The imported fire ant regulations (contained in 7 CFR 301.81 through 301.81-10 and referred to below as the regulations) quarantine infested States or infested areas within States and restrict the interstate movement of regulated articles to prevent the artificial spread of the imported fire ant.

The imported fire ant, Solenopsis invicta Buren and Solenopsis richteri Forel, is an aggressive, stinging insect that, in large numbers, can seriously injure and even kill livestock, pets, and humans. The imported fire ant, which is not native to the United States, feeds on crops and builds large, hard mounds that damage farm and field machinery. The regulations are intended to prevent the imported fire ant from spreading throughout its ecological range within the country.

The regulations in § 301.81-3 provide that the Administrator of the Animal and Plant Health Inspection Service (APHIS) will list as a quarantined area each State, or each portion of a State, that is infested with the imported fire ant. The Administrator will designate less than an entire State as a quarantined area only under the following conditions: (1) The State has adopted and is enforcing restrictions on the intrastate movement of the regulated articles listed in § 301.81-2 that are equivalent to the interstate movement restrictions imposed by the regulations; and (2) designating less than the entire State will prevent the spread of the imported fire ant. The Administrator may include uninfested acreage within a quarantined area due to its proximity to an infestation or its inseparability from an infested locality for quarantine purposes.

In § 301.81-3, paragraph (e) lists quarantined areas. We are amending § 301.81-3(e) by:

• Adding portions of Faulkner and Polk Counties, AR, to the list of quarantined areas and changing the status of Grant, Hempstead, and Nevada Counties, AR, from partially to completely infested;

• Adding Rabun, Towns, and Union Counties, GA, to the list of quarantined areas (these three counties were the last remaining uninfested counties in Georgia, thus the entire State is now designated as a quarantined area);

• Adding portions of Harnett, Hertford, Johnston and Nash Counties, NC, and all of Lee County, NC, to the list of quarantined areas, changing the status of Moore and Sampson Counties, NC, from partially to completely infested, and revising the quarantine boundaries in Wake County, NC, to incorporate additional infested areas; and

• Changing the status of Henderson County, TN, from partially to completely infested and revising the quarantine boundaries in Franklin, Maury, and Moore Counties, TN, to incorporate additional infested areas.

We are taking these actions because recent surveys conducted by APHIS and State and county agencies revealed that the imported fire ant has spread to these areas. See the rule portion of this document for specific descriptions of the new and revised quarantined areas.

In addition to the changes to the quarantined areas described above, we are correcting the listing for Hot Spring County, AR, in § 301.81-3(e). That county is currently listed incorrectly as Hot Springs County.

This rulemaking is necessary on an emergency basis to prevent the spread of imported fire ant into noninfested areas of the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review process required by Executive Order 12866.

This interim rule is necessary because infestations of imported fire ant have been discovered in additional areas of Arkansas, Georgia, North Carolina, and Tennessee. This action will establish quarantined areas in 10 new counties and revise the boundaries of the quarantined areas in 10 other counties in those States. As a result of this action, the interstate movement of regulated articles from those areas is restricted. This action is necessary to prevent the artificial spread of the imported fire ant into noninfested areas of the United States.

The following analysis addresses the economic effects of this rule and the impact on small entities as required by the Regulatory Flexibility Act.

According to the 1997 Census of Agriculture, the market value of agricultural products sold in the 20 counties that are subject of this rule was more than $2.171 billion. During 1997, the value of sales from nursery and greenhouse crops in these 20 counties was at least $36.5 million. The five counties in Arkansas had $300.35 million in agricultural product sales, the three counties in Georgia had $30.96 million in agricultural product sales, the eight counties in North Carolina had $1.44 billion in agricultural product sales, and the four counties in Tennessee had $117.45 million in agricultural product sales. In 1997, the eight counties in North Carolina had 51 percent of the value of their agricultural sales attributed to crops (including nursery and greenhouse crops), with the remaining 49 percent attributed to livestock. The four counties in Tennessee had 28 percent of the value of their agricultural sales attributed to crops (including nursery and greenhouse crops), with the remaining 72 percent attributed to livestock. In two of the three Georgia counties, 17 percent of the value of agricultural sales was attributed to crops (including nursery and greenhouse crops), with the remaining 83 percent of that value attributed to livestock. (The relative contributions of crops and livestock to the value of agricultural sales in the third Georgia county could not be determined, as those figures were withheld from the 1997 Census of Agriculture to avoid disclosing data for individual farms.) The five counties in Arkansas had only 5 percent of the value of their agricultural sales attributed to crops, with the remaining 95 percent of the value attributed to livestock. These data indicate that there is a large agricultural economy at risk due to the potential for the imported fire ant to damage crops and injure or kill livestock.

Small entities potentially affected by this rule include nurseries, greenhouses, farm equipment dealers, construction companies, and companies that sell, process, or move regulated articles interstate from and through the quarantined areas. According to the Small Business Administration (SBA), Office of Advocacy, regulations create economic disparities when they have a significant economic impact on a substantial number of small entities. The SBA defines a small agricultural producer as one that generates less than $750,000 of annual sales; to be considered small by the SBA definition, an equipment dealer or agricultural service company must generate less than $5 million of annual sales.

In the four Tennessee counties, there were at least 94 entities that could be potentially affected by the changes in regulations. In 1997, these four counties received $32.5 million from crop sales, including greenhouse and nursery sales. In the three Georgia counties, there were at least 27 entities that could be potentially affected by the changes in regulations. In 1997, these three counties received at least $2.5 million from crop sales, including greenhouse and nursery sales. In the five Arkansas counties, there were at least 22 entities that could be potentially affected by the changes in regulations. In 1997, these five counties received $8.2 million from crop sales, including greenhouse and nursery sales. In the eight North Carolina counties, there were at least 265 entities that could be potentially affected by the changes in regulations. In 1997, these eight counties received $446.5 million from crop sales, including greenhouse and nursery sales. In summary, there are at least 408 small entities potentially affected by the imported fire ant quarantine in the 20 counties. However, the number of these small entities that will be affected by this rule and the extent to which they are affected depend on the proportion of their sales outside the imported fire ant quarantined areas.

The adverse economic effects on these entities can be substantially minimized by the availability of various treatments that will permit the movement of regulated articles with only a small additional cost. The estimated annual cost of imposing a quarantine on these counties is very small in comparison to the benefit gained through agricultural sales. For example, the value of a “standard” sized tractor-trailer load of nursery plants ranges from $10,000 to $250,000. The treatment cost for this “standard” shipment of plants is only around $200. An average treatment cost, then, is between 2 percent and 0.8 percent per standard plant shipment. In contrast to the potential losses associated with an imported fire ant infestation, these treatment costs are not significant.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This interim rule has been reviewed under Executive Order 12988, Civil Justice Reform.

This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

An environmental assessment and finding of no significant impact have been prepared for this program. The assessment provides a basis for the conclusion that the methods employed to prevent the spread of the imported fire ant will not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.

The environmental assessment and finding of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq. ), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

Copies of the environmental assessment and finding of no significant impact are available for public inspection at USDA, room 1141, South Building, 14th Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead on (202) 690-2817 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under FOR FURTHER INFORMATION CONTACT .

This final rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The regulations in 7 CFR, chapter III, and 9 CFR, chapter I, subchapter D, require inspection, laboratory testing, certification, or quarantine of certain plants, plant products, animals, animal products, or other commodities intended for importation into or exportation from the United States.

When an employee of the Animal and Plant Health Inspection Service's Plant Protection and Quarantine (PPQ) program must provide these services on a Sunday, holiday, or at any other time outside the PPQ employee's regular duty hours, the Government charges a fee for the services according to 7 CFR part 354. Under circumstances described in § 354.1(a)(2), this fee may include the cost of commuted traveltime. Section 354.2 contains administrative instructions prescribing commuted traveltime allowances, which reflect, as nearly as practicable, the periods of time required for PPQ employees to travel from their dispatch points and return there from the places where they perform Sunday, holiday, or other overtime duties.

We are amending § 354.2 of the regulations by revising the commuted traveltime allowances for travel between various locations in the State of Washington. The revised allowances are set forth in the rule portion of this document. This action is necessary to inform the public of the commuted traveltime between the dispatch and service locations.

The commuted traveltime allowances appropriate for employees performing services at ports of entry and the features of the reimbursement plan for recovering the cost of furnishing port of entry services depend upon facts within the knowledge of the Department of Agriculture. It does not appear that public participation in this rulemaking proceeding would make additional relevant information available to the Department.

Accordingly, pursuant to the administrative provisions in 5 U.S.C. 553, we find upon good cause that prior notice and other public procedures with respect to this rule are impracticable and unnecessary; we also find good cause for making this rule effective less than 30 days after publication of this document in the Federal Register .

This final rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review process required by Executive Order 12866.

The number of requests for overtime services of a PPQ employee at the locations affected by this rule represents an insignificant portion of the total number of requests for these services in the United States.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform.

This rule is intended to have preemptive effect with respect to any State or local laws, regulations, or policies that conflict with its provisions or that would otherwise impede its full implementation. This rule is not intended to have retroactive effect. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule or the application of its provisions.

This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of certain animals and animal products into the United States in order to prevent the introduction of various animal diseases, including rinderpest, foot-and-mouth disease (FMD), African swine fever, hog cholera (also known as classical swine fever), and swine vesicular disease. These are dangerous and destructive communicable diseases of ruminants and swine. Section 94.1 of the regulations lists regions of the world that are considered free of rinderpest or free of both rinderpest and FMD. Rinderpest or FMD is considered to exist in all parts of the world not listed. Section 94.11 of the regulations lists regions of the world that the Animal and Plant Health Inspection Service (APHIS) has determined to be free of rinderpest and FMD, but from which importation of meat and animal products into the United States is restricted because of the regions' proximity to or trading relationships with rinderpest-or FMD-affected regions.

In an interim rule effective January 15, 2001, and published in the Federal Register on March 14, 2001 (66 FR 14825-14826, Docket No. 01-018-1), we amended the regulations by removing Great Britain and Northern Ireland from the list of regions considered to be free of rinderpest and FMD. (The Federal Register published a correction (66 FR 18357) to the interim rule on April 6, 2001.) In an interim rule effective February 19, 2001, and published in the Federal Register on June 1, 2001 (66 FR 29686-29689, Docket No. 01-031-1), we amended the regulations by removing France, Ireland, and The Netherlands from the list of regions considered to be free of rinderpest and FMD. These actions were necessary because FMD had been confirmed in each of those regions. The effect of the interim rules was to prohibit or restrict the importation of any ruminant or swine and any fresh (chilled or frozen) meat and other products of ruminants or swine into the United States from Great Britain, Northern Ireland, France, Ireland, and The Netherlands.

In those interim rules, we recognized that the appropriate authorities had responded to the detection of FMD by imposing restrictions on the movement of ruminants, swine, and ruminant and swine products from FMD-affected areas; by conducting heightened surveillance activities; and by initiating measures to eradicate the disease. We stated that we intended to reassess the situations at a future date in accordance with Office International des Epizooties (OIE) standards, and that as part of that reassessment process, we would consider all comments received regarding the interim rules. Additionally, we stated that the future reassessments would enable us to determine whether it was necessary to continue to prohibit or restrict the importation of ruminants or swine and any fresh (chilled or frozen) meat and other products of ruminants or swine from Great Britain, Northern Ireland, France, Ireland, and The Netherlands, or whether we could restore some or all of those regions to the list of regions in which FMD is not known to exist or, alternatively, regionalize portions of those regions as FMD-free.

We solicited comments concerning Docket No. 01-018-1 for 60 days ending May 14, 2001, and received one comment by that date, submitted by a medical product manufacturer, requesting permission to import a specific medical product for human use that would otherwise be prohibited importation from regions not listed as free of FMD. As a result of this request, we determined that the product could be imported with negligible risk of FMD, and allowed the product to be imported in accordance with § 94.3, which allows certain types of products to be imported from FMD-affected regions for pharmaceutical or biological purposes.

We solicited comments concerning Docket No. 01-031-1 for 60 days ending July 31, 2001, and received four comments by that date. They were from businesses, a livestock association, and a Member State of the European Union. We addressed those comments in a final rule (66 FR 55872-55876, Docket No. 01-031-2), published in the Federal Register and effective November 5, 2001, in which we restored France and Ireland to both the list of regions considered to be free of rinderpest and FMD and the list of regions subject to certain import restrictions on meat and animal products because of their proximity to or trading relationships with rinderpest-or FMD-affected regions.

One of the four comments we received suggested that The Netherlands be recognized as FMD free, claiming that the Netherlands would be free of the disease by August 25, 2001. We made no changes to the FMD status of the Netherlands in the November 5 final rule, but responded that we were continuing to monitor that country's progress with respect to the disease and were reevaluating its FMD status. We stated that we would publish a separate document in the Federal Register with respect to the FMD status of The Netherlands when our evaluation was complete.

In this final rule, we are restoring The Netherlands and Northern Ireland to the list in § 94.1(a) of regions that are considered to be free of rinderpest and FMD. Our reasons follow.

According to the OIE, when FMD occurs in an FMD-free country or zone where vaccination is not practiced before the outbreak, the following waiting periods are required to regain FMD-free status:

• In cases where stamping-out and serological surveillance are applied, 3 months after the last case; or

• In cases where emergency vaccination, stamping out, and serological surveillance are applied, 3 months after the slaughter of the last vaccinated animal.

Neither Northern Ireland nor The Netherlands vaccinated animals against FMD before the initial outbreaks that were confirmed in Northern Ireland on February 28, 2001, and in The Netherlands on March 21, 2001. Both countries initiated immediate destruction of affected animals and conducted clinical and serological surveillance. Additionally, The Netherlands adopted a policy of emergency vaccination.

The last case of FMD in Northern Ireland occurred on April 20, 2001, and the last case of FMD in The Netherlands occurred on April 22, 2001. The last vaccinated animal in The Netherlands was slaughtered on May 25, 2001. We find that Northern Ireland as well as The Netherlands meet the OIE standards for regaining FMD-free status.

We have evaluated the FMD eradication efforts in The Netherlands and Northern Ireland based on information provided to us by those regions and our own site visits. Our findings and site visit reports may be viewed on the Internet at http://www.aphis.usda.gov/vs/reg-request.html. You may also request paper copies of these documents by calling or writing the person listed under FOR FURTHER INFORMATION CONTACT . Please refer to Docket No. 01-031-3 when requesting copies. These documents are also available in our reading room. (The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.)

Based on our findings and after reviewing comments submitted to us on the interim rules, we are amending the regulations by restoring The Netherlands and Northern Ireland to the list in § 94.1(a)(2) of regions that are declared free of both rinderpest and FMD. We are also restoring The Netherlands and Northern Ireland to the list in § 94.11(a) of regions that are declared free of rinderpest and FMD but that are subject to special restrictions on the importation of their meat and other animal products into the United States. The regions listed in § 94.11(a) are subject to these special restrictions because they: (1) Supplement their national meat supply by importing fresh (chilled or frozen) meat of ruminants or swine from regions that are designated in § 94.1(a) as regions where rinderpest or FMD exists; (2) have a common land border with regions where rinderpest or FMD exists; or (3) import ruminants or swine from regions where rinderpest or FMD exists under conditions less restrictive than would be acceptable for importation into the United States.

This action relieves certain restrictions due to FMD and rinderpest on the importation into the United States of certain live animals and animal products from The Netherlands and Northern Ireland. However, because The Netherlands and Northern Ireland have certain trade practices regarding animals and animal products that are less restrictive than are acceptable for importation into the United States, the importation of meat and other products from ruminants and swine into the United States from The Netherlands and Northern Ireland continues to be subject to certain restrictions.

This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the Federal Register . This rule restores The Netherlands and Northern Ireland to the list of regions considered free of FMD. Immediate action is necessary to remove restrictions on the importation of animals, meat, and other animal products that are no longer necessary. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the Federal Register .

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review process required by Executive Order 12866.

We are amending the regulations governing the importation of certain animals, meat, and other animal products by adding The Netherlands and Northern Ireland to the list of regions considered to be free of rinderpest and FMD and to the list of regions that are subject to certain import restrictions on meat and animal products because of their proximity to or trading relationships with rinderpest-or FMD-affected regions. This final rule follows interim rules that removed Great Britain, Northern Ireland, France, Ireland, and The Netherlands from those lists due to detection of FMD in those regions. Based on the results of an evaluation of the current FMD situation in The Netherlands and Northern Ireland, we have determined that The Netherlands and Northern Ireland meet the standards of OIE for being considered free of FMD. This rule relieves certain prohibitions and restrictions on the importation of ruminants and swine and fresh (chilled or frozen) meat and other products of ruminants and swine into the United States from The Netherlands and Northern Ireland.

The Netherlands and Northern Ireland have not generally been major sources of U.S. imports of the products covered by the interim rule and this final rule, which include live ruminants, live swine, fresh (chilled or frozen) meat of ruminants and swine, processed ruminant and swine meat, some dairy products, animal feeds, and other ruminant and swine products such as semen, embryos, untanned hides and skins, unwashed wool, hair, bones, blood, and some other byproducts. Also, past imports of these products from The Netherlands and Northern Ireland represent a small fraction of the total U.S. imports or total U.S. production of these products. This final rule is not expected to alter these past trade patterns.

The majority of entities potentially affected by this final rule are considered small. For example, in 1997, approximately 97 percent (2,919 of 2,992) of meat and meat product wholesalers, 99 percent (1,490 of 1,503) of livestock wholesalers, 1 92 percent (79,155 of 86,022) of dairy farms, 99.3 percent (651,542 of 656,181) of cattle farms, 87 percent (40,185 of 46,353) of hog and pig farms, 99.5 percent (29,790 of 29,938) of sheep and goat farms, 2 98 percent (1,272 of 1,297) of slaughtering establishments, and 95 percent (1,324 of 1,393) of meat processing establishments  3 would be considered small entities under the criteria set by the Small Business Administration. However, these entities should be little affected by this rulemaking because of the negligible effect on imports.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This final rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Tajikistan was added to the list of proscribed destinations at section 126.1(a) of the ITAR in the Federal Register publication of July 22, 1993 (58 FR 39312). The Department of State is amending the ITAR to reflect that it is no longer the policy of the United States to deny licenses, other approvals, exports and imports of defense articles and defense services, destined for or originating in Tajikistan. This action is being taken in the interests of foreign policy and national security pursuant to section 38 of the Arms Export Control Act. Requests for licenses or other approvals for Tajikistan involving items covered by the U.S. Munitions List (22 CFR part 121) will be reviewed on a case-by-case basis.

Licenses and other approvals for Yugoslavia were suspended by the Federal Register notice of July 19, 1991 (58 FR 33322) and a denial policy was instituted for any new license applications and other requests for approval. The Federal Republic of Yugoslavia (Serbia and Montenegro) was added to the list of proscribed destinations at section 126.1 of the ITAR in the Federal Register publication of July 12, 1996 (61 FR 36625). The United Nations Security Council instituted a comprehensive arms embargo on the Federal Republic of Yugoslavia on March 31, 1998 pursuant to U.N. Security Council Resolution No. 1160. The U.N. Security Council terminated that embargo in Resolution No. 1367 (September 10, 2001).

The Department of State is amending the ITAR to reflect that it is no longer the policy of the United States to deny licenses, other approvals, exports and imports of defense articles and defense services, destined for or originating in the Federal Republic of Yugoslavia (Serbia and Montenegro). This action is being taken in the interests of foreign policy and national security pursuant to section 38 of the Arms Export Control Act. Requests for licenses or other approvals for the Federal Republic of Yugoslavia involving items covered by the U.S. Munitions List (22 CFR part 121) will be reviewed on a case-by-case basis.

The Department of State is also taking this opportunity to clarify two outdated references contained in section 126.1(a) of the ITAR. “Zaire” is currently listed as a proscribed country and is amended to “the Democratic Republic of the Congo (formerly Zaire).” Also, the Department is deleting the last sentence of 126.1(a) which refers to a license exemption that was formerly contained in section 123.27. That exemption was removed from 123.27 effective July 1, 2000, and the last sentence of 126.1(a) should have been deleted at that time.

This amendment involves a foreign affairs function of the United States and, therefore, is not subject to the procedures required by 5 U.S.C. 553 and 554. It is exempt from review under Executive Order 12866 but has been reviewed internally by the Department to ensure consistency with the purposes thereof. This rule does not require analysis under the Regulatory Flexibility Act or the Unfunded Mandates Reform Act. It has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Act of 1966. It will not have substantial direct effects on the States, the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant application of Executive Order Nos. 12372 and 13123. However, interested parties are invited to submit written comments to the Department of State, Office of Defense Trade Controls, ATTN: Regulatory Change, removal of Tajikistan, 2401 E. Street, NW., 13th Floor, H1304, 2401 E Street, NW., Washington, DC 20037. Such persons must be so registered with the Department's Office of Defense Trade Controls (DTC) pursuant to the registration requirements of section 38 of the Arms Export Control Act.

The collections of information in this final rule have been reviewed and, pending receipt and evaluation of public comments, approved by the Office of Management and Budget (OMB) under 44 U.S.C. 3507 and assigned control number 1545-1767. The collections of information in this regulation are in § 1.472-8(e)(3)(iii)(B)( 3 ) and (e)(3)(iv). To elect the IPIC method, a taxpayer must file Form 970, “Application to Use LIFO Inventory Method.” This information is required to inform the Commissioner regarding the taxpayer's elections under the IPIC method. This information will be used to determine whether the taxpayer is properly accounting for its dollar-value pools under the IPIC method. The collections of information are required if the taxpayer wants to obtain the tax benefits of the LIFO method. The likely respondents are business or other for-profit institutions, and/or small businesses or organizations.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.

The reporting burden contained in § 1.472-8(e)(3)(iii)(B)( 3 ) and (e)(3)(iv) is reflected in the burden of Form 970.

Comments on the collections of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, W:CAR:MP:FP:S, Washington, DC 20224.

Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

Section 472 of the Internal Revenue Code (Code) permits a taxpayer to account for inventories using a last-in, first-out (LIFO) method of accounting. Section 472(f) directs the Secretary to prescribe regulations that permit the use of suitable published governmental price indexes for purposes of the LIFO method. The IRS and Treasury Department prescribed the inventory price index computation (IPIC) method in § 1.472-8(e)(3) (TD 7814, 47 FR 11271, 1982-1 C.B. 84) (the current regulations), under the authority contained in sections 472 and 7805. A taxpayer using the IPIC method must base its inventory price indexes on the consumer price indexes or producer price indexes published by the United States Bureau of Labor Statistics (BLS). The IPIC method was intended to simplify the use of the dollar-value LIFO method, so that the LIFO method could be used by more taxpayers and so that taxpayers already using the dollar-value LIFO method would have a simpler alternative method of computing an index for their dollar-value pool.

On May 19, 2000, the IRS and Treasury Department published a notice of proposed rulemaking (REG-107644-98, 65 FR 31841, 2000-23 I.R.B. 1229) (the proposed regulations) intended to simplify and clarify certain aspects of the IPIC method. In addition, the proposed regulations provided rules for computing the LIFO value of a dollar-value pool when a taxpayer receives LIFO inventories in certain nonrecognition transactions. Comments responding to the notice were received, and a public hearing was held on September 15, 2000.

The IRS and Treasury Department received 16 comment letters concerning the proposed regulations. After considering the comments contained in these letters, the IRS and Treasury Department adopt the proposed regulations as revised by this Treasury decision. The comments and revisions are discussed below.

Under the last-in, first-out (LIFO) method, inventory on hand at the end of the year is treated as consisting of “layers,” first of inventory on hand at the beginning of the year (in the order of acquisition), and then of any inventory acquired during the current year. Section 1.472-8 permits a taxpayer to use the dollar-value LIFO method, which accounts for all items in an inventory “pool” (dollar-value pool) in terms of dollars of cost rather than in terms of quantities and prices of specific goods. Specifically, the taxpayer annually determines the existence of an increase (increment) or decrease (liquidation) in a dollar-value pool by comparing inventory quantities measured in terms of equivalent-value dollars (base-year cost). The current-year cost of beginning and ending inventory is converted into base-year cost using an inflation index, which is the ratio of the dollar-value pool's total current-year cost to its total base-year cost. By subtracting the base-year cost of the dollar-value pool at the beginning of the taxable year from the base-year cost of the dollar-value pool at the end of the taxable year, the taxpayer determines the amount of any resulting increment or liquidation. Finally, the taxpayer computes the LIFO value of an increment (layer) by multiplying that increment's base-year cost by an inflation index.

The current regulations provide an alternative method for a taxpayer to determine an inflation index. Under the inventory price index computation (IPIC) method, the taxpayer computes an inventory price index (IPI) based on the consumer price indexes (CPI) or producer price indexes (PPI) published monthly by the United States Bureau of Labor Statistics (BLS) in the “CPI Detailed Report” and “PPI Detailed Report,” respectively. See also http://www.bls.gov.

To facilitate a taxpayer's use of the IPIC method, the final regulations use new, more-descriptive terms for some IPIC method concepts. For example, pool index has been replaced with IPI, appropriate index has been replaced with category inflation index, and index category has been replaced with BLS index category. Within this preamble, the discussion of the current and proposed regulations uses both old and new terms, and the discussion of the final regulations generally uses the new terms.

The current regulations state that “[a]n inventory price index computed [under the IPIC method] shall be a stated percentage of the percent change in the selected consumer or producer price index or indexes for a specific category or categories of goods.” For this purpose, “stated percentage” means “100 percent” in the case of an eligible small business, as defined in section 474 (i.e., average annual gross receipts for the three preceding taxable years do not exceed $5,000,000), and “80 percent” in all other cases. The proposed regulations retained this 20 percent reduction for large taxpayers.

Several commentators objected to the continuing requirement that large taxpayers reduce the IPI by 20 percent. Some of these commentators opined that the IPIC method is effectively a safe harbor method that significantly simplifies the LIFO computation and reduces IRS and taxpayer controversy; however, the 20 percent reduction is a major deterrent to its use by large taxpayers. Others argued that the CPI and PPI are representative of true inflation and, therefore, the 20 percent reduction decreases the accuracy of the IPIC method. Other commentators recommended that the stated percentage not be decreased by 20 percent until the taxpayer's gross receipts exceed $10,000,000. In their view, a taxpayer's gross receipts are likely to exceed $5,000,000 by the time the taxpayer's business is profitable enough to benefit by changing to the LIFO method.

The 20 percent reduction contained in the current regulations represents a balance between two competing tax policies—simplification and prevention of adverse selection. The IPIC method was developed originally to simplify the LIFO rules so that small businesses that could not compute an internal inflation index could use the LIFO method. Nonetheless, availability of the method was provided to all taxpayers because it was believed to be too difficult to define the class of taxpayers for which the LIFO rules were unduly burdensome and inappropriate to prevent large taxpayers from using the simplified method. Allowing all taxpayers to use the CPI or PPI regardless of the rate of inflation they actually experienced, however, provided an opportunity for adverse selection whereby a sophisticated taxpayer would adopt the IPIC method only when the inflation reflected in the CPI or PPI exceeded the taxpayer's internal rate of inflation. The 20 percent reduction of the IPI was incorporated into the current regulations to reduce this potential for adverse selection.

The IRS and Treasury Department now believe that the benefits of simplification (and reduced controversy) obtained from the IPIC method outweigh the need to prevent adverse selection. Consequently, the final regulations eliminate the requirement to reduce the IPI by 20 percent. All taxpayers electing to use the IPIC method may use 100 percent of the IPI to compute the LIFO value of a dollar-value pool.

The current regulations provide rules for assigning the items in a dollar-value pool to the applicable categories listed in the “CPI Detailed Report” or the “PPI Detailed Report” for which the BLS publishes corresponding cumulative price indexes (BLS categories and BLS price indexes, respectively) for purposes of computing the IPI for a dollar-value pool. In very simple terms, taxpayers use a process of elimination to assign all the items in a dollar-value pool to BLS categories that include at least 10 percent of the total inventory value (10 percent BLS categories) and then use the corresponding BLS weights to compute a weighted-average appropriate index for the items assigned to those 10 percent BLS categories.

The proposed regulations eliminate the requirements to use the 10 percent BLS categories and BLS weights to compute an appropriate index because it was believed that these requirements did not provide the intended simplicity but rather added unnecessary complexity to the IPIC method. Instead, the proposed regulations require the taxpayer to assign items in a dollar-value pool to the most-detailed BLS categories listed in the “CPI Detailed Report” or the “PPI Detailed Report,” whichever is applicable, and to weight the BLS price indexes based on the relative current-year cost of the items assigned to those BLS categories.

Several commentators objected to the elimination of the requirement to use the 10 percent BLS categories and BLS weights to compute an appropriate index. They suggested that this regime does in fact provide simplification for some taxpayers and consequently should be retained as an option, particularly for retail grocers that would have to incur substantial administrative costs to have the items contained in their dollar-value pools assigned to numerous, most-detailed BLS categories. Other commentators supported the elimination of the requirement to use BLS weights, arguing that this will reduce both the complexity of the IPIC method and the potential for distortion caused by the use of the BLS weights. However, these commentators generally recommended retention of the 10 percent categories or, alternatively, modification of the proposed rule to permit a taxpayer to assign items in a dollar-value pool to less-detailed BLS categories (e.g., using 6-digit or 4-digit commodity codes in the PPI). Another commentator suggested lowering the testing threshold from 10 percent to 8 percent.

The IRS and Treasury Department now understand that the requirement to use 10 percent BLS categories and BLS weights provides simplicity for some taxpayers but complexity for others. Accordingly, the final regulations retain the 10 percent BLS categories and BLS weights as an elective method (10 percent method) of determining the category inflation index of a 10 percent BLS category. The final regulations clarify, however, that to determine whether a BLS category may be selected under the 10 percent method, a taxpayer must compare the current-year cost of the items in that category to the total current-year cost of the items in the dollar-value pool, not to the total current-year cost of the items in the taxpayer's entire inventory.

