Part 260 of the Board's regulations deals generally with administrative review of denials of claims or requests for waiver of overpayments under the Railroad Retirement Act (RRA). Part 320 deals with the same matters under the Railroad Unemployment Insurance Act (RUIA). The Board believes this process can be streamlined without diminishing the rights of claimants in the administrative review process. In addition, the Board believes that part 260 can be made more readable and thus more understandable to the public.

Specifically, the Board proposes to amend § 260.2 to clarify that the procedure applicable to the appeal of a decision denying the crediting of compensation also applies to the crediting of service months under the RRA. Sections 260.3(d) and 320.10(e) are amended to add as possible good cause for failure to file a timely reconsideration request or appeal within the agency that the claimant believed his or her representative had filed such a request or appeal. In order to protect an appellant where he or she may have a problem obtaining appeal forms, §§ 260.5(b), 260.9(b), 320.12, and 320.39 are amended to provide that the right to appeal is protected by the submission of a written request received within the appeal period stating an intent to appeal, if the claimant files the appeal form within the 30-day period following the date of the letter sending the form to the claimant.

A request for waiver of an overpayment must be filed within 60 days of the notice of overpayment. Sections 260.4(c) and 320.11(f) provide that the Board will still consider a request for waiver filed after the 60-day time period, but may proceed to collect the overpayment and that any amounts collected prior to the request for waiver will not be waived.

The amendments amend both parts 260 and 320 to delay recovery of an erroneous payment when a timely appeal is filed with the Bureau of Hearings and Appeals (new paragraphs 260.5(d) and 320.12(c)) and also when a timely appeal is filed with the three-member Board (new paragraphs 260.9(d) and 320.39(b)).

Sections 260.9(d) and (e) clarify that new evidence will ordinarily not be accepted on appeal to the three-member Board from a decision of a hearings officer, but that argument will be accepted. A new § 320.40(d) parallels § 260.9(e). Sections 260.10 and 320.49 provide that the date of postmark shall be considered the date of filing a document with the Board. Finally, a number of nomenclature changes are made to reflect a recent reorganization.

Sections 260.10 and 320.49 are revised to state that as a general rule a document is filed on the day it is received by the Board but that the date of a postmark or other evidence of the date of mailing may be used to establish a filing date. The Board, with the concurrence of the Office of Management and Budget, has determined that this is not a significant regulatory action under Executive Order 12866. Therefore, no regulatory impact analysis is required. Information collections associated with this rule have been approved by the Office of Management and Budget under control number 3220-0007.

For the reasons set out in the preamble, the Railroad Retirement Board proposes to amend title 20, chapter II, parts 260 and 320 of the Code of Federal Regulations as follows:

On January 3, 2001, the Treasury Department and the IRS published a notice of proposed rulemaking (REG-106702-00, 2001-4 I.R.B. 424) under section 705 of the Internal Revenue Code (Code) in the Federal Register (66 FR 315). Those proposed regulations provided guidance on the coordination of sections 705 and 1032 in situations where a corporation acquires an interest in a partnership that holds stock in that corporation, a section 754 election is not in effect with respect to the partnership for the taxable year in which the corporation acquires the interest, and the partnership later sells or exchanges the stock. Final regulations for the issues addressed in those proposed regulations are being published elsewhere in this issue of the Federal Register . These proposed regulations propose to revise the final regulations contained in § 1.705-2 of 26 CFR part 1 to address remaining issues that Treasury and the IRS considered during the development of the final regulations.

These proposed regulations provide guidance in situations in which a corporation owns a direct or indirect interest in a partnership that owns stock in that corporation, the partnership distributes money or other property to another partner and that partner recognizes gain on the distribution during a year in which the partnership does not have an election under section 754 in effect, and the partnership subsequently sells or exchanges the stock. For reasons similar to those explained in the preamble of the final regulations, in those situations it may be inconsistent with the intent of sections 705 and 1032 to increase the basis of the corporation's partnership interest by the full amount of any gain resulting from the partnership's sale or exchange of the stock which is not recognized by the corporation under section 1032.

Accordingly, the proposed regulations revise the purpose statement of § 1.705-2(a) to take into account situations involving such partnership distributions. The proposed regulations provide a specific rule implementing the revised purpose in single partnership cases. The proposed regulations also revise § 1.705-2(c) to clarify that the tiered partnerships rule applies to situations involving such partnership distributions.

In addition, the proposed regulations clarify that references in the regulations to stock of a corporate partner include any position in stock of a corporate partner to which section 1032 applies.

The regulations are proposed to apply to sales or exchanges of stock occurring after March 29, 2002.

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) that are timely submitted to the IRS. The IRS and the Treasury Department request comments on the clarity of the proposed rule and how it may be made easier to understand. All comments will be available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register .

The principal author of these proposed regulations is Barbara MacMillan of the Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, personnel from other offices of the IRS and the Treasury Department participated in their development.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

The public meetings will be held on the following dates and locations:

The public meetings will begin at 9:00 a.m. and end after the last speaker appears; and in any event, not later than 5:00 p.m. each day.

Our asbestos regulations date to 1967 and are based on the former U.S. Bureau of Mines standard of 5 mppcf (million particles per cubic foot of air). In 1969, the Bureau proposed and finalized a 2 mppcf and 12 fibers/ml (milliliter) standard. In 1970, the Bureau proposed to lower the limit to 5 fibers/ml, which was promulgated in 1974. We issued our current standard of 2 fibers/cc (cubic centimeter) in 1976 for coal mining and 2 fiber/ml in 1978 for metal and nonmetal mining. In 1989, we proposed as part of our Air Quality rulemaking to lower the PEL for asbestos to 0.2 fibers/cc (cubic centimeter), in line with then-current levels promulgated by the Occupational Safety and Health Administration (OSHA) in its Air Contaminants rulemaking. However, an appeals court decision invalidated OSHA's generic rulemaking approach, which had grouped categories of substances with similar properties under a single rulemaking. The Court ruled that the PEL for each substance must be supported by substantial scientific evidence of significant risk of material impairment of health, as if each substance were the subject of a separate substance-specific rule. Since we used an approach similar to OSHA's in our Air Quality proposed rule, we believed our rule would be subject to similar legal scrutiny. For this and other reasons, the air contaminants portion of the Air Quality proposed rule has not been finalized.

In 1994, OSHA promulgated a revised substance-specific asbestos standard that lowered the PEL and the short-term exposure limit to an eight (8) hour time-weighted average limit of 0.1 f/cc of air and to 1.0 f/cc as averaged over a sampling period of thirty (30) minutes. These lowered limits reflected scientific evidence of increased asbestos-related disease risk to asbestos-exposed workers.

MSHA's existing rules at 30 CFR 56.5001(b) and 57.5001(b) states:

Asbestos is also covered in an existing coal rule for surface coal mines and surface work areas of underground coal mines under 30 CFR 71.702. The rule states:

In 1980, we requested that the National Institute for Occupational Safety and Health (NIOSH) investigate health problems at vermiculite operations, including one in Libby, Montana. The results of the NIOSH study were published in 1986 and indicated very high occupational exposure prior to 1974 at the Libby operation. The highest exposures were in the mill. In 1974, the mine began to use a wet process to concentrate vermiculite in the mill, and exposures dropped markedly. The study also pointed out an increased risk of lung cancer among the miners.

In November 1999, a Seattle newspaper published a series of articles on the unusually high incidence of asbestos-related illnesses and fatalities among individuals who had lived in Libby, Montana. The miners employed at the vermiculite mine in Libby, which produced approximately 89 percent of the world's supply of vermiculite from 1924 until 1991, were exposed to asbestos through the processing of ore and inadvertently carried the dust home on their clothes and in their personal vehicles, thereby continuing to expose themselves and family members. Because MSHA had jurisdiction over the mine, the OIG undertook an evaluation of our role in the Libby situation.

The findings and recommendations of the OIG were published in a report dated March 22, 2001. The OIG found that MSHA had conducted regular inspections and personal exposure sampling at the Libby mine. The OIG concluded: “we do not believe that more inspections or sampling would have prevented the current situation in Libby.” The report made several recommendations to MSHA, three of which would require rulemaking. The OIG recommended that MSHA: (1) Lower the existing PEL to a more protective level; (2) use a more sensitive method, Transmission Electron Microscopy (TEM), to quantify fibers in our samples, rather than the Phase Contrast Microscopy (PCM) method currently used; and (3) address take-home contamination from asbestos.

A finding of OSHA's 1984 risk assessment was that lowering the TWA PEL from 2 f/cc to 0.2 f/cc reduced the asbestos cancer mortality risk from lifetime exposure from 64 to 6.7 deaths per 1,000 exposed workers, respectively. OSHA estimated that the incidence of asbestosis would be 5 cases per 1,000 workers exposed for a working lifetime under the TWA PEL of 0.2 f/cc. In 1994, OSHA promulgated a revised substance-specific standard that lowered the asbestos PEL to an eight (8) hour time-weighted average limit of 0.1 f/cc of air. It also lowered the short-term exposure limit to 1.0 f/cc as averaged over a sampling period of thirty (30) minutes. These lowered limits reflected scientific evidence of significant, asbestos-related disease risk at existing exposure levels. OSHA's risk assessment also showed that reducing exposure to 0.1 f/cc would further reduce, but not eliminate, significant risk. The excess cancer risk at that level would be reduced to a lifetime risk of 3.4 per 1,000 workers. These data indicate that if we adopt OSHA's asbestos PEL, the level of risk of asbestos-related diseases would be reduced substantially.

At least two methods are generally used to analyze asbestos in air samples: Phase Contrast Microscopy (PCM) and Transmission Electron Microscopy (TEM). MSHA uses the PCM method. A difference between the two methods is the level of magnification available to identify and count fibers. The PCM method magnifies fibers between 400 and 450 fold whereas the TEM method magnifies fibers 20,000 fold or greater. This increased magnification allows for the mineralogical identification of the fiber and allows a more accurate count of asbestos fibers for purposes of evaluating compliance with the PEL. OSHA uses PCM in their method ID-160 to measure asbestos in air. The NIOSH Manual of Analytical Methods (NMAM) includes asbestos methods 7400 and 7402. Method 7400 is a PCM procedure, equivalent to the OSHA methods. Method 7402 uses TEM to identify fibers. The OIG recommended that MSHA use TEM to analyze asbestos samples.

Workers can carry hazardous substances home from work on their clothes, bodies, tools, and other items. They can unknowingly expose themselves and their families to these substances, causing various health effects. In our 1989 Air Quality proposed rule, we addressed take-home contamination. As proposed, miners would have been required to wear protective clothing and other personal protective equipment before entering areas containing asbestos. They would have also been required to remove their protective clothing and store them in adequate containers to be disposed of or decontaminated by the operator. This is a common practice when workers are exposed to particularly hazardous materials, such as carcinogens, in carrying out their regular job duties. The OIG recommended that similar requirements be incorporated into a new asbestos rule. OSHA, NIOSH, MSHA, and the Department of Labor OIG have addressed the issue of take-home contamination.

The OSHA asbestos standards address protective work clothing and equipment ( i.e., provision and use; removal and storage; cleaning and replacement) and hygiene facilities and practices ( i.e., change rooms; showers; lunchrooms) to prevent take-home contamination [OSHA: 29 CFR 1910.1001 and 29 CFR 1926.58].

The Workers' Family Protection Act of 1992 (Public Law 102-522, 29 U.S.C. 671a) directed NIOSH to study contamination of workers' homes by hazardous substances (including asbestos) transported from the workplace [NIOSH: “Protect Your Family: Reduce Contamination at Home.” DHHS (NIOSH) Publication No. 97-125. NIOSH, Cincinnati, OH (1997)]. The NIOSH study documented cases of home contamination from 28 countries and 36 states in the United States. Reported cases covered a wide variety of materials (including asbestos), industries, and occupations.

NIOSH discussed the prevention of take-home contamination from asbestos [NIOSH (1997)]. The means by which hazardous substances (including asbestos) have reached workers' homes and families include the following: work clothing; tools and equipment; other items taken home from work; the worker's body; cottage industries ( i.e., work performed at home); and family visits to the workplace. Asbestos reaching workers' homes has occurred worldwide, resulting in all forms of asbestos disease among workers' family members, including over 100 identified deaths from mesothelioma in the United States.

Our 1989 proposed rule on air quality delineated provisions for the use of protective clothing and equipment and hygiene facilities and practices to minimize take-home contamination from asbestos [54 FR 35760, August 29, 1989]. Due to the long-term health risks, carcinogens like asbestos warrant special safety requirements. Under the proposed rule, miners would have had to wear full-body protective clothing ( e.g., smocks, coveralls, or long-sleeved shirts and pants and other personal protective equipment) before entering an area in which asbestos-containing ore or material were processed or handled. Upon exiting such areas, miners would also have been required to remove their protective clothing and equipment and have them stored in impervious ( i.e., air-tight) containers, which would either be disposed of or decontaminated by the employer. Finally, miners would have had to thoroughly cleanse themselves and shower upon leaving at the end of the workday. NIOSH stated that these measures are effective in reducing or eliminating take-home contamination  1 .

The Department of Labor OIG supported the development and implementation of special safety requirements ( e.g., availability, training, and proper use of personal protective clothing and equipment; appropriate storage, disposal, and decontamination of personal protective clothing and equipment; suitable hygiene facilities and practices) for asbestos and vermiculite mining and milling [USDOL: Evaluation of MSHA's Handling of Inspections at the W.R. Grace & Company Mine in Libby, Montana. Report No. 2E-06-620-0002, March 22, 2001. USDOL, Office of the Inspector General, Office of Analysis, Complaints and Evaluations, Washington, DC (2001).]

