In recent years, the Office of Government Ethics has made several changes to its organizational structure. These changes were made to improve OGE's internal agency operations, provide more emphasis on its education programs, increase emphasis on its annual and termination financial disclosure systems for Presidential appointees confirmed by the Senate, and to expand many of the other ethics program services that OGE provides to executive branch agencies.

Among these changes, OGE created a new Office of Agency Programs (OAP) to replace the former Office of Program Assistance and Review. OAP was later reorganized to include three divisions: the Education Division, the Program Services Division, and the Program Review Division.

Since OGE's organization and functions regulation was published in 1990, as codified at 5 CFR part 2600, OGE has also established the Office of Government Relations and Special Projects (OGRSP). Over the past several years, OGE has received requests from U.S. foreign policy-making entities and has provided technical assistance through the OGRSP to foreign governments and multinational organizations concerning preventive programs (like OGE's) which are part of larger anticorruption efforts.

The Office of Administration and Information Management (OAIM) was added as a separate office within OGE due to the increased use of information technology within OGE and by other Federal agencies in fulfilling their respective missions. The OAIM assists OGE in its continuing efforts to provide improved customer service, to persons both within and outside the executive branch of the Federal Government.

Part 2600 is now being amended to reflect the addition of these offices and to provide a short description of the functions of each.

The statement of the functions of the Office of the Director in paragraph (b) of § 2600.103 has been modified to reflect additional responsibilities that have been acquired by the OGE Director since 1990 and to accommodate recent changes made to that office's organization. Pursuant to Executive Order 12805, the Director serves as a member of both the President's Council on Integrity and Efficiency (PCIE) and the Executive Council on Integrity and Efficiency (ECIE). These councils were established to coordinate and enhance Governmental efforts to promote integrity and efficiency and to detect and prevent fraud, waste, and abuse in Federal programs. The Director also serves, pursuant to Executive Order 12993, as a member of the Integrity Committee. This committee receives, reviews and refers for investigation certain allegations of wrongdoing against Inspectors General and certain staff members of the Inspector General's Offices.

The Director's responsibilities also include leading many of OGE's outreach activities with private and nongovernmental sector entities. These activities are designed to promote awareness of OGE and its mission as well as to share ideas and best practices. We have amended § 2600.103 to reflect these new responsibilities.

Finally, other changes being made in part 2600 include providing OGE's Internet Web site address, providing OGE's new main telephone numbers, and updating the information in the section describing OGE's history. Other minor changes were made to some section headings in this part and to the regulation's language in a few places.

Pursuant to 5 U.S.C. 553(b) and (d), as Director of the Office of Government Ethics, I find good cause exists for waiving the general notice of proposed rulemaking, opportunity for public comment, and 30-day delay in effectiveness as to this regulatory revision. The notice, comment and delayed effective date are being waived because this regulation concerns matters of agency organization, practice and procedure.

In promulgating these amendments, OGE has adhered to the regulatory philosophy and the applicable principles of regulation set forth in section 1 of Executive Order 12866, Regulatory Planning and Review. These amendments have not been reviewed by the Office of Management and Budget under that Executive order, since they are not deemed “significant” thereunder.

As Director of the Office of Government Ethics, I have reviewed this final amendatory regulation in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.

As Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this rulemaking will not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because this rulemaking does not contain information collection requirements that require the approval of the Office of Management and Budget.

The Office of Government Ethics has determined that this amendatory rulemaking is a nonmajor rule under the Congressional Review Act (5 U.S.C. chapter 8) and will submit a report thereon to the U.S. Senate, House of Representatives and General Accounting Office in accordance with that law at the same time this rulemaking document is sent to the Office of the Federal Register for publication in the Federal Register.

This rule is issued under Marketing Order No. 925 (7 CFR part 925), regulating the handling of grapes grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

USDA is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule continues in effect established safeguards and procedures for suspension of packing holidays prescribed under the California grape order. The explicitly stated procedures and safeguards will be used for all requests received to suspend packing holidays. Additionally, this rule continues in effect the clarification of existing maturity requirements for Flame Seedless variety grapes and the correction of errors in the regulatory text regarding references to the CCR.

Section 925.52(a)(5) of the order's rules and regulations provides authority to establish holidays by prohibiting the packing of all varieties of grapes during a specified period or periods.

Previously, § 925.304(e) of the order's rules and regulations provided that the Committee may suspend the prohibition against packing or repacking grapes on any Saturday, Sunday, or on the Memorial Day or Independence Day holidays of each year, to permit the handling of grapes provided such handling complies with procedures and safeguards specified by the Committee.

A decision by an Administrative Law Judge on November 7, 2002, invalidated the authority for the Committee to suspend or modify packing holidays, because there were no safeguards or procedures established for the Committee to follow when it makes its decisions on whether to suspend packing holidays.

As a result, the Committee met on December 12, 2002, and recommended specifying the following safeguards and procedures, including USDA approval, for the suspension of packing holidays to § 925.304(e) of the order's rules and regulations: (1) All requests for suspension of a packing holiday shall be in writing, shall state the reasons the suspension is being requested, and shall be submitted to the Committee manager by noon on Wednesday or at least 3 days prior to the requested suspension date; (2) Upon receipt of a written request, the Committee manager shall promptly give reasonable notice to producers and handlers and to USDA that an assembled Committee meeting will be held to discuss the request(s). A USDA representative shall attend the Committee meeting via speakerphone or in person, and all votes of the Committee members shall be cast in person; (3) The Committee members shall consider marketing conditions ( i.e., supplies of competing commodities including quantities in inventory, the expected demand conditions for grapes in different markets, and any pertinent documents which provide data on market conditions), weather conditions, labor shortages, the size of the crop remaining to be marketed, and other pertinent factors in reaching a decision on whether or not to suspend packing holidays; (4) Once a vote is taken, any documents utilized during the meeting will be forwarded immediately to the USDA representative and a summary of the Committee's action and reasons for recommending approval or disapproval will be prepared and also forwarded by the Committee; and (5) The USDA representative shall notify the Committee manager of approval or disapproval of the request prior to commencement of the suspended packing holiday and the Committee manager shall notify handlers and producers of USDA's decision.

In previous seasons, the Committee used informal safeguards and procedures when processing and considering requests to suspend packing holidays. The established safeguards and procedures, and USDA approval, are intended to address the concerns expressed in the administrative action. The Committee vote was 8 in favor, 0 opposed, and 1 abstained. The specific safeguards and procedures were added to § 925.304(e) of the order's administrative rules and regulations (68 FR 19708, April 22, 2003). These revisions do not impact the grape import regulation.

Section 925.52(a)(2) of the grape order provides authority to limit the handling of any grade, size, quality, maturity, or pack of grapes differently for different varieties, or any combination of the foregoing during any period or periods.

Prior to issuance of the interim final rule, § 925.304(a)(2) of the grape order's administrative rules and regulations provided that grapes of the Flame Seedless variety shall be considered mature if the juice contains not less than 15 percent soluble solids and the soluble solids are equal to or in excess of 20 parts to every part acid contained in the juice in accordance with applicable sampling and testing procedures specified in sections 1436.3, 1436.5, 1436.6, 1436.7, 1436.12, and 1436.17 of the CCR. These provisions did not, but should have, specified that this variety of grapes also is considered mature under the grape marketing order if the juice meets or exceeds 16.5 percent soluble solids. To correct this oversight, the interim final rule added language to § 925.304(a)(2) indicating that Flame Seedless variety grapes shall be considered mature if the juice meets or exceeds 16.5 percent soluble solids.

Prior to issuance of the interim final rule, § 925.304(b)(4) of the grape order's rules and regulations required containers of grapes to be plainly marked with the lot stamp number corresponding to the lot inspection conducted by an authorized inspector, and specified that such requirement shall not apply to containers in the center tier of a 3 box by 3 box pallet configuration, as provided in §§ 1460.30 and 1359 of the CCR. The references to §§ 1460.30 and 1359 were incorrectly added to § 925.304(b)(4) on August 23, 2002 (67 FR 54567). This rule continues in effect the removal of these references from § 925.304(b)(4) and continues the addition of references to §§ 1436.30 and 1359 of the CCR to § 925.304(b)(3), as should have been done last August.

Section 925.304(f) states that certain container and pack requirements cited in the grape order are specified in the CCR and are incorporated by reference and that a notice of any change in these materials will be published in the Federal Register.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 20 handlers of California grapes who are subject to regulation under the order and about 50 producers of grapes in the production area. Small agricultural service firms are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $5,000,000 and small agricultural producers are defined as those having annual receipts of less than $750,000. Eight of the 20 handlers subject to regulation have annual grape sales of $5,000,000. In addition, 10 of the 50 producers have annual sales of at least $750,000. Therefore, a majority of handlers and producers are classified as small entities.

This rule continues in effect the establishment of safeguards and procedures for suspension of packing holidays prescribed under the California grape order. The specification of procedures and safeguards for suspending packing holidays are expected to facilitate the Committee's discussions and decision-making on such requests received from handlers. Additionally, this rule continues in effect the clarification of existing maturity requirements for Flame Seedless variety grapes and the correction of errors in regulatory text regarding references to the CCR.

Prior to issuance of the interim final rule, § 925.304(e) of the order's rules and regulations provided that the Committee may suspend the prohibition against packing or repacking grapes on any Saturday, or Sunday, or on the Memorial Day or Independence Day holidays of each year, to permit the handling of grapes provided such handling complies with procedures and safeguards specified by the Committee.

A decision issued by an Administrative Law Judge on November 7, 2002, invalidated the authority for the Committee to suspend or modify packing holidays, because there were no safeguards or procedures established for the Committee to follow when it makes its decisions on whether to suspend packing holidays.

As a result, the Committee met on December 12, 2002, and recommended specifying the following safeguards and procedures, including USDA approval, for suspension of packing holidays to § 925.304(e) of the order's rules and regulations to the handling of such requests: (1) All requests for suspension of a packing holiday shall be in writing, shall state the reasons the suspension is being requested, and shall be submitted to the Committee manager by noon on Wednesday or at least 3 days prior to the requested suspension date; (2) upon receipt of a written request, the Committee manager shall promptly give reasonable notice to producers and handlers and to USDA that an assembled Committee meeting will be held to discuss the request(s). A USDA representative shall attend via speakerphone or in person, and all votes of the Committee members on whether or not to approve the request shall be cast in person; (3) the Committee members shall consider marketing conditions (i.e., supplies of competing commodities including quantities in inventory, the expected demand conditions for grapes in different markets, and any pertinent documents which provide data on market conditions), weather conditions, labor shortages, the size of the crop remaining to be marketed, and other pertinent factors in reaching a decision to suspend or not suspend packing holidays; (4) once a vote is taken, any documents utilized during the meeting will be forwarded immediately to the USDA representative and a summary of the Committee's action and reasons for recommending approval or disapproval will be prepared and also forwarded by the Committee; and (5) the USDA representative shall notify the Committee manager of approval or disapproval of the requested prior to commencement of the suspended packing holiday and the Committee manager shall notify handlers and producers of USDA's decision.

In previous seasons, the Committee used informal safeguards and procedures when processing and considering requests to suspend packing holidays. The established safeguards and procedures, including USDA approval, are intended to address the concerns expressed in the administrative action. The Committee discussed alternatives to this change, including not making any changes, but determined that safeguards and procedures were needed to address the concerns expressed in the administrative action and to facilitate the handling of packing holiday suspension requests. The Committee vote was 8 in favor, 0 opposed, and 1 abstained. The specific safeguards and procedures were added to § 925.304(e) of the order's administrative rules and regulations (68 FR 19708, April 22, 2003). Imported grapes will not be affected by this action.

Section 925.52(a)(2) of the grape order provides authority to limit the handling of any grade, size, quality, maturity, or pack of grapes differently for different varieties, or any combination of the foregoing during any period or periods.

Previously, § 925.304(a)(2) of the grape order's administrative rules and regulations provided that grapes of the Flame Seedless variety shall be considered mature if the juice contains not less than 15 percent soluble solids and the soluble solids are equal to or in excess of 20 parts to every part acid contained in the juice in accordance with applicable sampling and testing procedures specified in sections 1436.3, 1436.5, 1436.6, 1436.7, 1436.12, and 1436.17 of the Title 3: California Code of Regulations (CCR). These provisions did not, but should have, specified that this variety of grapes also is considered mature under the grape marketing order if the juice meets or exceeds 16.5 percent soluble solids. To correct this oversight, the interim final rule added language to § 925.304(a)(2) indicating that Flame Seedless variety grapes shall be considered mature if the juice meets or exceeds 16.5 percent soluble solids.

Prior to issuance of the interim final rule, § 925.304(b)(4) of the grape order's rules and regulations required containers of grapes to be plainly marked with the lot stamp number corresponding to the lot inspection conducted by an authorized inspector, and specified that such requirement shall not apply to containers in the center tier of a 3 box by 3 box pallet configuration, as provided in §§ 1460.30 and 1359 of the CCR. The references to §§ 1460.30 and 1359 were incorrectly added to § 925.304(b)(4) on August 23, 2002 (67 FR 54567). This rule continues in effect the removal of these references from § 925.304(b)(4) and continues the addition of references to §§ 1436.30 and 1359 of the CCR to § 925.304(b)(3), as should have been done last August.

Section 925.304(f) states that certain container and pack requirements cited in the grape order are specified in the CCR and are incorporated by reference and that a notice of any change in these materials will be published in the Federal Register .

This rule is in the interest of handlers, producers and consumers. These revisions do not impact the grape import regulation.

The information collection requirements for the safeguards and procedures for the suspension of packing holidays have been previously approved by the Office of Management and Budget (OMB) under OMB No. 0581-0189. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

In addition, as noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the Committee's meeting was widely publicized throughout the grape industry and all interested persons were invited to attend the meeting and participate in the Committee's deliberations. The interim final rule (68 FR 19708, April 22, 2003) stated that this issue was discussed at Committee meetings held on November 14, 2002, and December 12, 2002. As this issue was not discussed at the November 14, 2002, meeting, that date has been deleted. Like all Committee meetings, the December 12, 2002, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue.

