Citrus canker is a disease that affects citrus and is caused by the infectious bacterium Xanthomonas campestris pv. citri (Hasse) Dye. The strain of citrus canker that occurs in Japan infects the twigs, leaves, and fruit of a wide spectrum of citrus species.

Currently, the regulations in 7 CFR 319.28 (referred to below as the regulations) prohibit the importation of citrus from designated areas, with certain exceptions. One exception is for Unshu oranges (Citrus reticulata Blanco var. unshu, also known as Satsuma mandarin) grown in citrus canker-free areas in Japan or on Cheju Island, Republic of Korea. After meeting certain growing, packing, and inspection requirements, Unshu oranges from these areas of Japan and the Republic of Korea may be imported into approved areas of the United States. Also, under the regulations in 7 CFR 301.11, the Unshu oranges may not be moved interstate from an approved area into or through any State, territory, or possession where importation is prohibited under part 319.

Unshu oranges from Kyushu Island, Japan, and Cheju Island, Republic of Korea, may be imported into any area of the United States except American Samoa, Arizona, California, Florida, Hawaii, Louisiana, the Northern Mariana Islands, Puerto Rico, Texas, and the U.S. Virgin Islands. The importation of Unshu oranges from Honshu Island, Japan, had been similarly restricted, but in a final rule published in the Federal Register on February 1, 2002 (67 FR 4873-4877, Docket No. 99-099-2), we amended the regulations to provide for the importation of Unshu oranges from Honshu Island, Japan, into the citrus-producing States of Arizona, California, Florida, Hawaii, Louisiana, and Texas and required those oranges be fumigated with methyl bromide after harvest and prior to exportation to the United States. As a result of that final rule, Unshu oranges from Honshu Island, Japan, may be imported into any area of the United States except American Samoa, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands.

The fumigation requirement was to ensure that Unshu oranges moved into citrus-producing areas of the United States would not introduce mealybugs, mites, and scale insects that could become established in climates where citrus is grown.

In the proposed rule (66 FR 19892-19898, Docket No. 99-099-1, published April 18, 2001) that preceded the February 2002 final rule, we acknowledged that these pests, if introduced into non-citrus-producing areas, would likely not survive due to the effects of climate and lack of host material. We applied the fumigation requirement to all shipments of Unshu oranges from Honshu Island so that there would be no restrictions on the distribution of the fruit within those areas of the United States where its importation is authorized.

We were unaware, however, of the potential economic consequences of this action for producers of Unshu oranges on Honshu Island who had, prior to the February 2002 final rule, been able to ship the Unshu oranges to non-citrus-producing areas of the United States without the mandatory fumigation. The government of Japan has informed us that the fumigation requirement has seriously curtailed this market, creating an economic hardship for Japanese growers and exporters.

Because fumigation is not a necessary pest risk mitigation measure if the Unshu oranges are not distributed in citrus-producing areas of the United States, this interim rule removes the fumigation requirement for Unshu oranges from Honshu Island that will be distributed only in non-citrus-producing areas of the United States. To effect this change, we have amended § 319.28(b)(5) to specify that fumigation is required only for Unshu oranges from Honshu Island, Japan, that are to be imported into Arizona, California, Florida, Hawaii, Louisiana, or Texas. In addition, we have revised § 319.28(b)(7) to specify the different importation restrictions that apply to fumigated and unfumigated fruit produced on Honshu Island. This latter change will also serve to support the box marking provisions of § 319.28(b)(6)(i), which require the individual boxes in which the oranges are shipped to be stamped or printed with a statement specifying the States into which the Unshu oranges may be imported and from which they are prohibited removal.

In order to distinguish between Citrus reticulata Blanco varieties unshu and satsuma, we are removing the reference to Unshu oranges as also being known as Satsumas. Instead, we will refer to Unshu oranges as also being known as Satsuma mandarins. This distinction is important because the Unshu orange or Satsuma mandarin (Citrus reticulata Blanco var. unshu) is the variety imported from Japan. This variety is not grown commercially in the United States; however, another variety, the Satsuma (Citrus reticulata Blanco var. satsuma) is grown commercially in California.

This rule relieves a restriction that is not necessary to mitigate pest risk. Immediate action is warranted to alleviate the negative economic effects that Japanese growers and exporters face as a result of our requirement to fumigate Unshu oranges from Honshu Island that are shipped to non-citrus-producing areas of the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action 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.

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

We are amending the regulations governing the importation of citrus fruit to allow Unshu oranges grown on Honshu Island, Japan, to be imported without fumigation if the distribution of the fruit within the United States is limited to non-citrus-producing States. We will continue to require fumigation if the fruit is distributed to citrus-producing States. This action is warranted to relieve a restriction that is not needed to mitigate pest risk.

Our economic analysis for the changes in this document is set forth below. It provides an analysis of the potential effects on small entities as required by the Regulatory Flexibility Act.

Unshu oranges are a variety of mandarin orange currently allowed to be imported to the United States from Honshu Island, Japan, as long as they are fumigated with methyl bromide after harvest and before exportation. As a consequence of this interim rule, only Unshu oranges from Honshu Island that are destined for citrus-producing States will still require fumigation. Shipments of Unshu oranges from Honshu Island that are imported into non-citrus-producing States will not require methyl bromide fumigation, and the phytosanitary requirements will essentially revert to those that were in place before January 28, 2002.

Unshu oranges are a specialty fruit associated with the Christmas holiday season. They have a limited area of distribution in the United States and are significantly higher priced than domestically grown mandarin varieties that are similarly loose-skinned and seedless. The analysis focuses on these characteristics in describing the expected economic effects of this interim rule on small entities.

Unshu oranges from Japan are imported into the United States during a 1-month period, from about Thanksgiving until the latter part of December.1 The fruit is purchased as a Christmas season specialty, and serves a traditional gift-giving role among Asian ethnic groups in particular, although demand is broadening to include all segments of the population.

In addition to a relatively short period of importation, the U.S. market for Unshu oranges is geographically limited. An estimated 70 percent of Unshu orange imports from Japan are sold in Alaska, and the remaining 30 percent are sold in the northwestern United States.

The niche market for Unshu oranges in the United States is all the more apparent when the quantity imported is compared to Canadian import levels. Whereas 8 to 10 containers of Unshu oranges from Japan may be imported in 1 season by the United States, as many as 300 containers are shipped per season to Canada, with sales beginning at least a month earlier than in the United States.

One type of citrus grown commercially in California that is somewhat similar to the Unshu orange is the Satsuma. The wholesale price of Satsumas is less than 50 cents per pound.2 The wholesale import price of Unshu oranges ranges between $0.80 and $1 per pound.3 This price difference is another indication of the distinct market for Unshu oranges in the United States. It is unlikely that they would substitute for domestically grown mandarins, particularly given their current geographical distribution.

Even if there were greater likelihood of substitutability, the quantity of Unshu oranges imported is too small to significantly affect U.S. demand for domestically grown mandarins. Table 1 shows imports of Unshu oranges from Japan and South Korea, 1998-2001. There was a significant increase in 2001 over 2000, due to imports from Korea increasing eleven-fold. Over the 4-year period, Japan's exports to the United States averaged about 282 metric tons. When the total quantity of imports for 2001 (3,087 metric tons) is compared to total U.S. tangerine production for the 2001-2002 season (419,000 metric tons), Unshu orange imports represent less than 1 percent of domestic tangerine production.4

The FAA has determined that notice and opportunity for prior public comment are unnecessary in accordance with 14 CFR 11.38, because the FAA has provided previous opportunities to comment on substantially identical special conditions and has fully considered and addressed all the substantive comments received. Based on a review of the comment history and the comment resolution, the FAA is satisfied that new comments are unlikely. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance. However, the FAA invites interested persons to participate in this rulemaking by submitting comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On August 17, 2002, Royal Air, Inc., 2141 Airport Road, Waterford, Michigan 48327, applied for a supplemental type certificate (STC) to modify Learjet Model 24, 24A, 24B, 24B-A, 24C, 24D, 24D-A, 24E, 24F, 24F-A, 25, 25A, 25B, 25C, 25D and 25F airplanes approved under Type Certificate No. A10CE. The Learjet Model 24/25 series airplanes are small transport category airplanes powered by two turbojet engines, with maximum takeoff weights of up to 15,000 pounds. These airplanes operate with a 2-pilot crew and can seat 6 to 8 passengers. The modification incorporates the installation of the Innovative Solutions & Support (IS&S) Air Data Display Units (ADDU) and Air Data Sensor. The ADDU digital air data computing altimeter provides flight critical functions. These advanced systems have the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, Amendment 21-69, effective September 16, 1991, Royal Air must show that the Learjet Model 24, 24A, 24B, 24B-A, 24C, 24D, 24D-A, 24E, 24F, 24F-A, 25, 25A, 25B, 25C, 25D and 25F airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A10CE, or the applicable regulations in effect on the date of application for the change. Subsequent changes have been made to § 21.101 as part of Amendment 21-77, but those changes do not become effective until June 10, 2003. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The original type certification basis for the modified Learjet Model 24, 24A, 24B, 24B-A, 24C, 24D, 24D-A, 24E, 24F, 24F-A, 25, 25A, 25B, 25C, 25D and 25F airplanes includes 14 CFR part 25, dated February 1, 1965, through Amendments 25-2 and 25-4; and 14 CFR part 25, dated February 1, 1965, through Amendment 25-18, except for special conditions and exceptions noted in Type Certificate Data Sheet (TCDS) A10CE.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25, as amended) do not contain adequate or appropriate safety standards for the Learjet Model 24, 24A, 24B, 24B-A, 24C, 24D, 24D-A, 24E, 24F, 24F-A, 25, 25A, 25B, 25C, 25D and 25F airplanes because of novel or unusual design features, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Learjet Model 24, 24A, 24B, 24B-A, 24C, 24D, 24D-A, 24E, 24F, 24F-A, 25, 25A, 25B, 25C, 25D and 25F airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirement of part 36, including Amendment 36-1.

Special conditions, as defined in § 11.19, are issued in accordance with § 11.38, and become part of the type certification basis in accordance with § 21.101(b)(2).

Special conditions are initially applicable to the model for which they are issued. Should Royal Air apply at a later date for design change approval to modify any other model already included on the same type certificate to incorporate the same or similar novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101(a)(1).

As noted earlier, the Learjet Model 24, 24A, 24B, 24B-A, 24C, 24D, 24D-A, 24E, 24F, 24F-A, 25, 25A, 25B, 25C, 25D and 25F airplanes will incorporate new Air Data Display Units (ADDU) and Air Data Sensor that will perform critical functions. These systems have the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane. The current airworthiness standards (14 CFR part 25) do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effects of HIRF. Accordingly, this system is considered to be a novel or unusual design feature.

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Learjet Model 24, 24A, 24B, 24B-A, 24C, 24D, 24D-A, 24E, 24F, 24F-A, 25, 25A, 25B, 25C, 25D and 25F airplanes modified by Royal Air, Inc. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters, plus the advent of space and satellite communications, coupled with electronic command and control of the airplane, the immunity of critical digital avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 or 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the field strengths indicated in the following table for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to Learjet Model 24, 24A, 24B, 24B-A, 24C, 24D, 24D-A, 24E, 24F, 24F-A, 25, 25A, 25B, 25C, 25D and 25F airplanes modified by Royal Air, Inc. Should Royal Air apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same or similar novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

This action affects only certain design features on Learjet Model 24, 24A, 24B, 24B-A, 24C, 24D, 24D-A, 24E, 24F, 24F-A, 25, 25A, 25B, 25C, 25D and 25F airplanes modified by Royal Air. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of the special conditions for these airplanes has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

I. Background

On November 29, 1973, Congress issued the Hobby Protection Act (“Act”), 15 U.S.C. 2101-2106. The Act requires manufacturers and importers of “imitation political items” 1 to mark “plainly and permanently” such items with the “calendar year” such items were manufactured. 15 U.S.C. 2101(a). The Act also requires manufacturers and importers of “imitation numismatic items” 2 to mark “plainly and permanently” such items with the word “copy.” 15 U.S.C. 2101(b). The Act further provides that the Commission is to promulgate regulations for determining the “manner and form” that imitation political items and imitation numismatic items are to be permanently marked with the calendar year of manufacture or the word “copy.” 15 U.S.C. 2101(c).

Pursuant to the Act, in 1975 the Commission issued Rules and Regulations under the Hobby Protection Act, 16 CFR Part 304. The Rule tracks the definitions of terms used in the Act and implements the Act's “plain and permanent” marking requirements by establishing the sizes and dimensions of the letters and numerals to be used, the location of the marking on the item, and how to mark incusable and nonincusable items.3 In 1988, the Rule was amended to provide additional guidance on the minimum size of letters for the word “copy” as a proportion of the diameter of coin reproductions.4 53 FR 38942 (Oct. 4, 1988).

The Commission has determined to review all current Commission rules and guides periodically. These reviews seek information about the costs and benefits of the Commission's rules and guides and their regulatory and economic impact. The information obtained assists the Commission in identifying rules and guides that warrant modification or rescission. Therefore, the Commission solicits comment on, among other things, the economic impact of its Rules and Regulations Under the Hobby Protection Act; possible conflict between the Rule and state, local, or other federal laws; and the effect on the Rule of any technological, economic, or other industry changes.

The Commission solicits written public comment on the following questions:

(1) Is there a continuing need for the Rule as currently promulgated?

(2) What benefits has the Rule provided to purchasers of the products or services affected by the Rule?

(3) Has the Rule imposed costs on purchasers?

(4) What changes, if any, should be made to the Rule to increase the benefits of the Rule to purchasers? How would these changes affect the costs the Rule imposes on firms subject to its requirements? How would these changes affect the benefits to purchasers?

(5) What significant burdens or costs, including costs of compliance, has the Rule imposed on firms subject to its requirements? Has the Rule provided benefits to such firms? If so, what benefits?

(6) What changes, if any, should be made to the Rule to reduce the burdens or costs imposed on firms subject to its requirements? How would these changes affect the benefits provided by the Rule?

(7) Does the Rule overlap or conflict with other federal, state, or local laws or regulations?

(8) Since the Rule was issued, what effects, if any, have changes in relevant technology, such as e-mail and the Internet, or economic conditions had on the Rule?

1. In this final rule, the Federal Energy Regulatory Commission (Commission) amends its regulations to address the appropriate treatment of critical energy infrastructure information (CEII) in the aftermath of the September 11, 2001, terrorist attacks on the United States of America. Under the Policy Statement issued in Docket No. PL02-1-000 on October 11, 2001 (Policy Statement), the Commission removed from easy public access certain documents that previously had been public.1 In order to accomplish this step quickly, staff identified categories of document types that were likely to contain CEII, and those documents were removed from unrestricted public access. Persons seeking removed documents were directed to request the records using the Freedom of Information Act.2

2. On January 16, 2002, the Commission issued a Notice of Inquiry (NOI) in RM02-4-000 to determine what changes, if any, should be made to its regulations to restrict unfettered general public access to critical energy infrastructure information, but still permit those with a need for the information to obtain it in an efficient manner.3 On September 5, 2002, the Commission issued a Notice of Proposed Rulemaking and Revised Statement of Policy (NOPR) in Docket Nos. RM02-4-000 and PL02-1-000.4 The NOPR proposed procedures for submitting and requesting CEII, and proposed the creation of a new position of CEII Coordinator. The final rule adopts most of the procedures proposed in the NOPR and creates the new position.

3. The process adopted in the final rule offers a more efficient alternative to handling requests for previously public documents than does the FOIA, which the Policy Statement established as the short-term method for requesting previously public documents. The FOIA was useful in the short term where a great deal of information had been removed from public access, some of which the Commission ultimately ascertained did not actually contain CEII. As discussed in the NOPR, however, the FOIA process is not well suited for handling CEII requests.5 The FOIA mandates disclosure of agency records unless the record falls within one of several specifically enumerated exemptions. Therefore, in order for CEII to be protected from disclosure, it must qualify for a FOIA exemption. For this reason, it is unlikely that requesters will obtain CEII through the FOIA process, although they could use the FOIA to obtain non-CEII portions of documents. In addition, under the FOIA, an agency may not distinguish among requesters based on their particular need for the information. Information given to one FOIA requester must be given to all requesters. The agency also may not restrict the recipient's use or dissemination of the information. All these factors make FOIA an unsatisfactory tool for the agency to use if it wishes to afford requesters with a specific need for information access to exempt and potentially dangerous information. Therefore, the Commission is adding § 375.313 to its regulations to authorize a Critical Energy Infrastructure Information Coordinator to process non-FOIA requests for CEII and make determinations regarding such requests.6

In the Federal Register of December 7, 2000 (65 FR 76708), EPA published the Radionuclides Rule to address potential public health effects from the presence of radionuclides in drinking water. This rulemaking finalized a proposed rule that EPA published in the Federal Register of July 18, 1991 (56 FR 33050).

Radionuclides are radioactive elements that occur naturally in the Earth's crust or are formed as a result of cosmic ray interactions. Human activities can also add radionuclides to the environment. Radionuclides emit ionizing radiation when they radioactively decay. The potential for harmful health effects from radionuclide exposure results from the ability of ionizing radiation to chemically change molecules that make up biological tissue through a process called ionization. Studies have shown long-term exposure to radionuclides including uranium in drinking water may result in increased risk of cancer and that exposure to uranium can have adverse health effects on kidney function (65 FR 76708 at 76712-76713).

National primary drinking water regulations (NPDWRs) are issued by EPA to protect the public health from the adverse effects of contaminants in drinking water. NPDWRs specify maximum contaminant levels (MCLs) or treatment techniques for drinking water contaminants. In addition, at the same time that it issues NPDWRs, EPA publishes maximum contaminant level goals (MCLGs), which are not regulatory requirements but rather are nonenforceable health goals that are based solely on considerations of protecting the public from adverse health effects of drinking water contamination.

In the Radionuclides Rule, EPA issued an NPDWR containing an MCL for uranium. EPA retained the existing MCLs for combined radium-226/-228, gross alpha particle radioactivity, and beta particle and photon radioactivity and indicated the analytical methods it approved for testing for uranium and three other contaminants. Finally, EPA published an MCLG of zero for all radionuclides. EPA's NPDWR has an effective date of December 8, 2003.

Under section 410(b)(1) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 349(b)(1)), not later than 180 days before the effective date of an NPDWR issued by EPA for a contaminant under section 1412 of the Safe Drinking Water Act (SDWA) (42 U.S.C. 300g-l), FDA is required to issue a standard of quality regulation for that contaminant in bottled water or make a finding that such a regulation is not necessary to protect the public health because the contaminant is contained in water in public water systems but not in water used for bottled water. The effective date for any such standard of quality regulation is to be the same as the effective date of the NPDWR. In addition, section 410(b)(2) of the act provides that a quality standard regulation issued by FDA shall include monitoring requirements that the agency determines to be appropriate for bottled water. Further, section 410(b)(3) of the act requires a quality standard for a contaminant in bottled water to be no less stringent than EPA's MCL and no less protective of the public health than EPA's treatment technique requirements for the same contaminant.

FDA has determined that the subjects of this rulemaking are suitable for a direct final rule. The actions taken should be noncontroversial and the agency does not anticipate receiving any significant adverse comment.

