This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).

The information collection and recordkeeping requirements contained in this regulation have been approved by the Office of Management and Budget (OMB) under the provisions of 44 U.S.C. chapter 35 and were assigned OMB control number 0572-0122, in accordance with the Paperwork Reduction Act of 1995. Under the Paperwork Reduction Act of 1995, no person is required to respond to a collection of information unless it displays a valid OMB control number. This final rule does not impose any new information recordkeeping.

The Administrator of RUS has determined that this final rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ). Therefore, this action does not require an environmental impact statement or assessment.

RUS has determined that this final rule will not have a significant economic impact on a substantial number of small entities, as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The RUS Water and Waste loan and grant programs provide loans to borrowers at interest rates and on terms that are more favorable than those generally available from the private sector. RUS borrowers, as a result of obtaining federal financing, receive economic benefits that exceed any direct economic costs associated with complying with RUS regulations and requirements.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this rule meets the applicable standards provided in section 3 of that Executive Order. In addition, all State and local laws and regulations that are in conflict with this rule will be preempted, no retroactive effect will be given to this rule, and, in accordance with Sec. 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. Sec. 6912(e)), administrative appeal procedures, if any, must be exhausted before an action against the Department or its agencies may be initiated.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of section 202 and 205 of the Unfunded Mandates Reform Act of 1995.

This program is listed in the Catalog of Federal Domestic Assistance under number 10.760 and is subject to the provisions of Executive Order 12372 which requires intergovernmental consultation with State and local officials. This catalog is available on a subscription basis from the Superintendent of Documents, the United States Government Printing Office, Washington, DC 20402-9325. An electronic version is available at www.cfda.gov.

This action replaces the Water and Waste Disposal facilities portion of the guaranteed loan program administered under 7 CFR part 1980, subparts A and I. Under the final rule, this guaranteed loan program will be more flexible and place more reliance on lenders. There are fewer specific requirements for lenders. The lender has added responsibility for analyzing credit quality; for making, securing, and servicing the loan; and for monitoring construction. Application processing procedures will be more efficient; less burdensome for borrowers, lenders, and Rural Development staff; and will provide for more rapid decisions.

The WW Guaranteed Loan program was authorized by the Rural Development Act of 1972. The loans are made by private lenders to public bodies, nonprofit corporations, and Indian tribes for the purpose of improving rural living standards and for other purposes that create safe and affordable drinking water and waste disposal facilities located in rural areas or towns with a population not exceeding 10,000 inhabitants.

These loans can be made to construct or improve drinking water or waste disposal facilities serving the most financially needy communities. The rates and terms of the loan are negotiated between the borrower and the lender. This regulation is a high-priority effort to streamline the administration and operation of the program, respond to the requests of users of the program, and assist the field staff administering the program. The revised regulation is simpler, clearer, and more logically organized. The volume of regulatory material which a lender must review to request, make, or service a WW guaranteed loan under the new regulation is significantly less than the current regulation.

The President and the Secretary of Agriculture are committed to streamlining all Federal regulations. This WW regulation streamlines our application procedures, reduces loan application processing time by placing greater emphasis on State resources, and allows more management flexibility and decision-making capacity at the State Office level.

The Agency has implemented revisions to make the program more user-friendly for lenders and borrowers. Also, the Agency recognizes that changes are necessary to make the program more effective in creating jobs and stimulating economic activity (particularly in chronically low-income rural areas). Under the new WW regulation, the material that must be submitted to, and reviewed by, the Agency before approval of the guarantee has been reduced. Some responsibilities for credit analysis and application processing tasks will be shifted from the Agency to the lender, where feasible. Following is a discussion of some of the most significant policy revisions included in the final regulation.

To streamline the regulation, the Agency has combined applicable portions of the Direct Water and Waste Disposal Loan and Grant Program (7 CFR part 1780), Water and Waste Loans and Grants, General Guaranteed Regulation (7 CFR part 1980, subparts A and I), and program requirements contained in forms which were not in regulations into the Guaranteed Water and Waste Disposal Programs Regulation (7 CFR part 1779). The Agency also divided the regulation into general, processing, and servicing sections. These actions should significantly reduce the amount of regulatory material that a lender and a borrower must review to determine eligibility and complete the application. This will also simplify making and servicing a WW guaranteed loan.

Additionally, the necessary information contained in the preapplication package can be submitted simultaneously with the application. Except the year that loan funds are received, the types of audited financial statements will be determined by the lender (with Agency concurrence).

Under the new regulation, the lender is responsible for ensuring that all loan requirements are met, the loan is properly secured, documents are duly executed and binding, and all necessary certifications are furnished. The lender will not only be able to negotiate interest rates, but will also be able to negotiate incremental increases and caps for each loan. This will give the lender more flexibility to fit the WW guaranteed loan program into its lending policies and procedures. The lender does not have to be a local lender provided it can demonstrate the ability to adequately service the loan. This will permit an expansion of eligible lenders to include such organizations as State bond banks, Co-Bank, the Rural Utilities Cooperative Finance Corporation, and other lenders that are subject to credit examination and supervision by a State or Federal entity that supervises and regulates credit institutions. All of these organizations have expressed an interest in the WW guaranteed lending program in the past.

The proposed rule was published in the Federal Register on October 7, 1997 (62 FR 52277), for public comment. All comments received were from Rural Development employees. Three State Directors, one Program Director, the National Association of Credit Specialists, and one Programs Specialist submitted comments. All of the comments received expressed support for the changes in this streamlined regulation. The comments ranged from making the regulation easier to read and follow to agreeing that the regulatory burden was lessened on the lenders as well as on our field employees. Also, the ability to change interest rates on a quarterly basis was supported as more in line with industry standards. Other changes which were supported are: permitting the lender to monitor construction rather than the Agency; permitting the preapplication information and the application to be completed as one process; and making the lender responsible for ensuring that all loan requirements are met, the loan is properly secured, documents are duly executed and binding, and all necessary certifications are furnished. The comments relating to the Community Facilities (CF) Programs portion of the proposed rule were addressed in a Final Rule published on May 26, 1999, at 64 FR 28333 (7 CFR part 3575).

One respondent requested consistent wording concerning the 5 percent which the lender must retain in its portfolio. The wording has been changed to clarify that the amount which the lender must hold will be 5 percent of the total loan amount and that this amount must be from the unguaranteed portion of the loan.

One respondent wanted to know what is contained in chapter 37 of title 31 of the United States Code. This chapter is commonly referred to as the Debt Collection Act.

One respondent suggested that all Rural Development program areas have similar definitions for “rural” and “rural area.” The Agency agrees that similar definitions would make the programs easier for our field employees to implement. However, the definitions of “rural” and “rural area” are mostly statutory and cannot be changed regulatorily.

One respondent wanted to include sole-member corporations as eligible for the Community Facilities (CF) program. This does not pertain to WW guaranteed loans. The CF response may be found in 7 CFR part 3575.

One respondent suggested that business incubators be made an eligible purpose. Because this suggestion pertains solely to the CF program, it was addressed in 7 CFR part 3575.

One respondent indicated that combining the floodplain management plan requirements with flood insurance would eliminate service to most of his State. The Agency did not intend to change the existing floodplain requirements. However, in our efforts to streamline the regulations, we combined two requirements and used a conjunction which tied the two requirements together. The Agency has separated and reworded these requirements in this final regulation. The requirements are the same as our existing regulation. To make a loan in a Federal Emergency Management Agency designated 100-year floodplain, a floodplain management plan must be in place. Also, National Flood Insurance must be available, and the lender must require such insurance.

As a result of internal discussions, the Environmental Requirements section has been expanded slightly in order to highlight the requirement imposed on the applicant to take no actions that would either limit the range of alternatives to be considered or which might adversely effect the environment prior to completion of the Agency's environmental review process.

One respondent suggested listing all the specific individual requirements under these laws. This comment pertains to the CF programs. The CF response may be found in 7 CFR part 3575.

One respondent requested clarification concerning the Agency's review of the equal opportunity and nondiscrimination requirements when evaluating an application. The Agency will further clarify our employees' responsibilities for reviewing loan applications in Agency instructions.

One respondent supported permitting both variable and fixed interest rates in the same loan but pointed out that the restriction which requires the guaranteed portion of the loan to always have a lower interest rate than the unguaranteed portion of the loan would prevent lenders from making the guaranteed portion fixed and the unguaranteed portion variable when the interest rate market is declining. We agree, and have removed the last sentence of § 1779.33(e) to ensure consistency when determining an acceptable interest rate.

One respondent said that this regulation seems to say that if the Agency guarantees a loan on an existing building, we would not require any changes to make the building meet the Americans with Disabilities Act (ADA). The ADA does not require that existing buildings be made accessible unless they are remodeled. Then only the portion which is remodeled must be made accessible. For example, if four interior offices were remodeled, only those four offices would have to be made accessible. But the restrooms or the entry way would not have to be accessible. If you remodeled the building front, then the front entry would have to be made accessible. In conclusion, any new work must be accessible and designed in accordance with the ADA. Any area of the existing structure that is not remodeled does not have to meet the ADA. This concept will be clarified for our employees in our instructions.

One respondent suggested a standard certification form for the lender to complete certifying that construction has been completed in accordance with the proper building codes. To maintain flexibility and keep the regulations and public paperwork at a minimum, we have incorporated this as a lender certification.

One respondent suggested amending our concurrence to preliminary architectural or engineering reports or plans because many projects do not require complex reports but rather simple drawings and estimates of project costs. We agree. This was our original intent in the proposed general portion of the design and construction requirements section. We have added the words “or plans” to this section.

One respondent questioned the lack of a reference to procurement utilizing free and open competition. The borrower and the lender both benefit from free and open competition. In the spirit of reducing the regulatory burden to the public, the lender will now be responsible for determining the best method to ensure that the project is completed within budget. If the lender determines that design and build is a better method than sealed bids, the lender will have the flexibility to approve such construction.

One respondent strongly supported the loan approval official being able to determine if an independent feasibility analysis is necessary. The respondent also stated that the economic section of the regulation confuses the lender credit analysis with the feasibility report. The Agency intends that the loan approval official will determine whether or not an independent feasibility analysis is necessary. Consequently, the lender's financial credit analysis may serve as a feasibility analysis when the loan approval official concludes sufficient economic information is provided in its analysis. A sentence has been added to clarify this issue.

One respondent indicated that we should have included a timeframe to provide the lender an answer. While we agree, this is an administrative matter within the Agency and will be incorporated into our field employee instructions.

One respondent suggested moving the subsection concerning changing the scope of the project from the section describing the conditions precedent to issuing a loan note guarantee to the section discussing the review of requirements in the conditional commitment. This subsection has been moved as suggested.

One respondent suggested that the number of customers discussed in the loan application evaluation section should apply only to Water and Waste Disposal projects. This comment is directed to Community Facilities Programs and was addressed in 7 CFR part 3575. However, the respondent is correct in that WW projects do require that the number of customers is used when evaluating a loan application.

One respondent questioned whether the certifications listed under the conditions precedent to issuance of the loan note guarantee section met all applicable requirements contained out in the regulations. It was suggested clarification was needed. The Agency listed the items which the lender must certify to before the loan note guarantee could be issued. By certifying to these conditions, the lender is stating that it has met the requirements contained in the regulation.

One respondent requested clarification concerning the title report under the lender's certifications in the conditions precedent to issuance of a loan note guarantee. The respondent wanted to know whether or not the title report was referring to a final title opinion or a preliminary title opinion. The Agency intends this to be the lender's legal counsel's opinion which states that the loan has been closed and proper title has been obtained in accordance with the security instrument and other agreements between the lender and the Agency.

One respondent requested further clarification of the guaranteed loan closing report. This report is a Rural Development form. All references to specific form numbers have been eliminated from the actual text of the Federal Register . The actual form numbers will appear in the Agency instructions to our field employees. Only the form names appear in the Federal Register .

One respondent questioned the need to require a parity lien position. We agree, the lender should determine that adequate security is obtained for the loan and the Agency can either concur or choose not to guarantee the loan accordingly. This requirement has been deleted.

One respondent requested that the Agency eliminate the test for credit. The respondent further points out that the Rural Development Business and Industry (B&I) program does not require such a test for credit to be eligible for a guaranteed loan. The Agency is bound by statute and must require this test for credit. The B&I program is exempt from this statutory provision.

One respondent suggested that finder and packaging fees be considered an eligible loan purpose. This comment also suggested paying real estate broker fees. This comment is directed to Community Facilities Programs and was addressed in 7 CFR part 3575.

One respondent requested clarification concerning whether or not the preapplication forms are still necessary when the Agency receives an application for a loan guarantee from a lender without going through the preapplication process. The Agency will accept applications without a preapplication package.

Two respondents strongly suggested that the audit requirements should be the lender's responsibility. We agree, based upon discussions with our sister agencies and the Office of Management and Budget (OMB), we have determined that we do not have continuing compliance requirements as described in the OMB circular A-133. Consequently, in the year that funds are received by the borrower, the Agency will require an audit in accordance with the OMB circular A-133. In subsequent years, the lender (with Agency concurrence) will determine the type of financial reporting and financial audits that will be required for the duration of the loan.

One respondent noted that the lender and borrower visits were omitted and suggested that they should be required periodically. While we agree, this is an administrative matter and will be addressed in the Agency's field instruction.

One respondent wanted to clarify that the sale of one lender to another in a merger situation did not constitute a transfer of lender. We agree.

One respondent suggested that we increase the amount of protective advances from $500 to $5,000 dollars. This amount would be consistent with other mission area regulations and would be consistent with inflation. We agree, the amount of protective advances which the lender can make without Agency concurrence has been increased from $500 to $5,000.

The OCC charters, regulates, and supervises more than 2,200 national banks, accounting for nearly 60 percent of the nation's banking assets, as well as 58 Federal branches and agencies of foreign banks in the United States. Its mission is to ensure a safe, sound, and competitive national banking system that supports the citizens, communities, and economy of the United States.

The OCC funds the activities it undertakes to carry out this mission through assessments and fees charged to the banks it supervises. The National Bank Act authorizes the OCC to collect “assessments, fees, or other charges as necessary or appropriate to carry out the responsibilities of the office of the Comptroller.” 12 U.S.C. 482 (Supp. 1999). The statute requires that our charges “be set to meet the Comptroller's expenses in carrying out authorized activities.” Id. Under part 8 of our regulations, the OCC currently assesses national banks and Federal branches and agencies according to a formula based on factors that include a bank's asset size, its condition, and whether it is the “lead” bank or “non-lead” bank  1 among national banks in a holding company. 2 The OCC also has the authority to assess a fee for special examinations and investigations of these banks. 12 CFR 8.6(a).

