The Florida Keys National Marine Sanctuary was designated by the Florida Keys National Marine Sanctuary and Protection Act (FKNMSPA) P.L. 101-605. The Sanctuary includes 2900 square nautical miles of coastal and ocean waters, and the submerged lands thereunder, surrounding the Florida Keys. The 2.5 million-acre Sanctuary contains one of North America's most diverse assemblages of terrestrial, estuarine, and marine fauna and flora, including, in addition to the Florida reef tract, thousands of patch reefs, one of the largest sea grass communities covering 1.4 million acres, mangrove fringed shorelines, mangrove islands, and various hardbottom habitats. These diverse habitats provide shelter and food for thousands of species of marine plants and animals, including more than 50 species of animals identified under federal or state law, as endangered or threatened. The present Management Plan for the Sanctuary was completed in 1996.

The proposed revised Management Plan will likely involve changes to existing management policies of the Sanctuary, to address current issues and challenges, and to better protect and manage the Sanctuary's resources and qualities. NOAA anticipates completion of the revised Management Plan by June 30, 2002, and concomitant documents, including any revised regulations, will require approximately six to twelve additional months.

This timeline will allow NOAA to prepare a revised plan to be submitted to the Governor of the State of Florida for review and approval in July 2002. The State of Florida is a co-trustee in the management of the Sanctuary and NOAA has determined that at the conclusion of the five-year review of the Sanctuary, it will re-propose the management plan and regulations for the Governor's review, similar to the forty-five day review period required under section 304(b) of the National Marine Sanctuary Act at the time a national marine sanctuary is being designated (16 U.S.C. 1434(b)).

The United States Patent and Trademark Office published a proposed rule entitled “Revision of Patent and Trademark Fees for Fiscal Year 2002” in the Federal Register of May 9, 2001 (66 FR 23642). The proposed rule contains an error in the Other Considerations section. The paragraph that references an appendix comparing existing and proposed fee amounts should have been omitted. The appendix was referenced for informational purposes only. This document corrects the error in the Other Considerations section.

In rule FR Doc. 01-11591, published on May 9, 2001 (66 FR 23642), make the following correction. On page 23643, in the third column, remove the third paragraph from the Other Considerations section.

For additional information, see the direct final rule which is located in the Rules Section of this Federal Register .

This proposal addresses the following local rules: MCESD 349—Pharmaceutical, Cosmetic and Vitamin Manufacturing Operations, PCAPCD 229—Fiberboard Manufacturing, and SCAQMD 1189—Hydrogen Plant Process Vents. In the Rules and Regulations section of this Federal Register , we are approving these local rules in a direct final action without prior proposal because we believe these SIP revisions are not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.

For further information on this action, pertaining to the proposed approval of Delaware's accidental release prevention program (Clean Air Act section 112(r)), please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication.

Entities potentially regulated by this action are those which manufacturer new motor vehicles and engines. Regulated categories include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your product is regulated by this action, you should carefully examine the applicability criteria in § 86.099-17 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular product, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

The preamble, regulatory language and regulatory support document are also available electronically from the EPA Internet Web site. This service is free of charge, except for any cost you already incur for Internet connectivity. The official EPA version is made available on the day of publication on the primary Web site listed below. The EPA Office of Transportation and Air Quality also publishes these notices on the secondary Web site listed below.

Please note that due to differences between the software used to develop the document and the software into which the document may be downloaded, changes in format, page length, etc. may occur.

Section 202(m)(5) of the CAA directs EPA to promulgate regulations requiring vehicle manufacturers to provide to:

Such requirements are subject to the requirements of section 208(c) regarding protection of trade secrets; however, no such information may be withheld under section 208(c) if that information is provided (directly or indirectly) by the manufacturer to its franchised dealers or other persons engaged in the repair, diagnosing or servicing of motor vehicles.

On August 9, 1995, EPA published a final rulemaking (60 FR 40474) which set forth the Agency's service information regulations. These regulations, in part, required each Original Equipment Manufacturer (OEM) to do the following: (1) List all of its emission-related service and repair information on a Web site called FedWorld (including the cost of each item and where it could be purchased); (2) either provide enhanced information to equipment and tool companies or make its OEM-specific diagnostic tool available for purchase by aftermarket technicians, and (3) make reprogramming capability available to independent service and repair professionals if its franchised dealerships had such capability. These requirements were intended to ensure that aftermarket service and repair facilities have access to the same emission-related service information, in the same or similar manner, as that provided by vehicle manufacturers to their franchised dealerships.

In order to meet Congress' intent that consumers have freedom of choice in where to have their vehicles serviced, it is essential for independent technicians to have access to timely and accurate emission-related service and repair information. Industry estimates indicate that independent technicians perform up to 80% of all vehicle service and repairs. Further, independent technicians perform more repairs on older vehicles (which are more likely than newer vehicles to have higher emissions) than technicians in franchised dealerships. These conclusions are the result of statistics issued from the Motor and Equipment Manufacturers Association (Automotive Industry Status Report, 1999. EPA Air Docket A-2000-49, item II-F-05) that (1) the level of excess emissions increases as a vehicle's mileage increases, and (2) the percentage of non-dealer repairs increased and dealer repairs decreased as a vehicle's mileage increased and warranty coverage is no longer an issue.

In addition, OEM comments submitted during the comment period for the prior service information proposal (56 FR 48278, September 24, 1991) spoke to the integral role aftermarket technicians play in servicing the approximately 200 million vehicles in use. Many OEMs indicated that the number of service bays in their franchised dealerships are inadequate to service their fleets of vehicles and that they depend on aftermarket technicians to provide service for their customers' vehicles, especially for those vehicles out of warranty. This further highlights the need for independent technicians to have access to timely and appropriate emission-related repair and service information.

Since 1995, the Agency has gained experience in the implementation of the service information requirements. Additionally, changing technology has made it necessary to revisit the current requirements to take advantage of advanced technology.

In the prior service information proposal (56 FR 48272, September 24, 1991), we proposed the dissemination of the required information by electronic format. However, after extensive comments from the automotive industry and our concerns at that time about the capability of the World Wide Web to handle the information and its limited use by the general public, we elected to use NTIS' FedWorld as the means of making information available. Rather than being a full text data base, the FedWorld data base is best characterized as a card catalog of required information, i.e., it lists the title, price, and purchasing instructions for each item.

As we have implemented the 1995 requirements, a variety of issues have been raised about the effectiveness of the information distribution requirements. First, several issues have been raised related to the effectiveness of FedWorld in making the required information available in an efficient and cost-effective manner. Input from both OEMs and aftermarket technicians indicates that it is often difficult to find specific items in the FedWorld data base. This is due to various factors, including the lack of common terminology among OEMs for the same or similar items and the failure of OEMs to provide descriptions of each item, e.g., documents are often listed by part number with no indication of what they contain. Additionally, EPA has been made aware that the information listed in FedWorld often was not available to be shipped from an OEM's designated distributor within one business day of an order being placed, as required by the regulations. OEMs have also complained about the administrative costs they were charged by NTIS and the lack of technicians accessing the data base.

EPA agrees that there appears to be a limited number of technicians accessing the FedWorld database. We believe this is due to a variety of factors, including the following: (1) A lack of awareness about its existence; (2) the model years applicable to the information listed are just now coming out of the original manufacturer warranty; and (3) the inability to receive the information in a timely manner. Based on recent communications to the Agency, it appears that technicians are beginning to use FedWorld as the models contained in the database are appearing in larger numbers at aftermarket repair facilities. However, the database is still cumbersome to search and does not result in the information being provided in a timely manner. Finally, over the past year, several OEMs have sought the Agency's opinion as to whether they could opt-out of the FedWorld requirement if they made available the required information on their own Internet sites.

As a result of these requests and the issues cited above, we concluded that changes to the existing regulations are necessary to ensure that emission-related service and repair information is available in a timely manner to all persons who service and repair motor vehicles.

Therefore, today's rulemaking proposes that within 6 months of publication of the Final Rule, each OEM shall launch individual World Wide Web Internet sites and up-load on its Web site the full text of all emission-related service and repair documents, 1 in English, for all OBD equipped 1996 and later model year vehicles. We are aware that OEMs may be at different points in their Web site development. We are also aware that some OEM information for 1996 through 2000 model years may not be readily converted for use on the World Wide Web and the cost of doing so may be prohibitive. Therefore, EPA requests comment on the need for a short phase-in period for making available full-text service information as required in this proposal for 1996 through 2000 model year vehicles. Additionally, we are aware that service information for the 1994 and 1995 model years poses even greater technological challenges for conversion to full-text for use on the World Wide Web. For example, several OEMs have indicated to us that their service manuals and technical service bulletins for some of these model years are no longer available to them in electronic format. As a result, large volumes of information would need to be electronically scanned and converted for Web-based access. Therefore, we will propose alternative requirements for these two model years. For a discussion of service information requirements for 1994 and 1995 model years, please see section II(A)(2). OEMs will not be required to simultaneously maintain their indexes on the FedWorld database.

OEMs may choose to have a third party (e.g., FedWorld, an information intermediary, or another entity) establish and maintain their full-text Web sites. However, OEMs would remain responsible for ensuring accuracy and completeness of information as well as compliance with the regulations.

In the original Service Information requirements finalized in August of 1995 (60 FR 40475), we required manufacturers to make available “any and all” information needed by the aftermarket to make use of the OBD system and such other information, including instructions for making emission-related repairs, excluding trade secrets. The 1995 regulations defined emission-related information as including, but not limited to, any information regarding any system, component or part of a vehicle that controls emissions and any system, component and/or part associated with the powertrain system, including, but not limited to, the engine, the fuel system and ignition system. The existing regulations also require that information must be provided for any system, component or part that is likely to affect emissions, such as transmission systems.

Specifically, EPA required an index of emissions-related documents available for ordering to be up-loaded on the FedWorld database. The required information included, but was not limited to, manuals, technical service bulletins (TSBs), diagrams, charts, training materials (instructor manuals), and videos.

While we believe that the definition of “emissions-related” as described above is fairly comprehensive, we have received input from aftermarket technicians suggesting that there is additional information needed by the aftermarket to diagnose and complete emissions-related repairs that is not readily available across all manufacturers. To address these concerns we are providing additional clarification and examples of the types of information that we believe is consistent with the statutory intent to provide “any and all” information needed to make use of the OBD system. These examples, which include pages from several OEM service manuals and a generic logic flow diagram for a repair procedure, can be found in EPA Air Docket A-2000-49 items II-F-02, and II-F-04. To the extent that manufacturers do not already make this information available to their dealerships, we are proposing that this information be developed for both their dealerships and aftermarket service providers. We also believe that the level of information being sought by the aftermarket and proposed in today's action is not proprietary and should therefore be included in the scope of the required information. This belief is based in part upon the increasing number of manufacturers who are voluntarily providing a wider scope of OBD information to aftermarket service providers without any expressed concerns to EPA regarding the release of proprietary information. To further ensure manufacturers that we do not intend to require proprietary information, we have provided specific examples of the increased level of information that is currently being made available by some manufacturers that we believe should be consistently required from all manufacturers to ensure the diagnosis and repair of OBD equipped vehicles.

We are proposing that manufacturers make available in full-text on their respective Web sites OBD system operational information which describes functional characteristics of the OBD system and emission-related components necessary to accurately diagnose and repair emissions-related problems. In particular, aftermarket and dealership service providers have indicated that OBD system operational information such as generic drive cycles, component operating ranges and system logic flow diagrams are valuable pieces of information needed for accurate diagnosis and repair of emissions-related problems. We also believe that this type of information will be needed for use in Inspection and Maintenance (I/M) programs. Currently some I/M programs have voluntarily incorporated checks of the OBD system into their programs. Additionally, within the next one to two years, EPA will require a check of the OBD system in Inspection and Maintenance programs. EPA has been working with the voluntary I/M programs and they have expressed the need for information such as generic drive cycles to assist them in successfully implementing OBD checks into their programs.

As an example of the type of general OBD information that EPA believes is required to make emission-related repairs, and thus is proposing to require OEMs to make available, the most recent Advanced Engine Performance Specialist Test (L1) Preparation Guide developed by the organization Automotive Service Excellence (ASE) includes a reference booklet that has been placed in EPA Air Docket A-2000-49, item II-F-01. The ASE L1 Preparation Guide provides generic examples of various operating parameters for OBD components and sensors (e.g. a properly functioning engine coolant temperature sensor will show values ranging from −40 °F to 248°F). This information is provided for those taking the test as an example of a diagnostic procedure a technician would utilize when servicing an emissions-related problem. We believe that the ASE L1 Preparation Guide is an effective example of the types of information we believe should be more readily available for all OEMs. To further analyze the availability of this level of service information, we conducted a literature search of a variety of service manuals from a cross-section of manufacturers. We looked at service manuals ranging from model years 1996-2000 for randomly chosen diagnostic trouble code PX300 (random misfire). A search of the service manuals was conducted to evaluate if information such as component operating ranges, logic flow diagrams, or generic drive cycles was available to assist technicians in trouble-shooting this particular code. Our research indicated that this type of information is not consistently made available by all manufacturers. Our analysis is contained in EPA Air Docket A-2000-49, item II-B-01, “Technical Memorandum from Shannon Elliot to Holly Pugliese and Arvon Mitcham, March 10, 2000”.

We are aware of at least one manufacturer who makes this information available only via their manufacturer-specific diagnostic scan tool. For manufacturers who currently utilize this approach, we propose that this information also be included in full-text on their respective Web site(s). For manufacturers who make this information available in publications other than service manuals (e.g., training materials) that are not otherwise subject to the proposed full-text requirements, we propose that this information be readily accessible in full text on manufacturer Web sites as well. For all manufacturers, this information should be formatted and appear in a clear, consistent, and readily accessible manner (e.g., tables or logic flow diagrams). Although the information should be as vehicle specific as possible, we understand that a manufacturer's system may be consistent across vehicle lines and, therefore, the information may be consolidated to make it as generic as is appropriate.

Additionally, vehicle systems are evolving in such a way that there is an increased likelihood of all vehicle systems, including the anti-theft system, affecting the electronic control unit (ECU). Therefore, we believe it is necessary and appropriate to ensure that information reflecting and affecting these inter-relationships is also provided to the aftermarket.

With today's action, we propose that the full-text documents to be up-loaded and available for viewing on OEM Web sites include, but not be limited to, the following items:

(a) Manuals, technical service bulletins (TSBs), diagrams, charts, training materials (see Section IIB for further detail) and videos.

(b) OBD system operational information that describes functional characteristics of the OBD system and emission-related components. OBD system operational information includes, but is not limited to, OBD generic drive cycle information, component operating ranges, and system logic flow diagrams. OEMs are not required to provide algorithms, look-up tables, or any values associated with look-up tables.

In addition, it is proposed that OEMs provide emission-related diagnostic procedures on their respective Web sites and that access to these procedures not require connection to the vehicle to access this information.

(c) Documents such as component and subsystem manuals provided to OEMs or franchised dealerships by suppliers or other parties that have agreements with OEMs. We understand that OEMs are increasingly using third party contractors and suppliers to design and develop parts and other vehicle subsystems. We believe that this information is critical for the diagnosis and service of emissions-related problems and needs to be made available to aftermarket service providers. Thus, the fact that information is not provided directly by an OEM to its franchised dealerships should not preclude the OEM from making non-propriety service and repair information available to the aftermarket. EPA believes that it is appropriate for this information to be made available on OEM Web sites but also requests comment on alternative mechanisms for making this information available to the aftermarket.

(d) Any information on other systems that can directly effect the emission system within a multiplexed system (including how information is sent between emission-related system modules and other modules on a multiplexed bus),

(e) Any information regarding any system, component, or part of a vehicle monitored by the OBD system that could in a failure mode cause the OBD system to illuminate the malfunction indicator light (MIL).

(f) Any other information relevant to the diagnosis and completion of an emissions-related repair. This information includes, but is not limited to, information needed to start the vehicle when the vehicle is equipped with an anti-theft or similar system that disables the engine. This information also includes any manufacturer-specific emissions-related diagnostic trouble codes (DTCs) and any related service bulletins, trouble shooting guides, and/or repair procedures associated with these manufacturer-specific DTCs.

With regard to anti-theft systems, it appears that some OEMs have incorporated systems into their vehicles which, when the ECU is replaced or reprogrammed as part of an emissions-related repair, prevent the vehicles from being started without the use of an OEM-specific tool and codes. Additionally, some OEMs have incorporated anti-theft systems into their vehicles that disable the engine when the vehicle is brought in for service. In both of these instances, an aftermarket service provider would not be able to complete the repair for the customer without otherwise having to take the vehicle to a dealership to complete the repair. We believe that an emissions-related repair cannot be considered complete if the owner is not able to drive the vehicle away from the repair shop. Therefore, we are proposing that OEMs make this information directly available to the aftermarket.

EPA appreciates that vehicle manufacturers spend considerable resources to prevent vehicle theft and we do not want to jeopardize this security by allowing illegal disablement of the vehicle security system. Given the sensitive nature of the anti-theft system information, we believe it is reasonable to allow manufacturers some additional lead-time to incorporate additional appropriate security measures as needed by each OEM. EPA requests comment on this issue.

Information for making emission-related repairs does not include information used to design and manufacture parts, but may include manufacturer changes to internal calibrations. However, a manufacturer need only provide such information to the extent it has provided such information to its dealerships.

Finally, we believe that manufacturers are accountable for the accuracy of their service information, for both their dealerships and the aftermarket repair industry. Moving toward Internet-based delivery of service information should increase the ability of OEMs to more quickly respond to errors in their service information and provide updates to the required information for all interested parties in a timely manner.