FDA is adopting EPA's MCL for uranium as an allowable level in the quality standard regulation for bottled water. FDA is also retaining the existing allowable levels for combined radium-226/-228, gross alpha particle radioactivity, and beta particle and photon radioactivity in the quality standard regulation for bottled water. The existing allowable levels for these radionuclides in bottled water are identical to the existing MCLs for the same radionuclides in drinking water that EPA retained in their Radionuclides Rule. FDA also is specifying analytical methods for determining whether the bottled water is in compliance with the quality standards.

As a consequence of FDA's amending the quality standard for uranium in part 165 (21 CFR part 165), bottled water manufacturers are required to monitor their finished bottled water products for uranium at least once each year (part 129 (21 CFR part 129)). In addition, bottled water manufacturers are required to monitor their source water for uranium at least once every 4 years, unless they meet the criteria for the source water monitoring exemptions under the CGMP regulations (part 129).

If FDA does not receive significant adverse comment on or before May 2, 2003, the agency will publish a notice in the Federal Register no later than June 11, 2003, confirming the effective date of the direct final rule. The agency intends to make the direct final rule effective December 8, 2003.

A significant adverse comment is one that explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or why it would be ineffective or unacceptable without a change. In determining whether a significant adverse comment is sufficient to terminate a direct final rulemaking, FDA will consider whether the comment raises an issue serious enough to warrant a substantive response in a notice-and-comment process. Comments that are frivolous, insubstantial, or outside the scope of the rule will not be considered adverse under this procedure. A comment recommending a change to the rule that is in addition to the rule will not be considered a significant adverse comment, unless the comment states why this rule would be ineffective without the additional change. In addition, if a significant adverse comment applies to part of the rule and that part can be severed from the remainder of the rule, FDA may adopt as final those parts of the rule that are not the subject of a significant adverse comment. If timely significant adverse comments are received, the agency will publish a notice of significant adverse comment in the Federal Register withdrawing this direct final rule no later than June 11, 2003.

The companion proposed rule, which is in essence identical to the direct final rule, provides a procedural framework within which the rule may be finalized in the event the direct final rule is withdrawn because of significant adverse comment. The comment period for the direct final rule runs concurrently with that of the companion proposed rule. Any comments received under the companion proposed rule will be treated as comments on the direct final rule. Likewise, significant adverse comments submitted to the direct final rule will be considered as comments to the companion proposed rule, and the agency will consider the comments in developing a final rule. FDA will not provide additional opportunity for comment on the companion proposed rule. A full description of FDA's policy on direct final rule procedures may be found in a guidance document published in the Federal Register of November 21, 1997 (62 FR 62466).

The SDWA, as amended in 1996, requires EPA to publish an NPDWR that specifies either an MCL or a treatment technique requirement for contaminants that may “have an adverse effect on the health of persons,” are “known to occur or [have] a substantial likelihood [of occurring] in public water systems with a frequency and at levels of public health concern,” and for which “regulation * * * presents a meaningful opportunity for health risk reduction for persons served by public water systems” (SDWA section 1412(b)(1)(A)). The SDWA (section 300g-l(a)(3)) also requires that EPA issue MCLGs at the same time it issues NPDWRs. MCLGs are nonenforceable health goals that are based solely on considerations of protecting the public from the adverse health effects of contaminants, and not on other considerations, such as potential costs of regulating contaminants and potential technical difficulties of achieving the health goals (59 FR 38668 at 38671). EPA sets MCLs, the enforceable contaminant levels, as close as feasible to the nonenforceable MCLGs.

In its proposed rule on radionuclides (56 FR 33050), EPA proposed comprehensive changes to radionuclides standards in drinking water. However, after conducting a review of costs, benefits, and treatment technologies, in the Radionuclides Rule, EPA established an MCL of 30 micrograms per liter (µg/L) for uranium and retained the existing MCLs of 5 picocuries per liter (pCi/L) for combined radium-226/-228, 15 pCi/L for gross alpha (excluding radon and uranium), and 4 millirem (mrem)/year for beta particle and photon radioactivity (65 FR 76708 at 76722).

Because uranium is a kidney toxin as well as a carcinogen, EPA chose an MCL for uranium, expressed in µg/L, that is protective of both kidney toxicity and carcinogenicity (65 FR 76708 at 76716). Analytical methods approved by EPA for uranium monitoring include activity and mass concentration analyses. If uranium is determined by activity-type methods, a 0.67 pCi/µg conversion factor is used to convert activity to mass concentration (65 FR 76708 at 76725).

Under section 401 of the act (21 U.S.C. 341), the agency may issue a regulation establishing a standard of quality for a food under its common or usual name, when in the judgment of the Secretary of Health and Human Services such action will promote honesty and fair dealing in the interest of consumers. On November 26, 1973 (38 FR 32558), FDA established a quality standard for bottled water that is set forth in § 165.110.

Producers of bottled water are responsible for assuring, through appropriate manufacturing techniques and sufficient quality control procedures, that all bottled water products introduced or delivered for introduction into interstate commerce comply with the quality standard (§ 165.110(b)). Bottled water that is of a quality below the prescribed standard is required by § 165.110(c) to be labeled with a statement of substandard quality. Moreover, any bottled water containing a substance at a level that causes the food to be adulterated under section 402(a)(1) of the act (21 U.S.C. 342(a)(1)) is subject to regulatory action, even if the bottled water bears a label statement of substandard quality.

FDA has traditionally fulfilled its obligation under section 410 of the act to respond to EPA's issuance of NPDWRs by amending the quality standard regulations for bottled water introduced or delivered for introduction into interstate commerce to maintain compatibility with EPA's drinking water regulations. In general, FDA believes that, with few exceptions, EPA standards for contaminants in drinking water are appropriate as allowable levels for contaminants in the quality standard for bottled water when bottled water may be expected to contain the same contaminants.

FDA generally has not duplicated the efforts of EPA in judging the adequacy of MCLs or treatment techniques in NPDWRs for contaminants when determining their applicability to bottled water in order to protect the public health. FDA believes that, in general, it would be redundant for FDA to reevaluate the drinking water standards prescribed by EPA. Further, because bottled water is increasingly used in some households as a replacement for tap water, consumption patterns considered by EPA for tap water can be used as an estimate for the maximum expected consumption of bottled water by some individuals. Therefore, FDA's view is that generally in cases where bottled water is subject to the same contaminants as tap water, FDA should establish a standard of quality levels in bottled water at the same levels that EPA establishes as MCLs for such contaminants in tap water.

The quality standard for bottled water, as set forth in § 165.110(b)(5)(i), prescribes that bottled water shall not contain: (A) combined radium-226/-228 activity in excess of 5 picocuries per liter of water, (B) gross alpha particle activity (including radium-226, but excluding radon and uranium) in excess of 15 picocuries per liter of water, and (C) beta particle and photon radioactivity from manmade radionuclides in excess of that which would produce an annual dose equivalent to the total body or any internal organ of 4 millirems per year calculated on the basis of an intake of 2 liters of the water per day. If two or more beta or photon-emitting radionuclides are present, the sum of their annual dose equivalent to the total body or to any internal organ shall not exceed 4 millirems per year. The quality standard for bottled water, however, does not currently prescribe an allowable level for uranium.

With the exception of uranium, FDA's existing allowable levels for radionuclides (i.e., combined radium-226/-228, gross alpha particle radioactivity, and beta particle and photon radioactivity) in the bottled water quality standard are the same as EPA's existing MCLs for the same radionuclides in drinking water that EPA retained in the Radionuclides Rule. Therefore, FDA will not change the existing allowable levels for these radionuclides in bottled water.

Electronic Access

Internet users may download a copy of this final rule at the following Internet addresses: http://dms.dot.gov; http://www.access.gpo.gov; http://www.archives.gov/federal_register. An electronic copy may also be obtained by using a computer, modem, and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661.

The Secretary of Transportation, acting through the Board for Correction of Military Records of the Coast Guard, is authorized by section 1552 of title 10 of the United States Code to correct the military records of active duty, reserve, retired, and discharged Coast Guard military personnel who apply for a correction of an error or injustice in their records.

The Board's current rules at 33 CFR Part 52 have become disorganized over time by amendments and have several shortcomings that may negatively affect the Board's applicants and the timeliness of the Board's decisions. This revision of 33 CFR Part 52 is intended to better organize the rules, notify applicants of their rights and Board procedures, and remove other shortcomings as described below.

The current rules fail to inform the public of the following important matters: the proper format for briefs in support of an application; the need for a family member or legal representative to submit proof of his or her proper interest before applying on behalf of a deceased or incompetent veteran; the requirement that applicants inform the Board of any change in their mailing address prior to final action by the Board; the fact that applicants whose cases are processed under the Whistleblower Protection Act and who are granted a hearing may be entitled to representation by a Coast Guard law specialist in accordance with 10 U.S.C. 1034(f)(3)(A); the presumption of regularity accorded military records and the burden of proof borne by applicants; the possible actions the Secretary or his or her delegate may take when reviewing a recommended decision of the Board; the possible reduction of monetary awards resulting from record corrections because of setoffs required by law or regulation; and the availability of copies of the Board's final decisions, redacted to protect the privacy of applicants, for review in the Board's reading room and on an Internet site.

Furthermore, the current rule allows an applicant only 15 days to respond to the written views of the Coast Guard on his or her application. § 52.82(d). In light of the underway schedules of some of the Board's active duty applicants assigned to sea duty, 15 days is insufficient time for some applicants to respond. Moreover, no provision addresses applicants' requests for extensions to consult counsel or gather more evidence. The current rule requires members who submit evidence after submitting their applications to waive their right to a final decision within ten months and makes no provision for a new deadline. § 52.61(c). Moreover, no provision addresses the consequences of an applicant's decision to change his or her request for relief.

The current rule states that Board action is required before a member can withdraw an application. § 52.26. It also allows the Chair to deny an application, without prejudice and without action by the Board, if he or she believes that the evidence is insufficient or that the application was untimely and lacks merit. § 52.32.

The current rule does not address or facilitate the Board's access to privileged, classified, and sensitive information, such as reports of investigations, which is occasionally necessary for the Board to determine whether an error or injustice has been committed. The current rule also permits applicants to inspect the Board's record of proceedings without expressly providing for the protection of privileged, classified, and sensitive information. § 52.66.

The current rule states that the Board shall consider any written recommendation submitted by the Chief Counsel of the Coast Guard before issuing a decision. § 52.82(e). However, it provides no deadline for the Chief Counsel's submission even though the Board must take final action on each application within ten months. 14 U.S.C. 425. Delayed submissions by the Chief Counsel's office can leave the Board with little or no time to receive the applicant's response, issue a decision, and have it reviewed by the delegate of the Secretary before the statutory ten-month deadline has expired. The current rule also does not take into account written views submitted by a delegate of the Commandant of the Coast Guard other than the Chief Counsel. In addition, the current rule fails to require the Coast Guard to describe what “significant issue of Coast Guard policy” is at stake when he or she invokes review of a Board decision by the delegate of the Secretary. § 52.64(a)(2).

The current rule permits the Board to specify any correction of a record in its order and to order the Coast Guard to take “any other action deemed necessary to carry out the Board's recommendation,” but it does not expressly permit the Board to order the Coast Guard to convene medical boards to determine an applicant's disability rating so that his or her separation can be corrected. § 52.61(e). The current rule also requires the delegate of the Secretary to review cases in which the Board corrects a record to show that a member is entitled to a medal or award contrary to the Coast Guard's recommendation. In addition, the current rule does not address what the Coast Guard should do if it finds that an order of the Board is incomplete because of an oversight. All of these matters are addressed in the final rule.

The Department published a Notice of Proposed Rulemaking on December 11, 2002, at 67 FR 76142. No comments were received in response to that notice. Therefore, this final rule adopts the proposed rule without change.

This section remains unchanged.

This section is amended to reflect the codification of the Board's ten-month deadline for issuing decisions under 14 U.S.C. 425 and to add a citation (10 U.S.C. 1552(a)(4)) for the finality and conclusiveness of the Board's orders.

Throughout this section and all of Part 52, the term Chair is substituted for the term Chairman to establish gender neutrality. This section is also amended to remove a citation to 49 U.S.C. 108(a).

This section is amended to reflect the fact that the Board considers submissions from the Coast Guard and other Government offices along with applications and military records in reaching its decisions.

No changes have been made to this section.

No changes have been made to paragraph (a). Paragraph (b) is amended to inform family members and legal representatives that they must submit proof of their proper interest when applying to the Board for the correction of the military record of a deceased or incompetent veteran. Paragraph (c) is amended to reflect the fact that applications are not docketed by the Board until they are complete and to reflect the need for substantial evidence or information and all military and medical records before an application is considered complete. Paragraph (d) is added to advise applicants of the necessity of keeping the Board informed of any changes in mailing address so that they will receive the Board's correspondence. Paragraph (e) is added to ensure that briefs submitted in support of applications are readable, replicable, and not unduly lengthy.

This section is reworded to clarify why an applicant must provide reasons for submitting an application after the three-year statute of limitations has passed.

Paragraph (a) is added to inform applicants that they may be represented by counsel at their own expense but that applicants whose cases are processed under the Whistleblower Protection Act may be entitled to representation by a law specialist at a hearing convened in accordance with Subpart F. The previous text of this section appears in paragraph (b) and is amended by updating two citations and by making the Chair, rather than the Board, responsible for deciding the competence of an applicant's chosen representative.

Paragraph (a) is revised to encourage the timely submission of evidence with the initial application and to direct attention toward the new rule concerning late submissions of evidence in § 52.26. Paragraph (b) is added to inform applicants of the presumption of regularity accorded military records and of the burden of proof they must meet to be granted relief, which is the preponderance of the evidence.

This section is amended to consolidate the sentences.

This new section, which incorporates the provisions in old §§ 52.68 and 52.61(c), informs applicants of their right to a final decision on their applications within ten months of the completion of their applications. It also permits applicants to request extensions, submit evidence after their applications have been docketed, and alter their requests for relief without waiving their right to a timely decision. It provides that, if an applicant requests an extension or unreasonably delays responding to a request from the Board, the Board's ten-month deadline is extended by the duration of the extension or of the unreasonable delay. It further provides that, if in the determination of the Chair, an applicant has submitted significant new evidence or has significantly altered his or her request for relief after his or her application has been docketed, the application is considered newly completed and the applicant has the right to a final decision within ten months of the new date of completion.

This section (old § 52.26) is revised to allow the Chair to permit an applicant to withdraw his or her application without Board action.

No changes have been made to this section (old § 52.33), apart from its renumbering. It has been renumbered because it belongs better under this Subpart C—General Provisions Regarding Applications than where it was under Subpart D—Consideration of Application.

This section is amended to show that the Chair's initial review of an application to determine whether it is complete occurs before the application is docketed.

This section is renamed and expanded to clarify the circumstances under which the Chair may close a case without prejudice and without Board action. Paragraph (a) permits the Chair to close a case when he or she determines that the application was erroneously documented because it was never completed, the Board lacks authority to grant the requested relief, the applicant failed to exhaust an administrative remedy before applying to the Board, or the Coast Guard has already made the requested corrections. Paragraph (b) addresses how applicants might reapply after their cases have been administratively closed. Paragraph (c) requires the Chair to inform applicants of their right to reapply whenever he or she administratively closes a case.

This old section has been renumbered as §52.28.

This new subpart E embodies old Subpart—Miscellaneous Provisions. It has been renamed and repositioned to better reflect its contents and the order of the Board's procedures. Old subpart E is included in subpart F.

No changes have been made to this section (old § 52.81), apart from its renumbering.

Paragraph (a) (old § 52.82(a)) is amended to reflect the amendments to sections 52.21 and 52.32. Paragraphs (a) and (b) (old § 52.82(c)) are amended to reflect the fact that the views of the Coast Guard may be submitted in an advisory opinion by any delegate of the Commandant. Paragraph (c) (old § 52.82(e)) is amended to require the Board to consider the advisory opinion of the Coast Guard only if it is submitted within 135 days of the date the application is complete but to permit the Board to consider advisory opinions submitted after the 135-day deadline has passed. The rule facilitates timely decisions when submissions of advisory opinions by the Coast Guard are delayed to the point where little or no time remains for the Board to receive the applicant's response to the advisory opinion, issue a decision, and have it reviewed by the delegate of the Secretary before the statutory ten-month deadline has expired. Paragraph (d) (old § 52.82(d)) increases the time provided for the applicant's response to the advisory opinion from 15 to 30 days and allows the Chair to grant extensions of the time to respond. Paragraph (e), which is new, requires advisory opinions and applicants' briefs in response to advisory opinions to be readable, replicable, and not unduly lengthy.

This section (old § 52.82(b)) has been expanded to address the Board's ability to seek information from applicants and from other Government offices, as well as from the Coast Guard. It addresses how the Board can receive and review classified, privileged, and sensitive information from the Coast Guard or another Government office while providing the applicant with a copy of any part of that information that would be released to him or her if requested by the applicant from the custodian of the information under 49 CFR parts 7 or 10.

This subpart incorporates both old Subpart E—Hearings and old Subpart F—Procedure at Hearings because both concern hearings.

No changes other than renumbering and substituting the term Chair for the term Chairman have been made to this section (old § 52.41).

No changes other than renumbering, substituting the term Chair for the term Chairman, and adding a comma for stylistic consistency have been made to this section (old § 52.42).

This section (old § 52.43) has been renumbered and amended by substituting the term Chair for the term Chairman, adding a comma for stylistic consistency, and clarifying the language to indicate that the applicant is only responsible for ensuring the appearance of his or her own witnesses at a hearing.

This section (old § 52.44) has been renumbered and amended to inform applicants that they may be entitled to representation by a law specialist if they are granted a hearing and their cases are processed under the Whistleblower Protection Act.

No change has been made to this section (old § 52.45), apart from its renumbering.

No amendments other than renumbering, substituting the term Chair for the term Chairman, and adding a comma for stylistic consistency have been made to this section (old § 52.51).

No change has been made to this section (old § 52.52), apart from its renumbering.

No amendments other than substituting the term Chair for the term Chairman have been made to paragraphs (a) and (b). Old paragraph (c) is amended and moved to paragraphs 52.24(a) and 52.26(c). New paragraph (c) (old paragraph (d)) is amended only by substituting the term Chair for the term Chairman and by capitalizing the letter b in Board for stylistic consistency. Paragraph (d) (old paragraph (e)) is revised to show that the Board's authority to order the Coast Guard to take “any other action deemed necessary to carry out the Board's recommendation,” as previously provided, includes the authority to order the Coast Guard to convene medical boards to help determine an applicant's proper disability rating for a correction of his or her separation. No changes have been made to paragraph (e) (old paragraph (f)).

No changes have been made to this section.

Paragraph (a) contains the existing, unamended text of this section. Paragraph (b) has been added to provide for the return of classified, privileged, or sensitive information reviewed by the Board to the custodial Government office and the inclusion of the redacted copy of the information that was provided to the applicant in the Board's permanent record of proceedings after final action is taken.

