The FAA invites comments on this proposed rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments to the address specified under the caption ADDRESSES. We will consider all comments received on or before the closing date. We may amend this proposed rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of this proposed AD action and determining whether we need to take additional rulemaking action.

The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this proposed rule that might suggest a need to modify the rule. You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each contact we have with the public that concerns the substantive parts of this proposed AD.

If you want FAA to acknowledge the receipt of your comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2001-CE-29-AD.” We will date stamp and mail the postcard back to you.

The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, recently notified FAA that an unsafe condition may exist on all Dornier Model 228-212 airplanes equipped with brake assembly part-number 5009850-1, 5009850-2, 5009850-3, or 5009850-4. The LBA reports one occurrence of failure of the right-hand main landing gear (MLG) brake housing subassembly on one of the above-referenced airplanes. Failure of the brake housing assembly resulted in total loss of braking power.

The brake manufacturer, Aircraft Braking Systems Corporation (ABSC), has developed a modification to the torque take-out cavity of the brake housing assembly. The incorporation of this modification on Dornier Model 228-212 airplanes would prevent surface damage from developing into fatigue damage.

Damage to the brake housing assembly, if not detected and corrected, could result in failure of this assembly. Such failure could result in loss of braking action on landing and possible loss of control of the airplane.

Fairchild/Dornier has issued Dornier 228 Service Bulletin No. SB-228-236, dated January 11, 2001.

ABSC has issued Service Bulletin Do228-212-32-12, dated November 15, 2000, and Service Bulletin Do228-212-32-13, dated December 15, 2000.

The ABSC Service Bulletins include procedures for inspecting and modifying the brake housing assembilies as specified in the Fairchild/Dornier Service Bulletin.

The LBA classified these service bulletins as mandatory and issued German AD Number 2001-164, dated June 14, 2001, in order to ensure the continued airworthiness of these airplanes in Germany.

This airplane model is manufactured in Germany and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement.

Pursuant to this bilateral airworthiness agreement, the LBA has kept FAA informed of the situation described above.

The FAA has examined the findings of the LBA; reviewed all available information, including the service information referenced above; and determined that:

This proposed AD would require you to inspect the brake housing subassembly for cracks, nicks, or corrosion (referred to as damage), replace damaged brake housing assemblies, and modify the torque take-out cavity.

We estimate that this proposed AD affects 1 airplane in the U.S. registry.

We estimate the following costs to accomplish the proposed inspection:

You would not need parts or special equipment to accomplish any necessary repairs after the proposed inspection. The time necessary to accomplish any repairs is included in the inspection labor cost.

We estimate the following costs to accomplish any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need such replacement.

ABSC will provide labor reimbursement for the modification to the torque take-out cavity of the brake housing to the extent noted in Service Bulletin Do228-212-13, dated December 15, 2000.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposed rule would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action has been placed in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

The Indian Gaming Regulatory Act (IGRA, or the Act), enacted on October 17, 1988, established the National Indian Gaming Commission (Commission). Under the Act, the Commission is charged with regulating gaming activities on Indian lands. The Act expressly authorizes the Commission to “promulgate such regulations and guidelines as it deems appropriate to implement provisions of this [Act].” 25 U.S.C. 2706(b)(10).

The regulations proposed today would establish a system to implement the Commission's oversight authority in the areas of environment, public health and safety. The statutory basis for this responsibility is set forth in 25 U.S.C. 2710 (b)(2)(E) which provides that tribal ordinances or resolutions submitted for the Chairman's approval ensure that “the construction and maintenance of the gaming facility, and the operation of that gaming is conducted in a manner which adequately protects the environment and the public health and safety.”

On April 27, 1999, the Commission issued an Advance Notice of Proposed Rulemaking regarding the establishment of environment, public health and safety procedures. After reviewing the information solicited through this notice, the Commission decided to move forward with proposed regulations. In November 1999, a Tribal-Commission Advisory Committee was formed to consult on the project. The Commission attempted to assemble a diverse advisory committee that represented the interests of a broad range of gaming tribal governments. During the period from November 1999 through May 2000, the Commission and the Tribal Advisory Committee met four times to develop a regulatory proposal. The Commission published a Notice of Proposed Rulemaking that appeared in the Federal Register at Volume 65, page 45558, on July 24, 2000. In response to the Federal Register notice, the Commission received a number of helpful comments suggesting changes to the proposed rule. The Tribal-Commission Advisory Committee met after the close of the public comment period to discuss the comments that had been submitted. Upon consideration of the comments submitted, and discussions with the Tribal-Commission Advisory Committee, the Commission decided to revise the proposed rule and republish the revised rule as a proposed rule.

In proposing this regulation, the Commission is aware that tribal governments take steps to ensure that their gaming facilities are constructed, maintained, and operated in a manner, which protects the environment, and public health and safety. The Commission notes, however, that it lacks the appropriate mechanism to carry out this aspect of its oversight responsibilities. The Commission has a duty to design and implement a viable means of determining whether tribal governments are in compliance with requirements of the Act. Moreover, the absence of a clear standard for compliance creates an impediment to effective enforcement for both tribal governments and the Commission.

Under this regulation, tribal government(s) are encouraged to assume the full responsibility for the development and implementation of environment, public health and safety laws, codes, ordinances and resolutions applicable to their gaming operation(s). Compliance with this rule is met through submission of an environment, public health and safety plan (Plan) which sets forth the tribal government's policies and programs for ensuring that its gaming operations do not pose a threat to the environment, public health and safety. Under this regulation, the Plan is to contain the tribal government's policies for the development, implementation, and enforcement of environmental, public health and safety standards for its gaming operation(s) and describe the tribal government's standards, regulatory structure(s), and enforcement program(s) that ensure the environment, public health and safety of its gaming operation(s) are adequately protected. The Plan will cover emergency preparedness, construction, maintenance and operation, drinking water and food, use, storage and disposal of hazardous materials, and sanitation and waste disposal.

The Commission will review the Plans to ensure that they comply with requirements in this rule. Thereafter, the Commission's role in enforcing compliance with this regulation focuses on the tribal government's compliance with its Plan. This approach enables the Commission to carry out its oversight responsibilities without creating a set of unnecessary requirements that may be inconsistent with existing provisions of tribal law or tribal-state gaming compacts or inappropriate to the geographic or other special conditions in a particular area. The Commission's oversight of such Plans will provide an effective mechanism for ensuring that all tribal gaming facilities are constructed, maintained and operated in the manner required under the Act. Therefore, pursuant to 25 U.S.C. 2710 (b)(2)(E), these regulations are being proposed to establish the adequate protection of the environment, public health and safety at Indian gaming operations regulated by the Act.

The Commission 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.). Indian tribal governments are not considered to be small entities for purposes of the Regulatory Flexibility Act.

This proposed rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This proposed rule will not: (1) Result in an annual effect on the economy of $100 million or more; (2) cause a major increase in costs or prices for consumers, individual industries, Federal, State or local government agencies or geographic regions; and (3) have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based companies in domestic and export markets.

The Commission has determined that this proposed rule does not impose an unfunded mandate on State, local or tribal governments or on the private sector of more than $100 million per year. The Commission has determined that this proposed rule may have a unique effect on tribal governments, as this rule applies exclusively to tribal governments, whenever they undertake the ownership, operation, regulation, or licensing of gaming facilities on Indian lands as defined by the Indian Gaming Regulatory Act. Thus, in accordance with section 203 of the Unfunded Mandates Reform Act, the Commission has developed a small government agency plan that provides tribal governments with adequate notice, opportunity for “meaningful” consultation, and information, advice and education on compliance.

The Commission's small government agency plan includes: formation of a tribal advisory committee; discussions with Tribal leaders and tribal associations; preparation of guidance material and model documents; and technical assistance. During the period from November 1999 through May 2000, the Commission and the Tribal Advisory Committee met four times to develop a regulatory proposal. In selecting committee members, consideration was placed on the current level of environmental, public health and safety regulation exercised by the tribal government represented, the applicant's experience in this area, as well as the size of the tribe the nominee represented, geographic location of the gaming operation and the size and type of gaming conducted. The Commission attempted to assemble a committee that incorporates diversity and is representative of Indian gaming interests. Since beginning formulation of this proposed rule, the Commission spoke at three tribal association meetings and held three field consultations with tribal governments. The Commission is in the process of developing guidance materials that will include a model Environment, Public Health and Safety Plan. The Commission will meet with the Tribal Advisory Committee to discuss the public comments that are received as a result of publication of this proposed rule. Lastly, prior to the implementation deadline of this proposed rule, the Commission will hold regional technical assistance workshops.

The Commission is in the process of obtaining clearance from the Office of Management and Budget (OMB) for the information collection requirements contained in this proposed rule, as required by 44 U.S.C. 3501 et. seq. The information required to be submitted is identified in § 580.20-580.30, and will be used to determine compliance with this part.

The public reporting burden for this collection of information is estimated to average 150 hours, to initially prepare an Environmental, Public Health and Safety Plan, including the time for reviewing instructions, gathering and maintaining the data needed, and completing and reviewing the collection of information. The Commission estimates that information needed to maintain the Plan will require an annual burden of 190 hours. It is estimated that an additional 21 hours will be required to prepare, and gather the data needed, and to complete the collection of information necessary to prepare for plan renewal. Plans need to be updated every three years.

Public reporting burden for this collection of information is estimated to average 361 hours per year including the time for initial Plan preparation, monitoring, recordkeeping and Plan renewal preparation. The Commission estimates that approximately 198 tribal governments will need to file an Environmental, Public Health and Safety Plan for an annual burden of 71,478 hours.

Send comments regarding this collection of information, including suggestions for reducing the burden to both, Environment, Public Health and Safety Comments, National Indian Gaming Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005; and to the Office of Information and Regulatory Affair, Office of Management and Budget, Washington, DC 20503. The Office of Management and Budget (OMB) has up to 60 days to approve or disapprove the information collection, but may respond after 30 days; therefore public comments should be submitted to OMB within 30 days in order to assure their maximum consideration.

The Commission solicits public comment as to:

a. Whether the collection of information is necessary for the proper performance of the functions of the Commission, and whether the information will have practical utility;

b. The accuracy of the Commission's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

c. The quality, utility, and clarity of the information to be collected; and

d. How to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated electronic, mechanical, or other forms of information technology.

An agency may not conduct, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

The Commission has determined that this proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et. seq).

The Commission has determined that this proposed rule does not have significant “takings” implications. Thus, a takings implications assessment is not required.

The Commission has determined that this proposed rule does not have significant Federalism effects because it pertains solely to Federal-tribal relations and will not interfere with the roles, rights and responsibilities of States.

In accordance with Executive Order 12988, the Commission has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

For the reasons stated in the preamble, the National Indian Gaming Commission proposes to amend 25 CFR by adding a new part 580 as follows:

For further information on this action, pertaining to the approval of Delaware's regulations for hazardous air pollutant general provisions and hazardous air pollutant emission standards for perchloroethylene dry cleaning facilities, hard and decorative chromium electroplating and chromium anodizing tanks, and industrial process cooling towers (CAA section 112), 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.

This section provides additional information by addressing the following questions:

The CAA Amendments of 1990 required all state and local permitting authorities to develop operating permit programs that met certain federal criteria. In implementing the operating permit programs, the permitting authorities require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. The focus of the operating permit program is to improve compliance by issuing each source a permit that consolidates all of the applicable CAA requirements into a federally enforceable document. By consolidating all of the applicable requirements for a facility, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.

Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the CAA or in EPA's implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain permits. Examples of major sources include those that have the potential to emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen oxides ( NOX), or particulate matter (PM10); those that emit 10 tons per year of any single hazardous air pollutant (specifically listed under the CAA); or those that emit 25 tons per year or more of a combination of hazardous air pollutants (HAPs). In areas that are not meeting the national ambient air quality standards for ozone, carbon monoxide, or particulate matter, major sources are defined by the gravity of the nonattainment classification. For example, in ozone nonattainment areas classified as “serious,” major sources include those with the potential of emitting 50 tons per year or more of volatile organic compounds or nitrogen oxides.

Because the operating permit program originally submitted by ADEQ substantially, but not fully, met the criteria outlined in the implementing regulations codified at 40 Code of Federal Regulations (CFR) part 70, EPA granted interim approval to the program in a rulemaking published on October 30, 1996 (61 FR 55910). The interim approval notice described the conditions that had to be met in order for the ADEQ program to receive full approval. Today's Federal Register notice describes the changes ADEQ has made to its operating permit program to correct conditions and obtain full approval.

