Department of the Interior August 2005 – Federal Register Recent Federal Regulation Documents

We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the proposed designation of critical habitat for Navarretia fossalis, and the availability of a draft economic analysis of the proposed designation of critical habitat. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed rule and the associated draft economic analysis. Comments previously submitted on this proposed rule need not be resubmitted as they have already been incorporated into the public record and will be fully considered in our final determination.

We, the U.S. Fish and Wildlife Service (Service), announce the availability of the draft economic analysis and draft environmental assessment for the proposal to list as endangered and designate critical habitat for the Gila chub (Gila intermedia) under the Endangered Species Act of 1973, as amended (Act). We are also reopening the public comment period for the proposal to list the Gila chub as endangered with critical habitat to allow all interested parties an opportunity to comment on and request changes to the proposed listing and critical habitat designation, as well as the associated draft economic analysis and draft environmental assessment. The draft economic analysis finds that costs associated with Gila chub conservation activities are forecast to range from $11.3 million to $28.1 million in constant dollars over 20 years ($0.8 million to $1.9 million annually). In addition, we are proposing corrected legal descriptions for the critical habitat units. Comments previously submitted on the August 9, 2002, proposed rule need not be resubmitted as they have been incorporated into the public record and will be fully considered in preparation of the final rule. We will hold three public informational sessions and hearings (see DATES and ADDRESSES sections).

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing the withdrawal of an amendment to the Texas regulatory program (Texas program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Texas proposed to add a new policy document to its program that describes mine permit implementation actions that would not, in the opinion of the Railroad Commission of Texas (Commission), be considered permit revisions and as such would not be subject to Commission review and approval. Texas intended to revise its program to improve operational efficiency. Texas is withdrawing the amendment at its own initiative.

The public is invited to comment on the following applications to conduct certain activities with endangered species and marine mammals.

The public is invited to comment on the following applications to conduct certain activities with endangered species and marine mammals.

The U.S. Fish and Wildlife Service (Service) announces a 5- year review of Aleutian shield fern (Polystichum aleuticum) under section 4(c)(2)(A) of the Endangered Species Act of 1973 (Act) (16 U.S.C. 1531 et seq.). A 5-year review is a periodic process conducted to ensure that the listing classification of a species is accurate. A 5-year review is based on the best scientific and commercial data available at the time of the review; therefore, we are requesting submission of any such information on Aleutian shield fern that has become available since its original listing as an endangered species in 1988 (53 FR 4626). Based on the results of this 5-year review, we will make the requisite finding under section 4(c)(2)(B) of the ESA.

Under the provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C., Chapter 3507) and 5 CFR part 1320, Reporting and Record Keeping Requirements, the National Park Service invites public comments on an extension of a currently approved collection (OMB1024-0018).

This rule prescribes final early-season frameworks from which the States, Puerto Rico, and the Virgin Islands may select season dates, limits, and other options for the 2005-06 migratory bird hunting seasons. Early seasons are those that generally open prior to October 1, and include seasons in Alaska, Hawaii, Puerto Rico, and the Virgin Islands. The effect of this final rule is to facilitate the selection of hunting seasons by the States and Territories to further the annual establishment of the early-season migratory bird hunting regulations.

This notice solicits public comments on the report which affirms the existing policy on the criteria used to establish the potash enclave.

This notice advises the public that the Bureau of Indian Affairs (BIA) as lead agency, in cooperation with the Confederated Tribes of the Warm Springs Reservation of Oregon (Tribes), intends to prepare an Environmental Impact Statement (EIS) for a proposed 25-acre trust acquisition and resort and casino project, including transportation system improvements, to be located within the city of Cascade Locks, Hood River County, Oregon. Other cooperating agencies include the Oregon Department of Transportation, the city of Cascade Locks, the port of Cascade Locks, Hood River County and, because of proposed transportation system improvements to Interstate 84, the Federal Highway Administration. The purpose of the proposed action is to improve the economy of the Tribes and help their members attain economic self-sufficiency. This notice also announces public scoping meetings to identify potential issues and alternatives to be considered in the EIS.

