Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed 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 summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NE-32-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-NE-32-AD, 12 New England Executive Park, Burlington, MA 01803-5299.

The manufacturer recently notified the FAA of four centrifugal compressor impellers, serial numbers 83317, 83327, 83328, and 83330, that may have been inadvertently misidentified. These impellers are installed in Honeywell International, Inc. (formerly AlliedSignal, Inc., and Textron Lycoming) T5313B series, T5317 series, and T53 series turboshaft engines. This misidentification allows these impellers to be operated beyond their design service life. This proposal would require for T5313B series and T5317 series engines, initial and repetitive inspections of those compressor impellers, if installed. This proposal would also require for T53 series engines, a revised operating cycle count (prorate) for those four centrifugal compressor impellers if installed, and initial and repetitive inspections, with replacement within 300 operating hours or six calendar months, whichever occurs first, after the effective date of this AD. In addition, this proposal would require the marking of those four compressor impellers. The actions specified in this AD are intended to prevent premature failure of the impellers from being operated beyond their design service life, which could result in an uncontained engine failure, in-flight shutdown, or damage to the helicopter.

The FAA has reviewed and approved the technical contents of Honeywell International, Inc. Service Bulletins (SB's) T5313B/17-0020, Revision 5, dated March 31, 2001, T53-L-13B-0020, Revision 2, dated April 25, 2001, T53-L-13B/D-0020, Revision 1, dated April 25, 2001, and T53-L-703-0020, Revision 1, dated April 25, 2001, that describe procedures for conducting a revised centrifugal compressor impeller operating cycle count (prorate). The FAA has also reviewed and approved the technical contents of Textron Lycoming SB T5313B/17-0052, Revision 2, dated December 16, 1993, AlliedSignal, Inc. SB's T53-L-13B-0108, Revision 1, dated November 22, 1999, T53-L-13B/D-0108, Revision 1, dated November 22, 1999, and T53-L-703-0108, Revision 1, dated November 22, 1999, that describe procedures for visual and fluorescent penetrant inspections of centrifugal compressor impellers.

Since an unsafe condition has been identified that is likely to exist or develop on other engines of the same type design registered in the United States, this AD is being issued to prevent premature failure of the impellers from being operated beyond their design service life, which could result in an uncontained engine failure, in-flight shutdown, or damage to the helicopter. The actions would be required to be accomplished in accordance with compliance requirements contained in this proposed rule.

The FAA estimates there are approximately four Honeywell International, Inc., (formerly AlliedSignal, Inc., and Textron Lycoming) T5313B series, T5317 series, and former military T53 series turboshaft engines having the misidentified centrifugal compressor impellers, that are installed on helicopters of U.S. registry. The FAA also estimates that it would take approximately eight work hours per engine to accomplish the inspection, and that the average labor rate is $60 per work hour. No additional work hour cost would be incurred if the centrifugal compressor impeller is replaced during normal engine disassembly. The prorated cost of a replacement compressor impeller is estimated to be $20,000. Based on these figures, the total labor cost impact of the proposed AD on U.S. operators is estimated to be $21,920.

This proposed rule does not have federalism implications, as defined in Executive Order 13132, because it would 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. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposed rule.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before we take action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments sent will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must send a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NE-62-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 99-NE-62-AD, 12 New England Executive Park, Burlington, MA 01803-5299.

On December 29, 1999, the FAA issued AD 99-27-15, Amendment 39-11496 (65 FR 692, January 6, 2000), to require visually inspecting P3B and Ps3 sense lines and FADEC P3B and Ps3 sensing ports and fittings, cleaning P3B and Ps3 fittings and sensing ports, purging the P3B and Ps3 systems of moisture, and, if necessary, blending of high metal, nicks, burrs, or scratches on P3B and Ps3 fitting threads. That action was prompted by seven reports of loss of thrust control due to corruption of the signals to the FADEC caused by water freezing in the Ps3 sensing system. That condition, if not corrected, could result in loss of thrust control due to corruption of the P3B and Ps3 signals to the FADEC, which if it occurs in a critical phase of flight, could result in loss of airplane control. Since that AD was issued, improved hardware has been introduced as terminating action to the visual inspections, cleanings, purging, and blending of metal. Also, alternative methods of compliance approved for AD 99-27-15 are incorporated as conventional methods of compliance in this proposal. Also, the GE90-92B engine model has been removed from the AD applicability. The FAA recently removed the GE90-92B engine from the type certificate at the request of GE.

The FAA has reviewed and approved the technical contents of GE Alert Service Bulletin (ASB) GE90 73-A0060, Revision 3, dated September 14, 2000, that describes procedures for:

• Visually inspecting P3B and Ps3 sense lines and FADEC sensing ports and fittings.

• Cleaning P3B and Ps3 fittings and sensor ports, purging the P3B and Ps3 systems of moisture.

• Blending of high metal, nicks, burrs, or scratches on Ps3 and P3B fitting threads.

The FAA has also reviewed and approved the technical contents of GE Service Bulletin (SB) GE90 S/B 75-0031, Revision 3, dated March 30, 2001, that describes procedures for replacing existing P3B and Ps3 lines and related brackets and clamping with redesigned hardware.

This proposal contains provisions for initial actions and GE ASB GE90 73-A0060, Revision 3, dated September 14, 2000, assumes that all operators have completed the initial actions based on field reports. If, however, operators have already accomplished the required initial actions, they need not repeat those actions, but may proceed directly to accomplishing the repetitive actions, or P3B and Ps3 line replacement. Also, GE SB GE90 S/B 75-0031, Revision 3, dated March 30, 2001, recommends a hardware installation date of not later than March 31, 2001, and this proposal requires hardware installation at the next shop visit after the effective date of this AD, or no later than October 31, 2001. The FAA is aware that almost all affected GE90 engines have been retrofitted with the new design hardware and, therefore, has established this end date of not later than October 31, 2001, to complete the retrofit program before the colder temperatures of winter arrive.

Since an unsafe condition has been identified that is likely to exist or develop on other engines of the same type design, this proposed AD would supersede AD 99-27-15, to require:

• Visual inspections for high metal, nicks, burrs, or scratches on P3B and Ps3 fitting threads, and, if necessary, blending of these.

• Visual inspections for moisture, debris, or ice in P3B and Ps3 FADEC fittings, ports, and open sense lines.

• Cleaning of P3B and Ps3 FADEC fittings and sensing ports.

• Purging of any moisture from the P3B and Ps3 sense system.

• Replacement of existing P3B and Ps3 lines and related brackets and clamping with redesigned hardware at the next shop visit after the effective date of this AD, or no later than October 31, 2001.

• Engine idle leak check run following the maintenance activity to confirm there are no P3B or Ps3 sense system faults present, or a dual signoff procedure by a 2nd mechanic.

There are about 208 engines of the affected design in the worldwide fleet. The FAA estimates that 28 engines installed on aircraft of U.S. registry would be affected by this proposed AD, that it would take about one work hour per engine to do the proposed inspection and purging, and that the average labor rate is $60 per work hour. Based on these figures, the total proposed AD cost impact on U.S. operators for one inspection is estimated to be $1,680. The FAA also estimates that it would take about four work hours per engine to do the proposed P3B/Ps3 sense line replacement, and that the average labor rate is $60 per work hour. The manufacturer has stated that it may provide the redesigned hardware at no cost to operators. Based on this information, the total proposed AD cost impact on U.S. operators for sense line replacement is estimated to be $6,720.

This proposal does not have federalism implications, as defined in Executive Order 13132, because it would 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. Accordingly, the FAA has not consulted with state authorities before publication of this proposal.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration (FAA) proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

On February 18, 1982, the Secretary of the Interior approved the Maryland program. You can find background information on the Maryland program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the February 18, 1982, Federal Register (47 FR 7214). You can find subsequent actions concerning the conditions of approval and program amendments at 30 CFR 920.15 and 920.16.

By an undated letter received by OSM on May 7, 2001 (Administrative Record No. 578-12), Maryland submitted a copy of House Bill 984 as a formal proposed amendment to its program. The House Bill was enacted to require members of the Land Reclamation Committee to file a United States Department of Interior State Employee Statement of Employment and Financial Interests. Maryland submitted the formal amendment to satisfy a required amendment at 30 CFR 920.16(l).

Maryland proposes to add new paragraph 4. to Section 15-204 of the Annotated Code of the Public General Laws of Maryland, Environment, as follows:

(4) Members of the Land Reclamation Committee shall file a United States Department of Interior State Employee Statement of Employment and Financial Interests.

As a result of the proposed addition above, existing paragraph (4) is re-numbered as paragraph (5).

In accordance with the provisions of 30 CFR 732.17(h), OSM is seeking comments on whether the proposed amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If the amendment is deemed adequate, it will become part of the Maryland program.

Written Comments: If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, should be confined to issues pertinent to the notice, and should explain the reason for your recommendation(s). We may not be able to consider or include in the Administrative Record comments delivered to an address other than the one listed above (see ADDRESSES ).

Electronic comments: Please submit Internet comments as an ASCII, WordPerfect, or Word file avoiding the use of special characters and any form of encryption. Please also include Attn: SPATS NO. MD-050-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Appalachian Regional Coordinating Center at (412) 937-2153.

Availability of Comments: Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours at the OSM Administrative Record Room (see ADDRESSES ). Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Public Hearing: If you wish to speak at the public hearing, you should contact the person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., E.D.T. on June 27, 2001. The location and time of the hearing will be arranged with those persons requesting the hearing. If no one requests an opportunity to speak at the public hearing, the hearing will not be held.

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

Any disabled individual who has need for a special accommodation to attend a public hearing should contact the individual listed under FOR FURTHER INFORMATION CONTACT.

Public Meeting: If only one person requests an opportunity to speak at a hearing, a public meeting, rather than a public hearing, may be held. If you wish to meet with OSM representatives to discuss the proposed amendment, you may request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the public and, if possible, notices of meetings will be posted at the locations listed under ADDRESSES. A written summary of each meeting will be made a part of the Administrative Record.

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

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

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

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

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed state regulatory program provision does not constitute a major federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

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

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

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the state submittal which is the subject of this rule is based upon counterpart federal regulations for which an analysis was prepared and a determination made that the federal regulation was not considered a major rule.

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

For additional information, see the Direct Final rule document which is located in the Rules section of this Federal Register . Copies of the request and the EPA's analysis are available for inspection at the above address. (Please telephone Christos Panos at (312) 353-8328 before visiting the Region 5 Office.)

See the information provided in the Direct Final action of the same title which is located in the Rules and Regulations Section of this Federal Register .

Throughout this document wherever “we,” “us,” or “our” are used we mean the EPA.

The EPA is proposing to approve revisions to the particulate matter regulations for Rolls-Royce Allison in Marion County, Indiana. IDEM submitted the revised regulation on August 31, 2000 as amendments to its SIP.

The revisions are a name change for the company and the addition of landfill gas as an alternate fuel. These SIP revisions result in no increase of particulate matter emissions.

For additional information see the direct final rule published in the rules section of this Federal Register .

Throughout this document wherever “we,” “us,” or “our” are used we mean the EPA.

The EPA is proposing to approve revisions to sulfur dioxide emissions limits for the Lubrizol Corporation facility in Lake County, Ohio. Ohio EPA submitted the revised regulations on November 9, 2000 as an amendment to its SIP. These revisions are the adjustment of six short-term limits (three relaxed and three tightened), the addition of an annual limit, and the requirement of a continuous emission rate monitoring system (CERMS).

For additional information see the direct final rule published in the rules section of this Federal Register .

This proposal addresses the following local rule: MBUAPCD 404, Sulfur Compounds and Nitrogen Oxides. In the Rules and Regulations section of this Federal Register , we are approving this local rule in a direct final action without prior proposal because we believe this SIP revision is not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.

This section provides additional information by addressing the following questions:

Title V of the CAA Amendments of 1990 required all state and local permitting authorities to develop operating permit programs that met certain federal criteria. In implementing the title V operating permit programs, the permitting authorities require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. The focus of the operating permit program is to improve enforcement by issuing each source a permit that consolidates all of the applicable CAA requirements into a federally enforceable document. By consolidating all of the applicable requirements for a facility, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.

Sources required to obtain an operating permit under the title V program include: “major” sources of air pollution and certain other sources specified in the CAA or in EPA's implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain operating permits. Examples of major sources include those that have the potential to emit 100 tons per year or more of volatile organic compounds (VOCs), carbon monoxide, lead, sulfur dioxide, nitrogen oxides (NO X ), or particulate matter (PM 10 ); those that emit 10 tons per year of any single hazardous air pollutant (specifically listed under the CAA); or those that emit 25 tons per year or more of a combination of hazardous air pollutants (HAPs). In areas that are not meeting the National Ambient Air Quality Standards for ozone, carbon monoxide, or particulate matter, major sources are defined by the gravity of the nonattainment classification. For example, in ozone nonattainment areas classified as “serious,” major sources include those with the potential of emitting 50 tons per year or more of VOCs or NO X .

Where a title V operating permit program substantially, but not fully, met the criteria outlined in the implementing regulations codified at 40 Code of Federal Regulations (CFR) part 70, EPA granted interim approval contingent on the state revising its program to correct the deficiencies. Because the North Carolina, Mecklenburg County, and Western North Carolina programs substantially, but not fully, met the requirements of part 70, EPA granted interim approval to these programs in a rulemaking (60 FR 57357) published on November 15, 1995. The interim approval notice described the conditions that had to be met in order for the North Carolina, Mecklenburg County, and Western North Carolina programs to receive full approval. North Carolina submitted eight revisions to its interimly approved operating permit program; these revisions were dated March 23, 1995, August 16, 1996, March 19, 1997, July 29, 1998, November 15, 1999, January 21, 2000, June 14, 2000, and August 28, 2000. Mecklenburg County, which adopts the State's rules, submitted five revisions to its interimly approved program; these revisions were dated October 11, 1999, November 2, 1999, December 8, 1999, December 28, 1999, and July 26, 2000. Western North Carolina, which also adopts the State's rules, submitted five revisions to its interimly approved program; these revisions were dated January 23, 1997, September 29, 1999, November 10, 1999, January 5, 2000, and August 17, 2000. This document describes changes that have been made to the North Carolina, Mecklenburg County, and Western North Carolina operating permit programs since interim approval was granted.

Full approval of the North Carolina, Mecklenburg County, and Western North Carolina title V operating permit programs was made contingent upon the following rule changes, as stipulated in EPA's November 15, 1995 rulemaking:

(1) Revise Rule 15A NCAC 2Q.0507 (and the corresponding local regulations) to require the inclusion of all fugitive emissions in permit applications, in accordance with 40 CFR 70.3(d). North Carolina revised Rule 15A NCAC 2Q.0507(b) to specify that applications include all the information described in 40 CFR 70.3(d); the state-effective rule change was submitted to EPA on March 19, 1997. Mecklenburg County adopted the state-effective rule change and submitted documentation of the adoption to EPA on December 8, 1999. Western North Carolina also adopted the state-effective rule change and submitted documentation of the adoption to EPA on January 23, 1997.

(2) Revise Rule 15A NCAC 2Q.0502(c) (and the corresponding local regulations) to ensure that research and development facilities which are collocated with manufacturing facilities and which are under common control and belonging to a single major industrial grouping will be considered as the same facility for determining title V applicability. North Carolina responded by removing Rule 15A NCAC 2Q.0502(c) from its regulations; the state-effective regulatory changes were submitted to EPA on January 21, 2000 and August 28, 2000. Mecklenburg County adopted the State's rule changes and submitted documentation to EPA of the adoption on December 28, 1999. Western North Carolina also adopted the State's rule changes and submitted documentation of the adoption to EPA on January 5, 2000 and August 17, 2000.