The primary focus of this proposal is on service information for vehicles equipped with complete OBD systems , i.e. 1996 and newer model year vehicles. However, we believe that it is important for aftermarket service providers to have access to service information for older models as well, particularly since the aftermarket services a majority of older vehicles. To address this need, EPA is proposing that OEMs either continue to maintain their databases of information on FedWorld or transfer information from FedWorld onto their Web sites and continue to make information available for sale as it currently is in FedWorld for 1994 and 1995 model year vehicles. Alternatively, OEMs could elect to provide full text information on their Web site for vehicles for model years 1994 and 1995.

Currently, OEMs can choose to simultaneously provide information through a variety of media, such as print or CDs. However, EPA will not propose to require OEMs to maintain multi-media formats with this rule. Some manufacturers have expressed an interest in moving away from print and other media in the future and are concerned about having to maintain multiple media formats to meet the EPA requirements. We believe that it is reasonable for manufacturers who wish to do so to provide service information to the aftermarket via the Internet only and are not proposing to require manufacturers to make available information in multiple media formats.

However, we are also sensitive to the fact that a majority of repairs performed by the aftermarket are on older vehicles. Additionally, the useful lives of vehicles continue to increase. Thus, aftermarket service providers need access to service information for a wide range of model years. In Section II(A)(5), we discuss our proposal that OEMs maintain the required information in full-text available on their Web 2001model years to address this issue. We are requesting comment on this proposed length of time and are also requesting comment on the mechanisms that would be used by the aftermarket to obtain information that is no longer available in full-text format from OEM Web sites.

Because of the small U.S. sales volumes of some OEMs and the relatively small demand for the service information for these manufacturers, EPA believes it is appropriate to propose some flexibility for small volume manufacturers. It is proposed that OEMs with annual sales of less than five thousand vehicles be given 12 months after the effective date of the final rule to comply with the Web site requirements. We also propose that OEMs be exempt from the Internet requirements if they modify or manufacture less than one thousand vehicles annually, provided they present to the Administrator and obtain approval for an alternative method by which emission-related information can be obtained.

We believe that for information to be effective, it must be provided in a timely manner. For aftermarket technicians this means having access to needed information when the vehicle is brought in for service. In the past, OEMs have argued that the aftermarket service industry seldom perform emission-related service during the first two or three years of ownership (during the 24,000 or 36,000 mile warranty period), and therefore don't need to have immediate access to new model service information. However, we believe that aftermarket service providers have, at least, a limited need for service information for new vehicles. Dealership service may not always be convenient for a customer and there are customers who prefer aftermarket service even though a vehicle is still under warranty. Further, EPA believes that it does not place undue burden on the OEMs to provide information that is already being made available to the dealerships. To ensure that aftermarket technicians have the required information when needed, we propose that OEMs upload the required information on their Web site within three months of model introduction. After this three month period, we propose that the required information for each model be available and updated on the OEM Web site at the same time it is available by any means to their dealers.

EPA is also proposing that, beginning with the 1996 model year, manufacturers maintain the required information in full text for at least 15 years after model introduction. After this fifteen-year period, we propose that manufacturers can archive the required service information, but that it must be made available upon request, in a format of the manufacturer's choice (e.g., CD-ROM). We are proposing this requirement to account for the increasing useful life of vehicles and the fact that the aftermarket services a majority of older vehicles as discussed above. However, we also believe it is not necessary to over-burden OEM Web servers with service information that is still needed by the aftermarket, but not on as regular a basis as service information for newer models. Therefore, we believe it is appropriate to allow some flexibility for the distribution of service information for older vehicles. We request comment on the proposed length of time that manufacturers will be required to maintain full text information on their Web sites.

(a) Accessibility Requirements. We propose that each OEM Web site allow end-users to search its database of emission-related service information by various topics. These topics include, but are not limited to, model, model year, key words and phrases, diagnostic procedures, scheduled maintenance, and vehicle identification number (VIN). Additionally, we propose that manufacturers must provide information to allow for readily identifying the latest calibration. Further, while the VIN may be offered as one means of conducting a search, OEMs may not require the use of a VIN to initially access the data base. We further propose that the use of proprietary hardware, software, viewers, browsers and formats for accessing information be prohibited. In other words, manufacturers must develop their service information, and provide access to it, in such a way that it can be viewed using software such as Adobe Acrobat Reader that is readily available to Internet users. The manufacturer's Home Page must be accessible to anyone and contain instructions on how to access the information. Instructions should include, but not be limited to, minimum hardware and non-proprietary software needed by the end-user and associated costs for accessing and purchasing information.

Finally, we propose that OEMs not limit the modem speed by which aftermarket service providers can access OEM Web sites. In other words, OEMs may not limit access to modem speeds of 28k or 56k. As more and more computer users invest in digital subscriber lines (DSL) and cable modems to access the Internet, we are concerned that limiting access at these relatively slower speeds will impact the ability to access information from OEM Web sites in a timely manner.

Feedback from aftermarket service providers has indicated that there are three primary ways to generally categorize the aftermarket. First, many aftermarket shops service a wide variety of makes, models, and model years and are likely to rely on consolidated information such as Mitchell or All Data and do not generally need access to manufacturer-specific information on a daily basis. There are also aftermarket shops who specialize by categories such as European or Asian makes and models. There are also shops that further specialize by a specific manufacturer. Additionally, other parties such as Inspection/Maintenance lanes and do-it-yourself mechanics may be interested in accessing OEM Web sites. Because of the potential for a wide variety of OEM Web site usage, we are proposing that manufacturers develop a three-tiered approach for the access to and cost structure of their Web-based service information to provide maximum flexibility and access to aftermarket service providers. We propose that these options include, but not be limited to short-term, mid-term, and long-term access to the required information.

(1) Short-Term Access. We propose that manufacturers provide short term access for a set price. Under this scenario, manufacturers would set up a short time frame of approximately 24 hours whereby an aftermarket service provider would be able to access that OEM's Web site, search for the piece of information they need, and purchase, download and/or print it for a set fee. EPA believes that a reasonable fee for short term access can be as little as $0, but should be no greater than $20.

(2) Mid-term Access. We are proposing that manufacturers provide mid term access for a set price. Under this scenario, aftermarket service providers would be able to access to the OEM Web site for a 30 day time frame and purchase, download and/or print information under this option for a set fee. EPA believes that a reasonable fee for mid term access can be as little as $0, but no greater than $300.

(3) Long-term Access. We are proposing that manufacturers provide long term access for a set price. Under this scenario, aftermarket service providers would have access to the OEM Web site for a 365 day time frame, including the ability to purchase, download and/or print the information for a set fee. EPA believes that a reasonable fee for long term access can be as little as $0, but no greater than $2500.

We believe that establishing this tiered approach will serve as a reference point for manufacturers to develop and implement access to their Web sites that allow maximum flexibility for aftermarket service providers, and others who engage in the service and diagnosis of vehicles given the varying needs for access to manufacturer specific information. Additionally, EPA is significantly concerned that some OEMs will develop pricing structures for access to their sites in such a way that will prevent the purchase of information. Because of this concern and to help reduce the possibility that inappropriate pricing will occur, we believe that it is appropriate for EPA to establish specific pricing parameters that each manufacturer must follow when determining access fees for the three tiers described above. In determining the pricing parameters described above, we took into consideration feedback we have received thus far from some aftermarket service providers on what they believe the appropriate pricing parameters are for each of the three tiers. We also took into consideration other factors such as the current cost to the aftermarket for purchasing information from OEMs and the potential costs to OEMs for developing, implementing, and maintaining OEM Web sites. We have not received specific feedback from a majority of manufacturers on their intended pricing structures, mainly due to the fact that most manufacturers are still in the development stages of their sites and are not in a position to comment on the issue at this time. We understand that the cost of service information is a significant issue for both the OEMs and aftermarket service providers. To this extent, we request comment on this proposed tiered structure, the pricing parameters established by EPA for each of the tiers, and what other factors should be considered by EPA when evaluating whether manufacturers are making their information available via the Internet at a reasonable cost. For a more complete discussion of cost for all of the provisions contained in today's proposal, see Section II(F).

(b) Performance Requirements. The availability of service information also relies heavily on the ability of OEM Web sites to perform in such a way that service information can be delivered via the Internet to potentially thousands of users at any given time without significant delay. This is particularly important given the complexity of the service information being transmitted (e.g., wiring diagrams, electrical circuit diagrams, etc). The transmission of information via the Internet depends on a complex array of server, database, network, and other Web-based infrastructures that impact a Web site's ability to transmit at maximum efficiency. While manufacturers cannot be held accountable for issues such as end-user hardware and software or the type of connectivity utilized by the end-user, (e.g., standard modem, cable modem, or digital subscriber line), we believe it is necessary for manufacturers to measure the parameters that are within their control.

To this end, we are proposing that manufacturers submit to the Administrator on an annual basis a report that provides detailed, monthly measurements of the OEM's Web site. Each OEM report is to be submitted to the Administrator beginning one year after the required launch date of manufacturers' Web sites (i.e., one year and 6 months after the final rule is issued), or upon request by the Administrator. The parameters to be measured include, but are not limited to, the following:

(1) Total successful requests (measured in number of files including graphic interchange formats (GIFs) and joint photographic expert group (JPEG) images, i.e. electronic images such as wiring or other diagrams or pictures). This is defined as the total successful request counts of all the files which have been requested, including pages, graphics, etc.

(2) Average successful requests per day (measured in number of files). This is defined as reports of the average successful requests per day of all files which have been requested, including pages, graphics, etc.

(3) Total successful requests for pages [report on number of pages (including graphic interchange formats (GIFs) and joint photographic expert group (JPEG) images, i.e. electronic images such as wiring or other diagrams or pictures). This is defined as the total successful requests counts all the documents that were returned or where the document was requested but was not needed because it had not been recently modified and the user could use a cached copy.

(4) Total failed requests (measured in number of files). This is defined as the total failed request counts of all the files which were requested but failed requests because they could not be found or were read-protected. This includes pages, graphics, etc.

(5) Total redirected requests (measured in number of files). This is defined as redirected requests that indicate that the user was directed to a different file instead.

(6) Number of distinct files requested (measured in number of files). This is defined as the number of different file types that were requested (i.e., html, pdf, txt).

(7) Number of distinct hosts served (measured in number of files). This is defined as reports on the number of different computers where requests have come from.

(8) Corrupt logfile lines (measured in number of lines). This is defined as the lines in the logfile that were unreadable by the computer.

(9) Total data transferred (measured in bytes). This is defined as the total amount of data transferred from one place to another.

(10) Average data transferred per day (measured in bytes). This is defined as the average amount of data transferred per day from one place to another.

(11) Daily Summary (measured in number of files/pages by day of week). This is defined as the total number of requests in each day of the week, over the time period given at the very top of the report.

(12) Daily Report (measured in number of files/pages by day of month). This is defined as how many requests there were in each day of a specific month.

(13) Hourly Summary (measured in number of files/pages by hour of day). This is defined as the total number of requests for each hour of the day, over a specific time period.

(14) Request Report (measured in number of files/pages by individual URL). This is defined as which files were downloaded.

(15) Referrer Report (measured in number of files/pages by individual referring URL). This is defined as which pages linked to your files.

(16) Browser Summary (measured in number of files/pages by browser type, i.e., Netscape, Internet Explorer). This is defined as the versions of browsers by vendor.

(17) Browser Report (measured in number of files/pages by browser type, i.e., Mozilla 4.0). This is defined as a list of the detailed versions of browsers used.

This list will be periodically reviewed by the Administrator to address changes in technology and any potential compliance issues.

Manufacturers would have the option of conducting their own performance measurements or contracting with companies who specialize in Internet performance measurement (e.g. Keynote Systems, Inc.). However, we intend to work with OEMs to develop a standard format that all manufacturers would use to submit the required information to the Administrator and issue the required format via a manufacturer guidance letter.

We believe that manufacturers are likely to evaluate at least some aspects of the performance of their Web sites regardless of any requirement do so. As a result, we believe that this requirement places minimal burden on OEMs to meet the proposed requirements for performance evaluation. The proposed requirements to assess Web site performance serve to outline a consistent level of information to be provided to the Administrator to assist in evaluating compliance with Internet-based access to service information.

To facilitate the search for emission-related information on the Internet, we propose that OEMs allow direct simple hyperlinking to their Web sites from government Web sites and from all automotive-related Web sites, such as aftermarket service providers, educational institutions, and automotive associations. For example, an association such as the Service Technician's Society (STS) may want to have a section of their Web site that will allow an aftermarket technician to access a complete listing of all the OEM Service Information Web sites. Hyperlinking will allow individuals to connect directly to the OEM Web home page of their choice directly from the STS Web site.

The Administrator shall have access to each OEM Web site at no charge to the Agency. The Administrator shall have access to to the site, reports, records and other information as provided by sections 114 and 208 of the Clean Air Act and other provisions of law.

Currently, many aftermarket service and repair facilities depend on consolidated service information purchased from third party providers such and Mitchell and All-Data. These companies primarily consolidate and repackage OEM service manuals and technical service bulletins (TSBs) for purchase by the aftermarket. Currently, OEMs often provide their service manuals and TSBs to these third parties in hardcopy. Given the trend in the electronic exchange of information, we believe that it is reasonable for OEMs to provide information electronically to third party providers. While we are proposing to require that OEMs provide full-text access to their information via the Internet for aftermarket service providers and that this is the same information needed by third party information intermediaries, we do not believe that it is a practical option for these third party information providers to download this information directly from the OEM Web sites. There are numerous manufacturers with tens of thousands of pages of service information. For third parties to access service information directly from the each OEM Web site could result in unreasonably long Internet connectivity times for third party service providers. More importantly, we are concerned that third party access directly from the OEM Web sites could impact the overall performance of those sites given the large volumes of information that would be accessed by third party information providers. We believe that this could impede the ability of aftermarket service providers to access the relatively smaller bits of information they need to diagnose and repair vehicles. Finally, manufacturers will already have developed this information in electronic format for uploading onto their individual Web sites and we are not proposing to require manufacturers to develop special formats to meet this proposed requirement. Because of these factors, we believe it does not place undue burden on OEMs to provide the information required by this regulation in electronic formats directly to third party service information providers, rather than utilizing individual OEM Web sites to access the required information. To this end, we propose that OEMs provide information directly to third party information intermediaries with all emission-related information in electronic format in English that utilizes nonproprietary software. In the alternate, OEMs may provide access to third party information intermediaries to a Web site other than the Web site provided for aftermarket service providers to meet this proposed provision if they choose. OEMs are not responsible for the accuracy of the information distributed by third parties. However, it is proposed that where OEMs charge information intermediaries for information, whether through licensing agreements or other arrangements, OEMs be responsible for inaccuracies contained in the information they provide to third party consolidators. We propose that manufacturers begin providing their information electronically directly to third party service providers with whom they license this material beginning with the 2002 model year.

We propose this requirement because, in spite of recent trends of moving toward electronic access to information, we believe that there is likely to be a market for third party service information providers, particularly for aftermarket service providers who service numerous makes, models, and model years. This proposed requirement does not apply to the 1996 through 2001 model years because service information for these model years has already been supplied by manufacturers to third party service providers.

In our 1995 Final Rule on Service Information, manufacturers were required to make available to the aftermarket “any and all” information needed to make use of the OBD system, including any instructions, for emission-related repairs. All training materials (including notices of OEM sponsored classroom training) were also to be made available for purchase from FedWorld at the same time this information was made available to dealerships. OEMs supported a provision that would require them to make available the training material they provided to their dealerships, but indicated they could not offer classroom training to the aftermarket because of limited classroom space and other resource limitations. Likewise, the aftermarket indicated that sending their technicians to offsite training would also be very resource intensive in terms of training cost, loss of technician work time, and potential loss of business. EPA agreed that it would be overly burdensome to require manufacturers to open their classrooms and instead finalized provisions that required the availability of training information through the medium of their choice (e.g. printed manuals, videotapes, CDs, etc.) and made available for purchase from FedWorld.

Since that time, EPA has been in discussions with the aftermarket indicate that complex OBD technology requires an even greater access to OEM-specific training than is available to the aftermarket today. A recent survey conducted by the Service Technicians Society, (EPA Air-2000-49, item II-F-03) indicates that one of the greatest concerns of the aftermarket remains the availability of OEM-specific training and repair information. Aftermarket service providers generally believe that OEM-specific training provides a more comprehensive level of critical information that is necessary to perform some of the most complex emission-related repairs as compared to some of the generic training that is currently available to the aftermarket.

Additionally, we have become aware that several of the larger manufacturers are revising the mechanisms used to deliver training to their franchised dealerships. In particular, some manufacturers are moving toward consolidating their training facilities and beginning to offer training courses to the dealerships via satellite and the World Wide Web. Computer and satellite technologies are also becoming more accessible and affordable for aftermarket service providers and the general public. We believe that these trends, which are likely to continue, provide an opportunity for aftermarket technicians to have access to OEM-specific training that may be delivered via the Internet and satellite without placing burden on OEMs to provide training directly to the aftermarket. In other words, we believe that technology is evolving in such a way that will allow aftermarket shops to receive OEM training directly from Internet sources or via satellite downlinks right on their own personal computers and/or from satellite transmissions.

In today's action, we propose to expand the training information availability requirements to include any training courses offered by OEMs to their franchised dealerships via satellite, Internet, Extranet, or other means that contain, in whole or part, emission-related information. To achieve this, we are proposing two provisions: (1) availability of OEM training material for purchase from OEM Web sites, and (2) availability of OEM Internet and satellite training materials for third party re-packaging and re-distribution.

We are proposing that OEMs make available for purchase on their Web sites the following items: training manuals, training videos, and interactive, multimedia CD's or similar training tools available to franchised dealerships. Additionally, we are proposing that OEMs who transmit emissions-related training via satellite or the Internet must tape these transmissions and make them available for purchase on their Web sites within 30 days after the first transmission to franchised dealerships. It is proposed that all of the items included in this provision be shipped within 24 hours of the order being placed and are to be made available at a reasonable price as described in Section II(F). We also request comment on a provision that would require OEMs to tape the emissions-related class room training provided to dealerships and making those tapes available for sale on OEM Web sites.