This notice announces the final decision regarding Self- Determination and Self-Governance language to be negotiated into funding agreements for 2006 regarding fiduciary trust records management. The Federal Register notice published on February 2, 2005 (70 FR 5457) presented a proposed policy on fiduciary trust records management for Self-Determination (Title I) and Self-Governance (Title IV) Tribes/Consortia and language to be negotiated into 2006 Title I and Title IV funding agreements. The February 2, 2005, notice also announced three consultation meetings and an invitation to submit written comments on the proposed policy and funding agreement language. Final Decision: After reviewing numerous comments and suggestions, both written and oral, the Department decided not to institute the proposed policy on fiduciary trust records management for Title I and Title IV Tribes/Consortia; rather, the Department will negotiate with each Tribe/Consortium a specific section in the funding agreement that addresses Tribe's/Consortium's and the Secretary's respective responsibilities regarding the management of fiduciary trust records. This specific section will include the definition of ``fiduciary trust records,'' ``Indian trust assets,'' and ``management.'' The language to be negotiated into the 2006 Title I and Title IV funding agreements regarding fiduciary trust records management is the following and will replace the three options used in the past. The Tribe/Consortium and Secretary agree to the following: The Tribe/Consortium agrees to: (a) Preserve, protect and manage all fiduciary trust records, created and/or maintained by the Tribes/Consortia during their management of trust programs in their Title IV agreements. (A fiduciary trust record is any document that reflects the existence of an Indian trust asset and was used in the management of an Indian trust asset. An Indian trust asset refers to lands, natural resources, monies or other assets held in trust at a particular time by the Federal Government for a Tribe, Alaska natives or that are or were at a particular time restricted against alienation, for individual Indians. Management includes actions that influence, affect, govern, or control an Indian trust asset. The following are examples not considered to be fiduciary trust records: General administrative, personnel or travel records; education records; law enforcement records; health records; law making unrelated to Indian trust assets; tribal council resolutions and laws unrelated to Indian trust assets; and tribal elections.) (b) Make available to the Secretary all fiduciary trust records maintained by the Tribe/Consortium, provided that the Secretary gives reasonable oral or written advance request to the Tribe/Consortium. Access shall include visual inspection and, at the expense of the Secretary, the production of copies (as agreed upon between the parties), and shall not include the removal of the records without tribal approval; and (c) Store and permanently retain all inactive fiduciary trust records at the Tribe/Consortium or allow such records to be removed and stored at the American Indian Records Repository (AIRR) in Lenexa, Kansas, at no cost to the Tribe/Consortium. The Secretary agrees to: (a) Allow the Tribe/Consortium to determine what records it creates to implement the trust programs assumed under its Title IV agreement, except that the Tribe/Consortium must create and maintain the information required by statute and regulation. No additional record keeping requirements are required by this agreement. (b) Store all inactive fiduciary trust records at the American Indian Records Repository (AIRR) at no cost to the Tribe/Consortium when the Tribe/Consortium no longer wishes to keep the records. Further, the Tribe/Consortium will retain legal custody and determine access to these records. Such records shall not be treated as Federal records for purposes of chapter 5 of Title 5 of the United States Code unless expressly agreed to by the Tribe; (c) Create and manage a single tribal storage and retrieval system for all fiduciary trust records stored at AIRR (No records will be accepted at AIRR until such a retrieval system exists); and (d) Provide filing equipment and technical assistance for Tribes/ Consortia in preserving, protecting and managing their fiduciary trust records from available funds appropriated for this purpose. Summary of Comments: The final decision above is the result of a nearly 2-year consultation process by the Department with some Title I and IV Tribes/Consortia. This process included: Conducting pre-scoping telephone conversations with tribal leaders, staff and consultants; holding a scoping meeting as part of a 2-day conference on Indian trust records management at Haskell Indian Nations University; forming a Tribal Fiduciary Trust Records Management Workgroup; conducting four workgroup meetings; transmitting a tribal leader letter soliciting comments on the proposed policy language to be presented for consultation; and engaging in discussions with Tribal leaders and staff at the Fall 2004, Self-Governance Conference. This process culminated with three consultation meetings held in Nashville, Tennessee; Portland, Oregon; and Phoenix, Arizona that were attended by approximately 60 tribal leaders, staff and consultants. In addition, written comments were received from 14 tribes, tribal organizations or tribal consultants some of whom attended the consultation meetings. The comments received can be grouped into the following four major categories: Category 1: New funding agreement language is not needed because existing compact and funding agreement language sufficiently provides for the maintenance of records of trust programs managed by the Tribes/ Consortia, and Tribes/Consortia should not be required to implement a Federal policy on fiduciary trust records management through their funding agreements. The Department respectfully disagrees. The Department believed that the three options available to Tribes/ Consortia in the past are too vague and do not specifically address the Secretary's primary concerns that fiduciary trust records not be destroyed and that the Secretary have the right to access those records if needed in her capacity as trustee delegate. The Department does agree with the comments that a Federal policy does not need to be instituted through the Departmental Manual. Instead the Department has chosen to negotiate language with each Tribe/Consortium into its funding agreement to address fiduciary trust records management. Category 2: The definition of ``fiduciary trust records'' is too broad and vague and the Department should produce a specific list of what fiduciary trust records should be maintained and preserved by the Tribe/Consortium. The definition is purposely broad in recognition of tribal sovereignty. It allows Tribes/Consortia the flexibility to create those records they believe are necessary to properly manage their trust assets through their Title I or Title IV funding agreements. For the Department to create a list of fiduciary trust records would have been both overly restrictive for some Tribes/ Consortia and overly expansive for others. A Department-generated list to be used by all Tribes/Consortia would have been restrictive in that it could deter tribes from creating certain records they feel were appropriate and at the same time it could be expansive by ``requiring'' Tribes/Consortia to create fiduciary trust records they did not believe were necessary for effective management of their trust assets. The Department's concern is that whatever trust records are created be properly protected and available to the Secretary. Category 3: The funding agreement language creates an unfunded mandate because no funding is being provided, and the language requires Tribes/Consortia to maintain record facilities and administer and monitor a records policy. The Department believes that the language proposed for negotiation does not require Tribes/Consortia to create and keep any additional records beyond those they now keep; namely, those that are required by statute or regulation or those records the Tribe/Consortium chooses to create in the management of its own trust resources. The language does not require a tribe to have any other kind of record keeping system other than the ones they currently operate. Before becoming a Title I or Title IV Tribe/Consortium, a Tribe/ Consortium had to demonstrate that it had a functional record keeping system and this language does not expand that requirement. Further, while the language does indicate that Tribes/Consortia are to preserve, protect and manage all fiduciary trust records and that all fiduciary trust records are to be kept permanently, once the Tribe/Consortium chooses that it no longer wants to house their inactive fiduciary trust records at their facility, the Secretary has offered to store those records, at the Secretary's expense, at the American Indian Records Repository. Finally, the Secretary is willing to provide to the Tribes/ Consortia equipment, training and technical assistance, subject to availability of appropriated funds for that purpose. Category 4: A potential problem exists for Tribes/Consortia in storing records at AIRR in that outside interests might gain access to Tribal/Consortium trust records through the Freedom of Information Act because the Tribal/Consortium trust records are held on the Tribe's/ Consortium's behalf by the Department in a Federal facility. To accommodate this concern, language was inserted stating that the Tribe/ Consortium retains legal custody and determines access to those records. Further, language was inserted stating that such records shall not be treated as Federal records for purposes of chapter 5 of Title 5 of the United States Code, unless expressly agreed to by the Tribe.