Paragraph (a)(2) is amended to require the delegate of the Commandant of the Coast Guard to identify and describe in his or her advisory opinion the significant issue of Coast Guard policy challenged in an application that requires its review by the delegate of the Secretary under paragraph (b) if the Board grants relief contrary to the Coast Guard's advisory opinion or if the Board grants substantially different relief than that recommended by the Coast Guard. Paragraph (a)(2) is also amended to make the Board's decision on an application to receive a medal or award final unless the Coast Guard describes a significant issue of Coast Guard policy that is challenged in the application. Paragraph (b) is amended to reflect the range of actions the delegate of the Secretary may take in reviewing a decision of the Board.

No changes have been made to this section.

This section is amended to make only the permanent record of proceedings, as compiled in accordance with § 52.63(b), available for the applicant's inspection.

In paragraphs (a), (b), and (e), the term Chair is substituted for the term Chairman. Paragraph (a)(1) is amended for clarification. Paragraph (c) is amended to better explain who can serve on a Board to reconsider a case. Paragraph (d) is amended to make applications for reconsideration subject to the provisions in § 52.26 for permitting applicants to request extensions, submit evidence late, and alter their requests for relief.

This old section has been incorporated into §52.26.

No changes have been made to this section.

This section is renamed for clarity and the words “shall transmit” are substituted for the word “transmits.” Paragraph (b) is amended to specify that applicants must furnish to the Board or to the Coast Guard information needed to determine the proper parties to a claim. Paragraph (c) is amended to notify applicants that monetary awards resulting from record corrections may be reduced by setoffs required by law or regulation.

This section is amended to provide that the Coast Guard should return a decision to the Board for clarification or technical amendment if it believes that the Board's order is incomplete because of an oversight.

No changes have been made to this section.

The old Subpart I—Miscellaneous Provisions is repositioned and renamed as Subpart E—Submissions by the Coast Guard and Other Offices.

This new section informs the public of the availability of copies of its final decisions, redacted to protect the privacy of applicants, for public review in the Board's reading room and on the Internet.

This rule does not constitute a significant rule under Executive Order 12866 or the Department's Regulatory Policies and Procedures. The costs of these procedural changes are negligible, their effect on industry is negligible, and they are not of general policy interest.

Under 5 U.S.C. 604, we certify that this rule will not have a significant economic impact on a substantial number of small entities because it will affect only the procedures followed by the Board, the Coast Guard, and applicants in the submission and processing of applications for correction of individuals' personal military records. There are no Federalism factors to warrant the preparation of a Federalism assessment.

This final rule does not have any information collection requirements subject to review under the Paperwork Reduction Act.

Pursuant to 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this final rule effective in less than 30 days after publication in the Federal Register. Any delay encountered in this regulation's effective date would be unnecessary and contrary to the public interest because the work to be performed under this temporary final rule is necessary safety modifications that are scheduled to be performed when the bridge receives the fewest number of requests to open.

On December 27, 2002, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; Jamaica Bay and Connecting Waterways, New York, in the Federal Register (67 FR 79012). We received no comments in response to the notice of proposed rulemaking. No public hearing was requested and none was held.

The New York City highway bridge has a vertical clearance of 34 feet at mean high water, and 39 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.795(b).

The bridge owner, New York City Department of Transportation, requested a temporary bridge closure to install median safety barriers between the vehicular travel lanes at the bridge.

The bridge presently has no median safety barriers between the vehicular travel lanes that pass over the moveable lift spans at the bridge. There have been many serious head on automobile accidents at this bridge as a result of the absence of median safety barriers.

The average traffic count is 140,000 vehicles a day. There have been seven (7) head-on travel lane crossover accidents over the past several years, four (4) resulting in fatalities. These accidents resulted from the absence of a median safety barrier separating the opposite vehicular travel lanes.

The installation of the median safety barriers is considered necessary safety repairs that should be performed without delay.

In order to facilitate this structural work the bridge must remain in the closed position for the passage of vessel traffic from 7 a.m. on February 24, 2003 through 5 p.m. on April 14, 2003.

The time frame requested to perform this necessary safety work, February 24, 2003 through April 14, 2003, is the best time to perform this work because the bridge has historically had very few requests to open during that time period. In 2001 only one commercial vessel transit required a bridge opening and in 2002 only three commercial vessel transits required bridge openings between February 24 and April 14.

During the last ten days of the above closure the bridge will be balanced and tested. A limited number of bridge openings would be available for the passage of vessel traffic during the time period the bridge will be balanced and tested.

The Coast Guard believes this temporary final rule is reasonable because this work is essential for public safety and will be performed when the bridge has the fewest number of requests to open.

The Coast Guard received no comments in response to the notice of proposed rulemaking and as a result, no changes have been made to this final rule.

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

This conclusion is based on the fact that the waterway users who normally navigate Mill Basin are predominantly recreational vessels. There are four commercial facilities, two recreational vessel marinas, and two recreational/commercial vessel repair yards upstream from the bridge.

The time period the bridge will be closed is historically the time period during which the fewest requests are made to open the bridge. Between February 24 and April 14, 2001, only one commercial vessel transit required the bridge to open. Only three commercial vessel transits required bridge openings during the same period in 2002.

Vessels that can pass under the bridge without a bridge opening may do so at all times.

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 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 conclusion is based on the fact that the waterway users who normally navigate Mill Basin are predominantly recreational vessels. There are four commercial facilities, two recreational vessel marinas, and two recreational/commercial vessel repair yards upstream from the bridge.

The time period the bridge will be closed is historically the time period during which the fewest requests are made to open the bridge. Between February 24 and April 14, 2001, only one commercial vessel transit required the bridge to open. Only three commercial vessel transits required bridge openings during the same period in 2002.

Vessels that can pass under the bridge without a bridge opening may do so at all times.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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 State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

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

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

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

This supplementary information section is organized as follows:

EPA is approving revisions to Indiana's SIP for PSD. IDEM submitted these revisions to EPA on February 1, 2002, following an informal review by EPA in which a number of issues were identified and resolved by the two agencies. On January 15, 2003, EPA published a direct final rule conditionally approving these revisions (68 FR 1970). On the same date, EPA also proposed to approve the revisions (68 FR 1998). In a separate action, we withdrew the direct final rule because we received adverse comments. The proposed approval remained in effect. Today we are responding to those comments and taking final action to conditionally approve Indiana's SIP revision request.

In our January 15, 2003 direct final rulemaking, we discussed the history of Indiana's PSD program, the contents of the State's submission and our analysis. Please consult that document for further information on those matters.

On December 31, 2002, EPA published revisions to its New Source Review (NSR) regulations, including PSD (67 FR 80186). These revisions, which do not take effect until March 3, 2003, will change existing NSR requirements in a number of ways. States which have approved programs under 40 CFR part 51 (as Indiana now has as a result of today's action), will have up to three years in which to adopt and submit revisions implementing the new requirements.

EPA received the comments described below from a number of parties, including corporations, trade associations and private citizens.

Comment: The proposed SIP does not comport with current EPA requirements because it does not incorporate the alternative fuel/raw material exemption of 40 CFR 51.166(b)(2)(iii)(e). The commentor contends that this omission is significant because it means that Indiana's rule fails to provide an exemption for “certain anticipated operational fluctuations, thereby potentially triggering [NSR] in Indiana for otherwise federally exempt minor modifications.”

Response: As noted in EPA's January 15, 2003 direct final rulemaking notice, this provision may inadvertently allow changes prohibited in a previously-issued minor construction permit to qualify for the alternative fuel/raw material exemption. Indiana's regulatory language does not prevent minor sources from applying this provision when appropriate to avoid PSD applicability. As EPA also previously noted, Indiana has agreed to address this inadvertent omission within one year of the effective date of approval (68 FR 1971). EPA does not believe that this minor, inadvertent omission warrants the disapproval of the rules.

Comment: Indiana's rule fails to address “pollution control projects.”

Response: Currently, federal PSD regulations provide an exemption only for pollution control projects installed at electric utility steam generating units. As a result, Indiana did not submit to EPA for approval of its provision extending the exemption to non-utility sources; and EPA, therefore, could not take any action on the State's provision.

Comment: The Indiana regulations include a definition of “pollution control project.” In addition, Indiana regulations omit the word “utility” from the term “electric utility steam generating unit” in the pollution control project exclusion portion of the definition of “major modification” in 326 IAC 2-2-1(x)(2)(H).

Response: As stated above, IDEM did not submit its pollution control project provision to EPA. Therefore, this definition is merely extraneous. In addition, any comments relative to this provision are not relevant.

Comment: IDEM's Office of Environmental Adjudication (OEA) does not provide the same amount of time to file an appeal of a PSD determination as does EPA's Environmental Appeals Board under 40 CFR 124.19. In addition, if an appellant sought to stop construction of a facility, the OEA would require the posting of an appeal bond, something not required under the federal procedures in 40 CFR part 124.

Response: After communications with IDEM's Office of Legal Counsel, it is EPA's understanding that, although there is no provision for an extension of the 15-day filing period, a party may amend and supplement its timely petition for review after filing. EPA also understands that, under Indiana law, a party appealing a PSD permit to the OEA may request a stay of that permit, and that no appeal bond is required.

Comment: 326 IAC 2-1.1-6(a)(5) is written as if a public hearing is optional. The Indiana regulations do not meet or exceed the requirements of 40 CFR 51.166(q)(2)(iii) and do not provide informed public participation in accordance with congressional intent. There appears to be no provision under the Indiana PSD rules for the extension of comment time (see 40 CFR 124.13).

Response: With respect to public participation, Indiana's rules conform with applicable EPA regulations at 40 CFR 51.166. In addition, under Indiana Code 4-21.5, IDEM must individually notify potentially affected parties (which include all commentors) of its final decision. Historically, IDEM's practice has been to go beyond the minimum legal requirements by providing internet postings of applications received, permits subject to public notice and permits issued. IDEM also directly notifies potentially affected parties, which would include previous commentors and contiguous landowners. Also, IDEM has historically granted additional public comment time when it deems it necessary. 40 CFR 124.13 does not mandate that the permitting authority automatically grant additional public comment time upon any request. As a result of the above, EPA does not believe that any procedural differences which may exist between the state and federal programs warrant disapproval.

Comment: There is nothing in 40 CFR part 52, as it is now or as amended by this final approval, stating that Indiana is or would be an approved State to issue PSD permits. EPA has not amended 40 CFR 52.793, which incorporated the federal PSD rules into Indiana's SIP.

Response: Our final action amends the SIP at 40 CFR 52.770(c)(147) to incorporate the Indiana PSD rules into the SIP.

This amendment approves the Indiana PSD program as part of the SIP, thus giving Indiana the authority to issue PSD permits under its own regulations. Our approval of the SIP, therefore, supercedes 40 CFR 52.793.

Comment: Indiana omitted the word “national” from the term “ambient air quality standards” in 326 IAC 2-2-5(a)(1), so as to be able to invoke 326 IAC 1-3 rather than 40 CFR part 50, the national ambient air quality standards.

Response: Indiana has incorporated the national ambient air quality standards from 40 CFR part 50 into 326 IAC 1-3. The omission of the word “national” has no bearing on the approvability of 326 2-2-5(a)(1).

Comment: Indiana regulations have no text resembling 40 CFR 50.10 and 40 CFR part 51, Appendix I, the revised 8-hour ozone standard.

Response: States are not currently required to address the revised ozone standard in their PSD SIPs.

Comment: A number of commentors asserted that EPA should not approve Indiana's current PSD program, but instead rely on the PSD/NSR rules published in the Federal Register on December 31, 2002. They further claimed that failure to do so would: (1) Put both the State and Indiana sources at a disadvantage; (2) subject Indiana sources to conflicting PSD obligations; (3) preclude Indiana sources from “tak[ing] advantage of the improvements” under the December 31, 2002 rules, including provisions for “plant-wide applicability limits” and “clean units;” and (4) delay implementation of new rules by three years. One commentor also noted that this makes EPA's conditional approval of Indiana's PSD program problematic because the Indiana regulations must be compared to the 2002 revisions to the Federal NSR rules when the conditional approval issue is corrected and submitted to EPA for approval.

Response: On September 11, 1980, EPA delegated to IDEM the authority to implement and enforce the Federal PSD program. Since that time, Indiana has devoted considerable time and energy to develop its own regulations, for approval by EPA and incorporation into Indiana's SIP. For the reasons provided in EPA's January 15, 2003 direct final rulemaking and in today's action, EPA believes that Indiana's revisions are approvable under the currently effective regulations at 40 CFR 51.166; and that EPA, in fact, has no choice but to approve them.

The state rules EPA is approving today are now effective as a matter of Federal and state law, providing clarity and certainty to subject Indiana sources. Once the 2002 revisions to the Federal NSR rules become effective, Indiana will then have the opportunity—if it so desires—of revising its rules and submitting them for Federal approval into the SIP. More specifically, Indiana will have up to January 2, 2006 in which to review and analyze the new Federal rules, and then determine whether to adopt and submit the same rules, or “customize” its program with “different but equivalent regulations” (67 FR 80241).

With regard to the impact of NSR revisions on the “conditional” nature of this approval, EPA notes that there is actually only one provision at issue: Indiana's omission of rule language that would specifically exclude changes prohibited in a previously-issued minor construction permits from the alternative fuel/raw material exemption under the definition of “major modification.” In response to the commentor's question as to how EPA could fully approve Indiana's program once revised Federal NSR rules are in effect, EPA notes that the revised Federal NSR rules to which the commentor refers actually adopt the same approach with regard to the applicable definition, i.e., that provision would not be revised. Furthermore, and given the uncertainty as to what the applicable Federal requirements may be in one year, disapproval of Indiana's submission because of such a minor omission is not warranted.

Comment: Once comments have been addressed, EPA should provide an additional opportunity for public input.

Response: The Administrative Procedure Act guarantees opportunities for public review and comment in the SIP approval process, and we make every effort to provide opportunity for meaningful and extensive public participation. For this action, we provided a public comment period from January 15, 2003, to February 14, 2003. Once the public has commented, we must respond to issues raised, reach a final decision, and take action. Since we are responding to all comments we received regarding the SIP approval of the Indiana PSD program and we have determined that the commentors have not raised any issues warranting disapproval, we must take final action.

Comment: Indiana has issued a permit which does not conform with the applicable requirements.

Response: This comment is not relevant to today's action.

We also received comments regarding the experience and background of the OEA judges which are not relevant to the approvability of the Indiana PSD regulations. Therefore, we are not responding to those comments in this action. In addition, a commentor requested, as a response to comments, information on previous instances of PSD injunctive relief and information on work hours invested by EPA regarding the Indiana PSD regulations. These requests are not relevant to the approvability of the Indiana PSD regulations and we are not responding to these requests in this action. Requests for information from EPA should be made using the appropriate Freedom of Information Act procedures.

EPA is conditionally approving the following rules as part of Indiana's SIP: 326 IAC 2-2-1, Definitions; 326 IAC 2-2-2, Applicability; 326 IAC 2-2-3, Control technology; 326 IAC 2-2-4, Air quality analysis; 326 IAC 2-2-5, Air quality impact; 326 IAC 2-2-6, Increment consumption requirements; 326 IAC 2-2-7, Additional analysis; 326 IAC 2-2-8, Source obligation; 326 IAC 2-2-9, Innovative control technology; 326 IAC 2-2-10, Source information; 326 IAC 2-2-11, Stack height provisions; 326 IAC 2-2-12, Permit recission; 326 IAC 2-2-13, Area designation and redesignation; 326 IAC 2-2-14, Sources impacting Federal Class I areas: additional requirements; 326 IAC 2-2-15, Public participation; 326 IAC 2-2-16, Ambient air ceilings; 326 IAC 2-1.1-6, Public notice, and 326 IAC 2-1.1-8, Time periods for determination on permit applications.

As noted in EPA's January 15, 2003 direct final rulemaking, EPA believes that it is appropriate to grant conditional approval. However, should Indiana fail to correct the identified deficiency within one year of this action, EPA will initiate withdrawal of this approval. In addition, while EPA is approving Indiana's PSD SIP, EPA recognizes that it has a responsibility to insure that all states properly implement their preconstruction permitting programs. EPA's approval of the State's PSD program does not divest the Agency of the duty to continue appropriate oversight to insure that PSD determinations made by Indiana are consistent with the requirements of the CAA, EPA regulations, and the SIP. EPA's authority to oversee PSD program implementation is set forth in sections 113, 167, and 505(b) of the Act. For example, section 167 provides that EPA shall issue administrative orders, initiate civil actions, or take whatever other enforcement action may be necessary to prevent construction of a major stationary source that does not “conform to the requirements of” the PSD program. Similarly, section 113(a)(5) provides for administrative orders and civil actions whenever EPA finds that a State “is not acting in compliance with” any requirement or prohibition of the Act regarding construction of new or modified sources. Likewise, section 113(a)(1) provides for a range of enforcement remedies whenever EPA finds that a person is in violation of an applicable implementation plan.

Enactment of Title V of the CAA and the EPA objection opportunity provided therein has added new tools for addressing deficient new source review decisions by states. Section 505(b) requires EPA to object to the issuance of a permit issued pursuant to Title V whenever the Administrator finds during the applicable review period, either on her own initiative or in response to a citizen petition, that the permit is “not in compliance with the requirements of an applicable requirement of this Act, including the requirements of an applicable implementation plan.”

Regardless of whether EPA addresses deficient permits using objection authorities or enforcement authorities or both, EPA cannot intervene unless the state decision fails to comply with applicable requirements. Thus, EPA may not intrude upon the significant discretion granted to states under new source review programs, and will not “second guess” state decisions. Rather, in determining whether a Title V permit incorporating PSD provisions calls for EPA objection under section 505(b) or use of enforcement authorities under sections 113 and 167, EPA will consider whether the applicable substantive and procedural requirements for public review and development of supporting documentation were followed. In particular, EPA will review the process followed by the permitting authority in determining best available control technology, assessing air quality impacts, meeting Class I area requirements, and other PSD requirements, to ensure that the required SIP procedures (including public participation and Federal Land Manager consultation opportunities) were met. EPA will also review whether any determination by the permitting authority was made on reasonable grounds properly supported on the record, described in enforceable terms, and consistent with all applicable requirements. Finally, EPA will review whether the terms of the PSD permit were properly incorporated into the operating permit.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator 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.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 2, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2))

On December 16, 1999, we published at 64 FR 70191 a final rule that increased the limit of liability under Coverage D—Increased Cost of Compliance of the Standard Flood Insurance Policy from $15,000 to $20,000. This is how we summarized our reasons for the increase in 1999 at 64 FR 70191:

“In making initial estimates of ICC claims, we had access to our loss experience from 1978 through 1994. The latest experience period for estimating ICC claims runs through 1998. Based on our additional experience with flood losses—losses large enough to trigger community declarations of substantial damage—we have decreased the number of expected annual ICC claims to a range of 2700-2900. On this basis, we are confident that the limit of liability for ICC coverage can be increased from $15,000 to $20,000 (a 33% increase) with no change in premiums.”

With this rule, we are proposing to further increase the limit of liability to $30,000.

First, the pricing for this coverage has to be actuarially sound with premiums varying, to the extent possible, by risk. Second, section 555 of the National Flood Insurance Reform Act of 1994, which mandates ICC coverage, sets a cap of $75 that we may charge for this coverage. Third, our previous estimate was that the number of policyholders receiving benefits under ICC coverage would be 2700-2900 each year. Fourth, we considered the uncertainties associated with the introduction of the product and which extend through the first few years of the coverage.