A pool index computed using the dollar-value LIFO method should reflect a weighted average of the inflation rates of the items contained in the ending inventory of the dollar-value pool. The current regulations state that the appropriate indexes are weighted according to the relative current-year costs of the items in each selected BLS category. However, the regulations do not state how a taxpayer computes a weighted average of the appropriate indexes using the amount of relative current-year costs in each selected BLS category. An example of IPIC weighting methodology is found in Rev. Proc. 84-57 (1984-2 C.B. 496), which shows the computation of an IPI based on a weighted arithmetic mean of the appropriate indexes. (Weighted Arithmetic Mean = [Sum of (Weight x Appropriate Index)] / Sum of Weights). In addition, an example found in Rev. Proc. 98-49 (1998-2 C.B. 321) uses a weighted arithmetic mean to compute a weighted-average percent change for a selected BLS category.

The proposed regulations provide that the pool index must be computed using a weighted harmonic mean, instead of a weighted arithmetic mean, based on the relative current-year costs in the dollar-value pool. (Weighted Harmonic Mean = Sum of Weights / Sum of (Weight / Appropriate Index)).

Using a weighted arithmetic mean of the category inflation indexes of the BLS categories represented in a dollar-value pool is not a mathematically correct method of computing the IPI for the pool when the corresponding weights are the relative current-year costs at the end of the taxable year. If a taxpayer's dollar-value pool has the same quantity of two items with identical base-year costs, the IPI should reflect the inflation rates of the two items equally. However, a weighted arithmetic mean of the category inflation indexes will assign more weight to the inflation rate of the item that has the higher current-year cost. Thus, the mean will be skewed in favor of BLS categories that experience higher rates of inflation, and the IPI will be overstated. This result also will occur when the items in the dollar-value pool experience deflation because too much weight will be assigned to the BLS categories that experience less deflation.

Several commentators objected to the mandatory use of the weighted harmonic mean when computing an IPI. Acknowledging that an IPI based on a weighted harmonic mean is mathematically correct, these commentators stated that the inaccuracy built into a weighted arithmetic mean is offset (in the case of larger taxpayers) by the 20 percent reduction of the “stated percentage.” Thus, they recommended that taxpayers be permitted to continue computing IPIs based on a weighted arithmetic mean rather than be required to incur additional administrative costs to begin computing IPIs based on a weighted harmonic mean.

The IRS and Treasury Department did not adopt these suggestions because a weighted arithmetic mean based on relative current-year costs at the end of the period is not mathematically correct and the conversion from a weighted arithmetic mean to a weighted harmonic mean is not unduly burdensome. To assist taxpayers that need to change to a weighted harmonic mean, the final regulations include the formula for, and examples of, computing a weighted harmonic mean.

On the other hand, the use of a weighted arithmetic mean is mathematically correct when computing a weighted-average category inflation index based on relative costs at the beginning of the taxable year. The published BLS weights applicable for a taxable year are essentially based on relative costs at the beginning of the period. Therefore, whenever it is necessary to compute the category inflation index of a 10 percent BLS category using BLS weights, taxpayers must compute a weighted arithmetic mean. When computing the IPI for a dollar-value pool, however, even taxpayers electing to use the 10 percent method must use the weighted harmonic mean based on the current-year cost of the items assigned to each 10 percent BLS category.

The current regulations state that a taxpayer not using the retail method must select price indexes “as of the month or months” most appropriate to its method of determining current-year cost (appropriate month), or make a one-time binding election of an appropriate representative month (representative month). In the case of a retailer using the retail method, the appropriate month is the last month of the retailer's taxable year. The IRS has ruled that a month is a representative month if a nexus exists between the selected month, the taxpayer's method of determining current-year cost, and the taxpayer's historic experience of inventory purchases. Rev. Rul. 89-29 (1989-1 C.B. 168). In practice, many taxpayers have been confused about the meaning of “month or months most appropriate to the taxpayer's method of determining current-year cost.”

The proposed regulations clarify that for each dollar-value pool, a taxpayer not using the retail method either must annually select an appropriate month or must make an election to use a representative month. The principles of Rev. Rul. 89-29, which have been incorporated into the final regulations, continue to apply for the purpose of determining whether a particular month is appropriate or representative.

Several commentators stated that taxpayers should be permitted to use two IPIs for each taxable year (dual indexes), so that they will not be denied the right to use the earliest acquisitions method of determining current-year costs. These commentators suggest that a taxpayer whose accounting system determines the current-year cost of ending inventory using a first-in, first-out (FIFO) method (i.e., most recent purchases) could compute an IPI based on indexes selected from the CPI or PPI applicable to a month late in the taxable year to deflate the current-year cost of items in ending inventory for the purpose of determining whether an increment or liquidation has occurred during the taxable year. If there is an increment, the taxpayer would compute a second IPI based on indexes selected from the CPI or PPI applicable to a month early in the taxable year to inflate the base-year cost of the increment to its LIFO value based on its “pricing election” (i.e., earliest acquisitions).

The IRS and Treasury Department did not adopt this suggestion for several reasons. First, the IPIC method and the earliest acquisitions method are not mutually exclusive. In fact, the current and proposed IPIC regulations clearly permit an electing taxpayer to use any method of determining current-year cost permitted under § 1.472-8(e)(2)(ii), including the earliest acquisitions method. A dual index IPIC method is not needed to ensure that an electing taxpayer will be able to use the earliest acquisitions method. However, the earliest acquisitions method is available under the IPIC method only to a taxpayer that actually computes the current-year cost of its ending inventory using the earliest acquisitions method because use of a dual index is inconsistent with the IPIC method's concept of an appropriate month. The appropriate month concept requires a taxpayer to select a month that correlates with its actual method of computing current-year cost and its experience with inventory purchases. As explained in Rev. Rul. 89-29, “[t]he timing of the index (and the month selected) must relate to the timing of the determination of current-year cost, otherwise distortion would occur.” The determination of an appropriate month is not a choice between equally acceptable methods of determining current-year cost, but depends on the taxpayer's actual method of determining current-year cost and actual purchases. Thus, a taxpayer using a calendar tax year may select January as the appropriate month only if items represented in the ending inventory were purchased in January and the taxpayer determines the current-year cost of the ending inventory based on the cost of those January purchases.

Moreover, though a dual index IPIC method would eliminate the requirement to determine the actual earliest acquisitions cost of the items in a dollar-value pool, the method would not simplify a taxpayer's use of the dollar-value LIFO method. A dual index IPIC method will require an electing taxpayer to compute (and the IRS to examine) twice as many category inflation indexes because the taxpayer would need BLS price indexes that reflect its inflation experience under the most recent purchases method as well as under the earliest acquisitions method. Similarly, a dual index IPIC method would require a taxpayer to select twice as many appropriate or representative months for each taxable year. Not only does the requirement to select two appropriate months increase the complexity of the IPIC method, it also decreases the accuracy of the method as some accuracy is lost as a result of determining the appropriate month for the entire pool rather than for each inventory item or each BLS category.

In summary, the IPIC method was intended to simplify the dollar-value LIFO method, primarily so it could be used by taxpayers that were otherwise unable to use the method. The IPIC method was neither intended nor designed to serve as a surrogate for determining the earliest acquisitions cost of the items in a dollar-value pool. The prohibition on the use of dual indexes in connection with the IPIC method, however, does not necessarily mean that the use of dual indexes will be prohibited in the context of other LIFO methods.

Several commentators objected to the rule that requires a taxpayer using both the retail method and LIFO method to use the last month of the taxable year as its appropriate month. In their view, a month in the middle of the year would be more representative because the retail method produces an average cost for a group of goods based on purchases for an entire year.

The IRS and Treasury Department did not adopt this suggestion because they believe that the appropriate month for a taxpayer using the retail method is the last month of the taxable year. Section 1.471-8 generally requires that a taxpayer adjust retail selling prices of the goods on hand at the end of the year to cost based on the ratio of goods available for sale at cost to goods available for sale at retail (the cost complement percentage). While this ratio may reflect an average cost complement percentage for the year, it is applied to retail selling prices of the goods on hand at the end of the taxable year rather than the average retail selling price of these goods during the year. Consequently, the approximate cost determined under the retail method is not necessarily equal to the average cost of the inventory.

One commentator suggested that the final regulations should include factors for determining an appropriate month. Other commentators requested an example showing how to determine an appropriate month when a short taxable year follows the first taxable year that a taxpayer uses the IPIC method. In response to these comments, the final regulations incorporate the guidance on an appropriate representative month (including three of the examples) found in Rev. Rul. 89-29.

The proposed regulations generally provide that in the case of a taxpayer using the double-extension IPIC method, the inflation index for a selected BLS category is equal to the quotient of the BLS price index for the appropriate or representative month of the current taxable year and the month preceding the first day of the base year. In the case of a taxpayer using the link-chain IPIC method, the inflation index for a selected BLS category is equal to the BLS price index for the appropriate or representative month of the current taxable year divided by the appropriate or representative month used for the immediately preceding taxable year. However, if the first taxable year the taxpayer uses the IPIC method also is the first taxable year the taxpayer uses the dollar-value LIFO method, the inflation index is equal to the quotient of the published cumulative index for the appropriate or representative month for the current taxable year divided by the published cumulative index for the month immediately preceding the first day of the taxable year.

Several commentators argued that the prescribed calculation for the first taxable year a taxpayer uses both the dollar-value LIFO and IPIC methods is likely to overstate or understate inflation if the taxpayer has opening inventories, unless the opening inventories were purchased during the last month of the preceding taxable year. To address this concern, the commentators suggested that a taxpayer be permitted to compare the BLS price index for the appropriate month of the first LIFO taxable year with the BLS price index for the appropriate month of the taxpayer's last non-LIFO taxable year. Another commentator suggested that the denominator in this formula should be the BLS price index that reflects prices during the last inventory turn of the immediately preceding taxable year.

The IRS and Treasury Department agree with the commentators' concerns. In addition, the IRS and Treasury Department recognize that the same problem exists under the proposed regulations as a result of the requirement to use the month preceding the first day of the base year to compute an appropriate index under the double-extension IPIC method. Accordingly, the final regulations generally provide that a category inflation index should be computed with reference to the BLS price indexes for an appropriate month of the year preceding its LIFO election (in the case of the double-extension IPIC method) or of the preceding year (in the case of the link-chain IPIC method). In addition, the final regulations incorporate the general guidance of Rev. Proc. 98-49 concerning the computation of a category inflation index when a selected BLS category is revised for the taxable year.

The current regulations generally require a taxpayer using the IPIC method to use that method to account for all items accounted for using the LIFO method (LIFO inventory items). The current regulations also prohibit the use of the IPIC method by a taxpayer that is eligible to use BLS price indexes prepared for the purpose of valuing the LIFO inventory items of a specific industry. For example, a taxpayer eligible to use the BLS retail price indexes published in “Department Store Inventory Price Indexes” (DSIP indexes) may not use the IPIC method.

The proposed regulations liberalize the eligibility restrictions applicable to the IPIC method in two respects. First, a taxpayer must use the IPIC method for all items accounted for under the dollar-value LIFO method, but not for all items accounted for under the LIFO method. Second, a taxpayer eligible to use DSIP indexes may elect to use the IPIC method for all its LIFO inventory items or for those LIFO inventory items that do not fall within any of the 23 major groups listed in “Department Store Inventory Price Indexes.”

Several commentators objected to the proposed general requirement that an electing taxpayer use the IPIC method for all its LIFO inventory items. In their view, section 446(d) permits a taxpayer to elect the IPIC method for each trade or business. The requirement to use the IPIC method for all LIFO inventory items, as originally promulgated, was designed to prevent adverse selection. The IRS and Treasury Department understand, however, that taxpayers often have valid business reasons for using the IPIC method in some businesses but not in others. For example, a taxpayer may have difficulty using the double-extension method in one of its trades or businesses but not in another. Accordingly, the final regulations permit a taxpayer to limit its IPIC election to one or more specific trades or businesses.

The current regulations state that a retailer may select price indexes from the “CPI Detailed Report” or the “PPI Detailed Report,” but if equally appropriate price indexes may be selected from either, a retailer using the retail method must select from the “CPI Detailed Report,” and a retailer not using the retail method must select from the “PPI Detailed Report.”

The proposed regulations eliminate the requirement that retailers determine whether the “CPI Detailed Report” and “PPI Detailed Report” contain equally appropriate price indexes. Instead, the proposed regulations require retailers using the retail method to select price indexes from the “CPI Detailed Report” and require all other taxpayers using the IPIC method to select price indexes from the “PPI Detailed Report.”

Several commentators suggested that the IRS and Treasury Department permit all retailers using the IPIC method to select price indexes from either the “CPI Detailed Report” or the “PPI Detailed Report.” These commentators argue that many retailers selecting price indexes from the CPI do not use the retail method and would be forced to change. This change would be particularly burdensome because the categories listed in the “PPI Detailed Report” are far more detailed (and less correlated) than those listed in the “CPI Detailed Report.” In addition, these commentators argue that the proposed rule fails to recognize that the PPI does not necessarily reflect cost for retailers not using the retail method because the majority of retailers purchase their goods from wholesalers not producers. Finally, the commentators expressed concern that the proposed rule would preclude retailers that use the retail method at their stores and a cost method at their warehouses from using the price indexes listed in the “CPI Detailed Report” when retail price information is not ascertained or readily available for goods in warehouses.

The IRS and Treasury Department generally agree with the commentators' concerns. Accordingly, the final regulations permit all retailers using the IPIC method to assign items in dollar-value pools to the BLS categories listed in either the “CPI Detailed Report” or the “PPI Detailed Report,” whichever is selected.

The proposed regulations provide that manufacturers and processors must assign all work-in-process (WIP) items in a dollar-value pool to the most-detailed index categories that include the finished goods into which the WIP item will be manufactured or processed. For this purpose, finished good means any good that is in a salable state.

Several commentators objected to the proposed requirement that a taxpayer compute a separate inflation index for a WIP item that is in a salable state but not regularly sold by the taxpayer.

The IRS and Treasury Department agree with the commentators' objection to the extent that the taxpayer's WIP items are merely salable. Accordingly, the final regulations provide that a taxpayer is not required to compute a separate category inflation index for a salable WIP item, unless the taxpayer regularly sells that WIP item.

The current regulations provide special, elective pooling rules for retailers, wholesalers, jobbers, and distributors that use the IPIC method. These taxpayers are permitted to establish a dollar-value pool for any group of goods included in one of the 11 general categories of consumer goods described in the “CPI Detailed Report.” In addition, Rev. Proc. 84-57 provides that inventory pools may be established for any group of goods included within one of the 15 general categories of producer goods described in Table 6 of the “PPI Detailed Report.” Finally, the regulations provide that dollar-value pools that comprise less than 5 percent of inventory value may be combined to form a single miscellaneous dollar-value pool. If the resulting miscellaneous dollar-value pool itself comprises less than 5 percent of inventory value, that pool may be combined with the largest dollar-value pool.

The proposed regulations retain the special, elective pooling rules for inventory items accounted for under the IPIC method contained in the current regulations and incorporate the special, elective pooling rules contained in Rev. Proc. 84-57.

Several commentators asked whether taxpayers must apply the 5 percent rules to a dollar-value pool annually and, if so, how they are to account for dollar-value pools that no longer satisfy the 5 percent threshold. One commentator suggested that the IRS and Treasury Department make these 5 percent rules optional, state whether these rules are methods of accounting, and require taxpayers to apply the principles of § 1.472-8(g)(2) when changing dollar-value pools because of these 5 percent rules. Another commentator recommended that taxpayers be permitted to include inventories not accounted for under the LIFO method in “inventory value” when determining whether the 5 percent rules apply.

The IRS and Treasury Department believe that both of the 5 percent rules for dollar-value pools have been, and remain, optional. Under the current and proposed regulations, a taxpayer may, but is not required to, combine two or more specific dollar-value pools into a single miscellaneous dollar-value pool when the cost of each specific dollar-value pool does not exceed 5 percent of the total cost of the taxpayer's LIFO inventory. In addition, a taxpayer may, but is not required to, combine the single miscellaneous dollar-value pool and the largest specific dollar-value pool when cost of the miscellaneous dollar-value pool does not exceed 5 percent of the total cost of the taxpayer's LIFO inventory. Furthermore, the IRS and Treasury Department believe that both of the 5 percent rules are methods of accounting within the broader IPIC pooling method, so a taxpayer may not change to, or cease using, either of the 5 percent rules without obtaining the Commissioner's prior consent. In addition, any change in pooling required by the taxpayer's proper use of the 5 percent rule(s) is a change in method of accounting. Thus, the final regulations require a taxpayer in these circumstances to combine and separate its dollar-value pools in accordance with § 1.472-8(g). Moreover, the final regulations require a taxpayer to determine whether to separate or combine the 5 percent pools every third taxable year based on current-year data rather than on average data.

The current regulations require a taxpayer that changes to the IPIC method from another dollar-value LIFO method to treat the year of change as the base year in determining the LIFO value of the dollar-value pool(s) for the year of change and later taxable years. The taxpayer is required to restate the base-year cost of the existing increments in terms of new base-year cost, which also requires the restatement of the IPI of each of the layers. This procedure is referred to alternatively as updating the base year or establishing a new base year.

One commentator suggested eliminating the reference to § 1.472-8(f)(2) in the case of a voluntary change from the specific goods LIFO method to the dollar-value LIFO method because taxpayers and tax practitioners have long questioned how to implement this change without updating the base year. The final regulations adopt this suggestion and require a taxpayer changing from the specific goods LIFO method to the IPIC method to establish a new base year. Although guidance addressing taxpayers changing from the specific goods LIFO method to a dollar-value LIFO method other than the IPIC method is outside the scope of these regulations, the IRS and Treasury Department are considering whether to issue additional guidance to address the commentator's concerns regarding changes from the specific goods method to a dollar-value LIFO method.

The proposed regulations clarify that the base-year-updating procedure is mandatory for voluntary changes to the IPIC method. However, the proposed regulations authorized examining agents to require a change to the IPIC method in circumstances where the taxpayer's prior method does not clearly reflect income and to implement the change using a cutoff method in circumstances where the taxpayer's books and records lacked the information necessary to compute a section 481(a) adjustment. The latter provision was intended to provide examining agents with an alternative to LIFO termination in appropriate circumstances.

One commentator objected to giving examining agents the authority to require a taxpayer using a LIFO method to change to the double-extension IPIC method even when the taxpayer produces records that will allow the agent to calculate the effect of changing to a correct method other than the IPIC method. This commentator requested “clear-cut” published guidance on the types of records that taxpayers using a LIFO method must retain and the length of time that they must retain them. In addition, because of the administrative burden associated with record retention (particularly those records needed for LIFO methods not used by the taxpayer), this commentator requested that the IRS and Treasury Department create a shortcut procedure, similar to the three-year transition rule under § 1.263A-7(c)(2)(iv), to calculate the effect of changing the taxpayer's LIFO method. Finally, this commentator suggested that the IRS and Treasury Department, as a matter of fairness, permit a taxpayer to recompute each year's layer using the IPI for that year.

Several commentators urged the IRS and Treasury Department to withdraw the involuntary change provisions entirely or, alternatively, to modify them to give examining agents discretion to impose a change to the double-extension IPIC method with or without establishing a new base year. One of these commentators also urged the IRS and Treasury Department to give these examining agents discretion to impose a change to either the double-extension IPIC method or the link-chain IPIC method.

In response to these comments, the final regulations provide that an examining agent may change a taxpayer from a LIFO method that does not clearly reflect income to the IPIC method. If the agent decides to change the taxpayer to the IPIC method, and the taxpayer does not provide sufficient information from its books and records to compute an adjustment under section 481, the agent may implement the change using the simplified transition method. Under the simplified transition method, the agent makes certain assumptions regarding the composition of ending inventory in prior taxable years and recomputes the LIFO value of each dollar-value pool as of the beginning of the year of change using the IPIC method. The section 481(a) adjustment arising from the accounting method change is equal to the difference between that recomputed LIFO value and the LIFO value of the dollar-value pool determined under the taxpayer's former method. The IRS and Treasury Department are considering other simplified methods of computing a section 481(a) adjustment arising from a change from one LIFO method to another and may publish additional guidance in the future. The suggestion regarding the issuance of guidance on a taxpayer's record keeping requirement is beyond the scope of this project, but will be considered for possible future guidance.

An election to use the dollar-value LIFO method for LIFO inventories received in a nonrecognition transaction to which section 381 does not apply (non-section 381 transfer) may not continue the LIFO reserve of the transferor. If the mix of goods in the inventory changes significantly after the transfer, the mechanics of the dollar-value LIFO method may produce an artificial increment in the year the inventories are received that effectively eliminates the LIFO reserve established by the transferor. This artificial increment occurs because the base-year cost of new items are reconstructed to the transferee's base year (i.e., the year it elects LIFO) and not to the transferor's base year. When a transferee elects the LIFO and IPIC methods for LIFO inventories received in a non-section 381 transfer, the transferee will have an artificial increment in the year the inventories are received even without a significant change in the mix of goods in its ending inventory. The IPIC method invariably produces an increment because the difference between the current-year cost and the carryover basis of the transferred inventories (i.e., the base-year cost) reflects more than one year's inflation and the IPI used to convert the current-year cost of the dollar-value pool at the end of the taxable year to base-year cost will reflect only one year's inflation.

To prevent the recapture of a transferor's LIFO reserve in a non-section 381 transfer, the proposed regulations require the transferee to update its base-year cost if a transferee uses the dollar-value LIFO method for inventories received in a non-section 381 transfer and the transferor accounted for those inventories using the dollar-value LIFO method as follows. First, the transferee's base year for the inventories received from the transferor is the year of transfer. Second, the transferee's base-year cost for the inventories received from the transferor is equal to the transferor's current-year cost for those inventories. Finally, if the transferee owned inventories prior to the transfer, the new base-year cost of those inventories will be equal to their current-year cost. The proposed regulations do not affect either the ability of a newly formed transferee to elect new accounting methods or the holdings of Rev. Rul. 70-564 (1970-2 C.B. 109) and Rev. Rul. 70-565 (1970-2 C.B. 110). However, the proposed regulations do not apply to a non-section 381 transfer if its principal purpose is to avail the transferee of a method of accounting that is unavailable to the transferor (or is unavailable to the transferor without the Commissioner's consent).

One commentator asserted that when a taxpayer described in Rev. Rul. 70-564 (i.e., no beginning LIFO inventories) applies the proposed rule to transferred inventories, the resulting IPI of the collapsed base-year layer will not equal 1. Because this result may cause some confusion, the commentator suggested including an example in the final regulations. The final regulations include an example demonstrating the computation of increments and liquidations after a new base year is established.

Several commentators asserted that the proposed rule may result in the creation of an artificial increment or liquidation when a transferee and transferor use different methods of determining current-year costs. Thus, the regulations should be changed to permit a transferee to establish (or reconstruct) the new base-year cost of the transferred inventories equal to the transferor's first-in, first-out cost for the year immediately preceding the year of transfer, or alternatively, if the final regulations continue to require the use of the transferor's current-year cost and current-year cost method, the regulations should be changed to provide that the period for measuring inflation for the base year is between the appropriate month for determining base-year cost and the appropriate month for determining current-year cost. In addition, one commentator suggested that the final regulations be changed to clarify that “beginning inventory, if any” refers only to inventory that the transferee actually owned before the nonrecognition transaction.

The IRS and Treasury Department agree with these commentator's concerns. Accordingly, the final regulations permit the transferee to compute the base-year cost of transferred inventories using its current-year cost and its method of determining current-year cost. The final regulations also clarify the meaning of beginning inventory.

Another commentator contended that the holding of Rev. Rul. 70-564 is incorrect and, thus, the average cost rule of section 472(b)(3) should not be applied to inventories received by a transferee without an existing LIFO election in a non-section 381 transfer. In addition, this commentator noted that the holding of Rev. Rul. 70-564 is inconsistent with § 1.1502-13 (concerning intercompany transactions), which generally provides that an intercompany transaction may not change the timing of the recognition of income or deductions. This commentator suggested that the holding of Rev. Rul. 70-565, which provides for a carryover of a transferor's LIFO layer history in a section 351 transfer to a transferee with an existing LIFO election, should be applied in all non-section 381 transfers.

The IRS and Treasury Department believe this comment is outside the scope of these final regulations. However, in response to this comment, the IRS and Treasury Department are reconsidering whether to continue to require different results upon the transfer of LIFO inventories in a non-section 381 transfer (as currently required by Rev. Rul. 70-564 and Rev. Rul. 70-565 ) depending upon whether the transferee has an existing LIFO election.

The proposed regulations provide that proposed §§ 1.472-8(b)(4), (c)(2), and (e)(3) will apply to taxable years beginning on or after the date they are published in the Federal Register as final regulations. In addition, the proposed regulations provide that proposed § 1.472-8(h) will apply to transfers occurring on or after the date it is published in the Federal Register as a final regulation.

One commentator suggested that taxpayers be permitted, but not required, to apply §§ 1.472-8(b)(4), (c)(2), and (e)(3) for taxable years ending on or after the date the regulations are published in the Federal Register as final regulations. This commentator also suggested that taxpayers be permitted to apply § 1.472-8(h) to transfers occurring during the taxable year ending on or after the date the regulations are published in the Federal Register as final regulations. In addition, several commentators suggested that the transition period for an automatic change in method of accounting to comply with §§ 1.472-8(b)(4), (c)(2), and (e)(3) be extended to include the second taxable year ending on or after the date the regulations are published in the Federal Register as final regulations.

The IRS and Treasury Department agree with these suggestions. However, in order to ensure that taxpayers may implement these changes for taxable years ending December 31, 2001, as requested by the commentators, the final regulations are effective for taxable years ending on or after December 31, 2001.

Rev. Proc. 84-57, Rev. Rul. 89-29, and Rev. Proc. 98-49 are obsolete on January 9, 2002.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. Pursuant to section 7805(f) of the Code, the proposed regulations preceding this Treasury decision was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business. It is hereby certified that the collections of information in this Treasury decision will not have a significant economic impact on a substantial number of small entities. First, only taxpayers that adopt, or change to, the IPIC method will be affected by the collections of information. Second, relatively few small entities are expected to adopt, or change to, the IPIC method. Third, the burden of the collections of information is not significant. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required.

The principal author of these regulations is Leo F. Nolan II of the Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and Treasury Department participated in their development.

The Burlington Railroad Drawbridge provides a vertical clearance of 21.5 feet above normal pool in the closed-to-navigation position. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. This deviation has been coordinated with waterway users. No objections were received.

On November 27, 2001 the Burlington Northern Santa Fe Railroad requested the bridge be maintained in the closed-to-navigation position to allow the bridge owner time for preventative maintenance in the winter and when there is less impact on navigation; instead of scheduling maintenance in the summer, when river traffic increases.

This deviation allows the bridge to remain closed-to-navigation from 12:01 a.m. Central Standard Time (CST) on December 31, 2001, until 12:01 a.m. Central Standard Time (CST) on March 1, 2002. The drawbridge will open on signal if at least six (6) hours advance notice is given. Advance notice may be given by calling Mr. Louis Welte, (309) 345-6103 during work hours and Mr. Larry Moll, (309) 752-5244, after work hours.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . This rule is being promulgated without an NPRM due to the short time frame allowed between the submission of the request by the Canadian National/Illinois Central Railroad Company and the date of requested closure. The Coast Guard received the Canadian National/Illinois Central Railroad Company's request on 6 November 2001. Winter conditions on the Upper Mississippi River coupled with the closure of Army Corps of Engineer's Lock No. 24 (Mile 273.4 UMR) until March 2, 2002 and Lock No. 12 (Mile 556.7) until March 11, 2002, will preclude any significant navigation demands for the drawspan opening. This temporary change to the drawbridge's operation has been coordinated with the commercial waterway operators. No objections were raised.

On November 6, 2001, the Canadian National/Illinois Central Railroad Company requested a temporary change to the Operation of the Illinois Central Railroad swing bridge across the Upper Mississippi River, Mile 579.9 at Dubuque, Iowa. Canadian National/Illinois Central Railroad Company requested that navigation temporarily provide 24 hours advance notice for bridge operation to facilitate required bridge maintenance during the winter months.

The Illinois Central Railroad Drawbridge navigation span has a vertical clearance of 19.9 feet above normal pool in the closed-to-navigation position. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. Presently, the draw opens on signal for passage of river traffic. The Canadian National/Illinois Central Railroad Company requested the drawbridge be permitted to remain closed-to-navigation from 12:01 a.m., December 27, 2001, until 9 a.m., March 11, 2002 unless 24 hours advance notice is given of the need for it to open. Winter conditions on the Upper Mississippi River coupled with the closure of Army Corps of Engineer's Lock No. 24 (Mile 273.4 UMR) until March 2, 2002 and Lock No. 12 (Mile 556.7) until March 11, 2002, will preclude any significant navigation demands for the drawspan opening. The Illinois Central Railroad Drawbridge, Mile 579.9 Upper Mississippi River, is located upstream from Lock 24. Performing maintenance on the bridge during the winter, when the number of vessels likely to be impacted is minimal, is preferred to bridge closures or advance notification requirements during the commercial navigation season. This temporary change to the drawbridge's operation has been coordinated with the commercial waterway operators. No objections were raised.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

The Coast Guard expects the economic impact of the temporary rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This is because river traffic will be extremely limited by lock closures and ice during this period.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605 (b) that this rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Any individual that qualifies or, believes he or she qualifies as a small entity and requires assistance with the provisions of this rule, may contact Mr. Roger K. Wiebusch, Bridge Administrator, Eighth Coast Guard District, Bridge Branch, at (314) 539-3900, extension 378.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.1 (series), this rule is categorically excluded from further environmental documentation. Promulgation of changes to drawbridge regulations has been found not to have significant effect on the human environment. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM, which would incorporate a comment period before a final rule was issued, would be contrary to the public interest since immediate action is needed to protect the public, ports, and waterways of the United States. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The Coast Guard will issue a broadcast notice to mariners advising of this new rule.