Recently, we adopted new sampling techniques and have increased the scope of sampling for airborne asbestos fibers at mines in an attempt to better determine miners' exposure levels to asbestos. Our efforts have included taking samples at all existing vermiculite, taconite, talc, and other mines to determine whether asbestos is present and at what levels. Since the Spring of 2000, we have taken almost 900 samples at more than 40 operations employing more than 4,000 miners. A preliminary review and analysis by the Agency indicate few exposures above the OSHA 8-hr TWA of 0.1 f/cc occurred during the sampling period. A final report on the sampling results will be made public as soon as it is available by placing it on our Web site at http://www.msha.gov, under the link to Special Initiatives, Asbestos, a single source page. Also, the report will be made part of this rulemaking record.

During those sampling events, we discussed with miners and mine operators the potential hazards of asbestos and the types of preventive measures that could be implemented to reduce exposures. We are encouraging mine operators to comply with the OSHA asbestos PEL of 0.1 f/cc. Our current 8 hour PEL is 20-fold higher than OSHA's. Our intent in using this approach is to educate operators to recognize that a “standard of care” based on lower exposure will reduce the potential for illness and liability.

We are assessing both the costs and benefits of intended regulations in accordance with Executive Order 12866. Under the Executive Order, we are to base decisions on the best reasonably obtainable scientific, technical, economic, and other data and information concerning the need for and the consequences of the regulations. We are seeking information and comment on the benefits and costs related to the issues addressed in this ANPRM.

We are seeking any supporting information or data that would help us evaluate whether to lower our asbestos PEL, to revise existing PCM or TEM methods and criteria specifically for the mining industry, to implement safeguards to limit take-home exposures, and the likely impact on benefits and costs of such rulemaking actions. In particular, we encourage the public to respond to the questions posed below.

Please be as specific as possible in your responses to the questions and in suggesting alternatives. When you comment, we request that you include the rationale for the comment rather than a short “yes” or “no” answer. Please also include specific examples and impact estimates where possible to support your rationale. This will help us to effectively evaluate and analyze your comments.

We are considering rulemaking to lower both the eight (8) hour time-weighted average and the short-term exposure limits, and request comments on the most appropriate fiber concentrations to designate in light of their health risk and their technological and economic feasibility.

We seek information, data, and comments on the following:

a. What exposure limit would provide the appropriate level of protection to exposed miners? Would adopting the OSHA limits afford sufficient protection to miners?

b. MSHA's recent field sampling data show that none of the samples collected exceed OSHA's 8 hour time weighted average of 0.1 f/cc when analyzed using the TEM method. Considering the low fiber levels observed, what would be an appropriate agency action?

We are considering the use of TEM rather than PCM to analyze fiber samples that may contain asbestos. We seek information, data, and comment on the following:

c. What is the advantage for MSHA to use TEM to initially analyze airborne fibers collected on all filters?

d. What is the availability and cost of commercial TEM analysis services?

e. Should we measure PEL compliance using TEM?

f. Are there studies which correlate asbestos exposure determined by TEM with incidence of asbestos disease?

g. Are there data comparing PCM to TEM fiber counts from the same filter for the mine environment?

h. What method is most appropriate for MSHA to use ( e.g., EPA, ASTM, OSHA, or NIOSH) to analyze bulk samples for asbestos in the mining industry?

We are also considering methods of reducing take-home contamination from asbestos. We specifically request information, data, and comments on the following:

i. How and/or should MSHA require operators to address take-home contamination from asbestos?

j. How should MSHA asbestos regulations provide for any special needs of small mine operators?

k. What technical assistance ( e.g., step-by-step instructions, model programs, certification of private programs) should we provide to mine operators when they develop a program to reduce take-home contamination from asbestos?

l. What types of protective clothing are miners currently using when working in areas where asbestos is present?

m. What types of preventive measures ( e.g., appropriate disposal of contaminated clothing; hand and face washing; showering) are currently in use when miners leave areas where asbestos may be present?

We are reviewing the adequacy of our field sampling methods for asbestos and how sampling results are being used, by both MSHA and operators, to protect miners. We specifically request information, data, and comments on the following:

n. How can mineral dust interference be most accurately removed from the samples?

o. Does our current field sampling meet the needs of the mining community?

p. How should mine operators ensure that miners are aware of potential asbestos hazards at the mine site and provide adequate protection?

q. What educational and technical assistance (e.g., step-by-step instructions, model programs) should we provide to mine operators when we develop a program to sample and analyze for asbestos?

r. What other factors, circumstances, or measures should MSHA consider when engineering controls can not reduce asbestos exposure below the PEL?

We anticipate that the benefits of a rulemaking addressing measurement and control of asbestos would be the reduction or elimination of asbestos-related diseases (cancers and asbestosis) arising from exposure to asbestos. We anticipate there will be operator and agency costs associated with lowering our asbestos PEL, reducing take-home contamination, and using TEM to analyze fiber samples.

We request information, data, and comments on the following:

s. How many miners are currently being exposed to asbestos?

t. What engineering controls and personal protective equipment are currently being used to protect miners from exposure to asbestos and to prevent take-home contamination? What are the costs of these engineering controls and personal protective equipment?

u. What would be the benefits of a rule that would reduce exposure to asbestos?

v. What would be the costs of such a rule?

On May 18, 1998, FinCEN issued a notice of proposed rulemaking, 63 FR 27230 (the “Notice”), under the terms of the Bank Secrecy Act, 1 concerning the reporting by casinos  2 of suspicious transactions. 3 The comment period for the Notice ended on September 15, 1998.

FinCEN received 18 comment letters on the Notice. In addition, FinCEN held four public meetings on the Notice during the comment period. The meetings were held in New Orleans, Louisiana on July 14, 1998; Chicago, Illinois on July 23, 1998; Scottsdale, Arizona on August 6, 1998; and New York City, New York on September 9, 1998.

One of the primary issues raised in the written comments and public meetings was the nature of the proposed standard for reporting of suspicious transactions. As explained more fully below, FinCEN has determined to reopen the comment period with respect to that issue.

The rule proposed in the Notice would require a casino to report a transaction to the Treasury Department, if that transaction is:

The proposed reporting standard (except for differing dollar thresholds) is the same as that adopted by the Treasury Department for suspicious transaction reporting by depository institutions, money transmitters, and issuers, sellers, and redeemers of money orders and traveler's checks. See 31 CFR 103.18(a)(2), relating to suspicious activity reporting by banks, and 31 CFR 103.20(a)(2), relating to suspicious activity reporting by certain money services businesses. 5 It is also the same reporting standard that the Treasury Department proposed in a Notice of Proposed Rulemaking relating to extension of the requirement to report suspicious activity to brokers and dealers in securities. 6

Commenters on the Notice have argued strongly, however, that requiring reporting if a casino “has reason to suspect” that a transaction falls into one of the three categories of reportable transaction, 7 is inappropriate, because the “fast-paced, entertainment-filled environment” at casinos is vastly different from the environment of most other financial institutions. They assert that customers in a casino cannot be relied upon to act in ways consistent with any particular norm of financial transaction, but may be motivated in the way they transfer and wager funds by factors such as gambling strategies, intuition, or gambling superstitions. The wider range of motivations reflected in the actions of casino customers, in turn, will multiply the difficulties that casinos face in seeking to determine which transactions are truly suspicious. The commenters thus assert that casinos should be subject to a standard in which reporting of suspicious activities is required only if a casino “knows, suspects, or, in the judgment of the casino, has reason to suspect” that a transaction is suspicious. (Emphasis added.)  8

FinCEN is concerned that the commenters may have misperceived the meaning of the reporting standard proposed in the Notice. A “reason to suspect” standard takes as its baseline the practical experience and expertise of industry officials in evaluating risks in the enterprise involved. Financial institutions (and different institutions within a particular segment of the financial industry) operate in different ways and under different conditions, and the self-adjusting quality of a “reason to suspect” standard is what makes that standard sufficiently flexible to apply, for example, to international or money center banks, community banks, non-bank money transmitters, and sellers of money orders.

Casino operations, themselves, have different parts. Transactions that take place at a casino's cage—where chips and tokens are purchased or redeemed, customers' deposit and credit accounts are opened or settled, checks are purchased or cashed, and funds transfers are initiated or received—are little different (other than for the use of gambling chips and tokens) than the sorts of transactions that can take place at a teller's window in a depository institution. Transactions on a gaming floor (such as wagering of currency or purchasing of currency for chips), take place in a far different environment. But a “reason to suspect” standard adjusts, by its very nature, to the different sorts of activities and the different environments in which financial transactions take place, whether within one financial institution or as between financial institutions. Whether a casino has reason to suspect that a transaction or series of transactions is suspicious under the terms of the rule may, and likely will, involve far different considerations for wagering activity (for precisely the reasons the commenters cite) than for transactions at a casino cage or a slot booth. But that does not mean that it is inappropriate to ask that an institution meet such a standard in evaluating the (different) relevant facts.

Commenters also argued that language protecting a casino's judgment was absolutely necessary to bar after-the-fact determinations by enforcement officials about a casino's decision not to report a transaction. They suggested that casinos would find it necessary, in order to defend their judgment, to document their reasons for not filing a suspicious activity report with respect to transactions that meet the reporting threshold. 9

Again, FinCEN believes that the commenters may have misperceived the “reason to suspect” standard. In adopting the rule requiring the reporting of suspicious transactions by depository institutions, FinCEN stated that it anticipated that, “in general the area for inquiry in the case of failure to report will center upon both the facts of the particular failure and what the failure indicates about the bank's compliance systems and attention to the Bank Secrecy Act rules in general.” 61 FR 4326, 4330 (February 5, 1996). The same logic applies to all categories of financial institutions.

The determinative question, in all cases, is whether a “reason to suspect” existed at the time and in the circumstances, in which the transaction occurred whenever and by whomever the question is asked. 10 By way of contrast, the standard proposed by the commenters would appear to leave the decision whether to file a suspicious activity report entirely to the discretion of the casino and to preclude altogether review of the casino's compliance with any reporting requirement, unless the government were able to show that the casino's employees possessed actual knowledge or suspicion that they were witnessing or participating in money laundering or structuring of transactions, or in other types of financial crime.

The proposed rule asks a casino to exercise due diligence in evaluating the facts before the institution and seeking to identify those transactions that should appear suspicious in light of the particular circumstances and industry experience. 11 The corresponding rules ask the same of banks and money services businesses.

Casinos understand their business and the nature of the gaming industry. The extent to which casinos carefully monitor gaming activities for loss-protection and other business purposes is well documented. Within that context, a duty to investigate potentially suspicious activity further—to exercise due diligence—would appear no more or less difficult for a casino than for a bank or money transmitter.

As a final note, the rule that Treasury ultimately promulgates requiring casinos to file suspicious transaction reports will apply to casinos located in Nevada. Since May 1985, casinos located in Nevada have been exempt from certain Bank Secrecy Act requirements pursuant to a memorandum of agreement between the Treasury Department and the State of Nevada on behalf of Nevada casinos under 31 CFR 103.45(c)(1) (subsequently renumbered as 103.55).

Our goal is to publish a final rule in early 2002 with an effective date of April 1, 2002. In keeping with our intention to adopt a rate structure more consistent with the civilian health insurance industry practice, this rule proposes an itemized methodology for outpatient services. A combination of our current rate methodology, based on cost, and new methodology based on CHAMPUS payment rates will be used.

Due to the extensive system and practices required in over 500 facilities, a phased-in approach to our methodology will be applied. The current inpatient methodology of an all-inclusive DRG-based rate (including professional charges) will continue to be utilized for FY 02. In FY 03, we will begin to bill separately for hospital charges (using a DRG-based schedule of costs) and professional charges (using the CPT-4 based CHAMPUS Maximum Allowable Charges (CMAC) rates). Our program changes in FY 02 will focus on outpatient services.

Our analysis indicates that the transition from reasonable costs to reasonable charges will most likely not increase the amount of money collected for the services provided. We undertook an analysis comparing our current rate structure based on cost data with the charges based on the CMAC rates. An initial sample of 500 patient encounters was obtained from Military Treatment Facilities across all three Services from various regions. These patient encounters were priced with the National average CMAC pricing scale as well as the current all-inclusive methodology. The average of both pricing schemes found the totals to be within a ten-dollar range of each other. Thus, we anticipate billing at approximately the same aggregate level. The benefit of the change in methodology is that each bill will be much more appropriate for the actual services provided to the patient and will be itemized in the manner to which the health insurance industry is accustomed. Therefore, although it is not based on actual DoD costs (because our cost accounting systems do not have patient level specification), we believe adoption of the CMAC rates is more representative of actual costs specific to the services provided to a patient than is our current aggregated clinic visit rate.

The format of line-item charges will more closely resemble that currently used by facilities of the Department of Veteran's Affairs. Under this rule, DoD facilities will bill for the majority of outpatient care utilizing the Health Care Common Procedure Coding System with individual charges associated with these codes. Third party payers who receive claims from both entities, will now see greater similarity between the DoD and VA. However, the rates and business rules utilized by these two agencies will vary, with the VA's usual and customary rate based on independent calculation, and the DoD's rate based on the long-established CHAMPUS methodology.

This approach is also consistent with the newly enacted 10 U.S.C. 1079b, which reaffirms the authority of the Secretary of Defense to “implement procedures under which a military medical treatment facility may charge civilians who are not covered beneficiaries (or their insurers) fees representing the costs, as determined by the Secretary, of trauma and other medical care provided to such civilians.” It is the Secretary's determination that the CHAMPUS payment rates best represent the costs of providing care to all patients in Military Treatment Facilities.

We have reviewed this proposed rule in accordance with the provisions of Executive Order 12866, the Congressional Review of Agency Rulemaking Act (5 U.S.C. 801-808), and the Regulatory Flexibility Act (5 U.S.C. 601-612).

This rule has been designated as significant rule and has been reviewed by the Office Management and Budget as required under the provisions of Executive Order 12866. It is not an economically significant action or a major rule, and it would not have a significant impact on a substantial number of small entities.

