Karnal bunt is a fungal disease of wheat ( Triticum aestivum ), durum wheat ( Triticum durum ), and triticale ( Triticum aestivum X Secale cereale ), a hybrid of wheat and rye. Karnal bunt is caused by the smut fungus Tilletia indica (Mitra) Mundkur and is spread by spores, primarily through the movement of infected seed. In the absence of measures taken by the U.S. Department of Agriculture (USDA) to prevent its spread, the establishment of Karnal bunt in the United States could have significant consequences with regard to the export of wheat to international markets. The regulations regarding Karnal bunt are set forth in 7 CFR 301.89-1 through 301.89-16 (referred to below as the regulations). Among other things, the regulations define areas regulated for Karnal bunt and restrict the movement of certain regulated articles, including wheat seed and grain, from the regulated areas. The regulations also provide for the payment of compensation for certain growers, handlers, seed companies, owners of grain storage facilities, flour millers, and participants in the National Karnal Bunt Survey who incurred losses and expenses because of Karnal bunt during certain years. These provisions are in § 301.89-15, “Compensation for growers, handlers, and seed companies in the 1999-2000 and subsequent crop seasons,” and § 301.89-16, “Compensation for grain storage facilities, flour millers, and National Survey participants for the 1999-2000 and subsequent crop seasons.”

On August 6, 2001, the Animal and Plant Health Inspection Service (APHIS) published in the Federal Register a final rule (66 FR 40839-40843, Docket No. 96-016-37) that established the compensation levels for the 1999-2000 growing season and subsequent years and made several other changes to the compensation regulations. One of these changes was that, after the 2000-2001 growing season, compensation would no longer be made available to persons growing or handling crops that were knowingly planted in previously regulated areas.

We have recently identified and analyzed five situations where certain wheat growers, handlers, and other parties covered by the compensation regulations appear to be ineligible to receive compensation for grain or seed affected by Karnal bunt due to restrictive language used in the regulations that did not anticipate certain complications in the harvest and storage of grain that arose following discovery of Karnal bunt in four counties in northern Texas. The situations we are addressing primarily affect growers and handlers in Texas, and certain handlers who moved grain from other States to Texas for storage. In particular, four counties in northern Texas became regulated areas during the latter part of the 2000-2001 growing season, and due to the need to quicky declare these counties as regulated areas, we were unable to modify the compensation regulations at that time to address certain relevant aspects of the way seed and grain are moved, stored, and used in the newly regulated areas. We are now revising the compensation regulations to address five particular situations in Texas regulated areas. These cases represent unanticipated circumstances applicable only to the 2000-2001 growing season where we believe the parties affected should, in fairness, be eligible for compensation.

We are revising the compensation regulations to allow persons included in these five situations to apply for compensation. The situations covered by these regulatory changes are described below.

In 2001, we have added four counties in Texas (Archer, Baylor, Throckmorton, and Young Counties) to the list of Karnal bunt regulated areas (66 FR 32209-32210, Docket No. 01-058-1, June 14, 2001, and 66 FR 37575-37576, Docket No. 01-063-1, July 19, 2001). Approximately 7.4 million bushels of negative-tested wheat from the four counties added in 2001 are currently stored in grain elevators.

Even though this wheat is Karnal bunt negative, it cannot be exported to major markets as it normally would be, because it was tested after harvest at the elevator, not in the field. Major foreign importers will accept U.S. wheat only if it can be certified as coming from an area where Karnal bunt is not known to exist. Such certification is currently based on testing at the field level.

For this reason, when a producer near an area affected by Karnal bunt knows his wheat is destined for export, he generally arranges to have his fields tested for Karnal bunt. However, in northern Texas this past crop season, most wheat had already been harvested when Karnal bunt was discovered in the four counties subsequently added as regulated areas, so that wheat could only be tested in bins. The result is that approximately 7.4 million bushels of this wheat are still in storage, cannot be exported, must move under limited permit, and are currently ineligible for compensation under the regulations.

We are making this wheat eligible for compensation payments by adding a new paragraph (d) to § 301.89-15, “Compensation for growers, handlers, and seed companies in the 1999-2000 and subsequent crop seasons.” This new paragraph reads as follows: “(d) Special allowance for negative wheat grown in Archer, Baylor, Throckmorton, and Young Counties, TX, in the 2000-2001 growing season. Notwithstanding any other provision of this section, wheat that was harvested from fields in Archer, Baylor, Throckmorton, or Young Counties, TX, in the 2000-2001 growing season, and that tested negative for Karnal bunt after harvest, is eligible for compensation in accordance with paragraph (a) of this section.”

With regard to seed, the regulations in effect prior to this rule limit compensation payments to certified seed and seed being grown as certified seed. This provision does not address compensation in situations where a producer holds back grain from sale in order to use it as seed the next season. This practice of holding back grain for use as seed is common in regulated areas of Texas but is rare in other regulated States. The regulations do not address losses associated with the inability of producers to use held-back grain as seed for planting the next year's crop if Karnal bunt spores are detected in that grain. Because they cannot use spore-positive held-back grain as seed for planting, growers must purchase replacement seed to plant next year's crop.

Growers who hold back wheat in order to use it as seed only to find that it contains Karnal bunt spores may be able to sell that wheat as grain, but the cost of replacement seed will exceed the income generated from the sale of the seed as grain. Approximately 176 growers, and 483,000 bushels of uncertified seed, are affected by this situation. The growers involved will incur losses between $2 and $3 per bushel. As an incentive for program participation, we intend to partially mitigate this loss by changing the regulations to make producers in this situation eligible for compensation for held-back grain intended for use as seed that is determined to be Karnal bunt spore-positive. The current compensation cap on both grain and seed is $1.80 per bushel in an area under the first regulated crop season and $0.60 per bushel in previously regulated areas, regardless of the actual loss.

To accomplish this change, we are changing the last sentence of the introductory text of § 301.89-15(a) to read “The compensation provided in this section is for wheat grain, certified wheat seed, wheat held back from harvest by a grower in the 2000-2001 growing season for use as seed in the next growing season, and wheat grown with the intention of producing certified wheat seed.”

Another case where the regulations in effect prior to this rule did not provide compensation applies to the owners of uncertified Karnal bunt spore-positive seed that has been treated with fungicides or other chemicals, and thus cannot be sold as grain. The regulations did not allow compensation for uncertified seed, or provide any reimbursement for disposal costs. An estimated 56,000 bushels of uncertified treated seed tested positive for spores in the 2000-2001 growing season. This treated seed cannot be used for consumption by humans or animals; it must be disposed of in an approved manner, such as burying in a landfill or on-farm disposal.

We are adding a paragraph to provide compensation for the disposal costs for treated uncertified wheat seed. This compensation for disposal costs is in addition to the payments discussed in the previous section regarding compensation for replacing uncertified seed. The cost to bury wheat seed, whether on the producer's premises or at a landfill, is about $1.00 per bushel. In addition, there are transportation costs involved in moving seed to a landfill, which average about $0.20 per bushel. Therefore, we are adding new paragraph § 301.89-15(e) to read as follows: “(e) Special allowance for disposal costs for treated uncertified wheat seed in Archer, Baylor, Throckmorton, and Young Counties, TX, in the 2000-2001 growing season. Notwithstanding any other provision of this section, growers in Archer, Baylor, Throckmorton, or Young Counties, TX, who own treated uncertified wheat seed that tested positive for Karnal bunt spores during the 2000-2001 growing season are eligible for compensation in accordance with this paragraph. The grower is eligible for compensation for the costs of disposing of such wheat seed, by burial on the grower's premises, by burial at a landfill, or through another means approved by APHIS. The compensation for disposing of wheat seed by burial on the grower's premises is $1.00 per bushel. The compensation for disposing of wheat seed by burial at a landfill, or through another means approved by APHIS, is the actual cost of disposal, up to $1.20 per bushel, as verified by receipts for disposal costs. To apply for this compensation, the grower must submit a Karnal Bunt Compensation Claim form, provided by the Farm Service Agency, and must also submit a copy of the Karnal bunt certificate issued by APHIS that shows the Karnal bunt test results, and verification as to the actual (not estimated) weight of the uncertified wheat seed that tested positive for spores (such as a copy of a facility weigh ticket, or other verification). For seed disposed of by burial at a landfill, the grower must also submit one or more receipts for the disposal costs of the uncertified wheat seed, showing the total bushels destroyed and the total disposal costs (landfill fees, transportation costs, etc.).”

Approximately 2.8 million bushels of wheat stored in bins in Texas is considered Karnal bunt positive; some of this wheat was grown in regulated areas and an unknown amount was grown by Texas producers located outside the regulated area and by producers located in Oklahoma. Because of commingling, all 2.8 million bushels—including that wheat grown outside of the regulated area—is considered positive. The regulations provide that to be eligible for compensation, the wheat must be grown in a State where the Secretary has declared an extraordinary emergency and must meet certain other criteria. Therefore, prior to this rule, compensation could be paid for that portion of the 2.8 million bushels that was grown in Texas, but the wheat grown in Oklahoma was not eligible for compensation, because the Secretary has not declared an extraordinary emergency in that State.

To address this, we are adding a new sentence to § 301.89-15(a), the paragraph that describes eligibility for compensation of growers and handlers. The new sentence reads “Growers and handlers of wheat grown in Oklahoma during the 2000-2001 growing season are eligible to receive compensation if the wheat was commingled in storage with wheat that meets the above requirements of this paragraph.” This change allows compensation to be paid to Oklahoma growers and handlers whose wheat has been commingled in Texas with Texas-grown Karnal bunt positive wheat during storage. The Oklahoma growers and handlers will receive the same compensation as the Texas growers; i.e., payments of up to $1.80 per bushel.

The regulations state that, beginning with the 2001-2002 crop season, growers who knowingly plant wheat in previously regulated areas are not eligible for compensation. We included this requirement based on our belief that the regulations should not provide “insurance” for growers who knowingly take the risk of planting in an area where their wheat crop faces an increased risk of testing positive for Karnal bunt. Growers who are aware that previously regulated areas present a greater risk of contaminating their crop with Karnal bunt can choose to alter their planting or contracting decisions to avoid experiencing losses due to Karnal bunt. However, when this policy was announced in the August 6, 2001, final rule, growers in northern Texas were faced with a situation where they had incomplete knowledge upon which to base their business decisions for the next growing season. Karnal bunt was discovered in northern Texas well into the 2000-2001 growing season, reducing the time growers had to plan for the next season. While APHIS had declared four entire counties as regulated areas, there had been only limited testing of certain fields in those counties (about 150 fields were tested before the final rule), and growers knew that the regulated area might be either reduced to less than the entire counties, or conversely expanded to include fields in adjacent counties, depending on future test results. Therefore, growers could not make fully informed business decisions on whether it was prudent to plant wheat in the four regulated counties, or adjacent areas, in the 2001-2002 growing season. The discovery of Karnal bunt in these counties also came at the same time growers were making commitments for field usage, seed, and equipment for the next growing season, and some growers had already committed to growing wheat the following year in what became a regulated area. Finally, the weather and moisture conditions in this part of northern Texas make it unlikely that growers could successfully substitute another crop for wheat in the regulated areas.

For these reasons, growers in the four northern Texas counties have sought 1-year deferral of the regulatory requirement that growers who knowingly plant wheat in previously regulated areas are not eligible for compensation. We agree that to enforce the requirement in this case would represent an unanticipated and unintended hardship on growers in the Texas counties of Archer, Baylor, Throckmorton, and Young, and are changing the regulations to make this provision take effect, with regard only to only those counties, beginning with the 2002-2003 crop season instead of the 2001-2002 crop season. This deferral does not apply to the 27 fields in northern Texas that were discovered to be infected (i.e., to contain one or more bunted kernels) in the course of Karnal bunt surveys in 2001, as owners of these fields had timely notice of the survey results and had a reasonable opportunity to change their planting plans for the next season.

To accomplish this change, we are adding an exception to the second-to-last sentence of the introductory text of § 301.89-15(b), “Growers, handlers, and seed companies in previously regulated areas.” As amended, that sentence reads: “Growers, handlers, and seed companies in previously regulated areas will not be eligible for compensation for wheat from the 2001-2002 and subsequent crop seasons; except that, for growers or handlers of wheat harvested in any field in the Texas counties of Archer, Baylor, Throckmorton, and Young during the 2000-2001 crop season that has not been found to contain a bunted wheat kernel, this requirement applies to compensation for wheat from the 2002-2003 and subsequent crop seasons.”

As discussed previously, this rule extends existing compensation provisions to cover certain additional growers, handlers, and owners of grain storage facilities to mitigate losses and expenses incurred in the 2000-2001 crop season because of the Karnal bunt quarantine and emergency actions. The regulations in § 301.89-15(c) provide that compensation payments to growers, handlers, and seed companies will be issued by the Farm Service Agency (FSA), and that claims for compensation must be received by FSA on or before March 1 of the year following the crop season during which the losses occurred. Thus, claims for compensation for the 2000-2001 crop season were due on March 1, 2002. The regulations in § 301.89-15(c) also provide that the Administrator may extend the deadline, upon request in specific cases, when unusual and unforeseen circumstances occur that prevent or hinder a claimant from requesting compensation on or before these dates. Given that the effective date of this rule falls after the March 1, 2002, deadline cited above, we are extending, for a period of 90 days from the effective date of this rule, the 2000-2001 crop season claims deadline to provide for the submission of claims for the compensation provided for by this interim rule. Such claims must be received by FSA on or before July 30, 2002.

This rulemaking is necessary on an emergency basis to eliminate the risk presented by maintaining large stores of Karnal bunt-positive wheat, which cannot be destroyed until its eligibility for indemnity is clarified. The indemnity payments authorized by this rule are also necessary in order to reduce the economic effect of the Karnal bunt regulations on affected wheat growers and other individuals and to help obtain cooperation from affected individuals in our efforts to contain and reduce the prevalence of Karnal bunt. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

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

This rule has been reviewed under Executive Order 12866. The rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

This rule extends existing compensation provisions to cover certain additional growers, handlers, and owners of grain storage facilities to mitigate losses and expenses incurred in the 2000-2001 crop season because of the Karnal bunt quarantine and emergency actions. The affected parties are primarily growers and handlers in four northern Texas.

Below is an economic analysis for this interim rule. The economic analysis provides a cost-benefit analysis as required by Executive Order 12866 and an analysis of the potential economic effects on small entities as required by the Regulatory Flexibility Act.

The following economic analysis indicates that the cost of the rule would be about $4.8 million. It would be necessary to obtain these funds from the Commodity Credit Corporation. Benefits cannot be monetized with accuracy, but would include averting future wheat crop losses that would occur without the improved producer participation this rule is expected to achieve.

