On December 27, 2001, the FAA issued Emergency AD 2001-26-55 for ECF Model AS350B, AS350B1, AS350B2, AS350BA, AS350B3, AS350C, AS350D, AS350D1, AS355E, AS355F, AS355F1, AS355F2, and AS355N helicopters which requires, before further flight and thereafter at specified intervals, visually checking each blade skin for a crack and replacing any cracked blade before further flight. That action was prompted by the discovery of cracks in the skin of a blade. This condition, if not detected, could result in failure of a blade, severe vibration, loss of the TGB, and subsequent loss of control of the helicopter.

The FAA has reviewed Eurocopter Alert Telex No. 05.00.40 and 05.00.38, dated December 17, 2001, which describes procedures for visually checking the blade for cracks on the blade pressure face and blade suction face and requires replacing the blade before further flight if a crack is discovered.

The Direction Generale de L'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on these helicopter models. The DGAC advises of a report where separation of a blade trailing edge section occurred due to crack growth in the blade skin. The unbalance caused by the loss of the blade section can cause the TGB to be torn off the tailboom. The DGAC classified the service telex as mandatory and issued AD No. T2001-640-089(A) and T2001-641-067(A), dated December 20, 2001, to ensure the continued airworthiness of these helicopters.

These helicopter models are manufactured in France and are type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of these type designs that are certificated for operation in the United States.

This unsafe condition is likely to exist or develop on other ECF Model AS350B, AS350B1, AS350B2, AS350BA, AS350B3, AS350C, AS350D, AS350D1, AS355E, AS355F, AS355F1, AS355F2, and AS355N helicopters of the same type designs. Therefore, the FAA issued Emergency AD 2001-26-55 to prevent failure of the blade, severe vibration, loss of the TGB, and subsequent loss of control of the helicopter. The AD requires, before further flight and thereafter before the first flight of each day or at intervals not to exceed 10 hours TIS, whichever occurs first, visually checking both sides (front and back) of each blade skin in the area of the trailing edge tab for a crack (see Area A of Figure 1 of this AD). Replacing any cracked blade is also required before further flight.

The visual check required by this AD may be performed by an owner/operator (pilot) holding at least a private pilot certificate and must be entered into the aircraft records showing compliance with the visual check requirements of paragraph (a) of this AD. However, if the owner/operator (pilot) is in doubt about the existence of a crack, an inspection with a magnifying glass must be accomplished by a mechanic. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the structural integrity and controllability of the helicopter. Therefore, the actions described previously are required before further flight and at the specified time intervals, and this AD must be issued immediately.

Since it was found that immediate corrective action was required, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual letters issued on December 27, 2001, to all known U.S. owners and operators of ECF Model AS350B, AS350B1, AS350B2, AS350BA, AS350B3, AS350C, AS350D, AS350D1, AS355E, AS355F, AS355F1, AS355F2, and AS355N helicopters. These conditions still exist, and the AD is hereby published in the Federal Register as an amendment to 14 CFR 39.13 to make it effective to all persons.

The FAA estimates that 653 helicopters of U.S. registry will be affected by this AD, that it will take approximately 1/4 work hour per helicopter for each visual check, and that the average labor rate is $60 per work hour. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $9795 to inspect the helicopter blade on each helicopter once.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2001-SW-74-AD.” The postcard will be date stamped and returned to the commenter.

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

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

On February 6, 1998, President William Jefferson Clinton signed into law the bill, introduced and passed by Congress (Public Law 105-154), that changed the name of Washington National Airport to Ronald Reagan Washington National Airport.

This action amends 14 CFR part 71 by changing the name of the Washington National Airport to the Ronald Reagan Washington National Airport. This action is being taken, as mandated by Public Law 105-154, dated February 6, 1998, to accurately reflect the new name of the airport, within the Washington, DC, Tri-Area Class B airspace area, located in the District of Columbia and Virginia.

Since this action merely involves an editorial change to the name of the airport, and does not involve a change in the dimensions or operating requirements of the Class B airspace area, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The coordinates for this airspace docket are based on North American Datum 83. Class B airspace areas are published in paragraph 3000 of FAA Order 7400.9J, dated August 31, 2001, and effective September 16, 2001, which is incorporated by reference in 14 CFR section 71.1. The Class B airspace area listed in this document will be published subsequently in the Order.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1D, Policies and Procedures for Considering Environmental Impacts. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

This Amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description on each SIAP is contained in the appropriate FAA Form 8260 and the National Flight Data Center (FDC)/Permanent (P) Notices to Airmen (NOTAM) which are incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation's Regulations (FAR). Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction of charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes SIAPs. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained in the content of the following FDC/P NOTAMs for each SIAP. The SIAP information in some previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration as to be permanent. With conversion to FDC/P NOTAMs, the respective FDC/T NOTAMs have been canceled.

The FDC/P NOTAMs for the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Further, the SIAPs contained in this amendment are based on the criteria contained in the TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and procedures (44 FR 11034; February 26, 1976); and (3) does not warrant preparation of regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 is effective upon publication of each separate SIAP as contained in the transmittal. Some SIAP amendments may have been previously issued by the FAA in a National Flight Data Center (NFDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP amendments may require making them effective in less than 30 days. For the remaining SIAPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPS and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On October 10, 2001, we published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulations; Darby Creek, Pennsylvania” in the Federal Register (66 FR 51614). We received two letters commenting on the proposed rule. No public hearing was requested, and none was held.

CONRAIL, who owns and operates both drawbridges, requested changes to the operating procedures for both their drawbridges across Darby Creek, mile 0.3, located in Essington, Pennsylvania. These changes allow the operation of the CONRAIL Railroad Bridge from a remote location for train crossings or maintenance. Under this rule, the bridge/train controller at the Delair Railroad Bridge, in Delair, New Jersey, will operate the CONRAIL Railroad Bridge across Darby Creek. The Reading Railroad Bridge will be maintained in the open position for vessels at all times. The current operating schedule for the both drawbridges is set out in 33 CFR 117.903. The regulation states that from May 15 through October 15, from 11 p.m. to 7 a.m., the draws need not be opened for the passage of vessels. Between 7 a.m. and 11 p.m., the draws shall open on signal at 7:15 a.m., 10:30 a.m., 1 p.m., 3 p.m., 7:30 p.m. and 10:30 p.m. and at all other times during these hours, if an opening will not unduly delay railroad operations; and from October 16 through May 14, the draws shall open on signal if at least 24 hours notice is given. However, the CONRAIL Railroad Bridge currently is left in the open position and only closed by a bridge tender on site for passage of an approaching train.

Under this rule, when a train approaches the CONRAIL Railroad Bridge, it will stop and a crewmember will be on-site to assist in observing the waterway for approaching craft, which will be allowed to pass. The crewmember will then communicate with the off-site bridge/train controller at the Delair Railroad Bridge either by radio or telephone, requesting the off-site bridge/train controller to lower the bridge. Before closing the CONRAIL Railroad Bridge, the off-site bridge/controller will monitor waterway traffic on Darby Creek in the area of the drawbridge by maintaining constant surveillance of the navigation channel using infrared channel sensors to ensure no conflict with maritime traffic exists. Channel traffic lights located on top of the bridge will change from flashing green to flashing red any time the bridge is not in the full open position.

This rule will make the closure process of the CONRAIL Railroad Bridge more efficient during train crossings and periodic maintenance, and will save operational costs by eliminating bridge tenders while still providing the same bridge capabilities.

Since 1980, the Reading Railroad Bridge has had the tracks removed on the north and south sides of the bridge and is secured in the full open position to allow marine traffic to pass. In accordance with 33 CFR 117.41, the lift-span had been placed in the full open position for vessels. This final rule formalizes the current operation of the Reading Railroad Bridge.

The Coast Guard received two comments on the NPRM. The first comment favored the proposed changes in the operation of the CONRAIL Railroad Bridge.

The second comment, from CONRAIL, noted that the off-site bridge/train controller would stop the CONRAIL Railroad Bridge and return it to the open position in the event of lost communications or failure of the infrared sensors. The proposed rule, in paragraph (a)(7), stated that the bridge would “automatically” stop and return to the open position in each occurrence.

The Coast Guard considers this change proposed by CONRAIL to be more reliable and efficient in the event of an emergency and the final rule was change to reflect this procedure.

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). We expect the economic impact of the final rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. We reached this conclusion based on the fact that this final rule for the Conrail Railroad Bridge will provide for greater flow of vessel traffic than the current regulations for the drawbridge.

Under the current regulations, the Conrail Railroad Bridge remains closed and opens after proper signal from May 15 through October 15. The final rule will require the bridge to remain in the open position during this period, permitting vessels to pass freely. The bridge will close only for train crossings and bridge maintenance. This final rule will provide for the reasonable needs of navigation.

For the Reading Railroad Bridge, the final rule will provide for the reasonable needs of navigation since the bridge is maintained in the open position for vessel passage at all times.

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.

This final rule will not have a significant economic impact on a substantial number of small entities because it will provide for the CONRAIL Railroad Bridge to operate remotely and remain in the open position, allowing the free flow of vessel traffic from May 15 through October 15. The bridge will only close for the passage of trains and maintenance. From October 16 through May 14, the drawbridge shall open on signal if at least 24 hours notice is given.

The Reading Railroad Bridge will have no impact since the bridge is maintained in the open position at all times for vessel passage.

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. In our notice of proposed rulemaking, we provided a point of contact to small businesses who would answer questions concerning proposed provisions or options for compliance.

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 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 M16475.1D, this rule is categorically excluded from further environmental documentation. The final rule only involves the operation of existing drawbridges and will not have any impact on the environment. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

On May 24, 1989, the Coast Guard published in the Federal Register (54 FR 22546) an interim rule (IR) with request for comments (docket number CGD 89-014) implementing the permitting and numbering requirements of the Shore Protection Act (33 U.S.C. 2601 et seq. ). In response, the Coast Guard received six comments. After it was determined that the procedures outlined in the IR were operating successfully, the Coast Guard published a Notice of Withdrawal in the Federal Register (60 FR 64001) on December 13, 1995, to discontinue the rulemaking. The intent was to close the rulemaking project. However, due to an oversight, the IR was never finalized.

The IR has been in place for the past 11 years, and the Coast Guard believes these procedures have been operating in a satisfactory manner. Therefore, the Coast Guard is now finalizing the IR. As the first step in this process, we reopened the comment period for the IR by publishing a notice of intent with request for comments in the Federal Register (66 FR 22137) on May 3, 2001. We received three comments regarding our intent to finalize this rulemaking.

We received one comment that suggested using an Automatic Identification System (AIS) on vessels permitted to carry municipal waste. We are unable to respond to this comment as it is outside the scope of this rulemaking. However, the Coast Guard will be considering AIS use generally in a future rulemaking.