In making our revised estimate of ICC claims on which we based the increase in the coverage limit to the current level of $20,000, we relied on our loss experience available at the time—both for ICC during the limited time that it had been offered, and on our total program experience from 1978 through 1998. Based on our additional loss experience, which includes data through calendar year end 2001, and concentrating on losses large enough to trigger community declarations of substantial damage, we have further decreased our estimate of the expected annual number of ICC claims to a range of 2200-2500. On this basis, we are confident that the limit of liability can be increased from $20,000 to $30,000 (a 50% increase) with no change in premium. The number of ICC claims actually filed since the introduction of this coverage is small compared to the number that we expected based on our flood claims filed under building coverage. We intend to continue analyzing this discrepancy, make further adjustments in premium charges, coverage amounts, or both as warranted, and to continue our education efforts with policyholders and local officials to make sure that they adequately understand this coverage.

We are publishing this final rule without opportunity for prior public comment under the Administrative Procedure Act, 5 U.S.C. 553. This final rule is a rule of agency procedure or practice that is excepted from the prior public comment requirements of section 553(b). The rule makes nonsubstantive, nonsignificant changes to 44 CFR part 61 by conferring a benefit to flood insurance policyholders, increasing coverage for increased cost of compliance without an increase in premium.

The requirements of 44 CFR part 10, Environmental Consideration, categorically exclude this final rule. We have not prepared an environmental impact assessment.

This final rule is not a significant regulatory action within the meaning of section 2(f) of E.O. 12866 of September 30, 1993, 58 FR 51735, but attempts to adhere to the regulatory principles set forth in E.O. 12866. The Office of Management and Budget has not reviewed this final rule under E.O. 12866.

This rule does not contain a collection of information and is therefore not subject to the provisions of the Paperwork Reduction Act.

Executive Order 13132 sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action. We have reviewed this proposed rule under E.O.13132 and have determined that the rule does not have federalism implications as defined by the Executive Order. We do not foresee the rule affecting the distribution of power and responsibilities among the various levels of government or limiting the policymaking discretion of the States.

This final rule meets the applicable standards of section 2(b)(2) of E.O. 12778.

We have sent this final rule to the Congress and to the General Accounting Office under the Congressional Review of Agency Rulemaking Act, Public Law 104-1221. The rule is not a “major rule” within the meaning of that Act. It is an administrative action in support of normal day-to-day activities that increases a benefit to policyholders without increasing premiums. It does not result in nor is it likely to result in an annual effect on the economy of $100,000,000 or more. It will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. It will not have “significant adverse effects” on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises. This final rule is exempt (1) from the requirements of the Regulatory Flexibility Act, and (2) from the Paperwork Reduction Act. The rule is not an unfounded Federal mandate within the meaning of the Unfunded Mandate Reform Act of 1995, Public Law 104-4. It does not meet the $100,000,000 threshold of that Act, and any enforceable duties are imposed as a condition of Federal assistance or a duty arising from participation in a voluntary Federal program.

The NFIP enables property owners to purchase flood insurance, which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001 et seq.; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register.

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives a 6-month, 90-day, and 30-day notification addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.

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

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless they take remedial action.

Regulatory Classification. This final 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.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp.; p. 252.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp.; p. 309.

Accordingly, 44 CFR part 64 is amended as follows:

We are amending our regulations to allow FEMA greater flexibility to extend the program period for the Crisis Counseling Regular Program. Currently, the program period for the Crisis Counseling Regular Programs is 9 months, and may be extended by the Assistant Associate Director for an additional 90 days. Under the new rule, the program period generally may be extended beyond the initial 9 months, and the additional 90 days, in limited circumstances for major disasters with catastrophic impact, such as terrorist attacks or other disasters of a catastrophic nature.

Normally, we apply changes to our regulations under the Stafford Act only to disasters declared on or after the effective date of the rule. However, the effect on the public in the New York City and Washington, DC metropolitan areas after September 11, 2001, have caused us to reevaluate the time limitations we placed on the Crisis Counseling Regular Program. Previously, such assistance was limited, by regulation, to 9 months, with the possibility of a 90 day extension. We have determined the extension of the Crisis Counseling Regular Program beyond the usual 9 months plus the additional 90 days is necessary to address the needs of the public after the catastrophic events of September 11, 2001. We have determined that this regulation should apply to the Major Disasters declared in New York and Virginia as a result of the events of September 11, 2001.

This interim final rule falls within the exclusion category at 44 CFR 10.8(d)(2)(ii), which addresses the preparation, revision, and adoption of regulations, directives, and other guidance documents related to actions that qualify for categorical exclusions. Qualifying for this exclusion and because no other extraordinary circumstances have been identified, this interim final rule will not require the preparation of either an environmental assessment or environmental impact statement as defined by the National Environmental Policy Act.

We have prepared and reviewed this rule under the provisions of E.O. 12866, Regulatory Planning and Review. Under Executive Order 12866, 58 FR 51735, October 4, 1993, a significant regulatory action is subject to OMB review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

For the reasons that follow, we have concluded that this rule is neither an economically significant nor a significant regulatory action under the Executive Order. The rule will accomplish one primary purpose: To allow in limited circumstances the Assistant Associate Director to extend the program period for the Crisis Counseling Regular Program. The Office of Management and Budget has not reviewed this rule under the principles of Executive Order 12866.

This interim final rule does not contain a collection of information and it therefore is not subject to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Under the Regulatory Flexibility Act agencies must consider the impact of their rulemakings on “small entities” (small businesses, small organizations and local governments). When 5 U.S.C. 553 requires an agency to publish a notice of proposed rulemaking, the Act requires a regulatory flexibility analysis for both the proposed rule and the final rule if the rulemaking could “have a significant economic impact on a substantial number of small entities.” The Act also provides that if a regulatory flexibility analysis is not required, the agency must certify in the rulemaking document that the rulemaking will not “have a significant economic impact on a substantial number of small entities.”

For the reasons that follow, I certify that a regulatory flexibility analysis is not required for this rule because it would not have a significant economic impact on a substantial number of small entities. This rule allows in limited circumstances the Assistant Associate Director to extend the program period for the Crisis Counseling Regular Program. The rule does not change in anyway the eligibility of small entities for disaster assistance.

Executive Order 13132, Federalism, dated August 4, 1999, sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.

We have reviewed this rule under E.O. 13132 and have concluded that the rule does not have federalism implications as defined by the Executive Order. We have determined that the rule does not significantly affect the rights, roles, and responsibilities of States, and involves no preemption of State law nor does it limit State policymaking discretion, since the rule merely extends the program period for the Crisis Counseling Regular Program.

This final rule meets the applicable standards of § 2(b)(2) of E.O. 12778.

In general, FEMA publishes a rule for public comment before issuing a final rule, under the Administrative Procedure Act, 5 U.S.C. 533 and 44 CFR 1.12. The Administrative Procedure Act, however, provides an exception from that general rule where the agency for good cause finds the procedures for comment and response contrary to public interest. The public benefit of this rule is the ability to extend the program period for the Crisis Counseling Regular Program.

Therefore, we believe it is contrary to the public interest to delay the benefits of this rule. In accordance with the Administrative Procedure Act, 5 U.S.C. 553(d)(3), we find that there is good cause for the interim final rule to take effect immediately upon publication in the Federal Register.

In addition, we believe that, under the circumstances, delaying the effective date of this rule until after a comment period would not further the public interest. For these reasons, we believe we have good cause to publish an interim final rule.

This is a summary of the FCC's Report and Order, FCC 03-26, adopted on February 3, 2003, and released on February 10, 2003. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the FCC's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365 or at bmillin@fcc.gov.

1. On December 20, 2001, we proposed to amend §§ 95.193(a), 95.193(b), and 95.631(d) of our Rules to revise the scope of permissible communications and emission types for FRS units. We initiated this proceeding in response to a petition filed by Garmin International, Inc. (Garmin), requesting that FRS units be allowed to transmit GPS location information using emission type F2D in a digital data burst of not more than one second. For the reasons explained further, we are revising our FRS rules to modify the authorized emission types and permissible communications to allow a new and incidental use of the FRS. We believe that permitting the transmission of location information and text messages over FRS channels will benefit the public.

1. Final Regulatory Flexibility Certification. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an initial regulatory flexibility analysis be prepared for notice and comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

2. In this Report and Order, we authorize an individual to use a FRS unit to satisfy his or her need for non-voice communications for the purpose of providing information about the location of the FRS unit to other FRS units or transmitting text messages. The revised rules apply exclusively to individuals who use FRS units. The modifications are in the public interest because they would allow the public to take advantage of technological developments in equipment and service that have occurred since the authorization of the FRS, availability of equipment at reasonable prices, and the removal of Selective Availability from the GPS signal.

3. In addition, the rules modified in this Report and Order affect manufacturers of FRS units. Based on requests from manufacturers for certification of FRS units, we believe that there are between five and ten manufacturers of FRS units, and that none of these manufacturers are small entities. The rule change applies to individuals who use FRS units and does not result in a mandatory change in manufactured FRS units. Rather, the rule changes are permissive and would allow a manufacturer, if it so chooses, to include additional features in the FRS units it manufactures. Therefore, we certify that the modification in this Report and Order will not have a significant economic impact on a substantial number of small entities. The FCC will send a copy of the Report and Order, including a copy of this Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act. In addition, the Report and Order and this final certification will be sent to the Chief Counsel for Advocacy of the SBA, and will be published in the Federal Register.

4. Paperwork Reduction Analysis. This Report and Order does not contain any new or modified information collection. Therefore it is not subject to the requirements for a paperwork reduction analysis, and the FCC has not performed one.

5. Pursuant to sections 4(i), 4(j), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), and 303(r), that sections 95.193(a), 95.193(b), and 95.631(d) of the FCC's rules, 47 CFR 95.193(a), 95.193(b), and 95.631(d), are amended as set forth, effective April 2, 2003.

6. The FCC's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

7. This proceeding is terminated.

On February 14, 2003 (68 FR 7444), TSA published an interpretive rule providing guidance on the types of property that TSA considers to be weapons, explosives, and incendiaries prohibited in airport sterile areas and in the cabins of aircraft under the TSA regulations. The interpretive rule also explained that certain items that are prohibited in sterile areas and cabins may be transported in checked baggage.

In the last sentence of the ending paragraph of the preamble discussion on permitted items (page 7446, first column, last sentence), as well as in the interpretation, on page 7446, in the third column, paragraph II.A.(9) erroneously included the words “non-refillable” to describe liquefied gas lighters. As both non-refillable (disposable) and refillable lighters (such as Colibri, Dunhill, and Ronson) are filled with liquefied butane gas and are equivalent from a security perspective, there is no reason to allow passengers to carry only non-refillable lighters of this type. Therefore, the words “non-refillable” have been removed and a clarifying reference to refillable, “Colibri-type” lighters has been inserted.

In the interpretation, on page 7447, in the first column, paragraph III.(6) erroneously listed the following as “Other items” that may be carried in checked baggage pursuant to strict conditions imposed by 49 CFR part 175: compressed air guns, fire extinguishers, flare pistols, and gun lighters. None of these items may be carried as checked baggage and should not have been included in this listing. Accordingly, this provision has been deleted from the interpretive rule.

In interpretive rule FR Doc. 03-3755, published on February 14, 2003 (68 FR 7444), make the following corrections:

1. On page 7446, in the first column, line 21, last sentence of preamble discussion paragraph on “Permitted Items,” is corrected to read as follows:

“Consistent with Department of Transportation regulations for hazardous materials, passengers also are permitted to carry no more than four books of matches (other than strike-anywhere matches) and no more than two lighters for individual use, if the lighters are fueled with liquefied gas (BIC-or Colibri-type) or absorbed liquid (Zippo-type).”

2. On page 7446, in the third column, paragraph II.A.(9) is corrected to read as follows:

“Lighters (maximum of two), fueled with liquefied gas (BIC-or Colibri-type) or absorbed liquid (Zippo-type).”

3. On page 7447, in the first column, remove the full paragraph III.(6), which begins “Other items. Compressed air guns, * * *”.

The Secretary of Commerce (Secretary) is responsible for implementing the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, as provided by the Northern Pacific Halibut Act of 1982 (Halibut Act), at 16 U.S.C. 773. Section 773c(c) of the Halibut Act authorizes the Regional Fishery Management Council having authority for the geographical area concerned to develop regulations governing the allocation and catch of Pacific halibut (Hippoglossus stenolepis) in U.S. Convention waters. Such regulations must be approved by the Secretary before being implemented and may be in addition to, but not in conflict with, regulations developed by the IPHC.

The commercial halibut fishery in and off Alaska is managed under the Individual Fishing Quota (IFQ) program and the CDQ program. Under the regulations established for these programs, the annual halibut catch limits for Areas 4B, 4C, and 4D are divided between the IFQ and CDQ programs. Twenty percent of the Area 4B annual catch limit is allocated to the CDQ program and the rest is allocated to the IFQ program. For Area 4C, the allocation to the CDQ program is 50 percent, and for Area 4D it is 30 percent. One hundred percent of the Area 4E annual catch limit is allocated to the CDQ program. The halibut CDQ catch limits, or reserves, are divided among eligible CDQ communities in accordance with Community Development Plans (CDP) submitted by CDQ managing organizations (CDQ groups) and approved by NMFS. This current action affects only halibut CDQ harvested in Areas 4D and 4E.

Since 1995, four different CDQ groups have received annual allocations of Area 4D halibut and two CDQ groups have received annual allocations of Area 4E halibut. Between 1995 and 2001, the annual halibut CDQ reserve ranged from 231,000 to 609,000 lb (104.78 to 276.24 mt) in Area 4D and from 120,000 to 390,000 lb (54.43 to 176.9 mt) in Area 4E. Amounts specified for halibut catch limits, reserves, and allocations are all in net (headed and gutted) weight. Halibut CDQ in Areas 4D and 4E must be allocated to the CDQ groups that represent eligible communities located in, or proximate to, Areas 4D and 4E, respectively.

The CSP for Area 4 originally was developed by the Council to apportion the IPHC's halibut catch limit for Area 4 among Areas 4A, 4B, 4C, 4D, and 4E as necessary to carry out the socioeconomic objectives of the IFQ and CDQ programs. The Area 4 CSP was published in the Federal Register on March 20, 1996 (61 FR 11337), and implemented that same year.

NMFS subsequently modified the Area 4 CSP to remove Areas 4A and 4B from the CSP in 1998 (63 FR 13000, March 17, 1998). This change was to allow the catch limits for these two areas and a combined Area 4C-4E to be set according to the IPHC's revised biomass-based methodology, under which the IPHC considers that Areas 4A, 4B, and 4C-E each have a separate halibut stock. Beginning in 1998, the IPHC has annually implemented the measures specified in the Area 4 CSP to apportion the combined Area 4C-E catch limit among Areas 4C, 4D, and 4E. The annual management measures for halibut fisheries in 2002 were published on March 20, 2002 (67 FR 12885).

Four out of six CDQ groups have received halibut CDQ allocations in Area 4D since 1995, including Bristol Bay Economic Development Corporation (BBEDC), Coastal Villages Region Fund (CVRF), Norton Sound Economic Development Corporation (NSEDC), and Yukon Delta Fisheries Development Association (YDFDA). Past and current allocations recommended by the State of Alaska and approved by the Secretary have allocated both Area 4D and Area 4E halibut CDQ to just two groups, BBEDC and CVRF, based on their historical participation in the Area 4 halibut fishery and the contents of their CDP applications. NSEDC and YDFDA have received only Area 4D halibut CDQ. Residents of communities represented by these latter two groups (with the exception of two of NSEDC's communities) must travel extended distances offshore to harvest Area 4D halibut CDQ or the quota must be harvested by large, non-local vessels.

In 1999, CDQ groups that received Area 4D quota expressed a desire to increase the amount of halibut CDQ that could be harvested in their locally based inshore halibut fishery by being allowed to harvest Area 4D halibut CDQ in Area 4E. All four of these groups represent communities along the western Alaska coast, ranging from Bristol Bay (south) to the Bering Strait (north). Almost all of the 56 communities represented by these groups are adjacent to Area 4E; only two are in Area 4D. In January 1999, these groups approached the IPHC at its annual meeting and requested a determination as to whether it would be acceptable to harvest halibut CDQ allocated to Area 4D in Area 4E. The IPHC had no objection to the request because it considers the halibut in Areas 4C, 4D,and 4E to be a single stock. This issue was also raised at the February 1999 Council meeting. The Council requested that NMFS prepare an analysis of the proposal to allow Area 4D halibut CDQ to be harvested in Area 4E. The Council also recommended modifying the Area 4E halibut catch limit (see Area 4E Trip Limit, below).

NMFS prepared an EA, RIR, and Initial Regulatory Flexibility Analysis (IRFA) that examined the proposal to allow Area 4D halibut CDQ to be harvested in Area 4E. In December 2001, the Council recommended allowing halibut CDQ that was allocated in Area 4D to be harvested in Area 4E. In January 2002, the IPHC noted that allowing Area 4D halibut CDQ to be harvested in Area 4E would constitute a change to the Area 4 CSP that would need to be addressed by NMFS in rulemaking.

This final rule will modify the Area 4 CSP to incorporate the Council's specific recommendation that Area 4D halibut CDQ may be harvested either in Area 4D or in Area 4E. However, the existing Area 4 CSP framework that apportions the combined Area 4C-E annual catch limit among Areas 4C, 4D, and 4E will remain unchanged. The authority to allocate the annual Area 4 catch limit according to the Area 4 CSP is specified at 50 CFR 300.63(b) and will continue to be implemented by the IPHC in its annual management measures pursuant to 50 CFR 300.62. The following paragraph will be added to the Area 4 CSP:

The Council recommended allowing the harvest of Area 4D halibut in Area 4E and allowing amounts of Area 4D halibut CDQ that had been transferred to Area 4E to be transferred back to Area 4D. NMFS will implement the Council's intent without requiring the CDQ groups to submit documents requesting transfers of halibut CDQ between Areas 4D and 4E. The Council intended that the maximum amount of halibut CDQ that could be caught in Area 4D would be the amount of halibut CDQ allocated to each CDQ group for Area 4D. The Council also intended that the maximum amount of halibut CDQ that could be caught in Area 4E would be the sum of the amount of halibut CDQ allocated for Areas 4D and 4E combined.

NMFS will monitor each CDQ group's halibut CDQ catch in Areas 4D and 4E. If the catch in Area 4E exceeds the group's initial allocation for Area 4E, then NMFS will subtract this additional catch from the group's Area 4D allocation and it will no longer be available for harvest in Area 4D. Halibut CDQ catch from Area 4D also will be subtracted from each group's Area 4D allocation. This procedure will allow each CDQ group to decide where to catch its Area 4D halibut CDQ allocation without requiring burdensome transfers.

Each CDQ group will be required to monitor the harvest of Area 4D and 4E halibut CDQ to ensure that: (1) its total catch in Area 4D does not exceed its Area 4D allocation, minus any portion of its Area 4D quota harvested in Area 4E, and (2) its total catch in Area 4E does not exceed the sum of its Area 4D and Area 4E allocations, minus any portion of its Area 4D allocation harvested in Area 4D.