This rule does this rule affect matter addressed by the Unfunded Mandates Reform Act (Pub. L. 104-4) or Executive Order 13132 concerning Federalism. Also, this proposed rule does not involve new information collection requirements under the Paperwork Reduction Act (44 U.S.C. chapter 35). This proposed rule will align DoD closer to civilian industry practices for health care billing and collections; it will have no significant economic or regulatory impact on any entity.

This is a proposed rule. Public comments are invited.

For reasons set forth in the preamble, the Department of Defense proposes to amend 32 CFR Part 220 as follows:

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-02-013), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting, but you may submit a request for a meeting by writing to Coast Guard Group/MSO Long Island Sound at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

The Coast Guard proposes to establish a temporary safety zone for the Groton Long Point Yacht Club Fireworks Display off Groton Long Point in Long Island Sound. The safety zone encompasses all waters of Long Island Sound within a 600-foot radius of approximate position, 41°18′05″ N, 072°02′08″ W (NAD 1983). The proposed safety zone is intended to protect boaters from the hazards associated with fireworks launched from a barge in the area. This safety zone covers the minimum area needed and imposes the minimum restrictions necessary to ensure the protection of all vessels.

The proposed safety zone is for the Groton Long Point Yacht Club Fireworks Display held off Groton Long Point, Groton, CT. This event will be held on July 20, 2002. In the event of inclement weather, the event will be held on July 21, 2001. The proposed safety zone will be in effect from 9:15 p.m. until 10:30 p.m. on the date of the event. The proposed safety zone encompasses all waters of Long Island Sound within a 600-foot radius of approximate position 41°18′05″ N, 071°02′08″ W (NAD 1983).

Public notifications will be made prior to the event via the Local Notice to Mariners and Marine Information Broadcasts. Marine traffic will be allowed to transit around the safety zone at all times. Vessels will not be precluded from mooring at or getting underway from recreational or commercial piers in the vicinity of the zone. No vessel may enter the safety zone without permission from the Captain of the Port, Long Island Sound.

This proposed 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 this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This proposed safety zone would temporarily close a portion of Long Island Sound to vessel traffic. However, the impact of this regulation is expected to be minimal for the following reasons: the event is of limited duration; vessels are not precluded from getting underway, or mooring at, public or private facilities in the vicinity of the event; advance advisories will be made to the maritime community; and marine traffic may still transit around the zone during the event.

The size of this safety zone was determined using National Fire Protection Association standards and the Captain of the Port Long Island Sound Standing Orders for 6-inch mortars fired from a barge combined with the Coast Guard's knowledge of tide and current conditions in the area.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Long Island Sound during the time this zone is activated. This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons: the event is of limited duration; vessels are not precluded from getting underway, or mooring at, public or private facilities in the vicinity of the event; advance advisories will be made to the maritime community; and marine traffic may still transit around the zone during the event.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pubic Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Boatswain's Mate Second Class (BM2) Ryan Peebles, Operations Petty Officer, Coast Guard Group/MSO Long Island Sound (203) 468-4408.

This proposed rule would call 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 proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

To help the Coast Guard establish regular and meaningful consultation and collaboration with Indian and Alaskan Native tribes, we published a notice in the Federal Register (66 FR 36361, July 11, 2001) requesting comments on how to best carry out the Order. We invite your comments on how this proposed rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

We have analyzed this proposed 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 considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1D, this proposed rule is categorically excluded from further environmental documentation. This proposed rule fits paragraph 34(g) as it establishes a safety zone. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

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

In 1990 a Winter Use Plan was completed for Yellowstone National Park (YNP), Grand Teton National Park (GTNP), and the John D. Rockefeller, Jr., Memorial Parkway (the Parkway). In 1994 the National Park Service (NPS) and U.S. Forest Service (USFS) staff began work on a coordinated interagency report on Winter Visitor Use Management. This effort was in response to an earlier than expected increase in winter use. The 1990 Winter Use Plan projected 143,000 visitors for the year 2000. Winter visitors to YNP and GTNP in 1992-93 exceeded this estimate. Total visitors to YNP and GTNP in that year were, respectively, 142,744 and 128,159.

In 1994 the Greater Yellowstone Coordinating Committee (GYCC), composed of National Park Service Superintendents and National Forest Supervisors within the Greater Yellowstone Area (GYA), recognized the trend toward increasing winter use and identified concerns relating that use. The GYCC chartered an interagency study team to collect information relative to these concerns and perform an analysis of winter use in the GYA. This analysis, Winter Visitor Use Management: a Multi-agency Assessment, was drafted in 1997 and approved by the GYCC for final publication in 1999. The assessment identifies desired conditions for the GYA, current areas of conflict, issues and concerns, and possible ways to address them. The final document considered and incorporated many comments from the general public, interest groups, and local and state governments surrounding public lands in the GYA.

In May 1997, the Fund for Animals filed a suit against the National Park Service (NPS). The suit alleged that the NPS had failed to conduct adequate analysis under the National Environmental Policy Act (NEPA) when developing its winter use plan for the areas, failed to consult with the U.S. Fish and Wildlife Service on the effects of winter use on threatened and endangered species, and failed to evaluate the effects of trail grooming on wildlife and other park resources. In October 1997, the Department of Interior (DOI) and the plaintiffs reached a settlement agreement. Under the agreement, the NPS agreed, in part, to prepare an environmental impact statement (EIS) for new winter use plans for the parks and the parkway. This settlement provision was satisfied with publication and distribution of the final environmental impact statement (FEIS) on October 10, 2000. A record of decision (ROD) was signed by Intermountain Regional Director Karen Wade on November 22, 2000, and subsequently distributed to interested and affected parties. The ROD selected FEIS Alternative G, which eliminates both snowmobile and snowplane use from the parks by the winter of 2003-2004, and provides access via an NPS-managed, mass-transit snowcoach system. The decision was based on a finding that existing snowmobile and snowplane use impairs park resources and values, thus violating the statutory mandate of the NPS.

Implementing aspects of this decision relating to designation of routes available for over-snow motorized access required a rule change for each park unit in question. Following publication of a proposed rule and the subsequent public comment period, a final rule was published in the Federal Register on January 22, 2001. The rule became effective on April 22, 2001. Full implementation of the plan and the rule changes do not occur until the winter of 2003-2004.

The Secretary of the Interior and others in the Department of the Interior and the National Park Service were named as defendants in a lawsuit brought by the International Snowmobile Manufacturers Association and several groups and individuals. The State of Wyoming intervened on behalf of the plaintiffs. The lawsuit asked for the decision, as reflected in the ROD and final rule, to be set aside. The lawsuit alleged that NPS failed to give legally mandated consideration to all of the alternatives, made political decisions outside the public process and contradictory to evidence and data, failed to give the public appropriate notice and participation, failed to adequately consider and use the proposals and expertise of the Cooperating Agencies, failed to properly interpret and implement the Parks' purpose, discriminated against disabled visitors, and improperly adopted implementing regulations. A settlement was reached on June 29, 2001 and, through its terms, NPS is acting as lead agency to prepare a Supplemental Environmental Impact Statement (SEIS). In accordance with the settlement, the SEIS will incorporate “any significant new or additional information or data submitted with respect to a winter use plan.” Additionally, the NPS will consider new information and data submitted regarding new snowmobile technologies. A Notice of Intent to prepare a Supplemental Environmental Impact Statement was published in the Federal Register on July 27, 2001 (66 FR 39197).

As a term of the settlement, the State of Wyoming was designated as a “cooperating agency” for the development of the Supplemental EIS. Subsequent to the settlement, all other agencies that signed cooperating agency agreements during the earlier EIS process agreed to be cooperating agencies for the SEIS. These agencies are: the U.S. Forest Service, the States of Montana and Idaho, Fremont County Idaho, Gallatin and Park Counties in Montana, and Park and Teton Counties in Wyoming. In addition, the Environmental Protection Agency (EPA) was invited to be a new cooperating agency in this effort.

The NPS determined that the preparation of a Supplemental EIS will further the purposes of the National Environmental Policy Act, which includes soliciting more public comments on the earlier decision and alternatives and considering new information not available at the time of the earlier decision. The purpose of this rule is to postpone the implementation of existing snowmobile regulations in Yellowstone National Park, the John D. Rockefeller, Jr., Memorial Parkway, and Grand Teton National Park for one year because the NPS has not had sufficient time to plan for and implement the NPS-managed, mass-transit, snowcoach-only system outlined in the existing Winter Use Plan and to complete the Supplemental EIS.

The following proposed rule changes are common to all three parks. The use of snowmobiles will be extended until the end of the 2003-2004 winter use season. The implementation of public use limits set to go into effect in the 2002-2003 winter use season will be delayed until the winter use season 2003-2004. The designated routes and hours of operation for snowmobiles during the winter use season of 2002-2003 will also be used for the 2003-2004 winter use season.

In Yellowstone National Park the requirement that snowmobiles be accompanied by an NPS permitted guide will be implemented during the 2003-2004 winter use season. The use of snowmobiles on the frozen surface of Jackson Lake in Grand Teton National Park will be permitted until the end of the 2002-2003 winter use season.

Additional regulations concerning licensing, hours of operation and snowplane use were effective for the winter use season 2001-2002. The existing regulations prohibit the use of snowplanes in Grand Teton National Park after the winter season of 2001-2002. Those provisions are not addressed in, nor affected by, the supplemental EIS process and therefore it is appropriate they take affect as they appear in the existing regulations. No public comment is being solicited on these provisions.

This document is a significant rule and has been reviewed by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

This rule would delay any adverse economic impact from the existing rule for one year, there may be economic benefits resulting from the proposed extension. In the Draft Supplemental Environmental Impact Statement (DSEIS), the NPS estimated that in 2003-2004, the economic outputs and employment impacts of implementing actions under this rule are: in the five-county, greater Yellowstone area, an estimated loss of 15.9 to 21.1 million dollars; in the three-state area surrounding the parks, a variance of a possible 18.4 million dollar loss to a 7.0 million dollar increase. Increased winter visitation from new visitors to the park under existing regulations could substantially offset estimated losses and employment reductions from current visitors.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Implementing actions under this rule will not interfere with other agencies or local government plans, policies, or controls. This is an agency specific change.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

This rule will only postpone the prohibition on snowmobiles for one year within specific national parks. No grants or other forms of monetary supplements are involved.

(4) This rule may raise novel legal or policy issues.

The issue of prohibiting snowmobiles or allowing their continued use has generated local as well as national interest on the subject in the greater Yellowstone area. Previously, tens of thousands of public comments were received and analyzed in the development of the FEIS, Winter Use Management Plan, and existing regulations.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

After considering the economic impacts of the delay rule on small entities, NPS concludes the delay rule will mitigate the impacts on small businesses during the winters of 2002-2003 and 2003-2004. The NPS projects higher total levels of revenue for firms providing unguided and guided snowmobile rentals and snowcoach tours in those winters.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million or more.

This rule would delay any adverse economic impact from the existing rule for one year, there may be economic benefits resulting from the proposed extension. In the Draft Supplemental Environmental Impact Statement (DSEIS), the NPS estimated that in 2003-2004, the economic outputs and employment impacts of implementing actions under this rule are: in the five-county, greater Yellowstone area, an estimated loss of 15.9 to 21.1 million dollars; in the three-state area surrounding the parks, a variance of a possible 18.4 million dollar loss to a 7.0 million dollar increase. Increased winter visitation from new visitors to the park under existing regulations could substantially offset estimated losses and employment reductions from current visitors.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

Delaying the implementation of current snowmobile regulations for one year will have little effect on costs or prices for consumers, individual industries or any government agency.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rulemaking has no effect on methods of manufacturing or production and specifically influences only the Wyoming region, not national or U.S. based enterprises.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector.

This rule postpones the implementation of existing snowmobile regulations for one year. It imposes no other requirements on other agencies, governments, or the private sector.

In accordance with Executive Order 12630, the rule does not have significant takings implications.

This rule proposes to delay the implementation of existing snowmobile regulation for one year. Private property within the boundaries of those parks will still be afforded access during the winter use season. No other property is affected.

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This proposed rule effects use by the public of NPS administered lands. It has no outside effects on other areas and only address a portion of the use within parks.

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

This regulation does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB form 83-I is not required.

In 2000, NPS completed a Final Environmental Impact Statement and issued a Record of Decision. That Record of Decision was the basis for the existing rule. A Draft Supplemental Environmental Impact Statement (DSEIS) has been prepared to reconsider the Record of Decision. A copy of the FEIS or DSEIS is available by contacting the Superintendent of Yellowstone or Grand Teton National Parks or on the World Wide Web at www.nps.gov/grte/winteruse/intro.htm.

In accordance with the President's memorandum of April 29, 1994, “Government to Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2:

We have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects.

Numerous tribes surrounding the greater Yellowstone area were consulted in the development of the Winter Use Plan and FEIS. The main concerns expressed by the tribes were the affects on wildlife by snowmobiles. This rule has no effect on tribal lands or trusts.

Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to read if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading; for example § 7.22 Grand Teton National Park.) (5) Is the description of the rule in the “Supplementary Information” section of the preamble helpful in understanding the proposed rule? What else could we do to make the rule easier to understand?

Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW, Washington, DC 20240. You may also email the comments to this address: Exsec@ios.doi.gov .

Drafting Information: The principal contributors to this proposed rule are Robert J. Maguire, North District Ranger, Grand Teton National Park; Kym A. Hall, NPS Regulations Program Manager; Debra Hecox, Attorney-Advisor, Solicitor's Office; Bob Rossman, Outdoor Recreation Planner, Grand Teton National Park; Sarah Creachbaum, Outdoor Recreation Planner, Grand Teton National Park; and John Sacklin, Supervisory Planner, Yellowstone National Park.