The second comment was from the Commonwealth of Virginia. The comment suggest the Coast Guard take further steps to ensure the protection of human health and the environment. They suggest requiring information from the applicant on financial capability for clean-up and natural resource damage, information on past environmental violations or criminal convictions and a waste load tracking system. The Commonwealth also urges the Coast Guard to recognize legitimate interests of state regulation.

This rulemaking is still a two-part regulation, and this final rule only concerns the first portion. This rule has been interim for over ten years and should be finalized before we progress with the second portion of this rulemaking. The second part will address such issues as permanent permits versus conditional permits, as well as suspension and revocation provisions. We will provide the public with additional opportunities to comment on the second portion of the rulemaking, and we will keep the comments listed above in mind as we prepare that second portion. That drafting process will include consultation with States, if necessary.

The third comment was from the Environmental Protection Agency (EPA) requesting that the Coast Guard delay finalizing this rule. As we have already stated, this is merely an administrative finalization of the interim rule that has been operating for over ten years. The Coast Guard is committed to working with EPA as they finalize their regulations under the Shore Protection Act. We are also committed to working with EPA to establish a formal, non-conditional permitting process, as well as suspension and revocation procedures for the permanent permits. In the spirit of that cooperation, we shared a draft of this final rule with EPA.

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 (OMB) 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), 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.

These regulations contain only minimal reporting requirements. Respondents are required to complete an application containing only the minimum information necessary for the Coast Guard to fulfill its obligations under the SPA. They are also required to display a number on the vessel. The cost of complying with these requirements will be minimal. These costs are proportionally lower for small entities than for larger ones because a small entity will have fewer vessels and therefore will have fewer applications to complete and numbers to display. Since these costs are so low, the cost to any individual small entity will be negligible. During the two comment periods for this rulemaking, the Coast Guard received no comments regarding adverse impacts economic or otherwise on small entities. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

Under 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.

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). The collection of information requirements in the IR were previously approved by OMB. OMB Control Number 2115-0579 is assigned the collection.

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 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.

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 (34)(a), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. The permit and numbering system, required in the rule, are parts of a regulatory program to minimize the amount of municipal or commercial waste entering the coastal waters of the United States. The regulations are administrative in nature and do not prescribe any operational requirements that will have an impact on the environment. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

This is a summary of the Commission's Report and Order, ET Docket No. 00-221; ET Docket No. 99-255; PR Docket No. 92-235; WT Docket No. 97-153; FCC 01-382, adopted December 21, 2001 and released January 2, 2002. The full text of this document is available on the Commission's internet site at www.fcc.gov. It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 Twelfth Street, SW, Washington, DC 20554. The complete text of this document may be purchased from the Commission's duplication contractor Qualex International, (202) 863-2893 voice, (202) 863-2898 Fax, qualexint@aol.com e-mail, Portals II, 445 12th St., SW, Room CY-B402, Washington, DC 20554.

1. The Notice of Proposed Rule Making (“NPRM”), 66 FR 7443, January 23, 2001, proposed to allocate a total of 27 megahertz of spectrum from the 216-220 MHz, 1390-1395 MHz, 1427-1429 MHz, 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390 MHz bands transferred from Government to non-Government use pursuant to the provisions of the Omnibus Budget Reconciliation Act of 1993 (OBRA-93) and the Balanced Budget Act of 1997 (BBA-97). These seven bands have a variety of continuing Government protection requirements and incumbent Government and non-Government uses. Despite these constraints and the relatively narrow bandwidth contained in each of the bands, we believe that our actions will foster a variety of potential applications in both new and existing services. The transfer of these bands to non-Government use should enable the development of new technologies and services, provide additional spectrum relief for congested private land mobile frequencies, and fulfill our obligation as mandated by Congress to assign this spectrum for non-Government use. The NPRM also requested comment on procedures for the reimbursement of relocation costs incurred by incumbent Federal Government users as mandated by the National Defense Authorization Act of 1999. Of the bands considered in this proceeding, the 216-220 MHz, 1432-1435 MHz, and 2385-2390 MHz bands are subject to competitive bidding and reimbursement of Federal incumbents.

2. 216-220 MHz Band —we are adopting our proposal to allocate the 216-220 MHz band to the fixed and mobile (except aeronautical mobile) services on a co-primary basis. In addition, we are adopting rules to upgrade the status of the Low Power Radio Service (LPRS) from secondary to primary on 216-217 MHz band. In making this allocation, we are retaining the secondary amateur service allocation at 219-220 MHz, the wildlife and ocean tracking allocation, as well as the secondary Government allocation. The rules adopted will continue to require licensees in this band to protect the Navy's SPASUR system.

3. We observe that maintaining the secondary allocation in the 216-220 MHz band for wildlife and ocean tracking and for Government operations is a departure from our proposal. However, we believe it is in the public interest to provide for the continuation of these services in this band. These services support scientific research as well as monitoring of critical infrastructure. In making this decision it is important to note that the majority of these operations tend to be in rural and unpopulated areas, far from where most licensees operate. Because it is unlikely for these existing secondary services to operate in proximity to new services, this action will allow the continuation of important operations with no impact on the ability of new licensees to use this band.

4. With respect to the 217-220 MHz band, we observe that the allocation changes we are adopting will not provide any significant change to current use of the spectrum. We are eliminating the Federal Government's unused primary maritime mobile allocation and are proceeding with the service plans currently underway. The 217-218 MHz and 219-220 MHz segments are currently used by AMTS stations and the Commission has proposed rules to assign the remaining AMTS licenses by competitive bidding. The 218-219 MHz band is currently allocated to the 218-219 MHz Service, formerly known as IVDS. The Commission established that service in 1992, and by 1995 had issued 612 licenses in 306 Metropolitan Statistical Areas (MSAs). We plan to award licenses for the remaining service areas in the 218-219 MHz Service in an upcoming auction.

5. With regard to the 216-217 MHz band, the LPRS auditory assistance and law enforcement applications are currently operating without encumbrance from a primary service due to technical limitations from adjacent band restrictions. The LPRS is ideally suited for this band given the technical limitations and propagation characteristics of the spectrum. Because LPRS devices operate with low power, they are susceptible to harmful interference from high-powered systems and thus not able to share well with many types of radios. If forced to relocate, it is highly unlikely that these consumer devices could be cost effectively retuned and instead would have to be replaced. Because the LPRS is licensed by rule, all spectrum in the 216-217 MHz band is shared among all users. Thus, it is not possible to have mutually exclusive applications under the current service rules. Under the provisions of Section 309(j), only mutually exclusive applications are eligible to be granted through competitive bidding.

6. Providing a primary allocation for the LPRS in the 216-217 MHz band is also consistent with statutory requirements for providing access to facilities and services by persons with disabilities. Most notably, the Americans with Disabilities Act (ADA) requires businesses to make their public facilities and services accessible to persons with disabilities. In fact, many businesses, such as theaters, stadiums, and other public gathering places, have complied with the ADA by installing auditory assistance devices in their facilities. In addition, many states have used assistive listening devices to comply with the Individuals with Disabilities Education Act, which requires that State Government agencies provide children with disabilities with a free and appropriate public education. Further, the Technology-Related Assistance for Individuals with Disabilities Act Amendments of 1994 promote the development and use of affordable telecommunications devices by persons with disabilities in places such as educational settings, public gathering places, and health care facilities.

7. LPRS is also used extensively by law enforcement agencies for law enforcement tracking systems (LETS). These systems, which operate on two channels in the 216-217 MHz band, protect high-risk businesses, such as banks and jewelers, by assisting in the recovery of stolen money and property. Currently, such systems are used by local police departments and the Federal Bureau of Investigation in 135 cities in the United States and have been instrumental in reducing crime rates. Allowing this service to continue to operate and providing protection by raising its status to primary along with the other LPRS Services will ensure that the valuable services provided by these systems remain accessible to the public. We are amending the Table of Frequency Allocations in Section 2.106 and the LPRS rules in Part 95 to provide LPRS stations with primary status. In doing so, we are not making any other amendments to the LPRS service rules already in place. LPRS stations must continue to operate within the parameters of the current rules and protect the reception of television channel 13 and the Navy's SPASUR system.

8. We believe that it will likely be difficult for secondary telemetry licenses to coordinate with LPRS, which is licensed by rule, and authorized to operate ubiquitously without prior notice. LPRS operations are primarily in and near urban areas. We are sympathetic with the Hearing Industry Association comments that LPRS devices could be protected from interference by prohibiting non-LPRS operations in major cities. While it would not be equitable to force incumbent operations to relocate, we believe that we should no longer accept new applications in order to protect LPRS devices. Accordingly, new assignments will no longer be permitted for Government and non-Government operations in the 216-217 MHz band after January 1, 2002.

9. We are proceeding with our current plans to license the remainder of the 217-220 MHz band by competitive bidding. Thus, we affirm our tentative conclusion in the NPRM that it would be inappropriate to allow new co-primary services in this band. In doing so, we note that because this band is already licensed in many areas, the transfer of the Federal Government spectrum will not free up significant additional capacity. By this action, we are rejecting the requests of numerous parties to this proceeding that asked for various rule amendments to the 216-220 MHz band. We observe that many of the specific requests for this band can be accommodated under the fixed and mobile (except aeronautical mobile) allocations we are adopting and the rules currently in place in the 217-220 MHz portion of the band or other spectrum regulated by the Commission.

10. The Amateur Radio Relay League (ARRL) requests that we expand the current secondary Amateur Service allocation at 219-220 MHz to include the entire 216-220 MHz band. ARRL submits that currently amateurs must coordinate their operations in the 219-220 MHz band with nearby AMTS stations before operating. Because it is necessary to protect these critical operations, ARRL concedes that amateurs have only been able to make limited use of this band. Notwithstanding ARRL's statements that the amateur service should remain secondary under any expansion of the 216-220 MHz band to which amateurs have access, we do not believe such expansion would be appropriate. We have adopted a geographic area licensing scheme in the 217-220 MHz band segments, which should result in increased and more efficient use of these bands. Any increase in use of this spectrum by the Amateur Service within a licensee's service area could be detrimental to successful operations by the geographic area license. Additionally, because the existing complex coordination rules would have to be applied to the entire band, and such rules have foreclosed much use of the 219-220 MHz band by amateurs, we do not foresee much, if any, use of an expanded band by the amateur service. We also note, that amateur service licensees can operate message forwarding systems similar to those allowed in the 219-220 MHz band in any band in which they have privileges. Accordingly, we are denying ARRL's request to extend the amateur service use of the band to the entire 216-220 MHz band. We will continue to make the 219-220 MHz band available to amateurs on a secondary basis. If amateur use of this band significantly increases in the future, we may revisit and reevaluate this decision.