We propose that these requirements apply for 1996 and later model year vehicles starting 6 months following the effective date of the Final Rule. For subsequent model years, it is proposed that the required information be made available for purchase within three months of model introduction, and then be made available at the same time it is made available to franchised dealerships.

OEMs have expressed that the current state of Internet and satellite technologies and aftermarket demand for direct access via satellite or the Internet do not support a need for providing direct access of these training courses to the aftermarket in these formats. We recognize that there is some uncertainty with the technology as it exists today, but we believe, contrary to arguments made by OEMs, that computer hardware and software technology is evolving in such a way that advanced technologies such as cable modems, digital subscriber lines (DSL) and streaming video will become increasingly prevalent and affordable within the next 2-5 years. Additionally, the equipment needed to access satellite transmissions is also becoming increasingly affordable. We believe it is realistic that access to training for the aftermarket and other information directly on the Internet or via satellite is an attainable goal and will go a long way to meeting some of the concerns of the aftermarket on their ability to acquire training, OEM or otherwise. OEMs have also argued that it is unreasonable that OEMs be burdened with providing training directly to aftermarket service providers. While we recognize that advances in Internet and satellite technology will reduce some of the administrative issues that OEMs would face in delivering training to the aftermarket, it may still be a burden for OEMs themselves to deliver automotive training courses (e.g., Chrysler's OBDII Student Workbook and General Motors' OBDII manuals) to the aftermarket. Therefore, we are also proposing that OEMs make available to entities who develop or deliver training all emissions-related training courses transmitted via satellite or Internet training courses offered to franchised dealerships. This type of training information can then be repackaged and made available for transmission to the aftermarket by third party training providers at a later date or as market forces demand. OEMs may not charge unreasonable up-front fees to third party training providers for this access, but they may require a royalty, percentage or other arranged fee based on a per-use or enrollment/subscription basis.

While we are not requiring third party training entities to deliver training to the aftermarket in any format, there is a large market of third party training providers who currently provide both generic and some OEM-specific training to the automotive aftermarket in a variety of formats including training manuals, CDs and class room training. We are also specifically aware of several training providers who have developed, or in are in the process of developing, Web-based training programs for aftermarket service providers. To this end, we believe that requiring direct access to OEM Internet and satellite transmissions for third party training providers is simply expanding upon the training delivery mechanisms that can be utilized to deliver training to the aftermarket. To the extent that OEMs expand their usage of the Internet and/or satellite technology to deliver OEM-specific training to their franchised dealerships, we believe this proposed provision will increase the availability of OEM-specific training to aftermarket service providers.

EPA proposes that this requirement be effective for 1996 and later model year vehicles starting 6 months following the effective date of the Final Rule.

Under the existing service information regulations, if their franchised dealerships have the ability to reprogram the electronic control unit (ECU), OEMs are required to provide reprogramming capability to the aftermarket. The existing regulations allow OEMs to meet this requirement by providing information to equipment and tool companies that allows them to incorporate reprogramming into their tools or by making available to the aftermarket the manufacturer-specific reprogramming system or tool that performs reprogramming events. All but one manufacturer has satisfied this requirement through the latter option.

As a result, aftermarket shops that want to provide reprogramming services to their customers and that service multiple makes of vehicles have been faced with costly and time consuming barriers to performing reprogramming services for their customers. Because manufacturers have opted to meet the current requirement by making their OEM-specific reprogramming tools available for sale, an aftermarket service provider who wishes to perform reprogramming events has to purchase a different reprogramming tool or system for each vehicle manufacturer. This has imposed significant costs on aftermarket shops. Several manufacturers incorporate reprogramming capabilities into their manufacturer specific diagnostic scan tool. An aftermarket technician who otherwise uses a generic diagnostic scan tool, which ranges in cost from approximately $300 to $3000, to perform most diagnoses and repair would need to purchase multiple manufacturer-specific diagnostic scan tools or systems, which generally range in cost from $1600 to several thousand dollars each, not including the cost of purchasing the re-calibration or re-programming event itself or the software and software updates needed to use the diagnostic scan tool. For example, an aftermarket shop who wanted to perform reprogramming events just for Ford, GM and Chrysler would have to purchase 3 separate OEM-specific diagnostic tools that would cost a total of approximately $6000 to $10,000. Additionally, EPA is aware of at least three larger manufacturers who intend to move toward reprogrammable OBD computers within the next few model years. This trend underscores the need to work with manufacturers and aftermarket scan tool companies to develop cost effective reprogramming alternatives for aftermarket repair facilities. As a point of comparison, we estimate that diagnostic scan tools capable of reprogramming multiple makes and models will cost approximately $1500 to $2500.

Aftermarket shops who want to perform this advanced diagnostic service for their customers short of investing in multiple manufacturer-specific diagnostic scan tools must then rely on a dealership to perform this service. This option can impose significant burden on aftermarket service providers and consumers in several ways. First, the service provider must purchase the service from the dealership with dealer mark-up, which could result in potentially higher cost for the consumer who chooses to have service performed by aftermarket shops. Second, having to bring a vehicle in need of a reprogramming event to a dealership can add significant additional time needed to complete an emissions-related repair. There is no guarantee that the dealership will be willing to perform this service for the aftermarket in a timely fashion and we have received complaints from aftermarket service providers indicating that they have had to wait days, or even weeks, to have reprogramming service provided by a dealership. We believe that these factors place the aftermarket in a non-competitive position in the marketplace for performing reprogramming services, which ultimately impacts a consumer's freedom of choice for who services their vehicle.

At the time the 1995 regulations were being developed, OEMs expressed concern that making reprogramming capabilities widely available to the aftermarket would result in a significant increase in tampering or misuse of calibrations and re-calibrations. Though neither EPA nor the OEMs could substantiate how much of a problem this would be, we believed a cautious approach regarding misuse of this new technology was appropriate at that time. We therefore finalized a provision that allowed manufacturers the options described above.

Since that time, neither EPA nor the manufacturers have been made aware of significant instances of the misuse of the information needed to develop aftermarket scan tools with reprogramming capabilities, or misuse of the actual calibrations or re-calibrations themselves. We are also not aware of any confidentiality issues encountered by the one manufacturer who makes their information available to the aftermarket scan tool company that develops their aftermarket reprogramming tool. Further, we are not aware of any confidentiality issues regarding the information that manufacturers do provide to aftermarket scan tool companies to develop generic aftermarket diagnostic tools. We are aware that individual manufacturers currently have confidentiality agreements in place with individual aftermarket scan tool companies to protect any information provided to scan tool companies by OEMs and that information can be labeled as confidential business information by the OEM. Under these confidentiality agreements, OEMs have recourse to revoke or pursue other legal remedies for violations of these agreements. We are not aware of any such instances and believe that requirements proposed today will not impact the ability of OEMs to retain control of any information they label as confidential. Additionally, none of the information required by aftermarket scan tool companies to incorporate reprogramming capabilities into aftermarket scan tools reveals calibration or re-calibration specifications. Finally, technology known as pass-through reprogramming has evolved in such a way that allow for increased protection of calibrations and re-calibrations that the OEMs make available for the completion of reprogramming events. The manufacturer calibration software remains resident and accessible through the manufacturers Web site as opposed to the current CD-ROM distribution to the aftermarket. This allows the OEM more control of distribution and better tracking of distribution. In addition, the pass-through device does not have hardware interface or additional ports for software re-direction similar to an OEM or aftermarket scan tool which are currently used to transfer data between the PC and the vehicle ECU. An aftermarket diagnostic scan tool with pass-through reprogramming capability that can reprogram multiple manufacturers is expected to cost approximately $1500-$2500.

Taking into consideration all of these factors, we believe that it is necessary to propose changes for access to reprogramming capabilities in this proposed rulemaking. In order to make reprogramming capabilities available to the aftermarket for the broadest range of model years possible, we are proposing a two-tiered approach. First, for MY1994 through MY2002 OBD equipped vehicles with reprogramming capability, we are proposing that manufacturers make available all emissions-related reprogramming information to aftermarket tool and equipment companies in a similar manner to the information that manufacturers currently make available for enhanced diagnostics. This would include the following information necessary for programming the Electronic Control Unit (ECU):

(a) the physical hardware requirements including communication network specifications for reprogramming events or tools (e.g., system voltage requirements, cable terminals/pins, connections such as RS232 or USB, wires, etc.),

(b) ECU data communication including message format and data encoding (e.g., serial data protocols, transmission speed or baud rate, bit timing requirements, etc.),

(c) information on the application physical interface (API) or layers (descriptions for procedures such as connection, initialization, performing and verifying programming/download, and termination),

(d) vehicle application information or any other related service information (which interfaces or combination of interfaces are used on each vehicle system for each make/model year) such as special pins and voltages for reprogramming events or additional vehicle connectors that require enablement and specifications for the enablement. This is not a new information requirement for the vehicle manufacturers. This is the same information that is currently used to produce the same diagnostic functionality in dealership scan tool equipment. See EPA Air Docket #A-2000-49, item II-F-06 for complete New Product Information Guidelines (NPIG) developed by the Equipment and Tool Institute.

We believe that the information being proposed does not require manufacturers to make any hardware or software changes. Rather, manufacturers must only make the information available to aftermarket tool and equipment companies. We are proposing that this information be made available within 6 months of publication of the Final Rule. After that, this information shall be released when it is first provided to franchised dealerships.

Second, for MY2003 and later OBD equipped vehicles with reprogramming capabilities, we are proposing that manufacturers comply with SAE Standardized Practice J2534 for “pass-through reprogramming.” Pass-through reprogramming is a process that allows the programming or reprogramming of a vehicle's computer without revealing proprietary information to the end user. EPA has seen multiple demonstrations of this technology and is aware that several large manufacturers use this process for dealership reprogramming. In light of the success of pass-through reprogramming and the cost burden associated with the purchase of multiple tools under the existing regulations, we believe that the aftermarket should not be required to use OEM-specific tools for emission-related reprogramming. Additionally, SAE J2534 was developed with extensive cooperation between the OEMs and aftermarket tool and equipment companies. We believe that this standardized practice addresses a vast majority of the technological issues raised by both parties and will ultimately provide a cost-effective means for aftermarket reprogramming while still protecting the proprietary information of the OEMs. This SAE Standard Practice is proposed to be Incorporated by Reference in Section II(G). SAE J2534 is currently undergoing final review and approval. A draft of J2534 is available for inspection in EPA Air Docket A-2000-49. While it has not been finalized in time for this proposal, we believe it will finalized in time for the final rule. Upon final approval of this standard, EPA will issue a notice of document availability at which time the finalized version will be placed in EPA Air Docket A-2000-49 for inspection. The final version of J2534 will also be available directly from the Society of Automotive Engineers (SAE).

We are aware that some manufacturers use manufacturer specific diagnostic link connectors for reprogramming that are placed in locations other than those which are currently required by SAE Standard Practice J1962. To standardize reprogramming capability for the aftermarket, we also propose that manufacturers must comply with SAE Standard Practice J1962, “Diagnostic Link Connector” for the purposes of pass-through reprogramming, beginning with the 2003 model year. J1962 has already been approved for Incorporation by Reference in EPA's On-Board Diagnostic regulations (58 FR 9468). EPA requests comment on the lead-time necessary for manufacturers to comply with this proposed requirement.

We also propose that manufacturers make available the necessary OEM software applications needed to initiate pass-through reprogramming events to the aftermarket at a reasonable cost. Initiation software can be described as the transport method used to transmit the OEM calibrations from storage to the pass-through device. In other words, the initiation software serves as a mechanism to transmit calibrations from where they are stored (Internet, BBS, or CD-ROM) to the ECU.

Manufacturers must also make available the necessary calibrations or reprogramming events via CD-ROM, diskette, or the Internet. We also propose that this be stand-alone software that can be run on a standard PC and must use a WIN-32 operating system. In other words, EPA expects that manufacturers will not simply bundle the pass-through reprogramming software with other OEM software, re-package this OEM-specific software as an aftermarket version and charge a price that is not reasonable for the aftermarket.

Finally, we propose that manufacturers continue to make reprogramming services available to aftermarket service providers in a timely manner and a reasonable cost via their dealerships. We propose this provision to ensure wide-spread availability of reprogramming capability for aftermarket service providers.

The service information regulation published August 9, 1995 (60 FR 40474) required OEMs to make certain generic service information available to tool manufacturers. Enhanced service information was also required to be made available. However, OEMs had the option of either making their OEM enhanced diagnostic tools available for sale to independent technicians at a reasonable cost or making available to aftermarket tool and equipment companies the information needed to develop and manufacture enhanced aftermarket diagnostic tools. This requirement did not achieve the CAA directive to make available all information needed to make use of the emission control diagnostic system to any person engaged in repairing or servicing of motor vehicles or motor vehicle engines for several reasons.

First, because many manufacturers opted not to provide enhanced information to the equipment and tool companies, the aftermarket tools that are manufactured and sold often do not provide the comprehensive information needed by aftermarket technicians to perform more advanced emissions-related repairs. We believe that aftermarket shops who service numerous makes and models are placed at a competitive disadvantage regarding the level of service they can provide for their customers. Second, aftermarket service providers who wish to perform more advanced diagnoses and repairs must purchase an enhanced diagnostic tool for the majority of OEMs in order to be able to perform advanced OBD diagnoses. OEM-specific diagnostic scan tools range in cost from $1600 to approximately $5000. We are also aware of at least one OEM who makes their OEM-specific diagnostic tool available for sale for approximately $20,000. With the average cost of approximately $3000, aftermarket shops who want to be reasonably equipped to provide advanced diagnostic and repair services for the 6 or 7 largest manufacturers would have to invest tens of thousands of dollars in diagnostic equipment on top of the several thousands of dollars per year that aftermarket shops must invest each year for service information. On the other hand, OEM dealerships generally serve just one manufacturer and can make relatively smaller investments in tools and equipment. We believe that this is cost prohibitive and creates a substantial competitive disadvantage for independent shops who generally run much smaller businesses than OEM dealerships. We also believe that the large investments that need to be made in OEM-specific tools prevents independent shops from performing services that dealers are able to perform, placing them at a competitive disadvantage in the level of services they can provide, ultimately making it difficult for some aftermarket service providers to even stay in business.

Ultimately, we believe that the option most manufacturers have chosen under the existing requirements results in customers being denied freedom to choose where to have their vehicles serviced. To eliminate these inequities and to ensure that all aftermarket service providers have access to the diagnostic tools essential for the diagnosis and repair of OBD systems, we propose two requirements. First, we propose that manufacturers provide generic and enhanced information as described below to aftermarket tool and equipment companies to develop aftermarket diagnostic scan tools. Second, we propose that OEMs make available for sale their manufacturer-specific diagnostic scan tools at a fair and reasonable price.

(1) Description of Enhanced Diagnostic Information. We propose to require an increased level of enhanced information to be made available to aftermarket tool and equipment companies to develop more functional aftermarket diagnostic scan tools.

We propose that within 30 days of publication of the final rule OEMs make available to companies who develop aftermarket scan tools all generic and enhanced service information for MY 1996 and later needed to manufacture diagnostic tools that can be used by aftermarket technicians to diagnose, service and repair emission-related components and systems. Enhanced information is defined as information that is necessary to implement an on- board diagnostic service interface. In general it encompasses information that describes each of the various diagnostic communication interfaces (communication protocol, message, timing and any information which identifies which interface is applicable to each particular my/model/engine combination). This information must cover both generic and enhanced information. Enhanced information includes, but is not limited to:

(a) All serial data stream information

(b) Bi-directional controls (e.g., operation of actuators, initiation of self-checks, etc.) Including any safety precautions necessary prior to invoking the controls.

(c) descriptions of non-proprietary logic and performance limits and specifications used in the OEM specific tools to perform diagnostic routines or sub-routines (E.g., injector or cylinder balance tests, etc.)

(d) the physical hardware requirements for reprogramming events or tools (e.g. system voltage requirements, cable terminals/pins, connections such as RS232 or USB, wires, etc.);

(e) Electronic Control Unit (ECU) data communication (e.g. serial data protocols, transmission speed or baud rate, bit timing requirements, etc);

(f) information on the application physical interface (API) or layers (i.e., processing algorithms or software design descriptions for procedures such as connection, initialization, performing and verifying programming/download, and termination);

(g) vehicle application information or any other related service information such as special pins and voltages for reprogramming events or additional vehicle connectors that require enablement and specifications for the enablement;

In addition, we propose that manufacturers provide information that describes which interfaces or combination of interfaces, from each of the categories in the sections above are used on each vehicle. This may be organized by application, system or a combination of both provided the information identifies which interfaces are used on each vehicle's system/model/model year. Manufacturers may use the New Product Information Guideline (NPIG) created by the Equipment and Tool Institute (ETI) to meet this requirement or provide a substitute matrix approved by the Administrator. The NPIG is a standard format already used by a majority of manufacturers when submitting information to ETI. An example of the NPIG is available in EPA Air Docket A-2000-49, item II-F-06. OEMs are not required to release the underlying computer codes that make up calibrations and recalibrations.