EPA is proposing full approval of the operating permits program submitted by ADEQ based on the revisions submitted on August 11, 1998, May 9, 2001, and September 7, 2001. These revisions satisfactorily address the program deficiencies identified in EPA's October 30, 1996 rulemaking. See 61 FR 55910. EPA is also proposing to approve, as a title V operating permit program revision, additional changes to the rules that have been made since ADEQ was granted interim approval. The interim approval issues, ADEQ's corrections, and the additional changes are described below under the section entitled, “What are the program changes that EPA is approving?'

In its October 30, 1996 rulemaking, EPA made full approval of ADEQ's operating permit programs contingent upon the correction of a number of interim approval issues. Each issue, along with the State's correction, is described below.

1. Rule deficiency: AAC R18-2-101(61)(b) (part of the definition of “major source”) did not clearly require that fugitive emissions of HAPs be included when determining a source's potential to emit. In order to correct the deficiency, the definition needed to be revised so that it would be clear that fugitive emissions of HAPs must be considered in determining whether the source is major for purposes of both the 10 ton per year and 25 ton per year HAP major source thresholds. See 40 CFR 70.2.

Rule change: The definition of major source has been revised to correct the deficiency. It now defines a major source under section 112 of the CAA to include, “for pollutants other than radionuclides, any stationary source that emits, or has the potential to emit, in the aggregate and including fugitive emissions, 10 tons per year or more of any hazardous air pollutant which has been listed pursuant to section 112(b) of the CAA, 25 tons per year of any combination of such hazardous air pollutants * * *.” (Emphasis added.)

2. Rule deficiency: EPA found that ADEQ's regulations regarding the application content and permit issuance requirements for previously minor sources that were applying for title V status to be somewhat unclear. In order to correct this problem, EPA required that the State revise AAC R18 to clarify that, when an existing source obtains a significant permit revision to revise its permit from a Class II permit to a Class I permit, the entire permit, and not just the portion being revised, must be issued in accordance with part 70 permit application, content, and issuance requirements, including requirements for public, affected state, and EPA review. See 40 CFR 70.7.

Rule changes: R18-2-320(E) and R18-2-304(E)(1) have been revised to address the interim approval issue. These provisions now clearly require that a previously minor source that is obtaining a title V permit must submit a full title V permit application and undergo full public, EPA and affected state review.

3. Rule deficiency: Section 70.6(a)(8) requires that title V permits contain a provision that “no permit revision shall be required under any approved economic incentives, marketable permits, emissions trading and other similar programs or processes for changes that are provided for in the permit.” AAC R18-2-306(A)(10) included this exact provision but also included a sentence that negated this provision. EPA required that ADEQ either delete or revise the negating sentence to make the rule consistent with part 70.

Rule change: The problematic sentence has been deleted from the State's rule.

4. Rule deficiency: Section 70.4(b)(12) allows sources to make changes within a permitted facility without requiring a permit revision, if the changes are not modifications under any provision of title I of the Act and the changes do not exceed the emissions allowable under the permit. The State's rules provided for such permit conditions but did not restrict the allowable changes to those that are not modifications under title I of the Act and those that do not exceed the emissions allowable under the permit. ADEQ was required revise AAC R18-2-306(A)(14) to add these conditions.

Rule change: AAC R18-2-306(A)(14) now includes the following language: “Changes made under this paragraph (14) shall not include modification under any provision of Title I of the Act and may not exceed emissions allowable under the permit.”

5. Rule deficiency: Pursuant to 70.6(g), operating permit programs may only provide for an affirmative defense to actions brought for noncompliance with technology-based emission limits when such noncompliance is due to an emergency situation. In its original title V program submittal, ADEQ included AAC R18-2-310, which established an affirmative defense that was broader than that allowed under part 70. ADEQ was required to modify its program to make it consistent with the section 70.6(g) provision for an emergency affirmative defense.

Rule change: ADEQ has submitted a program revision that, when approved by EPA, will remove R18-2-310 from the State's title V program.

6. Rule deficiency: In order to ensure that material permit conditions can be contained in permits issued by the county control officers as well as the Director of ADEQ, EPA required that ADEQ revise AAC R18-2-331(A)(1) to provide under the definition of “material permit condition” that “the condition is in a permit or permit revision issued by the Director or the Control Officer * * *.”

Rule change: The Rule has been modified as required.

The rules the State has submitted for EPA approval incorporate changes other than those necessary to correct interim approval deficiencies. In this action, EPA is also proposing to approve those additional program changes made by ADEQ since the interim approval was granted. We have evaluated the additional changes and, with one exception that is described in detail below, find that they are consistent with part 70. We are including the additional changes in our proposed approval.

Paragraph (c) of ADEQ's definition of major source (R18-2-101(64)) lists source categories that must count fugitives. Subparagraph xxvii has been modified to read: “All other stationary source categories regulated by a standard promulgated as of August 7, 1980 under section 111 or 112 of the Act, but only with respect to those air pollutants that have been regulated for that category.” Emphasis added. The addition of this 1980 cutoff date restricts the types of sources that are required to count fugitives towards the major source threshold. This is inconsistent with part 70 and is not currently approvable. EPA has, however, proposed a revision to the major source definition that will incorporate the 1980 cutoff date. We are therefore proposing to approve the State's definition of major source provided that EPA finalizes revisions to the part 70 program that will make the change approvable. Alternatively, if EPA does not finalize the changes to part 70 described above, ADEQ's major source definition will conflict with the operative version of part 70 and we will be unable to approve it. The remedy to one of ADEQ's interim approval issues resides within that same definition, so if we are barred from approving ADEQ's new major source definition because of the 1980 date, we will be unable to grant full approval to ADEQ's title V program. As a result, ADEQ would lose its authority to implement its title V operating permits program on December 1, 2001, and part 71 would be in effect.

ADEQ made a number of additional changes to the rules that implement their part 70 program, many of which were non-substantive (e.g., recodifications) or irrelevant (e.g., changes to requirements applying to non-title V sources). A general description of the more substantive changes follows. For more detail on the all of the changes, refer to the technical support document.

Several provisions implementing the compliance assurance monitoring requirements of 40 CFR part 64 have been added to ADEQ's rules. Additional changes were made to expand application processing requirements and permit content provisions to cover voluntarily accepted emission limitations. The rules have also been modified to specify that noncompliance with any federally enforceable requirement is a violation of the Clean Air Act and to designate terms and conditions that are voluntarily entered into as federally enforceable.

ADEQ has adopted and submitted rule changes and requested program revisions that address the issues identified in EPA's interim approval and are described above. The rules proposed for approval today listed in Table 1.

In addition to proposing to approve the rules listed in Table 1, EPA is also proposing to approve the removal of R18-2-310, Excess Emissions, from the State's title V program.

As noted above, ADEQ has adopted and submitted the required changes and has fulfilled the conditions of the interim approval granted on October 30, 1996 (61 FR 55910). EPA is therefore proposing full approval of the ADEQ operating permit program, contingent on EPA finalizing its proposed change to the part 70 definition of major source.

On May 22, 2000, EPA promulgated a rulemaking that extended the interim approval period of 86 operating permits programs until December 1, 2001. (65 FR 32035) The action was subsequently challenged by the Sierra Club and the New York Public Interest Research Group (NYPIRG). In settling the litigation, EPA agreed to publish a notice in the Federal Register that would alert the public that they may identify and bring to EPA's attention alleged programmatic and/or implementation deficiencies in title V programs and that EPA would respond to their allegations within specified time periods if the comments were made within 90 days of publication of the Federal Register notice.

One citizen's group commented on what it believes to be deficiencies with respect to ADEQ's title V program. EPA takes no action on those comments in today's action and will respond to them by December 1, 2001. As stated in the Federal Register notice published on December 11, 2000, (65 FR 77376) EPA will respond by December 1, 2001 to timely public comments on programs that have obtained interim approval, and EPA will respond by April 1, 2002 to timely comments on fully approved programs. We will publish a notice of deficiency (NOD) when we determine that a deficiency exists, or we will notify the commenter in writing to explain our reasons for not making a finding of deficiency. An NOD will not necessarily be limited to deficiencies identified by citizens and may include any deficiencies that we have identified through our program oversight.

EPA requests comments on the program revisions discussed in this proposed action. Copies of the ADEQ submittals and other supporting documentation used in developing the proposed full approval are contained in docket files maintained at the EPA Region 9 office. The docket is an organized and complete file of all the information submitted to, or otherwise considered by, EPA in the development of this proposed full approval. The primary purposes of the docket are: (1) To allow interested parties a means to identify and locate documents so that they can effectively participate in the approval process, and (2) to serve as the record in case of judicial review. EPA will consider any comments received in writing by November 1, 2001.

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities because it merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) because it proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duties beyond that required by state law. This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). The rule merely proposes to approve existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) or Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001), because it is not a significantly regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. 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.

In reviewing State operating permit programs submitted pursuant to Title V of the Clean Air Act, EPA will approve State programs provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program, to use VCS in place of a State program that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) in CC Docket No. 01-175, FCC 01-261, adopted September 13, 2001, and released September 14, 2001. The complete text of this Notice of Proposed Rulemaking is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com. It is also available on the Commission's website at http://www.fcc.gov.

1. Under § 64.1903 of the Commission's rules, incumbent independent local exchange carriers (LECs) providing facilities-based, in-region, interexchange service must do so through a separate corporate affiliate. In this document the Commission invites interested parties to comment on whether application of the separate affiliate requirement for incumbent independent LECs continues to serve the public interest. The Commission first asks a series of questions intended to elicit information regarding the number of incumbent independent LECs providing in-region, interexchange service on either a facilities or resale basis. In addition, the Commission asks for comment on whether or not the benefits of this separate affiliate requirement outweigh the regulatory and economic costs involved. Finally, the Commission seeks comment on possible alternative safeguards, including proposals for applying the separate affiliate requirement to a more limited category of incumbent independent LECs.

2. As required by the Regulatory Flexibility Act (RFA), as amended,1 the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the expected economic impact on small entities by the policies and rules proposed in this NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

3. In this NPRM, the Commission seeks comment on whether or not the benefits of its separate affiliate requirement for in-region interexchange service provided by incumbent independent LECs continues to outweigh the costs and whether or not there are alternative safeguards that are as effective but impose fewer regulatory costs.2

4. The legal basis for any action that may be taken pursuant to the NPRM is contained in sections 4, 201-202, 303 and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154, 201-202, 303, and 403, and sections 1.1, 1.411, and 1.412 of the Commission's rules, 47 CFR 1.1, 1.411, and 1.412.

5. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by any rules.3 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 4 For the purposes of this order, the RFA defines a “small business” to be the same as a “small business concern” under the Small Business Act, 15 U.S.C. 632, unless the Commission has developed one or more definitions that are appropriate to its activities.5 Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the Small Business Administration (SBA).6 Consistent with the SBA's Office of Advocacy's view, the Commission has included small incumbent LECs in this RFA analysis. The Commission emphasizes, however, that this RFA action has no effect on the its analyses and determinations in other, non-RFA contexts.

6. Local Exchange Carriers. The most reliable source of information regarding the number of LECs nationwide appears to be the data that the Commission collects annually in connection with the Telecommunications Relay Service (TRS).7 According to our most recent data, there are 1,335 incumbent LECs.8 Although some of these carriers may not be independently owned and operated, or have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of LECs that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are less than 1,335 small entity incumbent LECs that may be affected by the proposals in the NPRM.

7. The Commission expects that any proposal it may adopt pursuant this NPRM will decrease existing reporting, recordkeeping or other compliance requirements.

8. The overall objective of this proceeding is to reduce existing regulatory burdens on small carriers to the extent consistent with the public interest.

9. None.

10. Pursuant to the authority contained in sections 2, 4(i)-4(j), 201, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 152, 154(i)-4(j), 201, 303(r), this NPRM is adopted.

11. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this NPRM, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a summary of the Commission's Second Further Notice of Proposed Rulemaking (Second Further Notice) in CC Docket Nos. 96-115 and 96-149, FCC 01-247, adopted August 28, 2001, and released September 7, 2001. The complete text of this Second Further Notice of Proposed Rulemaking is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com. It is also available on the Commission's website at http://www.fcc.gov.

1. In this document, the Commission seeks comment on the responsibilities of carriers in obtaining consent from customers for the use of CPNI and, specifically, on whether we should adopt opt-in or opt-out consent under section 222(c)(1). Pending the resolution by the Commission of the particular method of consent, the Commission offers in this document guidance to parties on how to obtain consent during this interim period. If carriers should choose to obtain customer approval by means of an opt-out approach, such carriers will need to provide customers with notification consistent with § 64.2007(f). Moreover, if a carrier has already provided a customer with notification premised upon an opt-in mechanism, the carrier, should it so choose, may continue to rely upon such notice.