(3) Revise Rule 15A NCAC 2Q.0102(b)(2)(B) (and the corresponding local regulations) to adjust the insignificant emission threshold levels downward from potential emissions of 40 tons per year (tpy) to five tpy for criteria pollutants and 1000 pounds per year for HAPs, and to provide that the activities listed in Rule 15A NCAC 2Q.0102(b)(2)(F) are subject to these caps. In addition, EPA notified North Carolina, Mecklenburg County, and Western North Carolina on July 15, 1996, of another deficiency in the insignificant activities provisions that came to light as a result of the court decision in Western States Petroleum Association (WSPA) v. EPA, 87 F.3d 280 (D.C. Cir. 1996); Rule 15A NCAC 2Q.0102(a) (and the corresponding local regulations) had inadvertently been approved without identifying the exemption of insignificant activities from permit requirements as a program deficiency. In the Federal Register document granting final interim approval to the Alaska operating permit program (61 FR 64466, December 5, 1996), EPA acknowledged that its approval of the insignificant activities provisions in the North Carolina programs may have been inconsistent with the WSPA decision. Further review revealed this to be true, which prompted EPA to follow up its July 1996 letter to the North Carolina agencies with a formal notification letter, dated August 14, 1999, that a Notice of Deficiency would be published in the Federal Register if the State and local agencies did not address the deficiencies.

North Carolina addressed the deficiencies in its insignificant activities provisions by removing Rule 15A NCAC 2Q.0102 from its operating permit program and revising Rule 15A NCAC 2Q.0503 to define two categories of insignificant activities: “insignificant activities because of category” and “insignificant activities because of size or production rate.” The activities listed in the first category are identical to the insignificant activities identified by EPA in 40 CFR 71.5(c)(11)(i) except for the addition of new residential wood heaters subject to 40 CFR part 60, subpart AAA, which are exempt from permit requirements (see 40 CFR 70.3(b)(4)(i)).

The second category, “insignificant activities because of size or production rate,” is defined as “any activity whose emissions would not violate any applicable emissions standard and whose potential emission of particulate, sulfur dioxide, nitrogen oxides, volatile organic compounds, and carbon monoxide before air pollution control devices, i.e., potential uncontrolled emissions, are each no more than five tons per year and whose potential emissions of hazardous air pollutants before air pollution control devices are each below 1000 pounds per year.” The State also made the following rule changes: (a) Revised Rule 15A NCAC 2Q.0508(f)(3) to remove the exemption from monitoring, recordkeeping, and reporting requirements for insignificant activities; (b) revised Rule 15A NCAC 2Q.0508(z) to eliminate the exemption from permitting for sources that have no applicable requirements; and (c) revised Rule 15A NCAC 2Q.0508(aa) to require the inclusion of insignificant activities in permits. State-effective rule changes that satisfy federal requirements were submitted to EPA on January 21, 2000 and August 28, 2000. Mecklenburg County adopted the State's rule changes and submitted documentation of the adoption to EPA on July 26, 2000. Western North Carolina also adopted the State's rule changes and submitted documentation of the adoption to EPA on January 5, 2000 and August 17, 2000.

(4) Revise Rule 15A NCAC 2Q.0514(a) to clarify that: (a) Administrative permit amendments may be used to change test dates or construction dates only as long as no applicable requirements are violated in the process, and (b) an administrative permit amendment may be used to move terms and conditions from the state-enforceable portion of the permit to the state-and federal-enforceable portion of the permit provided that the term being moved is a requirement which has become federally enforceable through sections 110, 111, 112, or other parts of the CAA. North Carolina added language to Rule 15A NCAC 2Q.0514(a)(4) stipulating that changes in test dates or construction dates qualify as administrative permit amendments “provided that no applicable requirements are violated by the change in test dates or construction dates.” North Carolina also added language to Rule 15A NCAC 2Q.0514(a)(5) stipulating that administrative permit amendments may be used to move terms and conditions from the state-enforceable portion of the permit to the state-and-federal enforceable portion of the permit “provided that terms and conditions being moved have become federally enforceable through section 110, 111, or 112 or other parts of the federal Clean Air Act.” The state-effective rule changes were submitted to EPA on March 19, 1997. Mecklenburg County adopted the State's rule changes and submitted documentation to EPA of the adoption on October 11, 1999. Western North Carolina also adopted the State's rule changes and submitted documentation of the adoption to EPA on January 23, 1997.

(5) Revise Rule 15A NCAC 2Q.0515(f) to stipulate that a permit shield may not be granted for a minor permit modification. North Carolina responded by deleting the language in Rules 15A NCAC 2Q.0512(a)(5) and 15A NCAC 2Q.0515(g) (previously Rule 15A NCAC 2Q.0515(f)) that allowed permit shields for minor permit modifications. The state-effective rule changes were submitted to EPA on March 19, 1997. Mecklenburg County adopted the State's rule changes and submitted documentation to EPA of the adoption on October 11, 1999. Western North Carolina also adopted the State's rule changes and submitted documentation of the adoption to EPA on January 23, 1997.

(6) Revise Rule 15A NCAC 2Q.0515(d) to specify that in the event an applicant submits a single minor permit modification which exceeds the emissions thresholds listed in Rule 15A NCAC 2Q.0515(c), the minor permit modification must be processed within 90 days after receiving the application or 15 days after the end of EPA's 45-day review period, whichever is later. North Carolina responded by adding a new Rule 15A NCAC 2Q.0515(d) to satisfy this part 70 requirement and submitted the state-effective rule change to EPA on March 19, 1997. Mecklenburg County adopted the State's rule change and submitted documentation to EPA of the adoption on October 11, 1999. Western North Carolina also adopted the State's rule change and submitted documentation of the adoption to EPA on January 23, 1997.

(7) Revise Rule 15A NCAC 2Q.0517(b) to provide that: (a) An operating permit shall be reopened and reissued within 18 months after a newly applicable requirement is promulgated; and (b) no reopening is required if the effective date of the newly applicable requirement is after the expiration of the permit, unless the term of the permit was extended based on the fact that it had not been renewed prior to its expiration. North Carolina revised Rule 15A NCAC 2Q.0517(b) to require the completion of permit reopenings within 18 months after newly applicable requirements are promulgated. The rule was also revised to state that “[n]o reopening is required if the effective date of the requirement is after the expiration of the permit term unless the term of the permit was extended pursuant to Rule .0513(c)...” The state-effective rule changes were submitted to EPA on March 19, 1997. Mecklenburg County adopted the State's rule changes and submitted documentation to EPA of the adoption on October 11, 1999. Western North Carolina also adopted the State's rule changes and submitted documentation of the adoption to EPA on January 23, 1997.

(8) Revise Rule 15A NCAC 2Q.0518(f) to remove the condition “subject to adjudication” from the requirement to take action on a complete permit application. North Carolina deleted Rule 15A NCAC 2Q.0518(f) and submitted the state-effective rule revision to EPA on March 23, 1995. Mecklenburg County adopted the State's rule change and submitted documentation to EPA of the adoption on December 8, 1999. Western North Carolina also adopted the State's rule change and submitted documentation of the adoption to EPA on January 23, 1997.

North Carolina made several additional program changes after EPA granted interim approval on November 15, 1995. The operating permit application processing schedule in Rule 15A NCAC 2Q.0507(f) was deleted and replaced with a new application processing schedule in Rule 15A NCAC 2Q.0525. The new schedule established time frames for the State to complete various aspects of permit issuance, including acknowledging receipt of the application, the completeness check, the technical review, mailing the public notice, and holding a public hearing if one is requested. Rule 15A NCAC 2Q.0525 was initially submitted to EPA on March 23, 1995 and then the State amended it to ensure that final action on permit applications would be taken within 18 months of being deemed complete, as stipulated in 40 CFR 70.7(a)(2). The amended rule was submitted to EPA on July 29, 1998. Mecklenburg County adopted the State's rule changes and submitted documentation to EPA of the adoption on October 11, 1999. Western North Carolina also adopted the State's rule change and submitted documentation of the adoption to EPA on January 5, 2000.

The State also revised the permit content provisions in Rule 15A NCAC 2Q.0508(g) to further delineate the requirements for facilities subject to the Risk Management Program in section 112(r) of the CAA. The revised rule was submitted to EPA on January 21, 2000. Mecklenburg County did not adopt this rule revision, but Western North Carolina did adopt the revision and submitted documentation to EPA on November 10, 1999.

Pursuant to 40 CFR 70.9(c), the State, Mecklenburg County, and Western North Carolina submitted fee program updates demonstrating that their title V programs are adequately funded by operating permit fees. These updates were submitted on November 15, 1999, November 2, 1999, and September 29, 1999, respectively. The State also submitted a Title V Air Quality Permit Program Accountability Report on June 14, 2000 showing the aggregate fee payments collected from title V sources and a summary of the reasonable direct and indirect expenditures required to develop and administer the title V program. Rule 15A NCAC 2Q.0206(f) requires the State to prepare an annual accountability report and make it publicly available.

North Carolina, Mecklenburg County, and Western North Carolina have fulfilled the conditions of the interim approval granted on November 15, 1995, and EPA proposes full approval of their title V operating permit programs. EPA also proposes approval of other program changes made since the interim approval was granted. The regulations in North Carolina's federally approved title V program include Rules 15A NCAC 2Q.0201 through 2Q.0206 (fees), 2Q.0401 and 2Q.0402 (acid rain), and 2Q.0501 through 2Q.0525 (title V permitting procedures). Mecklenburg County's title V program includes Mecklenburg County Air Pollution Control Ordinance (MAPCO) Regulations 1.5231 (fees), 1.5302 through 1.5304 (enforcement), 1.5401 and 1.5402 (acid rain), and 1.5501 through 1.5525 (title V permitting procedures). Western North Carolina's title V program includes Western North Carolina Regional Air Quality Agency (WNCRAQA) Code Chapter 17 .0200 (fees), .0400 (acid rain), and .0501 through .0525 (title V permitting procedure s).

EPA requests comments on the program revisions discussed in this proposed action. Copies of the North Carolina, Mecklenburg County, and Western North Carolina submittals and other supporting documentation used in developing the proposed full approval are contained in docket files maintained at the EPA Region 4 office. The docket is an organized and complete file of all the information submitted to, or otherwise considered by, EPA in the development of this proposed full approval. The primary purposes of the docket are: (1) To allow interested parties a means to identify and locate documents so that they can effectively participate in the approval process, and (2) to serve as the record in case of judicial review. EPA will consider any comments received in writing by July 12, 2001.

The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it is not an economically significant regulatory action as defined in Executive Order 12866, and it does not involve decisions intended to mitigate environmental health or safety risks.

Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts state law unless the Agency consults with state and local officials early in the process of developing the proposed regulation.

This final rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

The Regulatory Flexibility Act generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because part 70 approvals under section 502 of the CAA do not create any new requirements but simply approve requirements that the state is already imposing. Therefore, because this approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the federal-state relationship under the CAA, preparation of a flexibility analysis would constitute federal inquiry into the economic reasonableness of state action. The CAA forbids EPA to base its actions concerning SIPs on such grounds. [See Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).]

Under sections 202 of the Unfunded Mandates Reform Act of 1995, signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a federal mandate that may result in estimated costs to state, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action proposed does not include a federal mandate that may result in estimated costs of $100 million or more to either state, local, or tribal governments in the aggregate, or to the private sector. This federal action approves pre-existing requirements under state or local law, and imposes no new requirements. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 13, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2) of the CAA.)

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

In reviewing operating permit programs, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use VCS, EPA has no authority to disapprove an operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program, to use VCS in place of an operating permit program that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of NTTAA do not apply.

The EPA Region 4 announces its intent to delete the Schuylkill Metals Corporation Site, Plant City, Florida, from the NPL, which constitutes appendix B of the NCP, 40 CFR part 300, and requests comments on this deletion. EPA identifies sites on the NPL that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund Trust Fund (Fund). Pursuant to § 300.425(e)(3) of the NCP, any site deleted from the NPL remains eligible for Fund-financed remedial actions if conditions at the site warrant such action.

EPA proposes to delete the Schuylkill Metals Corporation Site, located at 402 South Woodrow Wilson Street in Plant City, Hillsborough County, Florida from the NPL.

EPA will accept comments concerning this Site for thirty days after publication of this document in the Federal Register.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses how this Site meets the deletion criteria.

The NCP establishes the criteria that the Agency uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from, or re-categorized on, the NPL where no further response is appropriate. In making this determination, EPA shall consider, in consultation with the State, whether any of the following criteria have been met:

(i) Responsible or other parties have implemented all appropriate response actions required;

(ii) All appropriate Fund-financed responses under CERCLA have been implemented and no further action by responsible parties is appropriate; or

(iii) The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, taking of remedial measures is not appropriate.

CERCLA section 121(c), 42 U.S.C. 9621(c), provides in pertinent part that:

EPA policy interprets this provision of CERCLA to apply to those sites where treated, in this case solidified, waste remains on-site. On that basis, for reasons set forth below, the statutory requirement has been satisfied at this Site, and five year reviews and operation and maintenance activities will be required. In the event new information is discovered which indicates a need for further action, EPA may initiate appropriate remedial actions. In addition, whenever there is a significant release from a site previously deleted from the NPL, that site may be restored to the NPL without application of the Hazardous Ranking System. Accordingly, the Site is qualified for deletion from the NPL.

EPA will accept and evaluate public comments before making a final decision on deletion. The following procedures were used for the intended deletion of the Site:

1. FDEP has concurred with the deletion decision;

2. Concurrently with this Notice of Intent, a notice has been published in local newspapers and has been distributed to appropriate federal, state and local officials and other interested parties announcing a 30-day public comment period on the proposed deletion from the NPL; and

3. The Region has made all relevant documents available at the information repositories.

The Region will respond to significant comments, if any, submitted during the comment period.

Deletion of the Site from the NPL does not itself create, alter, or revoke any individual rights or obligations. The NPL is designed primarily for informational purposes to assist Agency management.

A deletion occurs when the Regional Administrator places a final notice in the Federal Register . Generally, the NPL will reflect any deletions in the final update following the Notice. Public notices and copies of the Responsiveness Summary, if any, will be made available to local residents by the Regional office.

The following site summary provides the Agency's rationale for the intention to delete this Site from the NPL.

The Schuylkill Metals Corporation Site is located at 802 South Woodrow Wilson Street, Plant City, Hillsborough County, Florida. The Site is 17.4 acres in size and is currently occupied by the solidified monolith, two wetlands, the former wastewater holding pond and adjacent fields.

The Schuylkill Metals Corporation Site was in operation between 1972 and 1986 as a battery recycling facility. The facility received spent automobile and golf cart batteries. The tops of the spent batteries were sawed off, contents emptied on to the ground and lead plates shipped from the Site by rail to be smelted for reuse. Contaminated battery casings were crushed and buried on Site, or used as road or building material. Prior to 1981, acidic wash down waste waters were stored in the 2.2 acre unlined holding pond. Initially, lime was used for pH adjustment of the water stored in the holding pond. Subsequent to this, ammonia was used. In 1981, after upgrading of the wastewater system, discharge to the holding pond ceased. At this time, wastewater was treated with sodium hydroxide, prior to discharge under permit to the city's wastewater treatment plant.

In 1981, EPA conducted its initial investigation of the Schuylkill Metals Corporation Site. The results of this study indicated that groundwater from the surficial aquifer contained elevated levels of cadmium, chromium, lead and ammonia in the vicinity of the holding pond and the battery processing area.

The Site was placed on the NPL and a remedial investigation (RI) was performed at the facility during 1987. As a result of sampling of surface and subsurface soil, the former battery processing area was found to be the primary source of contamination. In April 1988, an addendum RI addressed specific areas of concern that were not included in the initial study. Later that year, a draft feasibility study (FS) was completed which included proposed cleanup levels for soil and groundwater, evaluated the remedial alternatives for the Site and specified the volume of soil requiring treatment. A treatability study work plan was submitted in January 1989, which evaluated various chemical formulas for a solidification/stabilization soil remedy.

In July 1989, a FS addendum was completed, in an effort to determine appropriate cleanup levels for the perimeter ditch sediment and marsh sediment. The addendum allowed EPA to address potential remedial actions to mitigate the environmental threat to the marshes posed by the release of contaminants from the Schuylkill Metals Corporation Site. Late that year, the Environmental Services Division (ESD) of EPA conducted two studies on the east marsh at the Site: a wetland classification assessment and a sampling investigation. The wetland was classified, delineated, and analyzed for its functional value. Samples of the surface water and sediment were collected and analyzed. These reports identified the need to perform biological testing on marsh samples. Later that year, ESD collected surface water and sediment samples to determine the toxicity of the metal contaminants to terrestrial and aquatic organisms, indigenous plant and animal bioaccumulation, as well as the fate of these metals in the wetland system. The Wetland Impact Study was finalized in 1990 and presented the chemical and biological data, as well as the effect of potential remedial activities on the marsh.