Benefits would also include greater likelihood of grower cooperation in Karnal bunt testing requirements and participation in the National Karnal Bunt Survey.

Prior to this rule, the regulations did not allow for compensation for any Karnal bunt-negative wheat. 1 This rule allows compensation for losses associated with certain negative wheat, i.e., elevator-tested-negative wheat harvested in the 2000-2001 crop season in northern Texas. The level of compensation offered is the same as that currently being offered for positive-testing grain and certified seed in first regulated areas, i.e., up to $1.80/bushel. The four-county regulated area in northern Texas became a regulated area in the 2000-2001 crop season.

Approximately 7.4 million bushels of negative-tested wheat from the four-county regulated area in northern Texas is currently stored in grain elevators. Even though it is Karnal bunt-negative, this wheat cannot be exported to major markets as it normally would be because it was tested after harvest at the elevator, not in the field. (Major foreign importers will accept U.S. wheat only if it can be certified as coming from an area where Karnal bunt is not known to exist. Such certification is currently based on testing at the field level.) In northern Texas this past crop season, most wheat had already been harvested when Karnal bunt was discovered, so it could only be tested in bins. The glut on the local domestic market created by the absence of an export outlet, and the reluctance of some mills to accept “tainted” wheat that may move only under a limited permit, have severely limited the market for this negative wheat, resulting in a loss in its value.

The loss in value of the negative grain is estimated at about $0.35/bushel. Based on this per bushel loss estimate, compensation will total about $2.6 million for all 7.4 million bushels of grain.

It is estimated that approximately 20 to 30 handlers will be affected by this rule, including two handlers who, together, account for 70 percent of the 7.4 million affected bushels.

Prior to this rule, the regulations limited compensation payments to certified seed and seed being grown as certified seed, and did not address losses associated with the inability of growers to use held-back grain that is found to be spore-positive for planting the next year's crop. This rule makes compensation available for such losses on a one crop season-only basis, i.e., for grain grown in the 2000-2001 crop season intended for use in planting the 2001-2002 season's crop. The level of compensation offered is the same as that currently being offered for positive-testing grain and certified seed in the 2000-2001 crop season, i.e., up to $1.80/bushel in first regulated areas and $0.60/bushel in previously regulated areas.

Growers in Texas normally hold back a quantity of grain for use as seed in the next planting season. During the 2000-2001 crop season, approximately 483,000 bushels of this seed (457,000 bushels in the four northern Texas counties and 26,000 bushels in San Saba County, Texas) tested negative for bunted kernels but positive for spores, which means that it can be used for grain but not seed. Growers, therefore, will have to purchase replacement seed. However, the cost of replacement seed will exceed the income generated from the sale of the seed as grain, meaning that growers involved will incur losses. Grower losses, before any compensation from USDA, are estimated to range between $2 and $3/bushel.

Total compensation is estimated at $838,200; i.e., $822,600 for the 457,000 bushels in the four newly regulated northern Texas counties (457,000 × $1.80), and $15,600 for the 26,000 bushels in previously regulated San Saba County (26,000 × $0.60). Since grower losses are expected to range between $2 and $3/bushel, growers and handlers qualify for compensation at the maximum levels offered. Approximately 176 growers will be affected by this aspect of the rule.

Prior to this rule, there was no compensation for the cost of disposing of uncertified treated seed that tests positive for spores or bunted kernels. This rule allows for such compensation on a one crop season-only basis, i.e., for seed grown in the 2000-2001 crop season. This compensation for disposal costs is in addition to the payments discussed in the previous paragraphs regarding compensation for replacing uncertified seed. The level of compensation offered for the cost of disposing of uncertified treated seed that tests positive for spores or bunted kernels is $1.00/bushel, or up to $1.20/bushel, depending on whether the seed is disposed of in a landfill or on-farm. The former is for on-farm disposal, the latter for landfill disposal. 2 The landfill disposal cost of $1.00/bushel is based on a telephone survey of regional landfills conducted by the APHIS Texas area office.

As indicated above, approximately 457,000 bushels of uncertified seed grown in the four northern Texas counties in the 2000-2001 crop season tested positive for spores. Of that total, about 38,000 bushels were treated with fungicides prior to testing, which means that it cannot be used for consumption by humans or animals; it must be disposed of in an approved manner, e.g., burying it in a landfill or disposing of it on-farm. Such disposal requirements impose additional costs on growers.

In addition, about 18,000 bushels of uncertified seed grown in the four northern Texas counties in the 2000-2001 crop season tested positive for bunted kernels. These 18,000 bushels, because they were treated with fungicides prior to testing, must also be disposed of in an approved manner.

For all 56,000 bushels, compensation is estimated to total $66,080. This compensation estimate assumes that 50,400 bushels, or 90 percent of the total affected bushels, will be disposed of in a landfill at a cost of $1.20/bushel, and that the remainder (5,600 bushels) will be disposed of on-farm at a cost of $1.00/bushel. 3 Approximately 15 to 20 growers will be affected by this change.

Prior to this rule, handlers in Texas were not eligible for compensation for losses associated with any wheat grown outside the regulated area that was declared positive because it was commingled in storage with positive wheat grown in the regulated areas. This rule offers such compensation. The level of compensation offered will be the same as that currently being offered for positive-testing grain and certified seed in first regulated areas, i.e., up to $1.80/bushel.

Approximately 2.8 million bushels of Karnal bunt-positive wheat is stored in bins in Texas, including a relatively small amount (no more than 25,000 bushels) of wheat grown by producers located in Oklahoma. (Because of commingling, all of the grain—including that grown outside the regulated area is considered positive.) The one handler who owns all of the Oklahoma-grown wheat has incurred losses, because it was purchased from the Oklahoma producers at the price for Karnal bunt-negative wheat but can now be sold only at the much lower price for positive wheat. Prior to this rule, the regulations provided that, for handlers and others to be eligible for compensation, the wheat must have been grown in a State where the Secretary has declared an extraordinary emergency and meet certain other criteria. Thus, compensation was available for that portion of the 2.8 million bushels that was grown in Texas, but the wheat grown in Oklahoma, because the Secretary has not declared an extraordinary emergency in that State, was not eligible for compensation.

Compensation is estimated to total no more than $45,000 (25,000 bushels x $1.80). One handler will be affected by this aspect of the rule.

The regulations in effect prior to this interim rule stated that, effective with the 2001-2002 crop season, growers who knowingly plant wheat in previously regulated areas are not eligible for compensation. This rule defers, for 1 year, the effective date of that ineligibility provision with regard to the four-county regulated area in northern Texas (excluding areas in or near one of the 27 known infected fields).

Growers in northern Texas have argued that, because of limited testing, they and USDA have limited knowledge about the status of fields in the regulated area and the risk of infection next year. The growers requested the 1-year deferral to allow for the completion of next year's delimiting survey.

The estimated amount of compensation that will result from the 1-year deferral for growers in the four-county regulated area in northern Texas is unknown, because future infection rates are unknown. However, based on operational experience conducting the Karnal bunt program in other areas, there is no reason to believe that next year's compensation costs will be higher than this year's total. If 43 percent of the 5 million bushels expected to be produced in the four-county regulated area during 2000-2001 turn up positive, the compensation would total $1,290,000 (2,150,00 bushels × $0.60). The infection rate of 43 percent is an average of last year's infection rate in Arizona's largest production area and in San Saba County, TX. This aspect of the rule will affect approximately 400 to 450 growers in northern Texas.

The Regulatory Flexibility Act requires that agencies consider the economic impact of rules on small businesses, organizations, and governmental jurisdictions. Growers and handlers of wheat grain and seed are those most affected by this rule. It is estimated that there are a total of 420 to 480 wheat growers and handlers potentially affected by this rule, most of whom are located in the four northern Texas counties of Archer, Baylor, Throckmorton, and Young. Most of these entities have total annual sales of less than $750,000, the Small Business Administration's threshold for classifying wheat producers as small entities. Accordingly, most economic impacts of this rule will be on small entities.

This rule is expected to have a positive economic impact on all affected entities, large and small. Although most of the affected entities are small in size, the bulk of this rule's benefits, in dollar terms, are likely to accrue to two large handlers. Compensation for Karnal bunt-related losses and expenses serves to encourage compliance with testing requirements within the regulated areas, thereby aiding in the preservation of an important wheat growing region in the United States. It also serves to encourage participation in the National Karnal Bunt Survey program.

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

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

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

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

This document corrects the test procedure in a final rule published in the Federal Register on December 18, 2001 (66 FR 65091), regarding Energy Conservation Program for Consumer Products: Test Procedure for Dishwashers. This correction revises a reference to an appendix section and revises the equations for determining the water energy consumption per cycle using gas-heated or oil-heated water.

In rule document FR Doc. 01-18429, appearing on page 65091, in the issue of Tuesday, December 18, 2001, the following corrections are made:

The Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, recently notified the FAA that an unsafe condition may exist on certain EMBRAER Model EMB-135 and -145 series airplanes. The DAC advises that reports have been received indicating loss of the set point of the actuator clutches of the primary and backup systems of the horizontal stabilizer. This condition, if not corrected, could result in loss of pitch trim command during the takeoff and climb phase of flight, which could result in high pitch control forces and consequent reduced controllability of the airplane.

EMBRAER has issued Service Bulletin 145-27-0082, dated September 18, 2001, which describes procedures for inspections (tests) of the actuator clutches of the primary and backup pitch trim systems of the horizontal stabilizer for proper pitch trim indications, and replacement of the actuator, if necessary. The service bulletin describes the test for proper pitch trim indications of the primary pitch trim system as applying sequential nose-up trim commands (maximum of four attempts) of 3 seconds each from the pilot or co-pilot yoke trim switch, until a PIT TRIM 1 INOP or PIT TRIM 2 INOP message appears, which indicates that the clutch is acceptable. The test for proper pitch trim indications of the backup pitch trim system is the same, but is done using either the main or backup trim switches. If there is no message and the measured voltage during the trimming attempts is greater than 1 volt, the clutch is slipping and the actuator must be replaced with an improved actuator.

The DAC classified this service bulletin as mandatory and issued Brazilian airworthiness directive 2001-10-02R1, dated February 4, 2002, in order to assure the continued airworthiness of these airplanes in Brazil.

These airplane models are manufactured in Brazil and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD requires accomplishment of the actions specified in the service bulletin described previously.

Brazilian airworthiness directive 2001-10-02, dated November 15, 2001, was superseded by airworthiness directive 2001-10-02R1, dated February 4, 2002, to remove airplane serial number 145499 from the serial numbers listed in the applicability. That serial number has not yet been removed from the effectivity specified in the referenced service bulletin. Therefore, the applicability specified in this AD is identical to that in airworthiness directive 2001-10-02R1.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

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

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-68-AD.” The postcard will be date stamped and returned to the commenter.

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

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

On April 8, 2002, the FAA issued emergency AD 2002-08-51, which is applicable to Airbus Model A300 B2 and B4 series airplanes equipped with General Electric CF6-50 engines.

The FAA has received a report that, on February 16, 2002, uncommanded deployment of a thrust reverser occurred on the number 1 engine of a McDonnell Douglas Model DC-10-30 airplane equipped with General Electric CF6-50 engines. The uncommanded deployment occurred following climb and level-out at 17,000 feet. The flightcrew reported severe buffeting of the airplane with yaw to the left and pitch down of about five degrees. The “REV UNLOCK” light was illuminated prior to onset of the buffeting. The flightcrew shut down the engine, dumped fuel, turned back to the departure airport, and landed the airplane. No injuries were reported among passengers or crew.

Uncommanded deployment of a thrust reverser with a dual translating cowl requires a minimum of two failures: (1) The over pressure shut-off valve (OPSOV) must let pressure enter into the thrust reverser actuation system; and (2) the directional pilot valve (DPV) must command this pressure in the deploy direction. The cause of the presence of pressure in the thrust reverser system has not been determined.

Results of a subsequent investigation by the engine manufacturer revealed that the DPV was misassembled during overhaul by the DPV manufacturer in 1997. The DPV was installed on the incident airplane in 1999. The misassembly involved incorrect installation of a washer and bushing in the DPV piston/poppet assembly. Results of vibration-table testing showed that a DPV misassembled in this way could change positions from “stow command” to “deploy command” on its own. When a DPV is in the “deploy command” position, a single failure of the OPSOV could result in an uncommanded deployment of the thrust reverser during flight. This condition, if not corrected, could result in reduced controllability of the airplane.

Model A300 B2 and B4 series airplanes equipped with General Electric CF6-50 engines have the same nacelle and thrust reverser system as the airplane on which the event described previously occurred. Since a misassembled DPV may be installed on Model A300 B2 and B4 series airplanes, those airplanes may be subject to the unsafe condition identified in this AD.

Airbus has issued All Operators Telex (AOT) A300/78A0023, dated April 5, 2002, which describes procedures for deactivating both thrust reversers on Model A300 B2 and B4 series airplanes. The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, classified this AOT as mandatory and issued French telegraphic airworthiness directive 2002-189(B), dated April 5, 2002, to ensure the continued airworthiness of these airplanes in France.

The “Explanation of Relevant Service Information” section of the emergency AD states, “The DGAC * * * issued French telegraphic airworthiness directive 2001-523(B), dated April 5, 2002, to ensure the continued airworthiness of these airplanes in France.” The number of the French telegraphic airworthiness directive as cited in the emergency AD is incorrect. The correct number is 2002-189(B). The correct number has been cited in the section above as well as in NOTE 4 of this amendment. The date for the French telegraphic airworthiness directive, April 5, 2002, is correct as cited.

This airplane model is manufactured in France and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above as it pertains to Airbus Model A300 B2 and B4 series airplanes. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since the unsafe condition described is likely to exist or develop on other airplanes of the same type design registered in the United States, the FAA issued emergency AD 2002-08-51 to prevent uncommanded in-flight deployment of a thrust reverser, which could result in reduced controllability of the airplane. The AD requires deactivating both thrust reversers in accordance with the AOT described previously. Additionally, this airworthiness directive requires revising the FAA-approved airplane flight manual (AFM) to require performance penalties during certain takeoff conditions to ensure that safe and appropriate performance is achieved for airplanes on which both thrust reversers have been deactivated. On an interim basis, this AD includes a penalty of five percent of the acceleration-stop distance for takeoffs on wet or contaminated runways. This penalty is an estimate that is necessary to provide an acceptable level of safety until we receive more information and a more precise performance penalty can be established.

Since it was found that immediate corrective action was required, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual notices issued on April 8, 2002, to all known U.S. owners and operators of Airbus Model A300 B2 and B4 series airplanes equipped with General Electric CF6-50 engines. These conditions still exist, and the AD is hereby published in the Federal Register as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective to all persons.