2. The Commission notes that our current rules do not provide for any time period after which a customer's implicit approval of the use or sharing of CPNI may be reasonably assumed to have been given to the carrier. The Commission will consider that question in the Second Further Notice. In the interim, however, we expect that carriers shall not use the CPNI based on “implicit approval” (through opt-out) until customers have been afforded some reasonable period to respond to the notification. Pending resolution of the FNPRM, we will use a 30-day period from customer receipt of notice as a “safe harbor,” but may permit some shorter period if supported by an adequate explanation from the carrier.

3. In this Second Further Notice, the Commission seeks to obtain a more complete record on ways in which customers can consent to a carrier's use of their CPNI. Taking into account the Tenth Circuit's opinion, the Commission seeks comment on what methods of approval would serve the governmental interests at issue, and afford informed consent, while also satisfying the constitutional requirement that any restrictions on speech be narrowly tailored. Specifically, the Commission seeks comment on the interests and policies underlying section 222 that are relevant to formulating an approval requirement, including an analysis of the privacy interests that are at issue, and on the extent to which we should take competitive concerns into account. To the extent that competition, in addition to privacy, is a legitimate government interest under section 222, the Commission seeks comment on the likely difference in competitive harms under opt-in and opt-out approvals. The Commission seeks comment on whether it is possible for the Commission to implement a flexible opt-in approach that does not run afoul of the First Amendment, or whether opt-out approval is the only means of addressing the constitutional concerns expressed by the 10th Circuit.

4. At the outset, the Commission also asks parties to comment on the scope of the Tenth Circuit's opinion. If the Commission were to conclude that the court vacated additional requirements, which it does not believe that it did, the Commission asks parties to comment on whether it would affect our overall findings regarding “approval of the customer” in section 222(c)(1). Would the Commission need to re-examine our interpretation of “approval” as it relates to the uses for which a carrier may use CPNI without customer approval, including to market customer premises equipment and information services, and to use CPNI to market to customers who have switched to another carrier?

5. In the CPNI Order (63 FR 20326, April 24, 1998) the Commission addressed specifically the requirement that a carrier obtain “approval of the customer” for use of CPNI outside the telecommunications service from which it was derived. In light of those statutory objectives, it further concluded that carriers must obtain express written, oral, or electronic approval by a customer to use a customer's CPNI beyond the existing service relationship. The Commission rejected an opt-out regime, under which a carrier could use CPNI beyond the existing service relationship as long as it has made a request to a customer for permission to use CPNI in that manner and the customer had not expressly objected to such use. Because the Tenth Circuit found that the opt-in requirements were not narrowly tailored to promote the government's asserted interests in protecting privacy and promoting competition, we initiate this proceeding to obtain a more complete record on consent mechanisms, and the Commission urges commenters to focus upon the concerns articulated by the court. In addition, the Commission asks parties to comment on whether there are any other laws or regulatory schemes governing matters similar to CPNI that the Commission might use as an analog.

6. The Commission seeks comment on the interests and policies underlying section 222 that are relevant to formulating an approval requirement to implement section 222(c)(1). In the CPNI Order, the Commission articulated two governmental interests: Protection of customer privacy and promotion of competition. The court indicated that “[w]hile, in the abstract, these may constitute legitimate and substantial interests, we have concerns about the proffered justifications in the context of this case.” Commenters should also discuss, with as much specificity as possible, how a carrier's use of CPNI could erode privacy. The Tenth Circuit recognized that “disclosure of CPNI information could prove embarrassing to some,” but beyond that was uncertain about the government's privacy interest. The Commission seeks comment on that aspect of the court's analysis and ask what other privacy concerns may be implicated by access to CPNI.

7. The court also said that it “would prefer to see a more empirical explanation and justification for the government's asserted interest [in privacy].” The Commission seeks comments responsive to the court's concern. The court was not persuaded that competition was a legitimate or substantial state interest underlying section 222. The Commission seeks comments that address those reservations, and on the extent to which competitive concerns should be taken into account in our interpretation of the approval requirements under section 222(c)(1). The Commission further seeks comment about the potential competitive ramifications of construing section 222 without regard to competitive issues, and how such a construction might affect the competitive goals of the 1996 Act. The Commission seeks comment on the likely difference in competitive effects under opt-in and opt-out approvals. It requests empirical or other evidence to illustrate the competitive advantages, if any, that opt-out approval affords a carrier. The Commission asks whether, and to what extent, any such competitive advantages may undermine the goals of section 222 or, more generally, the goals of the 1996 Act.

8. The Commission seeks comment on any potential harms that may arise from adopting either an opt-out or opt-in approach. The Commission inquires to whom a carrier might make CPNI available, and seeks comments about the extent to which such dissemination would affect customer privacy interests. The Commission asks parties to address the relative costs and convenience of CPNI use under both opt-in and opt-out approaches. Finally, the Commission seeks comment on the court's statement that opt-out is a “substantially less restrictive alternative.” The Commission seeks comment more broadly on what methods of approval would serve the governmental interests at issue, and afford informed consent, while also satisfying the constitutional requirement that any restrictions on speech be narrowly tailored.

9. The Commission seeks comment on whether adoption of an opt-out mechanism is consistent with the rationale for the total service approach set forth in the CPNI Order. If the Commission adopts an opt-out approach such that a carrier need not obtain the customer's affirmative approval to market services not already subscribed to by the customer, is it necessary or appropriate for us to adopt an alternative to the total service approach? In particular, would there be an impact on the competitive goals of the Act if adoption of an opt-out mechanism increased the likelihood of customer approval for the use of CPNI to market services not already subscribed to by the customer? Alternatively, would adoption of an opt-out mechanism achieve the appropriate balance among the interests of privacy, competition, equity, and efficiency?

10. Finally, the Commission notes that in the Wireless Communications and Public Safety Act of 1999 (911 Act), Congress amended section 222 of the Communications Act by adding provisions regarding CPNI. The amendments were enacted as incentives for greater deployment of wireless E911 services. The new CPNI provisions are intended to encourage that objective by providing separate provisions to protect certain wireless location information, and by expressly authorizing carriers to release this information to specified third parties for specified emergency purposes. The Commission seeks comment on what affect, if any, the provisions of section 222(f) have on our interpretation of the provisions of section 222(c)(1) and the customer approval requirements that are under consideration here.

11. The Commission also seeks comment on whether modifications should be made to the current notification requirements in our rules so that they are most effective in ensuring that customers are clearly informed of their rights, and on how carriers should manage later requests for privacy from the customer. In sum, the Commission seeks comment on all of these approval and notification approaches as well as any other options for ensuring that customers receive adequate notification of their rights under section 222 of the Act.

12. On October 8, 1999, AT&T filed a petition for review of the CPNI Order with the U.S. Circuit Court of Appeals for the District of Columbia, challenging the Commission's CPNI decisions as they relate to the interplay between section 222 and section 272 of the Communications Act. On July 25, 2000, the D.C. Circuit granted the Commission's motion for remand of the AT&T appeal. The consent mechanism that the Commission eventually adopts in response to the Tenth Circuit's Order could impact our previous findings regarding the interplay between these two sections, and we therefore find it necessary to raise the relevant issues here. The Commission's finding in the CPNI Order, which we affirmed in the CPNI Reconsideration Order (64 FR 53242, October 1, 1999), that the term “information” in section 272(c)(1) does not include CPNI remains intact. Specifically, section 272(c)(1) states that a Bell Operating Company (BOC), in its dealing with its section 272 separate affiliate, “may not discriminate between the company or affiliate and any other entity in the provision or procurement of goods, services, facilities, and information, or in the establishment of standards * * *” The Commission found that in the context of the entire 1996 Act, it is not readily apparent that the meaning of “information” in section 272 necessarily includes CPNI, and that the most reasonable interpretation of the interplay between sections 222 and 272 is that section 272 “does not impose any additional CPNI requirements on BOCs' sharing of CPNI with their section 272 affiliates when they share information with their section 272 affiliates according to the requirements of section 222.” The Commission found this to be reasonable because if we deemed “information” to include CPNI under section 272(c)(1), then the BOCs would be unable to share CPNI with their affiliates to the extent contemplated by section 222, but would instead be subject to the more affirmative nondiscrimination requirements in section 272. Adhering to these requirements would mean that BOCs could share CPNI among their section 272 affiliates only pursuant to express approval, and CPNI sharing under section 222(c)(1)(A) (based on implied approval under the total service approach) would be precluded.

13. More specifically, under the terms of section 272, the Commission found that the nondiscrimination requirements contained in that section would, in the context of an opt-in approach, “pose a potentially insurmountable burden because a BOC soliciting approval to share CPNI with its affiliate would have to solicit approval for countless other carriers as well, known or unknown.” Although this was only one of several reasons supporting the Commission's interpretation of the interplay between sections 222 and 272, it would likely have to revisit this conclusion if we adopt an opt-out approach as a final rule. Under an opt-out approach, however, a BOC may be free to share its local customer's CPNI with its long distance affiliate regardless of whether the local customer has chosen the affiliate as his or her long distance service provider. The Commission is concerned about the possible competitive and customer privacy ramifications of such an interpretation, and seeks comment on whether it should revisit its interpretation of the interplay between sections 222 and 272 if the Commission adopts an opt-out approach. In particular, would the Commission have to alter its fundamental conclusion that BOCs may share CPNI with their section 272 affiliates pursuant to section 222 without regard to the nondiscrimination requirements in section 272?

14. As required by the Regulatory Flexibility Act (RFA), as amended,1 the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the expected significant economic impact on small entities by the policies and rules proposed in this Second Further Notice of Proposed Rulemaking (Second Further Notice). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Second Further Notice. The Commission will send a copy of the Second Further Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. 603(a). In addition, the Second Further Notice and IRFA (or summaries thereof) will be published in the Federal Register.

15. The Commission is issuing the Second Further Notice to seek comment on an appropriate method by which carriers must secure their customers' consent to use the customer's CPNI. This is necessary to respond to the Tenth Circuit's decision vacating the opt-in consent method. Under the opt-in method, a carrier was required to notify the customer of his or her rights with regard to CPNI and then obtain express written, oral or electronic customer approval before the carrier may use CPNI to market services to the customer that are outside the existing service relationship that the customer has with the carrier. The opt-in method is distinguished from the opt-out method under which approval to use the customer's CPNI is inferred from the customer-carrier relationship unless the customer requests specifically that his or her CPNI be restricted.

16. The Tenth Circuit concluded that although the Commission had asserted that the opt-in method would protect consumer privacy and promote competition for telecommunications services in accordance with the goals of section 222 of the Act,2 it did not demonstrate that opt-in directly and materially advanced these interests. The court concluded that the Commission's determination that an opt-in requirement would best protect a consumer's privacy interests was not narrowly tailored because the Commission had failed to adequately consider an opt-out option. The court stated that an opt-out option should have been more fully investigated as it is inherently less restrictive of speech. Further, the court ruled the Commission did not adequately show that an opt-out strategy would not offer sufficient protection of consumer privacy.3 In vacating portions of the CPNI Order, the court did not require the Commission to find specifically that the opt-out option was the correct approach. Instead, it found fault with the Commission's “inadequate consideration of the approval mechanism alternatives in light of the First Amendment.” 4

17. Taking into account the Tenth Circuit's concerns, we seek comment in the Second Further Notice on several significant issues concerning what methods of approval would serve the governmental interests at issue under section 222 of the Act, and afford informed consent, while also satisfying the constitutional requirement that any restrictions on speech be narrowly tailored. We seek comment specifically on the extent to which an opt-in or opt-out method of customer approval would be consistent with both the court's concerns and section 222, and on whether we should make modification to our customer notification requirements in § 64.7002 of our rules, 47 CFR 64.7002, based on the form of approval that we adopt.5

18. We also ask for information on any potential harms to business entities, especially smaller business entities within the class of companies directly affected by the proposed rule, that may arise from adopting either an opt-in or opt-out approach, including the extent to which dissemination of CPNI would affect a customer's privacy.6 We also ask for comment on how we can ensure that the consent approach we adopt balances the interests of privacy, competition, equity and efficiency.7

19. In addition, we ask parties to indicate whether or not adoption of an opt-out mechanism undermines the total service approach. The total service approach is not a consent mechanism like the opt-in or opt-out approach, but instead describes the scope of services for which a customer grants his or her consent for the carrier to use CPNI. Specifically, under the total service approach, the customer's implied approval is limited to the parameters of the customer's existing service, while the customer must grant the carrier affirmative approval in order for the carrier to use the customer's CPNI to market other services to the customer. If a carrier need not obtain the customer's affirmative approval to market services not already subscribed to by the customer, is it necessary or appropriate for us to adopt an alternative to the total service approach.8

20. The Second Further Notice is adopted pursuant to sections 1, 4(i), 222, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 222, and 303(r).

21. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by our rules.9 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 10 For the purposes of this order, the RFA defines a “small business” to be the same as a “small business concern” under the Small Business Act, 15 U.S.C. s 632, unless the Commission has developed one or more definitions that are appropriate to its activities.11 Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the Small Business Administration (SBA).12 The SBA has defined a small business for Standard Industrial Classification (SIC) categories 4812 (Radiotelephone Communications) and 4813 (Telephone Communications, Except Radiotelephone) to be small entities when they have no more than 1,500 employees.13 We first discuss generally the total number of small telephone companies falling within both of those SIC categories. Then, we discuss the number of small businesses within the two subcategories, and attempt to refine further those estimates to correspond with the categories of telephone companies that are commonly used under our rules.

22. Although affected incumbent local exchange carriers (ILECs) may have no more than 1,500 employees, we do not believe that such entities should be considered small entities within the meaning of the RFA because they either are dominant in their field of operations or are not independently owned and operated, and are therefore by definition not “small entities” or “small business concerns” under the RFA. Accordingly, our use of the terms “small entities” and “small businesses” does not encompass small ILECs. Out of an abundance of caution, however, for regulatory flexibility analysis purposes, we will separately consider small ILECs within this analysis and use the term “small ILECs” to refer to any ILECs that arguably might be defined by SBA as “small business concerns.” 14

23. Total Number of Telephone Companies Affected. The United States Bureau of the Census (the Census Bureau) reports that at the end of 1992, there were 3,497 firms engaged in providing telephone services, as defined therein, for at least one year.15 This number contains a variety of different categories of carriers, including local exchange carriers, interexchange carriers, competitive access providers, cellular carriers, mobile service carriers, operator service providers, pay telephone operators, PCS providers, covered SMR providers, and resellers. It seems certain that some of those 3,497 telephone service firms may not qualify as small entities because they are not “independently owned and operated.” 16 For example, a PCS provider that is affiliated with an interexchange carrier having more than 1,500 employees would not meet the definition of a small business. It seems reasonable to conclude, therefore, that fewer than 3,497 telephone service firms are either small entities or small incumbent LECs that may be affected by this order.

24. Wireline Carriers and Service Providers. The SBA has developed a definition of small entities for telephone communications companies other than radiotelephone (wireless) companies. The Census Bureau reports there were 2,321 such telephone companies in operation for at least one year at the end of 1992.17 According to the SBA's definition, a small business telephone company other than a radiotelephone company is one employing fewer than 1,500 persons.18 All but 26 of the 2,321 non-radiotelephone companies listed by the Census Bureau were reported to have fewer than 1,000 employees. Thus, even if all 26 of those companies had more than 1,500 employees, there would still be 2,295 non-radiotelephone companies that might qualify as small entities or small incumbent LECs. Although it seems certain that some of these carriers are not independently owned and operated, we are unable at this time to estimate with greater precision the number of wireline carriers and service providers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that fewer than 2,295 small entity telephone communications companies other than radiotelephone companies are small entities or small ILECs that may be affected by this order.

25. Local Exchange Carriers. Neither the Commission nor the SBA has developed a definition of small providers of local exchange services. The closest applicable definition under the SBA's rules is for telephone communications companies other than radiotelephone (wireless) companies. The most reliable source of information regarding the number of LECs nationwide of which we are aware appears to be the data that we collect annually in connection with the Telecommunications Relay Service (TRS).19 According to our most recent data, there are 1,335 incumbent LECs, 349 competitive LECs, and 87 resellers.20 Although it seems certain that some of these carriers are not independently owned and operated, or have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of LECs that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are fewer than 1,335 small entity incumbent LECs, 349 competitive LECs, and 87 resellers that may be affected by the proposals in the Second Further Notice.

26. Interexchange Carriers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to providers of interexchange services (IXCs). The closest applicable definition under the SBA's rules is for telephone communications companies other than radiotelephone (wireless) companies. The most reliable source of information regarding the number of IXCs nationwide of which we are aware appears to be the data that we collect annually in connection with TRS. According to our most recent data, 204 companies reported that they were engaged in the provision of interexchange services.21 Although it seems certain that some of these carriers are not independently owned and operated, or have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of IXCs that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are fewer than 204 small entity IXCs that may be affected by this order.

27. Competitive Access Providers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to providers of competitive access services (CAPs). The closest applicable definition under the SBA's rules is for telephone communications companies other than radiotelephone (wireless) companies. The most reliable source of information regarding the number of CAPs nationwide of which we are aware appears to be the data that we collect annually in connection with the TRS. According to our most recent data, 349 companies reported that they were engaged in the provision of either competitive access services or competitive local exchange service.22 Although it seems certain that some of these carriers are not independently owned and operated, or have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of CAPs that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are fewer than 349 small entity CAPs that may be affected by this order.

28. Operator Service Providers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to providers of operator services. The closest applicable definition under the SBA's rules is for telephone communications companies other than radiotelephone (wireless) companies. The most reliable source of information regarding the number of operator service providers nationwide of which we are aware appears to be the data that we collect annually in connection with the TRS. According to our most recent data, 21 companies reported that they were engaged in the provision of operator services.23 Although it seems certain that some of these companies are not independently owned and operated, or have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of operator service providers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are fewer than 21 small entity operator service providers that may be affected by this order.

29. Pay Telephone Operators. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to pay telephone operators. The closest applicable definition under the SBA's rules is for telephone communications companies other than radiotelephone (wireless) companies. The most reliable source of information regarding the number of pay telephone operators nationwide of which we are aware appears to be the data that we collect annually in connection with the TRS. According to our most recent data, 758 companies reported that they were engaged in the provision of pay telephone services.24 Although it seems certain that some of these carriers are not independently owned and operated, or have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of pay telephone operators that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are fewer than 758 small entity pay telephone operators that may be affected by this order.

30. Wireless Carriers. The SBA has developed a definition of small entities for radiotelephone (wireless) companies. The Census Bureau reports that there were 1,176 such companies in operation for at least one year at the end of 1992.25 According to the SBA's definition, a small business radiotelephone company is one employing no more than 1,500 persons.26 The Census Bureau also reported that 1,164 of those radiotelephone companies had fewer than 1,000 employees. Thus, even if all of the remaining 12 companies had more than 1,500 employees, there would still be 1,164 radiotelephone companies that might qualify as small entities if they are independently owned are operated. Although it seems certain that some of these carriers are not independently owned and operated, we are unable at this time to estimate with greater precision the number of radiotelephone carriers and service providers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are fewer than 1,164 small entity radiotelephone companies that may be affected by this order.

31. Cellular Service and Mobile Service Carriers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to providers of cellular services. The closest applicable definition under the SBA's rules is for telephone communications companies other than radiotelephone (wireless) companies. The most reliable source of information regarding the number of cellular service carriers nationwide of which we are aware appears to be the data that we collect annually in connection with the TRS. According to our most recent data, 806 companies reported that they were engaged in the provision of cellular services.27 Although it seems certain that some of these carriers are not independently owned and operated, or have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of cellular service and mobile service carriers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are fewer than 804 small entity cellular service carriers that may be affected by this order.

32. Broadband PCS Licensees. The broadband PCS spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years.28 For Block F, an additional classification for “very small business” was added, and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years.29 These regulations defining “small entity” in the context of broadband PCS auctions have been approved by SBA.30 No small businesses within the SBA-approved definition bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders won approximately 40% of the 1,479 licenses for Blocks D, E, and F. Based on this information, we estimate that the number of small broadband PCS licenses will include the 90 winning C Block bidders and the 93 qualifying bidders in the D, E, and F blocks, for a total of 183 small PCS providers as defined by SBA and the Commissioner's auction rules.

33. SMR Licensees. Pursuant to 47 CFR 90.814(b)(1), the Commission has defined “small entity” in auctions for geographic area 800 MHz and 900 MHz SMR licenses as a firm that had average annual gross revenues of less than $15 million in the three previous calendar years. The definition of a “small entity” in the context of 800 and 900 MHz SMR has been approved by the SBA. The proposed rules may apply to SMR providers in the 800 MHz and 900 MHz bands that either hold geographic area licenses or have obtained extended implementation authorizations. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of less than $15 million. Consequently, we estimate, for purposes of this IRFA, that all of the extended implementation authorizations may be held by small entities, some of which may be affected by the rules proposed in the Notice.

34. The Commission recently held auctions for geographic area licenses in the 900 MHz SMR band. There were 60 winning bidders who qualified as small entities in the 900 MHz auction. Based on this information, we estimate that the number of geographic area SMR licensees that may be affected by the decisions and rules proposed in the Notice includes these 60 small entities. No auctions have been held for 800 MHz geographic area SMR licenses. Therefore, no small entities currently hold these licenses. A total of 525 licenses will be awarded for the upper 200 channels in the 800 MHz geographic area SMR auction. The Commission, however, has not yet determined how many licenses will be awarded for the lower 230 channels in the 800 MHz geographic area SMR auction. There is no basis, moreover, on which to estimate how many small entities will win these licenses. Given that nearly all radiotelephone companies have fewer than 1,000 employees and that no reliable estimate of the number of prospective 800 MHz licensees can be made, we estimate, for purposes of this IRFA, that all of the licenses may be awarded to small entities, some of which may be affected by the decisions and rules proposed in the Notice.

35. Narrowband PCS. The Commission has auctioned nationwide and regional licenses for narrowband PCS. There are 11 nationwide and 30 regional licensees for narrowband PCS. The Commission does not have sufficient information to determine whether any of these licensees are small businesses within the SBA-approved definition for radiotelephone companies. At present, there have been no auctions held for the major trading area (MTA) and basic trading area (BTA) narrowband PCS licenses. The Commission anticipates a total of 561 MTA licenses and 2,958 BTA licenses will be awarded by auction. Such auctions have not yet been scheduled, however. Given that nearly all radiotelephone companies have no more than 1,500 employees and that no reliable estimate of the number of prospective MTA and BTA narrowband licensees can be made, we assume, for purposes of this IRFA, that all of the licenses will be awarded to small entities, as that term is defined by the SBA.

36. Toll Resellers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to resellers. The closest applicable definition under the SBA's rules is for all telephone communications companies. The most reliable source of information regarding the number of toll resellers nationwide of which we are aware appears to be the data that we collect annually in connection with the TRS. According to our most recent data, 454 companies reported that they were engaged in the resale of telephone toll services.31 Although it seems certain that some of these carriers are not independently owned and operated, or have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of toll resellers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are fewer than 454 small entity resellers that may be affected by this order.

37. Because we have not made any tentative conclusions or suggested proposed rules, we are unable at this time to describe any projected reporting, recordkeeping, or other compliance requirements.

38. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.32

39. As noted above, we do not propose a specific method for how carriers should obtain customer consent to use CPNI for marketing purposes, rather we seek comment on ways in which carriers can obtain their customers' consent and the extent to which an opt-in or opt-out approach would satisfy both section 222 and the Tenth Circuit's concerns that any restrictions on speech be no more than necessary to serve the asserted state interests. Section 222 applies to all telecommunications carriers, and therefore, any rules that we adopt regarding customer consent will be applicable to all carriers.33 Accordingly, we cannot exempt small entities from complying with any consent rules that we adopt.

40. We have, however, taken the limited resources of small entities into account in promulgating certain existing CPNI rules,34 and intend to do so again in addressing the customer consent requirements. Specifically, we recognize that an opt-in approach would require small entities to have a process in place to obtain express approval from their customers to use CPNI. While such a process could place a burden on small entities in terms of developing, tracking and maintaining customer consent, it would confer a countervailing benefit by permitting them to gain approval to use a customer's CPNI for a broad range of service offerings with a single request through written, oral or electronic means that remains in effect unless or until the customer revokes it.35 Therefore, we ask parties to comment on whether the burden outweighs the benefit under an opt-in scheme.

41. We also note that the Commission, in response to concerns from all carriers about the cost of compliance, has already streamlined the “flagging” and “audit trail” requirements that are required to protect against unauthorized access to a customer's CPNI.36 Small entities may continue to take advantage of these streamlined rules even if the Commission adopts an opt-in requirement.

42. Under an opt-out approach, a small entity need not obtain express approval, but would only be required to notify its customers of their CPNI rights and then process any requests for privacy after such notification. This could be less administratively onerous than obtaining opt-in approval. However, we seek comment indicating small entities' perception of the probable impact of this burden.