A Draft Final Addendum to the Feasibility Study Report, concluded in July of 1990, evaluated the technologies for remediation and the remedial alternatives appropriate for the wetlands. It compared the feasibility of four alternatives in relation to the nine evaluation criteria.

In September 1990, EPA issued a Record of Decision (ROD), requiring the solidification/stabilization of the then-estimated 38,000 cubic yards (approximately 53,200 tons) of contaminated soil and sediment, having concentrations above 500 milligrams per kilograms (mg/kg); groundwater pumping-and-treatment; sequestration of lead in the wetland's sediment by changing the hydroperiod of the affected wetlands; and mitigation for the damage caused to the wetlands, as a result of the operation of a battery recycling facility adjacent to wetlands.

As a result of a hydrologic study conducted after the issuance of the ROD, the selected remedy for the wetland was modified to removal and solidification/stabilization of lead-contaminated sediment, above the 100 mg/kg clean-up goal. This modification was documented in a 1993 Explanation of Significant Differences.

The responsible party entered into an agreement with EPA, in which they agreed to perform the work outlined in the ROD. This was memorialized in a March 1991 Consent Decree. To implement the remedy, a remedial design and remedial action (RD/RA) work plans were submitted to EPA. The last of these plans was approved in June 1993.

In December 1993 two slurry walls were installed in order to facilitate the management of the Site water. They allowed the volume of groundwater removed from the soil excavation area to be minimized and confined primarily to contaminated water in the immediate vicinity of the soil contamination, as well as rainfall which occurred during soil solidification/stabilization activities.

During the months of April and May 1994, approximately 8,100 cubic yards of lead-contaminated marsh sediments were removed from the east and west marshes. All sediment having lead concentrations greater than 125 mg/kg were excavated. The marsh sediment from grids with lead concentrations between 125 and 500 mg/kg stockpiled in a clean upland area. Sediment with lead concentration greater than 500 mg/kg were stockpiled within the north slurry wall areas for subsequent treatment.

In June 1994, construction of the groundwater pre-treatment system began. This system consisted of three major process operations: a metals removal system, an air stripper/ammonia scrubber and a chlorination system. For the first three months of the pre-treatment system's operation, the plant treated the existing pond water to provide room for groundwater storage. The treated water was discharged to the Plant City publicly owned treatment works (POTW). While the contaminated soil was being stabilized, groundwater from the excavation dewatering operation was treated prior to discharge to the POTW. An estimated 15-to-18 million gallons of groundwater was treated between the months of July 1994 and December 1996.

In December 1994, treatment of soil started and continued until May 1997. During this period approximately 258,000 tons (184,000 cubic yards) of soil and sediment were treated. This volume of lead-contaminated soil and sediment includes excavation and treatment of approximately 10,000 cubic yards of sediments removed from the bottom of the former holding pond. Excavation of the former holding pond required the installation of sheet piling to segregate the pond into three sections.

Wetland mitigation activities started in May 1995 and ended in August 1997. Wetland mitigation activities involved the creation of additional wetland acreage from upland or pond areas on-site to mitigate for the permanently inundated or contaminated areas and temporary loss of function. This upland portion included mitigation at a ratio of 2:1 for the permanently inundated areas in the East Marsh plus an additional 1:1 compensation for natural resource damage agreed to in negotiations with the FDEP.

The Site's post-soil treatment groundwater was monitored on four occasions, in order to determine whether the groundwater treatment component of the ROD would need to be implemented. These results indicated that further groundwater recovery and treatment would not be necessary.

Due to the treatment of contaminated soil and sediment, hazardous substances have been immobilized, allowing for unlimited use of part of the Site. Excluded from unlimited use are the areas of the treated soil and the remediated wetlands, which are the subject of a conservation easement. In order to confirm that the Site is protective of public health and the environment, limited maintenance of the solidified monolith will be required, as well as Five Year Reviews.

EPA, with concurrence of FDEP, has determined that all appropriate actions at the Schuylkill Metals Corporation Site have been completed, and no further remedial action is necessary. Therefore, EPA is proposing deletion of the Site from the NPL.

The United States Environmental Protection Agency (EPA) Region 3 announces its intent to delete a portion of the Tobyhanna Army Depot Site, located in Monroe County, Pennsylvania, from the National Priorities List (NPL), which constitutes Appendix B of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR Part 300, and requests comments on this proposal. This proposal for partial deletion pertains to all portions of the Tobyhanna Army Depot Site except for contaminated groundwater plumes at Operable Units 1 and 5 (OU1 and OU5) [Excluded Areas], which are undergoing natural attenuation and long-term monitoring. These Excluded Areas will remain on the NPL until the performance standards specified in the Records of Decision are met. EPA proposes to delete the Tobyhanna Army Depot Site except for the Excluded Areas as defined above because all appropriate CERCLA response activities have been completed in those areas.

The NPL is a list maintained by EPA of sites that EPA has determined present a significant risk to human health, welfare, or the environment. Pursuant to 40 CFR 300.425(e) of the NCP, any site or portion of a site deleted from the NPL remains eligible for remedial actions if conditions at the site warrant such action.

EPA will accept comments concerning its intent for partial deletion for thirty (30) days after publication of this notice in the Federal Register and a newspaper of record.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate to protect human health or the environment. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met: Section 300.425(e)(1)(i): Responsible parties or other persons have implemented all appropriate response actions required; or Section 300.425(e)(1)(ii): All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or Section 300.425(e)(1)(iii): The remedial investigation has shown that the release poses no significant threat to human health or the environment and, therefore, taking of remedial measures is not appropriate.

Deletion of a portion of a site from the NPL does not preclude eligibility for subsequent Fund-financed actions at the area deleted if future site conditions warrant such actions. Section 300.425(e)(3) of the NCP provides that Fund-financed actions may be taken at sites that have been deleted from the NPL. A partial deletion of a site from the NPL does not affect or impede EPA's ability to conduct CERCLA response activities at areas not deleted and remaining on the NPL. In addition, deletion of a portion of a site from the NPL does not affect the liability of responsible parties or impede agency efforts to recover costs associated with response efforts.

Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any person's rights or obligations. The NPL is designed primarily for informational purposes and to assist Agency management. The following procedures were used for the proposed deletion of the Tobyhanna Army Depot site:

(1) EPA has recommended the partial deletion and has prepared the relevant documents.

(2) The Commonwealth of Pennsylvania through the Pennsylvania Department of Environmental Protection concurs with this partial deletion.

(3) Concurrent with this national Notice of Intent for Partial Deletion, a notice has been published in a newspaper of record and has been distributed to appropriate federal, State, and local officials, and other interested parties. These notices announce a thirty (30) day public comment period on the deletion package, which commences on the date of publication of this notice in the Federal Register and a newspaper of record.

(4) EPA has made all relevant documents available at the information repositories listed previously.

This Federal Register document, and a concurrent notice in a newspaper of record, announces the initiation of a thirty (30) day public comment period and the availability of the Notice of Intent for Partial Deletion. The public is asked to comment on EPA's proposal to delete a portion of the Tobyhanna Army Depot site from the NPL. All critical documents needed to evaluate EPA's decision are included in the Deletion Docket and are available for review at the aforementioned information repositories.

Upon completion of the thirty (30) day public comment period, EPA will evaluate all comments received before issuing the final decision on the partial deletion. EPA will prepare a Responsiveness Summary for comments received during the public comment period and will address concerns presented in the comments. The Responsiveness Summary will be made available to the public at the information repositories listed previously. Members of the public are encouraged to contact EPA Region 3 to obtain a copy of the Responsiveness Summary. If, after review of all public comments, EPA determines that the partial deletion from the NPL is appropriate, EPA will publish a final notice of partial deletion in the Federal Register . The partial deletion does not actually occur until the final Notice of Partial Deletion is published in the Federal Register.

The following provides EPA's rationale for deletion of the Tobyhanna Army Depot (TYAD) site, except for the Excluded Areas, from the NPL and EPA's finding that the criteria in 40 CFR 300.425(e) are satisfied.

TYAD is located in the Pocono Mountains of northeastern Pennsylvania, approximately 20 miles southeast of Scranton, PA, in Coolbaugh Township, Monroe County. The installation covers approximately 2.2 square miles, measuring 1.6 miles east to west and 2.2 miles north to south at the widest point. The area surrounding TYAD is rural with the village of Tobyhanna bordering the installation at the southeast corner. Tobyhanna State Park and Gouldsboro State Park are adjacent to the installation on the northeast and northwest sides, respectively. Tobyhanna was established when the United States purchased 33 square miles of land in 1909. Tobyhanna was primarily used for machine gun and field artillery training beginning in 1913, and as an ambulance and tank regiment training center and an ordnance storage depot during World War I. Tobyhanna was inactive until 1932, except for Army and National Guard Field Artillery training. From 1932 to 1938, Tobyhanna was a Conservation Corps camp area, and from 1938 to 1941, Tobyhanna, was used by West Point cadets for field artillery training. In 1942, Tobyhanna was reactivated and converted for storage and supply uses. Tobyhanna artillery ranges were deactivated in 1946. In 1949, the Commonwealth of Pennsylvania purchased approximately 21,000 acres from the United States, and in 1952, approximately 1,293 acres were deeded back to the United States government for the modern depot construction in 1953. Tobyhanna is currently a communication-electronics maintenance and supply depot. On August 30, 1990 (55 FR 35502), Tobyhanna was added to the National Priorities List due to the discovery of groundwater contaminated with elevated levels of volatile organic compounds. The contaminated groundwater was affecting one of the Tobyhanna Army Depot drinking water supply wells in addition to several nearby residential wells. The Department of the Army is considered the lead agency.

Tobyhanna Army Depot has five Operable Units: OU1 (Areas A and B), OU2 (Former PCB Transformer Area), OU3 (Former Hazardous Waste Storage Areas), OU4 (Powder Ridge UXO Area), and OU5 (Inactive Sanitary Landfill). In addition to the OUs, the Army also investigated fifty-eight (58) additional potential areas of concern (AOCs) identified in the November 1990 Tobyhanna site-specific Federal Facility Agreement (FFA), all of which have since been formally closed out and require no further action. These determinations were documented in three AOC Closeout Documents in 1998, 1999, and 2000. Therefore, no further CERCLA investigations or response actions are planned or anticipated. Long-term CERCLA and RCRA operation and maintenance (O&M) monitoring activities and five-year reviews will continue.

A Record of Decision (ROD) for OU1 was signed on September 30, 1997. OU1 consists of a former burning area and a former hazardous waste staging area that resulted in volatile organic compounds (VOCs) leaching into the groundwater and contaminating several off-base private wells. The Army began supplying bottled water to the affected residences in 1987, and in 1991, connected the residences to the Depot water supply. In 1996, the Army excavated the source material and surrounding soils as a Removal Action. The OU1 remedy consists of monitored natural attenuation and institutional controls (ICs). The Army monitors groundwater on a semi-annual basis, and VOC concentrations continue to decrease. The ICs will limit future use of the groundwater while contaminants remain above Maximum Containment Levels (MCLs) promulgated under the Safe Drinking Water Act, which are the performance standards as identified in the ROD. The expected duration of the monitored natural attenuation remedy is fifteen (15) years.

The ICs implemented at TYAD are designed to prevent human consumption of contaminated groundwater. An IC previously implemented by TYAD includes a waterline agreement with the residents to ensure that future residents will not be exposed to groundwater contaminated at levels above the MCLs. This ongoing interim measure includes supplying potable water to residences/businesses, which have wells with VOC concentrations above MCLs. The agreement specifies that individual residential wells will not be used for any purpose except for monitoring by the U.S. Army.

Another previously implemented IC is an agreement with the Coolbaugh Township Zoning Office to notify TYAD of new construction involving potable water. This control will ensure that new wells are not placed in areas of known or suspected contamination and will allow the resident to be connected to the TYAD potable water supply. Additionally, a control prohibiting the construction of any on-post drinking water well in the plume of groundwater contamination has been implemented. This IC has been incorporated into the TYAD Master Plan.

A ROD for OU2 was signed on September 27, 1996. OU2 consists of the former PCB transformer building. PCB-contaminated soils were removed from the site and residual contamination is below risk-based levels providing for unlimited use and unrestricted exposure. The selected remedy for the OU2 ROD was No Further Action.

A ROD for OU3 was signed on July 12, 1996. OU3 consists of two (2) former hazardous waste storage buildings, which were remediated according to an approved RCRA closure plan. The residual contamination was below risk-based levels providing for unlimited use and unrestricted exposure. The selected remedy for the OU3 ROD was No Further Action.

A ROD for OU4 was signed on September 19, 2000. OU4 consists of a 400-acre area where artillery range use resulted in residual unexploded ordnance. In September 2000, the Army completed construction of a fence and hazard warning signs around the OU4 area as a Removal Action. The OU4 remedy consists of ICs and Operation and Maintenance (O&M) activities necessary to maintain the integrity of the physical controls constructed during the Removal Action. The ICs and O&M activities that comprise this remedy include the following: maintenance of the physical controls (i.e., fencing and signs); increased security patrols to minimize trespassing on TYAD property, and specifically OU4; proprietary controls such as deed restrictions to be placed on the land if it is ever transferred outside of the Government; public education to inform TYAD personnel and visitors with business in the vicinity of OU4 of the potential for UXO in the area; and periodic review to ensure that this remedial action remains effective in protecting the public. No remedial construction was required and the Army has implemented the IC and O&M procedures.

A ROD for OU5 was signed on September 28, 2000. OU5 consists of groundwater emanating from the inactive (RCRA) sanitary landfill. The landfill was closed with an engineered soil cover in accordance with a state- and EPA-approved RCRA closure plan, permit and O&M plan. The OU5 remedy consists of monitored natural attenuation and ICs. The expected duration of the monitored natural attenuation remedy is thirty (30) years. The Army will continue to monitor groundwater on a semi-annual basis, and ICs will prevent exposure to contaminated groundwater until monitoring data indicate that the remediation goals have been met. The ICs for OU5 are similar to those implemented at OU1, such that an agreement between TYAD and the Coolbaugh Township Zoning Office will ensure that future residents will not be exposed to groundwater with constituents above MCLs. In addition, construction of any onpost drinking water well in the area of groundwater contamination at OU5 will be prohibited until groundwater remediation goals have been met. This prohibition has been incorporated into the TYAD Master Plan. Also, ongoing public education regarding potential hazards associated with consumption of contaminated groundwater in OU5 and results of long-term monitoring will be presented to all employees in articles in the installation newspaper.

Because hazardous substances, pollutants or contaminants that will remain onsite at OU-4, the UXO Area, do not allow unlimited use of, or unrestricted access to the site, the Army, as lead agency, will conduct five-year reviews as required by CERCLA. Five-year reviews will also be conducted in the Excluded Areas at OU1 and OU5, which are not being considered for deletion due to long term groundwater monitoring, until such time that it has been determined that cleanup goals have been attained.

Operation and maintenance (O&M) activities at the areas proposed for deletion will only be necessary at OU4, the UXO area. The O&M activities include continuing security patrols and maintenance of the fencing and the signs around the perimeter of OU4.

Community interest in this site is currently low. Initially, community interest was very high when the VOC-contaminated groundwater plume was found to be migrating offsite to residential wells in the village of Tobyhanna. Since the affected residents have been connected to the Depot water supply, the interest in other sites at Tobyhanna has remained low. In March 1995, a Restoration Advisory Board (RAB) was formed. The RAB includes representatives of the Army, Monroe County, Coolbaugh Township, former TYAD employees, and other interested parties. The Army keeps the RAB well informed by providing members with copies of pertinent CERCLA documents for review and comment, and by holding periodic meetings to discuss ongoing CERCLA investigations and actions.