(2) Distribution of Enhanced Diagnostic Information. Currently, all but one of the manufacturers who make available scan tool information use the Equipment and Tool Institute (ETI) as the primary distribution mechanism for scan tool information. In particular, ETI maintains the “TEK-NET Library”, which is administered through a secure Web site that ETI has developed to gather and re-distribute diagnostic scan tool information to its member companies as agreed through licensing and other contractual arrangements. This arrangement has been developed independently between the OEMs, ETI, and ETI member companies (e.g. Snap-On, SPX, etc) and has been in use for several years. However, since the 1995 regulations were finalized, we have become aware of several instances where manufacturers have submitted the information required by the regulations to ETI and/or their member companies in either unmanageable formats (e.g. reams of paper) or in languages other than English. These inconsistencies can affect the ability of aftermarket scan tool companies to provide timely updates and/or introduce new products to aftermarket service providers. Because aftermarket service providers rely heavily on the diagnostic scan tools they purchase from ETI member companies to diagnose and repair emissions-related problems, we believe it is imperative that the required information be provided to ETI and/or their member companies in a timely and manageable manner. Therefore, we propose that the required information be provided to aftermarket tool and equipment companies in English via the Internet to a secure Web site as arranged through necessary licensing, contractual, and confidentiality agreements between the OEMs, ETI, and/or their member companies. We propose that this information be uploaded in electronic format using common document formats such as MicroSoft Excel, Adobe Acrobat, MicroSoft Word, etc as preferred by the manufacturer. At this time, we believe that ETI's TEK-NET library meets the intent of this proposed requirement and we encourage manufacturers to continue the on-going, cooperative relationship. We also propose that the Administrator have free unrestricted access to this Web site in order to assist EPA in the verification that all required information is being made available as required by these regulations.

Finally, ETI must provide information to aftermarket scan tool companies who are not members of ETI involved in the manufacture and sale of scan tool type devices for use on vehicles sold in the United States if the non-members have arranged for the appropriate licensing, contractual and confidentiality agreements with the OEMs and ETI.

(3) Availability of Manufacturer-Specific Diagnostic Scan Tools.

The current regulations give manufacturers the option of either making information available to aftermarket diagnostic tool companies so that they can develop generic aftermarket diagnostic scan tools or making available for sale their OEM-specific diagnostic scan tools. As discussed above, a majority of manufacturers already make their OEM-specific tools available for sale rather than making available information available for the development of generic aftermarket tools. While we are proposing to require that all OEMs provide an increased level of information for the development of more sophisticated generic aftermarket scan tools, we believe there will continue to be a demand for OEM-specific tools as well. For example, we are aware that many aftermarket shops specialize in European or Asian models or exclusively in one manufacturer such as BMW or Mercedes-Benz. These aftermarket shops are likely to make the investment in manufacturer-specific diagnostic tools even though they are priced higher than generic diagnostic tools in order to provide more specialized services for their customers. In order to ensure that OEM-specific tools continue to be available to aftermarket service providers, we propose that vehicle manufacturers make available for sale their own manufacturer-specific diagnostic tools. OEMs may elect to develop different versions of one or more of their diagnostic tools, but emission-related service information must be made available to the aftermarket. In addition to making their diagnostic tools available for sale, OEMs must provide support for those tools or have a third party do so. If a third party does so, the OEM is responsible for availability and accuracy. We propose that OEMs make their OEM-specific tools available for sale to the aftermarket at a reasonable cost. With a few exceptions, we believe that most manufacturers who currently make their OEM-specific tools available meet the intent of reasonable cost. We expect that the cost of OEM-specific tools should not change significantly as a result of this proposed provision.

(4) Decontenting of OEM-specific Tools. Some OEM-specific diagnostic tools contain information that is not emission-related. If OEMs decide to delete the non-emission related information (“decontent”) from the tool before offering it for sale to the aftermarket, we expect that the cost of the tool will be adjusted to reflect its decreased value. It is proposed that the emission-related information in the tool be identical to that contained in the tool offered to the dealers. In such cases, it is proposed that OEMs obtain approval from the Administrator following demonstration that the emission-related functions of the dealer tool and the decontented tool are the same.

(5) Availability of Special Tools. Some manufacturers currently require the use of a special tool to extinguish the MIL. It is our understanding that these tools are not always available to the aftermarket. To address this issue, EPA is proposing that OEMs be precluded from using such systems beginning with model year 2002. For model years 1994-2001, today's rulemaking proposes that OEMs who require such tools to extinguish the MIL make the necessary information available to equipment and tool companies to design a comparable generic tool. It is proposed that this information be made available no later than 3 months following the effective date of the Final Rule.

As discussed in the 1995 Service Information regulations, we believe that cost is an integral factor influencing the availability of service information. At that time, we were concerned that manufacturers could have priced their service information and OEM-specific diagnostic scan tools in such a way that would preclude their purchase and subsequent use, therefore rendering the information and/or tools unavailable. While we believe that a majority of manufacturers have made a good faith attempt to meet the “reasonable cost” provisions finalized in 1995, we believe it is necessary to revisit the issue of cost of service information and diagnostic scan tools and the Agency's position on this issue. Additionally, full-text access to information via the Internet introduces additional parameters that must be evaluated in order to ensure that the information required by these regulations can be considered available. As a result, we are proposing revisions to the regulations governing “reasonable cost” to reflect the proposed move from FedWorld to the World Wide Web.

The 1995 regulations establish parameters for OEMs on what factors should be considered by manufacturers when developing the pricing structures for the required information. We also received substantive comments from OEMs and aftermarket service providers on what those factors should be and incorporated many of them into the 1995 final rule. As a result, we required manufacturers to make emission-related service information available at a reasonable cost. Reasonable cost was described as a fair and reasonable price taking into consideration factors such as the cost to the manufacturer of preparing and/or providing the information, the type of information, the format in which it is provided, the price charged by other manufacturers for similar information, the differences that exist among manufacturers (e.g. the size of the manufacturer), the quantity of material contained in a publication, the detail of the information, the cost of the information prior to finalization of the 1995 rule, volume discounts and inflation. One of the factors that was finalized as a reference point for evaluating the cost of service information allows OEMs to recover the costs incurred for preparing and/or providing the information. Since manufacturers will be moving to the World Wide Web as a primary means of distribution for their information, we propose that one of the factors to be considered in determining whether the price charged for the access to the information on the World Wide Web is reasonable is the cost incurred by OEMs for developing their Web sites. Section II(6)(a) also discusses some of the feedback we have received from the aftermarket on what some aftermarket service providers consider as reasonable costs for access to information on OEM Web sites. We solicit comment on the general pricing structure as it is discussed in this section.

While we have discussed some specific aspects of the cost of service information for Web access to the required information, we expect that all of the information and diagnostic scan tools covered by this proposal to be made available at a reasonable cost in such a manner that ensures its availability. Manufacturers who develop pricing structures for the required information in a manner that renders it unavailable to the aftermarket will be considered in violation of the regulations and subject to fines of $25,000 per day per violation.

Also being proposed is the adoption of SAE Recommended Practice J1930, “Electrical/Electronic Systems Diagnostic Terms, Definitions, Abbreviations, and Acronyms.” This standardized procedure was proposed in the September 1991 (56 FR 48272) proposal, but was not finalized due to a variety of issues on the standardization of the electronic format of service information. It is proposed that manufacturers comply with J1930 beginning with the 2003 model year. EPA believes that most manufacturers have already adopted J1930 in the development of their service information. However, the Agency believes that it is important for all manufacturers to adopt J1930 definitions and terminology given the increasing complexity and volume of service information. Therefore, the Agency is proposing to require that all manufacturers comply with J1930 beginning with the 2003 model year.

Today's action also proposes the incorporation of SAE Recommended Practice J2284, “High Speed CAN (HSC) for Vehicle Applications at 500 KBPS.” This recommended practice was finalized in February of 1999 and defines a level of standardization in the implementation of a 500 KBPS vehicle communication network using the Controller Area Network (CAN) protocol. It is proposed that manufacturers comply with J2284 beginning with the 2003 model year. EPA also believes that most manufacturers are moving toward the adoption of J2284 with model year 2003 and that there will be little objection from the manufacturers on this requirement.

As discussed above in section II(D), we are also proposing to Incorporate by Reference SAE Recommended Practice J2534 and SAE Recommended Practice J1962. All of these items with the exception of J2534 are available for inspection in EPA Air Docket A-2000-49. SAE J2534 will be made available for inspection in the docket once it has been finalized. A draft of SAE J2534 has been placed in EPA Air Docket A-2000-49 for inspection. All SAE recommended practices can be obtained from the Society of Automotive Engineers, Inc., 400 Commonwealth Drive, Warrendale, PA 15096-0001, or at www.sae.org.

Section 202(m)(5) of the Clean Air Act applies service information availability requirements to all motor vehicles equipped with emission-control diagnostic systems, including heavy-duty vehicles and engines. We are proposing that all of the requirements proposed today apply to manufacturers of all heavy-duty vehicles and engines weighing 14,000 pounds gross vehicle weight (GVW) and lower beginning in model year 2005, which is the first year that such engines and vehicles are subject to OBD requirements. Today's proposal applies only to engines and vehicles subject to the OBD requirements during the phase-in of those requirements. EPA is proposing the same requirements for these engines and vehicles as it is proposing for light-duty vehicles and trucks. However, we recognize that certain aspects of these proposed regulations may need to be reviewed to ensure that they accurately reflect how the aftermarket service industry can be best assured of receiving the information necessary to make use of the OBD system and to make emissions-related diagnosis and repairs. We request comment on the appropriateness of the proposed requirements for this sector.

The Agency is not proposing any requirements that specify the format that manufacturers must use to organize or display the required information on their Web sites. In particular, we are not requiring manufacturers to comply with SAE Standardized Practice J2008 “Recommended Organization of Service Information”. In the August 1995 final rule, the Agency could not finalize the incorporation of J2008 because the standard had not yet been finalized. At that time, the Agency was optimistic that J2008 would be finalized in time to allow manufacturers to adopt it voluntarily or give EPA the option of incorporating it into the service information requirements. However, J2008 was not finalized until October of 1998. By that time, several large OEMs were well into the development of their Web sites and some manufacturers were already conducting pilots within their dealerships. While the Agency is supportive of providing information in formats that are user-friendly and readily accessible to the end-user, we are reluctant to implement requirements that would require manufacturers to redesign existing service information that has already been developed. The Agency has put forth minimum performance requirements that we believe will allow us to monitor manufacturer Web site performance while allowing manufacturers maximum flexibility and creativity in the development of their service information for access on the Internet. Finally, we believe that the learning curve for aftermarket service industry will level off relatively quickly given the ever increasing dependence on computers and the Internet to conduct business. EPA requests comment on the need for J2008 or another format for service information.

This proposed rulemaking alters existing provisions by revising the current service information regulations. The provisions proposed in today's rulemaking require OEMs to make available information and tools that have already been developed for use by their dealerships. Therefore, EPA believes that the changes proposed today put little or no new additional requirements on OEMs beyond administrative costs for providing access to existing information and tools, which are recoverable to the OEM as discussed above in IIF.

EPA welcomes comments on all aspects of this proposed rulemaking. Commenters are especially encouraged to give suggestions for changing any aspects of the proposal. All comments, with the exception of proprietary information should be addressed to the EPA Air Docket Section, Docket No. A-2000-49 (see ADDRESSES ).

Commenters who wish to submit proprietary information for consideration should clearly separate such information from other comments by 1) labeling proprietary information “Confidential Business Information” and 2) sending proprietary information directly to the contact person listed (see FURTHER INFORMATION CONTACT ) and not to the public docket. This will help insure that proprietary information is not inadvertently placed in the docket. If a commenter wants EPA to use a submission labeled as confidential business information as part of the basis for the final rule, then a nonconfidential version of the document, which summarizes the key data or information, should be sent to the docket.

Information covered by a claim of confidentiality will be disclosed by EPA only to the extent allowed and by the procedures set forth in 40 CFR Part 2. If no claim of confidentiality accompanies the submission when EPA receives it, the submission may be made available to the public without notifying the commenters.

Anyone wishing to present testimony about this proposal at the public hearing (see DATES ) should, if possible, notify the contact person (see For Further Information Contact ) at least seven days prior to the day of the hearing. The contact person should be given an estimate of the time required for the presentation of testimony and notification of any need for audio/visual equipment. Testimony will be scheduled on a first come, first serve basis. A sign-up sheet will be available at the registration table the morning of the hearing for scheduling those who have not notified the contact earlier. This testimony will be scheduled on a first come, first serve basis to follow the previously scheduled testimony.

EPA requests that approximately 50 copies of the statement or material to be presented be brought to the hearing for distribution to the audience. In addition, EPA would find it helpful to receive an advanced copy of any statement or material to be presented at the hearing at least one week before the scheduled hearing date. This is to give EPA staff adequate time to review such material before the hearing. Such advanced copies should be submitted to the contact person listed.

The official records of the hearing will be kept open for 30 days following the hearing to allow submission of rebuttal and supplementary testimony. All such submittals should be directed to the Air Docket Section, Docket No. A-2000-49 (see ADDRESSES ). The hearing will be conducted informally, and technical rules of evidence will not apply. A written transcript of the hearing will be placed in the above docket for review. Anyone desiring to purchase a copy of the transcript should make individual arrangements with the court reporter recording the proceedings.

Under Executive Order 12866 (58 FR 51735 October 4, 1993), EPA must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of this Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, Local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

EPA has determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

The Regulatory Flexibility Act, 5 U.S.C. 601-612, generally requires federal agencies to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include businesses, small not-for-profit enterprises, and small governmental jurisdictions. This proposed rule would not have a significant impact on a substantial number of small entities because the regulated entities impacted by this rulemaking would not be considered small entities.

Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.

The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An Information Collection Request (ICR) document has been prepared by EPA (ICR No. 0783.41) and a copy may be obtained from Sandy Farmer by mail at Collection Strategies Division; U.S. Environmental Protection Agency (2822); 1200 Pennsylvania Ave., NW., Washington, DC 20460, by email at farmer.sandy@epamail.epa.gov, or by calling (202) 260-2740. A copy may also be downloaded off the internet at http://www.epa.gov/icr.

EPA is proposing that manufacturers subject to the proposed requirements for Web based delivery of service information be required to submit to the Administrator on an annual basis an electronic report that contains measurements of the various performance parameters as outlined in Section II(A)(6) of this preamble. The information proposed to be collected will allow the Agency to assess compliance with the regulations.

It is estimated that the cost of collecting this information will be $250 per month, or $3000 per year for each of the approximately 45 manufacturers subject to this proposed information collection requirements. Initial start-up costs are expected to be approximately $1000 with approximately $100-$200 per year for maintenance. The 400 burden hours are estimated to cost $11,628.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

Comments are requested on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques. Send comments on the ICR to the Director, Collection Strategies Division; U.S. Environmental Protection Agency (2822); 1200 Pennsylvania Ave., NW., Washington, DC 20460; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th St., NW., Washington, DC 20503, marked “Attention: Desk Officer for EPA.” Include the ICR number in any correspondence. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after June 8, 2001, a comment to OMB is best assured of having its full effect if OMB receives it by July 9, 2001. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory action on state, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Before promulgation an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.

Before we establish any regulatory requirement that may significantly or uniquely affect small governments, including tribal governments, we must develop, under section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of our regulatory proposals with significant federal intergovernmental mandates. The plan must also provide for informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA believes this proposed rule contains no federal mandates for state, local, or tribal governments. Nor does this rule have federal mandates that may result in the expenditures of $100 million or more in any year by the private sector as defined by the provisions of Title II of the UMRA. Nothing in the proposed rule would significantly or uniquely affect small governments.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.”

This proposed rule will impose no direct compliance costs on states. Thus, Executive Order 13132 does not apply to this rule.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. The requirements proposed by this action impact private sector businesses, particularly the automotive and engine manufacturing industries. Thus, Executive Order 13175 does not apply to this rule.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272), directs the EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices, etc.) that are developed or adopted by voluntary consensus standard bodies. The NTTAA requires EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This proposed rule incorporates by reference technical standards adopted by the Society of Automotive Engineers (SAE). We believe these standards are well accepted by industry.

EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially applicable voluntary consensus standards and to explain why such standards should be used in this regulation.

Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be economically significant as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

EPA believes this proposed rule is not subject to the Executive Order because it is not an economically significant regulatory action as defined by Executive Order 12866.

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:

1. Legislative: Congress made significant changes to the Endangered Species Act of 1973, as amended (Act), with the addition of section 10(j), which provides for the designation of specific reintroduced populations of listed species as “experimental populations.” Previously, we had authority to reintroduce populations into unoccupied portions of a listed species' historical range when doing so would foster the conservation and recovery of the species. However, local citizens often opposed these reintroductions because they were concerned about the placement of restrictions and prohibitions on Federal and private activities. Under section 10(j), the Secretary of the Department of the Interior can designate reintroduced populations established outside the species' current range, but within its historical range, as “experimental.”

Under the Act, species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 and the requirements of section 7. Section 9 of the Act prohibits the take of a listed species. “Take” is defined by the Act as harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to engage in any such conduct. Section 7 of the Act outlines the procedures for Federal interagency cooperation to conserve federally listed species and protect designated critical habitats. It mandates all Federal agencies to determine how to use their existing authorities to further the purposes of the Act to aid in recovering listed species. It also states that Federal agencies will, in consultation with the Service, insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the Act does not affect activities undertaken on private lands unless they are authorized, funded, or carried out by a Federal agency.

Section 10(j) is designed to increase our flexibility in managing an experimental population by allowing us to treat the population as threatened, regardless of the species' designation elsewhere in its range. Threatened designation gives us more discretion in developing and implementing management programs and special regulations for such a population and allows us to develop any regulations we consider necessary to provide for the conservation of a threatened species. In situations where we have experimental populations, most of the section 9 prohibitions that apply to threatened species no longer apply, and the special rule contains the prohibitions and exceptions necessary and appropriate to conserve that species. Regulations for NEPs may be developed to be more compatible with routine human activities in the reintroduction area.

Based on the best available information, we must determine whether experimental populations are “essential,” or “nonessential,” to the continued existence of the species. An experimental population that is essential to the survival of the species is treated as a threatened species. An experimental population that is nonessential to the survival of the species is also treated as a threatened species. However, for section 7 interagency cooperation purposes, if the NEP is located outside of a National Wildlife Refuge or National Park, it is treated as a species proposed for listing.

