nor information in our files presents information that would indicate that disease is a current threat to Lake Sammamish kokanee, and the effect of disease on the Lake Sammamish kokanee population is largely unknown (Connor et al. 2000, p. 30).

The petition asserts that lake stratification during summer likely affects the distribution and survival of kokanee either directly because of temperature and pollutants (as described in Factor A), or indirectly through the movement and distribution of its zooplankton food sources and its predators (Trout Unlimited et al. 2007, p. 19). It also states that nonnative fish species ( e.g. , black bass ( Micropterus spp.), yellow perch ( Perca flavescens )) and native fish species ( e.g. , northern pikeminnow ( Ptychocheilus oregonensis ), coastal cutthroat trout ( O. clarkii clarkii )) prey on young kokanee in Lake Sammamish (Trout Unlimited et al. 2007, p. 22) (see also Factor E discussion). The petition also states that permanent habitat alteration in the Sammamish River has removed areas previously used by kokanee as refugia from predators (Trout Unlimited et al. 2007, p. 22). Information in our files indicates that predation has been identified as a potential threat to kokanee (Pfeifer 1995, p. 16-17; Connor et al. 2000, p. 30; Coyle et al. 2001, p. 23). However, the petition did not provide information on the rates of predation, and no information is available in our files with which to assess this potential threat. Pfeifer (1995, p. 16) states that predation in Lake Sammamish is certainly likely, but whether it has increased over historic levels is uncertain, since appropriate sampling has not occurred. There is, however, anecdotal evidence indicating coastal cutthroat populations in the Lake Washington basin have increased in abundance since the 1970s (Nowak et al. 2004, p. 625).

No information on disease was presented in the petition, and no information on this potential factor was available in our files. Some qualitative information was presented related to predation, which is generally consistent with information available in our files. However, the petition did not present, and our files do not include, quantitative or specific information on the possible impacts of predation on Lake Sammamish kokanee. Therefore, we find that the petition does not present substantial information indicating that disease or predation factors may present a threat to Lake Sammamish kokanee.

The petitioners assert that the continued destruction, modification and curtailment of habitat and other manmade factors are having significant impacts on Lake Sammamish kokanee, and are not regulated in a manner that protects the population (Trout Unlimited et al. 2007, p. 25). The petitioners claim that although some conservation benefits to Lake Sammamish kokanee may be gained through the recently adopted Federal recovery plan for listed Puget Sound Chinook salmon (Shared Strategy Development Committee 2007), this plan does not specifically address conservation or recovery of kokanee (Trout Unlimited et al. 2007, p. 27). Consequently, the petitioners state that the effectiveness of this plan to incidentally address currently limiting factors of the Lake Sammamish kokanee population is uncertain. The petition acknowledges that the Washington Department of Fish and Wildlife (WDFW) has committed to monitor the winter/late-run spawner abundance and hydrological conditions in the three known spawning streams as funding and resources allow (Jackson 2006, cited in Trout Unlimited et al. 2007, p. 27). However, the petitioners assert that although this monitoring will help refine future management options and create a foundation for a recovery plan, it does not ensure persistence or recovery of the winter/late-run kokanee population. They state that the WDFW is considering a supplementation plan for winter/late-run kokanee, but the petitioners remain concerned that implementation of the plan is uncertain and cannot conserve or recover the species without a comprehensive program that addresses the primary limiting factors and factors leading to the decline of the population. The petitioners also assert that although scientific reviewers have proposed further investigations and studies of the Lake Sammamish kokanee population, policy-makers have not taken the next step of proposing changes to management actions (Trout Unlimited et al. 2007, p. 27), and that conservation efforts by WDFW and King County are not enough by themselves to recover the winter/late-run kokanee, given the multiple municipalities that are affecting the Lake Sammamish watershed.

Information in our files indicates that the Cedar River/Sammamish River/Lake Washington watershed (Water Resource Inventory Area 8) has the highest human population in the State, which is projected to increase by 24 percent between 2002 and 2022 (Shared Strategy Development Committee 2007, p. 238). Accordingly, we expect that this already highly urbanized watershed will be further developed. The Puget Sound Salmon Recovery Plan states that regulations, incentives, and educational outreach will be used to implement actions to protect or restore habitat within the Sammamish River, Issaquah Creek, and Lake Sammamish (Shared Strategy Development Committee 2007, p. 242). Where these habitat improvement actions overlap with the Lake Sammamish kokanee distribution (primarily in the mainstem and lake habitats), they are also likely to provide conservation benefits to this species. Jackson (2006, p. 5) states that, at a minimum, the Washington Department of Fish and Wildlife Fish Management Division Region 4 Fish Program would annually collect data needed to estimate escapement of late-run kokanee in the core spawning tributaries (i.e., Lewis Creek, Laughing Jacobs Creek, and Ebright Creek). Jackson (2006, p. 4) also states that, if Lake Sammamish tributary habitat improvements are not addressed, winter/late-run kokanee productivity will not improve and may likely decrease, posing the threat of local or population extinction.

According to information available in our files, existing regulations have been somewhat effective in reducing or slowing development impacts to Lake Sammamish kokanee habitat, but not in eliminating them. Although there is a renewed focus on salmon recovery for the Lake Washington/Lake Sammamish Basin, the conservation benefits to kokanee from recovery actions directed at Chinook salmon remains uncertain.

The petition presents information indicating that existing regulations may be inadequate to protect Lake Sammamish kokanee from the continued destruction, modification, and curtailment of habitat, and that conservation or recovery plans that specifically target the petitioned species have not been developed. Information in the petition and in our files supports these claims. Therefore, we find that the petition presents substantial information indicating that the inadequacy of existing regulatory mechanisms may present a threat to Lake Sammamish kokanee.