An interim final rule concerning this action was published in the Federal Register on April 22, 2003. Copies of the rule were mailed by the Committee's staff to all Committee members and grape handlers. In addition, the rule was made available through the Internet by the Office of the Federal Register and USDA. That rule provided for a 60-day comment period, which ended June 23, 2003. No comments were received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that finalizing the interim final rule, without change, as published in the Federal Register (68 FR 19708, April 22, 2003) will tend to effectuate the declared policy of the Act.

This rule is issued under Marketing Agreement and Order No. 989 (7 CFR part 989), both as amended, regulating the handling of raisins produced from grapes grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

USDA is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the order provisions now in effect, final free and reserve percentages may be established for raisins acquired by handlers during the crop year. This rule continues in effect final free and reserve percentages for NS and ZC raisins for the 2002-03 crop year, which began August 1, 2002, and ends July 31, 2003. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule continues in effect final volume regulation percentages for 2002-03 crop NS and ZC raisins covered under the order. The percentages were established through an interim final rule published on April 2, 2003 (68 FR 15926). The volume regulation percentages are 53 percent free and 47 percent reserve for NS raisins, and 80 percent free and 20 percent reserve for ZC raisins. Free tonnage raisins may be sold by handlers to any market. Reserve raisins must be held in a pool for the account of the Committee and are disposed of through various programs authorized under the order. For example, reserve raisins may be sold by the Committee to handlers for free use or to replace part of the free tonnage raisins they exported; used in diversion programs; carried over as a hedge against a short crop; or disposed of in other outlets not competitive with those for free tonnage raisins, such as government purchase, distilleries, or animal feed.

The volume regulation percentages are intended to help stabilize raisin supplies and prices, and strengthen market conditions. The Committee unanimously recommended ZC final percentages on January 29, 2003, and NS final percentages on February 13, 2003.

Section 989.54 of the order prescribes procedures and time frames to be followed in establishing volume regulation. This includes methodology used to calculate percentages. Pursuant to § 989.54(a) of the order, the Committee met on August 14, 2002, to review shipment and inventory data, and other matters relating to the supplies of raisins of all varietal types. The Committee computed a trade demand for each varietal type for which a free tonnage percentage might be recommended. Trade demand is computed using a formula specified in the order and, for each varietal type, is equal to 90 percent of the prior year's shipments of free tonnage and reserve tonnage raisins sold for free use into all market outlets, adjusted by subtracting the carryin on August 1 of the current crop year, and adding the desirable carryout at the end of that crop year. As specified in § 989.154(a), the desirable carryout for NS raisins shall equal the total shipments of free tonnage during August and September for each of the past 5 crop years, converted to a natural condition basis, dropping the high and low figures, and dividing the remaining sum by three, or 60,000 natural condition tons, whichever is higher. For all other varietal types, including ZC raisins, the desirable carryout shall equal the total shipments of free tonnage during August, September and one-half of October for each of the past 5 crop years, converted to a natural condition basis, dropping the high and low figures, and dividing the remaining sum by three. In accordance with these provisions, the Committee computed and announced 2002-03 trade demands for NS and ZC raisins at 196,185 tons and 2,166 tons, respectively, as shown below.

Section 989.54(b) of the order requires that the Committee announce, on or before October 5, preliminary crop estimates and determine whether volume regulation is warranted for the varietal types for which it computed a trade demand. That section allows the Committee to extend the October 5 date up to 5 business days if warranted by a late crop.

Due to a late 2002 crop, the Committee met on October 8, 2002, and announced a preliminary crop estimate for NS raisins of 407,996 tons, which is almost 18 percent higher than the 10-year average of 346,770 tons. NS raisins are the major varietal type of California raisin. Adding the carryin inventory of 132,135 tons, plus 18,000 tons of reserve raisins expected to be released to handlers this season for free use in an export program, plus the 407,996-ton crop estimate resulted in a total available supply of 558,131 tons, which was significantly higher (almost 285 percent) than the 196,185-ton trade demand. Thus, the Committee determined that volume regulation for NS raisins was warranted. The Committee announced preliminary free and reserve percentages for NS raisins, which released 65 percent of the computed trade demand since the field price (price paid by handlers to producers for their free tonnage raisins) had not been established. The preliminary percentages were 31 percent free and 69 percent reserve.

Also at its October 8, 2002, meeting, the Committee announced a preliminary crop estimate for ZC raisins at 4,544 tons, which is comparable to the 10-year average of 4,494 tons. Combining the carry-in inventory of 1,910 tons with the 4,544-ton crop estimate resulted in a total available supply of 6,454 tons. With the estimated supply significantly higher (almost three times) than the 2,166-ton trade demand, the Committee determined that volume regulation for ZC raisins was warranted. The Committee announced preliminary percentages for ZC raisins, which released 65 percent of the computed trade demand since field price had not been established. The preliminary percentages were 31 percent free and 69 percent reserve.

Field prices for both NS and ZC raisins were established on January 10, 2003, and preliminary percentages were revised on January 13, 2003, to 41 percent free and 59 percent reserve for NS and ZC raisins to release 85 percent of their trade demands.

In addition, preliminary percentages were announced for Other Seedless, Dipped Seedless, and Oleate and Related Seedless. It was ultimately determined that volume regulation was only warranted for NS and ZC raisins. As in past seasons, the Committee submitted its marketing policy to USDA for review.

Pursuant to § 989.54(f) of the order, the Committee met on January 29, 2003, and revised its marketing policy regarding ZC raisins due to a major change in economic conditions. The Committee recommended, and USDA subsequently approved, an increase in the ZC trade demand from 2,166 to 3,302 tons. The Committee's rationale for this action was to take advantage of increased demand created by a short Greek crop. Greece's crop has been reduced due to adverse weather conditions, and the Committee hopes to be able to sell more California ZC raisins in world markets.

Pursuant to § 989.54(c), at its January 29, 2003, meeting, the Committee announced interim percentages for NS and ZC raisins to release slightly less than their full trade demands. Based on a revised NS crop estimate of 373,138 tons (down from the October estimate of 407,996 tons), interim percentages for NS raisins were announced at 52.75 percent free and 47.25 percent reserve. Based on a revised ZC crop estimate of 4,128 tons (down from the October estimate of 4,544 tons), interim percentages for ZC raisins were announced at 79.75 percent free and 20.25 percent reserve.

Pursuant to § 989.54(d), the Committee also recommended final percentages to release the full trade demands for NS and ZC raisins. Final percentages were recommended for ZC raisins at the Committee's January meeting at 80 percent free and 20 percent reserve. Final percentages for NS raisins were recommended by the Committee at a meeting on February 13, 2003, at 53 percent free and 47 percent reserve, based on a revised crop estimate of 373,680 tons (slightly up from the January estimate of 373,138 tons). The Committee's calculations to arrive at final percentages for NS and ZS raisins are shown in the table below:

In addition, USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (Guidelines) specify that 110 percent of recent years' sales should be made available to primary markets each season for marketing orders utilizing reserve pool authority. This goal was met for NS and ZS raisins by the establishment of final percentages, which released 100 percent of the trade demands and the offer of additional reserve raisins for sale to handlers under the “10 plus 10 offers.” As specified in § 989.54(g), the 10 plus 10 offers are two offers of reserve pool raisins, which are made available to handlers during each season. For each such offer, a quantity of reserve raisins equal to 10 percent of the prior year's shipments is made available for free use. Handlers may sell their 10 plus 10 raisins to any market.

For NS raisins, the first “10 plus 10 offer” was made in February 2003, and the second offer was made in May 2003. A total of 59,626 tons was made available to raisin handlers through these offers, and 56,796 tons were purchased. Adding the total figure of 56,796 tons of 10 plus 10 raisins to the 385,575 tons of free tonnage raisins acquired by handlers from producers through the week ending April 26, 2003, plus 132,135 tons of 2002-03 carryin inventory, plus 18,000 tons of reserve raisins released during the season through an export program, equates to 592,506 tons of natural condition raisins, or 556,108 tons of packed raisins, that are available to handlers for free use or primary markets. This is almost 200 percent of the quantity of NS raisins shipped during the 2001-02 crop year (298,133 natural condition tons or 279,819 packed tons).

For ZC raisins, both “10 plus 10 offers” were held simultaneously in February 2003. A total of 688 tons was made available to handlers, and all of the raisins were purchased. Adding the 688 tons of 10 plus 10 raisins to the 4,356 tons of free tonnage raisins acquired by handlers from producers through the week ending April 26, 2003, plus 1,910 tons of 2002-03 carryin inventory equates to 6,954 tons of natural condition raisins, or 6,147 tons of packed raisins, available to handlers for free use or primary markets. This is over 200 percent of the quantity of ZC raisins shipped during the 2001-02 crop year (3,441 tons natural condition tons or 3,043 packed tons).

In addition to the 10 plus 10 offers, § 989.67(j) of the order provides authority for sales of reserve raisins to handlers under certain conditions such as a national emergency, crop failure, change in economic or marketing conditions, or if free tonnage shipments in the current crop year exceed shipments of a comparable period of the prior crop year. Such reserve raisins may be sold by handlers to any market. When implemented, the additional offers of reserve raisins make even more raisins available to primary markets, which is consistent with USDA's Guidelines.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 20 handlers of California raisins who are subject to regulation under the order and approximately 4,500 raisin producers in the regulated area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. Thirteen of the 20 handlers subject to regulation have annual sales estimated to be at least $5,000,000, and the remaining 7 handlers have sales less than $5,000,000. No more than 7 handlers, and a majority of producers, of California raisins may be classified as small entities.

Since 1949, the California raisin industry has operated under a Federal marketing order. The order contains authority to, among other things, limit the portion of a given year's crop that can be marketed freely in any outlet by raisin handlers. This volume control mechanism is used to stabilize supplies and prices and strengthen market conditions.

Pursuant to § 989.54(d) of the order, this rule continues in effect final volume regulation percentages for 2002-03 crop NS and ZC raisins. The volume regulation percentages are 53 percent free and 47 percent reserve for NS raisins, and 80 percent free and 20 percent reserve for ZC raisins. Free tonnage raisins may be sold by handlers to any market. Reserve raisins must be held in a pool for the account of the Committee and are disposed of through certain programs authorized under the order.

Volume regulation is warranted this season for NS raisins because acquisitions of 385,575 tons through the week ending April 26, 2003, combined with the carryin inventory of 132,135 tons, plus 19,700 tons of reserve raisins released for free use through an export program, results in a total available supply of 537,410 tons, which is about 274 percent higher than the 196,185-ton trade demand. Volume regulation is warranted for ZC raisins this season because acquisitions of 4,356 tons through the week ending April 26, 2003, combined with the carryin inventory of 1,910 tons results in a total available supply of 6,266 tons, which is almost twice the 3,302-ton trade demand.

Many years of marketing experience led to the development of the current volume regulation procedures. These procedures have helped the industry address its marketing problems by keeping supplies in balance with domestic and export market needs, and strengthening market conditions. The current volume regulation procedures fully supply the domestic and export markets, provide for market expansion, and help reduce the burden of oversupplies in the domestic market.

Raisin grapes are a perennial crop, so production in any year is dependent upon plantings made in earlier years. The sun-drying method of producing raisins involves considerable risk because of variable weather patterns.

Even though the product and the industry are viewed as mature, the industry has experienced considerable change over the last several decades. Before the 1975-76 crop year, more than 50 percent of the raisins were packed and sold directly to consumers. Now, over 60 percent of raisins are sold in bulk. This means that raisins are now sold to consumers mostly as an ingredient in another product such as cereal and baked goods. In addition, for a few years in the early 1970's, over 50 percent of the raisin grapes were sold to the wine market for crushing. Since then, the percent of raisin-variety grapes sold to the wine industry has decreased. In addition, the price wineries have offered for raisin grapes has dropped to $65 per ton.

California's grapes are classified into three groups—table grapes, wine grapes, and raisin-variety grapes. Raisin-variety grapes are the most versatile of the three types. They can be marketed as fresh grapes, crushed for juice in the production of wine or juice concentrate, or dried into raisins. Annual fluctuations in the fresh grape, wine, and concentrate markets, as well as weather-related factors, cause fluctuations in raisin supply. This type of situation introduces a certain amount of variability into the raisin market. Although the size of the crop for raisin-variety grapes may be known, the amount dried for raisins depends on the demand for crushing. This makes the marketing of raisins a more difficult task. These supply fluctuations can result in producer price instability and disorderly market conditions.

Volume regulation is helpful to the raisin industry because it lessens the impact of such fluctuations and contributes to orderly marketing. For example, producer prices for NS raisins remained fairly steady between the 1992-93 through the 1997-98 seasons, although production varied. As shown in the table below, during those years, production varied from a low of 272,063 tons in 1996-97 to a high of 387,007 tons in 1993-94, or about 114,944 tons. According to Committee data, the total producer return per ton during those years, which includes proceeds from both free tonnage plus reserve pool raisins, has varied from a low of $901 in 1992-93 to a high of $1,049 in 1996-97, or $148. Total producer prices for the 1998-99 and 1999-2000 seasons increased significantly due to back-to-back short crops during those years. Producer prices dropped dramatically for the last two seasons due to record-size production and large carry-in inventories.

There are essentially two broad markets for raisins—domestic and export. In recent years, both export and domestic shipments have been decreasing. Domestic shipments decreased from a high of 204,805 packed tons during the 1990-91 crop year to a low of 156,325 packed tons in 1999-2000. In addition, exports decreased from 114,576 packed tons in 1991-92 to a low of 91,600 packed tons in the 1999-2000 crop year.

In addition, the per capita consumption of raisins has declined from 2.07 pounds in 1988 to 1.46 pounds in 2001. This decrease is consistent with the decrease in the per capita consumption of dried fruits in general, which is due to the increasing availability of most types of fresh fruit throughout the year.

While the overall demand for raisins has been decreasing (as reflected in the decline in commercial shipments and per capita consumption), production has been increasing. Deliveries of NS dried raisins from producers to handlers reached an all-time high of 432,616 tons in the 2000-01 crop year. This large crop was preceded by two short crop years; deliveries were 240,469 tons in 1998-99 and 299,910 tons in 1999-2000. Deliveries for the 2000-01 crop year soared to a record level because of increased bearing acreage, increased yields, and growers drying more grapes for raisins. Deliveries for the 2001-02 crop year were at 377,328 tons, and deliveries through April 26, 2003, for the current year were at 385,575 tons. Three crop years of high production and a large 2002-03 carryin inventory has contributed to the industry's burdensome supply of raisins.

This type of surplus situation leads to serious marketing problems. Handlers compete against each other in an attempt to sell more raisins to reduce inventories and to market their crop. This situation puts downward pressure on growers' prices and incomes.

The order permits the industry to exercise supply control provisions, which allow for the establishment of free and reserve percentages, and establishment of a reserve pool. One of the primary purposes of establishing free and reserve percentages is to equilibrate supply and demand. If raisin markets are over-supplied with product, producer prices will decline.

Raisins are generally marketed at relatively lower price levels in the more elastic export market than in the more inelastic domestic market. This results in a larger volume of raisins being marketed and enhances producer returns. In addition, this system allows the U.S. raisin industry to be more competitive in export markets.

To assess the impact that volume control has on the prices producers receive for their product, an econometric model has been constructed. The model developed is for the purpose of estimating nominal prices under a number of scenarios using the volume control authority under the Federal marketing order. The price producers receive for the harvest and delivery of their crop is largely determined by the level of production and the volume of carryin inventories. The Federal marketing order permits the industry to exercise supply control provisions, which allow for the establishment of reserve and free percentages for primary markets, and a reserve pool. The establishment of reserve percentages impacts the production that is marketed in the primary markets.

The reserve percentage limits what handlers can market as free tonnage. Assuming the 53 percent reserve limits the total free tonnage to 204,355 natural condition tons (.53 × 385,575 tons delivered through April 26, 2003) and carryin is 132,135 natural condition tons, and purchases from reserve total 79,326 natural condition tons (which includes anticipated reserve raisins released through the export program and other purchases), then the total free supply is estimated at 415,816 natural condition tons. The econometric model estimates prices to be $142 per ton higher than under an unregulated scenario. This price increase is beneficial to all producers regardless of size and enhances producers' total revenues in comparison to no volume control. Establishing a reserve allows the industry to help stabilize supplies in both domestic and export markets, while improving returns to producers.

Regarding ZC raisins, ZC raisin production is much smaller than NS raisin production. Volume regulation has been implemented for ZC raisins during the 1994-95, 1995-96, 1997-98, 1998-99, 1999-2000, and 2000-01 seasons. Various programs to utilize reserve pool ZC raisins were implemented during those years. As shown in the table below, although production varied during those years, volume regulation helped to reduce inventories, and helped to strengthen total producer prices (free tonnage plus reserve ZC raisins) from $412.56 per ton in 1994-95 to a high of $1,034.03 per ton in 1998-99. The Committee is implementing an export program for ZC raisins, in addition to NS raisins. Through this program, the Committee plans to continue to manage its ZC supply, build and maintain export markets, and ultimately improve producer returns. Volume regulation helps the industry not only to manage oversupplies of raisins, but also maintain market stability.

Free and reserve percentages are established by varietal type, and usually in years when the supply exceeds the trade demand by a large enough margin that the Committee believes volume regulation is necessary to maintain market stability. Accordingly, in assessing whether to apply volume regulation or, as an alternative, not to apply such regulation, it has been determined that volume regulation is warranted this season for only two of the ten raisin varietal types defined under the order.

The free and reserve percentages established by this rule release the full trade demands and apply uniformly to all handlers in the industry, regardless of size. For NS raisins, with the exception of the 1998-99 crop year, small and large raisin producers and handlers have been operating under volume regulation percentages every year since 1983-84. There are no known additional costs incurred by small handlers that are not incurred by large handlers. While the level of benefits of this rulemaking are difficult to quantify, the stabilizing effects of the volume regulations impact small and large handlers positively by helping them maintain and expand markets even though raisin supplies fluctuate widely from season to season. Likewise, price stability positively impacts small and large producers by allowing them to better anticipate the revenues their raisins will generate.

There are some reporting, recordkeeping and other compliance requirements under the order. The reporting and recordkeeping burdens are necessary for compliance purposes and for developing statistical data for maintenance of the program. The requirements are the same as those applied in past seasons. Thus, this action imposes no additional reporting or recordkeeping burdens on either small or large handlers. The forms require information which is readily available from handler records and which can be provided without data processing equipment or trained statistical staff. The information collection and recordkeeping requirements have been previously approved by the Office of Management and Budget (OMB) under OMB Control No. 0581-0178. As with other similar marketing order programs, reports and forms are periodically studied to reduce or eliminate duplicate information collection burdens by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

Further, Committee and subcommittee meetings are widely publicized in advance and are held in a location central to the production area. The meetings are open to all industry members, including small business entities, and other interested persons who are encouraged to participate in the deliberations and voice their opinions on topics under discussion.

An interim final rule concerning this action was published in the Federal Register on April 2, 2003 (68 FR 15926). Copies of the rule were mailed to all Committee members and alternates, the Raisin Bargaining Association, handlers, and dehydrators. In addition, the rule was made available through the Internet by the Office of the Federal Register and USDA. That rule provided for a 60-day comment period that ended on June 2, 2003. No comments were received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

The FAA has developed RNAV (GPS)—D ORIGINAL SIAP and VOR—C AMENDMENT 1 SIAP to serve Cessna Aircraft Field, Wichita, KS. The Wichita Mid-Continent Airport, KS Class E airspace area encompasses that Class E airspace designed to protect aircraft executing SIAPs into Cessna Aircraft Field. This action modifies the Wichita Mid-Continent Airport, KS Class E airspace area to the appropriate dimension for protecting aircraft executing these newly developed/amended instrument approach procedures. As a result, Cessna Aircraft Field airport reference is no longer required in the Wichita Mid-Continent Airport, KS Class E airspace legal description. An examination of controlled airspace for Wichita Mid-Continent Airport, KS Class E airspace area. The locations of Wichita Mid-Continent Localizer Runway 1L, Wichita McConnell Air Force Base (AFB) Localizer Runway 1L and AUBRA Waypoint, all of which are used in the legal description of this airspace area, have been redefined. Portions of the airspace area description in the vicinity of McConnell AFB were omitted in the previous publication. This action corrects the discrepancies by modifying the airspace area and its legal description. This amendment to 24 CFR 71 modifies the Class E airspace area extending upward from 700 feet above the surface of the earth at Wichita Mid-Continent Airport, KS. It also brings the legal descriptions of this airspace area into compliance with FAA Order 7400.2E, Procedures for handling Airspace Matters. The area will be depicted on appropriate aeronautical charts. Class E airspace area extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register, and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2003-15454/Airspace Docket No. 03-ACE-52.” The postcard will be date/time stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to 14 CFR 71 modifies the Class E airspace area extending upward from 700 feet above the surface of the earth at Sioux Center, IA. An examination of controlled airspace for Sioux Center, IA revealed discrepancies in the Sioux Center Municipal Airport airport reference point, computation of required controlled airspace and appropriate application of magnetic variation. This amendment incorporates the revised Sioux Center Municipal Airport airport reference point, redefines Class E airspace around Sioux Center Municipal Airport at the 6.5-mile radius versus the 6-mile radius, applies the appropriate magnetic variation to the Class E airspace extension and brings the legal description of the Sioux Center, IA Class E airspace area into compliance with FAA Order 7400.2E, Procedures for Handling Airspace Matters. This area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface on the earth are published in paragraph 6005 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comment on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FA-2003-15455/Airspace Docket No. 03-ACE-53.” The postcard will be date/time stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” Under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Federal Register document 03-13047, published on Friday, May 23, 2003, (68 FR 28121) modified Class E airspace at Pocahontas, IA. The modification was to correct the Pocahontas Municipal Airport, IA airport reference point used in the legal description of the Pocahontas, IA Class E airspace area and to bring the airspace area into compliance with FAA Order 7400.2E, Procedures for handling Airspace Matters. The information published, however, did not correct a previous error in the volume of Class E airspace necessary at Pocahontas, IA and did not bring the airspace area into compliance with the order. This action rectifies the oversight and does bring the Pocahontas, IA Class E airspace into compliance with FAA Order 7400.2E.

This amendment to 14 CFR 71 modifies the Class E airspace area extending upward from 700 feet above the surface of the earth at Vinton, IA. An examination of controlled airspace for Vinton, IA revealed discrepancies in the Vinton Veterans Memorial Airpark airport reference point used in the legal description for this airspace area. This amendment incorporates the revised Vinton Veterans Memorial Airpark airport reference point and brings the legal description of the Vinton, IA Class E airspace area into compliance with FAA Order 7400.2E, Procedures for Handling Airspace Matters. This area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register, and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2003-15456/Airspace Docket No. 03-ACE-54.” The postcard will be date/time stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Federal Register Document 03-13040, published on Friday, May 23, 2003, (68 FR 28126) modified Class E airspace at Sibley, IA. The modification was to correct the Sibley Municipal Airport, IA airport reference point used in the legal description of the Sibley, IA Class E airspace area and to bring the airspace area into compliance with FAA Order 7400.2E, Procedures for handling Airspace Matters. The information published, however, did not correct a previous error in the volume of Class E airspace necessary at Sibley, IA and did not bring the airspace area into compliance with the order. This action rectifies the oversight and does bring the Sibley, IA Class E airspace into compliance with FAA Order 7400.2E.

Federal Register Document 03-13045, published on Friday, May 23, 2003, (68 FR 28123) modified Class E airspace at Red Oak, IA. The modification was to correct the Red Oak Municipal Airport, IA airport reference point used in the legal description of the Red Oak, IA Class E airspace area and to bring the airspace area into compliance with FAA Order 7400.2E, Procedures for handling Airspace Matters. The information published, however, did not correct a previous error in the volume of Class E airspace necessary at Red Oak, IA and did not bring the airspace area into compliance with the order. This action rectifies the oversight and does bring the Red Oak, IA Class E airspace into compliance with FAA Order 7400.2E.

Federal Register Document 03-13039, published on Friday, May 23, 2003, (68 FR 28127) modified Class E airspace and Sac City, IA. The modification was to correct discrepancies in the Sac City Municipal Airport, IA airport reference point and the location of the Sac City nondirectional radio beacon, both used in the legal description of the Sac City, IA Class E airspace area. These corrections were to bring the airspace area into compliance with FAA Order 7400.2E, Procedures for handling Airspace Matters. The information published, however, did not correct a previous error in the volume of Class E airspace necessary at Sac City, IA and did not bring the airspace area into compliance with the order. This action rectifies the oversight and does bring the Sac City, IA Class E airspace into compliance with FAA Order 7400.2E.

In the National Capital Revitalization and Self-Government Improvement Act of 1997, Pub.L. 105-33, Congress assigned to the U.S. Parole Commission the task of carrying out supervised release terms imposed for D.C. felony offenders by the Superior Court of the District of Columbia. D.C. Code 24-133(c)(2). The Commission was given the same authority over D.C. supervised releasees as is exercised by U.S. District Courts over federal supervised releasees under 18 U.S.C. 3583, except that any extension of a term of supervised release imposed by the Superior Court must be ordered by the Superior Court, not the Commission. Further, the Revitalization Act specifies that the procedures to be followed by the Commission in exercising its authority over D.C. supervised releasees are the procedures applicable to federal parolees under the Parole Commission and Reorganization Act of 1976, as set forth in Chapter 311 of Title 18, United States Code.

In November, 2000, the Commission published interim rules governing its functions for D.C. supervised releasees and requested comments on the rules. 65 FR 70466-78 (Nov. 24, 2000). Given the expected similarity between the parolee population and those D.C. offenders to be placed on supervised release, for the most part the interim rules simply carried over rules developed for parolees based on the Commission's long experience with this offender population. Of course, the Commission was required to promulgate rules that implemented any laws that were unique to supervised releasees, in particular the restrictions on the sanctions that may be imposed on offenders whose supervised release terms were revoked. See 28 CFR 2.218-2.219.

The Commission did make several policy choices in its interim rules for supervised release revocation decisions and is continuing these policies in the amended interim rules. The Commission will continue to use the reparole guidelines at § 2.21 as the appropriate standard for determining the length of a prison term for a supervised release violator when the Commission has revoked supervised release. The Commission has employed these guidelines to make reparole decisions for D.C. parole violators because the regulations of the former D.C. Board of Parole provided no policy guidance on reparole decisions. 63 FR 39175 (July 21, 1998). The guidelines at § 2.21 represent the Commission's policy judgments as to the appropriate balancing of factors such as accountability for the violation behavior, incapacitation, and deterrence in determining prison term sanctions for criminal violations and other misconduct on supervision.

In comparing the guideline ranges of § 2.21 against the maximum prison terms allowed as a part of a supervised release revocation decision under D.C. Code 24-403.01(b)(7) (incorporated in § 2.219 of the rules), it is apparent that the minimum of the § 2.21 range will frequently exceed the maximum permissible term of imprisonment for a violator who commits a serious crime while under supervision. The amended interim rule addresses this issue by providing that, when the maximum authorized term of imprisonment under § 2.219 is less than the minimum of the § 2.21 guideline range, the “guideline range” is the maximum authorized term of imprisonment, not the range found in § 2.21. This instruction is analogous to the directions found in the U.S. Sentencing Guidelines, § 5G.1.1(a) and § 7B1.4(b)(1). For the large number of release violators who commit administrative violations or less serious crimes, the § 2.21 guidelines will ensure decision-making consistency in prison term determinations. The Commission's statistics regarding decision-making under the § 2.21 guidelines for D.C. parole violators since August, 2000 to the present show that 80% of the cases received offense severity ratings of Category Three or less, with 60% receiving a rating of Category One. In 63% of the cases, the violator received a prison term of 24 months or less for the violation. Since the Commission anticipates that D.C. supervised releasees, as a group, will be substantially similar to D.C. offenders on parole, there is no reason to believe that these statistics will be markedly different for D.C. supervised releasees.

The Commission is also maintaining the general policy to impose, whenever possible, the maximum permissible term of supervised release for an offender as a consequence of the revocation of an earlier supervised release term. 28 CFR 2.218(e). This policy is based on the Commission's judgment that, for most cases, a supervised release violator has, by virtue of committing violations serious enough to justify revocation, thereby evidenced the need for further supervision to the limits provided by law.

The amended interim rules also clarify the Commission's interpretation of a law governing the running of a supervised release term, how the Commission will handle actions regarding multiple terms of supervised release, and the sequence of revocation proceedings for an offender serving concurrent terms of parole and supervised release. The statutory interpretation concerns D.C. Code 24-403.01(b)(5), which provides that a term of supervised release does not run during any period of 30 days or more in which the offender is imprisoned in connection with a conviction for a federal, state, or local crime. The rule at § 2.201 interprets this law to preclude the running of a supervised release term while the offender is serving a term of imprisonment resulting from a probation, parole, or supervised release revocation on another sentence. The offender's imprisonment as a release violator is clearly “in connection with a conviction” because the conviction on which the offender was granted probation, parole, or supervised release is the ultimate source of authority for revoking the release and imprisoning the offender. The rule at § 2.201 also incorporates the provision at D.C. Code 24-403.01(b)(5) that a term of supervised release runs concurrently with other terms of supervision in the community, including a supervised release term imposed for another offense.

With regard to the Commission's policies concerning an offender serving multiple terms of supervised release, the amended interim rule retains the provision that the longest term imposed determines the duration of the Commission's jurisdiction over such an offender, and the policy that the multiple terms will be considered as aggregated. A decision to terminate the offender from supervision or to revoke supervised release shall have the effect of terminating or revoking all terms of supervised release being served by the offender at the time of the Commission's order. In imposing the sanctions that result from revocation, the Commission shall treat the offender as if the Commission had revoked a single term of supervised release. The reason for using this aggregation approach for imposing revocation sanctions is largely one of administrative efficiency. Making separate calculations of terms of imprisonment and subsequent supervised release for the revocation of multiple supervised release terms, and then reducing these multiple calculations to an understandable revocation decision would be an extremely difficult task. The amended interim rule also clarifies that in calculating the original maximum authorized term of supervised release and the maximum authorized term of imprisonment at the first revocation, the Commission shall use as its guide the sentence for the offense that is punishable by the longest prison term authorized by the D.C. Code. The Commission believes this interpretation of the statutory scheme best accords with legislative intent because the sanctions authorized by statutory law for supervised release revocation are dictated by the maximum statutory penalty for the crime that led to the original sentence. See D.C. Code 24-403.01(b)(7). Finally, with regard to the offender who is subject to revocation of parole and supervised release terms, the rule at § 2.211(g) clarifies that the Commission has the discretion to revoke both parole and supervised release at a combined hearing or at separate hearings, and may postpone the sanction for revocation of one term until the offender satisfies the prison term imposed as a revocation sanction regarding the other term. If the Commission chooses to conduct separate hearings, the first revocation hearing will resolve any contested violations so that the subsequent hearing may be conducted on the same violation behavior as an institutional hearing without the need to require the attendance of adverse or necessary witnesses.

Since the publication of the interim rules in November, 2000, the Commission promulgated rule changes to the Commission's procedures for revoking paroles granted to D.C. offenders in order to implement a consent decree resolving class action litigation in the U.S. District Court for the District of Columbia. See 68 FR 3389-92 (Jan. 24, 2003). Though supervised releasees were not members of the plaintiff class in the litigation, the Commission extended the revised procedures to supervised releasees because the new rules represented the most efficient revocation system and the best means of protecting the public safety. Id. at 3389. These revocation procedures are included in the amended interim rules.

Recently the Commission published as proposed rules with request for comment revisions of three regulations describing the conditions of supervision for federal parolees, D.C. parolees, and D.C. supervised releasees. 68 FR 16743-46 (Apr. 7, 2003). These proposed rules consolidated similar provisions for the three groups of offenders, using the rule governing conditions of supervised release as the rule for the full statement of applicable conditions, and then placing cross-references to this rule in the provisions for federal parolees and D.C. parolees. Id. at 16744. The Commission is now adopting these rules on the release conditions as interim rules with changes that are mostly editorial in nature.

One amendment to the proposed rules adds a general condition that, upon receiving a direction from the supervision officer, the releasee must notify a person, normally an employer, of a risk of harm that may be evidenced by the releasee's criminal record or personal history, and permit the officer to confirm that the releasee gave the required notice. This condition also authorizes the supervision officer to provide notice of possible risk to the third party if the notification is authorized by the Commission's rules. The Commission already authorizes disclosure of risk of harm to persons in the rule at § 2.37(a) and companion rules for D.C. parolees and supervised releasees. The standard conditions of supervised release recommended for federal offenders includes a similar condition. U.S. Sentencing Guidelines, § 5D1.3(c)(13). When the supervision officer determines that a disclosure of risk of harm is appropriate, this additional condition is another step toward ensuring that the releasee is adequately supervised in the community, and that the recipient of the notice is sufficiently informed of the releasee's background so as not to place the releasee in a position that may increase the risk of future criminal behavior by the releasee, or to take suitable precautions in dealing with the releasee. Another amendment to the proposed rules restores a current reporting instruction for an offender who is delayed by an emergency in making his initial visit to the supervision office. The instruction from the current rule—that the offender report to the nearest U.S. Probation Office if he cannot timely report to his designated supervision office—is retained to be consistent with written directions that are given to the offender by the Bureau of Prisons upon the offender's discharge from the institution. Finally, another amendment implements statutory provisions on mandatory revocation of a supervised release term if the Commission finds that the releasee has committed certain violations ( e.g. , possession of a firearm or repeated positive test results for drug use). See 18 U.S.C. 3583(g).

The amended interim rules also add an appeal procedure for supervised release revocation decisions at § 2.220. Up to now, the Commission has not included an appeal procedure for any of the decisions it makes for D.C. offenders. In past publications of procedural rules for D.C. offenders, the Commission has acknowledged concerns that D.C. offenders have not been given the opportunity to file administrative appeals regarding parole release and parole revocation decisions. See 65 FR 45886 (July 26, 2000). The Commission has explained that it does not have the staff resources to review appeals submitted by D.C. offenders, and that the additional review that is afforded by the appeal procedure is effectively obtained by having two Commissioners vote at the initial stage of decision-making.

However, the Commission has decided that there are several reasons to establish an administrative appeal procedure limited to supervised release revocation decisions. First, though the Commission has considerable experience in executing the similar function of parole revocation, the statutes governing supervised release revocation decisions impose complex and unfamiliar limits when the Commission revokes supervised release and then must determine the length of a term of imprisonment and a subsequent term of supervised release. An appeal procedure for supervised release revocations is an additional administrative safeguard in the agency's effort to ensure error-free decision-making in carrying out this new function. Second, the number of supervised release revocations is still small and providing an administrative appeal procedure will not impose, at least at this time, a significant burden on the Commissioners and staff reviewing the appeals.

By a cross-reference, the new rule at § 2.220 carries over from the regulation at § 2.26, the deadlines for filing and deciding the appeal, the limit on exhibits that may be appended to the appeal, the grounds for appeal, and the voting requirements. The Commission is including in § 2.26 a new procedural requirement on the formatting of the appeal, and incorporates this requirement in § 2.220 by the cross-reference to § 2.26. The new procedural requirement is that the appellant briefly summarize at the beginning of his appeal all of the grounds for appeal, and then provide a concise statement of facts and reasons in support of each ground identified. The appellant may provide any additional information in an addendum to the appeal. Appeals that do not conform to this procedural requirement may be returned in the agency's discretion. The purpose of this requirement is to enhance the Commission's ability to readily identify meritorious claims, and focus its effort in the most productive manner, for the benefit of the agency and the appellant. The Commission is preparing a revised appeal form that incorporates the new format requirements and will distribute the revised form to federal correctional facilities and those organizations that have frequently filed administrative appeals with the Commission in the past.

The Commission would emphasize that the degree of review given to each appeal lies within the agency's discretion and depends on its evaluation of the strength of the appellant's claims as stated in the appeal. Because the purpose of the appeal is to correct error rather than decide each case de novo, some appeals will result in a summary denial, while others will deserve an in-depth review on the merits.

Because the Commission is providing this appeal procedure, the Commission is amending the voting requirements stated at § 2.218(g) for making the initial decisions on supervised release revocation. The amendment allows these decisions to be made on the vote of one Commissioner, except that two Commissioner votes are needed for any decision disagreeing with the panel recommendation. Because appeals are almost always decided by a Commissioner other than the Commissioner who initially made the decision under review, if an offender chooses to exercise the option of filing an appeal, the appeal procedure will permit the offender to obtain review of the revocation decision by a second Commissioner. The opportunity for review of the case by a second Commissioner is an adequate substitute for the present voting requirement that two Commissioners concur for supervised release revocation decisions.

This appeal procedure for supervised release revocation decisions is in the nature of a pilot project, as when the Commission inaugurated its paroling policy guidelines for federal offenders. See Battle v. Norton, 365 F.Supp. 925 (D.Conn. 1973). In this era of budget constraints, the Commission will have to periodically reevaluate its ability to maintain this additional procedure, including the availability of sufficient staff and Commissioners to handle the appeals and the trends in federal and D.C. caseloads. If the balance of competing factors weighs against the continuation of the appeal procedure, the Commission will have to consider options that may range from enforcing explicit limitations on the grounds for appeals to termination of the appeal procedure.

In response to the Commission's November, 2000 publication of the interim rules for supervised release cases, the Commission received no public comment. Though the Commission could proceed to promulgate final rules on the exercise of its duties for D.C. supervised releasees, the Commission has decided to publish amended interim rules at this time and extend the opportunity for the submission of public comment. Now that more D.C. offenders are serving terms of supervised release and the Commission is taking an increasing number of actions regarding these offenders, there may be more interest in providing comment on the Commission's policies.

With regard to proposed rules published in April, 2003 on the consolidation and revision of release conditions, the Commission received one comment from a private company. This company, which specializes in the development and implementation of global positioning systems (GPS) for criminal justice applications, recommended that the Commission specify in its condition requiring home detention with electronic monitoring that the releasee be required to wear a GPS tracking or other electronic signaling device. The Commission has generally allowed the supervision agencies (the U.S. Probation Service and the D.C. Court Services and Offender Supervision Agency) to decide on the appropriate methods and technologies employed to monitor a releasee's compliance with release conditions, whether the monitoring is done through drug tests, mental health evaluations, or electronic tracking devices. The supervision agency, not the Commission, contracts for and pays for the use of the specific method or technology. Therefore, no change is made in the amended interim rule regarding the description of the special condition on home confinement/electronic monitoring.

The Commission is including the rules on the release conditions in the publication of amended interim rules because the agency wants to publish a comprehensive statement of the supervised release rules, of which the rule on conditions of supervised release is a significant part, and promulgating this discrete rule and the companion provisions for federal and D.C. parolees as final rules would be confusing to the public, in the Commission's judgment. Therefore, the Commission is extending the opportunity for public comment regarding the consolidation and revision of rules on release conditions.

These interim rules will be applied to all cases as of the effective date of the rules. Appeals of supervised release revocation decisions will be permitted for any revocation decision made on or after the effective date of the rules. The procedural rules on the format of appeals are effective for any appeal dated on or after the effective date of the rules, but these rules will not be strictly enforced until a new appeal form is available to prisoners, releasees, and their representatives.

The U.S. Parole Commission has determined that this interim rule does not constitute a significant rule within the meaning of Executive Order 12866. The interim rule will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605(b), and is deemed by the Commission to be a rule of agency practice that does not substantially affect the rights or obligations of non-agency parties pursuant to Section 804(3)(c) of the Congressional Review Act.

The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.

Three sets of interest assumptions are prescribed: (1) A set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to Part 4044), (2) a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to Part 4022), and (3) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to Part 4022).

Accordingly, this amendment (1) adds to Appendix B to Part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during August 2003, (2) adds to Appendix B to Part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during August 2003, and (3) adds to Appendix C to Part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during August 2003.

For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to part 4044) will be 4.40 percent for the first 20 years following the valuation date and 5.25 percent thereafter. These interest assumptions represent an increase (from those in effect for July 2003) of 0.10 percent for the first 20 years following the valuation date and are otherwise unchanged.

The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 3.00 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions are unchanged from those in effect for July 2003.

For private-sector payments, the interest assumptions (set forth in Appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in Appendix B to part 4022).

The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect, as accurately as possible, current market conditions.

Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during August 2003, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

We encourage you to participate in this evaluation of the test deviation by submitting comments or related material. If you do so, please include your name and address, identify the docket number for this deviation (CGD01-03-047), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know if they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period.

The U.S. 1 Bridge has a vertical clearance of 4 feet at mean high water and 7 feet at mean low water in the closed position.

The existing regulations in 33 CFR 117.211(b), require the bridge to open on signal with a maximum delay of up to twenty minutes; except that from May 1 through October 31, from 7:15 a.m. to 7:15 p.m., the draw need only open once an hour, at quarter past the hour and from November 1 through April 30, from 8 p.m. to 4 a.m., the draw must open on signal after a six-hour advance notice is given.

On May 13, 2003, the Mystic Connecticut Chamber of Commerce and Marine Affairs Committee, requested that the U.S. 1 Bridge opening schedule be temporarily changed to test an alternate operation schedule.

At the request of the Mystic Chamber of Commerce and Marine Affairs Committee, the Commander, First Coast Guard District, issued a temporary deviation from the drawbridge operation regulations on May 20, 2003. That temporary deviation, notice of which was published in the Federal Register on June 2, 2003, at 68 FR 32643, authorized an alternate operating schedule effective from June 15, 2003 through August 31, 2003. The purpose of the temporary deviation was to test an alternate operation schedule and collect vehicular traffic data.

On May 30, 2003, the Coast Guard received a second letter from the Mystic Chamber of Commerce and Marine Affairs Committee. The Mystic Chamber of Commerce and Marine Affairs Committee requested that the effective period of the temporary deviation be changed to allow the bridge to operate under the alternate operation schedule from July 18, 2003 through October 15, 2003, and that the hourly daily operating schedule end at 6:40 p.m. instead of 7:40 p.m.

The District Commander issued a new test deviation as requested by the Mystic Chamber of Commerce and Marine Affairs Committee. This deviation allows the bridge to operate under the alternate operation schedule from July 18, 2003 through October 15, 2003, during the peak boating season.

Under this temporary deviation, effective from July 18, 2003 through October 15, 2003, the draw of the U.S. 1 Bridge shall open promptly and fully on signal; except that, from 7:40 a.m. to 6:40 p.m., daily, the draw shall open at 7:40 a.m., 8:40 a.m., 9:40 a.m., 10:40 a.m., 11:40 a.m., 1:10 p.m., 1:40 p.m., 2:40 p.m., 3:40 p.m., 4:40 p.m., 5:40 p.m., and 6:40 p.m.

After October 15, 2003, the bridge will operate in accordance with the existing drawbridge operation regulations.

This temporary deviation also eliminates the provision that permits openings to be delayed up to 20 minutes after an opening request is given. Under this temporary deviation, the bridge must open promptly and fully upon request, in accordance with 33 CFR 117.5.

This deviation from the operating regulations is authorized under 33 CFR 117.43, to test an alternate operating schedule.

We encourage you to submit comments on this temporary rule to our docket listed under ADDRESSES. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD05-03-073), indicate the specific section of this document to which each comments applies, and give the reason for each comment. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and related material received during the comment period and we may change this temporary rule in view of them.

The U.S. Coast Guard did not publish a notice of proposed rulemaking (NPRM) for this regulation. The Coast Guard is promulgating these security zone regulations to protect the Wilmington State Port and the surrounding vicinity for reasons directly related to military operations and national security. Based on the military function exception set forth in the Administrative Procedure Act, 5 U.S.C. 553(a)(1), notice and comment rulemaking and advance publication, pursuant to 5 U.S.C. 553(b) and (d), are not required for this regulation. As stated in our “Request for Comments” section, however, we do encourage you to comment on this currently-effective temporary rule. This temporary security zone is necessary to provide for the security of the United States.

The security zone will prevent access to unauthorized persons who may attempt to enter the secure area via Eagle Island, the Cape Fear River, or the North Carolina State Port Authority terminal.

To provide security for, and prevent acts of terrorism against, vessels loading or offloading and the State Port Authority Terminal during a military operation , the security zone will prevent access to unauthorized persons who may attempt to enter the secure area via the Cape Fear River, the North Carolina State Port Authority terminal, or use Eagle Island as vantage point for surveillance of the secure area. This rule limits access to the regulated area to those vessels and persons authorized to enter and operate within the security zone. The Captain of the Port or her designated representative may authorize access to the security zone. Mariners must contact the control vessel on VHF-FM channel 16 to request access to transit through the regulated area. In addition, the Coast Guard will make notifications via maritime advisories.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

Although this regulation restricts access to the regulated area, the effect of this regulation will not be significant because: (i) the COTP or her representative may authorize access to the security zone; (ii) the security zone will be in effect for limited duration; and (iii) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the U.S. Coast Guard have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: the owners and operators of vessels or vehicles intending to transit or anchor within waters or grounds of the security zone (including the North Carolina State Port Authority Terminal and the southern portion of Eagle Island) encompassed by a line connecting the following points: from South Wilmington Terminal at 34°10′38.394″ W, 077°57′16.248″ N (Point 1); across Cape Fear River to Southern most entrance of Brunswick River on the West Bank at 34°10′38.052″ W, 077°57′43.143″ N (Point 2); extending along the West bank of the Brunswick River for approximately 750 yards to 34°10′57.062″ W, 077°58′01.342″ N (Point 3); proceeding north across the Brunswick River to the east bank at 34°11′04.846″ W, 077°58′02.861″ N (Point 4); continuing north on the east bank for approximately 5000 yards along Eagle Island to 34°13′17.815″ W, 077°58′30.671″ N (Point 5), proceeding east to 34°13′19.488″ W, 077°58′24.414″ N (Point 6); then approximately 1700 yards to 34°13′27.169″ W, 077°57′51.753″ N (Point 7); proceeding east to 34°13′21.226″ W, 077°57′19.264″ N (Point 8); then across Cape Fear River to the northeast corner of the Colonial Terminal Pier at 34°13′18.724″ W, 077°57′07.401″ N (Point 9) 800 yards south of Cape Fear Memorial Bridge; proceeding south along shoreline (east bank) of Cape Fear River for approximately 500 yards; proceeding east inland to Wilmington State Port property line at 34°13′03.196″ W, 077°56′52.211″ N (Point 10); extending south along Wilmington State Port property line to 34°12′43.409″ W, 077°56′50.815″ N (Point 11); proceeding to the north entrance of Wilmington State Port at 34°12′28.854″ W, 077°57′01.017″ N (Point 12); proceeding south along Wilmington State Port property line to 34°12′20.819″ W, 077°57′08.871″ N (Point 13); continuing south along the Wilmington State Port property line to 34°12′08.164″ W, 077°57′08.530″ N (Point 14); continuing along State Port property to 34°11′44.426″ W, 077°56′55.003″ N (Point 15); proceeding south to the main gate of the Wilmington State Port at 34°11′29.578″ W, 077°56′55.240″ N (Point 16); proceeding south approximately 750 yards to the southeast property corner of the Apex facility at 34°11′10.936″ W, 077°57′04.798″ N (Point 17); proceeding west to east bank of Cape Fear River at 34°11′11.092″ W, 077°57′17.146″ N (Point 18); and proceeding south along East bank of Cape Fear River to original point of origin at 34°10′38.394″ W, 077°57′16.248″ N (Point 1).

This security zone is in effect from 8 a.m. EST on June 13, 2003, to 11:59 p.m. EST on December 13, 2003.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), the U.S. Coast Guard offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under ADDRESSES.

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

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

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

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

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

The U.S. Coast Guard has 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 would not create an environmental risk to health or risk to safety that may disproportionately affect children.

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

The U.S. Coast Guard has analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The U.S. Coast Guard has 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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The U.S. Coast Guard has considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This rule establishes a 6-month security zone.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. This determination was based on the size and location of the safety zones within the waterways, and vessels can still transit around the safety zones. More importantly, publishing an NPRM, which would incorporate a comment period before a final rule could be issued, and delaying the rule's effective date is contrary to public safety because immediate action is necessary to protect the public, spectators and participants in the event.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

Red Bull Wings Over Cleveland is an aerial paragliding and skydiving competition over Cleveland Harbor. Competitors will launch from either a barge moored approximately one mile off Voinovich Park in Lake Erie, or from an airplane, and attempt to land on another barge moored approximately 100 ft off Voinovich Park. A safety zone will be established around both barges to protect competitors and course obstacles (wind blades and landing zone markers) from excessive speed and wakes, and to prevent interference with the competition.

The safety zones will be established from 7 a.m. on Thursday, July 31, 2003 until 9 p.m. on Saturday, August 2, 2003. The safety zones will be established around the two barges used for the competition. No vessel shall enter the safety zone without the permission of the COTP or the on-scene representative, the Patrol Commander.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The Office of Management and Budget has not reviewed this rule under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

This determination is based on the size and location of the safety zones within the waterways.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

This rule would affect the following entities, some of which might be small entities: The owners or operators of commercial vessels intending to transit a portion of the safety zones.

These safety zones would not have a significant economic impact on a substantial number of small entities for the following reasons: The safety zones do not block a navigable channel and vessels can safely transit around the safety zones. Before the effective period, the Coast Guard will issue maritime advisories to users who might be impacted through notification in the Federal Register , the Ninth Coast Guard District Local Notice to Mariners, and through Marine Information Broadcasts. Additionally, the Coast Guard has not received any reports from small entities negatively affected during previous similar events.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Cleveland ( see ADDRESSES .)

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

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

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

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

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

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

The Coast Guard has 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 under Commandant Instruction M16475.1C, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of categorical exclusion under Section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded under Figure 2-1, paragraph 35(a) of the Instruction, from further environmental documentation. A written categorical exclusion determination is available in the docket for inspection or copying where indicated under ADDRESSES.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. The Coast Guard is promulgating these security zone regulations to protect vessels loading or offloading and the surrounding vicinity for reasons directly related to military operations and national security. Accordingly, based on the military function exception set forth in the Administrative Procedure Act, 5 U.S.C. 553(a)(1), notice and comment rule-making and advance publication, pursuant to 5 U.S.C. 553(b) and (d), are not required for this regulation. This temporary security zone is necessary to provide for the security of the United States.

The security zone is designed to prevent access by unauthorized persons who may attempt to enter the secure area via Bogue Sound and the North Carolina State Port Authority terminal.

For security reasons, this rule limits access to the regulated area to those vessels and persons authorized to enter and operate within the security zone. The Captain of the Port or her designated representative may authorize access to the security zone. Mariners must contact the control vessel on VHF-FM channel 16 to request access to transit through the regulated area. In addition, the Coast Guard will make notifications via maritime advisories.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

Although this regulation restricts access to the regulated area, the effect of this regulation will not be significant because: (i) The COTP or her representative may authorize access to the security zone; (ii) the security zone will be in effect for limited duration; and (iii) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit or anchor within the security zone while it is in effect. The security zone encompasses the water areas of Beaufort Inlet and Bogue Sound within a line connecting the following points: beginning at 34°42′53″ N, 076°41′12″ W (Point 1); extending north along the western shore of Radio Island to 34°43′24″ N, 076°41′9″ W (Point 2); extending westward 2300 yards to 34°43′16″ N, 076°42′48″ W (Point 3); extending approximately 400 yards west to 34°43′8″ N, 076°43′ W (Point 4); extending south approximately 760 yards to 34°42′74″ N, 076°83′ W (Point 5); extending southeast approximately 2450 yards to 34°41′94″ N, 076°41′68″ W (Point 6); extending northeast approximately 1000 yards 34°42′53″ N, 076°41′12″ W (Point 1). And personnel attempting to enter the portion of the grounds of the North Carolina State Port Authority Terminal at Morehead City south of Highway 70 while the security zone is in effect.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under ADDRESSES.

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

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

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

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

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

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

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

We 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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. This rule establishes a 6-month security zone.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. The Coast Guard is promulgating these security zone regulations to protect Military Ocean Terminal Sunny Point, NC, and the surrounding vicinity for reasons directly related to military operations and national security. Accordingly, based on the military function exception set forth in the Administrative Procedure Act, 5 U.S.C. 553(a)(1), notice-and-comment rulemaking and advance publication, pursuant to 5 U.S.C. 553(b) and (d), are not required for this regulation. This temporary security zone is necessary to provide for the security of the United States.

The security zone will prevent access to unauthorized persons who may attempt to enter the secure area via the Cape Fear River and waters adjacent to Military Ocean Terminal Sunny Point, NC.

For security reasons, this rule limits access to the regulated area to those vessels and persons authorized to enter and operate within the security zone. The Captain of the Port or her designated representative may authorize access to the security zone. Mariners must contact the control vessel on VHF-FM channel 16 to request access to transit through the regulated area. In addition, the Coast Guard will make notifications via maritime advisories.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

Although this regulation restricts access to the regulated area, the effect of this regulation will not be significant because: (i) The COTP or her representative may authorize access to the security zone; (ii) the security zone will be in effect for limited duration; and (iii) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit or anchor in the vicinity of Military Ocean Terminal Sunny Point, and entering an area encompassed by a line connecting the following points: The northern tip of the security zone is at 34°02′02″ N, 077°56′36″ W near Light 9; extending south along the shore to 34°00′00″ N, 077°57′15″ W; proceeding to the southern most tip of the zone at 33°59′10″ N, 077°57′0″ W at Light 71; and then proceeding north to 34§ 00'39” N, 077°56′ 25″ W at Buoy 31.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under ADDRESSES.

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

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

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

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

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

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

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

We 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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This rule establishes a 6-month security zone.

This is a synopsis of the Commission's Report and Order, MB Docket No. 02-382, adopted June 18, 2003, and released June 23, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 Twelfth Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractors, Qualex International, Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, or via e-mail qualexint@aol.com

Information may be obtained at the following offices:

Compliance with the requirement to register with NMFS and to obtain an authorization certificate is not required until January 1, 2004, for fisheries elevated to Category II in this final rule. These fisheries are: Gulf of Mexico gillnet fishery; California yellowtail, barracuda, white seabass, tuna drift gillnet fishery; and both the Mid-Atlantic mixed species trap/pot fishery and the U.S. Mid-Atlantic and Southeast U.S. Atlantic black seabass trap/pot fishery, which will be combined with the Northeast trap/pot fishery in the newly-defined Atlantic mixed species trap/pot fishery for the 2003 LOF. The above mentioned fisheries are considered to be Category II fisheries on August 14, 2003, and are required to comply with all requirements of Category II fisheries ( i.e. , complying with applicable take reduction plan requirements and carrying observers, if requested), other than the registration requirement, on that date.

Under section 118 of the MMPA, NMFS must publish, at least annually, a LOF that places all U.S. commercial fisheries into one of three categories based on the level of incidental serious injury and mortality of marine mammals that occurs in each fishery (16 U.S.C. 1387(c)(1)). The categorization of a fishery in the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements.

The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized in the response to comment 1 in the preamble below.

This final rule includes two tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the fisheries in the Pacific Ocean (including Alaska). Table 2 lists all of the fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean.

Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization from NMFS in order to lawfully incidentally take a marine mammal in a commercial fishery. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization.

Fishers must register with the Marine Mammal Authorization Program (MMAP) by contacting the relevant NMFS Regional Office (see ADDRESSES ) unless they participate in a fishery that has an integrated registration program (described below). Upon receipt of a completed registration, NMFS will issue vessel or gear owners physical evidence of a current and valid registration that must be displayed or in the possession of the master of each vessel while fishing in accordance with section 118 of the MMPA (16 U.S.C. 1387(c)(3)(A)).

For some fisheries, NMFS has integrated the MMPA registration process with existing state and Federal fishery license, registration, or permit systems and related programs. Participants in these fisheries are automatically registered under the MMPA and are not required to submit registration or renewal materials or pay the $25 registration fee. Following is a list of integrated fisheries and a summary of the integration process for each Region. Fishers who operate in an integrated fishery and have not received registration materials should contact their NMFS Regional Office listed in the first paragraph of SUPPLEMENTARY INFORMATION.

The following fisheries have integrated registration programs under the MMPA:

1. all Alaska Category II fisheries;

2. all Washington and Oregon Category II fisheries;

3. Northeast Regional fisheries for which a state or Federal permit is required. Individuals fishing in fisheries for which no state or Federal permit is required must register with NMFS by contacting the Northeast Regional Office (see ADDRESSES ); and

4. all North Carolina, South Carolina, Georgia, and Florida Category II fisheries for which a state permit is required.

Regional Offices, except for the Northeast Region, annually send renewal packets to participants in Category I or II fisheries that have previously registered; however, it is the responsibility of the fisher to ensure that registration or renewal forms are completed and submitted to NMFS at least 30 days in advance of fishing. Individuals who have not received a renewal packet by January 1 or are registering for the first time should request a registration form from the appropriate Regional Office (see ADDRESSES ).

In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or fisher (in the case of non-vessel fisheries), participating in a Category I, II, or III fishery must report all incidental injuries or mortalities of marine mammals that occur during commercial fishing operations to NMFS. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the absence of any wound or other evidence of an injury, and must be reported. Instructions on how to submit reports can be found in 50 CFR 229.6.

Fishers participating in a Category I or II fishery are required to accommodate an observer aboard vessel(s) upon request. Observer requirements can be found in 50 CFR 229.7.

Fishers participating in a Category I or II fishery are required to comply with any applicable take reduction plans.

NMFS reviewed the marine mammal incidental serious injury and mortality information presented in the Stock Assessment Reports (SARs) for all observed fisheries to determine whether changes in fishery classification were warranted. NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports, and other information that is not included in the SARs.

NMFS SARs provide the best available information on both the level of serious injury and mortality of marine mammals that occurs incidental to commercial fisheries and the potential biological removal (PBR) levels for marine mammal stocks.

The information contained in the SARs is reviewed by regional scientific review groups (SRGs) representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and the Caribbean. The SRGs were created by the MMPA to review the science that goes into the stock assessment reports and to advise NMFS on population status and trends, stock structure, uncertainties in the science, research needs, and other issues.

The LOF for 2003 was based on information provided in the final SARs for 1996 (63 FR 60, January 2, 1998), the final SARs for 2001 (67 FR 10671, March 8, 2002), and the draft (67 FR 19417, April 19, 2002) and final (68 FR 17920, April 14, 2003) SARs for 2002.

NMFS received 16 comment letters on the proposed 2003 LOF (68 FR 1414, January 10, 2003) from environmental, commercial fishing, and federal and state agency interests. Issues outside the scope of the LOF are not responded to in this final rule. In particular, there were several comments regarding the SARs that will be handled through future SAR reviews and revisions where appropriate as SAR revisions undergo separate public review and comment. Typographic errors noted by commenters were corrected where appropriate.

Comment 1: Two commenters questioned the appropriateness of the current tier-based fishery classification system in terms of how it distinguishes Category I and II fisheries from Category III fisheries. Both commenters argued that whether a fishery exceeds PBR, and not the percentage of a stock's PBR incidentally killed or seriously injured in a fishery, should be the threshold NMFS uses to distinguish among different fishery classifications given that this is the standard established in the MMPA.

Response: NMFS disagrees that PBR should be the threshold used to separate fisheries that result in “frequent” and “occasional” incidental mortality and serious injury from fisheries that have “a remote likelihood of or no known incidental mortality or serious injury of marine mammals.” The rationale for this threshold was explained in the proposed rule (60 FR 31666, June 16, 1995) and final rule (60 FR 45086, August 30, 1995) for the management of unintentional taking of marine mammals incidental to commercial fishing operations under section 118 of the MMPA.

The current fishery classification system is based on a two-tiered, stock-specific approach that first addresses the total impacts of all fisheries on each marine mammal stock and then addresses the impacts of individual fisheries on each stock. Tier 1 considers the additive fishery mortality and serious injury for a particular stock, while Tier 2 considers fishery-specific mortality for a particular stock. This approach is based on the rate, in numbers of animals per year, of serious injuries and mortalities due to commercial fishing relative to a stock's PBR level. Under the Tier 1 analysis, if the total annual mortality and serious injury across all fisheries that interact with a stock is less than or equal to 10 percent of the PBR level of such a stock, then all fisheries interacting with this stock would be placed in Category III. Otherwise, these fisheries are subject to the next tier to determine their classification. Under the Tier 2 analysis, those fisheries in which annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the stock's PBR level are placed in Category I, while those fisheries in which annual mortality and serious injury is greater than 1 percent and less than 50 percent of the stock's PBR level are placed in Category II. Individual fisheries in which annual mortality and serious injury is less than or equal to 1 percent of the PBR level would be placed in Category III. The threshold between Tier 1 and Tier 2 was set at 10 percent of the PBR level based on recommendations that arose from a PBR Workshop held in La Jolla, California in June 1994. The Workshop Report indicated that if the total annual incidental serious injury and mortality level for a particular stock did not exceed 10 percent of the PBR level, the amount of time necessary for that population to achieve the optimum sustainable population level would only increase by 10 percent. Thus, 10 percent of the PBR level for a particular stock was equated to “biological insignificance.” This approach ensures that fisheries are categorized based on their impacts on stocks and allows NMFS to focus resources on those fisheries that have more than a negligible impact on marine mammals.

Ultimately, this approach is based on the fact that the MMPA established both a short-term and a long-term goal with respect to take reduction plans for reducing marine mammal mortality and serious injury incidental to commercial fishing operations. MMPA section 118(f)(2) provides: “The immediate goal of a take reduction plan for a strategic stock shall be to reduce, within 6 months of its implementation, the incidental mortality or serious injury of marine mammals incidentally taken in the course of commercial fishing operations to levels less than the potential biological removal established for that stock under section 117. The long-term goal of the plan shall be to reduce, within 5 years of its implementation, the incidental mortality or serious injury of marine mammals incidentally taken in the course of commercial fishing operations to insignificant levels approaching a zero mortality and serious injury rate, taking into account the economics of the fishery, the availability of existing technology, and existing State or regional fishery management plans.” NMFS established the tier-based fishery classification system with each goal in mind, and specifically, to ensure that fisheries progressively move toward the long-term goal of the MMPA.

Comment 2: One commenter requested that NMFS better describe the information used and the basis for estimating incidental mortality and serious injury of marine mammals, specifically for fisheries where the level of take is uncertain but considered significant.

Response: NMFS appreciates this comment and believes that it would be useful to provide a background document that better describes the types of information and methods used to estimate incidental mortality and serious injury of marine mammals and classify fisheries so that the public could better understand the rationale for each fishery classification. NMFS will consider the development of such a document in the future as time and resources permit. Generally, NMFS uses information on incidental mortality and serious injury provided in the annual SARs as the basis for fishery classifications. SARs contain a list of references that demonstrate the published information used and also describe how the data on incidental mortality and serious injury for a given stock were ascertained. NMFS refers the commenter to the SARs for marine mammal stocks in the U.S. Copies of the SARs are available on the NMFS Office of Protected Resource's Web site at: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html.

Comment 3: One commenter recommended that NMFS distinguish between commercial and non-commercial ( e.g. , recreational, subsistence, personal use) pot fisheries given that non-commercial fisheries may use practices and gear types that result in interactions with marine mammals.

Response: NMFS agrees that it is important to address all potential sources of fishery-related incidental mortality and serious injury of marine mammals. Furthermore, the agency understands that there are fisheries in which both commercial and non-commercial fisheries use the same gear and deploy it in the same manner and that both can result in incidental mortality and serious injury of marine mammals. While the MMPA does not currently provide NMFS with the authority to categorize or monitor non-commercial fisheries with respect to marine mammal interactions, NMFS is currently seeking this authority through the administration's proposal to reauthorize the MMPA. Nonetheless, where possible, NMFS has collected information on incidental mortality and serious injury of marine mammals resulting from non-commercial fisheries.

Comment 4: One commenter urged NMFS to ensure consistency in methods used from fishery to fishery to determine the true level of incidental mortality and/or serious injury of marine mammals.

Response: NMFS agrees with the commenter that applying its methods consistently in the determination of estimates of marine mammal mortality and serious injury incidental to fishing is essential. Through the workshops on Guidelines for Assessing Marine Mammal Stocks (GAMMS) held in 1994 and 1996 and the accompanying GAMMS reports, which are available on the NMFS Office of Protected Resources Web site at http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html, NMFS has developed guidelines to ensure consistency in the methods used and analysis of information to determine rates of marine mammal incidental mortality and serious injury resulting from fishing.

Comment 5: One commenter stated that NMFS should reclassify the Alaska BSAI groundfish longline/setline fishery as Category II given the level of killer whale takes in the fishery.

Response: According to the 2002 SARs, the BSAI groundfish longline/setline fishery incurred an average of 0.8 incidental mortalities/serious injuries of eastern North Pacific northern resident killer whales between 1995 and 1999, or 11 percent of the stock's PBR, which qualifies the fishery as Category II. However, the PBR for this stock is an underestimate because (1) the minimum abundance estimate is based on a count of known individuals rather than an estimate of population size and (2) the abundance estimate does not include resident animals identified during research cruises in the Gulf of Alaska and Bering Sea in 2001-2002. NMFS expects that the minimum population estimate will increase as a result of the recent research. Should the minimum population estimate increase slightly, the PBR level would also increase, and the estimated mortality level incidental to this fishery would not be sufficiently high to trigger its placement in Category II. Therefore, given that the PBR level is likely an underestimate and the incidental mortality and serious injury rate is so close to the threshold between Category II and Category III, NMFS will retain this fishery in Category III at this time.

Comment 6: One commenter stated that NMFS should reclassify the Hawaii swordfish, tuna, billfish, mahi mahi, wahoo, and oceanic sharks longline/setline fishery as Category I given that takes of false killer whales in the fishery exceed the marine mammal stock's PBR level. The commenter expressed concern that sea turtle regulations that went into effect have not helped reduce marine mammal takes. The commenter also expressed concern about the results of recent abundance surveys for false killer whales.

Response: In 2002, NMFS conducted an abundance survey to estimate abundance for marine mammals inhabiting waters off the Hawaiian islands, including areas in which the HI swordfish, tuna, billfish, mahi mahi, wahoo, and oceanic sharks longline/set line fishery operates. NMFS is currently analyzing the results of this survey and will include this information in the Draft Stock Assessment Reports (SARs) for 2004. NMFS will use the updated SARs to re-evaluate the classification of this fishery for the 2004 LOF.

Comment 7: One commenter stated that NMFS should divide the Alaska crustacean pot fishery into different components based on variation in geographic area, season, depth, gear type, and interaction with humpback whales to help NMFS determine which element of the fishery is having the greatest number of interactions with humpback whales.

Response: The LOF currently groups all Alaska pot fisheries into the “Alaska crustacean pot fishery.” However, this fishery does not exist as a single entity in terms of fishery operations or management. Rather, multiple crustacean fisheries target different species over distinct geographic areas and during separate seasons within the exclusive economic zone off Alaska and in state waters on an annual basis. These differences are recognized by NMFS, the North Pacific Fishery Management Council, and the State of Alaska, and are reflected in the numerous management specifications and restrictions captured in regulations promulgated under the Fishery Management Plan for the Bering Sea and Aleutian Islands King and Tanner Crabs and under Alaska state management plans for various crab and other crustacean fisheries, including shrimp, in state waters.

Additionally, Alaska crustacean fisheries are known to result in incidental mortality and serious injury of marine mammals in some areas ( e.g. , Southeast Alaska), but not in others ( e.g. , the Bering Sea). For purposes of future Lists of Fisheries, all crustacean fisheries in Alaska will be reviewed for correct delineations to accurately reflect existing fishery management regimes. Based on this review, NMFS will propose adjustments to this and other Alaska fisheries and will reevaluate data on marine mammal interactions in these fisheries accordingly for the 2004 LOF.

Comment 8: Two commenters felt that NMFS should reclassify the Alaska crustacean pot fishery as Category I or II based on its level of interactions with humpback whales. The commenters felt the inability to determine the specific fishery that entangled humpback whales should not make it impossible to classify the fishery as Category I or II and stated that design of the fishing gear should be sufficient.

Response: See response to Comment 7. The inability to determine the fishery in which the entanglements occurred does not prevent NMFS from classifying fisheries. NMFS regulations at 50 CFR 229.2 provide that the Assistant Administrator will, in the absence of reliable information, determine whether the incidental serious injury or mortality is “occasional” by evaluating other factors such as fishing techniques, gear used, seasons and areas fished, and the species and distribution of marine mammals in the area.

NMFS has not reclassified this fishery at this time because, in addition to more appropriately delineating the Alaska crustacean pot fishery and looking at marine mammal incidental mortality and serious injury rates within different sectors of the fishery, the agency is currently evaluating the stock structure of Central North Pacific humpback whales. We will take this comment into consideration as we further define stock structure of Central North Pacific humpback whales as well as consider separating and reclassifying portions of the Alaska crustacean pot fishery, if appropriate, for the 2004 LOF.

Comment 9: One commenter noted that the Central North Pacific stock of humpback whales should be added to the list of stocks that interact with the Alaska crustacean pot fishery given that NMFS mentioned in the text of the proposed rule that it is currently evaluating interactions between this stock and the fishery.

Response: NMFS will add the Central North Pacific stock of humpback whales to the list of stocks that interact with this fishery.

Comment 10: NMFS received comments supporting and opposing reclassification of the BSAI groundfish trawl fishery from Category III to Category II. One commenter in favor of the reclassification stated that it is more appropriate to reclassify the fishery as Category I given uncertainty concerning the level of interactions occurring between the fishery and North Pacific humpback whales. One commenter opposed to reclassifying the fishery questioned the quality of the data on which NMFS based this decision as well as the appropriateness of double-counting humpback whales between the Western and Central North Pacific stocks. This commenter also requested that NMFS divide the fishery into smaller components given the sheer size and diversity of the fishery.

Response: Where there is considerable uncertainty regarding to which stock a serious injury or mortality should be assigned, NMFS exercises a conservative approach of assigning the serious injury or mortality to both stocks. Clearly, if information were available regarding the location of take, genetics of the animal taken, or other information that would conclusively link mortality to a specific stock, NMFS would use it to assign the take to a specific stock. In the meantime, the agency will review the serious injuries and mortalities incidental to this fishery to determine whether any of the takes of concern can be conclusively linked to a specific stock.

As with the Alaska crustacean pot fishery, this comment highlights the fact that a single BSAI groundfish trawl fishery, as currently listed in the annual LOF, does not exist as one homogenous fishery in terms of fishery operations or management, but rather, as a diverse group of fisheries that use different trawl gear types and target different groundfish species over distinct geographic areas and during different seasons within the Bering Sea on an annual basis. These fisheries are currently managed as separate entities. For instance, the BSAI groundfish trawl fisheries are managed by gear type (including pelagic and non-pelagic trawl gear), by target species (including pollock, Pacific cod, Atka mackerel, and various flatfish and rockfish complexes), and by geographic regions within the BSAI. These differences are recognized by NMFS and the North Pacific Fishery Management Council and are reflected in the numerous management specifications and restrictions captured in regulations promulgated under the Fishery Management Plan for the Bering Sea and Aleutian Islands.

Additionally, sectors within these fisheries are recognized by statute (the American Fisheries Act) and regulatory management measures endorsed by the North Pacific Fishery Management Council and implemented by NMFS. Such sectors include the head and gut sector of each of the Pacific cod and Atka mackerel trawl fisheries, and the catcher/processor and inshore processor sectors, as well as their associated catcher vessel fleets. In some cases, these sectors also comprise legally defined co-operatives. Distinct management measures for these recognized fisheries include separate harvest restrictions by time and area based on target species, non-target groundfish bycatch, and prohibited species catch, as well as time and area closures based on marine mammal management measures. These distinct fisheries are further recognized in several Biological Opinions promulgated under Section 7 of the Endangered Species Act and in Environmental Impact Statements on the fisheries promulgated under the National Environmental Policy Act.

There is a likelihood that the incidental mortality and serious injury of marine mammals varies among BSAI groundfish trawl fisheries, based on gear type, time and area of operations, and target groundfish species. For this and all the above reasons, NMFS will not reclassify the fishery designated as the “BSAI groundfish trawl fishery” as Category II in the 2003 LOF. Rather, NMFS will propose fishery delineations within this fishery that accurately reflect the existing fishery management regimes for the BSAI groundfish trawl fisheries, and will analyze rates of marine mammal incidental mortality and serious injury within these new delineations accordingly, for the 2004 LOF.

A one year delay in this process will not adversely affect NMFS' ability to monitor marine mammal interactions with this fishery, because, although currently in Category III, these fisheries already carry a minimum of 30 percent observer coverage for vessels 60 ft. (18.3 m.) length overall (LOA) and over, and a vast majority of the participating vessels maintain 100-200 percent observer coverage by regulation for purposes of fisheries management.

Additionally, there are other Federal and state fisheries listed in the LOF that warrant similar review for similar reasons. Therefore, for purposes of the List of Fisheries, all Federal and state fisheries in Alaska will be reviewed for correct delineations to accurately reflect the existing fishery management regimes for the 2004 LOF.

Comment 11: One commenter stated that NMFS should reassess its methods to monitor the Alaska BSAI groundfish trawl fishery to ensure that observer coverage is appropriately distributed to monitor humpback whale takes.

Response: NMFS believes that the level and distribution of observer coverage in the BSAI groundfish trawl fishery is sufficient to monitor marine mammal interactions, including those involving humpback whales, and to identify issues of concern. Currently, there is a requirement for 100-percent observer coverage of vessels in this fishery that exceed 124 ft. (37.8 m.) LOA. In some cases, pursuant to the American Fisheries Act and Community Development Quota programs, 200-percent observer coverage is required on vessels that exceed this length. For vessels between 124 ft. (37.8 m.) and 60 ft. (18.3 m.) LOA, 30 percent observer coverage is required. Observers are not required on catcher vessels that deliver codends to catcher processors or motherships or on vessels less than 60 ft. (18.3 m.) LOA.

NMFS' Alaska Regional office is currently working with the North Pacific Fishery Management Council to review the issue of appropriate observer coverage in federal groundfish fisheries, as well as halibut fisheries. All vessel categories in these fisheries, including those not currently required to carry observers, will be reviewed over the next several years to assess appropriate observer coverage levels for a suite of management and scientific needs.

Comment 12: One commenter requested that NMFS clarify whether harbor seals or harbor porpoises should be removed from the list of species incidentally killed/seriously injured in the BSAI groundfish trawl fishery.

Response: NMFS clarifies that in the proposed rule for the 2003 List of Fisheries the agency proposed to remove Gulf of Alaska (GOA) harbor seals from the list of species interacting with the BSAI groundfish trawl fishery. Reevaluation of existing data on incidental mortality and serious injury, together with information on the BSAI groundfish trawl fishery, confirms that the range of the GOA harbor seal stock overlaps with the BSAI groundfish trawl fishery. Therefore, NMFS will retain this stock on the list of species interacting with the BSAI groundfish trawl fishery. The proposed deletion of the GOA harbor seal in this case was in error.

Comment 13: Some commenters stated that reclassifying the Alaska Cook Inlet salmon drift and set gillnet fisheries as Category III is premature given that a decrease in observed interactions is likely due to declining numbers of Cook Inlet beluga and that reclassification should be based on estimated takes, not observed takes. Commenters recommended the fisheries be kept in Category II with continued observer coverage.

Response: NMFS has determined that classification of the Alaska Cook Inlet salmon set gillnet fishery as a Category III fishery is appropriate based on the lack of any observed serious injuries or mortalities of marine mammals in that fishery after two consecutive years of observer coverage that occurred from 1999-2000. In contrast, analysis completed since the proposed rule was published indicates that one mortality of harbor porpoise in the Cook Inlet salmon drift gillnet fishery in 2000 extrapolates to a mortality estimate of 27 animals in 2000, or an average of 13.5 per year for 1999 and 2000. This level of incidental mortality and serious injury is adequate to retain the Cook Inlet salmon drift gillnet fishery in Category II. Therefore, NMFS will retain this fishery as Category II.

NMFS agrees that when classifying a fishery based on observer data, observed serious injuries and mortalities should be extrapolated to estimate the total level of incidental serious injury and mortality in that fishery. Observed levels of incidental mortality and serious injury were used previously only because the analysis for extrapolation had not yet been completed. The observed levels of serious injury and mortality indicated a Category II classification was appropriate, and the extrapolated estimate still supports this.

Comment 14: One commenter requested that NMFS clarify what it was proposing with respect to the AK Cook Inlet salmon drift gillnet fishery.

Response: NMFS clarifies that it initially proposed to reclassify the AK Cook Inlet salmon drift gillnet fishery as Category III. Upon further analysis of 2000 data, NMFS will retain this fishery as Category II in the 2003 LOF (see response to Comment 13 above).

Comment 15: One commenter expressed support for the addition of the CA yellowtail, barracuda, white seabass, and tuna drift gillnet fishery as a Category II fishery.

Response: NMFS agrees and has added the fishery to the LOF as a Category II fishery.

Comment 16: One commenter recommended that NMFS address this fishery under the Pacific Offshore Cetacean Take Reduction Plan (POCTRP).

Response: NMFS believes that it is premature at this point to include this fishery as part of the POCTRP because this fishery has little known interaction with marine mammals. In an effort to better assess this fishery's potential to entangle marine mammals and to determine the species of marine mammals, if any, that are incidentally killed or seriously injured in this fishery, NMFS began placing observers on a small number of vessels participating in this fishery beginning in summer 2002. NMFS will use the information collected through this observer program to re-evaluate the categorization of this fishery in the 2004 LOF and to reassess whether this fishery should be subject to the POCTRP.

Comment 17: Several commenters supported reclassification of the CA/OR thresher shark/swordfish drift gillnet fishery from Category I to Category II.

Response: NMFS agrees and has reclassified the fishery from Category I to Category II.

Comment 18: One commenter stated that reclassification of the CA/OR thresher shark/swordfish drift gillnet fishery from Category I to II is premature given the level of sperm whale takes that occur in the fishery.

Response: NMFS does not believe that it is premature to reclassify the CA/OR thresher shark/swordfish drift gillnet fishery from Category I to Category II. This fishery fits the criteria that were developed for defining a Category II fishery. These fishery classification criteria, which were subject to review and comment in 1995, consist of a two-tiered, stock specific approach that first addresses the total impact of all fisheries on each marine mammal stock and then addresses the impact of individual fisheries on each stock. Thus, a fishery that interacts with several marine mammal stocks can still be classified as a Category II fishery if the annual mortality and serious injury of each of these marine mammal stocks is greater than 1 percent but less than 50 percent of each stock's PBR level. This is the case for the CA/OR thresher shark/swordfish drift gillnet fishery, thus NMFS is reclassifying this fishery as a Category II fishery.

Comment 19: One commenter supported reclassification of this fishery from Category I to II, but urged NMFS to maintain observer coverage in the fishery given the history of marine mammal takes in the fishery, the uncertainty of the long-term efficacy of pingers, and the levels of sperm whale takes in the fishery.

Response: NMFS will maintain observer coverage in this fishery to continue to monitor the effectiveness of the POCTRP and to ensure the appropriate categorization of the fishery.

Comment 20: One commenter noted that reclassification of the Mid-Atlantic coastal gillnet fishery as a Category I fishery is appropriate based on the level of incidental mortality and serious injury of Western North Atlantic coastal bottlenose dolphins in this fishery.

Response: NMFS agrees and has reclassified the fishery as Category I as proposed.

Comment 21: One commenter supported reclassification of the Gulf of Mexico gillnet fishery as Category II but said that, based on documented interactions with bottlenose dolphin stocks, the complexity of the stocks themselves, and the current scant level of monitoring in this fishery, a Category I classification would be more appropriate for this fishery.

Response: NMFS believes that data uncertainties regarding marine mammal interactions in this fishery and bottlenose dolphin stock structure, as well as the declining level of gillnet fishing activity in the Gulf of Mexico, support a Category II classification. If new information indicates that take rates relative to population status are higher than currently estimated such that a Category I classification is warranted, NMFS would propose such a reclassification in the future.

Comment 22: One commenter stated that NMFS should separate the Gulf of Mexico king and Spanish mackerel gillnet fisheries from the rest of the Gulf of Mexico gillnet fisheries and retain mackerel gillnet fisheries in Category III because of the lack of evidence of bottlenose dolphin takes in this portion of the fishery.

Response: Because NMFS relies primarily on strandings data for information about incidental marine mammal mortality and serious injury in the Gulf of Mexico, it is often difficult to attribute stranded marine mammals that show clear signs of gear interaction to a specific portion of a fishery. Nonetheless, NMFS' observer data from the Mid-Atlantic and South Atlantic show that mackerel gillnet fisheries have resulted in entanglement of bottlenose dolphins. In addition, the Atlantic SRG recommended that NMFS use its discretion under 50 CFR 229.2, which enables the Assistant Administrator to evaluate factors including, but not limited to fishing techniques and gear used, to classify all gillnet fisheries as at least Category II given that observer data clearly show incidental mortality and serious injury of marine mammals where gillnet fisheries occur.

Comment 23: One commenter stated that the Gulf of Mexico menhaden purse seine fishery should be listed as Category I based on information in the 1999 SAR, which indicates that fishery-related mortality and serious injury from this fishery exceeds PBR for the Gulf of Mexico bay, sound, and estuarine stocks of bottlenose dolphins. The commenter recommended that NMFS institute an observer program to obtain better information on this fishery.

Response: With regard to reclassifying this fishery as Category I, NMFS responded to this request in the 1999 LOF (see Comment/Response 14 in 64 FR 9067, February 24, 1999), and the same rationale applies. In summary, because of the lack of certainty regarding stock structure of the Gulf of Mexico bay, sound and estuarine bottlenose dolphins and the lack of observer coverage to accurately estimate fishery-related mortalities in this fishery, NMFS is retaining this fishery as Category II at this time. NMFS is currently investigating stock structure of Gulf of Mexico bottlenose dolphins in order to better define these stocks in the future.

Also, as stated when this fishery was originally elevated to Category II status, this fishery coincides principally with the coastal stocks of bottlenose dolphins in the Gulf of Mexico. The original change in classification was based on PBR for Gulf of Mexico coastal stocks. NMFS agrees that more current observer data are necessary.

Comment 24: One commenter supported inclusion of various Category III trap/pot fisheries into a new generic trap/pot listing in Category II.

Response: NMFS agrees and the generic Category II “Atlantic mixed species trap/pot” fishery has been established.

Comment 25: One commenter stated that the newly-defined Atlantic mixed species trap/pot fishery should be addressed under the Atlantic Large Whale Take Reduction Plan (ALWTRP) and Harbor Porpoise Take Reduction Plan (HPTRP).

Response: NMFS added representatives of this fishery complex to the Atlantic Large Whale Take Reduction Team (ALWTRT) and raised this issue at the ALWTRT's meeting in April 2003. NMFS will be working with the ALWTRT to incorporate measures to address this fishery in the ALWTRP. With regard to the HPTRP, NMFS is not aware of any harbor porpoise interactions with trap/pot gear in recent years. The harbor porpoise (Gulf of Maine/Bay of Fundy stock) was listed as interacting with the fish trap/pot fisheries in the Northeast in the original LOF in 1989. However, NMFS is reevaluating that information during a review of older entanglement data and plans to update the list of interacting stocks in a future LOF based on a review of all available data. Based on data currently available, it is not appropriate to address trap/pot fisheries under the HPTRP at this time, although gillnet fisheries used to obtain bait for these fisheries may already be regulated under the HPTRP.

Comment 26: One commenter stated that NMFS provided no scientific justification for classifying the Atlantic mixed species trap/pot fishery as Category II other than “by analogy.” The commenter objected to the imposition of registration costs that this classification would have on fishermen.

Response: Classification by analogy refers to the exercise of administrative discretion using relevant information such as fishing techniques, gears used, and stranding data, as described in the definition of a Category II fishery included in the final rule for the Section 118 implementing regulations (60 FR 45086, August 30, 1995, codified at 50 CFR 229.2) to determine whether a fishery results in “occasional” incidental mortality and serious injury of marine mammals.

The generic Northeast trap/pot fishery is already a Category II fishery pursuant to the 2001 LOF. For the 2003 LOF, NMFS has combined the generic Category III trap/pot fisheries in the Mid-Atlantic and Southeast with the generic Category II Northeast trap/pot fishery and redefined the fishery as the Atlantic mixed species trap/pot fishery. The new Atlantic mixed species trap/pot fishery is appropriately classified as Category II based on known entanglement of cetaceans and pinnipeds in this gear type. The presence of trap/pot gear in areas and at times when these marine mammals are present is likely to result in occasional incidental mortality or serious injury of marine mammals.

Since implementation of the 2002 LOF, NMFS automatically registers all Atlantic fishers with current state or federal fishing permits for fisheries designated as Category I or II and has waived the registration fee for the Marine Mammal Authorization Permit. Therefore, there will be no economic burden associated with registration under the MMPA.

Comment 27: One commenter concurred with classifying Atlantic pot fisheries at least at the Category II level given that they include gears already known to incidentally take marine mammals. However, the commenter thought that Category I would be a more appropriate classification and said a lower Category is not warranted simply because the operation of Southeast trap/pot fisheries does not overlap with right whale distribution. The commenter said these fisheries entangle other species such as bottlenose dolphins and other small cetaceans and noted that this information was not provided in the LOF when justifying categorization of the fishery.

Response: Although the definition of a Category II fishery in 50 CFR 229.2 provides that NMFS may use a number of factors in determining whether incidental serious injury or mortality is “occasional,” the definition of a Category I fishery does not provide the same level of flexibility for administrative discretion in determining what is “frequent.” If new information becomes available suggesting that takes in the Atlantic mixed species trap/pot fishery results in a rate of incidental mortality or serious injury of 50 percent or greater of the PBR for a marine mammal stock, then it would be appropriate to consider elevation of those fisheries to Category I.

Data indicate that interactions between bottlenose dolphins and the spiny lobster and stone crab trap/pot fisheries in the Atlantic, Caribbean and Gulf of Mexico are rare. Additionally, NMFS has no data regarding interactions between bottlenose dolphins and other trap/pot fisheries in the Southeast or Mid-Atlantic. NMFS will continue to define and evaluate other trap/pot fisheries in the Atlantic, Caribbean, and Gulf of Mexico and consider whether to reclassify them based on incidental mortality and serious injury of marine mammals in the 2004 LOF.

Comment 28: One commenter stated that NMFS should update the lists of species incidentally killed or seriously injured in the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery based on data presented in the 2002 Stock Assessment Reports. The commenter specifically identified species that NMFS should review.

Response: Unlike the SARs, which focus on the most recent 5 years of data, the list of marine mammals incidentally killed or seriously injured in a given fishery in the LOF often includes all species or stocks known to experience mortality or serious injury in a given fishery and may also include species for which there are anecdotal or historical, but not necessarily current, records of interaction based on a variety of data types ( e.g. , logbooks, strandings data, observer data). This helps the agency better understand the nature and types of interactions that occur in each fishery. NMFS plans to evaluate how best to present historical versus current data on marine mammal-fishery interactions in future Lists of Fisheries and will make any necessary changes in the LOF tables once that evaluation is complete.

Comment 29: One commenter suggested that NMFS subdivide the pelagic longline fishery into three regional fisheries in the LOF to reflect variations in geographic region, target species, vessel size, area-specific regulations, and time of year. The commenter noted specifically that the Atlantic portion of the longline fishery should be divided into northern and southern components with a boundary line at Cape Hatteras, North Carolina.

Response: NMFS appreciates the information provided by the commenter on potential subdivisions of the pelagic longline fishery and notes that we addressed similar comments in the final LOF for 1997 (see Comment/Response 37 in 62 FR 33, January 2, 1997), the final LOF for 1999 (see Comment/Response 18 in 64 FR 9067, February 24, 1999), and the final LOF for 2001 (see Comment/Response 16 in 66 FR 42784, August 15, 2001). At this time, however, NMFS is not aware of any information to suggest that there is differential marine mammal incidental mortality/serious injury in the pelagic longline fishery along geographic lines. Therefore, subdivision of this fishery as the commenter suggests is not appropriate at this time. While subdivision of this fishery along ecosystem lines similar to that done for inshore fisheries may be considered in the future, the analysis to support such a division is not currently available.

NMFS will, whenever possible, define fisheries the way they are defined in federal, regional, or state fishery management programs. This will (1) help NMFS fulfill its statutory obligations by coordinating registration under the MMPA with existing fishery management programs, (2) provide a “common name” for a fishery that can be used by NMFS, fishers, and state and regional fishery managers, and (3) allow NMFS to more easily collect information on fishery statistics, such as the number of participants, target species, length of fishing season, etc.

Comment 30: One commenter requested that NMFS add the Western North Atlantic (WNA) pygmy sperm whale to the list of marine mammals incidentally killed or seriously injured in the pelagic longline fishery based on the report of a serious injury of a pygmy sperm whale in this fishery in 2000.

Response: NMFS agrees and will add the WNA pygmy sperm whale to the list of marine mammals incidentally taken in this fishery.

Comment 31: One commenter stated that NMFS should reclassify the Gulf of Mexico blue crab trap/pot fishery at least as Category II and expressed concern that the agency did not provide adequate justification for not reclassifying the fishery.

Response: NMFS has decided not to reclassify this fishery in the 2003 LOF because the bottlenose dolphin stock structure in the Gulf of Mexico is not well defined at this time. Additionally, the available data on strandings with signs of crab trap/pot interaction are relatively few in number. Therefore, NMFS believes it is more appropriate to reevaluate this fishery relative to PBRs for bay, sound, and estuarine stocks of bottlenose dolphins when the Gulf of Mexico bottlenose dolphin stock structure is better understood. NMFS is currently investigating the stock structure of bottlenose dolphins in the Gulf of Mexico to better define these stocks in the future.

In the coming year, NMFS will work with the Gulf States Marine Fisheries Commission (GSMFC) and the Sea Grant program to better monitor bottlenose dolphin takes in this fishery, to educate blue crab fishermen about marine mammal interaction issues and ways to reduce takes in the fishery, and to continue work on the derelict trap/pot removal program, believed to be an important source of marine mammal mortality and serious injury in the fishery. The NMFS Southeast Regional Office will monitor the progress in this fishery closely and reevaluate it for reclassification in the future.

Comment 32: Some commenters objected to future consideration of the Gulf of Mexico blue crab trap/pot fishery as Category II given the lack of solid data to support the fishery's reclassification. The commenters expressed particular concern about the lack of scientific rigor of the strandings data used in this analysis.

Response: See Comment/Response 31 above. NMFS has decided not to reclassify this fishery at this time and instead will work with the GSMFC and Sea Grant program to educate crabbers about ways to reduce interactions with marine mammals in this fishery.

NMFS believes that strandings data are an important source of information on marine mammal mortality and serious injury in the Gulf of Mexico blue crab trap/pot fishery and has developed a proposal to strengthen strandings programs throughout the Southeast region, including the Gulf of Mexico, to improve data quality in the coming years. NMFS” proposal includes recommendations aimed at ensuring adequate geographic coverage of strandings programs, improving accuracy of strandings data, increasing reporting frequency and response time, facilitating communication between strandings responders and individuals reporting marine mammal takes, ensuring a centralized repository, involving fishermen in gear interaction determinations, and providing guidance to enforcement agents about their role in stranding response. NMFS will reevaluate this fishery in the 2004 LOF.

With the following exceptions, the placement and definitions of U.S. commercial fisheries are identical to those provided in the LOF for 2002. The following summarizes changes in fishery classification, fishery name, fisheries listed on the LOF, number of participants in a particular fishery, and the species and/or stocks that are incidentally killed or seriously injured in a particular fishery, that are revised in the 2003 LOF.

The “California/Oregon Thresher Shark/Swordfish Drift Gillnet Fishery (≥ 14 in. mesh)” is moved from Category I to Category II.

The “AK Cook Inlet Salmon Set Gillnet Fishery” is moved from Category II to Category III.

The “CA Yellowtail, Barracuda, White Seabass, and Tuna Drift Gillnet Fishery (mesh size > 3.5 inches and < 14 inches)” is added to the LOF as a Category II fishery.

The “CA Shark/Bonito Longline/Set Line Fishery” is removed from the LOF.

The “CA Angel Shark/Halibut and Other Species Large Mesh (>3.5 in. mesh) Set Gillnet Fishery” is renamed the “CA Angel Shark/Halibut and Other Species Set Gillnet Fishery (>3.5 in. mesh).”

The “CA Longline Fishery” is renamed the “CA Pelagic Longline Fishery.”

The “CA/OR Thresher Shark/Swordfish Drift Gillnet Fishery” is renamed the “CA/OR thresher shark/swordfish drift gillnet fishery (≥14 in. mesh).”

The estimated number of participants in the “AK Bering Sea Aleutian Islands Groundfish Longline/Set Line Fishery” is updated to 148.

The estimated number of participants in the “AK Gulf of Alaska Groundfish Longline/Set Line Fishery'is updated to 1030.

The estimated number of participants in the “AK Bering Sea Aleutian Islands Groundfish Trawl Fishery” is updated to 157.

The estimated number of participants in the “AK Gulf of Alaska Groundfish Trawl Fishery” is updated to 145.

The estimated number of participants in the “AK Bering Sea, Gulf of Alaska Finfish Pot Fishery” is updated to 314.

The estimated number of participants in the “CA Pelagic Longline Fishery” is updated to 30.

The estimated number of participants in the “CA/OR Thresher Shark/Swordfish Drift Gillnet Fishery (≥14 in. mesh)” is updated to 113.

The estimated number of participants in the “WA Puget Sound Region Salmon Drift Gillnet Fishery” is updated to 225.

The Northeast Pacific stock of fin whales is added to the list of marine mammal species and stocks incidentally injured or killed in the “AK Bering Sea and Aleutian Islands groundfish trawl fishery” because this stock is known to interact with this fishery and was inadvertently omitted from the list of marine mammal species in the past.

The Central North Pacific stock of humpback whales is added to the list of marine mammal species and stocks incidentally injured or killed in the “Alaska crustacean pot fishery” because of evidence that this stock has interacted with components of this fishery.

The CA coastal stock of bottlenose dolphins is removed from the list of marine mammal species and stocks incidentally injured or killed in the “CA herring purse seine fishery.”

The CA/OR/WA stock of fin whales and the eastern North Pacific stock of gray whales are both added to the list of marine mammal species and stocks incidentally injured or killed in the “CA/OR thresher shark/swordfish drift gillnet fishery (≥14 in. mesh).”

The “Gulf of Mexico Gillnet Fishery” is moved from Category III to Category II.

The “Mid-Atlantic Coastal Gillnet Fishery” is moved from Category II to Category I.

The “Mid-Atlantic Mixed Species Trap/Pot Fishery” and the “U.S. Mid-Atlantic and Southeast U.S. Atlantic Black Seabass Trap/Pot Fishery,” formerly Category III fisheries, are combined with the “Northeast Trap/Pot Fishery,” currently Category II, and any other trap/pot fishery gear in the Atlantic that is not included in other trap/pot fisheries specifically identified in the LOF, into the “Atlantic Mixed Species Trap/Pot Fishery.” This newly-defined fishery is classified as Category II.

See discussion of the “Atlantic Mixed Species Trap/Pot Fishery” above.

The “Southeastern U.S. Atlantic, Gulf of Mexico, U.S. Mid-Atlantic Pelagic Hook-and-Line/Harpoon Fishery” is renamed the “Southeastern U.S. Atlantic, Gulf of Mexico, and Caribbean Pelagic Hook-and-Line/Harpoon Fishery.”

The estimated number of participants in the “Southeastern U.S. Atlantic Shark Gillnet Fishery” is updated to 6.

The estimated number of participants in the “U.S. Atlantic Tuna Purse Seine Fishery” is updated to 5.

The estimated number of participants in the “Southeastern U.S. Atlantic, Gulf of Mexico Shark Bottom Longline/Hook-and-Line Fishery” is updated to <125.

The Western North Atlantic pygmy sperm whale is added to the list of marine mammal species and stocks incidentally injured or killed in the “Atlantic Ocean, Caribbean, Gulf of Mexico Large Pelagics Longline Fishery” given the report of a serious injury of this stock in this fishery.

The following two tables list U.S. commercial fisheries according to their assigned categories under section 118 of the MMPA. The estimated number of vessels/participants is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants in a fishery, the number from the 1996 LOF is used.

The tables also list the marine mammal species and stocks that are incidentally killed or injured in each fishery based on observer data, logbook data, stranding reports, and fisher reports. This list includes all species or stocks known to experience injury or mortality in a given fishery, but also includes species or stocks for which there are anecdotal or historical, but not necessarily current, records of interaction. Additionally, species identified by logbook entries may not be verified. Not all species or stocks identified are the reason for a fishery's placement in a given category. There are a few fisheries that are in Category II that have no recently documented interactions with marine mammals. Justifications for placement of these fisheries are by analogy to other gear types that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995), and according to factors listed in the definition of “Category II fishery” in 50 CFR 229.2.

Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. No comments were received regarding the economic impact of this rule. As a result, no regulatory flexibility analysis was prepared.

This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act. The collection of information for the registration of fishers under the MMPA has been approved by the Office of Management and Budget (OMB) under OMB control number 0648-0293 (0.25 hours per report for new registrants and 0.15 hours per report for renewals). The requirement for reporting marine mammal injuries or moralities has been approved by OMB under OMB control number 0648-0292 (0.15 hours per report). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these reporting burden estimates or any other aspect of the collection of information, including suggestions for reducing burden, to NMFS and OMB (see Addresses ).

Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

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

An environmental assessment (EA) was prepared under the National Environmental Policy Act (NEPA) for regulations to implement section 118 of the MMPA (1995 EA). The 1995 EA concluded that implementation of those regulations would not have a significant impact on the human environment. This final rule would not make any significant change in the management of reclassified fisheries, and therefore, this final rule is not expected to change the analysis or conclusion of the 1995 EA. If NMFS takes a management action, for example, through the development of a Take Reduction Plan (TRP), NMFS will first prepare an environmental document as required under NEPA specific to that action.

This final rule will not affect species listed as threatened or endangered under the Endangered Species Act (ESA) or their associated critical habitat. The impacts of numerous fisheries have been analyzed in various biological opinions, and this final rule will not affect the conclusions of those opinions. The classification of fisheries on the LOF is not considered to be a management action that would adversely affect threatened or endangered species. If NMFS takes a management action, for example, through the development of a TRP, NMFS would conduct consultation under section 7 of the ESA for that action.

This final rule will have no adverse impacts on marine mammals and may have a positive impact on marine mammals by improving knowledge of marine mammals and the fisheries interacting with marine mammals through information collected from observer programs or take reduction teams.

This final rule will not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act.