The final ROD for the Tobyhanna Army Depot site was signed on September 28, 2000. All remedies are in place, including the institutional controls specified in the RODs for OU1, OU4, and OU5. Natural attenuation and long-term monitoring for the Excluded Areas, the groundwater at OU1 and OU5, is underway. One of the three criteria for site deletion specifies that EPA may delete a site from the NPL if “responsible parties or other persons have implemented all appropriate response actions required.” 40 CFR 300.425(e)(1)(i). At TYAD, EPA believes that the Army has implemented all appropriate response actions and therefore, EPA, with the concurrence of the Commonwealth of Pennsylvania, is proposing deletion of this Site, except for the previously defined Excluded Areas, from the NPL. Documents supporting this action are available in the Deletion Docket.

While EPA does not believe that any future response actions in the areas to be deleted from the NPL will be necessary, if future conditions warrant such action, the proposed deletion areas of the Tobyhanna Army Depot site remain eligible for future Fund-financed response areas of the Tobyhanna Army Depot site remain eligible for future Fund-financed response actions. Furthermore, this partial deletion does not alter the status of the Excluded Areas, the groundwater plumes at OU1 and OU5, which are not proposed for deletion and remain on the NPL.

In a letter dated January 11, 2001, the Commonwealth of Pennsylvania through its Department of Environmental Protection has concurred on EPA's final determination regarding the partial deletion.

This is a summary of the Commission's Further Notice of Proposed Rule Making and Order, ET Docket 99-231, FCC 01-158, adopted May 10, 2001 and released May 11, 2001. The full text of this document is available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW, Washington, DC 20554. The complete text of this document also may be purchased from the Commission's duplication contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

1. The Further Notice of Proposed Rulemaking and Order (“FNPRM”) propose to amend part 15 of the Commission's rules to improve spectrum sharing by unlicensed devices operating in the 2.4 GHz band (2400—2483.5 MHz), provide for introduction of new digital transmission technologies, and eliminate unnecessary regulations for spread spectrum systems. Specifically, this FNPRM proposes to revise the rules for frequency hopping spread spectrum systems operating in the 2.4 GHz band to reduce the amount of spectrum that must be used with certain types of operation, and to allow new digital transmission technologies to operate pursuant to the same rules as spread spectrum systems. It also proposes to eliminate the processing gain requirement for direct sequence spread spectrum systems, which will provide manufacturers with increased flexibility and regulatory certainty in the design of their products. We take these actions to facilitate the continued development and deployment of new wireless devices for businesses and consumers.

2. The original Notice of Proposed Rule Making (“NPRM”) 64 FR 38877, July 20, 1999, in this proceeding, which was initiated in response to a request from the Home RF working group, proposed to amend the rules to allow frequency hopping spread spectrum systems operating in the 2.4 GHz band to use hopping channel bandwidths wider than 1 MHz. The NPRM also proposed to adopt a new method for determining compliance with the requirement that direct sequence systems exhibit a minimum of 10 dB processing gain. The First Report and Order (“First R&O”) 65 FR 57557, September 25, 2000, in this proceeding amended the spread spectrum rules to allow frequency hopping spread spectrum transmitters in the 2.4 GHz band to use bandwidths between 1 MHz and 5 MHz at a reduced power output of up to 125 mW. Frequency hopping systems with a bandwidth of up to 1 MHz are required to use at least 75 non-overlapping hopping frequencies. Use of 75 hopping frequencies is generally not feasible for systems having a bandwidth in excess of 1 MHz because the 2.4 GHz band, which covers 2400-2483.5 MHz, provides only 83.5 megahertz of spectrum. Accordingly, the rules were amended to permit systems using a bandwidth greater than 1 MHz but less than or equal to 5 MHz to use as few as 15 non-overlapping channels provided that the total span of hopping channels be at least 75 MHz. Therefore, while a system using 5 MHz hopping channel bandwidths is permitted to use as few as 15 hopping frequencies, one using 3 MHz hopping channel bandwidths must use at least 25 hopping frequencies to comply with the rules.

3. Frequency Hopping Spread Spectrum Systems. Thirteen parties filed a Joint Petition for Clarification, or in the Alternative, Partial Reconsideration (“Joint Petition”) in response to the First R&O requesting that the Commission clarify its rules to specify a minimum of 15 hopping channels for any frequency hopping system operating in the 2.4 GHz that uses adaptive hopping techniques as allowed under 47 CFR 15.247(h) and limits its output power to 125 mW, regardless of hopping channel bandwidth. We propose to amend 47 CFR 15.247 by incorporating the changes proposed in the Joint Petition. Interested parties are invited to comment on the acceptability of this proposal. Commenters are encouraged to include technical analyses that support claims that this change will either improve or degrade sharing of this spectrum. We particularly invite comment as to whether use of adaptive hopping techniques should be mandatory and how we should determine compliance with this requirement when evaluating specific devices for purposes of equipment certification. Commenters are also encouraged to examine alternative operating parameters or conditions that may achieve the same goals. For example, the operating conditions in the Joint Petition would allow a system using 1 MHz bandwidth hopping channels to use as little as 18% of the available spectrum at 2.4 GHz to implement adaptive hopping techniques. Could the Commission realize the goals of the petitioners by requiring that adaptive hopping systems use a minimum of 25% or 50% of the band with a power reduction in relationship to amount of spectrum used? Could even fewer hops be used efficiently and effectively with a corresponding reduction in power? Those commenters who do not agree that the rule changes would be beneficial to operation in the 2.4 GHz band should provide an explanation.

4. Digital Transmission Systems. We observe that new digital transmission technologies have been developed that have spectrum characteristics similar to spread spectrum systems. Indeed, proponents of some of these technologies allege that their systems meet the processing gain requirement of 47 CFR 15.247(e) for direct sequence spread spectrum systems. However, the current rules only provide for specific types of spread spectrum technology and do not provide latitude to permit other types of technologies that have similar spectrum characteristics. We believe that the rules should be modified to permit the operation of these alternative digital technologies. We propose to amend 47 CFR 15.247 to provide for use of spread spectrum or digital technologies. This proposed change would apply for operations in the current spread spectrum bands at 915 MHz, 2.4 GHz and 5.7 GHz. Digital technologies would be required to meet the same technical requirements as spread spectrum systems, as modified in this proceeding. We believe that this proposal will allow more and more diverse products to utilize those bands and thereby increase consumer choice. It would provide the flexibility and certainty needed to promote the introduction of new, non-interfering products into the band, without the need for frequent rule changes to address each specific new technology that may be developed.

5. The rules for part 15 spread spectrum systems limit maximum peak output power to 1 watt. In addition, the rules for direct sequence systems limit peak power spectral density conducted to the antenna to 8 dBm in any 3 kHz band during any time interval of continuous operation. This peak power density limit is intended to control interference by ensuring that the transmitted energy in a direct sequence system is not concentrated in any one portion of the emission bandwidth. In considering the appropriate power limits for digital modulation systems, it appears that the spectrum characteristics of these systems are very similar to the characteristics of direct sequence spread spectrum systems. Accordingly, it appears that digital systems may exhibit no more potential to cause interference to other devices than direct sequence systems. With this in mind, we invite comment on whether digitally modulated systems should be allowed to operate at the same power levels as direct sequence spread spectrum systems, namely 1 watt maximum output power with power spectral density not exceeding 8 dBm in any 3 kHz band. However, we also invite comment as to whether the flexibility we are allowing for digitally modulated systems warrants a reduction in permitted power levels to reduce the likelihood of any adverse impact on other systems operating in this spectrum, similar to the reduced power levels adopted for wide-band frequency hopping systems. If we find it necessary to reduce the allowed power for digitally modulated systems, should we make any changes in the power level adjustments for point-to-point operation in § 15.247(b)(3)?

6. The proposals made herein would more closely align the § 15.247 rules with the U-NII rules. We seek comment on whether the same result would be achieved by amending the U-NII rules to include the 915 MHz and 2.4 GHz bands. The upper limit of the 5.725-5.825 GHz U-NII band would also need to be expanded to 5.850 GHz in order to realign the standards with those presently permitted under § 15.247. We specifically invite comment on any detrimental impact this could have on manufacturers.

7. Direct Sequence Processing Gain. The processing gain requirement was adopted more than ten years ago as a means to ensure that manufacturers would not take advantage of the higher power levels afforded spread spectrum devices by designing systems with wide bandwidths where much of the energy transmitted is not needed for communication. As the spread spectrum industry has matured it is not clear that this requirement continues to be necessary. Manufacturers have an incentive to design their systems to include processing gain in order for their devices to operate properly when located near other radio frequency devices. In addition, it has become increasingly difficult to determine the true processing gain of certain direct sequence spread spectrum systems. We observe that uncertainties about the processing gain requirement can be a significant impediment to the introduction of new technologies. In light of these factors, we are now proposing to eliminate the processing gain requirement for direct sequence spread spectrum systems. We invite comment on this proposal.

8. As required by Section 603 of the Regulatory Flexibility Act, 1 the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the expected significant economic impact on small entities by the policies and rules proposed in this Further Notice of Proposed Rule Making and Order (Further Notice). Written public comments are requested on the IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Further Notice of Proposed Rule Making.

9. This Further Notice of Proposed Rulemaking proposes changes that remove unnecessary regulatory barriers to the introduction of new wireless devices using spread spectrum and other digital technologies. The proposals will also improve sharing of the spectrum by wireless devices operating in the 2.4 GHz band (2400-2483.5 MHz). Specifically, the FNPRM proposes to relax the frequency hopping spread spectrum rules in § 15.247 in accordance with a Joint Petition for Clarification, or in the Alternative, Partial Reconsideration filed by thirteen parties. 2 The proposed changes would permit all frequency hopping systems in the 2.4 GHz band to use as few as fifteen hopping channels instead of the seventy-five hopping channels some systems are now required to use. Systems using the minimum number of channels will be required to employ adaptive hopping techniques in order to avoid transmitting on occupied frequencies.

10. The FNPRM seeks comments regarding alternative operating parameters or conditions for frequency hopping systems that may achieve the same goals. For example, the operating conditions in the Joint Petition would allow a system using 1 MHz bandwidth hopping channels to use as little as 18% of the available spectrum at 2.4 GHz to implement adaptive hopping techniques. The FNPRM asks whether the Commission could realize the goals of the petitioners by requiring that adaptive hopping systems use a minimum of 25% or 50% of the band with a power reduction in relationship to amount of spectrum used.

11. The FNPRM also proposes to modify the rules for non-frequency hopping spread spectrum systems in the 915 MHz (902-928 MHz), 2.4 GHz, and 5.7 GHz (5725-5850 MHz) bands to accommodate developing systems that use digital modulation techniques. Systems using digital modulation techniques would be required to meet the same technical requirements as spread spectrum systems, as modified in this proceeding. The Commission believes that this proposal will allow more and more diverse products to utilize those bands and thereby increase consumer choice. It would also provide the flexibility and certainty needed to promote the introduction of new, non-interfering products into the band, without the need for frequent rule changes to address each specific new technology that may be developed. This proposal would more closely align the § 15.247 spread spectrum rules with the § 15.407 U-NII rules. Therefore, we seek comment on whether the same result would be achieved by amending the U-NII rules to include the 915 MHz and 2.4 GHz bands.

12. Finally, the FNPRM proposes to eliminate the processing gain requirement for direct sequence spread spectrum systems. The processing gain requirement was adopted more than ten years ago as a means to ensure that manufacturers would not take advantage of the higher power levels afforded spread spectrum devices by designing systems with wide bandwidths where much of the energy transmitted is not needed for communication. As the spread spectrum industry has matured it is not clear that this requirement continues to be necessary. Manufacturers have an incentive to design their systems to include processing gain in order for their devices to operate properly when located near other radio frequency devices.

13. The proposed action is taken pursuant to Sections 4(i), 301, 302, 303(e), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302, 303(e), 303(f), and 303(r).

14. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 3 The Regulatory Flexibility Act defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under section 3 of the Small Business Act. 4 A small business concern in its field of operation; and (3) satisfies any additional criteria established by the SBA. 5

15. The Commission has not developed a definition of small entities applicable to unlicensed communications devices manufacturers. Therefore, we will utilize the SBA definition applicable to manufacturers of Radio and Television Broadcasting and Communications Equipment. According to the SBA regulations, unlicensed transmitter manufacturers must have 750 or fewer employees on order to qualify as a small business concern. 6 Census Bureau data indicates that there are 858 U.S. companies that manufacture radio and television broadcasting and communications equipment, and that 778 of these firms have fewer than 750 employees and would be classified as small entities. 7 We do not believe this action would have a negative impact on small entities that manufacture unlicensed spread spectrum devices. Indeed, we believe the actions should benefit small entities because it should make available increased business opportunities to small entities. We request comment on these assessments.

16. Part 15 transmitters are already required to be authorized under the Commission's certification procedure as a prerequisite to marketing and importation. See 47 CFR 15.101, 15.201, 15.305, and 15.405. Additionally, manufacturers of direct sequence spread spectrum systems must submit a determination of system processing gain to the Commission in order to obtain product certification.

17. The proposed regulations will add permissible methods of operation for frequency hopping spread spectrum systems. No new reporting or recordkeeping requirements are proposed for the manufacturers of frequency hopping spread spectrum devices. However, the rules proposed in the Further Notice would eliminate the requirement that manufacturers of direct sequence systems submit evidence of compliance with a minimum processing gain. Therefore, the proposed rules reduce the reporting and recordkeeping burdens placed on all manufacturers, including small entities. None of the proposals would require alteration of any existing products.

18. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

19. At this time, the Commission does not believe the proposals contained in the Further Notice will have a significant economic impact on small entities. The Further Notice does not propose new device design standards. Instead, it relaxes the rules with respect to the types of devices which are allowed to operate pursuant to the spread spectrum regulations. There is no burden of compliance with the proposed changes. Manufacturers may continue to produce devices which comply with the former rules and, if desired, design devices to comply with the new regulations. The proposed rules will apply equally to large and small entities. Therefore, there is no inequitable impact on small entities. Finally, the FNPRM does not recommend a deadline for implementation. We believe that the proposals are relatively simple and do not require a transition period to implement. An entity desiring to take advantage of the relaxed regulations may do so at any time.

20. Unless our views are altered by comments, we find that the proposed rule changes contained in this FNPRM will not present a significant economic burden to small entities. Therefore it is not necessary at this time to propose alternative rules. Notwithstanding our finding, we request comment on alternatives that might minimize the amount of adverse economic impact, if any, on small entities.

21. None.

22. Pursuant to sections 4(i), 301, 302, 303(e), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. Sections 154(i), 301, 302, 303(e), 303(f), and 303(r), the Further Notice of Proposed Rule Making is hereby Adopted.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 15 as follows:

This is a summary of the Notice of Proposed Rulemaking (“NPRM”) in WT Docket No. 01-108, FCC 01-153, adopted May 3, 2001 and released May 17, 2001. The complete text of the document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC and also may be purchased from the Commission's copy contractor, International Transcription Services, (202) 857-3800, 445 12th Street, SW., CY-B400, Washington, DC 20554. The document is also available via the Internet at http://www.fcc.gov/Bureaus/Wireless/Orders/2000/fcc01153.pdf. This Notice of Proposed Rulemaking contains proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA). It has been submitted to the Office of Management and Budget (OMB) for review under the PRA. OMB, the general public, and other Federal agencies are invited to comment on the proposed information collections contained in this proceeding.

1. This NPRM contains proposed revisions to existing information collections. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection(s) contained in this NPRM, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due at the same time as other comments on this Notice; OMB notification of action is due 60 days from date of publication of this NPRM in the Federal Register . Comments should address: (a) Whether the proposed modifications to existing information collections are necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

2. The information collection requirements of 47 CFR 22.901, which is contained in OMB 3060-0508 (66 FR 109), is being proposed for elimination. Further, the Commission proposes to revise the information collection associated with 47 CFR 22.937, which is also contained in OMB 3060-0508. By revising 47 CFR 22.937 to eliminate the financial demonstration requirement for all cellular licensees who are not competing with cellular renewal licensees, the Commission thus eliminates the information collection requirement(s) associated with this rule section.

