The abandoned mine land (AML) reclamation program was established by Title IV of the Act (30 U.S.C. 1201 et seq.) in response to concerns over extensive environmental damage caused by past coal mining activities. The program is funded by a reclamation fee collected on each ton of coal that is produced. The money collected is used to finance the reclamation of abandoned coal mines and for other authorized activities. Section 405 of the Act allows States and Indian Tribes to assume exclusive responsibility for reclamation activity within the State or on Indian lands if they develop and submit to the Secretary of the Interior for approval, a program (often referred to as a plan) for the reclamation of abandoned coal mines. On the basis of these criteria, the Secretary of the Interior approved the Kentucky plan on May 18, 1982. You can find background information on the Kentucky plan, including the Secretary's findings, the disposition of comments, and the approval of the plan in the May 18, 1982, Federal Register (47 FR 21435). You can find later actions concerning the Kentucky plan and amendments to the plan at 30 CFR 917.20 and 917.21.

By letter dated April 29, 2002 (Administrative Record No. K-70), Kentucky sent us a proposed amendment to its plan under SMCRA (30 U.S.C. 1201 et seq.). Kentucky submitted the amendment to propose comprehensive changes to the plan. The formal amendment was preceded by two informal submissions in September 1997, and March 16, 2000 (Administrative Record No. K-67). OSM reviewed the informal submissions and reported findings to Kentucky on March 30, 2001 (Administrative Record No. K-69). It should be noted that Kentucky's formal submission on April 29, 2002, did not identify the specific changes being proposed. We subsequently reviewed the 635 page amendment to determine what revisions were made from the original plan. We completed our review on December 19, 2002. Due to the voluminous nature of the submission, we identified only the major changes in this notice or those that may otherwise be of interest to the public. Any revisions that are not listed concern nonsubstantive wording, organizational, or editorial changes. The full text of the amendment is available for your inspection at the locations listed above under ADDRESSES. Kentucky proposes to amend the following sections of the plan. Page numbers pertain to the April 29, 2002, submission.

Acquisition, Management, and Disposal of Lands (p. 6-9): the subtitle “Management of Acquired Lands” has been added.

Organization (p. 10-17): the subtitle “Environmental Scientist Principal” has been added.

Coordination with RAMP [Rural Abandoned Mine Land Program], Indian, and Other Reclamation Plans (p. xvi): “Natural Resources Conservation Service” has been added to clarify the name change from “Soil Conservation Service.” This change is reflected throughout the plan.

Maps of Eligible Lands and Waters (p. xix): the reference to 30 CFR 884.13(f)(1) has been changed to 30 CFR 884.13(e)(1).

Problems Occurring on AML Sites (p. xx): the reference to 30 CFR 884.13(f)(2) has been changed to 30 CFR 884.13(e)(2).

Relationship to Existing and Planned Land Uses (p. xx): the reference to 30 CFR 884.13(f)(3) has been changed to 30 CFR 884.13(e)(3).

Social, Economic, and Environmental Conditions (p. xx): the reference to 30 CFR 884.13(f)(5) has been changed to 30 CFR 884.13(f)(1), (2), and (3). A reference to Section 19 of the AML Plan has been added after the requirement of a general description of endangered and threatened plants, fish and wildlife, and their habitats.

Objectives (pp. 3-1, 3-2): subsections (g), (h), (i), pertaining to noncoal mining, and (j), pertaining to construction of public facilities in communities impacted by coal development, have been deleted. Subsection (f) has been revised to reflect the rules contained in 30 CFR 875.12, pertaining to eligible lands affected by noncoal mining. The last paragraph of the section has been revised to address lower priority sites. This section has also been revised to prohibit the use of AML monies for reclamation of sites designated for remedial action pursuant to the Uranium Mill Tailings Radiation Control Act of 1978 and the Comprehensive Environmental Response Compensation and Liability Act of 1980.

Priority I and II Sites (p. 3-2): the heading has been revised to include priority II sites.

Priority III Sites (p. 3-4): this section has been revised to clarify that problems designated as priority I or II sites may also qualify as priority III problems.

Environmental Goals (p.3-5): this section was added. It states that the Commonwealth of Kentucky (Commonwealth) resources to be protected or enhanced through AML reclamation include, but are not limited to, important wildlife habitats, endangered or threatened plants and animals or their critical habitats, natural areas, wild and scenic rivers, wetlands, floodplains, soil and water, recreational resources, and agricultural productivity.

Phase II Inventory (p.3-6): references to the Abandoned Mine Land Inventory System, and the requirements of 30 CFR 886.23(b), pertaining to reporting of completed AML projects to OSM, have been added.

Small Operator Goals (pp. 3-6 to 3-8): this section has been revised to reference the authorizing statute at Kentucky Revised Statutes (KRS) 350.450. Also, it is noted that small operators are now defined as those who are anticipated to mine less than 300,000 tons of coal per year. The principal goal articulated in this section is to maximize the participation of small operators in the bidding for AML reclamation projects that require some incidental coal removal.

Marketable Mineral Recovery (pp. 3-8, 3-9): the next to last paragraph of this section has been revised to allow all contractors, rather than just small operators, to participate in the bidding for AML projects that involve incidental coal removal, although small operators will still receive preference. The change was made because small operators may occasionally lack the expertise, equipment, access, etc., to perform the needed work.