In 1988, the Council developed, and the Secretary approved, fishing trip limits for Area 4C of 10,000 lb (4.54 mt) and Area 4E of 6,000 lb (2.72 mt) (53 FR 20327, June 3, 1988). In 1994, the Council recommended, and the Secretary approved, a fishing trip limit for Area 4B of 10,000 lb (4.54 mt) (59 FR 22522, May 2, 1994). These provisions were intended to enhance fishing opportunities for operators of vessels that landed their total annual catch within either Areas 4B, 4C, or 4E. Specifically, the Area 4E trip limit was devised to protect fishermen who landed their total annual catch of halibut at ports in Area 4E from competition with fishermen using vessels large enough to land their Area 4E halibut catch at ports in other regulatory areas. The Area 4E trip limit was incorporated into the Pacific halibut fishery regulations in 1988, and into 50 CFR part 676 (now promulgated as 50 CFR part 679) in 1993, as one of the rules implementing the halibut and sablefish IFQ and CDQ programs (58 FR 59375, November 9, 1993).

In December 1994, the Council recommended eliminating the trip limits in Areas 4B, 4C, and 4E, as these limits were deemed unnecessary due to the forthcoming implementation of the IFQ and CDQ programs. Subsequently, these restrictions were removed from the Pacific halibut regulations at 50 CFR part 301 (now 50 CFR part 300) (60 FR 14651, March 20, 1995). The Area 4E trip limit restriction, however, was inadvertently kept in 50 CFR part 679. In October 1998, NMFS informed the Council that this oversight would be corrected by removing the Area 4E trip limit from 50 CFR part 679. The Council declined to approve this correction, and voted instead to retain the 6,000-lb (2.72-mt) trip limit through September 1 of each year. The Council's rationale for retaining an Area 4E trip limit was to prevent consolidation of the halibut fishery in this area, to the possible detriment of local fishermen.

In December 2001, the Council confirmed its intent to retain the trip limit in Area 4E, but recommended that it be increased to 10,000 lb (4.54 mt) and that it be in effect annually only through September 1. The Council reasoned that retention of the trip limit would promote the near-shore small-scale halibut CDQ fishery in western Alaska, which is typically conducted by small vessels under 32 feet (9.73 m) length overall. Moderately increasing the trip limit, however, could allow harvesters greater operational flexibility during the spring and summer months, particularly for local vessels capable of packing more than 6,000 lb (2.72 mt) of halibut during a fishing trip. Eliminating the trip limit during the fall months will offer CDQ groups the ability to harvest halibut CDQ using vessels large enough to safely operate in adverse weather and sea conditions. Typically, the trip limit is an economic constraint to using larger vessels in the Area 4E halibut CDQ fishery.

This final rule revises the Area 4E trip limit to increase it from 6,000 to 10,000 lb (2.72 to 4.54 mt) and specifies that the Area 4E trip limit will be effective only through September 1 of each year.

NMFS published a proposed rule in the Federal Register on October 15, 2002 (67 FR 63600), which described the proposed regulatory amendment and invited comments from the public. No public comments were received on the proposed rule.

The Small Business Regulatory Enforcement Fairness Act of 1996 requires that, for each final rule requiring preparation of a FRFA, a plain language explanation of how to comply with the regulation be prepared. NMFS has prepared the following compliance guide that explains how small entities must comply with the regulations implemented in this final rule.

What is the trip limit for vessels fishing for halibut CDQ in Area 4E? A fishing trip limit of 10,000 lb (4.54 mt) applies to halibut CDQ harvesting in Area 4E.

Is the Area 4E trip limit effective for the entire halibut CDQ fishing season? The trip limit is in effect each year from the beginning of the halibut CDQ season through September 1. From September 2 until the end of the halibut CDQ season, vessels fishing for halibut CDQ in Area 4E are not subject to a trip limit.

May halibut CDQ allocated to Area 4D be caught in Area 4E? A CDQ group may choose to harvest all or a portion of its annual Area 4D halibut CDQ allocation in Area 4E.

What are the recordkeeping or reporting requirements associated with the revised trip limit and allowance to harvest Area 4D halibut CDQ in Area 4E? This action does not change the recordkeeping and reporting requirements associated with the halibut CDQ fishery in Area 4. NMFS will modify its halibut CDQ catch accounting software to incorporate the change to the Area 4E trip limit and the option to harvest Area 4D halibut CDQ in Area 4E.

The Council recommended this action to the Secretary for adoption pursuant to its authority under the Halibut Act. NMFS prepared an EA/RIR/IRFA for the proposed revisions to the Area 4 CSP and the Area 4E trip limit regulatory amendment that describes the management background, the purpose and need for action, the management alternatives, and the socioeconomic impacts of the alternatives.

NMFS also prepared a FRFA describing the impact of this action on small entities. A summary of the FRFA follows.

The objective of this action is to enhance the economic opportunities associated with the Area 4 halibut CDQ fishery by implementing the following regulatory changes: (1) Modifying the Area 4E trip to increase the trip limit to 10,000 lb (4.54 mt) and (2) amending the Area 4 CSP to allow Area 4D halibut CDQ to be harvested in Area 4E. No public comments were received on the IRFA prepared prior to, and summarized within, the proposed rule published for this regulatory amendment. NMFS considers most of the fishing operations affected by this action to be small entities, based on criteria established by the RFA. The universe of small entities is comprised of four CDQ groups, 58 CDQ-eligible communities, 224 catcher vessels, and 31 halibut registered buyers for a total of 317 small entities. There are no recordkeeping or reporting requirements associated with these actions. A range of alternatives was considered for each action. For the action associated with modifying the Area 4 CSP, allowing Area 4D halibut CDQ to be harvested in Area 4E was the preferred alternative selected by the Council. For the Area 4E trip limit action, the preferred alternative was increasing the trip limit to 10,000 lb (4.54 mt) and suspending the trip limit annually after September 1.

The proposed rule, published in the Federal Register on October 15, 2002 (67 FR 63600), contained a more lengthy discussion of the alternatives that were considered for this action and are not repeated here. The preferred alternatives for Actions 1 and 2 constitute the least burdensome alternatives to regulated small entities, among the suite of options available, while simultaneously achieving the objectives of this regulatory amendment. In other words, no other alternatives were identified which would reduce the potential adverse impacts on small entities, while achieving the Council's objectives for the Area 4 Halibut CDQ Program. The Area 4 CSP modification and the revision to 50 CFR part 679 would have no negative impacts in and of themselves, but are intended to increase the harvesting flexibility for participants in the halibut CDQ fishery in Areas 4D and 4E. These changes will allow CDQ groups with halibut CDQ allocations in these areas to tailor their halibut CDQ fishing operations to enhance economic opportunities for the western Alaska communities that they represent.

This final rule does not contain a collection-of-information requirement subject to review and approval by the Office of Management and Budget under the Paperwork Reduction Act. This final rule does not duplicate, overlap, or conflict with other Federal regulations.

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

Alaska, Fisheries, Reporting and recordkeeping requirements.

NMFS published final specifications and preliminary quota adjustments for the 2003 summer flounder, scup, and black sea bass fisheries on January 2, 2003 (68 FR 60). The final rule included preliminary 2002 landings and 2003 quota adjustments. Sections 648.100(d), 648.120(d), and 648.140(d) provide that, if the Regional Administrator determines during the fishing year that any part of an overage deduction was based on erroneous landings data that were in excess of actual landings for the period concerned, the Regional Administrator will restore the overage that was deducted in error to the appropriate quota allocation and publish notification in the Federal Register announcing the restoration.

During a retrospective review of the 2002 research set-aside (RSA) program and data accounting procedures, NMFS discovered a discrepancy in how RSA landings were attributed and subsequently used for quota monitoring; i.e., the RSA landings were counted as commercial landings in the summer flounder, scup, and black sea bass fisheries. Because RSA landings are authorized under a separate quota for each of these three fisheries, they are intended to be accounted for separately from other landings. As a result, actual commercial landings for certain 2002 quota periods were lower than previously reported, and quota overages calculated for 2002 incorrectly included RSA landings, which resulted in lower adjusted 2003 quotas than are necessary.

During a separate retrospective review of the landings data used to determine overharvest or underharvest of summer flounder in 2002, NMFS determined that, for some states, a portion of the landings considered to be late reports for 2001 landings were misattributed and counted as 2002 landings. In addition, some trip-level data that had already been included in monthly landings data reports were reported by the State of Connecticut. The result of these three findings made during the data review process is that the landings recorded for certain states or quota periods exceeded the actual landings. Therefore, NMFS hereby restores these inappropriately deducted landings to the appropriate state and period quotas for the 2003 fisheries.

A total of 317 lb (144 kg) of summer flounder RSA landings were counted erroneously as commercial landings, as follows: Connecticut—19 lb (9 kg); Rhode Island—98 lb (44 kg); and New York—200 lb (91 kg). This amount is a negligible fraction of reported 2002 landings and did not result in closure of any state's fishery. However, for these states, corrections have been made to the 2002 landings and the 2003 quotas are revised as appropriate.

In addition, the following states recorded 2002 landings of summer flounder less than those reported in the January 2, 2003, final rule, by the following amounts: New Hampshire—22 lb (10 kg); Rhode Island—337,187 lb (152,947 kg); Connecticut—42,056 lb (19,076 kg); New York—10,918 lb (4,952 kg); New Jersey—198,749 lb (90,152 kg); Maryland—15,385 lb (6,979 kg); Virginia—820,494 lb (372,174 kg); and North Carolina—846,527 (383,982 kg). Revisions to these landings have been made and revisions of 2002 overages (through October 31, 2002) are necessary for Rhode Island, Connecticut, and Virginia. The result is that the initial quotas (less the amount set aside for 2003 research) are restored for Connecticut, Rhode Island, and Virginia, as there was no 2002 overage in those states.

The commercial summer flounder 2003 adjusted quotas, less the amount set aside for 2003 research (as published in the January 2, 2003, final rule), the amounts being restored to the 2003 adjusted quotas, and the revised 2003 quotas (less the amount set aside for 2003 research), by state, are presented in Table 1.

No RSA landings of scup were made during the Winter I period of 2002. A total of 87,188 lb (39,548 kg) of scup landed under the RSA program during the Summer period of 2002 were counted erroneously as commercial landings. The 2002 Summer period overage reported in the January 2, 2003, final rule was 402,754 lb (182,688 kg), and the 2003 Summer period quota was adjusted to 4,434,691 lb (2,011,563 kg) as a result of that overage. Properly accounting for the RSA landings, the overage should be corrected to 315,566 lb (143,140 kg), resulting in a revised 2003 summer period quota of 4,521,879 lb (2,051,111 kg; a 1.9-percent increase). Per the quota counting procedures, any adjustment to the 2002 Winter II period quota will be made, if necessary, following review of the landings from November 1 through December 31, 2002, to be conducted as soon as possible after June 30, 2003.

The commercial scup 2003 adjusted quotas, less the amount set aside for 2003 research (as published in the January 2, 2003, final rule), the amounts being restored to the 2003 adjusted quotas, and the revised 2003 quotas (less the amount set aside for 2003 research), by period, are presented in Table 2.

Federal regulations at 50 CFR part 679 that implement the FMP govern the groundfish fisheries in the BSAI. The Council prepared the FMP and NMFS approved it under the Magnuson-Stevens Fishery Conservation and Management Act. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify annually the total allowable catch (TAC) for each target species and for the “other species” category, the sum of which must be within the optimum yield range of 1.4 million to 2.0 million metric tons (mt) (§ 679.20(a)(1)(i)). Also specified are apportionments of TACs, and Community Development Quota (CDQ) reserve amounts, prohibited species quota (PSQ) reserves, and PSC allowances. Regulations at § 679.20(c)(3) further require NMFS to consider public comment on the proposed annual TACs and apportionments thereof and the proposed PSC allowances, and to publish final specifications in the Federal Register. The final specifications set forth in Tables 1 through 17 of this action satisfy these requirements. For 2003, the sum of TACs is 2 million mt.

The proposed BSAI groundfish specifications and PSC allowances for the groundfish fishery of the BSAI were published in the Federal Register on December 12, 2002 (67 FR 76362). Comments were invited and accepted through January 13, 2003. NMFS received one comment on the proposed specifications. This comment is summarized and responded to in the Response to Comments section. Public consultation with the Council occurred during the December 2002 Council meeting in Anchorage, AK. After considering public comments, as well as biological and economic data that were available at the Council's December meeting, NMFS is implementing the final 2003 groundfish specifications as recommended by the Council.

Regulations at § 679.20(c)(2)(ii) establish the interim amounts of each proposed initial TAC (ITAC) and allocations thereof, of each CDQ reserve established by § 679.20(b)(1)(iii), and of the proposed PSQ reserves and PSC allowances established by § 679.21 that become available at 0001 hours, A.l.t., January 1, and remain available until superseded by the final specifications. NMFS published the interim 2003 groundfish harvest specifications in the Federal Register on December 26, 2002 (67 FR 78739). Regulations at § 679.20(c)(2)(ii) do not provide for an interim specification for either the hook-and-line and pot gear sablefish CDQ reserve or for sablefish managed under the Individual Fishing Quota (IFQ) management plan. The final 2003 groundfish harvest specifications, PSQ reserves and PSC allowances contained in this action supersede the interim 2003 groundfish harvest specifications.

In accordance with a biological opinion issued by NMFS on October 19, 2001, NMFS implemented a final rule for the start of the 2003 BSAI groundfish fisheries (68 FR 204, January 2, 2003), that contains measures that were deemed necessary to avoid the likelihood that the pollock, Pacific cod, and Atka mackerel fisheries off Alaska would jeopardize the continued existence of the western population of Steller sea lions or adversely modify its critical habitat. The final rule implements three types of management measures for the pollock, Pacific cod and Atka mackerel fisheries of the BSAI: (1) Measures to temporally disperse fishing effort, (2) measures to spatially disperse fishing effort, and (3) measures to provide sufficient protection from competition with pollock fisheries for prey in waters immediately adjacent to rookeries and important haulouts.

The final rule establishes a Steller Sea Lion Conservation Area (SCA) to regulate total removals of pollock in an area considered to be critical to the recovery of the endangered western population of Steller sea lions. The final rule restricts pollock harvests within the SCA to a percentage of each sector's seasonal allocation as recommended by the Council.

On December 18, 2002, the United States District Court for the Western District of Washington entered an Order remanding the October 19, 2001, biological opinion prepared for the groundfish fisheries. Greenpeace, et al. v. National Marine Fisheries Service, No. C98-492Z (W.D. Wash.). The Court held that the biological opinion's findings of no jeopardy to the continued existence of endangered Steller sea lions and no adverse modification of their critical habitat were arbitrary and capricious. NMFS reached an agreement with the Plaintiffs that the 2003 groundfish fisheries will commence pursuant to the Steller sea lion protection measures examined in the biological opinion pending completion of the remand. The Court issued an order on December 30, 2002, that supported the agreement and extended the effective date of the 2001 Steller sea lion protection measures biological opinion until June 30, 2003.

The final ABC levels are based on the best available scientific information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. The FMP specifies the formulas, or tiers, to be used in computing ABCs and overfishing levels (OFLs). The formulas applicable to a particular stock or stock complex are determined by the level of reliable information available to fishery scientists. This information is categorized into a successive series of six tiers.

At its December 2002 meeting, the Scientific and Statistical Committee (SSC), Advisory Panel (AP), and Council reviewed current biological information about the condition of groundfish stocks in the BSAI. This information was compiled by the Council's Plan Team and is presented in the final 2002 SAFE report for the BSAI groundfish fisheries, dated November 2002. The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the BSAI ecosystem and the economic condition of groundfish fisheries off Alaska. From these data and analyses, the Plan Team estimates an ABC for each species or species category.

In December 2002, the SSC, AP, and Council reviewed the Plan Team's recommendations. Except for Bogoslof pollock, sablefish, northern rockfish, Atka mackerel and the “other species” category, the SSC, AP, and Council endorsed the Plan Team's ABC recommendations. Based on the best available information, the SSC recommended slightly higher ABCs for sablefish and Atka mackerel and slightly lower ABCs for Bogoslof pollock and the “other species” category than the Plan Team recommended. For sablefish, the SSC increased the ABC from the Plan Team's recommendation based on the projected 5-year average of catches under the Council's F40 %% policy. For Atka mackerel, the SSC recommended a higher, yet still conservative, ABC compared to the Plan Team. The SSC's recommendation was based on an ABC option presented by the stock assessment author that should maintain stock biomass at or near B40 %%. For Bogoslof pollock, the SSC recommended using a procedure that reduces the ABC proportionately to the ratio of current stock biomass to target stock biomass. For “other species”, the SSC recommended for the 5th year, a procedure that moves gradually to a higher ABC over a 10-year period instead of a large increase in one year. For all species, the AP endorsed the ABCs recommended by the SSC, and the Council adopted them. The final ABCs, as adopted by the Council, are listed in Table 1. For northern rockfish, the SSC concluded that a reliable Bering Sea biomass estimate was not available and therefore used a more conservative procedure than the Plan Team for calculating OFLs and ABCs. This resulted in establishing separate OFLs and ABCs for the Bering Sea and Aleutian Islands subareas. At the Council meeting in January 2003, the SSC and Council received additional reports on northern rockfish biomass estimates and concluded that although variability in the estimates is high, the estimates are considered to be conservative. Thus both the SSC and Council recommended that NMFS consider following the historical approach of BSAI-wide northern rockfish OFL and ABC amounts. This was the approach proposed by NMFS (68 FR 76362, December 12, 2002) and is determined to be appropriate for this stock.

The final TAC recommendations were based on the ABCs as adjusted for other biological and socioeconomic considerations, including maintaining the total TAC within the required optimum yield (OY) range of 1.4 million to 2.0 million mt. The Council adopted the AP's TAC recommendations. None of the Council's recommended TACs for 2003 exceed the final ABC for any species category. NMFS finds that the recommended ABCs and TACs are consistent with the biological condition of groundfish stocks as described in the 2002 SAFE document that was approved by the Council.

Table 1 lists the 2003 OFL, ABC, TAC, ITAC and CDQ reserve amounts of groundfish in the BSAI. The apportionment of TAC amounts among fisheries and seasons is discussed below.

Regulations at § 679.20(b)(1)(i) require that 15 percent of the TAC for each target species or species group, except for the hook-and-line and pot gear allocation of sablefish, be placed in a non-specified reserve. The AFA supersedes this provision for pollock by requiring that the TAC for this species be fully allocated among the CDQ program, the ICA, and the inshore, catcher/processor, and mothership directed fishery allocations.

Regulations at § 679.20(b)(1)(iii) require that one-half of each TAC amount placed in the non-specified reserve be allocated to the groundfish CDQ reserve and that 20 percent of the hook-and-line and pot gear allocation of sablefish be allocated to the fixed gear sablefish CDQ reserve. Regulations at § 679.20(a)(5)(i)(A) also require that 10 percent of the Bering Sea subarea pollock TAC be allocated to the pollock CDQ reserve. The entire Aleutian Islands subarea and Bogoslof District pollock TAC is allocated as an ICA (§ 679.20(a)(5)(i)(A)(1)). With the exception of the hook-and-line and pot gear sablefish CDQ reserve, the regulations do not further apportion the CDQ reserves by gear. Regulations at § 679.21(e)(1)(i) also require that 7.5 percent of each PSC limit, with the exception of herring, be withheld as a PSQ reserve for the CDQ fisheries. Regulations governing the management of the CDQ and PSQ reserves are set forth at §§ 679.30 and 679.31.