As stated above, the incident described previously occurred on a McDonnell Douglas Model DC-10-30 airplane equipped with General Electric CF6-50 engines. The FAA is planning to issue an airworthiness directive similar to this one, to require revising the AFM and deactivating the thrust reversers under certain conditions on those airplanes. Because the identified unsafe condition may be especially critical for Airbus Model A300 B2 and B4 series airplanes, the FAA finds it appropriate to proceed with this action applying to those airplanes now.

This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-107-AD.” The postcard will be date-stamped and returned to the commenter.

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

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

On August 13, 2001, the FAA issued AD 2001-17-04, amendment 39-12395 (66 FR 43768, August 21, 2001), applicable to certain EMBRAER Model EMB-135ER and -135LR series airplanes, and Model EMB-145, -145ER, -145MR, and -145LR series airplanes. That AD requires a one-time visual inspection to determine if the two bonding jumpers that connect the horizontal stabilizer to the vertical stabilizer are properly installed, and replacement of the jumper with a new jumper, if necessary. That AD also requires a one-time visual inspection to determine if the supports that connect the bonding jumpers to the horizontal stabilizer are deformed, and corrective actions, if necessary. That AD was prompted by a report indicating that a post-lightning strike inspection of a Model EMB-145 series airplane revealed that the bonding jumpers that electrically bond the vertical and horizontal stabilizers were severed, the elevator cables were damaged, one elevator cable was severed, and the other elevator cable had arcing damage. The actions required by that AD are intended to prevent reduced elevator control capability, and consequent reduced controllability of the airplane, due to severed bonding jumpers.

Since the issuance of that AD, the Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, has advised that a recent lightning strike event occurred on a Model EMB-145 series airplane. Subsequent inspection revealed that both bonding jumpers of the horizontal-to-vertical stabilizer were severed; the control cables of the left lower and right upper elevators near the rear sectors on the horizontal-to-vertical stabilizer were also severed. The results of the inspection indicated that one of the bonding jumpers may have been damaged or severed prior to the lightning strike, which could have resulted in the lightning current path traveling through the elevator control cables. The airplane involved in the lightning strike event had been inspected at the factory using the procedures specified in EMBRAER Alert Service Bulletin 145-55-A025, dated June 5, 2001, which is required by AD 2001-17-04. Because certain airplanes had already been inspected per EMBRAER Alert Service Bulletin 145-55-A025 at the factory, they were therefore not subject to the requirements of that AD. In light of this information, the FAA finds that all EMBRAER Model EMB-145 and -135 series airplanes are subject to the identified unsafe condition. The applicability of this AD has been revised accordingly.

• The manufacturer has issued EMBRAER Alert Service Bulletin 145-55-A028, dated April 10, 2002, which describes the following procedures:

• Repetitive visual inspections of both bonding jumpers of the horizontal-to-vertical stabilizer to detect overstretching, fraying, or other damage; and misalignment or other incorrect installation;

• Repetitive visual inspections of the two supports that connect the bonding jumpers to the horizontal stabilizer to detect deformation and signs of cracks or ruptures; and

• Inspection of any discrepant support to assess the general condition of its paint.

The alert service bulletin also describes procedures for corrective actions, which include replacing any discrepant part with a new one and restoring the support paint. The DAC classified this alert service bulletin as mandatory and issued Brazilian emergency airworthiness directive 2001-06-03 R1, dated April 11, 2002, to ensure the continued airworthiness of these airplanes in Brazil.

Alert Service Bulletin 145-55-A028 refines the procedures specified in EMBRAER Alert Service Bulletin 145-55-A025 (which is cited in AD 2001-17-04 as the appropriate source of service information for the one-time inspection and associated follow-on actions). In addition, Alert Service Bulletin 145-55-A028 recommends that the inspection be repeated at regular intervals. In other respects, the procedures specified in the two alert service bulletins are similar.

These airplane models are manufactured in Brazil and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD supersedes AD 2001-17-04 to continue to require a one-time inspection to assess the installation of the bonding jumpers that connect the horizontal stabilizer to the vertical stabilizer, a one-time inspection to determine if the supports that connect the bonding jumpers to the horizontal stabilizer are deformed, and corrective actions if necessary. This AD also requires accomplishment of the repetitive inspections and corrective actions if necessary, per EMBRAER Alert Service Bulletin 145-55-A028, as described previously, except as discussed below. This AD also requires that operators report the results of each new repetitive inspection to the DAC.

This AD requires accomplishment of the initial inspection within 100 flight hours, although EMBRAER Alert Service Bulletin 145-55-A028 specifies an initial compliance time of 200 flight hours. The FAA and the DAC have determined that a 200-flight-hour compliance time will not address the identified unsafe condition in a timely manner. In developing an appropriate compliance time for this AD, the FAA considered the recommendations of both the DAC and the manufacturer, the degree of urgency associated with addressing the identified unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the inspection (about 2 hours). In light of all of these factors, the FAA finds a 100-flight-hour initial compliance time warranted because it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.

In addition, this AD requires that the inspection required by this AD be performed immediately following a lightning strike or the removal of the horizontal stabilizer, the horizontal stabilizer actuator, or either seal fairing. The Brazilian emergency airworthiness directive does not specifically mandate an immediate inspection under those circumstances. This AD includes these requirements to ensure that the inspections are performed and reports are submitted following any of these maintenance procedures or any lightning strike event.

This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

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

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification (e.g., reasons or data) for each request.

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket 2002-NM-111-AD.” The postcard will be date stamped and returned to the commenter.

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

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

(m) This amendment becomes effective on May 16, 2002.

On March 12, 2002, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class D airspace at Greenville Donaldson Center, SC, amending Class E2 airspace at Greer, Greenville-Spartanburg Airport, SC, and amending the Class E5 airspace at Greenville, SC (67 FR 11068). Class D airspace designations for airspace areas extending upward from the surface of the earth and Class E airspace designations for airspace areas designated as surface areas and airspace areas extending upward from 700 feet or more above the surface of the earth are published in Paragraphs 5000, 6002, and 6005 respectively, of FAA Order 7400.9J, dated August 31, 2001, and effective September 16, 2001, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR part 71) establishes Class D airspace at Greenville Donaldson Center, SC, amends Class E2 Airspace at Greer, Greenville-Spartanburg, SC, and amends Class E5 airspace at Greenville, SC.

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

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553 (b) (B), the Coast Guard finds that good cause exists for not publishing a NPRM and under 5 U.S.C. 553 (d) (3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Publishing a NPRM and delaying its effective date would be contrary to public interest since immediate action is needed to respond to the security concerns which are associated with the transit of cruise ships.

On September 11, 2001, both towers of the World Trade Center and the Pentagon were attacked by terrorists. National security and intelligence officials have warned that future terrorist attacks against civilian targets may be anticipated.

In response to these terrorist acts and warnings, heightened awareness for the security and safety of all vessels, ports, and harbors is necessary. Due to the increased safety and security concerns surrounding the transit of cruise ships, the Captain of the Port, Houston—Galveston is establishing temporary security zones around these vessels.

For the purpose of this rule the term “cruise ship” is defined as a passenger vessel over 100 gross tons, carrying more than 12 passengers for hire, making a voyage lasting more than 24 hours any part of which is on the high seas, and for which passengers are embarked or disembarked in the United States or its territories. This definition covers passenger vessels that must comply with 33 CFR parts 120 and 128.

The moving security zones will commence when a cruise ship passes the Galveston Bay Approach Lighted Buoy “GB” inbound and continues through its transit, mooring, and return transit until it passes the sea buoy outbound. The establishment of moving security zones described in this rule will be announced to mariners via Marine Safety Information Broadcast. In the Ports of Houston or Galveston, all vessels within 500 yards of a cruise ship must operate at the minimum safe speed required to maintain a safe course. Except as described in this rule, no vessel is permitted to enter within 100 yards of a cruise ship unless expressly authorized by the Captain of the Port Houston—Galveston.

The Houston Ship Channel narrows to 400 feet or less near Houston Ship Channel Entrance Lighted Bell Buoy “18” and continues at this width through Barbours Cut. Between these points vessels that must transit the navigable channel may seek to gain permission to pass within 100 yards of cruise ships from the Captain of the Port Houston—Galveston or his designated representative. Mariners that anticipate encountering a cruise ship in this section of the channel are encouraged to contact “Houston Traffic” prior to getting underway.

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

The Coast Guard expects the economic impact of this rule to be so minimal that a full regulatory evaluation is unnecessary under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. The impacts on routine navigation are expected to be minimal as the zones will only impact navigation for a short period of time and the size of the zones allows for the transit of most vessels with minimal delay.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit a narrow portion of the Houston-Galveston Ship Channel during a transit of a cruise ship in the same narrow location. These security zones will not have a significant economic impact on a substantial number of small entities for the following reasons:

1. Between the Houston-Galveston Sea buoy and Houston Ship Channel Entrance Lighted Bell Buoy “18” the size of the security zones allow for vessels to safely transit around or through the zones with minimal interference.

2. Between Houston Ship Channel Entrance Lighted Bell Bouy “18” and Barbours Cut the channel narrows to 400 feet. In this section the Captain of the Port Houston-Galveston through Vessel Traffic Service (VTS) Houston-Galveston, “Houston Traffic,” and designated on scene personnel, may grant permission to pass within 100 yards of a vessel described by this rule to vessels which must transit the navigable channel.

If you are a small business entity and are significantly affected by this regulation please contact, LTJG George Tobey, Marine Safety Office Houston-Galveston, Texas, Port Waterways Management, at (713) 671-5100.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

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

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

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

The direct final rule would have extended the compliance date for existing sources to December 23, 2003. We believe this extension was reasonable to allow sources time to assess the compliance impacts of the proposed Settlement Agreement between EPA and the American Crop Protection Association and BASF Corporation and the agreed-upon rule amendments that were proposed on April 10, 2002 (67 FR 17492). We stated in the direct final rule that if adverse comments were received by April 22, 2002, we would publish a timely withdrawal of the direct final rule, which would have had an effective date of May 21, 2002. We received an adverse comment and, therefore, are withdrawing the direct final rule. We will address this comment in the subsequent final action on the parallel proposal.

The HHS Office of Inspector General (OIG) issued final regulations on March 18, 2002 (67 FR 11928) setting forth several revisions and technical corrections to the OIG regulations pertaining to fraud and abuse in Federal health care programs. Among other revisions, to more accurately reflect threshold amounts with respect to exclusion actions, we clarified § 1001.201(b) to reflect as an aggravating and mitigating factor both the actual and intended loss to programs associated with the conduct of the sanctioned individual or entity. In the final regulations, a typographical error appeared in § 1001.201(b)(3)(i), with regard to one of the mitigating factors. Specifically, with respect to the amount of financial loss to a Government program or to other individuals or entities due to the acts that resulted in the conviction and similar acts, the amount appearing on page 11933 of the March 18, 2002 final regulations incorrectly indicated this amount as “**$1,5000**.” This is now being corrected to read as “$1,500.”

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-13, MM Docket No. 01-20 , MM Docket No. 01-80, MM Docket No. 01-81; MM Docket No. 01-102, MM Docket No. 01-103, MM Docket No. 01-114, MM Docket No. 01-136, and MM Docket No. 01-201 adopted April 3, 2002, and released April 12, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, S.W., Room CY-B402, Washington, DC 20554.

The Commission, at the request of Bernice P. Hedrick, allots Channel 233A at Woodbury, Georgia, as the community's first local aural transmission service. See 66 FR 8560, February 1, 2001. Channel 233A can be allotted at Woodbury in compliance with the Commission's minimum distance separation requirements with a site restriction of 6.4 kilometers (10.2 miles) west to avoid short-spacings to the licensed sites of Station KVIC(FM), Channel 236C3, Victoria, Texas, and Station KIKK-FM, Channel 239C, Houston, Texas. The coordinates for Channel 233A at Woodbury are 32-54-40 North Latitude and 84-28-34 West Longitude.

The Commission, at the request of Reliance Broadcasting, allots Channel 265C3 at Reliance, Wyoming, as the community's first local aural transmission service. See 66 FR 10659, February 16, 2001. Channel 265C3 can be allotted to Reliance in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The coordinates for Channel 265C3 at Reliance are 41-40-09 North Latitude and 109-11-47 West Longitude.

The Commission, at the request of Stargazer Broadcasting, Inc., allots Channel 237C3 at Eagle Lake, Texas, as the community's first local aural transmission service. See 66 FR 20223, April 20, 2001. Channel 237C3 can be allotted at Eagle Lake in compliance with the Commission's minimum distance separation requirements with a site restriction of 16.4 kilometers (10.2 miles) west to avoid short-spacings to the licensed sites of Station KVIC(FM), Channel 236C3, Victoria, Texas, and Station KIKK-FM, Channel 239C, Houston, Texas. The coordinates for Channel 237C3 at Eagle Lake are 29-35-15 North Latitude and 96-30-03 West Longitude.

The Commission, at the request of Montana Magic Investments, Inc., allots Channel 293A at Montana City, Montana, as the community's first local aural transmissions service. See 66 FR 20223, April 20, 2001. Channel 293A can be allotted at Montana City in compliance with the Commission's minimum distance separation requirements with a site restriction of 3.8 kilometers (2.4 miles) north to avoid a short-spacing to the license site of Station KWYS-FM, Channel 293C, Island Park, Idaho. The coordinates for Channel 293A at Montana City are 46-33-43 North Latitude 111-57-39 West Longitude. Since Montana City is located within 320 kilometers (200 miles) of the U.S.-Canadian border, concurrence of the Canadian government was requested but has not been received. If a construction permit is granted prior to the receipt of formal concurrence in the allotment by the Canadian government, the construction permit will include the following condition: “Operation with the facilities specified herein is subject to modification, suspension, or termination without right to hearing, if found by the Commission to be necessary in order to conform to the USA-Canadian FM Broadcast Agreement.”

The Commission, at the request of Plainville Communications, Channel 285A at Plainville, Georgia, as the community's first local aural transmission service. See 66 FR 26826, May 15, 2001. Channel 285A can be allotted at Plainville in compliance with the Commission's minimum distance separation requirements with a site restriction of 6.5 kilometers (4.0 miles) northwest to avoid a short-spacing to the licensed site of Station WFSH-FM, Channel 284C1, Athens, Georgia. The coordinates for Channel 285A at Plainville are 34-25-58 North Latitude and 85-05-48 West Longitude.

The Commission, as the request of Craig Norlin, allots Channel 263A at Rosholt, Wisconsin, as the community's first local aural transmission service. See 66 FR 26826, May 15, 2001. Channel 263A can be allotted to Rosholt in compliance with the Commission's minimum distance separation requirements with a site restriction of 8.6 kilometers (6.3 miles) northwest to avoid a short-spacing to the license site of Station WIZD(FM), Channel 260C3, Rudolph, Wisconsin, and Station WNCY-FM, Channel 262C2, Neenah-Menasha, Wisconsin. The coordinates for Channel. 263A at Rosholt are 44-40-12 North Latitude and 89-23-45 West Longitude.