Based on the September 11, 2001, terrorist attacks on the World Trade Center in New York and the Pentagon in Arlington, Virginia, there is an increased risk that further subversive activity may be launched against the United States. These terrorist acts have increased the need for safety and security measures on U.S. ports and waterways as further attacks may be launched from vessels within the area of Port Hueneme Harbor and the Naval Base Ventura County.

In response to these terrorist acts, to prevent similar occurrences, and to protect the Naval Facilities at Port Hueneme Harbor and the Naval Base Ventura County, the Coast Guard is establishing a security zone in all waters within Port Hueneme Harbor. This security zone is necessary to prevent damage or injury to any vessel or waterfront facility, and to safeguard ports, harbors, or waters of the United States in Port Hueneme Harbor, Ventura County, CA. Specifically this security zone prohibits all vessels from entering Port Hueneme Harbor, beyond the International Regulations for Preventing Collisions at Sea, 1972 (COLREGS) demarcation line set forth in section 80.1120 of Title 33 of the Code of Federal Regulations (CFR), without first filing a proper Advance Notification of Arrival as required by sections 160.T208-T214 of Title 33 of the CFR as well as obtaining clearance from Commanding Officer, Naval Base Ventura County, “Control 1”.

This security zone is established pursuant to the authority of the Magnuson Act regulations promulgated by the President under 50 U.S.C. 191, including sections 6.01 and 6.04 of Title 33 of the CFR. Vessels or persons violating this section are subject to the penalties set forth in 50 U.S.C. 192: seizure and forfeiture of the vessel, a monetary penalty of not more than $10,000, and imprisonment for not more than 10 years.

This rule will be enforced by the Captain of the Port Los Angeles-Long Beach, who may also enlist the aid and cooperation of any Federal, State, county, municipal, and private agencies to assist in the enforcement of this rule. Commanding Officer, Naval Base Ventura County, “Control 1,” will control vessel traffic entering Port Hueneme Harbor.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979) because this zone will encompass a small portion of the waterway.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

For the same reasons stated in the Regulatory Evaluation section above, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this rule and concluded that it is categorically excluded from further environmental review.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Discussions were held with all interests most likely to be affected by this safety zone. These include Massachusetts Highway Department, The Middlesex Corporation (TMC), Weymouth Fore River operators, barge and ferry companies, and recreational boater representatives. These interests agree that the parameters of the zone will not unduly impair business and unscheduled operations or transits of vessels. Therefore, notice and comment is unnecessary. Any delay encountered in this regulation's effective date would be unnecessary and contrary to public interest since immediate action is needed to protect marine traffic from bridge construction hazards while transiting a portion of the Fore River, Weymouth, Massachusetts, during the Fore River Bridge repairs. This safety zone should have minimal impact on vessel transits due to the fact that the safety zone does not block the entire channel, and procedures have been established for the movement of the construction barge, should larger vessels that are unable to transit around the barge while in the channel, need to transit the area. Notifications will be made to the maritime community via notice to mariners and marine information broadcasts informing them of boundaries of the zone.

A previous rulemaking, published at 66 FR 13851, effective from February 21 through December 31, 2001, established a safety zone identical to that established in this rulemaking to conduct repairs to the Fore River Bridge. Additional time is needed to complete the repairs required to allow for the proper operation of the bridge. The safety zone allows TMC to place a 55-foot-wide crane barge in the Fore River underneath the Fore River Bridge to conduct repair operations, Monday through Saturday of each week from January 1, 2002 through September 30, 2002. This safety zone prohibits vessels from operating within 30-feet of the barge. Most marine traffic may transit safely outside of the safety zone during the repairs. In the event a large vessel should need to transit the channel, the TMC barge shall move upon request. Requests to move the barge should be made directly to TMC at (781) 665-3261 or (978) 590-2754 with as much advance notice as possible (at least 8 hours is preferred). The Captain of the Port anticipates minimal negative impact on vessel traffic due to this event. Public notifications will be made prior to the effective period via safety marine information broadcasts.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

Although this regulation prevents traffic from transiting a portion of the Weymouth Fore River during this bridge repair period, the effect of this regulation will not be significant for several reasons: maritime interests, which frequently use the channel, have provided input into the scheduling of the bridge repairs, the safety zone does not block the entire channel, advanced notice will be given through marine broadcasts, and the construction barge will be required to move upon request for larger vessels unable to transit around it while in the channel.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Weymouth Fore River between January 1 and September 30, 2002. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The safety zone does not block the entire channel, advanced notice will be given through marine broadcasts, and the construction barge will be required to move upon request for larger vessels unable to transit around it while in the channel.

Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 [Pub. L. 104-121], the Coast Guard wants to assist small entities in understanding this final rule so that they can better evaluate its effects on them and participate in the rulemaking. If your small business or organization would be affected by this final rule and you have questions concerning its provisions or options for compliance, please call Chief Petty Officer Michael Popovich, Marine Safety Office Boston, at (617) 223-3067. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

The Coast Guard analyzed this rule under Executive Order 13132 and has determined that this rule does not have implications for federalism under that Order.

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. A rule with tribal implications has a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. Publishing a NPRM, which would incorporate a comment period before a final rule was issued, would be contrary to the public interest since immediate action is needed to protect the public, ports and waterways of the United States. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The Coast Guard will issue a broadcast notice to mariners and place Coast Guard vessels in the vicinity to advise mariners of the restriction.

Based on the September 11, 2001, terrorist attacks on the World Trade Center buildings in New York and the Pentagon in Arlington, Virginia, there is an increased risk that subversive activity could be launched by vessels or persons in close proximity to the Ports of Palm Beach, Miami, Port Everglades, and Key West, Florida against tank vessels and cruise ships entering, departing and moored within these ports. There will be Coast Guard and local police department patrol vessels on scene to monitor traffic through these areas.

The security zone for the Port of Palm Beach is activated when a subject vessel passes the “LW” buoy, at approximate position 26° 46′ 18N, 080° 00′ 36W. The security zone for the Port of Miami is activated when a subject vessel passes the “M” buoy, at approximate position 25° 46′ 06N, 080° 05′ 00W. The Port Everglades security zone starts when a subject vessel passes “PE” buoy, at approximate position 26° 05′ 30N, 080° 04′ 48W. And the security zone for the Port of Key West is activated when a subject vessel passes “KW” buoy, at approximate position 24° 27′ 42N, 081° 48′ 06W. The zone for a vessel is deactivated when the vessel passes these buoys on its departure from port.

The Captain of the Port will notify the public via Marine Safety Radio Broadcast on VHF Marine Band Radio, Channel 22 (157.1 MHz) of all active security zones in the ports by identifying the names of the vessels around which the zones are centered. Entry into these security zones is prohibited, unless specifically authorized by the Captain of the Port, Miami, Florida.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The Office of Management and Budget has not reviewed it under that order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979).

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities because small entities may be allowed to enter the zone on a case by case basis with the authorization of the Captain of the Port.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

A rule has implication for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. It is not economically significant and creates no environmental risk to health or risk to safety disproportionately affecting children.

The Coast Guard considered the environmental impact of this rule and concluded under Figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationships between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or use. We have determined that it is not a “significant energy action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

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

You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at ttp://www.epa.gov/fedrgstr/. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_180/Title_40/40cfr180_00.html, a beta site currently under development.

2. In person . The Agency has established an official record for this action under docket control number OPP-301193. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of July 7, 2000 (65 FR 41984) (FRL-6556-8), EPA issued a notice pursuant to section 408 of the FFDCA, 21 U.S.C. 346a(e), as amended by the FQPA (Public Law 104-170) announcing the filing of a pesticide tolerance petition by AgriVir, LLC., 1625 K St., NW., Washington, DC 20006. This notice included a summary of the petition prepared by the petitioner AgriVir, LLC. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of IMMGV.

New section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” Additionally, section 408(b)(2)(D) requires that the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Based on the toxicology data cited and the limited exposure to humans and domestic animals, there is a reasonable certainty that no harm will result from aggregate exposure to IMMGV to the U.S. population including infants and children to residues of IMMGV when used as viral pest control agent to control the Indian Meal Moth on stored nuts and dried fruits. This includes all anticipated dietary exposures and all other exposures for which there is reliable information. The Agency has arrived at this conclusion based on the long history of research, use and safety of testing baculoviruses which is documented in the public scientific literature (Doller, G. 1985. The safety of insect virus as biological control agents. In “Viral Insecticides for Biolocial Control” (Eds. Maramorosch, K. and Sherman, H.G.), Academic Press, New York: 399, Heimpel, A.M. 1971. Safety of insect pathogens for man and vertebrates. In “Microbial Control of Insects and Mites” (Eds. Burges, H.D. and Hussey, N.W.), Academic Press, New York: 469-489, Groner, A. 1986. Specificity and safety of baculoviruses. In “The Biology of Baculoviruses Vol. I: Biological Properties and Molecular Biology” (Eds. Granados, R.D. and Federici, B.A), CRC Press, Boca Raton, Florida: 177-202). Consigili, R.A., D.L, Russell and M.E. Wilson. 1986. The biochemistry and molecular biology of the granulosis virus that infects Plodia interpunctella . Cur. Top. Microbiol. and Immunol. 131: 69-101. Hunter, D.K. 1970. Pathogenicity of a granulosis virus of the Indian meal moth. J. Invertebr. Pahtol. 16: 339-341.

IMMGV is a naturally-occurring organism to which some environmental and dietary exposure is likely to be common for most individuals. The conclusion of safety is further supported by the lack of toxic or pathogenic effects on test animals at high doses (data submitted by the registrant, MRID #'s 453070-01, 450662-07 & 450662-08). Baculoviruses have been described in the scientific literature for approximately 40 years. In addition to their natural occurrence, these viruses have a long history of safe use as bioinsecticides. Baculoviruses have been studied extensively in both laboratory and field experiments, which have shown that the virus host range is limited to arthropods. IMMGV has been shown to be very restricted in its insect host range. No toxicological or pathogenic effects produced by the baculovirus itself, have been observed in mammals, birds, fish or plants. The lack of mammalian toxicity at high levels of exposure to IMMGV demonstrates the safety of the product at levels well above maximum possible exposure levels anticipated in the crops. There has been a significant amount of research performed on baculoviruses and numerous scientific references are available which describe the biology of these viruses, their host range, and their mode of action.

Toxicity studies submitted in support of this tolerance exemption include the following:

1. Acute oral toxicity/pathogenicity (453070-01) . Thirteen male (254-321g) and 13 female (160-208g) albino rats were divided into three groups and treated with 0.1 milliliter (mL) of the test substance. Treatment was administered by oral gavage with at least 1 x 10 8 viral particles per animal. No deaths occurred in any of the test animals. Other than diarrhea during the first few hours following dosing, there were no other apparent clinical symptoms. Based upon the data there were no significant adverse effects reported upon doses of at least 1 x 10 8 viral capsules. Toxicity Category IV.

2. In vitro mammalian cell viral infectivity in mammalian cells (450662-08) . Human WI-38 and WS1 cell cultures and African Green monkey CV-1 cell cultures were exposed to ≥ 1 x 10 6 units of the test substance. The cell cultures were observed daily for 21 days following inoculation for virus induced cytopathic effects. The test preparation was shown to be highly infectious and cytopathic to the target Plodia interpunctella larva. No differences were seen between the virus treated nor the solvent treated control cell cultures with respect to any cytopathic endpoint at any time post-inoculation. Based on the data, there was no evidence that the virus could infect any of the three mammalian cell lines.

3. In vitro mammalian cell viral induced cytotoxicity (450662-07). Human WI-38 and WS1 cell cultures and African Green monkey CV-1 cell cultures were exposed to ≥ 1 x 10 6 units of IMMGV Technical (IMMGV) for 1-hour. The cell cultures were then washed, refed with virus-free medium, incubated for 8 days, fixed, stained and the number of colonies counted. The test preparation was shown to be highly infectious and cytopathic to the target Plodia interpunctella larva although analysis determined that the actual number of viral capsules used was only 42% of the target value. No differences were seen between the virus treated nor the solvent treated control cell cultures with respect to cloning efficiency in any of the three cell lines. Based on the data, there was no evidence that the test substance was cytotoxic to any of the three mammalian cell lines.

4. Acute eye irritation (450662-09) . The test substance was instilled in the eyes of four males and two female adult New Zealand albino rabbits at approximately 0.04 g/eye (~7.14 x 10 9 viral capsules). Animals were acclimated for 11 days and before treatment their eyes were checked for normalcy using ophthalmic fluorescein and an ultraviolet (UV) lamp. The right eye of each animal was treated and the other eye served as a control. No deaths occurred. Clinical signs noted included conjunctivitis, corneal opacity and iritis, all of which cleared within 4 days of treatment. Toxicity Category IV.

Data waivers were requested for the following studies:

1. Acute dermal toxicity . This study was waived based upon the lack of toxicity in animals dosed orally (453070-01) and more importantly cells inoculated with viral pest control agent (450662-07 & 450662-08). Cell culture infectivity and cytoxicity assays demonstrated that there were no toxic effects to mammalian cell lines (human lung, human endothelial and primate renal cell lines) when infected with doses of IMMGV. Cell culture assays provide valuable information on the ability of the viral pest control agent to infect, replicate in, transform or cause toxicity in mammalian cell lines. Thus, this assay is the most likely indicator of evaluating the toxicity of a viral pest control agent. Unlike the oral, dermal and inhalation routes of exposure, these barriers (exposure conditions) do not exist in cell culture assays as the host cell is completely exposed thus providing a higher exposure potential (for exposure of body tissues, organs and systems). Cell culture studies which demonstrate no toxicity to mammalian cell lines upon infection with the viral pest control agent can therefore be used as an indicator in determining the probability of toxicity to the viral pest control agent via other routes of exposure (oral, dermal, inhalation). Therefore, this evaluation criteria along with the data submitted (referenced above) and the long history of safe use of baculoviruses provided the Agency with a scientific rationale to waive the requirement for an acute dermal toxicity study. In addition, the IMMGV is a characteristically large molecular entity and is therefore unable to penetrate intact skin. However, in the unlikely event that viral penetration does occur through contact with broken skin, the studies submitted by the registrant have demonstrated a lack of toxicity/pathogenicity and infectivity associated with IMMGV.

2. Acute inhalation toxicity. This study was waived based upon the lack of toxicity in animals dosed orally (453070-01) and more importantly cells inoculated with viral pest control agent (450662-07 & 450662-08). Cell culture infectivity and cytoxicity assays demonstrated that there were no toxic effects to mammalian cell lines (human lung, human endothelial and primate renal cell lines) when infected with doses of IMMGV. Cell culture assays provide valuable information on the ability of the viral pest control agent to infect, replicate in, transform or cause toxicity in mammalian cell lines. Thus, this assay is the most likely indicator of evaluating the toxicity of a viral pest control agent. Unlike the oral, dermal and inhalation routes of exposure, these barriers (exposure conditions) do not exist in cell culture assays as the host cell is completely exposed thus providing a higher exposure potential (for exposure of body tissues, organs and systems). Cell culture studies which demonstrate no toxicity to mammalian cell lines upon infection with the viral pest control agent can therefore be used as an indicator in determining the probability of toxicity to the viral pest control agent via other routes of exposure (oral, dermal and inhalation). Therefore, this evaluation criteria along with the data submitted (referenced above) and the long history of safe use of baculoviruses provided the Agency with a scientific rationale to waive the requirement for an acute inhalation toxicity study. In addition, the product labeling includes precautionary language for the pesticide handler to a dust mask as a further measure of safety.

3. Primary dermal irritation . This study was waived based upon the lack of toxicity in animals dosed orally (453070-01) and more importantly cells inoculated with viral pest control agent (450662-07 & 450662-08). Cell culture infectivity and cytoxicity assays demonstrated that there were no toxic effects to mammalian cell lines (human lung, human endothelial and primate renal cell lines) when infected with doses of IMMGV. Cell culture assays provide valuable information on the ability of the viral pest control agent to infect, replicate in, transform or cause toxicity in mammalian cell lines. Thus, this assay is the most likely indicator of evaluating the toxicity of a viral pest control agent. Unlike the oral, dermal and inhalation routes of exposure, these barriers (exposure conditions) do not exist in cell culture assays as the host cell is completely exposed thus providing a higher exposure potential (for exposure of body tissues, organs and systems). Cell culture studies which demonstrate no toxicity to mammalian cell lines upon infection with the viral pest control agent can therefore be used as an indicator in determining the probability of toxicity to the viral pest control agent via other routes of exposure (oral, dermal and inhalation). Therefore, this evaluation criteria along with the data submitted (referenced above) and the long history of safe use of baculoviruses provided the Agency with a scientific rationale to waive the requirement for an acute dermal toxicity study. In addition, the product labeling includes precautionary language for the pesticide handler to wear gloves as a further measure of safety.

4. Literature citations (450662-06) . Information from the open scientific literature has been cited in support of the relative safety and lack of mammalian toxicity associated with baculoviruses to include the IMMGV. The IMMGV is very host-specific, it does not infect any host other than the Indian Meal Moth larvae and does not cross-infect any Lepidopteran or other insect. The range for the insect host is worldwide. Studies listed in the literature review provide information on the life cycle and mode of action of IMMGV such that it acts by pathogenicity, not a toxic mechanism. It presents no hazard potential to mammals and non-target species.

In examining aggregate exposure, FFDCA section 408 directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

1. Food . Because baculoviruses are naturally-occurring organisms, there is a great likelihood for previous exposure for most, if not all individuals. To date, there have been no reports of any hypersensitivity incidents or reports of any known adverse reactions resulting from exposure to IMMGV. The amount of product used will result in a negligible increase, if any, of virus exposure. In addition, even if there is a significant increase in exposure to the virus, the toxicity studies submitted by the registrant along with the extensive reports in the scientific literature indicating the safety of the viruses, suggest that there should not be any additional risk of adverse effects due to exposure to IMMGV.

2. Drinking water exposure . Because of the use site and amount of product that will be applied, potential non-occupational exposures in drinking water is negligible. Currently, there are no reports which show that IMMGV has been found in any drinking water. Baculoviruses occur naturally in soil and there is a low likelihood that they would survive passage through the soil to reach underground water (Consigili, R.A., and Wilson, M.E., 1986. The Biochemical and Molecular Biology of the Granulosis Virus that Infects Plodia Interpunctella . Current topics in Microbiology and Immunology 131:69-101. MRID 450662-06). Even if the virus is able to reach ground water, it is highly unlikely that the viruses would survive municipal water treatment due to its inability to survive outside its host. Therefore, it is likely there will not be an increase of IMMGV in drinking water. In addition, because the virus host range is limited to the Indian meal moth, even if the virus is found in drinking water, the results of the acute oral toxicity studies using a high dose of the virus, suggest that there will not be any adverse effects upon human consumption in the unlikely event any virus found its way into drinking water, therefore; the Agency has no drinking water exposure concerns.

Baculoviruses are naturally-occurring viruses that have been described in the scientific literature for approximately 40 years. In addition to scientific research, there has been a long history of safe use of baculoviruses to control arthropods. Because the amount of virus which will be applied is small, it is not likely that there will be a significant increase in potential exposure. Any increase in virus titer is likely to be negligible at most. Baculoviruses have been shown to have a host range limited to arthropods and the host range of this virus is even more restrictive than most baculoviruses (Consigili, R.A., and Wilson, M.E., 1986. The Biochemical and Molecular Biology of the Granulosis Virus that Infects Plodia Interpunctella . Current topics in Microbiology and Immunology 131:69-101. MRID 450662-06). Therefore, even if there was an increase in exposure, there should not be any increase in potential human health effects.

The Agency has considered available information on the cumulative effects of such residues and other substances that have a common mechanism of toxicity. These considerations included the cumulative effects on infants and children of such residues and other substances with a common mechanism of toxicity. Because there is no indication of mammalian toxicity to this or other baculovirus-containing products, the Agency is confident that there will not be cumulative effects from the registration of this product.

1. U.S. population . There is a reasonable certainty that no harm will result from aggregate exposure to the U.S. population from exposure to residues of IMMGV. This includes all anticipated dietary exposures and all other exposures for which there is reliable information. The Agency has arrived at this conclusion based on the long history of safe use of baculoviruses as bioinsecticides, the lack of mammalian toxicity associated with IMMGV, the limited host range of the virus and the inability of IMMGV to infect mammalian cell lines.

2. Infants and children. FFDCA section 408 provides that EPA shall apply an additional tenfold margin of exposure (safety) (MOE) for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database unless EPA determines that a different MOE will be safe for infants and children. MOEs are often referred to as uncertainty (safety) factors. In this instance, based on all the available information, the Agency concludes that IMMGV is practically non-toxic to mammals, including infants and children and that they will consume only minimal, if any, residues of the microbial pesticide. Thus, there are no threshold effects of concern and, as a result the provision requiring an additional margin of safety does not apply. Further, the provisions of consumption patterns, special susceptibility, and cumulative effects do not apply.

As a result, EPA has not used a MOE approach to assess the safety of the IMMGV.

There are no reports or indications in the available scientific literature which suggests that Indian meal moth granulosis virus has caused or has the potential to cause adverse effects on the endocrine and/or immune systems of humans or animals. The virus host range is limited to the Indian meal moth, where it would be expected to affect the defense systems of the target insect pest. The target insect's response is not different from any animal's response to a disease agent. These suppositions are confirmed by the results of the mammailian toxicity tests cited above.

The Agency proposes to establish an exemption from the requirement of a tolerance without any numberical limitation for the reasons stated above. For the same reasons, the Agency has concluded that an analytical method is not required for enforcement purposes for the IMMGV.

There are no Codex Maximum Residue Levels established for residues of the IMMGV.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301193 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before March 11, 2002.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

2. Tolerance fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit IX.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket number OPP-301193, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes an exemption from the tolerance requirement under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

We are issuing integrity management program requirements for pipelines in several steps. RSPA began the series of rulemakings by issuing requirements pertaining to hazardous liquid and carbon dioxide pipeline operators. A final rule which applies to hazardous liquid operators with 500 or more miles of pipeline was published on December 1, 2000 (65 FR 75378). That rule applies to hazardous liquid and carbon dioxide pipelines that can affect high consequence areas, which include populated areas defined by the U.S. Census Bureau as urbanized areas or places, unusually sensitive environmental areas, and commercially navigable waterways. We issued a similar proposed rule for hazardous liquid operators with less than 500 miles of pipeline (66 FR 15821; March 21, 2001).

We are now beginning the integrity management rulemakings for gas transmission lines by first proposing a definition of high consequence areas. This definition will be entirely separate from the definition established for hazardous liquid pipelines. We will then propose requirements for gas transmission pipeline operators to develop and implement integrity management programs to provide additional protections to those areas. We are proceeding in two steps for several reasons. We gathered and reviewed a great deal of information on where the potential consequences of a gas pipeline accident may be significant or may do considerable harm to people and their property. We compared this information to the areas we currently require enhanced protections. We are, however, still collecting information on and verifying the validity of pipeline assessment methods other than internal inspection devices and pressure testing. Information on viable alternative assessment methods for gas transmission pipelines is critical to our proposal for an integrity management program. Unlike hazardous liquid pipelines, a large percent of gas transmission pipelines are not configured for the use of internal inspection devices or cannot be taken out of service for any length of time due to the disruption of critical gas supply to customers. Therefore, we must complete this work before we issue a proposal to address protections for gas pipelines in high consequence areas.

Additionally, while a consensus standard on implementing an overall integrity management program is complete, many consensus standards on pipeline integrity management that could be incorporated into an integrity rulemaking are still under development. Therefore, we decided to proceed with a definition based on information we analyzed, and continue work on proposed assessment and protection requirements for an integrity management program.

RSPA created this definition through a process which began with the goal of improving the assurance of pipeline integrity in those geographic areas where a rupture could have the most significant consequence on people. We thought it necessary to focus on those geographic areas to ensure that operators would expend resources in the areas where the benefits would be greatest, while the regulatory agencies and the industry continued to learn how to effectively improve integrity for the entire pipeline system.

We next assembled technical information to support development of rules to define the geographic areas of focus and prescribe the process to be used to increase the assurance of pipeline integrity. This was accomplished through a series of discussions and meetings with representatives of the gas pipeline industry, research institutions, State pipeline safety agencies and public interest groups. We digested the technical information from these meetings and developed preliminary hypotheses about how the rules should be structured. These hypotheses were documented in the Information Notice (66 FR 34318; June 27, 2001), which invited public comment both on the hypotheses and on the technical issues requiring resolution.

We developed the definition that we are proposing in this rulemaking based on the technical input received during the series of stakeholder meetings and the comments received on the Federal Register Notice. The use of this definition for areas of high consequence, in conjunction with implementation of future integrity management requirements, represents a major step in increasing the assurance of integrity for gas pipeline systems. Once integrity management program requirements are in place for the high consequence areas, RSPA will review the benefits achieved for future consideration of whether to extend integrity management requirements to other areas on pipelines. This review will also help us formulate effective practices to further enhance the integrity of the entire pipeline infrastructure.

RSPA's goal in developing the gas pipeline integrity management rules is to provide the regulatory structure required for operators to focus their resources on improving pipeline integrity in the areas where a pipeline failure would have the greatest impact on public safety. The RSPA philosophy toward gas pipelines is to build on current Class location regulations which require the operator to know what people by location would be impacted by a pipeline rupture, and to require added assurance of pipeline integrity in the areas where the population density is greatest.

These current Class location regulations, which are unique to gas pipelines, require an operator to periodically (typically done annually) monitor and record data on increases in population near its pipelines. Data monitoring gives a current and very accurate picture of where people live and work who could be affected by a pipeline release.

Since January 2000, RSPA has met with State agencies, representatives of the Interstate Natural Gas Association of America (INGAA), the American Gas Association (AGA), Battelle Memorial Institute, the Gas Technology Institute (GTI), Hartford Steam Boiler Inspection and Insurance Company, and operators covered under 49 CFR part 192. (See DOT Docket No. 7666 for summaries of the meetings.) We also met with the Western States' Land Commissioners, National Governors Association, National League of Cities, National Council of State Legislators, Environmental Defense, Public Interest Reform Group, and Working Group on Communities Right-To-Know.

From these meetings we gained a clearer understanding of four significant characteristics of gas pipelines that we used in developing a proposed definition of high consequence areas. First, the effects of a gas pipeline rupture and subsequent explosion are highly localized. The physical properties of natural gas dictate that it rises upward from a rupture or hole in the pipeline as the gas expands into the air. The observation of damage at the sites of pipeline ruptures confirmed this behavior of gas. Second, the zone of damage from an explosion and burning of gas following a pipeline rupture is related to the line's diameter and the pressure at which the pipeline is operated. Again, RSPA confirmed these patterns from observing the heat affected zone surrounding actual pipeline ruptures and explosions. We correlated these observations using a simplified mathematical model relating the properties of the gas, the pipe diameter, and the operating pressure to the predicted heat affected zone. Third, the size of the heat affected zone from pipeline ruptures where pipe diameter was less than 36 inches and operating pressures were at or below 1000 psig, was limited to a diameter of approximately 660 feet.

RSPA corroborated the size of the heat affected zone by observing the sites of actual ruptures. The size of the zone is also consistent with the current Class location definitions. This consistency is not surprising. Thirty-some years ago when the Class location regulations were developed, the 660 foot-wide zone around a pipeline was based on available data about a heat affected zone. However, at that time data only existed on pipeline failures where the pipe diameter was less than 36 inches and the operating pressures were lower than 1000 psig. The fourth piece of information relevant to our proposed definition is that the heat affected zone for pipelines of diameter equal to or greater than 36 inches, operating at pressures in excess of 1000 psig, can extend to as much as 1000 feet from the pipeline. The size of the zone for larger pipelines is based on mathematical models verified by comparison with data on the areas burned around actual gas pipeline ruptures.

On the dates of February 12-14, 2001, we held a public meeting in Arlington, VA, to discuss integrity management requirements for gas pipelines in high consequence areas, and ways to enhance communications with the public about hazardous liquid and gas pipelines. This meeting featured reports on the status of industry and government activities to improve the integrity of gas pipelines. Meeting attendees also participated in in-depth discussions on the integrity of gas pipelines. The reports can be found in the DOT docket (#7666) and on the RSPA Web site under Initiatives/Pipeline Integrity Management Program/Gas Transmission Operators Rule.

At the public meeting, industry and State representatives presented their perspectives on a number of issues relating to integrity management. Several members of the public also made comments. Topics included:

• Considerations for defining high consequence areas affected by gas pipelines;

• Evaluation of design factors currently used for gas transmission pipelines;

• Evaluation of performance history and experience with the impact zone in gas transmission failures;

• Integrity management best practices and relationship between incident causes and industry practices;

• Options for various forms of direct assessment of the integrity of gas pipelines, including costs and effectiveness;

• Basis for establishing test pressure intervals;

• Appropriateness of using pressure (stress) to differentiate integrity standards for pipelines

• Status of research activities; and

• Status of development of new national consensus standards.

These presentations can be viewed on the RSPA Web site under Initiatives/Pipeline Integrity Management Program/Gas Transmission Operators Rule.

We integrated the results from this meeting with the list of technical perspectives and issues that RSPA developed during the stakeholder meetings held over the previous twelve months. We then formulated the hypotheses on which we expected to base an integrity management rule and questions related to these hypotheses. We published both in a Federal Register Notice that we discuss in the next section.