For the purposes of section 7 of the Act, in situations where there is a nonessential experimental population located within a National Wildlife Refuge or National Park (treated as threatened), section 7(a)(1) and the consultation requirements of section 7(a)(2) of the Act would apply. Section 7(a)(1) requires all Federal agencies to use their authorities to conserve listed species. Section 7(a)(2) requires that Federal agencies consult with the Service before authorizing, funding, or carrying out any activity that would likely jeopardize the continued existence of a listed species or adversely modify its critical habitats. When NEPs are located outside a National Wildlife Refuge or National Park, only two provisions of section 7 would apply; section 7(a)(1) and section 7(a)(4). In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to informally confer with the Service on actions that are likely to jeopardize the continued existence of a proposed species. However, since we determined that the NEP is not essential to the continued existence of the species, it is very unlikely that we would ever determine jeopardy for a project impacting a species within an NEP.

Individuals used to establish an experimental population may come from a donor population, provided their removal is not likely to jeopardize the continued existence of the species, and appropriate permits are issued in accordance with our regulations (50 CFR 17.22) prior to their removal.

2. Biological: Since the mid-1980s, Conservation Fisheries, Inc. (CFI), with support from us, the Tennessee Wildlife Resources Agency (TWRA), U.S. Forest Service (USFS), National Park Service, Tennessee Valley Authority (TVA), and Tennessee Aquarium (TA), has reintroduced the smoky madtom, duskytail darter, yellowfin madtom, and spotfin chub into Abrams Creek, within the Great Smoky Mountains National Park, Blount County, Tennessee. We have evidence that all four species are becoming reestablished in Abrams Creek (Rakes et al. 1998). Based on this success and CFI's intimate knowledge of the fishes' habitat needs, we contracted them to survey the Tellico River to determine if we could expand the recovery program for these fishes into the Tellico River.

CFI determined that the Tellico River appears to contain ideal habitat for the reintroduction of the four fishes, between the backwaters of the Tellico Reservoir (approximately Tellico River mile (TRM) 19 (30.4 kilometers (km))) and TRM 33 (52.8 km), near the Tellico Ranger Station, in Monroe County, Tennessee (Rakes and Shute 1998). CFI concluded that the Tellico River's overall water quality and clarity, combined with substrate quality, were somewhat less optimal than Citico Creek, where three of the four species currently exist. However, they also concluded that the Tellico River contains as good or better habitat than that which exists in Abrams Creek, where reintroductions of all four species are apparently succeeding.

Rakes and Shute (1998) reported that there are no confirmed historical collection records for these fishes from the Tellico River. However, they believe that all four species probably occurred in the river historically. They based their conclusion on two facts—(1) That the Tellico River is a Little Tennessee tributary just downstream from the mouths of Abrams and Citico Creeks (all four fishes historically occurred in these creeks) and (2) that all three streams drain the same physiographic provinces (Blue Ridge and Ridge and Valley). Additionally, all four species historically had access to the Tellico River. Prior to the construction of reservoirs on the main stem of the Little Tennessee River, no physical barriers prevented the movement of these fishes among Abrams Creek, Citico Creek, and the Tellico River (Peggy Shute, TVA, personal communication, 1998).

3. Recovery Efforts: We listed the duskytail darter ( Etheostoma percnurum ) (Jenkins 1994) as an endangered species on April 27, 1993 (58 FR 25758), and completed the recovery plan for this species in March 1994 (Service 1994). Although likely once more widespread in the upper Tennessee and middle Cumberland River systems, the species was historically known from only six populations—Little River and Abrams Creek, Blount County, Tennessee; Citico Creek, Monroe County, Tennessee; Big South Fork Cumberland River, Scott County, Tennessee, and McCreary County, Kentucky; Copper Creek and the Clinch River (this is one population), Scott County, Virginia; and the South Fork Holston River, Sullivan County, Virginia (Service 1994). The South Fork Holston River population is apparently extirpated. The Little River, Copper Creek/Clinch River, and Big South Fork Cumberland River populations are extant but small. CFI has reintroduced the duskytail darter into Abrams Creek, where a population is apparently becoming reestablished (Rakes et al. 1998).

The downlisting criteria (reclassification from endangered to threatened status) in the Duskytail Darter Recovery Plan are: (1) Protect and enhance existing populations and reestablish a population so that at least three distinct viable duskytail darter populations exist, (2) complete studies of the species' biological and ecological requirements, (3) develop management strategies from these studies that are or are likely to be successful, and (4) ensure that no foreseeable threats exist which would likely threaten the continued existence of the three aforementioned viable populations. The delisting criteria in the recovery plan are: (1) Protect and enhance existing populations and reestablish populations so that at least five distinct viable duskytail darter populations exist, (2) complete studies of the species' biological and ecological requirements, (3) develop management strategies from these studies that are or are likely to be successful, and (4) ensure that no foreseeable threats exist which would likely threaten the continued existence of the five aforementioned viable populations.

We listed the smoky madtom ( Noturus baileyi ) (Taylor 1969) as an endangered species on October 26, 1984 (49 FR 43065), and finalized the recovery plan for this species in August 1985 (Service 1985). Although once probably more widespread in tributaries to the lower Little Tennessee River system, this species was historically collected from only two creeks—Abrams Creek, Blount County, Tennessee, and Citico Creek, Monroe County, Tennessee (Service 1985). The Citico Creek population is still extant. CFI has reintroduced smoky madtom into Abrams Creek, and a population is apparently becoming reestablished (Rakes et al. 1998).

The downlisting criteria in the Smoky Madtom Recovery Plan are: (1) Protect the existing Citico Creek population and reintroduce the species into Abrams Creek so that at least two distinct viable smoky madtom populations exist and (2) eliminate threats to the species by implementing management activities. The delisting criteria in the recovery plan are to: (1) Protect and enhance existing populations and reestablish populations so that at least four distinct viable smoky madtom populations (Abrams and Citico Creeks, plus two others) exist; (2) implement successful management plans for the populations in Abrams and Citico Creeks; and (3) protect all four populations and their habitat from present and foreseeable threats that could interfere with the survival of any of the populations.

We listed the yellowfin madtom ( Noturus flavipinnis ) (Taylor 1969) as a threatened species on September 9, 1977 (42 FR 45527), and finalized the recovery plan for this species in June 1983 (Service 1983a). This fish was probably once widely distributed in the Tennessee drainage, from the Chickamauga system upstream (Service 1983a). However, the yellowfin madtom was historically known from only six streams—South Chickamauga Creek, Catoosa County, Georgia; Hines Creek, a Clinch River tributary, Anderson County, Tennessee; North Fork Holston River, Smyth County, Virginia; Copper Creek, Scott and Russell Counties, Virginia; Powell River, Hancock County, Tennessee; and Citico Creek, Monroe County, Tennessee (Service 1983a). Although there are no historical yellowfin madtom records from Abrams Creek, Blount County, Tennessee, Lennon and Parker (1959) reported that the brindled madtom (the name given by early collectors for the yellowfin) was collected during a reclamation project of lower Abrams Creek in 1957. Based on this observation, Dinkins and Shute (1996) and others believe the species once occurred in the middle and lower reaches of Abrams Creek. Three small populations still persist—Citico Creek, Copper Creek, and the Powell River. CFI has reintroduced the species into Abrams Creek, and a population is apparently becoming reestablished (Rakes et al. 1998).

The delisting criteria in the Yellowfin Madtom Recovery Plan are to: (1) Protect and enhance existing populations and/or reestablish populations so viable populations exist in Copper Creek, Citico Creek, and the Powell River; (2) recreate and/or discover two additional viable populations; (3) ensure that noticeable improvements in coal-related problems and substrate quality exist in the Powell River; and (4) protect the species and its habitat in all five rivers from present and foreseeable threats that may adversely affect essential habitat or the survival of any of the populations.

We listed the spotfin chub (=turquoise shiner) ( Cyprinella (= Hybopsis ) monacha ) (Cope 1868) as a threatened species on September 9, 1977 (42 FR 45527), and finalized the recovery plan for this species in November 1983 (Service 1983b). This once widespread species was historically known from 24 streams in the upper and middle Tennessee River system. It is now extant in only four rivers/river systems—the Buffalo River at the mouth of Grinders Creek, Lewis County, Tennessee; Little Tennessee River, Swain and Macon Counties, North Carolina; Emory River system (Obed River, Clear Creek, and Daddys Creek) Cumberland and Morgan Counties, Tennessee; Holston River and its tributary, the North Fork Holston River, Hawkins and Sullivan Counties, Tennessee, and Scott and Washington Counties, Virginia (Service 1983b; P. Shute, TVA, personal communication, 1998). CFI has reintroduced the species into Abrams Creek, and there are indications that it may become reestablished (Rakes et al. 1998).

The delisting criteria in the Spotfin Chub Recovery Plan are to: (1) Protect and enhance existing populations and/or reestablish populations so that viable populations exist in the Buffalo River system, upper Little Tennessee River, Emory River system, and lower North Fork Holston River and (2) ensure, through reintroductions and/or the discovery of new populations, that two other viable populations exist.

The recovery criteria for all four of these fishes generally agree that, to reach recovery, we must: (1) Restore existing populations to viable levels, (2) reestablish viable populations in historical habitats, and (3) eliminate foreseeable threats that would likely threaten the continued existence of any viable populations. The number of secure, viable populations (existing and restored) that are needed to achieve recovery varies by species and depends on the extent of the species' probable historical range (i.e., species that were once widespread require a greater number of populations for recovery than species that were historically more restricted in distribution). However, the reestablishment of historical populations is a critical component to the recovery of all four species.

4. Reintroduction Site: In March 1998, the Executive Director of the TWRA stated that he supports the conclusions of Rakes and Shute (1998), and requested that we consider designating the Tellico River a NEP Area and reintroducing the four fishes. He further stated that (1) the Tellico River was the probable historical habitat of the duskytail darter, smoky madtom, yellowfin madtom, and spotfin chub; and (2) the Tellico River appeared to have almost ideal habitat for the reintroduction of all four fishes.

Dr. David Etnier, Department of Ecology and Evolutionary Biology, University of Tennessee, Knoxville, Tennessee, stated in April 1998, that he supports the reintroduction of the four species into the Tellico River. Dr. Etnier presented several reasons for his support: (1) The mouth of the Tellico River is approximately 10 miles (16 km) downstream of the mouth of Citico Creek, which historically supported all four species and currently supports all but the spotfin chub; (2) CFI's habitat analysis indicated that reintroductions of these fishes into the Tellico River have a greater potential for success than reintroductions into any other tributary of the Little Tennessee River system, except Abrams Creek, where apparently successful reintroductions are already occurring; (3) apparently, no fish collections were made from the Tellico River prior to the 1960s, so the extirpation of these fishes could have occurred prior to the 1960s due to siltation caused by heavy logging in the watershed around the turn of the century; and (4) none of these species displays any biological attributes that suggest they could become a problem if successfully established into the Tellico River.

We propose to reintroduce populations of the duskytail darter, smoky madtom, yellowfin madtom, and spotfin chub (=turquoise shiner) into the Tellico River, between the backwaters of the Tellico Reservoir (approximately Tellico River mile (TRM) 19 (30.4 kilometers (km))) and TRM 33 (52.8 km), near the Tellico Ranger Station, in Monroe County, Tennessee and to designate these populations as NEPs. This area is identified as the proposed NEP Area.

5. Reintroduction Procedures: At this time, we cannot determine the proposed dates for these reintroductions, the specific sites where the fish species will be released, and the actual number of individuals to be released. We will release primarily artificially propagated juveniles, but we could release some wild adult stock. Propagation and juvenile rearing technology is available for the spotfin chub and the duskytail darter. Limited numbers of smoky and yellowfin madtom juveniles can be reared using eggs and larvae taken from the wild. However, madtom artificial propagation technology, which is needed to produce large numbers of juvenile madtoms, will likely not be available for 2 to 3 years.

The parents of the juveniles reintroduced into the NEP Area will come from existing wild populations. The two madtoms and duskytail darters will come from a nearby Little Tennessee River tributary—Citico Creek, Monroe County, Tennessee. The spotfin chubs will come from upstream in the Little Tennessee River, Swain County, North Carolina. In some cases the parents will be returned to the wild population from which they were taken. However, in most cases the parents will be permanently relocated to propagation facilities.

We determine that these proposed reintroduced fish populations are not essential to the continued existence of the species. Therefore, we believe it is appropriate to designate these populations as nonessential in accordance with section 10(j) of the Act. We will ensure, through our section 10 permit authority and the section 7 consultation process, that the use of animals from any donor population for these reintroductions is not likely to jeopardize the continued existence of the species. Therefore, if any of the reintroduced populations become established and are subsequently lost, it would not reduce the likelihood of the species' survival in the wild or jeopardize its continued existence. In fact, the anticipated success of these reintroductions will enhance the conservation and recovery potential of these species by extending their present ranges into currently unoccupied historic habitat. These species are not known to exist in the Tellico River or its tributaries at the present time.

Sites for the proposed reintroduction of these four fish species into the Tellico River, Monroe County, Tennessee, are within the proposed NEP Area. This area is totally isolated from existing populations of these species by large reservoirs, and none of these fishes are known to occur or move through large reservoir habitat. Therefore, these reservoirs will act as barriers to the downstream expansion of these species into the main stem of the Little Tennessee River and its tributaries and ensure that these populations will remain geographically isolated.

We do not believe these reintroductions will conflict with existing or proposed human activities or hinder public utilization of the NEP Area. Experimental population special rules contain all the prohibitions and exceptions regarding the taking of individual animals. These special rules are more compatible with routine human activities in the reintroduction area.

Based on the habitat requirements of these four fishes, we do not expect them to become established outside the NEP Area. However, if any of the four species move upstream or downstream or into tributaries outside of the designated NEP Area, we would presume that the animals had come from the reintroduced populations. The rule will be amended and the boundaries of the NEP Area would be enlarged to include the entire range of the expanded population.

On June 26, 1998, we mailed letters to 67 potentially affected congressional offices, Federal and State agencies, local governments, and interested parties that we were considering proposing NEP status for four fish species in the Tellico River. We received four written responses.

The U.S. Forest Service, which is significantly involved in reintroduction efforts for these fishes into Abrams Creek, supports proposed reintroductions into the Tellico River as NEPs and offered to cooperate with us and TWRA in the reintroductions.

The Tennessee Department of Environment and Conservation, Division of Natural Heritage, supports the reintroduction of the four fishes into the Tellico River. They believe that designating the reintroduced populations as NEPs is appropriate because it should enable Federal, State, and local authorities to continue to promote the conservation and recovery of these fishes.

The Tennessee Chapter of the American Fisheries Society supports the reintroduction of these fishes into the Tellico River under NEP status. They concluded that: (1) Although there is little information on the historical environmental conditions in the Tellico River, the river now supports a relatively healthy native fish community with respect to species diversity, species composition, fish abundance, and fish health; (2) the river appears to contain suitable habitat for the survival of all four species; (3) all four species probably historically occupied the river; and (4) designating reintroductions as NEPs greatly relaxes regulatory requirements and makes introduced populations more compatible with other resource use in the watershed.

The Southeast Aquatic Research Institute (SARI) fully supports these reintroductions.

We intend for any rule that is finally adopted to be as effective as possible. Therefore, we invite the public, concerned government agencies, the scientific community, industry, and other interested parties to submit comments or recommendations concerning any aspect of this proposed rule (see ADDRESSES section).

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. In some circumstances, we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this request prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses available for public inspection in their entirety.

You may request a public hearing on this proposal. Your request for a hearing must be made in writing and filed within 45 days of the date of publication of the proposal in the Federal Register . Such requests for a hearing must be addressed to the State Supervisor for the Fish and Wildlife Service in North Carolina (see ADDRESSES section).

This rule is not a significant rule and is not subject to review by the Office of Management and Budget (OMB) under Executive Order 12866. This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The area affected by this rule consists of a very limited and discrete geographic segment (only 14 river miles (22.4 km)) of the Tellico River in Monroe County, Tennessee. No significant impacts to existing human activities on the river as a result of this rule are expected.

This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Designating reintroduced populations of federally listed species as NEPs significantly reduces the Act's regulatory requirements regarding the reintroduced listed species. Because of the substantial regulatory relief, we do not believe the reintroduction of these fishes will conflict with existing or proposed human activities or hinder public use of the Tellico River.

This rule does not alter the budgetary effects or entitlements, grants, user fees, or loan programs, or the rights and obligations of their recipients. Because there are no expected impacts or restrictions to existing human uses of the Tellico River as a result of this rule, no entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients are expected to occur.

This rule does not raise novel legal or policy issues. We have previously promulgated section 10(j) rules for experimental populations of other listed threatened or endangered species in various localities since 1984. The rules are designed to reduce the regulatory burden that would otherwise exist when reintroducing listed species to the wild.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Although most, if not all, of the identified entities are small businesses engaged in activities along the affected reach of the stream, this rule will have no economic effect in that it will operate to reduce or remove regulatory restrictions (see above for discussion of expected impacts).

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule does not have an annual effect on the economy of $100 million or more on local or State governments or private entities. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This rule does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The intent of this special rule is to facilitate and continue the existing commercial activity, while providing for the conservation of species through reintroduction into suitable habitat.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. The TWRA, which manages the fishes in the Tellico River, requested that we consider this reintroduction under an NEP designation. However, this rule will not require the TWRA to specifically manage for any of these reintroduced species. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

In accordance with Executive Order 12630, the rule does not have significant takings implications. When reintroduced populations of federally listed species are designated as NEPs, the Act's regulatory requirements regarding the reintroduced listed species within the NEP are significantly reduced. Section 10(j) of the Act can provide regulatory relief with regard to the taking of reintroduced species within a NEP area. For example, this rule allows for the unavoidable and unintentional taking of these reintroduced fishes when such take is incidental to a legal activity (e.g., boating, wading, and fishing) and the activity is in accordance with State laws or regulations. Because of the substantial regulatory relief provided by NEP designations, we do not believe the reintroduction of these fishes will conflict with existing or proposed human activities or hinder public use of the Tellico River system. A takings implication assessment is not required.