43. We ask small entities to particularly keep in mind these types of requirements when they comment in the Second Further Notice on any potential harms that may arise from adopting either form of consent,37 and overall, we ask for comment in response to this IRFA on what competitive or economic impact either an opt-in or opt-out approach would have on small entities and on whether there is any alternative form of consent that we should consider to minimize the economic impact on them.

44. None.

45. Pursuant to sections 1, 4(i), 222 and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 222 and 303(r), the Clarification Order and Second Further Notice of Proposed Rulemaking are adopted.

46. The Commission's Office of Public Affairs, Reference Operations Division, Shall Send a copy of this Clarification Order and Second Further Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

On June 14, 2001, the Research and Special Programs Administration (RSPA, we) published a notice of proposed rulemaking (NPRM) (66 FR 32420) under Docket RSPA-98-4952 (HM-223) to clarify the applicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to specific functions and activities, including hazardous materials loading and unloading operations and storage of hazardous materials during transportation. The HM-223 rulemaking has four overall goals. First, we want to maintain nationally uniform standards applicable to functions performed in advance of transportation to prepare hazardous materials for transportation. Second, we want to maintain nationally uniform standards applicable to transportation functions. Third, we want to distinguish functions that are subject to the HMR from functions that are not subject to the HMR. Finally, we want to clarify that facilities within which HMR-regulated functions are performed may also be subject to federal, state, or local regulations governing occupational safety and health or environmental protection.

To achieve these goals, the NPRM proposes to list in the HMR pre-transportation and transportation functions to which the HMR apply. Pre-transportation functions are functions performed to prepare hazardous materials for movement in commerce by persons who offer a hazardous material for transportation or cause a hazardous material to be transported. Transportation functions are functions performed as part of the actual movement of hazardous materials in commerce, including loading, unloading, and storage of hazardous materials that is incidental to their movement. The NPRM also proposes to clarify that “transportation in commerce,” for purposes of applicability of the HMR, begins when a carrier takes possession of a hazardous material and continues until the carrier delivers the package containing the hazardous material to its destination as indicated on shipping papers. In addition, the NPRM proposes to include in the HMR an indication that facilities at which functions regulated by the HMR occur may also be subject to applicable standards and regulations of other federal agencies and state, local, and tribal governments. Finally, the NPRM proposes to include in the HMR the statutory criteria under which non-federal governments may be precluded from regulating in certain areas under the preemption provisions of the federal hazardous materials transportation law (49 U.S.C. 5101 et seq.)

On August 2, 2001, we announced that we planned to host two public meetings to facilitate public comment on the NPRM (66 FR 40174). The first public meeting was scheduled for September 14, 2001, in Washington, D.C. The second public meeting was to be held in Diamond Bar, California, on October 30, 2001. We also extended the comment period for the NPRM to November 30, 2001.

On September 12, 2001, we announced on our website (http://hazmat.dot.gov) and by telephone to registered participants that the September 14 meeting was postponed, but that we likely would reschedule it for a later date. As of September 25, only ten persons had indicated to us that they planned to make presentations at the Washington meeting; only four persons had registered with us to speak at the California meeting on October 30, and two of them were among the ten Washington speakers. Therefore, we decided to cancel the California public meeting. Further, we decided against rescheduling the Washington meeting. The comment period for the NPRM remains open until November 30, 2001. We urge all interested persons to submit written comments on the NPRM. We will consider late-filed comments to the extent possible as we consider whether to proceed to a final rule.

If you believe that written comments are not sufficient to assure that your views on the NPRM are communicated to us and that a public meeting to facilitate comment on the NPRM is necessary, please submit a statement explaining why a public meeting is necessary to the HM-223 docket. If there is sufficient interest, we will reconsider our decision on the public meetings.

All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the Endangered Species Act of 1973 (ESA). The Kemp's ridley (Lepidochelys kempii), leatherback (Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) are listed as endangered. The loggerhead (Caretta caretta) and green (Chelonia mydas) turtles are listed as threatened, except for breeding populations of green turtles in Florida and on the Pacific coast of Mexico, which are listed as endangered. -

The incidental take and mortality of sea turtles as a result of trawling activities, have been documented in the Gulf of Mexico and along the Atlantic seaboard. In 1990 the National Academy of Sciences, in a report titled Decline of the Sea Turtle: Causes and Prevention, estimated that between 33,000 and 44,000 loggerhead and Kemp’s ridley sea turtles were being killed, per year, as a result of shrimp trawling activities. On June 27, 1987, (52 FR 24244) NMFS required TEDs in certain areas during certain times and further defined and expanded the required use of TEDs in the shrimp fishery on December 4, 1992, (57 FR 57348). These rules and subsequent modifications are codified in 50 CFR 223.206 and 50 CFR 223.207 and require most shrimp and summer flounder trawlers operating in the Southeastern U.S. (Atlantic Area, Gulf Area, and summer flounder sea turtle protection area) to have a NMFS-approved TED installed in each net that is rigged for fishing to provide for the escape of sea turtles. TEDs currently approved by NMFS include single-grid hard TEDs and hooped hard TEDs conforming to a generic description, two types of special hard TEDs, the flounder TED and the Jones TED, and one type of soft TED, the Parker soft TED. -

The use of TEDs has contributed to the strong population increase for Kemp’s ridley sea turtles. Kemp’s ridleys are the smallest sea turtles, and adult size animals can pass through the current TED opening dimensions. Once the most critically endangered sea turtle, their nesting levels have increased from 700-800 per year in the mid-1980's to over 6,000 nests in 2000. Since 1990, corresponding with the more widespread use of TEDs in U.S. waters, the total annual mortality (including natural mortality that cannot be controlled) for coastal Kemp’s ridleys has been reduced by 44-50 percent (TEWG, 2000). NMFS believes that this demonstrates that the use of TEDs can have a significant impact on the survival and recovery of sea turtle species. -

Despite the demonstrated success of TEDs for some species of sea turtles, NMFS is concerned that TEDs are not adequately protecting all species and size classes of turtles. There is new information showing 47 percent of stranded loggerheads and 1-7 percent of stranded green turtles are too large to fit through the current TED openings. Comprehensive scientific data on the body depths of these turtles were not available when the original TED sizes were specified. The original TED sizes were also much too small to allow leatherback sea turtles, the largest species, to escape. Instead, NMFS has attempted to address the incidental catch of leatherback turtles by trawlers through a regime of reactive closures that has proven complicated and incomprehensive. There is also concern about the status of these populations with stable or declining nesting numbers for the northern nesting population of loggerhead sea turtles (TEWG, 2000) and dramatically declining nesting of leatherback sea turtles on their main nesting grounds (NMFS SEFSC, 2001). NMFS is therefore proposing to modify the TED regulations to insure TEDs are capable of releasing large leatherback sea turtles and adult loggerhead and green turtles. These modifications will extend the protection TEDs afford smaller turtle species to all size classes of all sea turtle species. -

NMFS is proposing to amend the regulations applicable to shrimp trawling in all inshore and offshore waters of the Atlantic and Gulf Areas to: (a) Require all hard TEDs to have a grid with a minimum inside measurement of 32-inch (81-cm) by 32-inch (81-cm); (b) require the use of either the double cover flap TED or a TED opening with a minimum of 71 inch (180 cm) straight-line stretched mesh; (c) disallow the use of the hooped hard TED; (d) disallow the use of weedless TEDs and Jones TEDs; (e) disallow the use of accelerator funnels; (f) require bait shrimpers to use TEDs in states where a state-issued bait shrimp license holder can also fish for food shrimp from the same vessel; (g) and require the use of tow times on small try nets. These changes are proposed to be implemented 1 year after the final rule is published in the Federal Register. -

The measures proposed in this rule were based, in part, on comments received on an Advanced Notice of Proposed Rule Making (ANPR) published April 5, 2000 (65 FR 17852). NMFS announced in the ANPR that it was considering technical changes to the TED regulations, to effectively protect all life stages and species of sea turtles. Specific changes discussed were to increase the minimum size opening for TEDs, modify or decertify hooped hard TEDs and weedless TEDs, change the requirements for the types of flotation required, and modify the leatherback conservation zone regulations. -

NMFS received 23 responses to the request for comments on the ANPR. When appropriate, comments are grouped according to general subject matter, and references are made only to some groups or individuals, and not to all groups or individuals who may have made similar comments. -

Comment 1: Environmental organizations, Federal agencies, state agencies, state Sea Turtle Stranding and Salvage Network (STSSN) volunteers, and unaffiliated citizens believe that the openings of the current TEDs are too small and should be enlarged to allow larger turtles to escape. Some of these commenters believe that the size specified in the ANPR of 35 inches by 16 inches (89 cm by 41 cm) would not be adequate to protect large nesting turtles. -

Response: NMFS agrees with the need to make TED escape openings larger and is therefore proposing to increase the escape opening size of TEDs in all inshore and offshore waters of the Atlantic and Gulf areas. The size proposed in the ANPR of 35 inches by 16 inches (89 cm by 41 cm) was based on information from Epperly and Teas (1999) which used a linear regression formula to estimate body depth based on carapace width, and suggested that 99 percent of nesting loggerheads of the northern subpopulation had carapace widths equal to or less than 33 inches (83.2 cm) and a corresponding depth of 15.7 inches (39.8 cm). However, carapace measurements recently collected by the South Carolina Department of Natural Resources (SCDNR) on actual nesting females of the northern loggerhead population showed 7 out of 90 had body depths greater than 16 inches (40.6 cm). Also significant numbers of the endangered leatherback turtle have been documented in inshore and offshore waters in the Atlantic and Gulf areas. Therefore, to protect all turtles, NMFS is proposing to require the use of the double cover flap TED or a TED opening with a minimum of 71-inch (180-cm) straight-line stretched mesh (see Provisions of the Proposed Rule). -

Comment 2: Environmental organizations, Federal agencies and state agencies recommend the modification of the leatherback conservation zone regulations (60 FR 25260, May 12, 1995; 60 FR 25663, May 12, 1995) implemented as a result of the Leatherback Contingency Plan. These commenters believe that the response times in implementing emergency rules for closure of waters during leatherback migrations are too slow and that the surveying required to support these rules is frequently underfunded or too variable due to weather and water clarity. Also, some of these commenters believe the Gulf coast should be included in the Leatherback Contingency Plan. -

Response: NMFS is proposing the use of either the double cover flap TED or a TED opening with a minimum of 71-inch (180-cm) straight-line stretched mesh in all inshore and offshore waters in the Atlantic and Gulf Areas. Both of these TEDs have openings large enough to accommodate leatherbacks as well as large nesting loggerheads. This would eliminate the need for emergency rules and surveying. -

Comment 3: Commercial Fishermen of Lafitte do not want NMFS to prohibit the use of the hooped hard TED. They state that the hooped TED, known as the Coulon TED, not only excludes turtles but also works well as a finfish bycatch reduction device. The Coulon TED is a hooped hard TED with an escape opening of 34 inches (86 cm) by 27 inches (69 cm) with the front hoop measuring 34 inches (86 cm) by 17 inches (43 cm). The Commercial Fishermen of Lafitte state that the escape opening of this TED can be expanded to 35 inches (89 cm) by 27 inches (69 cm), with the front hoop measuring 35 inches (89 cm) by 17 inches (43 cm). According to a net maker in the area, approximately 50 fishing vessels are using this TED in Louisiana waters. -

Response: In order to protect the endangered leatherback and large loggerhead sea turtles, NMFS must ensure that all approved TEDs are capable of releasing these large turtles. The expanded version of the Coulon TED is not large enough to release large loggerhead and leatherback sea turtles. It would be impractical to use a hooped hard TED that would be large enough to release leatherback turtles. -

Comment 4: The Florida Fish and Wildlife Conservation Commission agrees with the need to make TED escape openings larger but feels NMFS should consider the economic burden of Florida’s inshore shrimp fishery when considering the use of the leatherback modification and the increase of the standard grid size. -

Response: NMFS’ gear specialists working on the east coast of Florida reported that the majority of inshore fishermen use grids 32 inches (81 cm) and larger. NMFS is proposing to increase the grid size to a minimum inside measurement of 32 inches (81 cm) by 32 inches (81 cm). Based on the information from the gear specialists this will not affect a large number of Florida inshore fishermen. The Florida inshore fishermen who use grids smaller than 32 inches (81 cm) will have 1 year to change to the new size grid. By delaying the implementation date to 1-year after the final rule is published in the Federal Register, fishermen would be able to buy the new size grid as part of necessary gear replacement and thereby not add an additional cost. -