11. Manufacturers and users of 216-220 MHz band telemetry equipment request that we elevate their operations from secondary to primary status. They state that such action is needed to ensure that these operations continue to be viable for the transmission of “accurate, uncontaminated data.” We continue to believe that secondary status is adequate. We have no indication that their existing secondary status has substantially constrained or impeded operations in this band. We note that many of these types of telemetry operations are temporary in nature and occur in areas with low population densities. If primary status is necessary, operators can obtain primary status, under the fixed and mobile (except aeronautical mobile) allocations we adopt herein, either by acquiring a license at the auction for the 217-218 Service or AMTS, or by negotiating with a licensee in the desired area.

12. With respect to the 216-217 MHz band, we note that the Commission asked for comment in WT Docket No. 97-153 on the need to protect LPRS operations from telemetry operations in that band. Based on the action taken here to elevate the LPRS allocation in the band to primary, no additional action is necessary to protect that service. Because LPRS is primary and telemetry remains secondary, telemetry operators must not cause interference to LPRS and telemetry is not entitled to any protection from LPRS. This regulatory structure should not be problematic for many of the telemetry systems in this band because, as stated above, many of these operations take place in rural areas, while the majority of LPRS operations occur in populated areas. With respect to the 216-217 MHz band, we decline to make changes as requested by Warren Havens and Securicor, except for the portion of these requests that encompasses the 216-217 MHz band, these requests are beyond the scope of this Report and Order and will be addressed in the Companion Service Rule Notice.

13. The 1.4 GHz spectrum encompasses 13 megahertz of spectrum in four segments at 1390-1395 MHz, 1427-1429 MHz, 1429-1432 MHz, and 1432-1435 MHz. In the NPRM, we did not make specific allocation proposals for these bands, but instead presented several options for consideration.

14. 1390-1395 MHz Band: The 1390-1395 MHz band is allocated internationally in ITU Region 2 on a primary basis to the radiolocation service, and on a secondary basis to the space research (passive) and Earth exploration-satellite (passive) services. Domestically, the 1390-1395 MHz band is a Federal Government exclusive band that is allocated to the radiolocation service on a primary basis and to the fixed and mobile services on a secondary basis. Federal agencies use this band for long-range air defense radars, military test range telemetry links, tactical radio relays, and radio astronomy. In designating this band for transfer to non-Federal Government use, NTIA noted that high powered Federal Aviation Administration (FAA) and Department of Defense (DoD) radars would continue to operate in the lower adjacent band which could affect the performance of non-Federal Government receivers in the 1390-1395 MHz band. In addition, NTIA stated that radio astronomy operations would continue within this band. Footnote US311 to the Table of Frequency allocations requires that every practicable effort be made to avoid the assignment of frequencies in the band in the geographic areas where radio astronomy is conducted. As a condition of the reallocation, NTIA states that airborne and satellite downlink operations need to be prohibited to avoid interference to radio astronomy. NTIA also stated that 17 military radar sites in the band will require protection until the year 2009. These protection areas, circles with radii of 80 kilometers, are scattered around the continental United States and Alaska, and range from sparsely populated desert areas to major metropolitan areas such as the Washington, D.C.-Baltimore, MD area. Finally, we note that the 1390-1395 MHz band was transferred pursuant to OBRA-93 and is not subject to mandatory reimbursement of Federal Government incumbent relocation expenses.

15. 1427-1429 MHz Band: The 1427-1429 MHz band is allocated to the fixed, mobile (except aeronautical mobile), and space operation (Earth-to-space) services on a co-primary basis throughout the world. Also, in some countries this band is used to search for intentional emissions of extraterrestrial origin. Domestically, the 1427-1429 MHz band is allocated on a co-primary basis to Federal Government fixed and mobile (except aeronautical mobile) services and to the Federal and non-Federal Government space operation service. The 1427-1429 MHz band is also allocated on a secondary basis to non-Federal Government fixed and mobile services, limited to telemetering and telecommand applications. The Federal Government uses this band for military tactical radio relay communications and military test range aeronautical telemetry and telecommand. NTIA stated that airborne operations or space-to-Earth communications should be avoided in this band to protect sensitive radio astronomy observations in the adjacent 1400-1427 MHz band. In addition, NTIA stated that military airborne operations at 14 sites will require protection until the year 2004. These sites, which must be protected within circles with radii ranging from 70-160 kilometers, are scattered around the continental United States and Alaska, and range from sparsely populated desert areas to major metropolitan areas such as the Washington, D.C.-Baltimore, MD area. The non-Federal Government use of this spectrum is for telemetry. This band was transferred pursuant to OBRA-93 and is not subject to mandatory reimbursement of Federal Government incumbent relocation expenses.

16. 1429-1432 MHz Band: In ITU Region 2, the 1429-1432 MHz band is allocated to the fixed and mobile services on a co-primary basis. Also, in some countries this band is used to search for intentional emissions of extraterrestrial origin. Domestically, the 1429-1432 MHz band is allocated to the Federal and non-Federal Government land mobile service on a primary basis for WMTS use. The 1429-1432 MHz band is allocated to the fixed and land mobile services on a secondary basis for non-Federal Government use, limited to telemetering and telecommand applications. Federal Government uses of this band are identical to those described above for the 1427-1429 MHz band. Thus, operations in this band must also protect military airborne operations at the same 14 sites as for the 1427-1429 MHz band. This band was transferred pursuant to OBRA-93 and is not subject to mandatory reimbursement of Federal Government incumbent relocation expenses.

17. 1432-1435 MHz Band: In ITU Region 2, the 1432-1435 MHz band is allocated to the fixed and mobile services on a co-primary basis. Also, in some countries this band is used to search for intentional emissions of extraterrestrial origin. Domestically, the 1432-1435 MHz band is allocated to the fixed and mobile services on a primary basis for Federal Government use. The 1432-1435 MHz band is allocated to the fixed and land mobile services on a secondary basis for non-Federal Government use, limited to telemetering and telecommand applications. This band is also used for the passive search for signals of extraterrestrial origin. This band is used by the military for tactical radio relay communications, military test range aeronautical telemetry and telecommand, and various types of guided weapon systems. NTIA stated that military airborne operations and their associated airspace will need to be protected at 23 sites indefinitely. These protection areas, circles with radii ranging from 3 kilometers to 160 kilometers, are scattered around the continental United States and Alaska, and range from sparsely populated desert areas to major metropolitan areas such as the Washington, D.C.-Baltimore, MD area. This band was transferred to non-Federal Government use pursuant to BBA-97, and therefore licenses must be assigned in accordance with Section 309(j) of the Communications Act. In addition, new licensees must compensate Federal Government entities in advance for marginal costs incurred in relocating their facilities from the band.

The band plan options that we proposed in the Notice are summarized in Table 1, below.

18. Upon consideration of the various options and the comments, we believe that it is possible to craft a spectrum allocation plan that satisfies the needs of each of the user groups interested in the 1.4 GHz spectrum. While our spectrum plan does not meet the full request of any one user, it does provide some spectrum for all parties in a way that we believe allows each party to mutually coexist and provide services with minimal potential for harmful interference. We also note that new licensees in these bands must protect incumbent Federal Government licensees as specified above. The allocation plan being adopted for the 1.4 GHz spectrum is shown in the table below:

19. As shown in Table 2, we are providing six megahertz of spectrum for fixed and mobile (except aeronautical mobile) uses by pairing the 1392-1395 MHz band with the 1432-1435 MHz band. This spectrum pairing was consistent throughout each of our options and was not disputed by any party. As noted above, aeronautical mobile use will be prohibited in the 1392-1395 MHz band to protect radio astronomy operations in the 1390-1400 MHz band. Thus, we will also prohibit aeronautical mobile use in the paired 1432-1435 MHz band. Further, because the 1432-1435 MHz band was transferred to non-Federal Government use pursuant to BBA-97, licenses must be assigned in accordance with Section 309(j) of the Communications Act. In addition, new licensees must compensate Federal Government entities for marginal costs incurred in relocating their facilities from the band. While the specific service and licensing rules for these bands will be the subject of the companion Service Rule NPRM, we observe that this spectrum may be well suited for licensing to band managers. Band managers could make spectrum available to PLMRS entities that are experiencing congestion in other bands. We are limiting this allocation to land mobile use rather than a general mobile allocation to protect sensitive adjacent channel operations such as radio astronomy.

20. We are making an additional two megahertz of unpaired spectrum available for a flexible fixed, mobile (except aeronautical mobile), and MSS (uplink) allocation in the 1390-1392 MHz band. Because airborne operations would be incompatible with co-channel satellite uplinks and sensitive radio astronomy operations that occur in-band and in the adjacent bands, we are prohibiting aeronautical mobile use.

21. This allocation makes a total of eight megahertz of spectrum potentially available to the mobile (except aeronautical mobile) service. Although this is less than the ten megahertz LMCC sought in its petition for rule making and its comments, we believe that this provides sufficient spectrum to relieve much of the crowding in existing land mobile bands. Further, by making some unpaired spectrum available, we hope to encourage innovative technologies, such as time division duplex (TDD), to locate in this band. Also, this unpaired spectrum is well suited to services that traditionally operate one-way communications services, such as paging and telemetry systems.

22. The flexible allocation in the 1390-1392 MHz band also allows this spectrum to be used for satellite feeder uplinks by Little LEOs. This allocation is consistent with the views expressed by (CORF) proposing to limit uplink transmissions to spectrum below 1392 MHz. However, the allocation will be contingent on completion of ongoing studies and an international allocation for such feeder links through the international process. To codify this allocation, we will add a new footnote, US368, to the Table of Frequency Allocations in Section 2.106 of the Commission's rules.

23. An issue of concern from the land mobile industry has been the ability of satellite systems to successfully share spectrum with land mobile stations. Because spectrum in the 1390-1392 MHz band would be used for feeder uplinks, we believe that such sharing can be accomplished while still minimizing the potential for harmful interference between satellite earth stations and land mobile stations. As pointed out by the Joint Satellite Commenters, licensees using this band for feeder uplinks only need a few earth stations that can be located in areas where land mobile use is least likely to occur. Thus, through geographic separation, land mobile and satellite earth stations will be able to co-exist in this band. Satellite and land mobile licensees will have to coordinate their operations to ensure sufficient separation distance and/or shielding between stations.