Bond Forfeiture Projects (p. 3-9): the heading has been changed from “Supplementation of Eligible Bond Forfeiture Sites” to “Bond Forfeiture Projects.” The section was further revised by deleting all but the first paragraph, and by adding a paragraph that states that it is the policy of the Kentucky Division of Abandoned Mine Lands (DAML) that only eligible bond forfeiture sites are covered by the AML plan and that bond forfeiture sites must meet all priority and grant submission requirements that all other AML problem sites meet.

Water Supply Projects (p. 3-10): a new section has been added to address the requirements at section 403(b)(1) of SMCRA, which authorizes States and Tribes to use up to 30 percent of their annual AML grants to fund projects for water supply facilities in areas that have suffered coal mining related impacts to drinking water supplies.

Project Selection (pp. 4-8 to 4-11): the reference to “supplemental bond forfeiture reclamation” has been deleted. This section has also been revised to reflect the decentralization of the project selection process and the process by which grant application elements are prepared for each project.

Coordination with RAMP, Indian, and Other Reclamation Programs (pp. 5-1 to 5-4): all references to the “Soil Conservation Service” and its acronym, “SCS”, were replaced with references to the “Natural Resources Conservation Service” or its acronym, “NRCS.” On page 5-1, second paragraph, second sentence, the phrase “30 CFR 884.13(f)(5)(v), Flora and Fauna of the Coalfields,” was deleted and replaced with the phrase “30 CFR 884.13(f)(3), Endangered and threatened plant, fish and wildlife and their habitat.” This change was made because the Federal regulation at 30 CFR 884.13(f)(5)(v) has been repealed.

Lands for Permanent Facilities (p. 6-1): this section has been revised to incorporate the language at KRS 350.570(3), which authorizes the Commonwealth to acquire any land adversely affected by past coal mining practices, if acquisition is necessary for successful reclamation.

Acquisition of Real Property by Donation (p.6-3): subdivision 2(e), which requires itemizations of any unpaid taxes or assessments levied, assessed or due which could operate as a lien on the interest offered, and subdivision 2(f), which states that a deed of conveyance shall be executed, acknowledged and recorded in the name of the Commonwealth after acceptance of an offer, are being deleted.

Step-by-Step Procedure for Land Acquisition (pp. 6-4 through 6-9): names of departments and titles of certain departmental officials have been updated.

Management of Acquired Lands (p. 6-9): a new section has been added to comply with the requirements at 30 CFR 884.13(c)(4), which requires a description of policies and procedures regarding land acquisition, management and disposal.

Disposition of Reclaimed Lands (p. 6-10): this section has been revised to require that the appraised value of a property be stated in the notice.

Reclamation on Private Lands (pp. 7-4 to 7-6): (1) Levy of Lien: this section has been revised to require that the landowner be provided a statement of the increase in market value, an itemized statement of reclamation expenses, and notice that a lien will or will not be filed in accordance with 30 CFR 882.13. (2) Satisfaction of Liens: the reference to “State Abandoned Mine Reclamation Fund” is changed to “Abandoned Mine Reclamation Fund,” and Appendix 7-A and Attachment 7-1 have been deleted.

Rights of Entry (pp. 8-7 and 8-18): the reference to “Division of Abandoned Lands (DAL)” has been changed here and throughout the document to “Division of Abandoned Mine Lands (DAML).”

Personnel Staffing Policies (pp. 11-1 and 11-3): compliance with “Title VII of the Civil Rights Act of 1964 (PL 88-352)” has been added.

Purchasing and Procurement Systems (pp. 12-1, 12-4, and 12-6): page 12-1, paragraph 6, is being revised by deleting the reference to Public Law 95-87 (SMCRA) and adding references to Chapter 3 of the AML Plan, pertaining to Small Operator Goals, and to 30 CFR 884.13(c)(1). The subsection pertaining to purchase requisitions is being revised to reflect the current procedure for reviewing and approving requisitions. Specifically, three new paragraphs are added to the beginning of the Purchase Requisition section on page 12-4. These new paragraphs state that project plans are selectively reviewed and revised, if necessary, by the staff of the Commissioner of the Department for Surface Mining Reclamation and Enforcement (DSMRE) and, if approved are then returned to the DAML, where a purchase requisition is prepared for the Director to review and sign. After they are signed, the plans are sent to the Division of Administrative Services, which reviews the purchase requisition for accuracy and form, and to insure that sufficient funds are available. The following revision is added to the first paragraph on page 12-6: “When an apparent low bidder is identified for any AML reclamation contract, the Division of Abandoned Lands forwards the low bidder's name, federal tax number, social security numbers and other information as required to the Ownership and Control Review section of the Division of Permits of the Kentucky Department of Surface Mining for an Applicant Violator System (AVS) check for permit eligibility, in accordance with 30 CFR 874.16. Before the contract is awarded to the apparent low bidder an AVS confirmation of permit eligibility will be received from the AVS check.” Also on page 12-6, the fourth sentence of the first paragraph is revised by deleting the statement that the Commonwealth has the right to “waive all informalities and technicalities of a bid when, in their judgment, the best interest of the Commonwealth of Kentucky may be served.” A sentence is then added immediately after the revised fourth sentence. The new sentence states that “[a]ll rejections of bids or waivers will be in accordance with requirements of Office of Management and Budget (OMB) Circular A-102, and applicable State or local law.”

Construction (pp. 12-7 and 12-8): the subsections, “Monthly Reports for Office of Surface Mining”, “Final Report for the Office of Surface Mining” and “Change Orders,” have been deleted, as was the phrase, “and change orders,” at the end of the first paragraph on page 12-7. The sentence “guidelines pertaining to change orders will be developed by the Division Director as needed” has been inserted as the last sentence of the “Project Inspection” subsection.