In its current form, section 8.6(a) refers only to fees for a special examination of a national bank or its affiliate. 3 It does not reflect the OCC's authority to assess a national bank in connection with special examinations of any of the bank's service providers. The Bank Service Company Act provides that performance of services for national banks (or for other entities supervised by the OCC, including subsidiaries subject to examination by the OCC) “shall be subject to regulation and examination by [the OCC] to the same extent as if such services were being performed by the bank itself on its own premises.”  4

Banks historically have used third parties to perform certain activities—payment processing, for example. Some banks, however, have recently entered new lines of business or introduced novel, and potentially high-risk, products, relying substantially on third party service providers to enable the bank to participate in or to conduct those activities. These include, for instance, certain types of credit card programs, sub-prime lending, check cashing, and other specialized types of lending. In many instances, the service provider's interest in, and connection with, these transactions are significantly greater than that of the bank. The bank may nonetheless be exposed to higher than normal levels of risk. This increased reliance on service providers will result in an increased need for the OCC to examine or investigate third party service providers in order to evaluate the effect that third-party activities and relationships have on the safety and soundness of the bank. 5

On December 1, 2000, 6 we proposed to amend 12 CFR 8.6 to make clear our authority to assess banks for our supervision of third party servicers. We also proposed to clarify our authority to charge Federal branches and agencies a fee for conducting special examinations. For the reasons described in the following discussion, we adopt the rule substantially as proposed, with a clarification suggested by one commenter.

The proposal stated that the OCC may charge a special examination or investigation fee to national banks when examination or investigation of the activities of a third party service provider is warranted by the high risk or unusual nature of the activities conducted by the service provider for the bank, or when the OCC believes that the bank has insufficient systems, controls, or personnel to adequately monitor, measure, and control the risks associated with the activity. The proposed rule also applied to Federal branches and agencies. In addition, the proposal permitted the OCC to impose the assessment if we examine or investigate third party providers of services to subsidiaries subject to examination by the OCC.

The OCC received two comments on this proposal. The first, from a trade association for community banks, suggested that the OCC identify in advance, in the final rule, those instances in which OCC would conduct special examinations and investigations. The commenter suggested that this approach would provide more predictability as to when the OCC would charge the fee that was proposed.

The circumstances under which the OCC will conduct special examinations or investigations of third parties may differ. Accordingly, the OCC is unable to identify in advance every situation that may warrant use of this authority or imposition of a fee on the bank. The final rule addresses this issue highlighted by the commenter, however, by describing the factors the OCC will consider in determining whether to impose fees for examination of a bank's third party service providers. In addition, the OCC will provide banks with notice before we begin a special examination of a service provider for which the fee will be imposed. 7

The second commenter, a trade association for check cashing centers, suggested that the proposal might discourage relationships between their members and national banks. The commenter noted that check cashing organizations serve local communities by making funds available to consumers quickly. This rulemaking does not address the merits of the check cashing business. We note that the Bank Service Company Act provides pre-existing authority for the OCC to examine check cashers that have entered into particular relationships with national banks. The final rule does not alter the nature or extent of that oversight. Rather, it clarifies the OCC's authority to assess banks for OCC's examination of third parties so that the cost associated with examining them is borne principally by the banks with whom they have relationships, rather than by the national banking system as a whole.

The final rule amends section 8.6(a) to state that the OCC may assess a national bank or a Federal branch or agency a fee for the examination or investigation of an entity that performs services for the institution or its subsidiary and that is subject to OCC examination and regulation pursuant to the Bank Service Company Act (12 U.S.C. 1867(c)). The fees for special exams and investigations will be based on an hourly rate, with the hourly rate provided each year by the OCC in its Notice of Comptroller of the Currency Fees (Notice of Fees). 8 The final rule also states that the factors the OCC will consider in determining whether imposition of a fee for examination of a bank's third party service providers is warranted are (1) the high risk or unusual nature of the activities conducted by the service provider for the banks; (2) the significance to the bank's operations and income of the activities conducted by the service provider for the banks; and (3) the extent to which the bank has sufficient systems, controls, and personnel to adequately monitor, measure, and control risks arising from activities conducted by the service provider for the bank.

The final rule also amends section 8.6(a) to clarify that the OCC may charge a fee for conducting special examinations and investigations of Federal branches and agencies of foreign banks or their affiliates. Federal branches and agencies are subject to the same “duties, restrictions, penalties, liabilities, conditions, and limitations” that apply national banks, except as otherwise specifically provided by statute. 9 Current section 8.6 does not address the assessment of a fee for the special examination or investigation of Federal branches and agencies or their affiliates. The final rule amends section 8.6 to make our authority to assess such a fee explicit. The OCC will state the amount of these fees in the Notice of Fees.

The final rule amends the title of part 8 to more accurately reflect the scope of the regulation. While part 8 includes Federal branches and agencies within the scope of the rule, only national banks and District of Columbia banks are listed in the title. The final rule removes from the title references to the types of regulated entities covered by the regulation.

The Regulatory Flexibility Act (RFA) requires federal agencies to certify that a final rule will not have a significant impact on a substantial number of small entities. See 5 U.S.C. 603, 605. On the basis of the information currently available, the OCC is of the opinion that this final rule is unlikely to have a significant impact on a substantial number of small entities, within the meaning of those terms as used in the RFA. As previously noted, a national bank would be assessed a fee for the examination or investigation of its service provider when the examination or investigation is warranted by the level of risk or unusual or novel nature of the activities conducted by the service provider for the bank, or when the OCC believes that the bank has insufficient systems, controls, or personnel to adequately monitor, measure, and control the risks associated with the activity. As a result, the OCC believes that the fees will not be imposed on a substantial number of small entities.

The OCC has determined that this final rule is not a significant regulatory action under Executive Order 12866.

Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4 (2 U.S.C. 1532) (Unfunded Mandates Act), requires that an agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. The OCC has determined that the final rule will not result in expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more in any one year. Accordingly, this rulemaking is not subject to section 202 of the Unfunded Mandates Act.

OTS's regulations at 12 CFR 552.2-6 provides that, with OTS approval, any stock depository institution that is, or is eligible to become, a member of a Federal Home Loan Bank may convert to a federal stock savings association if the converting institution has deposits insured by the Federal Deposit Insurance Corporation (FDIC) at the time of conversion, and complies with all applicable statutes and regulations, including section 5(d) of the Federal Deposit Insurance Act. 1 This regulation does not explicitly address the succession of the federal association resulting from such a conversion to the rights, obligations and property of the converting institution. However, as a matter of practice OTS treats federal stock associations that have resulted from direct conversions pursuant to 12 CFR 552.2-6 as the corporate successors of the converting institutions.

OTS regulations addressing similar transactions explicitly provide that the resulting federal association succeeds to the rights, obligations, and property of a converted or disappearing entity. This is true, for example, for conversions of mutual depository institutions to federal mutual savings associations  2 and the merger or consolidation of stock institutions that result in a federal stock association. 3

To clarify the legal consequences of direct conversions under 12 CFR 552.2-6, OTS is amending that regulation to provide explicitly that a converted federal stock association succeeds to all the rights, obligations and property of its corporate predecessor.

This action will not change the existing treatment of federal stock associations that have converted from a stock depository institution. Rather, the amendment merely codifies the agency's existing interpretation of its regulation. The text of the amendment has been derived from a comparable provision pertaining to the merger and consolidation of federal stock associations that appears at 12 CFR 552.13(l).

Direct final rulemaking is a technique for expediting the issuance of non-controversial rules. Under this procedure, an agency may publish a rule in the Federal Register with a statement that, unless a significant adverse comment is received within a specified time period, the rule will become effective as a final rule on a particular date. If a significant adverse comment is filed, however, the agency must withdraw the direct final rule and complete standard notice and comment procedures. This procedure permits an agency to issue final rules expeditiously, while at the same time offering the public the opportunity to challenge the agency's view that the rule is non-controversial.

The Administrative Conference of the United States adopted Recommendation 95-4 encouraging the use of direct final rulemaking, 4 and recommending that agencies develop a direct final rulemaking process for issuing rules that are unlikely to result in significant adverse comments. OTS recently used the direct final rule procedure to remove a regulation on the transfer and repurchase of government securities. See 65 FR 16302 and 16350 (March 28, 2000) and 65 FR 30527 (May 12, 2000).

OTS has concluded that this rule is non-controversial and should elicit no significant adverse comment. Accordingly, the agency has determined that it is appropriate to apply direct final rulemaking procedures. Therefore, consistent with the Administrative Conference's recommendations, OTS is applying the following procedures in this rulemaking:

OTS is publishing this notice of direct final rule in the final rule section of the Federal Register and is including an opportunity for public comment on the substance of the change ( i.e., a 30-day public comment period). OTS has also included a statement of basis and purpose for the rule and has discussed relevant substantive issues in the discussion above.

The direct final rule will automatically become effective in 60 days, unless OTS receives a significant adverse comment within the 30-day comment period. If a timely, significant adverse comment is received, OTS will withdraw the direct final rule before the stated effective date. To be a significant adverse comment, the comment must explain why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or why the rule would be ineffective or unacceptable without a change.

To ensure that the promulgation of a final rule will not be delayed if significant adverse comments are submitted, OTS has published a related notice of proposed rulemaking (NPRM) elsewhere in today's Federal Register . This related notice cross-references the direct final rule. The related notice indicates that if a timely, significant adverse comment on the matter is received, OTS will address all public comments in subsequent final rule based on the NPRM. If no significant adverse comments are timely received, OTS will take no further action on the NPRM.

This direct final rule imposes no additional requirements on insured depository institutions. This rule is therefore exempt from the requirement found in section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994  5 that regulations must not take effect before the first day of the quarter following publication.

Pursuant to section 605(b) of the Regulatory Flexibility Act, 6 the Director certifies that this direct final rule will not have a significant economic impact on a substantial number of small entities. The rule merely codifies an existing OTS interpretation.

OTS has determined that this direct final rule is not a “significant regulatory action” for purposes of Executive Order 12866.

OTS has determined that the requirements of this direct final rule will not result in expenditures by State, local, and tribal governments or by the private sector of $100 million or more in any one year. Accordingly, a budgetary impact statement is not required under section 202 of the Unfunded Mandates Reform Act of 1995.

Executive Order 13132 imposes certain requirements on an agency when formulating and implementing polices that have federalism implications or taking actions that preempt state law. OTS has determined that this direct final rule will not have substantial direct effects 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, and will not preempt State law.

A final rule airworthiness directive (FR Doc. 01-10021) applicable to Turbomeca S.A. Arrius models 2B, 2B1, and 2F turboshaft engines was published in the Federal Register on April 26, 2001 (66 FR 20912). The following correction is needed:

In the Federal Register of January 26, 2000 (65 FR 4112), FDA published a final rule (the January 2000 rule) that amended its MDR regulations governing reporting by manufacturers, importers, distributors, and user facilities of adverse events related to medical devices. These amendments were made to implement revisions to the Federal Food, Drug, and Cosmetic Act (the act) under the Food and Drug Administration Modernization Act of 1997 (FDAMA). These regulations became effective March 27, 2000. Under certain provisions of FDAMA, reporting requirements for distributors were eliminated, but reporting requirements for importers, and requirements for distributors to keep records concerning adverse device events and make them available to FDA upon request continue to apply. To accommodate these changes, part 804 (21 CFR part 804) was removed and language was integrated into part 803 (21 CFR part 803) that reflected the retention of importer reporting requirements and recordkeeping requirements for distributors. Another change made by the January 2000 rule revised procedures to require annual, rather than semiannual, summary reporting by user facilities, and eliminated reporting certification requirements. As a result of these substantive amendments, many nonsubstantive changes were made to the organization of provisions in part 803. During preparation of the final rule for publication, however, a number of typographical and editorial errors occurred. In the subsequent months, FDA discovered other errors. The purpose of these amendments is to correct the errors identified in part 803. This document is published as a final rule with the effective date shown above. FDA has determined that this final rule has no substantive impact on the public. FDA, therefore, for good cause, finds under 5 U.S.C.553(b)(3)(B) and (d)(3) that notice and public comment are unnecessary and that this rule may take effect upon publication.

Section 213 of FDAMA eliminated reporting requirements for distributors previously found at part 804. At the same time, reporting requirements for importers were retained and those previously referenced in part 804 were incorporated in part 803. Accordingly, the word “distributor” was removed from applicable paragraphs and the word “importer” was integrated into the text. During preparation of the final rule amending the regulations to incorporate importer requirements, however, the word “importer” was not properly integrated into §§ 803.10, 803.20, 803.50, and 803.52. FDA is amending the regulations to correct this error.

Section 213(a)(2) of FDAMA revoked section 519(d) of the act (21 U.S.C. 360i(d)) resulting in the elimination of certification requirements. Section 213(c)(1)(A) revised section 519(b)(1)(C) of the act to require annual, rather than semiannual, summary reporting by user facilities. During preparation of the final rule, however, an editorial error led to the omission in certain paragraphs of amended text that was written to remove references to certification requirements and change the word “semiannual” to “annual.” Sections 803.10, 803.17, and 803.58 contained these errors. FDA is amending the regulations to correct these errors.

The integration of importer reporting requirements and the removal of certification references required substantial reorganization of part 803. This reorganization included the need to redesignate certain paragraphs and correct references to those paragraphs throughout the text.

Modifications to § 803.3 require that paragraphs (m) through (ee) be redesignated as paragraphs (n) through (ff) to address the following:

• At paragraph (f), the definition of a “device user facility” states that a “physician's office” is later defined in paragraph “(w)” of this section. In fact, the definition of “physician's office” is found later at paragraph “(x)” of this section.

• A further error occurred when redesignating the definition of an “MDR reportable event (or reportable event)” as paragraph (r)(2)(ii). In this instance, the words “or contribute” were inadvertently omitted after the words “would be likely to cause,” in the definition text.

• Finally, § 803.3 contains two paragraphs “(ee)” because the definition of “work day” was not redesignated as paragraph “(ff).”

Previously, § 803.10(b) was reserved. As amended by the January 2000 rule, § 803.10(b) was revised to include reporting requirements for importers. During preparation of the January 2000 rule, the amended text incorporated in this section was not organized in the same manner as § 803.10(a) and (c). FDA is amending the regulations to correct this error.

The elimination of certification requirements by manufacturers resulted in the removal of § 803.58(b)(3); therefore, paragraphs (b)(4), (b)(5), and (b)(6) were to be redesignated accordingly. FDA is amending the regulations to correct this error.

Independent of the errors in part 803 that resulted from the January 2000 rule, FDA discovered an obsolete reference in § 803.19(a)(2). In this instance, the text of § 803.19(a)(2) references part 813, which was removed by a final rule published in the Federal Register on January 29, 1997 (62 FR 4164). FDA is amending the regulations to correct this error.

The agency has determined under 21 CFR 25.30(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612) (as amended by subtitle D of the Small Business Regulatory Fairness Act of 1996 (Public Law 104-121)), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is consistent with the regulatory philosophy and principles identified in the Executive Order. In addition, the final rule is not a significant regulatory action as defined by the Executive Order and so is not subject to review under the Executive Order.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. The agency certifies that this final rule will not have a significant negative economic impact on a substantial number of small entities. Section 202(a) of the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires that agencies prepare a written statement of anticipated costs and benefits before proposing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million in any 1 year (adjusted annually for inflation). The Unfunded Mandates Reform Act of 1995 does not require FDA to prepare a statement of costs and benefits for the final rule, because the final rule is not expected to result in any 1-year expenditure that would exceed $100 million.