On June 27, 2001, RSPA issued a notice of request for comments (66 FR 34318) which asked for further information and clarification, and invited further public comment, on defining high consequence areas and developing integrity management requirements for gas transmission lines. In the notice, RSPA stated its objective to develop a rule on gas pipeline integrity management to address threats posed by pipeline segments in areas where the consequences of potential pipeline accidents pose the greatest risk to people and property, and provides additional protections for these areas. We had a similar objective when we developed the rules on liquid pipeline integrity management programs, although environmental protection played a larger role in those rules. We also advised on our intention to minimize any actual adverse impact of a new safety requirement on the supply of natural gas to customers.

In the notice, we described the seven elements we believed should be included in any gas pipeline integrity management rule. We used similar elements in developing the liquid pipeline integrity management rules. These elements were based on certain hypotheses we discussed in detail in the notice. Then, we invited comment about these elements and hypotheses. The notice further summarized the areas where RSPA was seeking further information before proposing an integrity management program rule for gas operators. We categorized these information needs into nine categories, seven of which were the elements we described as essential to any integrity management program rule. The other two categories were to seek information about the costs of an integrity management rulemaking, and the rule's potential impact on gas supply.

The first element we discussed was how to define high consequence areas, i.e., those areas where the potential consequences of a gas pipeline accident may be significant or may do considerable harm to people and their property. We put forth the following hypotheses for comment:

• Data from sites where gas pipelines ruptured and exploded show that the range of impact of such explosions is limited. Therefore, the area in which nearby residents may be harmed or there may be property damaged by potential pipeline ruptures, can be mathematically modeled as a function of the physical size of the pipeline and the material transported (typically, but not exclusively, natural gas).

• Because we require gas pipeline operators to maintain data on the number of buildings within 660 feet of their pipelines, the definition of potentially high consequence areas where additional integrity assurance measures are needed should incorporate these data.

• The range of impact from the rupture and explosion of very large diameter (greater than 36 inches) high pressure (greater than 1000 psi) gas pipelines is greater than the 660 feet currently used in the regulations.

• Special consideration must be given to protect people living or working near gas pipelines who would have difficulty evacuating the area quickly ( e.g. , schools, hospitals, nursing homes, prisons).

• Due to the relatively small radius of impact of a gas pipeline rupture and subsequent explosion, and the behavior of gas products, environmental consequences are expected to be limited. At this time, RSPA has little information to indicate the definition of high consequence areas near gas pipelines should include environmental factors.

• Given that pipeline operators maintain extensive data on the distribution of people near their pipelines, RSPA intends for operators to use these data, together with a narrative definition of a high consequence area (defined by RSPA), to identify the specific locations of high consequence areas.

To promote greater discussion of these issues, RSPA also initiated an electronic discussion forum which was open from June 27 through August 13, 2001, at the RSPA Web site under the subheading “More Information Needed on Gas Integrity Management Program.” A transcript of the electronic discussion forum is placed in this docket. Comments received relevant to a definition of high consequence areas are discussed here.

Comments to the docket were provided by one state public service agency, five industry associations (including one association of industrial gas consumers), sixteen companies or groups of companies that operate gas pipelines, one company that operates hazardous liquid pipelines, and one company that builds pipeline bridges. In this document we summarized the comments relating to the first element—Defining High Consequence Areas. We will summarize and discuss comments on the remaining elements when we propose a rule on requirements for gas pipeline integrity management programs.

This element of a rule would define the areas where the potential consequences of a gas pipeline accident may be significant or may do considerable harm to people and property. In the Information Notice, we discussed a model that was presented at the February public meeting relating gas pipeline diameter and operating pressure to the physical boundaries of the area impacted by the heat from a gas pipeline rupture and subsequent fire. C-FER, a Canadian research and consulting organization, developed the model which predicted the extent of the heat affected zone would be 660 feet for pipelines of up to 36 inches diameter and operating at pressures up to 1000 psig, and 1000 feet for larger pipelines operating at 1000 psig or higher. The model used 5000 BTU/hr-ft 2 as the critical heat flux for defining the impact radius. We requested comment on the validity of this model, and of any other models that could be used in developing a definition. We requested comment on the validity of limiting an impact zone to areas where there are more than 25 houses or a facility housing people of limited mobility.

We requested comment on the feasibility of including all populous areas where the impact radius could exceed 660 feet, and of including high traffic roadways, railways and places where people are known to congregate, such as, churches, beaches, recreational facilities, museums, zoos, and camping grounds. We also requested further information on the impacts of a gas release on areas of environmental significance, and for comment on including any of these areas in a definition.

AGA and APGA, trade associations representing investor-owned and municipally-owned gas utilities, submitted joint comments. They stated that high consequence areas should be defined by class location, census-based population data and the zone of influence analysis in the C-FER report. They commented that operators collect and use information establishing class location and that such data can be readily incorporated into a definition, but they believe census data should also be an option.

While AGA and APGA agreed with providing special protection for facilities housing people with limited mobility, they maintained that identifying these facilities may be very difficult if they are not licensed and listed by a city or state. They further maintained that it is not appropriate to analyze every place where people may congregate or every roadway intersection, because this information is very dynamic and would be very difficult to keep current. These associations also argued against including commercially navigable waterways or environmentally sensitive areas because Congress did not mandate these areas be included in a gas pipeline integrity rule, and a gas release would not present a significant risk to these areas.

AGA and APGA argued that requiring operators to maintain and submit detailed population data is inefficient. They pointed out that some operators do not keep current data on populations near their pipelines, but rather treat all lines as though they were Class 4. Also, that for older pipelines, the most available record would be the class location distribution along their pipelines.

AGL Resources, Inc., a parent company of Atlanta Gas Light Co., Chattanooga Gas Co., and Virginia Natural Gas, supported using the current definitions of Class 3 and 4 locations because the large majority of their transmission lines are designed to operate in class 4 locations. .

The Association of Texas Intrastate Natural Gas Pipelines commented that using class locations to define high consequence areas would be appropriate since operators already maintain this information. The Association recommended we only include additional criteria that can be applied uniformly across all pipeline systems, such as class locations where the impact radius exceeds 660 feet. The Association argued against including high traffic roadways and places where people are known to congregate because these areas would be too subjective and therefore difficult to interpret or enforce uniformly. The Association maintained that although gas pipelines pose insignificant environmental risks, it would be appropriate to require operators to evaluate their systems to determine areas where condensate or other liquids are known to accumulate, and where a rupture would lead to release of these liquids near sensitive wildlife areas or bodies of water.

Baltimore Gas & Electric Company (BG&E ), a natural gas distribution system operator, commented that a definition should incorporate non-population factors, particularly those based on the risk posed by a pipe segment, not simply the consequences of failure. BG&E also stated that the definition should differentiate transmission pipelines which are part of a distribution system where they are closely coupled to the distribution process, but did not suggest how to do this.

Chevron Pipe Line Company (CPL) supported protecting areas with facilities housing people unable to evacuate the area quickly. CPL was not in favor of including places where people congregate, because CPL thought the term too broad and it could easily encompass the entire length of a pipeline thereby diluting the focus on enhancing integrity in high risk areas.

Consumers Energy Company did not agree with defining high consequence area primarily by population density. Rather, Consumers Energy thought other factors that affect the overall risk a pipeline poses should be considered, such as pipeline operations, performance history and wall thickness.

El Paso Pipeline Group, an operator of five major natural gas transmission pipelines, commented that a definition should protect those areas where population density is greatest. El Paso urged RSPA to develop a workable definition which would take into consideration that operators have been collecting land use data relating to dwellings and other structures located within 660 feet of their pipelines. El Paso further urged RSPA to rely on the Gas Research Institute (GRI) study, dated December, 2001 (GRI-00/0189—“A Model for Sizing High Consequence Areas Associated With Natural Gas Pipelines”) because this study shows that the impact on the heat-affected zone depends on many factors beyond the heat flux value. Due to many factors involved, El Paso was in favor of the value used in the C-FER analysis as a reasonable value.

Enron Transportation Services (ETS) commented that using the current definitions of Class 3 and 4 locations would allow operators to integrate the existing population data they maintain (data on populated areas within 660 feet of a pipeline) into an integrity management plan. ETS maintained that the current definitions of class 3 and 4 areas should pick up less densely-populated areas on the fringe of these areas. ETS recommended that a definition include locations of facilities housing people of impaired mobility because these locations are consistent with the purpose of the class location process. ETS further added that many operators are already locating these facilities as part of their class location survey determination. ETS also supported the critical heat flux value used in the C-FER analysis as a reasonable value for evaluating a high consequence area.

ETS was against including crossings of roads and railways because of the low relative risk posed by pipelines at these locations, compared to the risk presented by vehicle and train traffic. ETS maintained that patrols of these locations, as the pipeline safety regulations currently require, will identify any potential problems. ETS further argued that places where the public congregates are already treated as populated areas requiring an increased level of protection. As for environmental areas, ETS commented that natural gas presents little threat to water and many pipeline rights-of-way have already had cultural resource clearance. Although ETS did not dispute that a threatened species or habitat could be affected, it did not want such areas generally included. ETS recommended operators treat such areas on a case-by-case basis, but such areas not be mapped for security reasons (e.g., the sole remaining habitat of a threatened or endangered species).

INGAA, a trade organization which represents interstate natural gas transmission pipeline companies, offered several comments about the hypotheses for the high consequence area definition. INGAA explained the 660-foot radius used in developing part 192 was based on photographs of actual burn areas from the ignition of a pipeline rupture; however, in 1970, few pipelines larger than 30 inches in diameter or operating at pressures higher than 1000 psig existed. INGAA further explained that the 5000 BTU/hr-ft 2 radiation heat flux used in the C-FER model was developed as part of an integrated analysis to define the heat affected zone around a ruptured natural gas pipeline and the results of this analysis were validated against data on the extent of the burn zone from actual pipeline ruptures. INGAA explained that this model produced a 660-foot radius circle for a 30-inch diameter pipeline operating at 1000 psig. INGAA did not see why the methodology could not be applied to a pipeline transporting hydrogen.

INGAA stated that a 25-house limit for a high impact zone is consistent with the definition for hazardous liquid pipelines, where a population density of 1000 people or more per square mile was used. INGAA maintained that this translates to 25 houses within a circle of 660-foot radius, assuming two people per house. INGAA further argued that based on typical Class 3 population density, 25 houses is an appropriate number and consistent with class location regulations.

INGAA argued that it would be too expensive to collect data on areas beyond the 660-foot radius. However, INGAA would support extending the area of protection beyond the 660-foot corridor for structures containing concentrations of people with limited mobility, such as, hospitals, schools, childcare facilities, retirement communities or prisons. INGAA explained that this is consistent with the current draft of the Integrity Management Appendix to American Society of Mechanical Engineers (ASME) B31.8 Std.

INGAA argued that current definitions for Class 3 and 4 areas probably cover many areas where people congregate. INGAA acknowledged that high traffic roadways and railways would not be covered if they were not already in Class 3 and 4 areas, but thought these areas are probably addressed through design, construction, operation and maintenance requirements.

INGAA was opposed to including any environmental areas in the definition. INGAA explained that methane releases would inflict very limited collateral damage to wildlife and would not impact water supplies.

Keyspan Energy Delivery, a local distribution company (LDC), was in favor of defining high consequence areas as Class 3 and 4 locations because its lines comply with the requirements for these class locations. Keyspan was also in favor of clearly defined areas, but wanted any definition to recognize that LDCs cannot precisely evaluate and re-evaluate such areas. Keyspan recommended a definition which would allow for performance-based variables but did not provide any examples.

Kinder Morgan, Inc., a large midstream energy company, favored a definition of high consequence areas which uses a model, such as the one C-FER developed, relating pipeline diameter and operating pressure to the physical boundaries of the area of impact. Kinder Morgan recommended further that we use a sliding approach where high consequence areas would be defined as areas of high population density within the C-FER defined hazard area. Kinder Morgan maintained that areas where people congregate are currently covered in the definition of Class 3, and that these areas should be included in the high consequence area definition only if they are located within the defined hazard area for a given pipeline.

MidAmerican Energy Company, a combination gas and electric utility, generally agreed with the definitions recommended by AGA/APGA and INGAA, because these definitions would not impact its operations. MidAmerican commented that if high traffic roadways are included they need to be clearly defined, and suggested definitions. MidAmerican also clarified that including places where people congregate would have minimal impact on its operations.

The New York Gas Group (NYGAS), a natural gas utility trade association, suggested we replace the term high consequence area with a less inflammatory term such as Affected Area. NYGAS agreed with including Class 3 and 4 locations but argued that it will be virtually impossible for local distribution companies to identify facilities housing people with impaired mobility unless such facilities are licensed or are on a list that an operator can obtain. NYGAS was opposed to using census data to determine a high consequence area, because they believe the data is not accurate and is updated every ten years. NYGAS did not support including high traffic roadways, railways and places where people congregate in the definition because of the uncertainty and complexity of trying to include these elements.

New York State Department of Public Service (NYDPS) commented that in addition to facilities housing people with limited mobility, consideration should be given to special features near pipelines, such as places of public assembly, historical landmarks, parks, bridges, power line corridors, other pipeline facilities, major roadways, and railways.

NYDPS supported the concept of an impact radius for determining high consequence areas, but contended that the C-FER model (using 5000 BTU/hr-ft 2 ) conveniently results in an impact radius of about 660 feet. Based on this outcome, NYDPS believes the impact zone will never extend beyond the current class location for most operators. NYDPS suggested defining a more appropriate critical heat flux value (one lower than the C-FER model) so the impact radius could extend beyond the 660 feet.

The Energy Distribution Segment of NiSource Inc. (NiSource EDG), which is comprised of ten distribution companies, expressed concern that basing a high consequence area on the potential for considerable harm, would be too expansive to be of any practical value. NiSource EDG thought that a definition should consider the number of persons who might be harmed, as well as the potential significance of the harm, and that it should also include identifiable physical locations where people are unable to evacuate or to take protective actions.

NiSource EDG was against basing an impact zone on the number of houses, because data from which an operator could extrapolate the number of houses might not exist. NiSource explained that because many local distribution companies design their systems to be consistent with the requirements of a Class 4 location, they do not monitor housing distribution data near their pipelines. Therefore, NiSource EDG argued, imposing criteria which would require local distribution companies to initiate class location surveys would delay implementation of a rule, increase administrative and record-keeping burdens, and be extremely expensive.

NiSource argued against including an environmental component in the definition, and against including what it maintained were nebulous areas, i.e., high traffic roadways, railways, and places where people congregate.

Pacific Gas and Electric Company (PG&E ), a utility subsidiary of PG&E Corporation, supported the use of structure data but noted that once a class location reaches 3, the structure data is no longer accumulated or may not be kept current. PG&E proposed that operators be allowed to use third party data sources which address the location of high consequence structures, as well as census data to determine whether housing density could reach or exceed 25 structures within a circle defined by an analysis such as the C-FER model. PG&E supported use of the C-FER model for larger diameter pipelines, and supported allowing more extensive models for operators that choose to perform a more detailed analysis of the impact zone following a pipeline rupture. PG&E supported including day-care facilities with more than 25 people, but was opposed to including any environmental component in a definition.

Tosco Corporation, an independent refiner and marketer of gasoline and other petroleum products, and a pipeline owner and operator, was in favor of using existing class 3 and 4 location criteria. Tosco also believed that other relevant factors must be considered in determining how to protect an area beyond 660 feet from the pipeline, such as line diameter, line pressure and local environmental conditions. Tosco was opposed to micro-determining a high consequence area down to a foot basis, as maintaining data on such precise areas could be unmanageable. Tosco was not in favor of using census data to define its high consequence areas, rather, it favored counting structures within 660 feet of a pipeline.

A commenter to the electronic forum reminded RSPA that the Carlsbad, New Mexico, failure happened in a low consequence area, and high consequence areas should be defined as areas where there is a high probability that the pipeline could be damaged by outside forces.

Another commenter from a school facilities planning division argued that schools are extremely high consequence areas and should be explicitly mentioned.

RSPA's goal for the gas integrity management rules (the definition and the integrity program requirements) is to provide greater assurance of pipeline integrity in geographic areas where a gas pipeline rupture could do the most harm to people. Through our proposed definition of high consequence areas, and the integrity management program requirements now under development, we will ensure that an operator's resources are expended on areas where the benefits will be the greatest. Once we propose and implement the integrity management program requirements for the areas we define, we will study the results and consider how effective it would be to extend added protection to other areas.

The areas we propose to define as high consequence areas for gas transmission pipelines are different from those we defined for hazardous liquid pipelines (see 49 CFR 195.450). The areas we defined for hazardous liquid pipelines were without regard to where the pipeline was located; whereas the proposed areas for gas transmission pipelines are defined with respect to a zone around a pipeline. Furthermore, certain sensitive environmental areas were included in the high consequence areas for hazardous liquid pipelines but are not included in the proposed definition for gas pipelines. The differences are due to differences in the physical properties of the products and consequences of a gas release versus a hazardous liquid release, and the benefits of having accurate data on population already maintained by gas transmission operators.

Due to the physical properties of gas, the rupture of a gas pipeline impacts a very limited area adjacent to the location of the rupture. In contrast, when a liquid pipeline ruptures, the liquid can flow a greater distance from the site of the rupture. Furthermore, unlike a liquid release, the rupture of a gas pipeline cannot lead to far-reaching damage to habitats of threatened or endangered species. Moreover, gas released from a pipeline rupture flows upward into the air following a rupture, and so cannot pollute drinking water or ecological resources.

RSPA based the population component of the definition for hazardous liquid pipelines on the U.S. Census Bureau's definition of urbanized areas and places. As hazardous liquid operators are not required to maintain population data, we decided to use the U.S. Census Bureau's definitions because they were the best available data on population adjacent to hazardous liquid pipelines. In contrast, because gas pipeline safety requirements are structured according to class location (i.e., population density), gas pipeline operators already maintain current data on the location of people in areas adjacent to their pipelines. We are confident this data is accurate. Thus, it seemed logical to structure a definition that would use the data pipeline companies already collect and maintain.

Nonetheless, even though the we structured the gas pipeline high consequence areas differently from the hazardous liquid high consequence areas, the inclusion of both Class 3 and 4 locations in the proposed definition is consistent with the census-defined areas encompassing population density of approximately 1000 people per square mile. In Class 3 locations, the lower limit on occupied buildings in a sliding mile is 46 (i.e., an area one mile long and 1320 (2 × 660) feet wide), which is equivalent to a population density of 460 people per square mile assuming 2.5 people per building. Other populated areas included in the hazardous liquid definition are picked up in the proposed definition by the lower population density value used in the Class 3 location definition and by including isolated buildings near a pipeline that house people with limited mobility.

RSPA's proposed definition of high consequence areas for gas transmission pipelines extends to areas beyond current class locations, or in other words, beyond areas where operators are currently required to have data. Our analysis of data on the area affected by a pipeline accident, demonstrated the need for special consideration of buildings located more than 300 feet from the pipeline that house people with limited mobility. It also demonstrated a need for consideration of areas near gas pipelines of diameter greater than 30 inches and operating at pressures in excess of 1000 psig. Therefore, we are including in the proposed definition, areas out to 660 feet from a pipeline (1000 feet from a pipeline with a diameter greater than 30 inches and operating at a pressure greater than 1000 psig) where there are buildings housing people with limited mobility and areas where people congregate. Although operators are not currently required to maintain data on these areas, operators are required to patrol their pipeline right-of-way. Based on these requirements, we believe operators should have knowledge of where people congregate near their pipeline. Additionally, this information should be available from local public safety officials.

Our basis for extending the area to 1000 feet is based on the C-FER model, previously discussed in this document. (Their report is in Docket #7666). The C-FER Model demonstrated that large diameter pipe (greater than 30 inches) operated at pressures greater than 1000 psig has the potential to impact an area greater than 660 feet from the pipeline. The C-FER analysis was based on a simplified model of a gas pipeline rupture. The model included simplified mathematical treatment of several phenomena important to characterizing the extent of damage following a pipeline rupture (for example, critical heat flux, the time of ignition of the escaping gas, the height of the burning jet, the pipe decompression rate). The model also included estimates of several important parameters associated with the phenomena. Due to the simplifications in the model and the need to select values for the key parameters, the model was validated by comparing its predictions with the results of actual incidents for which the burn radius (area around the rupture which experienced damage) associated with a pipeline rupture and ignition could be measured. The C-FER report shows these comparisons between model predictions and observed burn areas. The comparisons appear to validate the predictive ability of the model.

We considered the comments and information received in response to the hypotheses presented in the Information Notice. We developed a proposed definition of high consequence areas for gas transmission pipelines based on the hypotheses and comments, as well as our extensive analysis of technical information from diverse sources. Our primary concern is with protecting populated areas from a gas release. Therefore, we are proposing to include the following class location areas, which are already defined in part 192. We concluded that these areas will encompass about 85% of populated areas, which is comparable to the percentage of populated areas picked by the hazardous liquid definition using the Census Bureau's definitions. These are the areas where gas transmission pipeline operators maintain data on population and buildings near their pipelines.

• Class 3 areas. Class 3 areas are defined in the pipeline safety regulations as a class location unit with 46 or more buildings intended for human occupancy. A class location unit is an area that extends 220 yards on either side of the centerline of any continuous one-mile length of pipeline. A class 3 area is also an area where the pipeline lies within 100 yards of either a building or a small, well-defined outside area, such as a playground, recreation area, outdoor theater, or other place of public assembly, which is occupied by 20 or more persons on at least 5 days a week for 10 weeks in any 12-month period. Neither the days nor the weeks need be consecutive.

• Class 4 areas. Class 4 areas are any class location unit which include buildings with four or more stories.

We are proposing to extend the definition of areas of high consequence beyond the class location areas. We analyzed the C-FER model against RSPA accident data and concluded that a release from most pipelines would not affect an area greater than 660 feet. However, we also want to ensure that areas where there are facilities with people who may not be able to evacuate an area quickly are better protected from the likelihood of a pipeline release. Therefore, we propose to define these areas as follows:

With the use of a commercial database, we are collecting data on the locations of these facilities to help identify these areas.

Our research further demonstrates that a rupture or release from a larger-sized pipeline would likely affect an area beyond 660 feet, i.e., those pipelines that are more than 30 inches in diameter and operate at pressures greater than 1000 psig. Therefore, we are defining a larger high consequence area for areas where there are larger high pressure pipelines. We propose to define these areas as follows:

As with the previously described areas, we are using a commercial database to help identify these areas.

In light of recent accident history, particularly, the explosion near Carlsbad, New Mexico, RSPA recognizes that the class location definitions may not cover all areas where a pipeline may pose a risk to the public. There are areas where people may not live, but they gather regularly for recreational or other purposes. We propose to define these areas as follows:

The 20-person number is used in the current definition of a class 3 location. We believe it is representational of the number of people that typically frequent a recreational area. This component of the proposed high consequence area definition should pick up most recreational areas or other areas where the public gathers on a regular basis. We have explicitly included camping areas to ensure that areas like those where the people were camping near the pipeline in Carlsbad will receive additional protection. Also, based on the C-FER model calculations, we propose to increase the area of the impacted zone from the current 300 feet to 660 feet (or 1000 feet for larger diameter pipelines).

As we previously mentioned, gas transmission operators are not currently required to maintain data on areas where people congregate near their pipelines. However, because operators are required to patrol their pipeline rights-of-way, they should have knowledge about these areas. This information should also be available from local public safety officials.

These proposed areas go beyond those specified in current regulations in the following ways:

1. A current Class 3 location includes buildings or areas where people congregate located within 300 feet of the pipeline. The proposed definition extends these areas from the pipeline out to 660 feet for most pipelines and out to 1000 feet for larger pipelines (those greater than 30 inches in diameter and operating at pressures greater than 1000 psig).

2. Current Class location regulations consider people located within 660 feet of a pipeline. The proposed definition includes an impact zone of 1000 feet from the pipeline for pipelines greater than 30 inches in diameter operating at pressures greater than 1000 psig.

3. Current Class location regulations include no explicit provision for facilities housing people with limited mobility. The proposed definition includes these facilities.

4. The proposed definition more explicitly references areas where people congregate near a pipeline, particularly, camping grounds.

We received no comment encouraging the inclusion of environmental areas as high consequence areas. In the proposed definition, we did not include sensitive environmental areas due to the highly localized impact of a gas pipeline rupture and explosion. Since a release from a gas pipeline accident is airborne, it is unlikely any major damage will occur to a threatened or endangered species. We received a similar response to our question on whether to include high traffic areas. We did not include such areas in the proposed definition because special attention is already given to these areas in the design and maintenance of pipelines near road crossings. Furthermore, the number of drivers that could be affected by a gas transmission pipeline accident is limited due to the highly localized effect of a gas release.

DOT considers this action to be a non-significant regulatory action under section 3(f) of Executive Order 12866 (58 FR 51735; October 4,1993). Therefore, the Office of Management and Budget (OMB) has not reviewed this rulemaking document. This proposed rule is also not significant under DOT's regulatory policies and procedures (44 FR 11034: February 26, 1979).

This proposed rule has no cost impact on the pipeline industry or the public, as it is only a definition. A regulatory evaluation is available in the Docket. The High Consequence Areas definition will be used in the forthcoming rulemaking on “Pipeline Safety: Pipeline Integrity Management in High Consequence Areas (Gas Transmission Operators).” When we issue that proposed rule, we will then fully evaluate all the associated costs and benefits.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) RSPA must consider whether a rulemaking would have a significant impact on a substantial number of small entities. This proposed rulemaking will not impose additional requirements on pipeline operators, including small entities that operate regulated pipelines. As this action only involves a definition, there are no cost implications, and thus, we determined it had no impact on small entities. Costs are likely to result once we issue requirements for actions that use this definition at a later date. RSPA will soon propose integrity management requirements for gas transmission pipelines in high consequence areas; at that time will examine the costs and benefits of that rulemaking. Based on this information demonstrating that this rulemaking will not have an economic impact, I certify that this proposed rule will not have a significant economic impact on a substantial number of small entities.

This notice of proposed rulemaking contains no information collection subject to review by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507 (d)). Therefore, RSPA concludes the proposed rule contains no paperwork burden and is not subject to OMB review under the paperwork Reduction Act of 1995.

This proposed rule is simply a definition of high consequence areas. The definition will be used in the forthcoming rulemaking on “Pipeline Safety: Pipeline Integrity Management in High Consequence Areas (Gas Transmission Operators)”. RSPA will prepare a paperwork burden analysis for that proposed rule.

This proposed rule was analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not significantly or uniquely affect the communities of the Indian tribal governments and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13084 do not apply.

This proposed rule was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This proposed rule does not propose any regulation that:

(1) Has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government;

(2) Imposes substantial direct compliance costs on States and local governments; or

(3) Preempts state law.

Therefore, the consultation and funding requirements of Executive Order 13132 (64 FR 43255; August 10, 1999) do not apply. Nevertheless, in public meetings on November 18-19, 1999, and February 12-14, 2001, RSPA invited the National Association of Pipeline Safety Representatives (NAPSR), which includes State pipeline safety regulators, to participate in a general discussion on pipeline integrity. Since then RSPA held conference calls with NAPSR to receive their input before proposing a definition of high consequence areas.

This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.

We analyzed the proposed rule for purposes of the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and preliminarily determined the action would not significantly affect the quality of the human environment. The Environmental Assessment of this proposal is available for review in the docket.

The Environmental Assessment (EA) considered the impacts of the proposed definition, in conjunction with future requirements of an integrity management rule. The EA found that the proposed definition by itself, did not by itself have any impact on the environment. When integrity management program requirements are issued which will incorporate the definition, there should be positive environmental benefits for the areas receiving additional protection.

However, because the environmental consequences from a gas release are limited, any impact is expected to be minimal. Therefore, the proposed definition of high consequence areas for gas pipeline integrity management will not have a significant environmental impact.

On September 16, 1999, NMFS published a final rule listing the California Central Valley (CCV) Spring-run Chinook and California Coastal (CC) Chinook ESUs ( Oncorhynchus tshawytscha or O. tshawytscha ) as threatened species (64 FR 50394). In a final rule published on June 7, 2000, NMFS also listed the Northern California (NC) steelhead ESU ( O. mykiss ) as a threatened species (65 FR 36074). These final rules describe the background of the listing actions and provide a summary of NMFS’ conclusions regarding the status of these three ESUs.

On October 31, 1996, NMFS listed the Central California Coast (CCC) coho salmon ( O. kisutch ) ESU as a threatened species (61 FR 56138). The final rule describes the background for this coho salmon listing action and also provides a summary of NMFS’ conclusions regarding the status of the ESU. In conjunction with the final listing notice for the CCC coho salmon ESU, NMFS published a final ESA 4(d) rule which put in place all of the prohibitions of section 9(a)(1) of the ESA for this ESU.

Section 4(d) of the ESA provides that whenever a species is listed as threatened, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of the species. Such protective regulations may include any or all of the prohibitions that apply automatically to protect endangered species under ESA section 9(a). Those section 9(a) prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to take (including harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect; or to attempt any of these), import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any wildlife species listed as endangered, unless with written authorization for incidental take. It is also illegal under section 9 of the ESA to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Section 11 of the ESA provides for civil and criminal penalties for violation of section 9 or of regulations issued under the ESA.

Whether take prohibitions or other protective regulations are necessary or advisable is in large part dependent upon the biological status of the species and potential impacts of various activities on the species. The salmon and steelhead ESUs that are covered by this final rule have survived for thousands of years through cycles in ocean conditions and weather; therefore, NMFS has concluded that they are at risk of extinction primarily because their populations have been reduced by human “take”. These ESUs have declined in abundance due to take of fish from harvest, past and ongoing destruction or damage to freshwater and estuarine habitats, hydropower development, hatchery practices, and other causes. Two reports prepared by NMFS (NMFS 1996 and 1998) reviewed the factors which have contributed to the decline of west coast steelhead and chinook populations, including the ESUs covered by this rule, and both conclude that all of the factors identified in section 4(a)(1) of the ESA have played some role in their decline. The reports identify destruction and modification of habitat, over-utilization in fisheries, and hatchery effects as significant factors for the decline of these ESUs. While the most influential factors for decline differ from species to species and among ESUs depending on their geographic location, the loss and degradation of habitat conditions and impacts from harvest among other impacts, are factors that have affected all of the species and ESUs. Accordingly, NMFS has determined that it is necessary and advisable to apply the section 9(a)(1) take prohibitions to the threatened ESUs covered in this final rule in order to reduce take and provide for their conservation.