AML Enhancement Rule (p.12-9): the subsection “AML Enhancement Rule” has been added. In an effort to promote remining, Kentucky has incorporated OSM's AML Enhancement Rule at 30 CFR 874.17 by reference. The rule provides guidance and procedures for AML programs when considering an AML project as government-financed construction under 30 CFR part 707. This rule applies only if the level of funding will be less than 50 percent of the total cost because of planned coal extraction. It will be implemented in conjunction with Kentucky's approved program regulation at 405 KAR 7:030(2)(1)(c).

Reclamation Agreements (p. 12-10): this new subsection has been added. It authorizes the DSMRE, through the DAML, to enter into Reclamation Agreements (Agreement) with private coal mining permittees for the reclamation of AML sites adjacent to or near active mining permits. The Agreements will be site-specific, and will allow for excess spoil removal from the permit area and placement of the spoil on the AML site. Guidelines for the Agreements are also provided for use by DAML when assessing the need for entering into an Agreement. These guidelines state that the proposed disposal must be AML eligible, must be inventoried by the State AML program and registered on the National Mine Land Inventory System, and must be of priority III or greater priority status. Other guidelines require the State AML program to develop a reclamation cost estimate, and state that the anticipated total cost to be borne by the company must represent a savings to the AML program. Finally, the area must be causing off-site environmental damage, but be an unlikely candidate for reclamation under the regular (i.e. AML funded) State AML program.

Accounting Systems (p. 13-1): this section has been revised to update organizational title and office changes.

Maps of Eligible Lands and Waters (p. 15-1): the first paragraph is reworded to better clarify AML eligibility by referencing “Section 404 ‘Eligible Lands and Water' and/or 402(g)(4) of Title IV of Public Law 95-87 and/or KRS 350.560”.

Problems Occurring on Abandoned Mine Land Sites (pp. 16-3, 16-5, 16-9 and 16-12): on page 16-3, first paragraph (Environmental Damage), line 3, the phrase “including adverse impacts on endangered and threatened species” is added after the phrase “loss of fish and wildlife habitat.” Also on page 16-3, in the paragraph entitled “Surface/Groundwater Contamination,” the phrase “including adverse impacts on endangered and threatened species” is added after the phrase “aquatic vegetation.” On page 16-5, at the end of the paragraph entitled “Erosion,” the following sentence is added: “On-site erosion and sediment control techniques will be used wherever practicable and feasible to minimize erosion and retain sediment within the disturbed area or limit the volume of sediment leaving the project site.” On page 16-5, at the end of the paragraph entitled “Reduced Fish and Wildlife Habitat,” the following sentence was added: “Unvegetated areas may also cause adverse impacts on endangered and threatened species.” On pages 16-6 and 16-7, a new section, entitled “Abandoned Highwalls,” was added. This section enumerates and discusses problems generally associated with abandoned highwalls on AML sites. These problems include, but are not limited to, threats to life, health and safety, reduced wildlife habitat, attractive nuisances for children or hikers, and adverse impact on aesthetic, historical, cultural, or recreational resources. The new section also discussed certain reclamation techniques to correct or abate these problems, including highwall reduction by bench reconstruction, re-establishment of wildlife routes by pulling down highwall sections, or screening or covering the highwall with appropriate plant species to enhance wildlife values and reduce aesthetic degradation. On page 16-9, in the paragraph entitled “Limitation of loss of habitat,” the sentence has been changed by adding at the end the phrase “and runoff from burned areas may impede or prevent utilization of water resources by aquatic life.” Also, a second sentence is added, which states that “[s]uch [forest] fires can have adverse impacts on endangered or threatened species.” On page 16-12, at the end of the paragraph entitled “Limitation or loss of fish and wildlife habitat,” the following sentence was added: “This [limitation or loss of fish and wildlife habitat] problem is especially serious for those endangered or threatened species, such as federally listed bats, which inhabit caves or mine shafts subject to subsidence.”

Relationship to Existing and Planned Land Use (pp. 17 B1, 17-6, and 17-7): this section has been revised to recognize the presence of endangered or threatened species during reclamation and land use planning. A sentence has been added on page 17-6, stating that the Big South Fork National River and Recreation Area has been adversely affected by erosion, sedimentation and acid mine drainage from AML sites. On pages 17-6 and 17-7, it is noted that commercial forest land in the Eastern Kentucky Coalfield includes 670,000 acres of the Daniel Boone National Forest.

Quantities of Land and Water Affected by A.M.L. (p. 18-1): on page 18-1, at the end of the first paragraph, the following two sentences are being added: “Not all of the acres listed are priority I or II sites. The acreages represent an approximation of the total mined acres in each coalfield, some of which may be determined to be acceptable in their current state or may require limited efforts to correct remaining problems.”

Socio-Economic and Cultural Profile of the Coalfields (p. 19-23): the first sentence of “The Redbird Purchase Unit” paragraph has been changed to make it clear that the unit is not purely a recreational area.

Flora and Fauna of the Coalfields (Chapter 21): numerous changes have been made to include: references to the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C., 4321 et seq.) and Executive Orders 11988 and 11990 on page 21-77; a requirement to consult with the Kentucky Department of Fish and Wildlife Resources regarding the existence of federally endangered or threatened species during the NEPA review process on page 21-79; the current title of the “Natural Resources and Environmental Protection Cabinet”; and the incorporation of the NEPA compliance measures into the plan. Thirty-five changes described in the “Errata of the currently approved AML Plan,” pages 21-150 to 21-157, have also been incorporated. These changes are composed mostly of additional references to various species of flora and fauna. The currently approved AML Plan, including the Errata changes, can be viewed at the OSM and DSMRE offices referred to above. Two changes of note are found on page 21-78, first paragraph, fourth sentence and on page 21-79, first paragraph, first sentence, wherein references to “environmental assessment” were replaced with requirements to comply with NEPA.