Comment 5: The United States Fish and Wildlife Service (USFWS) recommends the decertification of the hooped hard TED and the weedless TED and the abolishment of the TED exemption for bait shrimpers. -

Response: NMFS agrees with the USFWS on the need to disallow the use of the hooped hard TED and the weedless TED for the reasons described in the ANPR (65 FR 17852). The hooped hard TED is not widely used. NMFS’ enforcement personnel report confusion with the differing regulatory requirements for escape openings for single grid and hooped hard TEDs. Weedless TEDs (a TED with the deflector bars not attached to the bottom of the grid frame) have been documented by NMFS enforcement with bent bars and spacing more than 4 inches (10 cm) apart. The bars of weedless TEDs appear to be easily bent during commercial use because of the inherent weakness in the design. NMFS’ TED testing in 1996 showed that weedless TEDs with the bars bent inward (to the rear of the TED hoop) failed to exclude any of the turtles exposed. NMFS is proposing to implement a requirement that the bars on hard TEDs be firmly attached to the frame at both ends, 1 year after the publication of the final rule in the Federal Register. -

NMFS also agrees with the USFWS that the bait shrimp exemption currently authorized under the sea turtle conservation regulation represents a threat to sea turtles. NMFS enforcement and gear specialists have seen an increase in boats claiming to be bait shrimpers but possessing more than 32 lb (14.5 kg) of dead shrimp. In some cases, these shrimpers are using “snap-in grids” on their TEDs and claim to have used them while catching the dead shrimp but then taking the “snap-in grid” out and closing the escape opening to fish for bait shrimp. Snap-in grids do not meet the regulatory requirement for the installation of the grid into the trawl net because the grids are attached to the outside of the grid frame with a few strings, plastic tie wraps or bolts and not sewn into the trawl around the entire circumference of the TED with heavy twine (50 CFR 223.207(a)(2)). -

NMFS originally authorized a bait shrimp exemption, which requires tow times to be less than 55 minutes, believing tow times would be self-regulating as a bait shrimper would want to limit tow times to ensure live catch. However, gear specialists have found increasing numbers of bait shrimpers selling shrimp for food. Landing dead shrimp would likely result in an increase in tow times beyond the shorter tows used to catch live bait. Tow time limits are extremely difficult to enforce and have only been authorized in limited cases where particular fishing practices limit the length of tows. NMFS believes that the bait shrimp exemption is unenforceable and represents an increased risk in lethal take of turtles. Therefore, NMFS is proposing to change the bait shrimp TED exemption. Since 1992, when the bait shrimp exemption was initially developed, TEDs have been used successfully in small, inshore shrimp nets. Many bait shrimpers already own and use TEDs when not operating under their bait shrimp licences. In some areas, bait shrimpers use other exempt gear or practices (e.g., barred roller trawls, hand-retrieved nets). Changes to the bait shrimp exemption would affect none of these other exemptions. -

Comment 6: Georgia Department of Natural Resources (GADNR) recommends the adoption of a single TED configuration for all areas at all times. The leatherback configuration should be the configuration adopted. According to GADNR, 30 percent of Georgia fishermen already use the leatherback modification full time because it is good at excluding trash fish and the long flap helps shrimp retention. -

Response: NMFS agrees with the GADNR on the value of the leatherback modification. The use of the leatherback modification (a TED opening with a minimum of 71-inch (180-cm) straight-line stretched mesh) or the double cover flap TED in all inshore and offshore waters will provide protection for all sea turtles. The current TED opening sizes do not afford protection for large sexually mature loggerhead and green turtles. Adoption of this proposed rule also will eliminate the need for the use of inefficient emergency rules and the leatherback conservation plan, which does not cover all areas where leatherback turtles can be found. -

Comment 7: The University of Georgia Marine Extension Service (UGMES) requested the water depths be specified at which spongex-type floats would not be allowed. -

Response: Upon further review of the TED float requirements, NMFS has decided not to propose amendments to them at this time due to the lack of testing of viable alternatives to spongex-type floats. -

Comment 8: The UGMES also requested that NMFS allow other methods of hole enlargement, such as the addition of a strip of webbing in the center of the forward section of the extension webbing, to help maintain the angle of the TED. -

Response: The use of a strip of webbing in the center of the forward section of the extension webbing to modify a TED with a leatherback size opening is not prohibited under current regulations. Also the double cover flap TED which can be used in-lieu of the leatherback modification has a smaller cut than the leatherback modification (the length of the leading edge of the escape opening cut must be no less than 56 inches (142 cm)). The double cover flap TED is composed of two equal size rectangular panels with an overlap of no more than 15 inches (38 cm) and each panel is no less than 58 inches (147 cm) wide. The panels can be sewn together only along the leading edge of the cut. The edge of the panels may be attached 6 inches (15 cm) behind posterior edge of grid; the end of each panel must not extend more than 6 inches (15 cm) past the center of the bottom of the grid. These modifications make it easier to install TEDs on a smaller grid -

Comment 9: The Texas Shrimp Association (TSA) requested that shrimp loss data be evaluated and that NMFS determine what impact a 300-lb to 1,200-lb (136-kg to 545-kg) leatherback turtle would have on any TED. TSA also asked whether the Epperly and Teas (1999) study was submitted for peer review. TSA questioned the need for a larger size opening in the western Gulf based on the fact that stranded turtles on the western Gulf, on average, are smaller than those on the Atlantic and eastern Gulf coasts. -

Response: In the summer of 2000, NMFS conducted seven trips to test the leatherback modification for shrimp loss in commercial conditions. The leatherback modification was compared with TEDs currently used in the Gulf of Mexico and the southeastern Atlantic. Four of the trips were conducted in the Gulf of Mexico, and three were conducted in the Atlantic. Shrimp loss for the four Gulf of Mexico trips showed a 3-percent loss (trip #067), a 35-percent loss (trip #068), a 1-percent loss (trip #069), and a 2-percent loss (trip #073), while the three Atlantic trips combined showed a 3-percent shrimp loss (trips #070-072). NMFS believes that shrimp loss percentage from trip #068 is an error and not indicative of actual shrimp loss. The 35-percent shrimp loss demonstrated on this trip is well above the range of 1 to 3 percent demonstrated by the other six trips. NMFS believes that gear problems on trip #068 could have contributed to the 35-percent loss. The 1- to 3-percent loss on the other trips was not statistically significant from zero. -

NMFS cannot use live leatherback turtles for testing; however, NMFS believes a 300-lb to 1,200-lb (136-kg to 545-kg) leatherback will do much less damage to a TED and shrimp gear if it is allowed to escape. -

The Epperly and Teas (1999) study has not yet been peer reviewed; however, it is being submitted for publication in the scientific journal Fishery Bulletin and, as part of that process, will receive peer review. -

NMFS disagrees with the TSA’s assessment that a larger size opening is not needed in the western Gulf of Mexico. Stranding records from 1986 through 1997 show that 36 to 66 percent of loggerhead turtles stranded in the western Gulf were larger than the current minimum TED escape opening size, and records from 1986 through 1999 show that 170 leatherback turtles were stranded in the western Gulf of Mexico. -

TEDs incorporate an opening, usually covered by a webbing flap, that allows sea turtles to escape from trawl nets. To be approved by NMFS, a TED design must be able to exclude small sea turtles during experimental TED testing conducted by NMFS. TEDs also must meet generic criteria based upon certain parameters of TED design, configuration, and installation, including height and width dimensions of the TED opening through which the turtles escape. In the Atlantic Area, these requirements are currently ≥35 inches (≥89 cm) in width and ≥12 inches (≥30 cm) in height. In the Gulf Area, the requirements are ≥32 inches (81 cm) in width and ≥10 inches (≥25 cm) in height. -

NMFS proposes to require the use of the NMFS-approved double cover flap TED (approved May 14, 2001, 66 FR 24287) or a standard TED opening with a minimum of 71 inch (180 cm) straight-line stretched mesh measurement, with a resultant circumference of the opening being 142 inches (361 cm) (formerly called the leatherback modification; approved May 12, 1995, 60 FR 25663) in both the Atlantic and Gulf Areas. Both of these TEDs have been tested for shrimp retention (see the response to comment 9 of this notice for shrimp retention data on the new standard TED and 66 FR 24287 for the double cover flap TED) and small turtle escapement (see 60 FR 25663 and 66 FR 24287). -

The double cover flap TED and the proposed standard TED were shown to be effective at excluding a prototype leatherback. Because testing with live leatherbacks is impossible, NMFS obtained the carapace measurements of 15 nesting female leatherback turtles and used these data to construct a pipe-framed model of a leatherback turtle measuring 40 inches wide by 21 inches deep (102 cm by 53 cm). The leatherback model and a diver with full scuba gear were able to pass through the escape openings of these TEDs. -

Stranding data collected through the STSSN indicate that the proportion of large, mature loggerheads and greens that strand on coastal beaches appears to be greater than the proportion that would be expected given the size distribution of sea turtles found in nearshore waters. The disparity in size may be a result of the minimum size requirement for TED openings which allows only smaller turtles to escape. NMFS (Epperly and Teas, 1999; copies available see ADDRESSES) evaluated the size of TED openings in relation to the carapace width and body depth of stranded sea turtles and found that body depth, but not carapace width, was a factor in the turtle’s ability to exit the TED opening. Up to 47 percent of the body depths for stranded loggerheads and 7 percent for green turtles exceeded the minimum height requirements for TED openings. -

Stranding data from 1986 through 1997 show that between 33 percent and 47 percent of all loggerhead turtles stranded had body depths greater than the minimum height of the TED opening. These percentages range from 33-66 in the western Gulf of Mexico, to 83-96 in the eastern Gulf of Mexico, to 23-40 in the Atlantic off the coast of the southeastern United States (Epperly and Teas, 1999). These same data also show that between 1 and 7 percent of all green turtles stranded had body depths greater than the minimum height of the TED opening. These percentages range from 0-3 in the western Gulf of Mexico, to 1-10 in the eastern Gulf of Mexico, to 3-10 in the Atlantic off the coast of the southeastern United States (Epperly and Teas, 1999). Measurements done on South Carolina nesting beaches conducted by the SCDNR in the summer of 2000 on nesting loggerhead turtles showed 89 of the 90 nesting turtles had body depths greater than the minimum TED opening in the Atlantic Area. -

This information indicates that current TED openings may be allowing continued high incidental take of large reproductive loggerhead and green turtles. Since this take is focused on pre-reproductive and reproductive turtles, it may be precluding most, if not all, benefits these species may be receiving from the exclusion of small juveniles from shrimp trawls. -

The proposed use of a TED opening with a minimum of 71 inch (180.3 cm) straight-line stretched mesh or the double cover flap TED would be large enough to exclude 100 percent of nesting loggerhead and green turtles based on the information in Epperly and Teas (1999) and the measurements of nesting loggerhead turtles taken by the SCDNR in the spring and summer of 2000. This is particularly important for loggerhead turtles, as population models indicate that a reduction in mortality in these size classes would result in the greatest annual population multiplication rate (Crouse et al., 1987; Hopewell, 1998). -

The Turtle Expert Working Group (TEWG 1998) identified four genetically separate nesting populations of loggerhead turtles in the southeastern United States. The health and recovery of the loggerhead turtle species is dependent on the health and recovery of each of these populations. It is believed that the northern nesting population may at best be stable and possibly may be in decline. -

Leatherback sea turtles are too large to fit through the standard size TED opening; when mature, they can weigh between 600 and 1,300 lb (273 and 591 kg). To address this issue, NMFS, in cooperation with the USFWS, South Carolina, Georgia, and Florida, developed the Leatherback Contingency Plan to reduce leatherback mortality in shrimp trawls, and, in 1995, NMFS established the leatherback conservation zone regulations to implement the Leatherback Contingency Plan (60 FR 25260, May 12, 1995; 60 FR 25663, May 12, 1995). The Leatherback Contingency Plan established procedures to identify when and where TEDs with large escape openings should be used to protect leatherbacks during their annual, spring migration along the Atlantic seaboard. The waters north of Cape Canaveral, from Florida to the North Carolina-Virginia border, were identified as the leatherback conservation zone. Within this zone, weekly aerial surveys for leatherback sightings are conducted from January 1 through June 30 of each year. If sightings, in replicate surveys, exceed 10 leatherback turtles per 50 nautical miles (nm)(92.6 km) of trackline, NMFS will close, for a 2-week period, waters within 1° lat. of the trackline to shrimp trawlers unless they use a TED modified with the leatherback exit opening. -