OMB Control No.: 3060-0508.

Title: Rewrite and Update of Part 22.

Form No.: N/A.

Type of Review: Revision of currently approved collection.

Respondents: Business or other for-profit.

Number of Respondents: 166,732.

Frequency of Response: On occasion, quarterly, semi-annually, annually.

Total Annual Burden: 250,415 hours.

Total Annual Cost: 0.

Needs and Uses: Part 22 contains the technical and legal requirements for radio stations operating in the Public Mobile Services. Generally the collected information is used to determine legal, technical and/or financial qualifications of the respondents.

3. This Notice of Proposed Rulemaking initiates a proceeding as part of the Commission's year 2000 Biennial Review of regulations pursuant to Section 11 of the Communications Action of 1934, as amended, 47 U.S.C. 161 (Communications Act). Section 11 requires the Commission to review all of its regulations applicable to providers of telecommunications services, and to determine whether any rule is no longer in the public interest as a result of meaningful economic competition between providers of telecommunications service and whether such regulations should be deleted or modified. As a result, the NPRM sets forth and seeks comment on specific proposed changes to several CMRS service rules.

4. In connection with the Commission's year 2000 Biennial Review, in CC Docket No. 00-175, FCC 00-456 (rel. Jan. 17, 2001) (not published in the Federal Register ), the Commission staff prepared a comprehensive review of regulations that affect telecommunications service providers. The Commission subsequently issued a report endorsing recommendations made by staff as a result of that review. In the staff report, the staff notes that many of the part 22 rules regulating cellular telephone service date back to the inception of the service in the early 1980s, when the two cellular carriers in each market were the only providers of mobile telephony, thus creating a “duopoly” market for this service. The staff report recommends initiating a rulemaking to review the cellular rules and consider which of these rules are obsolete as a result of the technological advances and growth of competition that have occurred in mobile telephony since the rules were adopted. The report also recommends review of certain other Part 22 rules on the same basis. This NPRM addresses many of the issues identified in the staff Biennial Review report.

5. This NPRM sets forth and seeks comment on specific proposed changes to several service rules. The following specific rules and issues are addressed in the item: (1) Cellular service requirements and limitations (§ 22.901); (2) Advanced Mobile Phone Service (AMPS) analog cellular compatibility standard (§§ 22.901 and 22.933); (3) manufacturing and design requirements governing the security of electronic serial numbers (ESNs) in cellular telephones (§ 22.919); (4) cellular channelization rules (§ 22.905); (5) cellular analog modulation requirement and out-of-band emissions limitations (§§ 22.915 and 22.917), as well as out-of-band emissions rules for broadband Personal Communications Service (PCS); (6) cellular wave polarization requirement (§ 22.367(a)(4)); (7) rule governing cellular System Identification Numbers (SIDs) (§ 22.941); (8) alternative methods for determining a Cellular Geographic Service Area (CGSA) (§ 22.911); (9) service commencement and construction period rules (§ 22.946); (10) incidental services rules (§ 22.323); and (11) cellular anti-trafficking rules (§§ 22.937, 22.943, and 22.945). Each of these issues will be discussed briefly in turn.

6. Cellular Service Requirements and Limitations (§ 22.901). Although this rule has been amended several times since its adoption, the NPRM notes that it appears outdated in several respects. First, the rule is drafted as though the principal technology employed is analog, which is no longer true. The NPRM proposes revising the rule to avoid characterizing any particular technology as either primary or alternative. Second, the NPRM seeks comment on the various types of service area information provided by non-cellular CMRS carriers, as well as whether the requirement for cellular carriers to provide reliable service area information is still necessary in light of the current level of competition for CMRS services. Also, the NPRM seeks comments on modifying or eliminating other provisions of the rule.

7. Advanced Mobile Phone Service (AMPS) analog cellular compatibility standard (§ 22.901 and 22.933). Currently, cellular carriers are required to provide analog service in accord with the Advanced Mobile Phone Service (AMPS) specifications referenced and incorporated in the April 1981 version of Office of Engineering and Technology (OET) Bulletin No. 53. The NPRM seeks comment on whether the Commission should update or eliminate this standard in light of technological and market developments since the adoption of the requirement. In particular, the NPRM seeks comment on the possible impact of eliminating this rule on certain existing programs and services, and notes that the Commission is reluctant to eliminate the standard if doing so will significantly impair the access of users of analog-dependent technology to wireless telecommunications services.

8. Electronic Serial Number (ESN) rule (§ 22.919). Section 22.919 sets forth various design requirements for manufacturers of cellular telephones, which are not applicable to other CMRS services. These requirements were adopted to address the problem of cellular cloning fraud, which was prevalent in the early 1990s. Given the developments since the Commission promulgated the ESN requirements, which include enactment of a statute to address such fraud directly and changes in the technologies available to prevent fraud, the NPRM notes that many of the original reasons for establishing the ESN requirements may no longer be compelling and proposes removing § 22.919 from the Commission's rules.

9. Channelization Requirements (§ 22.905). The NPRM tentatively concludes that the channelization plan in the rules is no longer necessary because analog nationwide compatibility has already been established and the principal digital technologies are exempt from this plan.

10. Modulation Requirements and In-Band Emissions Limitations (§ 22.915). Section 22.915 of the Commission's rules requires that cellular systems be capable of providing service using the modulation types described in the existing analog compatibility specification. Since the adoption of this rule, the Commission has permitted licensees more flexibility in choosing the type of technology with which to operate. The NPRM seeks comment on how the Commission can define an out-of-band emissions limit to provide effective protection from interference while allowing licensees flexibility to establish a different limit where appropriate.

11. Wave Polarization Requirement (§ 22.367(a)(4)). The Commission's current rules require vertical wave polarization. In the NPRM, the Commission tentatively concludes that it should relax this requirement.

12. Assignment of System Identification Numbers (SIDs) (§ 22.941). Section 22.941 of the Commission's rules sets forth the procedure by which the Commission assigns system identification numbers (SIDs) in the Cellular Radiotelephone Service. The Commission proposes generally eliminating SIDs as a term of cellular licenses, and also seeks comment on proposals for SID coordination functions to be carried out by an industry organization, rather than the Commission.

13. Determination of Cellular Geographic Service Area (CGSA) (§ 22.911(a)). Section 22.911(a) of the Commission's rules sets forth a standardized method for determining the CGSA of a cellular system using a specific mathematical formula. Section 22.911(b) sets forth alternative methods that may be used if a licensee believes that the standard method produces a CGSA that substantially differs from the actual coverage of its system. The NPRM proposes modifications in this rule to clarify the acceptable methods for determining the CGSA.

14. Service Commencement and Construction Periods (§ 22.946). This rule sets forth the timing requirements relating to the deployment of new cellular systems. The NPRM seeks comment on correcting an oversight made during a recent change of the rule, as well as updating the rule in light of the level of competition for CMRS services.

15. Incidental Services Rule (§ 22.323). Section 22.323 authorizes carriers operating in the Public Mobile Radio Services to provide other communications services incidental to the primary public mobile services, provided certain conditions are met. The NPRM seeks comment on eliminating or modifying this rule to provide carriers more flexibility in providing wireless services to meet customer demands.

16. Cellular Anti-Trafficking Rules (§§ 22.937, 22.943, and 22.945). These rules were originally adopted to prevent speculation and trafficking in cellular licenses at a time when cellular licenses were awarded through a lottery process. Given that licenses are now principally awarded through the auction process, which in effect offers safeguards against speculative purchases of authorizations, the NPRM seeks comment on whether the Commission should eliminate or substantially modify these rules.

17. Pursuant to 47 CFR 1.415 and 1.419, interested parties may file comments on or before July 2, 2001, and reply comments on or before August 1, 2001. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24,121 (1998).

18. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html . Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit electronic comments by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov , and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

19. Parties who choose to file by paper must file an original and four copies of each filing. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., TW-A325, Washington, DC 20554.

20. Regardless of whether parties choose to file electronically or by paper, parties should also file one copy of any documents filed in this docket with the Commission's copy contractor, International Transcription Services, Inc., 445 12th Street, SW., CY-B400, Washington, DC 20554. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. Comments and reply comments must include a short and concise summary of the substantive arguments raised in the pleading. Comments and reply comments must also comply with 47 CFR 1.49, and all other applicable sections of the Commission's rules. The Commission also directs all interested parties to include the name of the filing party and the date of the filing on each page of their comments and reply comments. All parties are encouraged to utilize a table of contents, regardless of the length of their submission.

21. As required by the Regulatory Flexibility Act (RFA), 1 the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules proposed in this NPRM, WT Docket No. 01-108. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadline for comments on the Notice provided in paragraph 76 of the NPRM. The Commission will send a copy of the Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. 2 In addition, the Notice and IRFA (or summaries thereof) will be published in the Federal Register . 3

22. As part of our 2000 biennial regulatory review pursuant to Section 11 of the Communications Act of 1934, as amended (Communications Act), we are required to review all of our regulations that are applicable to providers of telecommunications service to determine whether any rule is no longer in the public interest. More specifically, in the Biennial Review Report , the Commission indicated that it would initiate a rulemaking proceeding to identify and address potentially outdated technical rules governing cellular service, based on the staff's recommendations that were included in the Biennial Review Staff Report . 4 The staff report notes that many of the Part 22 technical rules regulating cellular telephone service date back to the inception of the service in the early 1980s and, given the significant technological changes and growth in competition for cellular services since that time, the rules may be obsolete. In particular, the NPRM seeks comment on elimination of the cellular analog compatibility standard and the Electronic Serial Number (ESN) rule, as well as modifying several other technical rules. 5 In the same vein, some of the cellular anti-trafficking rules may be outdated because they were adopted during a period when the Commission resolved mutually exclusive applications for initial cellular services through lottery, rather than the current system of resolving such mutually exclusive applications through competitive bidding. 6 We also take this opportunity to reevaluate certain other Part 22 rules that apply both to cellular and to other CMRS, specifically § 22.323, which imposes conditions on the provision of “incidental” services by Public Mobile Services providers. 7

23. With regard to broadband Personal Communications Service (PCS), we certify, pursuant to the RFA, that the proposed changes to § 24.238, emissions limitations, would not have “a significant economic impact on a substantial number” of small broadband PCS providers. 8 The proposed changes to this rule would reduce the compliance burden on these entities by allowing these entities greater flexibility to establish out-of-band emissions limits to be used at specified band edges. 9 Specifically, the proposed § 24.238(c) would allow parties to establish alternative out-of-band emissions limits pursuant to private contractual arrangements—a practice that is not permitted by the current rule. This proposal would effectively codify and expand upon a waiver that the Wireless Telecommunications Bureau (Bureau) granted for all broadband PCS licensees in August 2000. 10 In that waiver grant, the Bureau waived § 24.238 “insofar as it limits out-of-band emissions on: (1) Adjacent contiguous frequency blocks that are separately assigned to the same PCS licensees, and (2) adjacent contiguous frequency blocks that are assigned to different PCS licensees who have entered into an agreement(s) concerning interference protection to the adjacent spectrum.”  11 The proposed rule change would allow somewhat more flexibility to licensees because it would not limit a licensee's ability to contract for alternative emissions limitations to only those frequency blocks that are both adjacent and contiguous. Because our proposed change would effectively codify a waiver that permits greater flexibility for broadband PCS licensees, the proposed changes to § 24.238 would not have a significant economic impact on broadband PCS providers.

24. The potential actions on which comment is sought in this NPRM would be authorized under Sections 1, 4(i), 11, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 161, and 303(r).

25. The RFA requires that an initial regulatory flexibility analysis be prepared for notice-and-comment rulemaking proceedings, unless the Agency certifies that “the rule will not, if promulgated, have a significant impact on a substantial number of small entities.”  12 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”  13 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 14 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 SBA. 15 This IRFA describes and estimates the number of small-entity licensees and manufacturers that may be affected if the proposals in this NPRM are adopted.

26. This NPRM could result in rule changes that, if adopted, would affect small businesses that currently are or may become Cellular Radiotelephone Service providers that are regulated under subpart H of part 22 of the Commission's rules. In addition, the proposed changes to § 22.323 of the Commission's rules would, if adopted, affect service providers that are regulated under any provisions of part 22 of the Commission's rules. These include, in addition to Cellular Radiotelephone Service providers, providers of Paging and Radiotelephone (Common Carrier Paging), Air-Ground Radiotelephone, Offshore Radiotelephone, and Rural Radiotelephone services. In addition, pursuant to § 90.493(b) of the Commission's rules, paging licensees on exclusive channels in the 929-930 MHz bands are subject to the licensing, construction, and operation rules set forth in part 22. 16 As this rulemaking proceeding applies to multiple services, we will analyze the number of small entities affected on a service-by-service basis. In addition to service providers, some of the proposed rule changes may also affect manufacturers of cellular telecommunications equipment. We will include a separate discussion regarding the number of small cellular equipment manufacturing entities that are potentially affected by the proposed rule changes.

27. Cellular Radiotelephone Service. Neither the Commission nor the SBA has developed a definition of small entities applicable to cellular licensees. Therefore, the applicable definition of small entity is the definition under the SBA rules applicable to radiotelephone (wireless) companies. This provides that a small entity is a radiotelephone company employing no more than 1,500 persons. 17 According to the Bureau of the Census, only twelve radiotelephone firms from a total of 1,178 such firms, which operated during 1992, had 1,000 or more employees. 18 Therefore, even if all twelve of these firms were cellular telephone companies, nearly all cellular carriers were small businesses under the SBA's definition. In addition, we note that there are 1,758 cellular licenses; however, a cellular licensee may own several licenses. In addition, according to the most recent Telecommunications Industry Revenue data, 808 carriers reported that they were engaged in the provision of either cellular service or PCS, which are placed together in the data. 19 We do not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of cellular service carriers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 808 or fewer small cellular service carriers that may be affected by these proposals, if adopted.

This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-113 adopted May 16, 2001 and released May 25, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

Petitioner originally requested the allotment of Channel 259A at Big Piney, Wyoming, and Channel 261A at La Barge, Wyoming as a counterproposal to MM Docket No. 99-56. Consistent with the minimum distance separation requirements of § 73.207(b) and the principal community coverage requirements of § 73.315(a) of the Commission's Rules, neither channel can be allotted at the requested community. We determined that alternate channels could be allotted at both communities.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-114 and MM Docket No. 01-115, adopted May 16, 2001 , and released May 25, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

The Commission requests comments on a petition filed by Au Gres Broadcasting Company proposing the allotment of Channel 295A at Au Gres, Michigan, as the community's first local aural transmission service. Channel 295A can be allotted to Au Gres in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The coordinates for Channel 295A at Au Gres are 44-02-55 North Latitude and 83-41-45 West Longitude.

The Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:

This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 01-148, adopted April 27, 2001, and released May 7, 2001. The full text of this Notice of Proposed Rulemaking (NPRM) is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 Twelfth St., SW., Washington DC.

The complete text may be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC 20036, telephone (202) 857-3800, facsimile (202) 857-3805. The full text of the NPRM also can be downloaded at: http://www.fcc.gov/Bureaus/Wireless/Orders/2001/fcc01148.wp. Alternate formats (computer diskette, large print, audio cassette, and Braille) are available to persons with disabilities by contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365, or at bmillin@fcc.gov.

1. On December 20, 1999, LoJack Corporation (LoJack) filed a Petition for Rulemaking seeking amendment of 47 CFR 90.20(e)(6) to revise the authorized duty cycle for SVRS operations on 173.075 MHz. LoJack indicates that use of a duty cycle of 1800 milliseconds permits the stolen vehicle recovery system to be activated by unauthorized movement. The mobile-to-base station “uplink” transmissions can be used to alert a control center, alert the vehicle owner in order to effect a prompt police theft report, and acknowledge base station activation and deactivation messages. LoJack submits that the new “uplink” feature obviates the need for repetitive transmissions by high-powered base stations, reducing the actual transmitting time on the channel by as much as a factor of 100:1. In order to benefit from these technological advances, a system must utilize the 1800 milliseconds cycle in addition to the 200 milliseconds cycle.