Commercially Minable Coal Seams and Projects Methods of Extraction (pp. 22-5, 22-14, 22-24, and 22-26): the Figure 22-1, “Preliminary Correlation Chart of Coal Beds and Key Beds of the Pennsylvanian Rocks of Eastern Kentucky,” has been added and the section has been revised to present options in determining remining feasibility, and to eliminate references to Site Score Sheets and matrices to rank AML sites. These references to be deleted are found on page 22-22 of the currently approved AML plan. The sentences inserted to provide options in determining remining feasibility are found on page 22-14 of this amendment, and state that “Kentucky may use different systems to analyze the consideration for probability for remining. In 1980, the Kentucky Geological Survey developed a system of moderate complexity for ranking probability of remining.” On page 22-26, pertaining to non-coal minerals, the reference to the Site Score Sheet is being deleted, but the potential for non-coal mineral recovery remains a factor to be considered when ranking AML sites. In that same paragraph, the following four sentences are being added: “Extraction of these non-coal minerals in the Commonwealth may take place by any of several methods. Petroleum and natural gas are extracted through the sinking of wells. Clay, rock, asphalt, sand and gravel are commonly extracted through methods of surface mining. Limestone, fluorspar, and oil shale, in addition to methods of surface mining, are also commonly extracted through deep mining.”

Under the provisions of 30 CFR 884.15(a), we are requesting comments on whether the amendment satisfies the applicable State reclamation plan approval criteria of 30 CFR 884.14. If we approve the amendment, it will become the Kentucky plan.

Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see DATES). We will make every attempt to log all comments into the administrative record, but comments delivered to an address other than the Lexington Field Office may not be logged in.

Please submit Internet comments as an ASCII or Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: [KY-239-FOR]” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Lexington Field Office at (859) 260-8400.

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on February 26, 2003. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State and Tribal abandoned mine land reclamation plans and plan amendments because each plan is drafted and promulgated by a specific State or Tribe, not by OSM. Decisions on proposed abandoned mine land reclamation plans and plan amendments submitted by a State or Tribe are based solely on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR Part 884 of the Federal regulations.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve a Federal program involving Indian lands.

This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of abandoned mine reclamation programs. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 405(d) of SMCRA requires State abandoned mine reclamation programs to be in compliance with the procedures, guidelines, and requirements established under SMCRA.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because agency decisions on proposed State and Tribal abandoned mine land reclamation plans and plan amendments are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the corresponding Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act; and rules and regulations consistent with regulations issued by the Secretary pursuant to [the Act].” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the North Dakota program on December 15, 1980. You can find background information on the North Dakota program, including the Secretary's findings, the disposition of comments, and conditions of approval of the North Dakota program in the December 15, 1980, Federal Register (45 FR 82214). You can also find later actions concerning North Dakota's program and program amendments at 30 CFR 934.12, 934.13, 934.15, 934.16, and 934.30.

By letter dated November 20, 2002, North Dakota sent us a proposed amendment to the North Dakota program (Amendment No. XXXII, administrative record No. ND-GG-01) under SMCRA (30 U.S.C. 1201 et seq.). North Dakota's proposed amendment includes the changes made at its own initiative to its revegetation policy document. It proposes to revise its revegetation policy document, “Standards for Evaluation of Revegetation Success and Recommended Procedures for Pre- and Postmining Vegetation Assessments.”

Specifically, North Dakota proposes to change the document's cropland and shelterbelt sections, as well as its sampling design, statistical equations, and methods for measuring productivity. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the North Dakota program.

Send your written or electronic comments to OSM at the address given above. Your comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see Dates). We will make every attempt to log all comments into the administrative record, but comments delivered to an address other than the Casper Field Office may not be logged in.

Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: SATS No. ND-046-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Casper Field Office at 307/261-6555.

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., [m.s.t.] on February 26, 2003. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 102(a), 30 U.S.C.1202(a), Section 503(a)(1) of SMCRA requires that state laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that state programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the state submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on state, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the state submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

We encourage you to participate in these rulemakings by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [COTP San Diego 03-010], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know your submission reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change these proposed rules in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Marine Safety Office San Diego at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid these rulemakings, we will hold one at a time and place announced by a separate notice in the Federal Register.

On September 16th and 17th, 2002, the Coast Guard published three temporary final rules suspending 33 CFR 165.1101, 33 CFR 165.1103, and 33 CFR 165.1104 and implementing temporary security zones at Naval Base San Diego, Naval Base Coronado, and Naval Submarine Base San Diego. See 67 FR 58524, 67 FR 58526, and 67 FR 58333. Modified versions of these zones have been in place since 1998 and the Coast Guard has not received any comments during that time and no negative incidents have been reported.

The U.S. Navy requested that Coast Guard implement these security zones in coordination with their installation of anti-small boat barrier booms at the three locations. If you would like to obtain information about the U.S. Navy's action, contact the Assistant Chief of Port Operations, Navy Region Southwest at 619-556-2400.