On December 8, 2004, we, the Federal Subsistence Board, published a proposed rule to revise and clarify the jurisdiction of the Federal Subsistence Management Program in coastal areas in southwestern Alaska. This rulemaking is necessary in order to exclude numerous saltwater embayments within National Wildlife Refuge boundaries that were never intended to fall under the jurisdiction of the Federal Subsistence Management Program. We are now reopening the comment period for this rulemaking action because of newly available maps of the specific embayments in southwestern Alaska to be excluded from the jurisdiction of the Federal Subsistence Management Program. If you have already commented on the proposed rule and have no additional comments to make as a result of viewing the newly available maps, then you do not need to resubmit your comment(s), as they will be fully considered in the final determination.

This provides notice of the Federal Subsistence Board's in- season management actions to protect moose populations in Unit 22 and caribou populations in Unit 9. These actions will provide an exception to the Subsistence Management Regulations for Public Lands in Alaska, published in the Federal Register on June 22, 2005. Those regulations established seasons, harvest limits, methods, and means relating to the taking of wildlife for subsistence uses during the 2005 regulatory year.

Mr. and Mrs. Nicholas Tamburri (Applicants) request an incidental take permit (ITP) for a period of one year, pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973 (Act), as amended (U.S.C. 1531 et seq.). The Applicants anticipate removal of about 1.2 acres of occupied Florida scrub-jay (Aphelocoma coerulescens) (scrub-jay) nesting, foraging, and sheltering habitat, incidental to partial land clearing of their 5-acre lot and subsequent residential construction of a single-family home and supporting infrastructure in Charlotte County, Florida. Up to three scrub-jay individuals could be taken as a result of the Applicants' proposed action. It is not currently known if these three scrub-jays are part of the same scrub- jay family. The Applicants' Habitat Conservation Plan (HCP) describes the mitigation and minimization measures proposed to address the effects of the project to the scrub-jay. These measures are outlined in the SUPPLEMENTARY INFORMATION section below. We announce the availability of the ITP application, HCP, and accompanying Environmental Assessment (EA). Copies of the application, HCP, and EA may be obtained by making a request to the Southeast Regional Office (see ADDRESSES). Requests must be in writing to be processed. This notice is provided pursuant to section 10 of the Act and National Environmental Policy Act regulations (40 CFR 1506.6).