In 1999, NMFS became concerned that the leatherback conservation zone regulation was not adequate to protect leatherbacks. In the spring of 1999, NMFS implemented the 2-week closures in areas of South Carolina and North Carolina (64 FR 25460, May 12, 1999; 64 FR 27206, May 19, 1999; 64 FR 28761, May 27, 1999; 64 FR 29805, June 3, 1999). In implementing the regulation, it was determined that replicate surveys were not always feasible due to weather, staff, or equipment constraints and that a sighting of less than 10 leatherbacks per 50 nm (92.6 km) in the replicate survey was not necessarily an indication that the turtles had moved away from the closed area. -

From October 1 through December 15, 1999, 15 leatherbacks stranded in Nassau through Brevard counties on the east coast of Florida. Since these strandings occurred seasonally outside the provisions specified in the leatherback conservation zone regulation, NMFS issued an emergency 30-day rule (64 FR 69416, December 13, 1999), requiring shrimp trawlers to use the leatherback modification in their TEDs. The 30-day restriction was necessary because leatherbacks were expected to be present in the area through that period. -

The leatherback conservation zone regulation does not extend to the Gulf area. Historical records indicate that the Western Gulf is important to leatherbacks; Leary (1957) reported a large group of up to 100 leatherbacks just offshore of Port Aransas, Texas associated with a dense aggregation of Stomolophus. Recent stranding data from 1986 through 1999 show an average of 9 leatherbacks per year have been killed in the Western Gulf; however, in the last 5 years, that average has gone up to 14 leatherbacks stranded per year, with a high of 21 leatherbacks in 1999. Leatherbacks are also killed in the Eastern Gulf, with an average of 5 per year from 1986 through 1999 and with a high of 19 in 1989. In the Atlantic along the southeastern United States, leatherback strandings have averaged 46 per year from 1986 through 1999. Leatherbacks strand along the Atlantic coast of Florida year-round, averaging 21 strandings per year. -

In French Guiana and Suriname, the largest leatherback rookery in the western North Atlantic, nesting has decreased at a rate of 15.0 percent - 17.3 percent per year since 1987 (NMFS SEFSC 2001). If turtles are not nesting elsewhere, it appears that the Western Atlantic portion of the population is being subjected to mortality beyond sustainable levels, resulting in a continued decline in numbers of nesting females. There have been increases in leatherback nesting at minor nesting areas such as Florida and the U.S. Virgin Islands, but those cannot account for the decreases in the Guianas, which are in the tens of thousands. -

A steady increase in Kemp’s ridley nesting, which has not leveled off to date, has occurred since 1990 and appears to be due to increased hatchling protection and a large increase in survival rates of immature turtles beginning in 1990, coinciding with the introduction of TEDs. Adult ridley numbers have now grown from a low of approximately 1,050 adults producing 702 nests in 1985, to greater than 3,000 adults producing 1,940 nests in 1995, to greater than 9,000 adults producing about 5,700 nests in 2000 (TEWG 2000). The increase in the Kemp’s ridley nesting population since 1989 demonstrates that the use of TEDs can have a significant positive impact on the survival and recovery of sea turtle species. The proposed required use of either the new standard TED opening or the double cover flap TED in all inshore and offshore waters in the Gulf and Atlantic Areas will provide the protection TEDs afford smaller turtle species to all size classes of all sea turtle species thereby aiding in their recovery. This proposal will also provide consistency and predictability for the industry by eliminating the disparate regulations in different areas and times and eliminating reactionary closures to protect leatherback turtles. -

As stated in NMFS’s response to Comment 5 in this proposed rule, the structural integrity of the weedless and Jones TEDs does not hold up under commercial use. Grid bars bend toward the back of the net. This condition has been shown to severely limit these TEDs’ ability to exclude turtles. Therefore, NMFS is proposing to require that TED deflector bars be securely attached/welded to the top and bottom of the TED frame or to a horizontal deflector bar (in the case of flounder TEDs), to be implemented 1 year after the final rule is published in the Federal Register. This will allow fishermen to replace this gear as part of normal gear replacement due to wear and tear. -

As stated in NMFS’s response to Comments 3 and 5 in this proposed rule, it is not feasible to construct a hooped hard TED large enough to exclude large loggerhead and leatherback turtles. The hooped hard TED also is not widely used, and enforcement personnel report confusion with the differing regulatory requirements for escape openings for single grid and hooped hard TEDs. -

NMFS is proposing that the use of accelerator funnels not be allowed. The opening in an accelerator funnel that would be required to effectively release large loggerhead and leatherback turtles would be too large (71 inch (180 cm)) to accelerate the water through the grid and would cause the unattached portion of the funnel to extend out the escape opening causing the loss of shrimp. -

NMFS is also proposing to change the exemption from TED requirements for bait shrimpers. As stated in NMFS’s response to Comment 5, NMFS enforcement and gear specialists have seen an increase in boats claiming to be bait shrimpers but possessing more than 32 lb (14.5 kg) of dead shrimp. Landing dead shrimp would likely result in an increase in tow times beyond the shorter tows used to catch live bait. Longer tow times would increase the likelihood of entangling a sea turtle and, without a TED installed, increase the chance of injury or mortality. When there is no incentive to limit tow times as a part of normal fishing operations, tow time limits are extremely difficult to enforce. Therefore, NMFS is proposing to limit the bait shrimp TED exemption to shrimpers with a valid state bait-shrimp license for which such state license allows the licensed vessel to participate in the bait shrimp fishery only. -

NMFS is proposing to require shrimpers to limit tow times when deploying small try nets. Sea turtles are captured in trynets. NMFS observer program from 1992 through 1995, documented that try nets accounted for 43 percent of the observed turtle captures. In 2001, shrimpers operating in the Atlantic area reported capturing more than 20 turtles in their smaller try nets without TEDs installed. NMFS required shrimpers deploying try nets with head rope lengths greater than 12 feet (3.6 m) or foot rope length greater than 15 feet (4.6 m) to have a TED installed but exempted the smaller try nets (61 FR 66933, December 19, 1996). NMFS initially issued this exemption without tow time restrictions because it felt that this type of gear naturally lent itself to short tow times. -

NMFS recognizes that tow time limits are difficult to enforce, but without tow time restrictions, NMFS has no enforcement mechanism to ensure compliance with measures that will increase protection of listed sea turtles. -

NMFS will accept written comments (see ADDRESSES) on this proposed rule until November 16, 2001. In addition, NMFS will conduct public hearings on this action. Hearing dates, times, and locations will be published in the Federal Register under separate notification.

Epperly, S.P. and W.G. Teas. 1999. Evaluation of TED Opening Dimensions Relative to Size of Turtles stranding in the Western North Atlantic. NMFS SEFSC PRD-98/99-08

Leary, T.R. 1957. A schooling of leatherback turtles, Dermochelys coriacea, on the Texas coast. Copeia 1957(3):232.

National Academy of Science, National Research Council. 1990. Decline of the Sea Turtles: Causes and Prevention. National Academy Press. Washington, D.C. 189 pp.

National Marine Fisheries Service Southeast Fisheries Science Center (NMFS SEFSC). 2001. Stock assessments of loggerhead and leatherback sea turtles and an assessment of the impact of the pelagic longline fishery on the loggerhead and leatherback sea turtles of the Western North Atlantic. U.S. Department of Commerce NOAA Technical Memorandum NMFS-SEFSC-455, 343 pp.

Turtle Expert Working Group (TEWG). 2000. Assessment update for the Kemp’s ridley and loggerhead sea turtle populations in the Western North Atlantic. U.S. Department of Commerce NOAA Technical Memorandum NMFS-SEFSC-444, 115pp.

Turtle Expert Working Group. 1998. (Byles, R., C. Caillouet, D. Crouse, L. Crowder, S. Epperly, W. Gabriel, B. Gallaway, M. Harris, T. Henwood, S. Heppell, R. Marquex-M, S. Murphy, W. Teas, N. Thompson, and B. Witherington). An Assessment of the Kemp’s ridley sea turtle (Lepidochelys kempii) and loggerhead (Caretta caretta) sea turtle populations in the western North Atlantic. NOAA Technical Memorandum NMFS-SEFSC-409. 96 pp. -

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

The ESA provides the statutory basis for the rule. -

NMFS prepared a draft EA/RIR for this proposed rule that discusses the impact on the environment as a result of this proposed rule. A copy of the draft EA/RIR is available from NMFS (see ADDRESSES). -

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. -

Fishermen may be adversely affected by this proposed rule primarily in the following ways: possible shrimp loss due to the increase in the size of the TED opening and additional costs to retrofit current TEDs in order to meet proposed minimum grid and opening sizes. -

The increase in the TED opening to a minimum of 71 inch (180.3 cm) straight-line stretched mesh would apply to all shrimp fishermen in the known universe of shrimp trawlers (15,096). This TED opening requirement would be expected to result in a 1-3 percent loss which is not statistically different from zero. Assuming a 2 percent shrimp loss, the estimated annual real profits by size category, and the number of fishing craft per category, the estimated impacts in terms of lost real profits per year by size category would be as follows: $582,600 for state registered boats, $251,812 for vessels less than 45 feet (13.7 m), $205,869 for vessels between 45 and 60 feet (13.7 and 18.3 m), and $389,844 for vessels greater than 60 feet (18.3 m). Thus, the total annual loss of profits for the industry would be $1,430,125. Applying the standard discount rate of 7 percent over a 5 year time period generates a loss of $5,863,795 in real profits. Shrimpers would have an option to use the double cover flap TED instead of the TED opening with a minimum of 71 inch (180.3 cm) straight-line stretch mesh. The double cover flap TED was tested to determine its ability to retain shrimp when compared to a commercial TED with a standard flap. The double cover flap TED gained 0.00257 pounds (1.1 gram) of shrimp per tow when compared to the TED with the standard flap. Assuming shrimpers chose this option, there would be no expectation of a 2 percent shrimp loss. -

Many shrimpers who operated in the areas specified in the leatherback conservation zone regulation and were required to use the leatherback modification in the past due to emergency rules issued by NMFS, continued to use the modification after it was no longer required because they thought it performed better than the standard TED in retaining shrimp. GADNR reports that up to 60 percent of their shrimp fishermen still use the leatherback modification after NMFS required them to use it during the spring of 1999. Nonetheless, it is not known whether a similar percentage of shrimp fishermen are using the leatherback modification in their TEDs in other states/areas. -

The leatherback modification excludes large debris from the trawl which improves performance. Fishermen can also use long flaps on bottom opening TEDs in areas where short flaps must be used on bottom opening TEDs with the standard size opening. Longer flaps will likely increase shrimp retention. NMFS believes that the use of the leatherback modification and its possibility of increased performance from the exclusion of debris and the use of long flaps may benefit fishermen. The extent of these potential benefits is unknown. -

Survey data suggest that costs will be incurred by all shrimp fishermen who must acquire a larger frame to meet the proposed grid size of a minimum inside measurement of 32 in (81 cm) by 32 in (81 cm) and those who must refit their existing TEDs to the new 35 in (89 cm) by 20 in (51 cm) requirement. On average, the cost of a new frame is estimated to be $85 and the cost of refitting to the new minimum size opening is $45. However, the survey data also indicate that the smallest grid sold by 4 of the 7 net shops would meet the new requirements proposed in this alternative. Based on this information and observations by enforcement personnel and NMFS’ gear specialists, NMFS believes that the majority of shrimpers use grids that already meet the required minimum grid size proposed by this rule. Those that currently use grid sizes smaller than the proposed minimum will have a year to replace them, giving fishermen the opportunity to replace them as part of scheduled gear maintenance and replacement. Thus, there should be no additional costs beyond those incurred as a result of existing TED regulations. -

Modifications needed to meet the proposed opening sizes should impose relatively few additional costs. Most fishermen and net shop owners can make the changes needed to enlarge the escape openings on their own. For those who cannot, NMFS’ gear specialists will be available to help them modify their TEDs to meet the new requirements. Although no direct out of pocket expenses may be incurred, an opportunity cost of the time necessary to make these modifications should still be taken into account. Given the nature of the modifications, we estimate that an hour of the fisherman’s time will be needed to complete this task. Assuming that the owner or captain is responsible for making such gear modifications, the average real hourly wage of first-line supervisors/mangers in the farming, fishing and forestry industries is the best measure of opportunity cost. This figure is currently estimated to be $11.49 according to the BLS. Although some fishermen may not incur this cost as a result of already using TEDs with larger openings, some may have to incur the out of pocket expense of $45 to have someone else do the modifications for them. -