Public Participation: If you wish to comment, you may submit your comments by any one of several methods. You may mail your comments to Robert J. Maguire, Winter Use Regulations, National Park Service, P.O. Box 124, Moose, WY 83012. You may also comment via the Internet to grte_winter_regs@nps.gov . Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Finally, you may hand deliver comments to Robert J. Maguire, Grand Teton National Park, North District Office, Colter Bay, Wyoming. Our practice is to make comments, including names and addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials or organizations or businesses, available for public inspection in their entirety.

We propose to amend 36 CFR Part 7 as set forth below:

The meeting will be open to the public without advance registration. Public attendance may be limited to the space available. Members of the public may make statements during the meeting to the extent time permits. A summary of the Committee meeting will be available for public inspection and copying ten days following the meeting at the address listed in the preceding paragraph.

Comments received timely will be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, in Room C5-14-03 of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, MD, on Monday through Friday of each week from 8:30 a.m. to 4 p.m. (Phone (410) 786-7201).

Copies: To order copies of the Federal Register containing this document, send your request to: New Orders, Superintendent of Documents, PO Box 371954, Pittsburgh, PA 15250-7954. Specify the date of the issue requested and enclose a check or money order payable to the Superintendent of Documents, or enclose your Visa or Master Card number and expiration date. Credit card orders can also be placed by calling the order desk at (202) 512-1800 (or toll-free at 1-888-293-6498) or by faxing to (202) 512-2250. The cost for each copy is $9. As an alternative, you can view and photocopy the Federal Register document at most libraries designated as Federal Depository Libraries and at many other public and academic libraries throughout the country that receive the Federal Register .

This Federal Register document is also available from the Federal Register online database through GPO Access, a service of the U.S. Government Printing Office. The web site address is: http://www.access.gpo.gov/nara/index.html.

Sections 1819(a) through (e) and 1919(a) through (e) of the Social Security Act (the Act) set forth the requirements that long term care facilities must meet to participate in the Medicare and Medicaid programs, respectively. Sections 1819(f)(2) and 1919(f)(2) of the Act contain requirements for nurse aide training and competency evaluation programs (NATCEP). Sections 1819(g) and 1919(g) of the Act contain the criteria that we use to assess a facility's compliance with the requirements. These statutory provisions were mandated by the Omnibus Budget Reconciliation Act of 1987 (Pub. L. 100-203, enacted December 22, 1987). The requirements for long term care facilities are codified at 42 CFR part 483, subpart B; the nurse aide training and competency evaluation program requirements are codified at 42 CFR part 483, subpart D; and the survey, certification and enforcement procedures are codified at 42 CFR part 488, subparts E and F. Sections 1819(b)(5)(F) and 1919(b)(5)(F) of the Act and regulations at § 483.75(e) define a nurse aide as any individual furnishing nursing or nursing-related services to residents in a facility, who is not a licensed health professional, a registered dietitian, or someone who volunteers to furnish services without pay. Sections 1819(f)(2) and 1919(f)(2) of the Act set forth the requirements for approval of a nurse aide training and competency evaluation program, but do not define “nursing” or “nursing related” skills. Section 483.152 of the regulations specifies nurse aide training requirements. These include, for example, basic nursing skills, personal care skills, communication and interpersonal skills, infection control, safety and emergency procedures, mental health and social service needs, residents' rights, care of cognitively impaired residents, and basic restorative services.

Currently, there is no provision in the regulations for the use of single-task workers, such as paid feeding assistants, in nursing homes. To ensure the safety of facility residents, we require that qualified nursing staff provide assistance with eating and drinking, although there is some question whether or not all residents need medical supervision. This group of personnel includes registered nurses, licensed practical nurses, and certified nurse aides who have completed 75 hours of training. However, volunteers, who are usually family members, may also feed residents, because the law and regulations exclude volunteers from the definition of certified nurse aide.

Nursing homes in many States report a continuing shortage of certified nurse aides. Nursing homes are finding it increasingly difficult to train and retain sufficient numbers of qualified nursing staff, especially certified nurse aides. Certified nurse aides perform the majority of resident care tasks. Other employers often pay similar wages for less physically and emotionally demanding jobs. This makes it harder for nursing homes to employ enough nursing staff to perform routine nursing care and to feed residents who need minimal help or just encouragement at mealtimes. Feeding residents is often a slow process and competes with more complex tasks, such as bathing, toileting, and dressing changes, as well as urgent medical care.

For many elderly nursing home residents, physical and psychological changes often interfere with eating ability and meal consumption. Residents may need assistance with feeding if they have, for example, cognitive impairment, impaired swallowing due to muscular weakness or paralysis, a tendency to aspirate or choke, poor teeth, ill-fitting dentures or partial plates, or poor muscular or neurological control of their arms or hands, as with Parkinson's disease.

Nursing homes are caring for an aging population that has more acute clinical conditions than in the past. The result is a higher percentage of nursing home residents who need higher levels of medical care, which takes more staff time and leaves less time for routine tasks, such as ensuring that residents eat their meals and drink enough fluids.

In addition, evidence suggests that there has been a recent increase in assisted living facilities that house many individuals with minimal medical needs who previously would have been cared for in nursing homes. Both of these trends have resulted in a frailer nursing home population than previously, with residents who are more dependent on nursing staff for basic needs, such as feeding and personal care. A critical shortage of certified nurse aides in many parts of the country has resulted in a need for staff who are specially trained to help residents eat at mealtimes, to supplement, not replace certified nurse aides.

Some residents only need encouragement or minimal assistance, which does not require medical training. Properly trained nonmedical personnel could provide this type of assistance. Nurse aides and other nursing staff receive training so that they are able to feed residents with all kinds of feeding problems. A higher level of training is required of nurse aides because they need to be able to deal with complicated feeding problems. However, when there is a nurse aide shortage, it is often the case that residents without complicated feeding problems receive little or no assistance at mealtimes with eating or drinking, while the nursing staff focuses on feeding residents with complicated problems. We believe there is a place in nursing homes for the use of feeding assistants who, after proper basic training in feeding techniques and working with the elderly, are able to feed residents who do not have complicated feeding problems. It is reasonable to require that feeding assistants receive a lower level of training than a nurse aide because feeding assistants would not handle complicated feeding cases. This would allow facilities, if they choose, to train other facility employees as feeding assistants so that available staff can feed residents at mealtimes.

Because of the shortage of certified nurse aides and the increasingly complex medical needs of residents, facilities in some States have used paid feeding assistants to supplement certified nurse aides to ensure that residents take in adequate food and fluids. Generally, feeding assistants used by these facilities are part-time workers, often retired individuals, or homemakers who are available for a few hours a day. They may also be older students who come into the facility between 1 and 2 hours either at the noon or evening meal. In other facilities, staff shortages are so acute that all nonmedical employees, including the administrator of the facility, are required to complete training and help feed residents at mealtimes. Training facility personnel for functions other than their primary position is known as cross-training. There is anecdotal evidence that cross-training of personnel increases coordination and continuity of care. It also contributes to increased morale and lower staff turnover.

There is no provision in Federal regulations for the employment of nursing home workers who perform only a single task without completing 75 hours of nurse aide training. Currently, residents must be fed by a registered nurse, licensed practical nurse, or a nurse aide who has completed 75 hours of medical training and who has been certified as competent to perform all nurse aide tasks. Volunteers may also feed residents. The reason for this existing policy is to ensure that residents who cannot, or do not, feed themselves are fed by nursing staff who have medical training. This is intended to protect residents from unskilled workers who might injure a resident by not recognizing serious medical complications associated with eating.

Wisconsin and North Dakota are two States in which nursing homes have had serious difficulty hiring enough certified nurse aides and have used feeding assistants as a supplement to certified nurse aides. Other States have expressed interest in using paid feeding assistants, including Ohio, Minnesota, Florida, California, and Illinois. Florida and Illinois have both passed laws that permit the use of single task workers in their States, but they have not yet implemented the provisions.

Wisconsin nursing homes have been using single-task feeding assistants for more than 7 years. Wisconsin uses a structured, formal program that requires a facility wanting to implement a feeding assistant program to submit an application for approval by the State. The classes are taught by a registered nurse, with a registered dietitian teaching the dietary elements of the program. A facility's approved program must include the following core areas: Interpersonal communication and social interaction; Basic nursing skills (including infection control); Personal care skills (assisting with eating, hydration); Basic restorative services (assistive devices for eating); Resident rights; and special problems associated with Dementia (specialized feeding and intake problems). Participants who complete the training must demonstrate skills and pass a written test with a score of 80 percent or better. Feeding assistants are used solely for feeding residents who have no feeding complications. They are permitted to feed residents only in the dining room and operate under the direction of a registered nurse or licensed practical nurse. Feeding assistants serve to supplement care delivered by certified nurse aides, which frees up more extensively trained aides to perform more complex resident care tasks.

North Dakota has used paid feeding assistants for a number of years and has a slightly less formal program than that of Wisconsin. The residents to be fed are selected by the dietary and nursing staff. If a facility has a nurse aide training program, the training coordinator and dietitian work together to train new feeding assistants individually. After training and orientation, a new feeding assistant is assigned to one resident who needs minimal assistance. As the assistant gains skill and confidence, he or she is assigned to more residents at a meal or to a resident who requires a higher level of skill to feed. Typically, feeding assistants work only about 1 1/2 hours per day, providing assistance at either the noon or evening meal.

We are committed to ensuring that long term care residents receive the best possible care. We recognize that a shortage of certified nurse aides adversely affects resident care and prevents many residents from receiving adequate help with eating and drinking. Further, we are persuaded by the experience of States that have used paid feeding assistants, that proper training and medical direction of these feeding assistants minimizes the risk to residents, while providing substantial benefits to residents. After thoroughly considering this issue, we believe that the benefits to residents outweigh the potential risks and so we are taking steps to resolve the issue by publishing this proposed rule. We believe that a policy change to allow the use of feeding assistants can be accommodated under existing statute. There is nothing in the statute governing requirements for long term care facilities (sections 1819 and 1919 of the Act) that would preclude the use of these workers and we believe that there is no conflict with other statutory requirements.

We would provide States the flexibility to allow a facility the option to use paid feeding assistants to help residents with eating and drinking at mealtimes. In new § 483.35(h), we would specify that if a facility uses paid feeding assistants, the feeding assistants must complete a State-approved training course that meets minimum requirements. The proposed course requirements are listed in § 483.160 and would include only non-nursing-related services and items that are currently part of the nurse aide training requirements. In addition to training in proper feeding techniques and how to assist residents with eating and drinking, we would include in the training other basic skills necessary to work with elderly and disabled nursing home residents. These include communication and interpersonal skills; appropriate responses to resident behavior; safety and emergency procedures, including the Heimlich Maneuver; infection control; resident rights; and recognizing changes in patients that are inconsistent with their normal behavior, and the importance of reporting those changes to the supervisor. Some States may want to include other requirements in their training, for example, the use of assistive devices for the unique needs of the cognitively impaired. We are not, however, including these other requirements. We anticipate that this training could easily be implemented in any facility with an approved nurse aide training program because the requirements are not new. We note that these requirements are the minimum and States and facilities must use these as a baseline, but may add any others that they believe are appropriate to structure a feeding assistance program that meets their needs.

We would require that each facility maintain a record of individuals it uses as feeding assistants who have successfully completed the feeding assistance training. In keeping with other similar requirements, we would require States to require facilities to report to the States any incidents of feeding assistants who have been found to neglect or abuse a resident, or misappropriate a resident's property. The States must maintain records of all reported incidents. States are not required to maintain a formal registry, as required for nurse aides, but the intent is similar.

The facility may use paid feeding assistants to feed residents who do not have a clinical condition that would require the training of a nurse or nurse aide. It is important for the professional nursing staff in the facility to identify residents who need help eating and drinking and those who can be fed by feeding assistants. We believe that this can be established by the comprehensive assessment (§ 483.20). Often, residents need help on some days and not on others. This means that the nurse in charge may need to make feeding decisions on a daily basis. Nurses or certified nurse aides would continue to feed residents with clinical conditions that require nursing training, including for example, recurrent lung aspirations, difficulty swallowing, or those on feeding tubes or parenteral/IV feedings. All feeding assistants must work under the direct supervision of a registered nurse or licensed practical nurse. This means that a nurse is in the unit or on the floor where the feeding assistance is furnished and is immediately available to give help, if necessary. We would also revise “nurse aide” at § 483.75(e) to clarify that paid feeding assistants are not performing nursing or nursing-related tasks.

We would define “paid feeding assistant” in § 488.301, as an individual who is paid by a facility or paid under an arrangement with another agency or organization to feed residents and who meets the requirements specified in § 483.35(h). Any nonprofessional nursing home employee, including the administrator, activity staff, clerical, laundry, or housekeeping staff may be considered a feeding assistant and may feed residents at mealtimes if he or she has completed the training requirements in § 483.160.

These requirements would not apply to volunteers, including family members. Sections 1819(b)(5)(F) and 1919(b)(5)(F) of the Act exempt volunteers from the definition of “nurse aide” and nurse aide training requirements, which are more stringent than feeding requirements. Therefore, we believe that it is logical to exempt volunteers from requirements concerning feeding assistants. However, volunteers may take the training if they wish, but there is no requirement that they do so.

Feeding assistants are intended to supplement certified nurse aides, not be a substitute for certified or licensed nursing staff. Therefore, feeding assistants may not be counted toward the minimum staffing requirements in § 483.30. Facilities that choose the option to use paid feeding assistants, when consistent with State law, remain responsible for any adverse actions resulting from the use of these assistants, as with any other employee.

Under the Paperwork Reduction Act of 1995, we are required to provide 60-day notice in the Federal Register and solicit public comment before a collection of information requirement is submitted to the Office of Management and Budget (OMB) for review and approval. In order to fairly evaluate whether OMB should approve an information collection, section 3506(c)(A) of the Paperwork Reduction Act of 1995 requires that we solicit comment on the following issues:

• The need for the information collection and its usefulness in carrying out the proper functions of our agency.

• The accuracy of our estimate of the information collection burden.

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

• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.