The Bureau of Land Management (BLM) and the U.S. Forest Service (FS) are extending by 60 days the public comment period for the proposed rule published in the Federal Register on July 27, 2005 (70 FR 43349). The proposed rule would revise existing Onshore Oil and Gas Order Number 1 (see 48 FR 48916 as amended at 48 FR 56226 (1983)). The Order provides the requirements necessary for the approval of all proposed oil and gas exploratory, development, or service wells on all Federal and Indian (except Osage Tribe) onshore oil and gas leases, including leases where the surface is managed by the FS. It also covers approvals necessary for subsequent well operations, including abandonment. In response to public requests for additional time and because the recently enacted Energy Policy Act of 2005 impacts certain provisions of the proposed rule, the BLM and the FS are extending the comment period 60 days from the original comment period closing date of August 26, 2005. The comment period is extended to October 25, 2005, to give the public additional time to comment.

We are announcing receipt of a proposed amendment to the West Virginia regulatory program (the West Virginia program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). West Virginia proposes revisions to the Code of West Virginia (W. Va. Code) and the Code of State Regulations (CSR) as authorized by several bills passed during the State's 2005 Legislative Session. West Virginia is also proposing an amendment that affects the State's regulations concerning erosion protection zones (EPZ) associated with durable rock fills. The State is revising its program to be consistent with certain corresponding Federal requirements, and to include other amendments at its own initiative. The amendments include, among other things, changes to the State's surface mining and blasting regulations as authorized by Committee Substitute for House Bill 2723; various statutory changes to the State's approved program as a result of the passage of Committee Substitute for House Bill 3033 and House Bills 2333 and 3236; the submission of a draft policy regarding the State's EPZ requirement and requesting that the Office of Surface Mining (OSM) reconsider its previous decision concerning EPZ; State water rights and replacement policy identifying the timing of water supply replacement; the revised Permittee's Request For Release form; and the submission of a Memorandum of Agreement (MOA) between the West Virginia Department of Environmental Protection (WVDEP), Division of Mining and Reclamation, and the West Virginia Division of Natural Resources, Wildlife Resources Section that is intended to partially resolve a required program amendment relating to planting arrangements for Homestead post-mining land use.

The U.S. Fish and Wildlife Service announces that the Final Comprehensive Conservation Plan (CCP) and Environmental Assessment (EA) is available for Agassiz NWR, Minnesota. The CCP was prepared pursuant to the National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997, and the National Environmental Policy Act of 1969. Goals and objectives in the CCP describe how the agency intends to manage the refuge over the next 15 years.

In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972 (FACA), the Department of the Interior, Bureau of Land Management (BLM) Resource Advisory Council meeting will be held as indicated below.

The plats of survey described below are scheduled to be officially filed in the Arizona State Office, Bureau of Land Management, Phoenix, Arizona, (30) thirty calendar days from the date of this publication.

Pursuant to section 102(2)(c) of the National Environmental Policy Act of 1969 and the Council on Environmental Quality Regulations found at 40 CFR 1500-1508, notice is hereby given of the availability of the Final Supplemental Environmental Impact Statement for comment, prepared by the Battle Mountain Field Office of the Bureau of Land Management (BLM). The statement analyzes the environmental effects of the Proposed Action and the No Action Alternatives.

In accordance with the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA), the Steens Mountain Cooperative Management and Protection Act of 2000 (Steens Act), and Bureau of Land Management (BLM) policies, the BLM announces the availability of the RMPs/RODs for the Andrews Management Unit (AMU) and Steens Mountain Cooperative Management and Protection Area (CMPA), located primarily in Harney County in southeastern Oregon. The Oregon/ Washington State Director approved the RMPs/RODs, which become effective immediately. In accordance with the Steens Act, BLM is also releasing the Final Steens Mountain Wilderness and WSRs Plan for pertinent lands within the CMPA.

This notice publishes approval of the TribalState Compact between the State of New Mexico and the Pueblo of Pojoaque.