The petitioners claim past and current fisheries management is a threat to Lake Sammamish kokanee, and describe how the transplanting of millions of nonnative kokanee and sockeye into the system created competition for spawning grounds, food resources in the lakes, and rearing areas (Trout Unlimited et al. 2007, p. 21). They also state that when the Issaquah Creek hatchery was built in 1937, the weir forced the kokanee into holding ponds, preventing them from reaching the 32 miles (51 km) of spawning habitat above the barrier. Once it was determined that there was no use for the fish, the hatchery drained the ponds, leaving the kokanee to die (Kvam et al. 1999; Buehler, 2000, in Trout Unlimited et al. 2007, p. 22). The petitioners also claim that the continued operation of the weir and hatchery production of Chinook and coho salmon ( O. kisutch ) could limit the recovery of summer/early-run kokanee through competition and predation impacts (Trout Unlimited et al. 2007, p. 22). Our files also contain information regarding competition associated with the introductions of nonnative sockeye salmon, which are believed to have increased competition with native juvenile kokanee for food resources (Conner et al. 2000, p. 30). Summer/early-run and fall/middle-run kokanee may be especially vulnerable to redd superimposition (the excavation of a new nest on top of an existing nest) by sockeye salmon (Berge and Higgins 2003, p. 38). Information in our files indicates that summer/early-run kokanee were destroyed during past hatchery weir operations, which likely contributed to this run's decline. Thousands of summer/early-run kokanee were reportedly killed at the weir during the 1960s and 1970s because of concerns over potential disease transmission (Connor et al. 2000, pp. 27-28). The Issaquah Creek weir is still in operation, although the removal of kokanee is no longer practiced. There is insufficient information in our files to determine if future weir operations will threaten summer/early-run kokanee, or whether continued Chinook and coho salmon production threaten kokanee through predation, although predation has been identified by others as a potential concern (Pfeifer 1995, p. 17). Information in our files suggests that competition for spawning sites with Chinook and coho salmon may be a threat to summer/early-run and fall/middle-run kokanee (Berge and Higgins 2003, p. 38), but not to winter/late-run kokanee because of differences in habitat use (Berge and Higgins 2003, pp. 38-39).

The petitioners assert that climate change is one of the potentially largest future impacts to kokanee, and that although the impact of different climate scenarios on salmonids is an active area of scientific research, the impact on kokanee has not been thoroughly examined. They claim that increases in regional temperatures could result in thermal barriers for kokanee in stream and lake habitats; act as a fatal stressor to individuals; and alter chemical processes, food web dynamics, lake stratification, nutrient cycling, and hydrologic patterns. The petition states that while the effects of climate change are harder to pinpoint, they are real, imminent and must be proactively addressed to ensure that kokanee survive into the future (Trout Unlimited et al. 2007, p. 26). Information in our files indicates that since 1950, the average annual air temperatures at the majority of meteorological stations in the northwestern region have increased by approximately 0.25 degrees Celsius (C) per decade, and climate models predict an additional increase of 1.5 to 3.2 degrees C by the middle of the 21st century (Battin et al. 2007, p. 6720). The increases in air temperature for the Puget Sound region during the 20th century are evident, and further significant increases are predicted by the middle of the 21st century (Snover et al. 2005, p. 13; Battin et al. 2007, p. 6720). Snover et al. (2005, pp. 6-7) described a range of projected habitat changes for waters in the Puget Sound region similar to those identified by the petitioners. Nelitz et al. (2007, p. 18) state that in the Pacific Region of Canada (British Columbia and Yukon Territory), watersheds where thermal regimes are currently near the upper tolerance limits for salmon migration and spawning will likely be the most vulnerable to future changes and resultant adverse effects on salmon.

The petition presents information indicating that competition with other salmonids may pose a threat to some of the Lake Sammamish kokanee runs, and potential climate change impacts could threaten the population. Based on that information and on information available in our files, we conclude that substantial information exists to indicate that other natural or manmade factors may present a threat to Lake Sammamish kokanee.

We have reviewed the petition and the literature cited in the petition, and evaluated the information to determine whether the sources cited support the claims made in the petition. We also reviewed reliable information that was readily available in our files to evaluate the petition.

Berge and Higgens (2003, p. 3) state that the distribution of native kokanee in the greater Lake Washington watershed appears to be limited to the Lake Sammamish population. Populations that spawned in Lake Washington tributaries (other than the Sammamish River system) appear to be functionally extinct (Berge and Higgins 2003, pp. 3, 26). The Lake Sammamish population diversity and abundance has also declined significantly, with apparently only one of the three run-timings remaining extant (Connor et al. 2000, p. 15; Berge and Higgins 2003, p. 21, 33; Jackson 2006, p. 1).

If, as the petitioners suggest, Lake Sammamish kokanee constitute a distinct vertebrate population segment, we find that the petition presents substantial information to indicate that listing Lake Sammamish kokanee under the Act may be warranted due to: (1) The present destruction, modification, or curtailment of the population's habitat or range (Factor A); (2) the inadequacy of existing regulatory mechanisms (Factor D); and (3) other natural or manmade factors affecting its continued existence (Factor E).

In summary, we conclude that the petition has presented substantial information that listing may be warranted for Lake Sammamish kokanee. As such, we are initiating a status review to determine whether listing Lake Sammamish kokanee under the Act is warranted.

A complete list of all references cited is available on the Internet at http://www.regulations.go v and upon request from the Western Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this document are staff of the Western Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

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

Atlantic tunas are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act (ATCA). ATCA authorizes the Secretary of Commerce (Secretary) to promulgate regulations, as may be necessary and appropriate, to implement recommendations by the International Commission for the Conservation of Atlantic Tunas (ICCAT). The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NOAA (AA). The implementing regulations for Atlantic HMS are at 50 CFR part 635.

On May 28, 1999, NMFS published in the Federal Register (64 FR 29090) final regulations, effective July 1, 1999, implementing the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (1999 FMP). Among other things, these regulations included a list of fishing gears authorized for harvest of HMS. On October 2, 2006, NMFS published in the Federal Register final regulations (71 FR 58058), effective November 1, 2006, implementing the “Final Consolidated Atlantic HMS Fishery Management Plan” (Consolidated HMS FMP), which consolidated the management of all Atlantic HMS (i.e., sharks, swordfish, tunas, and billfish) into one comprehensive FMP.