The Coast Guard proposes to modify the security zones to allow the U.S. Navy to put anti-small boat barrier booms at Naval Base San Diego (33 CFR 165.1101); Naval Submarine Base, San Diego (33 CFR 165.1103); and Naval Base Coronado (33 CFR 165.1104). The modification and expansion of these security zones is needed to ensure the physical protection of naval vessels moored in the area by providing adequate stand-off distance. The Coast Guard's action supports the Navy's action and is limited to the expansion of the existing zones.

The modification and expansion of these security zones will also prevent recreational and commercial craft from interfering with military operations involving all naval vessels home-ported at Naval Base Coronado, Naval Submarine Base San Diego, and Naval Base San Diego, and it will protect transiting recreational and commercial vessels, and their respective crews, from the navigational hazards posed by such military operations. It will also safeguard vessels and waterside facilities from destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of a similar nature. Entry into, transit through, or anchoring within this security zone is prohibited unless authorized by the Captain of the Port San Diego; Commander, Naval Air Force, U.S. Pacific Fleet; Commander, Submarine Force, U.S. Pacific Fleet Representative, West Coast; Commander, U.S. Naval Base San Diego; Commander, Navy Region Southwest; Commanding Officer, Naval Station, San Diego; or Commander, Naval Base Coronado.

Specifically, the Coast Guard is expanding the security zone boundaries at the request of the U.S. Navy so that the U.S. Navy can install anti-small boat barrier booms.

In its effort to thwart terrorist activity, the Coast Guard has increased safety and security measures on U.S. ports and waterways. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. The Coast Guard also has authority to establish security zones pursuant to the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq.) and implementing regulations promulgated by the President in Subparts 6.01 and 6.04 of Part 6 of Title 33 of the Code of Federal Regulations.

Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 U.S.C. 1232, any violation of the security zone described herein, is punishable by civil penalties (not to exceed $27,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000), and in rem liability against the offending vessel. Any person who violates this section, using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, also faces imprisonment up to 12 years. Vessels or persons violating this section are also subject to the penalties set forth in 50 U.S.C. 192: seizure and forfeiture of the vessel to the United States, a maximum criminal fine of $10,000, and imprisonment up to 10 years, and a civil penalty of not more than $25,000 for each day of a continuing violation.

The Captain of the Port will enforce these zones and may enlist the aid and cooperation of any Federal, State, county, municipal, and private agency to assist in the enforcement of the regulation. This regulation is proposed under the authority of 33 U.S.C. 1226 in addition to the authority contained in 50 U.S.C. 191 and 33 U.S.C. 1231.

These proposed rules are not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and do 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 them under that Order. They are not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

We expect the economic impact of these proposed rules to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

Due to National Security interests, the implementation of these security zones is necessary for the protection of the United States and its people. The size of the zone is the minimum necessary to provide adequate protection for U.S. Naval vessels, their crews, adjoining areas, and the public. The entities most likely to be affected, if any, are pleasure craft engaged in recreational activities and sightseeing. Any hardships experienced by persons or vessels are considered minimal compared to the national interest in protecting U.S. Naval vessels, their crews, and the public.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether these proposed rules 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 these proposed rules would not have a significant economic impact on a substantial number of small entities because the expanded zones will still allow sufficient room for vessels to transit the channel unimpeded.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding these proposed rules so that they can better evaluate its effects on them and participate in the rulemakings. If the proposed rules would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Joseph Brown, Marine Safety Office San Diego at (619) 683-6495.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed these proposed rules under that Order and have determined that they do 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 these proposed rules would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

These proposed rules would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

These proposed rules meet 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 these proposed rules under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. These rules are not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

These proposed rules do not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because they would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We invite your comments on how these proposed rules might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

We have analyzed these proposed rules under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that these are not a “significant energy action” under that order because they are not a “significant regulatory action” under Executive Order 12866 and are not likely to have a significant adverse effect on the supply, distribution, or use of energy. They have not been designated by the Administrator of the Office of Information and Regulatory Affairs as significant energy actions. Therefore, they do not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of these proposed rules and concluded that, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, these rules are categorically excluded from further environmental documentation because our action is limited to the expansion of existing security zones. The U.S. Navy has separately considered the impact of their proposed project including the placement of anti-small boat barrier booms. While we reviewed the Navy's environmental documentation, our analysis pertains solely to the expanded placement of the small markers designating the security zones already in the waterway. “Categorical Exclusion Determinations” are available in the docket where indicated under ADDRESSES.

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

The Federal Management Agency (FEMA or Agency) proposes to make determinations of base flood elevations and modified base flood elevations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed base flood and modified base flood elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator, Federal Insurance and Mitigation Administration, certifies that this proposed rule is exempt from the requirements of the Regulatory Flexibility Act because proposed or modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. As a result, a regulatory flexibility analysis has not been prepared.

Regulatory Classification. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This proposed rule involves no policies that have federal implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This proposed rule meets the applicable standards of section 12(b)(2) of Executive Order 12778.

Accordingly, 44 CFR Part 67 is proposed to be amended as follows:

The Federal Emergency Management Agency (FEMA or Agency) proposes to make determinations of base flood elevations and modified base flood elevations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed base flood and modified base flood elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator, Federal Insurance and Mitigation Administration, certifies that this proposed rule is exempt from the requirements of the Regulatory Flexibility Act because proposed or modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. As a result, a regulatory flexibility analysis has not been prepared.