24. In the remaining five megahertz (1427-1432 MHz), we are allocating the 1427-1429 MHz band to the land mobile service on primary basis and maintaining the current land mobile primary allocation in the 1429-1432 MHz band. Under this allocation, the 1427-1429.5 MHz segment will be limited to WMTS and the 1429.5-1432 MHz segment will be limited to telemetry. In addition, the 1429.5-1432 MHz segment is being allocated for fixed service on a co-primary basis also limited to telemetry operations. Further, we are conditionally permitting Little LEO feeder downlinks to share the 1430-1432 MHz band with telemetry on a co-primary basis. This allocation decision shifts WMTS down in frequency from its current allocation at 1429-1432 MHz and elevates telemetry operations to primary status in the 1429.5-1432 MHz segment. Non-medical telemetry will continue to operate with secondary status in the 1427-1429.5 MHz segment. Finally, we are removing the space operation (Earth-to-space) allocation from the 1427-1429 MHz band, as that allocation is incompatible with the allocation decisions we have made in the R&O. WMTS will continue to be licensed by rule in the modified allocation. Under this licensing scheme, WMTS licensees share spectrum with each other and applications are not mutually exclusive. Thus assignments are not subject to competitive bidding pursuant to Section 309(j) of the Communications Act.

25. Our allocation of the 1430-1432 MHz segment for Little LEO feeder downlinks, similar to the allocation for uplinks in the 1390-1392 MHz band, is contingent on completion of ongoing studies and adoption of an international allocation for this spectrum. All sharing studies must be completed and show that satellite downlink sharing is feasible with operations in the 1400-1427 MHz band before such an international allocation is adopted and our domestic allocation is finalized. We note that the sharing studies currently underway contemplate a satellite allocation in the 1429-1432 MHz band, but we have limited this allocation to the 1430-1432 MHz band which will provide an additional megahertz of guard band between the downlinks and the Earth Exploration Satellite Service (EESS) and Radio Astronomy Service (RAS). Once such an allocation is finalized, Little LEO operators may seek adoption of service rules, and issuance of necessary authorizations under Part 25 of our rules for feeder links subject to coordination with telemetry operations in the same spectrum.

26. We do not believe that the addition of Little LEO feeder downlinks in this band will preclude the use of the band by telemetry systems due to the low PFD levels of the satellite signals relative to the power levels of telemetry systems. We are confident that such limits will not preclude satellite earth stations in this band. However, these earth stations may have to locate in rural areas and use large, high gain antennas to ensure reception of the satellite signals. Because we anticipate that telemetry operations will be concentrated largely in urban areas, sharing can be readily accomplished.

27. Our decision to shift the WMTS allocation down to 1427-1429.5 MHz is consistent with the position of AHA. AHA indicates that at 1427-1429.5 MHz, WMTS would be adjacent to radio astronomy instead of potentially high powered land mobile operators and thus would not require a guard band making spectrum use more efficient. AHA also requests that adjacent band telemetry services operating in 1429.5-1432 MHz be limited to fixed utility telemetry operations in order to minimize the impact on WMTS operations. We note that there are currently telemetry operations that are not fixed or limited to utility telemetry, which would have to be relocated to implement AHA's request. We did not seek comment on relocating incumbents in this band and such action would need to be addressed in the companion service rule proceeding. We do, however, note that medical telemetry system operators can also use the 608-614 MHz and 1395-1400 MHz bands to obtain additional capacity for their systems.

28. We are deferring consideration of the proposed AHA/Itron band swap. AHA and Itron's proposal contemplated carving out 7 geographic areas in the Medical Telemetry band for utility telemetry and then compensating Medical telemetry with corresponding spectrum in the telemetry band to our companion service rule proceeding. These 7 sites represent areas where Itron has built out existing facilities under the current secondary telemetry allocation. We believe that spectrum allocations in general should be kept as flexible as possible and that issues such as eligibility or unique requirements/restrictions should be addressed in service rules.

29. In making these allocation decisions in the 1.4 GHz spectrum, we deny the Petitions for Reconsideration filed by Little LEO entities in ET Docket No. 99-255. However, we note that substantively, this proceeding is providing a substantial portion of what the petitioners have indicated they needed to operate. The Petitions asked that we allocate the 1429-1432 MHz band for Little LEO feeder links and eliminate the WMTS allocation in this band. We believe that there is substantial public interest in maintaining an allocation for WMTS and are shifting the allocation to 1427-1429.5 MHz. We are elevating telemetry to primary in the 1429.5-1432 MHz portion of the band and believe that such systems can share this spectrum with Little LEO systems. Accordingly, we have provided a mechanism by which Little LEOs can obtain an allocation in the 1430-1432 MHz band. While the Petitions for Reconsideration seeking an exclusive allocation of three megahertz of spectrum at 1427-1432 MHz for Little LEOs are denied, we are providing 2 MHz of spectrum in the requested frequency range for Little LEOs conditioned on adoption of an international allocation for this spectrum.

30. We believe that the allocation plan for use of the 1.4 GHz spectrum provides a reasonable compromise solution that will best accommodate the needs of all parties interested in this band. Through careful planning and coordination, these parties will be able to share spectrum and satisfy their communications needs, while maximizing the efficient use of scare spectrum resources.

31. In the NPRM , we proposed to allocate the 1670-1675 MHz band to the fixed and mobile (except aeronautical mobile) services and to adopt rules that would make the band usable for a number of potential services. We specifically noted that five megahertz of unpaired spectrum could be useful for service providers interested in deploying TDD equipment.

32. We believe that a number of technologies, are well suited to this band. Therefore, in keeping with our policy of providing flexibility where possible and appropriate so that potential licensees can determine and offer the services that are valued most highly, we are adopting our proposal to provide a flexible allocation in this band for fixed and mobile (except aeronautical mobile) services. Aeronautical mobile use will be prohibited in order that operations in the 1670-1675 MHz band protect the sensitive radio astronomy receivers in the lower adjacent band. Further, the GOES receive earth stations located at Wallop's Island, Fairbanks and Greenbelt will have co-primary status with non-Federal Government operations in the band. In the NPRM , we asked for comment regarding appropriate technical rules for this band, especially as it relates to power limits and out-of-band emissions necessary to protect radio astronomy operations in the lower adjacent band. Specific service and licensing rules will be discussed in the companion Service Rule NPRM.

33. To protect the Federal Government earth stations located at Wallops Island and Fairbanks that will be co-primary in the band, we will require that licensees planning to operate within 100 kilometers (62.1 miles) of the earth stations at these facilities coordinate such use with the affected earth station prior to construction. This requirement will be added to footnote US362. In addition, we will require licensees planning to operate in the vicinity of the earth station located at Greenbelt to coordinate such use prior to construction. This requirement is consistent with the First Spectrum Reallocation Report in which NTIA recommended that, in the absence of coordination guidelines for METSATs, coordination of all ground stations is necessary. Because the Greenbelt facility is used as a back-up for Wallops Island it operates only during tests (about once per month) and in any instance where Wallops Island goes out of service. Due to this sporadic use, different coordination procedures may be needed for this site than for the other two sites. Therefore, we are not adopting specific coordination requirements for the Greenbelt facility.

34. We are mindful of the need to protect radio astronomy and radiosonde operations in the 1660-1670 MHz band. We note, however, that because radio astronomy receivers are much more sensitive than those of radiosondes, any protection schemes designed for radio astronomy receivers should also protect radiosondes. Typically, to accomplish such protection, the Commission has set out-of-band emission limits to restrict the amount of power present in a frequency band due to a transmitter in an adjacent band. We believe that such a requirement is necessary here. However, we are not adopting specific limits in the Report and Order. Instead, issues of maximum power levels and emission masks will be explored in the companion Service Rules Notice. In its comments, ArrayComm states that power spectral flux density limits (PSFD) should be established as coordination criteria for locating stations in the 1670-1675 MHz band near radio astronomy sites. We decline to adopt PSFD limits. We generally have not adopted such limits in the past and believe that they could artificially restrict commercial operations in the band. However, we will encourage future licensees in this band to coordinate mutually agreeable limits with radio astronomers. Finally, we note that the provisions of footnote US74 of the Table of Frequency Allocations will apply to this band. This footnote specifies that radio astronomy operations will be protected from extraband radiation only to the extent that such radiation exceeds the limits for a station operating in compliance with all applicable Commission rules.

35. In ITU Region 2, the 2385-2390 MHz band is allocated to the fixed, mobile, and radiolocation services on a primary basis and to the amateur service on a secondary basis. Domestically, the band is allocated to the mobile service on a primary basis for Federal and non-Federal Government use, limited to aeronautical telemetry and associated telecommand operations for flight testing of aircraft and missiles. All other mobile telemetering uses are secondary to these uses. Currently, DoD, the National Aeronautics and Space Administration (NASA), DOE, and the commercial aviation industry use the entire 2360-2390 MHz band to support aeronautical flight test operations. These operations will continue in the 2360-2385 MHz band. In addition, the 2385-2390 MHz band is allocated to the radiolocation service on a primary basis and to the fixed service on a secondary basis for Federal Government use.

36. The 2385-2390 band will become available for exclusive non-Federal Government use in January 2005. However, NTIA stated that to minimize the operational impact to flight test programs that are ongoing or planned to begin in the near future, Federal Government operations at seventeen sites will continue on a protected basis until 2007. These protection areas, circles with radii ranging from 100 kilometers to 160 kilometers, are scattered around the continental United States, Hawaii, and Puerto Rico, and range from sparsely populated desert areas to major metropolitan areas such as Seattle, Washington and St. Louis, Missouri. In addition, the National Astronomy and Ionosphere Center operates a 1-megawatt planetary research radar at Arecibo, Puerto Rico with a 20 megahertz bandwidth, centered at 2380 MHz. As indicated in the Second Spectrum Reallocation Report , airborne and space-to-Earth transmissions will be prohibited in Puerto Rico to protect this facility. Finally, we note that this band was transferred to non-Federal Government use pursuant to BBA-97, and therefore licenses will be assigned in accordance with Section 309(j) of the Communications Act. New licensees must compensate Federal Government entities in advance for marginal costs incurred in relocating their facilities from the band. In a recent Report to Congress, NTIA estimated the reimbursement costs for this band as $124-$219 million dollars with the majority of these costs going towards retuning existing equipment to a band of replacement spectrum.

37. In the NPRM , we proposed to allocate the 2385-2390 MHz band to the fixed and mobile services on a co-primary basis and to allow flexible use. In addition, we asked for comment on whether we should allocate this band more narrowly. We received few comments regarding our proposals for this band. MicroTrax states that although the 2385-2390 MHz band presents characteristics that allow the band to be a good technical fit for its proposed PLMS, other aspects of the band make it less desirable than the 1670-1675 MHz band. Primarily, Microtrax argues that the requirement to reimburse Federal Government users of this spectrum for relocation costs, are unknown and may be prohibitively expensive as to prevent Microtrax from offering a low-cost consumer service. We believe other entities, such as those interested in the 1670-1675 MHz band, could also make use of the 2385-2390 MHz band. Under the provisions of the Communications Act, the Commission must reallocate and assign this spectrum for competitive bidding. If NTIA determines that it is in the public interest to retain this spectrum for Federal Government use, it may substitute this spectrum for other spectrum under its authorizing statute.