This proposed rule would: (1) authorize green-stick gear for the harvest of Atlantic tunas by Atlantic Tunas General category permitted vessels; (2) authorize green-stick gear for the harvest of Atlantic tunas by HMS Charter/Headboat (CHB) permitted vessels; (3) authorize green-stick gear for harvest of Atlantic tunas by Atlantic Tunas Longline category permitted vessels (but continuing to restrict BFT retention to incidental retention only); (4) authorize harpoon use for Atlantic tunas fishing by HMS CHB permitted vessels; and (5) require possession and use of a sea turtle control device as an addition to the already existing requirements for sea turtle bycatch mitigation gear. This action is published in accordance with the framework procedures set forth in the Consolidated HMS FMP and is supported by the analytical documents prepared for the Consolidated HMS FMP.

Green-stick and harpoon gears are used primarily to catch yellowfin tuna (YFT) and BFT, respectively. The most recent YFT stock assessment, conducted in 2003, indicated that the range of biomass estimates (B) spanned the estimate of biomass at maximum sustainable yield (B MSY ), and the range of fishing mortality (F) estimates spanned the estimate of fishing mortality at MSY (F MSY ). This means that the stock may be approaching an overfished condition. YFT is the principal species of tropical tuna landed by U.S. fisheries in the western North Atlantic. Total estimated landings, including recreational landings, were 5,568 metric tons (mt) and 7,075 mt in 2005 and 2006, respectively, as reported by the United States to ICCAT in 2007.

The latest western Atlantic BFT stock assessment conducted in 2006 indicated that estimated spawning stock biomass (SSB) levels were well below the estimated SSB MSY and estimates of F were above F MSY . Thus, for western Atlantic BFT, the stock is overfished and overfishing is occurring. The ICCAT Standing Committee on Research and Statistics (SCRS) considered this and other information when making recommendations to ICCAT for setting total allowable catch (TAC) limits that would allow for stock rebuilding. Among ICCAT member states, the United States receives 57.48 percent of the adjusted western Atlantic BFT TAC which is determined after allocations have been made for member states with minor harvests and for bycatch/incidental catch by the United States, Canada, and Mexico. For 2007, the total U.S. TAC is 1,190.12 mt. From 1982 to 2004, the level of U.S. BFT landings were generally reflective of the annual U.S. quota. That is, regulatory mechanisms capped landing levels near annual quotas. Since 2004, total BFT landings have been considerably less than the adjusted fishing year quota with 2005, 2006, and 2007 landings representing 33, 15, and 40 percent of the adjusted quotas for those fishing years, respectively. Commercial fisheries are focused on “large medium” BFT [73 inches (185 cm) to less than 81 inches (206 cm)] and “giant” BFT [81 inches (206 cm) or greater]. Commercial categories are monitored by a census of landing cards (submitted for each fish landed), whereas recreational catch and landings are monitored by NMFS via the Large Pelagic Survey, the NMFS Automated Landings Reporting System, and cooperative state harvest tagging programs in North Carolina and Maryland. The majority of BFT landings are by handgear fisheries in the commercial Atlantic Tunas General category and recreational HMS Angling and HMS CHB categories. Atlantic Tunas General category fisheries are focused in New England during the summer and fall and the South Atlantic during the winter. Atlantic Tunas General category fishing year quotas, adjusted as necessary for underharvest, have not been met since 2004, when landings amounted to 96 percent of the quota. Atlantic Tunas General category landings, as a percentage of adjusted General category quota, were 33 percent (234 mt out of 707.3 mt) for 2005, 14 percent for 2006 (165 mt out of 1,163.3 mt), and 19 percent for 2007 (121 mt out of 643.6 mt).

BFT movements throughout the Atlantic are the subject of much research and affect the availability of harvest for regional fisheries. Over the last few years, the availability of large medium and giant BFT in the New England area has declined, which has reduced the ability of Atlantic Tunas General category fishermen to harvest the June through September subquotas and the ability of purse seine and harpoon fishermen to harvest their respective quotas, which are traditionally taken in the New England region. The reason for the decline in availability of medium and giant BFT is unknown, but two possible explanations are: 1) that the distribution of BFT in the Atlantic has changed in recent years with more fish present in North Atlantic waters off Canada; and/or 2) BFT abundance has decreased in the Western Atlantic.

NMFS intends with this proposed rule to allow harvest of Atlantic tunas with gears that are generally efficient in harvesting target species and, at the same time, are low in bycatch and bycatch mortality. Allowing gears with these characteristics may have benefits to target and non-target species over gear with higher bycatch and bycatch mortality levels. As described above, since 2004, U.S. BFT landings have been well within the U.S. quota allocation. Authorization of green-stick and harpoon gears in this proposed rule is not expected to result in a great increase in BFT landings; however, if an increase were to occur, repeated quota under-harvests in recent years indicate that room exists within the U.S. BFT quota allocation to allow for some additional landings. Additionally, the 2006 ICCAT Recommendation regarding western Atlantic BFT included a provision for a Contracting Party to transfer up to 15% of its TAC to other Contracting Parties. Also, there is continued interest among ICCAT contracting parties for unharvested western Atlantic BFT quota, and this has the potential to result in requests for transfer of TAC and/or reallocation of the Western Atlantic TAC at ICCAT to other member nations in the future. To the extent that the U.S. fishery is able to fill the U.S. BFT quota, the United States would increase the likelihood of maintaining its allocation.

The 2004 BiOp for the PLL fishery found that the long-term continued operation of the Atlantic PLL fishery as proposed was likely to jeopardize the continued existence of leatherback sea turtles, a species listed as endangered under the Endangered Species Act (ESA). Reasonable and prudent alternatives (RPAs) under section 7 of the ESA (50 CFR 402.02) were developed and implemented to avoid jeopardy by, among other things, reducing post-release mortality of leatherback turtles. The RPAs included several measures to accomplish these goals, one of which was to require the use of gear removal measures to maximize post-release survival. On July 6, 2004, NMFS published the final rule (69 FR 40736) implementing sea turtle bycatch and bycatch mortality mitigation measures for the PLL fishery. This final rule provided for additional rulemaking and non-regulatory actions, as necessary, to implement any other management measures required under the 2004 BiOp.