The disallowance of the hooped hard TED is expected to affect approximately 50 small entities in Louisiana that currently use these TEDs. Unlike the weedless TED, the hooped hard TED is a durable TED and one that cannot be converted to another type of TED. Thus, for these fishermen, even with a year to convert their TEDs, they would be forced to purchase complete and new TEDs. Based on the survey data, new TEDs in Louisiana cost approximately $200. Assuming that these fishermen use quad rig trawls (i.e., 4 nets), this part of the rule would require a one time expenditure of $800 per entity, or $40,000 in the aggregate. -

NMFS also proposes to disallow the use of weedless and Jones TEDs. Current information suggests that the Jones TED is not presently in use. The weedless TED is only known to be used in Texas. Information from boardings of shrimp fishing craft suggest that 15 percent of Texas shrimpers currently use the weedless TED. Since the weedless TED is known to be less durable than other TEDs, commonly needing to be replaced every year, no additional costs are expected as a result of this requirement since this proposed alternative would not be implemented until 1 year after the final rule is published in the Federal Register. This period would give fishermen the opportunity to replace these types of gear as part of scheduled gear maintenance and replacement.-- -

The changes to the bait shrimp exemption are not expected to generate any new impacts on shrimp fishermen. Clarification of TED requirements for bait shrimpers is needed because, in certain areas, many shrimp fishermen constantly switch back and forth between bait and food shrimping operations. Since these modifications do not impose TED requirements on any entity or operation that was not already covered by the existing TED requirements, no impacts would be expected. -

Shrimpers deploying small try nets would be required to abide by existing tow time limitations, which are typically 55 minutes, in order to be exempt from existing TED requirements. If try nets are truly being used as a means to test fishing grounds for shrimp abundance, as opposed to an additional device to catch shrimp, then this requirement should not impose any costs since typical tow times for try nets are known to be 15-20 minutes. -

In conclusion, the proposed changes to the sea turtle conservation regulation would not likely impose a significant economic impact on a substantial number of small entities. The increase in the minimum size openings and grid sizes for TEDs potentially impacts all shrimp trawlers in the Gulf of Mexico and South Atlantic which is estimated to be approximately 15,000 fishing craft. -

The two criteria to be considered in determining the significance of economic impacts are the disproportionate effect and profitability between large and small businesses. Since all fishing trawling operations are considered small entities, the issue of a disproportionate effect is not applicable. And even if differences in fishing craft size are examined, in general, the impacts are proportionally the same across these size groups. -

With the exception of the leatherback modification requirement and the TED modification costs, the components of this rule are not expected to reduce profits. The combination of shrimp loss as a result of using the TED opening with a minimum of 71 inch (180.3 cm) straight-line stretched mesh and TED modification expenses could have a significant economic impact. An average loss of 2 percent loss in profits could be expected only if several assumptions are met: (1) None of the potentially affected entities have already converted to using the leatherback modification; (2) none chose to use the double cover flap which showed no loss in shrimp. Since all these assumptions are unlikely to be met, the true loss in profits is likely much less and thus not significant.

-Several of the background documents for the ALWTRP and the take reduction planning process can be downloaded from the ALWTRP web site at http://www.nero.nmfs.gov/whaletrp/. Copies of the most recent marine mammal stock assessment reports may be obtained by writing to Richard Merrick, NMFS, 166 Water St., Woods Hole, MA 02543 or can be downloaded from the Internet at http://www.wh.whoi.edu/psb/sar2000.pdf. In addition, copies of the document entitled “Defining Triggers for Temporary Area Closures to Protect Right Whales from Entanglements: Issues and Options” are available by writing to Gregg LaMontagne, NMFS, Northeast Region, 1 Blackburn Dr., Gloucester, MA 01930 or can be downloaded from the Internet at http://www.nero.nmfs.gov/whaletrp/. -

The ALWTRP was developed pursuant to section 118 of the Marine Mammal Protection Act (MMPA) to reduce the level of serious injury and mortality of four species of large whales (fin, humpback, minke, and North Atlantic right) in East Coast lobster trap and finfish gillnet fisheries. The background for the take reduction planning process and development of the ALWTRP is provided in the preambles to the proposed (62 FR 16519, April 7, 1997), the interim final (62 FR 39157, July 22, 1997), final (64 FR 7529, February 16, 1999), and interim final (65 FR 80368, December 21, 2000) rules implementing the ALWTRP. Copies of these documents and supporting Environmental Assessments are available from the NMFS, Northeast Region (see ADDRESSES). -

The ALWTRP is a multi-faceted plan that includes area closures, gear requirements in areas open to fixed gear fishing, gear research to develop new modifications to current practices and/or fishing techniques, a right whale Sighting Advisory System, and a disentanglement program to free whales caught in fishing gear. -

The ALWTRP (50 CFR 229.32) uses time/area closures to protect right whales in critical habitat areas. However, recent surveys have shown that right whales also aggregate outside of critical habitat areas, and outside of those areas otherwise periodically closed to fishing. To protect right whales found in concentrations outside of the existing critical habitat areas and areas periodically closed to certain fisheries, NMFS proposes to clarify and use its authority under 50 CFR § 229.32 to temporarily restrict the use of lobster traps and/or gillnet gear in areas where right whales aggregate. -

NMFS re-convened the ALWTRT twice, once in April and once in May 2000, to develop the details of a Dynamic Area Management (DAM) process to temporarily require or remove restrictions in areas quickly due to the unexpected presence or absence of right whales. At these meetings, the ALWTRT discussed and developed several models for “triggering” a DAM zone based on whale density in a given area. However, the ALWTRT did not produce consensus recommendations on any one set of whale density criteria and/or triggering levels. It recommended that NMFS take into account ALWTRT discussions in developing this proposed rule. -

This proposed rule would clarify NMFS’ authority under § 229.32 to implement DAM zones, and establish criteria and procedures to implement them. -

The Northeast Fisheries Science Center (NEFSC) analyzed historic sighting and survey data, considered the ALWTRT discussions, and developed criteria based on the analysis and discussions. NEFSC’s findings are contained in a document entitled “Defining Triggers for Temporary Area Closures to Protect Right Whales from Entanglements: Issues and Options” (see ADDRESSES for copies). NMFS proposes to use the whale density threshold and other criteria described in the above mentioned paper to implement DAM zones under § 229.32. -

A DAM zone would be triggered by a single reliable report from a qualified individual of 3 or more right whales within an area (75 nautical mils (nm2) (139 km2)) such that right whale density is equal to or greater than 0.04 right whales per nm2 (1.85 km2). A qualified individual is an individual ascertained by NMFS to be reasonably able, through training or experience, to identify a right whale. Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS. A reliable report would be a credible right whale sighting based upon which a DAM zone would be triggered. Areas for consideration for DAM are limited to areas north of 40° N latitude, given animals south of this area have not been observed feeding or otherwise grouped together for extended periods of time. -

Analyses of historical sighting data indicate that this criterion, of at least 3 whales in an area with a density greater than or equal to 0.04 right whales per nm2 (1.85 km2), provides for a level of density where whales are likely to maintain residency in an area for at least 10 to 20 days. Residency indicates that whales may be actively feeding and, therefore, more vulnerable to entanglement. Operationally, NMFS would use the following procedures and criteria to establish a DAM zone: -

1. A circle with a radius of at least 3 nm (5.6 km) would be drawn around each individual sighting (event). This radius would be adjusted for the number of right whales seen in the sighting such that the density of 4 right whales per 100 nm2 (185.3 km2) is maintained. The length of the radius would be determined by taking the inverse of the 4 right whales per 100 nm2 (185.3 km2) density, which is 24 nm2 (44.5 km2) per whale. That figure is equivalent to a radial distance of 2.77 nm (5.13 km) rounded up to 3 nm (5.6 km) for a single right whale sighted (3.91 nm (7.25 km) rounded up to 4 nm (7.41 km) for two whales, 4.79 nm (8.88 km) rounded up to 5nm (9.27 km) for three whales, etc). -

2. If any circle or group of contiguous circles includes 3 or more right whales, this core area and its surrounding waters would be a candidate DAM zone. -

Once NMFS identifies a core area containing 3 or more right whales, as described here, it would expand this initial core area to provide a buffer area in which the right whales could move and still be protected. Operationally, NMFS would determine the extent of the DAM zone as follows: -

1. A 15 NM (27.8 km) radius from the event epicenter would be used to draw a larger circular zone around each core area encompassing a concentration of right whales. The event epicenter is the geographic center of all sightings on the first day of an event. -

2. The DAM zone would then be defined by latitude and longitude lines drawn outside but tangential to the circular buffer zone(s). -

Once a DAM zone is identified, NMFS would determine whether to impose, in the zone, restrictions on fishing and/or fishing gear. This determination would be based on a variety of factors, including but not limited to: the location of the DAM zone with respect to other fishery closure areas, weather conditions as they relate to the safety of human life at sea, the type and amount of gear already present in the area, and a review of recent right whale entanglement and mortality data. If NMFS determines restrictions are necessary in the zone, NMFS may require removal of all gillnet and lobster trap gear from the zone within 2 days of the publication of a notice in the Federal Register. NMFS may allow fishing within a DAM zone with specified gear if that gear is determined to sufficiently reduce the risk of entanglement to right whales. NMFS may identify acceptable fishing practices and gear in a Federal Register notice. Gear not in compliance with the imposed restriction may not be set in the DAM zone after the effective date of the restriction. NMFS will publish a notice in the Federal Register announcing the establishment of the zone with restrictions imposed. It will also announce them immediately upon filing the notice with the office of the Federal Register, which is generally 3 to 5 days before publication of the notice in the Federal Register. -

If NMFS decides not to implement restrictions within a DAM zone, it would issue an alert to fishermen using appropriate media to inform them of the fact that right whale density in a certain area has triggered a DAM zone. In addition, NMFS would provide detailed information on the location of the DAM zone and the number of animals sighted within it. Furthermore, NMFS would request that fishermen voluntarily remove lobster trap and gillnet gear from a DAM zone and that no additional gear be set inside it. -

NMFS proposes to maintain a DAM zone for a minimum of 15 days from the date NMFS issues an alert (in the case of a zone where no restrictions are imposed), or 15 day period from the effective date of restrictions (in the case where restrictions are imposed). At the conclusion of a 15-day period, the DAM zone would automatically expire, unless NMFS continues the zone to further protect concentrations of right whales. Each extension would be for up to 15 days unless NMFS extends the time frame based on additional sightings. -

NMFS may remove restrictions on the DAM zone or rescind an alert prior to its automatic expiration if there are survey efforts and no confirmed sightings of right whales by qualified individuals for 1 week or if other credible evidence indicates that right whales have left the designated zone. NMFS would notify the public by issuing a notice in the Federal Register and through other appropriate media. -

On May 9, 2001, NMFS used the criteria developed by the NEFSC to identify a restricted area for a group of 13 North Atlantic right whales in an area commonly called the Wilkinson Basin. This aggregation included several cow-calf pairs. A Federal Register notice restricting fishing for a 15-day period in the Wilkinson Basin area contained the following requirements: -

1. Removal of all gillnet gear within 48 hours of publication of the notice in the Federal Register.-- -

2. Removal of at least 50 percent of vertical lines from all lobster gear within 48 hours of publication of the notice in the Federal Register. -

The May 2001 closure was an important step toward responding quickly to the presence of right whales in areas where gillnet and lobster gear may present significant entanglement risks. However, NMFS received public comments from fishermen, conservationists, and state managers regarding the DAM closure in the Wilkinson Basin and the efficacy of DAM in general. For example, representatives from the lobster fishery were concerned that, as implemented, the DAM restrictions did not give them enough time to remove their gear from the water and that the DAM zone covered too vast an area. NMFS will publish a notice in the Federal Register establishing the zone and restrictions imposed and will announce them immediately upon filing the notice with the office of the Federal Register, which is generally 3 to 5 days before publication in the Federal Register.

In addition, conservation groups indicated that the requirement to remove 50-percent of vertical lines in lobster gear presented significant enforcement problems. We agree that enforcement of a 50 percent removal of vertical lines from lobster gear would be difficult and, furthermore, do not believe that it would sufficiently reduce the risk to right whales and have therefore proposed a complete removal of all lobster gear in DAM zones. Finally, some state managers desired more clarification regarding the role of the states when a DAM closure is triggered. The states were also interested in determining whether a Federal DAM mechanism would preempt a state initiated response to unusual or unexpected sightings of right whales within state waters. A Federal DAM would preempt a state initiated response to unusual or unexpected sightings of right whales within state waters unless the state response was equally or more protective than the Federal DAM. Based on the scope of the responses received, NMFS has decided to issue this proposed rule to clarify its authority to implement future DAM closures, and to establish criteria and procedures for implementing DAM zones. -