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This rule will not have substantial direct effects on the States, in the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have coordinated extensively with the State of Tennessee on the proposed reintroduction of fish to the Tellico River. We are undertaking this rulemaking at the request of the State wildlife agency (TWRA) in order to assist the State in restoring and recovering its native aquatic fauna. Achieving the recovery goals for these four fish species will contribute to the eventual delisting of these species and, thus, the return of these species to State management. We do not expect any intrusion on State policy or administration; roles or responsibilities of Federal or State governments will not change; and fiscal capacity will not be substantially directly affected. This special rule operates to maintain the existing relationship between the States and the Federal Government and is being undertaken at the request of a State agency. We have endeavored to cooperate with the TWRA in the preparation of this proposed rule.

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

This rule does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act is not required. We have determined that the issuance of a proposed rule for these NEPs is categorically excluded under our NEPA procedures (516 DM 6, Appendix 1.4 B (6)).

Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the rule? (6) What else could we do to make the rule easier to understand?

Send your comments concerning how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240 (e-mail: Exsec@ios.doi.gov).

The principal author of this proposed rule is Richard G. Biggins (see ADDRESSES section).

Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations as follows:

Although its discovery was not formalized until 1840 (Torrey and Gray, 1840), the first recorded collection of Potentilla robbinsiana (Robbins' or dwarf cinquefoil) by Thomas Nuttall in 1824 generated a strong interest among botanists and others in this diminutive member of the rose family ( Rosaceae ). Initially, there was confusion as to its taxonomic status, and it was designated as a variety of various European cinquefoils, but it was eventually recognized as a distinct species (Rydberg, 1896).

Potentilla robbinsiana is a long-lived perennial herb. Its hairy three-part compound leaves are deeply toothed, and mature plants form a dense 2-4 centimeter (1-1.5 inch) rosette. Individual plants develop a deep central taproot, which helps to anchor them and resists frost heaving. Potentilla robbinsiana is one of the first plants to bloom in the alpine zone where it is found, flowering soon after the snows recede, from late-May to mid-June. Adult plants produce from 1 to 30, 5-petalled yellow flowers on individual stems. The achenes mature by late July, and disperse on dry windy days. These seeds seldom disperse more than 20 cm from the parent plant, which limits natural reestablishment (Kimball and Paul, 1986). The seeds remain dormant for at least one winter, and germination begins the following year during June and July. Although seed viability is generally high, seedling survival is low (Iszard-Crowly and Kimball, 1998).

Various experiments have shown that Potentilla robbinsiana produces seed asexually so that seedlings are genetically identical (Lee and Greene, 1986). This species has the chromosome number 49 that allows it to maintain itself through asexual reproduction, which partially explains the low genetic variability found within the sampled population (David O'Malley, personal communication, 2000).

Potentilla robbinsiana is endemic to the White Mountains of New Hampshire and is restricted to two small, distinct areas on lands administered by the White Mountain National Forest. Herbaria collections suggest that historically there may have been a number of small populations in close proximity to these two areas. Currently there are only two natural populations. Reports of occurrences outside of New Hampshire have been discounted (Cogbill, 1993), and records indicate that Potentilla robbinsiana has always had a very narrow geographic distribution.

The largest natural population of Potentilla robbinsiana occurs on Monroe Flats located just above treeline on a col between Mt. Monroe and Mt. Washington on the Presidential Range. Within this small area (less than 1 hectares (ha) (2 acres)), the population is well established with more than 14,000 plants at present. Considering its local abundance and density at this one location, it is assumed that some of the unique features of Monroe Flats are important habitat requirements for Potentilla robbinsiana . Monroe Flats (elev. 1,550 meters (m) (5,115 feet (ft.)) consists of an exposed low dome that is covered with alternating bands of relatively barren small-stoned terraces and thickly vegetated mats. Blowing winds keep the Monroe Flats mostly free of snow and ice throughout the winter, leaving the vegetation exposed to the abrasive action of blowing snow and ice and desiccating winds. The moist barren soils are also susceptible to frost disturbance from freeze-thaw cycles for much of the year. In this extreme environment of moderate solifluction and exposed topography, Potentilla robbinsiana fills a narrow niche: it is likely a poor competitor with other species, but is able to thrive in a harsh environment where few other species can survive (Cogbill, 1987).

The second extant natural population occurs on Franconia Ridge, 30 kilometers (km) (8.6 miles (mi)) to the west of the Monroe Flats population. Although still within the alpine zone, the habitat here is markedly different. A handful of plants grow at a site on the south end of the Franconia Ridge in crevices along the side of a vertical cliff just below the ridgeline. Although records indicate that the Franconia population was never very large, it is likely that these few plants are the remnants of a larger population from more suitable habitat that previously existed along the top of the ridge. The habitat has long since eroded and the plants have disappeared due to hiking activity along a ridgeline trail.

Potentilla robbinsiana was listed as endangered on September 17, 1980, and critical habitat encompassing the Monroe Flats population was designated at that time. Overzealous specimen collecting and unregulated hiker disturbance were the reasons for listing. At the time, the extent of the Monroe Flats population was shrinking (Graber and Brewer, 1985) and the Franconia Ridge population was thought to be extirpated.

The first Robbins' Cinquefoil Recovery Plan, completed in 1983, featured two main objectives: to protect the existing Monroe Flats colony, encouraging its expansion to previously occupied habitat; and to establish self-maintaining populations in at least four additional potential habitats not occupied at the time.

To accomplish the first objective, a scree wall surrounding the Monroe Flats population was constructed and posted with “closed to entry” signs, and two hiking trails that had previously traveled through the Monroe Flats population were relocated away from the population. Plants have since been successfully transplanted back into the habitat where the trails had resulted in the localized demise of the plants, primarily at the highest locations of the Monroe Flats population. The ability of seed to move downhill from this recolonized site should benefit the Monroe Flats population. In addition, personnel from the White Mountain National Forest and Appalachian Mountain Club continue to provide stewardship, enforcement, and educational resources on site.

Several tasks were necessary to meet the second objective of establishing four additional self-maintaining transplant populations: (1) Protocols were developed to monitor the Monroe Flats population to better understand its demographic trends and natural rates of recruitment and mortality, and to collect data to model minimum viable population size; (2) the Franconia Notch population (rediscovered in 1984) was annually monitored; (3) micro-habitat components were identified and used to locate unoccupied, potentially suitable habitat; and (4) effective propagation and transplant techniques were developed. Transplant techniques varied over the years. However, the most successful efforts used 2-year-old plants germinated from seed, and transplanted with the soil media intact in mid-June to early July. Each year a portion of the seed collected for use in transplants is placed in cold storage at the New England Wildflower Society to establish a seed bank for this species.

Prior to listing, there had been a number of attempts to establish transplant populations at approximately 20 locations throughout the White Mountains (Graber, 1980). Although some of these efforts showed signs of initial success, all but one eventually failed due to unsuitable habitat or because patches of suitable habitat were too small to support viable populations. The Appalachian Mountain Club Research Department reviewed these efforts, and, using the lessons learned, narrowed recovery efforts to four potential sites as outlined in the updated 1991 recovery plan: two used in the previous transplant efforts and two new ones.

The experience gained from previous transplant efforts and the additional life history and demographic information gathered from ongoing research were used to determine the four most appropriate transplant sites. Two of these chosen sites had previously established transplant populations (Camel Patch and the Viewing Garden), both located on or near Mt. Washington, and two of the sites were unoccupied sites, one on Boott's Spur and one on the Franconia Range near what was thought potentially to be a historic site.

Transplant efforts at these 4 locations began in 1986 with the introduction of 160 plants over 3 years at the Boott's Spur site. The site showed some initial promise, but by 1991 mortality was 100%. Although the Boott's Spur location was recognized as suboptimal habitat and had failed in a previous transplant effort, another 27 plants were transplanted in 1995, but survival was 0% after the first year. The new Franconia population was established in 1988 with 61 plants transplanted over 2 years and an additional 108 plants through 1996, the date of the last transplant efforts. Like the natural populations, this transplant population has fluctuated over the years, but now appears well established with over 331 plants counted in 1999 and good natural recruitment occurring. Of the transplant populations created prior to this species listing, one continues to persist (Camel Patch) and has been supplemented with additional transplants. The transplant records for the Camel Patch by Graber from the 1980s to 1991 were not available, but the Appalachian Mountain Club inventoried this site starting in 1984 when they located 84 plants. Only one of the transplant zones in this habitat showed viable natural reproduction occurring. An additional 6 transplants were done at this location in 1999, which boosted this population to 23 adults, 60 juveniles, and 6 new transplant adults. The Viewing Garden had received 19 known adult transplants from about 1980 through 1997. Though the adults survived for some time, viable natural reproduction was problematic and these individuals died out over time.

The Robbins' Cinquefoil Recovery Plan: First Update, published in 1991, retained recovery criteria for the protection of existing natural populations and establishing additional transplant populations, contained minor changes to incorporate the rediscovered natural Franconia population, and acknowledged that suitable additional unoccupied habitat may be a limiting factor. In addition to the protection of the natural populations, this plan determined that a historically occupied zone within the Monroe Flats should be recolonized. Transplant efforts began in 1996 to meet this objective, and successful juvenile recruitment has since been observed.

To delist Potentilla robbinsiana , long-term demographic evidence must show that the Monroe Flats population is stable or increasing in size. Although counts were undertaken in 1973, 1983, and 1992, the methodology used to count the plants differed. The most reliable comparison between the three prior censuses and the most recent census (1999) is the number of plants found that were greater than 14 millimeters (mm.) (0.5 in.) in stemdiameter. Comparing the number of plants greater than 14 mm. in diameter for censuses in 1983, 1992, and 1999 clearly demonstrates that the Monroe Flats population has dramatically increased (Table 1). Transplant efforts in three different zones historically occupied by Potentilla robbinsiana began in 1996, and juvenile recruitment has been established in two of the zones.

While the 1991 recovery plan still calls for the establishment of four transplant populations, it also recognizes that suitable habitat may be a limiting factor, and requires that only two of the four transplant populations need to be viable. Boott's Spur has subsequently been dropped as a result of the unsuccessful transplant efforts resulting in 100% mortality. The Viewing Garden also reached 100% mortality in 1998. There are no plans to reestablish a population at this location because the suitable habitat is very limited and cannot support more than a few individual plants that are unlikely to persist under natural population fluctuations. Biologists familiar with this species are confident that little if any suitable habitat in the White Mountains remains to be discovered (K. Kimball, Appalachian Mountain Club, pers. comm. 2000). Therefore, given that the discovery of additional suitable habitat for the establishment of new transplant attempts is unlikely, recent efforts have focused on ensuring viable populations at the two remaining transplant locations.

Both the Camel Patch and Franconia Ridge transplant populations have persisted for more than 10 years. Both have juvenile recruitment and successful second generation seedling establishment. Transplant and/or monitoring efforts for these populations continue on a near annual basis (Kimball, 1998). The high level of soil movement throughout Camel Patch makes much of the site unsuitable for transplant efforts, nevertheless a population located along the edge of the encircling vegetation is well established. The Franconia Ridge population has increased dramatically in recent years and is now well established. Although precise historic records are lacking, even if the present Franconia transplant population happens to be located at a historical location, the amount of suitable habitat would eventually limit the population size.

An 11-year demographic study, funded by us, the U.S. Forest Service, and Appalachian Mountain Club, was conducted along four permanent transects within the Monroe Flats population, in part, to determine a minimum viable population for the transplant populations based on the stage-based survival of the Monroe Flats population. The study recommended a minimum viable population of 50 plants (Iszard-Crowley and Kimball, 1998). Both the Franconia transplant location with a current population of 331 plants and the Camel Patch location with a current population of 87 plants meet this criteria.

Section 12 of the Endangered Species Act of 1973 directed the Secretary of the Smithsonian Institution to prepare a report on those plants considered to be endangered, threatened, or extinct. This report, designated as House Document No. 94-51, was presented to Congress on January 9, 1975. On July 1, 1975, the Director published a notice in the Federal Register (40 FR 27823) of his acceptance of the report of the Smithsonian Institution as a petition within the context of section 4(c)(2) of the Act, and of his intention thereby to review the status of the plant taxa named within. On June 16, 1976, the Service published a proposed rulemaking in the Federal Register (41 FR 24523) to determine approximately 1,700 vascular plant species to be endangered species pursuant to section 4 of the Act. Comments on this proposal were summarized in the April 26, 1978, Federal Register publication of a final rule, which also determined 13 plants to be either endangered or threatened species (43 FR 17909). Potentilla robbinsiana was included in the Smithsonian's report, the July 1, 1975, notice of review, and the June 16, 1976, proposal.

The amendment of the Act in 1978 required that all proposals over 2 years old be withdrawn. A 1-year grace period was give to proposals already over 2 years old. On December 10, 1979, we published a notice withdrawing the June 16, 1976, proposal to list Potentilla robbinsiana .

Based on sufficient new information, we again proposed Potentilla robbinsiana for listing on March 24, 1980, and proposed its critical habitat for the first time (45 FR 19004). A public meeting was held on this proposal on April 28, 1980, in Concord, New Hampshire. On September 17, 1980, we published a final rule in the Federal Register (45 FR 61944) listing Potentilla robbinsiana as endangered and designating critical habitat.

Section 4 of the Act and regulations (50 CFR part 424) promulgated to implement the listing provision of the Act, set forth the procedures for listing, reclassifying, and delisting species on the Federal lists. A species may be listed if one or more of the five factors described in section 4(a)(1) of the Act threatens the continued existence of the species. A species may be delisted according to 50 CFR 424.11(d), if the best scientific and commercial data available substantiate that the species is neither endangered nor threatened (1) because of extinction, (2) because of recovery, or (3) because the original data for classification of the species were in error.

After a thorough review of all available information, we determined that substantial Potentilla robbinsiana recovery has taken place since listing in 1980. We have also determined that none of the five factors identified in section 4(a)(1) of the Act, and discussed below, are currently affecting the species in such a way that the species is endangered (in danger of extinction throughout all or a significant portion of its range) or threatened (likely to become endangered in the foreseeable future throughout all or a significant portion of its range). These factors and their application to Robbin's cinquefoil, Potentilla robbinsiana (Torrey and Grey, 1840), are as follows:

Potentilla robbinsiana utilizes a substrate described as a shallow loamy sand topped with a stony, pavement-like surface. This stony surface layer protects the soil from being either blown or washed away. The 1980 final listing rule determined that the plant and its habitat were damaged by trampling from hikers. Hiking through the habitat is unimpeded due to the lack of most vegetation. Because the plants are small, it is easy for hiker boots to crush adult, juvenile, and seedling plants.

Since listing, the threat from trampling has been reduced by rerouting trails and protecting habitat. The section of the Appalachian Trail that bisected the Monroe Flats population is referred to locally as the Crawford Path, named after Abel Crawford who constructed the path in 1819. In 1915, the Appalachian Mountain Club constructed Lakes of the Clouds Hut, 270 m. (295 yards (yd.)) to the north of the trail. The Crawford Path was relocated at this time to bring the trail by the Hut, and although the trail was no longer directly bisecting Potentilla robbinsiana habitat, it still went through the northwest corner of the critical habitat. In 1983, the Crawford Path and Dry River Trails were rerouted a second time in response to the Federal listing, to move the trails outside of the plant's critical habitat. A low scree wall was constructed in conjunction with the trail relocation, around the critical habitat, and has been particularly effective in places where the trail abuts critical habitat. Signs posted around the Monroe Flats population notify hikers that there is a federally listed species present and no admittance is allowed without a permit. These signs are replaced as needed. Hiker traffic and trespassers into the critical habitat were recorded by pressure plates during 1985 to assess the effectiveness of hiker management. The plates were operated from June through October 1985 and checked several times weekly. Of 4,286 hikers counted over 115 days the counters were functional, the trespass rate was 2 percent (Kimball and Paul, 1986). The target compliance level established by the 1983 recovery plan was 95 percent of the hikers not trespassing into the critical habitat, an objective that has been maintained or exceeded since 1981. Outreach has also been a strong recovery component for ensuring hiker compliance of no trespassing into the Potentilla robbinsiana habitat. A naturalist is stationed at the Lakes of the Clouds Hut throughout the summer. The Hut naturalist is available during the day to answer questions and give interpretive talks regarding Potentilla robbinsiana . The naturalist and other Hut staff are also instrumental in monitoring the Monroe Flats population for human disturbance.

In 1973, prior to listing, the Monroe Flats population contained approximately 1,801 individual plants larger than 14 mm. As of 1999, this population included approximately 4,575 individuals of similar size. This represents a greater than 250% increase in this population. Counting plants of all sizes (seedlings to adults) in 1999, the established population size was 14,195 individuals.

The second natural population is near the Appalachian Trail on Franconia Ridge. The location of this population has been purposefully kept undisclosed and is presently out of the way of the average hiking public.

Records indicated the extant Franconia Ridge population was never very large. Nevertheless, it is considered to be a reproducing population, with 18 individual plants consisting of 4 adults, 13 juveniles, and 1 seedling, as of 1999.

The 1980 final listing identified that the collecting of specimens for herbaria probably contributed to the loss of Potentilla robbinsiana and possibly the cause for the extirpation of one of the Franconia sites (Steele, 1964). It was noted that over 40 herbarium sheets containing nearly 100 plants (6 percent of the known mature population at the time of listing) were counted in various New England herbaria (Graber, 1980). Cogbill's more recent paper (1993) documents the collection of over 850 plants in herbaria collections worldwide, which represents one of the most extensive collections known for a single species. However, collection of the species has, to date, not been a threat. Commercial trade in the species occurred in the early 1900s but has not occurred since and is not expected to occur in the future. Import or export of this species also is not anticipated. Therefore, taking of Potentilla robbinsiana for these purposes is not considered to be a threat.