FDA has determined that this final rule contains no additional collections of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

The Coast Guard has determined that good cause exists under the Administrative Procedure Act (5 U.S.C. 553) to forego notice and comment for this rulemaking because notice and comment are unnecessary. The Coast Guard believes notice and comment are unnecessary because the requested closures are of such short duration on a Sunday when there have been few requests to open these bridges. The Harlem River and Newtown Creek is used mostly by commercial vessels and those vessels normally pass under the draws without openings. The commercial vessels that do require openings are work barges that do not operate on Sundays. The Coast Guard, for the reasons just stated, has also determined that good cause exists for this rule to be effective less than 30 days after it is published in the Federal Register .

The Third Avenue Bridge, mile 1.9, across the Harlem River between Manhattan and the Bronx, has a vertical clearance of 25 feet at mean high water and 30 feet at mean low water in the closed position. The existing operating regulations listed at § 117.789(c) require the draw to open on signal from 10 a.m. to 5 p.m., if at least a four-hour notice is given. From 5 p.m. to 10 a.m., the draw need not be opened for vessel traffic.

The Madison Avenue Bridge, mile 2.3, across the Harlem River between Manhattan and the Bronx, has a vertical clearance of 25 feet at mean high water and 29 feet at mean low water in the closed position. The existing operating regulations listed at § 117.789(c) require the draw to open on signal from 10 a.m. to 5 p.m., if at least a four-hour notice is given. From 5 p.m. to 10 a.m., the draw need not be opened for vessel traffic.

The Pulaski Bridge, mile 0.6, across the Newtown Creek between Brooklyn and Queens, has a vertical clearance of 39 feet at mean high water and 43 feet at mean low water in the closed position. The existing operating regulations listed at 117.801(g) require the draw to open on signal, if at least a two-hour advance notice is given. The Coast Guard published a temporary final rule on March 23, 2001, entitled Drawbridge operation regulations, New York, (66 FR 16128) which allows the Pulaski Bridge, to need open only one bascule span for the passage of vessel traffic, from April 23, 2001 through August 31, 2001.

The New York City Department of Transportation (NYCDOT) requested a change to the operating regulations for the Third Avenue Bridge, the Madison Avenue Bridge, and the Pulaski Bridge on May 6, 2001, to allow the bridges to remain in the closed position to facilitate the running of the Five Borough Bike Tour.

The Third Avenue Bridge, mile 1.9, across the Harlem River between Manhattan and the Bronx and the Madison Avenue Bridge, mile 2.3, across the Harlem River between Manhattan and the Bronx, shall remain in the closed position from 8 a.m. to 12 p.m. on May 6, 2001. The Pulaski Bridge, mile 0.6, across the Newtown Creek between Brooklyn and Queens, shall remain in the closed position from 9:30 a.m. to 1:30 p.m. on May 6, 2001. Vessels that can pass under the bridges without bridge openings may do so at all times.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 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. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). This conclusion is based on the fact that the requested closures are of short duration and on Sunday morning when there have been few requests to open these bridges.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612) we considered whether this rule would have a significant economic impact on a substantial number of small entities. “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 less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact that the requested closures are of short duration and on Sunday when there have been few requests to open these bridges.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.

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

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

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for the temporary final rule.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have 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.

On March 30, 2001, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operating Regulation; Ouachita River, Louisiana, in the Federal Register (66 FR 17376). We received one letter commenting on the proposed rule. No public hearing was requested, and none was held.

The Kansas City Southern Railroad has submitted plans to repair the turn span of the swing span bridge across the Ouachita River, mile 167.1, at Monroe. To facilitate the continued movement of trains across the bridge during the repairs, the railroad plans to remove the swing span and temporarily replace it with a removable span bridge with 70 feet of horizontal clearance. The railroad has requested limited openings during the repair period of May 7, 2001 through November 30, 2001. Frequent need to remove and replace the span will severely limit the railroad's ability to complete the repairs in a timely manner.

Discussions were held between the railroad, its contractor, waterway users, and facility operators to determine the best method of allowing vessels to transit the waterway during the repair period. The discussions centered on the mariner's ability to transit the bridge site on any day if proper notification was given. The railroad only wanted to open the bridge on certain days during the morning hours. Mariners explained that their schedule was not such that they would need to go through the bridge on set days and that the proposed schedule by the railroad may require vessels to wait almost 48 hours for the passage. It was determined that due to the limited number of transits, openings would not be required daily but set days would not be acceptable.

Following the meetings, the group recommended to the Coast Guard that

The two 48-hour closures will allow for the removal and replacement of the swing span and placement of the removable span sections of the bridge. Upon establishment of the removable span bridge, mariners will be able to transit the bridge site between the hours of 8 a.m. and 11 a.m. daily provided that at least 20-hours notice is given.

Only one letter was received for the NPRM. The Louisiana Department of Agriculture and Forestry offered no comments on the proposed rule. No changes have been incorporated into the Final Rule.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 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. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, l979).

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

This rule maintains the movement of vessels while allowing the bridge owner to repair his bridge as expeditiously as possible.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Coast Guard considers whether this 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 rule would not have a significant economic impact on a substantial number of small entities.

Under the 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, we want to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

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

We have analyzed this rule under Executive Order 13132 and have determined that this rule would not have implications for federalism under that Order. No comments were received with regards to federalism during NPRM comment period.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that impose unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This rule would not impose an unfunded mandate. No comments were received with regards to unfunded mandates during NPRM comment period.

This 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. No comments were received with regards to the taking of private property during NPRM comment period.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. No comments were received with regards to the taking of private property during NPRM comment period.

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

We considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. Bridge Administration Program actions that can be categorically excluded include promulgation of operating regulations or procedures for drawbridges. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM was impracticable and contrary to the public interest. There was insufficient time remaining to publish an NPRM after we were notified of the required closure, and further delaying the event to follow normal rulemaking procedures before incorporating this important safety measure would have a significant negative affect on the outcome of this annual, highly-attended event.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

The East Las Olas Boulevard Drawbridge, mile 1064.0, across the Atlantic Intracoastal Waterway, has a vertical clearance of 31 feet above mean high water and a horizontal clearance of 91 feet between fenders. The existing operating regulations in 33 CFR 117.5 require the bridge to open promptly and fully for the passage of vessels when a request to open is given.

The East Sunrise Boulevard Drawbridge, mile 1062.6, across the Atlantic Intracoastal Waterway, has a vertical clearance of 25 feet at mean high water and a horizontal clearance of 90 feet between fenders. The existing operating regulations in 33 CFR 117.261(gg) require the bridge to open on signal; except that from November 15 to May 15, from 10 a.m. to 6 p.m., the draw need open only on the hour, quarter-hour, half-hour and three-quarter hour.

The City of Fort Lauderdale Police Department recently requested that the Coast Guard temporarily change the operating regulations for both drawbridges during parts of the 2001 Air and Sea Show to allow the considerable amounts of vehicular and pedestrian traffic be moved away from the beach as safely and quickly as possible. These temporary changes to the drawbridges operating regulations will allow the draws of the East Sunrise Boulevard and East Las Olas Boulevard drawbridges in Fort Lauderdale, Florida, to remain closed from 4 p.m. to 6 p.m. and 9:45 p.m. to 10:45 p.m. on May 5, 2001, and from 4 p.m. to 6 p.m. on May 6, 2001. Except that, the East Sunrise Boulevard drawbridge may open at 4:45 p.m. and 5:30 p.m. each day, and the East Las Olas Boulevard drawbridge may open at 4:30 p.m. and 5:15 p.m. each day on May 5 and 6, 2001.

This proposal is not a “significant regulatory action” under section 3(f) of Executive Order 12866 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. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT)(44 FR 11040:February 26, 1979). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. The changes to the bridge's operating schedules will only be in effect for five total hours over a two-day period. Further, the temporary schedules still allow for some scheduled openings, albeit at reduced intervals.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard must consider whether this rule will have a significant economic effect upon a substantial number of small entities. “Small entities” include small business, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities as the regulations will only be in effect for five total hours over a two day period and the event will be highly publicized.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-221), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small entities may contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. We also have a point of contact for commenting on actions by employees of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.

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

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

The Coast Guard has considered the environmental impact of this action and has determined under figure 2-1, paragraph 32(e) of Commandant Instruction M16475.1C, that this rule is categorically excluded from further environmental documentation.

This 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.

The Brooks Memorial (S.E. 17th Street) bridge across the Atlantic Intracoastal Waterway at Ft. Lauderdale, Florida, has a horizontal clearance of 48 feet between the fender and the bridge span. On April 5, 2001, the Florida Department of Transportation, requested a deviation from the current operating regulation in 33 CFR 117.261(hh) which requires the drawbridge to open on signal; except that from 7 a.m. to 7 p.m. the draw need open only on the hour and half-hour. This temporary deviation was requested to allow emergency repairs to the drawbridge.

The District Commander has granted a temporary deviation from the operating requirements listed in 33 CFR 117.261 (hh) for the purpose of conducting repairs to the drawbridge. Under this deviation, the Brooks Memorial (Southeast 17th Street) drawbridge need not open for navigation from 6 a.m. on April 30, to 6 a.m. on May 9, 2001, except that the drawbridge will open on the hour from 7 a.m. to 8 p.m. on May 5 and 6, 2001. The deviation is effective until May 9, 2001.

The Triborough (125 Street) Bridge, at mile 1.3, across the Harlem River, has a vertical clearance of 54 feet at mean high water, and 59 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.789(d).

The bridge owner, the Triborough Bridge and Tunnel Authority, requested a temporary deviation from the drawbridge operating regulations to facilitate maintenance and repairs at the bridge.

This deviation from the operating regulations allows the bridge owner to keep the bridge in the closed position from June 4, 2001 through June 24, 2001.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Route 82 Bridge, at mile 16.8, across the Connecticut River has a vertical clearance in the closed position of 22 feet at mean high water and 25 feet at mean low water. The existing drawbridge operating regulations are listed at 33 CFR 117.205(c).

The owner of the bridge, Connecticut Department of Transportation, requested a temporary deviation from the drawbridge operating regulations to facilitate the replacement of the pulley system for the submarine cables at the bridge. The bridge can not open for vessel traffic during this repair work.

This deviation to the operating regulations authorizes the owner of the Route 82 Bridge to keep the bridge in the closed position from 6 p.m. on May 21, 2001 through 6 a.m. on May 22, 2001.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

In order to protect the interests of national security, and in accordance with the Presidential Directive of January 31, 2000, the President has directed the conduct of Navy Training at the Atlantic Fleet Weapons Training Facility on Vieques Island, PR. Immediate action is needed to ensure the uninterrupted use by the U.S. Navy of the Training Facility on Vieques, including the adjacent land and waters, and to protect that facility from destruction or injury. The Coast Guard is promulgating the security zone regulations to prevent interference with the conduct of the Navy's exercises for the duration of the security zone. As a result, the enforcement of the security zone is a function directly involved in, and necessary to, the Navy training exercise. Accordingly, based on the military function exception set forth in the Administrative Procedure Act, 5 U.S.C. 553(a)(1), notice and comment rule-making and advance publication, pursuant to 5 U.S.C. 553(b) and (d), are not required for this regulation.

Even if the requirements of 5 U.S.C. 553 would otherwise be applicable, the Coast Guard for good cause finds that, under 5 U.S.C. 553(b)(B) and (d)(3), notice and public comment on the rule before the effective date of the rule and advance publication are impracticable and contrary to the public interest. There is an imminent need to use the naval installation bombing and gunnery range and the adjacent waters for ongoing scheduled exercises by the Navy which further the national security interests of the United States. Opportunity for notice and public comment or advance publication of the zone was impracticable since the Navy did not request the establishment of the zone until 30 April 2001. This regulation is geographically and temporally tailored to meet the needs of national security with a minimal burden on the public.

The Atlantic Fleet Weapons Training Facility is located on the eastern end of Vieques Island, PR. Use of this naval installation is important to achieving acceptable levels of military readiness in accordance with established training standards and requires training exercises conducted with inert ordnance. Such training exercises cannot be safely or effectively conducted if there are unauthorized persons inside the training areas or if the installation is damaged or personnel are injured. The U.S. Army Corps of Engineers has established a danger zone in the vicinity of the bombing and gunnery target area, 33 CFR 334.1470, that is in effect during these training exercises. The Army Corps has also established a restricted area off the coast of the naval facility, 33 CFR 334.1480.

In order to further the interests of national security, and in accordance with the Presidential directive of January 31, 2000, the President has directed the conduct of Navy Training at the Atlantic Fleet Weapons Training Facility on Vieques Island, Puerto Rico. During the current exercises, the restricted area and danger zone have not provided the degree of security required for the naval facility. These operations cannot be conducted if unauthorized personnel or vessels are present inside the security zone. Therefore, to ensure against the destruction, injury or loss of uninterrupted use of the naval installation at Vieques, including the adjacent land and waters, the Coast Guard is establishing this security zone, which effectively extends the duration of the rule published on May 3, 2001 (66 FR 22121).

The Coast Guard previously established a similar security zone (65 FR 25489) around the Atlantic Fleet Weapons Training Facility, Vieques, PR. Based on the Coast Guard's experience implementing that security zone and discussions with the U.S. Navy, the coordinates of the security zone being implemented by this regulation have been slightly modified. The coordinates of the security zone being implemented by this regulation have been altered so that the zone no longer encompasses commonly used transit paths between Vieques, PR and traditional fishing areas.

This security zone is established pursuant to the authority of subpart D of Part 165 of Title 33 of the Code of Federal Regulations and the Magnuson Act regulations promulgated by the President under 50 U.S.C. 191, including subparts 6.01 and 6.04 of part 6 of Title 33 of the Code of Federal Regulations. See Executive Order 10173, as amended. The security zone is needed to protect the bombing and gunnery range, and the adjacent facilities and water, at Vieques Island, PR against destruction, injury, or loss of uninterrupted use. Pursuant to this regulation, no vessel or person will be allowed to enter or remain in the security zone unless specifically authorized to do so by the District Commander or his designated representatives. The District Commander or his designated representatives may grant permission for a vessel to enter or remain within the security zone when operations permit and may condition that permission as appropriate. As operations permit, all efforts will be made to honor any requests to enter.

Vessels or persons violating this section are subject to the penalties set forth in 50 U.S.C. 192 and 18 U.S.C. 3571: seizure and forfeiture of the vessel, a monetary penalty of not more than $250,000, and imprisonment for not more than 10 years.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 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. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

Although the security zone covers an area out to three miles from shore, the zone will be in effect for a limited amount of time. The vessel traffic in the area normally consists of a small number of commercial fishing vessels and other vessels transiting the area. These vessels are not allowed to enter or transit the zone during these training exercises under existing Army Corps of Engineer regulations (33 CFR 334.1470 and 33 CFR 334.1480). These vessels can redirect their transit around the zone with only minor delays in time and distance.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this 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 rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the vicinity of the Naval installation at Vieques, PR and fishing vessels which normally fish the area. These vessels are not allowed to enter or transit the zone during these training exercises under existing Army Corps of Engineer regulations (33 CFR 334.1470 and 334.1480). This security zone will not have a significant economic impact on a substantial number of these small entities. Although the security zone will cover an area out to three miles from shore, the zone will be in effect only for a limited amount of time.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104- 121), we will assist small entities in understanding this rule and how it affects them. Small entities may call the person identified in FOR FURTHER INFORMATION CONTACT.