Regulatory Classification. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This proposed rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

Accordingly, 44 CFR Part 67 is proposed to be amended as follows:

We published a proposed rule to designate critical habitat for the Klamath River and Columbia River distinct population segments of bull trout (Salvelinus confluentus) on November 29, 2002 (67 FR 71235). The proposed critical habitat designation includes approximately 29,720 kilometers (18,471 miles) of streams and 215,585 hectares (532,721 acres) of lakes, reservoirs, and marshes in Oregon, Washington, Idaho, and Montana. Designation would apply only to the waterways, not the adjacent lands. Under the terms of a court-approved settlement agreement, we are required to submit the final rule designating critical habitat to the Federal Register no later than October 1, 2003.

The 90-day comment period on the proposed designation of critical habitat originally closed on January 28, 2003. During that comment period, we received several letters requesting extension of the date for submitting comments. These requests cited the length and scope of the proposal as a key reason for needing additional time to gather information, conduct analyses, and prepare comments. We are re-opening the comment period in response to these requests.

Copies of the proposed designation of critical habitat are available on the Internet at http://www.r1.fws.gov or by contacting the Bull Trout Coordinator, U.S. Fish and Wildlife Service (see ADDRESSES section).

We are reopening the comment period at this time in order to accept the best and most current scientific and commercial data available regarding the proposed critical habitat designation for the Klamath River and Columbia River distinct population segments of bull trout. Previously submitted comments on the proposed designation need not be resubmitted. We will accept written comments and information during this reopened comment period. If you wish to comment, you may submit your comments and materials concerning this proposal by any of several methods:

You may mail or hand-deliver written comments and information to the Bull Trout Coordinator, U.S. Fish and Wildlife Service Office (see ADDRESSES section). Hand deliveries must be made during normal business hours.

You may also send comments by e-mail to: R1BullTroutCH@r1.fws.gov. If you submit comments by e-mail, please submit them as an ASCII file and avoid the use of special characters and any form of encryption. Please also include a return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, contact us directly by calling our office at telephone number 503/872-2766, during normal business hours.

As described in the preamble of the proposed rule, we are conducting an analysis of the economic impacts of designating the proposed critical habitat. We will publish a notice of availability in the Federal Register when the draft economic analysis becomes available and provide for a 30 day comment period, during which we will accept comments on the proposal as well as the draft economic analysis. We anticipate publication of the notice of availability within this current 90 day extension. The notice of availability will provide for the comment period to remain open until the end of this current 90 day extension or 30 days after publication of the notice, whichever is later.

The primary author of this notice is Barbara Behan, U.S. Fish and Wildlife Service (see ADDRESSES section).

The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

The application for an EFP was submitted by the UNH Cooperative Extension for research being funded through NMFS' Cooperative Research Partners Program. The applicant is requesting an exemption for one commercial vessel from the NE multispecies DAS notification requirements at 50 CFR 648.10(c) and 648.82(a) for 32 days of at-sea gear testing, and from the GOM Rolling Closure area restrictions specified at 50 CFR 648.81 for the same duration. Twelve (12) of the 32 days are carry-over from the first phase of the study which began in September 2002, and will be fished during the 2002 fishing year (through April 30, 2003). The remaining 20 days will be restricted to the 2003 fishing year (May 1, 2003 to April 30, 2004) and are the subject of this EFP request.

The objective of the research is to test a soft species separation system for the purposes of separating flatfish from roundfish in trawl nets and reducing the inadvertent bycatch of roundfish (particularly cod) when fishing for flatfish. The separation device is designed to separate roundfish from flatfish by exploiting behavioral differences that exist between the species. The experimental design consists of a trawl net with a soft species separation panel, or ramp, that would be positioned in front of a double codend. It would take advantage of the tendency of flatfish to swim towards the ocean bottom after encountering the separation panel and thereby into the lower codend portion of the net. Roundfish, which are not expected to swim towards the sea floor after encountering the panel, would swim into the upper codend portion of the net, which could be left open if roundfish were not being retained.

Underwater video equipment would be employed to observe fish behavior and functioning of the experimental selectivity device. Catch and bycatch are proposed to be sampled from each tow. If available, 100 each of cod, haddock, yellowtail flounder, whiting (silver hake), American plaice and witch flounder (including both legal and sub-legal sizes) would be measured from the catch in both the control net (commercial trawl net) and from the experimental trawl net, using alternating tows. The total weight of roundfish and flatfish would be determined from the upper and lower codends of the experimental trawl net, and from the control net. Finally, the catch of each species in the upper and lower codend of the experimental net would be analyzed using statistical methods to calculate a separation index to determine whether the experimental system is effective at separating the species.

The sea trials would be conducted in shallow water (30 to 50 fathoms (54.9 - 91.4 meters)) off the coasts of New Hampshire, southern Maine, and a small portion of northern Massachusetts. UNH researchers would be aboard the vessel during all experimental work. All undersized fish, and/or protected species, would be returned to the sea as quickly as possible after measurement. However, legal-sized fish that would otherwise have to be discarded would be allowed to be retained and sold. The overall catch levels are not expected to have a detrimental impact on the NE multispecies resource. Estimated total landings for the 32 days are: Cod - 9,600 lb (4354.5 kg); flatfish (witch flounder, American plaice, winter flounder, yellowtail flounder) - 9,600 lb (4354.5 kg); and other groundfish (haddock, cusk, white hake, silver hake, red hake, ocean pout, wolffish, etc.) - 6,400 lb (2903 kg). This is approximately one-half the level of landings that would be expected for 32 days of normal commercial fishing for this vessel. The participating vessel would be required to report all of its landings in its Vessel Trip Reports.