Nursing homes in two States currently use feeding assistants. While we know of eight other States that have expressed an interest in implementing this policy, it is a facility option and we do not know how many facilities in which States will choose this option. There are approximately 17,000 nursing homes in the nation, and they are not evenly distributed within States. We are soliciting public comment on each of these issues for the following sections of this document that contain information collection requirements:

A facility must maintain a record of all individuals, used by the facility as feeding assistants, who have successfully completed the training course for paid feeding assistants.

Our rough estimate is that 10 States will implement this policy, that is, 20 percent of nursing homes (20 percent of 17,000 = 3400 facilities/respondents). We estimate that each facility will hire two feeding assistants, resulting in a total of 6,800 feeding assistants. Depending on the method chosen by a facility to collect this information, we believe that each facility (respondent) would spend no more than 30 minutes per month (6 hours per year) to enter feeding assistant information into its record-keeping system. Some months, facilities may have no information to add. With 3,400 facilities at 6 hours/year, the total would be 20,400 hours for facilities. Using a wage cost of $10 per hour, the total facility burden is estimated to be $204,000.

Each State must require a facility to report to the State all incidents of any paid feeding assistant who has been found to neglect or abuse a resident or misappropriate a resident's property. Each State must maintain a record of all reported incidents.

We estimate that each facility and State will spend no more than 30 minutes per month to add new information to the system. This comes to 6 hours annually per facility and State × 10 facilities/States = 60 hours. Using a wage cost of $10 per hour, the total facility or State cost is estimated to be $600.

If you comment on these information collection and recordkeeping requirements, please mail copies directly to the following addresses:

Centers for Medicare & Medicaid Services, Office of Information Services, Information Technology Investment Management Group, Attn.: John Burke, Room N2-14-26, 7500 Security Boulevard, Baltimore, MD 21244-1850; and Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503, Attn: Allison Herron Eydt, CMS Desk Officer.

Because of the large number of items of correspondence we normally receive on Federal Register documents published for comment, we are not able to acknowledge or respond to them individually. We will consider all comments we receive by the date and time specified in the DATES section of this preamble, and, if we proceed with a subsequent document, we will respond to the major comments in the preamble to that document.

We have examined the impact of this proposed rule, as required by Executive Order 12866 (September 1993, Regulatory Planning and Review) and the Regulatory Flexibility Act (RFA) (September 19, 1980 Pub. L. 96-354). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more annually).

This proposed rule is not a major rule. It would not result in any budget impact. A facility could employ a feeding assistant under the current regulations. This proposed rule simply reduces the amount of training that would be required for an individual that would furnish only feeding assistance and provides States with the option of using paid feeding assistants, rather than CNAs, to provide feeding assistance.

The RFA requires agencies to determine whether a rule would have significant economic impact on a substantial number of small entities (analyze options for regulatory relief of small businesses). For purposes of the RFA, small entities include small businesses, nonprofit organizations, and government agencies. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $5 to $25 million or less annually (see 65 FR 69432). For purposes of the RFA, 85 percent of long term care facilities with revenues of $10.0 million or less are considered to be small entities. Individuals and States are not included in the definition of a small entity.

In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditure in any one year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. We have determined that this proposed rule would not have consequential effects on State, local, or tribal governments, or on the private sector. This proposal is an option that does not constitute an unfunded mandate.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. We believe that this proposed rule would not have a substantial effect on State or local governments. This proposal is an option, which facilities may choose to adopt if it is consistent with State law and the State promotes this option.

These proposed provisions would affect long term care facilities. We expect the provisions to be a substantial benefit both to facilities that are short-staffed and to beneficiaries that need help with eating and drinking. By using feeding assistants, facilities can use trained certified nurse aides to perform more complex resident care tasks. There are approximately 17,000 long term care facilities participating in the Medicare and Medicaid programs. We do not know how many facilities would choose the option to hire feeding assistants. We know of two States that have used feeding assistants for a number of years. Wisconsin nursing homes have been using single-task feeding assistants for more than 7 years, and North Dakota has used them since the 1980s. Several other States have passed laws, or indicated that they wish to implement a feeding assistant program, but have not yet done so (including Ohio, Minnesota, Florida, California, and Illinois). If these States adopt this option, they will realize the benefits of using paid feeding assistants. If we receive additional information from public comments about the number of States that may choose this option and costs to the States and facilities, we will summarize the information in the subsequent final rule.

We believe that both residents and providers would benefit from these provisions. Residents would receive more assistance with eating at meals. Facilities would have greater choices in hiring staff to meet their needs and the needs of residents, freeing certified nurse aides to perform more complex tasks that require their medical training.

One alternative to this policy would be for facilities to hire more nursing staff, including nurse aides. However, not only would this cost more, but due to the continuing shortage of certified nurse aides, we know of no other alternatives at the moment that would meet our objectives. Certified nurse aides perform the majority of resident care in a long term care facility and frequent nurse aide shortages often result in less than adequate care for residents and greater stress on certified nurse aides and other staff.

For these reasons, we are not preparing analyses for either the RFA or section 1102(b) of the Act because we have determined, and we certify, that this rule would not have a significant economic impact on a substantial number of small entities or a significant impact on the operations of a substantial number of small rural hospitals.

In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.

For the reasons set forth in the preamble, CMS proposes to amend 42 CFR chapter IV as set forth below:

A. Part 483 is amended as follows:

On January 24, 1996, NHTSA published a final rule (61 FR 2003) establishing two Federal Motor Vehicle Safety Standards (FMVSSs) to address the problem of rear underride crashes. These are crashes in which a passenger car, truck, or multipurpose vehicle with a Gross Vehicle Weight Rating (GVWR) of 4,563 kilograms (10,000 lbs) or less (referred to collectively as “passenger vehicles”) collides with the rear end of a trailer or semitrailer (referred to collectively as “trailers”), and the front end of the passenger vehicle slides under (i.e., underrides) the rear end of the trailer.

The final rule established two standards that operate together to reduce the number of injuries and fatalities resulting from underride crashes. The first standard (Standard No. 223, Rear Impact Guards) specifies performance requirements that rear impact guards (guards) must meet before they can be installed on new trailers. It specifies strength requirements, as well as test procedures, that NHTSA uses to determine compliance with the standard. Standard No. 223 requires the guard manufacturer to provide instructions on the proper installation of the guard. It also requires guards to be permanently labeled with the guard manufacturer's name and address, the month and year in which the guard was manufactured, and the letters “DOT.” The letters constitute a certification by the guard manufacturer that the guard meets all the performance requirements of Standard No. 223. The standard requires manufacturers to place the label on the forward-facing surface of the horizontal member of the guard, 305 millimeters (mm) (12 inches) inboard of the right end of the guard, so that the label is readily visible by Federal Motor Carrier Safety Administration (FMCSA) inspectors.

The second standard (Standard No. 224, Rear Impact Protection) requires most new trailers with a GVWR of 4,536 kilograms (10,000 pounds) or more to be equipped with a rear impact guard meeting the requirements of Standard No. 223. Standard No. 224 specifies requirements regarding the location of the guard relative to the rear of the trailer. It also requires that the guard be mounted on the trailer in accordance with the instructions of the guard manufacturer.

In response to petitions for reconsideration, NHTSA published minor amendments to the standards in the Federal Register on January 26, 1998 (63 FR 3654). The standards became effective on that date.

On December 10, 1998, NHTSA received a petition from the Truck Trailer Manufacturers Association (TTMA) requesting that the agency amend Standard No. 223 by eliminating the guard labeling requirement. TTMA argued that requiring a label on the guard is redundant because vehicle manufacturers are already required to certify compliance with all safety standards. 49 CFR 567.4(g)(5) requires manufacturers to affix to trailers a label containing the statement: “This vehicle conforms to all applicable Federal motor vehicle safety standards in effect on the date of manufacture shown above.”

On December 30, 1998, NHTSA received a similar petition from the American Trucking Associations (ATA), and on January 18, 1999, another petition from Compass Transportation, Inc. Both petitioners argued that the guard labeling requirement is redundant and requested that the agency eliminate the labeling requirement from Standard No. 223.

TTMA requested that if NHTSA declined to eliminate the guard labeling requirement, the agency instead eliminate the requirement that the guard be labeled permanently. TTMA argued that it is unlikely that any label will remain on the guard for the life of the trailer. TTMA also requested that NHTSA allow manufacturers the flexibility to place the label where it may be the least exposed to damage from operational and environmental factors.

NHTSA published a Notice of Proposed Rulemaking (NPRM) on January 8, 1981, proposing a single vehicle standard specifying requirements for testing guards on completed trailers. (46 FR 2136). Commenters on the NPRM expressed concern that the proposed requirements would be a substantial financial burden on some trailer manufacturers. These commenters stated that the trailer manufacturing industry consisted primarily of small firms that lacked the engineering capabilities to meet the requirements proposed in the NPRM.

In response to these comments, NHTSA issued a Supplemental Notice of Proposed Rulemaking (SNPRM) on January 3, 1992, that proposed separate equipment and vehicle standards. (57 FR 252). Standard No. 223 provided for the testing of guards on a test fixture, and Standard No. 224 required guards complying with Standard No. 223 to be installed on trailers. The agency concluded that these separate standards would allow trailer manufacturers to purchase guards complying with Standard No. 223 from guard manufacturers, thus relieving trailer manufacturers, especially small manufacturers, of the burden associated with compliance testing.

In its comments on the SNPRM, TTMA stated,

TTMA claimed that affixing a certification label to the guard is redundant in those instances in which the guard is manufactured by the trailer manufacturer because the trailer manufacturer already has to certify compliance with all applicable FMVSSs under 49 CFR 567.4(g)(5). Thus, TTMA requested that trailer manufacturers who also manufacture their own guards be excluded from the guard labeling requirement.

The agency responded that allowing some guard manufacturers to omit the label would be impractical from an enforcement standpoint because trailer inspectors would not be able to tell whether the guard was certified by the guard/trailer manufacturer as part of the trailer, or whether the trailer manufacturer installed a guard purchased from a guard manufacturer who did not make the required certification. The agency also did not believe that affixing the label would be a significant burden. Thus, the final rule retained the guard certification label requirement for all guards.

In their discussion of the labeling requirement, the TTMA, ATA, and Compass Transportation, Inc., petitions are nearly identical to the comments that TTMA submitted in response to the SNPRM. However, the petitioners requested that NHTSA eliminate the guard labeling requirement for all guards, regardless of who manufactures the guard.

The petitioners correctly stated that 49 CFR 567.4(g)(5) already requires trailer manufacturers to label each trailer as complying with all Federal motor vehicle safety standards. However, the separate equipment and vehicle standards allow a trailer manufacturer to install a complying guard produced by a guard manufacturer rather than by the trailer manufacturer itself. NHTSA developed the separate equipment and vehicle standards in an effort to relieve trailer manufacturers of the financial burden of compliance testing. Indeed, the separate equipment and vehicle standards were implemented largely in response to industry concerns about the cost of compliance testing.

While NHTSA has found that the majority of trailer manufacturers do manufacture and install their own guards, the agency has not received information from the petitioners or other parties showing a need to revise the separate equipment and vehicle standards. Without such information, the agency is not persuaded to change its position. Accordingly, NHTSA is denying the petitioners' request to eliminate the guard labeling requirements in Standard No. 223.

TTMA requested that, if NHTSA maintained the guard labeling requirements in Standard No. 223, the agency instead change the wording of the labeling requirement to (1) delete the requirement that the label be permanent, and (2) allow manufacturers some flexibility regarding the location of the label on the guard so that the label may be placed where it is least exposed to damage from operational and environmental factors.

S5.3 of Standard No. 223 currently reads:

TTMA first suggested eliminating the requirement that the label be permanent. In its petition, TTMA argued:

However, TTMA provided no information documenting any problems trailer or guard manufacturers have experienced in meeting the requirement for a permanent label.

NHTSA acknowledges that the permanency of the label is not significant for the purpose of testing new guards for compliance with Standard No. 223. When the guard is new, the environmental and operational conditions that may damage guard labels are not an issue.

However, on September 1, 1999, the Federal Highway Administration (FHWA) published a Final Rule amending the Federal Motor Carrier Safety Regulations regarding rear impact protection to make them consistent with Standard Nos. 223 and 224. (64 FR 47703). FHWA stated that its proposed labeling requirement (now codified at 49 CFR 393.86(f)) was included, in part, “to help motor carriers quickly determine if the underride device on a newly manufactured trailer meets NHTSA's requirements, and to assist State agencies responsible for enforcing motor carrier safety regulations.” (63 FR 26759, May 14, 1998).

NHTSA generally does not specify a particular means ( i.e., labeling, etching, branding, stamping, or embossing) by which the manufacturer must achieve permanency. Thus, for NHTSA compliance purposes, the guard label is considered permanent if it satisfies the certification requirements specified in 49 CFR part 567. Section 567.4(b) specifies, “The label shall, unless riveted, be permanently affixed in such a manner that it cannot be removed without destroying or defacing it.”

In consideration of the above, the agency continues to believe that the label must be permanently affixed. Thus, NHTSA is denying the petitioners' request to amend S5.3 of Standard No. 223 by eliminating the requirement that the guard label be permanent.

Finally, in its petition, TTMA requested:

As noted above, S5.3 of Standard No. 223 currently requires the label to be placed on the forward-facing surface of the horizontal member of the guard, 305 mm (12 inches) inboard of the right end of the guard.

The location of the guard label is of little significance to NHTSA personnel conducting compliance testing on new guards. The agency does not believe that allowing manufacturers flexibility in selecting the location of the label on the guard will be detrimental to its safety purposes.

The location of the guard label is of greater significance to FMCSA  1 and state inspectors charged with verifying that trailers on the road meet the applicable Federal Motor Carrier Safety Regulations and NHTSA standards. However, FMCSA representatives have indicated to NHTSA that during a typical Level 1 inspection, inspectors usually have ready access to the underside of the trailer. This enables the inspector to view the entire length of the horizontal member of the guard from both the front and rear. FMCSA representatives indicated that the specific location of the guard label is not critical, so long as it is located somewhere on the horizontal member of the guard.