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

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.

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

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

The Coast Guard anticipates this temporary rule will be categorically excluded from further environmental documentation under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.lC. This temporary rule only ensures the protection of Naval assets and the uninterrupted use of the area for scheduled Naval operations. Standard Coast Guard manatee and turtle watch measures will be in effect during Coast Guard patrols of the security zone. Deep-water routes will be used where practical. Lookouts will be posted to avoid collision with turtles and manatees. If a collision occurs, notification will be made to the U.S. Fish & Wildlife Service at Boqueron, Puerto Rico (787-851-7297).

This 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.

VA published a proposal to amend 38 CFR 3.309(e) to establish presumptive service connection for Type 2 diabetes based on exposure to herbicides in the Federal Register of January 11, 2001 (66 FR 2376-80). Interested persons were invited to submit written comments concerning the proposal on or before March 12, 2001. We received 14 comments: one from the New York State Council of the Vietnam Veterans of America, one from the Wisconsin State Council of the Vietnam Veterans of America, and 12 from concerned individuals.

Three commenters stated that they supported the proposed regulation. One e-mail comment signed by 86 individuals also stated that they supported the proposed regulation. One commenter stated that he supported the proposed regulation and asked for swift implementation of the regulation.

One commenter urged that all Vietnam veterans with Type 2 diabetes be awarded a minimum 10% disability rating.

This rule implements 38 U.S.C. 1116(c), which requires VA to establish a presumption of service connection when a positive association is found between exposure to certain herbicide agents and the subsequent development of a disease. The statute does not require VA to presume that such diseases result in any particular degree of disability. Further, under 38 CFR 3.307(a)(6)(ii), any disease must be manifest to a degree of disability of 10 percent or more before it may be presumed service connected based on herbicide exposure. In establishing presumptions of service connection for specific diseases based on herbicide exposure or other circumstances of service, Congress has consistently required that the disease be manifest to a degree of disability of 10 percent or more before the presumption applies. (See 38 U.S.C. 1116(a)(2)). We are aware of no justification for treating type 2 diabetes differently than other presumptive conditions in this regard. We therefore make no change based on this comment. We note that VA's rating schedule in 38 CFR 4.119, Diagnostic Code 7913, provides that a 10-percent rating will be assigned for diabetes which is “[m]anageable by restricted diet only.”

One commenter urged that VA amend the proposed regulation to include veterans who did not serve in the Republic of Vietnam, but were exposed to herbicides during their military service.

Section 1116(a)(3) of title 38 of the United States Code establishes a presumption of exposure to certain herbicides for any veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975, and has one of the diseases on the list of diseases subject to presumptive service connection. However, if a veteran who did not serve in the Republic of Vietnam, but was exposed to an herbicide agent defined in 38 CFR 3.307(a)(6) during active military service, has a disease on the list of diseases subject to presumptive service connection, VA will presume that the disease is due to the exposure to herbicides. (See 38 CFR 3.309(e)). We therefore believe that there is no need to revise the regulation based on this comment.

Another commenter urged VA to use this rulemaking to define service in the Republic of Vietnam to include service in Vietnam's inland waterways or its territorial waters. The commenter asserted that U.S. military personnel were exposed to herbicides while serving in those locations.

Title 38 U.S.C. 1116 requires that a veteran have served “in the Republic of Vietnam” to be eligible for the presumption of exposure to herbicides. We believe that it is commonly recognized that this term includes the inland waterways.

With respect to offshore service, 38 CFR 3.307(a)(6)(iii) provides that “Service in the Republic of Vietnam “ includes service in offshore waters or other locations only if the conditions of service involved duty or visitation within the Republic of Vietnam. In interpreting similar language in 38 U.S.C. 101(29)(A), VA's General Counsel has concluded that service in a deep-water vessel in waters offshore the Republic of Vietnam does not constitute service “in the Republic of Vietnam.” (See VAOPGCPREC 27-97). VA's regulatory definition of “Service in the Republic of Vietnam” predates the enactment of section 1116(a)(3) (see former 38 CFR 3.311a(a)(1) (1990)), and we find no basis to conclude that Congress intended to broaden that definition. The commenter cited no authority for concluding that individuals who served in the waters offshore of the Republic of Vietnam were subject to the same risk of herbicide exposure as those who served within the geographic boundaries of the Republic of Vietnam, or for concluding that offshore service is within the meaning of the statutory phrase “Service in the Republic of Vietnam.” We therefore make no change based on this comment.

We received two comments urging VA to broaden the scope of this regulation to include Type 1 diabetes (also known as juvenile diabetes).

One commenter noted that VA's rating schedule (38 CFR 4.119, DC 7913) refers only to “diabetes mellitus” and does not distinguish between Type 1 and Type 2. He also noted that DC 7913 refers to ketoacidosis, and asserted that this condition only occurs with Type 1 diabetes.

VA's Schedule for Rating Disabilities (38 CFR part 4) is used to assess the level of disability caused by a disease or injury. It is not used to determine whether disabilities are service connected, nor is it considered when the Secretary determines whether there is an association between herbicide exposure and a specific disease. Under 38 U.S.C. 1116, that decision is based on reports of the National Academy of Sciences (NAS) and all other sound medical and scientific information and analyses available to the Secretary.

Another commenter, an endocrinologist, stated that environmental toxins are well known triggers for the onset of Type 1 diabetes. However, this commenter cited no medical or scientific literature in support of this statement, nor did the commenter specify which environmental toxins (e.g., herbicides) are well known triggers for Type 1 diabetes.

The intent of the proposed regulation was to add only Type 2 diabetes to the list of diseases subject to presumptive service connection based on herbicide exposure in the Republic of Vietnam. Type 1 diabetes is a clinically distinct disease from Type 2 diabetes. As discussed extensively in “Veterans and Agent Orange: Herbicide/Dioxin Exposure and Type 2 Diabetes” (VAO: Diabetes), Appendix B, Type 1 is generally considered to be disease of insulin deficiency due to an immune disorder, while Type 2 diabetes is considered to be primarily a disease of insulin resistance. In its report, “Veterans and Agent Orange: Update 1998” (Update 1998), NAS concluded that there was “inadequate or insufficient evidence” to determine whether an association existed between exposure to herbicides and immune disorders. The Secretary determined “that the credible evidence against an association between immune system disorders and herbicide exposure outweighs the credible evidence for such an association, and [ ] determined that a positive association does not exist.” Diseases Not Associated With Exposure to Certain Herbicide Agents, 64 FR 59232, 59241 (November 2, 1999).

The conclusion reached by NAS in VAO Diabetes was that “there is limited/suggestive evidence of an association between exposure to the herbicides used in Vietnam or the contaminant dioxin and Type 2 diabetes.” This conclusion was based on NAS' thorough review of the published scientific literature on herbicide exposure and diabetes. The Secretary subsequently determined that there is a positive association between exposure to herbicides used in the Republic of Vietnam during the Vietnam era and the development of Type 2 diabetes.

Based on the reasons discussed above, VA finds no basis on which to expand the proposed regulation to include Type 1 diabetes, and we therefore make no change based on these comments.

One commenter asserted that several recent medical studies reported a significant increase in the incidence of diabetes, apparently resulting from an increase in obesity in the general population. The commenter stated that assuming these studies are valid, it is improper for VA to find a “statistically significant relationship” between diabetes and Agent Orange.

NAS was well aware that obesity is a significant risk factor in causing Type 2 diabetes. (VAO: Diabetes at 3). Nevertheless, after a thorough review of the scientific literature available on the subject, NAS concluded “there is limited/suggestive evidence of an association between exposure to the herbicides used in Vietnam or the contaminant dioxin and Type 2 diabetes.”

The Secretary has not found a “statistically significant relationship” between herbicide exposure and diabetes, but rather a “positive association.” Title 38 U.S.C. 1116(b)(3) provides that an association is “positive” if the credible evidence for the association is equal to or outweighs the credible evidence against the association. Once he has determined that a positive association exists between herbicide exposure and a particular disease, the Secretary must publish regulations establishing presumptive service connection for that disease.

The same commenter suggested that VA either reconsider whether to add Type 2 diabetes to the list of diseases subject to presumptive service connection based on herbicide exposure in the Republic of Vietnam or that it wait to publish the final rule until it reviewed these studies.

Title 38 U.S.C. 1116(c)(1) requires that the Secretary, not later than 60 days after the date on which he receives a report from NAS, determine whether a presumption of service connection is warranted for each disease covered by the report and, if the Secretary determines that a presumption is warranted, issue proposed regulations within 60 days thereafter. 38 U.S.C. 1116(c)(2) requires the Secretary to issue final regulations establishing presumptive service connection for any condition for which he determines there is a positive association with exposure of humans to an herbicide agent not later than 90 days after he has issued proposed regulations.

We believe that the NAS adequately took into consideration the recognized relationship between obesity and type 2 diabetes, and the existence of additional studies concerning this risk factor does not warrant ignoring the time requirements of section 1116(c)(2). For reasons more fully explained in the proposal, the Secretary has concluded that presumptive service connection is warranted for Type 2 diabetes, and VA is, therefore, proceeding with publication of a final rule notwithstanding these comments.

One commenter urged that the proposed rule be amended to state that awards granted under the rule will be retroactive to the date the claimant first submitted evidence of a diagnosis of Type 2 diabetes. Title 38 U.S.C. 1116(c)(2) clearly and unambiguously requires that regulations promulgated as a result of a decision of the Secretary of Veterans Affairs that a positive association exists between exposure to herbicides and a specified condition or disease “shall be effective on the date of issuance.” The effective date established by this rule is in accordance with 38 U.S.C. 1116(c)(2) and 5 U.S.C. 801 et. seq. Under 38 U.S.C. 5110(g), when benefits are awarded based on a new regulation, the effective date of the award may not be earlier than the effective date of the regulation. In view of 38 U.S.C. 1116(c)(2) and 5110(g), VA does not have authority to provide in this rule for assignment of effective dates earlier than the date on which this rule is issued.

Another commenter asked how the court case Nehmer v. U.S. Veterans' Admin., C.A. No. C-86-6160 (TEH) (N.D. Cal.), will apply to Type 2 diabetes claims under the proposed rule. The commenter asserted that it is unfair for a Vietnam veteran to not be compensated retroactively by VA.

Pursuant to a stipulation and order of the Federal district court in Nehmer, awards of disability compensation or dependency and indemnity compensation (DIC) made under VA's regulations issued pursuant to 38 U.S.C. 1116 may, in some circumstances, be made effective retroactive to the date of an earlier claim that was filed or denied before such regulations were issued. Thus, the Nehmer stipulation and order, when it applies, permits awards of retroactive benefits that would otherwise be prohibited by 38 U.S.C. 1116(c)(2) and 5110(g). The scope and application of the Nehmer stipulation and order is the subject of pending litigation and, until that litigation is resolved, we cannot say how the Nehmer stipulation and order will affect claims under this rule.

Nothing in this rule is intended to modify the Nehmer stipulation and order or to detract from rights existing under that document. The Nehmer stipulation and order applies to a specific class of claimants whose claims were previously filed or denied during a particular time period. This rule will apply to a broader class of claimants, including those whose claims were denied during periods not covered by the Nehmer stipulation and order, as well as those who file claims in the future. Individuals will continue to have specific rights under the terms of the Nehmer stipulation and order when it applies.

The final rule does not incorporate the effective-date provisions of the Nehmer stipulation and order because the scope and application of those provisions is the subject of current litigation and because VA lacks the authority to issue regulatory provisions that would be inconsistent with 38 U.S.C. 1116(c)(2) and 5110(g). (See 38 U.S.C. 501(a).)

VA appreciates the comments submitted in response to the proposed rule that is now adopted without change.

We estimate that the five-year cost of this rule from appropriated funds would be $3.3 billion in benefits costs and $62 million in government operating expenses. Since it is likely that the adoption of the proposed rule may have an annual effect on the economy of $100 million or more, the Office of Management and Budget has designated this rule as a major rule under the Congressional Review Act, 5 U.S.C. 802, and a significant regulatory action under Executive Order 12866, Regulatory Planning and Review. The following information is provided pursuant to E.O. 12866.

This rule is necessary to comply with 38 U.S.C. 1116, which requires VA to establish a presumption of service connection if the Secretary finds that there is a positive association between exposure to herbicides used in the Republic of Vietnam during the Vietnam era and the subsequent development of any particular disease. As explained above, the Secretary found that there is such an association regarding Type 2 diabetes. There are no feasible alternatives to this rule, since section 1116 requires the Secretary to promulgate it once he finds the positive association described above. This rule would not interfere with state, local or tribal governments in the exercise of their governmental functions.

Historical statistics indicate that the total number of veterans who served in the Republic of Vietnam or its surrounding waters was about 2.6 million. We estimate that about 2.3 million of these veterans are alive today. Using information gained from VAO: Diabetes and VA's Office of Planning and Analysis, VA applied a prevalence rate of 9% to the current population to determine the number of veterans who might have Type 2 diabetes today. VA assumes that over five years, about 90% of these same veterans would file a diabetes-related claim. We expect that 8 out of 10 claims will be made by first time applicants (original) and that 2 out of 10 will come from veterans already service connected for some other issue (reopened). The average monthly award made on account of diabetes or its ancillary conditions for original and reopened claims is estimated to be $462 and $786, respectively. These figures are based on average benefits to current beneficiaries for all conditions and include dependents' benefits and unemployability benefits where applicable. A moderate number of DIC and burial claims have also been factored into this estimate.

VA estimates the cumulative totals of benefits awards to claimants for years 2001-2005 as follows: 10,199, 80,526, 129,988, 159,198 and 178,356. Benefits costs (in $ million) for years 2001-2005 are as follows: $16.6, $303, $720.1, $1,010.7, and $1,205.3, for a total cost of $3.3 billion over five years. This cost estimate also provides for a nominal number of DIC payments and burial awards. Anticipated cost-of-living allowances (COLA's), per current economic assumptions, were factored into this estimate; however, no retroactive payments were considered.

The administrative workload caused by this proposed rule is expected to be 13,361 claims filed in 2001 and more than 220,000 over five years. Full time employee resources devoted to processing claims in years one through five would be 128, 378, 311, 185, and 123, respectively. Administrative workloads assume that not all claims would be granted; it is probable that diabetes related claims will be received from veterans who never served in the Republic of Vietnam. GOE costs (in $ million) for years 2001-2005 are as follows: $6.4, $18.6, $16.5, $11.9, and $8.2, for a total GOE cost of $62 million over five years.

The Unfunded Mandates Reform Act requires (in section 202) that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The reason for this certification is that these amendments would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

This interim rule changes the methods by which GSA-controlled space is identified and measured, eliminates the specific physical description of the components of standard level alterations, and substitutes budget guidance for alterations, providing customer agencies flexibility in designing space to meet their mission needs.

The recommendations are being implemented to improve GSA's overall management of real property assets and the level of service and choices provided to its customer agencies.