This experimental work is important because it could lead to the development of gear that could reduce the inadvertent bycatch of species that are subject to restrictive trip limits, such as cod, when fishing for species which are not subject to restrictive trip limits. The successful development of a soft species separation device could provide the fishing industry with more flexibility in conducting fishing activities, while simultaneously providing additional conservation for overfished species.

Based on the results of the EFP, this action may lead to future rulemaking.

NMFS manages the groundfish fishery in the exclusive economic zone of the Bering Sea and Aleutian Islands Management Area (BSAI) under the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP). The North Pacific Fishery Management Council (Council) prepared, and NMFS approved, the FMP under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.). Regulations implementing the FMP appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

In 1990, the Council identified pollock roe stripping as a management problem in the groundfish fishery of the BSAI and submitted Amendment 14 to the FMP to prohibit the practice of roe stripping. The final rule to implement Amendment 14 published on January 7, 1991 (56 FR 492), established a 10-percent limit on the amount of pollock roe that could be retained on board a vessel relative to the round-weight equivalent of primary products retained on board the vessel during the same fishing trip.

In 1994, after receiving information that vessels were continuing to practice roe stripping on a limited basis by “topping off” with roe to achieve the 10-percent limit, NMFS lowered the maximum retainable percentage to 7 percent in a final rule published March 25, 1994 (59 FR 14121). In determining that 7 percent should be the applicable limit, NMFS reviewed 1993 roe recovery information from vessels that were operating during the roe pollock fishing season, which was conducted between January 20 and April 15. Data from 12 participating vessels, which produced 1,422 mt of pollock roe from 31,772 mt of retained pollock catch, show that the average roe recovery was 4.5 percent during the roe pollock fishing season. The highest roe recovery percentage achieved by any of the 12 vessels was 7.2 percent, and the lowest was 2.0 percent. Therefore, NMFS determined that a maximum allowable rate of 7 percent would minimize amounts of roe that might be discarded as a result of regulations, while still complying with the intent of Amendment 14 and the Magnuson-Stevens Act to prohibit roe stripping.

Since 1994, the BSAI pollock fishery has continued to evolve. On December 3, 1997 (62 FR 63880), NMFS issued a final rule to implement an improved retention/improved utilization (IR/IU) program under Amendment 49 to the FMP. Amendment 49 imposed a 100-percent retention requirement for vessels harvesting pollock in the directed pollock fishery. Under Amendment 49, catcher/processors and motherships must retain a primary product from each pollock brought on board the vessel during the directed pollock fishery. While this regulation was intended to address pollock discards, it also had the effect of tightening the prohibition on roe stripping because pollock roe by definition cannot be used as a primary product to meet the 100-percent retention standard.

In 1998, Congress passed the AFA (Div. C, Title II, Pub. L. No. 105-277, 112 Stat. 2681 (1998)), which restricted participation in the BSAI pollock fishery to certain eligible vessels and processors, and authorized the formation of fishery cooperatives. Under the AFA, vessels in the BSAI pollock fishery have formed voluntary cooperatives that have eliminated the open access race for fish that characterized the BSAI pollock fishery before the AFA. Under these AFA cooperatives, participating catcher/processors and motherships have been able to dramatically improve product recovery rates by slowing down their operations, using more refined production techniques, and fishing more selectively. This increase in productivity under the AFA was examined in detail in the final Environmental Impact Statement prepared for AFA-related Amendments 61/61/13/8 to the FMPs for the groundfish, crab, and scallop fisheries off Alaska.

In addition to these general gains in productivity, catcher/processors and motherships have achieved higher roe recovery rates under the AFA through an increased ability to time their fishing activity to coincide with periods of peak roe recovery and through an increased ability to selectively target schools of large mature pollock. When circumstances are ideal, some catcher/processors and motherships have reached or exceeded the current 7-percent limit.

In 1999, the Council examined roe recovery rates by catcher/processors in the BSAI and concluded that sufficient rationale existed to raise the maximum retainable roe amount to 9 percent. After reviewing data on roe recovery rates, NMFS agreed with the Council's rationale.

To determine the appropriate roe retention limit under the AFA, NMFS examined roe recovery information from the 2000, 2001, and 2002 roe seasons, which were managed under AFA cooperatives. During this time period, AFA catcher/processors and motherships processed 26,286 mt of pollock roe and 826,913 mt round-weight equivalent of primary pollock products for an aggregate roe recovery rate of 3.2 percent for the 2000-2002 roe seasons. However, during each of the 3 years, certain vessels were able to achieve roe recovery rates that exceeded 7 percent during weeks of peak roe recovery. In 2000, one catcher/processor achieved roe recovery rates of 8.0 and 9.0 percent during two reporting weeks in March. In 2001, seven catcher/processors exceeded the 7-percent limit during the week of March 24. During that week, these seven catcher/processors achieved an aggregate roe recovery rate of 8.4 percent. In 2002, only one catcher/processor exceeded the 7-percent limit, with a roe recovery rate of 8.3 percent during the week of March 17. During this 3-year time period, a 7-percent limit would have required that catcher/processors discard a total of 185.6 mt of roe product, or 61.9 mt annually.