38. In addition to our proposal to allocate this band for fixed and mobile services, we sought comment on NTIA's determination that receiver and transmitter standards are needed for users of this band in order to reduce the potential for mutual interference with airborne systems that will continue to operate in the adjacent 2360-2385 MHz band. No comments were received regarding this issue. Thus, consistent with rules for most radio services regulated by the Commission, we will not adopt receiver standards for this band. However, in order to attract and retain customers, we believe that equipment manufacturers have sufficient incentive to design robust equipment capable of operating in this band absent specific Commission rules to that effect. We also asked for comment on whether sites in addition to the seventeen sites identified by NTIA for protection until 2007 are currently being used. The Aerospace and Flight Test Radio Coordinating Council (AFTRCC) requests that ten additional sites beyond those identified by NTIA receive protection until 2007. They state that this would minimize the impact of reallocation on current and planned flight test operations while they prepare to operate in reduced spectrum.

39. Inasmuch as there was no opposition to our proposal to provide a flexible allocation in this band to the fixed and mobile services, we are adopting this proposal for the 2385-2390 MHz band. As stated in the NPRM, we would like to minimize the impact on aeronautical telemetry operators from transitioning out of this band. We, therefore, will protect nine of the additional ten sites requested by AFTRCC, but will not extend this protection to the Fairfield County, Connecticut site. In this regard, we are concerned that protecting the Fairfield County site would delay deployment of service to the New York City metropolitan area for at least two years. Because this area is such a large population center, it is important that a licensee have access to this market as soon as possible. We believe that these actions strike a balance between the needs of the aeronautical telemetry community and those of new licensees in the 2385-2390 MHz band. Accordingly, we are modifying proposed footnote USzzz (codified herein as footnote US363) in the Table of Frequency Allocations to include protection for the requested nine sites.

40. In the NPRM, we sought comment from Indian Tribal Governments regarding the effect our proposals for the 27 MHz being addressed in this proceeding might have on Native American Tribes. Last year, the Commission adopted a Tribal Government Policy Statement, 65 FR 41668, July 6, 2000 which stated that the Commission is committed to working with Native American tribes to ensure adequate access to communications services, and consulting with Tribal Governments prior to implementing any regulatory action or policy that would significantly affect tribal Governments, their land, and resources. We did not receive any comments from Tribal Governments or other parties on this issue. However, we will encourage future licensees, when deploying systems in spectrum reallocated in the Report and Order, to work with Tribal Governments to serve the communications needs of Tribal communities.

41. Federal Government operations will continue on a protected basis in several of the reallocated frequency bands, either indefinitely or for a period of time beyond the date of spectrum transfer from Federal to non-Federal Government use. In the NPRM, we stated that within the established protection zones, non-Federal Government stations would need to be coordinated with NTIA. This mandatory coordination will be accomplished by the Commission after an application is submitted by a licensee through the Frequency Assignment Subcommittee (FAS) of the Interdepartment Radio Advisory Committee (IRAC). We proposed a procedure whereby licensees proposing to construct a facility within a protected zone, would submit an application through the Universal Licensing System which contains the technical information for the site. This information would then be forwarded to the FAS. Licensees would be prohibited from constructing the facility until receiving a response from the Commission that the coordination with NTIA was successful. We sought comment on this proposal and asked for suggestions on alternative procedures that might be less cumbersome. The only comment received on this issue was from The National Academy of Sciences, which suggests coordination procedures for the GOES earth stations that will continue to operate with co-primary status in the 1670-1675 MHz band. We are adopting rules to implement this suggestion. For all other frequency bands, we adopt the procedures as proposed. Under these procedures, Commission licensees may construct facilities under the terms of their license and in accordance with the relevant service rules so long as the facility is not within one of the protected zones as defined by NTIA, unless the facility has been coordinated with NTIA. This does not exempt licensees from any other required filings or coordination requirements, such as those that may be required under the National Environmental Policy Act of 1969 or for international coordination.

42. By the decisions in the R&O, we reallocate twenty-seven megahertz of spectrum from Federal to non-Federal Government use. These actions fulfil our obligations to implement various provisions of OBRA-93 and BBA-97 and they also continue implementation of the 1999 Spectrum Policy Statement. We believe that through these actions, manufacturers, service providers and consumers will reap the benefits of new technologies and services.

43. As required by the Regulatory Flexibility Act (RFA)  1 an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rule Making (NPRM). 2 The Commission sought written public comments on the proposals in the Notice, including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. 3

44. This Report and Order (R&O) allocates 27 megahertz of spectrum from the 216-220 MHz, 1390-1395 MHz, 1427-1429 MHz, 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390 MHz bands for non-Government use, thereby effectuating the transfer of this spectrum from the Federal Government, pursuant to the provisions of the Omnibus Budget Reconciliation Act of 1993 (OBRA-93) and the Balanced Budget Act of 1997 (BBA-97). The bands 1390-1395 MHz, 1427-1429 MHz, and 2385-2390 MHz are being allocated for exclusive non-Federal Government use, while the bands 216-220 MHz, 1432-1435 MHz, and 1670-1675 MHz, are being allocated for mixed use. Mixed use is a type of shared use whereby Federal Government use is limited by geographic area, by time, or by other means so as to guarantee that the potential use to be made by Federal Government stations is substantially less than the potential use to be made by non-Federal Government stations. All primary Government allocations are being deleted from the transfer bands except in the mixed-use bands, where a limited number of stations will be grandfathered indefinitely. Federal agencies will not add new primary stations in any of the transfer bands. In the bands 1432-1435 MHz and 2385-2390 MHz, non-grandfathered Federal Government stations will retain their primary status until relocated in accordance with the Strom Thurmond National Defense Authorization Act of Fiscal Year 1999 (NDAA-99).

45. These seven bands have a variety of continuing Government protection requirements and incumbent Government and non-Government uses. Despite these constraints and the relatively narrow bandwidth contained in each of the bands, we believe that the R&O will foster a variety of potential applications in both new and existing services. The transfer of these bands to non-Government use should enable the development of new technologies and services, provide additional spectrum relief for congested private land mobile frequencies, and fulfill our obligations as mandated by Congress to assign this spectrum for non-Government use.

46. There were no comments received in response to the IRFA.

47. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 4 The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”  5 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 6 A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 7\1 A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.”  8 Nationwide, as of 1992, there were approximately 275,801 small organizations. 9 “Small governmental jurisdiction”  10 generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.”  11 As of 1992, there were approximately 85,006 governmental entities in the United States. 12 This number includes 38,978 counties, cities, and towns; of these, 37,566, or 96%, have populations of fewer than 50,000. 13 The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (96%) are small entities.

48. Licenses in some of the spectrum being allocated in the R&O will be assigned by auction, and licenses in some of the spectrum may be assigned by auction. The Commission has not yet determined how many licenses will be awarded, nor will it know how many licensees will be small businesses, until auctions are planned and held. We therefore assume that, for purposes of our evaluations and conclusions in the FRFA, all of the prospective licensees in the bands addressed in the NPRM are small entities, as that term is defined by the SBA.

49. Incumbent services in the 216-220 MHz band, which the R&O allocates on a primary basis to the Fixed and Mobile Services, include the Automated Maritime Telecommunications Service (AMTS), telemetry users and Low Power Radio Service (LPRS) users. The Commission has defined small businesses in the AMTS as those businesses which, together with their affiliates and controlling interests, have not more than fifteen million dollars ($15 million) in the preceding three years. 14 There are only three AMTS licensees, none of whom are small businesses. However, potential licensees in AMTS include all public coast stations, which fall within the Small Business Administration classification as Radiotelephone Service Providers, Standard Industrial Classification Code 33422. 15 The small business size standard for this category is an entity that employs no more than 1500 persons. 16 According to the 1992 Census of Transportation, Communications, and Utilities, there are a total of 1178 radiotelephone service providers, of whom only 12 had more than 1000 employees. Therefore, we estimate that at least 1166 small entities may be affected by these rules.

50. Users of telemetry are generally large corporate entities, such as utility companies, and it is unlikely that any of the users would be small businesses. LPRS permits licensees to use the 216-217 MHz segment for auditory assistance, medical devices, and law enforcement tracking devices. Users are likely to be theaters, auditoriums, churches, schools, banks, hospitals, and medical care facilities. The primary manufacturer of auditory assistance estimates that it has sold 25,000 pieces of auditory assistance equipment. Many if not most LPRS licensees are likely to be small businesses or individuals. However, because the LPRS is licensed by rule, with no requirement for individual license applications or documents, the Commission is unable to estimate how many small businesses make use of LPRS equipment.

51. The incumbent service in the 1427-1429 MHz band is telemetry. The incumbent services in the 1429-1432 MHz band include general telemetry and medical telemetry. The Commission has issued only a small number of licenses in these bands. The primary user of this band is Itron, Inc., which with an investment of $100 million in equipment development, is not likely to be a small business. Other licensees include utility companies, such as Pueblo Service Company of Colorado and E Prime, Inc., and large manufacturers such as Deere and Company, Caterpillar, and General Dynamics. None of these licensees are likely to be small businesses. One licensee, Zytex, a manufacturer of high-speed telemetry systems may be a small business. Users of medical telemetry are hospitals and medical care facilities, some of which are likely to be small businesses.

52. The Commission has not developed a definition of small entities specifically applicable to Radio Frequency Equipment Manufacturers (RF Manufacturers). Therefore, the applicable definition of small entity is the definition under the SBA rules applicable to manufacturers of “Radio and Television Broadcasting and Communications Equipment.” According to the SBA's regulation, an RF manufacturer must have 750 or fewer employees in order to qualify as a small business. 17 Census Bureau data indicates that there are 858 companies in the United States that manufacture radio and television broadcasting and communications equipment, and that 778 of these firms have fewer than 750 employees and would be classified as small entities. 18 We believe that many of the companies that manufacture RF equipment may qualify as small entities.

53. According to the SBA's regulations, nursing homes and hospitals must have annual gross receipts of $5 million or less in order to qualify as a small business concern. There are approximately 11,471 nursing care firms in the nation, of which 7,953 have annual gross receipts of $5 million or less. 19 There are approximately 3,856 hospital firms in the nation, of which 294 have gross receipts of $5 million or less. Thus, the approximate number of small confined setting entities to which the Commission's new rules will apply is 8,247.

54. Entities interested in acquiring spectrum in the bands where license assignment will be made through an auction will need to submit a high bid and then submit a license application for the spectrum of interest. In other bands, entities will be required only to submit license applications to obtain the use of spectrum. Additionally, licensees will be required to file applications for license renewals and make certain other filings as required by the Communications Act.

55. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives among others: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. As in all of the bands where incumbent licensees exist, we have inquired whether we should elevate the status of the services in which the incumbents are licensed to primary. 5 U.S.C. 603.

56. Although the scope of this R&O is spectrum allocation, and not license assignment and compliance requirements, several steps have been taken to minimize any possible significant economic impact on small entities. For example, the allocation decision not to auction the 216-217 MHz band and also to elevate LPRS to primary status in that band will protect the investment made by small entities in LPRS devices. Similarly, the decision to relocate the Wireless Medical Telemetry Service (WMTS) to the 1427-1429.5 MHz band from the 1429-1432 MHz band will allow licensees to more efficiently use the spectrum because the spectrum sharing environment will be more favorable at the lower end of the band. Because, the original allocation decision for WMTS was only made recently, devices are not yet on the market. Thus, there is no economic impact on licensees to retune equipment. Likewise, the impact on manufacturers will be minimal.

57. The Commission will send a copy of this Report and Order, including a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.

58. The Commission will send a copy of this Final Regulatory Flexibility Analysis, along with the Report and Order, in a report to Congress pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

59. Authority for issuance of this Report and Order and Memorandum Opinion and Order is contained in Sections 4(i), 257, 303(b), 303(f), 303(g), 303(r), and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 257, 303(b), 303(f), 303(g), 303(r), and 309(j).

60. Parts 1, 2, 90, and 95 of the Commission's Rules Are amended, effective April 12, 2002.

61. The proceeding in WT Docket No. 97-153 Is terminated.

62. The Petitions for Reconsideration filed in ET Docket No. 99-255 Are denied.

63. The Commission's Consumer Information Bureau, Reference Information Center, Shall send a copy of this Report and Order and Memorandum Opinion and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel.

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

The proposed rule published for this action (66 FR 34401, June 28, 2001) provided substantial background information on the issue of shark finning. A summary of that information is provided here.The Act was passed by Congress and signed by the President in December 2000 out of concern for the status of shark populations and the effects of fishing mortality associated with finning on shark populations. The Act amends the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Act prohibits any person subject to U.S. jurisdiction from (1) engaging in shark finning, (2) possessing shark fins aboard a U.S. fishing vessel without the corresponding carcass, or (3) landing shark fins without a corresponding carcass.

The strong international market for shark fins has increased the potential for fishing shark stocks at unsustainable levels. Uncontrolled shark finning may lead to unsustainable shark harvests, as well as to the waste of usable (but often relatively lower value) shark meat. The intent of the Act is to end the practice of shark finning and support domestic and international conservation of shark stocks.

To implement the Act, this final rule prohibits: (1) Any person from engaging in shark finning aboard a U.S. fishing vessel; (2) any person from possessing shark fins on board a U.S. fishing vessel without the corresponding shark carcasses; (3) any person from landing from a U.S. fishing vessel shark fins without the corresponding carcasses; (4) any person on a foreign fishing vessel from engaging in shark finning in the U.S. exclusive economic zone (EEZ), from landing shark fins without the corresponding carcass into a U.S. port, and from transshipping shark fins in the U.S. EEZ; and (5) the sale or purchase of shark fins taken in violation of the above prohibitions. In addition, this final rule requires that all shark fins and carcasses be landed and weighed at the same time, once a landing of shark fins and/or shark carcasses has begun. This rule does not affect the reporting requirements currently in place for fisheries that take sharks or for any U.S. vessels that fish solely in state waters and that have not been issued a Federal Atlantic shark or dogfish permit.

This final rule establishes a rebuttable presumption that any shark fins possessed on board a U.S. fishing vessel, or landed from any fishing vessel, were taken, held, or landed in violation of these regulations if the total wet weight of the shark fins exceeds 5 percent of the total dressed weight of shark carcasses landed or found on board the vessel. It would be the responsibility of the person conducting the activity to rebut the presumption by providing evidence that the fins were not taken, held or landed in violation of these regulations. NMFS has used wet weight to apply the 5-percent limit for shark fins landed in the Atlantic, Gulf, and Caribbean, where the fins are generally wet when landed. In the proposed rule for this action, NMFS specifically requested comments regarding how the weight of shark fins should be determined for purposes of this final rule. Public comments generally favored the use of wet weight, and this approach is maintained in the final rule for consistency with the approach used in the Atlantic shark fisheries.

The prohibition of landing shark fins without corresponding carcasses extends to any vessel (including a cargo or shipping vessel) that obtained those fins from another vessel at sea. Any such at-sea transfer of shark fins effectively would make the receiving vessel a “fishing vessel,” as the receiving vessel is acting “in support of fishing.” Thus, the receiving vessel is prohibited from landing shark fins without corresponding carcasses under this final rule.

NMFS requested public comment on whether the prohibitions in the Act should be applied to activities in state waters and the possession or landing of fins from sharks harvested from state waters. After reviewing the language of the Act and its legislative history, together with the public comments on this issue, NMFS concludes that the final rule should not operate to alter or diminish the jurisdiction or authority of any state within its boundaries. Therefore, this final rule does not apply to activities by persons on vessels fishing only in state waters. However, consistent with existing regulations at 50 CFR 635.4(a)(10) and 648.4(b), any person aboard a vessel issued an Atlantic shark or spiny dogfish permit shall be, as a condition of such permit, subject to the requirements of this subpart during the period of validity of the permit, without regard to whether the fins were taken from sharks harvested within or outside the U.S. EEZ. Persons aboard such federally permitted vessels that fish within the waters of a state that has more restrictive regulations pertaining to shark finning must abide by any of the state's regulations that are more restrictive. Because Pacific states, by and large, already prohibit finning, NMFS decided not to enact similar provisions in the Pacific.

This final rule will directly affect (1) owners, operators, and crew of U.S. fishing vessels that engage in finning, and in landing and selling those fins; (2) owners and employees of U.S. firms that buy and sell shark fins harvested in and beyond the U.S. EEZ (which could include U.S. fishing vessels and foreign vessels that obtain fins without carcasses from foreign vessels at sea) or that sell sharks harvested by vessels that have been issued a Federal Atlantic shark or spiny dogfish permit; and (3) owners, operators, and crew of foreign fishing vessels that would otherwise land shark fins without carcasses in U.S. ports. Shark finning has been prohibited in the Federal waters of the Atlantic Ocean, Gulf of Mexico, and Caribbean Sea since 1993, and finning of spiny dogfish in this region was prohibited in 2000. Further, finning is effectively prohibited under state regulations on the West Coast and in the north Pacific, as well as in a number of Atlantic states and Hawaii. Therefore, there will be minimal impacts in these areas.

Most, if not all, of the impacts will likely affect businesses in the western Pacific. This final rule is expected to have moderate impacts on fishermen and businesses in Guam and American Samoa, where shark fin landings have been made by U.S. and foreign vessels and substantial sales and trade in shark fins have been conducted for many years. In Guam and American Samoa, domestic landings of shark fins have been very low; however, foreign longline vessels have landed shark fins there in the past. Under this final rule, sales of those fins would be prohibited unless the corresponding carcasses were also landed. As there is no market for carcasses, it is likely that shark fin landings will cease or drop to very low levels. This would affect vessel sales as well as the earnings of crew on foreign fishing vessels because the revenue from fin sales often accrues directly to crew members. If that income is reduced, there could be less spending by crew members in port calls in American Samoa and Guam. It is estimated that shark finning accounts for between $1.8 million and $2.5 million of economic activity in the western Pacific (not including the values formerly attributable to finning by domestic vessels in Hawaii until 2000, when finning was prohibited).

This final rule may indirectly affect U.S. retailers and consumers of shark fins, but the extent of impact cannot be determined with available data. It is likely that shark fins, which would no longer be available in large quantities from domestic landings, would continue to be available through air, ocean, or surface freight shipments. It is also possible that the price of shark fins would rise due to lower domestic supply. If a market for shark carcasses could be developed, the effects of the landings prohibition on fins without carcasses could be alleviated somewhat. Because NMFS' interpretation of the Act is that it targets fishing vessels and was not meant to interfere with international trade, NMFS has drafted this final rule not to directly affect the owners and employees of businesses that are engaged in regular domestic and international cargo shipments of, and trade in, shark fins, or the owners and employees of businesses that provide supplies and services to foreign fishing vessels that may (but do not necessarily) engage in shark finning and associated sales.

This final rule does not establish any new reporting or recordkeeping requirements. Reporting requirements currently in place are believed to be sufficient for monitoring and enforcing these regulations. However, these regulations may be amended if information or conditions demonstrate that additional reporting or recordkeeping requirements are necessary to achieve the purposes of the Act. NMFS will work with the regional fishery management councils (councils), interstate marine fisheries commissions, and states to determine whether changes are needed to ensure adequate records for monitoring the fisheries and enforcing the prohibitions. If any changes are needed in reporting and recordkeeping requirements, they may be made nationally or in separate regions.

NMFS considered applying broader interpretations of the Act that would likely have had much greater impacts on foreign fishermen. One alternative that NMFS considered would have prohibited foreign fishing vessels from possessing shark fins without carcasses while in U.S. ports. This could have resulted in a substantial reduction in the use of those ports by foreign longline vessels that have shark fins on board without corresponding carcasses. It is estimated that this port activity generates between $40 and $60 million per year in sales by Hawaiian businesses.

NMFS considered a second alternative that would have prohibited the possession of shark fins without corresponding carcasses by all foreign fishing vessels whenever they are in the U.S. EEZ, even if not engaged in fishing. This could have forced some vessels fishing throughout the Pacific to adjust their navigation routes at high expense. It would have also constituted an infringement on the right of freedom of navigation under customary international law. This construction appears to go beyond the intent of the Act.

A third alternative would have extended the landing prohibition to all vessels, including non-fishing cargo vessels, whether or not such vessels are operating in support of fishing activity. Under this alternative, there would have been greater impacts on shippers, retailers, and consumers. U.S. Customs Service data indicate that documented imports and exports of shark fins into and out of the U.S. were valued at $3 million and $5 million, respectively, in 1999. Under this alternative, these shipments would likely be eliminated and shark fins could only enter the U.S. via air or land freight.

NMFS also considered a fourth alternative that would not have promulgated these regulations but would have used fishery management plans prepared by councils (and by the Secretary with respect to Atlantic Ocean, Gulf of Mexico, and Caribbean shark fishery management) under the Magnuson-Stevens Act to implement the Act. However, actions by the Councils would require an extended amount of time that would not meet the statutory time constraints of the Act.

A summary of the substantive comments on the proposed rule and responses to those comments follow.