As a result of the principles outlined in this rule:

(1) Federal agencies will have greater choice in using GSA to meet space needs;

(2) GSA will remain available to provide the benefits of centralized services desired by its customers; and

(3) GSA's relationship with its customers will more closely approximate landlord/customer relationships typical in the private sector, providing incentives to economize and speed program delivery.

The FMR, which replaces the FPMR, contains a refined and streamlined set of policies and regulatory requirements related to managing property and administrative services. Non-regulatory materials, such as guidance, procedures, and standards currently found in the FPMR, and new non-regulatory materials may become available in separate documents, such as customer guides.

GSA has determined that this interim rule is a significant regulatory action for the purposes of Executive Order 12866 of September 30, 1993.

The interim rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.

The Paperwork Reduction Act does not apply because this interim rule does not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

This interim rule is also exempt from congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

GSA finds good cause to make this rule effective upon publication of this document in the Federal Register under the Administrative Procedure Act (APA) (5 U.S.C. 553(d). This interim final rule does not impose any additional responsibilities on entities in the private sector. Instead, its purpose is to improve asset management practices that affect only Federal agencies that occupy real property owned or controlled by GSA.

This amendment provides the tax tables necessary to compute the relocation income tax (RIT) allowance for employees who are taxed in 2001 on moving expense reimbursements.

Section 5724b of Title 5, United States Code, provides for reimbursement of substantially all Federal, State, and local income taxes incurred by a transferred Federal employee on taxable moving expense reimbursements. Policies and procedures for the calculation and payment of a RIT allowance are contained in the Federal Travel Regulation (41 CFR part 302-11). The Federal, State, and Puerto Rico tax tables for calculating RIT allowance payments are updated yearly to reflect changes in Federal, State, and Puerto Rico income tax brackets and rates.

The General Services Administration (GSA) has determined that this final rule is not a significant regulatory action for the purposes of Executive Order 12866 of September 30, 1993.

This final rule is not required to be published in the Federal Register for notice and comment; therefore, the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , does not apply.

The Paperwork Reduction Act does not apply because this final rule does not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget under 44 U.S.C. 3501 et seq.

This final rule is also exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

In December, 2000, Congress passed Title XIV—Certain Alaskan Cruise Ship Operations, Public Law 106-554, limiting the discharges of treated and untreated sewage and graywater by cruise vessels visiting Alaskan ports and operating in the waters of the Alexander Archipelago and the navigable waters of the United States within the State of Alaska and within Kachemak Bay National Estuarine Research Reserve. Title XIV directs the Secretary to promulgate regulations, including requirements for logbooks and reports, incorporating into the vessel examination and inspection regime the sampling of cruise vessel discharges sufficient to verify that those vessels comply with all applicable environmental laws and international treaty requirements.

The Secretary is delegating to the Commandant, United States Coast Guard, his authority under Title XIV—Certain Alaskan Cruise Ship Operations, Public Law 106-554, to promulgate regulations that will ensure compliance with this statute by the owners, operators, masters, or other person in charge of cruise vessels operating in waters covered by this statute.

This delegation is being published as a final rule effective on the date of publication. Since this amendment relates to the Departmental management, organization, procedure, and practice, notice and comment are unnecessary under 5 U.S.C. 553(b). Furthermore, since this amendment expedites the Coast Guard's ability to promulgate regulations to meet the environmental goals and enforcement obligations of the statute, the Secretary finds good cause, under 5 U.S.C. 553(d)(3), that this rule should be made effective on the date of publication.

The Sacramento splittail (hereafter splittail) represents the only extant species in its genus in North America. For a detailed description of the species, see the Recovery Plan for the Sacramento/San Joaquin Delta Native Fishes (Service 1996) and references within that plan.

Splittail are endemic to certain waterways in California's Central Valley, where they were once widely distributed (Moyle 1976). Sacramento splittail occur in Suisun Bay, Suisun Marsh, the San Francisco Bay-Sacramento-San Joaquin River Estuary (Estuary), the Estuary's tributaries (primarily the Sacramento and San Joaquin rivers), the Napa River and Marsh, and the Petaluma River and Marsh. The Sacramento splittail no longer occurs throughout a significant portion of its former range.

Pursuant to the Endangered Species Act of 1973, as amended (Act), the splittail was listed as a threatened species on February 8, 1999 (64 FR 5963). In this previous listing determination, the Service found that changes in water flows and water quality resulting from export of water from the Sacramento and San Joaquin rivers, periodic prolonged drought, loss of shallow water habitat, and the effect of agricultural and industrial pollutants were significant factors in the species decline.

Subsequent to the publication of the final rule, plaintiffs in the cases San Luis & Delta-Mendota Water Authority v. Anne Badgley, et al. and State Water Contractors, et al. v. Michael Spear, et al. commenced action in Federal Eastern District Court of California, challenging the listing of the splittail as threatened, alleging various violations of the Act and of the Administrative Procedure Act (5 U.S.C 551 et seq. ). The Service, as directed by the court, and pursuant to the Act, provided notice of the opening of a comment period regarding the threatened status for the splittail, from January 12, 2001 to February 12, 2001 (66 FR 2828). The Service is now re-opening the comment period to acquire additional information on the status, abundance and distribution of splittail in the Central Valley of California. Upon the close of this comment period, the Service will make its determination whether the splittail warrants the continued protection of the Act.

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods:

1. You may submit written comments and information by mail to the Field Supervisor, Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W-2605, Sacramento, California 95825.

2. You may send comments by electronic mail (e-mail) to: fw1splittail@fws.gov. If you submit comments by e-mail, please submit them as an ASCII file and avoid the use of special characters and any form of encryption. Please also include “Attn: RIN 1018-AH73” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, contact us directly by calling our Sacramento Fish and Wildlife Office at telephone number 919/414-6600, during normal business hours.

3. You may hand-deliver comments to our Sacramento Fish and Wildlife Office, during normal business hours, at the address given above.

Comments and materials received will be available for inspection, by appointment, during normal business hours at the address under (1) above.

The primary author of this notice is Stephanie Brady (see ADDRESSES section), U.S. Fish and Wildlife Service, Regional Office, 911 N.E. 11th Avenue, Portland, Oregon 97232.

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

Deep-sea red crabs are typically slow growing, and major recruitment events are believed to occur rarely, leaving this resource particularly vulnerable to overfishing. Prior to March 1, 2000 (the “control date” that may be used for establishing eligibility criteria for determining levels of access to the red crab fishery, should access be regulated in the future), the largest reported vessel in the red crab fishery was 120 ft (36.6 m) in length overall and the average hold capacity of vessels in the fleet was between 60,000 and 65,000 lb (27.2 mt and 29.5 mt) of whole crab product. As of the control date, no vessel reportedly fished more than 600 pots, and none had the ability to process completely crabs on board. (“Process completely” means that the harvested crabs are picked, cleaned, cooked, and frozen.) All but one of the five vessels in the fishery prior to the control date land their crabs whole and alive. The remaining vessel reportedly butchers the crabs on board, which means the crab is cut in half and the carapace removed (with a recovery rate of about 58 percent, by weight, of the whole crab). The principal method of fishing for these vessels is to steam to the fishing grounds, set and haul baited traps, and return to port quickly in order to ensure fresh product. Trips are limited in length primarily by the hold capacity of the vessel and by the need to keep the product fresh and, for most vessels, alive.

In late 2000, two additional vessels reportedly entered the red crab fishery. Both of these vessels are larger than the rest of the fleet, reportedly on the order of 150 ft (45.7 m) in length overall, and are catcher-processor vessels with the capability of extensive processing (picking, cleaning, cooking and freezing) of crab product on board while at sea. The hold capacity of these vessels is also larger than that of the other vessels in the fleet--one vessel reportedly has a hold capacity of up to 300,000 lb (136.1 mt) and the other up to 185,000 lb (84 mt). Each of these vessels is reported to be fishing similar numbers of traps/pots as the other vessels in the fleet. Further, in early 2001, a third new vessel reportedly entered the red crab fishery, and more vessels may be considering entering this fishery.

The most recent information available on deep-sea red crabs and the red crab fishery, which is based on a 1977 assessment, indicates that there is a maximum sustainable yield (MSY) of approximately 5.5 million lb (2,495 mt) and that four to six vessels fishing at historical levels of capacity represent the maximum amount of harvesting effort that can be sustained by the resource in order not to exceed the MSY. The addition of up to three new vessels, with a potential for more, threatens not only the resource but also the viability of the existing fishery unless restrictive measures are put into place. While the non-processor vessels fill their holds with whole and, in most cases, live crabs, the catcher-processor vessels have the capability to fill their holds with processed frozen crab meat and thus land an equivalent live weight product of 5 to 30 times higher than the non-processor vessels (depending on hold capacity and processing recovery rate).

Since there were only five vessels in the fishery at the time of the control date, and given the evidence that harvesting capacity on that date was sufficient to utilize fully the available resource, additional harvesting capacity after the control date threatens the fishery. Concerns for overharvesting are increased if vessels entering the fishery after the control date are significantly larger in hold capacity and/or are capable of processing red crab at sea.

Given an MSY for the Northeast region of 5.5 million lb (2,495 mt) and a hold capacity of approximately 65,000 lb (29.5 mt) of whole crab, each of the five vessels fishing in the red crab fishery prior to the March 1, 2000, control date could take a maximum of 1.3 percent of the MSY per trip. A catcher-processor vessel, with a hold capacity of 300,000 lb (136.1 mt) of finished product, could take approximately 16 to 30 percent of the MSY per trip (depending on processing recovery rate). Given the recent red crab landings by vessels that fished for red crab prior to the control date, incremental effort by those vessels and effort by new vessels could result in overfishing.

In fact, even without new entrants, overfishing may be occurring. Preliminary reports from the industry suggest that existing vessels harvested approximately 7 million lb (3,175.2 mt) of red crab in 2000, roughly 125 percent of the MSY estimate.

At its January 23, 2001, meeting, the New England Fishery Management Council (Council) approved a motion to request that the Secretary of Commerce (Secretary) use his authority under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) to promulgate emergency regulations to address the potential for a rapid increase in the harvesting of red crab and to halt or prevent overfishing, while providing immediate protection to the red crab resource as the Council develops an FMP for red crab.

Section 305(c) of the Magnuson-Stevens Act authorizes the Secretary to implement emergency regulations or interim measures, if necessary, to address an emergency or overfishing, regardless of whether an FMP exists for such fishery. These emergency regulations may remain in effect for no more than 180 calendar days after the date of publication in the Federal Register , with a possible 180-day extension, provided the public has an opportunity to comment on the measures. In the case where emergency regulations are implemented at the request of the Council, an extension is justified only if the Council is actively preparing an FMP (or an FMP amendment or other regulations) to address the emergency or overfishing on a permanent basis.

For the reasons stated above, NMFS concurs with the Council’s determination that the current exploitation of the red crab resource, combined with the likelihood of immediate, significant increases in total exploitation, constitutes an emergency situation that presents significant conservation problems. Although the precise level of harvest is unknown, recently reported landings have been at or in excess of the historical MSY. With the arrival of new harvesting capacity and the probability that total capacity could increase several-fold in the next few months, there is strong justification for the Secretary’s intervention in preventing overfishing.

This emergency rule contains measures that, NMFS believes, will prevent or eliminate overfishing of the red crab stock in the short term in the EEZ from Cape Hatteras Light, NC, northward to the U.S.-Canada border. This area was chosen for regulation because it encompasses, based on available information, the portions of the red crab stock currently being harvested. The measures include a TAC of 2.5 million lb (1,134 mt) of red crab for the 180-day period of effectiveness for this emergency rule, which is based on an annual TAC of 5.0 million lb (2,268 mt); a possession limit of 65,000 lb (29.5 mt) of whole red crab or its equivalent; a trap/pot limit of 600 pots; and an incidental catch of 100 lb (45.4 kg) of whole red crab per trip. This rule also establishes the requirements for a LOA, for vessel reporting via an IVR system, and for submission of VTRs for the red crab fishery.

As mentioned previously, a region-wide MSY estimate of red crab is approximately 5.5 million lb (2,495 mt). The 1977 red crab assessment, which was based on a 1974 survey conducted prior to the establishment of the Hague Line, included portions of Georges Bank that are now in Canadian waters. Since 92.4 percent of the total exploitable biomass abundance was in U.S. waters, an appropriate annual TAC for the area chosen for regulation is approximately 5 million lb (2,268 mt).

The establishment of a 2.5-million lb (1,134-mt) TAC sets an upper limit on the amount of red crab available to be harvested during the 180-day effectiveness period of these emergency regulations. When NMFS determines that total landings of red crab are projected to have reached the TAC, the directed red crab fishery will be closed and fishing for, and landings of, red crab in amounts greater than the incidental catch limit will be prohibited. NMFS has set the TAC at a level that will ensure, to the extent possible, that overfishing does not occur.

This action establishes a 65,000-lb (29.5-mt) possession limit, which is the average hold capacity of the non-processing red crab vessels that fished historically, at least 1 year prior to and including the control date of March 1, 2000. The possession limit applies to landings of whole or processed red crabs equivalent to 65,000 lb (29.5 mt) of whole crabs. The ratio of whole crab weight to finished product weight for crab parts, other than whole crabs or meat only, is 1.72 to 1. The ratio of whole crab weight to finished product weight for crabs that have been picked, cleaned, cooked, and frozen (that is, meat only) is 4 to 1. Vessels that land whole crabs and that have hold capacities of approximately 65,000 lb (29.5 mt) should be able to continue fishing at or near their historical levels. Vessels with significantly larger hold capacities than 65,000 lb (29.5 mt) will be able to participate in the fishery but will likely be constrained in their ability to fish efficiently for red crab. Setting the trip limit at 65,000 lb (29.5 mt) is intended to help prevent a derby-type fishery and is intended to allow the greatest number of vessels with a recent history in the fishery to continue to fish in a safer, more economical manner, while not expressly precluding red crab fishing by any vessel that chooses to fish under the emergency provisions. The transferring of red crab at sea, either whole or processed, is prohibited pursuant to § 648.265(b). Purchasing, possessing or receiving for a commercial purpose, more than 100 lb (45.4 kg) of whole red crab, or its equivalent as specified at § 648.265(a), caught by a vessel in the EEZ that has not been issued a valid LOA under this subpart, is also prohibited pursuant to § 648.265(c).

This action also establishes a trap/pot limit of 600 pots. No vessel reportedly fished more than 600 pots as of the control date and this pot limit is not expected to be a restriction for vessels currently fishing for red crab, including the newly entered vessels. This pot limit could, however, serve to prevent any vessel from increasing the number of pots it fishes, in the face of trip limits. Therefore, with a vessel spreading its effort out and catching its trip limit over several days, rather than sooner, the fishery is prevented from being converted into a derby-type fishery.