The Commission, at the request of Green River Radio Company, allots Channel 256A at Morgantown, Kentucky, as the community's first local aural transmission service. See 66 FR 31597, June 12, 2001. Channel 256A can be allotted at Morgantown in compliance with the Commission's minimum distance separation requirements with a site restriction of 11.9 kilometers (7.4 miles) west to avoid short-spacings to the licensed sites of Station WKNK(FM), Channel 256A, Edmonton, Kentucky, and Station WKDQ(FM), Channel 258C, Henderson, Kentucky. The coordinates for Channel 256A at Morgantown are 37-15-34 North Latitude and 86-48-40 West Longitude.

The Commission, at the request of Boswell Broadcasting Company, allots Channel 282C3 at Boswell, Oklahoma, the community's first local aural transmission service. See 66 FR 35768, July 9, 2001. Channel 282C3 can be allotted at Boswell in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The coordinates for Channel 282C3 at Boswell are 34-01-38 North Latitude and 95-52-08 West Longitude.

The Commission, at the request of Jeraldine Anderson, allots Channel 237A at Frederic, Michigan, as the community's first local aural transmission service. See 66 FR 46427, September 5, 2001. Channel 237A can be allotted at Frederic in compliance with the Commission's minimum distance separation requirements with a site restriction of 7.6 kilometers (4.7 miles) east to avoid short-spacings to the licensed sites of Station WCFX(FM), Channel 237A, Clare, Michigan, and Station WJZJ(FM), Channel 238C2, Glen Arbor, Michigan. The coordinates for Channel 237A at Frederic are 44-46-29 North Latitude and 84-39-29 West Longitude. Since Frederic is located within 320 kilometers (200 miles) of the U.S.-Canadian border, concurrence of the Canadian government has been obtained.

This is a synopsis of the Commission's Memorandum Opinion and Order, MM Docket No. 99-58, adopted April 10, 2002, and released April 19, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW, Washington, DC. This document may also be purchased from the Commission's duplicating contractors, Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-345, adopted April 10, 2002, and released April 19, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualtex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893.

This is a synopsis of the Commission's Report and Order, MM Docket Nos. 01-156, 01-158, adopted April 10, 2002, and released April 22, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

An electronic copy of this document may be downloaded using a modem and suitable communications software from the Government Printing Office's Electronic Bulletin Boards Service at (202) 512-1661. Internet users may reach the Federal Register 's home page at: http://www.nara.gov/fedreg and the Government Printing Office's database at: http://www.access.gpo.gov.

Internet users can access this document and all comments received by DOT through the Department's docket management system web site, http://dms.dot.gov. It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help.

The following guidance material is intended to assist air carriers and foreign air carriers (carriers) in submitting the information required by Appendix A of the Interim Final Rule on the Aviation Security Infrastructure Fee (IFR), as published on February 20, 2002 on page 7926 of volume 67 of the Federal Register . The information provided here is only intended as guidance. Carriers should not infer that it represents the only acceptable means of completing Appendix A. Please note that any comments related to the IFR that were received by the Transportation Security Administration (TSA) will be addressed separately and are not specifically addressed in this guidance. If TSA determines, either based on comments received or on its own analysis of the Appendix A forms received from carriers, that the applicable regulations or the guidance provided herein have been misunderstood or misapplied, TSA will contact the affected carriers individually and, if necessary, will issue further clarification in the future.

The instructions in Appendix A of the IFR address this issue. The instructions state: “Where actual costs of screening passengers and property cannot be directly identified through an air carrier's accounting system, the air carrier shall use appropriate alternate cost assignment methodology.” This broad flexibility is qualified by the requirement that “[a]ll costs reported in Appendix A must be consistent with the air carrier's financial accounting information reported in accordance with generally accepted accounting principles.” Further, carriers must provide to TSA, upon request, “[d]ocumentation that explains and supports the assignment methodology used, the applicable pool, and the allocation basis.”

In other words, where the costs of goods, services, etc., related to passenger and property screening were accounted for in calendar year 2000 (CY 2000) in a manner that commingled them with costs not related to passenger and property screening, then the carrier completing Appendix A may allocate a percentage of those total costs to passenger and property screening, as long as the allocation method is based on reasonable business practices. When assigning costs related to passenger and property screening, a carrier should use the best available information and must document, explain, and support its basis for using and applying that cost assignment methodology.

Example for assigning labor costs: One possible method is to apply the ratio of total time (hours) that an employee spent on responsibilities related to passenger and property screening versus the time spent on all responsibilities (screening time/total time) to the annual cost of the employee (salary, benefits, etc.). For example, if an employee spent 30 hours on screening related activities out of a 40-hour work week, then 75 percent of the cost of that employee would be allocated to the labor costs reported in Appendix A. If an employee had responsibilities solely related to screening passengers or property during CY 2000, then 100 percent of the annual cost of that employee must be included in Appendix A.

Example for assigning equipment costs (expensed or depreciated): One possible method is to apply the ratio of the total time (hours) the equipment was used for functions related to passenger and property screening versus the time spent on all functions (screening time/total time) to the total cost of the equipment. For example, if a computer was used for 6 hours for screening related functions and for 2 hours on other functions in an 8-hour workday, 75 percent of the cost of the equipment would be allocated in Appendix A. However, under this allocations system, if a computer was used solely for screening related functions, then 100 percent of the cost of the equipment would be allocated in Appendix A, even if it was used for less than a whole work day.

Example for assigning property and facility costs: One possible method is to apply the ratio of square footage used for functions related to passenger and property screening versus the total square footage of the property or facility (screening space/total space) to the annual costs of the property of facility. For example, if 4,000 square feet of a 16,000 square-foot building is used for screening, then 25 percent of the annual costs of that building should be captured in Appendix A. Such a cost allocation could only be made if the building was also being used for other activities. If the building was used solely for functions related to screening passenger or property during CY 2000, 100 percent of the costs must be included in Appendix A.

TSA recognizes that carrier accounting systems are likely to record two or more cost categories from Appendix A in a single category. For instance, the labor costs for “Checkpoint Screening Personnel” and “Exit Lane Monitors” may be recorded in a single account. Similarly, carriers that engaged in security partnerships or entered into security contracts with other carriers, airports, or private screening companies may have a single accounting category that encompasses two or more of the cost categories set forth in Appendix A.

The instructions for Appendix A address this issue. The instructions state that “[t]o the extent necessary, the reporting air carrier may aggregate those specific costs that have been incurred but cannot be stated in the detailed cost categories requested by the form. However, all of the costs identified by this form must be included in the total calculations. In addition, explanations regarding costs that have been aggregated need to be provided.”

The option to aggregate is only available “to the extent necessary,” and where “specific costs * * * cannot be stated.” Therefore, carriers should consult with appropriate parties, such as partner carriers, airports, and contractors to get information regarding individual costs before aggregating any cost categories in Appendix A. If the carrier is still unable to separate out individual costs, as set forth by Appendix A, the carrier may report those costs to TSA in an aggregated form. However, the carrier must specify in supporting documentation which costs have been aggregated and where the costs appear in the submitted Appendix A. For each cost category that is included in an aggregated amount, carriers should indicate where it is accounted for in the submitted Appendix A. In such a case, carriers should not leave the category blank or indicate that there were no costs.

It is not sufficient to submit an Appendix A that includes only the cost paid by a carrier to partner carriers, airports, or private screening companies under a screening services contract or other agreement. Even if a carrier outsourced all of its screening functions, its Appendix A submission must still identify, for example, the administrative costs and other related costs incurred by the carrier in entering into and maintaining such contracts and agreements, including any amendments, modifications, claims settlements, and costs incurred for overseeing the contracts or agreements. It must also identify costs related to screening passengers and property incurred by the carrier but not covered by the terms of the contract or agreement.

The fact that a carrier outsourced its screening functions does not relieve it of the duty to assign costs to specific categories in Appendix A before aggregating these costs. This can be done by examining the relevant contracts and agreements and by seeking input from contractors and partners. In the case of contracts and partnerships involving multiple carriers, be careful to ensure that all screening costs are reported to TSA, but that each dollar of the cost is only reported to TSA once.

The instructions to Appendix A in the IFR specify that carriers must indicate those cost categories in which the carrier did not have any costs for CY 2000. This is to be indicated on Appendix A by the use of an appropriately placed zero. Cost categories that are rolled into an aggregated total should be so identified, not listed as zero. For instance, for Item 34 in Appendix A, “Management Fees for Oversight of Consortium Contracts” is defined as “[a]ny costs incurred for fees charged by other organizations for the management of contracts for the screening of persons and property.” If a carrier paid any other entity a fee for the management of security contracts, the amount paid should be included on this cost line. If an air carrier did not incur such costs, then the reporting carrier should so indicate with a zero in the appropriate cost category. If a carrier paid such a contract, but management fees were not segregated out, then this cost category may be aggregated in Appendix A, as described in Item 2.

All cost information in Appendix A must be submitted to reflect calendar year 2000, not a carrier's fiscal year 2000. Therefore, if a carrier used a fiscal year different from the calendar year for 2000, it may be necessary to allocate costs over time and among functions.

Carriers no longer providing air transportation or intrastate air transportation in or from the United States do not need to remit the Aviation Security Infrastructure Fee. However, under the IFR, they are still required to complete and submit an Appendix A. TSA needs to know the costs related to screening passengers and property incurred by all carriers in CY 2000, not just by those carriers still providing air transportation or intrastate air transportation today. Beginning in fiscal year 2005, TSA is authorized to re-determine the per-carrier limit for the Aviation Security Infrastructure Fee, so long as the aggregate amount collected from carriers operating at that point does not exceed the aggregate screening costs of all carriers providing air transportation or intrastate air transportation in or from the United States in CY 2000.

The IFR states that the successor entity must submit only one Appendix A with all amounts combined, but must specify the names of all carriers whose CY 2000 passenger and property screening costs are included in Appendix A. However, for ease of auditing, carriers may keep separate the internal working papers pertaining to predecessor carriers.

For fiscal years 2002-2004, the IFR requires each carrier to pay 8.333% of the total listed in its Appendix A on a monthly basis, except for the period of February 18 through April 30, 2002, for which payment of 19.939% is due by May 31, 2002.

Payments for each month following April 2002 are due by the last calendar day of the following month. If, at any time, the Under Secretary determines, on his own or upon petition by a carrier, that it is necessary to adjust the total amount of the Aviation Security Infrastructure Fee that a carrier must pay and/or should have been paying, TSA will contact the carrier. In addition, after September 2004, the Under Secretary may determine a different fee or schedule. However, unless the Under Secretary makes such a determination, carriers should continue paying 8.333% monthly.

If the last calendar day of the month falls on a day on which the carrier cannot make payments, such as a holiday or weekend, then the payment must be received by TSA in advance of the last day of the month. TSA will provide payment instructions for the Aviation Security Infrastructure Fee on its web site, www.tsa.dot.gov. TSA will not be sending bills to carriers for this fee.

As stated in the IFR, the deadline for submitting a completed Appendix A to TSA is by May 18, 2002. This means that TSA must receive the submission on or before that date.

Appendix A is available electronically at www.tsa.dot.gov. It must be sent by certified mail to: Chief Financial Officer, Transportation Security Administration, Department of Transportation, 400 Seventh Street SW., Washington, DC 20590. For electronic submissions, use a format readable by current versions of Microsoft Word and mail a computer disk to the above address or e-mail it to TSA-Fees@ost.dot.gov.

Each air carrier must provide for an audit of Appendix A performed by an independent certified public accountant. The auditor must plan and perform an audit to obtain reasonable assurance as to whether the costs reported in Appendix A are “consistent with the air carrier's financial accounting information reported in accordance with generally accepted accounting principles.” The auditor must provide a written letter of opinion on the accuracy of the costs and other information reported in Appendix A, based on the company's pre-existing financial statements and supporting documents, and in accordance with generally accepted auditing standards. This opinion should include a statement as to whether the audited Appendix A is free of material misstatements. However, carriers need not provide for an audit of the process of remitting the fee.

TSA or other Federal entities may also audit Appendix A and the supporting information to ensure that the information provided in Appendix A is true and correct, as well as to ensure that the Appendix A submitted and fees paid are consistent with the requirements of the IFR. The decision to conduct a Federal audit does not relieve a carrier of its own audit burden.

As provided for in the IFR, the audit is due to be received by TSA no later than July 1, 2002. TSA will not enforce this deadline against a carrier that submits a timely and proper Appendix A, makes timely and proper fee payments, and submits the audit to TSA no later than August 1, 2002.

As with Appendix A, submit the audit to: Chief Financial Officer, Transportation Security Administration, Department of Transportation, 400 Seventh Street SW., Washington, DC 20590.

The IFR indicates that the “accountant's working papers with respect to the audit must be included with this submission.” This requirement may be satisfied by including in the audit submission the availability (location and time) of the accountant's working papers, so long as the working papers are retained and provided to TSA upon request.

Prohibitions on taking sea turtles are governed by regulations implementing the Endangered Species Act at 50 CFR parts 222 and 223. The incidental take of turtles during shrimp fishing in the Atlantic Ocean off the coast of the southeastern United States and in the Gulf of Mexico is excepted from the taking prohibition pursuant to sea turtle conservation regulations at 50 CFR 223.206, which include a requirement that shrimp trawlers have a NMFS-approved TED installed in each net rigged for fishing. The use of TEDs significantly reduces mortality of loggerhead, green, Kemp's ridley, and hawksbill sea turtles. Because leatherback turtles are larger than the escape openings of most NMFS-approved TEDs, use of these TEDs is not an effective means of protecting leatherback turtles.

Through a final rule (60 FR 47713, September 14, 1995), NMFS established regulations to provide protection for leatherback turtles when they occur in locally high densities during their annual, spring northward migration along the Atlantic seaboard. Within the Leatherback Conservation Zone, NMFS may close an area for 2 weeks when leatherback sightings exceed 10 animals per 50 nm (92.6 km) during repeated aerial surveys pursuant to § 223.206(d)(2)(iv)(A) through (C).