Under regulations at § 679.20(a)(5)(i)(A)(1), NMFS allocates 3.5 percent of the Bering Sea subarea pollock TAC as an ICA after subtraction of the 10-percent CDQ reserve. This allowance is based on an examination of the incidental catch of pollock in non-pollock target fisheries from 1998 through 2002. During this 5-year period, the incidental catch of pollock ranged from a low of 3 percent in 1998, 2001 and 2002 to a high of 5 percent in 1999, with a 5-year average of 3 percent.

The regulations do not designate the remainder of the non-specified reserve by species or species group, and any amount of the reserve may be apportioned to a target species or to the “other species” category during the year, providing that such apportionments do not result in overfishing. The Administrator of the Alaska Region for NMFS (Regional Administrator), has determined that the ITACs specified for the species listed in Table 2 need to be supplemented from the non-specified reserve because U.S. fishing vessels have demonstrated the capacity to catch the full TAC allocations. Therefore, in accordance with § 679.20(b)(3), NMFS is apportioning the amounts shown in Table 2 from the nonspecified reserve to increase the ITAC to an amount that is equal to TAC minus the CDQ reserve.

Section 206(a) of the AFA requires the allocation of 10 percent of the BSAI pollock TAC as a CDQ reserve (§ 679.20(a)(5)(i)(A)). The remainder of the BSAI pollock TAC, after the subtraction of an allowance for the incidental catch of pollock by vessels (3.5 percent), including CDQ vessels, harvesting other groundfish species, is allocated as directed fishing allocations (DFA) as follows: 50 percent to catcher vessels harvesting pollock for processing by the inshore component, 40 percent to catcher/processors and catcher vessels harvesting pollock for processing by catcher/processors in the offshore component, and 10 percent to catcher vessels harvesting pollock for processing by motherships in the offshore component (§ 679.20(a)(5)(i)). These amounts are listed in Table 3.

The AFA also contains several specific requirements concerning pollock and pollock allocations. First, at § 679.20(a)(5)(i)(A)(4)(i) and (ii), NMFS will allocate 91.5 percent of the catcher/processor sector allocation to AFA catcher/processors engaged in directed fishing for pollock and 8.5 percent of the catcher/processor sector allocation to AFA catcher vessels delivering to catcher/processors unless changed by the cooperative contracts. Second, unlisted AFA catcher/processors (§ 679.4(k)(1)(2)(ii)) are limited to harvesting not more than 0.5 percent of the catcher/processor sector allocation of pollock (§ 679.20(a)(5)(i)(A)(4)(iii)).

Table 3 also lists seasonal apportionments of pollock and harvest limits within the SCA. Regulations implementing Steller sea lion protection measures at § 679.20(a)(5)(ii)(A)(1) apportion the pollock directed fishing allowances allocated to each component into two seasonal allowances. The first allowance, 40 percent of the DFA, is made available for directed fishing from January 20 to June 10 (“A” season), and the second seasonal allowance, 60 percent of the DFA, is made available from June 10 to November 1 (“B” season)(Table 3). The harvest within the SCA, as defined at § 679.22(a)(7)(vii), is limited to 28 percent of the annual DFA until April 1. The remaining 12 percent of the annual DFA allocated to the A season may be taken outside of the SCA before April 1 or inside the SCA after April 1. If 28 percent of the annual DFA is not taken inside the SCA before April 1, the remainder is available to be taken inside the SCA after April 1. The A season pollock SCA harvest limit will be apportioned to each industry sector in proportion to each sector's allocated percentage of the DFA as set forth in the AFA.

Regulations implementing Steller sea lion protection measures at § 679.20(a)(8)(ii) apportion the Atka mackerel ITAC into two equal seasonal allowances. After subtraction of the jig gear allocation, the first allowance is made available for directed fishing from January 1 (January 20 for trawl gear) to April 15 (“A” season), and the second seasonal allowance is made available from September 1 to November 1 (“B” season)(Table 4). Under § 679.20(a)(8)(ii)(C)(1), the Regional Administrator will establish a harvest limit area (HLA) limit of no more than 60 percent of the seasonal TAC for the Western and Central Aleutian districts.

Under § 679.20(a)(8)(i), up to 2 percent of the Eastern Aleutian district and the Bering Sea subarea Atka mackerel ITAC may be allocated to the jig gear fleet. The amount of this allocation is determined annually by the Council based on several criteria, including the anticipated harvest capacity of the jig gear fleet. The Council recommended, and NMFS approved, a 1-percent allocation of the Atka mackerel ITAC in the Eastern Aleutian district and the Bering Sea subarea to the jig gear fleet in 2003. Based on an ITAC and a reserve apportionment which together total 9,851 mt, the jig gear allocation is 99 mt.

A lottery system is used for the HLA Atka mackerel directed fisheries to reduce the amount of daily catch in the HLA by about half and to disperse the fishery over two areas (§ 679.20(a)(8)(iii)).

Under § 679.20(a)(7)(i)(A), 2 percent of the Pacific cod ITAC is allocated to vessels using jig gear, 51 percent to vessels using hook-and-line or pot gear, and 47 percent to vessels using trawl gear. Under regulations at § 679.20(a)(7)(i)(B), the portion of the Pacific cod TAC allocated to trawl gear is further allocated 50 percent to catcher vessels and 50 percent to catcher/processors. Under regulations at § 679.20(a)(7)(i)(C)(1), a portion of the Pacific cod allocated to hook-and-line or pot gear is set aside as an ICA of Pacific cod in directed fisheries for groundfish using these gear types. Based on anticipated incidental catch in these fisheries, the Regional Administrator specifies an ICA of 500 mt. The remainder of Pacific cod is further allocated to vessels using hook-and-line or pot gear as the following directed fishing allowances: 80 percent to hook-and-line catcher/processors, 0.3 percent to hook-and-line catcher vessels, 18.3 percent to pot gear vessels, and 1.4 percent to catcher vessels under 60 feet (18.3 m) length overall (LOA) using hook-and-line or pot gear.

Due to concerns about the potential impact of the Pacific cod fishery on Steller sea lions and their critical habitat, the Pacific cod fisheries are temporally dispersed by the apportionment of the ITAC into two seasonal allowances (§§ 679.23(e)(5) and 679.20(a)(7)(iii)(A)). For most non-trawl gear the first allowance of 60 percent of the ITAC is made available for directed fishing from January 1 to June 10, and the second seasonal allowance of 40 percent of the ITAC is made available from June 10 to December 31. No seasonal harvest constraints are imposed for the Pacific cod fishery by catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. For trawl gear, the first season is January 20 to April 1 and is allocated 60 percent of the ITAC. The second season, April 1 to June 10, and the third season, June 10 to November 1, are each allocated 20 percent of the ITAC. The trawl catcher vessel allocation is further allocated as 70 percent in the first season, 10 percent in the second season and 20 percent in the third season. The trawl catcher/processor allocation is allocated 50 percent in the first season, 30 percent in the second season, and 20 percent in the third season. Table 5 lists the 2003 allocations and seasonal apportionments of the Pacific cod ITAC. In accordance with §§ 679.20(a)(7)(ii)(D) and 679.20(a)(7)(iii)(B), any unused portion of a seasonal Pacific cod allowance will become available at the beginning of the next seasonal allowance.

Under § 679.20(a)(9), the ITAC of shortraker rockfish and rougheye rockfish specified for the Aleutian Islands subarea is allocated 30 percent to vessels using non-trawl gear and 70 percent to vessels using trawl gear. Based on the 2003 ITAC and the reserve apportionment which together total 768 mt, the trawl allocation is 538 mt and the non-trawl allocation is 230 mt.

Regulations at § 679.20(a)(4)(iii) and (iv) require that sablefish TACs for subareas of the BSAI be allocated between trawl and hook-and-line or pot gear. Gear allocations of TACs for the Bering Sea subarea are 50 percent for trawl gear and 50 percent for hook-and-line/pot gear and for the Aleutian Islands subarea are 25 percent for trawl gear and 75 percent for hook-and-line/pot gear. Regulations at § 679.20(b)(1)(iii)(B) require that 20 percent of the hook-and-line and pot gear allocation of sablefish be apportioned to the CDQ reserve. Additionally, regulations at § 679.20(b)(1)(iii)(A) require that 7.5 percent of the trawl gear allocation of sablefish (one half of the reserve) be apportioned to the CDQ reserve. Gear allocations of the sablefish TAC and CDQ reserve amounts are specified in Table 6.

PSC limits for halibut are set forth in regulations at § 679.21(e). For the BSAI trawl fisheries, the limit is 3,675 mt of halibut mortality and for non-trawl fisheries, the limit is 900 mt of halibut mortality. For chinook salmon, regulations at § 679.21(e)(1)(vii) specify a scheduled reduction of the chinook salmon PSC limit until the final limit is reached in 2004. For 2003, the chinook salmon PSC limit for the pollock fishery is 33,000 fish. PSC limits for crab and herring are specified annually based on abundance and spawning biomass.

The red king crab mature female abundance is estimated to be 18.6 million king crab and the effective spawning biomass is estimated to be 37.7 million pounds (17,100 mt) from the 2002 survey data. Based on the criteria set out at § 679.21(e)(1)(ii), the 2003 PSC limit of red king crab in Zone 1 for trawl gear is 97,000 animals as a result of the mature female abundance above 8.4 million king crab and the effective spawning biomass estimate greater than 14.5 (6,577 mt) but less than 55 million pounds (24,948 mt).

Regulations at § 679.21(e)(3)(ii)(B) establish criteria under which NMFS must specify an annual red king crab bycatch limit for the Red King Crab Savings Subarea (RKCSS). The regulations limit the RKCSS to up to 35 percent of the trawl bycatch allowance specified for the rock sole/flathead sole/“other flatfish” fishery category and must be based on the need to optimize the groundfish harvest relative to red king crab bycatch. The Council recommended, and NMFS approves, a red king crab bycatch limit equal to 35 percent of the trawl bycatch allowance specified for the rock sole/flathead sole/”other flatfish” fishery category within the RKCSS.

Based on 2002 survey data, the C. bairdi crab abundance is estimated to be 464.9 million animals. Given the criteria set out at § 679.21(e)(1)(iii), the 2003 C. bairdi crab PSC limit for trawl gear is 980,000 animals in Zone 1 and 2,970,000 animals in Zone 2 as a result of the C. bairdi crab abundance estimate of over 400 million animals.

Under § 679.21(e)(1)(iv), the PSC limit for C. opilio crab is based on total abundance as indicated by the NMFS annual bottom trawl survey. The C. opilio crab PSC limit is set at 0.1133 percent of the Bering Sea abundance index. Based on the 2002 survey estimate of 1.49 billion animals, the calculated limit is 1,169,000 animals. Because this limit is less than 4.5 million, under § 679.21(e)(1)(iv)(B), the 2003 C. opilio crab PSC limit is 4,350,000 animals.

Under § 679.21(e)(1)(vi), the PSC limit of Pacific herring caught while conducting any trawl operation for groundfish in the BSAI is 1 percent of the annual eastern Bering Sea herring biomass. NMFS' best estimate of 2003 herring biomass is 152,574 mt. This amount was derived using 2001 survey data and an age-structured biomass projection model developed by the Alaska Department of Fish and Game. Therefore, the herring PSC limit for 2003 is 1,526 mt.

Under § 679.21(e)(1)(i), 7.5 percent of each PSC limit specified for halibut and crab is allocated as a PSQ reserve for use by the groundfish CDQ program. Regulations at § 679.21(e)(3) require the apportionment of each trawl PSC limit into PSC bycatch allowances for seven specified fishery categories. Regulations at § 679.21(e)(4)(ii) authorize the apportionment of the non-trawl halibut PSC limit into PSC bycatch allowances among five fishery categories. The fishery bycatch allowances for the trawl and non-trawl fisheries are listed in Table 7.

Regulations at § 679.21(e)(4)(ii) authorize exemption of specified non-trawl fisheries from the halibut PSC limit. As in past years, NMFS, after consultation with the Council, is exempting pot gear, jig gear, and the sablefish IFQ hook-and-line gear fishery categories from halibut bycatch restrictions because these fisheries use selective gear types that take few halibut compared to other gear types such as nonpelagic trawl. In 2002, total groundfish catch for the pot gear fishery in the BSAI was approximately 15,518 mt with an associated halibut bycatch mortality of about 8 mt. The 2002 groundfish jig gear fishery harvested about 172 mt of groundfish. Most vessels in the jig gear fleet are less than 60 ft (18.3 m) LOA and are exempt from observer coverage requirements. As a result, observer data are not available on halibut bycatch in the jig gear fishery. However, a negligible amount of halibut bycatch mortality is assumed because of the selective nature of this gear type and the likelihood that halibut caught with jig gear have a high survival rate when released.

As in past years, the Council recommended the sablefish IFQ fishery be exempt from halibut bycatch restrictions because of the sablefish and halibut IFQ program (subpart D of 50 CFR part 679). The sablefish IFQ program requires legal-sized halibut to be retained by vessels using hook-and-line gear if a halibut IFQ permit holder is aboard and is holding unused halibut IFQ. NMFS is approving the Council's recommendation. This action results in less halibut discard in the sablefish fishery. In 1995, about 36 mt of halibut discard mortality was estimated for the sablefish IFQ fishery. Estimates for 1996 through 2002 have not been calculated, however NMFS has no information indicating that it would be significantly different.

Regulations at § 679.21(e)(5) authorize NMFS, after consultation with the Council, to establish seasonal apportionments of PSC amounts in order to maximize the ability of the fleet to harvest the available groundfish TAC and to minimize bycatch. The factors to be considered are: (1) Seasonal distribution of prohibited species, (2) seasonal distribution of target groundfish species, (3) PSC bycatch needs on a seasonal basis relevant to prohibited species biomass, (4) expected variations in bycatch rates throughout the year, (5) expected start of fishing effort, and (6) economic effects of seasonal PSC apportionments on industry sectors. In December 2002, the Council's AP recommended seasonal PSC apportionments in order to maximize harvest among gear types, fisheries, and seasons while minimizing bycatch of PSC based upon the above criteria.

The Council adopted and NMFS approves the PSC apportionments specified in Table 7.

To monitor halibut bycatch mortality allowances and apportionments, the Regional Administrator will use observed halibut bycatch rates, assumed mortality rates, and estimates of groundfish catch to project when a fishery's halibut bycatch mortality allowance or seasonal apportionment is reached. The assumed mortality rates are based on the best information available, including information contained in the annual SAFE report.

The Council recommended, and NMFS concurs, that the assumed halibut discard mortality rates (DMRs) developed by the International Pacific Halibut Commission (IPHC) for the 2002 BSAI groundfish fisheries be adopted for purposes of monitoring halibut bycatch allowances established for 2003 (Table 8). In 2001, the IPHC recommended, and the Council and NMFS concurred, to use the 10-year average DMRs for the 2001 through 2003 BSAI non-CDQ groundfish fisheries. Plots of annual DMRs against the 10-year average indicated little change since 1990 for some fisheries, particularly the major trawl fisheries. DMRs were more variable for the smaller fisheries which typically take minor amounts of halibut bycatch. The IPHC also will continue to conduct annual analyses of observer data and recommend changes to the Preseason Assumed DMR where a fishery DMR shows large variation from the average. Results from analysis of halibut release condition data for 2002 showed continued stability in halibut DMRs for many fisheries. The IPHC annually examines the CDQ fisheries and provides recommendations for any appropriate DMR revisions for those fisheries. The IPHC has been calculating the CDQ fisheries DMRs since 1998 and a 10-year average is not available. The Council recommended, and NMFS concurs, with the DMRs recommended by the IPHC for 2003 CDQ fisheries. The justification for these DMRs is discussed in Appendix A of the final SAFE report dated November 2002.

In accordance with § 679.20(d)(1)(i), if the Regional Administrator determines that any allocation or apportionment of a target species or “other species” category has been or will be reached, the Regional Administrator may establish a directed fishing allowance for that species or species group. If the Regional Administrator establishes a directed fishing allowance, and that allowance is or will be reached before the end of the fishing year, NMFS will prohibit directed fishing for that species or species group in the specified subarea or district (§ 697.20(d)(1)(iii)). Similarly, under § 679.21(e), if the Regional Administrator determines that a fishery category's bycatch allowance of halibut, red king crab, C. bairdi crab or C. opilio crab for a specified area has been reached, the Regional Administrator will prohibit directed fishing for each species in that category in the specified area.

The Regional Administrator has determined that the following remaining allocation amounts will be necessary as incidental catch to support other anticipated groundfish fisheries for the 2003 fishing year:

Consequently, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the directed fishing allowances for the above species or species groups as zero.

Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing for these species in the specified areas and these closures are effective immediately through 2400 hrs, A.l.t., December 31, 2003.

In addition, the BSAI Zone 1 annual red king crab allowance specified for the trawl rockfish fishery (§ 679.21(e)(3)(iv)(D)) is 0 mt and the BSAI first seasonal halibut bycatch allowance specified for the trawl rockfish fishery is 0 mt. The BSAI annual halibut bycatch allowance specified for the trawl Greenland turbot/arrowtooth flounder/sablefish fishery categories is 0 mt (§ 679.21(e)(3)(iv)(C)). Therefore, in accordance with § 679.21(e)(7)(ii) and (v), NMFS is prohibiting directed fishing for rockfish by vessels using trawl gear in Zone 1 of the BSAI and directed fishing for Greenland turbot/arrowtooth flounder/sablefish by vessels using trawl gear in the BSAI effective immediately through 2400 hrs, A.l.t., December 31, 2003. NMFS is also prohibiting directed fishing for rockfish outside Zone 1 in the BSAI through 1200 hrs, A.l.t., June 29, 2003.

Under authority of the interim 2003 harvest specifications (67 FR 78739, December 26, 2002), NMFS prohibited directed fishing for Atka mackerel in the Eastern Aleutian District and the Bering Sea subarea of the BSAI effective 1200 hrs, A.l.t., January 22, 2003, through 1200 hrs, A.l.t., September 1, 2003 (68 FR 2920, January 22, 2003). NMFS opened the first directed fisheries in the HLA in area 542 and area 543 effective 1200 hrs, A.l.t., January 24, 2003. The first HLA fishery in area 542 remained open through 1200 hrs, A.l.t., January 29, 2003. The first HLA fishery in area 543 remained open through 1200 hrs, A.l.t., January 28, 2003. The second directed fisheries in the HLA in area 542 and area 543 opened effective 1200 hrs, A.l.t., January 31, 2003. The second HLA fishery in area 542 remained open through 1200 hrs, A.l.t., February 5, 2003. The second HLA fishery in area 543 remained open through 1200 hrs, A.l.t., February 4, 2003. NMFS prohibited directed fishing for CDQ reserve amounts of shortraker/rougheye rockfish and northern rockfish in the Bering Sea subarea effective 1200 hrs, A.l.t., January 22, 2003, through 2400 hrs, A.l.t., December 31, 2003 (68 FR 3823, January 23, 2003). Fishing with non-pelagic trawl gear in the red king crab savings subarea of the BSAI closed February 12, 2003, through 2400 hrs, A.l.t., December 31, 2003 (68 FR 8153, February 20, 2003). NMFS prohibited directed fishing for rock sole, flathead sole, and “other flatfish” by vessels using trawl gear in the BSAI effective 1200 hrs, A.l.t., February 18, 2003, through 2400 hrs, A.l.t., April 1, 2003 (68 FR 8726, February 25, 2003).