For non-red crab directed trips, data from 1998 and 1999 show that the median catch was 115 lb (52.2 kg) per trip. An incidental catch limit of 100 lb (45.4 kg) of whole red crab per fishing trip, or its equivalent as discussed above, is established by this emergency action for vessels fishing without a LOA in order to allow historical incidental catches to continue. While NMFS’ databases show a total incidental catch of red crab of 13,594 lb (6,166 kg) in 1998 and of 10,852 lb (4,922.5 kg) in 1999, this is very likely to be an underestimate, given the uncertainty in the data. Nevertheless, the total allowed incidental catch, which is not counted against the TAC, is expected to be insignificant and should not undermine the benefits of having a TAC.

In conjunction with the aforementioned measures, vessels intending to fish for or land more than the allowed incidental catch limit for red crab are required to obtain an LOA issued by the Administrator, Northeast Region, NMFS, by requesting one, in writing, from the Northeast Region Permit Office (see ADDRESSES ) or by calling the Permit Office at 978-281-9370.

To allow for monitoring of the TAC, vessels that obtain an LOA are required to report their red crab catch landings via an IVR system (the IVR reporting system used to monitor harvest levels for certain species in the fisheries of the Northeast) upon returning to port for each trip until the expiration of these emergency regulations or until such time that the TAC has been reached and the fishery closed, whichever comes first.

To enable the gathering of data for the fishery that are necessary for the development of a Red Crab FMP, vessels that obtain an LOA are required to file a VTR, consistent with these emergency regulations, for the duration of these emergency regulations or until such time that the TAC has been reached and the fishery closed, whichever comes first.

The red crab fishery falls under the Marine Mammal Protection Act Category I Lobster Trap/Pot fishery. Therefore, vessels in this fishery are required to comply with the applicable gear restrictions for that fishery, including a required weak link at the buoy that breaks away knotless at 3,780 lb (1,714.6 kg) and a requirement for marking of gear as specified at § 229.32. Also, red crab fishing gear, fished in 200 fathoms (365.8 m) or less by a vessel issued a limited access lobster permit under § 697.4(a), must comply with the trap tagging requirements specified at § 697.19.

The AA finds that the need to provide immediate protection to the Atlantic deep-sea red crab stock to protect it from overfishing constitutes good cause to waive the requirement to provide notice and the opportunity for public comment, pursuant to authority set forth at 5 U.S.C. 553 (b)(B), as such procedures would be contrary to the public interest. Similarly, the need to implement these measures in a timely manner to protect the stock from overfishing constitutes good cause, under authority contained in 5 U.S.C. 553(d)(3), to partially waive the 30-day delay in effective date otherwise required by 5 U.S.C. 553(d). The reason for the partial waiver is to allow vessel owners 10 days to obtain the necessary vessel LOA and fishing logs.

This emergency rule has been determined to be not significant for the purposes of E.O. 12866.

This rule is exempt from the analytical requirements of the Regulatory Flexibility Act because no public comments are required under 5 U.S.C. 553 et seq. and no other law mandates the application of such requirements.

Notwithstanding any other provision of law, no person is required to respond to nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection-of-information displays a currently valid OMB control number.

This rule contains four collection-of-information requirements subject to the PRA. The collection of this information has been approved by OMB, and the OMB control numbers and the estimated time for a response are as follows:

Letters of authorization, OMB control number 0648-0202 (5 minutes/response).

Observer deployment, OMB control number 0648-0202 (2 minutes/response).

Vessel trip reports, OMB control number 0648-0212 (5 minutes/response).

IVR system reports, OMB control number 0648-0212 (4 minutes/response).

The aforementioned response estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates, or any other aspect of the data requirements, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES ).

The ocean salmon fisheries in the EEZ off Washington, Oregon, and California are managed under a “framework” fishery management plan entitled the Pacific Coast Salmon Plan (Salmon FMP). Regulations at 50 CFR part 660, subpart H, provide the mechanism for making preseason and inseason adjustments to the management measures, within limits set by the Salmon FMP, by notification in the Federal Register.

These management measures for the 2001 and pre-May 2002 ocean salmon fisheries were recommended by the Pacific Fishery Management Council (Council) at its April 3 to 6, 2001, meeting.

In accordance with the Salmon FMP, the Council's Salmon Technical Team (STT) and staff economist prepared a series of reports for the Council, its advisors, and the public. The first of the reports was prepared in February when the necessary scientific information first became available. The first report, “Review of 2000 Ocean Salmon Fisheries” (REVIEW), summarizes biological and socio-economic data for the 2000 ocean salmon fisheries and assesses how well the Council's 2000 management objectives were met. The second report, “Preseason Report I Stock Abundance Analysis for 2001 Ocean Salmon Fisheries” (PRE I), provides the 2001 salmon stock abundance projections and analyzes the impacts on the stocks and Council management goals if the 2000 regulations and regulatory procedures were applied to the 2001 stock abundances.

The Council met in Portland, OR from March 5 to 9, 2001, to develop 2001 management options for proposal. Three commercial and three recreational fishery management options were proposed for analysis and public comment. These options consisted of various combinations of management measures designed to protect weak stocks of coho and chinook salmon and to provide for ocean harvests of more abundant stocks. After the March Council meeting, the Council’s STT and staff economist prepared a third report, “Preseason Report II Analysis of Proposed Regulatory Options for 2001 Ocean Salmon Fisheries”, which analyzes the effects of the proposed 2001 management options. This report also was made available to the Council, its advisors, and the public.

Public hearings to receive public testimony on the proposed options were held on: March 26, 2001, in Westport, WA and Coos Bay, OR; March 27, 2001, in Tillamook, OR and Eureka, CA; and March 28, 2001, in Moss Landing, CA. The Council also received public testimony at both the March and April meetings, and received written comments at the Council office.

The Council met on April 3 to 6, 2001, in Sacramento, CA to adopt its final 2001 recommendations. Following the April Council meeting, the Council’s STT and staff economist prepared a fourth report, “Preseason Report III Analysis of Council-Adopted Management Measures for 2001 Ocean Salmon Fisheries,” which analyzes the environmental and socio-economic effects of the Council's final recommendations. This report also was made available to the Council, its advisors, and the public. After the Council took final action on the annual ocean salmon specifications in April, it published the recommended management measures in its newsletter.

Since 1989, NMFS has listed under the Endangered Species Act (ESA) 16 evolutionarily significant units (ESUs) of salmon on the West Coast. As the listings have occurred, NMFS has conducted formal ESA section 7 consultations and issued biological opinions (BOs) that consider the impacts to listed salmonid species resulting from proposed implementation of the salmon FMP, or in some cases, from proposed implementation of the annual management measures. Associated with the BOs are incidental take statements that specify the level of take that is exempted from the section 9 prohibitions of the ESA (consultation standards). Some of the BOs have concluded that implementation of the salmon FMP is not likely to jeopardize the continued existence of certain listed ESUs. Other BOs have found that implementation of the salmon FMP is likely to jeopardize certain listed ESUs and have identified reasonable and prudent alternatives that would avoid the likelihood of jeopardizing the continued existence of the ESU under consideration. In a March 2, 2001, letter to the Council, NMFS provided the Council with ESA standards and guidance for the management of stocks listed under the ESA in anticipation of the BOs in preparation for the 2001 management season.

Estimates of the 2000 spawning escapements for key stocks managed under the salmon FMP and preseason estimates of 2001 ocean abundance are provided in the Council's REVIEW and PRE I documents. The primary resource and management concerns are for salmon stocks listed under the ESA.

NMFS has listed three ESUs of coho under the ESA: central California coastal, southern Oregon/northern California coastal, and Oregon coastal. The three northern sub-stocks of Oregon coastal natural (OCN) coho comprise the Oregon coastal coho ESU. OCN coho are the largest naturally produced component of the natural and hatchery coho stocks originating from rivers south of Leadbetter Point, WA. OCN coho are managed as a stock aggregate with four identified sub-stocks that include coho produced from Oregon river and lake systems south of the Columbia River. NMFS' ESA consultation standards require that the three OCN northern sub-stocks be managed in accordance with Amendment 13 to the Salmon FMP, which permits an exploitation rate of up to 15 percent under the current level of ocean survival. The southern sub-stock is part of the southern Oregon/northern California coastal ESU and must be managed in accordance with the requirements for that ESU. The 2001 ocean abundance estimate for OCN is 50,100 coho, which is 90 percent of the 2000 preseason prediction of 55,900 coho, but represents a 72 percent increase above the post-season estimate of the 1998 parent brood (PRE I).

Central California coastal coho and southern Oregon/northern California coastal coho are listed as threatened species under the ESA (61 FR 56138, October 31, 1996, and 62 FR 24588, May 6, 1997). Coho populations in California have not been monitored closely in the past, and no forecasts of the ocean abundance of listed coho originating from California are available; these runs have been generally at low abundance levels for many years. NMFS' ESA consultation standards for the southern Oregon/northern California coastal coho and Central California coastal coho ESUs require that the ocean exploitation rate on Rogue/Klamath hatchery coho be constrained to 13 percent or less, and that the retention of coho in recreational and commercial fisheries off California be prohibited.

Sacramento River winter chinook is listed as an endangered species under the ESA (59 FR 440, January 4, 1994). NMFS' ESA consultation standard requires that all harvest-related impacts to the Sacramento River winter chinook salmon population be reduced by a level that would achieve at least a 31 percent increase in the age-3 spawner-to-spawner replacement rate over a base period of 1989 through 1993. The 2000 spawning run size was estimated to be 560 adults, similar to the estimated 1997 adult escapement. Neither preseason nor postseason estimates of ocean abundance are available for winter chinook; however, the run is expected to remain depressed in 2001.

California coastal chinook is listed as a threatened species under the ESA (64 FR 50394, September 16, 1999). Coastal chinook spawning populations are not well monitored and no estimate of an ocean exploitation rate is available. NMFS’ ESA consultation standard for California coastal chinook requires that the ocean harvest rate on Klamath River fall chinook not exceed 17 percent, which is the maximum observed since 1996. The standard is intended to prevent harvest impacts on California coastal chinook from increasing substantially above levels that have occurred since 1996, the year in which additional ocean harvest constraints were introduced to protect Sacramento River winter chinook.

California Central Valley spring chinook is listed as a threatened species under the ESA (64 FR 50394, September 16, 1999). Since 1994, the 3-year replacement rates of Central Valley spring chinook returning to Deer and Butte Creeks have consistently increased, with relatively strong returns to Butte Creek. NMFS’ ESA consultation standard for Central Valley spring chinook requires continued implementation of ESA consultation standards to protect Sacramento River winter chinook.

Snake River wild fall chinook is listed under the ESA as a threatened species (57 FR 14653, April 22, 1992). Information on the stock's ocean distribution and on fishery impacts is not available. Fishery impacts on Snake River fall chinook are evaluated using the Lyons Ferry Hatchery stock. The Lyons Ferry stock is widely distributed and harvested by ocean fisheries from southern California to Alaska. NMFS' ESA consultation standard requires that Council fisheries must be managed to ensure that the exploitation rate on age-3 and age-4 adults for the combined Southeast Alaska, Canadian, and Council fisheries is 30 percent less than that observed during the 1988-1993 base period.

This is the second year that NMFS provided guidance to the Council related to the Puget Sound chinook ESU. NMFS' consultation standards for Puget Sound chinook stocks are expressed in terms of total or southern U.S. fishery exploitation rate ceilings, or terminal escapement objectives. Under the current management structure, Council fisheries are included as part of the suite of fisheries that comprise the fishing regime negotiated each year by the co-managers under U.S. v. Washington to meet management objectives for Puget Sound and Washington Coastal salmon stocks. The comprehensive nature of the management objectives and the management planning structure strongly connect Council and Puget Sound fisheries. Therefore, in adopting its regulations, the Council must determine that its fisheries in the ocean, when combined with the suite of other fisheries impacting this ESU, meet the management targets set for stocks within this ESU. NMFS estimated in its ESA BO for 2000 fisheries that the exploitation rates from Council-managed fisheries on Puget Sound spring and fall chinook stock aggregates have been zero and three percent or less, respectively, in recent years. Management actions taken to meet exploitation rate targets will, therefore, occur primarily in the Puget Sound fisheries, but the nature of the existing process is such that ocean fishery impacts will be accounted for, and are potentially liable to constraining measures to meet particular targets.

NMFS has evaluated the “Puget Sound Comprehensive Chinook Management Plan: Harvest Management Component as a Resource Management Plan” (RMP) for Puget Sound chinook under the recently adopted ESA section 4(d) rule (65 FR 42422, July 10, 2000). The RMP, jointly developed by the Washington Department of Fish and Wildlife (WDFW) and the Puget Sound Treaty Tribes, includes stock-specific harvest management objectives for Puget Sound chinook. NMFS has determined that the RMP is consistent with the ESA section 4(d) rule, and that the 2001 ocean and inside fisheries are consistent with the RMP. In addition, the 2001 and pre-May 2002 management measures are consistent with the standards set to avoid jeopardy in the above BO.

The Council recommended ocean harvest levels and management measures for 2001 are designed to apportion the burden of protecting the weak stocks identified and discussed in PRE I equitably among ocean fisheries and to allow maximum harvest of natural and hatchery run surplus to inside fishery and spawning needs. NMFS finds the Council's recommendations responsive to the goals of the salmon FMP, the requirements of the resource, and the socio-economic factors affecting resource users. The recommendations are consistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and other applicable law, including the ESA and U.S. obligations to Indian tribes with federally recognized fishing rights. Accordingly, NMFS has adopted them.

The dominant issues before the Council were achieving an acceptable ocean exploitation rate on OCN and southern Oregon/northern California coho, meeting NMFS' ESA consultation standards for Sacramento River winter chinook, California coastal chinook, and Puget Sound chinook, and equitably allocating the Klamath River fall chinook harvest.

Amendment 13 establishes the allowable harvest rates for OCN coho. When the Council adopted Amendment 13 in 1997, it stipulated that the amendment should be reviewed and updated on a periodic basis beginning in 2000. In November of 1999, the Council approved the formation of an ad hoc OCN workgroup to complete the review. The subsequent report recommended several changes to the original management matrix including a lower range of harvest rates when spawner abundance and marine survival are very low. At its November, 2000, meeting the Council adopted the OCN workgroup report as “expert biological advice to help guide Council management of OCN coho.” The report recommended that harvest rates be limited to the range of between 0 and 8 percent when the status of parental spawners is “critical” for any of the sub-aggregate populations regardless of marine survival. This is the circumstance the Council faced this year. Even though the marine survival will be in the medium category, the applicable parental spawner status is critical, and the OCN workgroup report recommended a 0 to 8 percent exploitation rate. The guidance provided by the workgroup report given the circumstances for 2001 are more specific and more conservative than under the original Amendment 13 management matrix. The Council's recommended measures are expected to produce a 7.4-percent OCN coho exploitation rate (freshwater and marine) and a 3.0 percent marine exploitation rate impact for Rogue/Klamath coho, which are the index stocks for the southern Oregon/northern California coho stocks. Retention of coho off California continues to be prohibited for the seventh consecutive year.

From the U.S.-Canada border to Cape Falcon, OR, ocean fisheries are managed to protect depressed lower Columbia River fall chinook salmon and Washington coastal and Puget Sound natural coho salmon stocks, and to meet ESA requirements for Snake River fall chinook salmon. Ocean treaty and non-treaty harvests and management measures were based in part on negotiations between Washington State fishery managers, commercial and recreational fishing groups, and the Washington coastal, Puget Sound, and Columbia River treaty Indian tribes as authorized by the U.S. District Court in U.S. v. Washington , U.S. v. Oregon, and Hoh Indian Tribe v. Baldrige .