An initial aerial survey conducted on April 19, 2002, along the South Carolina coast documented 15 leatherback turtles between Bull’s Bay and South Island (across both zones 32 and 33) and 11 leatherback turtles between Pritchard Island and Edisto Island in zone 32, with each area of leatherback concentration being less than 50 nm (92.6 km) in length. A replicate survey was flown along the South Carolina coast on April 23, 2002. During the replicate survey 11 leatherbacks were seen in a 13-nm stretch near Edisto Island in zone 32, 14 leatherbacks were seen in the zone 32 to 33 trackline overlap area (from Folly Beach to Cape Island, approximately a 42-mile stretch), and 15 leatherbacks were seen in a 27-mile stretch in zone 33 near the Windy Hill area. The sighting frequencies in the original and replicate surveys all met or exceeded the regulatory standard of at least 10 animals within a 50-nm (92.6-km) length of survey trackline.

The Assistant Administrator for Fisheries, NOAA (AA), is closing all inshore waters and offshore waters 10 nm (18.5 km) seaward of the COLREGS demarcation line, bounded by 32 N. lat. and 34° N. lat., within the Leatherback Conservation Zone to fishing by shrimp trawlers required to have a TED installed in each net that is rigged for fishing, unless the TED installed has an escape opening large enough to exclude leatherback turtles, meeting the specifications at 50 CFR 223.207(a)(7)(ii)(B)(1) or (2) or 223.207(c)(1)(iv)(B). These regulations specify modifications that can be made to either single-grid hard TEDs or Parker soft TEDs to allow leatherbacks to escape.

The regulations at 50 CFR 223.206(d)(2)(iv) also state that fishermen operating in the closed area with TEDs modified to exclude leatherback turtles must notify the NMFS Southeast Regional Administrator of their intention to fish in the closed area. This aspect of the regulations does not have a current Office of Management and Budget control number, issued pursuant to the Paperwork Reduction Act. Consequently, fishermen are not required to notify the Regional Administrator prior to fishing in the closed area, but they must still meet the gear requirements.

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

The AA is taking this action in accordance with the requirements of 50 CFR 223.206(d)(2)(iv) to provide protection for endangered leatherback sea turtles from incidental capture and drowning in shrimp trawls. Leatherback sea turtles are occurring in high concentrations in coastal waters in shrimp fishery statistical zones 32 and 33. This action allows shrimp fishing to continue in the affected area so long as fishermen make the required gear modifications.

Pursuant to 5 U.S.C. 553(b)(B), the AA finds that there is good cause to waive prior notice and opportunity to comment on this action. As a sizeable concentration of leatherback turtles has been observed in an area fished by shrimp trawlers, it is extremely likely that interactions will occur. It would be impracticable to provide prior notice and opportunity for comment because providing notice and comment would prevent the agency from implementing the necessary action in a timely manner to protect the endangered leatherback.

Pursuant to 5 U.S.C. 553(d)(3), the AA finds that there is good cause not to delay the effective date of this rule for 30 days. Such delay would prevent the agency from implementing the necessary action in a timely manner to protect the endangered leatherback. Accordingly, the AA is making this temporary rule effective April 26, 2002 through May 10, 2002. This closure has been announced on the NOAA weather channel, in newspapers, and other media. Shrimp trawlers may also call (727)570-5312 for updated area closure information.

As prior notice and an opportunity for public comment are not required to be provided for this notification by 5 U.S.C. 553, or by any other law, the analytical requirements of 5 U.S.C. 601 et seq. , are inapplicable.

The AA prepared an Environmental Assessment (EA) for the final rule requiring TED use in shrimp trawls and the regulatory framework for the Leatherback Conservation Zone (60 FR 47713, September 14, 1995). Copies of the EA are available (see ADDRESSES ).

In 1994, NMFS received a petition from the Oregon Natural Resources Council and numerous co-petitioners to list west coast steelhead ( Oncorhynchus mykiss ) populations under the ESA. In response to the petition, NMFS conducted a status review of west coast steelhead (Busby et al. , 1996) which identified 15 Evolutionarily Significant Units (ESUs) of steelhead in Washington, Oregon, Idaho, and California, and assessed their risk of extinction. One of these 15 ESUs was the Southern California steelhead ESU which was found to be at a high risk of extinction.

Based on this status review and a consideration of the listing factors in section 4(a)(1) of the ESA, NMFS proposed to list the Southern California steelhead as an endangered species in August 1996 (61 FR 41541). In August 1997, NMFS published a final rule listing this ESU as an endangered species (62 FR 43937). In the final rule, NMFS listed only the anadromous life form of O. mykiss , and, therefore, defined the listed Southern California steelhead population to include all naturally spawned populations of steelhead (and their progeny) in streams from the Santa Maria River in San Luis Obispo County (inclusive) to and including Malibu Creek in Los Angeles County. At the time of listing, NMFS believed Malibu Creek represented the southernmost extent of the range of anadromous O. mykiss in southern California.

On February 5, 1999, NMFS published a proposed critical habitat designation for 19 ESUs of threatened and endangered salmon and steelhead distributed throughout Washington, Oregon, Idaho, and California, including the endangered Southern California steelhead ESU (64 FR 5740). A final rule designating critical habitat for these 19 ESUs, including the Southern California steelhead ESU, was published on February 16, 2000 (65 FR 7764).

Although the critical habitat designation for Southern California steelhead is presently in effect, NMFS has recently sought approval from the U.S. District Court in the District of Columbia for a consent decree that would vacate critical habitat designations for Southern California steelhead and 18 other salmon/steelhead ESUs as a result of litigation filed against the agency by the National Association of Homebuilders. In conjunction with this action, NMFS also intends to undertake a new and more thorough analysis of critical habitat for these ESUs, including the economic impacts of any designation, that is consistent with the ESA and other recent Court decisions. Following completion of this analysis, NMFS intends to proceed with re-proposing critical habitat designations for these ESUs including the Southern California steelhead.

In 1999 and 2000, new information became available which indicated that the anadromous life form of O. mykiss (i.e. steelhead) or their progeny occurred in at least two coastal streams south of Malibu Creek (Topanga Creek and San Mateo Creek). This new information included observations of juvenile O. mykiss in Topanga Creek by a NMFS biologist and field and laboratory investigations conducted by the California Department of Fish and Game (CDFG) which demonstrated the presence and spawning of anadromous O. mykiss in San Mateo Creek (DFG, 2000). Based on this new information, NMFS published a Federal Register notice in December 2000 proposing to formally recognize that anadromous O. mykiss (or steelhead) ranged further southward in Southern California than was previously believed to be the case by extending the range of the listed population to San Mateo Creek (65 FR 79328). A detailed discussion of the new information upon which the range extension proposal was based is contained in the December 2000 Federal Register notice.

Since the range extension was proposed in December 2000, NMFS has obtained some additional new information on O. mykiss in San Mateo Creek which was considered in this final determination. Additional microsatellite and mitochondrial DNA (mtDNA) analyses were conducted by Jennifer Nielsen (U.S. Geological Service, Alaska Science Center in Anchorage, AK.) on tissue samples taken from 16 O. mykiss collected in San Mateo Creek in 1999 and 2000 (Nielson and Sage, 2002). All 16 fish that were analyzed shared the MYS5 haplotype that is found throughout the range of O. mykiss in California, but which is most commonly found in Southern California populations (Nielsen et al. 1994). This finding is consistent with previous genetic analysis reported for O. mykiss in San Mateo Creek (DFG, 2000) and cited in NMFS’ proposed range extension (65 FR 79328). According to Nielsen and Sage (2002), this haplotype has not been found in their previous survey of hatchery O. mykiss strains in California, and, therefore, suggests an endemic population structure in San Mateo Creek. Secondly, the DFG has undertaken periodic field surveys in upper San Mateo Creek and Devil’s Canyon since May 2000 which have documented the continued presence of O. mykiss in the watershed. In many instances, these surveys were carried out in conjunction with efforts to remove exotic species that might prey upon or compete with O. mykiss . Although these surveys were limited in scope and methodology, they documented the presence of O. mykiss through at least August 2001 in Devil’s Canyon. Summaries of the DFG field surveys for O. mykiss and exotic species removal are contained in a series of file memoranda prepared by DFG staff.

NMFS has completed its review and analysis of all available information, including public comments that were received on the proposal. This final rule formally extends the range of the Southern California steelhead ESU and reaffirms that it continues to be an endangered species.

The proposed range extension was published on December 19, 2000, with a 60-day comment period that closed on February 20, 2001. During this period, NMFS received numerous requests for a public hearing, as well as requests for additional time to comment on the proposal. As a result, NMFS re-opened the public comment period for 30 days on February 21, 2001, and held a public hearing in San Clemente, CA, on March 12, 2001. The re-opened public comment period closed on March 22, 2001.

Excluding hearing requests, a total of 63 written comments were received on the proposal from a broad range of agencies, non-governmental organizations, other groups, and private citizens. A total of 37 individuals provided oral comments at the public hearing. The vast majority of comments supported the proposal, although many urged NMFS to expand or modify its proposal. A limited number of comments were opposed to or neutral about the proposal. A summary of the comments on the proposal and NMFS’ responses to those comments are presented below by specific issue.

Comment 1 : Many commenters argued that the southern boundary of the listed Southern California steelhead population (i.e. anadromous O. mykiss ) should be extended to the southernmost extent of the species historical range rather than to just San Mateo Creek. Most argued this boundary should be the U.S.- Mexico border.

Response: NMFS has previously recognized that steelhead historically occurred naturally at least as far south as northern Baja California (NMFS, 1996; and 62 FR 43937). However, at the time the Southern California steelhead ESU was listed as an endangered species in 1997 the best available information indicated that persistent populations of anadromous O. mykiss did not occur in rivers or streams further south than Malibu Creek. As described in NMFS’ proposed range extension (65 FR 79328) new information became available in 1999 and 2000 indicating that anadromous O. mykiss were occupying San Mateo Creek which is in northern San Diego County. Limited observational information also suggested that O. mykiss occurred in Topanga Creek.

NMFS’ main objectives in proposing the range extension for Southern California steelhead were three-fold: First, to seek public comment on new information showing that the freshwater geographic range of anadromous O. mykiss extended south of Malibu Creek to at least San Mateo Creek; second, to seek public comment on NMFS proposal to consider the O. mykiss found south of Malibu Creek to be part of the listed Southern California steelhead ESU; and third, to ensure that anadromous O. mykiss occurring south of Malibu Creek, either as isolated individuals (e.g. Topanga Creek) or as populations (i.e. San Mateo Creek) would be protected under the ESA.

NMFS recognizes that habitat suitable for anadromous O. mykiss may occur in watersheds south of San Mateo Creek (e.g. San Onofre Creek and perhaps elsewhere) and that anadromous O. mykiss historically occurred further south than San Mateo Creek. For these reasons, and because anadromous O. mykiss may stray to streams south of San Mateo Creek just as they did to San Mateo Creek in 1997, NMFS intends to consider any anadromous O. mykiss that are found to occur in coastal streams and estuaries between the Santa Maria River and the U.S.- Mexico border to be part of the listed Southern California steelhead population unless there is evidence indicating they are unlisted resident forms or derived from hatchery rainbow trout populations.

As discussed elsewhere in this document, NMFS believes that anadromous O. mykiss do not presently occur further south than San Mateo Creek, and in only two locations between Malibu Creek and San Mateo Creek. However, the southern boundary of anadromous O. mykiss in Southern California is likely to vary over time as a result of variable and unpredictable rainfall patterns and freshwater habitat conditions, and the ability of the anadromous form to stray or colonize new habitats. As information becomes available in the future that a persistent population of anadromous O. mykiss occurs in any other streams south of Malibu Creek, NMFS will promptly inform the public by means of notification in the Federal Register .

Comment 2: A few commenters asserted that the proposed range extension was not justified and or was inappropriate because there is no information indicating that steelhead occur in those streams located between Malibu Creek and San Mateo Creek.

Response: NMFS disagrees. NMFS believes the best available information indicates that the O. mykiss in San Mateo Creek are the progeny of steelhead that originated from some other stream located within the geographic range of the Southern California steelhead ESU and spawned in that watershed in 1997. As noted elsewhere in this final notice, the best available information NMFS possessed at the time of listing in 1997 suggested that anadromous O. mykiss did not occur further south than Malibu Creek. Therefore, the new evidence indicating that anadromous O. mykiss now occupy San Mateo Creek constitutes a southern extension of the range for this listed life history form. The fact that anadromous O. mykiss do not generally occur in streams between Malibu Creek and San Mateo Creek has no bearing on whether or not the fish in San Mateo Creek are part of the listed Southern California steelhead ESU. As NMFS emphasized in the proposed range extension, the habitat conditions in virtually all of the streams located between Malibu Creek and San Mateo Creek (e.g. Los Angeles River, San Gabriel River, Santa Ana River, San Juan Creek, etc.) are highly modified, and, therefore, are not presently suitable for utilization by steelhead. Absent significant habitat restoration efforts, NMFS does not expect these rivers or streams to support steelhead in the future.

Comment 3: One commenter argued that unoccupied or highly modified habitat (specifically the Los Angeles, San Gabriel, and Santa Ana Rivers) would be very costly to restore, and, therefore, should be excluded from any future modification of the existing critical habitat designation for this ESU.

Response: The ESA requires NMFS to designate critical habitat or make revisions to critical habitat on the basis of the best scientific data available, but only after taking into consideration the economic impacts of specifying any particular area as critical habitat. Therefore, in making any future revisions to the existing critical habitat designation for the Southern California steelhead ESU, NMFS will consider the economic impacts of designating any additional habitat whether it is occupied by steelhead or not.

Unless NMFS’ failure to designate specific areas as critical habitat will result in the extinction of a listed species, the ESA allows the agency to exclude areas from critical habitat if it is determined that the benefits of such an exclusion outweigh the benefits of specifying such an area as part of the critical habitat. Because virtually all of the freshwater habitat available to steelhead south of Malibu Creek (the current southern extent of critical habitat for this ESU) to at least San Mateo Creek is highly modified, and, therefore, unlikely to support steelhead without substantial habitat restoration, NMFS intends to carefully evaluate and weigh the benefits of designating these habitats as critical habitat or excluding them from any revised designation.

Comment 4: Many commenters argued that in conjunction with the range extension for this ESU, NMFS should be designating critical habitat for steelhead in all watersheds south of Malibu Creek, including San Mateo Creek, that are within the historic range of steelhead whether the habitat is occupied or not.

Response: In making its critical habitat designation for the endangered Southern California steelhead ESU in February 2000 (65 FR 7764), the agency concluded that all occupied and accessible river reaches and estuarine areas in coastal river basins ranging from the Santa Maria River southward to and including Malibu Creek were essential for the recovery of the ESU. This determination was made, in part, because these basins were thought to provide essential habitat features such as spawning, rearing, and migration habitat, food resources, sufficient water quality and quantity, and riparian vegetation. Also contributing to NMFS’ determination was the fact that the coastal river basins in this geographic area were historically important for the ESU (e.g. Santa Ynez, Ventura, and Santa Clara Rivers), and many of the river basins, both large and small and in relatively close proximity to one another, continued to support anadromous O. mykiss though at low levels of abundance on the scale of both individual river basins and the entire ESU.