This species is not known to be threatened by disease or predation.

Potentilla robbinsiana is currently afforded limited protection by the Endangered Species Act. Section 9 of the Act prohibits the removal and possession of endangered plants from lands under Federal jurisdiction and the malicious damage and destruction of endangered plants in such areas, and the damage or destruction of endangered plants from any other area in knowing violation of any State law or regulation, or in the course of a violation of State criminal trespass law. Section 7 of the Act requires Federal agencies to ensure that their actions do not jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat.

Section 7(a)(1) requires Federal agencies to carry out programs for the conservation of threatened and endangered species. The entire range of Potentilla robbinsiana occurs on Forest Service lands. Forest Service regulations prohibit removing, destroying, or damaging any plant that is classified as a threatened, endangered, rare or unique species (36 CFR 261.9). On December 2, 1994, we, the Forest Service, and the White Mountain National Forest, signed a Memorandum of Understanding for the conservation of Potentilla robbinsiana . The MOU states that the Forest Service agrees to carry out specific management measures, with our assistance, both through the recovery period, and if and when Potentilla robbinsiana is removed from the list of endangered and threatened plants. The MOU further states that the change in the species' legal status will not affect the Forest Service's commitment to implement management programs to promote long-term conservation of this sensitive species regardless of its standing under the Federal Act.

Potentilla robbinsiana does appear on the Forest Service Region 9 list of “species of concern” and on the New Hampshire State list, although State legislation currently offers it no protection. However, the State of New Hampshire has a cooperative plant agreement with us as specified under section 6(c)(2) of the Act that allows the State to apply for funds from the Service to aid in the conservation of threatened, endangered, or rare plants.

Recovery efforts have been directed toward protection and environmental education. A number of approaches have been used to educate the hiking public and the scientific community about Potentilla robbinsiana . Providing information to the public regarding the species' biology and management satisfies their curiosity and increases their willingness to participate in protection of this species. These efforts include a permanent display and presentations about Potentilla robbinsiana by the seasonal Appalachian Mountain Club naturalist at Lakes of the Clouds Hut.

The 1980 final listing rule mentioned that Potentilla robbinsiana is vulnerable to the harsh climate in which it lives. The weather regime experienced by the species is highly variable from year to year. During demographic studies over the past 16 years it has been observed that late frosts in June have the potential to damage flowers and greatly reduce the seed crop for that year. By virtue of a deep taproot, the species appears to be adapted to a moderate level of frost-heaving, a stress that may limit competing species. At the same time, it cannot tolerate frost induced movement of more that 18 mm/yr, or frost action sufficient to produce stone stripes or other patterned ground (Cogbill, 1987). Overall, however, this species is now thriving in a very localized part of the alpine zone of the White Mountains, and adapts to the harsh climate conditions, where few other species survive.

Delisting Potentilla robbinsiana , as described in the 1991 updated recovery plan, requires that (1) four transplant colonies are viable, with self-reproducing capability; (2) the Monroe Flats population demonstrates population stability for a full generation; and (3) the two natural existing populations are protected from human disturbance. This delisting objective was based on the best information available at that time. The habitat of the two existing natural populations is protected from human disturbance, and the Monroe Flats population is considered viable and increasing. Though the recovery plan calls for the establishment of four transplant populations, it also recognizes that suitable habitat may be a limiting factor. We have determined that at the two sites where transplanting has proven to be unsuccessful, Boott's Spur and the Viewing Garden, no further attempts to reestablish populations will be considered. Discovery of additional suitable habitat for the establishment of new transplant populations is unlikely, so recent efforts are focusing on maintaining viable populations at the two remaining transplant locations. Two of the three delisting components have been met. It is unlikely additional habitat for future transplants will be found, and achieving the third component is improbable. We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by this species in determining to propose this rule: The threats to the species have been reduced or removed, the number of plants is increasing, the species is not in imminent danger of extinction, and the species appears unlikely to become endangered within the foreseeable future.

If finalized, the proposed action would remove Potentilla robbinsiana from the List of Endangered and Threatened Plants. Furthermore, the critical habitat for this plant, one location in the White Mountain National Forest, New Hampshire (50 CFR 17.96(a)), would be removed. The prohibitions and conservation measures provided by the Act would no longer apply to this species. Therefore, taking, interstate commerce, import, and export of Potentilla robbinsiana would no longer be prohibited under the Act. In addition, Federal agencies would no longer be required to consult with us under section 7 of the Act to insure that any action they authorize, fund, or carry out, is not likely to jeopardize the continued existence of Potentilla robbinsiana or destroy or adversely modify designated critical habitat.

The take and use of Potentilla robbinsiana must comply with appropriate Forest Service regulations, since the entire population lies within the White Mountain National Forest in New Hampshire.

Section 4(g)(1) of the Act requires that the Secretary of the Interior, through the Service, implement a monitoring program for not less than 5 years for all species that have been recovered and delisted. The purpose of this requirement is to develop a program that detects the failure of any delisted species to sustain itself without the protective measures provided by the Act. If at any time during the 5-year monitoring program, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.

Our Northeast Region will coordinate with the Forest Service, the Appalachian Mountain Club, and State resource agencies to develop and implement an effective 5-year monitoring program to track the population status of Potentilla robbinsiana . To detect any changes in the status of Potentilla robbinsiana , we will use, to the fullest extent possible, information routinely collected by the Appalachian Mountain Club Research Department and the Forest Service. During the fifth year of the 5-year monitoring period, a quantitative population assessment of the Monroe Flats population will be conducted using transects to further evaluate the stability and health of this population.

It is believed that the two transplanted sites have reached viable population status. However, during the required 5-year monitoring period, transplants at the Camel Patch site will continue annually to supplement the current population or until the habitat is thought to be saturated with plants.

If we determine at the end of the mandatory 5-year monitoring period, and the fifth year population assessment of Monroe Flats, that recovery is complete, and factors that led to the listing of Potentilla robbinsiana , or any new factors, remain sufficiently reduced or eliminated, monitoring may be reduced or terminated. If data show that the species is declining or if one or more factors that have the potential to cause a decline are identified, we will continue monitoring beyond the 5-year period and may modify the monitoring program based on an evaluation of the results of the initial 5-year monitoring program, or reinitiate listing if necessary.

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. Comments should be sent to our Northeast Regional Office (see ADDRESSES section). We particularly seek comments concerning; biological, commercial trade, or other relevant data concerning any threat, or lack thereof, to this species; and information and comments pertaining to the proposed monitoring program contained in this proposal.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There may also be circumstances in which we would withhold from the rulemaking record a respondent's identity as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received, as well as supporting information used to write this rule, will be available for public inspection, by appointment, during normal business hours at the above address.

The final decision on this proposal for Potentilla robbinsiana will take into consideration the comments received by us during the comment period. Such communications may lead to a final regulation that differs from this proposal.

The Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days of the date of publication of this proposal. Such requests must be made in writing and sent to our Northeast Regional Office identified in the ADDRESSES section at the beginning of this proposed rule.

This proposed rule is not subject to review by the Office of Management and Budget under Executive Order 12866.

The OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act, require that Federal agencies obtain approval from OMB before collecting information from the public. The OMB regulations at 5 CFR 1320.3(c) define a collection of information as the obtaining of information by or for an agency by means of identical questions proposed to, or identical reporting, record keeping, or disclosure requirements imposed on, 10 or more persons. Furthermore, 5 CFR 1320.3(c)(4) specifies that “ten or more persons” refers to the persons to whom a collection of information is addressed by the agency within any 12-month period. For purposes of this definition, employees of the Federal Government are not included.

This rule does not include any collections of information that require approval by OMB under the Paperwork Reduction Act. Potentilla robbinsiana occurs entirely on lands administered by the Forest Service and only in one State, New Hampshire. The information needed to monitor the status of Potentilla robbinsiana following delisting will be collected primarily by a limited number of personnel from the Forest Service and the Appalachian Mountain Club. We do not anticipate a need to request data or other information from 10 or more persons during any 12-month period to satisfy monitoring information needs. If it becomes necessary to collect information from 10 or more non-Federal individuals, groups, or organizations per year, we will first obtain information collection approval from OMB.

We have determined that we do not need to prepare an Environmental Assessment, as defined under the authority of the National Environmental Policy Act of 1969, in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of all references cited herein is available upon request from our Northeast Regional Office (see ADDRESSES section).

The primary author of this notice is Diane Lynch, Endangered Species Biologist (See ADDRESSES section), and Doug Weihrauch, staff scientist for the Appalachian Mountain Club Research Department, provided assistance with the summary of the biological record for this species.

For the reasons set out in the preamble, we propose to amend part 17, subpart B of chapter I, title 50 Code of Federal Regulations, as set forth below:

The scoping meetings will be convened to obtain public comments on the range of issues to be discussed in the SEIS for the EFH Generic Amendment. The Council is especially interested in public views on what alternatives should be considered for the designation of EFH, the identification of Habitat Areas of Particular Concern (HAPC), and the recommendation of management measures to minimize the adverse impacts of fishing activities and gear on identified EFH and HAPC areas.

The Council prepared the EFH Generic Amendment in response to provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The EFH Generic Amendment identifies and describes EFH for the species managed under the Council’s fishery management plans; it also discusses threats to EFH from both fishing and non-fishing activities, discusses EFH conservation and enhancement opportunities, and identifies HAPCs. NMFS partially approved the EFH Generic Amendment in 1999 after conducting Secretarial review under Magnuson-Steven Act procedures. NMFS and the Council previously published a notice in the Federal Register (66 FR 15405; March 19, 2001) announcing their intent to prepare a SEIS for the EFH Generic Amendment that will supersede the environmental assessment originally prepared in support of this amendment.

The scoping meetings will be held at the following dates, locations, and times:

1. Thursday, June 14, 2001, 3 p.m.-5 p.m., Omni Bayfront Hotel, 900 North Shoreline Boulevard, Corpus Christi, TX 78401; telephone (361) 887-1600

2. Friday, June 15, 2001, 1 p.m.-3 p.m., Courtyard by Marriott, 9190 Gulf Freeway, Houston, TX 77017; telephone (713) 910-1700

3. Monday, June 18, 2001, 2 p.m.- 4 p.m., New Orleans Airport Hilton, 901 Airline Drive, Kenner, LA 70062; telephone (504) 469-5000

4. Tuesday, June 19, 2001, 3 p.m.-5 p.m., Imperial Palace Hotel, 850 Bayview, Biloxi, MS 39530; telephone (228) 436-3000

5. Thursday, June 21, 2001, 3 p.m.-5 p.m., National Marine Fisheries Service, 3500 Delwood Beach Road, Panama City, FL 32408; telephone (850) 234-6541

6. Monday, June 25, 2001, 3 p.m.-5 p.m., Holiday Inn Beachside, 3841 North Roosevelt Boulevard, Key West, FL 33040; telephone (305) 294-2571

7. Thursday, June 28, 2001, 3 p.m.-5 p.m., Tampa Airport Hilton, 2225 Lois Avenue, Tampa, FL 33607; telephone (813) 877-6688

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Anne Alford at the Council (see ADDRESSES ) by June 8, 2001.

The Commercial, Recreational, Subsistence/Indigenous, and Ecosystem and Habitat sub-panels will meet jointly on Friday, June 15, 2001, from 8:30 a.m. to 5 p.m. Sub-panels will meet individually on Saturday, June 16, 2001, but will reconvene jointly before the end of the day to finalize recommendations. In addition, the Panels will hear reports from plan teams, the scientific and statistical committee, and other ad hoc groups. Public comment periods will be provided throughout the meetings. The order in which agenda items are addressed may change. The Advisory Panels will meet as late as necessary to complete scheduled business.

The agenda for the Advisory Panel meetings will include the items listed below:

A public hearing will be held at 6 p.m. on June 20, 2001, on upcoming actions with respect to shark finning.

A public hearing will be held at 9:30 a.m. on June 21, 2001, on the CREFMP/DEIS.

The following Standing Committees of the Council will meet on June 18, 2001. Enforcement/Vessel Monitoring System (VMS) from 8 a.m. to 10 a.m.; Fishery Rights of Indigenous People from 9 a.m. to 10 a.m.; International Fisheries/Pelagics from 10 a.m. to 12 noon; Precious Corals from 1:30 p.m. to 3 p.m.; Crustaceans from 1:30 p.m. to 3 p.m.; Bottomfish from 3 p.m. to 4:30 p.m; Ecosystem and Habitat from 3 p.m. to 4:30 p.m.; and Executive/Budget and Program from 4:30 p.m. to 6 p.m.

In addition, the Council will hear recommendations from its advisory panels, plan teams, scientific and statistical committee, and other ad hoc groups. Public comment periods will be provided throughout the agenda. The order in which agenda items are addressed may change. The Council will meet as late as necessary to complete scheduled business.

The agenda during the full Council meeting will include the items listed below:

A. American Samoa

B. Guam

C. Hawaii

D. Commonwealth of the Northern Mariana Islands

A. Department of Commerce

(1) NMFS

(a) Southwest Region, Pacific Islands Area Office

(b) Southwest Fisheries Science Center, La Jolla and Honolulu Laboratories

(2) NOAA General Counsel, Southwest Region

B. Department of the Interior/U.S. Fish and Wildlife Service

C. U.S. State Department

A. U.S. Coast Guard activities

B. NMFS activities

C. Commonwealth, Territories, and State activities

D. Archipelago Marine Research Ltd. - digital monitoring

E. Digital Observer project

F. Report on Enforcement meeting

G. Status of Violations

A. NMFS status of VMS report

B. USCG request to use VMS for targeting boardings

C. Report on VMS issues from the Enforcement meeting

A. Current population trends and factors affecting monk seal populations

B. Recommendations of the Hawaiian Monk Seal Recovery Team

C. Bottomfish/monk seal mitigation measures

A. Status of 1999 framework amendment regarding new harvesting requirements

B. Status of 2000 framework adjustment regarding Hawaiian Islands exploratory area quota increase

This Federal Register document is also accessible via the Internet at the website of the Office of the Federal Register: http://www.access.gpo.gov/su-docs/aces/aces140.html.

NMFS is proposing this rule to implement Amendment 14 to the FMP, a permit stacking program for limited entry permits with sablefish endorsements. These regulations would lengthen the duration of the major limited entry, fixed gear season for sablefish and provide participation requirements for that season. This proposed rule is based on recommendations of the Council, under the authority of the Pacific Coast Groundfish FMP and the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Implementing Amendment 14 would significantly increase safety in the fishery, allow individual fishery participants to more fully use their existing vessel capacity, and reduce overall capacity in the primary fixed gear sablefish fishery. The background and rationale for the Council's recommendations are summarized here. Further detail appears in the EA/RIR prepared by the Council for Amendment 14.

For many years, sablefish harvested by the limited entry, fixed gear fleet has been separated into a small, year-round daily trip limit fishery and a two-part “primary” fishery. Annually, about 85 percent of the limited entry fixed gear sablefish allocation is taken in the primary fishery. The two parts of the primary fishery have been the “regular” season, which was a derby fishery until 1997, and the “mop-up” season to take any primary season sablefish not taken in the regular season. Prior to 1997, the Council managed harvest in the regular season by setting the season length short enough to ensure that the fishery would not exceed its quota. During the regular season, there were no cumulative sablefish limits for participating vessels. The mop-up season was commonly 2 weeks in duration, with each participant allowed to fish against a small, vessel-specific cumulative limit. Over time, sablefish fleet capitalization increased and the Council needed to set ever shorter regular seasons to control catch levels. By 1996, the regular season was just 5 days long.

Concern for the safety of participants in the sablefish derby led the Council to develop Amendment 9 to the FMP, a sablefish endorsement program for limited entry permit holders. Amendment 9, implemented in 1997, limited the number of vessels allowed to participate in the primary (regular + mop-up) fixed gear sablefish fishery. Limited entry permit holders with at least 16,000 lb (7,257 kg) of sablefish landed in any one year from 1984 through 1994 received sablefish endorsements. This program was intended to restrict primary fishery participation to those permit holders with historical participation in and dependence upon the sablefish fishery. Today, 164 limited entry permit holders have sablefish endorsements.

The Council saw the sablefish endorsement as a first step in improving management of the limited entry, fixed gear primary sablefish fishery. In 1998, NMFS implemented the Council’s next step, which was to manage the season with a three-tiered cumulative limit regime (63 FR 38101, July 15, 1998.) For the three-tier system, the Council divided sablefish endorsement holders into three tiers based on historical landings associated with their permits. During the limited entry fixed gear regular season, a participant has been allowed to land an amount of sablefish up to the cumulative limit associated with his/her permit’s tier.

To qualify for the highest tier, Tier 1, a permit had to be associated with at least 898,000 lb (407.33 mt) of sablefish landings made from 1984 through 1994. To qualify for the middle tier, Tier 2, a permit had to be associated with between 380,000 lb (172.36 mt) and 897,999 lb (407.33 mt) of sablefish landings made from 1984 through 1994. Permits with sablefish endorsements that were associated with less than 380,000 lb (172.36 mt) of sablefish landings from 1984 through 1994 qualified for the lowest tier, Tier 3. The three-tier system also set a between-tier ratio to describe the relationship between the cumulative limits that would be available to each tier during the regular season. That ratio is 1 (Tier 3): 1.75 (Tier 2):3.85 (Tier 1). For example, if Tier 3 had a cumulative limit of 10,000 lb (4,536 kg), Tier 2 would have a corresponding cumulative limit of 17,500 lb (7,938 kg), and Tier 1 would have a corresponding cumulative limit of 38,500 lb (17,463 kg).

The three-tier system has been in place since the 1998 season and has somewhat slowed the pace of the fishery and the rate of capitalization in the fishery. Vessels owners no longer have an incentive to increase their fishing speed because they are limited in how much sablefish they can catch by the tiered cumulative limits. Even under the three-tier system, however, the Council continued to constrain regular season harvest by setting a short duration season, followed by the longer mop-up season. Three-tier system regulations set the regular fishery at no more than 10 days in duration.