S5.7.1.4.1(c) of Standard No. 108 requires retroreflective sheeting to be placed across the full width of the horizontal member of the guard. The minimum width of the retroreflective sheeting is one and one-half inches. Since S5.1 of Standard No. 223 requires that the projected cross-sectional height of the horizontal member of each guard must be at least four inches, there should be ample space to affix the guard label on the rearward-facing surface of the horizontal member of the guard without interfering with the retroreflective sheeting, if the manufacturer determines that this location will be the least susceptible to operational or environmental damage.

Accordingly, NHTSA is proposing to amend S5.3 of Standard 223 to allow manufacturers flexibility in deciding where to place the label on the horizontal member of the guard so that they can minimize exposure to operational and environmental damage. The agency is proposing to revise the third sentence of S5.3 of Standard No. 223 to read as follows:

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993) provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

This notice was not reviewed under Executive Order 12866. In this document, NHTSA is simply proposing to give guard manufacturers greater choice regarding the location in which they place the guard certification label. They would be able to place it in a specified region on the forward or rearward-facing horizontal member of the guard, provided that the label does not interfere with the retroreflective sheeting required by Standard No. 108 and is readily accessible for visual inspection. Since Standard No. 223 already requires guard manufacturers to place the certification label on compliant guards, the agency believes that this proposal would not have any economic effects.

The DOT's regulatory policies and procedures require the preparation of a full regulatory evaluation, unless the agency finds that the impacts of a rulemaking are so minimal as not to warrant the preparation of a full regulatory evaluation. Since NHTSA is simply proposing to give guard manufacturers the flexibility to place the guard certification label on the guard where it will be the least exposed to damage, the agency believes that the impact of this rulemaking would be minimal. Thus, a full regulatory evaluation has not been prepared.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's (SBA) regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

NHTSA has considered the effects of this rulemaking action under the Regulatory Flexibility Act. Most trailer and guard manufacturers qualify as small businesses under the SBA's regulations. However, as explained above in the section on Executive Order 12866 and DOT Regulatory Policies and Procedures, the agency believes that the impacts of this rulemaking would be minimal. The agency is simply proposing to allow guard manufacturers the flexibility to place the guard certification label on the guard where it will be the least exposed to damage. Therefore, I hereby certify that this proposed rule would not have a significant economic impact on a substantial number of small entities.

NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment.

Executive Order 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” The Executive Order defines “policies that have federalism implications” to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, NHTSA may not issue a regulation with Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation. NHTSA also may not issue a regulation with Federalism implications and that preempts State law unless the agency consults with State and local officials early in the process of developing the proposed regulation.

NHTSA has analyzed this rulemaking action in accordance with the principles and criteria set forth in Executive Order 13132. The agency has determined that this proposed rule would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The proposal would not have any substantial effects on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials.

This proposed amendment would not have any retroactive effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending, or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid Office of Management and Budget (OMB) control number. This proposed rule would not require any collections of information as defined by the OMB in 5 CFR part 1320.

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

There are no applicable voluntary consensus standards available at this time. However, NHTSA will consider any such standards if they become available.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995). Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires NHTSA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows NHTSA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted.

This proposed rule would not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of more than $100 million annually. Thus, the agency has not prepared an Unfunded Mandates assessment.

Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

If you have any responses to these questions, please include them in your comments on this NPRM.

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.

Your comments must not be more than 15 pages long. (49 CFR 553.21). NHTSA established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES.

You may also submit your comments to the docket electronically by logging onto the Dockets Management System Web site at http://dms.dot.gov. Click on “Help & Information” or “Help/Info” to obtain instructions for filing the document electronically.

If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.

If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR part 512.)

NHTSA will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES . To the extent possible, the agency will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for NHTSA to consider it in developing a final rule (assuming that one is issued), the agency will consider that comment as an informal suggestion for future rulemaking action.

You may read the comments received by Docket Management at the address given above under ADDRESSES. The hours of the Docket are indicated above in the same location.

You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:

1. Go to the Docket Management System (DMS) Web page of the Department of Transportation (http://dms.dot.gov/).

2. On that page, click on “search.”

3. On the next page (http://dms.dot.gov/search/), type in the four-digit docket number shown at the beginning of this document. Example: If the docket number were “NHTSA-1998-1234,” you would type “1234.” After typing the docket number, click on “search.”

4. On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments. Although the comments are imaged documents, instead of word processing documents, the “pdf” versions of the documents are word searchable.

Please note that even after the comment closing date, NHTSA will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, the agency recommends that you periodically check the Docket for new material.

In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 571 as follows:

Newcomb's snail is a type of freshwater snail belonging to the lymnaeid family of snails. Adult Newcomb's snails are approximately 6 millimeters (mm) (0.25 inches (in)) long and 3 mm (0.12 in) wide in size. Its shell is smooth and black, formed by a single, oval whorl, about 6 mm (0.25 in) long. The tentacles of Newcomb's snail, like other lymnaeids, are flat and triangular, rather than conical or filament-shaped as found on other freshwater snails. Newcomb's snails feed upon algae and other material growing on submerged rocks. Eggs are attached to underwater rocks or vegetation and the entire life cycle is tied to the stream system in which the adults live.

Populations of Newcomb's snail are currently found in small areas within the Kalalau, Lumahai, Hanalei, Waipahee, Makaleha, and North Wailua stream systems on the Hawaiian island of Kauai. Historically, Newcomb's snail was found in Hanakoa, Hanakapiai, and Wainiha streams, but these populations are thought to be extirpated. The known populations of Newcomb's snail have a total of approximately 6,000 to 7,000 individuals.

Some of the suspected historical decline of the snail may be attributed to habitat loss and degradation through water diversion and well drilling. Currently, predation by alien species, natural disasters and habitat alteration are threats that imperil Newcomb's snail. The rosy glandina snail (Euglandina rosea) is an introduced snail that preys mostly on other snails. Two species of non-native marsh flies prey upon eggs and adults of Hawaiian freshwater snails. These flies were introduced in 1955 and 1966 as bio-control agents for a non-native snail that hosts a cattle parasite. Other introduced predators include introduced fish and frogs. Presently, Newcomb's snail faces an increased likelihood of extinction from naturally occurring events such as hurricanes due to the small number of remaining populations and their limited distribution.

Pursuant to the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq. ), Errina newcombi was listed as a threatened species on January 26, 2000 (65 FR 4162). On January 28, 2002, we published a proposed rule in the Federal Register (67 FR 3849) to designate critical habitat for Newcomb's snail. Section 4(b)(5)(E) of the Act requires that a public hearing be held if requested within 45 days of the proposal's publication in the Federal Register . We received 2 requests for a public hearing during this time period. In response to these requests, we will hold a public hearing on the date and location described in the DATES and ADDRESSES section above.

Anyone wishing to make an oral statement for the record is encouraged to provide a written copy of their statement to the Service at the start of the hearing. In the event there is a large attendance, the time allotted for oral statements may have to be limited. Oral and written statements receive equal consideration. There are no limits to the length of written comments presented at this hearing or mailed to the Service. Legal notices announcing the date, time, and location of the hearing are being published in newspapers concurrently with this Federal Register notice.

We propose to designate critical habitat in nine critical habitat units that total 26.29 kilometers (km) (16.33 miles (mi)) of main stream channel; in total, these areas encompass approximately 2,109 hectares (ha) (5,212 acres (ac)). Six of these sites are located on state lands, and three of these sites are on lands that are privately owned. Critical habitat units are proposed for reaches of stream main channel that range in length from 0.8 km (0.5 mi) to 7.58 km ( 4.71 mi); the units range in size from 35 ha (86 ac) to 876 ha (2165 ac).

Critical habitat receives protection from destruction or adverse modification through required consultation under section 7 of the Act with regard to actions carried out, funded, or authorized by a Federal agency. Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact of specifying any particular area as critical habitat. Based upon the previously published proposal to designate critical habitat for Newcomb's snail, we have prepared a draft economic analysis of the proposed critical habitat designation. The draft economic analysis is available from the Pacific Islands Fish and Wildlife Office (see ADDRESSES section).

The original comment period was due to close on March 29, 2002. In order to accommodate the hearing and to provide the public with the opportunity to comment on the draft economic analysis of this proposed critical habitat designation as well as the proposed rule, we also extend the comment period. Written comments may now be submitted until April 29, 2002, to the Service office in the ADDRESSES section.

We will accept written comments and information during this extended comment period. If you wish to comment, you may submit written comments and information to the Field Supervisor, Pacific Islands Fish and Wildlife (see ADDRESSES section). Alternatively, you may hand-deliver comments to our Pacific Islands Fish and Wildlife Office at the above address.

Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for inspection, by appointment, during normal business hours at the address above. Copies of the draft economic analysis are available by writing to the Field Supervisor at the address above.

The primary author of this notice is Gordon Smith, Fish and Wildlife Biologist, Pacific Islands Fish and Wildlife Office (see ADDRESSES section).

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

Under the ESA and its implementing regulations, taking listed sea turtles—even incidentally—is prohibited, with exceptions identified in 50 CFR 223.206. The incidental take of endangered species may only legally be authorized by an incidental take statement or an incidental take permit issued pursuant to section 7 or 10 of the ESA. No incidental take of endangered sea turtles is currently authorized in the Virginia pound net fishery.

Existing information indicates that pound nets with large mesh and stringer leaders incidentally take sea turtles. A pound net leader with stretched mesh greater than 12 inches (30.5 cm) is considered to be a large mesh leader. A stringer leader consists of vertical lines spaced apart in a portion of the leader and mesh in the rest of the leader. Based on the available information, NMFS determined that interactions with pound net leaders were the most likely cause of a significant portion of documented sea turtle mortality in the Chesapeake Bay during the spring of 2001. Furthermore, NMFS believes it is likely that pound nets are a significant factor in the unusual spring sea turtle mortality event that occurs annually in Virginia state waters. This proposed action is necessary to provide for the conservation of threatened and endangered turtles by minimizing incidental take in the Virginia pound net fishery during the spring.

The Sea Turtle Stranding and Salvage Network (STSSN), a network of organizations authorized by NMFS to respond to sea turtle stranding events, has documented high sea turtle strandings in Virginia waters during the spring for the past 23 years. From 1994 to 2001, the average date of the first reported stranding was May 15, and the highest number of strandings typically occurred during the second half of May through the end of June, when turtles were migrating into the Bay. The magnitude of this stranding event has increased in recent years. During May and June, total reported Virginia sea turtle strandings were 84 in 1995, 85 in 1996, 164 in 1997, 181 in 1998, 129 in 1999, and 155 in 2000. Strandings during the spring of 2001 were exceptionally high; preliminary data indicates that 265 sea turtles stranded on Virginia beaches during May and June. This was twice the average number of turtles that stranded annually during this time period from 1995 to 2000. From 1995 to 2000, 60 percent of all reported strandings occurred during May and June.

Most of the stranded sea turtles in Virginia have been loggerheads, but endangered Kemp's ridley and leatherback sea turtles have also stranded. Out of 1,067 total strandings in May and June from 1995 to 2001, 958 loggerheads, 59 Kemp's ridleys, 17 leatherbacks, 1 green, and 32 unidentified turtles were found. The majority of the stranded turtles have been of the juvenile/immature life stage.

While some turtles with traumatic carapace injuries, propeller-like wounds or imbedded fish hooks (injuries not associated with pound nets) are documented each year, no cause of mortality is obvious for the majority of turtles that strand in Virginia. While current stranding levels are higher than in previous years, relatively healthy animals have been stranding on Virginia beaches for at least 20 years. Bellmund, et al. (1987) found that during spring stranding events in 1983 and 1984, all turtles examined seemed healthy with the exception of one injured and two emaciated turtles.

Although fresh dead turtles were found earlier in the season, most of the stranded turtles reported in the spring of 2000 and 2001 were moderately to severely decomposed. The ability to conduct necropsies is compromised by the condition of the stranded animals, and severely decomposed turtles are not usually necropsied. The majority of the stranded turtles that were examined by necropsy in 2000 and 2001 had good fat stores, suggesting that the animals were in good health prior to their death. Many of the necropsied turtles had full stomachs, and contents included blue crab, horseshoe crab, and fish. Twenty-three of 66 loggerheads necropsied between May and December 2001 contained fish parts. The majority of the 2001 necropsies were conducted on animals that stranded in the Western Bay and on the Chesapeake Bay side of the eastern shore.

The distribution of sea turtle strandings in Virginia varies slightly from year to year, but historically, most of the spring strandings in Virginia have been documented on the ocean facing beaches south of Cape Henry and the inshore beaches in the southern Chesapeake Bay. For instance, the majority of 1999 spring strandings occurred offshore in the Virginia Beach Oceanside area around the mouth of the Chesapeake Bay, but the majority of the spring strandings in 1998, 2000, and 2001 occurred in inshore waters with concentrations around the southern tip of the eastern shore and the southern portion of the Chesapeake Bay around Virginia Beach and Hampton. Strandings in 2001 were of particular concern because the majority of the strandings (approximately 65 percent) in May and June occurred along the Chesapeake Bay side of the eastern shore of Virginia and along the southern tip near Kiptopeke and Fisherman's Island, indicating a possible localized interaction. It is possible that some Virginia Chesapeake Bay turtle strandings are swept into the Chesapeake Bay from elsewhere, as the water patterns and currents entering the Chesapeake Bay could concentrate sea turtle strandings around the mouth. However, it is likely that in the Virginia Chesapeake Bay, most mortalities have occurred relatively close to the stranding location (Lutcavage 1981). Further, it has been estimated that strandings on ocean facing beaches represent, at best, only approximately 20 percent of the at-sea nearshore mortality, as only those turtles killed close to shore are most likely to strand (NMFS SEFSC 2001).