North of Cape Falcon, OR, the 2001 management measures are more liberal than the 2000 season measures. The total allowable catch for 2001 is 60,000 chinook and 300,000 coho; these fisheries are restricted to protect depressed Washington coastal, Puget Sound, and OCN coho. Washington coastal and Puget Sound chinook generally migrate to the far north and are affected insignificantly by ocean harvests from Cape Falcon to the U.S.-Canada border.

South of Cape Falcon, OR, the retention of coho is prohibited, except for a recreational selective fishery off Oregon in July with a 55,000-fish quota of marked hatchery coho. Chinook fisheries are constrained primarily to meet the ESA standards for California coastal chinook and Sacramento River winter chinook. As a result of these constraints and the high abundance forecast for age-4 Klamath River fall chinook, an unusually large number of fall chinook are predicted to be available for in-river harvest in the Klamath-Trinity Basin. These constraints also limit impacts on threatened Snake River fall chinook and Central Valley spring chinook, and limit hook-and-release mortality on Oregon coastal coho, southern Oregon/northern California coastal coho, and central California coho. Size limit, gear, and seasonal restrictions are intended to reduce harvest impacts on ESA listed stocks.

The treaty-Indian commercial troll fishery quota is 37,000 chinook in ocean management areas and Area 4B combined. The fisheries includes a chinook-directed fishery in May and June (under a quota of 18,500 chinook) and an all-salmon season beginning in July with a 18,500 chinook sub-quota. The expected 2001 harvest would be an increase from the observed harvest in 2000. The coho quota for the treaty-Indian troll fishery in ocean management areas, including Washington State Statistical Area 4B for the July-September period is 90,000 coho, a significant increase from 2000.

The timing of the March and April Council meetings makes it impracticable for the Council to recommend fishing seasons that begin before May 1 of the same year. Therefore, the 2002 fishing seasons opening earlier than May 1 are also established in this action. The Council recommended, and NMFS concurs, that the recreational seasons from Horse Mountain to the U.S.-Mexico Border will open off California in 2001 as indicated in the season description section. At the November 2001 meeting, the Council will consider a recommendation to open recreational seasons for all salmon except coho prior to April 13 in areas off California between Pt. Arena and the U.S.-Mexico border. At the March 2002 meeting, the Council will consider inseason recommendations to (1) open commercial seasons for all salmon except coho prior to May 1 in areas off Oregon and off California south of Point Sur, (2) open recreational seasons for all salmon except coho prior to May 1 in areas off Oregon, and (3) identify the areas, season, quota, and special regulations for any experimental April fisheries (proposals must meet Council protocol and be received in November 2001).

The following sections set out the management regime for the salmon fishery. Open seasons and days are described in Sections 1, 2, and 3 of the 2001 management measures. Inseason closures in the commercial and recreational fisheries are announced on the NMFS hotline and through the U.S. Coast Guard Notice to Mariners as described in Section 7. Other inseason adjustments to management measures are also announced on the hotline and through the Notice to Mariners.

The following are the management measures recommended by the Council and approved and implemented by NMFS for 2001 and, as specified, for 2002.

Note: This section contains restrictions in parts A, B, and C that must be followed for lawful participation in the fishery.

May 1 through earlier of June 30 or 17,000-chinook guideline (see C.7.a). All salmon except coho. No more than 4 spreads per line beginning June 1 (see gear restrictions in C.2). Cape Flattery and Columbia Control Zones closed (C.4.a and C.4.b). The 17,000-chinook guideline includes a subarea guideline of 12,000 chinook for the area between the U.S.-Canada border and the Queets River. State regulations require that fishers fishing within the U.S.-Canada Border to Queets River subarea, and intending to land their catch outside of this subarea, notify WDFW before they leave the subarea. Vessels must land and deliver their fish within the area or in adjacent areas that are closed to all commercial non-Indian salmon fishing, and within 24 hours of any closure of this fishery. Inseason actions may modify harvest guidelines in later fisheries to achieve or prevent exceeding the overall allowable troll harvest impacts (see C.7.a).

July 1 through earliest of July 27 or 7,000-chinook preseason guideline (see C.7.a) or 12,000 marked coho guideline. All salmon (all retained coho must have a healed adipose fin clip). The 7,000-chinook guideline includes a subarea guideline of 4,000 chinook for the area between the U.S.-Canada border and the Queets River. Gear restricted to plugs 6 inches (15.2 cm) or longer; no more than 4 spreads per line plus 1 flasher w/o hooks (see also C.2). Cape Flattery Control Zone closed (C.4.a). Trip limits, gear restrictions, and guidelines may be implemented or adjusted inseason. Fishery is continuous until 75 percent of either guideline is caught, then it reverts to 4 days open/3 days closed. Vessels must land and deliver their fish within the area or in adjacent areas that are closed to all commercial non-Indian salmon fishing, and within 24 hours of any closure of this fishery. State regulations require that fishers fishing within the U.S.-Canada Border to Queets River subarea, and intending to land their catch outside of this subarea, notify WDFW before they leave the subarea.

July 20 through July 27. Catch in this fishery will be assessed against the 6,000 chinook and 63,000 marked coho guidelines in the Queets River to Cape Falcon fishery. All salmon (all retained coho must have a healed adipose fin clip). See gear restrictions in C.2. Trip limits, gear restrictions, and guidelines (see C.7.a) may be instituted or adjusted inseason. Vessels must land and deliver their fish within the area or in adjacent areas that are closed to all commercial non-Indian salmon fishing, and within 24 hours of any closure of this fishery. Columbia River Control Zone is closed (C.4.b).

The earlier of the day following closure of the U.S.-Canada Border to Leadbetter Pt. July troll fishery or July 28, but not before July 20, through earliest of September 30 or the overall chinook quota (preseason 6,000-chinook guideline; see C.7.a.) or 63,000 marked coho guideline. All salmon (all retained coho must have a healed adipose fin clip). See gear restrictions in C.2. Fishery continuous until 75 percent of either guideline caught, then reverts to a cycle of 4 days open/3 days closed. Trip limits, gear restrictions, and guidelines may be instituted or adjusted inseason. Vessels must land and deliver their fish within the area or in adjacent areas that are closed to all commercial non-Indian salmon fishing, and within 24 hours of any closure of this fishery. Columbia River Control Zone is closed (C.4.b).

April 1 through July 18; July 27 through August 29; and September 1 through October 31. All salmon except coho. See gear restrictions C.2 and Oregon State regulations for a description of the closed area at the mouth of Tillamook Bay. [Note: Incidental retention of halibut is not allowed until May 1.]

April 1 through July 9; July 18 through August 29; and September 1 through October 31. All salmon except coho. See gear restrictions in C.2.

May 1 through May 31. All salmon except coho. See gear restriction C.2.

June 3 through earlier of June 30 or 1,500-chinook. All salmon except coho. Fishery follows a cycle of 2 days open/2 days closed (may be adjusted inseason to match management needs). Possession and landing limit of 30 fish per day. See gear restrictions C.2. All salmon must be landed and delivered to Gold Beach, Port Orford, or Brookings within 24 hours of closure.

August 1 through earlier of August 31 or 3,000-chinook quota. All salmon except coho. Possession and landing limit of 30 fish per day. See gear restrictions C.2. All salmon must be landed and delivered to Gold Beach, Port Orford, or Brookings within 24 hours of closure.

September 1 through earlier of September 30 or 8,000-chinook quota. All salmon except coho. Possession and landing limit of 30 fish per day. All fish caught in this area must be landed within the area. See gear restrictions in C.2. Klamath Control Zone closed (C.4.). The 8,000-chinook quota includes a harvest guideline limiting the combined landings at the ports of Gold Beach, Port Orford, and Brookings to no more than 2,000 chinook. If this guideline is reached prior to the overall quota, the fishery will close north of the Oregon-California border. When the fishery is closed north of the Oregon-California border and open to the south, Oregon State regulations provide for the following action: Vessels with fish on board caught in the open area off California may seek temporary mooring in Brookings, OR prior to landing in California only if such vessels first notify the Chetco River Coast Guard Station via VHF channel 22A between the hours of 0500 and 2200 and provide the vessel name, number of fish on board, and estimated time of arrival.

May 1 through earlier of May 31 or 3,000-chinook quota. All salmon except coho. All fish caught in this area must be landed within the area. Minimum size 26 inches (66 cm). See gear restrictions in C.2.

September 1 through September 30. All salmon except coho. Minimum size 26 inches (66 cm). See gear restrictions in C.2.

June 24 through September 30. All salmon except coho. Minimum size limit 26 inches (66 cm) through June 30 and 27 inches (68.6 cm) thereafter. See gear restrictions in C.2.

May 24 through September 30. All salmon except coho. Minimum size 26 inches (66 cm) through June 30 and 27 inches (68.6 cm) thereafter. See gear restrictions in C.2.

Mon. through Fri. October 1 through October 12. All salmon except coho. Minimum size 27 inches (68.6 cm). See gear restrictions in C.2.

May 1 through August 14. All salmon except coho. Minimum size limit 26 inches (66 cm) through June 30 and 27 inches (68.6 cm) thereafter. See gear restrictions in C.2.

May 1 through August 14 and September 11 through September 30. All salmon except coho. Minimum size 26 inches (66 cm) through June 30 and 27 inches (68.6 cm) thereafter. See gear restrictions C.2.

In 2002, Council to consider opening a fishery from April. 15-30 south of Pt. Sur (see C.7.b).

All salmon on board a vessel must meet the minimum size or other special requirements for the area being fished and the area in which they are landed if that area is open. Salmon may be landed in an area that is closed only if they meet the minimum size or other special requirements for the area in which they were caught.

a. Single point, single shank, barbless hooks are required in all fisheries.

b. Off Oregon South of Cape Falcon: No more than 4 spreads are allowed per line.

Spread defined: A single leader connected to an individual lure or bait.

c. Off California: No more than 6 lines are allowed per vessel and barbless circle hooks are required when fishing with bait by any means other than trolling.

Circle hook defined: A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90° angle.

Trolling defined: Fishing from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions.

C.3. Transit Through Closed Areas with Salmon on Board: It is unlawful for a vessel to have troll or recreational gear in the water while transiting any area closed to salmon fishing while possessing salmon; however, fishing for species other than salmon is not prohibited if the area is open for such species and no salmon are in possession.

C.4. Control Zone Definitions:

a. Cape Flattery Control Zone —The area from Cape Flattery (48°23′00″ N. lat.) to the northern boundary of the U.S. EEZ; and the area from Cape Flattery south to Cape Alava, 48°10′00″ N. lat. and east of 125°05′00″ W. long.

b. Columbia Control Zone —An area at the Columbia River mouth, bounded on the west by a line running northeast/ southwest between red lighted Buoy #4 (46°13′35″ N. lat., 124°06′50″ W. long.) and green lighted Buoy #7 (46°15′09″ N. lat., 124°06′16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N. lat., 124°03′07″ W. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between green lighted Buoy #7 to the tip of the north jetty (46°14′48″ N. lat., 124°05′20″ W. long.) and then along the north jetty to the point of intersection with the Buoy #10 line; and, on the south, by a line running northeast/southwest between red lighted Buoy #4 and the tip of the south jetty (46°14′03″ N. lat., 124°04′05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line.

c. Klamath Control Zone —The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N. lat. (approximately 6 nm (11.1 km) north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nm (22.2 km) off shore); and, on the south, by 41°26′48″ N. lat. (approximately 6 nm (11.1 km) south of the Klamath River mouth).

C.5. Notification When Unsafe Conditions Prevent Compliance with Regulations: If prevented by unsafe weather conditions or mechanical problems from meeting special management area landing restrictions, vessels must notify the U.S. Coast Guard and receive acknowledgment of such notification prior to leaving the area. This notification shall include the name of the vessel, port where delivery will be made, approximate amount of salmon (by species) on board, and the estimated time of arrival.

C.6. Incidental Halibut Harvest: During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. License applications for incidental harvest must be obtained from the International Pacific Halibut Commission (phone 206-634-1838). Applicants must apply prior to April 1 of each year. Incidental harvest is authorized only during May and June troll seasons and after June 30 if quota remains and if announced on the NMFS hotline (phone 800-662-9825). Oregon Department of Fish and Wildlife (ODFW) and WDFW will monitor landings. If the landings are projected to exceed the 34,046-lb (15.5-mt) preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to close the incidental halibut fishery. License holders may land no more than 1 halibut per each 3 chinook, (except 1 halibut may be landed without meeting the ratio requirement), and no more than 35 halibut may be landed per trip. Halibut retained must be no less than 32 in (81.3 cm) in total length (with head on).

C.7. Inseason Management: In addition to standard inseason actions or modifications already noted under the season description, the following inseason adjustments may be implemented:

a. After the May/June non-Indian commercial salmon fishery north of Cape Falcon, if the entire 17,000 chinook harvest guideline has not been taken, up to 5,000 chinook may be transferred to the Queets River to Cape Falcon July-September harvest guideline at a one-to-one rate. Any chinook uncaught from the May/June fishery in excess of 5,000 may be transferred to the July-September fishery on a fishery impact equivalent basis.

b. At the March 2002 meeting, the Council will consider inseason recommendations to: (1) open commercial seasons for all salmon except coho prior to May 1 in areas off Oregon and off California south of Point Sur, and (2) identify the areas, season, quota, and special regulations for any experimental April fisheries (proposals must meet Council protocol and be received by November 2001).

C.8. Consistent with Council management objectives, the State of Oregon may establish additional late-season, chinook-only fisheries in state waters. Check state regulations for details.

C.9. For the purposes of California Department of Fish and Game (CDFG) Code, Section 8232.5, the definition of the KMZ for the ocean salmon season is that area from Humbug Mt., OR to Horse Mt., CA.

Note: This section contains restrictions in parts A, B, and C that must be followed for lawful participation in the fishery.

July 1 through earlier of September 30 or 23,400-coho subarea quota. All salmon (7 days per week), 2 fish per day, but only 1 chinook, and all retained coho must have a healed adipose fin clip. Chinook non-retention in Area 4B unless modified by inseason management. Inseason management (C.4) may be used to sustain season length and keep harvest within a guideline of 1,700 chinook.

July 1 through earlier of September 23 or subarea sub-quota of 5,350 coho; September 24 through earlier of October 21 or overall subarea quota of 5,850 (500 set-aside) coho. All salmon (7 days per week), 2 fish per day, but only 1 chinook, and all retained coho must have a healed adipose fin clip. Inseason management (C.4) may be used to sustain season length and keep harvest within a guideline of 1,000 chinook for the general season and 100 chinook for the set-aside season.

Sunday through Thursday July 1 through earlier of September 30 or 83,250 coho subarea quota; All salmon. 2 fish per day, but only 1 chinook and all retained coho must have a healed adipose fin clip. Inseason management (C.4) may be used to maintain season length and limit harvest within a guideline of 19,450 chinook.