These closures remain effective under authority of the final 2003 harvest specifications.

These closures supersede the closures announced in the 2003 interim specifications (67 FR 78739, December 26, 2002). While these closures are in effect, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a fishing trip. These closures to directed fishing are in addition to closures and prohibitions found in regulations at § 679. In the BSAI, “other rockfish” includes Sebastes and Sebastolobus species except for Pacific ocean perch, shortraker, rougheye, and northern rockfish.

Regulations at § 679.4(l), set forth procedures for AFA inshore catcher vessel pollock cooperatives to apply for and receive cooperative fishing permits and inshore pollock allocations. NMFS received applications from seven inshore catcher vessel cooperatives. Table 10 lists the pollock allocations to the seven inshore catcher vessel pollock cooperatives based on 2003 cooperative allocations that have been approved and permitted by NMFS for the 2003 fishing year. Allocations for cooperatives and vessels not participating in cooperatives are not made for the AI subarea because the AI subarea has been closed to directed fishing for pollock.

According to regulations at § 679.20(a)(5)(i)(A)(3), NMFS must subdivide the inshore allocation into allocations for cooperatives and vessels not fishing in a cooperative (i.e., the open access sector). In addition, under § 679.22(a)(7)(vii), NMFS must establish harvest limits inside the SCA and provide a set-aside so that catcher vessels less than or equal to 99 ft (30.2 m) LOA have the opportunity to operate entirely within the SCA during the A season. Accordingly, Table 11 lists the apportionment of the Bering Sea subarea inshore pollock allocation into allocations for vessels fishing in a cooperative and allocations for vessels not participating in a cooperative and establishes a cooperative-sector SCA set-aside for AFA catcher vessels less than or equal to 99 ft (30.2 m) LOA. The SCA set-aside for sector catcher vessels less than or equal to 99 ft (30.2 m) LOA that are not participating in a cooperative will be established inseason based on actual participation levels and is not included in Table 11. These allocations may be revised based on any corrections to AFA vessels' catch history.

NMFS manages the groundfish fisheries in the exclusive economic zone (EEZ) of the GOA under the FMP. The Council prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600 and 679.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify annually the total allowable catch (TAC) for each target species and for the “other species” category, the sum of which must be within the optimum yield (OY) range of 116,000 to 800,000 metric tons (mt) (§ 679.20(a)(1)(ii)). Regulations at § 679.20(c)(3)(i) further require NMFS to publish annually the final annual TACs, halibut PSC amounts, and seasonal allowances of pollock, Pacific cod, and inshore/offshore Pacific cod. The final specifications set forth in Tables 1 to 11 of this document satisfy these requirements. For 2003, the sum of TAC amounts is 236,440 mt.

The proposed GOA groundfish specifications and Pacific halibut PSC allowances for the groundfish fishery of the GOA were published in the Federal Register on December 12, 2002 (67 FR 76344). Comments were invited and accepted through January 13, 2003. NMFS received one comment on the proposed specifications. This comment is summarized and responded to in the “Response to Comments” section. Public consultation with the Council occurred during the December 2002 Council meeting in Anchorage, AK. After considering public comments received, as well as biological and economic data that were available at the Council's December meeting, NMFS is implementing the final 2003 groundfish specifications as recommended by the Council.

Regulations at § 679.20(c)(2)(i) establish interim amounts of each proposed TAC and apportionment thereof, and proposed PSC allowances established under § 679.21 that become available at 0001 hours, A.l.t., January 1, and remain available until superseded by the final specifications. NMFS published the interim 2003 groundfish harvest specifications in the Federal Register on December 26, 2002 (67 FR 78733). The final 2003 groundfish harvest specifications, apportionments, and halibut PSC allowances contained in this action supersede the interim 2003 groundfish harvest specifications.

In accordance with a biological opinion issued by NMFS on October 19, 2001, NMFS implemented a final rule for Steller sea lion protection (68 FR 204, January 2, 2003) that contains measures that were deemed necessary to avoid the likelihood that the pollock, Pacific cod, and Atka mackerel fisheries off Alaska will jeopardize the continued existence of the western population of Steller sea lions or adversely modify its critical habitat. The final rule implements three types of management measures for the pollock and Pacific cod fisheries of the GOA: (1) measures to temporally disperse fishing effort, (2) measures to spatially disperse fishing effort, and (3) measures to provide sufficient protection from competition with pollock fisheries for prey in waters immediately adjacent to rookeries and important haulouts.

On December 18, 2002, the United States District Court for the Western District of Washington entered an Order remanding the October 19, 2001, biological opinion prepared for the groundfish fisheries. Greenpeace, et al. v. National Marine Fisheries Service, No. C98-492Z (W.D. Wash.). The Court held that the biological opinion's findings of no jeopardy to the continued existence of endangered Steller sea lions and no adverse modification of their critical habitat were arbitrary and capricious. NMFS reached an agreement with the Plaintiffs that the 2003 groundfish fisheries will commence pursuant to the Steller sea lion protection measures examined in the biological opinion pending completion of the remand. The Court issued an order on December 30, 2002, that supported the agreement and extended the effective date of the 2001 Steller sea lion protection measures biological opinion until June 30, 2003.

The final ABC levels are based on the best available scientific information, including projected biomass trends, information on assumed distribution of stock biomass, and revised methods used to calculate stock biomass. The FMP specifies the formulas, or tiers, to be used in computing ABCs and overfishing levels (OFLs). The formulas applicable to a particular stock or stock complex are determined by the level of reliable information available to fisheries scientists. This information is categorized into a successive series of six tiers.

The Council, its Advisory Panel (AP), and its Scientific and Statistical Committee (SSC) reviewed the most current biological information about the condition of GOA groundfish stocks at their meetings in December 2002. This information was compiled by the Council's GOA Plan Team and was presented in the final 2002 SAFE report for the GOA groundfish fisheries, dated November 2002.

The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the GOA ecosystem and the economic condition of groundfish fisheries off Alaska. From these data and analyses, the Plan Team estimates an ABC for each species or species category.

The SSC, AP, and Council adopted the Plan Team's ABC recommendations for all groundfish species categories except sablefish. For sablefish, the SSC increased the ABC from the Plan Team's recommendation based on the projected 5-year average of catches under the Council's F40% policy. The AP endorsed the ABC for sablefish recommended by the SSC, and the Council adopted the ABC. The final ABCs, as adopted by the Council are listed in Table 1.

As in 2002, the SSC's, AP's and Council's recommendation for the method of apportioning the sablefish ABC among management areas includes commercial fishery as well as survey data. NMFS stock assessment scientists believe that the use of unbiased commercial fishery data reflecting catch-per-unit effort provides a desirable input for stock distribution assessments. The use of commercial fishery data needs to be evaluated annually to assure that unbiased information is included in stock distribution models. The Council's recommendation for sablefish area apportionments also takes into account the prohibition on the use of trawl gear in the Southeast Outside (SEO) District of the Eastern GOA and makes available 5 percent of the combined Eastern GOA ABCs to trawl gear for use as incidental catch in other directed groundfish fisheries in the West Yakutat District.

The AP and Council recommended that the ABC for Pacific cod in the GOA be apportioned among regulatory areas based on the three most recent NMFS summer trawl surveys. As in previous years, the Plan Team, SSC, and Council recommended that total removals of Pacific cod from the GOA not exceed ABC recommendations. Accordingly, the AP and Council recommended that the TACs be adjusted downward from the ABCs by amounts equal to the 2003 guideline harvest levels (GHL) established for Pacific cod by the State of Alaska (State) for seasons which occur in State waters in the GOA. The effect of the State's GHL on the Pacific cod TAC is discussed in greater detail below.

The final TAC recommendations were based on the ABCs as adjusted for other biological and socioeconomic considerations, including maintaining the total TAC with the required OY range of 116,000 to 800,000 mt. The Council adopted the AP's TAC recommendations. None of the Council's recommended TACs for 2003 exceeds the final ABC for any species category. NMFS finds that the recommended ABCs and TACs are consistent with the biological condition of groundfish stocks as described in the 2002 SAFE report and approved by the Council.

Table 1 lists the final annual 2003 OFL, ABC, TAC, and area apportionments of groundfish in the GOA. The sum of 2003 ABCs for all assessed groundfish is 416,600 mt, which is higher than the 2002 ABC total of 394,780 mt. The apportionment of TAC amounts among gear types, processing sectors, and seasons is discussed below.

The Council adopted the AP's proposals for the 2003 GOA TAC amounts. The Council recommended TACs equal to ABCs for pollock, deep-water flatfish, rex sole, sablefish, shortraker and rougheye rockfish, northern rockfish, Pacific Ocean perch, pelagic shelf rockfish, thornyhead rockfish, demersal shelf rockfish, and Atka mackerel. The Council-recommended TACs are less than the ABC for Pacific cod, flathead sole, shallow-water flatfish, arrowtooth flounder, and other rockfish.

The apportionment of annual pollock TAC among three statistical areas of the Western and Central Regulatory Areas of the GOA reflects the seasonal biomass distribution and is discussed in greater detail below.

The annual pollock TAC in the Western and Central Regulatory Areas of the GOA is apportioned into four equal seasonal apportionments. The annual pollock TAC in the combined Western/Central/West Yakutat (W/C/WYK) area of the GOA is 47,890 mt. The annual TAC in the Western and Central Regulatory Areas of the GOA is apportioned among Statistical Areas 610, 620, and 630 as well as equally among each of the following four seasons: the A season (January 20 through February 25), the B season (March 10 through May 31), the C season (August 25 through September 15), and the D season (October 1 through November 1)(§ 679.23(d)(2)(i) through (iv) and § 679.20(a)(5)(ii)(B)).

The 2003 Pacific cod TAC is affected by the State's developing fishery for Pacific cod in State waters in the Central and Western GOA, as well as Prince William Sound (PWS). The SSC, AP, and Council recommended that the sum of all State and Federal water Pacific cod removals should not exceed the ABC. Accordingly, the Council recommended that Pacific cod TAC be reduced from ABC levels to account for State GHLs in each regulatory area of the GOA. Respective TACs, therefore, are reduced from ABCs as follows: (1) Eastern GOA 800 mt, (2) Central GOA 6,310 mt, and (3) Western GOA 5,150 mt. These amounts reflect the sum of State's 2003 GHLs in these areas which are 25 percent, 21.75 percent, and 25 percent of the Eastern, Central, and Western GOA ABCs, respectively. These percentages are unchanged from 2002.

NMFS is also establishing seasonal apportionments of the annual Pacific cod TAC in the Western and Central Regulatory Areas. Sixty percent of the annual TAC is apportioned to the A season for hook-and-line, pot and jig gear from January 1 through June 10, and for trawl gear from January 20 through June 10. Forty percent of the annual TAC is apportioned to the B season for hook-and-line, pot and jig gear from September 1 through December 31, and for trawl gear from September 1 through November 1 (§ 679.23(d)(3) and § 679.20(a)(11)). These seasonal apportionments of the annual Pacific cod TAC are discussed in greater detail below.

The FMP specifies that the amount for the “other species” category is calculated as 5 percent of the combined TAC amounts for target species. The 2003 GOA-wide “other species” TAC is 11,260 mt, which is 5 percent of the sum of the combined TAC amounts (225,180 mt) for the other groundfish species for which TAC is specified. The sum of the TACs for all GOA groundfish is 236,440 mt, which is within the OY range specified by the FMP. The sum of the 2003 TACs is lower than the 2002 TAC sum of 237,890 mt.

NMFS finds that the Council's recommendations for OFL, ABC, and TAC amounts are consistent with the biological condition of groundfish stocks as adjusted for other biological and socioeconomic considerations, including maintaining the total TAC within the required OY range of 116,000 to 800,000 mt. NMFS has reviewed the Council's recommended TAC specifications and apportionments and approves these specifications under § 679.20(c)(3)(ii). The final 2003 ABCs, TACs, and OFLs are shown in Table 1.

Regulations implementing the FMP require 20 percent of each TAC for pollock, Pacific cod, flatfish, and the “other species” category be set aside in reserves for possible apportionment at a later date (§ 679.20(b)(2)). In 2002, NMFS reapportioned all of the reserves in the final harvest specifications. NMFS proposed reapportionment of all reserves in the proposed 2003 GOA groundfish specifications published in the Federal Register on December 12, 2002 (67 FR 76344). NMFS received no public comments on the proposed reapportionments. For the final 2003 GOA harvest specifications, NMFS has reapportioned all of the reserve for pollock, Pacific cod, flatfish, and “other species”. Specifications of TAC shown in Table 1 reflect apportionment of reserve amounts for these species and species groups.

Under § 679.20(a)(4)(i) and (ii), sablefish TACs for each of the regulatory areas and districts are allocated to hook-and-line and trawl gear. In the Western and Central Regulatory Areas, 80 percent of each TAC is allocated to hook-and-line gear and 20 percent of each TAC is allocated to trawl gear. In the Eastern Regulatory Areas, 95 percent of the TAC is allocated to hook-and-line gear and 5 percent is allocated to trawl gear. The trawl gear allocation in the Western, Central, and Eastern Regulatory Areas may only be used to support incidental catch of sablefish in directed fisheries for other target species. In recognition of the trawl ban in the SEO District of the Eastern Regulatory Area, the Council recommended, and NMFS concurs, that 5 percent of the combined Eastern GOA sablefish TAC be allocated to trawl gear in the WYK District and the remainder to vessels using hook-and-line gear. This recommendation results in an allocation of 294 mt to trawl gear and 2,026 mt to hook-and-line gear in the WYK District and 3,560 mt to hook-and-line gear in the SEO District. In the SEO District, 100 percent of the sablefish TAC is allocated to vessels using hook-and-line gear, resulting in a 3,560 mt allocation. Table 2 shows the allocations of the 2003 sablefish TACs between hook-and-line gear and trawl gear.

In the GOA, pollock is apportioned by season and area, and is further allocated for processing by inshore and offshore components. Under regulations at § 679.20(a)(5)(ii)(B), the annual pollock TAC specified for the Western and Central Regulatory Areas of the GOA is apportioned into four equal seasonal apportionments of 25 percent. As established by § 679.23(d)(2)(i) through (iv), the A, B, C, and D season apportionments are available from January 20 through February 25, from March 10 through May 31, from August 25 through September 15, and from October 1 through November 1, respectively.

Pollock TACs in the Western and Central Regulatory Areas of the GOA in the A and B seasons are apportioned among Statistical Areas 610, 620, and 630 in proportion to the distribution of pollock biomass, as determined by a composite of NMFS winter surveys, and in the C and D seasons in proportion to the distribution of pollock biomass, as determined by the four most recent NMFS summer surveys. The Plan Team recommended an adjustment to the distribution of pollock in the Central Regulatory Area during the A season. The Plan Team recommended that during the A season, the winter and summer distribution of pollock be averaged in the Central Regulatory Area to better reflect the distribution of pollock and the performance of the fishery in the area during the A season. The SSC, AP, and Council concurred with the Plan Team's recommendation. Within any fishing year, the underage or overage of a seasonal apportionment may be added to or subtracted from subsequent seasonal apportionments in a manner to be determined by the Administrator, Alaska Region, NMFS, (Regional Administrator), provided that the sum of the revised seasonal apportionment does not exceed 30 percent of the annual TAC apportionment for the Central and Western Regulatory Areas in the GOA (§ 679.20(a)(5)(ii)(B)). For 2003, 30 percent of the annual TAC for the Central and Western Regulatory Areas is 14,044 mt. The WYK and SEO District pollock TACs of 1,078 mt and 6,460 mt, respectively are not apportioned seasonally.

Regulations at § 679.20(a)(6)(ii) require that the entire amount of the pollock TAC in all regulatory areas and all seasonal allowances thereof be allocated to vessels catching pollock for processing by the inshore component after subtraction of amounts that are projected by the Regional Administrator to be caught by, or delivered to, the offshore component incidental to directed fishing for other groundfish species. The amount of pollock available for harvest by vessels harvesting pollock for processing by the offshore component is that amount actually taken as incidental catch during directed fishing for groundfish species other than pollock, up to the maximum retainable amounts allowed under regulations at § 679.20(e) and (f). At this time, these incidental catch amounts are unknown and will be determined during the fishing year.

The seasonal biomass distribution of pollock in the Western and Central GOA, area apportionments, and seasonal apportionments for the A, B, C, and D seasons are summarized in Table 3, except that allocations of pollock for processing by the inshore and offshore components are not shown.

Pacific cod fishing is divided into two seasons in the Western and Central Regulatory Areas of the GOA. For hook-and-line, pot and jig gear the A season begins on January 1 and ends on June 10, and the B season begins on September 1 and ends on December 31. For trawl gear, the A season begins on January 20 and ends on June 10, and the B season begins on September 1 and ends on November 1 (§ 679.23(d)(3)). Sixty percent of the annual TAC will be available as a directed fishing allowance during the A season and, after subtraction of incidental catch, the remaining 40 percent of the annual TAC will be available for catch during the B season, and will be allocated between the inshore and offshore processing components as provided in 50 CFR § 679.20(a)(6)(iii). Between the A and B seasons, directed fishing for Pacific cod is closed and fishermen participating in other directed fisheries may retain Pacific cod up to the maximum retainable amounts allowed under regulations at § 679.20(e) and (f). For purposes of clarification, NMFS points out that the A and B season Pacific cod fishery dates differ from those of the A, B, C, and D season dates for the pollock fisheries. In accordance with § 679.20(a)(11)(ii), any overage or underage of Pacific cod harvest from the A season shall be subtracted from or added to the subsequent B season.

Regulations at § 679.20(a)(6)(iii) require that the TAC apportionment of Pacific cod in all regulatory areas be allocated to vessels catching Pacific cod for processing by the inshore and offshore components. Ninety percent of the Pacific cod TAC in each regulatory area is allocated to vessels catching Pacific cod for processing by the inshore component. The remaining 10 percent of the TAC is allocated to vessels catching Pacific cod for processing by the offshore component. These seasonal apportionments and component allocations of the Pacific cod TAC for 2003 are shown in Table 4.

The FMP specifies that amounts for the “other species” category are calculated as 5 percent of the combined TAC amounts for target species. The GOA-wide “other species” TAC is calculated as 11,260 mt, which is 5 percent of the sum of combined TAC amounts for the target species.

Under § 679.21(d), annual Pacific halibut PSC limits are established and apportioned to trawl and hook-and-line gear and may be established for pot gear. In December 2002, the Council recommended that NMFS maintain the 2002 halibut PSC limits of 2,000 mt for the trawl fisheries and 300 mt for the hook-and-line fisheries, with 10 mt of the hook-and-line limit apportioned to the demersal shelf rockfish (DSR) fishery in the SEO District and the remainder to the remaining hook-and-line fisheries. The DSR fishery is defined at § 679.21(d)(4)(iii)(A) and historically has been apportioned this amount in recognition of its small scale harvests. Although observer data are not available to verify actual bycatch amounts, given most vessels are less than 60 ft (18.3 m) length overall (LOA) and are exempt from observer coverage, halibut bycatch in the DSR fishery is assumed to be low because of the short soak times for the gear and the short duration of the DSR fishery. Also, the DSR fishery occurs in the winter when less of an overlap exists in the distribution of DSR and halibut.