Green-stick gear is a fishing gear generally used for tuna fishing in several areas of the world and consists of a mainline with hooks on leaders or gangions trolled from a long fiberglass or bamboo pole. Baits used with green-stick gear may be artificial or natural. Green-stick gear has been used in the Atlantic commercial and recreational bigeye (BET), albacore, YFT, skipjack (collectively referred to as BAYS tunas), and BFT fisheries since the mid-1990s, but it was not originally included as a separate gear on the list of authorized HMS fishery gears in the 1999 FMP. Logbook records show that commercial catches of BAYS and BFT with green-stick gear continued in the Atlantic Tunas General, Atlantic Tunas Longline, and the HMS CHB categories and were classified either as “handgear” catches in the Atlantic Tunas General and HMS CHB categories or as “longline” catches in the Atlantic Tunas Longline category, depending on gear configuration. In recent years, public comments indicate that green-stick gear use, under current regulations, does not well suit the fishing methods and locations preferred by fishermen wanting to use the gear.

In order to address these public comments, NMFS considered an alternative in the Draft Consolidated HMS FMP to authorize green-stick gear for harvest of BAYS tunas. Sparse data on green-stick gear use that was available for the Draft Consolidated HMS FMP indicated that YFT dominated green-stick gear landings with BFT and BET making up a small portion of the catch. During public comment on the Draft Consolidated HMS FMP, comment was received expressing interest in using the gear to target other species, including BFT.

NMFS had, and continues to have, concern about the health of BFT stocks as they are severely overfished with overfishing occurring. Because of NMFS' concern at that time about the potential for increased effort that might occur, and the potential for such an increase in effort and interest in targeting BFT to negatively affect BFT stocks, NMFS did not authorize green-stick gear as a separate gear at that time in the Final Consolidated HMS FMP.

Instead, in the Consolidated HMS FMP, NMFS clarified that green-stick gear could continue to be used in a limited way as long as the green-stick gear use met the definition of “longline” (three or more hooks are attached by leaders or gangions to a mainline) or “handgear” (two hooks or fewer). Subsequently, HMS Advisory Panel (AP) and public comments on green-stick gear use continued to indicate that green-stick gear possession and its use as allowed under these definitions in the Atlantic Tunas General, HMS CHB, and Atlantic Tunas Longline categories does not well suit the fishing methods and locations preferred by fishermen wanting to use the gear. In these three categories, green-stick gear has historically been fished with up to 10 hooks or gangions. Under the current definitions, green-stick gear with three or more hooks or gangions attached to a mainline would be considered a longline; however, longline is not an authorized gear for Atlantic Tunas General or HMS CHB category permitted vessels. Also under current regulations regarding Atlantic Tunas Longline permitted vessels, green-stick gear with three or more hooks attached to a mainline, which meets the definition of longline, may not be possessed in PLL or BLL closed areas.

Following publication of the Consolidated HMS FMP, NMFS continued to look for additional data to characterize more completely the green-stick gear fishery and collected anecdotal information from the public about the green-stick gear fishery. Additional data on green-stick gear fishing not included in the Draft Consolidated HMS FMP was obtained from NMFS Coastal Logbooks. These data also showed that YFT dominated the green-stick gear catch and that BET and BFT were the second and third largest green-stick gear catch by weight from 1999-2007. The Coastal Logbooks also showed that green-stick gear has a low bycatch rate and that the gear has been used over a long period of time. These data confirmed other anecdotal information received from fishermen about the dominant species caught and bycatch rate of the green-stick gear fishery. They also indicated that fishing pressure on BFT stocks has occurred with green-stick gear since at least 1999 and these landings have been recorded and included in the overall U.S. BFT catch data reported to ICCAT, even if it has been difficult to specifically identify these landings by gear. While there is a possibility that effort in the BFT fishery may increase if green-stick gear is authorized for harvest, the information above indicates that green-stick gear effort has developed to its current level over a period of several years. Due to the capital investments involved in rigging a vessel to use green-stick gear that are described below along with the harvest monitoring and size and retention limit capabilities available to NMFS to limit harvest of BFT as needed, NMFS believes that it is unlikely that effort in the green-stick fishery for BFT will increase greatly or that effort increases will significantly impact BFT stocks.

During this period, NMFS continued to receive comment on the gear definitions as they applied to rod and reel gear. Fishermen said that it has been common practice in many fisheries for many years to use more than two hooks on rod and reel gear. As mentioned previously, rod and reel is commonly described by NMFS as having no more than two hooks to avoid confusion with the longline definition which states that a longline ”...consists of a mainline or groundline with three or more leaders (gangions) and hooks, whether retrieved by hand or mechanical means (50 CFR 635.2).” To address confusion and comments from the public requesting the continued ability to use more than two hooks on rod and reel, NMFS notes that the absence of a mainline on rod and reel gear excludes it from the longline definition and thus, it may be used with more than two hooks.

In this action, NMFS proposes the authorization of green-stick gear in the Atlantic tunas fishery (to include BFT) after considering 1)the additional data on the green-stick gear fishery which confirmed that YFT dominate the catch; 2) that BET and BFT have been landed with this gear over the period 1999-2007; 3) that large increases in effort or landings of BFT in the green-stick gear fishery are unlikely; and 4) that bycatch rates in the green-stick fishery are low. When developing this proposed rule, NMFS assessed the available information on past and present use of green-stick gear in Atlantic tuna fisheries as a baseline for analyzing the anticipated effects of green-stick gear. The proposed rule would define green-stick gear as an “an actively trolled mainline attached to a vessel and elevated or suspended above the surface of the water with no more than 10 hooks or gangions attached to the mainline. The suspended line, attached gangions and/or hooks, and catch may be retrieved collectively by hand or mechanical means. Green-stick does not constitute a pelagic longline or a bottom longline as defined in this section or as described at § 635.21(c) or § 635.21(d), respectively.” Green-stick gear is also distinguished from PLL and BLL gear in that green-stick gear is actively trolled and does not have floats capable of supporting the mainline, as with PLL, nor weights and/or anchors capable of maintaining contact between the mainline and the ocean bottom, as with BLL. With such distinction between gears, this proposed rule would allow green-stick gear to be used by Atlantic Tunas Longline category permitted vessels at times and in areas including, but not limited to, times and areas closed to longline fishing if the requirements for removal of any one of the elements of a pelagic longline are met. The proposed rule would not change the target catch requirements currently in place for Atlantic Tunas Longline vessels, thus ensuring that BFT would remain an incidental catch in the longline fishery regardless of whether green-stick gear is used.