2. We believe the record warrants proposing amendment of 47 CFR 90.20(e)(6) to reflect current technological advancements that will benefit law enforcement and vehicle owners. By expediting the theft detection and reporting process, the “uplink” technology appears to greatly improve the chances for successful vehicle recovery and improves tracking efficiency. We invite comment on the merits of the proposal, specifically the public interest and public safety benefits associated with revising the duty cycle to permit the use of this new technology.

3. We believe that spectrum efficiency is an additional benefit of utilizing this new technology for recovering stolen vehicles. The “uplink” feature of the new system would be used to acknowledge base station activation and deactivation messages, thereby obviating the need for repetitive transmissions by high-powered base stations. Although the “uplink” transmission will be greater in length then the tracking signal, the “uplink” transmissions will be fewer in number than the tracking signal. Viewing the proposal in its entirety, we believe that it would significantly reduce channel occupancy, and thereby promote spectrum efficiency. Commenters should address whether adoption of the proposal would advance efficient spectrum utilization.

4. The LoJack system transmits on a frequency of 173.075 MHz with an authorized bandwidth of 20 kHz. Therefore, interference to TV Channel 7 (174-180 MHz) reception is a concern. The possibility of interference to TV Channel 7 is largely determined by power and proximity. As such, it is the base station sites rather than the transponder units, that are of greater consequence. Nonetheless, transmissions by mobile units are restricted in order to reduce the impact of any potential interference from mobile units to TV Channel 7 reception. Instituting the 1800 millisecond duty cycle will not significantly increase the number of mobile transmissions. Consequently, we tentatively conclude that the possibility of interference from mobile units to TV Channel 7 will not significantly increase. Conversely, the number of base station transmissions needed for a typical stolen vehicle recovery sequence will be greatly reduced. Therefore, we tentatively conclude that the proposal will likely reduce the possibility of harmful interference to DTV and TV Channel 7 reception. Nevertheless, we invite commenters to address any concerns regarding interference to digital, as well as analog, broadcast operations on TV Channel 7.

5. In addition to proposing to modify the duty cycle rule, we invite comment on whether the public interest continues to be served by specification of the relevant duty cycles in our Rules. We seek comment on whether these concerns continue to merit specifying duty cycles, in whole or in part, or whether it is now appropriate to develop a rule permitting greater technical flexibility. Would elimination of a specified duty cycle for mobiles cause harmful interference to TV Channel 7 reception? Would removal of a duty cycle for base stations prevent competitive SVRS operations from commencing? In addition, would spectrum efficiency be impaired without specified duty cycles? Commenters favoring removal of duty cycle limits also should explain the possible effect on the sharing of 173.075 MHz by the Federal Government, given that this is a shared frequency. Finally, we ask interested parties to address the question of what specific benefits could accrue from elimination of duty cycles for mobile and base transmitters.

6. Ex Parte Rules Presentations. This is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in the Commission's rules. See generally 47 CFR 1.1202, 1.1203, 1.1206(a).

7. Comment Dates. Pursuant to §§ 1.415 and 1.419 of the Commission's Rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before July 12, 2001, and reply comments on or before July 27, 2001. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (May 1, 1998).

8. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

9. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appear in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 12th street, S.W., Room TW-A325, Washington, D.C. 20554.

10. Paperwork Reduction Analysis. The proposal contained herein has been analyzed with respect to the Paperwork Reduction Act of 1980 and found to contain no proposed information collection.

11. Initial Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act (RFA), 5 USC 603, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in the Notice of Proposed Rule Making (NPRM). Written public comments are requested on this IRFA. These comments must be filed in accordance with the same filing deadlines as comments on the rest of the NPRM but they must have a separate and distinct heading designating them as responses to the IRFA. The Commission will send a copy of the NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. 603(a). In addition, the NPRM and IFRA (or summaries thereof) will be published in the Federal Register . See id.

In the NPRM, we propose to change the duty cycle for mobile transmissions in stolen vehicle recovery systems contained in 47 CFR 90.20(e)(6) to 1800 milliseconds every three hundred seconds to permit use of new technology. Such modification would be in the public interest because it would enhance the efficient use of spectrum and permit greater efficiency in use of police resources to track and recover stolen vehicles and apprehend more individuals involved in such activities.

Authority for issuance of this item is contained in sections 4(i), 4(j), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303(r).

The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. See 5 U.S.C. 603(b)(3). The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under section 3 of the Small Business Act. See 5 U.S.C. 601(b)(3). A small business concern is one that: (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. See 5 U.S.C. 632. Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” See 5 U.S.C. 601(5).

This proposal will provide marketing opportunities for radio manufacturers, some of which may be small businesses. Beyond this we are unable to quantify the potential effects on small entities. We, therefore, invite specific comments on this point by interested parties.

The NPRM solicits comments that will not entail reporting, recordkeeping, and/or third-party consultation.

The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 5 U.S.C. 603.

As an alternative to modification of the subject rule, the Commission invited public comment on elimination of that rule, i.e., specified duty cycles for mobile and base transmitters.

None.

12. It Is Ordered that, pursuant to sections 4(i), 4(j), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), and 303(r), Notice Is Hereby Given of proposed amendment to § 90.20(e)(6) of the Commission's rules, 47 CFR 90.20(e)(6), as described.

13. It Is Further Ordered that the Petition for Rulemaking, RM-9798, submitted by the LoJack Corporation on December 20, 1999 Is Granted to the extent indicated herein.

14. It Is Further Ordered that the Commission's Consumer Information Bureau, Reference Information Center, Shall Send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 90 as follows:

This notice is relevant to the Hood Canal Summer-Run Chum Salmon ( Oncorhynchus keta ) ESU.

The full texts of NMFS’ determination, and the final Evaluation are available on the Internet at the NMFS, Sustainable Fisheries Division wed site at: http://www.nwr.noaa.gov/1sustfsh/limit6/index.html.

The Summer Chum Salmon Conservation Initiative - An Implementation Plan to Recover Summer Chum Salmon in the Hood Canal and Strait of Juan de Fuca Region is available on the Internet at the State of Washington, Department of Fish and Wildlife web site: http://www.wa.gov/wdfw/fish/chum/chum.htm.

The Washington Department of Fish and Wildlife and the Point-No-Point Treaty Tribes provided NMFS a jointly developed RMP for Hood Canal and Strait of Juan de Fuca summer-run chum salmon. The RMP encompasses Washington Coastal and Puget Sound salmon fisheries affecting the Hood Canal summer-run chum salmon ESU. Harvest objectives specified in the RMP account for fisheries-related mortality throughout the migratory range of Hood Canal and Strait of Juan de Fuca summer chum salmon, from Northern British Columbia, Canada to South Puget Sound. The RMP also includes implementation, monitoring and evaluation procedures designed to ensure fisheries are consistent with these objectives.

On March 13, 2001, at 66 FR 14551, NMFS published a notice of availability for public review and comment on its evaluation of how the Hood Canal summer-run chum salmon RMP addressed the criteria in § 223.203(b)(4) of the ESA 4(d) rule (65 FR 42477).

As required by § 223.203 (b)(6) of the ESA 4(d) rule, NMFS must determine pursuant to 50 CFR 223.209 and pursuant to the government to government processes therein whether the RMP for Hood Canal summer-run chum salmon would appreciably reduce the likelihood of survival and recovery of the Hood Canal Summer-Run Chum Salmon ESU and other affected threatened ESUs. NMFS must take comments on how the RMP addresses the criteria in § 223.203(b)(4) in making that determination.

The RMP establishes a harvest regime referred to as the Base Conservation Regime (BCR). Under the BCR, summer chum salmon are caught incidentally in fisheries targeting other, more abundant and healthy populations. Most of these fisheries require the catch-and-release of summer chum salmon. The RMP’s management actions affect all salmon fisheries which impact listed Hood Canal summer-run chum salmon, including Canadian salmon fisheries.

The BCR is comprised of the following elements: (1) A base set of fishery-specific management actions for fisheries in U.S. and Canadian pre-terminal, Washington terminal and Washington extreme terminal areas; (2) Management unit and population abundance and escapement critical thresholds that trigger review of and possible adjustment of the management actions; (3) Expected fishery specific exploitation rate targets and ranges based on the application of the BCR on the Hood Canal and Strait of Juan de Fuca summer chum salmon management units; and (4) Overall management performance standards based on natural production against which to assess success of the Summer Chum Salmon Conservation Initiative and the harvest strategy, and make necessary adjustments. The actions required depend both on the status of the management unit and the populations within them, with the most conservative controls prevailing.

In any given year, the results of these management actions are designed to produce exploitation rates within the range of 3.3 to 15.3 percent on summer chum salmon bound for the Hood Canal and 2.8 to 11.8 percent on the Strait of Juan de Fuca populations. It is NMFS’s determination that exploitation rates within these ranges, with the average annual exploitation rate near the mid-point, will not appreciably reduce the likelihood of survival and recovery of the ESU in the wild. Although in any one year, fisheries may be managed for exploitation rates lower than this range, the upper end of the exploitation rate ranges may not be exceeded. If post-season analysis indicates that the range has been exceeded, the RMP requires Co-managers to take the necessary actions to identify the reasons for exceeding the ranges and to minimize this occurring the following year. At the time of the five-year plan review, the annual exploitation rates for the previous five-year period are not to be clustered towards either extreme of the range. The expected average annual exploitation rate is 10.9 percent on summer chum salmon bound for the Hood Canal and 8.8 percent on the Strait of Juan de Fuca populations. As stated previously, it is NMFS’ determination that the exploitation rates proposed in the RMP will not appreciably reduce the likelihood of survival and recovery of the ESU in the wild.

The BCR will remain in place until such time as the Co-managers incorporate the population recovery goals into the management structure. At that time, the Co-managers will discuss with NMFS what terms of the existing plan will continue.

The RMP includes a monitoring and evaluation plan to assess fishing-related impacts to Hood Canal summer-run chum salmon, the abundance of naturally spawning fish for each of the identified management units, the effectiveness of the fishing regimes and general approach, and regulatory compliance. The RMP also requires a progress report to be completed annually, with a more comprehensive plan review every five years. This information will be used by NMFS and the Co-managers annually to assess whether impacts to listed fish are as expected, and to revise the RMP as necessary.

A more detailed discussion of NMFS’ Evaluation is on the Sustainable Fisheries Division web site (See Electronic Access, under the heading SUPPLEMENTARY INFORMATION ).

NMFS published notice of its proposed evaluation and recommended determination on the RMP for public review and comment on March 13, 2001 (66 FR 14551). The public comment period closed on March 30, 2001. NMFS received comments from one representative of an organization concerning this notice. NMFS has reviewed comments received by the closing date and no issues were raised which required modifying the proposed evaluation and recommended determination. Based on its evaluation and taking into account the public comments, NMFS issued (April 27, 2001) its final determination on the Hood Canal summer-run chum salmon RMP.

Those comments related to NMFS’ proposed evaluation and recommended determination (Evaluation) are summarized here.

The March 13, 2001, Federal Register Notice (66 FR 14551) requested comments concerning NMFS’ proposed evaluation and recommended determination of the RMP (harvest component of the SCSCI). Issues raised by the commenter that related directly to the RMP or addressed the habitat or hatchery components of the Summer Chum Salmon Conservation Initiative required no response because this was not the subject of NMFS’ evaluation. The comments received were organized into five general categories; Critical Thresholds; Abundance and Escapement; Monitoring; Supplementation; and Population Growth Rate. NMFS’ response to comments followed this same structure.

Comment: The commenter suggested that the critical thresholds established by the RMP are too low. The commenter argued that increasing the critical thresholds would increase straying to areas where stocks are now extinct, introduce more salmon carcasses (nutrients) into the systems and compensate for catastrophic events.

Response: The RMP established critical thresholds for the five management units. The critical thresholds are based on the lowest abundance observed from 1974 to 1998 which produced a positive observed return (number of spawners was greater than the number of parents), plus a buffer of 25 percent of the difference between the highest and lowest observed abundances. The buffer was added to take into account management and forecast uncertainties, and environmental variation. NMFS’ (2000a) Viable Salmonid Populations (VSP) document describes four key parameters for evaluating the status of salmonid populations. These parameters are: (1) population size (abundance); (2) population growth rate (productivity); (3) spatial structure; and (4) diversity. These parameters include the issues raised by the commenter. Section 4(I)(B) of the proposed determination document addressed adequately each of the VSP parameters for the Hood Canal summer chum salmon population. The critical thresholds were derived prior to the availability of the paper on VSP, but meet or exceed the guidelines, and are generally conservative when compared to the size of the populations historically (NMFS 2000b).

Comment: NMFS received three comments under this category. One addressed the RMP directly (the level of terminal versus pre-terminal harvest) and required no response because this was not the subject of NMFS’s evaluation. One comment addressed the need for increased abundance and escapement to encourage natural straying into adjacent streams. Supplementation and reintroduction approach are described in the Artificial Production section of the SCSCI and was not part of the review of this RMP (the harvest component of the SCSCI). This issue was also addressed adequately in the critical threshold discussion in the response to the previous comment and in the proposed evaluation and recommended determination document (dated March 13, 2001) in the VSP parameters analysis. The last comment under this category was the commenter’s comment that the criteria for “renewing” harvest should be that the average abundance must be higher than the critical threshold for at least three life cycles (the commenter suggested nine years).

Response: The RMP establishes an annual harvest regime (called the Base Conservation Regime) for Hood Canal and Strait of Juan de Fuca terminal and Washington pre-terminal salmon fisheries. The harvest management strategy during this regime is designed to minimize incidental take of listed Hood Canal summer-run chum salmon, while providing opportunity for fisheries directed at other species. Very specific fishing restrictions are outlined in the RMP. These restrictions include closure of all summer chum salmon directed fisheries, delayed or truncated fishery openings for other salmonid species, chum salmon non-retention in fisheries directed at other species, and area closures around freshwater spawning tributaries. All state and tribal fisheries will operate in compliance with the Base Conservation Regime (BCR), and with any modifications made in response to the critical status for one or more management units or populations. The BCR will remain in place until such time as the Co-managers (Washington Department of Fish and Wildlife and the Point-No-Point Treaty Tribes) incorporate the population recovery goals into the management structure. It is anticipated that the BCR will be in place for the foreseeable future. However, as an implementation term, Co-managers will provide NMFS with an assessment report on the anticipated impacts associated with any new harvest regime (including direct take) on the Hood Canal Summer-Run Chum Salmon ESU. The Co-managers and NMFS will meet and discuss the results of the anticipated impacts of any new harvest regime prior to implementation. At that time, NMFS will determine if the new harvest regime is consistent with Limit 6 of the ESA 4(d) Rule.

Comment: The commenter suggested that the use of exploitation rate is not an adequate method to assess the “run health.”

Response: The RMP uses several population-specific, performance indicators to assess the effectiveness of the RMP. The performance indicators include: abundance, productivity, escapement, and management actions. The combined status of all these indicators are used to determine “run health”. These indicators are explained in more detail in the RMP and in the proposed evaluation and recommended determination document. Performance indicators also include indicators for monitoring the fisheries. The primary monitoring indicator is the estimates of exploitation rates obtained from the fisheries. Secondary fishery indicators include catch and catch rate, fishing effort, non-landed fishing-related mortality, and catch and escapement composition (size, age, mark rates, etc.).

Comment: The commenter suggested that the abundance numbers used in the RMP cannot be validated.

Response: NMFS recognizes that there are data gaps in the summer chum salmon escapement and harvest information. However, the RMP and NMFS’ evaluation used the best available scientific information. Currently, over 90 percent of the spawning grounds are surveyed. Catch is estimated by intensively sub-sampling a proportion of the harvest. More importantly, an exploitation rate approach is more resilient to data uncertainty and environmental variability than a fixed goal approach.

Comment: The commenter’s suggested the elimination of gill nets as a gear type.

Response: This comment is directed at the RMP and not NMFS’ proposed evaluation and recommended determination. No response was necessary.

Comment: The final comment in this category addressed the commenter’s concern over the commitment of the Co-managers to conduct the required monitoring.