Regulations at § 679.21(d)(4) authorize exemption of specified nontrawl fisheries from the halibut PSC limit. The Council recommended that pot gear, jig gear, and the hook-and-line sablefish fishery be exempted from the nontrawl halibut limit for 2003. The Council recommended, and NMFS concurs with, these exemptions because of the low halibut bycatch mortality experienced in the pot gear fisheries (4 mt in 2001 and 2 mt in 2002) and because of the 1995 implementation of the sablefish and halibut Individual Fishing Quota (IFQ) program. The sablefish IFQ program requires legal-size halibut to be retained by vessels using hook-and-line gear if a halibut IFQ permit holder is aboard and is holding unused halibut IFQ. Halibut mortality for the jig gear fleet cannot be estimated because these vessels do not carry observers. However, halibut mortality is assumed to be very low given the small amount of groundfish harvested by jig gear (336 mt in 2001 and 277 mt in 2002) and the assumed high survival rate of any halibut that are incidentally caught by jig gear and released.

Under § 679.21(d)(5), NMFS seasonally apportions the halibut PSC limits based on recommendations from the Council. The FMP and regulations require that the following information be considered by the Council and NMFS in seasonally apportioning halibut PSC limits: (1) Seasonal distribution of halibut, (2) seasonal distribution of target groundfish species relative to halibut distribution, (3) expected halibut bycatch needs on a seasonal basis relative to changes in halibut biomass and expected catch of target groundfish species, (4) expected bycatch rates on a seasonal basis, (5) expected changes in directed groundfish fishing seasons, (6) expected actual start of fishing effort, and (7) economic effects of establishing seasonal halibut allocations on segments of the target groundfish industry.

The emergency interim rule establishing the final 2002 groundfish and PSC specifications (66 FR 956, January 8, 2002) summarizes Council findings with respect to each of the FMP considerations set forth here. At this time, the Council's and NMFS' findings are unchanged from those set forth in 2002. The opening date for the third seasonal allowance of the trawl halibut PSC limit and the start date for directed fishing for rockfish by trawl gear is June 29, 2003. This date will facilitate inseason management of the rockfish fisheries and reduce the effect of the rockfish fisheries on the annual NMFS sablefish survey which occurs later in July.

NMFS concurs with the Council's recommendations described here and listed in Table 5. Regulations at § 679.21(d)(5)(iii) and (iv) specify that any overages or shortfalls in a seasonal apportionment of a PSC limit will be deducted from or added to the following seasonal apportionment within the 2003 fishing year. The following types of information as presented in, or summarized from, the current SAFE report, or as otherwise available from NMFS, Alaska Department of Fish and Game, the International Pacific Halibut Commission (IPHC) or public testimony were considered when establishing the halibut PSC limits:

The best available information on estimated halibut bycatch is data collected by observers during 2002. The calculated halibut bycatch mortality by trawl, hook-and-line, and pot gear through December 7, 2002, is 1,997 mt, 246 mt, and 2 mt, respectively, for a total halibut mortality of 2,245 mt.

Halibut bycatch restrictions seasonally constrained trawl gear fisheries during the 2002 fishing year. Trawling during the second season closed for the shallow-water complex on May 15 (67 FR 35448, May 20, 2002) and for the deep-water fishery complex on May 24 (67 FR 37726, May 30, 2002). Trawling during the third season closed for the shallow-water complex on August 5 (67 FR 51499, August 8, 2002) and for the deep-water fishery complex on August 2 (67 FR 51129, August 7, 2002). Trawling during the fourth season closed for both the shallow-water complex and the deep-water fishery complex on September 1 (67 FR 55730, August 30, 2002 and 67 FR 56320, September 3, 2002). Except for a brief period between November 6 and 10, 2002 (67 FR 67798, November 7, 2002), all trawling in the GOA closed (with the exception of pelagic trawl gear targeting pollock) for the remainder of the year on October 13 (67 FR 64066, October 17, 2002).

The amount of groundfish that vessels using trawl gear might have harvested if halibut catch limitations had not restricted the season in 2002 is unknown.

In December 2002, the Council adopted higher 2003 ABCs for flathead sole, arrowtooth, sablefish, other rockfish, northern rockfish, Pacific ocean perch, demersal shelf rockfish, and thornyhead rockfish than those established for 2002. The Council adopted lower 2003 ABCs for pollock, Pacific cod, and shallow water flatfish than those established for 2002. For the remaining targets, the Council recommended that ABC levels remain unchanged from 2002. More information on these changes is included in the final SAFE report (November 2002) and in the Council and SSC December 2002 meeting minutes.

The total of the 2003 TACs for the GOA is 236,440 mt, a decrease of less than 1 percent from the 2002 TAC total of 237,638 mt. Those fisheries for which the 2003 TACs are lower than in 2002 are pollock (decreased to 54,350 mt from 58,250 mt), Pacific cod (decreased to 40,540 mt from 44,230 mt), and other species (decreased to 11,260 mt from 11,330 mt). Those species for which the 2003 TACs are higher than in 2002 are shallow water flatfish (increased to 21,620 mt from 20,420 mt), flathead sole (increased to 11,150 mt from 9,280 mt), sablefish (increased to 14,890 mt from 12,820 mt), northern rockfish (increased to 5,530 mt from 4,980 mt), Pacific ocean perch (increased to 13,660 mt from 13,190 mt), demersal shelf rockfish (increased to 390 mt from 350 mt), and thornyhead rockfish (increased to 2,000 mt from 1,990 mt).

The most recent halibut stock assessment was prepared by the IPHC in December 2002. The halibut resource is considered to be healthy, with total catch near record levels. Using the low range of estimates, the current exploitable halibut biomass for 2003 in Alaska is estimated to be 263,086 mt. This is similar to the estimate of 273,950 mt for 2002.

The exploitable biomass of the Pacific halibut stock apparently peaked at 326,520 mt in 1988. According to the IPHC, the long-term average reproductive biomass for the Pacific halibut resource was estimated at 118,000 mt. Long-term average yield was estimated at 26,980 mt, round weight. The species is fully utilized. Recent average catches (1994-96) were 33,580 mt for the U.S. and 6,410 mt for Canada, for a combined total of 39,990 mt for the entire Pacific halibut resource. This catch was 48 percent higher than long-term potential yield, which reflects the good condition of the Pacific halibut resource. In January 2003, the IPHC recommended commercial catch limits totaling 36,812 mt (round weight equivalents) for Alaska in 2003, the same as in 2002. Through December 31, 2003, commercial hook-and-line harvests of halibut in Alaska total 37,219 mt (round weight equivalents).

At its January 2003 meeting, IPHC staff reported on the assessment of the halibut stock in 2002. There were some significant changes in the assessment as a result of changes in the underlying data being analyzed and the persistence of smaller sizes at age in the central port of the halibut range. These changes created some uncertainty about differences in the biomass of the stock estimated from the current and previous assessments. Analyses were conducted for the 2002 assessment to ensure that the stock is not in danger of being overharvested. However, the IPHC staff intends to resolve these technical issues with the assessment over the next year. In addition, IPHC staff are investigating a new harvest policy that may result in greater stability in the yield from the fishery and insulate the process of setting catch limits from technological changes in the assessment. This harvest policy will also be reviewed by the IPHC. The resolution of technical issues of the assessmentmay indicate a larger estimate of biomass in the central region of the stock distribution, but application of the proposed harvest policy might dictate slightly lower yields. Because these two processes may be somewhat counterbalancing, IPHC staff wish to complete their investigations before recommending any changes to present catch limits or the harvest policy. While the trajectory of the halibut stock biomass is downward, the biomass is still above the long-term average level and is expected to remain above this level for the next several years.

Additional information on the Pacific halibut stock assessment and the proposed harvest policy may be found in the IPHC's 2002 Pacific halibut stock assessment (dated December 2002), available from the IPHC on its website at http://www.iphc.washington.edu/hal.com.

The proposed 2003 specifications (67 FR 76344, December 12, 2002) discuss potential impacts of expected fishing for groundfish on halibut stocks, as well as methods available for, and costs of, reducing halibut bycatch in the groundfish fisheries.

Regulations at § 679.21(d)(3)(ii), authorize the trawl halibut PSC limit to be further apportioned to trawl fishery categories, based on each category's proportional share of the anticipated halibut bycatch mortality during the fishing year and the need to optimize the amount of total groundfish harvest under the halibut PSC limit. The fishery categories for the trawl halibut PSC limits are: a deep-water species complex, comprised of sablefish, rockfish, deep-water flatfish, rex sole and arrowtooth flounder; and a shallow-water species complex, comprised of pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, and “other species” § 679.21(d)(3)(iii). The final apportionment for these two fishery complexes is presented in Table 6.

The Council recommended, and NMFS concurs, that the halibut discard mortality rates (DMRs) recommended by the IPHC staff for the 2002 GOA groundfish fisheries be used to monitor halibut bycatch mortality limits established for the 2003 GOA groundfish fisheries. The IPHC recommended use of long-term average DMRs for the 2001-2003 groundfish fisheries. The IPHC recommendation also includes a provision that DMRs could be revised should analysis indicate that a fishery's annual DMR diverges substantially (up or down) from the long-term average. Most of the DMRs were based on an average of mortality rates determined from NMFS observer data collected between 1990 and 1999. DMRs were lacking for some fisheries, so rates from the most recent years were used. For the “other species” fishery, where insufficient mortality data are available, the mortality rates of halibut caught in the trawl, hook-and-line, and pot gear Pacific cod fisheries were recommended as a default rate. The DMRs for 2003 are unchanged from those used in 2002 in the GOA. The DMRs for hook-and-line targeted fisheries range from 8 to 24 percent. The DMRs for trawl targeted fisheries range from 58 to 72 percent. The DMRs for all pot targeted fisheries is 14 percent. The final 2003 DMRs are listed in Table 7. The justification for these DMRs is discussed in Appendix A of the final SAFE report dated November 2002.

Regulations at § 679.64 established groundfish harvesting and processing limitations, also called sideboards, on AFA catcher/processors and catcher vessels in the GOA. These sideboard limits are necessary to protect the interests of fishermen and processors, who have not directly benefitted from the AFA, from fishermen and processors who have received exclusive harvesting and processing privileges under the AFA. Under the AFA regulations, listed AFA catcher/processors (§ 679.4(l)(2)(i)) are prohibited from harvesting any species of fish in the GOA (§ 679.7(k)(1)(ii)) and from processing any pollock harvested in a directed pollock fishery in the GOA and any groundfish harvested in Statistical Area 630 of the GOA (§ 679.7(k)(1)(iv)). The Council recommended, and NMFS concurs, that certain AFA catcher vessels in the GOA be exempt from groundfish sideboard limits. The AFA regulations exempt AFA catcher vessels in the GOA less than 125 ft (38.1 m) LOA whose annual Bering Sea and Aleutian Islands (BSAI) pollock landings totaled less than 5,100 mt and that made 30 or more GOA groundfish landings from 1995 through 1997 (§ 679.64(b)(2)(i)(A)).

For non-exempt AFA catcher vessels in the GOA, sideboard limits are based upon their traditional harvest levels of TAC in groundfish fisheries covered by the GOA FMP. The AFA regulations base the groundfish sideboard limits in the GOA on the retained catch of non-exempt AFA catcher vessels of each sideboard species from 1995 through 1997 divided by the TAC for that species over the same period (§ 679.64(b)(3)(iii)). These amounts are listed in Table 8. All catch of sideboard species made by non-exempt AFA catcher vessels, whether as targeted catch or incidental catch, will be deducted from the sideboard limits in Table 8.

PSC sideboard limits for non-exempt AFA catcher vessels in the GOA are based upon the ratio of aggregate retained groundfish catch by non-exempt AFA catcher vessels in each PSC target category from 1995 through 1997 relative to the retained catch of all vessels in that fishery from 1995 through 1997 (§ 679.64(b)(4)). These amounts are shown in Table 9.

In accordance with § 679.20(d)(1)(i), if the Regional Administrator determines that any allocation or apportionment of a target species or “other species” category apportioned to a fishery or, with respect to pollock and Pacific cod, to an inshore or offshore component, will be reached, the Regional Administrator may establish a directed fishing allowance for that species or species group. If the Regional Administrator establishes a directed fishing allowance, and that allowance is or will be reached before the end of the fishing year, NMFS will prohibit directed fishing for that species or species group in the specified GOA Regulatory Area or district (§ 679.20(d)(1)(iii)).

The Regional Administrator has determined that the following TAC amounts for the species and species groups listed in Table 10 are necessary as incidental catch to support other anticipated groundfish fisheries for the 2003 fishing year.

Consequently, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the directed fishing allowances for the species or species groups listed in Table 10 as zero.

Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing for those species, areas, gear types, and processing components listed in Table 10. These closures will remain in effect through 2400 hrs, A.l.t., December 31, 2003.

Regulations at § 679.64(b)(5) provide for management of AFA catcher vessel groundfish harvest limits and PSC limits using directed fishing closures and PSC closures according to procedures set out at §§ 679.20(d)(1)(iv) and 679.21(d)(8) and (e)(3)(v). The Regional Administrator has determined that in addition to the closures listed above, many of the non-exempt AFA catcher vessel sideboard amounts listed in Table 9 are necessary as incidental catch to support other anticipated groundfish fisheries for the 2003 fishing year. In accordance with § 679.20(d)(1)(iv), the Regional Administrator establishes the directed fishing allowances for the species and species groups in the specified areas in Table 11 as zero. Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing by non-exempt AFA catcher vessels in the GOA for the species and species groups in the specified areas in Table 11. These closures will remain in effect through 2400 hrs, A.l.t., December 31, 2003.

Under authority of the interim 2003 specifications (67 FR 78733, December 26, 2002), pollock fishing opened on January 20, 2003, for amounts specified in that notice. NMFS has since closed Statistical Area 610 to directed fishing for pollock effective 1200 hrs, A.l.t., January 23, 2003 (68 FR 4115, January 28, 2003), and Statistical Area 630 to directed fishing for pollock effective 1200 hrs, A.l.t., January 21, 2003 (68 FR 2921, January 22, 2003), and opened Statistical Area 630 to directed fishing for pollock effective 1200 hrs., A.l.t., February 13, 2003 through 1200 hrs, A.l.t., February 14, 2003 (68 FR 7448, February 14, 2003). The closures for pollock in Statistical Areas 610 and 630 will remain in effect through 1200 hrs, A.l.t., March 10, 2003. NMFS has prohibited directed fishing for Pacific cod by vessels catching Pacific cod for processing by the offshore component effective 1200 hrs, A.l.t., February 1, 2003 (68 FR 5585, February 1, 2003), by vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area, effective 1200 hrs, A.l.t., February 9, 2003 (68 FR 7323, February 13, 2003), and by vessels catching Pacific cod for processing by the inshore component in the Western Regulatory Area, effective 1200 hrs, A.l.t., February 17, 2003 (68 FR 8154, February 20, 2003). The closures for Pacific cod in the Western and Central Regulatory Areas will remain in effect through 1200 hrs, A.l.t., September 1, 2003.

These closures supersede the closures announced in the interim 2003 harvest specifications (67 FR 78733, December 26, 2002). While these closures are in effect, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a fishing trip. These closures to directed fishing are in addition to closures and prohibitions found in regulations at § 679. NMFS may implement other closures during the 2003 fishing year as necessary for effective conservation and management. Response to Comments

NMFS received one letter of comment in response to the proposed 2003 harvest specifications (67 FR 76344, December 12, 2002).

Comment 1. A request for an extension of time in which to comment on the document.

Response. Regulations at 50 CFR 679.20(c)(1)(i)(B) provide for a 30-day comment period on the proposed specifications. NMFS has determined that an extension of the 30-day comment period on the proposed harvest specifications would pose unacceptable management implications for the 2003 groundfish fisheries. Without proposed and interim specifications in effect on January 1, the groundfish fisheries would not be able to open on that date, which would result in unnecessary closures and disruption within the fishing industry. Therefore, NMFS declines to extend the comment period on the proposed specifications.

The following information is a plain language guide to assist small entities in complying with this final rule as required by the Small Business Regulatory Enforcement Fairness Act of 1996. This rule's primary management measures are to announce final 2003 harvest specifications and prohibited species bycatch allowances for the groundfish fishery of the GOA. This action is necessary to establish harvest limits and associated management measures for groundfish during the 2003 fishing year and to accomplish the goals and objectives of the Fishery Management Plan for the Groundfish of the GOA. This action affects all fishermen who participate in the GOA fishery. NMFS will announce closures of directed fishing in the Federal Register and in information bulletins released by the Alaska Region. Affected fishermen should keep themselves informed of such closures.

This action is authorized under 50 CFR 679.20 and is exempt from review under Executive Order 12866.

NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) that describes the impact the 2003 harvest specifications may have on small entities, in accordance with the provisions of the Regulatory Flexibility Act of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 603(b)). Notice of the availability of the IRFA, and a summary, were published in the classification section of the proposed specifications for the groundfish fisheries in the GOA in the Federal Register on December 12, 2002 (67 FR 76344). The comment period on the proposed GOA harvest specifications and IRFA ended on January 13, 2003. NMFS did not receive any comments on the IRFA. NMFS has prepared a FRFA for this action and a copy is available from the Council (see ADDRESSES).

The small entities affected by this action are those that harvest fish under the terms of the specifications in the GOA. The FRFA identified 1,264 small catcher vessels and 16 small catcher/processors.

No projected additional reporting, recordkeeping or other compliance requirements were identified in connection with the final notice of specifications.

Four alternatives were evaluated, in addition to the preferred alternative used for the specifications. Alternatives were defined by the use of different harvest rates (F values). Impacts of the alternatives were estimated on the basis of their associated overall fleet gross revenue levels. Three alternatives (set F equal to 50 percent of max FABC, set F equal to the most recent 5-year average actual F, and set F equal to zero) all appeared to have greater adverse impacts on small entities than the preferred alternative. One alternative (set F equal to max FABC) had estimated overall gross revenues that were about 4 percent greater than those under the preferred alternative in the GOA. However, this alternative one was not chosen because it was based on 2002 TACs, which do not take into consideration biological survey information collected and analyzed in 2002 and evaluated by the Council and its SSC and AP committees at the end of 2002. The preferred alternative was chosen, rather than alternative one, because the TACs take into account the best and most recent information available regarding the status of the groundfish stocks, public testimony, and socio-economic concerns.

In some cases, the interim specifications currently in effect are not sufficient to allow directed fisheries to continue, resulting in unnecessary closures and disruption within the fishing industry. This action establishes the harvest specifications for the 2003 fisheries in the GOA. Hence, the action must be effective immediately to provide consistent, uninterrupted management and conservation of fishery resources and to allow the fishing industry to plan its fishing operations. Accordingly, the Assistant Administrator for Fisheries, NOAA, finds there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in the effective date.