Comment 1: Several commenters indicated that not applying the prohibitions of the Act in state waters is inconsistent with the Act and should not be incorporated in the final rule. Finning is a national concern, and the failure of states and councils to prohibit finning is what led to the need for the Act. The term “at sea” was meant broadly by Congress and Congress could have specifically excluded state waters if that was the intent. Therefore, the prohibitions should be applied in state waters, or at least in state waters where there are no state regulations prohibiting finning. It was suggested that non-application in state waters would result in unnecessary enforcement difficulties. One state had no objection to application of the regulations in state waters as long as states could adopt more stringent regulations. Another state agreed with NMFS' proposed approach under which the regulations would not apply in state waters.

Response: The language and legislative history of the Act indicate that the regulations should not apply in state waters. The prohibitions contained in the Act were enacted as an amendment to the Magnuson-Stevens Act. The Magnuson-Stevens Act grants authority to the Secretary and the eight fishery management councils to regulate fisheries in ocean areas seaward of state waters, while providing that such authority shall not be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries (16 U.S.C. 1856(a)). Neither the language nor the legislative history of the Act reveals an intent by Congress to extend Federal fishery management authority to regulate state shark fisheries, or the finning of sharks taken in such state fisheries. Hence, NMFS understands the prohibitions contained in the Act to apply to the finning, possession, and landing of sharks harvested seaward of state waters. The comprehensive prohibition of shark finning would require either corresponding state regulation or a specific exception to the Magnuson-Stevens Act under 16 U.S.C. 1856(b) allowing for Federal regulation of sharks harvested within the boundaries of a state. While most states already have prohibitions on shark finning in state waters, NMFS intends to work with regional fishery management councils, interstate marine fisheries commissions, and states to promote consistency in management throughout state and Federal waters.

Comment 2: The Act does not provide authority to prohibit foreign vessels from possessing shark fins from sharks caught on the high seas. The Act (as an amendment of the Magnuson-Stevens Act) is limited to regulating the possession or offloading of fish harvested in the U.S. EEZ. The only reasonable interpretation of the Act, therefore, is that the new law does not regulate shark fins caught by foreign vessels on the high seas. The Act does not authorize prohibiting shark finning by foreign fishing vessels on the high seas and therefore, the Act cannot prohibit the landing of shark fins without the corresponding carcasses if they were taken on the high seas.

Response: Foreign vessels, when they are engaged in fishing or fishing related activities in the U.S. EEZ, in state waters, or in U.S. ports, are subject to U.S. jurisdiction under customary international law. These vessels are subject to the Magnuson-Stevens Act, the Nicholson Act and other applicable law with respect to any fishing activity (defined in the Magnuson-Stevens Act to include any operations in support of the catching, taking or harvesting of fish) within the U.S. EEZ, or activities, including landing of fish or fish parts, conducted in U.S. ports in the 50 states and the U.S. Virgin Islands for vessels greater than 50 feet in length, as regulated by the Nicholson Act (see 46 U.S.C. Appx. sec. 251). Accordingly, the Act requires NMFS to prohibit both finning (as a fishing activity) and landing of shark fins without the corresponding carcasses by foreign vessels, when these activities occur in U.S. waters or U.S. ports. However, the Act does not confer jurisdiction to prohibit shark finning by foreign vessels on the high seas. Absent specific evidence to the contrary, NMFS must presume that any shark fins in the possession of a foreign vessel passing through the U.S. EEZ were harvested either on the high seas or in a foreign jurisdiction. The possession of such shark fins by foreign vessels in U.S. waters does not, of itself, constitute fishing or other activity subject to U.S. regulatory jurisdiction. Therefore, NMFS interprets the Act as not imposing the prohibition regarding possession of shark fins without corresponding carcasses against foreign vessels, except when those vessels are offloading shark fins in a U.S. port.

Comment 3: Sections 600.1022(b) and 600.1023(f) should be revised to clearly be limited to U.S. fishing vessels.

Response: Section 600.1022(b) has been revised to clearly indicate that the 5 percent threshold of the rebuttable presumption as it applies to possession of shark on board a vessel is applicable only to U.S. vessels, while the 5 percent threshold of the rebuttable presumption as it applies to landings is applicable to all vessels landing shark fins in a U.S. port or transshipping shark fins in waters under U.S. jurisdiction. No change was made in § 600.1023(f) (see response to comment 5).

Comment 4: There should be a clearer statement that foreign fishing vessels that call at U.S. ports are exempt from application of the possession prohibition. There should not be any restriction on foreign vessels' freedom to transit the U.S. EEZ or enter a port in Hawaii based on possession of shark fins without corresponding carcasses on board the vessel. Section 600.1023(b) does not address the right of a foreign vessel to have possession of shark fins without carcasses in ports under U.S. jurisdiction. This would allow a state to prohibit such possession, and § 600.1020 further suggests this possibility. Prohibiting foreign vessels from possessing shark fins in U.S. ports could have serious adverse consequences on the economy of some ports because it would make it very difficult for Japanese fishing vessels to visit such ports.

Response: This final rule prohibits persons aboard U.S. or foreign fishing vessels from landing shark fins without corresponding carcasses. This final rule does not prohibit foreign vessels that possess shark fins without corresponding carcasses from transiting the U.S. EEZ or state waters, or from entering a U.S. port.

Comment 5: Foreign fishing vessels should be exempt from inspection under § 600.1023(f).

Response: Under customary international law, foreign vessels in U.S. ports are subject to inspection in accordance with the jurisdiction of port states to enforce their laws. Consequently, a foreign fishing vessel may be inspected when in a U.S. port.

Comment 6: Two commenters indicated that, as written, the proposed application of the prohibitions to foreign fishing vessels would occur even in state waters, while domestic vessels would not be subject to prohibitions in state waters. This distinction is troubling, especially in the context of trade disputes concerning environmental laws. At the least, NMFS should explain the basis for applying the Act differently for foreign and domestic fishing vessels.

Response: The comment refers to language in the preamble to the proposed rule that discusses the likely effects of the proposed prohibitions on persons aboard U.S. fishing vessels and foreign fishing vessels, respectively. The language in question discusses the effect of the proposed landing prohibition on persons aboard foreign fishing vessels that would be prohibited from landing shark fins without corresponding carcasses “in or inside” the U.S. EEZ. However, the landing prohibition under the final rule applies equally to foreign and domestic fishing vessels. Nor is there any disparate treatment of foreign vessels with respect to the prohibition against shark finning in waters seaward of the inner boundary of the U.S. EEZ.

Comment 7: If retained, § 600.1020 should be revised to limit states to regulating the taking of sharks in state waters and the rules should expressly authorize foreign vessels to possess shark fins without corresponding carcasses in U.S. ports.

Response: As discussed previously, the Act does not provide NMFS with authority or jurisdiction over state waters. Persons conducting activities regulated by this final rule must abide by any more restrictive state regulations as applied to sharks harvested in state waters or landed in a state. Foreign fishing vessels, while subject to the landing prohibition, may possess shark fins without corresponding carcasses as they transit the U.S. EEZ and state waters, and when they are in U.S. ports. Since such possession of shark fins by foreign vessels is not prohibited, no express authorization is required.

Comment 8: One commenter asked if the prohibitions against landing fins without carcasses by foreign fishing vessels would apply in the foreign trade zone in Hawaii; another commenter recommended that the landings prohibition be applied to foreign fishing vessels in a foreign trade zone.

Response: The final rule clarifies that foreign fishing vessels are prohibited from landing fins without corresponding carcasses in a foreign trade zone, whether in Hawaii or elsewhere. The Foreign Trade Zone Act, which establishes foreign trade zones, exempts imports from U.S. customs duties. The Free Trade Zone Act does not exempt fishing activity, including landing of shark fins, by persons or entities under U.S. jurisdiction.

Comment 9: The terms, “dressed weight,” “wet fins,” and “corresponding carcass” should be defined. The use of wet weight is supported but it was noted that there are species differences in the ratio of fin weight to carcass weight. NMFS should consider requiring that fins be packed in ice to prevent drying. A definition of “wet” was suggested.

Response: The term “Corresponding Carcass” is self explanatory, and the term “dressed weight” is defined for the Atlantic at 50 CFR part 635. NMFS has retained the use of wet weight in the final rule and will use dressed weight in the application of the rebuttable presumption at § 600.1022(b). Therefore, no changes are made in this final rule. NMFS notes that enforcement and prosecution of violations will not be contingent solely on the use of the rebuttable presumption. NOAA will consider all evidence available in each instance, including the number and weight of fins, the number and weight of shark carcasses, the condition of the carcasses ( e.g., dressed or not dressed), and the amount or weight of other shark products when determining whether a violation likely occurred and whether to prosecute. More specific definitions of the terms as proposed will not necessarily increase NMFS' ability to enforce the regulations in a reasonable manner or help the public comply with the regulations. As recommended by the commenter, NMFS considered whether to require special packing of fins or keeping fins attached or specially identified with specific carcasses as a way of enforcing the finning definitions. Based on experience in the Atlantic, NMFS concluded that it has not been demonstrated that such restrictions are necessary or appropriate at this time. As more experience is gained in implementing the regulations in the Pacific, NMFS will consider the need for additional measures or new definitions to ensure that the Act is carried out effectively.

Comment 10: The Act is unscientific and irrational, and efforts to enforce the Act may be counterproductive. The Act disregards established international rules concerning conservation and management of marine resources. Management must be based on objective and justifiable grounds, and an across-the-board prohibition on finning lacks objective and reasonable grounds. The Act will dampen Food and Agricultural Organization (FAO) efforts to conserve and manage sharks, which the U.S. has agreed is necessary under the International Plan of Action for Shark Conservation (IPOA) and the U.S. National Plan of Action (NPOA). Shark finning controls should not be taken up in isolation but should be part of a complete management strategy.

Response: The Act is U.S. law, reflecting the intent of Congress, and expressly provides that its terms must be implemented by domestic rulemaking. In enacting this law, Congress emphasized the need for international cooperation to conserve and manage sharks and their utilization in a reasonable and effective manner. In fact, the Act is fully consistent with the objectives in paragraph 22 of the IPOA, namely encouraging the full use of dead sharks and minimizing the waste and discards from shark catches.

Comment 11: The Secretary should move forward with implementation of the international provisions of the Act.

Response: The Secretary is working with the Department of State to develop a strategy for complying with the international provisions of the Act.

Comment 12: Section 635.30(c)(1) should be revised to apply only to shark fins harvested by a vessel pursuant to a commercial vessel permit for sharks. This would make clear that this section would not apply to foreign fishing vessels transiting the EEZ or entering a U.S. port.

Response: Section 635.30(c)(1) has been clarified to apply only to shark fins harvested by fishermen that hold a Federal Atlantic commercial shark limited access permit.

Comment 13: There is insufficient evaluation of possible effects of the measures; there should be a full evaluation along with consultations with FAO, other international organizations, and other nations.