In contrast, the situation that currently exists for coastal river basins south of Malibu Creek is quite different. Recent information, as discussed elsewhere in this document, does demonstrate that anadromous O. mykiss occur in at least two coastal river basins south of Malibu Creek (i.e. San Mateo Creek and Topanga Creek). The population in San Mateo Creek was only re-established recently as a result of adults that strayed into the watershed and spawned in 1997, and the presence of O. mykiss in Topanga Creek may be transitory. There is no evidence that anadromous O. mykiss occupy any of the other coastal river basins between Malibu Creek and San Mateo Creek, and many of these basins are so highly modified that they can not support anadromous O. mykiss . Further, there is no evidence that any other coastal river basins south of San Mateo Creek, within the historic range of steelhead, currently support the anadromous life form of O. mykiss . Because only two coastal watersheds south of Malibu Creek support anadromous O. mykiss , including San Mateo Creek which is well separated from the remainder of the populations in the listed ESU, and virtually all other coastal watersheds south of Malibu Creek do not support this anadromous life history form, NMFS believes there is insufficient information at present to determine if all or some of the freshwater habitat south of Malibu Creek, whether occupied or unoccupied, is essential for the conservation of this ESU.

NMFS believes that a determination of how much habitat south of Malibu Creek is essential for the conservation of this ESU is best left to NMFS’ technical recovery planning process because it will be closely linked to the development of biological recovery goals for this ESU. The development of biological recovery goals will be the first task of the NMFS’ appointed technical recovery team that will be responsible for addressing the Southern California steelhead ESU, and this task will require an assessment of the population structure of the ESU, as well as an evaluation of how many populations of O. mykiss , including both their geographic distribution and size, are necessary to achieve recovery of the entire ESU. If NMFS’ recovery team concludes through this assessment process that recovery of this ESU will require anadromous O. mykiss populations and the habitat to support them in coastal river basins south of Malibu Creek, then NMFS will conduct the requisite economic analysis to determine if these areas should be incorporated into the existing critical habitat designation for this ESU.

Comment 5: Many commenters argued that NMFS should designate critical habitat above manmade barriers throughout the current and historic range of steelhead in this ESU in conjunction with the range extension.

Response: In February 2000, NMFS designated critical habitat for the Southern California steelhead ESU, which included all occupied and accessible freshwater habitat in watersheds ranging from the Santa Maria River southward to Malibu Creek, which was considered to be the current range of listed anadromous O. mykiss at that time. River reaches that were inaccessible to anadromous O. mykiss above specific manmade barriers (e.g. dams), however, were not included in the critical habitat designation. This approach was consistent with NMFS’ previous determination to list only the anadromous life form of O. mykiss below manmade barriers.

While substantial amounts of habitat historically occupied by anadromous O. mykiss may occur above manmade barriers in some watersheds in the Southern California steelhead ESU (e.g. the Santa Ynez River, Ventura River, Santa Clara River), NMFS has not conducted an assessment to determine if all or some of these blocked habitat areas are currently essential for the recovery of this steelhead ESU. In addition, the agency has not performed the requisite economic analyses needed to designate blocked habitat areas that are unoccupied as critical habitat.

Comment 6: Several commenters argued that critical habitat should be designated for steelhead on Camp Pendleton Marine Corps Base and that NMFS should not exclude this habitat from any designation because of concerns about impacts to the military mission of the Base.

Response: As discussed previously, NMFS believes that any assessment of whether or not freshwater and estuarine habitat south of Malibu Creek is essential for recovery of this ESU, including San Mateo Creek which occurs in large part on Camp Pendleton, needs to be made in conjunction with the development of biological recovery goals for this ESU. If NMFS’ recovery planning process concludes that specific freshwater and estuarine habitats south of Malibu Creek, including San Mateo Creek, are essential for recovery of the ESU, then NMFS will do the requisite economic analyses necessary to revise the existing critical habitat designation.

As specified in Section 4(b)(2) of the ESA, however, NMFS may exclude an area from a critical habitat designation if the benefits of such an exclusion outweigh the benefits of specifying the area as part of the designation, provided that excluding the area will not result in the extinction of the listed species for which the habitat is being designated. In making any future determination about designating critical habitat south of Malibu Creek, including the San Mateo Creek watershed on Camp Pendleton, NMFS will thoroughly evaluate whether or not any potentially designated areas may be excluded from the designation based on this weighing of benefits.

Comment 7: One commenter argued that NMFS failed to comply with the National Environmental Policy Act (NEPA) and prepare an economic analysis.

Response: The main objectives of NMFS’ proposal were to recognize that the freshwater geographic range of anadromous O. mykiss extended further south than was previously thought to be the case, and to ensure that any anadromous O. mykiss occurring south of Malibu Creek were protected under the ESA. In effect, the proposal was intended to aimed at clarifying the geographic range of a previously listed population. Because NMFS’ proposal dealt with the geographic revision of a presently listed ESU and did not propose any modification to the existing critical habitat designation, there was no statutory requirement for NMFS to prepare any economic analyses. If NMFS concludes that the existing critical habitat designation for this ESU should be revised in the future to include freshwater and estuarine habitats south of Malibu Creek, then the requisite economic analyses required by the ESA and our implementing regulations will be prepared. NMFS has previously determined that it is not necessary to prepare NEPA analyses for listing decisions or critical habitat designations made pursuant to the ESA (See NOAA Administrative Order 216-6).

Comment 8: Many commenters asserted that “resident” rainbow trout (resident O. mykiss ) occurring both above and below dams or other barriers within the “historic range” of the species should be part of the listed Southern California steelhead ESU.

Response: NMFS’ December 2000 proposed range extension dealt only with the anadromous form of O. mykiss , for which new distributional information was available, and did not address the status of resident forms above and below barriers. The relationship of resident forms to the anadromous form and the status of resident forms under the ESA is the subject of pending litigation.

Comment 9: Camp Pendleton questioned the long-term sustainability or viability of the steelhead population in San Mateo Creek in light of the variable rainfall, streamflow, and other habitat conditions for steelhead in Southern California. They also expressed concerns about the costs of maintaining habitat for a population that might not be viable in the long-term.

Response: The long-term persistence of steelhead in San Mateo Creek may be uncertain given its distance from potential source populations, the highly variable rainfall conditions in southern California that influence access to this watershed, and other factors affecting O. mykiss within the watershed. However, the steelhead in San Mateo Creek should not be viewed as an independent population or subpopulation that is unconnected to other steelhead populations or subpopulations in southern California. In contrast, the steelhead in San Mateo Creek should be viewed as part of a larger meta-population unit that is comprised of many other populations or subpopulations occupying other streams in the ESU, and it is the viability of this larger population unit that is most important. Individually, the production capability of small coastal streams in this ESU such as San Mateo Creek may be relatively small compared to larger, perennial river systems that are more productive and can support larger populations, but collectively both the small and large systems in the ESU provide a means to ensure a greater diversity of populations and/or subpopulations in the larger meta-population unit. In addition, the smaller systems provide for range expansion and recovery after drought or other perturbations that reduce population numbers. The utilization of larger numbers of both small and large scale habitats by anadromous O. mykiss increases the likelihood of the long-term persistence of the ESU. The fact that the O. mykiss population in San Mateo Creek is derived from anadromous parents that entered the watershed and spawned indicates that adult steelhead can still utilize this system when conditions allow them to do so, and this underscores the need to protect the habitat values that still exist and provide for steelhead utilization of the system.

Comment 10: One commenter questioned whether specific populations of landlocked O. mykiss (i.e. Pauma Creek and Sweetwater Creek) would be part of the listed Southern California steelhead ESU, and, therefore, protected under the ESA as a result of this proposal.

Response: NMFS' December 2000 proposed range extension dealt only with the anadromous form of O. mykiss , for which new distributional information was available, and did not address the status of landlocked populations of resident forms. NMFS and FWS are currently engaged in discussions regarding this issue.

Comment 11: One commenter questioned why San Onofre Creek, which has steelhead habitat but does not currently support a steelhead population, was not specifically included in the range extension.

Response: The main objectives of NMFS’ proposed range extension were three-fold: First, to notify the public that there was new information showing that the freshwater geographic range of anadromous O. mykiss extended south of Malibu Creek to at least San Mateo Creek; second, to notify the public that NMFS considered the O. mykiss found south of Malibu Creek to be part of the listed Southern California steelhead population; and third, to ensure that anadromous O. mykiss occurring south of Malibu Creek, either as isolated individuals or as populations would be protected under the ESA.

As discussed in the proposed rule, the new information that is available suggests that anadromous O. mykiss only occur as far south as San Mateo Creek. Although San Onofre Creek is located in close proximity to San Mateo Creek and does have habitat that could be utilized by anadromous O. mykiss , there is no evidence indicating that anadromous O. mykiss currently inhabit the San Onofre Creek watershed. Since the proposed range extension addressed only the distribution of listed anadromous O. mykiss rather than habitat that may potentially be utilized by this life history form, San Onofre Creek was not specifically included in the proposed range extension.

However, NMFS recognizes that suitable habitat may occur in watersheds south of San Mateo Creek (e.g. San Onofre Creek) and that anadromous O. mykiss historically occurred further south than San Mateo Creek. For these reasons, and because anadromous O. mykiss may stray to streams south of San Mateo Creek and occupy them when habitat conditions allow them to do so, NMFS will consider any anadromous O. mykiss found south of San Mateo Creek to be part of the listed ESU unless there is evidence indicating they are non-listed resident forms or are derived from hatchery rainbow trout populations. Because the southern extent of the range of anadromous O. mykiss may vary over time rather than remain fixed as a result of variable rainfall and other habitat conditions and the ability of the life form to stray from natal streams, NMFS has decided not to delineate a specified southern boundary for this ESU in this final determination.

Comment 12: One commenter indicated that a recovery plan is needed for the Southern California steelhead ESU and that any such plan must include the recently discovered San Mateo Creek population and any other steelhead populations that occur south of Malibu Creek.

Response: NMFS agrees that a recovery plan is needed for the endangered Southern California steelhead ESU. Within the next 6 months, NMFS is committed to establishing a recovery team to develop biological recovery goals that will provide the framework for identifying and evaluating the management and other measures that need to be implemented to achieve recovery of the ESU. As part of developing the biological recovery goals for this ESU, the recovery team will investigate the population structure of this ESU and then identify the number, size, and spatial distribution of populations and subpopulations that are needed over the geographic range of the ESU to achieve recovery. In making this assessment, the recovery team will take into consideration all steelhead populations within the ESU including the San Mateo Creek population, as well as fish that may occur further south. As discussed elsewhere in this notice, NMFS expects the recovery team to also evaluate whether or not O. mykiss populations above barriers, as well as the habitat that supports these populations, are necessary for recovery.

Comment 13: One commenter urged formulation of a recovery plan that restores historically occupied streams in Orange and San Diego Counties.

Response: It is premature to conclude that all historically occupied streams south of Malibu Creek in Orange and San Diego counties will need to be restored to achieve recovery of the Southern California steelhead ESU. The determination of how much historically occupied habitat, if any, must be restored to achieve recovery of this ESU is closely related to the development of biological recovery goals for this ESU. As discussed elsewhere in this document, the development of biological recovery goals will require an assessment of the population structure of the ESU and an evaluation of how many populations, including their size and spatial distribution, are necessary to achieve recovery. If the recovery planning process determines that recovery of this ESU will require the restoration of habitat and establishment of populations in currently unoccupied areas south of Malibu Creek, then a key component of the recovery planning effort will be to identify specific unoccupied streams that need to be restored and to lay out the measures needed to achieve that restoration.

Comment 14: One commenter advocated the development and implementation of a comprehensive restoration plan for steelhead and its habitat in San Mateo and San Onofre Creeks, both of which are located on Camp Pendleton.

Response: NMFS supports the development of a restoration plan for San Mateo and San Onofre Creeks. As discussed in the proposed rule, California voters passed a State-wide initiative that provided $800,000 for the restoration of these two creeks to support native fish species such as steelhead, three-spine stickleback, and arroyo chub. The California Coastal Conservancy controls these funds and is in the process of working with a wide range of agencies and organizations including the Cleveland National Forest, Camp Pendleton Marine Corps Base, FWS, DFG, NMFS, and environmental groups to develop and implement a restoration plan for these watersheds which focuses on key limiting factors. NMFS anticipates that this plan will focus on addressing the control of exotic plants, the control of exotic fish species which compete with and/or prey upon steelhead and other native species, and the possible restoration of habitat. In addition to this larger planning and restoration effort, NMFS expects to work closely with Camp Pendleton through section 7 of the ESA to evaluate, and if necessary to modify, its programs for protecting and managing these watersheds.

Comment 15: Camp Pendleton commented that it has been a good steward and manager of the San Mateo Creek watershed, which functions principally as a migratory corridor, and that they are implementing management measures to protect this watershed and its associated riparian habitat.

Response: NMFS recognizes that the lower portion of San Mateo Creek which passes through Camp Pendleton serves mainly as a migration corridor. NMFS also recognizes that Camp Pendleton has worked closely with the FWS to develop and implement a riparian management program to protect FWS-listed species that are riparian dependent. Although this riparian management program was developed for FWS-listed species, the program likely provides benefits to steelhead and its habitat as well. As discussed previously, NMFS expects to engage Camp Pendleton in an ESA section 7 consultation that will evaluate the effects of its activities, including implementation of its riparian management strategy for San Mateo Creek, on steelhead and its habitat. If new or modified management measures are needed to protect and conserve steelhead and its habitat on Camp Pendleton, they will be developed through this section 7 process.

Comment 16: Camp Pendleton raised concerns about possible conflicts between steelhead protection and management on the Base and its ability to carry out the Base’s training and national security mission.

Response: NMFS is sensitive to the need for Camp Pendleton to be able to carry out its military and national security missions. Nevertheless, it is important for Camp Pendleton, as a Federal agency, to fulfill its obligations under the ESA and ensure that their operations and activities do not jeopardize the continued existence of Southern California steelhead. NMFS is committed to working closely with Camp Pendleton through section 7 of the ESA to ensure that both goals can be met: the military and national security missions of Camp Pendleton and the conservation of steelhead and its habitat. Camp Pendleton has considerable experience dealing with the management of FWS-listed species that occupy habitat on the Base, including the development of a riparian management strategy and program for riparian dependent species in the San Mateo Creek watershed which is used by steelhead. This past experience demonstrates that the protection and conservation of ESA-listed species can be achieved in a manner that is compatible with the military mission of the Base. NMFS is confident that the protection and conservation of steelhead and its habitat on Camp Pendleton can also be achieved in a manner that is compatible with the military and national security missions of the Base.