Collection of data on fishing activity with green-stick gear is important to adequately assess gear performance, efficiency, and bycatch levels. Two existing programs that may be used to collect information on the green-stick gear fishery are vessel logbooks and dealer reports. Currently, NMFS has the authority to require logbook reporting by HMS CHB and Atlantic tunas vessels for which a permit has been issued. However, only Atlantic Tunas Longline category permit holders currently are selected for reporting and thus required to report via logbooks. The logbook program provides self-reported catch, effort, and discard information. Although not currently proposed, if NMFS were to require HMS CHB and Atlantic Tunas General category vessels to report via logbooks, a large increase in the capacity of the logbook program would be required to handle the increased number of logbook reports. Dealer reports made through the trip ticket program in the southeastern United States and various dealer reporting programs in the northeastern United States could provide landings information and, for some states, effort information. This information is gathered by dealers or their staff based on interviews of the vessel captain or crew. To facilitate green-stick gear specific data collection, coordination of data collection effort for this gear among states and regions and designation of a specific gear code would likely be necessary. NMFS seeks public comment on the pros and cons of these data collection programs regarding the quality and applicability of the information collected as well as social and economic impacts.

Under existing regulations, Atlantic Tunas Longline category permitted vessels are currently allowed to possess onboard and/or use only 18/0 or larger circle hooks with an offset not to exceed 10° and/or 16/0 or larger non-offset circle hooks in all areas except the Northeast Distant area, where other requirements apply (50 CFR 635.21(c)(5)(iii)(C)). The existing regulation was developed to reduce post-release hooking mortality (PRM) of sea turtles with the added benefit of reducing PRM of Atlantic billfish, other bycatch species, and regulatory discards. As green-stick fishing gear is actively trolled and the baits are fished at or above the surface of the water, circle hooks used with green-stick gear are not as effective in hooking fish because the line and hook cannot be slowly and steadily pulled through the mouth to lodge in the fish's jaw. Instead fish are hooked when the fish actively strikes the bait. As a result of this active strike, J-hooks are less likely to be ingested. Ingestion of hooks by fish has been related to the practice of dropping baits back to the fish thereby allowing the fish more time to swallow a bait. Dropping baits back to a fish is not practiced with green-stick gear because the action of the bait that lures a fish to strike is caused by tension on the mainline, the flex of the fiberglass pole, and the forward movement of the vessel while actively trolling. The fish strike occurs when the baits are actively trolled at or above the surface of the water. Also, the size of the mainline and haul-back gear, which is often power operated, does not facilitate effective and timely drop-back of the bait as is possible with a rod and reel. Because J-hooks are more effective than circle hooks when fished with green-stick gear, and J-hooks are not expected to result in high PRM rates, this proposed rule would allow Atlantic Tunas Longline permitted vessels to possess no more than 20 J-hooks if green-stick gear is onboard. Onboard Atlantic Tunas Longline permitted vessels, J-hooks would only be allowed for use with green-stick gear, and would be limited to 10 hooks for each green-stick gear.

In the Gulf of Mexico, PLL vessels are prohibited from using live bait in order to reduce the incidental catch of Atlantic billfish. NMFS is concerned that the 20 J-hook allowance, as described above, may decrease NMFS ability to enforce the live bait prohibition because many fishing rigs that are used to catch live bait are rigged with J-hooks. The possession of such J-hooks is currently prohibited. NMFS seeks comment on the possibility of establishing a minimum hook size for J-hooks allowed with green-stick gear onboard Atlantic Tunas Longline Permitted vessels. Such a requirement could be applied to the entire Atlantic, Gulf of Mexico, and Caribbean Sea or to the Gulf of Mexico only.

PLL vessels are restricted in the Northeast Distant Restricted Fishing Area (NED) to possessing onboard and/or using only whole Atlantic mackerel and/or squid bait for the purpose of reducing sea turtle interactions as stipulated by the 2004 BiOp. For similar reasons, PLL vessels outside the NED are restricted to possessing onboard and/or using only whole finfish and/or squid bait. Green-stick gear is usually fished with artificial baits most of which are shaped like squid and made of rubber or plastic. The baits are preferred because they last longer on the hook when trolled in comparison to natural, dead squid which often fall apart relatively quickly when trolled. Some PLL vessels are rigged with and use both green-stick gear and longline gear on the same trip. NMFS seeks comment on allowing PLL vessels to possess and/or use artificial baits if green-stick gear is onboard.

A portion of green-stick landings has been reported via the NMFS Southeast Region's Coastal Logbook from 1999-2007 (i.e., by Atlantic Tunas General or Atlantic Tunas Longline category fishermen who also hold a NMFS Southeast Region fishing permit that requires logbook reporting). The limited amount of available data from these 98 fishing trips indicates that green-stick gear landings were dominated by YFT (82.9 percent), followed by BET (9.8 percent), BFT (2.3 percent), and little tunny (2.0 percent) by weight. All of the landings were reported from the area off the mid-Atlantic states.

Some commercial green-stick gear catches were reported in the PLL Logbook Program from 1999-2002 prior to the green-stick gear data field being eliminated from the logbook form in 2003. Of the 54 green-stick gear sets reported, 53 were from the Mid-Atlantic Bight Statistical Area and one set was reported from the Northeast Coastal Statistical Area. Landings from this dataset were dominated by YFT (81.9 percent), followed by dolphin fish (6.9 percent) and other BAYS tunas (6.5 percent) by number. Several other species were reported as well, including four BFT.