Sunday through Thursday July 1 through earlier of September 3 or subarea sub-quota of 102,500 coho; Tillamook Head to North Head Lighthouse, 7 days per week, September 4 through earlier of September 30 or overall subarea quota of 112,500 coho (10,000 set-aside). All salmon. 2 fish per day, but only 1 chinook and all retained coho must have a healed adipose fin clip. Closed between Tillamook Head and Cape Falcon beginning August 1. Closed in Recreational Columbia Control Zone (C.3.a). Inseason management (C.4) may be used to sustain season length and limit harvest within a guideline of 7,750 chinook.

Except as provided below during the selective fishery, the season is: April 1 through October 31; all salmon except coho; 2 fish per day; no more than 6 fish in 7 consecutive days. See gear restrictions in C.2.a and C.2.b. See Oregon State regulations for a description of a closure at the mouth of Tillamook Bay.

Selective fishery for marked hatchery coho : June 22 through earlier of July 31 or a landed catch of 55,000 coho. All salmon. 2 fish per day, all retained coho must have a healed adipose fin clip. No more than 6 fish in 7 consecutive days. All salmon except coho season reopens the earlier of August 1 or attainment of the coho quota.

May 17 through July 8 and July 24 through September 3. All salmon except coho. 2 fish per day. From May 17 through July 8, no more than 4 fish in 7 consecutive days. Beginning July 24, no more than 6 fish in 7 consecutive days. See gear restrictions in C.2. Klamath Control Zone (C.3.b) closed during August.

February 17 through November 18; All salmon except coho; 2 fish per day. Minimum size 24 inches (61 cm) through May 31, and 20 inches (50.8 cm) thereafter. Gear restrictions include: one rod per angler, no more than 2 barbless hooks, and circle hooks when not trolling (C.2.a, C.2.c and C.2.d).

In 2002, the season opens February 16 (nearest Saturday to February 15) for all salmon except coho. 2 fish per day, 24-inch (61-cm) minimum size limit and the same gear restrictions as in 2001.

April 14 through November 13; All salmon except coho; 2 fish per day. Minimum size limit 24 inches (61 cm) through June 30, and 20 inches (50.8 cm) thereafter. One rod per angler. Gear restrictions include: one rod per angler, no more than 2 barbless hooks, and circle hooks when not trolling (C.2.a, C.2.c, and C.2.d).

In 2002, the season opens April 13 for all salmon except coho; 2 fish per day, 24-inch (61-cm) minimum size limit and the same gear restrictions as in 2001. This opening could be modified to allow an earlier opening date following Council review at its November 2001 meeting.

March 31 through September 30. All salmon except coho; 2 fish per day. Minimum size limit 24 inches (61 cm) through June 30, and 20 inches (50.8 cm) thereafter. Gear restrictions include: one rod per angler, no more than 2 barbless hooks, and circle hooks when not trolling (C.2.a, C.2.c, and C.2.d).

In 2002, the season opens March 30 for all salmon except coho; 2 fish per day, 24-inch (61-cm) minimum size limit and the same gear restrictions as in 2001. This opening date could be modified to an earlier opening date following Council review at its November 2001 meeting.

C.1. All salmon on board a vessel must meet the minimum size or other special requirements for the area being fished, and the area in which they are landed if that area is open. Salmon may be landed in an area that is closed only if they meet the minimum size or other special requirements for the area in which they were caught.

C.2.Gear Restrictions : All persons fishing for salmon, and all persons fishing from a boat with salmon on board must meet the gear restrictions listed below for specific areas or seasons.

a. U.S.—Canada Border to Pt. Conception, California : No more than one rod may be used per angler and single point, single shank, barbless hooks are required for all fishing gear. (Note: ODFW regulations in the state-water fishery off Tillamook Bay may allow the use of barbed hooks to be consistent with inside regulations.)

April 1-30: Anglers are limited to artificial lures and plugs of any size, or bait no less than 6 inches (15.2 cm) long (excluding hooks and swivels). All gear must have no more than 2 single point, single shank, barbless hooks. Divers are prohibited and flashers may be used only with downriggers.

May 1 through October 31: No special gear restrictions other than anglers must use no more than 2 single point, single shank, barbless hooks.

c. Off California North of Pt. Conception: Anglers must use no more than 2 single point, single shank, barbless hooks.

d. Off California between Horse Mt. and Pt. Conception: Off California between Horse Mt. and Pt. Conception: Single point, single shank, barbless circle hooks (see circle hook definition below) must be used if angling with bait by any means other than trolling and no more than 2 such hooks shall be used. When angling with 2 hooks, the distance between the hooks must not exceed 5 inches (12.7 cm) when measured from the top of the eye of the top hook to the inner base of the curve of the lower hook, and both hooks must be permanently tied in place (hard tied). Circle hooks are not required when artificial lures are used without bait.

Circle hook defined : A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90° angle.

Trolling defined: Angling from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions.

a. Columbia Control Zone —An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between red lighted Buoy #4 (46°13′ 35″ N. Lat., 124°06′ 50″ W. long.) and green lighted Buoy #7 (46°15′ 09″ N. lat., 124°06′ 16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357 true from the south jetty at 46°14′ 00″ N. lat., 124°03'07″ West. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between green lighted Buoy #7 to the tip of the north jetty (46°14′ 48″ N. lat., 124°05′ 20″ W. long.) and then along the north jetty to the point of intersection with the Buoy #10 line; and, on the south, by a line running northeast/southwest between red lighted Buoy #4 and tip of the south jetty (46°14′ 03″ N. lat., 124°04′ 05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line.

b. Klamath Control Zone —The ocean area at the Klamath River mouth bounded on the north by 41°38′ 48″ N. lat. (approximately 6 nm (11.1 km) north of the Klamath River mouth); on the west, by 124°23′ 00″ W. long. (approximately 12 nm (22.2 km) off shore); and, on the south, by 41°26′ 48″ N. lat. (approximately 6 nautical miles (11.1 km) south of the Klamath River mouth).

C.4. Inseason Management : Regulatory modifications may be necessary inseason to meet preseason management objectives such as quotas, harvest guidelines and season duration. Actions could include modifications to bag limits or days open to fishing, and extensions or reductions in areas open to fishing. NMFS may transfer coho inseason among recreational subareas north of Cape Falcon to help meet the recreational season duration objectives (for each subarea) after conferring with representatives of the affected ports and the Salmon Advisory Subpanel recreational representatives north of Cape Falcon. At the November, 2001 meeting, the Council will consider recommendation to open seasons for all salmon except coho prior to April 13, 2002, in areas off California between Pt. Arena and the U.S.-Mexico border. At the March, 2002 meeting, the Council will consider an inseason recommendation to open seasons for all salmon except coho prior to May 1, 2002, in areas off Oregon.

C.5. Additional Seasons in State Territorial Waters : Consistent with Council management objectives, the States of Washington and Oregon may establish limited seasons in state waters. Oregon state-water fisheries are limited to chinook salmon. Check state regulations for details.

Note: This section contains restrictions in parts A, B, and C which must be followed for lawful participation in the fishery.

B.1. All boundaries may be changed to include such other areas as may hereafter be authorized by a Federal court for that tribe's treaty fishery.

B.2. Applicable lengths for dressed, head-off salmon, are 18 in (45.7 cm) for chinook and 12 in (30.5 cm) for coho. Minimum size and retention limits for ceremonial and subsistence harvest are as follows:

Makah Tribe — None

Quileute, Hoh and Quinault tribes —Not more than 2 chinook longer than 24 in (61.0 cm) in total length may be retained per day. Chinook less than 24 in (61.0 cm) total length may be retained.

B.3. The area within a 6-mile (9.7 km) radius of the mouths of the Queets River (47°31′42″ N. lat.) and the Hoh River (47°45′12″ N. lat.) will be closed to commercial fishing. A closure within 2 miles (3.2 km) of the mouth of the Quinault River (47°21′00″ N. lat.) may be enacted by the Quinault Nation and/or the State of Washington and will not adversely affect the Secretary of Commerce's management regime.

C.1. The overall treaty troll ocean quotas are 37,000 chinook and 90,000 coho. The overall chinook quota is divided into 18,500 chinook for the May/June chinook-directed fishery and 18,500 chinook for the July through September all-salmon season. If the chinook quota for the May/June fishery is not fully utilized, the excess fish cannot be transferred into the later all-salmon season. The quotas include troll catches by the S'Klallam and Makah tribes in Washington State Statistical Area 4B from May 1 through September 30.

Under the authority of the Northern Pacific Halibut Act, NMFS promulgated regulations governing the Pacific halibut fishery which appear at 50 CFR part 300, subpart E. In addition, the 2001 Pacific halibut management measures were published in the Federal Register on March 21, 2001 (66 FR 15801). The regulations and management measures provide that vessels participating in the salmon troll fishery in Area 2A (all waters off the States of Washington, Oregon, and California), which have obtained the appropriate International Pacific Halibut Commission (IPHC) license, may retain halibut caught incidentally during authorized periods in conformance with provisions published with the annual salmon management measures. A salmon troller may participate in the halibut incidental catch fishery during the salmon troll season or in the directed commercial fishery targeting halibut, but not both.

The following measures have been approved by IPHC, and implemented by NMFS. The operator of a vessel who has been issued an incidental halibut harvest license by the IPHC may retain Pacific halibut caught incidentally in Area 2A, during authorized periods, while trolling for salmon. Incidental harvest is authorized only during the May and June troll seasons. It is also authorized after June 30 if halibut quota remains and if halibut retention is announced on the NMFS hotline (phone 800-622-9825). License holders may land no more than 1 halibut per each 3 chinook, except 1 halibut may be landed without meeting the ratio requirement, and no more than 35 halibut may be landed per trip. Halibut retained must meet the minimum size limit of 32 in (81.3 cm). The ODFW and WDFW will monitor landings and, if they are projected to exceed the 34,046-lb (15.5-mt) preseason allocation or the Area 2A non-Indian commercial total allowable catch of halibut, NMFS will take inseason action to close the incidental halibut fishery. License applications for incidental harvest must be obtained from the IPHC. Applicants must apply prior to April 1 of each year.

In addition to the gear restrictions shown in Section 1, 2, and 3, the following gear definitions and restrictions are applicable:

Commercial Troll Fishing Gear: Troll fishing gear for the ocean salmon fisheries in the EEZ off Washington, Oregon, and California is defined as one or more lines that drag hooks behind a moving fishing vessel. In that portion of the fishery management area (FMA) off Oregon and Washington, the line or lines must be affixed to the vessel and must not be intentionally disengaged from the vessel at any time during the fishing operation.

Recreational Fishing Gear: Recreational fishing gear for the FMA is defined as angling tackle consisting of a line with no more than one artificial lure or natural bait attached. In that portion of the FMA off Oregon and Washington, the line must be attached to a rod and reel held by hand or closely attended; the rod and reel must be held by hand while playing a hooked fish. No person may use more than one rod and line while fishing off Oregon or Washington. In that portion of the FMA off California, the line must be attached to a rod and reel held by hand or closely attended. Weights directly attached to a line may not exceed 4 lb (1.8 kg). While fishing off California north of Point Conception, no person fishing for salmon and no person fishing from a boat with salmon on board may use more than one rod and line. Fishing includes any activity that can reasonably be expected to result in the catching, taking, or harvesting of fish.

Wherever the words “nautical miles off shore” are used in this document, the distance is measured from the baseline from which the territorial sea is measured.

Geographical landmarks referenced in this document are at the following locations:

Actual notice of inseason management actions will be provided by a telephone hotline administered by the Northwest Region, NMFS, 206-526-6667 or 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts. These broadcasts are announced on Channel 16 VHF-FM and 2182 KHz at frequent intervals. The announcements designate the channel or frequency over which the Notice to Mariners will be immediately broadcast. Inseason actions will also be filed with the Federal Register as soon as practicable. Since provisions of these management measures may be altered by inseason actions, fishermen should monitor either the telephone hotline or Coast Guard broadcasts for current information for the area in which they are fishing.

This notification of annual management measures is exempt from review under Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA (AA) finds good cause under 5 U.S.C. 553(b)(B), to waive the requirement for prior notice and opportunity for public comment. As described earlier (Schedule Used to Establish 2001 Management Measures), the Council solicited public comment on these measures and has notified the public of the measures it recommended for implementation. Providing additional opportunity for prior notice and public comments on these measures through a rulemaking process would be impracticable and contrary to the public interest. Given the extremely low returns of many ocean salmon stocks listed under the ESA, the need to prevent overfishing, and the need to facilitate a level of escapement to meet the requirements of the resource and inside fisheries, it is essential to have these measures effective at the beginning of the fishing year. Failure to implement these measures immediately could compromise the status of certain stocks and negatively impact international, state, and tribal salmon fisheries, thereby undermining the purposes of this agency action.

For the reasons discussed earlier, the AA has determined that good cause exists to waive the requirements of 50 CFR 660.411 for prior notice and opportunity for public comments. Section 660.411 of title 50, Code of Federal Regulations, requires NMFS to publish an action implementing management measures for ocean salmon fisheries each year and, if time allows, invite public comment prior to the effective date. Section 660.411 further states that if, for good cause, an action must be filed without affording a prior opportunity for public comment, the measures will become effective; however, public comments on the action will be received for a period of 15 days after filing of the action with the Office of the Federal Register. NMFS will receive public comments on this action for 15 days from the date of filing this action for public inspection with the Office of the Federal Register.

The AA also finds that good cause exists under 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness of this rule. The finding of good cause is based upon the public's interest in having these provisions in place as early as possible in the ocean salmon fishing year. As previously discussed, these measures are essential to conserve threatened and endangered ocean salmon stocks, and to provide for harvest of more abundant stocks. The finding of good cause to waive the 30-day delay in effectiveness is also based on the limited time available to implement these new measures after the final Council meeting in April and before the commencement of the ocean salmon fishing year on May 1.

To enhance notification of the fishing industry of these new measures, NMFS is announcing the new measures over the telephone hotline used for inseason management actions and by U.S. Coast Guard Notice to Mariners Broadcast. NMFS is also advising the States of Washington, Oregon, and California on the new management measures. These states announce the seasons for applicable state and Federal fisheries through their own public notification systems.

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

The amount of the 2001 TAC of sharpchin and northern rockfish in the Bering Sea subarea of the BSAI was established as 16 metric tons by the Final 2001 Harvest Specifications and Associated Management Measures for the Groundfish Fisheries Off Alaska (66 FR 7276, January 22, 2001).

In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS, has determined that the amount of the 2001 TAC for sharpchin and northern rockfish in the Bering Sea subarea of the BSAI has been achieved. Therefore, NMFS is requiring that further catches of sharpchin and northern rockfish in the Bering Sea subarea of the BSAI be treated as prohibited species in accordance with § 679.21(b).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds the need to immediately implement this action because the fact that the amount of the 2001 TAC for sharpchin and northern rockfish in the Bering Sea subarea of the BSAI has been achieved constitutes good cause to waive the requirement to provide prior notice opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion because the amount of the 2001 TAC for sharpchin and northern rockfish in the Bering Sea subarea of the BSAI has been achieved constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

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