Comment 17: Camp Pendleton committed to fulfilling all of its obligations under the ESA for the management of steelhead if further genetic testing demonstrated that the O. mykiss found in San Mateo Creek were steelhead and not hatchery trout plants.

Response: NMFS is confident that Camp Pendleton will fulfill its ESA section 7 obligations to ensure that the Southern California steelhead ESU is not jeopardized, as well as its further obligations under the ESA to promote steelhead conservation. As discussed elsewhere in this document, the results of additional genetic analysis (mtDNA) conducted on 16 tissue specimens by Dr. Jennifer Nielson demonstrated that all the sampled juvenile fish had the MYS5 haplotype carried by native coastal O. mykiss and were not of hatchery origin.

Comment 18: Several commenters opposed the proposed range extension and argued that there was insufficient data to conclude that the O. mykiss in San Mateo Creek are steelhead and part of the Southern California ESU. Some commenters argued that additional data needs to be collected to confirm NMFS’s proposal and that in the interim any final determination should be delayed.

Response: NMFS recognizes that the proposed range extension was based on a limited amount of information; however, section 4(b)(1)(A) of the ESA requires that NMFS make any determinations about listing solely on the basis of the best available scientific and commercial data. At the time of the range extension proposal, NMFS believed it had the best available information and that the available information supported a conclusion that the juvenile O. mykiss in San Mateo Creek were the progeny of anadromous O. mykiss that had strayed from another stream in the Southern California steelhead ESU. In addition, NMFS believed it was important to formally recognize that the range of anadromous O. mykiss extended further south than was thought to be the case so that the public and potentially affected parties were aware that this life history form occurred south of Malibu Creek, at least to San Mateo Creek, and so that fish south of Malibu Creek would be protected under the ESA. Since NMFS proposed the range extension for anadromous O. mykiss , further genetic analysis has been conducted by Dr. Jennifer Nielsen on tissues samples from an additional 16 juvenile fish collected in 1999 and 2000. The results of this analysis demonstrate that all tested fish carried the mtDNA haplotype (MYS5) which is found most commonly in steelhead from southern California. This finding is consistent with the results of the more limited genetic analysis conducted originally by DFG and upon which the proposed range extension was in part based. NMFS believes it has used the best available information to make its determination, and that any further delay in protecting anadromous O. mykiss found south of Malibu Creek under the ESA is not consistent with the agency’s obligation to protect and conserve this endangered population.

Comment 19: A few commenters speculated that the O. mykiss found in San Mateo Creek were actually hatchery trout planted by DFG or trout that had escaped from ponds stocked by private landowners with in-holdings in Cleveland National Forest.

Response: As discussed elsewhere in the response to comments, the available mtDNA data for all fish that have been tested to date (2 prior to NMFS’ proposal and 16 after the proposal) shows that they carried the mtDNA haplotype (MYS5) which is most commonly found in southern California steelhead populations. This haplotype has not been found in any hatchery or domestic trout populations; thus, NMFS concludes that the juvenile O. mykiss found in San Mateo Creek are derived from native southern California steelhead and are not the result of domestic trout planting.

Comment 20: One commenter questioned whether the O. mykiss in San Mateo Creek are part of the Southern California ESU.

Response: As discussed in the proposed range extension, NMFS believes the available information (e.g. proximity of San Mateo Creek to nearest extant populations of southern California steelhead, mtDNA data demonstrating presence of a haplotype most common in Southern California steelhead populations, and otolith microchemistry data) all points to a conclusion that adult steelhead strayed into San Mateo Creek from elsewhere in Southern California and successfully spawned in 1997. As such, the O. mykiss in San Mateo Creek are progeny of anadromous O. mykiss (or steelhead) and should be part of the listed population. The additional mtDNA analysis performed by Dr. Jennifer Nielson is consistent with the original mtDNA analysis and reinforces this conclusion.

Comment 21: One commenter questioned the validity of the Southern California steelhead ESU as a definable unit, as well as the overall ESU concept NMFS has developed and its applicability to steelhead on the west coast.

Response: NMFS disagrees with the commenter and believes that its ESU policy is scientifically sound and that the west coast steelhead ESUs, as defined, are consistent with the agency’s stated policy.

NMFS has published a policy describing how it will apply the ESA definition of “species” to anadromous salmonid species such as O. mykiss (see 56 FR 58612, November 20, 1991). More recently, NMFS and FWS published a joint policy, which is consistent with the NMFS policy, regarding the definition of DPSs (see 61 FR 4722, February 7, 1996). The earlier policy is more detailed and applies specifically to Pacific salmonids, therefore it has been used by NMFS for all of its west coast salmonid ESU determinations, including those for west coast steelhead (see 61 FR 41541 and 62 FR 43937). This policy states that one or more naturally reproducing salmonid populations will be considered distinct, and, therefore, a “species” under the ESA if they represent an ESU of the biological species. To be considered an ESU, a population must satisfy two criteria: (1) It must be reproductively isolated from other population units of the same species, and (2) it must represent an important component of the evolutionary legacy of the biological species. The first criterion, reproductive isolation, need not be absolute but must have been strong enough to permit evolutionarily important differences to occur in different population units. The second criterion is met if the population contributes substantially to the ecological or genetic diversity of the species as a whole. Guidance on how this policy should be applied is contained in a NOAA Technical Memorandum entitled: “Definition of ‘Species’ under the ESA: Application to Pacific Salmon” (Waples 1991). A more detailed discussion of steelhead ESU boundaries and the factors NMFS considered in defining these ESUs, including the Southern California steelhead ESU, is provided in the proposed and final listing determinations for west coast steelhead (61 FR 41541; 62 FR 43937). In making these ESU determinations, NMFS relied on genetic, ecological, life history, and habitat related information.

Comment 22: One commenter asserted that the Foothill Corridor is a “threat” to the San Mateo Creek steelhead population and that NMFS’ proposal did not adequately acknowledge this risk factor.

Response: NMFS acknowledges that it did not explicitly discuss the Foothill Corridor project, which is currently in the planning stages, as a possible threat to the destruction, modification, or curtailment of steelhead habitat in San Mateo Creek. NMFS is well aware of this project and has been coordinating with the Federal Highway Administration (FHA) as part of the environmental review process which is currently ongoing for the project. NMFS recognizes that the project could have some potential impacts on the San Mateo Creek watershed depending upon which project alternative is selected and how the project is designed, constructed, operated, and mitigated. NMFS will continue to coordinate with FHA as the NEPA documentation for the project is prepared and provide comments and recommendations as appropriate. Because this project has the potential to impact anadromous O. mykiss in San Mateo Creek, as well as the watershed itself, NMFS expects that FHA will initiate an ESA section 7 consultation with us to ensure that construction and operation of the project does not jeopardize anadromous O. mykiss and that any impacts are minimized.

Comment 23: One commenter asserted that expanding the range of the listed ESU would create economic burdens or impacts on local agencies, particularly in those areas where anadromous O. mykiss do not occur in watersheds between Malibu Creek and San Mateo Creek. For this reason, the commenter argued that NMFS should not expand the range of the ESU.

Response: NMFS does not believe that the range extension will cause economic impacts in those watersheds where anadromous O. mykiss do not presently occur. In the proposed range extension, NMFS made it clear that anadromous O. mykiss were only thought to occur in two streams south of Malibu Creek (i.e., San Mateo Creek and Topanga Creek), and that all other streams and watersheds had been so highly modified that they no longer contained habitat suitable for supporting anadromous O. mykiss . Issue: Administrative Process

Comment 24: One commenter criticized NMFS for failing to make all of the data underlying its range extension proposal available for public review.

Response: NMFS described all of the information supporting the proposed range extension in the Federal Register publication announcing the proposal (65 FR 79328). The Federal Register document also identified NMFS’ points of contact for futher information, and directed interested parties to request further information or references from the Southwest Region’s Assistant Regional Administrator or the identified point of contact. All information upon which the proposed range extension was based was readily available on request and at least one party did request the information.

Comment 25: One commenter believed NMFS should extend the public comment period to provide greater opportunity for public comment and review of the available information supporting the proposed range extension.

Response: The original comment period for the proposed range extension was 60 days. NMFS did extend the public comment period an additional 30 days, both to provide the public with additional opportunity to review the proposed extension and develop comments, as well as to accommodate a public hearing which was held in San Clemente, CA.

Comment 26: Many commenters requested that NMFS hold one or more public hearings to take public testimony on the proposed range extension.

Response: In response to many such requests, NMFS did schedule a public hearing in San Clemente, CA. This hearing location was selected because it was in close proximity to San Mateo Creek which was the focus of the proposed range extension. The selection of this location resulted in a well attended hearing and provided an opportunity for 37 individuals to provide comments. To accommodate this hearing, NMFS extended the public comment period an additional 30 days.

In August 1997, NMFS listed the Southern California steelhead ESU as an endangered species (62 FR 43937). Although this ESU was broadly described as occupying all coastal rivers from the Santa Maria River southward to the southern extent of the species range, the final regulation more specifically defined the listed population as all naturally spawned populations of steelhead (i.e. anadromous O. mykiss ), and their progeny, which occupied rivers and streams from the Santa Maria River in San Luis Obispo County, CA (inclusive) to Malibu Creek in Los Angeles County, CA (inclusive). Although Malibu Creek was identified as the southernmost stream supporting a persistent, naturally spawning population of anadromous O. mykiss based on the best available information, NMFS acknowledged in both the proposed (61 FR 41541) and final listing determinations that there was some limited anecdotal information that the anadromous life form may occasionally occur as far south as the Santa Margarita River.

As described in NMFS’ December 19, 2000, proposed range extension for listed Southern California steelhead (65 FR 79328), new information was collected and analyzed by the California Department of Fish and Game (DFG) in 1999 and 2000 (DFG 2000) that indicated anadromous O. mykiss spawned and were rearing in San Mateo Creek which is located approximately 100 miles (161.3 kilometers (km)) further south than Malibu Creek which had previously been identified as the southernmost coastal stream supporting O. mykiss The San Mateo Creek watershed arises in the Cleveland National Forest and flows in a southwesterly direction to the Pacific Ocean just south of San Clemente in northern San Diego County. Much of the lower portion of San Mateo Creek flows through the Camp Pendleton Marine Corps Base. Approximately 6-7 miles (9.7-11.3 km) are accessible to anadromous O. mykiss in the mainstem and tributaries. According to information in Titus et al. (in press), Woelfel (1991), and DFG (2000), San Mateo Creek was an important steelhead-producing stream prior to 1950 and evidently supported a local sport fishery of both juveniles and adults. More recently, however, Nehlsen et al. (1991) classified the San Mateo Creek steelhead population as extinct.

Although this new information is limited, it is the best available information, and it indicates that adult steelhead entered San Mateo Creek and successfully spawned in 1997. The juvenile progeny of those spawning adults were observed by DFG during its field investigations in the spring and summer of 1999. More recent information from DFG in May 2000 suggests that O. mykiss still occupy portions of San Mateo Creek and may have successfully spawned again since 1997. The limited genetic information presented by DFG (DFG, 2000) suggests that the juvenile O. mykiss found in 1999 have close genetic affinities to native southern California steelhead and are not the result of domestic trout planting. More recently, Dr. Jennifer Nielsen has completed mtDNA analysis of an additional 16 tissues samples from O. mykiss collected in San Mateo Creek in 1999 and 2000. The results of this analysis indicate that all sampled fish carried the MYS5 haplotype which is found most commonly in southern California steelhead. Since there is no evidence of a resident trout population or recent evidence of steelhead presence in San Mateo Creek (DFG, 2000; Titus et al. , in press; Lang et al. , 1998), NMFS believes the adult steelhead which successfully spawned in 1997 were strays from another watershed elsewhere in the Southern California steelhead ESU. Based on the information collected by DFG (DFG, 2000), the new genetic data analysis performed by Dr. Jennifer Nielsen, and a review of all comments on the proposed range extension, NMFS concludes that the O. mykiss population in San Mateo Creek is part of the listed Southern California steelhead population.

The Malibu Creek and San Mateo Creek watersheds are separated by approximately 100 miles (161.3 km). Therefore, inclusion of the San Mateo Creek steelhead population in the Southern California ESU raises the question of whether or not steelhead occur or may be present in those watersheds located between Malibu Creek and San Mateo Creek. Based on information reported by Titus et al. (in press), steelhead were historically reported in several watersheds between Malibu Creek and San Mateo Creek (i.e., Los Angeles River, San Gabriel River, Santa Ana River, and San Juan Creek), but are now extinct as a result of major habitat modification or habitat blockage associated with flood control, urban development, and other factors. Given the existing habitat conditions in these highly modified river systems, NMFS does not believe they are currently suitable for steelhead utilization, and, therefore, are highly unlikely to support steelhead absent major restoration efforts.

Information regarding the current presence of O. mykiss in other streams between Malibu Creek and San Mateo Creek is lacking with the exception of a recent observation of fish in Topanga Creek which is approximately 4 miles (6.5 km) south of Malibu Creek. Titus et al. , (in press) indicated that O. mykiss were observed in Topanga Creek in 1979 and in the early 1990s. In April 2000, an adult O. mykiss was reported in Topanga Creek. A NMFS’ biologist conducted a site visit and confirmed the presence and identification of two O. mykiss ranging from 14-20 inches (359-573 mm) in total length. Both fish were observed in a relatively deep pool (4 ft (1.2 meters (m))deep) located about 1 mile (1.7 km) upstream of the confluence with the ocean. Based on the existing habitat conditions and the size of the fish, it is unlikely that they spent their entire life cycle in Topanga Creek. Since there is no evidence of any stocking of rainbow trout in Topanga Creek, it is most likely that these fish originated from some other stream within the ESU. The nearest streams known to support steelhead are Malibu Creek and Arroyo Sequit, both of which are located only a few miles north of Topanga Creek.

NMFS recognizes that habitat suitable for anadromous O. mykiss may occur in watersheds south of San Mateo Creek (e.g. San Onofre Creek and perhaps elsewhere) and that anadromous O. mykiss historically occurred further south than San Mateo Creek. For these reasons, and because anadromous O. mykiss may stray to streams south of San Mateo Creek just as they did to San Mateo Creek in 1997 during years of high rainfall, NMFS will consider all anadromous O. mykiss that are found to occur in coastal streams, including estuarine habitat, between Malibu Creek and San Mateo Creek or further south of San Mateo Creek to be part of the listed Southern California steelhead population unless there is evidence indicating they are non-listed resident forms or are derived from hatchery rainbow trout populations. Because the southern boundary of anadromous O. mykiss in Southern California is likely to vary over time given highly variable and uncertain rainfall patterns and habitat conditions, NMFS is not delineating a specific stream as the southern boundary for the listed population in this final rule. Instead, the final rule indicates that the listed O. mykiss population extends from the Santa Maria River to the southern extent of the species range. As discussed previously, however, NMFS does not believe that anadromous O. mykiss presently occur further south than San Mateo Creek. If information becomes available in the future that a persistent population of anadromous O. mykiss exists further south than San Mateo Creek, NMFS will promptly inform the public by means of notification in the Federal Register .