There is a potential for increased landings of YFT, BET, BFT, and other HMS under this proposed rule, but NMFS cannot accurately quantify anticipated landings for this gear due to the limited amount of effort and landings information available. These potential increases are not anticipated to be large however, because this gear type has been and continues to be used in Atlantic HMS fisheries. Some green-stick gear logbook information is included in species-specific stock assessments as the effort and landings are grouped with other fishing activity conducted with similar fishing techniques, such as trolling. This somewhat mitigates the lack of information specific to green-stick gear as stock assessment estimates of fishing mortality historically included and continue to include some green-stick gear fishing activity. Additionally, for BFT, all landings are required to be reported (commercial landings by dealers and via logbooks if a vessel is selected, and recreational landings via the NMFS Automated Landings Reporting System, on-line, or, in North Carolina or Maryland, to a reporting station); therefore, landings with green-stick gear have been and continue to be counted against the U.S. BFT quota.

As of November 30, 2007, there were 3,616 Atlantic Tunas General, 3,901 HMS CHB, and 218 Atlantic Tunas Longline Category permitted vessels that, under this proposed rule, would be authorized to use green-stick gear. Because no mechanism exists to identify whether an individual HMS-permitted vessel uses green-stick gear, an accurate count of these vessels cannot be obtained; however, a small portion of these vessels likely use green-stick gear and would continue to do so. While NMFS does not anticipate greatly increased landings from these vessels, this action could result in an increase in the overall effort deployed by these categories of permit holders. This could occur if additional fishermen become aware of green-stick gear efficiency in catching Atlantic tunas and of the higher quality of fish product that can be delivered to the dock, resulting in higher ex-vessel prices. Green-stick gear could also be deployed at times and in ways that enable more hooks to be fished during a trip, such as while a vessel is in transit between fishing locations and during times that other authorized gears may be deployed. Thus, NMFS anticipates that if increased landings occur, the largest increases likely would be for YFT, BET, and BFT as these are the three most frequently caught tunas reported in Coastal and PLL logbooks. NMFS anticipates that any such increase in effort would result in minimal increases in bycatch or bycatch mortality of target and non-target species.

Under this proposed rule, bycatch mortality of released fish, including billfish, is anticipated to be low given that baits on green-stick gear are trolled at high speed and deployed at or slightly above the surface of the water. Fish are hooked as they strike the baits which most frequently results in hooking locations in the jaw or other mouth area and does not often result in deep-hooking. Ingestion of hooks due to dropping the baits back to a fish is not anticipated as dropping the baits back is not practiced with green-stick gear as described above. Adverse ecological impacts are anticipated to be minimal because green-stick gear is an actively trolled and tended gear. Thus, fish may be retrieved quickly resulting in minimal physiological stress and an improved release condition in comparison to longline gear. Also, these same benefits for improved release condition result from the power haul-back capability of green-stick gear, thus in this way, may have benefits over rod and reel for Atlantic tunas. Based on available information, interactions with sharks while using green-stick gear are rare.

Interactions with protected resources are not anticipated to increase as green-stick gear is a surface gear that is actively trolled with baits deployed at or slightly above the surface of the water. Green-stick gear does not typically pose a risk of interaction with protected resources because sea turtles do not feed while swimming at a speed fast enough to keep up with green-stick gear baits while they are trolled, and marine mammals are not known to typically interact with baits trolled at or above the water's surface. The gear is tended as it is fished and therefore can be monitored and or maneuvered to avoid any interactions should they become imminent. There is no record of protected species interactions in the existing data.

The proposed rule is expected to have positive social and economic impacts as green-stick gear is popular with Atlantic Tunas General category permit holders in areas of the Atlantic where it has been used since at least the mid-1990s. Positive economic impacts are expected as authorization of green-stick gear for harvest of Atlantic tunas would allow permit holders some additional opportunities for harvest. Negative public comments were not expressed during a series of public information meetings about green-stick authorization held during the summer of 2007 in Foxboro, MA; Silver Spring, MD; Morehead City, NC; and Saint Petersburg, FL; and at the South Atlantic Fishery Management Council (SAFMC) in Key West, FL. Green-stick gear authorization was also discussed at several HMS Advisory Panel (AP) meetings in recent years. A number of AP members expressed support for green-stick gear authorization for Atlantic tunas including BFT. A commonly expressed reason for support at the public information meetings, the SAFMC meeting, and the HMS AP meetings was the low bycatch rate of green-stick gear and the potential for low post-release morality rates of fish released from green-stick gear in comparison with other fishing gears such as longline (which is not tended) or rod and reel (due to long average fight times).

HMS CHB vessels may currently fish under the Atlantic Tunas General category regulations and may fill the daily retention limit for either the Atlantic Tunas General or the HMS Angling category. The size category of the first BFT retained determines the fishing category applicable to the vessel that day. For example, if an HMS CHB catches and retains a school, large school, or small medium BFT [measuring 27 inches (69 cm) to less than 73 inches (185 cm) curved fork length], the vessel may not retain a commercial-sized BFT [measuring 73 inches (185 cm) or greater] for sale. HMS CHB permitted vessels are allowed one trophy BFT per year, which cannot be sold. HMS CHB vessel operators may sell commercial-sized BFT only when fishing under the Atlantic Tunas General category regulations. Other than for the Harpoon category, dart harpoon use currently is authorized only as a secondary gear (i.e., as cockpit gear) to assist in subduing, or bringing onboard a vessel, Atlantic HMS that have been first caught or captured using authorized primary gears.

This proposed rule would authorize harpoon gear for the commercial harvest of Atlantic tunas, including BFT, for HMS CHB permitted vessels. While fishing under the rules that apply when filling the Atlantic Tunas General category BFT retention limit, HMS CHB vessels would be able to use harpoon gear to fish for and retain BFT greater than 73 inches (185 cm) curved fork length. NMFS received information indicating that authorization of harpoon gear in the HMS CHB category would allow HMS CHB operators increased flexibility and efficiency in harvesting BFT, particularly given the high costs of BFT fishing.