This action also would affect non-AFA catcher/processors that engage in directed fishing for other groundfish species in the BSAI and encounter incidental catch of pollock. The maximum retainable percentage of pollock is 20 percent for vessels engaged in directed fishing for other groundfish species. Existing 100-percent retention requirements at 50 CFR 679.27 require vessels engaged in directed fishing for groundfish other than pollock to retain their incidental catch of pollock up to the 20-percent limit, and such vessels are also allowed to recover roe from their incidental catch of pollock. The proposed 9-percent roe retention limit also would govern the amount of pollock roe these vessels could retain. In 2001, 58 non-AFA catcher/processors retained and processed pollock in the BSAI. These 58 vessels processed a round-weight equivalent of 11,837 mt of primary pollock products and 199 mt of pollock roe. The roe retention rates of non-AFA catcher/processors ranged from zero to 5.5 percent with an average rate of 1.5 percent. From these data, NMFS concludes that non-AFA catcher/processors are less able to maximize pollock roe recovery than AFA catcher/processors.

Based on these data, NMFS has concluded that, when conditions for roe recovery are ideal in mid to late March, some catcher/processors are able to achieve recovery rates that exceed 7 percent and that 9 percent is a standard that is sufficiently high to accommodate these peak periods of roe recovery without forcing vessels to discard excess roe. NMFS considered and rejected the alternative of eliminating the roe retention limit for several reasons. First, the AFA cooperatives that have produced a more rationalized fishery are not permanently established in regulation. AFA cooperatives, which are voluntary organizations, could dissolve at any point in the future if the members no longer believe that remaining in cooperatives is in their interest. The fishery then could potentially return to a race for fish. Second, non-AFA catcher/processors engaged in directed fisheries for other species are required to retain incidental catch of pollock up to the 20-percent maximum retainable percentage. The 9-percent maximum retainable roe percentage is an additional measure to prevent such vessels from roe stripping, even though the practice is also prohibited by IR/IU regulations. Therefore, the Council and NMFS believe that maintaining a regulatory limit on roe retention is prudent to prevent the potential for a return to the practice of roe stripping in the event that the current AFA cooperatives choose to dissolve and to continue to limit the practice in non-AFA fisheries.

This proposed rule would amend 50 CFR 679.20(g) by raising the maximum allowable roe retention percentage from 7 to 9 percent. For pollock harvested in the Gulf of Alaska (GOA), the maximum retainable percentage would remain at 7 percent. This distinction is made because the AFA applies only to the BSAI and the conditions that have led to an increase in roe recovery rates in the BSAI do not exist in the GOA. No other regulatory changes are proposed.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows: Two groups of vessels currently harvest pollock in the BSAI and retain roe product from the pollock harvested in the BSAI: (1) AFA catcher/processors and motherships that engage in directed fishing for pollock, and (2) non-AFA catcher/processors that encounter pollock as incidental catch in other fisheries.

Under the AFA, 21 catcher/processors and 3 motherships are eligible to engage in directed fishing for pollock in the BSAI. NMFS reviewed the size of these entities in the Environmental Impact Statement (EIS) prepared for AFA-related Amendments 61/61/13/8 to the fishery management plans for the groundfish, crab, and scallop fisheries off Alaska. The EIS concluded that all AFA-eligible catcher/processors are large entities under SBA size criteria because their annual receipts exceed $3.5 million. The 21 individual catcher/processors are owned by 12 companies with annual receipts that are estimated to range from $5 million for the smallest entity to several billion dollars for the largest entities. All three motherships engaged in the directed pollock fishery are also classified as large entities under SBA criteria because the companies that own these three motherships employ more than 500 individuals in their worldwide operations.

In 2001, 58 non-AFA catcher/processors harvested pollock incidentally while engaged in directed fishing for other species. Many of these vessels also retained pollock roe from their incidental catch of pollock. Although we do not have comprehensive knowledge of the ownership characteristics and gross receipts of the companies that own these 58 catcher/processors, we assume that many are small entities.

AFA catcher/processors and mothership production data from 2000-2001 indicate that roe recovery rates generally average between 3 and 5 percent. Vessels only rarely exceed the current 7 percent standard. From 2000-2002 the total annual production of roe in excess of 7 percent averaged 61.88 mt for the fleet, which represents 0.68 percent of the 9,166 mt average total annual roe production for those years. The effect of this action, therefore, is to allow catcher/processors and motherships to retain an additional 61.88 mt of pollock roe that existing regulations require to be discarded.

This action also would potentially affect non-AFA catcher/processors that engage in directed fishing for other groundfish species in the BSAI and encounter incidental catch of pollock. The maximum retainable percentage of pollock is 20 percent for vessels engaged in directed fishing for other groundfish species. Existing regulations at 50 CFR 679.27 require vessels engaged in directed fishing for groundfish other than pollock to retain their incidental catch of pollock up to the 20-percent limit. Such vessels also are allowed to recover roe from their incidental catch of pollock. The proposed 9- percent roe retention limit would govern the amount of pollock roe these vessels could retain as well. In 2001, 58 non-AFA catcher/processors retained and processed pollock in the BSAI. These 58 vessels processed a round-weight equivalent of 11,837 mt of primary pollock products and 199 mt of pollock roe. The roe retention rates of non-AFA catcher/processors ranged from zero to 5.5 percent with an average rate of 1.5 percent. From these data, NMFS concludes that non-AFA catcher/processors are less able to maximize pollock roe recovery than AFA catcher/processors and, therefore, would gain no benefit, nor incur any cost, from increasing the maximum retainable roe percentage from 7 percent to 9 percent.

Certification of this action is appropriate because this proposed rule relieves a restriction and would result in no increased cost to any entity, small or large, and no adverse impacts on any entities. In addition, the only entities that are expected to benefit directly from this action are large entities. As a result, a regulatory flexibility analysis was not prepared.