NMFS believes that with appropriate safeguards, many state, local and other non-Federal activities can be specifically tailored to minimize impacts on listed salmonid ESUs such that additional Federal protections are unnecessary for their conservation. Although the primary purpose of state, local and other non-Federal programs is generally to further some activity such as maintaining roads, controlling development, ensuring clean water or harvesting trees, rather than conserving salmon or steelhead, some entities have modified one or more of these programs to protect and conserve listed salmonids and protect their habitat.

For this reason, NMFS has incorporated a mechanism (termed take limitations) in this final ESA 4(d) rule where state, local and other non-Federal entities can be assured that certain activities (see Substantive Content of Final Regulation for the 10 categories of activities specified in this rule) they conduct or permit are consistent with ESA requirements when they avoid or minimize the risk of take of listed ESUs. When NMFS determines that such programs provides sufficient conservation for the threatened salmonid ESUs covered by this final rule, NMFS will find that it is not necessary and advisable to apply take prohibitions to activities governed by those programs. In these circumstances, as described in more detail herein, additional Federal ESA regulation through the section 9(a) take prohibitions is not necessary and advisable because it would not meaningfully contribute to the conservation of the ESUs. NMFS believes that not applying take prohibitions to programs that meet such conservation standards may result in even greater conservation benefits for these threatened ESUs than would the blanket application of take prohibitions, through implementation of the program itself and by demonstrating to similarly situated jurisdictions or entities that practical and realistic salmonid protection measures exist. An additional benefit of using this take limitation approach is that NMFS can focus its enforcement efforts on activities and programs that have not yet adequately addressed the conservation needs of the ESUs covered by this rule.

On August 17, 2001, NMFS proposed to apply the ESA section 9(a)(1) take prohibitions to the CCV spring-run chinook salmon, CC chinook salmon, and NC steelhead ESUs. NMFS has concluded that the section 9 take prohibitions that automatically apply to endangered species are necessary and advisable for the conservation of these three threatened ESUs. Accordingly, this final rule applies the prohibitions of ESA section 9(a)(1) to each of these three ESUs. NMFS applied the section 9(a)(1) take prohibitions to the CCC coho salmon ESU in a previous rulemaking (see 61 FR 56138), and the August 17, 2001, proposed rule (66 FR 43150) did not propose to change those protections.

In its August 17, 2001, proposal (66 FR 43150), NMFS proposed that the take of listed fish in these four ESUs (i.e., CCV spring-run chinook, CC chinook, NC steelhead, and CCC coho salmon) would not be prohibited when it resulted from 10 specific categories of activities that meet specified levels of protection and conservation. As described in the proposed rule, these activities must be conducted in a way that contributes to the conservation of these ESUs, or they must be governed by a program that limits impacts on the ESUs to an extent that makes added protection through Federal regulation not necessary and advisable for their conservation. In this final rule NMFS has concluded that it will not apply the ESA section 9(a) prohibitions to these four ESUs for the 10 categories of activities described in this final rule when they meet the necessary level of protection and conservation.

As an alternative to utilizing the 10 limitations on the take prohibitions described in this final rule, affected entities may choose to seek an ESA section 10 permit from NMFS, or may be required to satisfy ESA section 7 consultation if Federal funding, management, or approval is involved. This final rule does not impose restrictions beyond those applied in other sections of the ESA, but rather provides another option beyond the provisions of sections 7 and 10 for the authorization of incidental take and in some instances directed take.

As discussed above, NMFS has identified 10 categories of activities or programs for which it is not necessary and advisable to impose take prohibitions when they contribute to the conservation of these four ESUs or are governed by a program that adequately limits impacts on these ESUs. Under the criteria specified in the final rule, these activities include the following: (1) Activities conducted in accordance with an existing ESA incidental take authorization; (2) ongoing scientific research activities, for a period of 6 months; (3) emergency actions related to injured, stranded, or dead salmonids; (4) fishery management activities; (5) hatchery and genetic management programs; (6) scientific research activities permitted or conducted by the State of California; (7) state, local, and private habitat restoration activities that are part of approved watershed conservation plans; (8) properly screened water diversion devices (i.e., screening devices per NMFS’ guidelines or equivalent configurations); (9) routine road maintenance activities; and (10) municipal, residential, commercial, and industrial (MRCI) development activities. These limitations on the take prohibitions are described in more detail in the proposed rule and the specific criteria and standards that must be met to qualify for the limitations are described in detail in the regulations contained in this final rule. In general, these take limitations and associated approval criteria are for future programs where NMFS will limit the application of the ESA section 9(a)(1) take prohibitions rather than for existing programs. NMFS anticipates that new take limits for additional activities may be added to these regulations in the future.

NMFS emphasizes that these 10 limitations on the section 9 take prohibitions are not prescriptive regulations. The fact that an activity is not conducted within the specified criteria for one of the 10 take limits does not necessarily mean that the activity violates the ESA or this regulation. Many activities do not affect the threatened ESUs covered by this final rule, and, therefore, do not need to be conducted within any of the 10 categories of take limits to avoid ESA section 9 take violations. Nevertheless, an entity can be certain it is not at risk of violating the section 9 take prohibitions or at risk of enforcement actions if it conducts its activities in accordance with the take limits. Jurisdictions, entities, and individuals are encouraged to evaluate their practices and activities to determine the likelihood of whether take is occurring. Entities can comply with the ESA through this and other 4(d) rules, section 10 research, enhancement, and incidental take permits, or through section 7 consultation with Federal agencies. If take is likely to occur, then the jurisdiction, entity or individual should modify its practices to avoid the take of these threatened salmonid ESUs or seek protection from potential ESA liability through section 7, section 10, or section 4(d) rule procedures.

This final rule does not require jurisdictions, entities, and individuals to seek coverage from NMFS under any of the 10 take limits. In order to reduce its liability, a jurisdiction, entity, or individual may informally comply with a limit by choosing to modify its programs to be consistent with the evaluation considerations described in the individual limits. Alternatively, a jurisdiction, entity, or individual may seek, at its discretion, to qualify its plans, activities, or ordinances for inclusion under one of the 10 take limits by obtaining an authorization from the NMFS’ Southwest Region Administrator as detailed in the regulations contained in this final rule (see ADDRESSES ).

NMFS will continue to work collaboratively with all affected governmental entities to recognize existing management programs that conserve and meet the biological requirements of these and other threatened salmonid ESUs, and to strengthen other programs so that they contribute to the conservation of listed salmonids. This final rule may be amended to add new limits on the take prohibitions, or to amend or delete adopted take limits as circumstances warrant.

The following section entitled “Notice of Availability” lists four documents referred to in the proposed rule and this final regulation. The purpose of making these documents available to the public is to inform governmental entities and other interested parties of the technical components expected to be addressed in programs submitted for NMFS’ review. These technical documents provide guidance to entities as they consider whether to submit a program to NMFS for coverage under one of the take limits in the final rule. The documents represent guidance, and are not binding regulations requiring particular actions by any entity or interested party.

For example, NMFS’ technical report entitled: “Viable Salmonid Populations (VSP) and the Recovery of ESUs”, which is referenced in the fishery and hatchery management take limits, provides a framework for identifying populations and their status as a component of developing adequate harvest or hatchery management plans. The final rule indicates that Fishery Management and Evaluation Plans (FMEPs) and Hatchery and Genetic Management Plans (HGMPs) should utilize the concepts of ‘viable’ and ‘critical’ salmonid population thresholds, consistent with the concepts contained in NMFS’s VSP report. Similarly, NMFS’ fish screening criteria explicitly recognize that they are general in nature and that site constraints or particular circumstances may require adjustments in design, which must be developed with a NMFS staff member or designee, to address site specific considerations and conditions. Finally, research involving electrofishing comes within the scientific research limit if conducted in accordance with NMFS’ guidelines for electrofishing. The guidelines recognize that other techniques may be appropriate in particular circumstances, and NMFS can recognize those as appropriate during the approval process.

The Oregon Department of Transportation’s (ODOT) road maintenance program for governing routine maintenance activities is an existing program currently being implemented that NMFS has found adequate for threatened ESU conservation and, therefore, has been established as a take limitation in a previous ESA 4(d) rule (65 FR 42422). Other jurisdictions may seek coverage under the road maintenance limit in this final rule if they use the ODOT program or submit a program that utilizes other practices found by NMFS to meet or exceed the ODOT standards for the protection of threatened salmonids.

Where this rule cites a guidance document, a program’s consistency with the guidance is sufficient to demonstrate that the program meets the particular purpose for which the guidance is cited. However, the entity or individual requesting that NMFS concur that a program meets the criteria of a particular limit has the latitude to show that its variant or approach is, in the circumstances where it will apply and affect listed fish, equivalent or better.

NMFS will continue to review the applicability and technical content of its own documents as they are used in the future and make revisions, corrections, or additions as needed. NMFS will use the mechanisms of this final rule to take comment on revisions of any of the referenced state programs. If any of these documents are revised in the future and NMFS relies on the revised version to provide guidance in continued implementation of the rule, NMFS will publish in the Federal Register a notice of its availability stating that the revised document is now the one referred to in 50 CFR 223.203(b).

The following is a list of documents cited in the regulatory text of this final rule. Copies of these documents may be obtained upon request (see Appendix A to 50 CFR 223.203).

1. Oregon Department of Transportation (ODOT) Maintenance Management System Water Quality and Habitat Guide (July, 1999).

2. Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act (NMFS, 2000a).

3. Fish Screening Criteria for Anadromous Salmonids, National Marine Fisheries Service, Southwest Region, 1997.

4. Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units. (June 2000).

The limits on the take prohibitions in this final rule do not relieve Federal agencies of their duty under section 7 of the ESA to consult with NMFS if actions they fund, authorize, or carry out may affect the ESUs covered by this rule or any other listed species. To the extent that actions subject to section 7 consultation are consistent with a circumstance for which NMFS has limited the take prohibitions, a letter of concurrence from NMFS will greatly simplify the consultation process, provided the program is still consistent with the terms of the limit.

In the regulatory language in this final rule, the limits on the applicability of the take prohibitions to specific ESUs are accomplished through citation to the Code of Federal Regulations’ (CFRs’) enumeration of threatened marine and anadromous species in 50 CFR 223.102. For the convenience of readers of this document, 50 CFR 223.102 refers to the threatened salmonid ESUs covered in this final rule through the following designations:

(a)(3) Central California Coast coho salmon

(a)(20) Central Valley spring-run chinook salmon

(a)(21) California Coastal chinook salmon

(a)(22) Northern California steelhead

The public comment period for the proposed rule was open from August 17, 2001, through October 1, 2001. During the comment period, NMFS held three public hearings (Chico, CA on 9/13/01; Eureka, CA on 9/18/01; and Ukiah, CA on 9/19/01) to solicit public comments. A limited number of individuals provided oral testimony at the three public hearings. During the comment period, NMFS received 8 written comments on the proposed rule from various agencies, non-governmental organizations, and individuals. A summary of the comments and NMFS’ responses to those comments are presented here by specific issue.

Comment 1 : The Bureau of Indian Affairs (BIA) reminded NMFS of its obligation to consult with potentially affected Indian tribes that might be affected by this ESA 4(d) rule pursuant to Executive Order 13175 (Consultation and coordination with Indian tribal governments). In addition, BIA provided NMFS with a list of recognized Indian tribes that occur within the range of the threatened ESUs covered by this final rule.

Response : In response to the BIA’s guidance, NMFS notified all of the potentially affected Indian tribes of the proposed ESA 4(d) rule and the U.S. District Court Order to finalize the rule by December 31, 2001. NMFS offered to meet with any tribe to explain the rule, discuss its potential impact on the tribe, and to explain its relationship to the Tribal ESA 4(d) rule which NMFS published on July 10, 2000 (65 FR 42481). NMFS has consulted in the past with many of these tribes on previous ESA 4(d) rules, as well as the Tribal ESA 4(d) rule, and will consult with any and all tribes as they request us to do so.

Comment 2 : BIA requested clarification as to whether or not the Tribal ESA 4(d) rule (65 FR 42481, July 10, 2000) applied to the four ESUs covered in this ESA 4(d) rule.

Response : The Tribal ESA 4(d) rule (65 FR 42481) NMFS published on July 10, 2000, is actually a broadly defined limitation on the ESA section 9(a)(1) take prohibitions for recognized Indian tribes that applies to all threatened salmon and steelhead ESUs including the four covered by this final ESA 4(d) rule and any threatened salmonid ESUs that may be listed in the future. Under this Tribal ESA 4(d) rule, a section 9(a)(1) take limitation was created for resource management plans (e.g., harvest, habitat restoration, research and monitoring, etc.) developed by Tribes where NMFS has determined that implementation of the plan will not appreciably reduce the likelihood of survival and recovery for the listed ESU(s) that are affected by the plan. This Tribal ESA 4(d) rule was intended to harmonize NMFS’ statutory conservation efforts under the ESA with tribal rights and the Federal Trust responsibility to tribes.

Comment 3 : BIA advised NMFS that Tribal governments may incur direct compliance costs if they choose to pursue coverage under the Tribal ESA 4(d) rule or this final rule.

Response : NMFS does not anticipate that Indian Tribes will pursue coverage under the take limits in this final ESA 4(d) rule. Although Tribes are certainly eligible to pursue coverage under the limitations in this final rule, the purpose of the Tribal ESA 4(d) rule was to provide recognized tribes with a broad take limitation that could cover any type of resource management plan including those that might be developed pursuant to this final ESA 4(d) rule (e.g., routine road maintenance, fish harvest, habitat restoration, etc.). For this reason, NMFS would strongly recommend to Tribes that they utilize the Tribal ESA 4(d) rule instead of this final rule to obtain coverage for their activities if they choose to do so. Not only is the Tribal ESA 4(d) rule sufficiently flexible that it can accommodate the full range of tribal resource management plans, but it provides for a broad and open government-to-government consultation process in developing and evaluating such plans. NMFS recognizes that Tribes may incur direct compliance costs in the development of tribal resource management plans. NMFS is prepared to work closely with interested tribes to develop resource management plans for consideration under the Tribal ESA 4(d) rule that will minimize costs and will also provide technical expertise and other support wherever it can pursuant to the 1997 Secretarial Order (June 5, 1997).

Comment 4 : One commenter stated the proposed ESA 4(d) rule does not adequately state why a take prohibition is necessary for these threatened ESUs, nor does it establish a basis for the conclusion that specified activities are likely to result in a take.

Response : NMFS believes that the listing determinations for each of the ESUs covered by this final rule, as well as all other west coast salmonid listing determinations, have documented the historic and current factors responsible for their decline to the point where ESA protection was necessary. Factors responsible for the decline of these ESUs include loss and degradation of freshwater habitat from a wide range of habitat modifying activities, harvest of fish in recreational and in some cases commercial fisheries, predation, and natural fluctuations in the environment (e.g., ocean conditions, rainfall, drought, etc.). NMFS believes that historic and ongoing take of fish in these ESUs as a result of these factors has contributed significantly to their decline. For this reason, NMFS has concluded that it is necessary and advisable to prohibit and closely regulate the allowable take of these species. Failure to prohibit and regulate take by this final rule would result in continued decline of listed salmonids.

It is NMFS’ policy to increase public awareness of, and to identify which activities we believe are likely or not likely to, injure or kill a listed species. The take guidance in the proposed rule and in this final rule are intended to do that. It is only possible based on direct experience with managing populations in their natural environment and from scientific literature to describe the types of activities that may have adverse impacts (i.e., result in take) on fish and their habitat and describe their consequences (e.g., blocking fish from reaching spawning grounds, dewatering incubating redds, etc.). NMFS understands that there is considerable interest by many entities in knowing as much as possible about what constitutes take of a listed species and the take guidance in this final rule attempts to provide that information. However, determining whether an individual local program or activity will or is likely to injure or kill a listed fish requires an accurate and credible assessment that takes into account local factors and conditions.

Comment 5 : One commenter stated that NMFS’ take guidance in the proposed rule identifies activities that “are very likely” or “may” injure or kill listed species, instead of stating only activities resulting in “actual death or injury.”

Response : NMFS provided broad take “guidance” for the purpose of helping individuals understand what actions could possibly lead to take. By offering guidance on what type of activities may cause take, individuals can better avoid any illegal behavior that could result in an actual death or injury.

Comment 6 : One commenter stated that the proposed ESA 4(d) rule is more restrictive than the ESA section 9 take prohibitions.

Response : NMFS disagrees. The proposed and final ESA 4(d) rule do impose the section 9(a)(1) take prohibitions in the ESA, but simultaneously it puts into place limitations on those take prohibitions for certain categories of activities under specified conditions. In effect, whenever NMFS finds that an activity falls within a take limit in the final rule, the section 9 take prohibitions do not apply to that activity. In this way, this rule is more flexible and potentially less restrictive than an alternative ESA 4(d) rule that would simply put into place the section 9 take prohibitions without limitation. In this latter case where only the take prohibitions are in effect, the only way to comply with the ESA is to either avoid taking entirely or to have take authorized through ESA sections 7 or 10.

Comment 7 : One commenter requested clarification that the rule does not prohibit take associated with an activity when it is conducted pursuant to an approved Federal permit.

Response : If a Federal permit was subject to a previous section 7 consultation for which an incidental take permit was issued, then take associated with the project will have been previously authorized. However, if a Federal permit was issued without section 7 consultation or without an incidental take statement for the ESUs in this final rule, then the permitted activity would not have take authorization for these ESUs and might violate the ESA section 9 take prohibitions. Under this circumstance, ESA section 7 consultation should be initiated or reinitiated with NMFS so that incidental take can be properly authorized.

Comment 8 : Several commenters suggested or requested that NMFS create take limitations for other programs such as the Natural Resources Conservation Service’s Field Office Technical Guidance and some or all elements of the CALFED program in California’s Central Valley.

Response : NMFS believes that the ESA 4(d) rule process provides another opportunity in addition to ESA sections 7 and 10, for state and other jurisdictions to assume leadership for threatened salmonid conservation at the state and local level in addition to the conventional tools that are available through sections 7 and 10 of the ESA. NMFS is prepared to collaborate with Federal, state, tribal, and local entities to develop and evaluate programs that will take advantage of the ESA 4(d) option for achieving salmonid conservation and compliance with section 9 take prohibitions of the ESA. NMFS is especially interested in state-level conservation programs because such programs can more efficiently and comprehensively provide for conservation of threatened salmonids. However, incorporation of any additional take limitations into this or future ESA 4(d) rules will need to go through the rulemaking process.

Federal programs, including many programs and activities being carried out as part of the CALFED implementation program, are subject to ESA section 7 consultation if they may affect listed species. This ESA 4(d) rule does not and cannot relieve Federal agencies of their ESA section 7 consultation obligations under the ESA and, therefore, authorization of incidental take for Federally permitted, conducted, or funded programs must occur through the section 7 process.

Comment 9 : The Department of the Interior commented that the ESA 4(d) rule may affect terrestrial and other species under the jurisdiction of the U.S. Fish and Wildlife Service (FWS) and that NMFS should, therefore, consult with FWS pursuant to section 7 of the ESA.

Response : NMFS recognizes that promulgation of this ESA 4(d) rule is a Federal action requiring consultation under section 7 of the ESA. NMFS must ensure through the ESA section 7 process that the 4(d) rule does not jeopardize the continued existence of listed species or result in the destruction or adverse modification of their critical habitat. NMFS has completed the required ESA section 7 consultation with itself concerning the effects of this 4(d) rule on listed species under NMFS’ jurisdiction and concluded that the rule is not likely to adversely affect these listed species or adversely modify their critical habitat.

NMFS also consulted with FWS concerning the effects of promulgating this ESA 4(d) rule on listed species under FWS’ jurisdiction (FWS’ listed species) and their critical habitat. FWS concurred with NMFS that the imposition of ESA section 9(a)(1) take prohibitions for the ESUs addressed by this rule was not likely to adversely affect FWS’ listed species or their critical habitat. However, both agencies recognized that plans, programs, or activities developed for future approval by NMFS pursuant to the take limits in this final rule have the potential to affect FWS’ listed species or their critical habitat depending on their geographic location and the details of the plan, program or activity. Through the consultation process NMFS has committed to work closely with FWS during development of such plans, programs or activities to determine if and how they may affect FWS’ listed species or their critical habitat. As part of this early coordination process, NMFS has committed to work with FWS and any applicant seeking a take limit approval under this final rule to ensure that any plan, program, or activity that is developed either avoids impacts to, or does not adversely affect any of FWS’ listed species or their critical habitat. Finally, if a plan, program or activity cannot be developed that will not adversely affect or not avoid impacts to FWS’ listed species or their critical habitat NMFS will continue to work with FWS to ensure appropriate compliance with the ESA for FWS’ listed species or critical habitat. On the basis of these determinations and commitments, FWS concluded that promulgation of this rule is not likely to adversely affect species under FWS’ jurisdiction.

Comment 10 : Some commenters asked NMFS to clarify the extent which NEPA applies to the ESA 4(d) rule.

Response : NEPA applies to this and other ESA 4(d) rules, and as this final rule states, NMFS completed Environmental Assessments (EAs) for this regulatory action. Those documents were made available during the comment period and continue to be available via NMFS’ Southwest Region website (http://swr.nmfs.noaa.gov).

Comment 11 : One commenter suggested that the EAs prepared by NMFS were inadequate and failed to examine a full range of alternatives, particularly with regard to some of the take limitations contained in the proposed rule.

Response : NMFS believes that the range of alternatives examined in the EAs is appropriate and that no additional alternatives need to be considered.

NMFS believes that the EAs that were prepared for this final rule are adequate to support the regulatory action of imposing the section 9(a)(1) take prohibitions on the CCV spring-run chinook, CCC chinook, and NC steelhead ESUs. However, NMFS has determined that additional NEPA analysis is necessary to support any future agency approvals under the 10 take limitations contained in the rule. NMFS intends to conduct additional, programmatic NEPA analysis that specifically addresses the environmental impacts of approving activities under each of the take limitations (e.g., water diversion screening, etc.) contained in this final rule. This is consistent with the approach NMFS is now taking for the ESA 4(d) rule it published in July 2000 which covered 14 threatened salmon and steelhead ESUs. Until programmatic NEPA analyses are completed for each of the take limitations in this final rule as described above, NMFS will prepare separate NEPA analysis for any plan or activity for which the agency is requested to make an approval under any of the rule’s take limitations. For example, until a programmatic NEPA document is completed which specifically addresses recreational angling under the Fishery Management and Evaluation Plan (FMEP) take limitation in this final rule, NMFS will not approve any FMEPs until approval of that plan has been addressed in a plan specific NEPA document.

Comment 12 : Two commenters argued that according to the holding in Alsea Valley Alliance v. Evans , 99-6265-HO (D. Oreg., September 12, 2001), the four threatened salmonid ESUs covered by this ESA 4(d) rule have been improperly listed under the ESA, and hence, NMFS has no statutory authority to issue an ESA 4(d) rule pertaining to them.

Response : NMFS disagrees. Unless a listing decision is invalidated by a court, or superceded by another formal rule making, an ESU remains listed and, thus, properly subject to ESA 4(d) rule protection. None of the four ESUs covered by this final rule were de-listed as a result of the Alsea case and, thus, NMFS has an obligation to promulgate ESA 4(d) rules that it believes are necessary and advisable for their conservation.

Comment 13 : The National Association of Home Builders (NAHB) commented that it opposes the proposed ESA 4(d) rule on many of the same grounds that are currently being litigated by NAHB against NMFS in Kittitas County v. Evans with regard to the July 10, 2000 ESA 4(d) rule, particularly the MRCI limit.

Response : NMFS will not address arguments and objections that are raised generally by reference to a pending case, such as Kittitas County. Rather, NMFS will respond to specific comments made in this rulemaking.

Comment 14 : NAHB commented that with this ESA 4(d) rule NMFS is interpreting the ESA in a way that alters the federal-state framework by permitting Federal encroachment upon a traditional state power such as the states’ traditional and primary power over land and water use. NAHB also asserted that NMFS had failed to demonstrate what it is necessary and advisable to place the additional burden on local governments of creating and submitting to NMFS for approval, ordinances that actively conserve these threatened salmonid ESUs

Response : NMFS disagrees that the ESA 4(d) rule alters the federal-state framework by encroaching on land and water use regulation by state/local governments. NMFS also disagrees that the rule places any additional burdens on state and local governments. To the extent that state or local regulation or permitting of land use or water use may result in the take of these threatened salmonids, the Municipal Residential Commercial and Industrial (MRCI) and other take limitations contained in this rule provide a mechanism for the state/local entity to relieve itself of the take prohibitions. Also, development and submittal of a plan to NMFS for consideration under any of the take limitations in the ESA 4(d) rule is completely voluntary. Should individuals, local governments or the state instead wish to obtain a take exception for threatened species subject to the section 9 prohibitions, they may submit a Habitat Conservation Plan to NMFS under section 10 of the ESA.

Comment 15 : NAHB commented that NMFS did not demonstrate why it is necessary and advisable to require that each ordinance be approved by NMFS and placed in the Federal Register and be subjected to 30 days of public notice and comment in order to obtain coverage for the MRCI take limitation.

Response : In order for NMFS to determine whether a particular ordinance or plan may be sufficiently protective of threatened species, it must be submitted to NMFS for review and consideration. Prior to making any such determination, NMFS believes that it is important to obtain public and/or agency comments on both the ordinance or plan and our pending determination. For this reason, this final rule calls for publishing a notification in the Federal Register announcing the availability of the ordinance or plan for review and comment.

Comment 16 : NAHB commented that NMFS cannot hold local governments liable for take under the ESA.

Response : The take limitations in the rule are permissive and not mandatory. Any vicarious liability determination would arise from application of the take prohibitions to the local government, depend upon the specifics of the regulations and the regulated activity, and so would depend upon the circumstances of each case.

Comment 17 : NAHB asserted that the proposed ESA 4(d) rule raises 10th Amendment concerns by creating a state duty to administer the Federal law of “take” against third parties.

Response : The take limitations in this final rule are permissive, not mandatory (i.e., they impose no requirements on state and local governments). The only prohibition in this final rule is against take of the threatened species covered by this final rule. This final rule does not impose any affirmative duty upon the state to administer the ESA.

Comment 18 : One commenter said that references to “historic abundance levels” and “habitat capacity of the population” in the discussion in the proposed rule about how NMFS would assess population status as part of its VSP framework are ambiguous and unclear.

Response : Historic conditions are meant to serve as one possible reference point in evaluating population status because under historic conditions populations were assumed to have been viable. The time frame, therefore, refers to a period in time where the population or ESU was considered self sustaining and may represent different time frames for different species or populations. Although historical data, if it is available, may be a useful tool in this assessment, it does not mean that NMFS will require or assume that every population must be at a historic abundance level in order to be viable. Where historic data are not available or are of uncertain accuracy, the assessment of viable population levels could be based upon an evaluation of the habitat capacity or carrying capacity of the habitat available to a population.

Comment 19 : Several commenters stated that each of the take limitations should have provisions for monitoring and oversight where NMFS is approving plans or ordinances (e.g., FMEPs, routine road maintenance, water diversion screening, etc.).

Response : NMFS agrees that programs that are approved under the take limits in this rule are incomplete if there is no mechanism to track their effectiveness and implementation. NMFS believes that this final rule provides for a sufficient level of monitoring and oversight of activities that may qualify for coverage under the 10 take limitations. Several of the take limits (e.g., recreational fishing, hatchery and genetic management, routine road maintenance, MRCI) in this final rule specifically require that monitoring be incorporated into programs or plans in order to qualify for coverage under the limitation. In addition, the final rule indicates that NMFS will evaluate on a regular basis the effectiveness of all programs that are approved under the take limits to insure that they are achieving the level of protection that is consistent with the conservation of the threatened ESUs covered in the rule. If a program or plan does not meet the required objectives, NMFS will work with the relevant entity to make adjustments to the program accordingly. If the relevant entity chooses not to adjust the program to meet the necessary objectives for coverage under the take limit, then NMFS will publish notification in the Federal Register that the program is no longer exempt from the ESA section 9(a)(1) take prohibitions because it does not sufficiently conserve the threatened ESUs.

Comment 20 : One commenter was concerned that activities falling under any one of the 10 take limitation categories in the proposed rule were automatically exempt from the take prohibitions and would not be monitored by NMFS.

Response : Virtually all of the take limitations in this final rule require that entities seeking a limitation submit a plan to NMFS which addresses a wide range of detailed criteria specified in the rule. These include habitat modifying activities such as routine road maintenance, MRCI development, and water diversion screening. Only after NMFS has reviewed these plans against the specified criteria in the rule and responded to public comments on the plans, will NMFS make a determination as to whether or not the plan qualifies for coverage under a limit. As discussed in the preceding response to comment, NMFS believes this final rule requires sufficient monitoring of activities covered under the take limits, and ample opportunity for NMFS to provide oversight of activities covered under the take limits.

Comment 21 : One commenter expressed concerns that the MRCI take limitation does not explicitly require entities seeking coverage to address cumulative impacts or mitigation and recommended the final rule include such a requirement.