Response: Both an EA and a combined RIR and initial regulatory flexibility analysis were prepared for the proposed rule, and a range of alternatives and their impacts have been considered. The proposed rule published for this action was widely available to, and open to comment by, U.S. interests, foreign nations, and international organizations. NMFS considered the comments it received on the proposed rule in drafting this final rule and its associated analytical documents.

This final rule affects foreign vessels' activities only while they are under U.S. jurisdiction and does not purport to control their activities on the high seas or in other nations' waters. Therefore, NMFS does not believe that consultations with other nations or international organizations on this action are necessary. However, in coordination with the Department of State, NMFS will continue to work with other nations to develop and implement international agreements for the conservation and management of sharks.

Comment 14: A legislative ban on shark finning could seriously impact port calls by foreign vessels and result in job and revenue loss in Hawaii. There will be a negative impact on people in small communities including Guam and American Samoa.

Response: Based on the RIR/FRFA for this final rule, NMFS does not believe that the ban on shark finning will result in significant job or revenue loss in Hawaii. Foreign fishing vessels do not land shark fins in Hawaii at this time. Further, this final rule does not prohibit foreign vessels from making port calls even if they have shark fins on board without corresponding carcasses. Therefore, this final rule is not expected to result in a reduction of port calls or associated adverse impacts on jobs and revenue in Hawaii. NMFS recognizes, as discussed above and in the supporting documents, that there may be adverse impacts in Guam and American Samoa. However, NMFS is obligated to promulgate regulations to implement the Act and has attempted to structure the regulations to have the least possible social and economic impacts on communities in American Samoa and Guam.

Comment 15: Pelagic shark populations are stable (especially blue sharks) and prohibition of finning is not necessary for conservation.

Response: Not enough research has been done and too few stock assessments have been prepared to demonstrate that pelagic shark populations are stable. In fact, the absence of good information on shark abundance was one of the principal concerns behind the FAO IPOA. This final rule should help reduce uncontrolled and unmonitored shark fishing mortality.

Comment 16: Prohibiting finning will lead to less data for stock monitoring and management because fishermen will not cooperate in collecting data under a regulation which does not have a scientific base.

Response: The regulations are not expected to result in a decrease in data needed for shark stock assessments or conservation and management. NMFS is working with regional fishery management councils, interstate marine fisheries commissions, and states to address data needs for these purposes. In addition, NMFS is working with the Department of State to develop and implement an international strategy for shark conservation.

Comment 17: An option before the U.S. could be to abolish the Act or adopt the status quo.

Response: NMFS cannot abolish the Act. NMFS is obligated to promulgate regulations to carry out the Act unless the Congress directs NMFS to do otherwise.

Comment 18: NMFS should change logbooks to require additional catch and effort information by species; it is not clear how NMFS can enforce the regulations (especially the 5 percent weight ratio) without additional data reporting. The absence of data reporting requirements contradicts section 7 of the Act, which mandates a number of data collection and research priorities.

Response: NMFS has considered the need for data collection or reporting requirements and believes that it is premature to conclude that new requirements are necessary. Existing Federal fishery management plan and state reporting requirements generate much of the fishery information needed for shark conservation and management. Improvements in these reporting systems are expected as NMFS gains experience under these and other regulations. NMFS notes that a special effort to review reporting requirements will be undertaken in the Pacific. The EA for this action includes a comparison of current Atlantic and Pacific reporting requirements.

Comment 19: Two commenters objected to the statement that shark finning is a wasteful act that goes against sportsmanship when no clear definition of wastefulness is given; stated that finning makes effective use of unnecessary incidental catch; and indicated that there is no reason to prohibit finning if the species involved is healthy. Finning is neither wasteful nor unsportsmanlike. Retaining only the fins, especially of species whose meat is unpalatable, does not inherently make the practice wasteful. There are many cases in which only parts of fish are used.

Response: As stated in the Act, the United States has decided, through Congress, that shark finning is wasteful and should not be permitted by persons or vessels subject to U.S. jurisdiction. However, NMFS recognizes that other nations may feel differently and together with the Department of State, will work with other nations on developing and implementing international agreements that meet mutually acceptable objectives.

Comment 20: Notwithstanding that unilateral action on shark finning is a terrible precedent, it is recognized that NMFS needs to comply with the legislation and NMFS has made a good effort to implement it in a practical and reasonable manner, especially with respect to allowing foreign fishing vessels to possess fins without carcasses while transiting and allowing cargo vessels to carry out regular shipping activities.

Response: NMFS is implementing the Act in a manner that minimizes adverse economic impacts while meeting the objectives of the Act.

Comment 21: The regulations should be implemented as quickly as possible and the 30-day “cooling off” period should be waived. NMFS should strictly enforce the prohibitions and should develop measures to combat illegal landings and transfer of illegally taken fins and to prevent “highgrading.” Fins should have to either remain on the carcass or somehow be identifiable with the carcass (this will help in species identification as well). The fisherman should have the burden of proof to show that fins on board or landed relate to carcasses in the proper ratio.

Response: There is no legal basis available with respect to this rule to waive the 30-day delay in effectiveness required by the Administrative Procedure Act. NMFS intends to enforce the regulations. In prosecuting enforcement actions, NMFS carries the burden of proving violations of this rule. In proving violations of the prohibitions against possession or landing shark fins without the corresponding shark carcasses, this burden may be satisfied as a threshold matter using a rebuttable presumption based on evidence that the total weight of the fins exceeds 5 percent of the dressed weight of the carcasses. The person conducting the alleged illegal activity can rebut that presumption by providing evidence that the fins were not taken, held or landed in violation of these regulations.

Comment 22: All recreationally and commercially caught sharks that are endangered, protected, undersized or not a desirable species to market or eat should be properly handled and released alive, in the water.

Response: While NMFS agrees that every effort should be made to release unwanted sharks alive, the Act did not address the manner in which sharks should be handled or released. This is a matter to be evaluated through the fishery management process.

Changes From the Proposed Rule

The following changes have been made from the proposed rule:

Section 600.1019, has been clarified to better define shark finning.

In § 600.1022, paragraph (b) has been revised to indicate that the 5-percent possession limit of fins to shark carcasses applies only to U.S. vessels. (See also the response to Comment 3.)

In § 600.1023, paragraph (i) has been revised and new paragraphs (j) and (k) added to clarify prohibited acts for vessels with a Federal Atlantic commercial shark limited access permit.

In § 635.30, paragraph (c)(1) has been revised to clarify that it applies only to shark fins harvested by fishermen that hold Federal Atlantic commercial shark limited access permits. (See also the response to Comment 12.)

In § 635.30, paragraphs (c)(1) and (c)(3) have been clarified to show that all carcasses and fins must be landed at the first point of landing.

There have been additional editorial changes made from the proposed rule to correct references and for clarity and consistency.

This final rule has been determined to be not significant for purposes of Executive Order 12866. It will not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities. NMFS has also determined that this final rule will not create serious inconsistency or otherwise interfere with an action taken or planned by another agency; materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

NMFS prepared an FRFA that describes the impact this final rule is expected to have on small entities. A copy of this analysis is available from NMFS (see ADDRESSES ). A summary of the analysis follows.

The need for and objectives of this rule are described in the Summary and Background sections of this preamble.

The principal affected entities are: (a) Western Pacific U.S. longline and purse seine fishing vessel operators and crew, and the businesses that buy and resell shark fins (without corresponding carcasses) from these vessels; (b) businesses that buy and export shark fins from crews of foreign longline vessels delivering those fins in western Pacific ports; and (c) businesses that sell goods and services to foreign vessel crew members who receive the revenue from the sale of shark fins in U.S. ports. The western Pacific is the region mainly impacted because this is the only region where shark finning by U.S. interests and delivery of fins by foreign vessels have not previously been regulated under Federal or state law. The principal effects of this action are to terminate finning by U.S. fishing vessels in the western Pacific, and to terminate landings of shark fins without corresponding carcasses into U.S. ports by U.S. and foreign fishing vessels in the western Pacific. Persons and businesses in that area may be seriously affected by the elimination of their principal source of shark fins.

NMFS does not know how dominant a role shark fin trade plays in the economic activity of the affected businesses. It is estimated that there are four to six active trading businesses in American Samoa and Guam. If trade in shark fins is their only trade, these businesses may be forced to cease activity and/or find alternate lines of trade. They may also seek ways to find more valuable uses of sharks (e.g., shark meat, cartilage, skins) such that more carcasses would be retained with the fins and greater values could be derived from the shark catches in the longline fishery. However, any such transition is likely to take some time and the businesses would suffer losses until that time. Based on studies of shark fin landings and crew income, it is estimated that the loss could be between $422,000-653,000 annually. It is acknowledged that there could be reductions in the availability of shark fins for soup and other products in the U.S. under this final rule. However, the supply impacts will be moderated if suppliers are able to use other means to ship shark fins into the United States.

NMFS considered four alternatives to this action other than the status quo or no action. These alternatives are discussed in the Alternative Construction of the Statute section of this preamble, which explains why these alternatives were not adopted. While NMFS received no comments regarding the IRFA, NMFS' response to comments 4, 8, 13, and 14 address economic aspects of this final rule.

This rule applies only to vessels harvesting sharks seaward of the inner boundary of the U.S. EEZ, and to federally permitted vessels in the Atlantic shark and spiny dogfish fisheries, and therefore, it does not conflict with any state laws governing fishing activities in state waters. NMFS does not intend by this regulation to supercede any state law or regulation with respect to shark finning and landing or possession of shark fins by state registered vessels, even with respect to more restrictive state laws or regulations pertaining to such activities occurring seaward of the state's boundary. NMFS intends to work with those states that do not already prohibit the landing of shark fins without the corresponding shark carcasses to enact appropriate laws and to issue appropriate regulations so that the objectives of the Act are fully achieved.

NMFS completed an informal consultation on September 6, 2001, with regard to the effects of this proposed rule on endangered and threatened species under NMFS' jurisdiction. It was found that the action is not likely to adversely affect listed species under NMFS' jurisdiction.

Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, Reporting and recordkeeping requirements.

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

The 2002 red king crab bycatch limit for the RKCSS is 20,924 animals as established by an emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002).

In accordance with § 679.21(e)(7)(ii)(B), the Administrator, Alaska Region, NMFS, has determined that the amount of the 2002 red king crab bycatch limit specified for the RKCSS will be caught. Consequently, NMFS is closing the RKCSS to directed fishing for groundfish with non-pelagic trawl gear.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to avoid exceeding the amount of the 2002 red king crab bycatch limit specified for the RKCSS constitutes good cause to waive the requirement to provide prior notice opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion to avoid exceeding the amount of the 2002 red king crab bycatch limit specified for the RKCSS constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.21 and is exempt from review under Executive Order 12866.