This action would not change the number or size of BFT allowed to be retained on an HMS CHB vessel, but would provide HMS CHB fishermen the opportunity to use harpoon gear in filling the Atlantic Tunas General category daily retention limit. The Atlantic Tunas General category quota and overall U.S. TAC are designed to allow for BFT rebuilding, and the Atlantic Tunas General category retention limit is specified to allow fishing opportunities over the duration of the Atlantic Tunas General category season and in all areas, without exceeding the Atlantic Tunas General category quota.

NMFS does not anticipate that harpoon gear would be used in the pursuit of tunas other than BFT. Available Northeast and Southeast Region Vessel Trip Report data indicate that, for Atlantic tunas fishing, harpoon gear is only used to target BFT. Since 1996, there have been five trips in which harpoon gear was used to land a BAYS tuna and all were trips that targeted swordfish. In these trips, YFT was the tuna species landed. NMFS also anticipates the authorization of harpoon use by HMS CHB vessels will not result in an expanded geographic area of harpoon use for BFT, which has historically been off New England, and primarily on the fishing grounds off Massachusetts, New Hampshire, and Maine, because of availability of commercial-sized fish, fishing ground conditions, and the costs of outfitting a vessel (described below), among others.

There were 3,901 HMS CHB permitted vessels as of November 30, 2007. Focusing on the area where NMFS anticipates that harpoon gear would be used on HMS CHBs to capture a BFT, this action could apply to the 91 HMS CHB permitted vessels in Maine, 53 in New Hampshire, 644 in Massachusetts, and 159 in Rhode Island.

Impacts of handgear used to fish for Atlantic tunas under the Atlantic Tunas General category and Harpoon categories are described in full in the Consolidated HMS FMP. Harpoon gear is selective gear that is used to capture only one large pelagic fish (primarily BFT but also swordfish) at a time. Bycatch and bycatch mortality of commercial handgear is considered to be low, particularly for harpoons, which are thrown individually at a fish, determined by the fisherman to be greater than the minimum commercial size. There is no information or evidence of interactions between harpoon users targeting Atlantic tunas and threatened or endangered sea turtles, marine mammals, or other protected resources. The harpoon fishery is a Category III fishery under the Marine Mammal Protection Act, i.e., one with remote likelihood of serious injury or mortality to marine mammals.

The proposed rule is expected to have positive social and economic impacts, specifically for those vessels that have success in harpooning BFT that may be available at the water's surface. Landings data and information from fishermen indicate that there are times when the feeding behavior of commercial sized BFT makes hooking a fish difficult. NMFS has received comment over the last few years that the abundance and feeding behavior of dogfish is making trolling and chumming for BFT even more difficult. To the extent that a fisherman could harpoon BFT when the fish are present at the water surface, this action could increase the likelihood of fully utilizing the Atlantic Tunas General category daily retention limit. However, NMFS anticipates that the ability to harpoon a BFT will not necessarily lead to a substantial increase in BFT being caught with harpoon gear on HMS CHBs. Use of harpoon gear typically involves installation of a pulpit to the bow of the vessel (with approximate costs ranging from $10,500 - $14,500) and requires a certain degree of skill. There may be slightly negative social and economic impacts for existing HMS CHB vessel owners due to the potential influx of vessels from the Atlantic Tunas General and Harpoon categories to the HMS CHB category. NMFS does not anticipate the number of permit holders that will seek to change permit categories will be high, due to the other costs and benefits associated with each permit category (such as the requirement for a U.S. Coast Guard Captain's license for HMS CHB vessels).

This action would be consistent with the final rule to implement the 1999 Atlantic Tunas, Swordfish, and Sharks FMP (64 FR 29090, May 28, 1999), which expanded the list of gear types authorized for HMS CHB permitted vessels to include bandit gear (which was already authorized for use by Atlantic Tunas General category permitted vessels) as part of an effort to achieve consistency in HMS regulations. This action would provide consistency in the regulations regarding authorized handgear used historically for commercial harvest of BFT, and would increase opportunities for commercial handgear fishermen to attain the BFT Atlantic Tunas General category quota.

NMFS proposes to authorize harpoon gear for HMS vessels only on non-for-hire trips (such as trips with only captain and crew aboard the vessel). NMFS proposes to restrict harpoon gear use to these trips because of concerns regarding, among other things, safety at sea considerations and bycatch issues. Therefore, if the authorization is restricted to non-for-hire trips, there should be no incentive to harpoon a recreational sized fish (27 to less than 73 inches), because such activity would be illegal, and paid charter passengers, seeking recreational fishing opportunities would not be present. Additionally, under this subalternative, there would be less risk of bycatch and of discard mortality. Vessels on non-for-hire trips, on which the intent is to harvest BFT greater than 73 inches, are not as likely to expend fishing effort in areas of mixed size BFT as are vessels on for-hire trips. As the current regulations state that the size category of the first BFT retained determines the fishing category applicable to the vessel that day, an HMS CHB vessel that catches and retains a school, large school, or small medium BFT (measuring 27 to less than 73 inches curved fork length) may not also retain a commercial-sized BFT (measuring 73 inches or greater) for sale. HMS CHB vessel operators may sell commercial-sized BFT only when fishing under the Atlantic Tunas General category regulations. If harpoons are authorized for HMS CHB vessels on for-hire trips, it is NMFS' understanding that, due to safety and liability concerns, only vessel captain and crew would be involved in harpoon fishing (i.e., paying passengers would not be offered the opportunity to use the gear). Harpoon gear is not authorized for recreational fishing (i.e., under the Angling category permit or applicable fishing regulations). Therefore, if the authorization is restricted to non-for-hire trips only, there should be no incentive to harpoon a recreational sized fish (27 to less than 73 inches), as such activity would be illegal and as paid charter passengers, who would seek recreational fishing opportunities, would not be present. Both subalternatives are expected to result in positive economic impacts as described above, by allowing HMS CHB operators additional opportunities to fully utilize the Atlantic Tunas General category retention limit.