Response : NMFS recognizes the importance of assessing cumulative impacts for MRCI development and other types of activities covered by the take limitations in this final rule. For some take limitations such as recreational angling (i.e. the FMEP take limit), NMFS has explicitly incorporated consideration of cumulative impacts into the rule where it is feasible. For habitat modifying activities, however, this is difficult. NMFS believes, however, that cumulative impacts are addressed at least in part for habitat modifying activities, such as MRCI development and routine road maintenance, since coverage of such an activity under the rule requires NMFS to find that it is contributing to the attainment of, or is contributing to the maintenance of, properly functioning habitat conditions for the threatened ESUs covered in the rule.

Comment 22 : One commenter stated that the description of the evaluation criteria relating to riparian management areas in MRCI plans should indicate that such areas are often larger than one site-potential tree height and that it should also specify the types of riparian functions that should be protected in such plans.

Response : NMFS recognizes that riparian areas are important to threatened salmonids and, therefore, provided guidance in this final rule that MRCI plans should provide sufficient riparian management requirements or measures within a distance of one site-potential tree height from the stream channel. This general guidance was based on the best available scientific information which indicates that this stream side area is the one in which development activities most affect riparian zone habitat functions. Although this is a good rule of thumb, NMFS recognizes, as stated in the guidance for riparian zone management, that this distance can vary substantially from location to location and should be determined on a site-specific basis taking into account the conditions of the site or area and the type of habitat that may be affected by the MRCI development.

Comment 23 : One commenter indicated that it was unclear whether a plan must be submitted to NMFS when an entity requests coverage under the MRCI take limit, and that it was also unclear who is responsible for approving such a plan if warranted.

Response : NMFS does expect interested jurisdictions to submit a plan to NMFS which describes the MRCI activities to be covered and which addresses the twelve evaluation criteria contained in the take limit. As indicated in this final rule, the Southwest Regional Administrator is responsible for determining whether a MRCI plan qualifies for coverage under this take limit.

Comment 24 : The MRCI limit is subjective, violates the ESA, and is arbitrary and void for vagueness.

Response : The MRCI limitation was intended to be more broadly flexible than most of the other take limitations in order to address and provide coverage to the wide variety of circumstances that may arise under this category of activities. As noted elsewhere in this final rule, tailoring activities to comply with the take limitations and submittal of any plan to NMFS for consideration under any of the take limits, including the MRCI limit, is strictly voluntary. The MRCI limit has 12 specific land use considerations relevant to preserving fish habitat that NMFS will use to evaluate submitted land use regulations. NMFS’ use of these considerations to make its consistent with conservation and attaining and maintaining properly functioning condition determinations gives adequate clarity and certainty to this part of this regulation.

Comment 25 : One commenter felt that NMFS should provide performance standards that ordinances should meet and that the twelve evaluation criteria contained in the MRCI take limit were too vague.

Response : As discussed in this final rule, the fundamental performance standard against which ordinances or plans will be evaluated under this take limit is whether they contribute to maintaining and/or restoring properly functioning habitat conditions that will conserve the threatened ESUs. Under this limit, NMFS will evaluate ordinances or plans to determine if and how they affect conditions on the landscape and the extent to which they are contributing to the maintenance of or restoration of essential habitat functions. If such plans would maintain or contribute to restoring these functions, then they may qualify under the take limitation.

The 12 considerations contained in this final rule identify the specific issues and/or factors NMFS will use as a framework for evaluating ordinances or plans. These considerations are based on current scientific understanding of salmonid biological requirements. By assessing these twelve considerations, NMFS believes it can evaluate the extent to which an ordinance or plan contributes to maintaining or restoring properly functioning habitat conditions that will conserve the threatened ESUs. Depending on the scope of the ordinance or plan, all twelve of these considerations may not be relevant. NMFS recognizes this fact and will base its evaluation on only those considerations that are relevant.

Comment 26 : One commenter suggested that the final rule should provide a mechanism allowing FMEPs to be “tiered” off of Pacific Fishery Management Council (PFMC) approved Fishery Management Plans in order to avoid redundancy and duplication.

Response : The FMEP take limitation in this final rule is intended to provide a more efficient mechanism for insuring that freshwater recreational fisheries managed by the State of California adequately protect and contribute to the conservation of the threatened ESUs covered by the rule while still providing for angling opportunities. Coverage of State managed fisheries in this manner will provide assurance to the State and anglers that they are in compliance with the ESA. Such fisheries are under the jurisdiction of the State and are not managed by PFMC. Since the PFMC manages marine fisheries covered by Federal Fishery Management Plans it is unclear how the FMEP process in this final rule can be tiered off of the FMP process that is implemented by the PFMC. Because the two processes manage two separate fisheries, NMFS does not believe that there will be unnecessary duplication or redundancy in the development of FMEPs. To the extent feasible, however, NMFS will encourage the State to utilize information gathered as part of the FMP process in the development of FMEPs that are submitted for coverage under this rule.

Comment 27 : One commenter argued that the water diversion screening take limitation is inappropriate and does not meet the requirements of the ESA.

Response : NMFS believes strongly that the water diversion screening take limit is appropriate, that it provides for the conservation of the threatened ESUs covered by the rule, and that it is consistent with the ESA. As the commenter pointed out, NMFS is well aware that the entrainment of juvenile salmonids in unscreened or poorly screened water diversions is a problem, both in the central valley and in coastal watersheds. The water diversion screening limit in this rule is intended to provide an incentive for screening unscreened or poorly screened diversions. This final rule and this take limit do not allow unregulated take of listed salmonids at water diversions in the central valley or in coastal watersheds. In fact, this final rule imposes the ESA section 9(a)(1) take prohibitions on these three threatened ESUs making it illegal to entrain these fish into water diversions, and only relieves diverters of the take prohibitions if they qualify by meeting the criteria in the water diversion screening take limit or by obtaining take authorization through the processes of ESA section 7 or 10. NMFS will only provide coverage to water diverters under the water screening diversion take limit if they meet the criteria specified in the rule. These criteria call for: (1) NMFS to certify that a diversion is screened, maintained, and operated in compliance with NMFS’ fish screening criteria; and (2) the owner/operator of the facility to allow NMFS to inspect the facility to insure compliance with the criteria. NMFS believes these screening criteria are fully protective of juvenile salmonids and presently uses them as the basis for evaluating water screening diversion projects under ESA sections 7 and 10 of the ESA.

Comment 28 : One commenter was concerned that this final rule and this take limitation in particular would exempt all take of these threatened ESUs at the Federal and state water pumping facilities that operate in the central valley, provided they are operated in compliance with whatever screening criteria are in place.

Response : As discussed elsewhere, this final rule will impose the ESA section 9(a)(1) take prohibitions on three threatened ESUs, including the CCV spring-run chinook ESU. The water diversion screening take limit is primarily built into the rule to provide an incentive to smaller, non-Federal water diverters to screen their diversions with appropriate screens. In contrast, the Federal and state pumps and the associated fish protection facilities are part of the Federal and state water projects which are operated in a coordinated fashion by the Bureau of Reclamation and the Department of Water Resources. The combined operation of the Federal and state water projects, including the Federal and state pumps and the associated fish protection facilities, constitute a Federal project activity which is subject to section 7 of the ESA. This final rule does not relieve Federal agencies such as the Bureau of Reclamation of their obligation to consult under the ESA, nor does it exempt the take of these threatened species by Federal agencies. For this reason, the incidental take of CCV spring-run chinook at the Federal and state pumps and the associated fish protection facilities are authorized through section 7 of the ESA, not this final ESA 4(d) rule. Future modifications of the fish protection facilities in the Delta will comport to the extent appropriate with NMFS’ fish screening criteria and the mechanism for any required ESA compliance will be section 7 of ESA through the Bureau of Reclamation.

Comment 29 : One commenter asserted that NMFS’ screening criteria are not well supported or justified scientifically.

Response : NMFS disagrees. NMFS’ fish screening criteria are extensively detailed and have undergone a high degree of scientific scrutiny. They are based on decades of operational experience that have yielded some of the best screen designs for salmonid protection in existence. Several States, including California, have adopted NMFS’ screening criteria and use them extensively. Lastly, extensive biological evaluations have demonstrated little or no injury to fish when testing screen facilities constructed to NMFS’ criteria.

Comment 30 : One commenter suggested that this take limit should also “grandfather” in older fish screen and passage facilities provided they met the standards that were in existence at the time they were installed.

Response : The intent of this take limitation is to allow a water diversion to be made as safe as possible for the threatened ESUs covered by the rule. Therefore, we believe that the best available information regarding fish screen criteria that are protective of salmonids should be used as the basis for providing coverage to water diversions under this limit. In our view, the 1997 criteria constitute the best available information. As new biological information becomes available, however, it may be necessary to update these criteria and all new facilities from that point forward would need to comply with any updated criteria. NMFS recognizes that it may not be necessary to retrofit all existing screen facilities with new features every time that new information becomes available and that some older facilities may still function in a manner that is protective of threatened salmonids. In such cases, NMFS may consider certification of screen designs that meet the criteria in place at the time of construction providing there is no evidence to show that the device is causing the take of listed salmonids.

Comment 31 : One commenter argued that NMFS should not insert itself in the process of approving watershed conservation plan guidelines. This commenter also contended that NMFS does not have the authority to require states or local governments to consult with the agency in the development of such plans.

Response : The goal of this take limitation is to provide a mechanism for exempting habitat restoration projects from the ESA section 9 take prohibitions when those projects have been identified as being necessary to restore watershed function as a result of watershed scale assessments. In order for NMFS to provide this type of blanket coverage for habitat restoration projects and to avoid having to review all watershed conservation plans and habitat restoration projects separately, we believe it is appropriate for NMFS to link this exemption to an approval of watershed conservation plan guidelines. Absent the process described by this take limitation, the only means available for NMFS to authorize take that may occur as a result of habitat restoration projects is to review and approve them individually through ESA section 7 or section 10 processes. The process described in this take limit, if implemented by the state, can serve to expedite implementation of habitat restoration projects while at the same time promote watershed assessments and the development of watershed conservation plans on the basis of standard guidance. As clearly stated in the proposed and final rule, state and local entities are not required to use any of the take limitations, including the limitation for habitat restoration. In other words, NMFS is not requiring the state and local entities to develop guidelines or watershed conservation plans. We have made this option available as part of a process for facilitating the implementation of habitat restoration projects through exemption from the section 9 take prohibitions. As an alternative to using this take limitation, state or local entities may choose to utilize the section 7 or section 10 processes to obtain take authorization for habitat restoration projects they plan to implement.

The threatened salmonid ESUs addressed in this final rule are in danger of becoming extinct throughout all or a significant portion of their range in the foreseeable future. Abundance of these ESUs has been reduced by over-fishing, past and ongoing freshwater and estuarine habitat destruction, hydropower development, hatchery practices, and other causes. NMFS has concluded, therefore, that it is necessary and advisable to apply the ESA section 9(a)(1) prohibitions to these ESUS to aid in their conservation. ESA section 9(a)(1) prohibitions make it illegal for any person subject to the United States’ jurisdiction to “take” these species without written authorization. “Take” is defined to occur when a person engages in activities that harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect a species or attempt to do any of these. Impacts on a protected species’ habitat may harm members of that species and, therefore, constitute a “take” under the ESA. Such acts may include significant habitat modification or degradation that actually kills or injures listed fish by significantly impairing essential behavioral patterns including breeding, spawning, rearing, migrating, feeding or sheltering (64 FR 60727, November 8, 1999).

On July 1, 1994 (59 FR 34272), NMFS and the FWS published a policy committing both agencies to identify, to the extent possible, those activities that would or would not violate section 9 of the ESA. The intent of this policy is to increase public awareness about ESA compliance and focus public attention on those actions needed to protect listed species.

Based on the best available information, NMFS believes the categories of activities that follow are those activities which as a general rule may be most likely to result in injury or harm to listed salmonids. It is important to emphasize, however, that whether injury or harm results from a particular activity is entirely dependent upon the facts and circumstances of each individual case. The mere fact that an activity may fall within one of these categories does not mean that the specific activity is causing harm or injury. These categories of activity, however, are ones that may be most likely to cause harm and, thus, violate the ESA section 9(a)(1) take prohibitions in this final rule. The activities listed below in A thru J are as cited in NMFS’ harm rule (64 FR 60727, November 8, 1999).

A. Constructing or maintaining barriers that eliminate or impede a listed species’ access to habitat or ability to migrate.

B. Discharging pollutants, such as oil, toxic chemicals, radioactivity, carcinogens, mutagens, teratogens or organic nutrient-laden water including sewage water into a listed species’ habitat.

C. Removing, poisoning, or contaminating plants, fish, wildlife, or other biota required by the listed species for feeding, sheltering, or other essential behavioral patterns.

D. Removing or altering rocks, soil, gravel, vegetation or other physical structures that are essential to the integrity and function of a listed species’ habitat.

E. Removing water or otherwise altering stream flow when it significantly impairs spawning, migration, feeding or other essential behavioral patterns.

F. Releasing non-indigenous or artificially propagated species into a listed species’ habitat or where they may access the habitat of listed species.

G. Constructing or operating dams or water diversion structures with inadequate fish screens or fish passage facilities in a listed species’ habitat.

H. Constructing, maintaining, or using inadequate bridges, roads, or trails on stream banks or unstable hill slopes adjacent to or above a listed species’ habitat.

I. Conducting timber harvest, grazing, mining, earth-moving, or other operations which result in substantially increased sediment input into streams.

J. Conducting land-use activities in riparian areas and areas susceptible to mass wasting and surface erosion, which may disturb soil and increase sediment delivered to streams, such as logging, grazing, farming, and road construction.

K. Illegal fishing. Harvest in violation of fishing regulations.

L. Various streambed disturbances may trample eggs or trap adult fish preparing to spawn. The disturbance could be mechanical disruption caused by constructing push-up dams, removing gravel, mining, or other work in a stream channel. It may also take the form of egg trampling or smothering by livestock in the streambed or by vehicles or equipment being driven across or down the streambed (as well as any similar physical disruptions).

M. Interstate and foreign commerce dealing in listed salmonids and importing or exporting listed salmonids may harm the fish unless it can be shown through an ESA permit that they were harvested in a manner that complies with ESA requirements.

N. Altering lands or waters in a manner that promotes unusual concentrations of predators.

O. Shoreline and riparian disturbances (whether in the riverine, estuarine, marine, or floodplain environment) that may retard or prevent the development of certain habitat characteristics upon which the fish depend (e.g., removing riparian trees reduces vital shade and cover, floodplain gravel mining, development, and armoring shorelines reduces the input of critical spawning substrates, and bulkhead construction can eliminate shallow water rearing areas).

P. Filling or isolating side channels, ponds, and intermittent waters (e.g., installing tide gates and impassable culverts) can destroy habitats the fish depend upon for refuge areas during high flows.

The list provides examples of the types of activities that could have a high risk of causing take, but it is by no means exhaustive. It is intended to help people avoid activities that may violate the ESA and to encourage efforts to protect and conserve the threatened ESUs covered in this final rule. A determination as to whether take has actually occurred depends on the circumstances of a particular case.

Many activities that may kill or injure salmonids, such as fill and removal authorities, National Pollutant Discharge Elimination System or other water quality permitting, and pesticide use are regulated by state and/or Federal processes. For those types of activities, NMFS would not concentrate enforcement efforts on those who operate in conformity with current permits. Rather, if the regulatory program does not provide adequate salmonid protection, NMFS intends to work with the responsible agency to make necessary changes in the program.

For instance, concentrations of pesticides may affect salmonid behavior and reproductive success. Current EPA label requirements were developed in the absence of information about the impacts of such pesticides on aquatic species such as salmonids. Where new information indicates that pesticide label requirements are not adequately protective of salmonids, NMFS will work with EPA through the ESA section 7 consultation process to develop more protective use restrictions and, thereby, provide the best possible guidance to all users. Similarly, where water quality standards or state authorizations lead to pollution loads that may cause take, NMFS intends to work with the state water quality agencies and EPA to bring those standards or permitting programs to a point that does protect salmonids.

Persons or entities concluding that their activity is likely to injure or kill protected fish are encouraged to immediately adjust that activity to avoid take (or adequately limit any impacts on the species) and seek NMFS’ authorization for incidental take under: (a) an ESA section 10 incidental take permit; (b) an ESA section 7 consultation; or (c) one of the limits (if available) on the take prohibitions provided in this final rule. The public is encouraged to contact NMFS (see FOR FURTHER INFORMATION CONTACT ) for assistance in determining whether circumstances at a particular location (involving these activities or any others) would constitute a violation of this final rule.

Impacts on listed salmonids resulting from actions in compliance with a permit issued by NMFS pursuant to section 10 of the ESA would not constitute a violation of this final rule. Section 10 permits may be issued for research activities, enhancement of a species’ survival, or to authorize incidental take occurring in the course of an otherwise lawful activity. NMFS consults on a broad range of activities conducted, funded, or authorized by Federal agencies. These include fisheries harvest, hatchery operations, silviculture activities, grazing, mining, road construction, dam construction and operation, discharge of fill material, and stream channelization and diversion. Federally funded or approved activities that affect listed salmonids and for which ESA section 7 consultations have been completed will not constitute violations of this final rule provided the activities are conducted in accord with all reasonable and prudent measures and terms and conditions contained in any biological opinion and incidental take statement issued by NMFS.

A list of references cited in this final rule is available upon request (see ADDRESSES ).

In accordance with the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), therefore, NMFS prepared an IRFA which was made available through the proposed ESA 4(d) rule for public comment. Although no comments were received on the IRFA during the public comment period, NMFS has made some revisions to the Final Regulatory Flexibility Analysis (FRFA) by defining further geographic subareas to insure its consistency with the Final Regulatory Impact Review (RIR). The FRFA is available upon request (see ADDRESSES ) and a summary follows.

This ESA 4(d) rule has no specific requirements for regulatory compliance. Instead, the rule sets an enforceable performance standard in the form of the section 9(a)(1) take prohibitions (i.e., do not “take” the threatened ESUs) that applies to all entities and individuals unless an activity is within a carefully circumscribed set of activities for which NMFS will not impose the take prohibitions. Hence, the universe of entities reasonably expected to be directly or indirectly impacted by the prohibition is potentially broad.

The entities potentially affected by imposition of the ESA section 9 take prohibitions occur over a large geographic area which includes the Sacramento River basin in California’s central valley, as well as coastal watersheds ranging from the Russian River to Redwood Creek. Activities potentially affecting salmon and steelhead ESUs covered by the proposed rule are those associated with agriculture, fishing, hatcheries, mining, heavy construction, highway and street construction, logging, wood and paper mills, electric services, water transportation, and other industries. As many of these activities involve local, state, and Federal oversight, including permitting, governmental activities from the smallest towns or planning units to the largest cities may potentially be impacted. The activities of some nonprofit organizations may also be affected by these regulations.

NMFS examined the potential impact of the ESA 4(d) rule on a sector-by-sector basis. Unavailable or inadequate data leaves a high degree of uncertainty surrounding both the numbers of entities likely to be affected, and the characteristics of any impacts on particular entities. The problem is complicated by differences among entities even in the same sector as to the nature and size of their current operations, contiguity to waterways, individual strategies for dealing with the take prohibitions, etc. Finally, most of the activities that would be subject to the take prohibitions in the rule are already subject to the take prohibitions imposed by existing ESA 4(d) rules that protect other salmonid ESUs utilizing the same habitat. Thus, determining the incremental cost of this rule requires information concerning regulated entities’ response to pre-existing ESA 4(d) rules, some of which have been in effect for only a little over a year.

In the absence of 4(d) rules, entities could comply with the ESA through section 10 research, enhancement, and incidental take permits with private entities, or through ESA section 7 consultation with Federal agencies. Since implementation of the July 2000 4(d) rule NMFS has received plans from various entities in Oregon, Washington, Idaho and California for approval under the limits to the take prohibitions. States can now send a list of research activities they expect to authorize for the following year instead of sending individual ESA section 10 applications. During promulgation of the July 2000 rule NMFS did not have a complete understanding of the economic impacts entities would incur as a result of imposition of the take prohibitions. To gain some insight as to how entities may have changed their activities in response to implementation of the take prohibitions, we have summarized the numbers of plans submitted and their status under the July 4(d) rule in the following table. While portions of these plans were developed independently of the July 4(d) rule, they may have been modified in order to qualify for the take limits of the rule, as opposed to undergoing ESA section 7 or 10 procedures. Authorization under the rescue/salvage limit, City of Portland, Oregon Parks and Recreation Department’s Pest Management Program and Washington’s Forest Practices became effective September 8, 2000, and January 8, 2001, for the steelhead and salmon ESUs respectively, and are not listed in the table. Oregon Department of Transportation’s (ODOT’s) Routine Road Maintenance program also became effective with the effective dates, but other entities can qualify for ESA coverage under this limit if they use ODOT’s program or an equivalent program.

Entities that are now subject to the July 4(d) rule fall into 4 categories: (1) Those entities who have sought or are actively seeking ESA compliance via the July 4(d) rule limits; (2) those who are not sure if their activities will harm salmonids, but are seeking guidance from NMFS; (3) those who are actively seeking ESA compliance via the section 10 or section 7 process; and (4) those entities that are taking salmon but are not seeking ESA compliance.

Examination of the geographical aspects of overlapping ESUs, and consideration of differences in the distribution of the different ESUs within river systems revealed five subareas composing the geographic extent of the four ESUs combined. Subarea 1 consists of that area where this rule’s take prohibition for Central Valley spring chinook would be superimposed on existing take prohibitions for threatened Central Valley steelhead and endangered winter-run chinook salmon. In this region only a small variety of activities involving deliberate take of spring-run chinook is expected to be affected.

Subarea 2 consists of that area where Central California coast coho will be subject to limitations on the take prohibition not presently allowed by the existing ESA 4(d) rule for that threatened ESU and no new take prohibition is being added. The impact of this rule in this subarea is the increased flexibility allowed by the 10 take prohibition limits.

Subarea 3 consists of that area where this rule superimposes the take prohibitions for Northern California steelhead and California coastal chinook on the existing take prohibition for Central California coast coho. Deliberate take of the steelhead and chinook will be newly affected in this subarea and the take limits will be introduced for coho, making them congruent with the take limits for steelhead and chinook in that area.

Subarea 4 consists of the area where this rule superimposes the take prohibition for steelhead and chinook on the existing take prohibition for the Southern Oregon/Northern California coho ESU. Deliberate take of steelhead and chinook will be newly regulated in this area, but no change will be made for the take limits applicable to coho.

Subarea 5 consists of those portions of the Northern California steelhead and California coastal chinook ESUs not utilized by either coho ESU. Because steelhead (and chinook to a lesser extent) are much more widely distributed within the ESU boundaries than coho, there are substantial areas where steelhead and/or chinook will be protected which are not utilized by coho. Modifications to habitat which have no risk of taking coho may risk taking steelhead and chinook in such areas.

Although there may be some limited impact in all of these subareas the only substantial economic impacts on individual small entities from this rule, therefore, are expected to occur in the non-federal portions of subarea 5, which lie almost entirely in low population density areas of Humboldt, Mendocino, and Sonoma counties. These three counties had a combined 1998 population of about 640,000 with personal income of about $18 billion. However, most of the people and income are contributed by urban centers in Sonoma and Humboldt counties which are not contained in subarea 5. No population estimate is available for subarea 5, but it is believed to be less than 15,000. Small entities in this subarea likely to be directly affected by this rule include private timber harvesters, cattle ranches, a small number of farms and vineyards, and possibly small businesses engaged in road and culvert construction. The number of such entities is not known, but is a small subset of the same classes of entities found in the three counties containing subarea 5.

This final rule applies the take prohibitions enumerated in ESA section 9(a)(1), and also limits application of the take prohibitions to certain specified categories of activities that contribute to conserving these ESUs or are governed by a program that adequately limits impacts on these ESUs. There are no record keeping or reporting requirements associated with imposition of the take prohibition; therefore, it is not possible to simplify or tailor record keeping or reporting to be less burdensome for small entities. However, some programs for which NMFS may in the future find it is unnecessary to prohibit take because they fall under one of the take limitations in this final rule would involve recordkeeping and/or reporting to support that continuing determination. NMFS has attempted to minimize any burden associated with these programs.

The public reporting burden per response for this collection of information is estimated to average 5 hours for a submission on screening of a water diversion or for a report on salmonids assisted, disposed of, or salvaged; 20 hours to prepare a road maintenance agreement; 30 hours for an MRCI ordinance development package; and 10 hours for an MRCI development annual report.

This rule also contains a collection-of-information requirement associated with habitat restoration activities conducted under watershed conservation plans that has received PRA approval from OMB under control number 0648-0230. The public reporting burden for the approval of watershed conservation plans is estimated to average 10 hours.

These estimates include any time required for reviewing instruction, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information.

In formulating this final rule, NMFS considered several alternative approaches which are described in the IRFA. These included: (1) Enacting a “global” ESA 4(d) protective regulation for threatened species through which NMFS would automatically apply the section 9 take prohibitions to all threatened species at the time of listing; (2) enacting ESA 4(d) protective regulations that include the take prohibitions, but contain no take limits, or only a few limits, on the application of the take prohibitions for relatively uncontroversial activities such as fish rescue/salvage; (3) enacting ESA 4(d) regulations which include the take prohibitions in combination with detailed prescriptive requirements applicable to one or more sectors of activity; (4) enacting ESA 4(d) protective regulations similar to the existing interim 4(d) protective regulations for Southern Oregon/Northern California coast coho salmon which includes four additional limitations on the extension of the take prohibitions, for harvest plans, hatchery plans, scientific research, and habitat restoration projects, when in conformance with specified criteria; (5) enacting ESA 4(d) regulations similar to the interim rule for Southern Oregon/Northern California coast coho, but with recognition of more programs and circumstances in which application of take prohibitions is neither necessary or advisable, and (6) enacting no ESA 4(d) protective regulations for the threatened salmonid ESUs. This last approach would leave the threatened ESUs without any protection other than provided by ESA section 7 consultations for actions with some Federal nexus.

The approach taken in this final rule is alternative 5 which would impose the ESA section 9 take prohibition and also create 10 limits to the take prohibitions for specific circumstances or categories of activity (see discussion of take limitations in the proposed rule). This approach is fundamentally the same as that taken in NMFS’s July 2000 ESA 4(d) rule for 14 threatened salmonids (65 FR 42422). For several of these activity categories (i.e., recreational harvest, artificial propagation, habitat restoration, road maintenance, and municipal, residential, commercial and industrial development) the regulation is structured so that it allows plans or programs developed after promulgation of this final rule to be submitted to NMFS for review and approval under criteria described in the rule.

All of the other alternatives which provide take prohibitions for the threatened ESUs may result in unnecessary impacts on economic activity of small entities, given NMFS’ judgment that more limited protections would suffice to conserve the species. NMFS believes this final rule provides the greatest latitude for individual entities and regulatory agencies to tailor activities and programs to fit individual circumstances while avoiding or minimizing take of threatened salmonids. At present, NMFS concludes that there are no legally viable alternative rules that would have less impact on small entities and still fulfill the agency’s obligations to protect these threatened salmonid ESUs.

Pursuant to E.O. 12866 (58 FR 51735, October 4, 1993), NMFS has prepared a Regulatory Impact Review (RIR) which considers costs and benefits of the regulatory alternatives that were considered in developing this ESA 4(d) rule, including the alternative of not promulgating a protective rule. Copies of the RIR are available upon request (see ADDRESSES ).

Costs and benefits of this final rule and other alternative rule making approaches include both quantifiable measures (to the fullest extent that these can be usefully estimated) and qualitative measures of costs and benefits where estimates cannot be meaningfully made for impacts that are essential to consider. The benefit provided by this rule, as well as each of the other alternatives NMFS considered that afford sufficient protection for the threatened ESUs, is its contribution to the recovery of the threatened ESUs. No monetized measure of the benefit of recovery is available.

The RIR finds that in Area 1, Area 3, and Area 4 the only activities likely to be affected by this final rule are those involving deliberate direct take of listed species, especially angling, hatchery operation, and research. The costs of these activities, either to the state or private parties, are estimated to increase over the baseline due to increased permitting, NEPA documentation, and monitoring requirements. Activities in Area 2, where coho already have a take prohibition in place, will become less costly due to reduced permitting and NEPA requirements. In Area 5, timber harvest, grazing, stream diversions, summer dams, road construction and maintenance, and construction of new or improved culverts will come under increased regulation. Incremental costs associated with summer dams, roads, and culverts are significant but could not be quantified at this time. Aggregate quantified incremental first-year costs for the proposed rule are estimated to be between $11.8 million and $17.7 million, while annual costs thereafter are estimated to be from $4.6 million to $9.1 million. The same costs estimated for a blanket take prohibition with no limits are estimated at $18.9 million to $21.6 million and $6.2 million to $10.7 million, respectively.

The RIR concludes that the proposed rule would substantially improve conditions favorable to recovery of the threatened ESUs compared to taking no action, that the only alternative which could achieve quicker results (detailed prescriptive requirements) is too costly and intrusive, and that the proposed rule is the least costly rule among the alternatives which are sufficiently protective of threatened salmon and steelhead ESUs.

Because this final rule will eliminate application of the section 9 take prohibition to those State or local programs or activities that fall within defined take limitation criteria protective of salmonids, those programs will encourage participation and contribute to the conservation of the threatened ESUs covered by the rule; NMFS’ involvement will be more collaborative and less often require enforcement actions. This approach has the greatest probability that compliance burdens will be equally shared, that economic incentives will be employed in appropriate cases, and that practical standards adapted to the particular characteristics of the state or region will aid citizens in reducing the risks of take in an efficient way. For these reasons, it is likely that this final rule will minimize the cost to the public of avoiding or minimizing take over the long term in comparison with the other alternatives that were considered.