Response: The Co-managers have designed the BCR management actions to provide sufficient protection for summer-run chum populations at the current levels of monitoring. The Co-managers have committed to maintaining the core elements of the monitoring programs, while recognizing that additional monitoring activities are important and are actively seeking funds to support them. However, as an implementation term, NMFS required all sampling, monitoring, assessment, evaluation, enforcement and reporting tasks or assignments related to harvest management in the RMP be conducted by the Co-managers as required in the RMP. The RMP requires the Co-managers to maintain fishery sampling at 1998 levels or above. The RMP also calls for specific and integrated monitoring programs to maintain and improve population assessment methodologies as well as evaluating the effectiveness of harvest management actions and objectives.

All comments received under this category addressed hatchery operations (supplementation) and fall outside the harvest component of the SCSCI (the RMP). No response was necessary.

Comment: Two of the three comments received under this category addressed the RMP or hatchery operations and not NMFS’ proposed evaluation and recommended determination of the harvest component of the SCSCI (the RMP). No response was necessary. The commenter also suggested that the proposed average exploitation rates could be reduced further by selective fishing methods.

Response: Selective fishing is a key aspect of the RMP. During the BCR, no direct take of Hood Canal summer-run chum salmon is allowed. Summer chum salmon are caught incidentally in fisheries targeting other abundant and healthy populations. Most of these fisheries require the non-retention of summer chum salmon. The proposed RMP management actions affect all salmon fisheries which impact listed Hood Canal summer-run chum salmon, including Canadian salmon fisheries. In any given year, the results of these management actions are designed to produce exploitation rates within the range of 3.3 to 15.3 percent on summer chum salmon bound for the Hood Canal and 2.8 to 11.8 percent on the Strait of Juan de Fuca populations. Although in any one year, fisheries may be managed for exploitation rates lower than this range, the upper end of the exploitation rate ranges may not be exceeded. At the time of the five-year plan review, the annual exploitation rates for the previous five-year period are not to be clustered towards either extreme of the range. The expected average annual exploitation rate is 10.9 percent on summer chum salmon bound for the Hood Canal and 8.8 percent on the Strait of Juan de Fuca populations.

NMFS’ analysis indicates that the proposed fishing regime (BCR) would not result in escapement significantly less than if fishing had not occurred at all. These exploitation rates were evaluated by NMFS and found to meet the requirements of Limit 6 of the ESA 4(d) Rule. This included the NMFS’ recommended determination that the RMP will not appreciably reduce the likelihood of survival and recovery of the ESU in the wild. Based on this analysis, excluding populations that are below the critical thresholds (which require Co-managers to investigate additional harvest management measures), a further reduction in the BCR average exploitation rate is not needed to meet the Limit 6, ESA 4(d) Rule requirements.

A complete list of all references cited herein is available upon request (see ADDRESSES ), or through the documents available on the Sustainable Fisheries web site (see Electronic Access, under the heading SUPPLEMENTARY INFORMATION ).

Under section 4 of the ESA, NMFS, by delegated authority from the Secretary of Commerce, is required to adopt such regulations as it deems necessary and advisable for the conservation of the species listed as threatened. The ESA salmon and steelhead 4(d) rule (65 FR 42422, July 10, 2000) specifies categories of activities that are adequately regulated to provide for the conservation of listed salmonids and sets out the criteria for such activities. The rule further provides that the prohibitions of paragraph (a) of the rule do not apply to actions undertaken in compliance with a RMP developed jointly by the State of Washington and the Tribes (joint plan) and determined by NMFS to be in accordance with the salmon and steelhead 4(d) rule (65 FR 42422, July 10, 2000).

This notice is relevant to the Puget Sound chinook salmon ( Oncorhynchus tshawytscha ) ESU.

The full texts of NMFS’ determination, and the final Evaluation are available on the Internet at the NMFS, Sustainable Fisheries Division wed site at: http://www.nwr.noaa.gov/1sustfsh/limit6/index.html .

In February of this year, the WDFW and the Puget Sound Treaty Tribes (Co-managers) provided a jointly developed RMP that encompasses Washington coastal and Puget Sound salmon fisheries affecting the Puget Sound chinook salmon ESU. The RMP is the harvest management component of a larger Puget Sound management and conservation planning effort called Comprehensive Chinook. Harvest objectives specified in the RMP account for fisheries-related mortality of Puget Sound chinook throughout its migratory range DBUMDNM from Oregon and Washington to Southeast Alaska. The RMP also includes implementation, monitoring and evaluation procedures designed to ensure fisheries are consistent with these objectives. On March 5, 2001, at 66 FR 13293, NMFS published a notice of availability for public review and comment in the Federal Register , on its evaluation of how the Puget Sound chinook RMP addressed the criteria in § 223.203 (b)(4) of the ESA 4 (d) rule (65 FR 42422).

As required by § 223.203 (b)(6) of the ESA 4 (d) rule, NMFS must determine pursuant to 50 CFR 223.209 and pursuant to the government to government processes therein whether the RMP for Puget Sound chinook would appreciably reduce the likelihood of survival and recovery of the Puget Sound chinook and other affected threatened ESUs. NMFS must take comments on how the RMP addresses the criteria in § 223.203 (b)(4) in making that determination.

The RMP’s approach to establishing management objectives is risk averse and progressive, representing significant improvements from past management practices, including (1) management objectives based on natural production and natural spawning have been established for the majority of naturally producing populations which historically had self-sustaining chinook populations and for which data is available. These management units represent the entire range of life history types (races) and geographic distribution that comprise the Puget Sound ESU; (2) the RMP derives exploitation rates based on conservative, quantifiable standards directly related to recovery, which take into account scientific uncertainty; (3) in isolating the effect of harvest on survival and recovery, the approach is valuable in ensuring that harvest actions do not impede recovery, regardless of the contribution of the other Hs (hatcheries, habitat, hydropower). At the same time, the approach is linked to the other Hs by taking into account current environmental and habitat conditions; (4) the proposed objectives are generally consistent with NMFS’ Rebuilding Exploitation Rates (RER), population standards previously used to assess the likelihood of survival and recovery of the Puget Sound ESU. These standards included an assessment of the long-term effects of exploitation rates at these levels; (5) the RMP includes specific and integrated monitoring programs to maintain and improve population assessment methodologies as well as evaluate the effectiveness of harvest management actions and objectives. The RMP also includes provisions for annual progress reports and a 5-year comprehensive plan evaluation. These reports will assess compliance with, parameter validation of, and effectiveness of the RMP objectives. The inclusion of new information through monitoring and evaluation provides greater assurance that objectives will be achieved in future seasons.

A more detailed discussion of NMFS’ Evaluation is on the Sustainable Fisheries Division web site (see Electronic Access, under the heading, SUPPLEMENTARY INFORMATION ).

NMFS and the Co-managers recognize that there is a need for more information regarding the Puget Sound ESU. For this reason, the application of Limit 6 of the ESA 4 (d) rule to the RMP is in effect from May 1, 2001, through April 30, 2003. Prior to the end of that period, NMFS will evaluate all of the information obtained and determine whether to extend the application of Limit 6 of the ESA 4(d) rule to the RMP. This document also includes a summary of the underlying biological analysis used in the determination (Evaluation).

NMFS published notice of its proposed Evaluation and recommended determination on the RMP for public review and comment on March 5, 2001 (66 FR 13293). During the 21-day public comment period, three organizations and one private citizen submitted comments to NMFS. Several of the comments were addressed in NMFS’ final Evaluation and Recommended Determination document, but no changes were required to the RMP. Based on its Evaluation and taking into account the public comments, NMFS issued (April 27,2001) its final determination on the Puget Sound chinook RMP.

Those comments related to NMFS’ proposed evaluation and recommended determination (Evaluation) are summarized here. Similar comments have been combined where appropriate.

Comment 1 : Several comments spoke to the legality of the listing itself, the ESA 4(d) rule, the treatment of hatchery fish under the ESA, and the allowance of direct take.

Response : NMFS understands the concerns of the commenters on these issues, but they are not relevant to the Evaluation itself. NMFS addressed these issues in its response to public comment at the time of promulgation of the ESA 4(d) rule, the decision to list, and in various NMFS technical documents and reports.

Comment 2 : Two commenters stated that they were denied the opportunity to provide meaningful comment on the Evaluation because of (1) difficulty in locating the Evaluation on the website and (2) the availability of the Evaluation but not the RMP itself.

Response : The website address for NMFS Northwest Region as well as the telephone number and email address of the NMFS contact person were included in the Federal Register notice, dated March 5, 2001. When the FRN was first published, NMFS received several calls and e-mails from reviewers asking for assistance in locating and printing the Evaluation. The difficulties were found to be a combination of software and web design problems, which NMFS corrected and improved by the second day of notification. The FRN also listed the same contact information in order to obtain further information on the RMP. The RMP was, in fact, provided to several reviewers on request. The timeliness in which the problems were solved and the availability of NMFS staff to assist reviewers resulted in no substantial effect on the opportunity to review and comment.

Comment 3 : Commenters expressed concern (1) about a 2-year approval of the RMP despite acknowledged data uncertainties, asserting that the RMP fails to meet the requirements of the ESA 4(d) rule, and (2) it constituted an inconsistency in the treatment of fishery activities versus habitat activities.

Response : Limit 6 of the ESA 4 (d) rule requires that NMFS determine whether (1) the RMP addresses the criteria as referenced in either Limit 4 or 5, and (2) that the RMP does not appreciably reduce the likelihood of survival and recovery. NMFS has determined that the Puget Sound chinook RMP does adequately address each of the criteria as referenced in Limit 4, and that it would not appreciably reduce the survival and recovery of the Puget Sound chinook ESU. The ESA requires that in making that decision, NMFS must use the best available scientific information. However, NMFS recognizes that there will be some uncertainty associated with whatever information is available, and considers the degree of uncertainty when making its decisions. To address these uncertainties, the data analyses incorporated variability around the productivity and capacity stock-recruit parameters, survival variables and management error (NMFS 2000b, WDFW/PSTT 2001). In making its decision on the RMP, NMFS determined that the data uncertainties did not represent a significant risk in the short term to the ESU, and that the benefits to the ESU in immediate implementation of the plan outweighed the risks represented by the uncertainty in the data. NMFS believes that the 2-year time limit is an adequate amount of time to address the data uncertainties without increased risk to the ESU, and that it corresponds with the current schedule for completion of the tasks assigned to the Puget Sound and Olympic Peninsula Technical Recovery Team (TRT), including establishment of recovery goals.

The ESA 4 (d) rule does not specify the duration that take limits must be applied for activities approved under any of the Limits in the 4 (d) rule. This approach is consistent with the implementation of other sections of the ESA. For example, both the section 7 biological opinions and section 10 permits that NMFS has issued have varied from single year to multi-year duration. Therefore, the two-year application of take limits for the RMP and the treatment of data uncertainty do not represent inconsistency in treatment among the activities considered under the 4 (d) rule.

Comment 4 : One commenter expressed concern about a lack of viable thresholds for several of the populations where natural production occurs.

Response : The RMP identified viable thresholds for all of the management units where natural production occurs and self-sustaining natural production occurred historically, and for all populations for which the Co-managers believed data were sufficient. Where the Co-managers believed data were insufficient to define viable thresholds for individual populations, populations were aggregated and a viable threshold was determined for the management unit as a whole. This is consistent with the ESA 4 (d) rule which allows populations to be aggregated into management units “when dictated by information scarcity.” (4 (d) rule Limit 4, Criteria 1). NMFS derived viable thresholds for several populations where the Co-managers felt the data were insufficient, and determined that the RMP objectives for the management unit were sufficiently protective of the individual populations, and the ESU as a whole. However, NMFS does not believe the original Evaluation was clear on this point and has revised it to clarify this information.

Comment 5 : Two of the commenters expressed concern that the Evaluation inadequately addresses the lack of recovery goals and management objectives for productivity in the RMP.

Response : The ESA 4(d) rule does not require that a RMP include recovery goals. This is taken up in the separate recovery planning process. The 4 (d) rule does require that the viable and critical thresholds be consistent with the concepts in the Viable Salmon Populations document (VSP)(McElhaney et al . 2000). There is very limited direct information on the current capacity and productivity of most chinook systems in Puget Sound to define explicit objectives for productivity. However, information on productivity and capacity can be inferred by deriving population dynamic relationships for management units and populations based on available escapement, survival and age data. Productivity and capacity are components within the formulas used to derive several of the management objectives in the RMP, and all of NMFS’ RER standards. In areas where this information was not available, the RMP escapement and exploitation rate management objectives used escapement goals adopted in the Puget Sound Salmon Management Plan that were based on information from the 1960s and 1970s. The Puget Sound Salmon Management Plan (PSSMP) goals are probably conservative in that they likely overestimate the current capacity and productivity of the chinook habitat when compared with current habitat condition. NMFS evaluated these escapement goals against its own population standards and VSP guidance. Using this approach, NMFS concluded the objectives in the RMP were consistent with the concepts in the VSP document as required by the 4 (d) rule criteria.

Comment 6 : One commenter expressed concern that the Evaluation did not adequately address the impacts of fishing on spatial structure since the RMP did not define take targets for spatial structure. It suggested there should be impact studies of fishing actions on the spatial structure of chinook salmon populations.

Response : Providing adequate spatial structure for salmonid populations requires that the habitat is of sufficient quality and quantity, that it is connected, and that the timing and biological characteristics of the salmon themselves provide for the use of the available habitat. Fishing activities can affect the return timing and biological characteristics of the fish (age, size, sex), and in some cases the pattern of spawning. Generally, this occurs when a certain segment of the population is disproportionately harvested over a period of time. However, as stated in the Evaluation, there is currently no information to indicate that these fisheries are having deleterious effects on specific segments of the populations, and certainly not to the ESU as a whole. For example, NMFS’ status review (Myers et al., 1998) did not discern any trends in size, weight, fecundity or other life history traits for Puget Sound chinook that might be a result of fishing activities. NMFS sees no reason to change its conclusion on this issue. However, NMFS agrees with the commenter that the potential effects of fishing activities on spatial structure should continue to be monitored and evaluated for shifts in run or spawning timing, or biological characteristics attributable to fishing activities. Such monitoring was included in the implementation terms accompanying the final determination.

Evaluating spatial structure at the ESU level, NMFS concluded that the management units represent the full complement of the natural chinook populations within Puget Sound and include all principal life history traits (spring, summer and fall runs).

Comment 7 : One of the commenters expressed concern about the quality of the coded wire tag (CWT) data underlying the derivations of the rebuilding exploitation rates (RERs) and their connection to the Maximum Sustainable Yield (MSY) escapement goals established in the PSSMP.

Response : The MSY-based RERs in the RMP use current information on spawning escapement, age structure and survival. They are not based on the PSSMP escapement goals. At this time, CWT data provide the best available information to estimate survival rates by age and mortality rates by fishery. Wild stock tagging in Puget Sound has been tried in several areas, but the resulting mortality has been high, and there have not been enough wild juveniles captured to result in sufficient tag recoveries to estimate stock composition of fisheries or population distribution with confidence. However, where both wild and hatchery stocks of the same outmigrant type have been tagged successfully, significant differences in distribution or exploitation rate between the two groups have not been detected. The simulation models used to assess the RERs incorporated uncertainty. Until more direct estimates are available, this represents the best available scientific information. Management performance will be evaluated annually and the management objectives will be revised as significant new information becomes available.

Comment 8 : Commenters expressed concern about the magnitude of the exploitation rate and escapement threshold objectives, especially relative to the PSSMP escapement goals.

Response : For the purposes of evaluating the RMP under the requirements of the ESA 4 (d) rule, it is not appropriate to comment on the objectives of the RMP relative to those in other management plans. NMFS evaluated the RMP management objectives against NMFS’ independently derived population standards and the guidelines provided by the VSP document. NMFS’ guidelines and standards were developed through a thorough review of the ecological, conservation and salmonid literature (McElhaney et al. , 2000) or through independent analysis of spawner-recruit relationships based on the best available estimates of escapement, hatchery contribution to escapement, natural production and survival. Acknowledging data uncertainties, NMFS’ analysis incorporated variability in capacity, productivity, management error and survival (NMFS 2000b). NMFS concluded that the RMP objectives are consistent with NMFS’ guidelines.