NMFS specifically requests public comment on whether potential authorization of harpoon gear should be for all HMS CHB trips, i.e, both for-hire trips (those taken with paying passengers aboard, more than three persons onboard for uninspected vessels, or more persons aboard than the number of crew specified on the vessel's Certificate of Inspection for U.S. Coast Guard Inspected vessels) and non-for-hire trips (such as trips with captain and crew only) or only for non-for-hire trips.

This proposed rule would require possession and use of sea turtle control devices as an addition to the already existing requirements for sea turtle bycatch mitigation gear. Two types of sea turtle control devices, the turtle tether and T&G ninja sticks (Figures 1 and 2), would be approved and required to meet this requirement. These devices were developed by fishermen in the PLL fishery in response to safety concerns for fishing vessel crew members and for incidentally captured sea turtles, as well as to facilitate the likelihood of maximum gear removal and reducing PRM. Subsequently, information collected by the NMFS Southeast Fisheries Science Center showed that use of these two types of sea turtle control devices better enabled fishermen to remove fishing hooks and line from sea turtles by better controlling the animals, thus likely reducing post-release hooking mortality of sea turtles.

The final rule implementing Framework Adjustment (FW) 40B (70 FR 31323; June 1, 2005), authorized the Administrator, Northeast Region, NMFS (Regional Administrator) to determine the allocation of the total number of trips into the CA II Yellowtail Flounder SAP based upon several criteria, including: GB yellowtail flounder total allowable catch (TAC) level, as established through the U.S./Canada Resource Sharing Understanding; and the amount of GB yellowtail flounder caught outside of the SAP. A formula was developed in FW 40B to assist the Regional Administrator in determining the appropriate number of trips for this SAP on a yearly basis. The formula is intended to allow the SAP to be adjusted for changing stock conditions to help achieve OY for GB yellowtail flounder.

FW 40B authorizes the allocation of zero trips to this SAP if the available GB yellowtail flounder catch (GB yellowtail flounder TAC projected catch of GB yellowtail flounder outside the SAP) is not sufficient to support 150 trips with a 15,000-lb (6,804-kg) trip limit (i.e., if the available GB yellowtail catch is less than 1,021 mt), as required. The U.S./Canada GB yellowtail flounder TAC for 2008, as recommended by the Transboundary Management Guidance Committee and the Council, is 1,950 mt (73 FR 16571; March 28, 2008). During FY 2007, vessels fishing outside of the SAP landed over 901 mt, 100 percent of the U.S./Canada GB yellowtail flounder TAC. However, this number does not reflect the potential catch outside of this SAP as the FY 2007 TAC of GB yellowtail flounder was caught by January 24, 2008, and possession was prohibited in the U.S./Canada Management Area for the remainder of the fishing year. The total catch of GB yellowtail flounder outside of this SAP in FY 2006 was 1,851 mt, 89 percent of the U.S./Canada GB yellowtail flounder TAC for that year. Using an average of these two years as a more realistic approximation of potential catch of GB yellowtail flounder by all vessels outside of the SAP in FY 2008, there would be insufficient available catch to allocate to this SAP (1,950 mt 1,376 mt <1,021 mt) in FY 2008. Therefore, zero trips should be allocated to the CA II Yellowtail Flounder SAP for FY 2008.

Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator for Fisheries has determined that this proposed rule is consistent with the NE Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This proposed rule is exempt from review under EO 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

The SBA size standard for small commercial fishing entities is $ 4.0 million in gross receipts. Individuals that would be impacted by this proposed action include all limited access NE multispecies day-at-sea permit holders. All commercial fishing entities affected by this proposed rule would fall under the SBA size standard for small commercial fishing entities and there would be no disproportionate impacts between small and large entities. The proposed action would affect a substantial number of small entities, as approximately 66 percent of the vessels affected by this action (i.e., 100 out of 150) had participated in the CA II Yellowtail Flounder SAP when it was open during FY 2004. However, the proposed action will not significantly reduce profit for affected vessels.

The proposed allocation of zero trips into the SAP would help ensure that the GB yellowtail flounder TAC is available throughout the fishing year, minimizing the impacts of depressed prices that could otherwise be caused by temporary floods of yellowtail flounder on the market, and therefore would help avoid the premature closing of the Eastern U.S./Canada Area due to catching the available GB yellowtail flounder TAC. This would enable vessels greater opportunity to fully harvest the available GB cod and GB haddock TAC allocated to the Eastern U.S./Canada Area and to achieve the full economic benefit from the U.S./Canada Management Area by more efficiently using the small GB yellowtail flounder TAC. Analysis prepared for FW 40B indicates that flexibility for vessels to target species other than yellowtail flounder is seen as critical to maintaining the profitability of vessel operations within the U.S./Canada Management Area, including the SAP, given the costs associated with fishing far offshore. Because the proposed action would maintain access to the Eastern U.S./Canada Area throughout the fishing year, this action attempts to preserve the flexibility for vessels to operate in an efficient and cost-effective manner that would maximize the profitability of vessel operations. Since the SAP was closed to fishing for FY 2007, there would be no change in profitability to individual vessels (compared to last year) resulting from the proposed zero allocation, thus, no economic impact to affected small harvesters.

Two alternatives were considered for FY 2008: The proposed allocation of zero trips into the SAP and the no action alternative. The no action alternative would mean the default measures in the regulations become effective, allowing one trip per month per vessel with a yellowtail flounder trip limit of 10,000 lb (4,536 kg) per trip. Although the no action alternative would provide some additional fishing opportunity in the short term, the no action alternative is not a reasonable alternative because it is inconsistent with the trip allocation formula as specified in the FMP and would likely lead to the premature harvest of the GB yellowtail flounder TAC and the closure of the Eastern U.S./Canada Management Area as previously described. Such a closure would prevent vessels from fully harvesting the available GB cod and GB haddock TAC allocated to the Eastern U.S./Canada Area . As such, the no action alternative would likely provide less economic benefits to the industry in the long term than the proposed alternative.

This proposed rule does not contain any new, nor revised existing reporting, recordkeeping, and other compliance requirements.