E.O. 13175 requires that if NMFS issues a regulation that significantly or uniquely affects the communities of Indian tribal governments and imposes substantial direct compliance costs on those communities, NMFS must consult with those governments or the Federal government must provide the funds necessary to pay the direct compliance costs incurred by the tribal governments. This final rule does not impose substantial direct compliance costs on the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of E.O. 13175 do not apply to this final rule.

Nonetheless, NMFS took steps to inform potentially affected tribal governments, to provide information to tribes on the content and scope of the rule and its relationship to the Tribal ESA 4(d) rule (65 FR 42481, July 10, 2000), and to solicit tribal input on the rule. NMFS did not receive any formal comments from Indian tribes, but remains prepared to meet with interested tribes to discuss the rule and its relationship to their activities. As a result of the July 2000 Tribal ESA 4(d) rule, NMFS has already established efforts to coordinate with many of the tribes that are located within the range of ESUs affected by this rule.

E.O. 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific consultation directives for situations where a regulation will preempt state law, or impose substantial direct compliance costs on state and local governments (unless required by statute). Neither of those circumstances is applicable to this final rule. In fact, this final rule provides a mechanism by which NMFS may defer to state and local government programs, where they provide necessary protections for threatened salmonids.

NMFS’ July 2000 ESA 4(d) rule for 14 threatened salmonids (65 FR 42422), including three steelhead ESUs in California, was the first instance in California where the agency defined some reasonably broad categories of activities, both public and private, for which take prohibitions were not considered necessary and advisable when specified criteria were met. Since that rule was promulgated, NMFS has engaged in discussions with various State and local agencies and other organizations in California wishing to pursue development of programs that would qualify under the various take limits contained in that final rule. In addition, NMFS has sought working relationships with other governmental and non-governmental organizations, and endeavored to promote use of the ESA 4(d) rule. Because the threatened ESUs addressed in this rule overlap substantially with the ESUs addressed in the July 2000 ESA 4(d) rule (65 FR 42422), working relationships have already been established with many agencies and organizations that may be affected by this rule.

In addition to these efforts, NMFS staff have given presentations to interagency forums, community groups, and others, and served on a number of interagency advisory groups or task forces considering conservation measures. Many cities, counties and other local governments have sought guidance and consideration of their planning efforts from NMFS, and staff have met with them whenever possible. Lastly, NMFS staff have continued coordination with the state aimed at developing recreational fisheries and artificial propagation management plans and other programs that will be protective of threatened salmonids and ultimately may be recognized within the July 2000 ESA 4(d) rule or this final rule.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number. This final rule contains collection-of-information requirements subject to the PRA and which have been approved by OMB under control number 0648-0399.

The public reporting burden per response for this collection of information is estimated to average 5 hours for a submission on screening of a water diversion or for a report on salmonids assisted, disposed of, or salvaged; 20 hours to prepare a road maintenance agreement; 30 hours for an MRCI ordinance development package; and 10 hours for an MRCI development annual report.

This final rule also contains a collection-of-information requirement associated with habitat restoration activities conducted under watershed conservation plans that has received PRA approval from OMB under control number 0648-0230. The public reporting burden for the approval of watershed conservation plans is estimated to average 10 hours.

These estimates include any time required for reviewing instruction, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information.

Send comments on these or any other aspects of the collection of information to NMFS (see ADDRESSES ) and to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC. 20503 (Attention: NOAA Desk Officer).

NMFS prepared EAs, as defined under the authority of NEPA of 1969, addressing each threatened ESU covered by this final rule. Based on a review and evaluation of the information contained in these NEPA documents, NMFS has determined that promulgation of protective regulations for these four threatened salmonid ESUs, including the creation of limitations on the applicability of the prohibitions on taking any of those salmonids, is not a major Federal action that would significantly affect the quality of the human environment within the meaning of section 102(2)(c) of NEPA of 1969. NMFS believes these EAs examined appropriate alternatives, and that preparation of an Environmental Impact Statement is not required. Copies of the EAs/Findings of No Significant Impact are available on request (see ADDRESSES ).

Several of the background documents for this final rule 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 Diane Borggaard, (see ADDRESSES) 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 ).

This final rule implements approved modifications to the ALWTRP deemed by NMFS necessary to satisfy requirements of the Endangered Species Act (ESA) and MMPA. Details concerning the justification for and development of the DAM program and the implementing regulations were also provided in the preamble to the proposed rule (66 FR 50160, October 2, 2001) and are not repeated here.

Areas that will be considered for DAM are limited to areas north of 40o N latitude. A DAM zone will be triggered by a single reliable report from a qualified individual of 3 or more right whales within an area (75 nautical miles (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.

NMFS will use the following procedures and criteria to establish a DAM zone:

1. A circle with a radius of at least 2.8 nm (5.2 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. This is equivalent to a radial distance of 2.8 nm (5.1 km) for a single right whale sighted, 3.9 nm (7.3 km) for two whales, 4.8 nm (8.9 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 in which the right whales could move and still be protected. NMFS will determine the extent of the DAM zone as follows:

1. A larger circular zone will be drawn to extend 15 nm (27.8 km) from the perimeter of a circle around each core area.

2. The DAM zone will then be defined by a polygon drawn outside, but tangential to the circular buffer zone(s). The latitudinal and longitudinal coordinates of the corners of the polygon will then be identified.

Once a DAM zone is identified, NMFS will 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 . At this time, NMFS does not have criteria developed that would allow gillnet or lobster trap gear to be fished within a DAM zone. 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 document. 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 document in the Federal Register and other appropriate media announcing the establishment of the zone with restrictions imposed. It will also announce them immediately upon filing the document 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 will 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 will provide detailed information on the location of the DAM zone and the number of animals sighted within it.

NMFS will 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 the 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 whales are still sighted in the DAM zone, in which case, NMFS will continue 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 will notify the public by issuing a notification in the Federal Register and through other appropriate media.

Approximately 58 letters of comment were received during the public comment period on the proposed rule, which ended on November 1, 2001. A complete summary of the comments and NMFS’ responses is provided here.

Comment 1 : Several letters were received from private individuals in support of NMFS’ proposal to implement DAM. Most of those letters expressed serious concerns about the future survival of North Atlantic right whales. In addition, these comments encouraged NMFS to work closely with gillnet and lobster fishermen to protect right whales from future entanglements in fishing gear.

Response : NMFS will continue to work with the ALWTRT and members of the fishing industry to minimize interactions between right whales and fishing gear. NMFS believes that DAM will reduce serious injuries and mortalities to right whales from entanglements by temporarily restricting lobster trap and gillnet fishing gear in areas where right whales congregate to feed. Comment 2 : Several comments questioned the DAM trigger mechanism. Many felt that it was inappropriate to base a DAM zone on a single sighting by one person. In addition, the Maine Department of Marine Resources requested that NMFS determine a clearer definition of “qualified individual.” It was suggested that NMFS establish a tiered process for judging whether or not a report is credible and further suggested that NMFS request corroborating information from the individual providing the report while continuing to verify the initial report during the 5-to 7-day period between filing notice with the Federal Register and publication. Furthermore, there were concerns that false sightings would be reported by disgruntled crew or competitors identifying themselves as “qualified individuals” wishing to cause hardship on fishermen by closing down their fishing grounds.

Response : NMFS anticipates that it may receive false or exaggerated reports of right whale sightings from people claiming to be “qualified individuals.” Therefore, NMFS intends to thoroughly investigate all reports for credibility and reliability. The definitions of “qualified individual” and “reliable report” were developed with this intent in mind. In addition, NMFS will require that the individual providing the report identify him or herself and the vessel from which the sighting was made. Anonymous reports will not be considered reliable and, therefore, cannot trigger a DAM zone. Furthermore, a document prepared by the Northeast Fisheries Science Center entitled, “Defining Triggers for Temporary Area Closures to Protect Right Whales from Entanglements: Issues and Options,” concluded that a single sighting is appropriate because foraging whales are at risk of entanglement whenever they are feeding, regardless of how quickly a food source is consumed. (Clapham and Pace, 2001). Therefore, to trigger a DAM zone, NMFS feels that a single report of right whales is an adequate trigger mechanism. Simply stated, as long as a single sighting can establish that the whales are feeding in an area, and not merely transiting through, no additional sightings would be necessary based on the understanding that feeding whales are at a greater risk of entanglement.

Comment 3 : Many commenters questioned the implementation of a DAM zone based on the proposed trigger of three right whales. Comments from lobstermen and state agencies indicated that NMFS should adopt the trigger of eight whales sighted twice over 2 days, which was discussed at the ALWTRT meeting. Commenters encouraged NMFS to explore all other information available to ensure that the three-whale trigger is appropriate for the implementation of a DAM zone.

Response : The issue of the number of right whales that would trigger a DAM zone was discussed at the ALWTRT meeting. However, the ALWTRT did not produce any consensus recommendations on any one set of whale density criteria and/or triggering levels. NMFS determined that a trigger based on the sighting of three right whales was appropriate after considering the analysis of sighting data performed by the Northeast Fisheries Science Center. Foraging whales are assumed to be at risk of entanglement and DAM was designed to respond quickly to situations where feeding whales and fishing gear overlap in order to reduce the chances that a whale will get entangled. Therefore, the scientific research conducted on DAM sought to establish the smallest number of right whales that could be advanced as a reliable indicator that the animals were engaged in feeding behavior. The scientists concluded that a sighting of three or more right whales in an area was a reasonably good indicator that the animals were residing in an area to feed. (Clapham and Pace, 2001).

Comment 4 : Comments were received expressing concern about the size of the DAM zone. In particular, several lobstermen felt that it would take months to remove their gear from a DAM area of 1,000 nm or more and suggested that DAM areas of 10 nm would be more realistic for compliance by the industry. One lobsterman estimated that it would take 12 trips, each lasting up to 10 days, to remove gear from a 1,000-nm DAM zone. In addition, many comments from fishermen explained that if all gear is removed from the DAM zone it will be reset around the boundary of the area, thus creating a wall around the DAM zone, which may create a greater risk of entanglement to right whales.

Response : NMFS appreciates the amount of effort that may be required to remove gillnet and lobster trap gear from a DAM zone. The analysis of sighting data presented in the document “Defining Triggers for Temporary Area Closures to Protect Right Whales from Entanglements: Issues and Options,” found that a 15-nm buffer around the initial core area would enclose all of the whales sighted, irrespective of their movements during the course of the event. (Clapham and Pace, 2001). The size of the DAM zone is dependent on the number of whales that would trigger an event.

Comment 5 : Several comments were received that expressed concerns about the amount of time proposed for compliance with gear restrictions within DAM zones. For example, a comment received from a lobsterman stated that it would be impossible to remove all lobster gear in the time allotted under the proposed rule and, furthermore, the chaos and confusion created would present a safety hazard.

Response : NMFS appreciates the time, effort, and risk involved in hauling fishing gear and removing it from an area that has been designated for DAM. In order to provide fishermen with time to respond to the implementation of gear restrictions within a DAM zone, NMFS will issue a notice at the time the notice is filed with the Office of the Federal Register , which is usually 3 to 5 days prior to the regulation being published in the Federal Register . Once the decision has been made to remove gear from a DAM zone, NMFS will notify the commercial fisheries affected as quickly and comprehensively as reasonably possible. In addition, when a right whale sighting meets the DAM trigger, NMFS will issue an alert via email to all ALWTRT members and post the alert on the website at www.nero.nmfs.gov/whaletrp/. NMFS hopes that members of the ALWTRT who receive an alert will circulate the information to other interested parties to help insure that the fishermen who may have to eventually remove gear from a DAM zone have time to respond. Fishermen, industry representatives, environmental groups, and all others interested in receiving alerts and notices over the Internet should provide their email address to the Northeast Regional Office (See ADDRESSES section). NMFS will also mail letters providing notice to those who request it by contacting the Northeast Regional Office (See ADDRESSES section). In addition, NMFS will investigate using a news bulletin service to provide notice through the local press.

Comment 6 : Several comments were received that questioned the length of the restricted period. In particular, the Massachusetts Division of Marine Fisheries felt that the rule making process and the time required for fishermen to remove all of their gear from a DAM area would exceed the duration of most sighting “events.”

Response : NMFS intends to respond to reports of right whale sightings that trigger a DAM as quickly as possible in order to insure that restrictions are implemented in a timely fashion to maximize protection for the animals. See NMFS’ response to the previous comment. NMFS believes that an initial restricted period of 15 days with the ability for extension is an adequate and appropriate management measure for protecting right whales. Research conducted by the Northeast Fisheries Science Center concluded that a 15-day restricted period represented the average mean duration of the 13 documented events that began with an initial sighting of three or more right whales. (Clapham and Pace, 2001). Therefore, based on these findings, NMFS established an initial restricted period of at least 15-days with additional extensions to the restricted period if whales continue to meet the trigger for DAM.

Comment 7 : A comment from an environmental group expressed concern with the automatic expiration of the DAM zone after 15 days and felt that NMFS should be required to lift restrictions, through notification in the Federal Register , once the whales are no longer sighted in the area.

Response : NMFS intends to provide protection for concentrations of right whales that remain present in the area after the conclusion of the 15-day period, if necessary and appropriate, by extending the restricted period, through notification in the Federal Register . NMFS believes that an initial restricted period of 15 days with the ability for extension is an adequate and appropriate management measure for protecting right whales. Research conducted by the Northeast Fisheries Science Center concluded that a 15-day restricted period represented the average mean duration of the 13 documented events that began with an initial sighting of three or more right whales. (Clapham and Pace, 2001). Therefore, based on these findings, NMFS established an initial restricted period of at least 15 days with additional extensions to the restricted period if whales continue to meet the trigger for DAM.

Comment 8 : Several comments were received from fishermen who felt it is unnecessary to implement DAM because the gear they are currently utilizing is already considered “whale safe”. Lobstermen fishing in Cape Cod Bay with sinking and neutrally buoyant line and weak links felt that this gear adequately reduces the risk of serious injury or mortality to right whales from entanglements without NMFS requiring further alterations or requiring the removal of gear from the area. Lobstermen also expressed concerns about the economic impact of DAM on their business and added that changing over to neutrally buoyant and sinking line has already been very costly, and expressed displeasure at what was perceived as NMFS’ apparent disregard for the efforts of the ALWTRT towards developing gear that can coexist with whales without making closures necessary. In addition, the Massachusetts Division of Marine Fisheries (DMF) encouraged NMFS to adopt more universal “whale safe” gear modifications instead of implementing DAM because improving devices, such as buoy line breakaways, eliminates the need to completely remove gear from an area. Conversely, several environmental groups commenting on this issue recommended that NMFS require the removal of all lobster trap and gillnet gear from the DAM zone, in light of the fact that NMFS and the ALWTRT can not agree on gear modifications that sufficiently reduce the risk of entanglement.

Response : NMFS will continue to work with the ALWTRT to modify and develop fishing gear that adequately reduces the risk of entanglement to large whales and when such gear is deemed adequate, NMFS may allow it to be used for fishing within DAM zones. In addition, NMFS encourages fishermen to collaborate with the gear research team towards developing fishing gear that completely reduces the risk of entanglement to right whales. However, until then, the most reliable means for reducing the risk of entanglements to right whales within DAM zones is by requiring the complete removal of all lobster trap and gillnet fishing gear. See response to comment 18.

Comment 9 : A comment from an environmental group questioned how NMFS planned to enforce voluntary compliance with gear restrictions within DAM zones.

Response : In the event that right whale sightings trigger a DAM zone, NMFS will determine whether to impose restrictions on fishing and/or fishing gear. This determination will 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 to 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 two days of the publication of the notice in the Federal Register . If NMFS decides not to implement restrictions within the DAM zone, NMFS will follow the protocol developed cooperatively between NMFS and the ALWTRT for voluntary compliance. NMFS will 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 will provide detailed information on the location of the DAM zone and the number of animals sighted within it. Furthermore, NMFS will request that fishermen voluntarily remove lobster trap and gillnet gear from the DAM zone and no additional gear be set inside it. NMFS believes providing this information to interested parties and requesting compliance with gear restrictions, which is in every fisherman’s interest, is an appropriate means for maintaining communication with industry while providing protection for right whales.

Comment 10 : Several comments suggested that the regulation of state waters would be better served if left to state agencies. Specifically, lobstermen fishing in Cape Cod Bay felt that NMFS should follow the Massachusetts DMF approach to developing rules to reduce entanglements. Other commenters from the lobster fishing industry expressed opposition to Federal regulations that would supersede rules already imposed within state waters because of the feeling that DMF knows the state waters better than NMFS. In addition, a comment received from a member of the lobster industry encouraged NMFS to allow the State of Maine to assess and provide the appropriate regulations in consideration of the unique variability and spacial distribution between right whales and fishing gear off the Maine coast. The Maine Department of Marine Resources echoed these concerns and also believed that the state whale protection plans offer the greatest chance of success.

Response : Although the MMPA provides NMFS with authority to regulate in State waters, states can develop equally protective or more protective restrictions if they choose, and NMFS encourages such action. Further, NMFS has cooperative agreements in place with a number of Atlantic states, which enable states to enforce requirements of the MMPA and its implementing regulations.

NMFS tries to coordinate with states on other issues as well. For example, with regard to gear markings that yield individual vessel information, many of the state and Federal fishery management plans currently require marking of buoys and/or traps with individual vessel identification. NMFS plans to continue to work with state fisheries agencies to investigate gear marking coast-wide and identify gaps in marking of surface gear, gillnets, and traps. This information will be presented to the ALWTRT for future consideration

Comment 11 : Comments were received that expressed concerns about the procedure for providing notice to fishermen in the event of a DAM closure. For example, the Massachusetts DMF felt that the May 2001, DAM closure was a failure because NMFS did not contact all of the fishermen affected and questioned whether NMFS could dedicate the staff time to informing fishermen of future DAM closures. Another commenter questioned how NMFS would provide notification to fishermen prior to the publication in the Federal Register .

Response : Once the decision has been made to remove gear from a DAM zone, based on the criteria outlined in the preamble, NMFS will notify the commercial fisheries affected as quickly and comprehensively as possible. In order to provide fishermen with time to respond to the implementation of gear restrictions within a DAM zone, NMFS will issue a notice at the time the notice is filed with the Office of the Federal Register , which is usually 3 to 5 days prior to publication in the Federal Register . In addition, when a right whale sighting meets the DAM trigger, NMFS will issue an alert via email to all ALWTRT members and post the alert on the website at www.nero.nmfs.gov/whaletrp/. NMFS hopes that members of the ALWTRT who receive an alert will circulate the information to other interested parties to help insure that the fishermen who may have to eventually remove gear from a DAM zone have time to respond. Fishermen, industry representatives, environmental groups, and all others interested in receiving alerts and notices over the internet should provide their e-mail address to the Northeast Regional Office. (See the ADDRESSES section). NMFS will also mail letters providing notice to those who request it by contacting the Northeast Regional Office in addition to posting such notification on the Northeast Regional Office web site at www.nero.nmfs.gov. In addition, NMFS will investigate using a news bulletin service to provide notice through the local press.

Comment 12 : Several commenters pointed out that the procedure for creating a DAM zone in the proposed rule differed from how the process is described in the document “Defining Triggers for Temporary Area Closures to Protect Right Whales from Entanglements: Issues and Options.”

Response : NMFS agrees and this inconsistency has been corrected in this final rule. The justification and rationale for the correction can be found in the preamble of this final rule under “Changes in the Final Rule from the Proposed Rule.”

Comment 13 : Many comments received questioned the decision factors NMFS proposed when considering whether to impose restrictions on fishing and/or fishing gear within a DAM zone. In particular, several environmental groups felt that, except for the consideration of weather conditions as they relate to the safety of life at sea, the factors listed in the proposed rule should not influence the decision to impose restrictions on fishing because such restrictions should be automatic once a concentration of right whales triggers a DAM zone. It was also noted that NMFS should require the complete removal of all gear automatically once a DAM zone has been triggered. A letter from the Marine Mammal Commission also expressed concerns over the discretion reserved by NMFS with respect to whether to impose restrictions within a DAM zone and felt that the factors should only be considered for setting a deadline when gear should be removed.

Response : NMFS believes that the agency should be provided with some level of discretion when deciding whether to impose gear restrictions within a DAM zone. Therefore, NMFS will base its decision on the enumerated factors that are relevant based on the circumstances surrounding the implementation of a DAM zone.

Comment 14 : Several comments from environmental groups expressed concerns over the proposed regulatory language which provides NMFS with the option of deciding whether or not to require the complete removal of lobster trap and gillnet gear from a DAM zone. For example, one commenter felt that this discretion merely maintains the status quo and, therefore, would not sufficiently reduce jeopardy. Another commenter felt that, because NMFS and the ALWTRT cannot agree on gear modifications that would sufficiently reduce the risk of entanglement to right whales, NMFS should require the complete removal of all lobster trap and gillnet gear from the DAM zone.

Response : NMFS believes that reserving the discretion to decide whether to implement gear restrictions within DAM zones gives the agency a reasonable amount of flexibility to respond to the vast multitude of scenarios under which a DAM zone may be triggered. NMFS feels that DAM, in combination with the proposed rules for Seasonal Area Management (SAM) and additional gear modifications, are collectively sufficient to remove the likelihood of jeopardy to the continued existence of North Atlantic right whales. DAM was specifically included as one of the multiple management components to the Reasonable and Prudent Alternative (RPA) discussed in the four BOs on the Fishery Management Plans for spiny dogfish, monkfish, multispecies, and Federal regulations for the American lobster fishery. According to the RPA, DAM, SAM, and expanded gear modifications were developed to cumulatively eliminate serious mortality and serious injuries of right whales in gillnet and lobster trap gear, eliminate serious and prolonged entanglements, and significantly reduce the total number of right whale entanglements in gillnet and lobster trap gear. NMFS does not feel that reserving the discretion on deciding whether to implement gear restrictions within DAM zones implies that the agency will fail to respond when sightings of right whales trigger DAM. In addition, while NMFS feels that, at the current time, requiring the complete removal of gillnet and lobster trap gear from within a DAM zone is the appropriate means for reducing the risk of entanglement to right whales, the agency continues to encourage fishermen and gear researchers to work on innovating and developing ways to improve fishing gear to avoid serious injury and mortality from entanglements. In recognition of the fact that gear research and development is ongoing, NMFS felt it was important to maintain the option of allowing fishing with “risk averse” gear inside a DAM zone in the event that such gear is perfected and approved.

Comment 15 : One commenter suggested that NMFS clarify the circumstances under which a DAM would continue and how it would be limited. The commenter expressed concern regarding a hypothetical situation where, during the 15-day restricted period for a DAM zone, a second grouping of whales triggered another separate DAM zone outside but adjacent to the initial zone specified in the notice. Based on this scenario, the commenter was concerned that the initial DAM zone would be enlarged to create a single, very large closure.

Response : In the event that right whales are sighted and a DAM zone is triggered, NMFS would maintain the area for at least 15 days. If a DAM zone is triggered, but no restrictions are implemented, the 15-day period would begin from the time NMFS issues the alert. If, on the other hand, NMFS implements gear restrictions within the DAM zone, the 15-day period would begin on the date the restrictions become effective (i.e., 2 days after publication in the Federal Register ). In response to the hypothetical situation described, while it is possible that there may be some days that the successive DAM zones overlap, the first DAM zone will automatically expire after 15 days, unless NMFS decided to extend the restricted period to further protect concentrations of right whales. However, NMFS also has the option of removing restrictions prior to the 15-day automatic expiration if subsequent survey efforts confirm that right whales have left the designated area. The second DAM zone would be maintained separately with its own 15-day restricted period.

Comment 16 : The U.S. Coast Guard commented on aerial patrols to assist in confirming sightings and enforcing restrictions within the DAM zone. Due to a re-prioritization of law enforcement missions, the Coast Guard will only be able to devote minimal aircraft hours to assist NMFS in the implementation and enforcement of DAM. In addition, surface patrols will be more limited than in the past. Finally, the U.S. Coast Guard stated that, if fishing gear is modified and approved for use within a DAM zone, the U.S. Coast Guard will not be able to assist in enforcement of those restrictions because they are not equipped or trained to haul fixed gear.

Response : NMFS greatly appreciates the support the U.S. Coast Guard has provided in the past for implementing and enforcing management programs designed to protect and conserve marine mammals. These two agencies have a strong commitment to cooperating in the development, implementation, and enforcement of programs for marine protected resources, including North Atlantic right whales and other marine mammals. NMFS acknowledges the fact that the duties of the U.S. Coast Guard have been re-prioritized in light of recent national events. NMFS notes, however, that other means of enforcing the DAM restrictions exist aside from pulling gear and that other law enforcement resources can be used to enforce DAM restrictions.

Comment 17 : Several comments were received expressing concerns over the burden placed on American fishing to protect whales while only a token effort is directed towards ship strikes and Canadian fixed gear.

Response : NMFS acknowledges that ship strikes and entanglements with fishing gear of foreign flag vessels also cause serious injury and mortality to right whales. NMFS is currently addressing these threats through other means and policy discussions. NMFS is issuing this final rule specifically to address commercial fishery impacts from four fisheries. This final rule stems from a component of the RPA resulting from consultations required under the ESA on the continued operation of the monkfish, spiny dogfish, multispecies, and lobster fisheries. However, the ALWTRP is designed to respond to the threats posed by domestic fishing gear. NMFS appreciates the continued involvement of the gillnet and lobster trap fisheries in the ALWTRT and their efforts to reduce serious injury and mortality to marine mammals, especially right whales. NMFS understands that right whales are injured and killed by other sources and will continue to work toward reduction of those impacts. For example, NMFS is currently taking into consideration recommendations from the Northeast Implementation Team for the Recovery of the Northern Right whale and the Humpback whale and the Southeast U.S. Right Whale Recovery Plan Implementation Team on ways to reduce the impacts of ship strikes from the recreational and commercial shipping sectors. In addition, NMFS is working on a proposed rule to regulate whale watching. Finally, NMFS is working with representatives from the Canadian Department of Fisheries and Oceans to develop and implement protective measures for right whales in Canadian waters.

Comment 18 : A comment received from an environmental groups requested that, if NMFS is planning on allowing gear to be fished within a DAM zone that is determined to sufficiently reduce the risk of entanglement to right whales, then NMFS should clarify what constitutes a “sufficient” reduction.

Response : Although NMFS is considering gillnet and lobster trap gear modifications as part of the proposed rule for the SAM program, at present, NMFS does not have criteria developed that would allow gillnet or lobster trap gear to be fished within a DAM zone. 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. The DAM program is designed for a rapid response to the presence of right whales in areas at times that are generally unpredictable. The regulatory text and preamble of the proposed rule notes that any gear modifications determined by NMFS to sufficiently reduce the risk of entanglement to right whales would be identified in the Federal Register notice implementing the DAM zone. To the extent practicable, NMFS will provide a separate notification in the Federal Register regarding any determination that gear modifications sufficiently reduce the risk of entanglement to right whales in DAM zones in advance of imposition of any DAM zones with those gear modifications.

Comment 19 : One commenter suggested that NMFS initiate inter-agency and international cooperation to assist in the development of programs to protect right whales.

Response : NMFS notes that under section 7 of the Endangered Species Act, Federal agencies must consult with NMFS to insure that any action authorized, funded, or carried out by such agency (referred to as the “action agency”) is not likely to jeopardize the continued existence of any endangered or threatened species. After discussions with the action agency, if NMFS concludes in a biological opinion that an activity is likely to jeopardize the continued existence of any endangered or threatened species, NMFS must include in its opinion any RPAs to avoid the likelihood of jeopardy to the listed species from the Federal activity. Furthermore, NMFS has established Memoranda of Agreement between several Federal agencies, such as the U.S. Navy, U.S. Coast Guard, and U.S. Army Corps of Engineers, to help better protect and recover listed species. With respect to international cooperation, NMFS is continuing to work with the Canadian government to develop and implement protective measures for right whales in Canadian waters. In addition, NMFS is working with Canadian whale biologists and support teams to improve and expand disentanglement efforts in Canadian waters.

Comment 20 : One commenter suggested that NMFS issue regulations to close portions of the Right Whale Critical Habitat Areas to gillnet and lobster fishing and completely prohibit the use of “high risk” types of fishing gear in critical habitat during periods of known use by the whales.

Response : Although NMFS has not specifically defined or designated “high risk” types of fishing gear, data collected from past entanglements indicates that serious injuries and mortalities to right whales have occurred from interactions with gear used by the anchored gillnet and lobster trap fisheries. As a result, NMFS has implemented regulations that restrict the use of these gear types within right whale critical habitat during the months that the whales are present in these areas. For example, from April 1 to June 30, no lobster trap or anchored gillnet gear may be set in the Great South Channel Critical Habitat. In addition, from January 1 to May 15, anchored gillnetting is prohibited within the Cape Cod Bay Critical Habitat. Lobster trap fishing is permitted during this restricted period within Cape Cod Bay Critical Habitat, but the gear must be set with weak links and sinking lines that reduce the risk of serious injury and mortality from entanglements.

Comment 21 : NMFS should develop take reduction plans (TRPs) that would mitigate bycatch of all strategic stocks of marine mammals in commercial fisheries.

Response : NMFS has chosen to develop TRPs on particular stocks. NMFS manages multiple stocks through some TRPs such as the ALWTRP. Decisions on whether a TRP addresses single or multiple stocks is dependent on the similarities of the fisheries that impact these stocks. No take reduction team can be tasked with suggesting recommendations to mitigate bycatch of all strategic marine mammal stocks in commercial fisheries, and NMFS does not have the funds to develop additional take reduction teams at this time. Presently, NMFS is considering the take reduction teams currently formed, and the success of each TRP toward reaching the goals of the MMPA, in order to determine whether funds could be redirected to support additional take reduction teams.

Comment 22 : One commenter noted that NMFS must undertake an adequate program of research and development for the purpose of devising improved fishing methods and gear so as to reduce the incidental taking of right whales in commercial fishing.