In response to the long term trend in elevated sea turtle strandings, NMFS instituted a program in 2001 to investigate interactions between sea turtles and Virginia fisheries during the historical stranding period. This program included inshore and offshore aerial surveys, traditional and alternative platform observer coverage of gillnet and pound net fisheries, and sonar surveys of pound net leaders.

There is a complex mix of fisheries operating in Virginia Chesapeake Bay and ocean waters during May and June, including large and small mesh gillnet fisheries, whelk and crab pot fisheries, haul seine fisheries, scallop dredge and trawl fisheries, and the pound net fishery. At the time of the 2001 strandings, NMFS observed a number of the fisheries active in Virginia and did not detect significant sea turtle mortality. However, additional observer coverage is needed to adequately determine the level of sea turtle interactions with the various fisheries operating during the spring.

The federally managed monkfish large mesh gillnet fishery (approximately 10-12 inch (25.4-30.5 cm) mesh) had approximately 41-percent observer coverage in waters off Virginia from May 1 until it stopped operating off Virginia on May 29 when the fleet moved northward. In Virginia, 107 monkfish trips were observed, and one dead and two live loggerhead turtles were incidentally captured in this fishery. In May and June 2001, the monkfish fishery landed approximately 16 percent of the total landings with gillnet gear in Virginia. Two 10-14 inch (25.4-35.6 cm) mesh gillnet fisheries, the black drum and sandbar shark gillnet fisheries, occurred in state waters, in the vicinity of the highest number of turtle strandings (along the tip of the eastern shore). The black drum fishery had approximately 8-percent observer coverage during May and June, and no turtle takes were observed. Additionally, almost all of the black drum fishing effort ceased at the beginning of June, and there was not a large amount of sandbar shark gillnet effort during the spring stranding period. No large mesh gillnet fishing in the vicinity of the mouth of the Chesapeake Bay occurs from June 1 to June 30; during this time, gillnets with a stretched mesh size greater than 6 inches (15.2 cm) are prohibited in Virginia's portion of the Chesapeake Bay south of Smith Island.

During 2001, the small mesh gillnet fisheries (smaller than 6 inch (15.2 cm) mesh) were also considered as a potential contributor to the high sea turtle strandings. However, the amount of gillnet effort occurring in the Chesapeake Bay waters during May and June appears to be relatively small (e.g., approximately 11 percent of total Virginia Chesapeake Bay landings). Further, aerial surveys were conducted by the Virginia Institute of Marine Science (VIMS) in the inshore waters of the Chesapeake Bay and minimal gillnet effort was observed during June 2001. Of the total gillnet landings in Virginia offshore and inshore waters during May and June 2001, small mesh gillnet landings for a variety of species, including Atlantic croaker and dogfish, represented approximately 82 percent. NMFS observed 2 percent of the Atlantic croaker fishery and 12 percent of the dogfish fishery during that time; no turtle takes were observed. While small mesh gillnets may entangle sea turtles, the level of interaction in Virginia waters during the spring is not expected to be high.

The Virginia Marine Resources Commission (VMRC) restricted the use of trawls in Virginia's portion of the Chesapeake Bay in 1989, and no trawling effort occurs in the Chesapeake Bay. Aerial surveys, landings data, and dock surveys indicate that limited trawling occurs in Federal waters offshore of Virginia during May and June; approximately 18 percent of total ocean landings in May and June 2001 were by scallop trawl gear (2,456 metric tons of 13,739 metric tons total). The scallop dredge fishery operates off of Virginia during May and June, consisting of approximately 78 percent of the total ocean landings in May and June 2001. Sea turtle interactions with scallop dredges have been observed, but the magnitude of the interactions with this gear type has not been determined. While additional information is needed, this fishery may contribute to some sea turtle mortality documented on Virginia ocean side beaches.

While whelk and crab pots may contribute to sea turtle mortality, it is unlikely that interactions with this gear type would result in a time and area specific mass stranding event. The majority of the whelk pot effort is found offshore, particularly outside Virginia's state waters, and few fishermen set their pots inside the Chesapeake Bay (Mansfield et al. , 2001). The peak spring months for the whelk pot fishery are April and May. Crab pot fishing occurs throughout the Chesapeake Bay, including along the eastern shore and tip of the Delmarva Peninsula. Approximately 36 percent of the total Virginia Chesapeake Bay landings in May and June 2001 were from crab pots. Sea turtles may become entangled in crab pot gear, but due to the nature of the gear and manner in which it's fished, interactions are difficult to detect. As such, the magnitude of this fishery's contribution to Virginia sea turtle strandings is not known, but it is unlikely that sea turtle interactions with crab pots result in a mass mortality event.

While a number of fisheries may contribute to sea turtle strandings, available data indicate that large mesh and stringer pound net leaders result in sea turtle entanglement and that the pound net fishery was a likely cause of a significant portion of the sea turtle mortality in the Chesapeake Bay during the spring of 2001. Pound nets are set throughout the Chesapeake Bay, in both Maryland and Virginia waters. In Virginia, the majority of pound net stands are located around the Virginia shore south of the mouth of the Potomac River (south of Smith Point), around the mouth of the Rappahannock River, around the mouth of the York River/Mobjack Bay, and along the southern portion of the eastern shore of Virginia. Landings by pound nets represented approximately 40 percent of the total landings in the Virginia Chesapeake Bay during May and June 2001.

During 1980, high strandings were documented in areas where there were large numbers of working pound nets (Lutcavage, 1981). Additionally, pound nets are the dominant fishing gear observed immediately offshore of the Kiptopeke area and along the southern portion of the Virginia eastern shore, where most of the strandings occurred in the spring of 2001 and a concentration of spring strandings were documented in 1998 and 1999.

Stringer leaders are found in the western Chesapeake Bay, around the tip of Mobjack Bay and just south of the mouth of the Potomac River, near Reedville. Strandings during 1998 to 2001 were observed on the western shore of the Chesapeake Bay in the vicinity of stringer pound net leaders, but strandings during these years were almost always highest in other areas of the Chesapeake Bay (e.g., during the spring of 2001, strandings were highest along the eastern shore). High turtle mortalities in late May and early June in Virginia have previously been attributed to entanglement in large mesh and stringer pound net leaders in the Chesapeake Bay (Lutcavage, 1981; Bellmund, et al. 1987). Specifically, pound net entanglement has been determined to account for up to 33 percent of sea turtle mortality in the Chesapeake Bay during some summers (Lutcavage and Musick 1985). A Virginia pound net survey in the 1980s documented “many dead loggerheads and one [Kemp's] ridley hung by heads or limbs in area poundnet hedging [leaders]” (Lutcavage, 1981). This study also determined that based upon constriction features on stranded turtles, some beached carcasses had previously floated free of pound net leaders and that it was plausible that unidentified pound net leader deaths could account for many of the carcasses for which no mortality sources have been identified. However, five turtles entangled in pound net leaders were examined during 1984 and none of these turtles became disentangled by natural causes. These sea turtles instead completely decomposed in situ within 5 weeks (Bellmund, et al. 1987). While additional information is necessary to determine how often sea turtles become disentangled from pound net leaders, it is plausible that turtles may become dislodged from pound net leaders either by the strong current in certain areas of the Chesapeake Bay, the decomposition process, or fishermen disentangling dead sea turtles if detected.

Data collected in 1983 and 1984 found turtle entanglement in pound nets with small mesh leaders (defined as 8 to 12 inch (20.3 to 30.5 cm) stretched mesh) to be insignificant, but in 173 pound nets examined with large mesh leaders (defined as >12 to 16 inch (>30.5 to 40.6 cm) stretched mesh), 0.2 turtles per net were found entangled (30 turtles; Bellmund, et al. , 1987). This study also found that in 38 nets examined with stringer mesh, 0.7 turtles per net were documented entangled (27 turtles). The sampling area was concentrated in the western Chesapeake Bay, with some sampling occurring in other portions of the Virginia Chesapeake Bay. Turtle entanglements in pound net leaders began in mid-May, increased in early June, and reached a plateau in late June (Bellmund, et al. 1987). In 1984, no entanglements were observed after late June. Surveys in 1979 and 1980 also found that most of the pound net leaders that captured sea turtles consisted of large mesh (12 to 16 inches (30.5 to 40.6 cm)) and were found in the lower Chesapeake Bay. Anecdotal reports from North Carolina pound net fishermen during the early 1980s stated that sea turtle entanglements occurred in pound net leaders with approximately 8 inch (20.3 cm) mesh and greater. While smaller mesh nets may pose some entanglement risk to sea turtles, the degree of entanglement has not been documented as well as entanglement in stretched mesh leaders 12 inches (30.5 cm) and greater. Leader mesh greater than or equal to 12 inch (30.5 cm) stretch and leaders with stringers likely account for the largest number of sea turtle entanglements in pound net gear in the Virginia Chesapeake Bay.

NMFS recognizes that the majority of scientific information on sea turtle and pound net interactions in Virginia dates back to the 1980s. However, the factors involved in entanglement, namely the size of sea turtles' heads and flippers relative to mesh size and stringers, are the same today as they were in the 1980s. NMFS anticipates that sea turtles will continue to interact with large mesh and stringer leaders in the Chesapeake Bay. In fact, during the spring of 2001, several sea turtles were documented in association with pound net leaders. VMRC law enforcement agents documented one live and three dead sea turtles in pound net leaders along the eastern shore. The live turtle was entangled in a leader with greater than 12 inches (30.5 cm) stretched mesh, but the leader mesh size of the other entanglements was not documented. Additionally, during June of 2000, VMRC law enforcement agents reported disentangling two live sea turtles from two eastern shore leaders with greater than 12 inches (30.5 cm) stretched mesh. Although it is possible that some turtle carcasses drift into pound net leaders post-mortem, sea turtles have been documented entangled in pound net leaders where entanglement was determined to be the cause of death.

Sea turtle entanglements in pound net leaders are difficult to detect. Sea turtles observed in leaders in the spring of 2001 were found at the surface. Due to the poor water clarity in the Chesapeake Bay, turtles entangled below the surface cannot be observed. Additionally, pound net fishermen do not typically tend their leaders, so a turtle entangled in the leader, even at the surface, may go unnoticed. It is likely that significantly more sea turtles are entangled in pound net leaders than are observed or reported (Lutcavage 1981). Similarly, it is probable that significantly higher turtle mortality occurred over the past 23 years than was documented on Virginia beaches. Since many dead turtles fail to strand where they can be documented by the STSSN, the number of stranded turtles represents an unknown sub-sample of the total mortality that occurs each spring.

NMFS has investigated other potential causes for the annual spring sea turtle mortality event, but natural or non-fishing related anthropogenic causes are not consistent with the nature of the strandings. The absence of other species in the most recent stranding events and the absence of high sea turtle strandings in other Atlantic states during the time period when turtles are migrating are inconsistent with cold stunning, a toxic algae bloom, epizootic or other disease. Further, the stranded turtles exhibited no major traumatic injuries such as might be caused by dredging or blasting. Conversely, the circumstances surrounding the spring strandings are consistent with fishery interactions, which include relatively healthy turtles prior to the time of their death, a large number of strandings in a short time period, no external wounds on the majority of the turtles, no common characteristic among stranded turtles that would suggest disease as the main cause of death, and turtles with fish in their stomach. Sea turtles are generally not agile enough to capture finfish under natural conditions, and thus would only consume large quantities of finfish by interacting with fishing gear or bycatch (Mansfield, et al. 2002, Bellmund, et al. 1987, Shoop and Ruckdechel 1982).

Based on the nature and location of turtle strandings, the type of fishing gear in the vicinity of the greatest number of strandings, the lack of observed takes in other fisheries operating in Virginia waters during the 2001 stranding period, the known interactions between sea turtles and large mesh and stringer pound net leaders, and several documented sea turtle entanglements in pound net leaders, NMFS concluded that pound nets were a likely cause of a significant number of the high sea turtle strandings in Virginia in May and June 2001.

As a result of information obtained in 2001, NMFS implemented an emergency rule that required all pound net leaders measuring 8 inches (20.3 cm) or greater stretched mesh and all pound net leaders with stringers to be tied up in the Virginia waters of the mainstem Chesapeake Bay and the tidal waters of the James, York, and Rappahannock Rivers from June 19 to July 19, 2001 (66 FR 33489 June 22, 2001). Sea turtle strandings decreased after this rule was in effect, but as a result of delays in determining which fishery caused the strandings and in implementing management measures, the rule was enacted after the period of the highest sea turtle strandings. The emergency measures likely reduced subsequent entanglements in large mesh and stringer pound net leaders. While fishery interactions may vary from year to year, NMFS believes it is likely that pound nets contribute to the high sea turtle strandings documented every spring.

The annual high mortality in Virginia in May and June is of concern for the following reasons: (1) The level of spring strandings in Virginia has been high for approximately 20 years and elevated for the last 5 years, and it is believed that high strandings will continue to occur during this time period; (2) strandings over the past 4 years have been concentrated along the southern tip of the eastern shore, suggesting a potential localized interaction; (3) approximately 50 percent of the Chesapeake Bay loggerhead foraging population is composed of the northern subpopulation, a subpopulation that may be declining; and (4) most of the stranded turtles have been juveniles, a life stage found to be critical to the long term survival of the species.