Comment 9 : One commenter questioned the need for exploitation rate objectives for Category 2 populations (those systems where established chinook populations existed historically but have largely been replaced by hatchery production) and the inclusion of the Hoko River chinook in the RMP.

Response : One of the ESA 4 (d) rule criteria is to establish escapement or exploitation rate objectives for each of the populations or management units within the ESU. It is up to the Co-managers how to structure these objectives. Exploitation rate objectives for Category 2 populations were included in the RMP provided to NMFS for review and evaluation consistent with that criterion. NMFS believes that it is important to establish management objectives for these populations since they may play an important role in recovery. Hatchery contribution to the natural escapement of these populations is probably significant. However, information on the amount of contribution is limited for most of these systems. As more information becomes available on stray rates, and the hatchery and harvest programs are successfully integrated, the management objectives may be revised and refined to better reflect the natural production of the systems.

The harvest management component of the Comprehensive Chinook Management Plan was provided to NMFS for evaluation as an RMP under Limit 6 of the 4(d) rule. However, it was developed as part of a larger planning effort by the Co-managers, unrelated to ESA, that encompasses the western Strait of Juan de Fuca, where the Hoko River is located, and the rest of Puget Sound. The Hoko River chinook population is not part of the Puget Sound chinook salmon ESU, and NMFS did not include it in its evaluation of the RMP under Limit 6 of the 4 (d) rule.

Comment 10 : Two commenters expressed concern about the inclusion of hatchery fish in determining whether escapement thresholds have been achieved.

Response : The composition of escapement thresholds is described in Table 1 of the Evaluation. Escapement thresholds are defined in terms of natural origin recruits for six of the ten management units managed for natural production. Three of the remaining four of these management units use hatchery production to maintain and rebuild the associated chinook populations. In areas with significant hatchery production, it is currently difficult or impossible to distinguish between hatchery-origin and wild-origin fish on the spawning grounds. Mass-marking programs have been or will be implemented for most hatcheries releasing chinook in Puget Sound, allowing separation of returning hatchery and natural origin adults. However, marked adults will not return for several years. In addition, there are not currently hatchery contribution guidelines in place for the proportion of hatchery fish on the spawning grounds. Both the Hatchery and Genetic Management Plans which NMFS is in the process of developing with the Co-managers, and ultimately the recovery plan for Puget Sound chinook will address this issue. When this information is available, management objectives may be revised, as per the evaluation requirements of the RMP.

Comment 11 : One commenter expressed confusion over the terms used to describe escapement threshold and exploitation rate objectives in the Evaluation, and asked for more specificity on the actions that would be taken should escapements fall below the thresholds.

Response : NMFS acknowledges the use of the different terms in the Evaluation may have been confusing and has revised the Evaluation to clarify the definition and use of these terms. Long-term abundance and low abundance thresholds are terms the state and tribal Co-managers use in the RMP to describe lower and upper escapement objectives for fisheries management. Critical and viable thresholds are terms used by NMFS in its ESA 4(d) rule and in the VSP document for ESA purposes. NMFS evaluates the long-term and low abundance management objectives provided in the RMP against its guidelines for viable and critical thresholds to see whether the RMP thresholds, used for a variety of fishery management objectives, meet the requirements under ESA. The exploitation rate objectives are in terms of brood year exploitation rates.

Examples of the types of fishery actions that would be taken should escapements fall below their lower abundance thresholds are captured in section H of the Evaluation, and in appendices A and C of the RMP. The actions taken must be appropriate to the circumstances and will vary depending on the population, distribution of fishery mortality and the cause of the failure to meet the escapement objectives. A generic, one-size-fits-all response is rarely the most beneficial to either the resource or fishery objectives. Fishery closures and restrictions are among the actions listed in the RMP, and increasingly among the actions the Co-managers have voluntarily taken in recent years in response to declines in chinook abundance.

Comment 12 : One commenter disagreed with NMFS’ statement that an exploitation rate rather than a fixed-escapement goal approach would result in rebuilding of Puget Sound chinook populations. The commenter uses an example from the Snohomish system to support its position.

Response : The comments reflect a misunderstanding of the analyses used to derive the objectives in the RMP and the implementation of those objectives. The exploitation rates are designed to provide an 80-percent probability of exceeding the upper escapement threshold (the viable or long-term escapement threshold) within 25 years, starting from the existing levels of spawning escapement. In other words, resulting in a high probability of rebuilding chinook populations to viable escapement levels, not merely meeting the critical or low-abundance escapement thresholds as asserted by the commenter. This approach is designed such that the upper escapement level will increase as habitat capacity increases, integrating harvest with habitat recovery and restoration actions. In effect, this provision guards against inappropriately increasing exploitation rates when habitat capacity or productivity increases. The exploitation rates are maximum rates that fisheries may be managed below, but cannot be exceeded. In fact, managers have consistently set annual exploitation rates below exploitation rate objectives over the last several years. If management units and populations do not rebuild as expected, the RMP contains provisions to revise exploitation rates if the data evaluation shows that fishery activities are impeding rebuilding.

Some of the information the commenter uses to support its assertion is incorrect. The 1996 Puget Sound run size of Snohomish summer/fall chinook wild adults was approximately 5,200 rather than the 8,000 originally reported. The revised estimate was based on the results of an otolith marking study that enables managers to better distinguish between hatchery and wild spawners. With a run size of 5,200, the spawning escapement of 5,250 would not have been achieved even with closure of all fisheries in Puget Sound. The exploitation rate in southern U.S. fisheries was very low, estimated to be less than 10 percent. With this correction, the data appear to support the contention of the Evaluation that exploitation rates have contributed to higher escapement in years of higher return. In both 1996 and 1998, the post-season return was higher than preseason estimates, the exploitation rates remained very low, and the escapements were correspondingly higher. In 1996, the pre-season run size expectation was 4,200, the post-season return was 5,200, and the escapement was 4,851. In 1998, the preseason terminal run size was expected to be 5,600, the post-season return was 6,400, and the escapement was 6,304. Based on this information, NMFS sees no need to change its evaluation of the RMP.

Comment 13 : The commenter stated that the Evaluation does not address what it perceived are inconsistencies with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) policies regarding overfishing and the use of biological reference points.

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires each Regional Fishery Management Council to submit any fishery management plan (FMP) or FMP amendment to NMFS for review and approval, disapproval, or partial approval. NMFS implements approved FMP or amendment measures by issuing a final rule. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP or amendment, immediately publish a document in the Federal Register stating that the FMP or amendment is available for public review and comment.

The golden crab fishery off the southern Atlantic states is managed under the FMP. This FMP was prepared by the Council and approved and implemented by NMFS.

Amendment 3 would (1) extend through December 31, 2002, the allowed use of cable for a mainline attached to golden crab traps; (2) clarify the size of the required escape panel or door on a golden crab trap; (3) remove the catch requirement for renewing a commercial vessel permit for golden crab; (4) allow the issuance of a commercial vessel permit for golden crab for the southern zone for a vessel that held a valid permit for the southern zone in October 2000 but did not meet the subsequent 5,000-lb (2,268-kg) catch requirement for renewal; (5) allow a vessel greater than 65 feet (19.8 m) in length with a permit to fish in the southern zone to fish also in the northern zone; (6) allow two new commercial vessel permits to be issued for the northern zone; (7) provide that a commercial vessel permit will not be renewed if the NMFS Regional Administrator does not receive an application for renewal by June 30 each year; (8) liberalize the allowed increase in the size of a permitted vessel; (9) create a small-vessel sub-zone within the southern zone in which only permitted vessels 65 feet (19.8 m) or less in length may fish for golden crab; such vessels would be prohibited from fishing for golden crab in the remainder of the southern zone; and (10) add to the FMP’s list of management measures that may be modified via its framework procedure for regulatory adjustments measures related to the southern zone’s sub-zone.

In addition to the measures described above, Amendment 3 would establish the following: (MSY) for golden crab in the management area; a maximum fishing mortality threshold (MFMT), which is the fishing mortality rate that, if exceeded, constitutes overfishing; and a minimum stock size threshold (MSST), which is the stock size below which golden crab are considered overfished. The proposed specific parameters are as follows:

MSY would be an annual yield between 4 and 12 million lb (1,814 and 5,443 metric tons).

MFMT would be a fishing mortality rate that is in excess of the fishing mortality rate that produces MSY.

MSST would be either a ratio of current biomass to biomass at MSY (BMSY) or one minus the natural mortality rate (1 - M) times BMSY where 1 - M should never be less than 0.5.

In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule to determine whether it is consistent with Amendment 3, the FMP, the Magnuson-Stevens Act, and other applicable law. If that determination is affirmative, NMFS will publish the proposed rule in the Federal Register for public review and comment.

Comments received by August 13, 2001, whether specifically directed to Amendment 3 or to the proposed rule, will be considered by NMFS in its decision to approve, disapprove, or partially approve Amendment 3. All comments received by NMFS on Amendment 3 or the proposed rule during their respective comment periods will be addressed in the final rule.

In October 2000, NMFS informed the Council that it had determined that the Gulf of Mexico red grouper stock is overfished and undergoing overfishing. Under the Magnuson-Steven Fishery Conservation and Management Act (Magnuson-Stevens Act), the Council is required to propose management measures to initiate rebuilding the stock within one year of NMFS’ determination that the stock is overfished.

The Council has developed Amendment 18, in part, to address its responsibility under the Magnuson-Stevens Act, to propose stock rebuilding measures for red grouper. The Council will convene public hearings to review draft Amendment 18 and its accompanying DSEIS. Amendment 18 proposes to establish a 10-year red grouper rebuilding program and address other gear and enforcement issues. The issues and proposed alternative measures contained in draft Amendment 18 are summarized below; the section references refer to sections of the draft Amendment 18 document.

6.1.1.1 Establish a longline/buoy gear endorsement - No preferred alternative selected.

6.1.1.2 Transferability of endorsement - Fully transferable.

6.1.1.3 Appeals board - Appeals to be handled by NMFS.

Longline and Buoy Gear Boundary Line (Section 6.1.2) - No preferred alternative selected.

Longline and Buoy Gear Phase-Out (Section 6.1.3) - No preferred alternative selected.

Use of Powerheads When Spearfishing (Section 6.2) - Require a permit for the use of powerheads when reef fish fishing (both commercially and recreationally), and eliminate the regulatory exemption that allows the use of powerheads in the stressed area for harvest of sand perch, dwarf sand perch, and hogfish.

Use of Reef Fish for Bait (Section 7.0) - Prohibit the use of all species in the reef fish management unit or parts thereof, except sand perch and dwarf sand perch, with any gear for bait. No preferred alternative has been selected regarding whether to apply this provision to commercial fishing, recreational fishing, or both.

Vessel Monitoring System (Section 8.0) - Require fishing vessels engaged in the bottom (reef fish) longline fishery to be equipped with an electronic vessel monitoring system (VMS), with the cost of the vessel equipment, installation, maintenance, and month-to-month communications to be paid or arranged by the owners as appropriate. NMFS would maintain and publish in the Federal Register a list of type-approved units and communications protocols.

Dormant Reef Fish Permits (Section 9.0) - No preferred alternative selected.

10.1 Red Grouper Sustainable Fishing Parameters - Set red grouper maximum sustainable yield (MSY), fishing mortality rate at MSY (FMSY), and spawning stock biomass proxy at MSY (SSMSY) at the range of values estimated by the Reef Fish Stock Assessment Panel, MSY = 6.705 to 7.012 million pounds; FMSY = 0.223 to 0.270; SSMSY = 350.7 to 433.2 million grams female gonad weight.

10.2 Red Grouper Minimum Stock Size Threshold (MSST) - Red grouper minimum stock size threshold (MSST) shall be 80% of SSMSY (280.6 to 346.6 million grams female gonad weight).

10.3 Red Grouper Maximum Fishing Mortality Threshold (MFMT) - Red grouper maximum fishing mortality threshold (MFMT) shall be FMSY (0.223 to 0.270), or the F consistent with recovery to the MSY level in no more than 10 years.

10.4 Red Grouper Optimum Yield (OY) - Red grouper optimum yield (OY) shall be 90% of MSY (6.035 to 6.311 million pounds).

10.5 Red Grouper Rebuilding Strategy - Adopt a 10-year red grouper rebuilding plan based on a constant catch strategy. The annual ABC during the rebuilding period is initially set at 4.3-5.2 million pounds. (This is a reduction of 21-34 percent from the 1996-99 average landings of 6.6 million pounds.) This ABC range may be modified following a future stock assessment by a regulatory amendment or plan amendment.

10.6 Commercial Shallow-Water Grouper Closed Seasons, Reef Fish Recreational Harvest on a Commercial Vessel, and Reef Fish Fishing Year - In addition to consideration of commercial shallow-water grouper closed seasons, this section also contains an alternative to consider prohibiting the retention of both commercial and recreational harvest of reef fish species on the same trip, and an alternative to consider changing the start of the fishing year for stocks that have a fixed closed season. No preferred alternative selected.

10.7 Recreational Closed Seasons - No preferred alternative selected.

10.8 Commercial Grouper Trip Limits - No preferred alternative selected.

10.9 Recreational Grouper Bag Limits - No preferred alternative selected.

10.10 Closed Areas - No preferred alternative selected.

Tilefish and Deep -Water Grouper Quotas and Closed Seasons(Section 11.0) - Combine tilefish and deep-water grouper into a new deep-water reef fish aggregate; set the new deep-water reef fish quota at 1.47 million pounds (which is the average annual harvest of tilefish and deep-water grouper from 1996-99); and consider a closed season for deep-water grouper and tilefish.

Changes to the Reef Fish Management Unit (Section 12.0) - Add the following species to the FMP management unit as indicated: Add the marbled grouper (Epinephelus inermis)to the shallow-water grouper aggregate under the management unit; and add the sand tilefish ( Malacanthus plumieri ) to the management unit.

Modifications to the Reef Fish FMP’s Framework Procedure for Setting Total Allowable Catch (TAC) (Section 13.0) - The primary modification is to allow a species TAC and commercial-to-recreational allocation to be set for an individual species within an aggregate (such as the shallow-water grouper aggregate) that differs from the aggregate allocation, provided the aggregate allocation remains as specified. A second modification allows NMFS stock assessments to report the status of stocks in terms of biomass or biomass proxy instead of spawning potential ratio (SPR). This section also contains an alternative to consider specifying that, if a TAC is set for red grouper or gag, the allocations will be based on catch histories of those stocks for the years 1986 to 1999.

Public hearings for Reef Fish Amendment 18 will be held at the following locations and dates from 7 p.m. - 10 p.m.

1. Thursday, June 14, 2001, Port Aransas Community Center, 408 North Allister, Port Aransas, TX.

2. Monday, June 18, 2001, Larose Regional Park, 307 East 5th Street, Larose, LA.

3. Tuesday, June 19, 2001, Imperial Palace Hotel, 850 Bayview, Biloxi, MS.

4. Wednesday, June 20, 2001, Hilton Beachfront Garden Inn, 23092 Perdido Beach Boulevard, Orange Beach, AL.

5. Thursday, June 21, 2001, National Marine Fisheries Service, 3500 Delwood Beach Road, Panama City, FL.

6. Monday, June 25, 2001, Holiday Inn Beachside, 3841 North Roosevelt Boulevard, Key West, FL.

7. Tuesday, June 26, 2001, Edison Comm. College, Hendry Hall, room K143, Ft. Myers, FL (Use Shoreline Blvd. entrance. Park in 1st lot on right (Lot 8). For Map directions see: http://www.edison.edu/aboutecc/lee_campus.htm).

8. Wednesday, June 27, 2001, Madeira Beach City Hall, 300 Municipal Drive, Madeira Beach, FL.

9. Thursday, June 28, 2001, Plantation Inn, 9301 West Fort Island Trail, Crystal River, FL.

The Council will also hear public testimony before taking final action on Amendment 18 at another meeting. A notification of the date, time, and location of that meeting will be published in the Federal Register . The Council will accept written comments received by June 28, 2001.

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Anne Alford at the Council (see ADDRESSES) by June 7, 2001.