Response : NMFS is committed to gear research and development, and will expand this program as funding allows. NMFS has gear laboratories and research teams that specifically focus on gear development and testing. Additionally, NMFS contracts with researchers, individuals and companies to develop gear solutions. Many of the current TRP measures are based on the outcome of such gear research (e.g. weak links) conducted and/or funded by NMFS. The gear modifications are important to reduce interactions between right whales (and other large whales) and fishing gear to further reduce serious injury and mortality of large whales due to entanglement in fishing gear. In addition, NMFS intends to continue to support the contributions made by the ALWTRT’s Gear Advisory Group. NMFS is collaborating with other organizations to host a gear workshop, tentatively scheduled for February 2002, to investigate additional options and gear enhancements for gillnet and lobster trap gear. The results of this workshop will be distributed to the ALWTRT for consideration of future gear recommendations to NMFS. Comment 23 : Several commenters expressed concerns over the lack of notification regarding the publication of the proposed rules.

Response : Time constraints prevented NMFS from holding public hearings on the current regulations; however, NMFS used other ways to let the public know that public comments were being sought on a proposed rule to address commercial fishery/large whale interactions. In addition to publication of the proposed rule in the Federal Register , efforts included distributing the information to ALWTRT members who represent various stakeholder groups and provide valuable links to distribute information to the public, NOAA press release, announcement in NOAA’s FishNews, and communications with state managers. NMFS will consider other means of communicating with the public and welcomes recommendations on ways to disseminate such information such as through letters to permit holders.

Comment 24 : One commenter suggested that NMFS use emergency publication to expedite the process for implementing DAM.

Response : NMFS is not planning on using emergency publication to implement DAM based on the following reasons. Once the agency has determined to implement gear restrictions within a DAM zone, NMFS intends to forward the signed document to the Office of the Federal Register with a request for “file immediately” status. As soon as the notification is filed, NMFS will begin to notify interested parties. NMFS has found that requesting emergency publication does not significantly expedite the process for providing notice above what is being provided in this final rule. However, NMFS will consider requesting emergency publication if the particular facts of a situation indicate that doing so would be warranted.

This final rule will correct and clarify one of the criteria used to determine the extent of a DAM zone. The description of the criterion presented in the proposed rule did not accurately reflect NMFS’ intent in establishing the size of a DAM zone. At issue is the location of the 15 nm (27.8 km) radius that is used to determine the size of a DAM zone.

As published in the preamble of the proposed rule, 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 was defined in the proposed rule as the geographic center of all sightings on the first day of an event. However, the criterion described in the proposed rule does not clearly describe the intent contained in the reference document. The reference document used to establish this criterion, “Defining Triggers for Temporary Area Closures to Protect Right Whales from Entanglements: Issues and Options” (see ADDRESSES for copies), describes the DAM zone buffer as the boundary of a circle that extends 15 nm (27.8 km) from the perimeter of a circle around the initial whale sightings or core area. The DAM zone will then be defined by a polygon drawn outside but tangential to the circular buffer zone(s). The latitudinal and longitudinal coordinates of the corners of the polygon will then be identified.

Therefore, § 229.32(g)(3)(ii) is revised to identify the DAM zone as a larger circular zone drawn to extend 15 nm (27.8 km) from the perimeter of a circle around each core area.

NMFS prepared a FRFA for this rule. A copy of this analysis is available from NMFS (see ADDRESSES). Five alternatives were evaluated, including a status quo or no action alternative, the preferred alternative (PA), and three other alternatives. A summary of that analysis follows:

(1) The “No Action” alternative would leave in place the existing regulations promulgated under the ALWTRP, but specific criteria and procedures for DAM would not be included in the regulations. The no action alternative would result in no additional economic burden on the fishing industry, at least in the short-term. However, if the status quo is maintained now, more restrictive and economically burdensome measures than those in this final rule may be necessary in the future to protect endangered right whales. The No Action alternative was rejected because it would not enable NMFS to meet the RPA measures of the BOs required under the ESA.

(2) NMFS considered but rejected an alternative that would require different triggers within each respective state jurisdiction as discussed by the ALWTRT. None of the proposals offered by the states were supported by data. No information has been presented to demonstrate the potential for these triggers to result in DAM zones that would reduce the risk of entanglement to right whales. The ALWTRT discussed having different triggers within each respective state jurisdiction. This could only be considered if the state trigger was found to be more restrictive than the Federal trigger, which is not the case with the triggers suggested by Maine, Massachusetts and/or Rhode Island. The state triggers were evaluated as if they would apply consistently to all waters - federal and state.

(3) NMFS considered but rejected an alternative that would trigger a DAM zone using the observation of one right whale on a single day. In addition, a buffer of 15 nm would be drawn around each individual animal observed. The observation of one or two right whales does not appear to be a good indicator of residency. The trigger in this alternative is not effective at predicting residency, and thus may trigger DAM zones more often than necessary.

(4) NMFS considered but rejected an alternative in which the trigger and buffer would generally be the same as in the preferred alternative (PA)(i.e., the observation of four right whales in a 100-nm2 area and the buffer would be 15 nm), however, instead of imposing a restriction requiring removal of all lobster gear, a 50-percent reduction in vertical lines would be required for lobster gear. The restrictions for gillnet gear would be the same as in the PA which requires complete removal. Based on right whale sightings data in 2000, six areas could potentially be closed. Because this alternative would require the removal of only 50 percent of vertical lines for lobster gear rather than all vertical lines (i.e. all gear), NMFS is concerned that this alternative may not be consistent with statutory objectives.

(5) The PA will temporarily restrict lobster trap and gillnet fisheries when NMFS receives a single reliable report from a qualified individual of three or more right whales within an area (75 nm2) such that right whale density is equal to or greater than 0.04 right whale per nm2. Based on right whale sightings data from 1999 and 2000, a DAM zone would have been triggered four times in 1999 and six times in 2000. NMFS accepted this alternative as these DAM zones are appropriate to avoid jeopardizing the continued existence of North Atlantic right whales and enable NMFS to meet a portion of the RPA in the BO’s.

The action is part of the RPA that resulted from the BOs issued by NMFS, in accordance with section 7 of the ESA, to remove the likelihood of jeopardy of North Atlantic right whales posed by the continued operation of the multispecies, spiny dogfish, monkfish and lobster fisheries. The objective of this action is to reduce the level of serious injury to and mortality of North Atlantic right whales in East Coast lobster trap and finfish gillnet fisheries.

NMFS has taken steps to minimize the significant economic impact on small entities through this PA by reserving discretion to issue an alert or impose gear restrictions, rather than closing DAM areas, if these measures would be sufficient to protect concentrations of right whales. The small entities affected by this final rule are gillnet and lobster trap fishermen. The geographic areas for consideration for DAM are limited to areas north of 40° N latitude. Since DAM will be used to respond to unusual and unexpected sightings of right whales, it is difficult for NMFS to predict exactly where DAM zones may be implemented in the future. It is difficult to quantify the economic impacts of NMFS using its discretion in implementing 50 CFR 229.32(g)(2) as the restrictions that will be are unknown at this time in addition to the unknowns of the particular event such as the time and location of the restrictions and the level of fishing effort at that time and location. Therefore, providing an accurate estimate of the number of small entities that will be affected is problematic. Based on the available data, a maximum of 7,539 state and federally permitted lobster vessels and 310 gillnet vessels, which includes federally permitted vessels and may include state permitted vessels, could be affected by this action. However, NMFS does not expect that number of vessels to be affected by any one DAM closure because of the limited size of a DAM zone. For example, the retrospective analysis of the April-May 2000 DAM Area 1 estimated that 210 lobster vessels and 42 gillnet vessels would have been affected by the hypothetical closure.

NMFS received two public comments relating to the economic impacts of this final rule. These comments were considered by NMFS before it approved this final rule and are characterized and responded to by NMFS in the “Comments and Responses” section of the preamble to this final rule, as comment/response numbers four and eight. No changes to the rule were made as a result of these comments.

This action contains no new reporting or record keeping requirements. There are no relevant Federal rule actions that duplicate, overlap, or conflict with this action.

NMFS determined that this action is consistent to the maximum extent practicable with the approved coastal management program of the U.S. Atlantic coastal states. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act. No state disagreed with our conclusion that the rule is consistent with the enforceable policies of the approved coastal management program for that state.

This final rule contains policies with federalism implications that were sufficient to warrant preparation of a federalism assessment under Executive Order 13132. Accordingly, the Assistant Secretary for Legislative and Intergovernmental Affairs provided notice of the proposed action to the appropriate official(s) of affected state, local and/or tribal government in October 2001. No comments on the federalism implications of the proposed action were received in response to this notification. However, one affected state did respond on the federalism implications during the comment period for the proposed rule. The comment is characterized and responded to by NMFS in the “Comments and Responses” section of the preamble to this final rule, as comment/response number 10. No changes to the rule were made as a result of the comment received.

This final rule implements a portion of the RPA, which resulted from ESA section 7 consultations on three FMPs for the monkfish, spiny dogfish, and Northeast multispecies fisheries, and the Federal regulations for the American lobster fishery. This final rule implements a component of the RPA contained in the BOs issued by NMFS on June 14, 2001. Therefore, no further section 7 consultation is required.

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

ALWTRT. 2001. Draft Atlantic Large Whale Take Reduction Team Meeting Summary. Summary prepared by RESOLVE, Inc. and submitted to the National Marine Fisheries Service July 16, 2001.

Bisack, K. 2001. Economic analysis of Wilkinson Basin closure. Northeast Fisheries Science Center, 166 Water Street, Woods Hole, MA. 02543.

Bisack, K. 2001. (Draft) Economic analysis of dynamic area management (DAM). Northeast Fisheries Science Center, 166 Water Street, Woods Hole, MA. 02543.

Clapham, P.J. and R.M. Pace, III. 2001. Defining Triggers for Temporary Area Closures to Protect Right Whales from Entanglements: Issues and Options. Northeast Fisheries Science Center Reference Document 01-06. April 2001.

National Marine Fisheries Service. 2000. Environmental Assessment of the Atlantic Large Whale Take Reduction Plan and Implementing Regulations. NMFS. Northeast Region. December 2000.

National Marine Fisheries Service. 2001. Preliminary estimates of the revenue losses to the gillnet and lobster fleet in 1999 due to potential dynamic area closures to protect right whales. NMFS. Northeast Region. March 2001.

National Marine Fisheries Service. 2001. Endangered Species Act section 7 consultation. Biological opinion regarding Fishery Management Plans for monkfish, spiny dogfish, and multispecies and Federal regulations for American lobster. June 14, 2001.

Several of the background documents for this proposed rule 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.nmfs.noaa.gov/prot_res/mammals/sa_rep/sar.html. Information on disentanglement events is available on the web page of NMFS' whale disentanglement contractor, the Center for Coastal Studies, http://www.coastalstudies.org/.

This interim final rule implements modifications to the ALWTRP as deemed necessary by NMFS to satisfy requirements of the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA). On June 14, 2001, NMFS issued four Biological Opinions (BOs) as the result of ESA section 7 consultations on the three Fishery Management Plans (FMP) for the monkfish, spiny dogfish, and Northeast multispecies fisheries, and the Federal regulations for the American lobster fishery. The BOs concluded that the fisheries conducted pursuant to the three FMPs and the lobster regulations are likely to jeopardize the continued existence of right whales. In response to the section 7 consultation's jeopardizing finding, NMFS developed a Reasonable and Prudent Alternative (RPA) with multiple management components. As part of its RPA, NMFS developed gear restrictions for the anchored gillnet and lobster trap fisheries based on predictable annual concentrations of right whales. Details concerning the justification for and development of the SAM program and the implementing regulations were also provided in the preamble to the proposed rule (66 FR 59394, November 28, 2001) and are not repeated here.

The SAM program is established to protect predictable annual congregations of North Atlantic right whales in the waters off Cape Cod and out to the Exclusive Economic Zone line (see figure 1) as observed in aerial surveys from 1999-2001 (Merrick, et al. 2001). NMFS has defined two areas, called SAM West and SAM East, in which gear restrictions for lobster trap and anchored gillnet gear are required. These requirements are more stringent than, and in addition to, the gear modifications currently required under the ALWTRP for the Offshore Lobster Waters, Northern Nearshore Lobster Waters, Northern Inshore Lobster Waters and Other Northeast Waters (gillnet area description). SAM West and SAM East will occur on an annual basis for the period March 1 through April 30 and May 1 through July 31, respectively. The dividing line between SAM West and SAM East is at the 69° 24′ W. longitude line. See table 1 for the spatial and temporal definitions of the areas.

The domestic groundfish fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands management area (BSAI) and Gulf of Alaska (GOA) are managed by NMFS according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs). The FMPs were prepared by the North Pacific Fishery Management Council (Council) under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and are implemented by regulations governing the U.S. groundfish fisheries at 50 CFR part 679.

Regulations at § 679.21(f) implement a vessel incentive program to reduce halibut and red king crab bycatch rates in the groundfish trawl fisheries. Under the incentive program, operators of trawl vessels must not exceed Pacific halibut bycatch rate standards specified for the BSAI and GOA midwater pollock and “other trawl” fisheries, and the BSAI yellowfin sole and “bottom pollock” fisheries. Vessel operators also must not exceed red king crab bycatch rate standards specified for the BSAI yellowfin sole and “other trawl” fisheries in Bycatch Limitation Zone 1 (defined in § 679.2). The fisheries included under the incentive program are defined in regulations at § 679.21(f)(2).

Regulations at § 679.21 (f)(3) require that halibut and red king crab bycatch rate standards for each fishery included under the incentive program be published in the Federal Register. The standards are in effect for specified seasons within the 6-month periods of January 1 through June 30, and July 1 through December 31. Because the Alaskan groundfish fisheries are closed to trawling from January 1 to January 20 of each year (§ 679.23 (c)), the Administrator, Alaska Region, NMFS (Regional Administrator), is promulgating bycatch rate standards for the first half of 2002 effective from January 20, 2002, through June 30, 2002.

As required by § 679.21 (f)(4), bycatch rate standards are based on the following information:

(A) Previous years' average observed bycatch rates;

(B) Immediately preceding season's average observed bycatch rates;

(C) The bycatch allowances and associated fishery closures specified under §§ 679.21(d) and (e);

(D) Anticipated groundfish harvests for that fishery;

(E) Anticipated seasonal distribution of fishing effort for groundfish; and

(F) Other information and criteria deemed relevant by the Regional Administrator.

At the October 2001 Council meeting, NMFS staff presented an analysis of recent bycatch rates of Pacific halibut and red king crab in the groundfish trawl fisheries to provide the Council with a basis for setting bycatch rate standards for the first half of 2002. The analysis showed that since 1999, actual bycatch rates experienced by vessels participating in the groundfish trawl fisheries were lower than the established bycatch rate standards with the exception of vessels participating in the BSAI yellowfin sole and the GOA “other trawl” fisheries. Based on this information, NMFS suggested to the Council that an upward adjustment of the bycatch rate standard in the yellowfin sole fishery may be warranted and that downward adjustments of the halibut bycatch rate standards in the BSAI and GOA midwater pollock fisheries and the red king crab bycatch rate standards in the BSAI yellowfin sole and “other trawl” fisheries may be warranted. Specifically, for the BSAI yellowfin sole fishery, the analysis indicated that an increase of the halibut bycatch rate standard to 15 kg/mt of groundfish would encompass 73 percent of the vessels participating in the yellowfin sole fishery. For the BSAI and GOA midwater fisheries, the analysis indicated that a decrease of the halibut bycatch rate standard to 0.5 kg/mt of groundfish would encompass 99 percent of the vessels participating in the BSAI midwater pollock fishery and 90 percent of the vessels in the GOA midwater pollock fishery. Finally, for the BSAI yellowfin sole fishery and “other trawl” fisheries, the analysis indicated that a decrease of the BSAI Zone 1 red king crab bycatch rate standard to 1.0 kg/mt of groundfish would encompass 82 percent of the vessels participating in the BSAI yellowfin sole fishery and 92 percent of the vessels participating in the BSAI “other trawl” fishery.

The Advisory Panel recommendation and public testimony did not agree. The public testified that upward adjustments of the rates appeared to reward violators of the rates while downward adjustments appeared to penalize fishermen for their effort in avoiding prohibited species. The public also testified that the Council should pursue the development of alternative incentive programs such as an individual vessel bycatch allowance or similar program in which the costs or benefits of excess or reduced bycatch would be limited to the vessel conducting the fishing.

After considering public testimony, the Council recommended that the same rates used in the first half of 2001 be used for the first half of 2002. Further, the Council requested that NMFS consider the effects of observer sampling procedures and changing fishing practices due to the American Fisheries Act, improved retention/improved utilization, and Steller sea lion protection measures on prohibited species bycatch rates. Until such an assessment is conducted, the Council recommended that the existing bycatch rate standards adequately meet the intent of the VIP. The Council's recommended bycatch rate standards are listed in Table 1.

In 2001, BSAI pollock combined A/B season was January 20 through June 10. In 2001, the inshore and offshore component fisheries for pollock ended 6 to 10 weeks prior to June 10, depending on the processing component and area. Directed fishing for pollock by the inshore and offshore component fisheries reopened June 10, the start of the 2001 pollock combined C/D season. Also, the community development quota pollock fishery ended 7 weeks before the end of the combined A/B season and did not resume until mid-June. In 2002, the proposed A season allowance for Bering Sea pollock (60 percent of the directed fishing allowance) would be available January 20 through June 10, with the remainder available June 10 through November 1. As in past years, the directed fishing allowances specified for the first 2002 pollock season likely will be reached before June 10.

As in past years, the halibut bycatch rate standard recommended for the BSAI and GOA midwater pollock fisheries (1 kg halibut/mt of groundfish) is higher than the bycatch rates normally experienced by vessels participating in these fisheries. The average halibut bycatch rates for the BSAI 2001 first and second calendar quarter fisheries are equal to 0.13 and 0.15 kg halibut/mt groundfish, respectively, and the average halibut bycatch rates for the GOA 2001 first and second calendar quarter fisheries are equal to 0.36 and 0.17 kg halibut/mt groundfish, respectively. The recommended standard is intended to encourage vessel operators to maintain off-bottom trawl operations.

Since 1999, the use of nonpelagic trawl gear has been prohibited in the BSAI non-CDQ directed pollock fishery (§ 679.24 (b)(4)). Even with this prohibition, a vessel using pelagic trawl gear may be assigned to the BSAI bottom pollock fishery defined at § 679.21 (f)(2) because assignment to a fishery for purposes of the VIP is based on retained catch composition during a weekly period instead of gear type. If the majority of the catch is pollock, but pollock comprises less than 95 percent of the catch, then a haul is assigned to the BSAI bottom pollock fishery. The prohibition on the use of nonpelagic trawl gear has reduced the number of hauls assigned to the BSAI bottom pollock fishery. Since the prohibition became effective, the halibut bycatch rates for this fishery are low compared to the halibut bycatch rate standards established for this fishery with an average halibut bycatch rate for the 2001 first and second calendar quarter fisheries equal to 0.89 and 1.89 kg halibut/mt groundfish, respectively.

Other factors that could affect the spatial and temporal distribution of the directed pollock fishery include the allocations of pollock among the inshore and offshore fleets under the American Fisheries Act and the implementation of conservation measures that are necessary under the Endangered Species Act to mitigate pollock fishery impacts on Steller sea lions. At this time, the effects of these changes on halibut bycatch rates in the pollock fishery are unknown.

Data available on halibut bycatch rates in the BSAI yellowfin sole fishery during the first and second quarters of 2001 showed an average bycatch rate of 19.74 and 18.54 kg halibut/mt of groundfish, respectively. These rates are significantly higher than in past years. One explanation of relatively higher rates might include changes in the physical or biological conditions driving the rate of bycatch in the yellowfin sole fishery. A second explanation might be that vessels are using larger mesh gear to reduce discards and comply with increased retention/utilization standards for pollock and Pacific cod. A third explanation might be that with the decline of trawl Pacific cod catch, halibut mortality historically assigned to the trawl Pacific cod target has not been used by that fishery and instead has been made available to the flatfish fisheries. The availability of “extra” halibut mortality could allow vessels catching flatfish to be less concerned about avoiding halibut bycatch. Thus, although the amount of groundfish catch may be decreased in a haul, the amount of halibut retained in the net may remain the same and result in an increase in the bycatch rate of halibut. The Council’s recommendation to use the same bycatch rates in 2002 as was used in 2001 should work as a deterrent to these higher rates given the explanation that increased bycatch rates caused by the perception of “extra” halibut and is consistent with the intent of the VIP in that vessels should avoid halibut bycatch regardless of whether there is more halibut bycatch available to a fishery.

For the “other trawl” fisheries, the Council supported a 30 kg halibut/mt of groundfish bycatch rate standard for the BSAI and a 40 kg halibut/mt of groundfish bycatch rate standard for the GOA. Observer data collected from the 2001 BSAI “other trawl” fishery show first and second quarter halibut bycatch rates of 11.02 and 23.79 kg halibut/mt of groundfish, respectively. Observer data collected from the 2001 GOA “other trawl” fishery show first and second quarter halibut bycatch rates of 10.89 and 56.84 kg halibut/mt of groundfish, respectively.

Since 1997, with the exception of the GOA second quarter “other trawl” fishery, the average bycatch rates experienced by vessels participating in the GOA and BSAI “other trawl” fisheries have been lower than the specified bycatch rate standards for these fisheries. The Council and NMFS have determined that the recommended halibut bycatch rate standards for the “other trawl” fisheries, including the second quarter GOA fishery, would continue bycatch rate standards that represent an acceptable level of halibut bycatch in these fisheries and will encourage vessel operators to avoid high halibut bycatch rates while participating in these fisheries. Furthermore, these standards will provide some leniency to those vessel operators who choose to use large mesh trawl gear or other device as a means to reduce groundfish discard amounts or are forced to fish in different seasons or fishing grounds under measures implemented to mitigate fishing impacts on Steller sea lions and their critical habitat.

For the BSAI yellowfin sole and “other trawl” fisheries in Zone 1 of the Bering Sea subarea, the Council's recommended red king crab bycatch rate standard is 2.5 crab/mt of groundfish. This standard is unchanged since 1992. The red king crab bycatch rates experienced by the BSAI yellowfin sole fishery in Zone 1 during the first and second quarters of 2001 averaged 0.57 and 0.08 crab/mt of groundfish, respectively. Although these rates are lower than the standards, the first quarter’s rate is higher than bycatch rates experienced in previous years. The average bycatch rates of red king crab experienced in the BSAI “other trawl” fishery during the first and second quarters of 2001 were 0.09 and 0.00 crab/mt groundfish, respectively. The low 2001 red king crab bycatch rates primarily were due to trawl closures in Zone 1 that were implemented to reduce red king crab bycatch.

For the period January through October 2001, the total bycatch of red king crab by trawl vessels fishing in Zone 1 is estimated at 32,856 crab, considerably less than the 97,000 red king crab bycatch limit established for the trawl fisheries in Zone 1. NMFS anticipates that the 2002 red king crab bycatch in Zone 1 will be similar to 2001 because the crab bycatch reduction measures will remain the same.

In spite of anticipated 2001 red king crab bycatch rates being significantly lower than 2.5 red king crab/mt of groundfish, the Council recommended the red king crab bycatch rate standards be maintained at these levels. These levels continue to provide protection against unacceptably high rates of bycatch in these fisheries while providing some leniency to those vessel operators who choose to use large mesh trawl gear as a means to reduce groundfish discard amounts.

The Regional Administrator has determined that the recommended bycatch rate standards are appropriately based on the information and considerations necessary for such determinations under § 679.21 (f). Therefore, the Regional Administrator establishes the halibut and red king crab bycatch rate standards for the first half of 2002 as set forth in Table 1. These bycatch rate standards may be revised and these revisions published in the Federal Register when deemed appropriate by the Regional Administrator pending his consideration of the information set forth at § 679.21 (f)(4).

As required in regulations at §§ 679.2 and 679.21 (f)(5), the 2002 fishing months are specified as the following periods for purposes of calculating vessel bycatch rates under the incentive program:

Month 1: January 1 through February 2;

Month 2: February 3 through March 2;

Month 3: March 3 through March 30;

Month 4: March 31 through April 27;

Month 5: April 28 through June 1;

Month 6: June 2 through June 29;

Month 7: June 30 through August 3;

Month 8: August 4 through August 31;

Month 9: September 1 through September 28;

Month 10: September 29 through November 2;

Month 11: November 3 through November 30; and

Month 12: December 1 through December 31.

This action is taken under 50 CFR 679.21(f) and is exempt from OMB review under Executive Order 12866.

NMFS published a notice of availability for Amendment 6, which described the proposed amendment and invited comments from the public, in the Federal Register on October 5, 2001 (66 FR 51001). Comments were invited until December 4, 2001. NMFS received no public comments.

The Council and NMFS prepared an EA for Amendment 6 that describes the management background, the purpose and need for action, the management alternatives, and the environmental and the socio-economic impacts of the alternatives. A copy of the EA can be obtained from NMFS (see ADDRESSES ).

Amendment 6 to the salmon FMP implements overfishing definitions in compliance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Magnuson-Stevens Act defines the terms “overfishing” and “overfished” to mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield (MSY) on a continuing basis, and requires that all fishery management plans:

Section 301 (a) of the Magnuson-Stevens Act establishes national standards for fishery conservation and management, and requires that all fishery management plans contain management measures consistent with those standards. National standard 1 requires that conservation and management measures shall “prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.” Pursuant to section 301(b) of the Magnuson-Stevens Act, NMFS issued national standard guidelines to provide comprehensive guidance for the development of fishery management plans and amendments that comply with the national standards (May 1, 1998, 63 FR 24212). These guidelines are codified in Title 50, Code of Federal Regulations, part 600 (50 CFR 600.305-600.355).

The salmon FMP allows a commercial troll fishery in the exclusive economic zone (EEZ) off southeast Alaska (SEAK EEZ), and closes the remaining EEZ in central and western Alaska to commercial salmon fishing. All other salmon fishing occurs either in waters of the State of Alaska (State) or in one of three historical State-managed net fishing areas that extend into the EEZ. The fisheries in these three historical fishing areas are not covered by the salmon FMP. The salmon FMP defers management of the commercial troll fishery to the State and the U.S.-Canada Pacific Salmon Commission (PSC).

Through the salmon FMP, the Council intends to conserve and manage the salmon resources in the North Pacific Ocean and to allow the fisheries in State and EEZ waters to be managed as one fishery. Regulations for the Alaska salmon fishery are made by the Alaska Board of Fisheries (Board) consistent with State and Federal laws and with negotiated agreements of the PSC. The State manages the fishery inseason and issues emergency regulations to achieve conservation objectives and to implement allocation policies established by the Board.

The SEAK troll fishery is a mixed-stock, mixed-species fishery that primarily targets chinook salmon ( Oncorhynchus tshawytscha ) and coho salmon ( O. kisutch ), with pink salmon ( O. gorbuscha ), chum salmon ( O. keta ), and sockeye salmon ( O. nerka ) taken incidentally. The catch in this fishery represents approximately 6 percent of the total chinook and coho salmon landed by all salmon fisheries in Southeast Alaska (1991-1996 average). This fishery harvests less than 1 percent of the total harvest of pink, chum, and sockeye salmon occurring in Southeast waters. The chinook salmon originate in the waters of British Columbia and the coho salmon originate mainly in Alaska waters. The chinook salmon stocks that originate in Canada or pass through U.S- Canada boundaries are managed by the PSC under the Pacific Salmon Treaty.

In June 1998, the Council adopted Amendment 6 to the salmon FMP. In October 1998, the NMFS Alaska Fisheries Science Center (AFSC) stated it could not certify that the overfishing definitions comply with the national standard guidelines (50 CFR 600.310) without a considerably more explicit analysis. NMFS worked with scientists from the State to analyze how the State’s policies comport with the national standard guidelines.

In consultation with the Council and the State, NMFS revised the preferred alternative to include the status determination criteria recommended by the national standard guidelines. Using the State’s sustainable salmon fisheries policy and salmon escapement goal policy and the June 1999 Amendment to the Pacific Salmon Treaty, NMFS developed an MSY control rule, fishing mortality rate, maximum fishing mortality threshold, and minimum stock size threshold for the chinook salmon and coho salmon stocks caught in the troll fishery in the SEAK EEZ. The chinook and coho stocks serve as indicator stocks for the stock complex of salmon caught in this fishery. These status determination criteria specify objective and measurable criteria for identifying when the fishery to which the plan applies is overfished or when overfishing is occurring. This analysis is presented in the EA for Amendment 6 (see ADDRESSES ).

In June 2001, the Council and its Scientific and Statistical Committee reviewed the revised preferred alternative. The Council concurred that the revised preferred alternative is consistent with the alternative recommended by the Council in June 1998 in that it is consistent with State policies.

Amendment 6 amends the salmon FMP by providing overfishing definitions, consistent with the national standard guidelines and the salmon FMP’s policy of Federal/State coordination. The overfishing definitions are based on State salmon management and the Pacific Salmon Treaty. The State’s policy for management of mixed-stock salmon fisheries is consistent with sustained yield of wild fish stocks and is sufficiently conservative to satisfy the Magnuson-Stevens Act.

The Director of the AFSC, NMFS, has certified without reservations that the proposed definitions of overfishing: (1) have sufficient scientific merit, (2) contain the criteria for stock determination specified in 50 CFR 600.305 (d)(2), (3) provide a basis for objective measurement of the status of the stock against the criteria, and (4) are operationally feasible.

NMFS determined that Amendment 6 to the salmon FMP is consistent with the Magnuson-Stevens Act and other applicable laws and, therefore, approved Amendment 6 on January 2, 2002. Additional information is contained in the October 5, 2001, notice of availability (66 FR 51001). No regulatory changes are necessary to implement this FMP amendment.