The Southern California steelhead ESU was listed as an endangered species in August 1997 (62 FR 43937). As discussed in the final listing determination, this ESU is considered to be at a high risk of extinction based on the results of NMFS’ west coast steelhead status review (Busby et al. , 1996) and in a subsequent status update (NMFS, 1997).

The SFA requires NMFS and the Councils to comply with new overfishing, rebuilding, and bycatch provisions. Fishery Management Plans (FMPs) are required to assess and specify the present and probable future condition of, and the maximum sustainable yield and optimum yield from each fishery. FMPs must assess and satisfy the nature and extent of scientific data, which is needed for effective implementation of the plan. Also, the SFA requires fishery managers to establish a standardized reporting methodology to assess the amount and type of bycatch occurring in fisheries. Conservation and management measures shall, to the extent practicable, minimize bycatch and, to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.

The Council subsequently developed and submitted a Comprehensive SFA Amendment that addressed SFA requirements for Caribbean FMPs. On January 25, 2002, NMFS published a notice of availability (NOA) of the Comprehensive SFA Amendment to the Caribbean FMPs and requested public comments through March 26, 2002 (67 FR 3679).

On April 25, 2002, after considering extensive comments received during the public comment period for the amendment, NMFS disapproved the Caribbean Comprehensive SFA Amendment primarily because NMFS believes that an environmental impact statement (EIS) should be developed that provides a more comprehensive set of alternatives for SFA parameters, rebuilding schedules, and bycatch reporting standards. A summary of comments received and responses is given below.

Three environmental organizations, 60 individual commenters and one petition with 548 individuals listed provided a similar set of comments on the Comprehensive SFA Amendment.

Comment 1 : One environmental organization stated, “In its current state, the Comprehensive Amendment violates the SFA, fails to prevent overfishing, fails to rebuild fish populations, and fails to address the fishery's bycatch problem. Hence, in its current state, the Comprehensive Amendment is a major federal action significantly adversely affecting the environment. On the other hand, should NMFS choose to revise the Comprehensive Amendment so as to comply with the SFA, it would be a major federal action significantly benefitting the human environment. Either, way, NMFS must develop an EIS.”

Response : NMFS does not completely endorse all aspects of the comment. Nonetheless, the comment highlights the importance of the Amendment and is persuasive that additional alternatives should be considered to produce a better document. NMFS, working with the Council, intends to develop an EIS on the above issues and incorporate the findings of the EIS into a revised Comprehensive SFA Amendment that will address the concerns noted in public comments.

Comment 2 : Two environmental organizations noted that the SFA mandates that fishery managers "establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery." The national standard guidelines also require that “[a] review and, where necessary, improvement of data collection methods, data sources, and application of data must be initiated for each fishery to determine the amount, type, disposition, and other characteristics of bycatch and bycatch mortality in each fishery.” The organizations recommended that the NMFS disapprove this aspect of the Comprehensive SFA Amendment.

Response : NMFS agrees. Bycatch reporting will be addressed in the revised Amendment.

Comment 3 : One environmental organization recommended that commercial landings in the U.S. Virgin Islands be reported by species rather than gear. Further, such landings should be reported similar to those in Puerto Rico.

Response : NMFS agrees that commercial landings, wherever possible, should be reported by species or species groups, but notes that this could require additional resources. This issue will be addressed in the revised Amendment.

Comment 4 : All commenters objected to the way that the reef fish SFA parameters (maximum sustainable yield, optimum yield, minimum stock size threshold, and maximum fishing mortality threshold) were developed by using only the average landings for the period 1983 through 1999. They noted that landings for many species had declined during that period and that there was reason to believe that some species were either overfished or undergoing overfishing. They believe that the assumption that the current levels of harvest are sustainable is incorrect and would continue overfishing as well as prevent rebuilding of overfished stocks. Further, they recommended that average landings developed from either a 4-year or 8-year time period would provide better results.

Response : Due to the data-poor nature of fisheries in the Caribbean, it is not clear which series of landings data would provide the best SFA proxies. Despite this, it is reasonable to consider alternative series of landings, and this will be done in the revised Amendment.

Comment 5 : Commenters noted that the Comprehensive SFA Amendment did not contain regulatory measures that would immediately address overfishing or overfished species. They stated that the Amendment should have and cited this as a deficiency.

Response : Upon consideration of the public comments received, NMFS believes that it would be appropriate to consider regulatory measures, including rebuilding schedules, in the revised Amendment that would address overfishing and overfished species. It should be noted that Amendment 2 to the Queen Conch FMP, currently under development, would prohibit the possession and harvest of queen conch in the EEZ until this resource is rebuilt.

The emergency interim rule published January 8, 2002 (67 FR 956), implements Steller sea lion protection measures and final 2002 harvest specifications for the groundfish fisheries of the Bering Sea and Aleutian Islands management area (BSAI) and the Gulf of Alaska (GOA). As published, the final rule inadvertently contained errors in the preamble and regulatory text. This document corrects the preamble and amends and revises regulatory text and tables.

This document corrects the preamble to clarify the definition of the harvest limit area (HLA) for the Atka mackerel platoon fisheries and to clarify the geographical extent of the Atka mackerel directed fishing restrictions in Bering Sea critical habitat areas. First, NMFS notes that the definition of the HLA at § 679.2 includes critical habitat around Tanaga Island/Bumpy Point extending west of 178° W. long., even though the site is located east of 178° W. long. The preamble is corrected to include within the HLA these waters of Tanaga Island/Bumpy Point critical habitat.

In addition, Atka mackerel directed fishing closure east of 178° W long. was erroneously described as “west” of 178° W. long. in the preamble to the emergency interim rule. This error is corrected by this action.

NMFS further notes that § 679.22 imposes Atka mackerel directed fishing restrictions in the Bering Sea critical habitat areas only for those critical habitat waters within 20 nautical miles (nm) of listed rookeries and haulouts located in the Bering Sea subarea. These corrections will make the preamble language consistent with the regulatory text at § 679.22. A large portion of the Steller Sea Lion Conservation area (SCA) also is listed as critical habitat in the Bering Sea under 50 CFR 226.202, but this was not intended by the Council or NMFS to be included in the Atka mackerel directed fishing critical habitat closures. The preamble in the January 8, 2002, emergency interim rule did not explain that the regulation excludes the SCA waters from the Atka mackerel critical habitat closures in the Bering Sea subarea.

The language regarding the nontrawl Pacific cod fishing season is corrected and expanded to include the description of the seasons consistent with the regulatory text at § 679.23. This expanded description was erroneously omitted from the preamble.

The language describing the State of Alaska restrictions around rookeries is corrected to clarify that the State restricts only commercial fishing around these rookeries, rather than the transit of vessels.

The heading on Table 5 for the “A season” was erroneously printed above only the “A DFA (40% of annual DFA)” column heading. The “A season” column heading should also appear above the “SCA” column heading and is extended over this column by this correction.

The year in the title to Table 7 reads “2001” and is corrected to read “2002”. Footnote 2 to Table 7 has a typographical error that is also corrected with this action.

Table 9 included a footnote 7 stating that unused halibut PSC for Pacific cod vessels using nontrawl gear would be available in the following season. The Council and NMFS intend that no halibut PSC should be available from June 10 through August 15 because of high halibut bycatch rates at this time of the year. Should this emergency interim rule be extended, unused portions of halibut PSC may be available during the following season after August 15.

Table 12 did not indicate the full A season allocation in the SCA for cooperative sector vessels equal to or less than 99 ft (30.2 m) length overall (LOA). This document corrects the amounts for all cooperative sector vessels for the A season inside the SCA.

The footnote to Table 24 did not accurately describe the time period of no apportionment for Pacific halibut prohibited species catch limits. The footnote describes the time period as the “4th quarter” which is the period from September 1 through October 1. No apportionment for the shallow-water and deep-water fishery complexes is available during October 1 through December 31. This document corrects the footnote to describe the correct apportionment period.

In § 679.2, the definition of the harvest limit area (HLA) is corrected to include the sites located west of 177° 57.00' W. long. The coordinate in the definition was intended to include all of Tanaga Island/Bumpy Point. The definition, which was intended to include all of Tanaga Island/Bumpy Point, did not take into account the eastern boundary coordinate for Tanaga Island/Bumpy Point.

Section 679.7(a) is corrected to clarify the vessel monitoring system (VMS) requirement and fishing prohibition. The reference to gear types is removed because the information exists in § 679.4. The prohibition is corrected to include the operation of a vessel rather than conducting directed fishing for groundfish or IFQ halibut to ensure that all vessels endorsed for the Pacific cod, pollock, or Atka mackerel directed fisheries are subject to the prohibition, even while harvesting fish of other species such as crab, salmon, or lingcod. This also ensures that a vessel unloading fish or processing fish in port will also be required to operate its VMS. The prohibition is also made applicable in the BSAI and GOA reporting area by this correction, so that State of Alaska waters are included in the area covered by this prohibition as intended by NMFS and the Council. A vessel endorsed for the Pacific cod, Atka mackerel, or pollock fishery must operate VMS when the fishery the vessel is endorsed for is open so that NMFS is able to monitor compliance with the closures in waters, including the State of Alaska waters, around haulouts, rookeries, and foraging areas.

Section 679.7(f) is amended to clarify the prohibition against discard of Pacific cod for participants in the IFQ halibut fishery. If a vessel is registered under § 679.4 to directed fish for Pacific cod, then it is required to retain all catches of Pacific cod if the directed fishery is open, and up to the maximum retainable amount (MRA) if the directed Pacific cod fishery is closed. If a vessel used in the IFQ halibut fishery is not registered for the Pacific cod directed fishery, it is required to discard Pacific cod once the amount of Pacific cod harvested has reached the MRA specified at § 679.20. This paragraph is amended to state that vessels not registered for the Pacific cod directed fishery are not prohibited from discarding Pacific cod.

Section 679.20 (a)(7)(ii)(D) and (a)(7)(ii)(E) describe methods of reallocating unused Pacific cod trawl allocations and contain incorrect or incomplete allocation references. Paragraph (a)(7)(ii)(D) did not include a reference to paragraph (a)(7)(iii)(D) which establishes the seasonal apportionments and gear allocations applicable to reallocation under this paragraph. Paragraph (a)(7)(ii)(E) contains an erroneous reference to Pacific cod non-trawl gear allocations, which is not applicable to trawl gear reallocations. This action corrects these reallocation paragraphs to reference only those paragraphs establishing applicable trawl allocations.

In § 679.22(a)(11)(v), an “and” instead of an “or” was erroneously used in listing the gear types subject to the regulation. The closure implemented by § 679.22(a)(11)(v) applies to vessels using any one of the gear types listed rather than all of the gear types listed. This error is corrected by revising this paragraph.

Section 679.22(b)(3)(iii) is revised to specify those vessels that are prohibited from directed fishing for Pacific cod in the Pacific cod no fishing zones. The closure applies to all vessels in these zones within the exclusive economic zone and to vessels that have been issued Federal fishery permits and are participating in the State of Alaska parallel groundfish fisheries. However, vessels with Federal fisheries permits participating in the State-managed Pacific cod fishery are not prohibited from fishing in the Pacific cod no fishing zones in the GOA. The Steller sea lion protection measures were not intended to apply to the State-managed Pacific cod fishery, and this correction clarifies the application of the Pacific cod no fishing zones.

Section 679.28(f)(3) is amended to clarify the VMS reporting and transmission confirmation requirements for vessels that will initially enter a fishery that requires VMS and for vessels that may replace a VMS. Paragraph (f)(3)(ii) is suspended starting June 10, 2002, because requirements in this paragraph are clarified and contained in § 679.28(f)(3)(viii). As part of the reasonable and prudent measures in the 2001 Biological Opinion, NMFS is required to monitor the location of vessels with Federal Fisheries permit endorsements for the Atka mackerel, pollock, and Pacific cod directed fisheries. The vessel owner is required to provide information specified in § 679.28(f)(3)(viii) by FAX and receive confirmation that the VMS transmission is being received before operating his or her vessel during an open directed fishery for which the vessel is endorsed. For vessels that are initially entering a fishery that requires VMS, the vessel owner will be required to receive confirmation of transmission 72 hours before leaving port to allow time to make repairs or to ensure that the transmission is being received before the vessel enters the fishing grounds. Because a number of vessels with Pacific cod Federal Fishery Permit endorsements may also participate in other commercial fisheries, including crab, salmon, or lingcod, the correction includes the notification of when the vessel will begin operation, consistent with the prohibition on operation without a VMS under § 679.7(a)(18). A vessel may not operate in a BSAI or GOA reporting area until the transmission is confirmed, consistent with § 679.7(a)(18). Section 679.28(f)(3)(iv) is suspended and § 679.28(f)(3)(ix) is added to clarify that a vessel is required to stop fishing when informed only by an authorized officer that position reports are not being received, rather than being informed by NMFS staff.

Section 679.50(c)(4)(vi)(B) is amended to clarify that the observer requirement applies to motherships and catcher/processors participating in a directed CDQ fishery. The paragraph as promulgated in the January 8, 2002, emergency interim rule applies to all motherships and catcher/processors instead of to only those processor vessels participating in the CDQ program.

In Table 23 of this part, footnote 11 describing the Pacific cod trawling closures during the Atka mackerel HLA directed fishery does not accurately describe the waters where the closures apply. The 20-nm closure around Gramps Rock was intended by the Council and NMFS only for waters west of 178° W. long. The footnote is corrected by this action. Also, the table heading on the last page of Table 23 is removed as it contains no data. Only the remaining text of footnote 5 though footnote 11 should be carried over.

In the emergency interim rule implementing Steller sea lion protection measures and final 2002 harvest specifications for the groundfish fisheries of the BSAI and the GOA, published on January 8, 2002 (67 FR 956, FR Doc. 01-32251), corrections are made as follows:

1. On page 961, column 1, in the last two lines of paragraph 3, (h) is corrected to read as follows: “... and (h) no directed fishing with trawl gear for Atka mackerel in critical habitat east of 178° W. long.”

2. On page 961, column 2, in the continuation of paragraph 4, the last two lines are corrected to read as follows: “... and (f) closure of all BS subarea critical habitat within 20 nm of rookeries and haulouts to directed fishing for Atka mackerel with trawl gear.”