A fishery where all participants have the opportunity to catch a cumulative limit and are all able to catch that limit is an Individual Fishing Quota (IFQ) fishery as defined by the Magnuson-Stevens Act. The Magnuson-Stevens Act includes a moratorium on the implementation of new IFQ programs. To avoid having its three-tier management program classified as an IFQ program, the Council set short season lengths intended to prevent all participants from catching their cumulative limits. Cumulative limits were also set high, to ensure that some participants would not attain those limits during the short season. To provide a resource conservation buffer against the possibility that more vessels than expected would meet their cumulative limits in the regular season, the Council set season lengths and cumulative limits to take 80-87 percent of the primary season quota. Any quota not taken in the regular season as a result of this buffer was available during the mop-up season as an equal cumulative limit for all participating vessels. This conservative management provision successfully kept the primary season within its quota for the 1998-2000 three-tier seasons.

The moratorium on new IFQ programs has been extended to October 1, 2002 (Pub. L. 106-553.) However, Congress exempted from the moratorium a Pacific Council IFQ program for the fixed gear sablefish fishery that: (1) allows the use of more than one limited entry groundfish permit per vessel; and/or (2) sets cumulative trip limit periods, up to 12 months in any calendar year, that allow fishing vessels a reasonable opportunity to harvest the full amount of the associated trip limits. At its November 2000 meeting, the Council recommended a permit stacking program that met the moratorium exemption requirements.

Amendment 14 to the FMP, which the Council adopted at its November 2000 meeting, would introduce a permit stacking program to the limited entry, fixed gear primary season. Under this permit stacking program, a vessel owner would be allowed to register more than one sablefish-endorsed permit for use with his/her vessel to harvest the cumulative limits associated with each of the stacked permits. This is referred to as stacking permits. Current groundfish regulations associate cumulative limits with vessels, so that no vessel may take more than one cumulative limit of a particular species during a single cumulative limit period. Amendment 14 would associate the sablefish cumulative limits of the three-tier system with permits. A vessel carrying more than one permit could harvest more than one sablefish cumulative limit per cumulative limit period.

By exempting the Pacific Coast fixed gear permit stacking program from the IFQ moratorium, Congress removed the need to set short seasons designed to prevent participants from catching their full cumulative limits. The initial season recommendation is for an April through October season, which would allow participants ample time to catch their full sablefish cumulative limits. In 2001, the season would run from August 15 through October 31, a significant improvement over the brief seasons of past years. Under Amendment 14, the primary season would no longer be separated into regular and mop-up sub-seasons because the Council would simply divide the overall quota available to the fishery among the participants with the expectation that each vessel would be able to take its cumulative limits. With this increased harvest control, the Council would not need to use the traditional buffer of a mop-up season to prevent over-harvest in a regular season. Amendment 14 would also eliminate the need for the pre- and post-season closure periods that the Council used to control regular season sablefish harvest rates. The 48-hour pre-season closure requires that all participating vessels keep their gear out of the water, to prevent vessels from fishing in advance of the start time. The 36-hour post-season closure allows vessels to fish up until the last minute of the season end time, and then unload their catch during the closure period without penalty.

Beyond the basic provisions of allowing vessels to harvest more than one sablefish cumulative limit during the season and lengthening the season, Amendment 14 includes numerous provisions for managing the permit stacking program. There is not enough time to implement all of these provisions for the 2001 season. The provisions not included in this proposed rule will be implemented for the 2002 season by another rule.

Each limited entry permit has a gear endorsement for trawl, longline, or pot. Most permits have only one gear endorsement, although there are a few with more than one gear endorsement. A permit’s gear endorsement indicates the gear that a vessel registered to the permit may use to participate in the limited entry fishery. Of the 164 permits with sablefish endorsements, 131 permits have longline endorsements, 1 has both a longline and trawl endorsement, 27 have pot endorsements, 1 has both a pot and trawl endorsement, and 4 have both longline and pot endorsements. The relatively small number of pot permits limits the permit market for vessels that fish with pot gear. In developing Amendment 14, the Council decided that it wanted to provide flexibility for vessel owners wishing to stack permits, regardless of whether they use longline or pot gear.

Amendment 14 would allow a vessel owner to stack permits with different gear endorsements together, allowing the vessel to fish for sablefish with any of the fixed gears endorsed on at least one of the stacked permit. For example, a pot vessel could own a pot permit with a sablefish endorsement and a longline permit with a sablefish endorsement, and then fish against the cumulative limits associated with each permit using pot gear. A vessel could not participate in the primary sablefish fishery using any gear other than the fixed gear indicated on at least one of the permits associated with that vessel. If one of the permits registered for use with a vessel includes a trawl endorsement in addition to the required fixed gear endorsement, and if that permit’s length endorsement is equal to or greater than that of the base permit, the vessel may continue to use trawl gear, but not in the fixed gear fishery. In such a case, if the permit is registered for use with a vessel more than 5 ft (1.52 m) shorter than the length endorsement on the trawl endorsed permit, the trawl endorsed permit would not be subject to trawl permit size reduction requirements at § 660.333 (h)(2). These provisions would be implemented for the 2001 fishery via this action.

Under Amendment 14, a permit owner who has stacked multiple permits on a single vessel may separate, or “unstack,” those permits from each other and transfer those permits individually to another vessel. That is, once two or more permits have been stacked together, they are not required to remain permanently stacked. The Council supported this provision because it will allow permit holders flexibility for moving permits within the fleet. If Amendment 14 had required stacked permits to remain permanently stacked, it would have been more effective at permanently removing effort from the sablefish fishery. However, Council members felt that a requirement for permanent stacking would have been a disincentive to stack permits, particularly because there is uncertainty whether permits will include other species endorsements or IFQs in the future. Thus, this provision of Amendment 14 is intended to provide an incentive for vessels to stack permits to decrease the number of vessels in the fishery, while allowing permit holders flexibility for the future.

As discussed earlier, the permit stacking program would associate sablefish cumulative limits in the primary fishery with permits rather than with vessels. This means that if a vessel owner unstacks and transfers a permit associated with his/her vessel during the primary season, the next vessel using that permit would only have access to that portion of the sablefish cumulative limit not caught by the first vessel. Provisions to allow unstacking and to require association of cumulative limits with permits for purposes of transferring permits with sablefish endorsements would be implemented for the 2001 season via this action.

One of the Council’s concerns in developing Amendment 14 was that, without controls, a permit stacking program could allow a few permit owners to control most of the sablefish catch and landings in the primary fishery. In IFQ programs where percentage of ownership has not been restricted, like the Atlantic surf clam fishery, a few large corporations own most of the access privileges for the fishery. The Council wanted to maintain the traditional character of the primary sablefish fishery, which has historically consisted of small business owners operating vessels throughout the length of the West Coast.

In 2000, approximately 139 vessels participated in the primary fishery. During the 2000 primary season, 136 people owned sablefish endorsed permits, which meant that some persons owned more than one of the 164 sablefish endorsed permits. As of November 1, 2000, 2 people owned 5 permits, 3 people owned 3 permits, and 14 people owned 2 permits. The Council included several provisions in Amendment 14 intended to prevent a small number of permit owners from controlling access to the primary sablefish fishery.

First, Amendment 14 would allow permit holders to stack no more than three permits on any one vessel. As there are 164 permits with sablefish endorsements, the restriction to no more than three permits per vessel would make the minimum fleet size 55 vessels. Permit transfers must be made through the NMFS Northwest Region Fisheries Permits Office, so the agency will be able to track the number of permits registered for use with each vessel participating in the fishery. This provision would be implemented for the 2001 season through this proposed action.

Second, no person would be allowed to have ownership interest in more than three permits with sablefish endorsements. Both persons owning a whole permit outright and persons owning a portion of a corporation or partnership where the corporation or partnership is the permit-owning entity would be subject to this provision. When the Council finalized Amendment 14, there were some permit owners who already owned more than three permits. People (including partnerships and corporations) who had an ownership interest in more than three permits with sablefish endorsements on November 1, 2000, would not be allowed to accumulate more permits, but neither would they be required to sell their excess permits. NMFS announced this restriction in an Advance Notice of Proposed Rulemaking on April 3, 2001 (66 FR 17681). This “grandfathering” of the privilege to own more than three permits would last only for as long as a permit holder owns the particular permits that he/she owned as of November 1, 2000. This provision would be implemented for the 2001 season in that the Fisheries Permits Office will monitor ownership levels with information that it can obtain from public records. NMFS will collect ownership information on permit-owning partnerships and corporations during the 2002 season.

Third, only individual (human) persons would be allowed to own limited entry permits with sablefish endorsements. Corporations and partnerships that owned permits with sablefish endorsements as of November 1, 2000, could continue to own the permits as corporations and partnerships. Exemptions for a particular corporation or partnership that owned permits on November 1, 2000, would cease with a change in the identity of that corporation or partnership. Amendment 14 requires that permits be owned by individuals to increase the probability that harvest privileges would remain under the ownership of fishers within local fishing communities. Requiring that permits be owned by an individual would not restrict other aspects of the business operation from being organized as a partnership, corporation or other type of legal entity. This provision would be implemented for the 2001 season in that the Fisheries Permits Office would not transfer a permit to a partnership or corporation that did not own a permit as of November 1, 2000. This provision will be fully implemented for the 2002 season by another rule.

Fourth, Amendment 14 would require that permit owners be on board the vessel when the vessel is participating in the primary sablefish fishery. Persons, partnerships or corporations who were owners of permits with sablefish endorsements as of November 1, 2000, would again have the grandfathered privilege to be exempt from this requirement. During the primary fishery, grandfathered permit owners would not have to be on board the vessel during the primary fishery. However, permit owners acquiring permits after November 1, 2000, would be required to be on board the vessel while participating in the primary fishery. This provision is intended to ensure that permits are owned by persons within the fishing community who will fish their permits, rather than leasing them out to others. Like the requirement that permit owners be individual human persons, the owner-on-board requirement is designed to retain the character of the fishery as one populated by small businessmen who work their own vessels, rather than allow absentee owners to control the fishery. Amendment 14 allows NMFS to grant exemptions from the owner-on-board requirement for medical and personal emergencies beyond the control of the permit owner. NMFS does not have time to implement the owner-on-board requirement for the 2001 season. This requirement will be implemented for the 2002 season by another rule.

Under Amendment 14, only the tiered sablefish cumulative limits for the primary fishery would be associated with permits rather than with vessels. This means that a vessel with more than one permit will still be allowed only one cumulative limit per cumulative limit period of any species except sablefish taken in the primary fishery. Vessels participating in the daily trip limit fishery for sablefish will also be subject to a single daily trip limit and a single monthly or two-month cumulative limit per vessel. These provisions are intended to allow the permit stacking program to consolidate some of the effort in the groundfish fishery. A vessel owner who wishes to carry more than one permit on his/her vessel will have to buy or lease a permit from another vessel owner. The vessel owner who sells or leases his permit would be removing his/her vessel from the entire groundfish fishery while the recipient vessel owner will only be able to harvest multiple cumulative limits in the primary sablefish fishery. Thus, permit stacking will result in fewer limited entry vessels participating in groundfish fisheries for species other than sablefish. This provision would be implemented for the 2001 season.

Under Amendment 9 to the FMP, the limited entry sablefish daily trip limit fishery may not occur during either the regular or mop-up seasons that make up the limited entry, fixed gear primary sablefish fishery. This provision was essentially an enforcement measure intended to prevent permit holders without sablefish endorsements from trying to access the larger sablefish cumulative limits associated with the regular and mop-up fisheries. However, the effect of that provision has mainly been to eliminate some of the confusion of having multiple unendorsed vessels on the water during the rapid pace derby. Most enforcement activities occur after the fact, when investigators check landings records and processor receipts to ensure that vessels are landing amounts appropriate to their permits. At-dock enforcement efforts would include checking permits for sablefish endorsements and any suspected forgery would be investigated after the landing.

Restricting unendorsed vessels to participating in the daily trip limit fishery only outside of the regular and mop-up seasons is not overly burdensome when those fisheries together take up 3-4 weeks per year. Under Amendment 14, however, the primary season would be 3 months duration in 2001 and 6 months duration in 2002 and beyond. To ensure that the limited entry daily trip limit fishery could continue throughout the longer primary season, Amendment 14 removed the Amendment 9 prohibition. This change is not expected to significantly affect enforcement practices and will relieve a burden for permit holders wishing to participate in the daily trip limit fishery. This provision would be implemented for the 2001 season.

Amendment 14 would prohibit participants in the primary sablefish fishery from processing their sablefish at sea. A longer sablefish season would give vessels the opportunity to slow their fishing operations and have more time to dress their catch. Many sablefish fishers dress their catch at sea, removing the head and entrails from the sablefish before landing it at processing plants. Most West Coast sablefish is sold frozen in headed-and-gutted form to Japanese markets. Processing a sablefish involves either receiving a whole fish and heading and gutting it or receiving a headed-and-gutted fish, and then further cleaning and bleeding the headed-and-gutted fish. These headed-and-gutted, cleaned fish are glazed with an ice-water wash and then frozen for market. Although processing sablefish that is already headed-and-gutted is not as demanding as processing species that require filleting, processors ensure that West Coast marketed sablefish meets the high standards of Japanese fish buyers.

In prohibiting primary fishery participants from landing processed sablefish, the Council wished to ensure that allowing a longer sablefish primary season would not deprive processing plants of a traditional income opportunity. The Council also wanted to discourage the large longlining catcher-processors that operate off Alaska from entering into the West Coast sablefish fishery. In addition to changing the character of the fishery and eliminating an income opportunity for shore-based processors, allowing at-sea processing could complicate efforts to monitor sablefish landings. A vessel that processes its catch at sea could also sell that fish at sea, which could make enforcement of individual vessel quotas difficult. This prohibition would not preclude a primary fishery participant from processing his/her sablefish catch once that catch has been landed on shore, and then marketing that catch without the aid of a processing plant.

In past primary fisheries, very few vessels have landed fully processed sablefish. Because there are some permit owners that have done so, however, the Council wished to also provide grandfathering privileges to exempt those permit owners from the prohibition on at-sea sablefish processing. Amendment 14 would allow permit owners who can prove that they landed at least 2,000 lb (907 kg) of frozen sablefish in one year of 1998, 1999, or 2000 to continue to land processed or frozen sablefish in future primary fisheries. NMFS does not have enough time to determine a permit owner’s qualification for the grandfathered privilege to land frozen sablefish for the 2001 season. Thus, for 2001, primary fishery vessels would not be prohibited from processing their sablefish catch at sea. This prohibition and the associated grandfathering allowance will be implemented for the 2002 season by another rule.

NMFS is required under Section 304(d)(2) of the Magnuson-Stevens Act to collect fees from participants in an IFQ program to recover the actual costs directly related to the management and enforcement of the program. These fees shall not exceed 3 percent of the ex-vessel value of sablefish harvested under this IFQ program, to be collected as landings fees. NMFS has not yet analyzed the cost of managing and enforcing this program and will be better able to predict this cost with data from the 2001 primary season. This required fee system will be implemented for the 2002 season by another rule.

At this time, NMFS has not determined whether Amendment 14, which this proposed rule would implement, is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period.

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

The Council prepared an initial regulatory flexibility analysis that describes the effect this proposed rule, if adopted, would have on small entities as follows:

This proposed rule would primarily affect the owners of the 164 limited entry permits with sablefish endorsements, with some minor positive effects on the 66 permit holders without sablefish endorsements. These permit holders use longline or pot gear to participate in the limited entry, primary sablefish fishery. Most sablefish endorsed longline vessels are under 50 ft(15.24 m) in length while most sablefish endorsed pot vessels are over 50 ft (15.24 m) in length. While there is a statistical relationship between size of vessel and amount of sablefish harvest, there are smaller sablefish vessels (under 40 ft) (12.192 m) that catch as much and more than larger vessels each year. All of the permit owners and vessels in the Pacific Coast, limited entry, fixed gear fleet are considered small entities under Small Business Administration (SBA) standards.

Amendment 14 would significantly improve the safety of the primary fishery for participating vessels. Under the current management system, the primary fishery is less than 10 days long- a brief and intense fishery. This proposed rule would lengthen the fishery to 3 months duration in 2001 and a rule to be implemented in 2002 would extend the season to 6 months duration for the future. Participants would have the opportunity to fish against their tiered cumulative limits at a more safe and rational pace than in past years. Changes to expenses associated with participating in the fishery could be both positive and negative. Vessel owners would likely hire fewer crew members if they do not have to fish in the same rapid-pace manner. Similarly, participants would have fewer gear costs, because they would not be trying to maximize catch over a brief period. However, if these vessel owners catch their cumulative limits over a longer period of time, they may take more trips to do so and thereby use more fuel to catch the same amount of fish. The major financial benefit to fishery participants would be that they would have more flexibility in deciding where and how to distribute operating expenses.

Permit owners who decide to purchase additional permits to have access to more sablefish within the primary season will have to contend with the initial cost of those additional permits. Some of the permit owners who have not participated in the primary season in past years may decide to sell their permits and will receive compensation for leaving the fishery.

In the past, limited entry permit holders without sablefish endorsements have been prohibited from participating in the daily trip limit fishery during the primary (regular + mop-up) season. Amendment 14 would revise the FMP to allow the daily trip limit fishery to occur during the primary season. This change would relieve a burden for limited entry permit holders without sablefish endorsements and allow them to schedule their sablefish fishing at their convenience.

On the whole, Amendment 14 is expected to bring greater operational safety and more business planning flexibility to the participants in both the primary sablefish fishery and the daily trip limit fishery for sablefish. A copy of the RFA analysis for this action is available from the Council (see ADDRESSES ).