Most loggerheads in U.S. waters come from one of four genetically distinct nesting subpopulations. A subpopulation that nests in south Florida is much larger and has shown recent increases in numbers of nesting females. The increase in documented sea turtle mortalities in Virginia could partly be a function of the increase in the southern subpopulation of loggerheads, which make up approximately 50 percent of the loggerheads found in the Chesapeake Bay. The northern subpopulation that nests from northeast Florida through North Carolina is much smaller and nesting numbers are stable or declining. Genetic studies indicate that approximately one-half of the juvenile loggerheads inhabiting Chesapeake Bay during the spring and summer are from the smaller, northern subpopulation (TEWG 2000; Norrgard, 1995). Approximately 3,800 nesting females are estimated for the northern subpopulation of loggerhead sea turtles (TEWG 2000). The impact of the high level of mortality experienced by loggerhead turtles each spring off Virginia on the population's ability to recover is of significant concern. The northern subpopulation produces 65 percent males, while the southern subpopulation is estimated to produce 80 percent females (NMFS SEFSC 2001). As males do not appear to show the same degree of site fidelity as females, it is possible that the high proportion of males produced in the northern subpopulation are an important source of males for all loggerheads inhabiting the Atlantic. The loss of the male contribution from the northern subpopulation may restrict gene flow and result in a loss of genetic diversity to the loggerhead population as a whole. The loss of females from the northern subpopulation may preclude future reproduction, reducing the likelihood of both future survival and recovery of the northern subpopulation of loggerheads. While the size of the southern subpopulation of loggerheads appears to be increasing, the high level of spring sea turtle mortality in Virginia must be reduced to help ensure that the southern subpopulation of loggerheads continues to recover.

Most of the turtles stranding in Virginia waters during the spring are of the juvenile/immature life stages. The specific age at maturity for most sea turtles is unknown; the age of maturity for loggerheads occurs from approximately 21-35 years (TEWG 2000). Studies have concluded that sea turtles must have high annual survival as juveniles and adults to ensure that sufficient numbers of animals survive to reproductive maturity to maintain stable populations (Crouse, et al. 1987, Crowder, et al. , 1994, Crouse, 1999). Given their long maturation period, relatively small decreases in annual survival rates of both juvenile and adult loggerhead sea turtles may destabilize the population, thereby potentially reducing the likelihood of survival and recovery of the population. As such, the historical high level of mortality in Virginia plus the increase in loggerhead mortality documented during the last several years may negatively affect the recovery of the loggerhead population.

To conserve sea turtles, the Assistant Administrator, NOAA, (AA) proposes to prohibit the use of all pound net leaders measuring 12 inches (30.5 cm) or greater stretched mesh and all pound net leaders with stringers in the Virginia waters of the mainstem Chesapeake Bay and portions of the Virginia tributaries from May 8 to June 30 each year. The area where this gear restriction would apply includes the Virginia waters of the mainstem Chesapeake Bay from the Maryland-Virginia state line (approximately 37° 55′ N. lat., 75° 55′ W. long.) to the COLREGS line at the mouth of the Chesapeake Bay; the James River downstream of the Hampton Roads Bridge Tunnel (I-64; approximately 36° 59.55′ N. lat., 76° 18.64′ W. long.); the York River downstream of the Coleman Memorial Bridge (Route 17; approximately 37° 14.55′ N. lat, 76° 30.40′ W. long.); and the Rappahannock River downstream of the Robert Opie Norris Jr. Bridge (Route 3; approximately 37° 37.44′ N. lat, 76° 25.40′ W. long.).

This prohibition of pound net leaders would be effective from 12:00 a.m. local time on May 8 through 11:59 p.m. local time on June 30 each year. For the duration of this proposed gear restriction, fishermen would be required to stop fishing with pound net leaders measuring 12 inches (30.5 cm) or greater stretched mesh and pound net leaders with stringers in the designated area.

From 1994 to 2001, the average date of the first reported stranding in Virginia was May 15. However, sea turtle mortality would have occurred before the animals stranded on Virginia beaches. In order for the proposed pound net restrictions to reduce sea turtle interactions with pound net leaders and reduce any subsequent strandings on Virginia beaches, the proposed measures should go into effect at least 1 week prior to the stranding commencement date, or on May 8 each year. Based upon STSSN strandings data, strandings in Virginia typically remain elevated until June 30, indicating that turtles may be vulnerable to entanglement in pound net leaders until this time. Implementation of the proposed gear restrictions during this time period is expected to prevent the reoccurrence of sea turtle takes in the pound net fishery in the spring and high numbers of strandings in Virginia.

In addition to establishing the restriction on leader mesh size and leaders with stringers, this proposed rule would also create a framework mechanism by which NMFS may make changes to the restrictions and/or their effective dates on an expedited basis in order to respond to new information and protect sea turtles. Under this framework mechanism, if NMFS makes a determination, for example, due to water temperature and the timing of sea turtles' migration, that sea turtles may still be vulnerable to entanglement in pound net leaders after June 30, the AA may extend the effective dates of this regulation. Should an extension of the effective dates of the prohibition of pound net leaders measuring 12 inches (30.5 cm) or greater stretched mesh and pound net leaders with stringers be necessary, NMFS would issue a final rule to be effective upon publication in the Federal Register explicitly stating the duration of the extension. The extension would not exceed 30 days from the date of its publication.

From May 8 to June 30, NMFS intends to continue to closely monitor sea turtle stranding levels and other fisheries active in the Chesapeake Bay and nearshore and offshore Virginia waters, including pound net leaders with a stretched mesh size measuring less than 12 inches (30.5 cm). If monitoring of pound net leaders reveals that one sea turtle is entangled alive in a pound net leader less than 12 inches (30.5 cm) stretched mesh or that one sea turtle is entangled dead and NMFS determines that the entanglement contributed to its death, then NMFS may determine that additional restrictions are necessary to conserve sea turtles and prevent entanglements. Such additional restrictions may include reducing the allowable mesh size for pound net leaders or prohibiting all pound net leaders regardless of mesh size in Virginia waters. Should NMFS determine that an additional restriction is warranted, NMFS would immediately file a final rule with the Office of the Federal Register . Such a rule would explicitly state the new mandatory gear restriction as well as the time period, which may also be extended for up to 30 days through a subsequent rule. The area where additional gear restrictions would apply includes the same area as the initial restriction, namely the Virginia waters of the mainstem Chesapeake Bay from the Maryland-Virginia State line (approximately 38° N. lat.) to the COLREGS line at the mouth of the Chesapeake Bay, and portions of the James River, the York River, and the Rappahannock River.

In 2001, NMFS implemented an emergency rule that prohibited the use of all pound net leaders measuring 8 inches (20.3 cm) or greater stretched mesh and all pound net leaders with stringers in the Virginia waters of the mainstem Chesapeake Bay and the tidal waters of the James, York, and Rappahannock Rivers from June 19 to July 19. While sea turtles may interact with smaller mesh leaders (less than 12 inch (30.5 cm) stretched mesh), NMFS believes that prohibiting the use of leaders greater than or equal to 12 inches (30.5 cm) stretched mesh and leaders with stringers will reduce most of the potential sea turtle entanglements in pound net leaders, and subsequent strandings on Virginia beaches. NMFS chose to restrict the use of leaders with stretched mesh greater than or equal to 8 inches (20.3 cm) in 2001 because there is some information indicating that sea turtles have been entangled in 8 inch (20.3 cm) stretched mesh and because an unprecedented number of loggerheads had already stranded in the spring of 2001 at the time of the emergency rule. While there is evidence to suggest that turtle entanglements may occur in leaders with stretched mesh smaller than 12 inches (30.5 cm), the majority of the scientific information to date indicates that leaders greater than 12 inches (30.5 cm) stretched mesh and leaders with stringers result in the majority of sea turtle pound net entanglements in the Virginia Chesapeake Bay. NMFS expects that prohibiting leaders with greater than or equal to 12 inches (30.5 cm) stretched mesh will be sufficient to protect sea turtles, while minimizing the impacts to the pound net fishery. However, as mentioned previously, should monitoring reveal one sea turtle entangled alive or one sea turtle entangled dead, and NMFS determines that the entanglement contributed to its death, in a pound net leader less than 12 inches (30.5 cm) stretched mesh, NMFS may impose additional restrictions in May or June on an expedited basis.

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

NMFS has prepared an initial regulatory flexibility analysis that describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of the preamble and in the SUMMARY section. A summary of the analysis follows:

The fishery affected by this proposed rule is the Virginia pound net fishery in the Chesapeake Bay. According to the 2001 VMRC survey data, of the 160 pound net licenses issued in Virginia, where one license is assigned to each pound net, 72 licenses are fishing in the waters potentially affected by this proposed rule. Based upon data from 1999 to 2001, Virginia pound net fishermen earned $84,300 in annual revenues and landed 352,300 pounds of fish annually on average.

The proposed action prohibits pound net leaders with 12 inches (30.5 cm) and greater stretched mesh, as well as those using stringers, from May 8 to June 30. The non-preferred alternative 1 prohibits pound net leaders with 8 inches (20.3 cm) and greater stretched mesh, as well as those using stringers, from May 8 to June 30. The non-preferred alternative 2 prohibits all pound net leaders from May 8 to June 30. Finally, the non-preferred alternative 3 prohibits pound net leaders with greater than 16 inches (40.6 cm) stretched mesh, and requires pound net leaders with stringers to drop the mesh to 9 feet (2.7 m) below mean low water and to space stringer lines at least 3 feet (0.9 m) apart, from May 15 to approximately June 15.

According to VMRC data from 1999 to 2001, 27 fishermen were fishing approximately 64 pound nets from May 8 to June 30. During this period, fishermen earned revenues of $16,700 and landed 69,300 pounds of fish, on average. Prohibiting the use of all pound net leaders with greater than or equal to 12 inches (30.5 cm) stretched mesh and leaders with stringers from May 8 to June 30 would potentially affect approximately 11 fishermen fishing approximately 24 pound nets. Under the worst case scenario in which fishermen choose not to replace their leaders with nets less than 12 inches (30.5 cm) stretched mesh, but remove their leaders altogether between May 8 and June 30, forgone industry revenues would be $192,000 and the cost to remove and replace pound net leaders would be $16,700, resulting in an industry total of $208,700. A fisherman affected by this proposed rule would on average incur revenue losses of $16,700 from not fishing and a cost of $1,600 to remove and replace leaders on their pound nets in the worst case. A fisherman's annual revenue in this scenario will be reduced by 22 percent on average, given annual revenues of $84,300. If fishermen do replace their leader with one with less than 12 inches (30.5 cm) stretched mesh, and it is operational, then the economic impact of this alternative is $1,600 to remove and replace the leader plus approximately $8,300 for a compliant leader. While there may be additional revenue differences associated with fishing with a smaller leader, those potential differences cannot be determined.

If NMFS determines that this proposed rule should be extended, the economic impacts to the pound net fishery will be greater. Based on the 2001 VMRC data, weekly revenues per fisherman from May 8 to June 30 were $2,200. For every week extended, forgone industry revenues would be $23,100, in the worst case scenario, assuming fishermen remove their leaders instead of switching to a smaller mesh leader. Therefore, if the extension was until July 15, forgone industry revenues would be approximately $46,200. Given a 2-week extension, a fisherman's annual revenues would now be reduced by 27 percent, versus 22 percent without the extension, under the worst case scenario. If fishermen were able to switch to a smaller mesh size leader and the requirement is extended, no additional cost would be incurred.

Should additional management measures be implemented as a result of information on pound net leader and sea turtle interactions obtained via monitoring, the restrictions may affect either those pound net leaders measuring 8 inches (20.3 cm) or greater stretched mesh or all pound net leaders regardless of mesh size in the Virginia waters of the mainstem Chesapeake Bay. If pound net leaders greater than or equal to 8 inches (20.3 cm) are prohibited, approximately 13 fishermen fishing approximately 31 pound nets would be affected. This number of affected participants includes those pound net fishermen with previously restricted leaders. From May 8 to June 30, forgone industry revenues would be $237,400 and the cost to remove and replace pound net leaders would be $20,300, for a total of $257,700 in the worst case scenario, assuming fishermen remove their leaders instead of switching to a smaller mesh leader. If all pound net leaders, regardless of mesh size, are prohibited, 27 fishermen fishing approximately 64 pound nets would be affected. From May 8 to June 30, forgone industry revenues would be $444,600 and the cost to remove and replace pound net leaders would be $43,200, for a total of $487,800. The costs to an individual fisherman under either of these additional measures would be the same as the initial gear restriction; a fisherman would on average incur revenue losses of $16,700 from not fishing and a cost of $1,600 to remove and replace leaders on their pound nets between May 8 and June 30 in the worst case scenario.

Taking no action would not have economic consequences, at least in the short term. The impacts of the non-preferred alternative 1 would be the same as those previously described for the prohibition of pound net leaders measuring 8 inches (20.3 cm) or greater stretched mesh and stringers; approximately 13 fishermen fishing approximately 31 pound nets would be affected by the non-preferred alternative 1. From May 8 to June 30, forgone industry revenues would be $237,400 and the cost to remove and replace pound net leaders would be $20,300, for a total of $257,700 in the worst case scenario, assuming fishermen remove their leaders instead of switching to a smaller mesh leader. The impacts of the non-preferred alternative 2 would be the same as those previously described for the prohibition of all pound net leaders; approximately 27 fishermen fishing 64 pound nets would be affected by the non-preferred alternative 2. From May 8 to June 30, forgone industry revenues would be $444,600 and the cost to remove and replace pound net leaders would be $43,200, for a total of $487,800. Under the non-preferred alternative 3, 7 fishermen fishing approximately 14 pound nets would be affected. From May 8 to June 30, forgone industry revenues would be $125,000 and the cost to remove and replace pound net leaders would be $11,200, for a total of $136,200 in the worst case scenario, assuming fishermen remove their leaders instead of switching to a smaller mesh leader. The costs to an individual fisherman under all of the alternatives would be the same; a fisherman would on average incur revenue losses of $16,700 from not fishing and a cost of $1,600 to remove and replace leaders on their pound nets between May 8 and June 30. Under the proposed action, the non-preferred alternative 1 and the non-preferred alternative 3, if fishermen are able to switch to a smaller leader mesh size, and it is operational, the economic impacts would be $1,600 to remove and replace the leader plus approximately $8,300 for a compliant leader.

Administrative practice and procedure, Endangered and threatened Species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

Administrative practice and procedure, Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements.