The regulations in 9 CFR parts 93, 94, 95, and 96 (referred to below as the regulations) govern the importation of certain animals, birds, poultry, meat, other animal products and byproducts, hay, and straw into the United States in order to prevent the introduction of various animal diseases, including bovine spongiform encephalopathy (BSE).

BSE is a neurological disease of bovine animals and other ruminants and is not known to exist in the United States.

It appears that BSE is primarily spread through the use of ruminant feed containing protein and other products from ruminants infected with BSE. Therefore, BSE could become established in the United States if materials carrying the BSE agent, such as certain meat, animal products, and animal byproducts from ruminants that have been in regions in which BSE exists or in which there is an undue risk of introducing BSE into the United States, are imported into the United States and are fed to ruminants in the United States. BSE could also become established in the United States if ruminants from regions in which BSE exists, or in which there is an undue risk of introducing BSE into the United States, are imported into the United States.

Sections 94.18, 95.4, and 96.2 of the regulations prohibit or restrict the importation of certain meat and other animal products and byproducts from ruminants that have been in regions in which BSE exists or in which there is an undue risk of introducing BSE into the United States. In § 94.18, paragraph (a)(1) lists the regions in which BSE exists. Paragraph (a)(2) lists the regions that present an undue risk of introducing BSE into the United States because their import requirements are less restrictive than those that would be acceptable for import into the United States and/or because the regions have inadequate surveillance. In § 94.18, paragraph (b) prohibits the importation of fresh, frozen, and chilled meat, meat products, and most other edible products of ruminants that have been in any region listed in paragraphs (a)(1) or (a)(2). Paragraph (c) restricts the importation of gelatin derived from ruminants that have been in any of these regions. Section 95.4 prohibits or restricts the importation of certain byproducts from ruminants that have been in any of those regions, and § 96.2 prohibits the importation of casings, except stomach casings, from ruminants that have been in any of these regions. Additionally, the regulations in 9 CFR part 93 pertaining to the importation of live animals provide that APHIS may deny the importation of ruminants from regions where a communicable disease such as BSE exists and from regions that present risks of introducing communicable diseases into the United States (see § 93.404(a)(3)).

Currently, Germany, Italy, and Spain are among the regions listed in § 94.18(a)(2), which are regions that present an undue risk of introducing BSE into the United States. However, on November 26, 2000, a case of BSE was confirmed in a native-born animal in Germany; on January 12, 2001, a case of BSE was confirmed in a native-born animal in Italy; and on November 22, 2000, a case of BSE was confirmed in a native-born animal in Spain. Therefore, in order to update the disease status of these three regions regarding BSE, we are amending the regulations by removing Germany, Italy, and Spain from the list in § 94.18(a)(2) of regions that present an undue risk of introducing BSE into the United States and adding Germany, Italy, and Spain to the list in § 94.18(a)(1) of regions where BSE is known to exist. The effect of this action is a continued restriction on the importation of ruminants that have been in Germany, Italy, or Spain and on the importation of meat, meat products, and certain other products and byproducts of ruminants that have been in Germany, Italy, and Spain.

This rulemaking is necessary on an emergency basis to update the disease status of Germany, Italy, and Spain regarding BSE. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

We will consider comments that are received within 60 days of publication of this rule in the Federal Register . After the comment period closes, we will publish another document in the Federal Register that will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review process required under Executive Order 12866.

We are amending the regulations by adding Germany, Italy, and Spain to the list of regions where BSE exists because the disease has been detected in native-born animals in those regions. Germany, Italy, and Spain are currently listed among the regions that present an undue risk of introducing BSE into the United States. Regardless of which of the two lists a region is on, the same restrictions apply to the importation of ruminants and meat, meat products, and most other products and byproducts of ruminants that have been in the region. Therefore, this action, which is necessary in order to update the disease status of Germany, Italy, and Spain regarding BSE, will not result in any change in the restrictions that apply to the importation of ruminants and meat, meat products, and certain other products and byproducts of ruminants that have been in Germany, Italy, or Spain.

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

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

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

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

Interested persons are invited to submit such written data, views, or arguments as they may desire. Communications should identify the rules docket or special conditions number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. These special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to these special conditions must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. NM190.” The postcard will be date stamped and returned to the commenter.

On November 28, 2000, Duncan Aviation Inc., P.O. Box 81887, Lincoln, NE 68501, applied for a supplemental type certificate (STC) to modify Bombardier Inc. Model CL-600-1A11 airplane listed on Type Certificate A21EA. The Model CL-600-1A11 is a twin engine transport airplane. It has an executive interior and is capable of carrying two flight crewmembers and up to nineteen passengers. This model is powered by two aft mounted AVCO Lycoming ALF-502L or ALF-502L-2 engines. The modification incorporates the installation of dual Rockwell Collins Attitude Heading Reference Systems (AHRS) as well as a new Electronic Flight Information System (EFIS) that displays critical flight parameters to the flightcrew. These systems can be susceptible to disruption to command and/or response signals as a result of electrical and magnetic interference. This disruption of signals could result in loss of all critical flight displays and annunciations or present misleading information to the pilot.

Under the provisions of 14 CFR 21.101, Duncan Aviation must show that the Bombardier Inc. Model CL-600-1A11 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A21EA, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for the modified Bombardier Inc. Model CL-600-1A11 airplane includes 14 CFR part 25, dated February 1, 1965, including Amendments 25-1 through 25-37, as listed in the Type Certificate Data Sheet (TCDS) A21EA.

If the Administrator finds that the applicable airworthiness regulations (i.e., part 25, as amended) do not contain adequate or appropriate safety standards for the Bombardier Inc. Model CL-600-1A11 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Model CL-600-1A11 airplane must comply with the part 25 fuel vent and exhaust emission requirements of 14 CFR part 34 and the part 25 noise certification requirements of 14 CFR part 36.

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

Special conditions are initially applicable to the model for which they are issued. Should Duncan Aviation, Inc. apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101(a)(1).

The Bombardier Inc. Model CL-600-1A11 airplane will incorporate the following novel or unusual design features: Dual Attitude and Heading Reference Systems (AHRS) as well as a new Electronic Flight Information System (EFIS) that displays critical flight parameters to the flightcrew. These systems can be susceptible to disruption to command and/or response signals as a result of electrical and magnetic interference. This disruption of signals could result in loss of all critical flight displays and annunciations or present misleading information to the pilot.

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

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Bombardier Inc. Model CL-600-1A11 as modified by Duncan Aviation Inc. These special conditions require that new avionic/electronic and electrical systems, such as the AHRS and EFIS that perform critical functions, be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

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

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

1. A minimum threat of 100 volts rms per meter electric field strength from 10 kHz to 18 GHz.

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

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

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

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

As discussed above, these special conditions are applicable to Bombardier Inc. Model CL-600-1A11 airplane modified by Duncan Aviation, Inc. Should Duncan apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

This action affects only certain novel or unusual design features on Bombardier Inc. Model CL-600-1A11 airplane modified by Duncan Aviation, Inc. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Bombardier Inc. Model CL-600-1A11 airplanes modified by Duncan.

1. Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF). Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high intensity radiated fields.

2. For the purpose of these special conditions, the following definition applies: Critical Functions: Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.

The FAA has determined that good cause exists for making these special conditions effective upon issuance; however, interested persons are invited to submit such written data, views, or arguments as they may desire. Communications should identify the Docket or Special Conditions number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. These special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to these special conditions must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. NM191.” The postcard will be date stamped and returned to the commenter.

On February 21, 2001, Duncan Aviation, Inc., P.O. Box 81887, Lincoln, Nebraska, applied for a supplemental type certificate (STC) to modify the Lockheed-Georgia Model 1329-25, and Models 1329-23A, -23D and -23E airplanes modified by STC SA2326SW, listed on Type Certificate 2A15. These airplanes are four engine transport category airplanes of the executive type, capable of carrying two flight crewmembers and ten passengers. All models are powered by four aft mount AiResearch TFD-731 engines. In the Model 1329-23A, -23D, and -23E airplanes modified by STC SA232SW, the Pratt & Whitney turbojet engines have been replaced with the AiResearch TFE-731 engines. The modification incorporates the installation of dual Rockwell Collins Attitude Heading Reference Systems (ARHS) that provide input to both pilot and copilot flight instruments displaying critical flight parameters (attitude and heading) to the flightcrew. The AHRS can be susceptible to disruption to both command/response signals as a result of electrical and magnetic interference. This disruption of signals could result in loss of all critical flight displays and annunciations or present misleading information to the pilot.

Under the provisions of 14 CFR 21.101, Duncan Aviation, Inc., must show that the Lockheed-Georgia Model 1329-25, and Models 1329-23A, -23D and -23E airplanes modified by STC SA2326SW, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. 2A15, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for the modified Lockheed-Georgia Model 1329-25, and Models 1329-23A, -23D and -23E airplanes modified by STC SA2326SW, includes CAR 4b, dated December 31, 1953, as amended by Amendments 4b-1 through 4b-9 as listed in the Type Certificate Data Sheet (TCDS) 2A15.

If the Administrator finds that the applicable airworthiness regulations (i.e., CAR 4b, as amended) do not contain adequate or appropriate safety standards for the Lockheed-Georgia Model 1329-25, and Models 1329-23A, -23D and -23E airplanes modified by STC SA2326SW, because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, these Lockheed-Georgia Model 1329-25; and Models 1329-23A, -23D, and -23E airplanes must comply with the fuel vent and exhaust emission requirements of part 34 and the noise certification requirements of part 36.

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

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

As noted earlier, the modified Lockheed-Georgia Model 1329-25, and Models 1329-23A, -23D and -23E airplanes modified by STC SA2326SW, will incorporate dual Attitude and Heading Reference Systems (AHRS) that provide input to both pilot and copilot flight instruments displaying critical flight parameters (attitude and heading) to the flightcrew. The AHRS can be susceptible to disruption to both command/response signals as a result of electrical and magnetic interference. This disruption of signals could result in loss of all critical flight displays and annunciations or present misleading information to the pilot.

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

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Lockheed-Georgia Model 1329-25; and Models 1329-23A, -23D and -23E. These special conditions require that new avionic/electronic and electrical systems, such as the AHRS, that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

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

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

1. A minimum threat of 100 volts rms per meter electric field strength from 10 KHz to 18 GHz.

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

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

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

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

As discussed above, these special conditions are applicable to Lockheed-Georgia Model 1329-25, and Models 1329-23A, -23D and —23E airplanes modified by STC SA2326SW, with the modifications installed by Duncan Aviation. Should Duncan Aviation apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

This action affects only certain novel or unusual design features on Lockheed-Georgia Model 1329-25, and Models 1329-23A, -23D and -23E airplanes modified by STC SA2326SW, that are further modified by Duncan Aviation. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Lockheed-Georgia Model 1329-25, and Models 1329-23A, -23D and -23E airplanes modified by STC SA2326SW, that are further modified by Duncan Aviation, Inc.

1. Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF). Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high intensity radiated fields.

2. For the purpose of these special conditions, the following definition applies:

Critical Functions: Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by revising AD 94-14-20, Amendment 39-8969 (59 FR 41238, August 11, 1994), which applies to Sikorsky Model S-76A helicopters, was published in the Federal Register on January 30, 2001 (66 FR 8184). The action proposed to require a one-time inspection of the blade centering plug for disbonding and the addition of a retaining pad on the pitch change shaft between the output tail rotor gearbox flange and the inboard tail rotor spar. The action also clarified that 500-hour TIS repetitive inspections, which could cause inadvertent damage, are not required and proposed to incorporate by reference a revised ASB that does not include the 500-hour TIS repetitive inspections.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed except for some editorial changes that are made in paragraphs (a) and (e). These changes were made to better identify the service information that is incorporated by reference. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

The FAA estimates that this AD will affect 150 helicopters of U.S. registry. This revised AD will not impose any additional burden or costs.

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.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

The Direction Generale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Airbus Model A330 and A340 series airplanes. The DGAC advises that an operator of a Model A340 series airplane experienced an engine shutdown less than a minute after engine startup. Subsequent inspection of the low-pressure fuel valve drive of the engine revealed that a thrust washer was missing from the drive assembly. The reason for the missing washer is unknown. The absence of the washer allowed excessive movement of the spindle in the drive assembly, which caused the spindle to disconnect from the actuator. Because the actuator was not connected to the spindle of the drive assembly, the fuel valve could not be operated. Failure of the low-pressure fuel valve, if not corrected, could result in the inability to shut off the fuel supply to the engine and exacerbate an engine fire.

The subject low-pressure fuel valves are installed on certain Model A330 and A340 series airplanes. Therefore, those Model A330 series airplanes are also subject to the unsafe condition identified in this AD.

Failure of the cross-feed valves could result in the inability to cross-feed fuel when required only on Model A330 series airplanes flying under extended range twin-engine operations (ETOPS).

Airbus has issued Service Bulletins A330-28A3069 (for Model A330 series airplanes) and A340-28A4087 (for Model A340 series airplanes), both dated July 27, 2000. The service bulletins describe procedures for a one-time inspection to verify the proper configuration of the drive assemblies for the low-pressure and cross-feed fuel valves. If the washer is missing, the service bulletins provide procedures for installing a new thrust washer. If excessive movement of the drive spindle is detected, the service bulletins provide procedures for inspecting the drive assembly to detect damage and wear and replacing unserviceable parts with serviceable parts. These actions are intended to adequately address the unsafe condition. The DGAC classified the service bulletins as mandatory and issued French airworthiness directives 2000-406-125(B) and 2000-405-152(B), both dated September 20, 2000, to ensure the continued airworthiness of these airplanes in France.

These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.19) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design that may be registered in the United States at some time in the future, this AD is being issued to prevent failure of the low-pressure and/or cross-feed fuel valves, which could result in the inability to shut off the fuel supply to the engine and exacerbate an engine fire, or the inability to cross-feed fuel when required. This AD requires the actions specified in the service bulletins, described previously.

None of the airplanes affected by this action are on the U.S. Register. All airplanes included in the applicability of this rule currently are operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers that this rule is necessary to ensure that the unsafe condition is addressed in the event that any of these subject airplanes are imported and placed on the U.S. Register in the future.

Should an affected airplane be imported and placed on the U.S. Register in the future, it would require approximately 16 work hours to accomplish the required actions, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this AD would be $960 per airplane.

Since this AD action does not affect any airplane that is currently on the U.S. register, it has no adverse economic impact and imposes no additional burden on any person. Therefore, prior notice and public procedures hereon are unnecessary and the amendment may be made effective in less than 30 days after publication in the Federal Register .

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket 2000-NM-352-AD.” The postcard will be date stamped and returned to the commenter.

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description on each SIAP is contained in the appropriate FAA Form 8260 and the National Flight Data Center (FDC)/Permanent (P) Notices to Airmen (NOTAM) which are incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation's Regulations (FAR). Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction of charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes SIAPs. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained in the content of the following FDC/P NOTAMs for each SIAP. The SIAP information in some previously designated FDC/Temporary (FDC/T) NOTAMs, the respective FDC/T NOTAMs have been canceled.

The FDC/P NOTAMs for the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Further, the SIAPs contained in this amendment are based on the criteria contained in the TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

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

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charge printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 is effective upon publication of each separate SIAP as contained in the transmittal. Some SIAP amendments may have been previously issued by the FAA in a National Flight Data Center (NFDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP amendments may require making them effective in less than 30 days. For the remaining SIAPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

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

On October 10, 2000, we (FEMA) published a proposed rule at 65 FR 60159 that would revise the procedures under which we issue LOMRs and LOMR-Fs.

We received eight letters and e-mail messages about the proposed rule. Many of these contained multiple comments and, in a number of cases, the submissions raised similar issues and concerns. One organization submitted two sets of comments.

The following submitted comments on the proposed rule:

• Four State water resource agencies;

• One State association for the building industry;

• One national association for floodplain management;

• One regional association for communities;

• One private legal firm.

Each of the following sections treats an issue raised by the public during the comment period and explains our reasons for adopting, modifying, or rejecting a given recommendation.

General Comments. One commenter supported the proposed rule as written and urged its expeditious adoption. One commenter generally supported the rule change.

Our Response: None.

Burden on Local Officials. Two commenters expressed the opinion that the requirement for local communities to assure a building site as “reasonably safe from flooding” would impose a burden on them, and one suggested that FEMA should make the review and provide the assurance, if appropriate.

Our Response: It is important to note that the requirement for local communities to determine “whether proposed building sites will be reasonably safe from flooding” is not a new requirement. It has been a part of the NFIP regulations since at least January 8, 1973 (36 FR 24762, December 22, 1971, as amended at 38 FR 1001, January 8, 1973). Currently, this requirement applies to any community that has applied for and been accepted for participation in the NFIP. Further, the community may require that the property owner's design professional provide the assurance that the structure is “reasonably safe from flooding”. We are also providing Technical Bulletin 10-00 to assist communities and design professionals in evaluating structures. This final rule simply emphasizes the long-standing requirement outlined in paragraph 60.3(a)(3) and therefore, does not impose any new burden on local communities.

Certification of Data. One commenter felt that the determination that land or structures are “reasonably safe from flooding” was beyond the expertise of many registered professional engineers and certified land surveyors. They suggested that the determination be made by a qualified design professional with appropriate expertise.

Our Response: The complexity of these determinations is highly dependent on site-specific conditions that will vary within the participating community. Furthermore, the ability of local governments to make these decisions will vary from community to community as will State laws regarding professional accreditation, certification, and licensing. This variability makes it difficult to prescribe a single solution applicable in all cases. We therefore will rely upon the judgment of the participating community and expect them to meet all State or local requirements regarding the use of design professionals when making these determinations.

Communities May Lack Qualified Staff. One commenter felt that many communities may not have qualified staff or resources to determine whether land or a structure is “reasonably safe from flooding”, and may choose not to make the determination.

Our Response: The technical bulletin is being provided to give guidance for determining when land or structures can be considered “reasonably safe from flooding”. In lieu of using the guidance in the technical bulletin, a community may choose to require the floodplain map revision requester's qualified design professional assure the land or structures to be removed from the SFHA are “reasonably safe from flooding”. The participating community can then rely on the qualified design professional's assurance if it so chooses. However, it is ultimately the participating community's responsibility for assuring that the areas being removed from the SFHA are “reasonably safe from flooding.”

Conflict with Section 60.3. Three commenters noted that the proposed change to paragraph 65.5(a)(4) violates the provisions of paragraph 60.3(c)(2), in that it allows lowest floor elevations to be below the Base (100-year) Flood Elevation (BFE) and allows the structure to be removed from the SFHA, which in turn allows Federal financial assistance without the requirement of flood insurance coverage.

Our Response: It is not the intent of the rule to encourage or allow violations of existing Federal regulations. Therefore, the rule has been reworded to emphasize the minimum floodplain management requirements of § 60.3 must be met before a revision to the SFHA can be made. The rule does allow for the removal of land or a structure when violations have occurred, but only after all violations have been remedied by the community to the maximum extent possible and the land or structures have been determined by the community to be “reasonably safe from flooding.”

Use of Design Professionals. Two commenters felt that a determination of “reasonably safe from flooding” should be made by a qualified design professional instead of the participating community.

Our Response: The participating community may, if it wishes, require that the party requesting removal of land or structures from the SFHA provide assurance by a qualified design professional that standard professional practices have been applied and that the criteria described in Technical Bulletin 10-00 have been, or will be met. If it so chooses, the community may rely on the design professional for assurance that the land or structures being removed from the SHFA are “reasonably safe from flooding.” However, it is ultimately the participating community's responsibility to assure areas being removed from the SFHA are “reasonably safe from flooding.”

Education Needed Before Rule Change. One commenter supported the rule change but felt that education for community officials and property owners was needed first.

Our Response: The technical bulletin is being provided to guide and educate community officials, design professionals, and property owners considering development in SFHAs. The technical bulletin discourages unwise and unsafe building practices and emphasizes elevation as the preferred means of ensuring land and structures are “reasonably safe from flooding.”

Flood-Proofed Residential Basements. One commenter felt that the rule would create a variance for floodproofed residential basements outlined in § 60.6(c) without formal FEMA recognition, which would lead to requests for floodproofed rates for the structures. Another commenter felt that the requirements outlined in § 60.6(c) should be simplified so that all communities could allow floodproofed basements.

Our Response: The purpose of the rule is not to allow planning and construction of lowest floors below the BFE in filled floodplains. Rather the purpose is to provide a means of removing from the floodplain lands that have been filled to or above the BFE. In some situations this process may result in revising flood hazard areas where violations of NFIP minimum floodplain management regulations have occurred. However, this will only occur if the violations are remedied to the maximum extent possible and the land or structures have been determined by the community to be “reasonably safe from flooding.” If the community cannot do so, the LOMR-F will not be issued. If an area or structure is removed from the SFHA, the federally mandated purchase of flood insurance will not apply and the cost of flood insurance will likely go down. Flood-proofed residential structures built in communities in compliance with approved basement exception procedures are eligible for consideration under paragraph 65.5 (a)(4) of this final rule.

Infrastructure. One commenter asked the meaning of “infrastructure” in the proposed definition in § 65.2(c).

Our Response: The term “infrastructure” has been removed from the definition in the final rule.

Insurance Waiver. Two commenters suggested that, instead of allowing removal of land or structures from the SFHA designation, FEMA should simply issue a waiver of the insurance requirement.

Our Response: The requirement for flood insurance coverage for property located in an SFHA is statutory (42 U.S.C. 4012a(b)). The Flood Disaster Protection Act of 1973, as amended, requires that regulated lending institutions, Federal agency lenders, and government sponsored enterprises for housing examine the NFIP map to determine whether a property for which it is contemplating making, extending, or renewing a loan is in an SFHA. If so, they must place the requirement for flood insurance coverage on the property before completing the loan transaction. The requirement for flood insurance purchase is placed by the lending institution underwriting the loan and cannot be waived by any other party without a change in the Act.

Status of States. One commenter asked whether a State is considered a “community” with respect to the rule.

Our Response: A State is considered an NFIP community when it regulates its own actions on State lands and is exempt from local permitting requirements. Most States have separate statutory authority, regulations, or executive orders that apply to their own actions. In these situations the State agency responsible for overseeing floodplain development by the State would determine if an area was “reasonably safe from flooding.” In some instances a State and a community may both have permitting authority over development that takes place in that community. In these situations it is a matter of State law to determine whether the State or the community is the appropriate body to determine if an area is “reasonably safe from flooding.”

Unimproved Land Removed From SFHA. Two commenters questioned how structures built after filled areas are removed from the SFHA would be affected by NFIP and community floodplain management requirements.

Our Response: Once the filled area is removed from the SFHA, it is by definition no longer subject to the minimum Federal requirements of § 60.3. However, this does not preclude participating communities or States from imposing additional restrictions should they choose to do so. Before land or structures can be removed from the SFHA, the community must assure that the areas are and will be “reasonably safe from flooding.” It is up to the participating community to decide how this will be accomplished. However, in order to make this assurance they will likely have to know the location or proposed location of any buildings on the site or have other requirements in place to ensure that future development is constructed so that it will not be damaged during the base flood. See the Technical Bulletin 10-00 for further guidance on this issue.

This section discusses changes in the procedures used to process LOMR-F requests. These procedures will apply to single and multi-lot LOMR-F requests, which may involve one structure or multiple structures. These procedures also apply to LOMRs and they supersede the interim procedures published September 1, 1999, at 64 FR 47813. We will process all LOMR and LOMR-F requests received after June 4, 2001, as follows:

• Paragraphs 65.5(a)(1) through 65.5(a)(7) will apply to requests to remove land and structures involving the placement of engineered earthen fill.

• Paragraphs 65.6(a)(1) through 65.6(a)(15) will apply to requests for LOMRs.

• Community officials must continue to review map revision requests involving the placement of engineered earthen fill within the SFHA on the community's FIRM. As part of the community acknowledgement of LOMR and LOMR-F requests, the community must continue to assure that the minimum floodplain management criteria outlined in § 60.3 have been met.

• FEMA will not review a request for a LOMR or LOMR-F without community assurances that the request meets the requirements of § 60.3.

• We will consider structures built in identified SFHAs that do not meet the requirements of § 60.3 violations of NFIP regulations and will take appropriate action. Further, we will suspend review of these requests and others that are potentially in violation of NFIP regulations until the issues are resolved and all identified violations have been remedied through appropriate State and Federal entities including FEMA or its designee. Once all violations have been remedied by the community to the maximum extent possible and the community assures the land or structures are “reasonably safe from flooding,” we will process the map revision request using the criteria outlined in § 65.5(a). Technical Bulletin 10-00 provides further guidance to community officials when determining whether land or structures are “reasonably safe from flooding.”

• FEMA will review previously issued determinations for conformity with these revised procedures upon written request.

• New LOMR and LOMR-F requests and requests for redeterminations will be subject to the current fee schedule established in 44 CFR part 72.

FEMA will not prepare an environmental analysis under NEPA since this rule would address an apparent administrative inconsistency that has no bearing on building practices or on the built or natural environment. This rule removes the current distinction between fill placed in an SFHA containing structures and fill placed in an SFHA without structures, both of which are allowable under current laws and regulations governing participation in the National Flood Insurance Program. Removing this distinction resolves an apparent inconsistency in the floodprone status of a subset of structures built on fill within the SFHA. These apparent inconsistencies resulted from differences in the administrative processes followed by communities who permit development in floodplains rather than from physical differences in the built environment. We will continue to allow earthen fill and other types of development within the SFHA when applicable, and we will continue to require residential structures built in identified flood hazard areas have their lowest floor (including basement) elevated to or above the base flood.

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

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

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

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

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

This rule changes the criteria that we use to determine whether we can issue a LOMR or LOMR-F to remove unimproved land or land with structures from the SFHA by raising ground elevations using earthen fill. We know of no conditions that would qualify the rule as a “significant regulatory action” within the definition of section 3(f) of the Executive Order. To the extent possible this rule adheres to the principles of regulation as set forth in Executive Order 12866. This rule has been reviewed by the Office of Management and Budget under the provisions of Executive Order 12866.

In accordance with the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., the OMB approved the collections of information applicable to this rule: OMB Number 3067-0147, Report to Submit Technical or Scientific Data to Correct Mapping Deficiencies Unrelated to Community-Wide Elevation Determinations (Amendments & Revisions to National Flood Insurance Program Map).

Following is a summary of how each form will be used:

(a) FEMA Form 81-87. Property Information. This form describes the location of the property, what is being requested, and what data are required to support the request.

(b) FEMA Form 81-87E. Credit Card Information. This form outlines the information needed to process a request when the requester is paying processing fees by credit card.

(c) FEMA Form 81-87A. Elevation Information. This form indicates what the BFE for the property is, how the BFE was determined, the lowest ground elevation on the property, and/or the elevation of the lowest adjacent grade to any structures on the property. This information is required for FEMA to determine whether the property that is being requested to be removed from the SFHA is at or above the BFE.

(d) FEMA Form 81-87C. Community Acknowledgment of Requests Involving Fill. This form ensures that the participating community is aware of the revision request and that the requirements of § 60.3 have been met.

(e) FEMA Form 81-87D. Summary of Elevations—Individual Lot Breakdown. This form is used in conjunction with the Elevation Information Form for requests involving multiple lots or structures. It provides a table to allow the required submitted data to be presented in a manner for quick and efficient review.

The estimated burden on individual property owners is:

The number of requesters will vary from year to year, as we have no control over the number of people who will seek to have determinations made for their properties. For the purposes of this rule we estimate the following annual burdens:

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

For the reasons that follow I certify that a regulatory flexibility analysis is not required for this rule because it would not have a significant economic impact on a substantial number of small entities. This rule is a clarification of existing policy and removes confusion and apparent inconsistencies in the current rule. We expect the rule to remove the current rule's adverse impact on property owners, including small entities. We expect the rule to enhance the ability of local officials to make sound floodplain management decisions more readily than under the current rule. We also expect the rule to reduce the administrative burden on property owners, including small entities. We further expect the rule will reduce certain building costs, without increasing the risks of flooding either to the owners or to the National Flood Insurance Program.

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

We have reviewed this rule under E.O.13132 and have concluded that the rule does not have federalism implications as defined by the Executive Order. As noted under Regulatory Planning and Review, this rule changes the criteria that we would use to determine whether we can issue a LOMR or LOMR-F to remove unimproved land or land with structures from the SFHA by raising ground elevations using engineered earthen fill. We know of no substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government that would result from this rule.

The OMB has reviewed this rule under the provisions of Executive Order 13132.

Large in-lieu contributions . The Disaster Mitigation Act of 2000 (DMA 2000), Pub. L. 106-390, 114 Stat. 1552 et seq. , amended the Federal contribution for Large in Lieu Contributions, which is known as “alternate projects” and is authorized under section 406(c) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. 5172, from 90 percent of the Federal share of the Federal estimate to 75 percent of the Federal share of the Federal estimate of the cost of repairing, restoring, reconstructing, or replacing the facility. There is an exception to this change for publicly-owned or -controlled facilities. When a State or local government applicant selects an alternate project because unstable soil at the site of the damaged facility makes repair or restoration of that facility infeasible, the Federal contribution remains at 90 percent. The soil conditions at the project site, which make restoration infeasible, will be established in a geo-technical report that the applicant must submit. All alternate projects are still approved on a project-by-project basis.

Irrigation facilities . The DMA 2000 amended section 102(9) of the Stafford Act, 42 U.S.C 5122 to add “irrigation” to the definition of private nonprofit (PNP) facilities. However, not all PNP irrigation facilities are eligible for assistance. The legislative history indicates that eligible irrigation facilities include those that supply water for “essential services of a governmental nature to the general public” (which is the requirement for any PNP to be eligible), such as fire suppression, generating and supplying electricity, and drinking water supply. They do not include those that supply water for agricultural purposes. If an irrigation system serves both eligible and ineligible purposes, assistance for those portions that serve both purposes will be prorated on the basis of the proportional share of water used. For those portions that serve an eligible purpose exclusively, all disaster-related damages to that portion would be eligible. Those portions serving an ineligible purpose exclusively will not be eligible.

Critical/non-critical PNP facilities . Under section 406(a)(3) of the Stafford Act, 42 U.S.C. 5172, as amended by the DMA 2000 and before receiving assistance under the Stafford Act certain non-critical PNP facilities must apply first to the Small Business Administration (SBA) for a disaster loan for permanent restoration work in those disasters when the SBA activates its disaster loan program. DMA 2000 defines those critical services where the owner or operator need not apply to SBA to include: Water (including water provided by an irrigation organization or facility as discussed above), sewer, wastewater treatment, communications, and emergency medical care. We propose to add fire department services, emergency rescue, and nursing homes to the list of critical services. Communication services means transmission, switching and distribution of telephone traffic. Emergency medical care includes essential direct patient care to persons and includes hospitals, clinics, outpatient services, and nursing homes. Owners and operators of these critical service facilities may apply directly to FEMA for assistance.

Other eligible, but non-critical, PNP facility owners or operators must apply to SBA for a disaster loan, and if SBA declines their application they may apply to FEMA for a grant. In addition, if the maximum loan for which they are eligible does not cover all eligible damages, they may apply to FEMA for the excess damages. The requirement for owners or operators of non-critical facilities to go first to SBA applies only to permanent restoration work. All eligible PNP facility owners and operators may make requests for assistance for debris removal and emergency protective measures directly to FEMA.

Community Disaster Loans . The DMA 2000 made two amendments to the Community Disaster Loan (CDL) program, section 417 of the Stafford Act, 42 U.S.C. 5184. The DMA 2000 sets a cap of $5,000,000 on the amount of any community disaster loan that FEMA might make, and states that a local government will not be eligible for further community disaster loan assistance if the community is in arrears on any required repayment of a previous community disaster loan. We propose to amend 44 CFR 206.361 and 206.363 to reflect these statutory changes.

This interim final rule implements certain mandatory provisions of the Disaster Mitigation Act of 2000 that relate to the Public Assistance Program and the Community Disaster Loan Program, provisions that the Congress intended to go into effect upon enactment. In keeping with that intent, we are making this rule retroactively effective as of the date of enactment, October 30, 2000, for all disasters declared on or after that date. We seek and invite public comments, nevertheless, on this interim final rule, which we will consider in our preparation of the final rule. Accordingly, under the authority of 5 U.S.C. 553(b)(3)(B), I find that notice and public procedure on this interim final rule are impracticable and contrary to the public interest.

NEPA imposes requirements for considering the environmental impacts of agency decisions. It requires that an agency prepare an Environmental Impact Statement (EIS) for “major federal actions significantly affecting the quality of the human environment.” If an action may or may not have a significant impact, the agency must prepare an environmental assessment (EA). If, as a result of this study, the agency makes a Finding of No Significant Impact (FONSI), no further action is necessary. If it will have a significant effect, then the agency uses the EA to develop an EIS.

Categorical Exclusions . Agencies can categorically identify actions (for example, repair of a building damaged by a disaster) that do not normally have a significant impact on the environment. The purpose of this interim final rule is to amend our Stafford Act rules to incorporate part of the changes mandated by the Disaster Mitigation Act of 2000 for the Public Assistance Program and for Community Disaster Loans. Accordingly, we have determined that this rule is excluded from the preparation of an environmental assessment or environmental impact statement under 44 CFR 10.8(d)(2)(ii), where the rule is related to actions that qualify for categorical exclusion. The changes reflected in this rule are exempt from NEPA because they reflect administrative changes to the programs that have no potential to affect the environment. We would perform an environmental review under 44 CFR part 10, Environmental Considerations, on each proposed project that we would fund and implement under the authorities covered in this rule.

This rule is not subject to the provisions of the Paperwork Reduction Act. It does not require any new information collections and therefore would not revise the number and types of responses, frequency, and burden hours.

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

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

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

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

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

This interim final rule implements certain mandatory provisions of the Disaster Mitigation Act of 2000 that relate to the Public Assistance Program and the Community Disaster Loan Program. The authorities mandated would not of themselves have an annual effect on the economy of $100 million or more. We anticipate that the impacts of the alternate projects provision will be neutral, expecting that the savings from reducing the Federal share of the Federal estimate from 90 percent to 75 percent will be offset by fewer applications for assistance under this authority. We do not anticipate any change in costs by adding irrigation facilities to the definition of eligible private nonprofit facilities inasmuch as the rule reflects the statute and codifies our current policy and practices. Most of the private nonprofit organizations that will have to apply for SBA disaster loans before being eligible to apply for FEMA disaster assistance have damages well below the SBA loan limit of $1,500,000. We do not expect this provision will have an impact of $100,000,000 or more per year. Finally, we do not anticipate that savings from amendments to the Community Disaster Loan provision will exceed $100,000,000 over a several-year period—our experience is that disaster loan forgiveness rates are between 60 and 70 percent. Over the last 25 years, the annual amount of money forgiven has been an average of $2.7 million.

We know of no conditions that would qualify the rule as a “significant regulatory action” within the definition of section 3(f) of the Executive Order. To the extent possible this rule adheres to the principles of regulation as set forth in Executive Order 12866. The Office of Management and Budget has not reviewed this rule under the provisions of Executive Order 12866.

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

We have reviewed this interim final rule under Executive Order 13132 and have determined that the rule does not have federalism implications as defined by the Executive Order. The rule would define and establish the conditions and criteria under which FEMA would grant public assistance and make community disaster loans. The rule would in no way that we foresee affect the distribution of power and responsibilities among the various levels of government or limit the policymaking discretion of the States.

This is a summary of the Commission's Memorandum Opinion and Order on Reconsideration and Order Terminating Proceeding in WT Docket No. 97-207, FCC 01-125, adopted April 9, 2001, and released April 13, 2001. The complete text of the released document is available on the Commission's Internet site, at www.fcc.gov. The full text is also available for inspection and copying during normal business hours in the FCC Reference Information Center (Courtyard level), 445 12th Street, SW., Washington, DC 20554, and also may be purchased from the Commission's copy contractor, International Transcription Services (ITS, Inc.), (202) 857-3800, 445 12th Street, SW., CY-B400, Washington, DC 20054.

1. This Memorandum Opinion and Order on Reconsideration and Order Terminating Proceeding (MO&O) denies a Petition for Reconsideration of the Declaratory Ruling and Notice of Proposed Rulemaking in this proceeding (64 FR 38313, July 16, 1999; 64 FR 38396, July 16, 1999) regarding calling party pays service, and terminates the proceeding without action.

2. The Ohio Public Utilities Commission (Ohio Petition) alleges that the Declaratory Ruling contains ambiguous and potentially conflicting conclusions that should be clarified. As discussed in paragraphs 7 through 19 of the MO&O, because the Commission's rules permit parties to file petitions for reconsideration only for final rules, the MO&O considers only that part of the Ohio Petition which argues that calling party pays is not properly classified as a commercial mobile radio service because it does not meet the interconnected service criteria. The Commission denies the Ohio Petition, finding that calling party pays service is an interconnected for profit service to the public and, therefore, constitutes commercial mobile radio service under the Communications Act.

3. The MO&O also terminates the calling party pays proceeding without taking action. The MO&O, in paragraphs 20-24 of the full text of the MO&O, finds that it is unclear that regulatory intervention by the Commission is warranted. The Commission emphasizes, however, that the existing rules do not prevent a carrier from offering a calling party pays service to its subscribers. In terminating this proceeding, the Commission removes any remaining regulatory uncertainty regarding calling party pays occasioned by the pendency of the proceeding.

4. The Petition for Reconsideration of the Declaratory Ruling in this proceeding, filed by the Public Utility Commission of Ohio on August 16, 1999, is denied.

5. The proceeding is terminated without further action.

6. This action is taken pursuant to sections 1, 4(i), 7, 201, 202, 303(r), and 332 of the Communications Act of 1934 as amended, 47 U.S.C. 151, 154(i), 157, 201, 202, 303(r), 332.

This is a summary of the Commission's Second Order on Reconsideration (Second Order) in CC Docket No. 97-213; FCC 01-126, adopted April 9, 2001, and released April 16, 2001. The complete text of this Second Order is available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 12th Street, SW., Washington, DC, and also may be purchased from the Commission's copy contractor, International Transcription Services (ITS, Inc.), CY-B400, 445 12th Street, SW., Washington, DC.

1. This Second Order on Reconsideration (Second Order) resolves two petitions for reconsideration of the Report and Order (R&O) in this proceeding (64 FR 51462, September 23, 1999) and one petition for reconsideration of the Second Report and Order (Second R&O) in this proceeding (64 FR 55164, October 12, 1999). These decisions implemented sections 102, 105, and 301 of the Communications Assistance for Law Enforcement Act (CALEA) (Communications Assistance for Law Enforcement Act, Public Law 104-414, 108 Stat. 4279, 1994.) The Second Order makes minor revisions to 47 CFR 64.2103 and 64.2104 to clarify the arrangements telecommunications carriers subject to CALEA must make to ensure that law enforcement agencies can contact them when necessary, and the interception activity that triggers a record keeping requirement. The Second Order makes additional clarifications without altering the Commission's rules, but otherwise denies the requests for reconsideration.

2. The U.S. Department of Justice and the Federal Bureau of Investigation (FBI) seek stronger personnel security measures than those adopted in the First R&O, in order to “ensure the trustworthiness of the private-company employees who have become increasingly responsible for implementing electronic surveillance.” As discussed in paragraphs 4 through 14 of the Second Order, the Commission denies the FBI's request. However, the Commission encourages carriers to consider voluntarily adopting, as internal procedures, measures to respond to the concerns presented by the FBI, as appropriate, and making them part of their systems security and integrity (SSI) policies and procedures.

3. The FBI also proposes a requirement that carriers generate an automated message that would permit law enforcement agencies (LEAs) to confirm periodically that the software used to conduct an interception is working correctly and is accessing the equipment, facilities, or services of the correct subscriber. The Commission, as detailed in paragraphs 15 through 17 of the Second Order, similarly denies this proposal. In so doing, however, the Commission notes that “there is nothing that would prevent carriers from providing this capability either on a voluntary basis or with compensation from LEAs.”

4. The FBI next asks the Commission to modify the rules, adopted in the R&O requiring that carriers report acts of unauthorized electronic surveillance that occur on their premises and compromises of their SSI procedures involving the execution of electronic surveillance “within a reasonable period of time upon discovery.” The FBI recommends that the Commission modify the rule to require reporting “as soon after discovery as is reasonable in light of privacy and safety concerns and the needs of law enforcement.” The Commission, as indicated in paragraphs 18 through 20 of the Second Order, shares the FBI's concern about the importance of prompt reporting of systems security breaches and expects carriers to report breaches with due diligence and dispatch. However, in the absence of significant problems to date, the Commission declines to adopt additional factors to further define how quickly a carrier should report a security breach to law enforcement.

5. The FBI seeks modification of the Commission's record keeping requirement in 47 CFR 64.2104(a)(1), pertaining to the commencement of interceptions. Specifically, FBI argues that the current language could lead to interpretations when the circuit is open for the duration of “multiple intercepts, the carrier's records of these various intercepts would all show the same ‘start date and time,' ” as opposed to recording individual interceptions. Thus, FBI asks the Commission to modify the phrase in § 64.2104(a)(1) from “date and time of the opening of the circuit” to “date and time at which the interception of communications or access to call identifying information was enabled.” The Commission, in paragraphs 21 through 24 of the Second Order, grants the FBI's request and modifies the rules accordingly with slight modification.

6. The National Telephone Cooperative Association (NCTA) asks that the Commission clarify the language of 47 CFR 64.2103 “to make it obvious that a single person in not responsible for being law enforcement's point of contact[for CALEA matters], 24 hours a day, 7 days a week.” The Commission agrees with NCTA and, as indicated in paragraphs 25 through 28 of the Second Order, modifies § 64.2102 accordingly. The Commission additionally makes two other clarifications regarding carrier SSI policies and procedures. First, the Commission revises § 64.2103 to require carriers to place their information regarding responsible personnel and contacts in a separate appendix to their SSI policies and procedures. Second, the Commission clarifies that it will routinely make available to law enforcement agencies the carriers' responsible personnel and contact information. Finally, as discussed in paragraph 31 of the Second, Order, the Commission declines to adopt other FBI proposals contained in its late-filed supplement.

7. The Commission, in paragraphs 32 through 34 of the Second Order, denies NCTA's request that the Commission exempt small, rural telephone companies from the requirement to file with the Commission the policies and procedures they use to comply with the systems security and integrity rules. The Commission notes that small entitities have the flexibility to tailor their policies and procedures to its own unique circumstances.

8. Finally, as discussed in paragraphs 35 through 38 of the Second Order, FBI, in its petition for reconsideration and/or clarification of the Second R&O asks the Commission to clarify carriers' responsibility for CALEA compliance in resale situations. The Second R&O held that as telecommunications carriers, resellers are generally subject to all provisions of CALEA, but that “resellers' responsibility under CALEA should be limited to their own facilities.” FBI is concerned that law enforcement might be effectively disabled from enforcing CALEA's assistance capability obligations in certain resale situations. The FBI asks that the Commission clarify either that (1) a carrier that sells telecommunications services to a reseller is itself a “telecommunications carrier” under CALEA with respect to such services; or (2) if an underlying facilities-based service provider is not a “telecommunications carrier,” the reseller remains responsible in full for ensuring that the telecommunications services it provides to the public, and the equipment and facilities involved in providing that service, are CALEA-compliant. The Second Order clarifies that the language in the Second R&O regarding resellers exempts them from CALEA to the extent that they resell services of other, facilities-based carriers. The Commission clarifies that that decision was premised on the obligations of the underlying facilities-based carriers to comply with CALEA. Thus, to the extent that a reseller resells services or relies on facilities or equipment of an entity that is not a telecommunications carrier for purposes of the CALEA and thus is not subject to CALEA's assistance capability requirements, the Commission did not intend to exempt the reseller from its overall obligation to ensure that its services satisfy all the assistance capability requirements of section 103.

9. The First Report and Order in this proceeding incorporated a Final Regulatory Flexibility Analysis of the effect on small entities of the CALEA rules adopted at that time, and the Second Report and Order incorporated a Final Regulatory Flexibility Analysis of the effect on small entities of the actions taken therein, which did not include CALEA rules. The Regulatory Flexibility Act of 1980, as amended (RFA) requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that “the rule will not have a significant economic impact on a substantial number of small entities.” (The RFA, 5 U.S.C. 601 et seq. , has been amended by the Contract With America Advancement Act of 1996, Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration.

10. This Second Order on Reconsideration does not make major revisions to the existing CALEA rules or enact new requirements, but does make minor revisions to 47 CFR 64.2103 and 64.2104. First, it clarifies the arrangements that telecommunications carriers subject to CALEA must make to ensure that law enforcement agencies can contact them when necessary, by requiring the use of a “pull-off” page for submitting contact information to the Commission. Second, it clarifies the definition of the interception activity that triggers a record keeping requirement. Neither change requires the collection of additional information or increases the frequency of record keeping, and the cost of complying with these revisions is nominal. Third, it clarifies without rule change that resellers are not exempt from the obligation to ensure that their services satisfy all the assistance capability requirements of section 103 of CALEA. As such, this action imposes no reporting, recordkeeping or other compliance requirement beyond those imposed by CALEA itself. Accordingly, the Commission certifies, pursuant to section 605(b), that the rule revisions adopted in this Second Order on Reconsideration will not have a significant economic impact on a substantial number of small entities.

11. The Commission will send a copy of the Second Order on Reconsideration, including a copy of this final certification, in a report to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. The Commission will also send a copy of the Second Order on Reconsideration, including this final certification, to the Chief Counsel for Advocacy of the Small Business Administration.

12. This Second Order does not contain a new information collection, but only requires a change of format for future submissions of a carrier's SSI filing. Specifically, as described in paragraph 24, and in conformance with revised § 64.2103(b)(4) of the Commission's rules, 47 CFR 64.2103(b)(4), point of contact information must appear in a separate appendix attached to the SSI report.

13. This action is taken pursuant to sections 1, 2, 4(i) and (j), 201, 229, 303(f) and (r), and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i) and (j), 201, 229, 303(f) and (r), and 332.

14. Part 64 of the Commission's rules is amended.

15. The rule amendments made by this Second Order shall become effective June 4, 2001. It Is Further Ordered that the Consumer Information Bureau, Reference Operations Division, shall send a copy of this Second Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

16. The DOJ/FBI Motion to File Consolidated Reply to Oppositions to Petition for Reconsideration Exceeding Ten Pages in Length is granted.

17. The Motion for Acceptance of Supplemental Comments filed by the Department of Justice/Federal Bureau of Investigation is granted.

18. The Petition for Reconsideration of section 105 Report and Order filed by the Department of Justice/Federal Bureau of Investigation is granted to the extent indicated herein, and is otherwise denied.

19. The Petition for Reconsideration and/or Clarification filed by the National Telephone Cooperative Association is granted to the extent indicated herein, and is otherwise denied.

20. The Petition for Reconsideration and/or Clarification filed by the Department of Justice/Federal Bureau of Investigation is granted to the extent indicated herein, and is otherwise denied.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-30, adopted April 27, 2001, and released May 1, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a summary of the Commission's Memorandum Opinion and Order, MM Docket No. 92-214, adopted April 16, 2001, and released April 20, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800, facsimile (202) 857-3805.

This is a summary of the Commission's Memorandum Opinion and Order, MM Docket No. 91-352, adopted April 16, 2001, and released April 20, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC. 20036, (202) 857-3800, facsimile (202) 857-3805.

This is a synopsis of the Commission's Report and Order in MM Docket No. 00-134, adopted April 11, 2001, and released April 20, 2001. The full text of this decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW, Washington, D.C. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, D.C. 20036.

This is a synopsis of the Commission's Memorandum Opinion and Order in MM Docket No. 00-123, adopted April 18, 2001, and released April 24, 2001. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals ll, CY-A257, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3805, 1231 M Street, NW., Washington, DC 20036.

This is a synopsis of the Commission's Memorandum Opinion and Order in MM Docket No. 90-195, adopted April 11, 2001, and released April 20, 2001. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals ll, CY-A257, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3805, 1231 M Street, NW., Washington, DC 20036.

Section 101(a)(5)(A) of the Marine Mammal Protection Act (16 U.S.C. 1361 et seq .) (MMPA) directs the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations governing the taking are issued.

Permission may be granted for periods of 5 years or less if the Secretary finds that the taking will have no more than a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and if regulations are prescribed setting forth the permissible methods of taking and the requirements pertaining to the monitoring and reporting of such taking.

On January 12, 2000, NMFS received an application for an LOA under section 101(a)(5)(A) of the MMPA from the U.S. Navy to take a small number of marine mammals incidental to shock testing the USS WINSTON S. CHURCHILL in the offshore waters of the Atlantic Ocean off either Mayport, FL, or Norfolk, VA or the offshore waters of the Gulf of Mexico off Pascagoula, MS. However, based, in part, on findings and determinations made under the National Environmental Policy Act (NEPA), the Navy has determined that Mayport, FL is the preferred location for the shock trial. As a result, NMFS has conducted its analysis of impacts on marine mammal stocks based only on this location. For the Navy to make a determination to conduct the shock trial at another location, a new negligible impact determination and a modification of these regulations would be necessary before an LOA could be issued.

Section 2366, Title 10, United States Code (10 U.S.C 2366) requires realistic survivability testing of a covered weapon system to ensure the vulnerability of that system under combat conditions is known. (In this case, the covered weapon system is the USS WINSTON S. CHURCHILL.) Realistic survivability testing means testing for the vulnerability of the ship in combat by firing munitions likely to be encountered in combat with the ship configured for combat. This testing is commonly referred to as “Live Fire Test & Evaluation”(LFT&E). Realistic testing by firing live ammunition at the ship or detonating a real mine against the ship’s hull, however, could result in the loss of a multi-million dollar Navy asset. Therefore, the Navy has established an approved LFT&E program to complete the vulnerability assessment of ships as required by 10 U.S.C. 2366. The LFT&E program includes three major areas that together provide for a complete and comprehensive evaluation of the survivability of ships in a near miss, underwater explosion environment. These areas are computer modeling and analysis, component testing, and an at-sea ship shock trial. While computer modeling and laboratory testing provide useful information, they cannot substitute for shock testing under realistic, offshore conditions as only the at-sea shock trial can provide the real-time data necessary to fully assess ship survivability.

A shock test is a series of underwater detonations that propagate a shock wave through a ship's hull under deliberate and controlled conditions. Shock tests simulate near misses from underwater explosions similar to those encountered in combat. Shock testing verifies the accuracy of design specifications for shock testing ships and systems, uncovers weaknesses in shock sensitive components that may compromise the performance of vital systems, and provides a basis for correcting deficiencies and upgrading ship and component design specifications. To minimize cost and risk to personnel, the first ship in each new class is shock tested and improvements are applied to later ships of the class.

The USS WINSTON S. CHURCHILL is the third ship in a new Flight of 23 ARLEIGH BURKE (DDG 51)-class guided missile destroyers being acquired by the Navy. (A Flight is a subset of a class of ships to which significant modifications/upgrades have been made.) These ships are referred to as the Flight IIA ships and they represent the largest single upgrade to the original DDG 51-class destroyer.

The USS JOHN PAUL JONES (DDG 53) was shock tested off the coast of California in June 1994 to assess the survivability of the original DDG 51-class destroyer. Flight IIA ships are significantly different from the original DDG 51-class destroyers in their design. Major structural changes include the addition of a helicopter hangar, Vertical Launch System foundation changes, and raising the aft radar arrays. Major equipment changes include the addition of a ship-wide Fiber Optic Data Multiplexing System, a Zonal Electrical Power Distribution System involving the addition of switchboards and load centers throughout the ship, and the widespread use of commercial equipment in various mission critical systems to reduce the cost of the ships. Typically the lead ship of a new class or major upgrade is shock tested. The USS WINSTON S. CHURCHILL was selected as the shock trial ship because it has additional design changes that will not be included in the first two Flight IIA ship; therefore, it is more representative of the Flight.

The Navy’s proposed action is to conduct a shock trial of the USS WINSTON S. CHURCHILL at an offshore, deep-water location. The ship would be subjected to a series of three or four 4,536 kg (10,000 lb) explosive charge detonations sometime between May and 30 September, 2001. Three detonations are needed to collect adequate data on survivability. A fourth detonation would be conducted by the Navy only if one of the planned three detonations fails to provide technically acceptable data (e.g., due to equipment failure or some other technical problem).

The ship and the explosive charge would be brought closer together with each successive detonation to increase the severity of the shock. This gradation in severity would ensure that the survivability of the ship and its systems is fully assessed and the point at which failure modes begin is accurately determined. It would also reduce the chance of significant damage at the highest severity detonation. The shock trial would be conducted at a rate of one detonation per week to allow time to perform detailed inspections of the ship’s systems prior to the ship experiencing the next level of shock intensity.

On December 12, 2000 (65 FR 77546), NMFS published a proposed rule to authorize the Navy to take small numbers of marine mammals incidental to the exemption and requested comments on the proposed rule and application. During the 45-day public comment period, NMFS received comments from the Marine Mammal Commission (MMC), the American Cetacean Society (ACS), the Cetacean Society International (CSI), Earth Island Institute (EII), the Humane Society of the United States (HSUS), the Natural Resources Defense Council (NRDC), the OrcaLab, the Stop LFAS Worldwide Network (SLFASWN), and the Whale and Dolphin Conservation Society (WDCS).

Comment 1 : The SLFASWN considered it peculiar that the permit application lacked geo-specific information on the proposed location of the shock trial. It appeared to the commenter that without an exact location, the potential for impact is unknown. The SLFASWN would like to know the process used in determining the location for the shock trial.

Response : The application noted that the shock trial was proposed to take place in one of three locations, off Norfolk, VA, Mayport, FL, or Pascagoula, MS. While the Navy's small take application discussed only the potential impacts to marine mammals (as is appropriate), substantial information on the impacts to the total marine environment was provided in the accompanying draft environmental impact statement (DEIS) that was prepared by the Navy for this proposed action. Likewise, the Navy's DEIS provided detailed discussion on the parameters used in determining the proposed location for the shock trial.

Comment 2 : The SLFASWN asked whether the proposed shock trial for the USS WINSTON S. CHURCHILL is a “floating flotilla of future shock tests.” The SLFASWN believes the rule would be effective for 5 years and would provide the Navy a “carte blanche” ticket for shock trials.

Response : The proposed shock trial for the USS WINSTON S. CHURCHILL is a single shock trial of three or four detonations that is proposed to take place between May 1 and September 30, 2001. If the Navy proposes future shock trials for other vessels, the Navy would need to meet its responsibilities under NEPA, the MMPA, and the Endangered Species Act (ESA) prior to conducting another shock trial. This final rule does not authorize additional shock trials.

Comment 3 : The MMC believes that NMFS' proposal to limit Level B acoustic harassment from explosive detonation events exclusively in terms of temporary threshold shift (TTS) is tantamount to determining that behavioral changes not related to TTS do not constitute harassment as defined in the MMPA. Such a conclusion, the MMC contends, would be inconsistent with the statutory definition of the term harassment.

Response : First, NMFS would like to clarify that the proposed criterion limiting Level B harassment to behavioral responses that are possible as a result of receiving an impairment to hearing (i.e., TTS) is limited to single-event explosions, not multiple explosive events spaced over a relatively short period of time in the same vicinity, such as multiple Signal, Underwater Sound (SUS) charges and live-fire exercises, nor to multiple impulse-noise sources, such as seismic airguns and the pulse-power generator, nor to intermittent and continuous noise sources such as Navy sonars and oceanographic instrumentation. All of these other listed activities have at least the potential to cause significant behavioral responses on the part of marine mammals that are not related to behavioral disruptions caused by TTS.

For those species of marine mammals capable of hearing the distant sounds from the detonation, simply hearing the acoustic signal and not reacting to that noise is not considered a “take.” NMFS considers a Level B harassment take to occur within the maximum zone for TTS, which, for this action at Mayport, FL, has been calculated by the Navy as follows:

The different TTS distances between odontocetes and mysticetes are based on their probable differing hearing sensitivity to LF sounds (Navy FEIS, 2001).

Beyond the range for TTS, NMFS has been unable to identify behavioral reactions on the part of a marine mammal from a single-noise event that would both disrupt some behavior pattern in a biologically significant way and have a reasonable probability of occurrence. For a take to be considered to have occurred, the marine mammal would need to show some form of behavioral reaction and the only behavioral reactions possibly occurring from a single noise event are either momentary reactions such as an orientation response relative to the unusual event or other reactions such as a startle response, an interruption in vocalization, or a sensitization.

The definition of Level B harassment, when applied to incidental takings, questions whether a single, minor, reaction (such as a startle, a “heads-up” (alert) display, or a single modified dive sequence by either pinnipeds or cetaceans), that has no biological context, should qualify as a “take” under the definition of “harassment” under the MMPA. As stated by NMFS previously (66 FR 9291, February 7, 2001), if the only reaction to the activity on the part of the marine mammal is within the normal repertoire of actions that are required to carry out that behavioral pattern, NMFS considers the activity not to have caused an incidental disruption of the behavioral pattern, provided the animal’s reaction is not otherwise significant enough to be considered disruptive due to length or severity. Therefore, for example, a short- term change in breathing rates or a somewhat shortened or lengthened dive sequence that are within the animal's normal range and that do not have any biological significance (i.e., do not disrupt the animal's overall behavioral pattern of breathing under the circumstances), do not rise to a level requiring a small take authorization. For single explosive events, a determination that these minor effects should not be considered to be harassment of a marine mammal was supported unanimously by the marine mammal scientists attending the NMFS Acoustic Criteria Workshop in 1998. Under a restrictive definition of “harassment” under the MMPA, an incidental taking could be presumed to occur for even a single pinniped lifting or turning its head to look at a passing, offshore, watercraft. NMFS notes that, in 50 CFR 17.3, the U.S. Fish and Wildlife Service defines harass as an action that creates the likelihood of injury to a listed species by annoying it to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, and sheltering.” NMFS supports such a definition when marine mammals are taken incidental to the conduct of a maritime activity. However, the application of Level B harassment as described in this preamble is intended to apply only to incidental taking by harassment for this and similar one-time actions and not for actions directed at marine mammals which may have a lower threshold of application.

Comment 4 : The HSUS, in a follow-up comment to NMFS′ response number 1 in the proposed rule, questions NMFS considering a permanent threshold shift (PTS) in hearing to be Level A harassment. According to HSUS, Level A harassment should be reserved for the “potential to injure.” Since PTS is an injury, in an acoustically oriented species, such as cetaceans, it should be considered as “serious injury,” not Level A harassment.

Response : Depending upon the level of severity, PTS may or may not be considered to be a serious injury. For example, a permanent 15 dB loss across the animal's entire hearing range might be considered a severe injury, whereas a permanent loss of 15 dB in only a few frequencies of the hearing range might not be considered severe. It is simply not possible at this time to make a scientific judgement about the severity of different degrees of permanent hearing loss in marine mammals with the present state of scientific knowledge. However, the MMPA does not specifically include “injury” under the definition of “take;” it includes “harass” under the definition of “take” and specifically includes “potential to injure” only under the definition of “Level A harassment.” Therefore, the MMPA does not distinguish between “potential to injure” and an actual injury, nor does it distinguish between serious injury and non-serious injury. However, it is NMFS' preference to review all small take applications with the potential to cause serious injury under section 101(a)(5)(A) of the MMPA (as the Navy is doing in this action). This was expressed by NMFS in proposed rulemaking establishing the protocol for issuing authorizations under section 101(a)(5)(D) of the MMPA (60 FR 28379, May 31, 1995).

Comment 5 : The CSI, quoting from the National Research Council (NRC, 2000) report on LF sound, notes that the NRC “recommends that in the absence of appropriate, adequately funded research “management of sound in the ocean should remain conservative . . . in the absence of required knowledge.” The CSI, noting that in the absence of adequate data, NMFS and the Navy should apply the Precautionary Principle, the fundamental elements of the principle being: the existence of some indication of threat of harm; the harm is serious or irreversible; scientific uncertainty as to the nature or severity of the outcome; and an obligation on decision-makers. Finally, CSI asks whether NMFS refutes the application of this principle to the LOA and rule-making at hand.

Response : The MMPA prohibits the taking of marine mammals unless exempted or permitted. Taking means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. Therefore, NMFS believes that the precautionary principle is already at the core of the MMPA. However, because the MMPA authorizes the taking of marine mammals under section 101(a)(5), provided certain conditions and requirements are met, NMFS must prudently apply the Precautionary Principle through careful analysis of impacts and implementation of measures that will reduce impacts to marine mammals to the lowest level practicable. As described in this document, NMFS believes that it and the Navy have applied the Precautionary Principle to the greatest extent possible for this action through an extensive aerial monitoring and mitigation program that will protect marine mammals to the greatest extent practicable. The mitigation and monitoring program are discussed later in this document. In addition, NMFS and the Navy have applied the precautionary principle by having the decision-making process in the public forum through NEPA and notice and comment rulemaking.

Comment 6 : OrcaLab requests that NMFS proceed with caution and reject both the Navy's request for permission to proceed with the ship shock trial and the proposal to classify 182 dB as Level B harassment.

Response : The Navy's proposal to classify the 182 dB (re 1 uPa 2 -sec) criterion is discussed later in this document. However, NMFS must clarify that the Navy is not requesting an authorization to conduct the shock trial, only the taking of marine mammals incidental to that activity. Whether or not the Navy conducts the shock trial of the USS WINSTON S. CHURCHILL is the responsibility of the Secretary of the Navy, not NMFS.

Comment 7 : The ACS requests NMFS provide peer-reviewed, independent scientific studies in support of the 182 dB (re 1 uPa 2 -sec) criterion level.

Response : There is no requirement to require independent peer-reviewed research studies prior to issuing an authorization under the MMPA. Independent peer-review for marine mammal monitoring or research is required under section 101(a)(5) of the MMPA only for incidental harassment authorizations that affect Arctic subsistence uses. Since the shock trial is not taking place in Arctic waters, or affecting subsistence species, independent peer review is not required. However, it should be understood that several of the documents referenced in the proposed rule and in this document have been peer reviewed prior to publication in scientific journals. For example, the Schlundt et al. (2000) and Finneran et al . (2000) research papers, which are discussed later in this document, were peer reviewed prior to publication in the Journal of the Acoustical Society of America.

Comment 8 : OrcaLab believes that the cetacean deaths and strandings in the Bahamas in March 2000, which coincided with U.S. Navy activities, should be sufficient evidence of the potential risks to cause NMFS to reject the authorization, at least at this time. OrcaLab and the WDCS recommend that NMFS wait until the ongoing investigation of the causes of the Bahamas strandings are known before allowing the U.S. Navy to carry out further high risk activities that involve exposing marine mammals to potentially harmful underwater sounds. The SLFASWN and others were also concerned about recent marine mammal strandings in the Bahamas and in Florida waters.

The following changes to current management measures were recommended by the Pacific Fishery Management Council (Council,) in consultation with the States of Washington, Oregon, and California, at its April 2-6, 2001, meeting in Sacramento, CA. Pacific Coast groundfish landings will be monitored throughout the year, and further adjustments to the trip limits will be made as necessary to stay within the OYs and allocations announced in the annual specifications and management measures for the groundfish fishery, published in the Federal Register at 66 FR 2338, (January 11, 2001), as amended at 66 FR 10211, (February 14, 2001), and at 66 FR 18409, (April 9, 2001).

A preliminary examination of trawl fleet tow locations from vessel logbook data for May to October 2000 indicates that the fleet has relocated arrowtooth flounder and other flatfish trawl activities away from areas of high canary bycatch. Based on this preliminary examination, the Council recommended increasing previously announced limits for flatfish other than Dover sole. The per month limit for all flatfish except Dover sole taken with a small footrope trawl gear for the May to October period was previously announced as 30,000 lb (13,608 kg). For the May to June period, the limit will be increased to a 50,000-lb (22,680 kg) per month limit for all flatfish except Dover sole, of which no more than 15,000 lb (6,804 kg) may be petrale sole and no more than 10,000 (4,536 kg) may be arrowtooth flounder. For the July to October period, the per month limit for all flatfish except Dover sole taken with a small footrope trawl gear will be 30,000 lb (13,608 kg) as previously announced.

With respect to the incidental catch of canary rockfish, this limit change is more conservative than the previously announced limit that allowed up to 30,000 lb (13,608 kg) of petrale sole or arrowtooth flounder to be landed. Trawl vessels are more likely to encounter canary rockfish when targeting petrale sole and arrowtooth flounder than other flatfish species. Lowering the limits for petrale sole and arrowtooth flounder are expected to reduce opportunities for vessels to take canary rockfish.

The per trip limit for arrowtooth flounder taken with large footrope trawl gear during the January to April periods has been at 20,000 lb (9,072 kg) and was to be reduced to 5,000 lb (2,268 kg) for the May to October period. To provide additional opportunity to harvest arrowtooth flounder and to encourage the harvest of Dover sole on the slope during the month of May, the large footrope trawl allowance for arrowtooth flounder will be set at 15,000 lb (6,804 kg) per trip for May. For the June to October period, the arrowtooth flounder limit will be reduced to 5,000 lb (2,268 kg) per trip as previously announced.

During the 2000 fishery, more than 50 percent of the available commercial allocations of northern minor nearshore rockfish went unharvested. The limited entry fleet took only 19 percent of its minor nearshore rockfish allocation in 2000, while the open access fishery took approximately 74 percent of its allocation. The best available information at the April Council meeting indicated that limited entry fisheries north of 40°10′ N. lat. had landed 4.3 percent of the minor nearshore rockfish available to the fishery, and that open access fisheries had landed 6.6 percent of their minor nearshore rockfish allocation through February 2001.

Most limited entry fixed gear vessels tend to use open access vertical hook-and-line gear to catch these species, but when using open access gear, they are constrained by the lower open access limits. Operating under open access limits has slowed the pace of harvest by limited entry vessels. The current limited entry fixed gear limit for minor nearshore rockfish north is 10,000 lb (4,536 kg) per 2-month period, no more than 4,000 lb (1,814 kg) of which may be species other than black or blue rockfish. The current open access limit for minor nearshore rockfish north is 3,000 lb (1,361 kg) per 2-month period, no more than 900 lb (408 kg) of which may be species other than black or blue rockfish.

To provide greater access to the allowable harvest levels, the Council recommended applying similar limits to both the limted entry fixed gear and open access portions of the fishery. To provide benefits to both segments of the fishery, without adversely affecting either group, and to reduce the risk of an early open access closure, the Council also recommended managing the limited entry and open access nearshore rockfish allocations collectively in 2001. For the May to December period, the limited entry fixed gear limit for minor nearshore rockfish north will be reduced to 7,000 lb (3,175 kg) per 2-month period, no more than 4,000 lb (1,814 kg) of which may be species other than black or blue rockfish. The current open access limit for minor nearshore rockfish north will be increased to 7,000 lb (3,175 kg) per 2-month period, no more than 900 lb (408 kg) of which may be species other than black or blue rockfish. Maintaining the current limits of species other that black or blue rockfish is intended to prevent excess harvest of species commonly associated with the live-fish fishery.

The best available information at the April Council meeting indicated that 24.4 percent of the open access minor nearshore rockfish allocation south of 40 o10′ N. lat. fishery had been taken through February 2001. To slow the pace of the fishery and to ensure an open season in late fall when the markets are most desirable, the Council recommended reducing the cumulative limits. The 2-month cumulative limit for the fishery south of 34o 27′ N. lat. was previously announced as 1,800 lb (816 kg) for the March to December period. This limit will be reduced to 1,200 lb (544 kg) per 2 months. The 2-month cumulative limit for the fishery occurring between 40°10′ N. lat. and 34o 27′ N. lat. was previously announced as 1,800 lb (816 kg) shoreward of the 20 fathom depth contour for the May to June period. This limit will be reduced to 1,200 lb (544 kg) per 2 months shoreward of the 20 fathom depth contour for the May to June period; otherwise, this area is closed to nearshore rockfish until July 1, 2001. For the July to December period, the 2-month cumulative limit for the fishery occurring south of 40°10′ N. lat. will be reduced from the previously announced 1,800 lb (816 kg) to 1,200 lb (544 kg).

During the April Council meeting, Washington State salmon troll fishers requested that the Council consider increased monthly limits for yellowtail rockfish taken in the open access fishery north of 40°10′ N. lat. by vessels fishing for salmon with troll gear. Yellowtail rockfish is believed to be at 63 percent of its unfished biomass, and is therefore considered to be a healthy stock. Management measures aimed at protecting canary rockfish, which are often caught in association with yellowtail rockfish, have reduced the catch opportunity for yellowtail rockfish. Therefore, a portion of the yellowtail rockfish allocation is expected to be unharvested during the 2001 fishing year, as was the case in 2000.

The open access 1-month cumulative limit for yellowtail rockfish north is 100 lb (45 kg) for the January to December period. Analysis of landings data from 1997 to 1999, when yellowtail rockfish trip limits were higher, shows that an average of 50-75 lb (22.08-35.02 kg) per trip of yellowtail rockfish were landed by salmon troll vessels. Although the vast majority of deliveries contained no yellowtail rockfish, many individual trips contained more than 100 lb (45 kg). Correlations between yellowtail and canary rockfish were also examined, and it was found that there was not a particularly strong correlation between the two species when taken with salmon troll gear.

To allow the open access yellowtail rockfish allocation to be fully utilized while still protecting canary rockfish, the Council recommended that a monthly cumulative limit of 300 lb (136 kg) be established specifically for the salmon troll fishery. If a vessel fishes with more than one open access gear type, then this limit cannot be added to the general 100 lb (45 kg) per month open access limit. The Council believes that allowing existing yellowtail bycatch taken with salmon troll gear to b+e landed will not provide an additional incentive for salmon trollers to target yellowtail rockfish, thereby placing canary rockfish at a greater risk.

To prevent individuals who do not routinely catch much yellowtail rockfish with salmon from making trips to specifically target on yellowtail, vessels would be restricted from landing yellowtail (round weight) in amounts greater than one half the weight of the salmon (dressed weight) being landed.

The 2001 fishery specifications and management measures for the Pacific Coast groundfish FMP were published in the Federal Register on January 11, 2001 (66 FR 2338). The specifications contained errors in the assumed discard rates for lingcod and boccacio that require correction. At the November 2000 Council meeting, the open access and limited entry landed catch targets for lingcod and boccacio that were presented to the Council did not include the discard deductions. The Council recommended that the oversight be corrected. A 16-percent discard adjustment will be made for boccacio and a 20-percent discard adjustment will be made for lingcod.

In the annual specification and management measures published in the Federal Register at 66 FR 2338 (January 11, 2001), make the following corrections:

1. On page 2343, Table 1a, in footnote b/, the last sentence is corrected to read as follows: “The assumed discard rate in the limited entry fishery is 20 percent, resulting in a limited entry landed catch target of 163 mt. The open access landed catch target remains at 48 mt.”

2. On page 2345, Table 1a, in footnote n/ the last sentence is corrected to read as follows: “The assumed discard rate is 16 percent, resulting in a limited entry landed catch target of 24 mt and an open access landed catch target of 19 mt.”

For the reasons stated here, NMFS concurs with the Council’s recommendations and announces the following changes to the 2001 annual management measures (66 FR 2338, January 11, 2001, as amended at 66 FR 10211 February 14, 2001, and at 66 FR 18409 April 9, 2001) to read as follows:

1. In Section IV, under B. Limited Entry Fishery Tables 3 and 4 are revised; in Section IV, under C. Trip Limits in the Open Access Fishery , Table 5 is revised; and in Section IV, under C. paragraph(5) is revised to read as follows:

A proposed rule for this action was published in the Federal Register on March 30, 2001, (66 FR 17391). The comment period closed on April 14, 2001.

The FMP was developed jointly by the Mid-Atlantic Fishery Management Council (MAFMC) and the New England Fishery Management Council (NEFMC) (Councils). The implementing regulations for the FMP are found at 50 CFR part 648, subpart L.

Pursuant to 50 CFR 648.230, the Administrator, Northeast Region, NMFS (Regional Administrator), imposes measures for each fishing year designed to ensure that the target fishing mortality rate (F) for the fishing year, as specified in the FMP, is not exceeded. The target F for fishing year 2001 and the management measures (i.e., semi-annual commercial quota and possession limits) for that year are summarized here. Detailed background information regarding the development of the specifications for the 2001 spiny dogfish fishing year was provided in the preamble to the proposed specifications (66 FR 17391, March 30, 2001) and is not repeated here.

The FMP specifies a target F of 0.03 for 2001, to be attained through a commercial quota and possibly other management measures. This final rule establishes a 2001 fishing year commercial quota of 4 million lb (1.81 million kg), allocated on a semi-annual basis as follows: Quota Period 1 (May 1-October 31) is allocated 57.9 percent of the 4-million lb (1.81-million kg) quota, or 2,316,000 lb (1,050,512 kg); Quota Period 2 (November 1-April 30) is allocated 42.1 percent of the 4-million lb (1.81-million kg) quota, or 1,684,000 lb (763,849 kg). This commercial quota was recommended by the Spiny Dogfish Monitoring Committee (Monitoring Committee) to achieve the target F of 0.03, as required in the FMP for the 2001 fishing year. Although the Monitoring Committee and the Councils also recommended that an additional 500,000 lb (226,796 kg) be allocated for experimental fishing projects, the FMP and its implementing regulations do not contain a provision to allow for the allocation of such a set-aside quota for experimental fishing projects. It was only through interim action by the Secretary of Commerce that such a provision was possible for the 2000 fishing year. Therefore, an additional quota set-aside for experimental fishing projects for 2001 is not contained in this final rule.

The Councils differed in their possession limit recommendations. During the rebuilding period, the objective of the FMP is to rebuild the mature female component of the spiny dogfish stock to prevent possible recruitment failure. This portion of the stock, which is the primary spawning biomass of the stock, has traditionally been targeted by the directed spiny dogfish fishery and, consequently, is most in need of protection and rebuilding. In order to discourage directed fishing for spiny dogfish and to allow dogfish caught incidentally in other fisheries to be landed for the entire quota period, the MAFMC recommended per-calendar-day possession limits of 600 lb (272 kg) for Quota Period 1, and 300 lb (136 kg) for Quota Period 2. The NEFMC, however, recommended a per-calendar-day possession limit of 5,000 lb (2,268 kg) for both quota periods.

A possession limit of 5,000 lb (2,268 kg) could facilitate a directed fishery for spiny dogfish. NMFS believes that a directed fishery is not advisable because that fishery has traditionally targeted mature females, due to their larger size and higher value. The primary objective of the FMP is to rebuild the mature female component of the population. In fact, both the disapproved rebuilding target recommended by the Councils and the rebuilding target supported by the Spiny Dogfish Technical Committee are based upon attaining a specified level of abundance of adult female spiny dogfish. To establish possession limits through these specifications at levels that facilitate a directed fishery on adult female spiny dogfish would be counterproductive. Therefore, this final rule establishes per-calendar-day possession limits of 600 lb (272 kg) and 300 lb (136 kg) for Quota Period 1 and Quota Period 2, respectively, to allow for the retention of spiny dogfish caught incidentally in fisheries for other species throughout the entire fishing year, and to provide protection for adult female spiny dogfish.

This final rule also changes the current landing limits. The landing limits are changed to be the maximum amount of spiny dogfish that may be possessed on board and landed in any 1 calendar day. The intent of this change is to enhance at-sea enforcement and to prohibit multiple landings of spiny dogfish in any 1 day. This change is consistent with recent changes in the landing limits for several other Mid-Atlantic fisheries (Loligo squid, scup, and black sea bass).

Two comment letters were submitted to NMFS during the comment period for the proposed rule. One was submitted on behalf of a commercial fishing industry association and the other on behalf of two conservation organizations. These letters addressed two main points: The level of the commercial quota, and the 500,000-lb (2,268-kg) quota set-aside for experimental fisheries.

NMFS considered all comments received during the comment period in making its decision regarding the final specifications and summarizes and responds to these comments here.

Comment 1: One commenter stated that the level of the proposed commercial quota was too low because it was based upon a fishing mortality rate target (F=0.03) that is intended to achieve what the commenter believes to be an inappropriate biomass rebuilding target. The commenter stated that the current biomass rebuilding target is incorrect and that NMFS has rejected other more flexible alternatives proposed by the Councils (167,000 mt in 2000; 180,000 mt in 1999). Further, the commenter believes that achievement of the rebuilding target in the FMP will ultimately result in a record high total level of abundance of spiny dogfish.

Response: The quota of 4.0 million lb (1.81 million kg) will achieve F=0.03 for the 2001 fishing year, as required by the FMP, and as recommended by the Monitoring Committee. A higher quota would be inconsistent with the FMP’s approved rebuilding strategy and, therefore, cannot be implemented by NMFS.

Although the rebuilding strategy contained in the FMP has been approved, the FMP does not currently have an approved biomass rebuilding target. An adult female biomass rebuilding target of 200,000 mt (SSBmax) was determined by the Council’s Joint Scientific and Statistical Committee on January 19, 1999, to be the most appropriate value for Bmsy (the biomass that achieves maximum sustainable yield), based on current information. The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires rebuilding of overfished stocks to a level that will achieve maximum sustainable yield, based upon the best available information. Therefore, NMFS could not approve the adult female biomass rebuilding target of 180,000 mt that was recommended in the original submission of the FMP by the Councils. The Councils must, in the near future, develop an amendment to the FMP to establish an acceptable biomass rebuilding target for spiny dogfish. Some technical work has been done to advance the discussion of this issue. With regard to the commenter’s assertion that the Agency rejected an adult female biomass rebuilding target of 167,000 mt, the Council has not submitted such a recommendation to the agency. The 167,000-mt biomass rebuilding target was considered by the Spiny Dogfish Technical Committee as an adjusted figure that could reflect a hypothesized increase in the area covered by the NEFSC survey trawl, as described at the March 6, 2000, meeting of the Spiny Dogfish Technical Committee. However, the Councils have not yet determined if or how they will utilize this information. As a result, no new additional alternatives have been recommended for further action.

NMFS noted in the final rule that implemented the FMP (65 FR 1557, January 11, 2000) that it considered fully the concern that a 200,000-mt adult female biomass rebuilding target would result in a historically high total level of abundance of spiny dogfish (see Comment 22). In summary, the current spiny dogfish age structure has been seriously distorted by the selective removal of mature females by the fishery. The management measures in the FMP, including the commercial quota, reduce fishing mortality rates to allow the total population to return to equilibrium at a lower level of abundance than that observed in 1999. The preliminary projections in the FMP indicated that the total long-term biomass of a sustainable dogfish fishery would be about 416,000 mt, which is lower than the total 1999 biomass of 515,513 mt.

Comment 2: One commenter supported a commercial quota of no more than 4 million lb (1.81 million kg), but asserted that a 3-million lb (1.36 million kg) quota would be more appropriate, given the scientific advice and rebuilding strategy outlined in the FMP.

Response: The quota of 4.0 million lb (1.81 million kg) that NMFS is establishing through these final specifications is consistent with the objective to achieve F=0.03 for the 2001 fishing year, as required by the FMP, and as recommended by the Monitoring Committee. The Monitoring Committee initially calculated the yield projection at F=0.03 for 2001 to be about 3.5 million lb (1.59 million kg) using a mean estimated population size. After considering the uncertainty and variability in the population estimates for spiny dogfish that were previously described in the interim final rule (65 FR 25887, May 4, 2000), the Monitoring Committee recommended a commercial quota of 4 million lb (1.81 million kg).

Comment 3: One commenter urged NMFS to establish a 500,000-lb (2,268-kg) quota set-aside for experimental fishing projects. The commenter indicated that a failure to do so would delay the collection of additional management and scientific information and delay efforts by the fishing industry to devise gear and fishing modifications to harvest male spiny dogfish exclusively.

Another commenter opposed the establishment of a quota set-aside for experimental projects. The commenter mentioned that no projects were submitted during the 2000 fishing year, so justification for the additional allocation this year is lacking. The commenter wrote that any quota set-aside should be deducted from the overall 4-million lb (1.81 million kg) commercial quota.

Response: Although no proposals were received in 2000 when the provision was included as part of the interim rule, industry members have expressed some interest in investigating alternative fishing methods for male-only dogfish fisheries. A limited experimental fishery was conducted for this purpose in North Carolina state waters. Both Councils proposed that NMFS should allow for a set-aside quota for 2001 and they analyzed the set-aside quota in their submission. However, there is currently no provision in the FMP to allow the establishment of a set-aside quota. The set-aside quota could be implemented through an amendment to the FMP if the Councils decide to pursue this measure.

The final rule contains a provision not contained in the proposed rule. The final rule revises § 648.230(d)(1) to correct a one-day error in the length of the first allocation period to extend it through October 31 rather than through October 30.

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

This action establishes annual quotas and related management measures for the spiny dogfish fishery, which are used to control the harvest of spiny dogfish and to restrict landings when quotas are attained. This action must be taken immediately upon the start of the 2001 fishing year on May 1, 2001, to conserve this resource. It would be impracticable to delay implementation of the quota provisions, because doing so would prevent NMFS from carrying out its mandate to prevent overfishing of the spiny dogfish resource. Therefore, there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delayed effectiveness period for the implementation of the 2001 spiny dogfish quotas and related management measures, including the possession limit restrictions, which are needed to enforce effectively the possession limits. With respect to the change to § 648.230(d)(1), which merely corrects a one-day error in the length of the first allocation period, a delay in effective date is unnecessary given that the one-day extension occurs six months from May 1.

NMFS and the MAFMC prepared a FRFA for this action. A copy of the FRFA is available from the Regional Administrator (see ADDRESSES ). The preamble to the proposed specifications included a detailed summary of the analyses contained in the IRFA, which is not repeated here. A summary of the FRFA focusing upon the impacts of the final measures follows:

A description of the reasons why this action is being taken by the agency and the objectives of this final rule are explained in the preambles to the proposed rule and this final rule. This action does not contain any collection-of-information, reporting, recordkeeping, or other compliance requirements. It does not duplicate, overlap, or conflict with any other Federal rules. There are no compliance costs associated with this final rule.

There were no comments received in reference to the Initial Regulatory Flexibility Analysis (IRFA) description of the expected impacts of the proposed regulations on small entities.

These measures potentially impact a total of 596 vessels that reported (based on vessel trip report data) spiny dogfish landings to NMFS in 1999. However, any of the 2,759 vessels that obtained Federal spiny dogfish permits could potentially be affected by the proposed measures. Data for individual vessels were not available from the 2000 fishing year at the time of analysis.

In the IRFA, NMFS analyzed three alternatives. The MAFMC alternative (Alternative 1) included a commercial quota of 4 million lb (1,814 mt); possession limits of 600 lb (272 kg) during Quota Period 1 and 300 lb (136 kg) during Quota Period 2; and a 500,000-lb (2,268-kg) experimental fishery quota. The NEFMC alternative (Alternative 2) included a commercial quota of 4 million lb (1,814 mt); a possession limit of 5,000 lb (2,268 kg) for both quota periods; and a 500,000-lb (2,268-kg) experimental quota. Alternative 3 was no management action.

In this final rule, NMFS is implementing Alternative 1, without the 500,000-lb (2,268-kg) experimental quota set-aside. This final rule also modifies the trip limits to be possession limits, with the additional provision that these levels are the maximum amount that may be landed in any single calendar day. Although the spiny dogfish quota set-aside of 500,000 lb (2,268 kg) for experimental fisheries was analyzed under the three alternatives in the IRFA by the Councils, there is no authority under the FMP to make such an allocation.

The modification of the trip limits to possession limits and the requirement that these levels be set at the maximum amount that may be landed in 1 calendar day will enhance at-sea enforcement by prohibiting possession of spiny dogfish on board a vessel in excess of the specified levels, rather than simply prohibiting landings in excess of the specified levels. Prohibiting multiple landings of spiny dogfish in 1 day will prevent vessels from landing excessive amounts when spiny dogfish are in nearshore areas. These changes are necessary to adhere to the original intent of the trip limits and to ensure that the conservation objectives of the management measures are not compromised. They are not expected to result in any significant economic impacts or differential impacts on small entities. Such measures should provide fair and equal access of vessels to the spiny dogfish quota.

The measures implemented by this final rule are intended to minimize economic impacts on small entities while achieving the conservation goals and objectives of the FMP and the Magnuson-Stevens Act. The potential change in overall revenues under the 4-million lb (1,814-mt) quota was evaluated relative to landings and revenues derived during the 2000 fishing year (6.7 million lb (3,039 mt) of landings, valued at $1,072 million). The analysis assumed that the revenues of the 596 vessels that landed spiny dogfish in 1999 would be reduced proportionately by the measures to be implemented by this final rule for the 2001 fishing year. The reduction in overall gross revenues to vessels was estimated to be about $432,000, or about $725 per vessel, compared to the 2000 fishing year. Of the 596 vessels, 36 would be expected to experience a reduction in total gross revenues (all species combined) of more than 5 percent as a result of the 2.7-million lb (1,224-mt) reduction from actual 2000 fishing year landings. This represents 6 percent of the vessels that landed spiny dogfish in 1999. The remaining 560 vessels would be expected to experience a reduction in total gross revenues of less than 5 percent. Although revenues would increase in the short-term without a commercial quota (status-quo, no-action alternative) as compared to year 2000 spiny dogfish landings, long-term revenues from an unregulated fishery would continuously decline as the stock size is further reduced, due to continued overfishing.

Under the possession limits implemented through this final rule, it is projected that landings in Quota Period 1 may reach the semi-annual quota allocation (2,316,000 lb (1,050 mt)) before the close of Quota Period 1 on about July 24, 2001 (128 days into the quota period) and that landings during Quota Period 2 would not achieve the full semi-annual quota allocation (1,684,000 lb (764 mt)) by the end of Quota Period 2 on April 30, 2002. Therefore, landings for the entire 2001 fishing year are projected to reach only 2,930,663 lb (1,329 mt) of the entire 4-million lb (1,814-mt) annual quota. This translates to a reduction in spiny dogfish trips of 21 percent for Quota Period 1 and no reduction in the amount of trips for Quota Period 2. The analysis assumed that trips would be eliminated to the extent that the possession limits on spiny dogfish make those trips unprofitable. However, the analysis did not account for behavioral changes by vessel operators, which could impact the amount of landings. These changes could not be analyzed. Also, since vessels without Federal permits (i.e., state-permitted vessels) are not captured in the analysis, additional landings are likely to occur.

The possession limits implemented by this final rule were preferable to the status quo alternative (no possession limits) and the possession limit recommendation under Alternative 2 (5,000 lb (2,268 kg) for both quota periods) because they achieve conservation benefits consistent with the objectives of the FMP and with the Magnuson-Stevens Act, and provide economic relief to small entities by allowing landings of incidentally caught spiny dogfish for the entire fishing year, thereby possibly reducing discards. The other two alternatives did not achieve the conservation objectives of the FMP and the Magnuson-Stevens Act, or, in the case of Alternative 2, would encourage a short, derby-style fishery lasting approximately 41 days per quota period, after which all landings of spiny dogfish would be prohibited.

The impact of the final specifications for the 2001 fishing year will be greatest in Massachusetts, North Carolina, Maryland, Maine, and New Jersey, which accounted cumulatively for 90 percent of spiny dogfish landings from 1988 through 1997. The communities of Wachapreague, VA, Plymouth, MA, and Scituate, MA, have benefitted from dogfish landings that made up 76 percent, 74 percent, and 21 percent, respectively, of the value of all landed fish, based on 1997 NMFS landings data. Because these communities have recently derived a relatively high percentage of their fishing income from spiny dogfish, they will be most impacted by the commercial quota and possession limits in the final specifications. These impacts were also experienced in the 2000 fishing year. Two of these communities, Plymouth and Scituate, MA, are suburban areas of a large city (Boston) and are substantially engaged in the businesses of the metropolitan area. The other community, Wachapreague, VA, has significant fishing activities, but also attracts retirees and tourism, and is substantially dependent on these two sectors for economic activity. The analysis also concludes that small vessels (25 to 49 ft (7.6 to 14.9 m)) constitute 91 percent of affected vessels (those vessels experiencing a reduction in revenues of greater than 5 percent) under a 4-million lb (1,814-mt) commercial quota. However, if no action is taken, communities benefitting from dogfish landings would experience greater lost revenues in the long term due to stock collapse as a result of allowing a directed fishery in the short term.

A formal section 7 consultation under the Endangered Species Act (ESA) was reinitiated for the FMP by NMFS on May 4, 2000, as a result of recent entanglements of endangered and threatened marine mammals and sea turtles to determine whether this fishery jeopardizes ESA-listed species. In a biological opinion dated August 13, 1999, the Assistant Administrator for Fisheries, NOAA, determined that fishing activities conducted under the FMP and its implementing regulations may adversely affect but are not likely to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS or result in the destruction or adverse modification of right whale critical habitat. For endangered whales, this conclusion assumed the Atlantic Large Whale Take Reduction Plan, as implemented, would be effective at reducing incidental mortality and serious injury of the whales to insignificant levels approaching zero mortality and serious injury rate.

Fisheries, Fishing, Reporting and recordkeeping requirements.